Republic v Emmanuel Matthew Agoya

taken to Tanzania. After some days, she was called to the Namboboto Dispensary, where she found the deceased. The accused informed her that he had heard the deceased screaming at night, and he went and picked her, and stayed with her, and took her to hospital. She described the accused as a neighbour. 4. PW3, Christine Agutu Juma, was a neighbour of Abara, the employer of a maid identified as R, alias DJ. He saw Lina at the door to the home of Abara, and then she went to the home of Mang’eni. She later said that she saw Lina leave the home of her employer, Leon Barasa. A boda boda rider came, and R mounted the motorcycle of the boda boda operator, carrying a child and a bag. She later heard that the child was lost. She heard from the wife of Abara, that her child, Rembo, was lost. She said that she knew the accused, but she could not tell the connection between him and the instant case. 5. PW4, Leon Barasa Ogutu, was the employer of Lina. He testified that when he went home on 25th April 2025, after closing his business premises, at 9,30 PM, he did not find Lina at home. His wife informed him that Lina had gone to Kisumu, for a funeral. The next day, he was informed that Lina had left with the child of a neighbour, who he identified as Christine Agutu. He closed the shop and went to the home, of the missing child, who he identified as Rembo. The parents said that they were not aware that Lina had left with the child. He went to the police, and established that a report had already been made there, of the missing child. On 2nd May 2025, someone telephoned him at dawn, telling him that Lina was at a clinic at Bukina. He rushed there and found Lina there. He took her to the police, where she was arrested. He was instructed to inform the parents of Rembo. He got the mother of Rembo, and asked her to inform Mang’eni, and advised them to go to the police station. At 8.00 AM, he heard screams from Namboboto Clinic, as if someone was mourning. He rushed there, but was not allowed to get in. He, instead, heard that the child, Rembo, was at that hospital, and had died. He said that he knew the accused, but he could not tell how he was connected to the matter. 6. PW5, Albert Ojiambo Ouma, was a boda boda operator. He testified that he had heard, on 25th April 2025, that a child, called Rembo, had disappeared. On 2nd May 2025, the accused, also known as Obichu, hailed him, and asked him to take him to his home, at about 8.00 AM. The accused told him that he had a sick child, who had been brought by the wife of his younger brother, and he wanted him to take the child to hospital. He saw the child, at the home of the accused, lying on a mattress, with blood on her body, and a wound on the side of her mouth. The child was covered in such a way that only the head was visible. He declined to take the child out of the house, to hospital, arguing that it was a police case. The accused said he would get another boda boda operator to assist him, and PW5 took him to the stage. After that, he went on his usual errands. Later in the day, he heard that the child the accused took to hospital had died. He went to the hospital at Namboboto, and saw the body of the child, and identified her as a child of PW1. He noted injuries at the neck and face, which appeared to have had been inflicted with a knife. He rushed to the police station and reported. He escorted the police to the house of the accused, where they demolished a toilet, looking for a knife, but recovered a baby-feeding bottle. He said that he found the deceased in the house of the accused, who informed him that the child had been brought by a girl, who ran had away. 7. PW6, Michael Okello, was the second boda boda operator that the accused approached, for assistance to move the child to hospital, on 2nd May 2025, at 8.00 AM or thereabouts. At the home of the accused, he did not enter the house, but the accused did. The accused came out with a bag and the child. The child had blood, although he did not note any injuries. When he enquired, from the accused person, whose child it was, he said she was a daughter of his brother, Collins. PW6 telephoned Collins about the matter, and he said he was away, and was unaware of what was going on, and he, Collins, asked him to go to his home to confirm. He called the wife of Collins, who said that her child was in school. He took the accused and the child to hospital, and then went for the wife of Collins, and also brought her to the hospital. She said that that child was not hers. Another person came in, who said that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4648/eng@2026-04-10 2

