Republic v Simon Gitau Karanja & 1 other

4. They bought a Safaricom line using 100/=, PW1 identified her ID in Court number 34192024 produced as P Exh1.The deceased was registered and they went home. The deceased was their neighbor at City Carton. 5. That on 11/4/2019 at about 3:00am they were sleeping when the deceased’s brother knocked their door, they found the deceased being carried by her father and Baba Ben and her parents. The deceased was bleeding and she was taken to Mama Lucy hospital while other neighbors remained behind. The deceased’s father called after 30 minutes and told them she had died. 6. PW1 stated that the deceased was their neighbor for 10 years, she had a kambambe phone; her father bought her China phone which was black and shiny, her boyfriend known as Mwanake gave her another phone Nokia Lumia black in color. 7. That on 4/6/2019 PW1 was called by DCI Wanjohi to go to Buruburu police station and was to identify a phone. She found many phones on the table and she was able to identify the deceased’s Nokia Lumia phone .The phone had a cracked screen and she also saw her with it the day before. PW1 identified the phone in court as PMFI- 2. She recorded her statement. 8. PW2, Dr Charles K Muturi, Pathologist based at Mama Lucy Kibaki hospital referred court to the postmortem report done on 16/4/2019 at the hospital. The deceased was 20 years old of good nutritional state and medium physique. 9. She had a recent injury in form of penetrating stab wound on the left side of the neck which was 5 cm long 1.5 cm width. It severed the neck vessels and fractured the cervical vertebrate, transected through the spinal cord. 10. The skin had punctured marks on the left elbow signifying drug administration. The cause of death was severed blood loss and cervical spine injury due to sharp force trauma consistent with stab wound. 11. He also took blood specimen as requested by the police for matching the weapon of assault. The postmortem report was produced as Exhibit 1. 12. PW3 Fredrick Jesse Ochieng Ouma, also a resident of Carton Buruburu where he did panel beating and spray painting for a living. 13. He stated that he was at his house on 11/4/2019 sleeping when at 3:00am he was woken up by screams from his neighbors’ children. The children slept in the first room next to his gate. The neighbor was called Mama Valerie. He put on the lights and got an iron rod from under the bed, the gate was opened, he headed towards the gate. Mama Valerie was also from the children’s room and she told him to go to the room and help Valerie and remove the knife that was stuck on her neck and take her to hospital. 14. He found the deceased on the bed and she had a knife on her neck, she was sleeping on one side. The 3 other children were in the room, the knife had a black handle which he removed from her neck and placed it down. He identified it as MFI- 4. He headed to the gate where he found a black cap and a black handbag, the cap had a mark of 2 guns making an X at the front, he identified it as MFI -5 and the black bag as MF1- 6. 15. Neighbors came out and entered the plot, they carried her to the road and got a taxi. Her mother and neighbors went with her to hospital while he remained behind. He was called after 1 hour and informed of her death. 16. PW4, Samuel Ameli Adiyo, [father of deceased] also a resident of City Carton Buruburu where he works as a welder testified that on 10/4/2019 at 10:30pm he was at his house with his wife and children. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19290/eng@2025-12-18 2

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That he heard sounds calling “mum mum mum..” 3 times .It was at 3:30 am. He lived with his 5 children who slept at a room next to the gate, his house had 4 rooms. He woke his wife up to check on the children, she opened the door and they reappeared while screaming telling Baba Ben to go see saying that a knife was stuck on the neck of Atieno. 17. He ran and found Baba Ben was already outside, he headed to the room, he found the gate opened and the door to the room was also opened. The deceased was on the bed and lay on her side with a knife stuck on her neck. 18. Baba Ben removed the knife from the deceased neck, PW4 took it and hid it in fear that someone could go away with it. The knife was identified in court. He kept the knife fearing someone would go with it. 19. They started seeing how they could take her to Mama Lucy Kibaki hospital, neighbors also gathered they found a vehicle after 30 minutes. He searched Valerie’s room, he said that she had Itel phone he had bought for her at Ksh 2100/=. He produced the receipt as P Exh- 7. 20. He did not get the deceased’s phones; he went outside the gate and saw a black bag and cap with an X sign of guns-MFI-5 It was next to a water tap. He saw the bag and was convinced the phones had been stolen. The deceased used the bag to carry her things. 21. He headed to hospital but before he reached the gate he heard his wife screaming. He went to hospital and that found she had already died. He made the report at Buruburu police station, he took the police to the scene; they went in 2 land cruisers, he also handed over the exhibits to the police who came to the scene. He identified the body on 14/4/2019 for Post mortem. 22. On 5/5/2019, he was called by the police, he travelled from home and on the next day the he went to the police station where he found 2 people and he was asked if he knew them. He said he did not know them. He was also asked about the deceased’s bag and was asked to identify Valerie’s phone. He identified the Nokia phone with a cracked screen from 5 or 6 phones shown to him. He also identified the two men in court; he had seen at the Police Station. 23. PW5 Florence Aoko, [mother of deceased] a resident of Carton City where she works as a fish vendor testified that on 10/4/2019 she was with her children listed as the deceased, Vivian Whitney and Leah together with PW4 who is her husband. That the children left to sleep in the other room at 10:30 pm, their room is separate from theirs. Vivian and deceased slept on one bed, Leah and Whitney slept on the other, she heard screams at 3:00 am coming from Valery calling “..mum mum mum..” 24. She opened her door and went to see, Vivian was at the door and she told her to rush in and see the deceased, the gate and the door to the room was open, she removed the curtain to the room and saw a knife stuck in her neck, it was a black knife. She rushed out and called for help, a young man Ochieng was the first to arrive, they entered where Valery was and he removed the knife from the neck, the deceased never spoke. 25. She went with the neighbors to Mama Lucy hospital, she was put on oxygen and the doctor said she was 50:50, she passed away after a short while. The knife was identified in court, the black cap, the black bag found at the gate was also identified. They took them to Buruburu police station. 26. The deceased had 2 phones, Nokia with cracked screen and Itel which was black and shiny, she did not have an ID and her line was registered in the name of Laura Akinyi who was her friend. They did not get her phones that night. 27. She identified her body on 14/4/2019 at Mama Lucy hospital. she was also called to the station on 4/5/2019 and was told about some phones that had been recovered, she saw the deceased Nokia Lumia phone black in colour with a cracked screen, the deceased used to lend it to her to use it. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19290/eng@2025-12-18 3

