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Mwingi District Hospital, in Mwingi Sub County within Kitui County, the accused persons, jointly with others not before Court, murdered Ngadi Malia” 3. The accused persons pleaded not guilty 4. The prosecution called twenty-one (21) witnesses in support of its case. Prosecution’s case 5. PW1 was a protected witness whose evidence was that the witness was at work at Mwingi Level Five hospital at outpatient where the witness had reported at 2:00 pm and continued to 6:00 pm. At 6:50 pm, a patient arrived from (withheld). He was 27 years old. He had head injuries secondary to gunshots. When patient arrived, the nurse gave him first aid and took history from patient who said he had been shot and had pretended to be dead, then crawled up to the road and a good Samaritan took him to Ukasi Police Station, then Ukasi Dispensary. This was also in the treatment notes from the dispensary. PW1 wrote his/her own notes of 24/08/2016 at Mwingi Hospital and produced the certified copies as P.Exb 2. 6. PW1 admitted the patient for an investigation. Nurse by the name Nzabu took the patient though radiotherapy and X-rays were done.PW1 continued with his/her job and left at 8:00 pm. 7. The following morning, PW1 reported to work at 8:00 am and heard that there was a man at the male ward who had been shot dead at 2:00 am. PW1 realized it was the same patient he/she had dealt with the previous day. PW1 recorded a statement in Machakos on 25/08/2016. PW1 saw the body which was taken to the morgue; saw injuries on abdomen penetrating inwards. The floor cemented floor was damaged. The patient was not known to PW1 and PW1 did not know who shot the patient. 8. On cross-examination by Mr. Muchoki, PW1 said that he/she used to work at Mwingi Hospital and was a registered clinical officer qualified in 2012. PW1 had worked six years since July 2013 with duties of treating in and out patients. On 24/08/2016, PW1 received patient Ngandi Malia at 6:50 pm. He was out of danger. He only had referral notes but no other identity documents. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 2/85

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He was conscious and alert. He knew where he was. He said he was taken from his house in Kitui and told to lie down (facing down). He was able to tell when he was at a Petrol station. Patient came with referral notes. The referral notes said he was conscious when taken to Ukasi Dispensary. PW1 admitted the patient, administered some medicine to him and put him on intra-venous (IV) fluids. 9. PW1 had reported on duty at 2:00 pm and was to leave at 8:00 pm but left at 8:30 pm after waiting for a colleague. PW1 got information of shooting at hospital from somebody he/she could not remember. PW1 went to view the body at the ward. It was covered by a bed sheet on the floor. PW1 un covered the body as PW1 was allowed to confirm that a person is dead. PW1 did it out of curiosity as it was not within his/her responsibility to do so. 10. On cross-examination by Mr. Onyango, PW1 said that he/she had diploma, qualified as o a clinical officer, worked with doctors and would do procedures e.g., operations and . would receive patients as he/she was authorized to do so. PW1 agreed that he/she was not a doctor. PW1 was shown treatment notes of Ngandi Malia, 27 years old male dated 24/8/2018 marked as DMFI -1. PW1 conducted physical and local examination on the patient. Physical was General. Local was of the affected areas. The witness noted injured area had – yellow bandage back side of the head. It was covering the wound at the back of the head. It was alleged to be a gunshot wound. PW1 removed bandage and viewed the wound. PW1 saw about two gunshots wound at the back of the head. 11. PW1 could not tell the actual location of specific wounds in head and back. PW1 had worked in the hospital for three years. PW1 noted cut on ear, bruise on right eye. The patient told PW1 that he was forced into a police motor vehicle and told to lie facing down. PW1 believed his story. The patient told PW1 that he pretended he had died. PW1 agreed that he/she didn’t know any of the accused persons. 12. In the ward next morning, PW1 found body lying on the floor. On the night of the shooting there was a doctor in charge. There was radiographer and a doctor on call Doctor Nkulete. When PW1 went in, it was a crime scene. PW1 uncovered the body. No police officer was present. Police came and left. PW1 wanted to confirm whether it was same patient he/she dealt with previous day. PW1 saw injuries. There were penetrating injuries on the abdomen. People The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 3/85

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walked in and out. Scene of crime was not protected. Anybody could see him. The floor was damaged. Shooting evidence on floor was visible e.g., cracks. 13. PW2 was a protected witness and his/her evidence was that he/she was on night duty at Mwingi district Hospital. The witness reported on duty at 7:30 pm and was given a report that there was a patient brought from Ukasi Dispensary with gunshots. They would get reports as they signed in. Towards 10:00 pm, PW2 went to maternity ward and as he/she walked towards ward, he/she saw two gentlemen ahead of him/her. They walked ahead. There were no lights outside. PW2 caught up with them. PW2 saw them outside his/her department and asked them “habari zenu naweza wasaidia” they never answered. They were facing the other side. PW2 saw their backs. 14. PW2 opened the door of ward , entered and closed it. The two men were still outside. PW2 heard them talking between themselves. The language was Kikuyu language. PW2 went through another door to the patient and talked to him. The patient said he was Ngandi Malia. He was with a relative , one Mutua. As they talked, PW2 covered him. PW2 started taking particulars and sought what happened. The patient told PW2 that he was hungry. PW2 took blood pressure which was very low. The patient was anxious and said he had been shot by a gun. PW2 went to another room and asked patient whether he had seen people walk out. PW2 and Mutua opened the door but they were not there. While PW2 checked door, he/she saw them come in. PW2 knew them via the jackets they wore - one green colour and other black. 15. PW2 decided to call in charge and said that he/she was seeing a stranger within the ward. PW2 told her to call doctor to see the patient. Another patient said there was food which could be given to the patient Ngandi. The Patient said he afraid and wanted to be hidden. He said he called his (withheld) to come for him. PW2 asked him his problem. It was at 11:00 pm. PW2 went to the patient and heard footsteps. Nzambu came with two persons . She told PW2 that they were policemen to see patient. They talked to the policemen. They said they were to get security for the patient PW2 left with Nzambu . While outside, the (withheld) of Ngandi and another came. 16. Doctor Nkulete came and saw patient. The (withheld) and another came to see patient. After doctor left, they talked to him. PW2 was insecure and told doctor to go with him/her. PW2 remained with patient. PW2 waited for security but it never came. At 2:00 am, PW2 heard a gun gunshot. PW2 was in a The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 4/85

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separate room. There were more than ten gunshots. PW2 heard Patients screaming. “The (withheld) to Ngandi said “You are killing him in my presence?” PW2 switched off his/her phone. PW2 heard Nzambu calling. She asked whether PW2 was there. Also, in charge of hospital M O H and two policemen who had come earlier with Nzambu. PW2 came out and went to where patient was and saw him on the floor lifeless. 17. PW2 saw his body. Blood was on the floor. The police took over scene. They moved patients from that room to another place. PW2 left at 8:30 am after hand over. PW2 returned the following day. The body had been removed and taken to a morgue. The following day PW2 was contacted by police. PW2 identified a request for an x-ray by a radiologist-P.MFI – 1, a card which PW2 wrote of R4/8/2016 - P.Ex 2, a referral letter/ note Ukasi Dispensary of 24/08/2016 -MF1 2. PW2 couldn’t identify the two people who were walking ahead of him/her in hospital. PW2 could remember the physique of the two men. PW2 recorded statement at police station. 18. On cross-examination by Mr. Muchoki, PW2 said that he/she was a nurse at Mwingi Hospital. His/her duties were to take care of patients. On 24/08/2016, PW2 reported at 7:30 pm. There was a handover done by Ann Njenga. . PW2 did not receive the patient Ngandi Malia but knew he was there during handover and knew that patient was coming from Ukasi. The nurse in ward gave same information. By time of handover, the patient was not in ward. 19. PW2 was not aware that the patient arrived at 6:50 pm. After hand over, PW2 attended patients in surgical ward. By then, Ngandi had not been brought there. Handover was thirty minutes. At 9:00 pm, PW2 was in ward and Ngandi had not been brought to the ward. At about 9:00 pm, PW2 walked headed to maternity ward and saw two men at around 10:00 pm. From maternity, PW2 was going to male surgical ward along corridor and saw two men around thirty metres away. The light was available but not well lit. When walking they went to dark area. PW2 could tell what they wore. One was in light green jacket and another black jacket. They were tall and light. PW2 saw x-ray of 24/08/2016. PW2 reported on duty on 24/08/2016 and the incident was at 2:00 am. 20. On cross-examination by Mr. Onyango, PW2 said that the police arrived and took over the scene after 3:00 am. Other patients were removed from scene. The place was closed by police to stop interference with scene. The place had three doors. The scene was protected. The doors were closed to protect The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 5/85

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access to scene. PW2 left hospital at 8:30. The medical superintendent was allowed to the scene. 21. PW3 was a protected witness and his/her evidence was that on 24/08/2016 he/she was at Nairobi and received a call from a girl friend of his/her (withheld) Ngandi Malia. She had received information that Ngandi had been arrested by policemen. PW3 decided to tell relatives. The girlfriend later told PW3 that Ngandi called her. PW3 heard that the people who arrested Ngandi tried to kill him. PW3 told the girlfriend to give number Ngandi was using. PW3 was given a number and called Ngandi and was given number of a doctor at Ukasi Dispensary. The doctor told PW3 that the patient was there and had gunshots and had been given first aid. Doctor said they were looking for means to take him to Mwingi general Hospital. PW3 told relatives and planned to travel. PW3 travelled at 6:00 pm and arrived at 10:30 pm at Mwingi. PW3 talked to the gatemen and was told it was not visiting hours and thus could not be allowed in. The gateman talked to nurse on duty and then PW3 was allowed in at11:00pm. 22. PW3 was with a friend from Nairobi and when they entered, they were told to wait first. As they were waiting, two people arrived with two watchmen and talked to the watchmen. They said they were CID officers from Mwingi to talk to the patient. They asked who PW3 and the friend were and PW3 said they were relatives. PW3 told them how he/she got police call while at Nairobi and came to see patient. The doctor allowed the officers to talk to patient and they went with nurse. 23. After about 15 minutes, they came out and left and PW3 was asked whether they found patient and talked with him. PW3 gave food to patient and he told them what happened. He told them that there were four officers who arrested him at Kitui and took him into a white land cruiser where he was forced to lay facing down. They went to Kitui police station and took another police officer who he described as (waria). The police officer asked them where they were going and they said to Ukasi. After a short while, they stopped and all officers went to the bush with Ngandi. They ordered him to face downward and shot him five times. He then pretended to have died. The officers said they had finished him and left. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 6/85

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24. Ngandi used his shirt to wrap his head as he was bleeding. He crawled to the road and saw boda boda person who he asked to help him go to a hospital. The boda boda person took him to road block where he got a note and took Ngandi to Ukasi dispensary where he got first aid. The doctor at Ukasi called Ukasi police station and Ngandi was taken to Mwingi District Hospital by a police motor vehicle. He was appearing fearful. “Alikuwa anawaza sana”. 25. PW3 and friend saw a door open and thought it was the wind. The friend closed it but it opened again. Two people were at the door one pushed him and he fell, the other remained at the door, while the other one went straight where the patient was in bed. The Patient said it was the same person he who took him to the bush and said; he has come “kunimaliza” PW3 was seated on different bed opposite him. The man removed pistol and started shooting. He shot three times and PW3 asked him why he was killing his/her (withheld) in his/her presence “what has he done to you? The person continued to shoot. Patients went under the beds. PW3 was seated there and fell down and hid under the bed. 26. The patient fell down and officer continued to shoot him. Shooting continued until patient died. PW3 could see shooting going on while under the bed. PW3 couldn’t tell the number of shots fired. Then the officer left. After 30 minutes to one hour, police officers came. Nurses told them to leave the ward. When PW3 woke up, he/she saw police officers and nurses. The patients and relatives were removed from the ward and taken to another room. 27. PW3 stayed up to morning then CID officers from Machakos came to investigate. PW3 and others were taken to another room where they recorded statements and then went home. They never went back to hospital. PW3 heard that post mortem was done but never attended. They received the body for burial. PW3 saw the person who was shooting. He was black and not too tall but medium. He wore black jacket. PW3 couldn’t remember the trouser colour. He held gun with right hand. PW3 could identify the person if he/she saw him. PW3 could not identify the person who was shooting. PW3 never saw the photos of the deceased. PW3 identified the photos of deceased at hospital after shooting - Twenty pictures MFI 3. i. See the hospital and bed. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 7/85

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ii. Bed where the patient had lied on. iii. Ward. iv. Bed patient was sleeping on. v. Covered body. vi. The deceased body. vii. Deceased body. viii. Deceased body. ix. Gunshots at backside. x. Bed he was lying on showing gunshots. xi. The plot (premises he was residing in). xii. Same plot he resided in. xiii. The room he used to occupy. xiv. Same showing room he occupied. xv. The houses he occupied. xvi. Deceased house. xvii. The plot and room he occupied. xviii. Inside room he used to live in. xix. Same room inside. xx. Same room. 28. At his death Ngandi was over 18 years but PW3 couldn’t recall actual age but said he was below 30 years. 29. On cross-examination by Mr. Muchoki, PW3 said that he/she received call from girl friend of Ngandi known as Esther Muthoni. PW3 knew her by then. PW3 received call between 10-11 am. Muthoni told PW3 that Ngandi had been arrested. PW3 went to tell relatives about it. Muthoni said he had been arrested by police officers of Kitui. She was told by care taker of the plot through phone call from care taker. She called PW3 later and told PW3 that Ngandi told her that he had been shot and officers tried to kill him. She told PW3 that he had been arrested about 7:00 am. 30. PW3 called Ngandi via phone number given by Muthoni. PW3 did not know it off head. PW3 talked to Ngandi on phone. He lost wallet with money and his phone. When PW3 called, boda boda person responded and gave the phone to Ngandi. The phone was owned by boda boda person. Ngandi told PW3 that he reported at road block. PW3 also talked to doctor at Ukasi Dispensary and identified himself/herself. Doctor told PW3 that Ngandi was brought by a boda The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 8/85

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boda person with gun shots and he was giving him first aid. Ngandi said that while at the bush after being shot, he could hear and had not lost consciousness. PW3 informed relatives the same information from Ngandi and called a friend who agreed to accompany him/her. 31. Ngandi said that he was arrested by four officers and he knew them. The fifth one was added at Kitui police station and didn’t know him (Woria). PW3 couldn’t remember whether Ngandi said that he was blind folded when taken to the bush. The four included driver and the 5th was a woria from station Kitui. Ngandi remembered woria was shooting him. Ngandi never told PW3 whether he was tied when he was taken to the bush. PW3 and friend arrived in hospital between 10-11 pm. They entered hospital past11:00 am. Ngandi explained what happened and showed them gun shots – head (behind) backside, side of head. He had no shirt. He covered himself with bed sheet. He had torn his shirt to wrap his bleeding head. It was besides the bed. At 2:00am the doctor opened and PW3’s friend closed it. They did not see who opened it. 32. PW3 could not see anybody. The second time the doctor opened and PW3’s friend went to shut it a man hit him with shoulders and he fell and PW3 screamed . Ngandi said that said These are the people who wanted to kill me in the bush and have come to finish me. He could see the two people. One at the door and one who came near the bed. PW3 saw both of them when Ngandi was shouting and in panic mode when he said that the one who entered was not holding a gun. He removed pistol from waist. He never said anything. The man who shot was medium height, black. There was a thin person who remained at the door. He was brown. He wore white cap. PW3 couldn’t remember the colour of the clothing. When one man entered, he started firing shooting Ngandi. After three shots, PW3 talked to him. He shot one by one not in quick succession. He shot from stomach upward. PW3 had panicked but was conscious of what was happening. The other shootings were in quick succession. When he fell from bed, the officer continued to shoot him. 33. While patient was down the shots were many. Then the one shooting and one at the door left together. When police came, PW3 moved out from under the bed and was taken to an identity parade. PW3 identified a person in the parade. PW3 identified the person who shot Ngandi. PW3 didn’t see any of the persons in court. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 9/85