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child was called Rembo. PW7 then left the scene. He later heard that the child had died, and he went and confirmed the same. 8. PW7, Daniel Ochieng Odhiambo, was a government analyst, working with the Government Chemist. He received an exhibit from the police, for analysis, being a white substance in a blue bottle; stomach contents; pieces of the intestines, liver and kidney; and urine. He did the analysis. There was a pesticide, detected in the whitish liquid. No poisonous chemical substances were detected from the other samples. He stated that the pesticide would be fatal, if ingested. He said that the other samples were preserved in formalin, which was wrong, as formalin was itself a chemical, which could react with the samples, and contaminate them. He asserted that the samples should have been presented while fresh. 9. PW8, Dr. Dixon Mchana, was the pathologist who conducted postmortem on the body of the deceased. He noted superficial wounds on the right chin, and the outer side of the right knee. There were also other superficial injuries on the right index finger and palm. There was evidence of recent medical intervention. Internally, the lungs were inflated, with excess froth in the airways. There were dark spots on the surface of the heart. The stomach and intestines were filled with blood, and had a chemical smell. The liver and all the abdominal organs appeared dark. The blood vessels in the brain were filled with blood, and there was pressure in the brain, which meant that the brain was swelling beyond its boundaries. He concluded that the cause of death was asphyxia, secondary to chemical poisoning. He took samples, for toxicology, being urine, kidney, intestines, stomach, liver and gallbladder, for deoxyribonucleic acid, DNA, analysis. He handed the samples over to the investigating officer. 10. During cross-examination, he explained that he was not able to tell the drugs administered during the medical intervention, but as the cause of death was chemical poisoning, a toxicology was necessary to confirm his findings and conclusions. He further explained that one limitation of toxicology was embalming, for formalin, used for that process, interfered, by way of causing contamination. He said he used the sense of smell, to determine what might have caused the death. He concluded that the smell he detected was of a chemical, and he wanted toxicology to identify the chemical. 11. PW9, David Kiara Muthoni, was another analyst, from the Government Chemist. He received 3 samples from the investigating officer, for analysis, being 2 bedsheets and a cartilage from the deceased. The bedsheets had a red coloration, which he identified as blood of human origin. The DNA, generated from the bloodstains on the bedsheets, were identical, and matched the DNA from the cartilage taken from the deceased. He concluded that both the cartilage and the bloodstains from the bedsheets all came from the deceased. 12. Collins Owuor Oremo, was a clinician at the ACK Namboboto Health Centre. He stated that he attended to an unknown African child, on 2nd May 2025. She was brought in, at 9.00 AM, sicklylooking, pale and dehydrated. Her pulses were weak and feeble. She had cut wounds on her chin and neck, which were not freshly bleeding. She was brought in unconscious, with feeble pulse, and he initiated resuscitation, but she succumbed in the process. 13. PW11, No. 7XXX Police Corporal Peris Kinei, received a report of a missing person, on 26th April 2025, from PW2, the mother of the deceased. She detailed the steps taken, with respect to tracing the whereabouts of the missing child. The principal suspect, Lina, eventually showed up, and was arrested. Information was received, on 2nd May 2025, that there was a child at the Namboboto health Centre, and by the time PW11 got there, the child had already been declared dead. She collected exhibits, and arrested various suspects. The accused was arrested at the Namboboto Health Centre. 14. PW12, No. 9XXX Police Corporal Moses Maina Muraguri, was a scene of crime officer. He processed photographs, that had been taken by Police Constable Kevin Munyoki. PW13, Police Constable Kevin https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4648/eng@2026-04-10 3

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Munyoki, investigated the matter, essentially taking over from PW11. He detailed all the steps that he took in the process. He was the last witness for the prosecution. 15. At the close of the prosecution case, the Advocates for both sides made oral submissions, on whether a prima facie case had been made out, to warrant the accused person herein being put on his defence. Mr Onanda, for the Republic, urged that whatever evidence had been presented should be considered, and the accused ought to be found to have a case to answer. Mr Okutta, for the accused person, submitted that the accused was not established to have had done anything to the deceased to cause her death, and that mens rea, on the part of the accused, had not been established. 16. At this stage, I am not required, as the trial court, to ascertain whether the evidence adduced established a case against the accused person, beyond reasonable doubt, but rather whether the evidence was adequate to require an explanation from the accused person. If it is not adequate to require the accused to answer to any material pointing to his complicity, then a finding that there is no case to answer should be made. However, if the circumstances place the accused in a situation where his explanation would be necessary, then a case to answer should be the finding to make. One of the key tests would be whether a finding of guilty could be entered, on the evidence adduced, in the absence of an explanation by the accused, should he elect not to testify in his defence. 17. Before I venture to assess whether or not adequate evidence has been adduced to require that the accused be put on his defence, I should assess the evidence tendered as against the elements that comprise the offence charged, murder. That, I believe, should assist me, in evaluating whether a prima facie case has been established against the accused person herein. 18. The offence of murder has 4 elements, which the prosecution is required to prove, to establish it. These are proof of the death, the cause of it, the role of the accused in the causation, and the presence of malice aforethought on the part of the causer or perpetrator. 19. On proof of the death of the deceased herein, there are the testimonies of PW1, PW2, PW5 and PW6, all relatives or neighbours of the deceased, who saw her body, at the hospital, and some at postmortem. PW8, the pathologist, performed postmortem, on her body. PW10 was the clinician who was attending to the child, when she died. PW11 was in the team of police officers who went to the health centre after the child had been declared dead, and saw her body. There is overwhelming evidence, therefore, that the deceased in fact died. 20. On the cause of death, the testimony of PW8, is crucial. He noted cut wounds and lacerations on various parts of the body. He, however, dismissed them as superficial, and unable to have caused the death. He fingered poisoning as the cause, for there was smell of a chemical, from the internal organs of the deceased, that he had examined. What caused the death, according to him, was the chemical poisoning, leading to asphyxia. 21. On the causation, there is no direct evidence. None of the witnesses saw the accused person doing anything to the deceased, which would have caused the injuries noted by the pathologist. More crucially, none of them saw him feed her with any poison or chemical that would have caused the asphyxia alluded to by the pathologist. 22. This was a case of a child who had been reported to have had disappeared. The evidence, on the circumstances of her disappearance, pointed to a certain Lina, who had been an employee of PW4. She had been charged jointly with the accused herein, but the report of the psychiatrist indicated her to be unfit to stand trial, by a letter dated 24th June 2025, hence the case proceeded only against the accused herein, Emmanuel Matthew Agoya, following an order made herein on 2nd July 2025, while Lina was referred to the Mathari Teaching and Referral Hospital for treatment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4648/eng@2026-04-10 4

