Republic v Samuel Muigai Njuguna & 1 other

3. Peter Katama Cheto (PW2) testified that he had eye sight challenges and recalled that on 7/6/2020 after having dinner at around 6.30pm with his sons including the deceased herein, he heard someone calling Moses Kipruto (deceased) twice and was told that it was Kalulu calling. He stated that the deceased whom he also referred to as Musa left following Kalulu and never came back. That he slept and the following day at around 6am, his other son called Kelvin went to look for the deceased. That he went back and reported that Musa (deceased) had died. That he rushed to where the body was and when he looked at the body he noticed that it was bleeding from the mouth with the neck bent. That a report was made to the police who went to the scene with DCI officers. He stated that the body was later removed and taken to the mortuary and that he later attended Post Mortem examination but could not identify the body due to his poor eye sight. That his son identified the body. 4. He further stated that the deceased and Kalulu (2nd accused) were friends. He recalled that on 30/5/2020 at around 10am he overheard Kalulu’s wife complaining that the deceased had been employed in place of her son Kalulu. That the lady was drunk and vowed that the deceased was not going to last one month. 5. He further stated in cross-examination though he did not see Kalulu (2nd accused) calling his son, he heard and recognized his voice and that his son Kevin confirmed to him that it was Kalulu (2nd accused). That he did report the threats from Kalulu’s wife to the village elder but he dismissed her as a drunkard. 6. Kelvin Katam (PW3) a son to PW2 testified that on 7/6/2020 at around 6pm he was home with his brother Moses Kipruto Abondo (deceased), John, Emmanuel, Dan and Brian together with their father (PW2) and mother. That they had taken drinks and were just relaxing when a friend to the deceased went and called him from the fence. He stated that the deceased then left with Kalulu (2nd accused) and by 9pm, he had not returned and when he tried calling him he could not reach him. 7. He stated that they slept before the deceased returned home and that the following morning his father told him to go and look for him. That on the way he saw many gathered near SDA Church and rushed there only to find his brother (deceased) dead. That the body was lying in a trench and he rushed back to inform his family. He stated that he later attended Post Mortem examination at the mortuary and identified the body of his brother. 8. He stated that he was not aware of any bad blood between the deceased and the accused. He did not know the 1st accused. He also stated that prior to the incident he heard Kalulu’s wife say while drunk that the deceased was not going to last a month in his place of work. 9. Francis Wafula Omkanda (PW4) a village elder at Mitambo village recalled that on 8/6/20 around midnight, Muigai (the 1st accused) called him and told him that they had apprehended a cattle thief. That they could not reach the Chief. He stated that the 1st accused was his neighbour and recognized his voice. That he called the police and informed them. That he also called one Njoroge the immediate village elder and informed him of what had happened. 10. He stated that the following day at around 6am he heard people passing by the road near his home saying that someone was dead. That he called the area chief who informed him that he would call the police. That he later went to the scene near SDA Church and found the body. That there was no exhibit to show that he had stolen. That it was the 1st accused who had called the previous night and informed him about cattle theft. 11. He confirmed in cross-examination that Muigai (1st accused) was a member of Nyumba Kumi who helped in security matters in the village. That he had called him using a phone number belonging to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/502/eng@2026-01-28 2

