Republic v Emmanuel Bryant Sakari & 2 others

that he did not inquire further into the incident as he was new in the hostel and subsequently returned to his room. He later saw a poster placed within the hostel requesting any person with information relating to the incident to report to the Police Station. 4. Upon cross-examination, PW1 stated that he was approximately 20 meters away from the scene when he saw the person being carried away. He testified that although he knew the 3rd accused, he did not see him at the scene. When cross-examined by the 2nd accused, PW1 stated that he observed the commotion from his balcony. In cross-examination by the 3rd accused, he reiterated that while he knew the 3rd accused as a fellow resident of the hostel, he did not see him during the commotion. 5. PW2, Samuel Eshitera Arunga, the father of the deceased, testified that on 20th November, 2016 at about midnight, his wife received a telephone call informing her that their son had been assaulted and was in critical condition. The caller sought permission to take the deceased to Thika Level Five Hospital, but they directed that he be taken instead to Kenyatta National Hospital. PW2 stated that he and his wife proceeded to the said hospital where they found their son lying in a room and receiving oxygen. They waited outside, and approximately forty (40) minutes later, they were informed that their son had succumbed to his injuries. PW2 stated that he viewed the body and recovered the deceased’s mobile phone and A modem. 6. PW2 further testified that he thereafter reported the matter at Juja Police Station and later visited the scene of the incident at a place known as Peninsula Guest House, where he met a caretaker identified as Chege. According to PW2, Chege informed him that there had been a commotion on the material night during which the deceased was assaulted by five (5) people, whose identities he did not know at the time but whom he later saw in court. PW2 also confirmed that he formally identified the body of the deceased for purposes of post-mortem examination. 7. PW3, No. 55408 Corporal Omar Gongo, testified that he is a Police Officer attached as a driver. He told court that while on duty on 20th November, 2016, he received a call reporting that a person had been assaulted in Juja. He immediately proceeded to the scene, where he found other police officers already present. Together with PC Barasa and PC Nzari, they assisted in transporting the injured person to hospital. PW3 stated that he did not know any of the accused persons and could not identify or recognize any of them. 8. When cross-examined by the 1st accused, PW3 stated that upon arrival at the scene, he did not recognize any of the persons present and merely assisted in carrying the injured person into the vehicle before rushing him to hospital. When cross-examined by the 2nd accused, he reiterated that he had been called solely to assist, did not witness the assault, and did not know how many people were present at the scene. On cross-examination by the 3rd accused, PW3 stated that he arrived alone, found the victim lying on the veranda while bleeding, and only heard from the crowd that the victim had allegedly been attacked by fellow students in what was described as mob justice. He, however, could not identify any of the alleged attackers. 9. Upon re-examination, PW3 stated that it took him approximately thirty (30) minutes to arrive at the scene after receiving the call. Upon arrival, he found a crowd that shouted on seeing the police vehicle. He parked close to where the victim lay and observed that the victim had lost a significant amount of blood. His immediate instinct was to rush the victim to hospital. He stated that other Police Officers present assisted in carrying the victim into the vehicle. 10. PW4, Elizabeth Waithera, a forensic analyst attached to the Government Chemist, testified that she received several exhibits for forensic examination from Police Constable Peter Sawe, attached to the Directorate of Criminal Investigations (DCI), Juja. The exhibits were accompanied by a duly https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19287/eng@2025-06-27 2

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completed exhibit memo form, requiring that she conducts a forensic examination to determine the presence of bloodstains on the items accompanying the form and to generate DNA profiles where possible. 11. 