Republic v Simon Njomo Musyoka

At 6.00pm, Simon called her. It was the same time that her boss was coming in from work. Simon told her that her child's condition was deteriorating (becoming worse). He disconnected the call. She told her boss what was going on at her house. She gave her money and took a motor bike to take her to Simon from pipeline. When she got to Silicon, she met Simon carrying her child at the gate. She picked her child but it was like the child was already dead. She rushed to hospital but her child was pronounced dead. She had tried to inquire from him what had happened, he did not reply. When she picked her child, his eyes were open but was not moving. The child's body was cold and he had an injury mark on the forehead which she had not left him with. When she reached the hospital, the doctor asked her to put the baby on the bed. He looked at him and told me that the child was already dead. She had taken him to Olive Hospital (she was shown a document). It was a birth notification for her late child and it confirms that, F Nongere Misiko was the mother (MFI —PI). Simon followed her at the hospital and found the child already dead. The doctor did not tell her what had caused her child's death at the time because she was devastated. They went to Lungalunga Police Station. Simon was a motorcycle driver. When they got up in the morning, Simon told her that he was not going to work and that is how she left him with the child. They had been in this love relation for eight months. She used to go to his place with the child. Simon had been employed to ride the motorcycle. She attended the post mortem examination of her late child. She saw the post mortem Form which was filled by the doctor - (MFI —A2). She did not witness the post mortem examination of her baby. She was with her aunt, Agnes and Joseph Mwita. It was Joseph Mwita who went to the room where the post mortem examination was being conducted. Joseph was just a friend. The officer allowed him to see and identify the child's body to the doctor before the post mortem examination was conducted. She was given the post mortem examination report and she read the doctor's finding. She saw it was indicated that the child had died as a result of internal bleeding. She had never quarreled with Simon. He did not explain to her how the child had sustained the injury on the forehead. They have never spoken since then. The said Simon was before court. 5. On Cross-examination she stated thatShe had been in another relationship before meeting Simon. It was with the father of the child. He is called Brian. Brian was quarrelsome. He used to beat her. She got into a relationship with Simon because he was quiet and not quarrelsome. She used to visit him with the child. It is true she used to leave him with the child and this was not the first time. She told him that having diarrhea is normal but not passing blood in stool. She had never seen that. It is not normal to leave a child normal and then they later die. She was also arrested as a suspect. She was arrested at Agnes Syombua's place. They had been at the hospital. The officers came there and asked that she take them to her house. When she got there, she did not have the keys to her house and that was how they entered Syombua's house. She was a neighbour. She met Simon carrying the baby. He did not talk. Simon used to take the child to a day care for care. He would give the caretaker cash to buy the child food. My relationship with Simon was normal. 6. On Re-examination she said that - on the fateful day, Simon told her that he was not going to work. It was true that they were both arrested but after investigations, the accused was charged with the offence alone. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2222/eng@2026-02-12 2

