Republic v Daniel Githinji Njeri

Neema Hospital. When he got there, he was informed of the death and that the body had been removed to the funeral home at Kenyatta University. 6. On 27th December 2017, he identified the body for post mortem purposes. He was accompanied by his sister, Pauline Wanjiru Kiarie and a police officer. 7. PW2 was Bernard Mwanzia Mbwele. He was the owner of the Isuzu Mini-Bus registration number KCF XXXZ. He said it was plying the Thika Road and Kamiti Road under Mariba Investment SACCO. He stated that on the date of the accident, its driver was Peter Kamiru Maina while the conductor was the accused. 8. However, the witness was away in Mombasa and got to learn of the incident from Kenneth Mburu (another driver) who told him that Peter Maina Kamiru had “killed someone”. PW2 called his driver, Peter Kamiru, who informed him that at Tanners stage, a private car hit the bus leading to an argument; and, that the other driver was assaulted. PW2 said that the accused gave him the same story. 9. He advised them to report the matter to the Police. On 25th December 2017, PW2 returned to Nairobi and made a report at Kasarani Police Station. Under cross examination, he conceded that the driver did not mention the accused and that the accused’s cellphone kept going on and off. 10. Kipkosgei Kimutai (PW3) was employed at the material time as a driver at Kamiti Prison. On 24th December 2017 at about 14:00 hours, he was driving an ambulance GKA XXXU along Kamiti Road. At the edge of Zimmerman, he found the road blocked by the public using stones and tyres. There was a small saloon car registration number KBA XXX W on the side on the left as one headed towards Kasarani. It was behind the matatu. 11. He was requested by the public to assist the driver. The deceased was evacuated from the driver’s side and transferred into the ambulance. PW3 and three people took the injured man to Uhai Neema Hospital. The patient was received at the emergency section but the doctor returned shortly afterwards and informed them that he was dead. PW3 made a report at Kasarani Police Station. 12. According to Edward Mburugu Gichuhi (PW4), he was driving another matatu Registration No. KAS XXXE towards Zimmerman. At Tanners stage, he witnessed an accident involving a matatu emblazoned Mariba Investment and a personal car. The personal car had damage on its bumper and head lights. The matatu had a small dent at the back bumper. 13. He said the driver of the salon car was being “beaten by the matatu operators – around 4 men”. He added as followsI knew some of them. Some had driver’s and tout’s uniform. I came out and tried to intervene. The matatu operators turned against me and started beating me. I fell into a ditch, they stomped on me, then got into their vehicle and left. One had driver’s uniform, the other tout’s uniform. The driver had a beard and was wearing blue uniform. 14. In cross examination, he stated that the accused was one of the assailants and that when he tried to intervene, the group “stomped on [him] when [he] fell into the ditch”. He and three other people helped to put the deceased into the ambulance for treatment at Uhai Neema Hospital. PW4 received first aid there and further treatment at Guru Nanak Hospital. 15. In further answer, he said that he got to the scene when the fight was still going on, and that the four persons beating the deceased were the same ones who attacked him. He said the accused was one of assailants and hit him on the chest before he fell into the ditch. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13584/eng@2025-09-30 2

