Republic v James Gichuru Boru

house under construction and found the child in the 3rd room. He was asleep and unconscious. He had a deep cut on the right cheek, chin and throat she called him but he was unresponsive. There was no blood where he lay and she saw left piece of cigarette. 5. On leaving the room under construction I saw James Gichuru at his door. His was close to the house under construction. He saw me carrying the child. He never uttered any word. He stared at me. I feared to talk to him. 6. I had not known accused for long. There is a day I sold porridge to him Our children used to play together. I had not gone to his plot. Accused stared at me and never talked to me. The accused had a wife. I was told she sells tomatoes in Nakuru and she comes in the evening. 7. She saw a young man called Mwangi in another plot and asked her to help her and he held the child and she jumped across the fence again. James Gichuru is accused in the dock. She went to a kiosk and sat holding the child. She saw blood oozing from his nose. Villagers got a motor bike and the child was taken to Nakuru PGH where he was pronounced dead and a Postmortem was conducted 8. In cross-examination by Mr waiganjo the witness admitted knowing the accused as James Gichuru as of 5th January, she recorded statement on 6th January, 2019 but never mention James Gichuru in the statement. 9. She admitted collecting her son and passed by the plot of another neighbor whom she never knew the name. that she was not referring to James Gichuru. She doesn’t know what Gichuru does for a living. That they never used to meet most of the time. The day she met him is the day Iand sold to him porridge. She didn’t know if he is a mason. That it was Evans who come to her house with his sister. she din’t know how old they are. she went to accused’s house because they were living in the house and they called him Dad. They used to play with her child. Its Evans who told her that her son had been found in the building. Evans never told her it’s his father who had inflicted injuries to Arnold. 10. When she saw accused standing at his door, she didn’t ask him for help because he was staring at her. It was around 5p.m. He could see her in distress. He never offered to help. His children saw him. She never knew if anyone else saw him. Evans recorded a statement with the police. She was unsure if his father was already at police station when she recorded statement. She never knew when he recorded statement. That she found her child in accused’s plot. The plot is fenced. The house under construction is in the plot. She never knew if the accused owns the house under construction. His house is in the same compound with the house under construction. 11. That the accused house was burnt after the incident and the house under construction was not set on fire. That she found her child in the house under construction and didn’t know the owner of the house under construction. 12. The two houses are in one compound and she was told James recorded a statement with the police. She was unaware if he told police he was not at home when the incident occurred. That no one said he saw James injuring Arnold. That no one said he saw James beating Arnold. she had no grudge with James. her family and James’s family have never had any disagreement. Before 5th January 2019, Evans and sister were not visiting her house but they were playing with Arnold. 13. She never knew if her son was visiting James’s house. That the deceased had a Cut in the throat that was deep. she never saw any blood at the scene as she removed the child. Her cloths were soiled by blood as she carried the child. That the first time she saw blood is when she saw blood oozing from the nose. That’s the blood that soiled her clothes. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19639/eng@2025-08-04 2