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34. On cross-examination by Mr. Onyango, PW3 said that Ngandi said he knew the officers who arrested him. He said they were four of them. He said they were not in uniform. He said they were CID officers from Kitui Police Station. He told PW3 that while in the land cruiser, he was ordered to lie facing downward. He was with three officers and one officer went to drive the motor vehicle. He told PW3 there were no other officers save the four. At the road block he knew it was a road block who stopped the motor vehicle and asked ‘mnaenda wapi’? After crawling to the road, he went to same roadblock and was asked what happened and he said the police wanted to kill him. 35. He was given note to go in the hospital. He saw bush as he was not blind folded. When they alighted from motor vehicle, he saw bushes. There were five officers. At police station one officer did alight. He told PW3 that he was still facing down lying down. At the police they stopped by road side. He was removed and taken to the bush. He was ordered to face downward and woria started shooting him at the bush. Other officer added shooting when he faced downward. They were saying waria is a sharp shooter. 36. The size of the ward was same size of the court room. The doctor was like at the witness box. The beds were about three or four from the door. The head was next to the wall. When two officers came, he saw both. When PW3’s friend screamed, Ngandi looked and saw the two officers. PW3 and friend stood at the door. One entered. The lights were on. PW3 saw the person who was shooting but did not see him in court. PW3 was seeing the accused in court for the first time. PW3 did not see them in the identification parade. PW3 went to identification parade 10 days after the incident. 37. PW4 was a protected witness and his/her evidence was that; on 24/08/2016, PW4 was in Nairobi and was called by a friend and told that the friend’s (withheld) was involved in accident and was in Mwingi hospital. It was at 10:30 am. PW4 agreed to accompany the friend and they left at 6:00 pm and arrived in Mwingi at 10:30 pm. PW4 was informed the (withheld) had been shot. They bought food for patient in Mwingi before going to hospital. They were stopped at gate to confirm whether there was a patient to be seen. They waited at the gate and were denied entry as two strangers had entered. They were taken to another place and told to wait for a nurse was to escort them. They waited next to maternity ward and later entered and saw the patient who talked to them. It was now 12 -12:30 am. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 10/85

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38. The Patient told them he was taken from his house in the morning by four officers who were not in uniform. He said he knew them. He used to see them at Kitui. They asked him if he was the one and he said yes and they took him to the motor vehicle where he was put in lying facing downward. They took him towards Garissa. They went towards Garissa. They stopped on the way and took him to the bush. He was told to lie down facing down and was shot with a gun. They shot him head and back side. He said he had three shots on head and one on the back. One officer said that with all shots he could not survive. Patient pretended to be dead. They left him there. 39. Later he wrapped his vest shirt on head and crawled towards road. He saw boda boda person and told him to take him where he could get help. They went to road block where they found police officers. He told them what had happened. The boda boda person took him to dispensary where he got first aid then he was taken to Mwingi hospital and arrived at 7:00 pm and was admitted. He had bandage on head and at the back side. He was stable and conscious when talking to them. PW4 didn’t see his back as he lay on his back. He ate food. They stayed with him and the door was opened. PW4 closed it and then opened third time. PW4 went to close it and a person knocked PW4 down. PW4 met the person who pushed him/her. He was a tall man. The patient said they were there to finish him. PW4 saw one person and felt shaken. PW4 couldn’t describe clothes as he/she was shaken. PW4 was still down when patient said “Ni hao wamekuja kunimaliza”. When shooting started, PW4 went under the bed and heard footsteps of the man going to shoot the patient. 40. PW4 hid under the bed. Several shots were fired. They were more than 10 times. The patient fell down from bed when he was being shot. PW4 saw patient later on the floor. That was after the attacker left the place. PW4 was fearful thus did not move out of under bed until two officers came. The officers asked what was happening. They told them that, somebody entered, shot patient and left. Many people came. Some people came later and told people not to go close to that place. They said they were police officers. PW4 was taken to another room in the hospital. PW4 and friend were removed from that ward. PW4 couldn’t remember up to what time they stayed there. They stayed up to morning and were taken to write statement recorded by police officers from Machakos. PW4 left for Nairobi and the friend went home to Kitui. PW4 never went back to hospital again. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 11/85

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41. PW4 did not see or identify the person who attacked patient. PW4 saw patient lying down after the shooting. They never talked to patient again. The (withheld)-PW3 said the patient was already dead. \. Patient was over twenty years of age. PW4’s friend told him/her that name of the patient was Ngandi Musyimi. 42. On cross-examination by Mr. Muchoki, PW4 said that they left Nairobi at 6:00 pm and arrived in Mwingi at 10:30 – 11:00 pm. They were stopped at the hospital gate by the watchman for about one hour. They were told that strangers had entered the hospital. The patient said he entered hospital at 7:00 pm. The strangers entered hospital after patient was admitted. They were told that the strangers were two men. The patient told PW4 and friend that he was taken from his home and taken to Garissa side. Patient said he had been shot. PW4 saw bandage on head (behind) and two both sides and the back side. He was having a sheet. He had his shirt on the bed. Patient told them he was shot side of Garissa in the bush. He said boda boda took him to the road block on the Garissa Road side. 43. The door opened and PW4 shut it again twice. The third time PW4 went to close, he/she met a person at the door step who pushed PW4 with hand backward and PW4 fell behind the door. That was the side patient bed was located. PW4 was so shocked 44. PW4 heard three footsteps towards patient. PW4 didn’t see the type of clothing and did not notice the body structure. PW4 saw a tall person. PW4 was not able to rise up and never screamed upon falling. PW4 heard more than 10 shots. During shooting, there was no screams. People kept quiet. PW4 only heard before shooting “Hao wamekuja kunimalizia” PW4 didn’t see patient fall nor hear him fall from the bed. From PW4 to patient bed was like two steps. PW4’s friend sat next bed next to patient. The friend never said anything. The incident took like five minutes. PW4 only saw one person. The door was metal door with glass on top. The patient’s name was Ngandi Musyimi. 45. On cross-examination by Mr. Onyango, PW4 said that when the person came in, he/she was beside the door. The door opened inward. PW4 didn’t hear footsteps outside only for one who pushed him/her down. 46. PW5 was Mwangangi Tangili from Ukasi location. He testified that he The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 12/85

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was a farmer and a herdsman. He recalled that on 24/08/2016, he was at Kabongo trading centre taking tea then went to take care of his cattle just near the road. Before reaching, he heard screams from across the road. He identified the voices and ran and met Doris Mwende Mutange, his sister and her two children (aged 5 years and 2 years). 47. He asked what it was and she said that a person (wounded) had found them where she sold charcoal. The wounded person had gunshot wounds on the head. He had remained where they had come from. PW5 went to meet the man and found him sitting on the culvert.. PW5 asked his name and the man said he was Ngandi Malia from Kabati. His eye had been gauged out and he had a wound at the back of head. 48. The bullet was still there. He requested to be taken to hospital. PW5 stopped a Garissa bus to take him to the police roadblock before being taken to hospital. PW5 remained behind and called corporal Kyayoya at the station and reported the matter to him. The next day, the OCS Ukasi police station called PW5 and asked him to get the area elders to assist in showing the scene to the police. PW5 waited for the OCS who arrived and they got elders and went to the scene. 49. The lead elder was Mwikali Mwangangi (lady). She traced the footsteps and reached the scene (100 metres from the road into the forest). At the scene, they found blood, two shirt buttons and bullet head. Officer Kimutai who was with the OCS took all these as exhibits. PW5 went and recorded his statement. PW5 didn’t not know who injured the man. The buttons were white and PW5 identified them -two white shirt buttons MFI 3. PW5 never saw the injured man again and later heard that he died. 50. On cross-examination by Mr. Muchoki, he said that he found the injured man at the roadside. It was not wet. PW5 would not know when he was injured. PW5 found him at 2:00 pm. Mwikali Mwangangi -the elder was PW5’s wife. 51. On cross-examination by Mr. Onyango, he said that it was the right eye which had been injured. PW5 sent him to the roadblock and informed the corporal. PW5 confirmed that he was a police reservist. PW5 wanted the The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 13/85

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corporal to assist in getting a vehicle but he said it was occupied. Mwikali went to trace the footsteps on her own. 52. PW6 was Daniel Mbo Mumube of Ukasi. He testified that his work was boda boda transport. He recalled that on 25/08/2016 he was on duty at Ukasi centre – Barrier area. He was called by corporal Yoya. He rushed there and found him with somebody who was bleeding on the head. PW6 took him to hospital (Ukasi). The patient borrowed PW6’s phone and spoke with his (withheld) in Kikamba. He told (withheld) he was on duty and had been injured. PW6 returned to town. The patient was not known to PW6 and never saw him again. PW6 heard in the news that he had been transferred to Mwingi. PW6 was not called to the station thereafter. PW6 recorded a statement at his place of work. 53. PW7 was George Mululai from Mutomo and a stage attendant of matatus. He testified that on 24/08/2016, he woke up at 4:00 am and went to the toilet. He was at Majengo in Kitui-at a plot where he stayed. As he left the toilet, he met a person who told him to lie down. He complied and was down for ten minutes. He woke up and went to the house and never looked at him. When he woke up, he never saw that person. He prepared and went to work. On 28/8/2016, he was called by an officer from Kitui and he explained all that happened. 54. On cross-examination by Mr. Onyango, he said that he did not know the officer’s name. He was the caretaker in their plot. 55. PW8 was Musyoka Mbuvi from Mwingi. He testified that he was a security officer at level 4 Mwingi Hospital . On 24/8/2016, he was working at level 4 hospital. He reported at 6pm and started to patrol. He finished and went back to the gate and was there with one Maluki. While there, the driver of the ambulance KCD 750 pickup – called Kakule told them that there was a patient who had gunshot wounds. The driver asked them to open the gate for him to go and get an x-ray doctor. They opened and he went and brought the doctor. Later a CID officer arrived wanting to see the patient who had gunshot wounds. PW8 directed him. 56. The CID officer returned after five minutes at around 8pm and said he needed to call those who had sent him but he had no credit. He went to buy The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 14/85

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credit. While away, a CID motor vehicle from Mwingi registration no. KBZ 471Y arrived. It had a driver and another person. The CID man Kiprono who had gone for credit then came with another person saying these were the people he wanted. The motor vehicle left but all these CID people remained for 20 minutes and then left. At 11pm, two women arrived. One was the (withheld) and the other the (withheld) of the wounded person. They did not allow them in because they had food for him. They advised them to look for a place to sleep. There were two prison officers in the hospital guarding a prisoner. 57. PW8 was called to maternity ward where he found the two ladies having been allowed in by the prison officers. He asked Maluki to take the women there. Maluki took them and returned. At midnight, a boda boda casualty was brought. At 2am, he heard gunshots from the hospital. While there, the lab doctor drove out very fast to go get police. They locked the gate and hid in the flower beds. At 3:00 am, he heard sounds of shoes. It was the prison officers who were there. They called thrice and PW8 responded. They were told that the injured man had been killed and asked if they had heard the gunshots. They returned to the gate and stayed there. The hospital driver went for the hospital administrator at 3am. Police arrived and started investigations at about 4am. PW8 recorded a statement and never went to the scene of the gunshots in the hospital. 58. On cross-examination by Mr. Muchoki, he said that he had worked at that gate for one year. On 24/08/2016, there was light though some bulbs were off. Kiprono never showed them his identity card. PW8 just took his word. He said he was from Mwingi. He was in a Kaunda suit. He just came on foot. He went to the x-ray and was there for ten (10) minutes. The KCZ vehicle came with the driver and one person. Kiprono came on foot again with two people after the entry of the motor vehicle. The driver of the motor vehicle just signed the gate book. PW8 never asked him for documents. The gunshots were from the WARD. PW8 heard three gunshots and had never seen the 1st accused before. Kiprono and his people went to the x-ray. After 20 minutes they all left. The injured boda boda person was treated and discharged. 59. On cross-examination by Mr. Onyango, he said that the people in the land cruiser left as well as Kiprono and his two friends. That, the boda boda man drove himself in. He never saw A2 on that day. Those who came with Kiprono were not in court. They had a record at the gate. He could not tell who The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 15/85

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had fired the gunshots. He attended an identification parade but identified no one. 60. PW9 was No. 46295 - Corporal Gideon Mugambi formerly of Mwingi DCI and stationed at Nairobi area DCIO at the time of testifying. On 24/08/2016, he was on night duty at 9 pm when he received a call from Cpl Warutere (who was on leave) saying he had received a message from a nurse friend to the effect that there was a patient with gunshot wounds at Mwingi hospital. PW9 rushed to Mwingi level 4 hospital and found the duty nurse in the maternity ward and told her of the message. She inquired on who PW9 was and he introduced himself. She led PW9 to the surgical ward where the said patient was. 61. Upon arrival, PW9 found the patient with one Dr. Nkulet. He introduced himself and the purpose of the visit and was allowed to talk to the patient. The patient told him he was Ngandi Malia and declined to tell him what had happened. Dr. Nkulet told PW9 that the patient alleged to have been arrested by DCI officers from Kitui and taken to Ukasi area from where he was shot. PW9 called the DCIO Mwingi who was off duty and narrated to him what had happened. The DCIO advised that the Ukasi officers should take care of the situation. PW9 returned to the station and booked the report. The OCS and OCPD had already been informed. PW9 left for his place of duty along GarissaKithioko Road. All along PW9 was with their driver William Koech and P.W woman Janet Akello in motor vehicle registration no. KBZ 471Y (Toyota Land Cruiser white). At around 2:00 am, PW9 was called by an officer (Noah who told him of gunshots in Mwingi level 4 hospital and that he needed to rush there). 62. PW9 returned to the hospital with the driver and P. C woman Janet Akello. PW9 and P. C Akello entered the surgical ward and found him lying on the floor in a pool of blood. There were ONLY patients in the ward. PW9 went to where the body was lying. He was dead. PW9 checked around and P.C woman Janet Akello picked 17 spent cartridges plus 4 bullet heads. The OCS, officers, AP officers and departmental head also arrived. PW9 arranged for scenes of crime officers from Kitui to come and take photos. They came. PW9 returned to the station to make reports in the O.B. At 7am, a team of detectives from Machakos led by CCIO Mr. Kirui arrived and he gave them a brief of what was there. They took the exhibits and took over the matter. 63. They went with the team to Ukasi then to Ukasi police station where they The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 16/85

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were given one bullet head picked at the scene in Ukasi. PW9 recorded his statement and handed it over to the homicide team (Sgt. Muita) from Nairobi. PW9 identified the items. The bullet heads and cartridges were scattered all over the ward. 17 spent cartridges – MFI 4, 4 bullet heads – MFI 5. They placed them in a paper bag. 64. When he reached the ward the first time, the patient had three gunshot wounds at the back of the head. There was bleeding from the wounds. When PW9 went the 2nd time to the hospital, he did not find the attacker . They went to Ukasi because investigations had started. He identified the bullet head recovered at Ukasi. (1st scene of shooting)- MFI 6. The patients were so scared to talk. The staff were not there. They had taken off. 65. On cross-examination by Mr.Muchoki, he said that he was at Gethi Nyundu when P.C Warutere called. The place is about 10kms to Mwingi level 4 hospital. He didn’t have the name of the nurse he spoke to. When he first entered the hospital, he was alone. P. C woman Janet remained in the vehicle. He introduced himself to the patient. He was called the 2nd time. He had not reached the station. P.C Noah told him of gunshots at the hospital. He went to the surgical ward because of the previous incident. The scene had secured itself. It is a closed room with patient’s beds. PW9 would not know if the ward was secured or not. 66. PW9 and PC woman Janet collected MFI 4 and 5 together. They had their gloves (protective gear). After collecting MFI4 and 5, they placed them on the doctor’s table. Thereafter PC Janet brought a khaki envelop in which they placed them. PW9 never marked MFI 4 and 5 for purposes of identification and did not speak to the deceased’s (name withheld). The patient’s (name withheld) was not in the ward. He met him/her after he left the ward. It was the officers outside who told PW9 of his/her presence. The other officers who came accessed the scene. The officers were from Mwingi. They accessed the scene, after PW9 had taken away MFI 4 and 5. It’s only the OCPD and OCS who accessed the scene. PW9 had booked the report after the visit at the hospital. PW9 did not make any inventory of the items before leaving the hospital. He went and booked the report. On his way back, he met CCI Kirui and handed over the items to him. There was no inventory. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 17/85