page 2 of 6

16. PW5 was Paul Njihia, the Assistant Director Forensics at IPOA. At the material time he was based at Kasarani Police Station and a gazetted scene of crimes officer. On 26th December 20217, he and other police officers visited the scene. He took various photos at the scene, another set of the deceased at Kenyatta University Funeral Home as well as the two vehicles involved (exhibit 2 (i) to (xxiv)). He also produced the certificate required by the Evidence Act dated 28th July (exhibit 2). 17. In cross examination, he said he used the markers in the photos to reconstruct the scene. The photographs of the deceased were taken a day after the death. In further answer, he said he had testified before in a different trial involving the deceased in HCCRC No. 6 of 2018 where there two accused persons had earlier been charged. He said that the exhibits were the same. 18. SSGT Charles Musyimi (PW6) was the Investigation Officer. After he received the report from PW4, he visited Neema Uhai Hospital. The body had an injury (bump) at the back of the head. He then went to Marimba SACCO in Zimmerman and confirmed that the matatu was owned by PW2. PW6 said the matatu was abandoned at Kariokor. He produced the accused’s passport photo, police clearance certificate and a copy of the ID retrieved from the SACCO (exhibits 3 (i) to (iii)). 19. The witness said that the police had earlier arrested two suspects but they were acquitted of the murder in HCCR No. 6 of 2018. On 7th August 2019, and through mobile tracking, he arrested the accused who was working as a conductor in another matatu plying route 44 and which he intercepted at Thika Road Mall. However, the other suspect, Peter Maina, remains at large. 20. In cross examination, he denied telling the court in HCCRC No. 6 of 2018 that there was mob justice. He also clarified that CI Munyoki had conducted an ID parade in that other case. He said he got the accused’s mobile number from the matatu owner but it was switched off. He claimed that that the accused went underground. The police subsequently published a newspaper advert showing the accused was wanted. Those details are however missing in the investigation diary. 21. On 3rd October 2024, the postmortem report made by Dr. Johansen Oduor was admitted into evidence by consent and without calling the maker (exhibit 6). According to the pathologist, the cause of death was “head injury due to blunt trauma”. 22. Like I stated, when the accused was placed on his defence, he denied that he assaulted or killed the deceased. He also stated that when the fracas at Tanners stage took place, he was waiting for the matatu at Roysambu. He said as followsI did not do it. On 24/12/2017, a Sunday, I was with my family at home. The previous Saturday, my manager Bernard, had asked us to take the motor vehicle for check-up. I was a conductor. At 11.00 am, the driver, Peter Karimu, called me on that Sunday. I called Ojijo and Yano who are “Kamagera,” touts. They said they were at Roysambu. I told them to meet us at Githurai stage at 12.00 pm to link up with Peter. I went to Roysambu at 12.45 – 1.00 pm, picked miraa and waited at the stage. The matatu took longer than expected. I called Peter, but he did not answer. Then I saw the motor vehicle but it had no passengers except the kamageras. The driver was with the mechanic. The mechanic told me that at Tanners area, they were involved in an accident with a private car which had led into a fracas. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13584/eng@2025-09-30 3

page 3 of 6

23. Learned counsel, Mr. Omenke and Mr. Njogu relied on the submissions dated 24th July 2025. In a synopsis, they contend that the evidence does not connect the accused with the homicide and falls far short of the threshold of proof; and, that in view of the alibi, his identification remains in doubt. 24. The evidence was also attacked on two other fronts: That it was circumstantial; and, that there was great danger in relying on identification by a single witness. I was referred to Vincent Manyonge v Republic [2018] KEHC 164 (KLR), Bukenya & 2 Others v Republic (1973) EACA 549 and Bosco Ndungu Kinyanjui v Republic [2015] KECA 189 (KLR) among others. 25. My findings are as follows. The burden of proof that the accused murdered the deceased lay squarely with the Republic. Woolmington v DPP [1935] AC 462, Bhatt v Republic [1957] EA 332. 26. Section 203 of the Penal Code provides that any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 27. There are three key ingredients that must be present: first, the prosecution must prove beyond reasonable doubt the death of the deceased and the cause of that death; secondly, that the accused committed the unlawful act that led to the death; and, thirdly, that the accused was of malice aforethought. 28. The death of the deceased is no longer in doubt. His elder brother, (PW1) identified the body for postmortem purposes at Kenyatta University Hospital Mortuary on 27th December 2017. 29. The cause of death has also been established. From the postmortem report made by Dr. Johansen Oduor (exhibit 6), death resulted from “head injury due to blunt trauma”. 30. I thus readily find that the death was unlawful. The next question then is whether the Republic proved beyond reasonable doubt that the accused, of malice aforethought, killed the deceased. 31. The eye-witness in this case was PW4. He was driving another matatu. When he got to the scene, he saw four men from the matatu attacking the deceased. He knew some of the attackers. Some had matatu driver’s and tout’s uniforms. When he tried to intervene, the matatu operators turned against him and started beating him and he fell into a ditch. They then stomped on him, got into the matatu and sped off. 32. When cross examined, he was emphatic that the four persons who assaulted the deceased were the same ones who attacked him and that the accused was one of them and hit him on the chest before he fell into the ditch. PW4 is one of the people who helped to evacuate the deceased from his vehicle into the ambulance driven by PW3 to Neema Uhai Hospital. I have no cause to doubt that he was injured and sought first aid there and further treatment at Guru Nanak Hospital. 33. The identification of the accused by PW4 is also reinforced by other evidence. Firstly, his employer PW2 who confirmed that on the date of the accident, the driver of the matatu was Peter Kamiru Maina while the conductor was the accused. Furthermore, that fact was admitted by the accused in his defence when he statedOn Saturday, my manager Bernard [PW2], had asked us to take the motor vehicle for checkup. I was a conductor. At 11.00 am [on 24th December 2017], the driver, Peter Karimu, called me on that Sunday. I called Ojijo and Yano who are “Kamagera,” touts. They said they were at Roysambu. I told them to meet us at Githurai stage at 12.00 pm to link up with Peter. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13584/eng@2025-09-30 4