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14. That the chief told her he talked to James on 5th January 2019. She never knew if the chief recorded statement with police. She highly suspected that its James Gichuru who killed her child. That there were other neighbours where she resided. The neighbours are many. James’ house is across the road. The road is a small passage. It separates where they live with James’s plot 15. PW2 P.C. Immaculate Ochingoge witnessed postmortem of Arnold Kibet conducted at Nakuru PGH in the presence of both parents on 17th January, 2019. 16. PW3 Cpl. Michael Abuto, was the first scene visiting officer when this report was made at Ronda Police Station he was duty officer on 5/1/2019 and was accompanied to the scene by CIP Onsere who was his immediate boss and the mother of the deceased Mercy led them to a certain house which was still under construction at Mwariki Park View area within Nakuru County. She reported that her son the deceased aged 4 years went to play outside with his age mates in the evening but to her surprise she was informed that the deceased was sleeping in one of the rooms of the house still under construction. She went out to find out why the deceased was sleeping and to her surprise she found that the deceased had injuries and was unconscious. 17. She hurriedly picked the deceased and took him to Nakuru PGH for medical attention but he was pronounced dead on arrival. At the scene the gate to the house under construction was locked and they had to pass over perimeter wall to get inside, but while inside that compound, we found 2 positions; 1st position there was some blood which they presumed were from the deceased and the mother showed them another position which she found deceased lying which had no blood at all. 18. The home under construction was bordering the accused’s house and there was a chain link wire separating the 2 compounds. The chain link was forced to bend and kneel to construction which was still going on. Since it was at night we were forced to compound out of the compound over the fence and we passed to accused’s compound. The scene was secured and we went back to the station. 19. They only found accused in his compound alone. The witness didn’t enter his house that night and he did not have a talk with him. he only saw him. That there was no entry into the compound except through the gate of the accused. 20. That the chain link fence was forced to bend for accused’s house into the compound where the house was still under construction. There was blood stain in the house under construction. 21. There was blood stain in the house under construction in another point different from the place the mother told us she found the child. The blood wasn’t much. It was scanty. 22. The accused was arrested the following day. He was not present at the time of arrest. The person he found in the compound is accused in the court. 23. In Cross-Examination the witness admitted being the Investigating officer, and that he visited the scene of crime and saw the house under construction. That it’s not in the same compound with that of the accused. That the property under construction had its own gate. That the chain link separated compound where the house of accused person was and house under construction. The chain-link went through to the compound of the accused. 24. That, when leaving the compound where construction was going on they passed over to the compound of the accused. The chain-link had been forced to bend. They passed over chain link; the perimeter walls. At the gate there is perimeter wall which does not go past accused’s compound. The accused’s house and house under construction are not in the same compound. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19639/eng@2025-08-04 3

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25. We passed over the perimeter wall and were aided by the building materials which were outside. That a grown person can assess the building under construction. He never took photos of the scene of crime that particular night. He never went to the scene of crime the next day. He was unaware if they took photographs and did not collect anything from the scene of crime. 26. That the Report was made about 8p.m and they visited the scene thereafter. He saw accused in that house at that house. He had not met him before. He was in that house. He was standing at the doorstep. I didn’t enter the house. He did not have a word with him. He did not ask why we were passing his compound. He didn’t talk to them. They were 4 police officers and the mother and father of the deceased and they got out of the compound through accused’s gate which was open. He never revisited. He never spoke to anyone at the scene of crime. 27. That, the accused was highly suspected because it was with the parents of the deceased who suspected him. That the witness had come with the deceased’s parents from the police station. 28. That, they (police) in particular do not have anything connecting accused to the offence. 29. The prosecution was constrained to close its case without calling any other witnesses. 30. The Court proceeded to find that a prima facie case had been established against the Accused and placed him to his defence. 31. The Accused elected to offer sworn evidence but never called any other witness in aid of the defense. 32. DW1, James Gichuru, testified that he, is a resident of Mawingu and worked as a mason and that he understood charges facing him. 33. That he was aware of the murder charge facing having heard the entire prosecution case, he still denied any involvement in the offence. 34. That, on 5th January, 2019 he went to work where he was constructing a school at Race track, he lived at Mwariki Parkview and he went to work at Racecourse 35. The distance between the two is 2 ½ kms apart and he left his house at 7 a.m. and arrived almost at 8.00a.m. and he was commuting by a motorcycle. 36. Upon arrival at his workplace they were constructing a kitchen at Racetrack Junior Academy. The school owner, Nancy Gitau brought him the key to where materials were kept, he and his helper started measuring the kitchen and started to construct 37. It was a mabati structure and they did this work up to 6 p.m. The owner returned at 6 p.m. and he went to “kipanda” to do shopping for foodstuff and bought mboga and viazi. Thereafter he went to Bangladesh (shopping center) and collected the food and went home around 7 p.m. His children opened the gate and rode in motor cycle and his eldest son informed him that chief (Ephantus Gichohi) was calling him. 38. That the Chief was within visiting using his back entrance he went to the chief, who told him that a child had been murdered in the day and body was discovered in a stalled construction site next to his home. 39. That it was from Mwaniki’s home and at the hospital were told she was dead. That on this day they went into Mwaniki’s compound with villagers and chief. After his encounter with chief he went back home. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19639/eng@2025-08-04 4