12. PW4 went on to testify that the exhibits submitted to her for analysis comprised the following items:i. Item “A” – a blood sample obtained from the deceased; ii. Item “B” – a blood swab collected from the scene of the incident; iii. Item “C” – a pink towel recovered from the scene; iv. Item “D” – a blue shirt alleged to have been recovered from Edwin Omwoyo; v. Item “E1” – a pair of blue jeans trousers allegedly recovered from the room of Emmanuel Bryant Sakari; vi. Item “E2” – a white T-shirt allegedly recovered from the room of Emmanuel Bryant Sakari; vii. Item “F” – a pair of grey trousers allegedly recovered from the room of Emmanuel Bryant Sakari; and viii. Item “G” – a pair of trousers allegedly recovered from the room of Teddy Kitheka. PW4 confirmed that she conducted a forensic examination on these items and upon completion of the forensic analysis, she established that the results yielded the following conclusions:a. The DNA profile generated from Item “C”, namely the pink towel recovered from the scene and belonging to an unknown person, matched the DNA profile of Item “A”, being the blood sample of the deceased, with a 100% match, thereby confirming that the bloodstain on the towel originated from the deceased; b. The DNA profile generated from Item “E1” revealed a mixed DNA profile, indicating the presence of blood from more than one individual. One of the profiles matched that of the deceased (Item “A”), while the second contributor could not be identified; c. No DNA profile could be generated from Items “F” and “B”, as the samples were either insufficient or unsuitable for DNA profiling. 13. During cross-examination, PW4 clarified that although Item “C” contained male DNA, the DNA profile generated therefrom matched that of the deceased. She further stated that Item “D”, the blue shirt allegedly recovered from the 3rd accused, did not contain bloodstains and therefore did not yield any DNA profile. She emphasized that DNA profiling can only be conducted where biological material is present and viable. 14. PW5, No. 56274 Sergeant Jairus Mbondo, attached to the DCI Juja, testified that he took over the investigation of the case from Inspector Wamalwa at a later stage. He stated that upon assuming conduct of the matter, he received and reviewed the post-mortem report relating to the deceased, which he produced in court as PMFI-1. He further received an Exhibit Memo Serial Number A268/16, indicating that exhibits had been forwarded to the Government Chemist, although at the time he took over, the forensic report had not yet been availed. 15. PW5 testified that he reviewed the investigation diary and the existing statements on record in order to familiarize himself with the facts and circumstances surrounding the case. From the material on file, it was established that the deceased had allegedly been subjected to mob justice following allegations by students of Jomo Kenyatta University of Agriculture and Technology (JKUAT) that he had been https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19287/eng@2025-06-27 3

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involved in theft. As a result of the assault, the deceased sustained severe injuries and subsequently succumbed to them. 16. PW5 further testified that during the course of investigations, several suspects were initially arrested, though the number was later reduced to two. Blood samples and clothing exhibits were submitted to the Government Chemist for analysis, following which charges were preferred against the accused persons. However, by way of a Nolle Prosequi dated 27th February, 2017, the charges against Dominic Nyamweya Nyakundi and Kelvin Nyamari Omuti were formally withdrawn. PW5 stated that he was unable to comment on the investigative methods employed prior to his takeover of the case, as he had not been directly involved in the earlier investigations. 17. Under cross-examination by the 1st accused, PW5 confirmed that he took over the matter after investigations had substantially been completed and that he did not personally participate in the investigation process. He further confirmed that, according to the investigation file, the deceased died as a result of mob justice. He stated that his knowledge of the matter was derived entirely from the statements and records contained in the police file, and that he did not personally witness any assault. 18. When cross-examined by the 2nd accused, PW5 stated that from his review of the witness statements, there was no direct eyewitness account identifying the assailants. He further confirmed that no photographs of the scene were taken and that no identification parade was conducted in the course of the investigations. 19. Upon cross-examination by the 3rd accused, PW5 testified that the suspects whose charges were withdrawn pursuant to the nolle prosequi were released after it was determined that they were not involved in the offence. He stated that no samples were submitted to the Government Chemist in respect of those individuals, possibly because their clothing did not bear visible bloodstains. He further stated that mob justice incidents typically involve numerous individuals, often ranging between twenty (20) to thirty (30) persons, and in the present case, there were no witnesses who directly identified the perpetrators. He further stated that the cause of death was blunt force trauma, which, in his view, could also be consistent with injuries sustained from a fall. On re-examination, PW5 clarified that he formally took over the conduct of the investigations on 18th June, 2020. 