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Paul Muraguri Karanja but he recognized his voice. That he also knew Kalulu as a neighbour and had not heard anything bad about him. 12. Sarah Wanjiku Mwangi (PW5) testified that on 7/6/2020 at around 11.30pm while at home sleeping, she heard someone being beaten outside their house. That the person was screaming that he was not a cattle thief. That the person stated he only stole potatoes and bananas and worked for one Paul. She stated that her husband was a friend to Paul and that he then went to look for Paul as she remained in the house. That she went to the verandah of their house which was next to the road. That she could clearly see what was going on. 13. She stated that she saw Paul arrive and confirmed that the young man arrested worked for him. That the crowd was beating the young man and she recognized Peter and Macharia among others. That some women arrived and restrained the people from beating the young man. That there was moonlight and she could clearly see. That Muigai (1st accused) appeared and told the young man to leave as the women had rescued him. That a tyre had been placed on his neck. That the young man went and people dispersed. That she returned to the house and slept. She stated that the following morning, she heard that the young man had been killed and was lying next to a church. That she did not go there to see and that from that day Peter and Macharia disappeared. That she did not see Alex (the 2nd accused) that night. She confirmed that the 2nd accused and the 1st accused were involved in security matters in the village. 14. Paul Muraguri Karanja (PW6) recalled that on 8/6/2020 around midnight, his wife woke up him telling him someone was knocking the door and that when he opened the door he found a neighbour named Joseph Murunga. That he informed him that someone was being assaulted near his home and that he had said he knew him. That he took a torch and accompanied Joseph to the scene and found a crowd of people surrounding and beating a man. That he stopped them telling them he knew the man. That Muigai (1st accused) then told him to call the local administration and he called the area sub-chief and told him about the incident. That Muigai (1st accused) had called the sub-chief using his phone and that when the sub-chief called back he gave him the location of the scene. 15. He stated that since the crowd was charged, he escorted the young man home with his nephew. He recalled seeing Kinyanjui, Peter, Kamau, Macharia, Nganga among others but stated that he had sight challenges. That he was at the scene for about 10 minutes and left and did not see Muigai (1st accused) attempting to burn the man using a tyre. 16. Joseph Murunga Chira (PW7) recalled that on 7/6/2020 between 11pm and midnight while at his home, he heard screams of someone being beaten. That he woke up and went out to find a young man being beaten and being asked questions by fellow youths. That he saw Peter, Macharia, Kinyanjui and Willy. That they told him that the young man was a thief. That he did not know the young man and heard him say he was working in the neighbourhood in the farm belonging to Paul. That he knew Paul so he rushed to call him as he lived nearby. That he went back with Paul to the scene and found the young man still being beaten. That Paul (PW6) recognized him and talked to him. That Paul tried to restrain the people beating the young man but they were unrelenting. That he saw one Ndirangu come with a tyre and placed it around the neck of the young man. That he then poured petrol and burnt the victim who rolled on the ground and the fire slowed. That he saw Muigai (1st accused) among the people who were beating the young man adding that Muigai was a neighbour and he was able to recognize him through voice and that it was not very dark. He stated he did not see the 2nd accused (Kalulu). That the deceased stood up when the fire went off and ran to the SDA Church as 5 assailants pursued him. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/502/eng@2026-01-28 3

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17. He conceded under cross-examination that he was among the people who were arrested after the incident but denied being involved in the beating. He stated that when he went outside and found the deceased being beaten, the 1st accused (Muigai) was not there. That he arrived at the scene later. That he recognized him through voice and physically as he was a neighbour. 18. PC Dickson Nzuki (PW8), the investigating officer in the case testified that the murder incident was reported at Wamuini police post vide OB No.5/8/6/2020 by the mother to the deceased. That after receiving the information he together with DCIO went to the scene. That the scene was processed and the body was removed. That the body was in a trench and that body was of a young man with visible injuries on the neck and the head. He stated that he also saw a tyre with smoke next to the body. That the body was taken to the mortuary. 19. The investigating officer stated that he recorded statements from witnesses who stated that the deceased was subjected to mob justice with allegations that he had stolen a cow. That he was able to find out that the wife to 2nd accused (Kalulu) had a week prior to the incident told the father to the deceased that the deceased had caused them to lose their jobs and that the boy would not live more than a week. 20. He added that the threats were made on 31/5/2020 and the murder incident occurred on 7/6/2020. That he connected the incident to the 2nd accused because he was the one who went to the home of the deceased and called him and went with him and was later found murdered. That the 1st accused (Muigai) had called Chief Okech and reported to him that they had caught a boy with a stolen cow. That no one had reported about a stolen cow and the deceased was not found with any stolen cow. That the allegation regarding a stolen cow was false. That the 1st accused called the area chief and made a false report about a stolen cow. That in the circumstances he formed the opinion that the accused persons were involved in the murder of the deceased. 21. He stated under cross-examination that there were many people at the scene and that he had also arrested Paul and Joseph because they were at the scene but after reviewing the statements from witnesses he released them because no one implicated them. He further conceded there are other culprits who are still at large. 22. When placed on their defence the 2nd accused (DW1) Alex Waweru Alias Kalulu denied the offence on oath. He stated that he used to work with the deceased in taking care of business of PW6 (Paul Karanja). That he later left and began welding work. 23. He stated that he was home during the material time and according to him the deceased died in the hands of mob justice. 24. He stated that no witness saw him at the scene of crime because he lives in Mitambo which he said was far from Wamuini ‘A”. 25. Samuel Muigai Njuguna (DW2) stated that he was a member of Nyumba Kumi. He denied committing murder. That he was home on the material night. That between the months of May and June, there was a lot of hue and cry due to stock theft in the area. That on the night of 7th and 8th June 2020, PW6 called him around midnight and told him that a thief had been caught. That he responded by going to the scene where he found many people surrounding a suspect who had been subjected to mob justice. That he inquired whether they had found the suspect with a cow but the crowed became hostile and one Ndirangu came with a tyre and put on the suspect before setting it on fire. That he tried rescuing the suspect by throwing him on a trench with water to put off the fire and the fire was extinguished. That he told the suspect to get away and he went with difficulty because he had been seriously wounded. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/502/eng@2026-01-28 4