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28. PW6 Vivian Atieno testified that she was in Form 2 and schooled at Golden Gate at the time of the incident. On 10/4.2019 she was in the house with Florence Aoko and her cousins Valery Atieno Whitney Anyango ,Leah ,Adina Trizah .They were in the main house and they went to sleep at about 10:30pm .The room is next to the gate , she slept with Vallary in one bed while Whitney and Leah slept on the next. 29. That she heard Vallary scream at about 3:00am, on waking up everything was all over the floor, the door was open the main gate was also open while Vallary was on the bed and she had a knife on her neck. The lights were on so she could see well. They also slept with the lights on, the other cousins were on the next bed. 30. That she ran and woke up her Aunt Florence and heard Vallary scream she asked her what the problem was, she told her to go call her mother , her aunt Florence rushed to their room had found the deceased on the bed with a knife stuck in her neck. Her aunt called their neighbor, Fredrick who came and removed the knife. Vallary’s handbag was also found outside the gate after she was taken to hospital he knew the handbag and could identify it in court. 31. She also identified the deceased phone at the police station, it had a cracked screen, the phone and the knife were also identified in court. She did not see the person who stabbed the deceased. The Hearing was taken over by Hon L Mutende LJ under Section 200CPC. 32. PW7, Margaret Wahu Maina from the Government Chemist in Nairobi attended court and produced the government chemist report signed on 1/7/2020.She testified that she received several items from No. 75845 CPL Joseph Wanjohi of DCI Kamukunji. A knife with a black handle marked A1, green piece of cloth placed in a khaki envelop A2, blood samples in a bottle marked A3 belonging to Vallarie Atieno Apiyo. A high vaginal swab in a khaki envelope marked A4. 33. They also received several items on 7/5/2019, a black cap marked A5, blood sample in a bottle neck Simon Gitau, blood sample in a bottle neck A7 Dominic Okoth. 34. On examination, she found that the knife was heavily stained with blood of human origin, the vaginal swab also stained with blood of human origin but did not have semen, the cap did not have blood stains. The green cloth and the cap did not generate DNA. 35. The DNA profiles were generated from the knife and vaginal swab and matched the deceased’s samples. 36. PW8 No 235250 IP Michael Njenga from the Scene of Crime office of Buruburu Directorate of Criminal Investigations testified on 11/10/2021. He has been in the profession since 2015 and holds a Bachelor in Biomedical scientific technology. He was gazetted on 31/7/2015 and his duties entails processing a crime scene which he explained to court. 37. He stated that in this case, he accompanied CPL Wanjohi to Mama Lucy Kibaki hospital mortuary where they saw the body of Valarie Otieno. That she was allegedly pronounced dead on 11/4/2019 upon arrival after being stabbed at their sitting room at their home. He took 11 photographs but the quality was poor. He referred to 4 photographs, the general view of the body the closer view and the general view of the house where the deceased was allegedly stabbed and Photo 4 a closer view of the blood -stained house. 38. He produced the photographs as P Exh 10 a 1-4 and the certificate of the electronic evidence as exhibit 10 b. The Hearing was taken over by this Court under Section 200CPC; Accused persons opted to proceed from where the matter stopped. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19290/eng@2025-12-18 4