20. PW6, Dr. Joseph Ndung’u, a pathologist, testified and produced the post-mortem report prepared by Dr. Oburi at Kenyatta National Hospital, which was admitted into evidence as Prosecution Exhibit 2 (PEXB 2). The report indicated that the deceased sustained head injuries, multiple abrasions on both upper and lower limbs, the chest, back, abdomen, and knee, as well as a fracture of the sixth rib. The cause of death was certified as brain injury secondary to blunt force trauma. 21. Upon cross-examination, PW6 stated that such blunt force injuries could potentially be caused by a fall onto a hard object and that, in certain circumstances, it may be difficult to distinguish between injuries caused by a fall and those inflicted through assault. He further stated that he was not provided with details regarding the number of assailants involved or the specific circumstances under which the injuries were sustained, and that his conclusions were based strictly on the medical findings. 22. Upon the close of the prosecution’s case, the Court examined the evidence adduced by its witnesses and found that the prosecution had established a prima facie case sufficient to require the accused persons to be placed on their defence. Each accused person elected to give unsworn statement in defence and indicated that they would not call any witnesses. 23. The 1st Accused person, Emmanuel Bryant Sakari, testified in his defence that in the year 2016, he was a student at Jomo Kenyatta University of Agriculture and Technology (JKUAT) and resided at Peninsular Towers. He stated that on 21st November, 2016, at approximately 7.00 to 7.30 p.m., he was https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19287/eng@2025-06-27 4

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inside his house when he heard a commotion outside that lasted for a few minutes. Out of curiosity, he went out to ascertain what was happening. Upon reaching the scene, he found a person who was bleeding, lying on the ground. He testified that he recognized the said person as the deceased, with whom he had previously attended the same high school. 24. The 1st accused further testified that he heard the caretaker of the premises make a call to the police, who arrived shortly thereafter. According to him, upon arrival at the scene, the Police Officers asked members of the public to disperse so as to facilitate the removal of the injured person. He stated that the police requested members of the crowd to assist in carrying the injured person to the police vehicle, and that he, together with other persons present, complied with the request and assisted in carrying the deceased into the vehicle. He further testified that after speaking briefly with the caretaker, the Police Officers departed with the injured person. He stated that on the following day, while preparing to attend his classes, he saw four to five individuals arrive at the premises to collect evidence. He was asked to accompany them to the police station to record a statement, which he did voluntarily. It was in those circumstances, he testified, that he found himself implicated in the present proceedings. 25. The 2nd Accused person, Teddy Kitheka, testified that on 21st November, 2016, he was also a student at JKUAT. On the material day, he stated that he had gone to Juja to visit a friend who resided at Peninsular Towers. He testified that while there, he heard a commotion and stepped out to establish what was happening. He stated that he observed a human body lying on the ground, surrounded by a large crowd of people who were shouting. He testified that he did not participate in the commotion and instead returned to the house and went to sleep. 26. The 2nd accused further testified that the following morning, there was a knock on the door, and on opening it, he found police officers who requested him to accompany them to the police station to record a statement regarding the incident. He stated that he willingly complied believing he was merely assisting with investigations. However, upon arrival at the police station, he was accused of having participated in the incident, an allegation which he denied, stating that he had no knowledge whatsoever of the circumstances leading to the deceased’s injuries, and subsequent death. 27. The 3rd Accused person, Edwin Omwoyo, testified that he was at the material time, he was a student at JKUAT. He stated that on the material day, he had travelled to Gikomba Market earlier in the morning to purchase items in preparation for his graduation and spent the better part of the day there. He testified that he returned to his residence later in the day and in the evening, at approximately 7.00 to 8.00 p.m., he heard a commotion on the floor where he resided. 28. The 3rd accused stated that he went out to check on what was happening and saw a crowd of people at the ground floor, while others were descending from the first floor. He proceeded downstairs and saw a person lying on the ground. He testified that he did not involve himself in the commotion and hence returned to his room shortly thereafter. He further testified that on the following morning, Police Officers knocked on his door and requested him to accompany them to the police station to record a statement. He complied with the request but stated that he was subsequently detained in the police cells and later charged with the offence herein, which he maintained he did not commit. 