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7. PW2 - Salat Wario Diba stated as follows:He reside at Lungalunga where he works at the public toilet. He knew Simon Njomo. He has known him for about 2 years. He used to work as a mechanic at Sinai in Lungalunga. He bought a motorcycle from a certain company and since he was a mechanic he engaged him to ride the same for him. The motor cycle was registration No. KMEG 351K make Boxer 4h. He had bought it from Auto Industries Ltd as a 2nd hand. He was shown a search certificate and it indicates the motor cycle was still in the name of Auto Ltd. They had agreed that he test it and pay if it works but an incident happened in the process. He had taken the motorcycle for one month. An accident happened. He had given it to Simon to test it as a mechanic to see whether the motor cycle was in a condition of the same. He was a mechanic and also could operate the bodaboda business. The month did not lapse. We had worked together for about 3 weeks. He was to work on Monday to Saturday and would be off on Sunday. He was to work between 8.00am — 9.00pm and close when the day ends. The motor cycle would be parked at a place where other motorcycles and vehicles would park and he guarded. He would then collect it in the morning. On 5/5/2020 he was at his place of work when Simon came there. They stayed together for some time and chatted. He told him that he had bathed the child, fed him and that the child was not feeling well and so he had left him sleeping. He came to his place at 1.00pm and they parted at 4.00pm. They stayed together for 40 minutes but left him to attend to customers who were coming to the toilet. He took the motorbike and left at 4.00pm. He told him to take the child to hospital if the condition was not improving. He did not know whether he had gone to work or not. He normally close work at 7.00pm and go to the mosque. At 9.00pm a friend informed me that Simon had been arrested. he slept and went to check on him at Lungalunga Police Station. He did not find him. He went to Makongeni Police Station but he was not there. He went and found him at Industrial Area Police Station. He was not able to talk to him. He went back home. He found the motorcycle at the place where it is usually parked. 8. On Cross-Examination he stated that: -For the period he knew him, he was working as a mechanic. He had never disagreed with him. On this day, he stayed with Simon but he left my place of work at 4.00pm. He was busy. He stayed with him for about 3 hours. He found the motorcycle at the place where it is usually parked. He must have taken it there. He found it there in the evening. He heard of his arrest at 9.00pm. He found his motorcycle on the evening of the following day after work. It was Simon who knows when he parked the motor cycle. The motorcycle was okay. It had not been involved in an accident. On Re-examination he stated that they parted at about 4.00pm. and he went to pray. 9. PW3 David Kariuki Musyoka stated that de resided at Sinai Reli, in Industrial Area. He used to work as a steward and on 5/5/2021 at about 6:00pm, he was heading to his house Crescent stage where he was doing some installation to a friends' computer. It was heading to 7:00pm when he reached Sinai He entered his house the and then heard someone calling him from outside. It sounded like a lady he got out and found a lady, wife of his brother Simon Njomo Musyoka. She was new and he did not know her name, she asked him if his brother was in and he told her to call him. She called him and he came. He saw the 2 of them act family. The Lady told him that their child was not well and they needed to rush him to Olive Hospital. At that time, the child was in their house. They stayed in 2 rooms. When he went in to put on his shoes, he found they had gone ahead of him. He followed them up to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2222/eng@2026-02-12 3

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the hospital. On reaching the gate, he met Simon who told him that the child had died. He went to the hospital and found the child dead at the waiting area. He rushed to go and tell their elder brother Benson Musyoki. He then went to the hospital. At the hospital, he found the child with his father, mother and doctor. The child had vomited. His name was Luis. When he came back to the hospital, he found the police and his brother was under arrest. He recorded his statement at DCI, Industrial Area. 10. On cross examination he stated that Accused was his brother and he had no history of violence. He did not know what killed the child. They stayed in same house. The wife was not arrested. 11. PW4 - Peter Muriuki Ndegwa stated that he was a Doctor and he worked with the Ministry of Health the Department of Pathology and resided at Saikas side since 2005. He hold Bachelors of Medicine and Surgery MBch, UON 1982 Master of Medicine in Pathology (Pathology) UON 2005. On a date not indicated at the City Mortuary he performed a Post Mortem examination on LM. It was identified by Agnes Mweni Kimanzi and father Morangali. PC Kago DCI Makdara. It was on May 2021. He noted the body was of a male African child – 2 years of fair mental status slim and height of 96cm. Externally he noted harmotome involving upper and lower limbs the harmotome tomaha was blood clots on both buttocks, both joints, in genital areas (private parts) The scalp had subgalea hematoma global scalp. He formed the opinion that the cause of death was traumatic shock due to multiple injuries due to blunt force trauma. The injuries were everywhere on the body. He filed his Post Mortem Report on 10th May 2021 and signed it. He produced it as evidence. 12. On cross examination he stated that the cause of injuries was blunt from trauma circumstantly they could be caused by a fall. 13. PW 5 – Esther Wanjiru Kilonzo stated that she resided at Sinai. In 2021 she was 18 years old attending school at Young Achieves School in form III. On 3/5/2021 at 1.00 pm she was washing clothes at their house. A neighbour came asked her if she could baby sit for him a baby. The neighbour was Simon. He was going to work. The child L was 2 years old. We had been neighbours for five years. He was to pay me for the work done. He came for the child at 7.00 pm. As she stayed with the child she fed him and changed his diapers. His father Simon came for him. On seeing Simon the child was afraid of him. He took the child and paid her Ksh 100/-. The following day Tuesday 4/5/2021 he came and requested her to baby sit the child and she agreed. She stayed with the child from 7.00 am until 8.00 pm when his mother came for him. She fed the child food, changed diapers when he pooed and gave him food. The bay played with her sister’s children. When the mother F came for Luis, he was very happy. On Wednesday she did not see the child. She was in the house until 7.00 pm. When she went to the shop she encountered mama L coming to the gate screaming saying “my child ‘my child”. She did not see L. she does not know what happened to L. When she was babysitting L he was in a good condition. He did not have any injuries. She identified Simon as the accused in court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2222/eng@2026-02-12 4