page 4 of 6

34. The accused testified that he was not at Tanners stage when the deceased was attacked but was chewing miraa at Roysambu stage between 12.45 and 1.00 p.m. when the matatu arrived. He said he was surprised as it had no passengers except the kamageras. 35. This alibi was raised well after the close of the prosecution’s case. But it did not shift the burden of proof to the accused. See Republic v Johnson [1961] 3 ALL ER 969, Saidi Mwakawanga v Republic [1963] EA 6. Like I stated earlier, the legal burden of proof lay throughout with the prosecution. Woolmington v DPP [supra] Bhatt v Republic [supra]. 36. I have thus weighed the alibi against the evidence of PW4. PW4 was attacked by the accused at the scene. He was also emphatic that the four persons who attacked him and who included the accused were the same persons who assaulted the deceased. The attack took place in broad daylight. I readily find that the accused was lying that he was miles away at another location in Roysambu chewing miraa. The entire alibi is a sham. 37. I have reached the conclusion that the accused was positively identified as one of the attackers by PW4. I have warned myself about the dangers. But like I stated, the evidence of PW4 is reinforced by other important aspects: Firstly, the accused’s employer (PW2) confirmed that on the date of the accident, the driver of the matatu was Peter Kamiru Maina while the conductor was the accused. 38. Secondly, the attack was carried out on a public road in broad daylight. Thirdly, the witness was himself a matatu driver and knew some of the attackers. Fundamentally, he had operated on the same route for over one year. Fourthly, the accused hit PW4 on the chest. He and three of the assailants stomped on him when he fell into the ditch before they took off in the matatu. 39. Fifthly, the witness was emphatic that the persons who assaulted him were the same ones who attacked the deceased. Sixth, PW4, was one of the people who helped to evacuate the deceased from his vehicle into the ambulance driven by PW3 to Neema Uhai Hospital. 40. The guilt of the accused is further reinforced by his conduct. His employer (PW2) said that the accused’s cellphone kept going on and off. According to PW6, the line was switched off and he went underground. The accused and the driver abandoned the matatu at Kariokor. The police had to advertise that he was a wanted person. He was only arrested with the aid of mobile tracking over one and a half years later on 7th August 2019. 41. Regarding the important ingredient of mens rea, the accused was one of four men who assaulted the deceased. By roughing up the deceased in that manner and drumming him in the head, he and his accomplices knew or ought to have known that it was likely to cause grievous harm or death. I thus find that the accused had malice aforethought as defined in section 206 (b) of the Penal Code. 42. The conduct of the accused is inconsistent with his plea of innocence. There is no evidence that the deceased attacked him or that he was acting in self-defence. The deceased died as a consequence of that conduct. The entire corpus of direct, circumstantial and documentary evidence points irresistibly to his guilt. 43. The upshot is that the prosecution has proved the charge beyond reasonable doubt. The accused, of malice aforethought, caused the death of the deceased by an unlawful act. I accordingly enter a finding of guilty and convict him of murder contrary to section 203 as read with section 204 of the Penal Code. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF SEPTEMBER, 2025. ...................................................... https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13584/eng@2025-09-30 5

page 5 of 6

KANYI KIMONDO JUDGE Judgment read virtually on Microsoft Teams in the presence ofAccused. Ms. Kigira for the Republic instructed by the Office of the Director of Public Prosecutions. Mr. Omenke & Mr. Kibui for the Accused instructed by Omenke Adeje & Company Advocates. Mr. E. Ombuna, Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13584/eng@2025-09-30 6

page 6 of 6