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67. On cross-examination by Mr. Onyango, he said that P.C Akello took some photos and agreed that she is not a scene of crimes officer. That, the scene was at a hospital which was operational so there was an emergency. He did not prepare an inventory to show what they recovered and what they gave out. PW9 kept the items MFI 4 and 5. The vehicle they used was a white Toyota land cruiser. It was within PW9’s sight and was within the area of the ward. There was no registration number of the motor vehicle given. MFI 6 was given to them at Ukasi police station. 68. PW 10 was No. 231485- CIP Isaiah Mwiranga DCIO Embu East and Formerly (2016-2019) of Machakos county CCIO as an investigator. On 25/08/2016, CCIO Mr. Kirui informed him of a murder case in Mwingi. That was in morning hours (8-9 am). The DCI had directed that the matter be handled by officers outside Kitui county. Mr. Kirui, P.C Kavivi (rtd) PW10, Githinji (driver) boarded CCIO’s motor vehicle to Kitui then Mwingi. They reported to Kitui then left for Mwingi. In Mwingi, they met the acting DCIO (PW9) who gave them a brief. PW9 told them of the recoveries. They met the district commissioner then went to the hospital and met the administrators and were led to where the body was. Patients had been moved. PW9 drew a sketch of the ward (surgical ward) of Mwingi hospital. There were eight beds. The body was on the floor on the southern side between two beds. 69. The deceased was admitted in one of the beds. The bed had bullet holes and the same were on the ground Deceased had two bandages on the head (back). There were bullet holes on the body. There was blood on the floor; the body was on the floor. They were several officers e.g., Mr. Kirui, PW9 among others. PW10 was given MFI 4 and 5 by PW9 in the presence of Mr. Kirui. PW10 took possession of the items and was given certified copies of the deceased’s medical report which he identified in court. It gives a history of the patient. Mr. Kirui and another went to the scene. PW10 was brought another bullet head (MFI 6) from the scene. They went to Machakos through Kitui. They requested and were given the arms movement register for purposes of knowing who handled what firearm. 70. On 25/08/2016 – Maina had a Ceska firearm. A number of officers had firearms and returned them on 26/08/2016. PW10 took the copies plus work ticket for Toyota land cruiser GKB 886E for Kitui and took all the pistols from the DCIO. PW10 identified the inventory which they both signed. It’s dated The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 18/85

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26/8/2016 – MFI 7, Work ticket No. L975450 - MFI 8, Treatment notes for the deceased Admission No. 35386 (Ngandi Malia)- MFI 9, sketch plan drawn by PW10 - MFI 10. 71. PW10 went with I.P Maina and a corporal to Machakos. They were his suspects. Later there was an identification parade but no one was identified by the deceased’s (withheld) and another. PW10 continued with the investigations. The CPL was released. The post-mortem examination was conducted on 01/09/2016 and PW10 witnessed the post-mortem. He took deceased’s blood sample; three spent bullet heads lodged in deceased’s lower part of the head MFI 11, inventory of what was taken from the body dated 01/09/2016 - MFI 12 and Post mortem report dated 01/09/2016 - MFI 13. 72. During the post-mortem, the scenes of crime personnel took photos. He had taken photos right from the 1st scene. The photos are 62 and are accompanied by his certificate. – MFI 14. PW 10 prepared exhibit memo form MFI 15 which he forwarded to the ballistics office with the firearms - MFI 7, MFI 4 and MFI 5 for examination. They were received on 02/09/2016 and a report was sent to them- MFI 16. Only two firearms were identified. Jericho – S/NO KP45302638 & Ceska S/No F3841. 73. PW 10 returned the rest of the firearms to the armory at DCIO – Kitui and also queried the bullets from the Taurus pistol. The expert said the bullets were curved. Firearms movement register – MFI 17. The suspect Ceska firearm was in possession of I.P Maina . The Jericho one was in possession of C.I.P Daniel Thuku (D/DCIO), who deserted the force. I.P Maina was already in their custody. When they went to Ukasi – A2 Paul Odoyo Ngoma was the driver. PW 10 did not know if A2 was armed. He had a Ceska pistol from 21/8/2016. It was not used at the scene. PW10 produced the following: MFI 7, 8, 10, 12, 15 and 17 as Exhibits 7, 8, 10, 12, 15 and 17 74. On cross-examination by Mr. Muchoki, he said that PW9 had visited the scene before them. He couldn’t recall where they went first but they could not go to the hospital first. They went to the D. C’s office with PW9. They also went to the hospital with him. They received the items MFI 4 and 5 from PW9. The cartridges were 17 -he counted them. Kitui could not handle the case because of conflict of interest. Mwingi is under Kitui. PW9 was not a suspect. The The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 19/85

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suspects were from DCIO’s Kitui. They drew no inventory when taking the items and when they received the items, they did not need to document anything because the officers (PW9 Mr. Kirui) were part of the investigation team. They did not have a motor vehicle registration No. KBZ 443Y -it could be a CID number they use at times. The work ticket reads the G K number. The number plate is not the G.K number. 75. The arrest of the accused was on 26/08/2016. He intended to arrest all those who were aboard the vehicle but some disappeared. He didn’t know how many vehicles are attached to the DCIO. They were concerned with the one that went to Ukasi. They did not guess. Their vehicles have network and can be tracked. They use GPRS to track phones. They have a device which they use to track vehicles. There was a witness who was specifically coming to talk about it. The three bullets were recovered from the back of the head. They were fired from the Taurus pistol. They were of 38mm . MFI 4 were the calibre of 9mm. The bullet from Ukasi was from Taurus revolver and it does not remove cartridges. Accused 1 was issued with the Ceska on 23/08/2016 with 14 rounds. It was returned on 24/8/2016. Time was not indicated. It was next issued on 25/08/2016. 76. The shooting took place past midnight. When it was returned on 24/08/2016, it had 14 bullets. It was taken on 25/08/2016 with 14 bullets. PW 10 collected it on 26/08/2016. On EXB 7 item 4 is a Ceska pistol with 14 bullets. 77. On cross-examination by Mr. Onyango, he said that he did not arrest A2. The subject vehicle was a leased vehicle but had no documentation to confirm that. Warrants for arrest for some officers were issued but have never been arrested. He handed over the file to DCI headquarters and did not know how far they had gone with the matter. All he knew was that A2 was driving the motor vehicle that went to Ukasi. He was not sure if the motor vehicle in (EXB 8) is the one which went to Ukasi. On 23/08/2016 – 25/8/2016 the vehicle was driven by A2. Its GKB 886E. They do not indicate civilian numbers. The firearm he had was not used. 78. PW 11 was Dr. Martin Nkulet Nyongesa working at Kanyagi Sub- County hospital Kitui county as medical superintendent. He is the holder of Bachelor of Medicine and surgery – Kampala International University – The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 20/85

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graduand 2016 and Internship up to May 2018 and registered in 2018. He worked in Mwingi for 5 months as medical officer, then Mutomo hospital 5 months, then to the current hospital. 79. On 24/08/2016, he was at Mwingi hospital as medical officer intern. In respect of this case, he started work at 7 am – 5pm but they had night calls. He went home at 5pm and received a call at 10pm from hospital about a patient who had been brought by police and he was required to review. The patient had been seen by clinical officer and sent to x-ray image. There was a problem with the x-ray machine, so he went to x-ray room- saw the patient and read the x-ray report. He was again called for an emergency in the children ward. He instructed the nurse to take the patient to the ward so that he could go to the children ward. 80. With regard to the patient in the x-ray room, he noted some gunshot wounds and bullets in the neck (foreign bodies). The patient was talking. Later PW11 talked to the patient in the ward and took his history. Patient said he was picked by five men in a white land cruiser whom he suspected to be CID, asking him of a person whom he confirmed he told them he knew but had been arrested for theft. According to the patient, they drove him to Kitui police station but did not come out of the vehicle. They demanded that he produce the gun he and the arrested suspect had used to commit crimes. He denied having a gun. Then they told him to lie down and took him to a petrol station, then they took him to a forest which he thought was at Ukasi. They took him out of the vehicle and told him to produce the gun but he could not because he did not have it. One of them, a Somali, shot him in the eye and another also shot him and they thought he was dead. When they left him he went for treatment at Ukasi. 81. PW 11 prescribed antibiotics and fluid and informed the medical officer and consultant because they thought they would have to go to theatre. PW 11 was then called to maternity ward and on arrival there, he heard shooting in the ward. It was around 2am. They remained there until police came then went back to the ward of the patient and saw the patient already dead. PW 11 documented the history he was told. He produced the photocopy of the report as treatment notes – dated 25/08/2016 -P. Exh 19. 82. On cross-examination by Mr. Muchoki, he said he found 4 foreign bodies according to x-ray in the patient . The foreign body was only in the neck The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 21/85

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and head. There was a gunshot wound on posterior side of chest. The information he had was that given by the patient. 83. On cross-examination by Mr. Onyango, he said that the patient told him what transpired. PW 11 was with a nurse called Rita. The nurse was within the vicinity - she heard and took her own notes. From the report PW 11 got, the patient was brought by police from Ukasi. The x-ray machine was not producing film. He viewed from the machine and did not print the film later. He was told the patient was brought by police from Ukasi. The police were guarding the hospital facility. They were outside the ward, in uniform. Ordinarily the facility is guarded by security officers. When PW 11 left the ward, the police were there. The shooting took place within 10 minutes of him going to maternity ward. When they heard the gunshots, they were not sure if they were from the ward but they confirmed it was in the ward when police officers arrived and they went there. 84. PW 12 was No. 231710 Alex Chirchir (SP) from DCI headquarters ballistics section. He testified that he did forensic ballistic course- Moscow University and had also done shooting crime analysis reconstruction in USA and had BSC - Moi University. His main duty in the laboratory was investigation and analysis, ammunition and any other related matters. He had 14 years’ experience. 85. On 02/09/2016, he received exhibits from No. 231485 CIP Isaiah Mwiranga. First batch were five pistols marked exh. J1, J2, J3, C1 and C2 with serial numbers indicated. 2nd batch were 7 revolvers – with serial numbers indicated. The serial numbers are in the report. Jericho make are J1, J2, and J3. C1 and C2 are Ceska make. Both types fire the same type of ammunition. On magazines, he had with him three magazines which carry 17 rounds each. The two were for Ceska – each with a capacity of 15 rounds. He also received 109 rounds of ammunition in assorted calibre 9mx19m – total 74; these were in the magazines. In calibre 38 in these were 35 rounds revolvers. There were 17 expended cartridges exh – a (1) to a (17). 86. He also received total of 8 fired bullets and carried out examination. His findings were; - J1, J2, J3 – these were Jericho pistols manufactured in Israel. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 22/85

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- C1, C2 – Ceska pistols manufactured in Czech Republic (all use 9mm x 19 m (ammunition). - T1 – T6 these were revolvers made in Brazil. - T7 revolvers – Smith and Wesson made in USA. 87. Each revolver designed to fire 38 ammunitions. All the exhibits were in good condition and capable of being fired. He used three rounds of ammunition to test them – this is for each firearm. This is test cartridge and bullet for J1. He labelled each envelope for the cartridge and bullet for each firearm. From the examinations, he formed the opinion that these were 12 firearms. The 109 ammunitions were all live. These were firearms and ammunitions per the firearms Act. He did comparative examination of a (1) to a (17) – which revealed that a (1) – a (5), a (8) a (14), and a(16) and a(17) were fired from one source. Thus 2 firearms were involved. 88. He did further microscopic examination on the pistols and found that a(1) – a(5), a(8) – a(14), a(16) and a(17) were fired from Ceska Pistol S/No. F3841 a(6), a(7) and a(15) were fired from J3 – Jericho pistol serial 45302638. On the bullets, b(1) – b(5), 3(i), 3(ii), 3(iii) – these are 8 in number. B(1) – b(5) – fired bullets 9mm – it was a component of 9mmx19mm. Each of them is damaged. B(1) – b (3) and b(5) were damaged on their sides, b(4) is damaged on its nose. This means they came into contact with hard surface during flight. B(11), b(2) and b(4) – they have land and crest areas. These are markings, b (3) and b (5) have faint markings. Exhibit 3(i) and 3(iii) are damaged on their sides. Exhibit 3(ii) is intact – not damaged. He subjected them to microscopic examination and formed opinion that b(2), and b(4) – these bullets were fired from Ceska pistol – SN F3841. B (1) markings were not good. Not enough for him to make determination. 3(i), 3(ii), 3(iii – markings were faint could not make a conclusion. He prepared a report dated 8/9/2016. The report he had was not original. He understood that the report was mistakenly taken by police who had a case in Malindi. The report which he signed was marked as MFI 19. 89. T (1) to T (7) did not match. Seven revolvers produced as P. Exh 20(1) to (7). J(1) to J(3) produced as P. Exh 21(1) to (3), Ceska pistols produced as P. Exh 22(1) and (2). Seventeen cartridges produced as P. Exh No. 4. Bullets – b (1) to b (5) produced as P. Exh 23. Bullets 3(i) to 3(iii) produced as P. Exh The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 23/85

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24. The bullets b(1) to b(5) – it was not indicated where they were recovered. 3(i) and 3(iii) was indicated on the envelope. C(2) and J(3) were used in the shooting. The rounds of ammunition 109 rounds produced as P. Exh 29. PW 12 signed his report on 08/09/2016. He identified his signature in report marked as MFI 19. 90. On cross-examination by Ms. Kinyanjui for 1st accused, he said that he did not conduct crime scene reconstruction. He did not establish source of some bullets as markings were inconclusive. He could not approximate when the bullets were fired. 91. On cross-examination by Mr. Muchoki for 1st accused, he said that he did not conduct tests to confirm if they fired bullets. 92. On cross-examination by Onyango for 2nd accused, he said that he put firearms on comparative microscopic examination and that it was possible to get photographic reports of the comparative examination if required. Bullets do not have serial numbers, but ammunition have. Bullets have year of manufacture and source. Some have no markings. 93. PW 13 was No.55789 Cpl Adan Hillow Ibrahim of Tigania East DCI and previously of DCI – Kitui. On 23/8/2016, he was approached by IP Mainahis senior who told him that he (Maina) had been given assignment and wanted to be issued firearm. Maina was with PC Salim and PC Rono. Maina asked for small arm but was not available in armory. PW 13 was the one in charge of firearms Kitui – DCI. He was in charge of armory. PW 13 called his arms register where officer signs for the firearm issued and after returning, he checked, recorded and returned in armory. 94. Maina requested for a pistol to go on assignment given by the DCIO and asked PW 13 to issue the other two police officers AK 47 rifles. PW 13 did not have pistol so, he called IP Wafula who had a pistol and collected pistol from IP Wafula and issued to IP Maina. This was during the day time. PW 13 issued Maina with Ceska pistol No. F3841 with 14 rounds of ammunition and issued the other two officers with AK 47 each. PW 13 recorded the issuance for IP Maina in the register as SN 580 on 23/08/2016. It was issued to IP GILBERT MAINA. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 24/85

