Republic v Alex Macau Gikonyo & 1 other

conduct did not amount to provocation. Reference was made to section 208 of the Penal Code. Counsel also cited a number of precedents including Bhatt v Republic [1957] EA. 332 and Republic v Godfrey Ngotho Mutiso [2008]. 7. But according to learned counsel for the 1st accused, Ms Wangechi and Ms. Muritu for the 2nd accused, the witnesses gave contradictory and sketchy evidence that does not tie the accused to the homicide. Furthermore, there was no proof of the key element of malice aforethought. 8. Learned counsel for the 2nd accused added that since the incident occurred on a busy highway, it was unreasonable to expect the accused to stop the bus. In a synopsis, the defence contended that the prosecution failed to lay any firm foundation to require a rebuttal from any of the accused. 9. My finding is as follows. It bears repeating that the accused are still deemed innocent at this stage. Furthermore, the inquiry at this juncture is merely to establish if a prima facie case has been made out requiring a rebuttal from the any of them. 10. I have paid heed to the evidence of some of the key witnesses. The accused were the driver and conductor respectively of a Zam Zam 45 Ltd matatu bus registration number KCC 021A. The prosecution’s case is that the 1st accused threw out the deceased from the moving vehicle and was crushed by it. It is also alleged that the 2nd accused failed to stop the vehicle to allow the deceased to safely alight. 11. It is too early to analyze all the evidence. But I have given heed to the testimony of key witnesses. For instance, George Njoroge Kamau (PW6) was a manager for the bus company. On 2nd August 2019 at about 05:30 hours, he released the above motor vehicle to the 1st and 2nd accused. 12. Kelvin Changenda Mudegu (PW1) was working at a nearby farm in Kasarani. At about 11:00 hours, he heard screams from afar. He testified as follows“ I stood to watch. The screams were from inside the bus. When the bus came closer to our farm next to the fiyover, the screams intensified. The bus stopped. I went closer to the road. More noises came from the vehicle. The vehicle stood at the highway. The doors of the bus were open. Then I saw the conductor push out the man who had been with him at the door. The man had been in the bus. I only saw when he was pushed out. When the man was pushed out, the body of the vehicle hit him and he fell down. The man was pushed from the bus when the bus was still in motion. When he fell down, the rear left tyres ran over his head and hand." 13. According to Anthony Muigai (PW2), there was an argument between the conductor and the deceased over the fare. He testified that the 2nd accused failed to heed the request by the deceased to stop. When cross-examined by Ms Muritu, he stated“ The conductor came and sat as they went on arguing. The driver was slowing down and moving on at the same time like he was unsure of what to do. The driver did not stop. He asked who between the 2 and the noises he could follows. Drivers ordinarily stop when told to. This confirms that he was able to listen to the pleas to stop" 14. The death of the deceased is not under contest. According to Corporal Naomi Rop (PW8) at about 12:20 hours, she visited the scene with other police officers. The bus was on the first lane heading towards the city center. They also saw the body behind the rear left wheel. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14433/eng@2025-10-14 2

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15. The death was equally confirmed by James Wachira Mwangi (PW5) a father of the deceased who identified the remains on 6th August 2019 for postmortem purposes. According to the post mortem form (exhibit 7) produced by Dr Evelyne Chege (PW9) the death was caused by “complications of multiple organs including arch of aorta laceration and head injury due to blunt force trauma”. 16. Upon the digest of that evidence; and, well guided by the precedents in Bhatt v Republic [1957] EA. 332 and R v Kipkering arap Koske & another 16 EACA 135 (1949), I find that the Republic has established a prima facie case calling for a rebuttal from both accused persons. 17. Accordingly, under the provisions of section 306 (2) of the Criminal Procedure Code, I hereby place the 1st and 2nd accused on their defence. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF OCTOBER, 2025. KANYI KIMONDO JUDGE Ruling read virtually on Microsoft Teams in the presence of: The accused. Ms. Kigira for the Republic instructed by the office of the Director of Public prosecutions. Ms. Wangechi for the 1st Accused instructed by Wangechi Gathua Law. Ms. Muritu for the 2nd Accused instructed by Mumbi Muritu Advocates. Mr. E. Ombuna, Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14433/eng@2025-10-14 3

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