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39. PW9 Ambrose Munyoki from Safaricom PLC and a data analyst within law enforcement department testified. He stated that he worked with Safaricom for 8 years. He received a letter dated 14/4/2019 identified as MFI- 11 from DCI Buruburu police station requesting for data of the following phone numbers :07XXXXXX86 07XXXXXX35 40. The letter required the serial numbers of the phones used to call the numbers for the period between 2/3/2019 and 14/4/2019, the names and ID numbers of the owners were also required. 41. He found that phone number 0795188835 belonged to Laura Akinyi Odhiambo of ID No 34192024. investigations revealed some extracted data from IMEI phone which were found on another phone number seen on the same hand set –this was number 0710765245 of ID 25530253 belonging to Dominic Owiti used on 12/4/2019 He produced the report on IMEI identification of handset Laura Akinyi Odhiambo as PEXh 12 (a), the data record PEXh 12 (b) and certificate under Section 106 (A) & (B) of the Evidence Act signed on 9/11/2022.He did not know the accused persons. 42. PW10, No 75854 PC Joseph Wanjohi testified that he was posted at DCI Buruburu police station where he was tasked with general investigations. 43. He testified that he was on duty on 11/4/2019 and was assigned a case where one Valerie Atieno a resident of City Carton within Buruburu police station area.The report was made by the deceased father who narrated what happened .He visited the scene on 12/4/2019. 44. He got into the room at plot. The plot had 7 houses on one side and 7 on the other side and 1 main gate.This particular room was on the right side as one gets into the gate and was the 1st house and a single room. 45. The room was shared by 4 children who were under the care of Samuel Amenyi their father, the scene was disturbed items were scattered all over, the beddings were not in order and physically it looked like looking for something. The parents narrated that they lived in the next room which was also the sitting room and bedroom. It was in the far end corner of the gate, the next one was near the gate on the left side where the 4 children lived. The parents heard screams from the children bedroom at 3:00am, the mother was the first to move quickly to come to the children room to find out what was happening. 46. That she realized Valerie Atieno had been stabbed, she called the children father and responders came to the scene and took Valerie to the hospital and she was pronounced dead on arrival. 47. He learnt that the deceased had 2 phones Nokia Lumia 520, Kytell Kiio MFI2 & MF7.That 0795188835 was the number used with Nokia Lumia phone. He was handed other exhibits recovered outside the plot where the deceased lived; a small black handbag, black cap crossed with guns design. The mother identified the handbag as belonging to the deceased. A cream cloth with dried blood stains, blood-stained knife found inside the room where the deceased was stabbed. 48. He undertook further investigations from subscriber of Safaricom Ltd, he wrote to Safaricom Ltd as per letter marked MFI 11. He got response which was that on 12/4/2019 the gadget was inserted with the line Number 0710765245 registered in the name of Dominic Owiti and ID 25530253. The earlier number was registered in the name of Laura Akinyi ID 34192024. 49. That the phones had not been recovered from the scene. The investigations showed that Dominic Owiti inserted a line in the Nokia Lumia phone initially used by the deceased. The phone had a broken screen. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19290/eng@2025-12-18 5

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50. That the Dominic Owiti was arrested on 3/5/2019 in his house at Kuria Dudu Ruaraka area, they also found a bag of phones where they recovered the Nokia Lumia among various phones. They prepared an inventory which was signed by his colleague the accused and he also signed it. The accused told them that Simon Mwaura sold to him the Nokia Lumia phone at Ksh 800/=, they went to Simon Mwaura who worked as a phone technician. He admitted that he sold the phone to the 2nd accused. 51. They tried to find out how he got the phone, he told them he bought it for Ksh 200/= and that he did not know the name of the person but he could identify the person physically. The two were escorted to Buruburu police station, they did not trace the person who sold the phone to Simon Mwaura. The accused was detained at the police station through a court order. 52. The witness produced the Nokia Lumia phone, exhibit 2, black handle knife as exhibit 4 and 14 black cap exhibit 5, black bag exhibit 6 receipt for Kytel phone exhibit 7, exhibit memos dated 234/2019 and 7/5/2019 as exhibit 8 (a) and (b), a cream cloth as exhibit 13 and the inventory as exhibit 15. 53. He identified the accused in court, he also witnessed the postmortem and the cause of death was stab wound excessive bleeding. The girls sharing the room were between 6 and 10 years old, he could not tell exact date of birth but they were below 15 years old. Ruling 54. On 2/7/2025 the Court delivered Ruling and stated that the prosecution has proved prima facie case against the accused persons due to the doctrine of recent possession to warrant them to be put on their defenses and the matter shall proceed for defense. Defense Case 55. 1st Accused called defense witnesses; the 1st one; DW1 John Macharia Kimani; a neighbour who stated he knew this matter from start to finish; he lives in Korogocho Kariobangi and knew 1St accused from when he was young and now as Mobile Repairer and witnessed him carry out his trade and knew of good character and are shocked by this case. 56. In cross examination by ODPP, he confirmed he did not work with 1st Accused as mobile repairer and did not know which phones were sold or brought for repair. He came to Court to state that 1St Accused did not commit the offence. 57. The 1st Accused; 2nd witness; Lucy Wangui Karanja; sister to 1st Accused and have been together for 29 years; he is Phone repairer and have never heard of any misconduct against him. 58. The 1st Accused person sworn statement stated that he lived in Korogocho with family parents and sisters. In 2004 he was involved in an accident and he was paralyzed and amputated on the left leg. From 2007 he begun repairing phone and later opened a ‘kibanda’. He would go to dumpsite-Dandora. He admitted he received phones from a person from dumpsite for repair and he received Nokia Lumia 520-black on 12/4/2019, he bought the phone at Ksh 250 and he did not ask where he got the phone. He had dirty clothes and gumboots. He took the phone tested it with battery and the inner glass is broken. He admitted Dominic 2nd Accused was/is his friend known each other for 7 years; he came asked him to lend him a phone and bought the Lumia for Ksh 800/-. 59. Later, Police officers came to his place of work as he closed his shop and took him to Buruburu Police Station and he explained what happened and he recorded his statement. 60. In cross examination by ODPP; he did not produce medical documents to prove his claim but they were at home and in the slums he did not see anyone with license for [the phone repair] business and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19290/eng@2025-12-18 6