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95. Maina told PW 13 that he was going for investigations. PW 13 identified the firearms marked C1 and C2 – exhibit 22. Maina signed for it and went for the assignment. The next day 24/08/2016 the firearms were returned to armory. On 24/08/2016 at 4 pm, PW 13 saw CI Thuku, IP. Maina, PC Salim, PC Rono and Sgt. Odoyo (driver) removed one prisoner from cell temporarily to Kathukeini area – Kitui County. PW 13 joined them in the operation and the suspect took them to the scene of robbery incident. They searched area and did not recover anything. They went back to station and booked suspect in the cell by signing in occurrence book then went to watch football match. Later, on 25/08/2016, PW 13 renewed IP Maina’s weapons, as he had not returned it. 96. On 26th August, the DCIO called all of them and told them to meet Mr. Kirui the county DCIO in charge. The county commander asked for the duty roster for 23/08/2016. All on duty recorded statements and county commander went back to Machakos. On 26/08/2016, the County commander came back and told PW 13 to return to the armory all firearms in the hands of the officers. PW 13 checked them all and there was no firearm missing. They were in good order. He handed them over to the county commander - Mr. Kirui: The weapons PW 13 handed over to the commander were in court. Revolver – S/No. x818067 (Taurus) issued to CPL Sylvester Mwendwa with five (5) rounds of ammunition, S/No. F3841(Ceska) issued to IP Maina, No. 45302638 (Jericho) issued to CI Thuku. S/No. F4444 (Ceska) with 15 rounds issued to Sgt. Odoyo, SN. 45302103,(Jericho) issued to IP Mulei, SN 44338097(Jericho) issued to CI Wasilwa. 97. Later on, 26/08/2016, the county commander arrested IP Maina, CPL Mwenzwa and Adan (PW 13) and they were taken to Kyumvi police station in Machakos for investigation. He took IP Maina and PW 13 to Machakos court for extension of orders for 10 days. Identification parade was conducted and neither him nor IP Maina were identified. On 13/09/2016 both PW 13 and IP Maina were taken to high court. Later, he (PW 13) was released and IP Maina was charged. PW 13 was later called to CID headquarters where he recorded his statement. He identified the arms movement book for Kitui – DCI – MFI 17- produced as P. Exh 17. The two accused are known to him. First IP Maina, the second is Sgt. Odoyo. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 25/85

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98. On cross-examination by Ms. Kinyanjui, he said that he could not recall small firearms as per the instructions given due to insecurity. The firearms book on record shows that CI Maina returned the firearm on 24/08/2016. The firearms door is opened by uniformed officers called by PW 13. 99. On cross-examination by Mr. Muchoki, he said that two of them had keys for the firearms box i. e PW 13 and DCI. The key to the main door is with uniformed officers. He had explained in his entry that IP Maina returned the firearm on 24th. The record shows that he returned firearm with all ammunition. 100. On cross-examination by Mr. Onyango, he said that the firearm that was given to 2nd accused was SNo 4444 – with 15 rounds. PW 13 would normally renew 2nd accused’s possession of firearm because of insecurity. He had the 15 rounds. Odoyo was not issued with another firearm. PW 13 was not told the reason he was arrested when he was arrested. 1st accused was also not told the reason. None of them was identified at the parade. The police said they had nothing against PW 13. 101. PW 13 was recalled for further cross-examination on behalf of 1st accused wherein he stated that he recalled his testimony in court and produced firearms movement register. It was only him and DCIO who had access to armoury. He reiterated that he issued firearm to 1st accused in August 2013. 1st accused did not tell him where the operation was and PW 13 did not accompany them to Ukasi and did not have a firearm but would have a firearm while on operation duty. At times, he could be called to operations and as a police officer, he would be armed when going for operation. In such a case, he would issue himself with a firearm in presence of the commander of the operation and sign on the issuer and possessor of firearm. 102. In both occasions, he issued Gilbert firearms which were returned in good order. On the date of alleged shooting at Ukasi, PW 13 was at Kitui town and was not on duty. At 5pm, he left office and was off duty at night at the time of alleged incident. For the metal box, it was only PW 13 and DCIO who had access. From 5pm to morning, nobody could access the armoury. On the return of firearm, there is no column for time. They don’t indicate time. But they do not surrender firearms at night. 103. Renewal, means a person who has a firearm, and wants to continue holding the firearm. PW 13 checks the firearm to see if it is in good condition, The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 26/85

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and signs the renewal. Ukasi was not known to PW 13. The investigating officer could be asked. On cross-examination by Ms. Kinyanjui, he said that he was arrested with Gilbert and they were taken to Machakos high court for request for 10 days to investigate. PW 13 was released after the 10 days and Gilbert was charged. PW 13 was not did not know the offence. 104. PW 14 was No. 230746 Adan Dima Guyo – County CCIO Nyandarua. He testified that since 14/06/2013, he was DCIO – Kitui sub-county and was transferred to Eldoret in December 2016. The officers under him were CIP Thuku, IP Oman, IP Maina and others. Also, CPL Adan Hillow who was in charge of armory. The outer door was only opened by regular police. They had a separate armoury for the CID. The drivers were – Sgt. Odoyo and PC Kamotho. On 24/08/2016 at 6am, CI Thuku, IP Maina, PC Rono and PC Salim proceeded on enquiries in Kitui town and arrested two suspects - John Nganga Kilonzo and Kisani Nyamai at ginnery and a lorry battery was recovered from them. 105. The case was handed over to OCS and the two suspects were arraigned in court. This was reflected in the OB. On same day 24/08/2016 at 8am, driver Sgt. Odoyo brought work ticket and PW 14 signed for movement in Kitui area GKB 886E Toyota Cruiser. On 26/08/2016, PW 14 got information that someone had been shot at Mwingi district hospital. Mwingi is as different sub-county towards Garissa. There was a team led by DCIO Machakos and a team from the headquarters. Three police officers were arrested and taken to Machakos. CPL Mwendwa and CPL Adan were released and Later, PW 14’s driver Sgt. Odoyo was arrested. IP Maina and Sgt. Odoyo are in court. PW 14 identified the work ticket which he signed and produced it as P. Exh. 8. The two accused are IP Maina and Sgt. Odoyo and are known to PW 14. 106. On cross – examination by Mr., Muchoki, he said that he was transferred in late 2016. CI Thuku was his deputy but PW 14 did not know where he was at the time.. 107. On cross-examination by Mr. Onyango, he said that he did not know if the GK vehicle was involved in the Mwingi shooting. He agreed that he signed for the vehicle but said that he did not authorize it to go to Mwingi. That, the The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 27/85

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investigation officer could answer why Sgt. Odoyo was arrested. 108. PW 15 was Nicholas Muthoka Mala – Clinical Officer Ukasi Health Centre but in private clinic at the time of testifying. He testified that on 24/8/2016, he was at Ukasi health centre and was phoned that a patient had been brought at 2pm. He rushed there and met the patient MALIA MUSYIMI aged 27 years from Kabati – Mwingi. The patient was in pain and blood was oozing from mouth and back of head. He said he was shot by people known to him. He said they were CID from Kitui police station. He claimed they were four and a driver. He said they took him from his house in majengo estate plot No. 10 around 7am. They took him in Government vehicle past Ukasi police post – took him to the bush and shot him. He said they took 6000/- from him, his phone and identity card. On examination, he was in pain. All systems were functional. There was a wound on left cheek bone, there was a wound above the nose, two wounds back of head, also wound on left side of head above ear. 109. PW 15 dressed the wounds, gave intravenous injection and referred him to Mwingi Level 4 hospital for further management. He documented the treatment and identified the treatment notes marked as MFI 26. He said that the wounds were visible. 110. On cross-examination by Mr. Muchoki, he said that the patient did not give names of the assailants. 111. PW 16 was Dr. Oduor Johansen, a pathologist at of Ministry of Health – Nairobi. He testified that he is a holder of MBCHB (UON) in 2000, Master’s degree in pathology from UON 2007, Diploma in forensic medicine – college of Medicine – South Africa 2008. He has acted as pathologist from 2008. He had post-mortem report on Ngandi Malia and he performed post-mortem at Mwingi level 4 hospital on 01/09/2016. The Forensics were; - Deceased was unclothed, a male African adult. ▪ Good nutrition status, medium built. ▪ Preserved by refrigeration. ▪ Body was very pale – feature of people who lost a lot The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 28/85

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of blood. ▪ He had bandages on face and back of the head. ▪ Bruise on right upper hand and scars on outer aspects of right arm and right side of chest at the back – old. ▪ Gunshot wounds as follows; on left cheek and abrasion around it and blackening around the wound. ▪ There was exit on right side of the face 4cm from corner of the mouth. ▪ Gun wound on chin – 1cm to left of midline – 2cm in diameter. It also had blackening exit was at the neck – edges were outward. ▪ Gunshot wound left side near the ear 2 x ½ cm – exit at left lower eye lid. ▪ There was braze bullet left upper arm front part 4cm x 2cm ▪ Another entry on left upper arm inner aspect with exit in left forearm. ▪ Right upper thigh entry of bullet, exit on left buttock. ▪ Another entry mid right thigh and exit. ▪ Several entry wounds on the trunk – one left side of chest, another on left side of chest below the rib, another below last rib on left rib, another on left lung, two others near the umbilicus, and six exit gunshot wounds on the back evenly distributed. ▪ Entry gunshot wound at back of the head with no exit, a deformed bullet was recovered under the skin. ▪ Entry gunshot wound at back of head left side, no exit, and deformed bullet was recovered. ▪ Another gunshot wound back of neck with no exit a deformed bullet was recovered under the head. 112. The findings were; o Bleeding in chest cavity, both sides penetrating bullet wounds both lungs, also penetrating bullet wounds on diaphragm. Bleeding within the abdomen, and penetrating bullet wound in the stomach, left kidney was shattered, as well as the spleen. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 29/85

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113. The opinion formed was; ▪ Cause of death was multiple injuries due to gunshots from low velocity firearm. 114. PW 16 handed over the bullets recovered to investigating officer and blood from the victim – for analysis. 116. PW 16 signed the Post-mortem form on 01/09/2016 and produced it as P. Exh 13. The victim sustained 18-gun shots. 117. On cross-examination by Mr. Muchoki, he said that could not remember recording statement at DCI. He reiterated that death was by low velocity firearm – due to the nature of injuries. Low velocity firearm is like a pistol not a rifle. He reiterated that injuries were 18 and 6 exit wounds. There were deformed bullets recovered. The total exist wound were more than 6. He recovered only 3 bullets. He did post mortem examination on 01/09/2016. He was not able to tell the age of the injuries. On distance from the shooting – the first wound had soot. That was close range. Others were from far as they did not have blackening. It was not easy to tell whether the three bullets recovered were close range. He handed over blood samples to investigating officer to compare. The body was refrigerated but one could extract blood. The measurements referred to of the wounds relate to diameter. 118. PW 17 was No. 231851 CI Anthony Karisa OCS- Giaki police station Meru and previously OCS in Ukasi police station – Mwingi. On 24/8/2016 a reportee - the deceased Fredrick Ngandi Malia went to station and reported that he had been kidnapped from his residence at Kitui- from morning hours by four (4) people whom he suspected to be CID officers from Kitui. They forced him into a white land cruiser, blind folded him and went around with him whereby he was dropped at Sosoma junction along Garissa Mwingi Road. He was forced to a nearby bush, shot five times and robbed of 6000/= plus one mobile phone. When they believed that he was dead, they took off in the land cruiser to unknown destination. After the victim noted they had gone, he made his way to the main road and boarded a vehicle which dropped him at Ukasi police station where he made the report. 119. The Judiciary of Kenya As OCS, PW 17 instructed CPL. Yoya and PC Wambua who used the Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 30/85

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station vehicle to rush the victim to Ukasi hospital for medical treatment. Later, PW 17 was called by CPL Yoya and informed that the victim had been referred to Mwingi general hospital for further treatment. CPL Yoya and PC Wambua accompanied the victim to hospital. Because it was evening, they could not trace the scene. They visited the scene with CID personnel from Mwingi the following day and managed to get the place where the victim was shot. At the scene, they recovered one bullet head and blood samples. The scene was documented by CID personnel. 120. PW 17 handed over the scene and the case to CID Mwingi. The victim reported to PW 17’s station and appeared shocked and traumatized. He said he was shot by CID officers. He did not say which station the CID officers came from. He suspected them to be CID officers because the vehicle had guns which appeared to be for CID. He did not tell PW 17 the reason why he was shot. PW 17 was not aware if victim had a case with the police. At the scene, PW 17 recovered one bullet head and also took blood sample from scene. 121. On cross-examination by Mr. Muchoki, he reiterated that he was CI Anthony Karisa. He recorded a statement - self recorded at Ukasi police station. It was one statement. He was at Ukasi for 2 years where he used GKB368E as his working vehicle. PC Siele was the driver. t. He had gone to fuel the vehicle when he received a phone call from Mwangangi – a village elder about a shooting incident. 122. When the report was made, he was at Mwingi fueling the vehicle and upon returning, he told two officers to go and assist the victim after the victim had been referred. He instructed the officers, through phone, to take the victim to Mwingi dispensary. He agreed that it was not normal for someone to report to the police station with bullet wounds. Ordinarily, he would have to enquire from the victim what happened and assist to take him to hospital. He enquired on the shooting incident. By the time, he reached at the police station, the victim was not there. He did not call him back. He interviewed the victim himself and read the information on the shooting from the OB. He agreed that he did not interview the victim. He visited the scene the following day. When they went the same day, it was dark and they could not locate the exact place of the scene. It was Mwangangi that identified to them the scene. He did not say he witnessed the shooting. He gave PW 17 a general guidance. On 25th, they visited the scene with PC Kimutai. PW 17 visited the The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 31/85

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scene twice -with PC Kimutai on 24th & with the CID it was on 24th when they could not locate the scene. 123. On 25th, they combed the bush and found the scene. They assumed it was the scene because of the bullet head and blood samples under a tree – bullet head was one. No cartridge. DCI was handling the scene after they visited the scene. They were together with DCI when they recovered the bullet head. They, collected the exhibits as a team. Those in- charge were the CID. At their police station, the CID booked the exhibits recovered. There was no need for PW 17 taking the exhibits and handing over. On their first visit, they did not recover anything as it was dark. 124. On cross-examination by Mr. Onyango, he confirmed that it was him and the CID team who recovered the bullet head and blood sample. He handed over to DCIO - Mwingi. He visited the scene two times. First time it was in the evening and there was nobody at the scene. He did not leave anybody at the scene when he left. It was a crime scene that was unprotected. On 24th August, 11 hours – He visited the. It was the same area both days. Both days they went almost the same place. It was a crime scene. The second day, they did not find anybody. After recovery and documenting the scene, they could not leave anybody. He agreed that he was not the investigating officer. The scenes of crime officer was given enough time. They cordoned off the area. On 27/08/2016 – homicide officers visited the scene. They were sent from Nairobi to go and see the scene. The guns appeared to be those of CID. If he was blindfolded from where he was kidnapped – before he was kidnapped, he saw the vehicle and guns. The OB extract would show what the victim reported. He did not know the CID officers, but he suspected them to be CID officers. He did not interview the deceased. He said in his statement that the people took off in a land rover to unknown destination. It is a land cruiser. He was shown his statement and agreed that it was not therein. He agreed that he did not meet the deceased. When he returned from Mwingi, the officer requested the vehicle to assist the victim to Mwingi hospital (reads the statement.) That he visited the victim at Mwingi dispensary. PW 17 found the victim but talked to the nurse and was told by the nurse about the bullets in the body of the victim. 125. The nurse told PW 17 that there were two bullets on right eye. If the pathologist said something else, maybe the nurse was not saying the truth. PW 17 did not think that there was another shooting victim. He knew the victim as The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 32/85

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Fred Ngandi Malia but did not interview him. 126. PW 18 was No. 64510 Cpl Livingstone Katui from DCI Migori crime scene support services section and formerly of Kitui DCI. He testified that on 25/08/2016 at 5:00 am, he received a call from DCIO Kitui Mr. Aden Guyo who instructed him to accompany police driver Mwania aboard motor vehicle registration KBZ467Y and proceed to Mwingi where a shooting incident had been reported. At Mwingi referral hospital, he was directed to surgical male ward and found a body of male adult lying on the ground in the ward. He had bandage on the head and injuries on the body. He was identified as Fredrick Ngandi. He took 10 photographs as follows; No. 1 – general view of surgical ward building. No. 2 – close view of male ward. No. 3(2)- general view inside male ward, hospital beds, and body covered with white sheet. No. 4 – close view of deceased body covered with white bed sheet with blue stripes. No. 5(2) – close view of the uncovered body. No. 6 – close view of upper part of body for identification. No. 7 – close view of injuries on back of the body. 127. Close view of holes on hospital bed, suspected to be made by bullets. On 27/08/2016 at 17:15 hours, he was requested by Sgt.. Mwita from CID headquarters Nairobi – the investigating officer, to accompany him to majengo area within Kitui town where they visited a single residential room in a plot – to take photos. On arrival – they were shown a building with a number of rooms and one of the rooms had a white curtain with red dots on the door. He also took photographs ten in number. No. 1 – general view of the building and surroundings. No. 2 – close up view of same building. No. 3 – close up view of entrance to the building. No. 4(2) – a close up view of corridor between the rooms leading to the room with white curtain. No. 5(2) – close up view of the door of the room. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 33/85