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26. The 1st accused stated that he called a ‘mukasa’ (village elder) who testified as PW4 and the Area Chief but did not get the Area Chief. He stated that PW4 called the Chief and he called the OCS and OCPD. 27. He stated that the mob pursued the deceased as he walked away. That he went home and the following morning he learnt that the suspect was dead. That the police swung into action and arrested several people. That he was also arrested after 2 weeks. 28. He stated that he remained with the 2nd accused after the others were released. He stated that the 2nd accused was not at the scene. 29. When cross-examined by the prosecution, he conceded that when a suspect is caught, he should be escorted to police station and that there was a nearby police patrol base. He stated that he called the police at the material time because he had their mobile numbers. He stated that the deceased was not caught with a stolen cow but could not tell why he was beaten. He stated that when he asked the mob why they were beating the deceased, they stated that they suspected the deceased was going to steal, but there was no cow at the scene. 30. Josphat Kamau (DW3) a resident of Wamuini ‘”A stated that on 7/6/2020 at around 11pm he heard noises near a church which was part of his plot. That the church was next to the road. That he went to the scene and found a suspect being beaten and when he inquired he was told that he had stolen fruits. He testified that at the time there was a problem with cattle theft in the area. He stated that he heard PW7 calling the 1st accused and he heard him calling PW7. That the incident occurred at night and he did not recognize anyone. 31. That the following day he heard that the suspect had been killed and the police went and collected the body. 32. Samson Njoroge (DW4) another resident of Wamuini ‘A” testified that he knew both the accused. He recalled that on the night between 7th and 8th June 2020 he heard screams near his home. That he went out to find out what was happening and found the 1st accused who was a ‘Nyumba Kumi’ operative. That he told him that a suspect had been caught. That out of fear he left and went home. 33. This court has set out a summary of the evidence tendered by the prosecution and the defence case. The accused persons are both charged with the offence of murder contrary to section 203 of the Penal Code and for murder to stand, the following ingredients must be established and proved beyond reasonable doubt; i. Fact of death and its cause. ii. Actus reus or that the unlawful act causing death is linked to the acts of commission or omission from the accused and iii. Malice aforethought or mens rea. Fact of death and its cause. 34. The doctor (PW1) testified that he conducted a Post Mortem on the body of deceased. He tendered Post Mortem report as Pexhibit 1 and stated that he issued a Burial Permit. The doctor concluded that the deceased died due to upper airway obstruction from a fractured cricoid cartilage from a blunt object secondary to assault. The body of deceased was identified by Kelvin Katam (PW3) who was a brother to the deceased and Isaac Kakai. The fact of death and the cause was clearly well established and proved beyond reasonable doubt. The doctor also noted that the skin around the neck of the deceased https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/502/eng@2026-01-28 5