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14. On Cross Examination she stated that the person she knew was Simon. She did not know he was not a biological father of the child. She did not tell him anything when he brought the child. He was the one who offered her the money. She could not tell if the child had a good relationship with Simon. She did not know what happened to the child. 15. PW6 – No. 54186 P.C. David Meli stated that he was Attached to DCI Makadara doing investigation duties On 9/5/2021 he was in the office was assigned investigation duties of a child with his two (2) colleagues Cpl. Ole Da and P. C. Kago. They went to Lunga - Lunga Police Station, where they found officers who took them to Sinai where the incident occurred but people were not volunteering to tender evidence. They went to Olive Link Health Centre at Sinai. They found the results of what was found flowing examination of the child. They looked for the suspect, both FN and Simon Njomo Musyoka who were in the Police Custody. They interrogated them and FN said she left the child with his father Simon Nzomo as they were still asleep. She left the child having waken up at 6.00 am. At 11.00 am she got a call from the father of the child Simon saying that the child was sick she was Direhearing. F told him to get medicine for him or take him to the clinic. Later when she called Simon’s phone was off and later on the phone of F also went off hence there was a communication breakdown. Simon Nzomo said he left at 12.45 pm going to his place of work at Salo’s place where there was a car wash. Simon said he met a customer and they went to Eastleigh. At 3.00 pm Simon got a call from an identified person saying the child was not well hence he was required at the house. Simon also said that he fell with the child from a motorbike. He took the child to the house so as to administer on him first aid. He doubted his explanation as he left the child in the house and stayed up to 2.00 pm knowing the child was not fine. He went to Oleduma Road to establish if there was a CCTV camera. Simon identified the place where he allegedly fell with the child. The camera was not of any help to them as it used to erase what was captured. He claimed they fell as he was going to get milk to make tea. The place also had many lories for Pembe Millers. They failed to get any witness who could support the allegation of Simon falling with the child. He did not explain why they did not go to hospital. F having failed to communicate with Simon ultimately the managed to talk on phone. They then took the child to the clinic. F said she returned in the evening and they took him to clinic with Simon but the child scammed. Agnes Syombua who previously lived with F was of a contrary view hence reported to Nyumba County who caused the two (2) arrested. F was not a suspect as she left the child at 6.00 pm. When the child was fine. He caused Simon Nzomo to be charged because he did not explain what happened to the child. He got a document dated 5/5/2021 from Olive Link Health Care Sinai. The got a birth certificate issued to the child and produced it in court – MF1 1 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2222/eng@2026-02-12 5

