Republic v Isaac Muthanda Nyambura

6. That the person who jumped from the fence hit (PW2) Esther on the back of the head and she fell on the road as the assailant tried to strangle her but she held his hand and called for (PW4) Baba Nganga for help. (PW2) Esther, further stated that the person who saved her told her assailant; “si uachane na yeye” (leave her alone) and the voice sounded like the accused’s voice. That the assailant was pushed into a ditch. 7. (PW1) Rose Njeri Ngige testified that on the night of 20th and 21st January 2019 at about midnight she was woken up by screams of a girl calling; “Wa Nganga” her husband (PW4) Peter Ngigi Mwaura to help her and they went out to find out what the problem was. 8. That (PW4) Peter by use of a torch saw someone jump into an open space next to a kiosk near a house and although he ran after him, the person took a side road heading to the river and he lost track of him. That he went to (PW2) Esther’s to check on her and establish what transpired and later informed the village elder named Kabute and returned home. 9. That when PW4 returned home, his wife told him that she saw a light along the drain and that a man with a hat emerged therefrom and went behind a Kibanda next to the road. That they were joined by the village elder Kabute and went to road where they found the deceased lying covered in dust. The village elder called (PW5) Isaac Mwororo Kabute identified the deceased as one Kamau. 10. (PW8) Corporal Dickson Koipiri visited the scene upon receipt of the discovery of deceased’s body and informed the Officer in Charge of Station (OCS) Chief Inspector Mercy Langat who also visited the scene accompanied by No. 61804 Cosmas Ngumbi the Investigating Officers. 11. That the scene appeared disturbed to (PW6) Cosmas and it was noted that the deceased’s face had bruises. In the meantime, (PW4) Peter led the police officers to (PW2) Esther and she informed the police officers that the accused and the deceased had fought. That they traced the accused to an incomplete house and conducted a search and recovered a white cap (P.exh 2) and a mobile phone (P. exh 3) which was identified by the deceased’s brother and (PW5) Mwororo as belonging to the deceased. The accused was arrested and taken to the police station while the body was taken to the mortuary at Engineer Hospital. 12. (PW7) Dr Titus Ngulungu who performed the post mortem on the deceased’s body told the court that he noted cyanosis, there were three (3) wavy scratch marks the left side of the neck and one (1) wavy scratch mark on the right side of the neck measuring between 5mm and 15mm. Further there were bruises on the dorsum of both hands measuring about 30mm, and abrasions above and below the left eyelid measuring between 10mm and 15mm. 13. That internal examination revealed bruises on larynx trachea and oesophagus and lungs collapsed. On dissection of the scalp had bruises on the right side of the head and the brain showing congestion and contusion. (PW7) Dr, Ngulungu formed the opinion that the cause of death was to asphyxia due to pressure trauma to the neck in keeping with manual strangulation. He produced the post mortem as (P. exh4). 14. At the conclusion of the prosecution case, the court ruled that the accused had a case to answer and placed him on his defence. 15. The accused testified to the effect that, on 5th January 2019 he was at Murungaru Shopping Centre together with (PW2) Esther, (PW3) Njoki, her boyfriend from 6:00pm till midnight taking alcohol before going home. That they parted with (PW3) Njoki and her boyfriend and proceeded to escort (PW2) Esther home and ensured that she entered home. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19332/eng@2025-11-12 2

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16. That as he and Kamau were leaving they heard a scream and rushed back and found (PW2) Esther who informed them that there was someone lurking around and advised (PW2) Esther to go back into the house and lock the doors. However, they saw someone light a torch and they took off towards the road. 17. That due to the alcohol he had taken he stopped to catch his breath and three (3) people including (PW2) Esther passed him but due to darkness he could not identify the other two (2) people. That after two (2) minutes he took an alternative route home. However, he was arrested in the house while sleeping. That he did not know the deceased neither did they met. He denied fighting with the deceased and/or committing the offence. 18. At the conclusion of the trial, the court directed the parties to file their submissions. The prosecution opted to rely on the evidence on record. 19. The accused vide submissions dated 14th May 2025 cited the case of R vs Andrew Omwenga (2009) eKLR where ingredients of the offence of murder were stated as inter alia proof that the accused caused the death of a person by an unlawful act or omission and had malice aforethought. 20. The defence submitted that the prosecution had the burden to prove the afore ingredients beyond reasonable doubt and placed reliance on the case of Miller vs Ministry of Persons 1947 2 ALLER 373 – 375 where it was stated that proof beyond reasonable doubt must not reach certainty but must carry a high degree of probability 21. The defence submitted there was no dispute that the death occurred and that it was caused by manual strangulation. 22. It was submitted that what constitute malice aforethought is provided under section 206 of the Penal Code (Cap 63) Laws of Kenya as follows: Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances— (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 omission causing death will 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; (c) an intent to commit a felony; (d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony. 23. The defence further relied on the case of; R vs Juma Mwarabu Chai Alias Juma Kazungu & Another (2022) eKLR where the High Court stated that malice aforethought can be proved by the evidence of the nature of weapon used, how it was used to inflict the injuries, part of body injured, and the conduct of the assailant before, during and immediately after the injuries were inflicted. 24. That in the present case no weapon was identified to have been used, and there having been no eye witness account of how the incident occurred, there was no evidence of who inflicted the injuries considering that both Kamau and the accused were at the scene. Furthermore, the accused did not know the deceased as he had never met him and they never quarrelled. That, there is no evidence the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19332/eng@2025-11-12 3