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23. When the deceased was eventually found, she was not with Lina, but the accused herein. Lina did not feature at that stage. The deceased was found at the house of the accused, sickly and injured, and requiring medical attention. It was the accused who took her for medical intervention, and that was the point at which she died. The evidence placed the accused and the deceased together, at the time of her death. Those circumstances would suggest that he had a hand in the death, for she was traced to his house, where the incriminating exhibits were recovered, that is to say the bedsheets with her blood, and the whitish fluid in the baby-feeding bottle, which was established to be a pesticide by PW7. PW8 had found chemical poisoning to have been the cause of the death. 24. The cumulative effect of all that evidence would suggest that the accused was found, figuratively, with his hand in the cookie jar, or with blood on his hands, as it were. The evidence placed the deceased in the custody and control of the accused person shortly before her death. That would require an explanation, as to how that child, who had been reported missing, showed up in his house, injured and sickly, and dying, and in fact died shortly thereafter. That would be more so, where the accused person does not appear to have had involved the police, in the matter of the child, if, as submitted on his behalf by Mr. Okutta, he was only a good Samaritan, who was only assisting the child, after allegedly finding her, upon hearing her cry in distress at night. Of course, the remarks, made by Mr. Okutta, are of no evidential value, for they were made from the Bar, and the accused is yet to testify. 25. The legal burden of proof, in criminal cases, is always on the prosecution, it never shifts to the accused. However, there is also the evidential burden. It falls on both sides. Initially, on the prosecution, to establish the allegations made in the charge, against the accused, and shifting to the accused thereafter, depending. Where the prosecution discharges the evidential burden, the trial court would find that a prima facie case has been established, to require the accused to answer the charge, in which event the evidential burden would shift to the accused, to explain himself. Where the prosecution does not discharge the evidential burden, there would be no case to answer, and the evidential burden would not shift, to require the accused to adduce evidence or to explain himself in answer to the charge. 26. The evidence, adduced by the prosecution, has not directly established that the accused was responsible for the disappearance of the child, but it establishes that the child was in his custody and control shortly before she died. It would not be for the prosecution to establish how the accused came to have custody and control of the child. That burden, to render that explanation, falls on the accused. The evidence given, to explain that, could exonerate the accused, and displace the evidence tendered by the prosecution. Where the explanation fails to so displace the prosecution case, it would be open to the court to convict, for circumstances would exist, from his having custody and control of the child, shortly before the child died, from which inferences could be drawn, that the accused had something to do with the disappearance of the child and her eventual death. The prosecution has adduced adequate evidence to cause the evidential burden to shift to the accused person. The prosecution evidence has established a circumstance, from which inferences could be drawn, in the absence of an explanation by the accused, that the accused person was complicit in the disappearance and death of the deceased. 27. On malice aforethought, the law, in section 206 of the Penal Code, establishes it as the mens rea requisite for the offence of murder. It could take the direct form of an intention to kill, mouthed by the accused or disclosed in writing. It could take the form an indirect intention, to be inferred from the conduct of the accused person or the circumstances of the killing. It could be inferred from evidence of an intention of the accused to commit some felony, other than the killing, which results in the death. 28. The circumstances of the death of the deceased herein does not point to a direct intention on the part of the accused, for no evidence was led, pointing to him expressing, whether orally or in writing, that he desired to cause the death of the deceased. However, the circumstances of the death herein, in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4648/eng@2026-04-10 5

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the absence of an explanation, by him, could lead to an inference being drawn, that there was malice aforethought on his part. The facts of the disappearance of the child; her showing up or materialising in the residence of the accused, looking weak and injured, not so long before she died; and the presence or recovery of incriminating material, the bloody bedsheets and the bottle laced with a pesticide, in that residence, could be pointers to existence of malice aforethought. 29. Based on the analysis above, it would be my conclusion that there is adequate material, upon which it could be held that the prosecution has adduced adequate evidence, to establish a prima facie case against the accused person, to require him to be put on his defence, for he has a case to answer or an explanation to make. 30. I, consequently, find and hold, based on the recorded evidence, that a prima facie case has been established against the accused person herein, Emmanuel Matthew Agoya, to answer for the murder of Shantel Kadogo alias Rembo, and I, accordingly, put him on his defence. The matter shall be mentioned, on 6th May 2026, for fixing of dates for the defence hearing. Orders accordingly. DELIVERED, VIA MICROSOFT TEAMS, DATED AND SIGNED, AT MILIMANI, NAIROBI, ON THIS 10TH DAY OF APRIL 2026. W MUSYOKA JUDGE Mr. Arthur Etyang, Court Assistant. Advocates Mr. Onanda, instructed by the Office of the Director of Public Prosecutions, for the Republic. Mr. Wycliffe Okutta, Advocate for the accused person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4648/eng@2026-04-10 6

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