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No. 6(3) – close up view inside room, utensils, stove, water jerricans and beddings and small mattress. 128. He prepared certificate dated 25/09/2016. He produced the photos and certificate as exhibits. Bundle of photographs P. Exh 3(a), certificate as 3(b). 129. On cross-examination by Mr.Muchoki, he said that he visited the scene at 5:00 am and found police officers from Mwingi police station at the scene. He found two uniformed officers with their presence. He believed it was secured but did not find a yellow tape. He said that it was not fully secured. He could not say it could be interfered with. He did not enquire on the time of the shooting. He arrived and examined the scene before taking photos. He did not find shooting cartridges but was informed it was shooting. He did not find any bullet. Possibly someone took the bullet cartridges. There was no evidence for him to collect. He only took the photos and was told the name of the deceased from the police at the scene. He did not see anything to mark at the scene. He never dusted. Not all scenes are dusted. He did not prepare a sketch of the scene. 130. On cross-examination by Mr. Onyango, he said that he was the only one who took photos. He was not aware if another officer took photos. He didn’t know if another officer took photos. He took photos at two sites – at the hospital and at the house as directed by investigation officer. The body was lying on the floor covered with a cloth. He wore a pair of trouser, and faced upwards. 131. PW 19 was No. 235229 – IP Nicholas Mulei – scenes of crime Machakos. He testified that he was appointed by DPP under section 78(1) Evidence Act – GN 5548 of 30/6/2015. On diverse dates between 27/8/2014 and 01/09/2016 all at about 12:00 hrs.., he was accompanied by Sgt. Mwita of DCI headquarters to a scene at Ukasi in Mwingi area. On reaching the scene, he documented it as follows – 62 photos; Photo 1-5 – general and close up view of the scene. Open ground and shrubs. Photos 6-7 – general view of adjacent road near the scene. He was shown the scene by Sgt. Mwita. Photo 8-9 – general view of Ukasi police station. Photo 10-11 – general view Ukasi health centre. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 34/85

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Photo 12-13 – general view Mwingi level 4 hospital gate. Photo 14 – general view of surgical ward at Mwingi level 4 hospital. Photo 15-19 – general and close-up view of inside the surgical ward. Photo 20-21 – general and close up view of nurse on duty room. Photo 22-40 – general and close up view of scene inside male ward. Photo 41 – general view of hospital mortuary. Photo 42-44 – close up view of body inside mortuary – post-mortem room. Photo 45-52 – close up view of suspected bullet wounds on the body. Photo 53-56 – close up view showing bullets heads lodged at the rear part of the head. Photos 57-58 – close view of the suspected bullets heads after being removed from rear side of head. Photos 59-61 – close up view of stomach contents with bullet wounds. Photo 62 – close up view showing inside of the skull. 132. He processed photograph prints under his supervision not interfered in the process of preparation. He produced the photos as P. Exh 14(a) (bundle). He also prepared a certificate dated 23/09/2016 and signed - P. Exh 14(b). 133. On cross-examination by Mr. Muchoki, he said that he first visited Ukasi and scene of shooting was shown by investigating officer. He did not see bullet heads there. He was just shown the area and did not collect evidence from there. There was nothing not even blood. It was an open area. From there, he went to Ukasi police station, then to health centre, and then Mwingi hospital. He took photos in the surgical ward also. The bullet heads – he packed and handed over to Sgt. Mwita the investigating officer. He did not prepare inventory as it was the investigating officer to prepare it. He recovered only three bullet heads. 134. On cross-examination by Mr. Onyango, he said that he took photos at the mortuary and was not given identity of the body. 135. PW 20 was Elizabeth Waithera Onyiego, a Government analyst since 1993 and based at Government chemist Kisumu at the time of testifying. She is a holder of BSC chemistry UON and MSC – applied analytical skills – Kenyatta University. She testified that on 05/09/2016, at government chemist – Nairobi, The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 35/85

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items were received under escort of CI Isaiah Mwiranga of DCI – Mwingi. Item “B” – soil sample in Khaki envelope labelled to be collected at the scene. Item “C” – blood sample in bottle indicated as of deceased Ngandi Malia. It was desired to examine the items and determine presence of blood stains - Report heavily stained with human blood. The DNA profile generated marched the DNA blood generated from blood sample “C” of Ngandi Malia. The probability is 100% match. 136. PW 20 complied report and signed on 19/06/2018. She produced the report as P. Exh 26 (a) and the exhibit memo from DCI as P. Exh 26(b) 137. On cross-examination by Muchoki, she said that she received exhibit memos from Mwiranga. She confirmed that she was not the one who received the memo. It was Mr. Sang. She reiterated that exhibits were received at government chemist by head of section Mr. Sang who then forwarded the exhibits with the memo to her. They were received on 06/09. She had not come with the record of the file when she received the but could get the same from the office if she made a call. She could not state if analysis was done same month but it could be confirmed from the file. She stated that exhibits that are bio hazards are disposed off That 2018, the body had been preserved for more than a year before analysis. The DNA is not destroyed. The water will be lost, but they are interested in the DNA which can stay for ages, as long as it is well preserved. 138. On cross-examination by Mr. Onyango, she said that the exhibit memo had a date of when it was prepared - 02/09/2016. She confirmed that strong heat could destroy DNA. It denatures and makes it impossible to get the profile. She testified that blood is a bio – hazard item. 139. PW 21 was No. 236731 Tobias Mwita - Assistant Superintendent of police and Deputy Director, Homicide - DCI HQ at the time of testifying. He was also in investigation of serious offences for a period of time. On 26/08/2016, he was assigned to reinforce CCIO Machakos, Mr. Kariuki in an investigation of an incident which occurred at Mwingi Level 4 Hospital. It The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 36/85

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was a shooting incident where a patient was admitted and later shot. He proceeded to Kitui where he met the CCIO. He was briefed together with Chief Inspector Mwiranga and PC Kavivi. PW 21 led the team from Headquarters. 140. The case had happened on 24/08/2016 at around 2.00am – the night for 24th and 25th August, 2016. He found the CCIO had carried out some investigation - had visited the scene at Mwingi and at Ukasi. From the brief that the CCIO gave when he visited the scene at Ukasi, there was an incident report which had circulated that the deceased was shot at Ukasi, then at Mwingi Level 4 hospital. From the information and treatment notes, the deceased was picked from his house in Kitui on 24th in the morning by people suspected to be CID Officers 141. Scene (i)- House of deceased where he was picked by officers said to be police. PW 21 visited the scene at Majengo area in Kitui and interrogated people - tenants in his building. They explained how deceased was picked. They mentioned the white CID land cruiser which they knew. PW 21 went back to station. The deceased was before mentioned in a case of robbery his name was Malia Ngandi - the case was being followed by these officers the other suspect was Paul Mutambo. He was in prison - GK Prison Kitui – PW 21 visited him there and interviewed him and he said that he had been questioned about the deceased - this case was CR. 403/65/2016. It was before court. They obtained charge sheet of Paul Mutinda. The suspect was following this case. 142. PW 21 visited scene (ii) at Ukasi. The scene had been documented by CCIO and OCS C.I Kaviso. PW 21 was taken to the scene which was past Ukasi Past Mwingi towards Garissa. PW 21 interrogated some people - one of whom was Mwangangi and a lady - who told them that they saw a white land cruiser and heard gun shots. They went to the scene – where he was shot before being taken to Mwingi Hospital. The scene had been documented by CCIO. PW 21 went back to OCS Ukasi Police Station where he was briefed that on 24/8/2016 this person was shot in a bush at a place past Ukasi Police Station, he went to the road, was assisted by passengers in a bus who took him to Ukasi Police Station. The OCS circulated the signal and the person who was shot was taken to Ukasi Health Center where he was treated and then taken to Mwingi, Level 4 hospital. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 37/85

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143. PW 21 visited scene (iii) where the deceased was shot and died Mwingi Level 4 Hospital. The CCIO had visited and there were documents that show he was admitted there. About 17 cartridges were collected from there. The scene was documented. From the records at Mwingi Sub- County Hospital, deceased had given history of how he was collected from his house - shot and ended up at Mwingi hospital - the document – Pexh19. In the notes, he says that he was picked by CID Officer from Kitui. The CCIO had picked firearms from officers who had been armed - the inventory was produced as evidence. 144. During investigations they confiscated phones from police officers mentioned as suspects – the firearms were forwarded to ballistics at headquarters - among the firearms that were forwarded - some cartridges collected from scene at Mwingi were fired from Ceska Pistol S/N F3841 issued to Inspector Maina the 1st accused in this case. There was a firearm arms movement - produced in court as PExh. 17. The armoury NCO CPL Aden also testified. Jericho Pistol S/No KP453026 – 38 – KP45302638 issued to CIP Thuku. 145. CIP Thuku is still at large. It is not known where he moved to - his name is Daniel Thuku. PW 21 also requested Safaricom for Call Data dated 09/09/2016 for several phone Nos. among them, the No. for IP Maina – 0714709824, 2nd Accused - Paul Ngoma – 0792632692. From this call data, they were able to place the suspect in both scenes. The No. for Gilbert Maina shows he was within Kitui on 24/08/2016 from 0756 hrs. to 0813 hrs.. His phone went off until 1536 hrs. where he registered his presence at Kangonde as you head towards Nairobi /Garissa Highway - same direction as Ukasi. At 1955hrs., he was at Matinyani, Kitui. Between 1955hrs. to 2356hrs., he was at Mwingi. 146. From the call Data, the 1st accused was within Mwingi on the night deceased was killed. He was stationed at Kitui which is about 40 Km away, then he went off until 25th at 1201 hrs. when he switched on the phone. The 2nd accused, Paul Odoyo Ngoma - On 24/8/2016, went to Ukasi and returned to Kitui. At 0944hrs., he was at Mwingi. At 1033, hrs. he was captured at Nguni along Garissa Road, at 1148hrs. he was captured at The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 38/85

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Ngomeni on the way to Mwingi, at 1259hrs. he was captured at Katumba along the way to Ukasi, at 1318 hrs. he was at Ukasi, he came back - captured at Mbitini at 1344hrs.. Upon being interviewed, he said he was the only driver at DCI Kitui – Motor vehicle registration No. GK8 886E. He was the only one driving Motor vehicle - GKB886E Toyota Land Cruiser. PW 21 obtained the work ticket from DCI which confirmed it was accused 2 driving the motor vehicle that day. The work ticket did not indicate that he travelled to Mwingi it says Kitui CID duties. PW 21 received the report from Safaricom. 147. PW 21’s letter dated 09/09/2026 was done by someone in CCIO Office PMFI 27(a), the call data for Gilbert Maina - PMFI27(b) and call data for Paul Odoyo Ngoma - PMFI 27 (c). PW 21 also requested for movement of the said GK Motor vehicle and saw it at the station. The motor vehicle is owned by treasury. PW 21 wrote letter to the operation manager card centre, Nairobi and took the letter to treasury. The letter is dated 15/09/2016. The letter was requesting for movement of GK 886E, fuel consumption, mileage as captured by their system – through their tracking system. 148. PW 21 received a report which indicated that the motor vehicle moved up to Ukasi on 24/08/2016. The person who made the report can interpret it well. The motor vehicle fueled at Kitui Total Station on 24/08/2016 at 0821 hrs.. PW 21 compared this to mileage when they fueled at Kitui - it was 82,414, the entry in work ticket on 24/08/2016 was 82,828. He did not indicate the quantity of fuel. He fueled 50 litres from the report. The letter dated 15/09/2010 marked PMF1 28(a) Report from operations (tracking report) - PMFI 28(b) fuel report from Kitui Total - PMFI28(c). The CCIO had arrested some officers from Kitui as suspects. 149. At the end of the investigations, PW 21 served opinion of charging the accused based on - DCI Motor vehicle identified as picking deceased form his home, seen at Ukasi, call data placing the accused at the scene. Accused 2 confirmed he was the only driver but denied going to Ukasi but motor vehicle went there and he was the only driver. Ballistics report showed that arms used to fire cartridges at the scene were the one used to fire at the scene. The report from treasury on movement of the motor vehicle. The motive - they were following a case of robbery - motive was to eliminate the deceased. They must have been alerted by the signal that he was not dead. PW 21 and team did not know how the suspect officers went to Mwingi. There was a (withheld) who was with deceased in hospital - he/she mentioned 2 people - was unable to The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 39/85

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identify the 2. PW 21 said that the ones they charged were the 2 accused in the dock. 150. On cross-examination by Mr. Muchoki, he said that he was in a team investigating this matter. That, he had been in investigations for over 25 years. When asked whether he had attended any special course, he said he did not t know what the counsel meant by ‘special course’ and added that he had attended several investigation courses at CID training school and Kiganjo – over the years. That, he was informed of the incident on 26/08/2016 and travelled to Kitui on the same day. That, he proceeded to the 1st scenehome of deceased- on the same day. He was not certain of the time he went to deceased’s home and was with a team of investigators-Corporal Wanjohi, PC Langat, PC Ng’eno. The said colleagues were from Nairobi DCI headquarters. He knew the home of the deceased as he had been briefed on where it was. When asked how he got to know the home, he said he was accompanied by PC Kavili 151. . 152. The second scne was at Ukasi. When asked whether he went to 2nd scene on the same day he left deceased’s home, he made reference to same document and said that it was on 28/08/2016 and not 26/08/2016. He could not recall the time he went to 2nd scene but said that he went there with a team from DCI headquarters and OCS Ukasi. When asked whether the OCS had visited the scene before, he said that according to his thinking, the OCS had visited on 24/08/2016 when the deceased went to the station. When asked what he found at the scene, he said that his visit was to enable him see and be familiar with the scene. The scene was not secured as they had finished and there was no need to secure it. He did not personally collect anything from this scene. 153. When asked whether he asked for any inventory of the scene, he said that he was not aware that there was an inventory and did not collect any inventory from the scene. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 40/85

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154. He visited the 3rd scene-Mwingi Sub-County Hospital- on 29/08/2016 and was accompanied by his team from DCI HQ and OCS Ukasi. The scene had already been visited and he did not find anything and did not make any observations but he received exhibit memos. When asked what he received, he said 17 cartridges and 3 bullet heads. When asked whether he received the exhibits himself, he asked what the counsel meant by ‘receiving’ and said that he saw the exhibits but was not supposed to receive them. When asked how he knew that there were 17 cartridges and bullet heads, he referred to the exhibit memo form and said that the exhibits were forwarded by CI Mwiranga who was in the investigating team. 155. When asked what his role in the investigations was, he said that he was sent to reinforce the investigations and was not leading the investigation. He confirmed that he was the one making decisions on the direction of investigation. He said that he did not direct that the exhibits be taken for analysis but he was aware that they were taken on 08/09/2016; that he got a report dated 08/09/2016 exhibits at the 3rd scene; that exhibits from 2nd scene were part of those forwarded. When asked whether his evidence was that there were 17 cartridges and 3 bullet heads, he said that there were many. He confirmed that he attended post mortem on 01/9/2016 conducted by Dr. Oduor - Chief Government pathologist. He was the only officer who attended. 156. He said that the Bullet heads (2) were retrieved from the head of the deceased and he documented -see PMFI I2. That, 2 bullet heads were recovered from the head of deceased and 1 from the neck hence total 3 bullet heads. That, from the post mortem report, the deceased was identified by (name withheld), Geoffrey Muthui Malia - brother and Joel Mutunga - brotherin-law. When asked whether he was aware that there was an exhibit memo for 2nd scene at Ukasi, he said that the exhibit memo forwarded everything. 157. He said that one bullet head was collected from the Ukasi scene but no cartridges were collected from that scene. 5 bullet heads were collected from 3rd scene-Mwingi, from body - PM -3 hence total of 3 +1+5 =9 bullet heads. The bullet heads from Ukasi were shot from Taurus firearm. He testified that that after shooting, a Taurus leaves behind a cartridge and that there was no cartridge at scene 2. When reminded that he had said that he did not make any observation at scene 3-Mwingi hospital, he said that there was a bed where The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 41/85