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assault was premeditated considering that a fight broke out after (PW2) sought to be rescued from the deceased. 25. That moreover, the accused was found asleep in the house he normally stayed and cannot be said that he attempted to escape. On the other hand, Kamau was the one who escaped and there was no evidence by the prosecution of any attempts made to trace him. 26. That the prosecution allegations that the accused was found in possession of the deceased’s phone was never proved as the prosecution did not provide any evidence from the mobile service provide nor did they submit the phone to cybercrime and/or forensic examination to prove the same. That the prosecution having failed to prove the same, it then follows that they failed to prove that the accused caused the death of the deceased and urged the court to acquit him under section 215 of the Criminal Procedure Code. 27. At the conclusion of the case, I note the accused is charged with the offence of murder provided for under section 203 of the Penal Code which states follows: “ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder’’ 28. The ingredients of that offence are settled through several court’s decision including the decision of the Court of Appeal in Joseph Githua Njuguna vs Republic (2016) eKLR, where the ingredients were stated as: a) proof of occurrence and cause of death, b) whether the death was lawful or unlawful, c) proof of commission of the offence by the accused and d) malice aforethought. 29. In considering the evidence on record, I find that, there is no dispute that the death herein occurred. The witnesses who found the deceased’s body at the scene (PW1) Rose, (PW4) Peter, (PW6) Cosmas the Investigating Officer, and (PW8) Cpl Dickson and (PW7) Dr. Ngulungu have confirmed the occurrence of death. The cause of death is well stated in the postmortem report and is not in dispute 30. However as regard the perpetrator, it is evident that most of the witnesses herein did not witness the accused kill the deceased and stated as such. The only evidence connecting the accused to the incident is the deceased’s phone allegedly recovered from the accused. The evidence reveals that the same was taken to Safaricom Limited to confirm if it was deceased’s phone and/or call data. 31. The prosecution case is that there was a request to Safaricom for the same but no results thereof was produced herein nor the report from Cybercrime analyst and despite giving the prosecution adequate time to avail the same nothing was done. By failure to avail that evidence no one can confirm for sure that, the subject phone belonged to the deceased. 32. Furthermore, there was an attempt to plea bargain this matter on allegation that there was a fight between the accused and the deceased, the plea bargain was never followed up. As such whether such a fight occurred or not was never established. In fact, it is in evidenced that (PW2) Esther Wanjiku is the one who alluded to the fight yet in her evidence she did not testify to the same. 33. Moreover, even the scene visiting officer was never called to confirm that, the deceased was found lying in the ditch, the injuries sustained to support the post mortem finding. Further still the relatives of the deceased who identified the body being Henry Mwangi and Teresia Njoki Macharia, did not testify. 34. Consequently, it is the finding of this court that, this case was casually investigated and prosecuted. If the victim’s family are not receiving justice, it is because of the investigating officer who should bear the fully responsibility for the same. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19332/eng@2025-11-12 4

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35. The prosecution has a duty to prove a case on a high standard of proof beyond reasonable doubt. That burden of proof was not discharged herein. Hence the accused is given the benefit of doubt and acquitted under section 215 of Criminal Procedure Code. 36. It is so ordered. DATED, DELIVERED AND SIGNED THIS 12TH DAY OF NOVEMBER 2025. GRACE L. NZIOKA JUDGE In the presence of Accused present virtually Ms. Chepkonga for the state Mr. Owuor for the accused Ms. Hannah: court assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19332/eng@2025-11-12 5

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