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he bought dead phones and he did not have receipts for those he bought save for those he repaired and sold to customers. 61. On 14/5/2019, a young man came to his shop and said he got the phone from the dumpsite and the phone was very dirty, he bought it for Ksh 200/- and he did not give a receipt-Nokia Lumia 520 and sold it for Ksh 800/- 62. The 2nd Accused Dominic Okoth John in a sworn statement, on 12/4/2019 he went to Korogocho; to buy carpenter tools next to 1st Accused person’s place. He greeted him , saw a mobile phone Nokia Lumia 250 and he was repairing it. The 1st Accused said he was repairing the broken mirror. He asked him if he was selling and they negotiated and he bought the phone for Ksh800/- paid Ksh 500/- and remained to pay Ksh 300/- He left with the phone and put his SIM card and used it for 1 week. Later, he was found at his place of work and he was taken to Kariobangi Police Post and was asked for his phone. The Police Officers took him to his house at Kariadudu and he gave them the phone and told them he bought it from 1st Accused person. He took the police to 1st Accused place; he admitted selling him the phone and he said the one who sold it to him was on a Telkom line. They arrested taken to Mama Lucy Hospital and later Police Station. 63. In cross examination by ODPP he reiterated that he was carpenter but also phone repairer if and when he got work and he did it at 1st Accused’s workshop. He bought 2 other phones before from 1st Accused person and he did not ask him where he got the phones from. Submissions Of The 1St Accused Person Simon Gitau Karanja 1. The Prosecution failed and did not establish beyond reasonable doubt the charge of Murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap 63, Laws of Kenya) contained in the charge sheet dated 15th May 2019 against the 1st Accused Person. We therefore urge the Court to acquit the 1st Accused under Section 215 of the Criminal Procedure Code, CAP 75 Laws of Kenya. Section 215 provides that: “ The Court having heard both the complainant and the accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order against him according to law, or shall acquit him." We further submit as follows:A. Introduction: 1. On the 22nd of May 2019, the 1ª Accused was jointly charged alongside the 2nd Accused person with the offence Murder contrary to Section 203 as read with Section 204 of the Penal code (Cap 63) Laws of Kenya in that. Simon Gitau Karanja and Dominic Okoth John on the 11th day of April 2019 at City Carton Area, Embakasi East Sub-County within Nairobi County jointly murdered Vallary Atieno Amenyi 2. The Prosecution presented its case against the accused persons through the evidence of ten (10) witnesses, who gave both oral testimony and expert evidence in support of the charge. 3. On 17 September 2025, the Court delivered its ruling pursuant to Section 210 of the Criminal Procedure Code, CAP 75 Laws of Kenya, and accordingly https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19290/eng@2025-12-18 7

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placed the accused persons on their defence on the basis of the doctrine of recent possession to respond to the evidence presented by the Prosecution. 4. The first accused person adduced his defence by way of oral testimony from two witnesses in addition to his own testimony. B. Issue For Determination 5. The Court having heard the Prosecution's case, evidence and the testimony of the Accused person in his Defence and witnesses, we submit that at this juncture the issue for determination is Whether the evidence presented before this Court establishes beyond reasonable doubt that the Accused person committed the offences as charged, thereby warranting a conviction, or whether the defence has successfully raised sufficient doubt to acquit the 1st Accused. menyi as would be required under the provisions of the Evidence Act. Cap 64. The Prosecution's only key piece of evidence against the 1st Accused Person was that he was found in possession of a black Nokia Lumia 520 mobile phone (Exhibit 1), said to have allegedly belonged to the deceased. However, the Prosecution did not adduce any credible evidence to prove ownership of the said phone by the deceased. Consequently, that assertion remained an unproven fact, which this Court cannot rely upon in determining the guilt of the 1st Accused Person. 65 They submited that the evidence of PW9 the Safaricom Liaison Officer did not support the Prosecution's contention that Exhibit 1, the black Nokia Lumia 520, belonged to the deceased. The call data records produced in evidence revealed that the mobile phone was operating with a SIM card registered in the name of one Laura Akinyi Odhiambo and not in the name of the deceased This evidence did not support the Prosecution's case on the issue that the 1st Accused had been found in possession of a mobile phone belonging to the deceased person. 66. The evidence of PW7 Government Chemist Analyst Margaret Wahu Maina did not support the Prosecution's case. She produced a forensic report dated 1st July 2020 (Exhibit 8(b) in which she concluded that the blood samples obtained from the 1st Accused did not match any of the items recovered from the crime scene. Consequently, there was no forensic evidence placing the 1st Accused at the City Carton area in Embakasi East Sub-County. within Nairobi, where the deceased, Vallery Atieno Amenyi, was murdered. 67. The 1st Accused Person's evidence that he is a phone repair technician remained uncontroverted by the Prosecution. The Prosecution did not adduce any evidence to challenge or disprove this assertion. Consequently, this unchallenged evidence raises reasonable doubt as to the Prosecution's case against the 1st Accused Person. 68. PW10 the Investigating Officer Corporal Wanjohi testified that he conducted the investigations and subsequently recommended the charge of murder against the 1st accused person the 1st accused perosn without any credible evidential basis linking him to th eoffence. Submissions By The 2Nd Accused Person Dominic Okoth John Background. 69. 1. The two Accused persons stand charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, alleged to have been committed against one Vallary https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19290/eng@2025-12-18 8