29. Upon the close of the defence case, Counsel for the 1st Accused person elected to rely on and adopt the written submissions dated 16th October, 2023. Counsel submitted that none of the prosecution witnesses adduced evidence demonstrating that the 1st accused inflicted the injuries that led to the death of the deceased. Counsel also argued that the evidence of the Government Analyst, to the effect that bloodstains found on the clothing of the 1st accused matched that of the deceased, was sufficiently explained by the 1st accused’s uncontroverted testimony that he assisted in carrying the injured person into the police vehicle. It was submitted that the mere presence of the deceased’s blood https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19287/eng@2025-06-27 5

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on the 1st accused’s clothing, without more, could not reasonably be used to infer participation in the fatal assault. Counsel further contended that the prosecution failed to establish how the deceased sustained the injuries that led to his death and urged the Court not to speculate or make assumptions unsupported by evidence. Therefore, counsel prayed that the 1st accused be acquitted. 30. Counsel for the 2nd Accused person similarly relied on the submissions filed at the case-to-answer stage wherein he submitted that none of the prosecution witnesses placed the 2nd accused at the scene as an assailant or linked him in any way to the events that culminated in the deceased’s death. Counsel also submitted that the forensic evidence adduced by the Government Analyst did not implicate the 2nd accused, as no blood or DNA evidence connected him to the deceased. On that basis, counsel urged the Court to find that the prosecution had failed to discharge its burden of proof and to acquit the 2nd accused for the offence he is charged with. 31. Counsel for the 3rd Accused person relied on the written submissions dated 19th September, 2023. Counsel submitted that the prosecution witnesses did not specifically mention or identify any of the accused persons as having participated in the assault of the deceased. Counsel observed that the testimony of PW1 was largely consistent with the accounts given by the accused persons, all of whom stated that they merely heard a commotion and observed events from a distance. Counsel further submitted that several students residing in the apartment were rounded up under the guise of recording statements, yet only a few were ultimately charged, raising concerns as to the selectivity of the prosecution. Counsel emphasized that the forensic evidence exonerated the 3rd accused, as his clothing did not contain any blood belonging to the deceased. Counsel further relied on the medical evidence, which indicated that the cause of deceased’s death was blunt force trauma consistent with a fall, she submitted that mere residence in the same apartment block could not form the basis of criminal liability. Counsel accordingly urged the Court to acquit the 3rd accused. 32. On behalf of the Prosecution, learned counsel submitted that all six prosecution witnesses placed the accused persons at the scene of the incident. Counsel argued that the accused persons admitted that they were residents of Peninsular Towers, where the incident occurred, and that they were all students at JKUAT at the material time. Counsel also submitted that the accused persons admitted being present within the apartment complex when the incident occurred. The prosecution placed reliance on the evidence of the Government Analyst, particularly the finding that the blood of the deceased was found on the clothing of the 1st accused, which, in counsel’s view, demonstrated physical contact between the 1st accused and the deceased. Counsel urged the Court to consider the totality of the prosecution evidence and to find that the offence of murder had been proved beyond reasonable doubt, and to accordingly convict the accused persons. Analysis and Determination 33. Having carefully considered the entire evidence on record, the rival submissions by learned counsel for the accused persons and the prosecution, in line with the applicable law, this Court is now called upon to determine whether the offence of murder contrary to Section 203 as read with section 204 of the Penal Code has been proved against each of the accused persons beyond reasonable doubt. 34. Section 203 of the Penal Code defines he offence of “murder” as follows:“ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19287/eng@2025-06-27 6

