Republic v Geoffrey Nyakangi Kimonge

2. When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact 6. The case for the prosecution is that on the 6th of November 2021 DMM the child (deceased) was at home with the mother up to around 11:00 AM when the father came home from work and the child opened the door for the father. It was at that time that the child requested to go to the toilet and the father told him to use the potty. The child was about three and a half years old. The mother told him not to use the potty but to go to the toilet. The toilets were behind the house of the accused person which was on the same block as that of the child and his family. Theirs was no 5, accused’s was no 3. 7. The child went out and stayed for about an hour. The mother PW2 got concerned and went to look for him.He was not in the toilet and she looked for him for about an hour and did not see the child. One Mama Nduku who told her that she had seen the child being carried by BM a child of the accused. He is said to have been 10 or 11 years old. She went to the home of the accused to ask for her child and the accused told her he had not seen the child. She met BM who told her he had not seen DMM her child. She continued looking for the child and went back home around 3:00 PM. 8. She and her husband were now joined by members of the estate and they all went looking for this child. The child was looked for everywhere including the water chambers and the septic tanks and the other parts of the estate and that around 4:00 PM she went to report to the estate security. The Estate Security personnel seeking assistance of a m/v and loud speakers to drive around the estate calling out for the child. They took them to Kibwezi police station where they booked the report that the child was missing. She said that they were told to search for another 54 hours and since it was a Saturday and to go back to the police station on the Monday if they did not find the child. 9. When they went back to the estate there was a crowd at their house and they continued looking for the child except for Kimonge and his family who she stated were seated outside their house relaxing. 10. She said that Kimonge’s child BM took them to the New Camp where he said they had been playing and showed them where they had been playing. It was now 9:00pm. She stated that the security personnel for DWA Estate took her and her husband and the Nyumba Kumi lady and the child BM to the security office where they started interrogating the child .He denied having been with the deceased. When his mother arrived she demanded that they stop the interrogation. It was going to 10pm. 11. The Security officers told them to go search for the child from door to door and other people said they go to the water chambers and the toilet where the child had been. 12. PW2 the mother to the child told the court that Kimonge took a padlock and locked the door of the rooms where his children slept and proceeded to the septic tank . That they all went there and the septic tanks were unlocked. And that is where the child was found. According to her the child had not been there for long. She said that the septic tanks were usually locked and they were only opened when they were being cleaned , and that it is the people who clean the septic tanks who would open and close them. She stated that the person responsible for the septic tanks had opened them earlier but there had been no child When the child was found they called the police who took the body to the funeral home. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4382/eng@2026-02-05 2

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13. It was her testimony that she and Kimonge were not on good terms because they would quarrel over their children because his child would beat her child, and that they had not spoken for months. 14. She was cross examined by Mr. Hassan counsel for the accused person and she said that she could not recall the people who had proceeded to the septic tank as she was in a panic state. She told the court that she did not record in her statement that she had seen Kimonge lock the two rooms where his children slept. 15. According to the postmortem report the body was covered with fecal matter. The neck was broken at C1 and C2, the xyoid bone was broken the left shoulder was broken, there was strangulation marks around the neck, the chest had bruises , there was a hematoma on the right side of the neck, the lungs had not collapsed, there was no fluid in the lung cavity. The cause of death was asphyxia secondary to neck strangulation. 16. According to the Investigation Officer PW5 the first report was made on the 6th of November 2021 At 5:30 PM of a missing child this was OB 24/6/11/21. 17. Later that day at 10:00 PM the report was made that the body of a child had been found inside a septic tank while dead. It was suspected that he had drowned. His colleagues visited the scene vide OB 31/6/11/2021. The suspected drowning was contradicted by the postmortem report. According to him before the postmortem was conducted one arm had a dislocation at the right shoulder and the neck had been twisted there was no water in the stomach and there was no evidence that the child had swallowed sewage water; that according to them the child had been killed elsewhere and the body had been thrown in the septic tank; the accused , his wife and their son BM had been arrested. 18. He recorded witness statements. 19. He said he looked for the officer manning the children desk one madam Wanje who recorded the statement of BM who was by then grade 3. According to him the statement by BM was that the accused person sent the BM child to go bring the child DMM and he went brought the child. That his father the accused held the child and strangled him while pinning him on the ground with his knee and twisted the child’s arm. That he warned BM not to tell anyone otherwise he would also kill him. 20. He told the court that BM took them to visit the same. 21. He said that PW1 Caroline Ouma also said she saw BM carrying the deceased child. 22. On cross examination he told the court that BM was a witness but he did not testify; that his statement was available but it was not produced .He also said that he did not record in his statement that he revisited the scene with BM; he stated that the statement that about what BM said was in his investigation diary but he had not produced the investigation diary. He was referred to his own statement dated 16th of November 2021 where he said that Caroline Ouma PW1 Bauman told him that she saw BM carrying the child DMM and that the accused was waiting for the child to be brought to him. He said hat Caroline told him that it was the accused who wrapped the child with a cloth on the mouth to suffocate him and twisted his neck and that he also warned son not to tell anyone and threatened to kill him if he did so. 23. He was questioned on this statement as to whether it was BM or Caroline PW1 who had told him about the alleged killing . He said he did not record in the in the statement but that that Caroline is the one who told him these things. He confirmed that it was not in his statement as to what he alleged Caroline had told him. He confirmed that this case depended on the statement of BM and the postmortem report. He confirmed that everyone at DWA Estate had access to the septic tanks and knew where they were. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4382/eng@2026-02-05 3