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Atieno Amenyi on the night of 11th April 2019. The deceased, a young woman of about nineteen (19) years, was fatally stabbed on the left side of the neck at approximately 3:30 am. The assailant fled the scene, taking with him the deceased's black handbag, which was later recovered discarded outside, the black Nokia Lumia phone (hereinafter "the subject phone"), and the gate's padlock and keys. 2. The following day, 12th April 2019, the 1st a Accused, a phone repair technician, was approached at his shop by a man offering to sell him a damaged Nokia Lumia phone. He purchased it for Kshs. 200, cleaned and repaired it for resale. Later that morning, the 2nd Accused, a carpenter by trade and a casual acquaintance of the 1st Accused, stopped by the shop while on his way to work to look for a carpentry tool. Finding the 1 Accused repairing the subject phone, he expressed interest in purchasing it. After brief negotiations, they agreed on a price of Kshs. 800, of which the 2nd Accused paid Kshs. 500 in cash, undertaking to pay the balance later. 3. Upon taking the phone home, the 2nd Accused inserted his SIM card, only to discover that the SIM slot was defective and could not connect to the network. He removed his SIM card, left the phone at home, and went on with his normal routines. Approximately three weeks later, on 3rd May 2019, DCI officers traced the subject phone through Safaricom data showing his SIM card had once been inserted in it. The 2nd Accused was arrested & cooperated fully-he voluntarily surrendered the phone and led the officers to the 1st Accused who had sold it to him. From that day forward, both men have endured the weight of this prosecution, with the 2nd Accused having now spent over six and a half years in custody awaiting his day of vindication. Introduction 4. The charge before the Court is that of murder. The ingredients for such an offence are settled: proof beyond reasonable doubt of (a) The fact and cause of death (b) That the death was caused by the unlawful act or omission of the accused, and (c) That the act was committed with malice aforethought. These elements are codified in Sections 203 and 206 of the Penal Code and have been reaffirmed in Anthony Ndegwa Ngari vs Republic [2014] eKLR and a long line of authorities 5. In the present case, there is no direct evidence linking the 2nd Accused to the commission of the offence. None of the ten (10) prosecution witnesses saw, heard, or identified him at, near the scene or ever. No forensic or DNA evidence ties him to the murder. The entirety of the prosecution's case rests upon the alleged recent possession of the deceased's phone. It is on this narrow but overwhelmingly significant issue that the prosecution has invited this Honourable Court to into infer guilt. 6. With utmost respect, we submit that the evidence on record not only fails to meet the standard of proof required to invoke that doctrine but, in fact, provides a reasonable and credible explanation for the 2nd Accused's possession. The consistent account of an innocent purchase sufficiently rebuts the presumption and severs the chain of culpability. It is upon this framework of fact and law that we now proceed to address the issues for determination. Issue For Determination. i. Whether the offence of murder is proven to the required standard. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19290/eng@2025-12-18 9

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ii. Whether in the circumstances, the 2nd Accused persons recent possession of the subject phone suffices to found a safe conviction. The Offence Of Murder Is Not Proved To The Standard Required. 7. The Court to interrogate the prosecution's case in its entirety and juxtapose it against the wellestablished ingredients of the offence of murder. We submit that when properly examined, the prosecution evidence falls far short of proving the charge as against the 2nd Accused beyond reasonable doubt 8. The prosecution called ten (10) witnesses in its attempt to link the Accused to the tragic death of the deceased, Valerie Atieno Apiyo. Their evidence, highest was purely circumstantial, anchored only on the deceased's missing phones. No single witness placed the 2nd Accused at or near the scene nor was any forensic or direct evidence adduced to connect him to the act of Killing 9. PW1, the deceased's long-tine neighbor, confirmed that the deceased had earlier registered a Safaricom line using her (TWI's) ID. On the material right, she merely heard cries and saw neighbors rush the deceased to hospital. She knew nothing about the assailant and only later learnt that some of the deceased's phones had been recovered from others. 10. PW2, the pathologist, established the cause of death, a deep stab wound to the left side of the neck leading to massive hemorrhage. His testimony established the fact and cause of death, but not the hand that delivered the fatal blow. 11. PW3, PW4, PW5, and PW6 (All close neighbors or family members) testified to finding the deceased with a knife lodged in her neck. They consistently stated that the doors and gate were open but unbroken, the room disordered, and that none of them saw of heard any intruder. Each of them candidly confirmed that they did not know the accused persons and could not identify the assailant. 12. PW4, the Government chemist, analyzed all exhibits, including the knife, a cap, a cloth, and the vaginal swab. Her findings were clear: the only DNA profile recovered was that of the deceased herself. There was no match to either of the accused persons and no foreign DNA. Thus, the forensic evidence completely exculpates the accused. 13. PW5, the Scene of Crime Officer, merely documented the disordered room and photographed the scene. His role was technical, not investigative. He did not link any suspect to the scene. 14. PW9, a data analyst from Safaricom, testified that the deceased's phone handset was later used with a line registered to the 2nd Accused. That use occurred a day after the incident. His role was limited to data tracing, he could not tell how the phone changed hands 15. PW10, the investigating officer, confirmed that the 2nd Accused was arrested after the phone was traced to him. He further testified that upon arrest, the 2nd Accused explained that he had purchased the phone from one Simon Mwaura, the 1st Accused. for Kshs 800/- Indeed, this explanation was consistent with what the 1st Accused admitted even during his sworn defence. PW10 also conceded that no witness saw the assailant, there was o sign of forced entry and no forensic evidence linked either. To the crime. The decision to charge, he admitted, was made at the direction of DPP. Analysis & Determination 70. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19290/eng@2025-12-18 10

