Republic v Stephen Mwaura Karanja

6. (PW2) Morile Jama Ogutu, testified that he saw the deceased whom he referred to as a “fellow” ran and jump from 1st floor and fell on the ground. That the accused whom he referred to as “Mwaura” went downstairs following the man. That he did know where they went. 7. In cross-examination by defence counsel (PW2) said that the deceased jumped over the rails on the balcony. Further that he did not see Mwaura hit the man, (herein” the deceased”). 8. (PW3) Mary Wamaitha Mwaura, testified that she saw the accused who is her son arrive at her house in the company of the deceased and reported that the deceased was the one who had stolen money from him, that as the deceased was injured she reported the matter to the police and the deceased taken to the hospital. 9. In cross examination she stated that she saw the accused with deceased who looked injured and the accused told her that he dragged the man from Relax bar but heard that the deceased jumped from the upper floor. 10. (PW4) No. 100389 PC Linet Mabusi, testified as to how she received a report of mob justice over a victim and that the victim was lying seriously beaten. That the victim tried to escape and fell down from the balcony of the bar. That the deceased had sustained bruises on the face, head and was bleeding from mouth. She confirmed that the accused had reported a case of theft of money at the police station. However, she did not visit the bar which was the scene of crime. 11. (PW5) Dr. Ngulungu who performed a post mortem on the deceased’s body noted his ribs were fractured and other injuries stated in the post mortem form. He stated that the cause of death was head injury and ruled out mob justice 12. In cross examination, he reiterated that the main injury was on the on head and abrasions out of dragging. 13. (PW6) No. 71461 Senior Sergeant Njuguna, the investigating officer, stated that he established the accused assaulted the deceased and that the assault led to death. That he found no evidence that the deceased jumped from the floor upstairs. 14. He confirmed in cross examination that no murder weapon was recovered and neither were photos of the scene taken, although he directed junior officer to deal with the scene. He also confirmed that he did not see the deceased’s identity card. That he charged the accused after concluding the investigation 15. The accused was placed on his defence at the close of the prosecution’s case and testified that he saw the deceased in the bar and recognized him as the person who stole from him. That he locked the door to the stairs, and people approached the deceased who fell from balcony, and he followed him to the ground. That the deceased was subjected to mob justice and he took him to the mother. He denied hitting the the deceased. That none of the deceased’s relatives testified and neither was his identity card produced. 16. In cross-examination by the prosecutor, he still denied assaulting the deceased and insisted that the deceased fell from the balcony. 17. The parties filed submissions at the close of the case, the prosecution submitted that the occurrence and caused of death has been proved. That the accused hit the deceased on the head and he bled from the nose, mouth and then dragged him to mother’s house, thus causing the death. That he ought to have known that dragging a bleeding victim would result in death, hence evidence of malice aforethought. Furthermore, the accused failed to take the deceased to hospital for medication, an indication of malice aforethought. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19335/eng@2025-11-20 2

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18. The defence on its part submitted that the identity of the deceased is unknown as neither his identity card, birth certificate, or death certificate were produced and neither did any of his relatives testify. Therefore, the post mortem alleged to be of one David Keru Waweru, the deceased, is not certain. Further that no weapon of murder was recovered or produced. That the alleged dragging of the deceased did not cause his death. 19. At the conclusion of the case I have considered the evidence adduced herein in total and note that, the offence the accused is charged with is provided for under section 203 of the Penal Code which states: “ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 20. The ingredients of the offence are indeed settled vide several court’s decision including the Court of Appeal decision 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. 21. To revert back to this matter, there is evidence of death of a person on whose body Dr Ngulungu conducted a post mortem. However, as submitted by the defence, the identity of the deceased has not been proved beyond reasonable doubt. The deceased’s identity card was not produced and neither did any of his relatives testify, yet the post mortem report indicates that, Humphrey Njonjo and Boneface Maina identified the body for post mortem. 22. Further, no evidence of the scene where the incident took place, was availed yet, it is alleged there was a balcony with rails from which the deceased. Furthermore, the investigating officer stated that, he took a sketch plan of the scene but did not produce it in evidence. 23. But more importantly, there was no witness who testified that they saw the accused assault the deceased. To the contrary, (PW2) Ogutu testified that, he saw the deceased jump from the balcony and got injured, thus corroborating the accused’s defence. 24. The Investigating officer states that he was told the accused assaulted the deceased but does not state who told him. Therefore, his evidence remains hearsay. 25. There is evidence that the accused’s money had been stolen and a report to that effect made at the police station and if the deceased was held as a suspect, he could have been apprehensive of arrest and tried to run away as stated by the accused. 26. However, it is in evidence that, the accused dragged the deceased to his mother’s house. The dragging occasioned bruises on the deceased. That was a senseless act but was not the main cause of death as the post mortem report shows the cause was a head injury not bruises or abrasions. 27. As such, it is in the finding of this court that, the accused should have been charged with a different offence, whether assault causing grievous harm or otherwise but not murder. 28. Further evidence reveals that the accused just met the deceased in the bar. He had no prior knowledge that they would meet and his intention was to detain him and prevent him from escaping, therefore malice aforethought does not exist. 29. Consequently, I find the prosecution did not prove its case beyond reasonable doubt and I accordingly acquit the accused of the charge of murder. DATED, DELIVERED AND SIGNED ON 20TH NOVEMBER, 2025 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19335/eng@2025-11-20 3

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GRACE NZIOKA JUDGE In the presence of: Mr. Wanga H/B for Ms. Chepkonga for the State Mr. Kimani for the accused Accused prent physically Ms. Hannah: court assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19335/eng@2025-11-20 4

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