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deceased was lying. When asked whether there was anything visible, he said there were bullet holes in the walls, in the bed quiz 17 cartridges 5 bullets head - from a Ceska pistol – 6 cartridges were shot from the Ceska Pistol. 3 were fired from the Jericho pistol and there was no indication of the firearm which shot the other 8. He could not tell where the 8 came from. 158. He said that the bullet heads from the body were from a Taurus firearm. There were three firearms- Taurus, Ceska, Jericho. He perused the fire arms Register for the specific period -(PEX 17). The date of alleged shooting was 24/08/2016. When asked when the firearms were issued, he said that most senior officers are armed all the time while junior officers are armed while going on duties. He said that no firearms were issued on 24/08/2016. That, the 2nd shooting happened on the same day around 2.00am according to the register, the people issued with firearms on 23/08/2016 were; PC Vincent Rono (at large) issued with AK 47 rifle, PC S. Cheka - AK 47, IP Gilbert Maina issued with Ceska S/N 3841 with 14 rounds. 159. He said that Gilbert Maina returned his firearm on 24/08/2016 with 14 rounds and in good condition. When asked when he made the arrest, he said that he was not the one who made the arrest. He agreed that he was briefed but was not briefed on who was arrested. He just knew they were arrested. He denied saying that they arrested officers from Kitui as suspects. That, it was the CCIO who arrested suspects but he (PW 21) did not know when they were arrested. When reminded that he said he had come in to reinforce investigations, he said that the IO should have answered that question. He said that his role in this investigation was that he was among the investigation team i.e IP Mwiranga were in the same team. When asked who else was arrested, he said that Chief IP Mwiranga must have answered that question. He repeated that he had already said that he did not know who was arrested. 160. When referred to his statement and told that he attended the post mortem alone, he denied and said that there was a team from headquarters. He testified that he attended the identification parade. When told that his statement of not knowing who was arrested was not true, he denied saying that and said that there were still officers who were arrested. When asked the The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 42/85

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people that attended the identification parade, he said; himself, 4 officers from the DCI HQ, 2 officers from Machakos, total- 6 officers. 161. When asked who the suspects in the ID parade were, he said that there were parade members from Machakos and from the suspects side, there was one for Gilbert Maina and one for Abdi Mohammed. When asked whether he knew how many officers had been arrested by the time of the parade, he said that only 2 were in custody and others had been released. When asked who had been released, he said that he could not remember names. When asked who the identifying witnesses were, he said; Benjamin Muluki Muthola, Musyoka Mbende, Fatuma Halima. When asked whether the 1st accused was identified, he said no. When asked the basis upon which the persons were brought to ID parade, he said that one of them was present when the shooting took place she said she saw two people she could identify - she did not identify any. 162. He said that the identification parade was conducted on 06/09/2016-a period of 30 days from time of alleged shooting. He was told that the shooting was on 24/08/2016 and he agreed that the identification parade was conducted after 2 weeks. When asked whether the memory was still fresh, he said it would depend on the memory of the identifier. He agreed that he was involved in the arraignmentof those who were to be charged i. e Gilbert Maina - due to firearm, data placing him at scene –C. IP Daniel Thuku - linked by firearm, call data, Paul Odoyo Accused 2 - named by movement of motor vehicle, Vincent Rono still at large. 163. He said that the 2 suspects who were to be charged were within the station on 26/08/2016. When decision to arrest was made, they, were not found in their homes. He testified that investigations were not concluded when he arrested Gilbert Maina, and that the other two are still at large. He said that they applied for their warrants of arrest long time and were still looking for Vincent - CR Case 26/2016 - 24/11/2016 for both the missing suspects. When asked what efforts he had made to arrest them as the investigating officer, he said they had visited their homes looking for any phone numbers they may have registered. 164. The Judiciary of Kenya When told that the investigations ought to have been conducted Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 by 43/85

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officers from Kitui, he disagreed and said that they used the CCIO Machakos an independent person. That, PW1 21 and team were used because of seniority and public interest - there was no pressure to charge the accused person. There was evidence. That the accused were charged on 26/09/2018. That, the charge and information was drawn on 26/9/2018. That, there was 1st one of 24/11/2016 vide Cr. 35/2016. Charge sheet with 4 accused persons then 2nd one with 2 accused in court. He denied that there was pressure to arrest. 165. When asked how ballistic report was prepared on 08/09/2016-before arrest, he said that there was call data and work ticket. That, there was evidence. He agreed that the report from call data was on 09/09/2016 and when told that the decision to charge was made before this report, he said that there was no rush. 166. When counsel said that he was having difficulty understanding the role of PW 21 as he seemed not to have control over the investigations, PW 21 asked ‘which one?’ and reiterated that 4 were arrested. He agreed that as a police officer, he was aware that gun residue would remain after a shot and agreed that he did not conduct any gun residue from the suspects. When asked how long the gun residue remains on a person, he said that he was not aware and told counsel that he should have asked the expert. 167. On cross-examination by Ms. Kinyanjui, he said that he was not aware of whether the crime scene at Mwingi level 5 Hospital was guarded and whether the patient was guarded when he was brought from Ukasi since he had gun wounds. He was told that according to the notes of the medical officer, one of the people who shot him at ukasi was Woria and he responded that it was the reason why Aden was arrested at first but the firearm that was used at Ukasi was not identified and call data did not place him at Ukasi. That, the killer bullet was not at Ukasi and must have been at Mwingi. When asked whether it could be ascertained that he did not die from the bullet from Ukasi, he said that deceased did not die from the bullet at Ukasi. 168. On cross-examination by Mr. Onyango, he said that he was the Investigating Officer. When asked whether there were other officers who would testify as investigating officers, he said there was evidence of C.I Mwiranga. He agreed that he was taking full responsibility of investigations as the investigating officer. He agreed that he was aware of the charge sheet which had 4 accused persons. When asked whether the 4 people should be in custody by the time the statement is prepared and signed by DPP, he said that The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 44/85

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they were not in custody. That, some detention orders were requested. When asked whether the 4 people in the charge sheet were arrested, he said that Daniel and Vincent were not there. He denied that there was a hurry to charge some people and that Daniel and Vincent appeared in court. When asked whether some people were at large at the time of preparing the charge sheet, he said that it must have been presented with respect to the people they had decided to charge. That, Daniel and Vincent had already escaped and were not in court. He agreed that he came into the matter after the fact. Upon being told that evidence had already been gathered and decision made hence he had rubber stamped majority of what he had said, he said no. when asked whether he added anything, removed/Charged, he said that he asked for call data movement of motor vehicle. When told that he was not the one who did that, he said that he was in a team. When asked whether he added any value, he said no. He said that he visited scene on 26/08/2016 and interrogated many witnesses. When asked whether they recorded any statements, he said that they had testified. 169. When asked whether there was any witness who identified accused 2 at scene 1, he said no. When asked whether any of the witnesses at scene 1 spoke of white land cruiser or gave him the number plate of the land cruiser, he said no and said that they identified the land cruiser used by CID Kitui. When asked why they didn’t give the registration number if they knew the land cruiser, he said he didn’t know why. He agreed that there are many white CID land cruisers at any one time in Kenya. He said that he interrogated two witnesses at scene 2 – Ukasi and they mentioned the white land cruiser but didn’t give the registration number. He agreed that he didn’t ask the witnesses whether they knew the registration number and that they didn’t see the accused persons but they heard gunshots. 170. When asked whether the witnesses told him how far they were, he said that his assessment was 260m from where the witnesses were to the scene. That, they only heard the shooting but did not see it. He agreed that he had no material evidence which placed accused 2 at scene 3-Mwingi hospital at the time the shooting took place. 171. When told that he had said that accused 2 was using 0792632692, he said that he had read the wrong column and the correct No. was 0701157306. He was told to look at the call data and asked whether there was any evidence The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 45/85

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of the accused person being at the 3rd scene. He said that the accused was at Mwingi at 950hrs. at 944hrs. in the morning of 24/8/2016.When asked whether there was anything connecting Accused 2 to the offence in Mwingi, he responded that; “If he was there in the morning, how can you isolate him in the planning” 172. He was asked how accused 2 would have known - let us shoot the person - In Ukasi - he will come to the road, end up in hospital at Mwingi, if he was in the planning and he responded that upon interrogation, accused 2 denied everything even going to Ukasi and therefore had to be treated as part of the offence. 173. When asked whether he had evidence – that accused 2 was even directly/ indirectly involved in the shooting, he said that when the person was shot, accused 2 was at the scene then said; “I can decide even not to answer”. When asked whether accused 2 was armed with a firearm, he said no. when asked whether he was sure, he said yes. When asked whether it could be a private firearm, he said he didn’t know. 174. He said that accused 2 was not armed despite post mortem indicating that deceased died of gunshot wound. He was shown a charge sheet for (Paul Mutinda) - Cr. Case 815/2016 CMCRC Kitui and said that it is the charge sheet connecting the motive – that, he learnt that there was case where deceased was mentioned as suspect. PW 21 said that he talked to Paul Mutinda and when asked whether Paul Mutinda was his witness, he said that Paul Mutinda recorded a statement. When asked whether he testified, he said that he didn’t know. When told to explain the connection between the charge sheet of Kitui CMCR 815/2016 and this murder case, he said that the charge sheet has nothing to do with this case and that he only found that there was a case which the suspect was following - that is the CID Officers from Kitui. 175. When asked what was in the charge sheet that showed that the 2 accused had a motive to kill the deceased, he said that he knew there was a case that CID officers had been following at Kitui. That he, PW 21, learnt that there was a person in custody. He said when he was being interrogated, he was asked about the deceased person. The deceased was being mentioned in this case. These officers picked him up from his house. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 46/85

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176. When told that the name of the deceased was not on the charge sheet, he said that it was information which he got. When asked about the discrepancies which he talked about on entries by accused 2 and the treasury, he said that accused 2 said that the work ticket mileage was 82828 but from treasury it was 82414 a - difference of 414 KM. When asked what the discrepancy was i.e whether the vehicle went less or far, he said that the distance is not normal – he looked at P Exh 28 (c) and stated that - T referred to the document’s status T - says “Transaction done without connection” when asked how the discrepancy led to accused 2 being charged with murder, he said that accused 2 was hiding where he had gone - that is only - he created these entries. He said that the questions about the report could be done by those who made the report. 177. He said that accused 2 was a driver at the rank of sergeant and he was moving around with his seniors. That, he should have told PW 21 that he was the police driver. He agreed that the fact that the GK Motor Vehicle was on motion cannot be disputed. He agreed that the motor vehicle was not involved in any offence but they asked accused 2 to explain how the motor vehicle was in Ukasi. PW 21 agreed that accused 2 was under orders. He agreed that there is no record that the motor vehicle took the people to Mwingi. He said that it was scene 3 which had brought them to court and that if the vehicle had remained at scene 2, they would not be in court. PW 21 was told that he had confirmed to this court that accused 2 had no gun, that he was instructed, that he was not at Mwingi and that he was not identified by anyone. PW 21 produced PMFI 27(a), (b) & (c) is as P. Exh 27(a), (b), (c), PMFI 28(a), (b), (c) as P. Exh 28(a), (b), (c). 178. The prosecution case was closed at that juncture and via a ruling delivered on 13/02/2024, the accused persons were placed on their defense. The 1st accused elected to give sworn evidence and call witnesses and the 2nd accused elected to give sworn evidence and not to call any witness. 1st Accused’s Defence 179. The Judiciary of Kenya DW-1 was Elikana Mogire and his evidence was that; he served with Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 47/85

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the 1st Accused at Kitui Police Station which also housed the DCI offices from the year 2016 and that their offices were adjacent to each other. That, on the material day (24/08/2016), he and the accused person proceeded for lunch together at around 1.00 pm at the Police Canteen after which they went and spent the remainder of the day at the station awaiting further deployment. That, at around 6.00pm, he was in the company of the 1st Accused person when he was returning his firearm to the amoury and that the Armorer, Cpl. Adan Hillow -PW 13, received the firearm. That, during Cross-examination, PW 13 confirmed that the firearm Ceska Pistol F3841was returned by the 1st Accused with all the ammunitions on the 24/08/2016 and was booked in the firearm movements register produced in Court by PW 13 as prosecution Exhibit No. 17. 180. DW-2 was Simon Wanjiku and his evidence was that; he was employed at the AP Police Canteen at Kitui Police Station. He recalled that on 24/08/2016, he was undertaking normal duties at the Police Canteen when the 1st Accused who was known to him visited the Police Canteen at around 10.00 and had breakfast and again visited the canteen over lunch time accompanied by a colleague whom he could not remember. He informed the Court that he served the 1st Accused and the colleague lunch at the Police Canteen and then they left. 181. DW-3 was Gilbert Gituku Maina (1st Accused) and his evidence was that; he was working with the Kenya Police Service general duties based in Nakuru and in February 2016, he was posted to Kitui under the Directorate of Criminal Investigation office. He produced a letter of posting as Exhibit 1. That immediately upon reporting to Kitui Police Station under the DCI, he took a leave of Seventy-Two (72) days and only officially started working at the new station in May 2016. 182. That, on the material day, he reported to work as usual and at around 07.00 Hours, together with C.I Thuku, P.C Rono, P.C Salim and the 2nd Accused, they left the station on normal enquiry and went to Ginnery Area where they arrested two persons namely James Nganga Kilonzo and Kisau Nyamai and presented them at Kitui Police Station and handed them over to the CID. That, the departure from the Police Station was captured on the daily Occurrence Book (OB) as Number 6/24/8/2016. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 48/85

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183. That, the said suspects were booked in the OB and presented to court to face the charges. That, he remained at the Police Station for the remaining part of the day and at around 1.00 pm, he went for lunch with DW 1 at the Police Canteen. That, on 23/08/2016 at around 4.00pm, he had been issued with a firearm the - make of a Ceska Pistol with fourteen (14) rounds of ammunition which he remained with until the following day - 24/08/ 2016- at around 6.00-6.30pm or thereabouts. That, he was arrested on 26/08/2016, just a day after the alleged shooting at Mwingi Level IV Hospital and ten days later, he attended an Identification Parade. 184. He testified that none of the persons (PW 3 and PW 8) who attended the ID Parade identified him as the shooter at Mwingi Level IV Hospital- the alleged scene of the second shooting on the night of 24/25th August 2016. 2nd Accused’s Defence 185. Paul Odoyo Ngoma testified that, on the material time of 24/08/2016, he was assigned motor vehicle registration number GKB 886E, a Toyota Land Cruiser as per the daily work ticket marked as Exhibit 8. That, the daily work ticket indicated that on 24/08/2016, he was assigned motor vehicle registration number GKB 886E at 0800 Hrs. and had the said motor vehicle in his custody and control until he returned and/or booked it back in at Kitui Police Station at around 0015 Hrs., a few minutes after midnight on 25/08/ 2016. 186. He testified that on the instruction of his superiors, he took control of the motor vehicle at around 8.13am on 24/08/2016 as per the Telemetry Report that was provided by the prosecution as part of exhibits and marked as prosecution Exhibits 28(a), (b) and (c). That, Exhibit 17 which is the firearms movement register confirms that he was assigned a Ceska Pistol Serial Number F4444 with 15 rounds of ammunition. That, his role was that of a police driver and that they proceeded on investigation duties as instructed by his superiors and according to the Telemetry Report of 24/08/2016, they were in Kitui area between 8.13 am and 9.01 am; then along Thika-Garissa Highway. That further, the Telemetry Report indicates that the motor vehicle was in Mwingi at around 12.14pm and later back to Thika-Garissa highway from around 12.25pm to around 1455 Hrs. when the signal located the motor vehicle back in Kitui The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 49/85