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1. I have carefully considered the Court record; evidence on record of witnesses heard by previous Trial Courts and then evidence presented before this Court; the Defense by Accused persons and submissions filed and cases relied upon by parties/Counsel on record. At the time of writing the judgment, the ODPP had not filed Written submissions on record. 2. The question for determination is whether from the evidence on record that if it was the 2 Accused persons who committed homicide of the deceased. 3. Section 203 of the Penal Code under which the accused is charged provides that:Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 71. In Republic vs. Mohammed Dadi Kokane & & 7 Others [2014] eKLR the elements of the offence of murder were listed by Hon. M. Odero L J. as follows:a. The fact of the death of the deceased. b. The cause of such death. c. Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly d. Proof that said unlawful act or omission was committed with malice aforethought. 4. Article 50 (2) (a) of the CoK 2010 provides that that an accused person is presumed to be innocent until the contrary is proved. Application of Section 200 CPC 72. 5. This trial started in 2020 and was conducted by various Trial Courts up to recently when this Court took over proceedings. Section 200 CPC prescribes recall of witnesses where a Judge or Magistrate ceases to exercise jurisdiction [due to transfer promotion or unforeseen circumstances] before the case is finalized. 6. The Accused person is read out the options of Section 200 -201 CPC and may opt to have trial commence afresh, recall witness (s) subject to availability or proceed from where the matter stopped. In this case both Accused persons on 17/3/2025 were read to Section 200 CPC options and they agreed to proceed from where the matter stopped. In Joseph Kamau Gichuki vs R Criminal appeal 523 of 2010 cited in Nyabutu & Another, the Court observed; “ By dint of Section 200(1) (b) of the CPC a succeeding Judge may act on the evidence recorded wholly by his predecessor. However, Section 200 aforesaid is a provision of the law which is to be used very sparingly and only in cases where the exigencies of the circumstances, not only are likely, but will defeat the ends of justice if a succeeding judge does not, or is not allowed to adopt and continue a criminal trial started by a predecessor owing to the latter becoming unavailable to complete trial………. See Ndegwa vs R (1985) supra. In this case the Trial Judge passed on after having fully recorded evidence of 7 witnesses….in fact [he] had summed up to the Assessors. The trial, moreover, was not a short one but a protracted one https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19290/eng@2025-12-18 11

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which had taken 5 years to conclude. The passage of time militated against the Trial being started de novo…….” 73 . See also Migot vs Republic 1991 KLR KSM High Court; the succeeding Court did not inform Accused person of Section 200 CPC & Kanyi vs Republic Msa High Ct; Trial was conducted by different Courts and Prosecution and Appellant could not agree on the facts relied on; Conviction set aside as convicting Court did not on application of Section 200CPC appreciate the evidence adduced. 74. Applied to the instant case; this Court considers the Trial Court record of evidence recorded by previous Trial Courts and what this Court heard and is evaluating. Burden & Standard of Proof 75. Burden of Proof is the obligation to adduce evidence & also convince the Tribunal or Court on facts that prove commission of offence. The Burden of Proof is by Prosecution and on occasion on the Accused person as provided by Section 107-111 Evidence Act. 76. According to Lord Denning on what is proof beyond reasonable doubt in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 stated that:‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 78. Applying Criminal Law principles; that to find criminal liability, there must be the criminal act ( actus reus) and the act caused through a guilty mind ( mens rea) and both caused by the culpable person(s) The Criminal culpability is proved by either Direct evidence or and circumstantial evidence. 79. State v. Baker, 249 Or. 549, 438 P.2d 978 (1968) in this case it was observed that: “ Direct evidence includes what is heard as well as what is seen; indeed, what is perceived by the senses. Without looking to defendant’s admissions about riding with his relatives to Portland to sell wire, there was evidence from which the jury could find guilt.” 80. In Josephat Manoti Omwancha vs Republic [2021] eKLR C.A KSM CR APP41 of 2019; On circumstantial evidence, the approach we take is that now forming a well-trodden path of this court in numerous of its decisions. We take it from Sawe vs. Republic [2003] KLR 364 (supra); Wambua & 3 Others vs. Republic [2008] KLR 142; Mwendwa vs. Republic [2006] 1KLR 137, Kipkering Arap Koskei & Kirire Arap Matetu [1949] EACA 135), Peter Mugambi vs. Republic [2017] eKLR, and Dorcas Jebet Ketter & Another vs. Republic in which the following guiding principles were crystallized, namely: (i) The inculpatory facts must be incompatible with the innocence of the accused. (ii) They must also be incapable of explanation upon any other hypothesis other than that of guilt of the accused. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19290/eng@2025-12-18 12