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24. The question then is whether at the close of the case for the prosecution there is evidence to warrant the accused being put on the defence. 25. From the evidence on record, it is clear that none of the witnesses saw the accused with the child, or commit the alleged offence. The I.O told the court that the charge against the accused was dependent on the evidence of BM and the post mortem. 26. The postmortem report was that the cause of death was asphyxia through strangulation. 27. The accused person was suspected by the mother of the child because of the quarrels they had because of their children, and the alleged suspicious conduct of the accused person. The police picked this suspicion and arrested him, his wife and BM his child. The latter two were released. 28. BM did not testify. Yet he was the star witness, alleged to have been sent to collect the child , deliver the child to the father, watched the father kill the child and received a threat if he told anyone about what he had seen. 29. This remains hearsay and is not admissible against the accused person as BM did not testify. The prosecution did not explain why he was not called and the only presumption is that his testimony in court would not have supported the case for the prosecution. 30. From the I.O’s testimony, BM’s testimony was recorded by a Ms. Wanje. This officer did not also testify. The I.O was also not clear about the source of the information on how the child was killed: whether it was from PW1 or from BM. 31. In addition, the I.O confirmed that the septic tanks where the body of the child was found were accessible to about everyone in th estate. According to PW3 the mother of the child, there were specific employees of DWA company who were responsible for the tank. She testified that the tanks had been opened earlier in the day but the child was not there . It was her view that the body was placed there later. 32. These persons who manned the septic tanks were not called to testify. They did not even record statements to confirm that the tanks had been checked earlier in the day as alleged by the PW3. The fact that there were specific persons with keys to the septic tanks was significant and these persons ought to have been interrogated as to how the body of the child got into the tanks yet they had the keys. 33. The police had formed the initial theory that the child had drwoned in the septic tank. The I.O testified that this was debunked by the postmortem outcome that the child had not swallowed any sewage water. 34. It was the I.O’s testimony that the scene at the septic tanks had been interfered with and they could not get any forensic evidence from there. Other than that, no other investigation was conducted to try and find out where the child was killed from considering the new theory that he was killed elsewhere and the body dumped there. 35. According to ,PW3 she suspected that accused did it in his house. However, no evidence was presented that the accused’s house was searched or his other children questioned. Or that there was any evidence at all to connect the accused with the killing of the child. 36. It is now settled that no amount of suspicion can amount to proof.(Sawe v R) 37. The prosecution has the onus to establish that the accused person committed the offence.(Bhatt v R) 38. Sadly, in this case the only fact that was established was that the child died. The postmortem revealed that he was strangled. Someone or some people committed this heinous act of taking away the life of an https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4382/eng@2026-02-05 4

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innocent child. However, despite being the suspect, the prosecution did not present evidence to this court to show that it was the accused who committed the offence. 39. In the circumstances, I find that the prosecution has not established prima facie case to warrant the accused being put on the defence. 40. I find that the applicable provision of the CPC is s. 306(1) . I make a finding of not guilty, dismiss the charge and acquit the accused accordingly. DATED SIGNED AND DELIVERED THIS 5TH DAY OF FEBRUARY 2026 MUMBUA T MATHEKA JUDGE In the presence of: CA Mwiwa/Daniel Accused Mr. Hassan for accused My Musyoki for the state https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4382/eng@2026-02-05 5

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