Republic v Abdi Aftini Mohamed & 2 others

prints which led them to a certain homestead where they found two young boys although the 3rd one had fled. He identified the two as accused 1 and 3. 3. He stated that they arrested the two and subsequently called the police who took them to the police station and the body to Garissa referral hospital where postmortem was done. According to him the injuries were inflicted on the neck and head. 4. On cross examination, he denied witnessing the deceased being attacked. He further confirmed that it was the foot prints which led them to where the 1st and 3rd accused were sleeping. 5. PW2 told the court that on 2-3-2022 they discovered that the deceased a girl aged 8 years who had left home the previous day for grazing goats did not turn up. They then decided to look for her. That they found her body inside the bush. That the body had injuries on the forehead and her dress soaked in blood. They then followed foot prints of two persons up to some home where some three boys were staying. That they arrested accused 1 and 3 as the 3rd one fled. That the 3rd suspect (accused 2) was arrested later at a place known as Kaabso. 6. Pw3 Ali shurie told the court that on 2-3-2022, he received a call that the deceased his grand daughter’s body had been found in the bush. That he and some people visited the scene where they found the body. He stated that the body had injuries. He corroborated the testimony of pw1 to the effect that they followed foot prints which led them to some home where they arrested two of the occupants namely accused 1 and 3. 7. Pw4 Abdi Hassan Shurie father to the deceased told the court that on 2-3-2022, his daughter the deceased herein left home with goats for HCCR/E006/2022 Page 2 of 8

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grazing in the bush. At 4 pm he decided to follow her daughter. On the way, he found goats without his daughter. Their search for the girl did not yield any results. He in company of some people left for their homes. They resumed the search the following day when they managed to find her body in the bush. That the body had injuries on the neck, head and the tongue was cut. 8. He went further to state that they suspected people who were staying in the house nearby. He claimed that he knew them physically as the accused. On cross examination, he stated that when the alarm was raised the three accused persons did not respond. 9. Pw5 the employer to the accused persons was informed that his herdsmen had been arrested in connection with the murder of the deceased. He went ahead to take care of his goats. 10. Pw6 Dr. Fred Nibei did postmortem examination on the body of the deceased. He ascertained injuries as; open oral cavity; broken head; protrusion of the tongue; oozing of blood from the nostrils; neck was flexible; visible blood vessels on the chest and extended abdomen; broken hymen and swollen vulva. The cause of death was hypaxia due to strangulation. 11. Pw7, Mohamed Noor chief Aleli location received a call on 3-3-2022 that some girl had gone missing and that her body had been found and some suspects arrested. He reported the matter at madogo police station where officers accompanied him to the scene. At the scene they found the body of a young girl and two suspects having been arrested. That they took the body to mortuary. He was later called and informed that another suspect (accused 2) had been spotted. He HCCR/E006/2022 Page 3 of 8

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sought assistance from Madogo police station who proceeded to arrest the 2nd accused who had fled the scene. 12. Pw8 principal chemist geology department testified on behalf of Josiah Chum who had examined and analysed some soil samples attached to some sandals recovered from the accused persons as compared with the soil texture scooped from the scene where the body of the deceased was found. That the two soil samples had a relationship. He produced the report as prosecution exhibit no. 4. 13. Pw9 Pc Edwin Korir the investigating officer merely restated the evidence of pw1-pw8. 14. Pw10 government chemist analyst received blood samples belonging to the accused persons and parents of the deceased plus some pieces of clothe belonging to the deceased. The results revealed that the deceased was a child to the named parents and no positive results connected the accused with the commission of the offence herein. 15. After putting the accused on their defence, they denied the offence on oath. They alleged that the case was fabricated and based on suspicion. 16. After the close of the defence case, parties filed submissions. Prosecution basically reiterated the testimony of the prosecution witnesses. On the other hand the defence urged the court to find that the prosecution did not prove its case beyond reasonable doubt. That there was no proper identification of the assailants who killed the deceased. Counsel opined that the only evidence relied on by the prosecution is the follow up of foot prints from the scene up to the home of the accused persons a fact they disputed was not conclusive HCCR/E006/2022 Page 4 of 8