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(iii) There must be no other existing circumstances weakening or destroying the inference. (iv) Every element making the unbroken chain of evidence that would go to prove the case must be proved by the prosecution. a. The fact of the death of the deceased & b. The cause of such death. 81. From the evidence on record; PW1, PW3, PW4, PW5 & PW6 on the night of 11/4/2019 saw the Vallary Atieno Amenyi (Deceased) with a neck stabbed with a knife, PW3 removed the knife and she was taken to Mama Lucy Kibaki Hospital and later she succumbed to the injuries. 82. From the evidence on record, Dr Charles K Muturi PW 2 Pathologist testified he conducted the Post Mortem on 16/4/2019 and produced Post Mortem Form in Court. He found that the deceased had a recent injury in form of penetrating stab wound on the left side of the neck 5cmlong 1.5cm width. It severed the neck vessels and fractured the cervical vertebrate, transected through the spinal cord. The Skin had punctured marks on the left elbow signifying drug administration. The cause of death was severed blood loss and cervical spine injury due to sharp force trauma consistent with a stab wound. 83. From the evidence on record PW8 Scenes of Crime Officer accompanied by Investigation Officer took photographs of the deceased at Mama Lucy Kibaki Hospital and closer view of blood-stained house. 84. From the evidence of the Investigation Officer PW10 who testified in Court, he was present when the Post Mortem was conducted on the deceased by PW2 at Mama Lucy Kibaki Hospital. 85. The totality of the evidence on record proves/confirms death of the deceased and particularly the evidence of PW2, the Pathologist established cause of death as severe blood loss from stab wound [on the neck] 84. c) Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly d) Proof that said unlawful act or omission was committed with malice aforethought. Section 206 of the Penal Code sets out what constitutes malice aforethought and as far as it is material to the matter before us, paragraphs (a) and (b) of that section are important and provide as follows: Malice aforethought is: a. An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; b. knowledge that the act or omissions causing death probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused:” Did the Accused persons cause death of Vallary Atieno Amenyi? 85. PW1 in cross examination stated that it is her cousin Vivian who woke her up and she did not state who stabbed Vallery. She also stated that she did not see who stabbed her and she did not know 2nd Accused person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19290/eng@2025-12-18 13

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86. PW3 in cross examination stated that Aoko told him her child was stabbed, She did not say by who. She was still alive and the call that she died came from the hospital. She did not tell her who stabbed her. 87. PW4 entered the room that night and found Vallary on the bed by her side with a knife in her neck. She was taken to hospital and later died. He went to Buruburu Police Station on 14/4/2019 and found 2 men who on being asked said he did not know them. He was shown 5-6 phones and he identified Vallery’s phone. 88. PW5 on that night at 3 am Vallary called her and she came out met Vivian and when she entered the room and found Vallary with a knife stuck on her neck. During cross examination she said she did not see 1st Accused at the time and later when she went to Buruburu Police Station she was told to identify Vallary’s phone and identified 1 phone. She saw Accused 1 in Court. 89. PW6 woke up on Vallary screaming she saw a knife on her neck, on cross examination she said she did not see 1st Accused in the room and she saw 2nd Accused in Court for the 1st time. 90. From the above chronology, none of the witnesses PW1-PW6 on the night of 11/4/2019 witnessed identified saw or heard of the person(s) who stabbed the deceased; Vallary Atieno Amenyi. There is no direct evidence of who murdered the deceased on the fateful night. 91. There is no evidence on record that the Accused persons were known to the Deceased’s family or neighbors, had been seen nearby or with any of the surrounding people or in any engagement or to suggest they knew or engaged the deceased at some time before or during the unfortunate incident. There is no connection of the Accused persons with the crime of murder to suggest knowledge opportunity or intention to commit the offence. 92. Circumstantial evidence is that on the said night 11/4/2019, the deceased was found in their room where they shared 4 girls 2 in each bed, and with lights on door opened and gate opened the deceased was on the bed with a knife in her neck. She was rushed to hospital and unfortunately at Mama Lucy Kibaki Hospital succumbed to her death. 93. This Court considered the evidence on record and testimonies made before the Court and is concerned by the following matters; a. On the night of 11/4/2019, PW; Laura was asleep with sister Marleen next to Vallary’s house b. Vallary Vivian Whitney and Leah all slept in 1 room Vallary and Vivian in 1 bed and Whitney and Leah in another bed. c. It is strange that all went to sleep upto 3am and none of them heard saw felt anything to suggest Vallary Deceased woke up, (as she would not have stabbed herself with a knife and call for help) left the room opened the door[ it was open not broken] and the gate was opened and either she was accosted and/or injected on the elbow with foreign liquid(as per Pathologist’s finding) and she managed to come back to the room or was brought/dragged to the room and only then did PW6 and 2 others who did not testify happened to notice Vallary was stabbed ? d. It is not logical or reasonable that such a heinous crime was undertaken in the dead of the night and no one saw or heard anything around the neighbourhood until after the act; e. Secondly, PW1 in her testimony on Court record stated that Vallary’s boyfriend; Mwanake bought her a Nokia Lumia phone and she identified it – MFI-2 Exh 2 In cross examination she said she was close to Vallary as they were like sisters and had grown up together. Mwanake was 24-25 years old and he lived opposite their home. He started relating with Vallary in 2018.He https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19290/eng@2025-12-18 14