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County. 187. He testified that motor vehicle registration number GKB 886E remained in his custody and control until 0015 Hrs., a few minutes after midnight on 25/08/2016 when he surrendered the said motor vehicle back to Kitui Police station. That, according to Exhibit 17 which is the firearms movement register, he surrendered the firearm assigned to him intact with all rounds of ammunition. That, he did not stop the motor vehicle at Ukasi and this was clearly confirmed by the Telemetry Report provided by the prosecution that did not locate or trace the motor vehicle registration number GKB 886E in Ukasi at any given time on 24/08/2016. 188. He testified that he was not part of the team that allegedly picked the deceased at around 4.00 am on 24/08/2026 as stated by PW-7 in his testimony as he was not in custody or control of motor vehicle registration number GKB 886E at the alleged time. That, he was not at Mwingi District Hospital at any given time between the 24th and 25th August 2016 and that no evidence had been tendered by the prosecution to place him either directly or indirectly in Ukasi or Mwingi District Hospital within the impugned period. 189. He testified that his role was specifically that of a driver and he was not involved with any investigation duties on the material day and that at no time was his assistance required either for back up or reinforcement, to make him step out of his driver’s seat in order to assist the other police officers. That, none of the primary prosecution witnesses who testified as protected witnesses identified him in open court as the perpetrator at Ukasi or Mwingi District Hospital. That, the only motor vehicle that was assigned to him is GKB 886E and that he was not aware of a motor vehicle registration number KBZ 443Y and none of the prosecution witnesses physically identified him driving a motor vehicle bearing the registration number KBZ 443Y. 190. The accused persons closed their cases at that juncture and subsequently, submissions were filed on their behalf. Submissions by the 1st Accused The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 50/85

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191. The submissions were filed by the firm of Muchoki Kang’ata Njenga & Co. Advocates and it was stated that they were supplemental to the Submission on no-case to answer dated 18/09/2023 and already filed in Court. Reliance was placed on the case of Republic -vs- Job Ochieng Otieno [2018] eKLR for the submission that for the Prosecution to secure a conviction on the charge of murder, it has to prove three ingredients against an Accused person to wit; (a) the death of the deceased occurred, (b) that the accused committed the unlawful act which caused the death of the deceased; and (c) that the accused had malice aforethought. 192. As to whether the death of the deceased occurred, it was submitted that PW 16 - Dr. Oduor Johansen performed a post mortem on the deceased body and formed the opinion that the deceased cause of death was multiple injuries due to gun shots from low velocity firearm. 193. As to whether the accused committed the unlawful act which caused the death of the deceased, it was submitted in the negative. 194. With regard to the identification parade, reference was made to chapter 42 section 7(1) and 5(O) of The Police Service Standing Orders and reliance made on R –vs- Turnbull & Others (1973) 3 ALL ER 549, where the court stated; “... The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 51/85

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recognition of close relatives and friends are sometimes made.” 195. Reliance was also placed on Samuel Kilonzo Musau-vs- Republic (2014) eKLR where the Court of Appeal stated; '.....the identification parade is not a scientific test and cannot be treated as one. Instead, it is merely the best practical method of achieving an identification without confrontation. The purpose of an identification parade, as explained in KINYANJUI & 2 OTHERS vs. REPUBLIC (1989) KLR 60, 'is to give an opportunity to a witness under controlled and fair conditions to pick out the people he is able to identify, and for a proper record to be made of that event to remove possible later confusion'. It is precisely for that reason that courts have insisted that identification parades must be fair and be seen to be fair..........Once a witness has properly identified a suspect out of court, the witness is allowed to identify him on the dock on the basis that such dock identification is safe and reliable, it being confirmed by the earlier out of court identification.' 196. Further reliance was placed on John Mwangi Kamau -vs- Republic (2014) eKLR where the court stated “15. Identification parades are meant to test the correctness of a witness’s identification of a suspect.” 197. It was submitted that PW 3 attended the identification parade but did not identify the 1st Accused person and that during the dock identification, she stated that she did not see any of the accused persons and further described the shooter to resemble Mr. Onyango (2nd Accused person’s Advocate). That, indeed the description given by the witness does not in any way fit the appearance of the 1st Accused. That, the identification happened 10 days after the shooting and PW3 being the deceased person’s (withheld) ought to have enough reason to remember the person who was shooting so as to accord justice to deceased. That, she also testified that the deceased person disclosed to her that he was shot at Ukasi by a DCI police officer of Cushite descent (Woria). 198. It was submitted that PW 8 did not identify the 1st Accused person at the identification parade and that on cross examination by Mr. Muchoki, he The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 52/85

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testified that he had never seen the 1st Accused person and that there was enough light for him to see and recognize the perpetrators. That, PW 10 also testified that they conducted the Identification Parade but none of the accused persons were identified. That, on cross examination, PW 21 testified that by the time of the Identification parade, only two suspects were in custody. That, PW 21 also testified that one of the witnesses who took part in the identification parade was present when the shooting occurred but she did not identify the accused persons. 199. Reference was made to chapter 42 sections 1 and 2 of the Police standing Orders for the submissions that a crime scene should be secured. It was contended that from the photos produced in court, it is clear that the crime scene was not secured. That, the evidence of PW 1 was that he came back to work the following morning and found the body lying on the floor and there was no police officer guarding the crime scene and he uncovered the body himself. It was contended that the crime scene could have been easily tampered with. That, PW 18 testified that he got to Mwingi level 4 hospital at around 5am and there was no yellow tape securing the crime scene. 200. Reference was made to Chapter 42 Section 47 of the Police standing Orders for the submission that recovery of a cartridge case at the scene indicates that the shooting was done by an automatic or semi-automatic firearm and the consequence is that when no cartridge case is recovered at the scene, the shooting was probably done with a revolver. That, the section also has provisions on documentation of a crime scene. That, when PW 9 got to the ward together with P.C Woman Janet Akello, they found the deceased was already dead. That, Janet collected 17 cartridges and 4 bullet heads. On cross examination, PW 9 testified that they both collected the cartridges and the bullet heads, placed them on the doctor’s table and thereafter Janet placed them in a khaki bag and never marked the cartridges or the bullet heads for identification purposes. 201. It was submitted that this is a clear violation of the Police Standing Orders and the exhibits of the bullet heads and the cartridges present unreliable evidence to court. That, police routinely store or interact with bullets and cartridges and the failure by PW9 to mark the said exhibits at the scene then can only be said that they could have been collected anywhere in any The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 53/85

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police station and marked later and then brought to court. That, PW 9 also testified that there were many police officers at the scene and could not really recall how many officers accessed the scene hence a clear indication that the crime scene was already tampered with. That, when PW 18 got to Mwingi level 5 hospital, he did not find any cartridges or bullet heads and there was no evidence to collect. That PW 18 also testified that no gun powder residue test was carried out on the accused persons to ascertain if any of the accused persons had fired any guns. It was contended that being a trained police officer, the investigating officer ought to have conducted and/or commenced the process of undertaking this test among all the persons said to have been issued with a firearm on the material day. 202. With regard to handling of exhibits, reference was made to Chapter 33 of the Police Standing Orders for the submission that a police officer should handle evidence and property seized, recovered, abandoned, lost, found or otherwise in the possession of the Service according to these Orders and any other guidelines as may be issued by the Service. Further reference was made to Chapter 42 Section 34 of the Police Standing Orders. Reliance was placed on the following cases; a) Criminal Revision no. 8 of 2017 ODPP -vs- Maria Pakine, Naresho bar restaurant where the court held that; “It is a rule of thumb that before an exhibit can be offered into evidence in court a foundation must be laid for its admission. If tangible items such as the ones before the trial court are to be admitted the proponent or the officer who seized must introduce them before the court. That is what is said to be the best evidence.” b) Kenneth Nyaga Mwige -vs- Austin Kiguta & 2 others (2015) eKLR Civil Appeal 25 of 2020 where the court cited Des Raj Sharma -v- Reginam (1953) 19 EACA 310, where it was held that there is a distinction between exhibits and articles marked for identification; and that the term “exhibit” should be confined to articles which have been formally proved and admitted in evidence. In the Nigerian case of Michael Hausa -v- The State (1994) 7-8 SCNJ 144, it was held that if a The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 54/85

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document is not admitted in evidence but is marked for identification only, then it is not part of the evidence that is properly before the trial judge and the judge cannot use the document as evidence. 203. It was submitted that a document marked for identification only becomes part of the evidence on record when formally produced as an exhibit by a witness and that failure by a party to object to the marking of a document for identification cannot be said to be accepting admissibility and proof of the contents of the document. That, admissibility and proof of a document are to be determined at the time of production of the document as an exhibit and not at the point of marking it for identification. That, until a document marked for identification is formally produced, it is of very little, if any, evidential value. Reliance was placed on the case of Criminal Appeal 35 of 2017 Annie Butoyi Ciza -vs- Republic where the court stated that; “the chain of custody of exhibits is so crucial to a case because it confirms where they were recovered and they did not exchange hands as to cast doubts…in the present case the chain of custody is not foul proof” 204. It was submitted that PW9 and P.C. Woman Janet Akello collected the bullet heads and the cartridges, never marked the exhibits and placed them in a khaki bag hence failing to conform with the stipulated rules of handling cartridges. That, according to PW 12’s testimony, he could not establish the source of the bullets and the markings were inconclusive and this could have been occasioned by the handling and the storage. That, both PW 9 and PW 10 testified that they did not prepare any inventory or any exhibit memo of the exhibits collected. That, PW 9, 10 and 21 testified that they handed over the exhibit from Mwingi level 4 amongst themselves without any documentation or inventory and there is no proof that the said cartridges and bullet heads were collected from the scene of crime. That, this is in clear contravention of the laid down procedures and demonstrates the casualness with which the exhibits were handled. That, PW 12 did not produce Firearms Examiner’s Report MFI 19 in court therefore it cannot be relied upon as evidence. 205. With regard to the murder weapon and the value of the evidence of a ballistics expert, it was submitted that it may be apt to refer to what the experts say. That, Robert Churchill was a gun and ballistics expert of great renown in The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 55/85

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London for over 50 years and his biographer, Macdonald Hastings, in the book, The Other Mr. Churchill: A lifetime of Shooting and Murder, Four Square Books, 1966 states as follows at page 118; “The term ‘forensic ballistics’ is in itself intimidating to a layman. It may be defined more simply as the science to determine in the pursuit of justice the relationship of the parts of a firearm with the bullets that come out of it. Just as under the microscope no two razor blades, no two blades of grass, no two matchsticks, are exactly alike, so the firearms expert endeavors to discover the completely individual characteristics of every weapon-even weapons of the same make, mark, and calibre, and off the same assembly line-and to connect the gun without doubt, with the bullet it spits out and the empty cartridge case which is left behind.” 206. That, his article, “Scientific Identification of Firearms and Bullets”, 17 Am. Inst. Crim. L. & Criminology 254 (1926-1927) states as follows at page 258; "Every pistol barrel, even when fresh from the factory (and much more so after undergoing wear and tear) contains minute irregularities which are peculiar to it alone, and which will never be reproduced in any other. These irregularities leave their marks, the same ones each time, in the form of fine and coarse linear striations parallel to the deep incisures cut by the groove edges, on every bullet fired from this barrel, and they constitute, to all intents and purposes, a fingerprint of that particular barrel. It can never be exactly reproduced, any more than can the fingerprint of a human being.” 207. That, as regards marking on cartridges, Prof. Keith Simpson, who was an Emeritus Professor of Forensic Medicine to the University of London at Guy’s Hospital and the Home Office Pathologist, observes in his book, Forensic Medicine, 8th Edition, ELBS, 1982 at page 76 that; “The empty cartridge may be extracted from the chamber by a bolt action, ejected by a cam mechanism on ‘breaking’ the weapon or, in automatic pistols, thrown out mechanically by an extractor operated by The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 56/85

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discharge gases. Such empty cases bear marks individual to the weapon, which has fired them-from the chamber, hammer, breech-face and ejector. The expert can, by comparing a ‘crime’ shell-case with trial cases fired from a suspect weapon, say whether that weapon fired the ‘crime’ shell, for the innumerable scores and scratches imprinted on it are repeated every time a round is fired from the weapon.” 208. It was submitted that according to the evidence of PW 12, he examined the bullets but could not tell the source of some of the bullets as the markings were inconclusive. On cross examination he further stated that he could not approximate when the bullets were fired. That, according to PW 13, the 1st accused person returned his Ceska gun in good condition and with all the ammunition as per the arms movement register. He also stated that he could access the armory and issue himself with a firearm without supervision. 209. That PW 13 clearly demonstrated that the firearm issued to the 1st Accused had been returned and confirmed to have been in good condition on 24/08/2016 hence it was impossible for the 1st Accused to have used the firearm on the night of 24th and 25th. That, in any event, it was not demonstrated by way of evidence or otherwise that the Ceska pistol produced in court was the only one of that make at Mwingi Police Station. That, according to PW 21, they collected spent 17 cartridges and 4 bullet heads at Mwingi Level 4 hospital scene but he could not account for the other 13 bullet heads. 210. With regard to malice aforethought, reliance was placed on the case of R -vs- Ismail Hussein Ibrahim, Criminal Case Number 4 of 2016 for the submission that malice aforethought is described as the mens rea or the mental element required for a conviction for the offence of murder. That, the term imports a notion of culpability or moral blameworthiness on the part of the offender. That, if malice aforethought is lacking, the unlawful homicide will not be murder but manslaughter. That, Section 206 of the penal code provides for circumstances which if manifested in any particular case malice aforethought is deemed to be established. 211. It was submitted that according to PW 21, the two Accused persons were carrying out investigation in Criminal Case 8/5/2016 CMCRC Kitui and that could have been the motive of the murder. That, however, no charge sheet or The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 57/85

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proceedings relating to the said case were produced as evidence to support this allegation and in any event, the alleged co-accused in the said Criminal case, one Paul Mutinda, was never called as a witness. That, the prosecution has therefore failed to discharge, to the expected standard, the burden of proof to demonstrate malice aforethought on the part of the Accused persons. 212. With regard to circumstantial evidence, reliance was placed on the case of Ahamad Abolfathi Mohammed and Anor for the submission that before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the Accused person, and to no other person, as the perpetrator of the offence. 213. Further reliance was placed on the case of Abang’a alias Onyango -vsR CR. App. No 32 of 1990 where the court stated that circumstantial evidence must satisfy the following three tests; (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; (iii) the circumstances taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and none else.” 214. Further reliance was placed on the case of Republic -vs- Kipkering Arap Koske & Another 16 EACA 135 where the court stated; “In order to justify the exculpatory facts with the innocence of the accused, and incapable of any explanation upon any other reasonable hypothesis that that of guilt. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 58/85

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reasonable hypothesis of innocence is on the prosecution and always remains with the prosecution. It is a burden which never shifts to the party accused.” 215. It was submitted that throughout the prosecution’s case, a lot of discrepancies and inconsistency are clearly evident. That, PW 21 testified that several Police officers were arrested but could not explain why some were released even before the investigations were concluded. That, only two Police Officers were subjected to identification parade and the 1st Accused person proceeded to be charged despite negative identification. 216. That, PW 2 and PW 3 testified that after the first shooting in Ukasi, the deceased disclosed to them that he was shot by a person of Cushite descent (Woria). That, despite two of the Police officers being from a Somali descent, no investigation was conducted. 217. That, PW 12 testified that he received the Exhibit Memo to conduct ballistic examination on the firearms on 02/09/2016 and issued the report on 08/09/ 2016. That, the 1st Accused person had already been arrested despite having returned his firearm in good condition as evident in the arms movement with the 15 rounds of ammunition hence raising doubts as to the transparency of the investigations. 218. That, PW 21 testified that they arrested the 1st Accused person on 26/08/2016 - just one day after the alleged incident - based on Safaricom data that placed him in Ukasi. That, however, the request for the said data was sent on 29/08 2016 when the 1st Accused was already in custody and the report was issued on 17/09/2016. That, the I.O appeared to be in a hurry to charge the 1st Accused person and the data evidence itself did not comply with the provisions of Sec106 (B) (4) of the Evidence Act which requires an Electronic Evidence Certificate. 219. That, PW 21 appeared to be incoherent in understanding a case he was supposed to be investigating and he was clueless about the events that transpired. That, he was unable to tell who took him to the residence of the deceased and could not tell how many officers were present with him at Mwingi Level 4 Hospital. That, there was no investigations carried out to warrant to press charges on the magnitude of this matter. That, one can only read the pressure that PW21 had to press charges against the 1st Accused and it is not The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 59/85