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16. On cross examination he said that the accused had a motor-bike but he could not tell if he went with it to Estleigh. They took possession of the motor cycle. The motorcycle was however owned by Salat Abduba (PW2). He established that Simon was working for Abduba. They moved to NTSA to retrieve the logbook of the motor cycle- copy of records to motorcycle for NTSA was produced in court as evidence -MF1 3. He charged Simon and he produced a birth notification of the deceased as Exhibit 1. 17. On Cross Examination he stated that he has been a police officer for 37 years. He recorded statements from witnesses. Simon said he fell off a motor-cycle with the child.Simon used to retain the motor cycle and he had the motor cycle then. It is not true that he recorded the accused to be charged with a traffic offence. The statement states that he took the suspect to court and charged him with murder. The defence counsel and court statement reads:- “I took the suspect and charged him with the offence of causing death by dangerous driving contrary to Section 36 of the Traffic Act Cap 403 laws of Kenya”. He recorded 2 statements. He discovered that Simon was lying to me. At the outset he intended to charge him with a traffic accident until he discovered otherwise. He had the statement of Sgt. Daniel Leun. Simon was arrested at the clinic. He was not present when Simon and F were arrested. Simon and F are the ones who said they were arrested while at the clinic. The death occurred on 5/5/2021. He first interrogated the suspects on 8/5/2021. He arrested them on 5/5/2021 and they commenced interrogation on witnessed on 7/5/2021. He went with Simon to the scene of the accident two (2) days after his arrest. The CCTV/Images are deleted after three (3) days. We sought an order of the court to detain the accused further on 7/5/2021. Have not shared the orders with the defence and counsel. By then he had not visited the scene of the accident. The case was reported on 5/5/2021 and wrote a letter to ODPP on 9/5/2021. He was answered by letter dated 20/5/2021. He was advised to seek time to investigate the case. The DPP advised him to review charges when he brought about the issue of the motorbike it was declined because the motor bike did not have evidence of an accident. It was true at the outset he considered the case of traffic accident. He was to fill in the gaps. He did not save the CCTV footage as advised. He did not have photographs. The photographs were taken but he did not collect. He did not take the accused for physical examination as advised by DPP. Officers from Lunga Lunga Police Station recorded statements on 18/8/2021. The latter from ODPP is dated 19/5/2021. One of the witnessed recorded the statement on 18/5/2021. The arresting officer was Sgt. Daniel Leuru. This was at Olive Link Health Care. He was advised to get information about the call record. He saw the call data. He did not share them with court or defence counsel. The covering report recommended that the accused be charged with murder. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2222/eng@2026-02-12 6

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The recommendation was that the suspect be charged with causing death by dangerous riding of a motor bike which caused death of the child. There was no bad blood between Simon and the child or his mother. The relationship between Simon and the mother of the child was good. It was true Simon and the mother of the child were lovers. Simon used to take care of the child. It was not correct that he was of the view to charge the accused with causing death by dangerous driving. It was not true that the DPP who made him change his mind. It was possible that injuries could be caused by a fall because he was found having fallen down. He could not confirm if Simon was found at the Heath facility. People wanted to occasion mob justice on Simon and F at olive Link Health Centre. 18. On Re-Examination he stated that he was not present when the child fell. F was the one who said the child fell from the bed. The motorcycle did not have any dent to prove occurrence of an accident. They found Simon and F at Industrial Area Police Station on 6/7/5/2021. He did not take Simon for physical examination because he was fine. He had no injury. Call data came in later and he did not supply it as it was of no use. There was no evidence of Simon Nzomo having fallen with the motor cycle. Prior to sending the letter to ODPP he had investigated the matter. The motor cycle was not taken for investigation. The mother of the child said he had fallen from the bed per what she was told by a Simon. 19. PW 7 No. 59286 Sgt Daniel Leuru Saei testified that in 2021 he was attached at Lung Lunga Police Station where he did general duties. On 5/5/2021 7.30 am the OCS called him to his officer – OCS James Nyamatere Chief Inspector to go and rescue two people who were to be beaten up by the mob. They went and rescued them with P. C. Alex Kirigia. When he went to Sinai Village he found the accused person who was locked in a house and 1 lady who was not in court that day also locked up in the house and there was a crowd of people members of the public who tried to break the door and they were chanting ‘Wameua! Wameua’. We took the accused person and the lady and booked them in the OB and we placed them in the cells. The accused person was said to have dropped a child on motor bike and died but he did not see the said child. He did not investigate the matter. The accused person was in court was the one he arrested on that day. 20. On cross examination he state that he was told by OCS to go with his colleague to rescue the accused person and 1 lady. He said that at the scene he did not see the child or body of the child and he did not know who committed the crime of murder. Prosecution's Submission on a Case to Answer 21. The prosecution tendered evidence which was oral and documentary in nature. These submissions demonstrate that the prosecution has established a prima facie case against the accused, warranting that he be placed on his defense. The prosecution relied on the following grounds: Death of the Accused 22. There is no dispute as to the death of the accused. PW1, FN, in her statement confirmed that she was the mother of the deceased and that she identified his body at Olive Link Health Centre where he was pronounced dead. Fact of the death was proved by a post mortem report (MFI-2) dated 10th May 2021 and produced by the Government Pathologist (PW4). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2222/eng@2026-02-12 7