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40. That the Chief had asked him of his whereabouts during the day and he explained. That he recorded his statement under inquiry stating as such and signed it in the presence of Chief Inspector Onzere. 41. At midnight, police officers came, they never spoke to him but they went to Mwaniki’s compound. On 6th January, 2019 he woke up and went straight to work until 3p.m. and he received a call from a police officer from Rhoda and was asked to go back home of which he indicated will be after 6 p.m. The officer was Chirchir. The chief called him asking if he was still at work and he disconnected. At 5.30p.m. Chirchir called and asked he pass by Ronda Police Post. By then he was with owner of school and his assistant. 42. That, his wife also called him that there were police officer in his home and he should go home. 43. After work he went to Rhonda police post at 5 – 6 p.m. to report desk looking for Chirchir, who told him he had been in my house the whole day and there is tension that he looks for elsewhere to sleep. He declined insisting he shall go to house as he had nothing to do with case. 44. While headed home and upon reaching the bridge Chirchir called him saying that the inspector is back and they shall provide him with security. 45. Upon return he was placed under arrest and was not informed of reason of arrest. He remanded in custody for this Sunday and on Monday his wife came to see him and informed him that his house had been torched down. 46. That he Never knew deceased Arnold Kibe or the deceased’s parent. 47. That on Monday an inspector came and they recorded his statement. He had not sought legal advice and explained everything to him and his whereabouts. He never knew if he verified his information. He produced his statement under inquiry as evidence. Analysis and Determination 48. Taking into account the evidence and testimonies before Court, the single the issue in question is whether the Prosecution proved beyond a reasonable doubt all the elements of murder against the Accused person herein. 49. The Sections 203 and 204 of the Penal Code under which the Accused is charged with provide for the offense of murder and the punishment for it as follows: 50. 51. “ 203. Any person who, of Malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder. 204. Any person who is convicted of murder shall be sentenced to death." The key vital elements to prove murder beyond reasonable doubt are:a. The fact of the death; b. Cause of death; that is, it was caused as a result of an unlawful act or omission; c. Proof that the accused person act or omission was the causation, and d. whether, if the accused caused the death, he did it with malice aforethought. The first element of death was not proved the prosecution did not call for or present forensic evidence in this regard. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19639/eng@2025-08-04 5

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52. On the second element, that the death was caused as a result of an unlawful act or omission, No evidence has been presented in aid that the death was a result of an unlawful act or omission. 53. On the third element of whether it was the Accused who caused the Deceased's unlawful death. No evidence has been presented directly implicating the accused. 54. On the fourth element of whether there was malice aforethought, Section 206 of the Penal Code defines Malice aforethought as follows: “ 206. 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.” 55. From my analysis of the Prosecution and defence evidence tendered,, I find no evidence adduced by the Prosecution to prove beyond reasonable doubt that the accused is the person who in fact caused the death of the deceased. 56. Therefore, the Prosecution having failed to prove the fact that the accused caused the death of the deceased, it would be an act in futility and an academic exercise to consider the issue of presence or otherwise of malice aforethought. 57. In the end, I find that the prosecution has failed to prove its case against the accused herein beyond any reasonable doubt. Consequently, I find the accused James Gichuru not guilty of the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. He is hereby ordered acquitted of the said charge. He is to be set at liberty forthwith unless otherwise lawfully held. It is so ordered. DATED, SIGNED AND DELIVERED AT NAKURU ON THIS 4TH DAY OF AUGUST 2025 MOHOCHI S.M. JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19639/eng@2025-08-04 6

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