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35. From this definition, the prosecution bears the legal burden of proving, beyond reasonable doubt, three critical and indispensable elements before a conviction for murder can properly lie. Firstly, it must be established that the deceased indeed died and that the death occurred as a result of a specific and identifiable cause. Secondly, the prosecution must demonstrate that the death was occasioned by an unlawful act or omission. Thirdly, and most crucially, it must be shown that the unlawful act or omission that caused the death was committed by the accused person or persons, and that in so acting, they were possessed of malice aforethought as contemplated under Section 206 of the Penal Code. It is only where all these elements are proved cumulatively, and to the required standard, that criminal liability for the offence of murder may attach. I now proceed to examine each of these elements sequentially in light of the evidence on record. (a) Proof of Death and Cause of Death 36. The death of Melvin Eshtera is not in dispute. PW2, the deceased’s father, testified that he was informed of his son’s assault, saw him alive but was critically injured at Kenyatta National Hospital. Later, he was notified of his death. He also identified the body for purposes of post-mortem examination. 37. The medical cause of death was conclusively established through the evidence of PW6, Dr. Joseph Ndung’u, who produced the post-mortem report prepared by Dr. Oburi. The report revealed that the deceased sustained head injuries, multiple abrasions on the upper and lower limbs, chest, back, abdomen and knee, and a fracture of the sixth rib, with the cause of death certified as brain injury secondary to blunt force trauma. 38. This evidence was not controverted and in line with the holding in the case of Republic v Cheya & Another [1973] EA 500, proof of death may be established by both medical and lay evidence. The prosecution therefore satisfactorily proved the fact and medical cause of death beyond reasonable doubt. (b) Whether the Death was Caused by an Unlawful Act 39. The second ingredient requires the Court to determine whether the death resulted from an unlawful act or omission. In law, any killing is presumed unlawful unless it is shown to have been justified or excusable, such as in cases of self-defence or accident. (See the case of Guzambizi Wesonga –vsRepublic [1948] 15 EACA 65). 40. The evidence on record, particularly from PW5, established that the deceased was subjected to what was described as mob justice following allegations of theft. No evidence was adduced to suggest that the deceased posed an imminent threat or that his killing was justified under any provision of the law. 41. Even though PW6 stated that the injuries could be consistent with a fall, this possibility does not negate unlawfulness. The deceased was found lying injured in a crowd following an alleged mob assault and there is no lawful justification under Kenyan law for members of the public to inflict punishment upon a suspected offender. 42. Accordingly, this Court finds that the deceased’s death resulted from an unlawful act, thereby satisfying the second ingredient of the offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19287/eng@2025-06-27 7

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(c) Whether the Accused Persons were the perpetrators and wWhether Malice Aforethought was established 43. The third and most critical ingredient is whether it was the accused persons who committed the unlawful act that resulted in the death of the deceased, and whether, in doing so, they were actuated by malice aforethought within the meaning of Section 206 of the Penal Code. This element demands strict proof of two interrelated components. First, the actus reus, being the overt and identifiable conduct that directly links each accused person to the fatal act or omission; and second, the mens rea, which describes the existence of malice aforethought, and may be inferred from the nature of the act, the manner in which it was carried out, the weapon used if any, and the conduct of the accused before, during, and after the incident. 44. It is also important to note that suspicion, however strong, cannot suffice, and that criminal responsibility must be founded on cogent and credible evidence connecting an accused person to the offence. Therefore, with this guiding framework, I proceed to examine the case as presented against each accused person separately. 45. (i) The 1st Accused: Emmanuel Bryant Sakari (a) Actus Reus The prosecution’s case against the 1st accused rests primarily on two pillars: i. his presence at the scene, and ii. the forensic evidence showing that blood matching that of the deceased was found on his clothing (Item E1). 46. The 1st accused candidly admitted that he was present at Peninsular Towers on the material night and that he assisted police officers in carrying the injured deceased to the police vehicle. Crucially, no prosecution witness testified to having seen the 1st accused assault the deceased. PW1, who was at the hostel, did not see any of the accused persons participate in the assault. PW3, the only police officer who attended the scene and testified before this court, expressly stated that he could not identify any attacker. PW5 admitted that there were no eyewitnesses, no photographs, and no identification parade was conducted. 