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did not visit her in the compound but met her only outside the compound. Mwanake was medium height medium hair and light skinned, he had been a neighbour since 2018 for 4 months and this is when he was with Vallary.He was a Kikuyu his parents lived in Biafra.He used to work as a mechanic in a garage she did not know which grarage. Vallary confided in her that she and Mwanake had aviolent relationship. After 4-5 months he went back to Biafra, he used to come to their Plot daily at about 10 pm and would mee with Vallary outside the gate and Vallary closed the gate as she was the only one with the keys.The gate would be opened at 5 am when an employee came from work. f. During the hearing evidence of PW10 Investigation Officer, the Defense raised the issue of witness Lilian Otieno Odongo whose statement partly read out indicated that Vallary deceased had a boyfriend called Mwanake and when the Police went to her house se stated the deceased was murdered by her boy friend. g. The I/O stated that he was not able to trace the message of Mwanake or his whereabouts. I/ O confirmed he only had ID card and phone of 2nd Accused person and he did not locate him at the scene of crime. h. The I/O on 2/4/2025 was unable to avail Janet Adhiambo Oloo and Lilian Atieno Odongo who recorded statements. 94. The above matters evidence adduced/produced during trial create immense doubt on the prosecution case that the inference of guilt on the Accused persons is unfounded as these unresolved circumstances taint the guilt towards the Accused persons. 95. Mwanake seemed known as boyfriend of Vallary, PW1 gave details that would have assisted in investigations, Lilian one of the witnesses who was difficult to avail, her statement suggested details of Mwanake that would have assisted in the trial and lastly, the other occupants of the room that night ought to have testified, children well handled under the law could testify. 96. This Court considered the Accused persons defences mainly on being found in relation and possession of the phone that belonged to the Deceased Vallary. PW9 from Safaricom LTD testified and confirmed that the Nokia Lumia belonging to Vallary but in the name of Laura Akinyi PW1 who allowed her ID card to be used by 2nd Accused Dominic Okoth John and on being arrested took the Police to 1st Accused Simon Gitau Karanja who admittedly sold the phone to 2nd Accused person. 97. He claimed that as a phone repairer he also bought dead phones repaired and sold at a profit- not a legitimate and lawful way to conduct business. However, that by and of itself without any other evidence cannot prove the offence of murder. No evidence disclosed any connection with the deceased her family or neighbours or involvement to suggest a relationship or contact that would cause and violence on the deceased. 498. In R. vs. Kipkering Arap Koske & Another [1949] 16 EACA 135, in the Court of Appeal for Eastern Africa had this to say: “ In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19290/eng@2025-12-18 15

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99. In Anthony Kariuki Kareri vs Republic 2004 eklr Milton Kabulit & 4 Others vs Republic 2015 eKlr Peter Njagi Muchangi & 3 Others vs Republic [2013] eKLR Mendo Macha vs Republc [1980] eklr & David Mugo Kimunge vs Republic 2015 eKLR all cases Court of Appeal speak to doctrine of recent possession; that the presumption is that a person in possession of stolen goods soon after a crime theft is deemed the thief or handling stolen property; a presumption of fact not of law. The presumption of fact can be rebutted by evidence. In the instant case 1st & 2nd Accused were in possession of deceased’s phone at different times and that is all, which is not sufficient evidence to prove the crime of murder. 100. The Prosecution presented a case of circumstantial evidence but in this Court’s view inconclusive on the culpability of Accused persons causing homicide of the deceased. There is no causal nexus; the essential link between Accused persons conduct and the crime; any evidence to place the Accused persons at the scene, known to any family members or neighbours, seen within the vicinity of crime scene. The Accused persons were not explicitly identified by any witness and the evidence on record creates reasonable doubt as to who caused death of deceased. 101. It is unfortunate a young robust life was lost but the evidence on record is insufficient to sustain conviction on both Accused persons. Disposition 102. For these reasons the 1st & 2nd Accused persons are hereby acquitted of the offence of murder c/s 203 CPC to be released forthwith unless lawfully held in custody. JUDGMENT DELIVERED DATED & SIGNED IN OPEN COURT CRIMINAL DIVISION MILIMANI ON 18/12/2025 VIRTUALLY/PHYSICALLY. M.W. MUIGAI JUDGE In The Presence Of Ms Tum For Odpp Ms Atkunda for1st accused Mr Shadrack Wambui For 2Nd Accused https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19290/eng@2025-12-18 16

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