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as there was a possibility of some people passing there since it was a public place used for grazing by everybody. 17. In a nutshell, counsel contended that there was no proof of actus reus nor mensrea hence evidence based on hearsay evidence. 18. I have considered the evidence tendered by both the prosecution and defence as well as their rival submissions. It is trite that it is the duty of the prosecution to prove the guilt of an accused beyond reasonable doubt. See Woolmington vs DPP [1935] AC 462. The only issue for determination is whether the prosecution discharged the burden of proof against the accused persons that they murdered the deceased. 19. The offence of murder is defined under Section 203 of the Penal Code as: ‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder’. 20. The burden placed upon the shoulders of the prosecution is to prove the guilt of the accused person beyond any reasonable doubt. The prosecution thus must establish the following essential ingredients: i. That the deceased died. ii. That his death was unlawfully caused. iii. That the death was actuated by malice aforethought. iv. That the accused was the assailant. 21. As regards to proof and fact of death, the evidence of pw1-pw6 and pw8 left no doubt at all. The witnesses confirmed that the body had multiple injuries including the neck, head, private parts, protruding tongue and exposed vesses. Dr. Naibei pw6 confirmed the cause of death was strangulation. The autopsy report was produced as Pex 1. HCCR/E006/2022 Page 5 of 8

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As such, I find that the prosecution proved this ingredient beyond reasonable doubt. 22. On whether the death was unlawful, I am guided by article 26 of the constitution which provides that all homicides are deemed unlawful unless authorized by law. The deceased had lived a normal life as she was ordinarily grazing their goats without any problems with her health. Equally, there was no reason cited deserving that she loses her life. It is not to be denied that the injuries inflicted on the deceased left no doubt that the same caused her death. The injuries were obviously not self-inflicted. They were unlawfully occasioned by somebody. The assailant had no legal right or excuse to kill the deceased and therefore, I find that the prosecution has proved this ingredient beyond any reasonable doubt. 23. As regards the third ingredient on whether the accused were the assailants, nobody saw the accused attack the deceased. Therefore, there is no direct evidence connecting the accused with the offence. The only evidence relied on to charge the accused is circumstantial evidence based on alleged tracing of foot prints from the scene to the house where the accused were staying. The defecne maintained that there was nothing to show that the foot prints allegedly relied on were theirs and not any other person. 24. It was not disputed that the area where the deceased’s body was found is a public grazing area hence a public place where everybody could pass. 25. It is clear from the evidence on record that the circumstantial evidence relied on does not conclusively attach the suspect foot prints to be HCCR/E006/2022 Page 6 of 8

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strictly those of the accused persons. Abolfathi & Another vs See the case of Ahamad Republic (2018) eKLR where circumstantial evidence was elaborated thus; “Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence.” 26. In the case of Sawe v Republic (2003) KLR 364 the court had this to say on circumstantial evidence; “In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other co-existing circumstances weakening the chain of circumstances relied on.” 27. Pw4 the father to the deceased stated in his evidence in-chief that the accused were suspected because they did not respond to the alarm. The evidence on record based on foot prints is not sufficient enough to connect the accused with the offence. The claim that some soil found in one of the sandals of the accused had a relationship with the soil where the body of the deceased was found is not in any way implicating the accused as the same soil was not specifically confined to that area alone. 28. In a nutshell, the circumstantial evidence on record is not sufficient to find the accused guilty. To that extent, the prosecution has not proved beyond reasonable doubt that the accused persons were involved in the murder of the deceased. In as much as I sympathize that the HCCR/E006/2022 Page 7 of 8

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innocent young girl met her death in a brutal manner, I have no evidence to link the accused with the offence. 29. Having found that there is no evidence to implicate the accused, the issue of proving malice a forethought is moot. To that extent, it is my finding that the prosecution has failed to prove its case beyond reasonable doubt. Accordingly, accused persons are acquitted hence set free unless otherwise lawfully held. ROA 14 DAYS Dated, signed and delivered virtually this 17th day of December 2025 ……………………….. J.N.ONYIEGO JUDGE HCCR/E006/2022 Page 8 of 8

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