47. With regard to the DNA evidence, PW4 confirmed that the blood of the deceased was found on Item E1, which is a pair of jeans linked to the 1st accused. However, DNA evidence only establishes contact, not culpability. In the case of Sawe –vs- Republic [2003] KLR 364, the Court of Appeal cautioned that suspicion, however strong, cannot take the place of proof. 48. The explanation given by the 1st accused, that the blood resulted from his act of assisting to carry the injured deceased to the police vehicle and this was not displaced by the prosecution. The Court finds that in the absence of proof of assault, the forensic evidence against the 1st accused does not establish the actus reus of murder against the 1st accused. (b) Mens Rea 49. Even assuming the 1st accused person’s presence at the scene, there is no evidence that can demonstrate that the 1st accused had formed any of the intentions set out under section 206 of the Penal Code, such as an intention to cause death or grievous harm. There was no evidence of prior hostility between them, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19287/eng@2025-06-27 8

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weapon use, or conduct suggestive of malice aforethought. Accordingly, malice aforethought was not proved against the 1st accused. (ii) The 2nd Accused: Teddy Kitheka a. Actus Reus 50. The 2nd accused admitted being present within the Peninsular Towers where he used to reside but maintained that he merely saw a crowd of people on the ground floor and returned to sleep. His evidence was not contradicted by any prosecution witness and there was no forensic evidence, direct or circumstantial, linking him to the deceased injury or death. PW4 confirmed that no blood or DNA of the deceased was found on any clothing associated with the 2nd accused. 51. As with the 1st accused, no eyewitness placed the 2nd accused at the scene as a participant in the assault. Therefore, presence alone, without participation, does not amount to criminal liability as was stated in the case of Kiarie –vs- Republic [1984] KLR 739. b.Whether the 2nd accused person had Mens Rea 52. In the absence of proof of participation, the issue of malice aforethought does not arise. There is no evidence that the 2nd accused acted with any intention as contemplated under Section 206 of the Penal Code. (iii) The 3rd Accused: Edwin Omwoyo (a) Actus Reus 53. The 3rd accused gave a detailed account of his movements on the material day, including travelling to Gikomba and later observing a commotion from a distance. This account was not disproved. 54. The forensic evidence exculpated the 3rd accused as PW4 categorically testified that Item D, allegedly recovered from him, had no bloodstains and yielded no DNA profile. 55. PW5 conceded that the investigations revealed no eyewitnesses and that mob justice typically involves many people, yet none were identified. There is therefore no evidence placing the 3rd accused among the assailants. (b) Mens Rea 56. As with the other accused persons, there was no evidence of intention, knowledge, or recklessness attributable to the 3rd accused. Being a mere residence in the same apartment block where the incident occurred cannot ground criminal responsibility. Conclusion 57. While the Court is deeply troubled by the unlawful killing of the deceased through the alleged mob justice, criminal liability must be founded on proof beyond reasonable doubt, not conjecture or collective blame. 58. The prosecution successfully proved the fact of death and that the death was caused by an unlawful act. However, it failed to prove beyond reasonable doubt that any of the three accused persons committed the actus reus of murder or that they did so with malice aforethought. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19287/eng@2025-06-27 9

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59. In the result, and guided by the 1769 doctrine ascribed to William Blackstone that ... “it is better that ten (10) guilty persons escape than that one (1) innocent suffer. Thus, this Court finds that the prosecution has not discharged its burden under Section 203 of the Penal Code. 60. Consequently, the accused persons, namely Emmanuel Bryant Sakeri, Teddy Kitheka, and Edwin Omwoyo, are hereby found not guilty of the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. 61. Pursuant to Section 215 of the Criminal Procedure Code, each of the accused persons is hereby acquitted and shall be set at liberty forthwith, unless otherwise lawfully held. It is so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 27TH DAY OF JUNE , 2025. D. O. CHEPKWONY JUDGE In the presence of: M/S Ndeda counsel for the State Mr. Alomo holding brief for Mr. Amunga counsel for 1st accused Mr. Tumu counsel for 2nd accused Mr. Njenga holding brief for Mr. Juma counsel for 3rd accused person Court Assistant – Kinyua/Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19287/eng@2025-06-27 10

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