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The Death was Caused by an Unlawful Act or Omission 23. The accused elaborated a narrative of a bodaboda accident along Dume Road. This account has been thoroughly and conclusively discredited by the investigation and witness testimonies. PW6, the Investigating Officer testified that Dune Road is a busy road with constant activity from Pembe Millers, with truck parked and guards on duty. None of these potential witnesses saw or reported any such accident. On further investigation of CCTV footage installed at Pembe Millers, it revealed no evidence of the alleged accident. 24. PW2, the motorbike owner testified that he did not report any dents or damage to his vehicle consistent with such a fall. He further testified that the accused never informed him about the accident when he returned to work, a highly probable omission if it were true. 25. PW 5, the neighbor and babysitter testified that she was in the sees the whole day and never heard of any accident involving the accused and the child. 26. The accused's false alibi undermines his entire testimony and reinforces the presumption that he was concealing the truth about how the child sustained the fatal injuries. 27. The accused's failure to seek prompt medical attention for the child was a critical indicator of guilt on the omission on his part. This gross neglect and preference to leave the deceased unattended while he went to work demonstrates a consciousness of guilt and aligns with R vs Instant [1893]1 QB 450 that established that a duty of care can be imposed on individuals who voluntarily assume responsibility for another person. The deceased was in charge of taking care of the child while his mother was at work, his failure to act even when the deceased was in dire need of medical attention makes him criminally liable. 28. The finding of the pathologist clearly confirms that the deceased's death was not as a result of natural causes, accident or suicide. It was out of traumatic shock due to multiple injuries due to blunt force trauma. That in Causing the Death the Perpetrator was Motivated by Malice Aforethought 29. 30. Malice aforethought is established under Section 206 of the Penal Code where there is evidence of: “ (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." The Court of Appeal in the case of Nzuki vs Republic (1993) KLR 171 further held that before an act can be murder, it must be aimed at someone and in addition it must be an act committed with the following intentions, the test of which is subject to the actual accused person: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2222/eng@2026-02-12 8

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31. Based on the evidence presented and guided by the legal provisions, there was sufficient indication that the accused acted with malice aforethought, witness testimonies provided consistent accounts confirming that the child died from injuries which were inflicted intentionally and without provocation. 32. PW4 further confirmed that the cause of death was traumatic shock due to multiple injuries due to blunt force trauma, this demonstrates a clear intention to cause death or grievous harm. 33. The nature of the injuries, the vulnerable age of the victim, and the fact that those injuries were inflicted while the child was in the exclusive care of the accused, all point towards malice aforethought as defined under Section 206 of the Penal Code and interpreted in Nzuki vs Republic. 34. The standard for a prima facie case was set out in Ramanlal Trambaklal Bhatt vs. Republic [1957] Ε.Α. 332: “ It may not be easy to define what is meant by a 'prima facie case', but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defense."------ Disposition 36. At the time of writing the Ruling, the Defense despite several adjournments did not file submissions. The ODPP filed submissions on 26/10/2025. The Prosecution witnesses who testified before Trial Courts Hon LJ D Chepkwony Hon. D Ogembo & LJ L. Mutende and this Court after compliance with S 200CPC establish a prima facie case and warrants the Accused person to be placed on his Defense. RULING DELIVERED SIGNED & DATED IN OPEN COURT HIGH COURT CRIMINAL DIVISION-NAIROBI ON 12/2/2026 M.W. MUIGAI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2222/eng@2026-02-12 9

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