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had peeled off and this was due to the fact that a tyre was placed on his neck and set on fire as per the testimony of PW6 and PW7. Actus Reus 35. The prosecution’s case on this element is majorly hinged on circumstantial evidence as no witness positively stated that he saw either the 1st or 2nd accused assaulting the deceased. 36. The evidence of PW2 (Peter Katam Cheto) the father to the deceased and Kelvin Katam (PW3) indicates that the 2nd accused, whom they knew as Kalulu went to their home on the material date at around 6.30pm and called the deceased and together they left and the deceased never went back that night or ever. 37. The State has submitted that because the 2nd accused had two days prior to the incident threatened the deceased, he must have been involved with the murder. 38. I have however perused through the evidence of PW2 and PW3 and find that both stated that it was the wife of Kalulu (2nd accused) who had in a drunken stupor uttered words to the effect that the deceased was not going to last one month. The investigating officer (PW8) confirmed the same evidence. Therefore the threats emanated from the wife of 2nd accused and in fact, PW2 and PW3 stated clearly that the 2nd accused was not present when the threats were uttered. 39. The prosecution’s case against the 2nd accused is also based on “last seen” doctrine. That he was the one seen last with the deceased by PW2 and PW3. However that doctrine against the 2nd accused is negated by PW4 and the subsequent events. PW5, PW6 and PW7 were all in unison on the fact that they found a mob beating the deceased on suspicion that he was a thief. PW5 and PW6 stated that he did not see Kalulu (the 2nd accused) at the scene. PW7 in his examination in chief stated that when he got outside to the scene he found youths namely Peter, Macharia, Kinyanjui and Willy assaulting the deceased on suspicion of being a thief. He also stated that he did not see the 2nd accused. 40. The evidence of PW4, PW6 and PW7 with regard to the absence of 2nd accused at the scene was supported by DW2, DW3 and DW4. The absence of 2nd accused at the scene of crime negates the inference being drawn that because he was the one who went and called the deceased from home, he was responsible for his murder. The deceased was assaulted by youths and subjected to mob justice but I find no evidence that links the 2nd accused with the mob. He was not seen by any witness at the scene. PW2 and PW3 may suspect involvement of 2nd accused but suspicion alone however strong cannot found a conviction. 41. Now let me turn to the evidence against the 1st accused Samuel Muigai Njuguna. The evidence of PW4, PW5, PW6 and PW7 all placed the 1st accused at the scene. The same is corroborated by DW4. The 1st accused in his defence admitted to being at the scene but as a ‘Nyumba Kumi” member. PW4 in fact stated that accused 1 called him using Paul Karanja’s (PW6) phone and Paul (PW6) confirmed that fact. PW4 is a village elder and knew 1st accused as an operative of ‘Nyumba Kumi” team that took care of the security in the locality. The 1st accused (DW2) in his defence stated that PW6 called him at night when he was at his home and that owing to the hue and cry that subsisted at the time, due to cattle theft, he responded and went to the scene to find people surrounding the deceased. He says he even helped when one Ndirangu came with a tyre and placed around the neck of deceased before setting it on fire. PW7 corroborated that evidence. He stated that he saw one Ndirangu put a tyre around the neck of the deceased before pouring petrol and setting the victim on fire. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/502/eng@2026-01-28 6

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42. This court further finds the evidence of PW5 Sarah Wanjiku Mwangi to support the 1st accused in his testimony that despite hostility of the crowd, he tried rescuing the deceased by telling him to go away after the fire got extinguished. She stated, “Muigai appeared and told the man to leave as the mothers had rescued him….. He then left”. 43. In light of the above, this court finds that the prosecution’s case with respect to the element of actus reus has failed to reach the threshold required. This court finds no sufficient evidence to link the accused persons with element of actus reus. Mens rea 44. The prosecution’s case on this ingredient is hinged on the provisions of section 206 of the Penal Code. While it is true that the deceased was subjected to harrowing and painful death by persons who evidently were ill-motivated, this court finds no evidence to link the accused person with harbouring ill motive against the deceased. The prosecution submits that the wife to the 2nd accused had issued threats one week before the deceased was found murdered but there is no nexus of what the wife of 2nd accused stated with the 2nd accused other than the fact that she is the wife of 2nd accused. Criminal liability cannot rest on a spouse on account of marriage. Criminal liability accrues in personam from the evidence tendered. The prosecution was required to tender evidence showing that the 2nd accused had a common intention with what the wife was heard saying when drunk. The fact that the 2nd accused was absent when the threatening words were uttered and when the deceased was subjected to mob justice absolves him from common intention with what his wife was heard uttering and actions of a mob that killed the deceased. The prosecution has not explained why wife of 2nd accused was not even taken for questioning leave alone being charged with the other culprits seen. 45. This court in light of the above finds that the prosecution’s case against the accused person is weak and has failed to reach the required threshold. In the premises the accused persons are found not guilty and are acquitted of the murder charge. DELIVERED, DATED AND SIGNED AT KITALE THIS 28TH DAY OF JANUARY , 2026. HON JUSTICE R.K. LIMO KITALE HIGH COURT Judgment delivered in open court In the presence of Kimani for both Accused – present Mr Mugun for the State Duke/Chemosop – Court assistants https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/502/eng@2026-01-28 7

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