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lost to keen eye that malice can be inferred. 220. That, PW 21 testified that there are two police officers (Daniel Thuku and Vincent Rono) who deserted the force and are still at large. That, they were initially charged together with the 1st Accused person and it beats logic how the said persons were charged along the 1st Accused yet they had not been arrested in the first place. That, the said persons have never been arrested despite warrants of arrest being issued against them back in 2016. That, further PW 8, recognized one of them “CID man Kiprono” at Mwingi level 4 hospital at the material time and PW 3 gave the description of the perpetrator to suit that of one Daniel Thuku. That, no efforts have been made to apprehend them. 221. Reliance was placed on Criminal Appeal No. 35 of 2017 Anne Butoyi Ciza -vs- Republic where it was held that Courts of concurrent jurisdiction and higher have delivered themselves that the failure to call crucial witnesses heavily weakens the prosecution case. That, when it is clear that there was deliberate failure to call the witness(es), an inference may be drawn that had the witness been called he would have adduced adverse evidence for the prosecution (Bukenya -vs- Uganda (1972) EA, 549). It was contended that a similar inference should be drawn in the instant case, particularly in view of the discrepancies in the evidence of the witnesses. 222. It was submitted that some of the major witnesses were not called to give evidence and that despite P C Woman Janet Akello taking the initial photos at the Mwingi Level 4 hospital and collecting the cartridges and bullet heads and being the first officer at the scene, she did not record any statement and neither was she called as a witness. 223. In the supplementary submissions, it was submitted that in order for a charge of Murder to be established, the prosecution must prove beyond reasonable doubt that the accused person was responsible for the death of the victim and that the accused person had planned to cause the death of the victim i.e intentional killing of the victim. These elements are mens rea and actus reus. That, the 1st Accused was barely three months in active service at Kitui Police Station and could not have known the Deceased and intended to harm let alone kill him. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 60/85

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224. It was submitted that the Prosecution failed to adduce evidence that the 1st Accused person shot the Deceased and therefore the element of actus reus fails. That, all evidence by the 1st Accused and indeed the prosecution supported the fact that the 1st Accused was not armed at the alleged time of the second shooting at the Hospital and that he returned the firearm to the armory in the same condition he had collected it. That, none of the witnesses who are said to have witnessed the shooting could identify the 1st Accused as the shooter. 225. That, according to the testimony of PW3, she saw the shooter and even spoke to him and asked why he wanted to kill the deceased in her presence. That, even the Deceased had informed PW3 that the shooter had come “Kunimaliza” hence implying that the alleged shooter must have been involved in the alleged shooting at Ukasi. It was contended that the 1st Accused was not at Ukasi at the time of the alleged shooting or at all and that PW3 did not identify the 1st Accused on two occasions - first at the Identification Parade and again in court hence the test of positive identification of the 1st Accused fails. 226. In conclusion, this court was urged to dismiss the case against the 1st Accused and acquit him accordingly. Submissions by 2nd Accused. 227. The submissions were filed on behalf of the accused person by the firm of Robert Paul Onyango. 228. It was submitted that the burden of proof in criminal cases lies with the prosecution and does not shift to the accused person because the accused person’s constitutionally guaranteed rights include the right to remain silent, the right to adduce and challenge evidence and the right not to give any incriminating evidence. That, the burden of proof in criminal cases is beyond reasonable doubt and that the prosecution is required to strictly prove the allegations made against an accused person as per the information filed in Court. 229. The Judiciary of Kenya It was submitted that in murder cases, the prosecution must prove the Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 61/85

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following; that the death of the deceased occurred, that it is the accused person who committed the unlawful act which caused the death of the deceased and that the accused person had malice aforethought. Reliance was placed on the case of Meru High Court Criminal Case No. 71 of 2010; Republic -vsMichael Muriuki Munyuri where the court held that 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. 230. It was submitted that the learned Judge further observed as follows with regard to dying declarations; “The general rule on which a dying declaration is admitted in evidence is that it is a declaration made in extremity when the maker is at a point of death and the mind is induced by the most powerful consideration to tell the truth. There need not be corroboration in order for a dying declaration to support a conviction but the exercise of caution is necessary in reception into evidence of such declaration as it is generally unsafe to base a conviction solely on the dying declaration of a deceased person.” The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 62/85

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231. That the learned Judge further observed as follows with regard to circumstantial evidence; “It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests”: - a) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. b) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. c) The circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. 232. As to whether the death of the deceased was proved, it was submitted that the same was proved through exhibit 13. 233. As to whether it is the 2nd accused who committed the unlawful act which caused the death of the deceased, it was submitted that there is no direct evidence linking accused 2 to the death of the deceased. That there is no evidence on record to confirm that accused 2 committed any unlawful act which could have directly or indirectly caused the death of the deceased. That, the prosecution’s case against accused 2 has generally been based on circumstantial evidence which is far-fetched. 234. As to whether the 2nd accused had malice aforethought, it was submitted that throughout the entire prosecution’s case, no evidence was tendered before the Court to confirm whether Accused 2 had any motive whatsoever to cause death or grievous harm to the deceased. That, the prosecution was unable to make any connection whatsoever between Accused 2 and the decease and no evidence was tendered to even prove that Accused 2 and the deceased person knew each other, met physically at any time or whether Accused 2 was familiar with the deceased through past encounters or otherwise. Reference was made to the evidence by PW-4 in which he stated that the deceased was able to The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 63/85

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identify the person(s) who shot and killed the deceased when the deceased shouted “ndio hao wamekuja kunimaliza.” 235. It was submitted that the last words of the deceased “ndio hao wamekuja kunimaliza” if taken in proper context should be treated as a dying declaration showing that the deceased knew well the people who shot him earlier in Ukasi and was able to identify them positively just before he was shot severally in the ward to his death. It was contended that accused 2 was not one of the people who were positively identified by the deceased as all the eye witnesses and protected witnesses could not identify or place accused 2 at the scene in Mwingi District Hospital and they all confirmed that they did not see accused 2 at Mwingi District Hospital. 236. It was submitted that having failed to prove all the circumstances of malice aforethought against accused 2 and having failed to prove that accused 2 had any intention to commit a felony against the deceased, the prosecution has not proved their case to the required standards and the entire prosecution’s evidence cannot secure a conviction against Accused 2. 237. It was submitted that the information presented in court by the prosecution does not mention the area of Ukasi and therefore, accused 2 was under no obligation under the law to be prosecuted or to defend himself on anything touching on Ukasi as the information read to him was restricted by the prosecution to Mwingi district Hospital. That, based on the evidence on the Court record, the prosecution has not been able to prove or justify a case of circumstantial evidence against accused 2. That, the prosecution is purely relying on suspicion against Accused 2 and the Court of Appeal stated in Sawe vs- R [2003] KLR 364 that suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt. 238. It was submitted that the postmortem report confirms that the deceased died out of bullet shot wounds and accused 2 could not have caused any penetrating wound on the deceased as the firearm that was assigned to him was returned intact with all rounds of ammunition and the relevant prosecution witnesses confirmed that Accused 2 did not use his firearm between the 24th and 25th August 2016.That, the prosecution did not lead any evidence to prove The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 64/85

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whether Accused 2 had any other firearm apart from the one assigned to him in the Firearm Movement register. That, the question which remains unanswered by the prosecution is how Accused 2 could have caused a penetrating wound on the deceased with bullets without having fired a single shot during the period in question. 239. It was submitted that to dispel any doubts that might be cast on accused 2’s whereabouts between 23rd August 2016 and 25th August 2016, accused 2 testified that his role in this case was that of a police driver and the records provided by the prosecution show the following; a) On 23/08/2016, motor vehicle registration number GKB 886E was, according to the Daily Work Ticket, assigned to Accused 2 at 0730 Hrs. and the vehicle remained in his custody and control till 0137 Hrs., about an hour and a half past midnight on 24th August 2016. (NB: it is this same vehicle that the prosecution was alleging was used to pick the deceased at his house at around 0400 Hrs. in the morning of 24th August 2016). b) The prosecution did not explain how motor vehicle registration number GKB 886E that is said or suspected to have been driven by accused 2 is the same vehicle that was used to pick the deceased from his house at 0400 Hrs. in the morning of 24th August 2016, yet the Daily Work Ticket confirms that the said motor vehicle was assigned and handed over to accused 2 for the first time on 24th August 2016 at 0730Hrs. on the same day and accused 2 surrendered the vehicle back at 0137 Hrs., almost 3 hours before the time when the deceased was picked from his house at 0400 Hrs.. c) That according to the Daily Work Ticket, at around 0400 Hrs. on 24/08/2016 when the deceased was picked from his house, the motor vehicle registration number GKB 886E was not in use or in motion and was not in the custody or control of accused 2. d) On 24/08/2016, (which is material to the information filed in this Court by the prosecution), motor vehicle registration number GKB 886E was, according to the Daily Work Ticket, assigned to Accused 2 The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 65/85

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at 0800 Hrs. and the vehicle remained in his custody and control till 0015 Hrs., a few minutes past midnight on 24th August 2016. (NB: no evidence was led to confirm that accused 2 could have used any other vehicle to take him to Mwingi even if he wanted to as this is the night when the deceased was shot dead at Mwingi District Hospital). e) Further, there is no evidence that was provided by the prosecution by way of cell phone signal that placed or located accused 2 at Mwingi District Hospital around the time when the deceased was shot to his death. f) On 25th August 2016, (which is material to the information filed by the prosecution in this Court), motor vehicle registration number GKB 886E was according to the Daily Work Ticket assigned to accused 2 at 0720 Hrs. and the vehicle remained in his custody and control till 2320 Hrs. the same day. 240. It was submitted that according to PW 21’s evidence, accused 2 was part of planning, execution and assisting in the murder of the deceased. However, it was contended that PW 21 fell short of providing any tangible evidence that points towards accused 2 as the person who could have planned, executed or assisted in the murder of the deceased. That, the prosecution has not identified who in particular hatched the alleged plan and what role accused 2 played in the alleged plan leading to the death of the deceased. That, if accused 2 was considered by the prosecution to have planned, executed or assisted in the murder of the deceased, nothing stopped the prosecution from charging him with the offence of being an accessory after the fact to murder. 241. In conclusion, it was submitted that the prosecution has not proved its case against accused 2 in terms of the information filed in Court and no evidence whatsoever has been brought to court to connect accused 2 to the murder of the deceased, even remotely. Analysis & Determination The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 66/85

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242. This matter began in Kitui at an estate named Majengo where the deceased Ngandi Malia was picked by 4 persons he believed to be C.I.D officers, who drove out of Kitui, to a place called Ukasi off the Garissa – Kitui Road (Mwingi) took him into a bush and shot him, leaving him for dead. This was on 24.8.2016. 243. He did not die. He got help to Mwingi hospital with three bullet heads on his head. He was admitted that night – and was visited by his sister who was with him at 2:00 a.m., when 2 armed men walked into the male ward and pumped 17 bullets into his body – the impact throwing him off the bed, onto the floor .as his sister watched in horror and another relative hid under the bed. 244. When the killers entered the room he identified them as among the persons who had picked him from his house early that day and left him for dead in a thicket at Ukasi. He said so by shouting hawa ni wale, wamekuja kunimaliza. The two men walked away after the shooting. 245. The result, a dead man – who had told the same story to the police at the road block mounted by police officers from UKasi Police station at Ukasi where the bus that rescued him dropped him, the boda boda rider who was called by the police officers to take him to hospital Ukasi Health Centre, the Clinical Officer at Ukasi Health Centre, the clinical officer, and medical officer and nurse at Mwingi Level 4 Hospital, his relatives who visited him that night, and same police officers who also visited him after they were called by the medics. 246. CID officers from Kitui DCI office were considered suspects. A number were arrested during investigations but two disappeared before they were charged. 247. The first file was opened in Machakos – HCCRC.35/2016 R vs Gilbert Maina, Daniel Thuku, &Vincent Kipngetich. 248. Paul Odoyo Ng’oma was charged in Machakos HCCRC.37/2016. 249. After a Preliminary Objection was raised in the 1st case, regrading territorial jurisdiction these matters were transferred to High Court Kitui by Ogola J, and became Kitui HCCRC.26/2016 with the two files consolidated and the accused herein being the 1st and 4th accused. Plea for Accused 1 and Accused 4 was taken on 6th December 2016 before Mutende J – as Accused 3 and Accused 4 were still at large. However, the judge – Mutende J, recused herself from the matter because the 1st accused was at the time sitting in the Court Users Committee as a member. 250. The matter was transferred to Makueni – and acquired the No.203/2017. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 67/85

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However, the Republic applied for its transfer to Nairobi for the safety of the witnesses who were under witness protection. It was transferred under Ruling of 5th June 2018 by Hon. C. Kariuki J and it became Milimani HCCRC.29/2018. Upon transfer to Milimani – it was mentioned before Hon Wakiaga J, and Hon Lesiit J, as she then was and it was determined that the matter be heard by Hon C. Kariuki J as the first four witnesses were protected witnesses. 251. Hon C. Kariuki J, heard PW1, 2 3 and 4 at Milimani High Court; The matter came back to Makueni and Hon Ong’udi J as she then was heard PW5, 6, 7, 8, 9, and 10;Hon Dulu J, heard PW11, 12, 13, 15, 16, 17, 18, 19, 20. I heard PW21 and the defence. 252. Thereafter, the matter reverted back to Makueni. It is clearly evident that I did not hear the bulk of the witnesses – and I must rely on the evidence recorded by the honorable learned judges who preceded me in the matter. 253. Now Section 203 as read with s. 206 of the Penal code sets the ingredients of the offence of murder. These were summarized by the Court of Appeal in Anthony Ndegwa Ngari -vs- R [2014] eKLR, as follows; a) The death of the deceased occurred and its cause. b) That the death was caused by an unlawful act committed by the accused (actus reus). c) That the accused had malice aforethought (mens rea). 254. After careful consideration of the evidence and the submissions, the issue for determination is whether the prosecution has proved the charge against the accused persons beyond a reasonable doubt. i. Proof of death ii. Cause of death iii. Who caused the death? iv. Whether there was malice afore thought? v. Final Orders Proof of death 255. In this case, the death of the deceased is not in dispute. Pw3 and Pw4 were present when Ngandi Malia was shot. PW 11 Dr. Martin Nkulet, the medical superintendent at Mwingi Level 4 Hospital according to his treatment notes (P. Exh 19), he reviewed the body in the morning of 25/08/2016 and confirmed that the patient was dead. 256. The post mortem report (P. Ex 13) confirms the death and also indicates The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 68/85

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that the deceased was identified by PW1, his brother Geoffrey Muthui and his brother-in-law, Joel Mutunga at the Mwingi hospital mortuary. Accordingly, the deceased’s death was sufficiently proved. Cause of death 257. Dr. Johansen Oduor (PW 16) performed the post mortem and prepared the post mortem report which indicates that the cause of death was ‘multiple injuries due to gunshots from low velocity firearm’. Additionally, PW3 and 4 testified that the deceased was shot in their presence at the hospital. Consequently, the cause of death was sufficiently proved. He did not die of natural causes. Who caused the death 258. When the deceased arrived at the Mwingi hospital he had been referred from the Ukasi dispensary with gunshot wounds. Part of the history he gave to the clinical officer who attended to him was how he was picked from his house in Majengo - Kitui by CID officers and transported to a bush in Ukasi where he was ordered to lie down and was shot from behind, how he feigned death and later crawled to the road and was assisted to go to Ukasi hospital. PW 1 produced certified treatment notes (P. Ex 2) from the hospital and the said history is captured therein. 259. This history was repeated to PW3 whom the deceased called using the phone of the boda boda rider who was ferrying him to Ukasi hospital. He stated that the four officers transported him in a white Landcruiser, one of whom was (woria) and how he was taken to a bush near Ukasi and shot. The boda boda rider (PW6) confirmed that he ferried the deceased and that the deceased borrowed his phone and talked to somebody in Kikamba language. 260. It is not in dispute that the two accused persons were charged together with two others who are still at large and that the four of them were CID police officers at Kitui Police Station. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 69/85

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261. The history given by the deceased, and his reaction in the hospital ward when the two gunmen entered the room ended up becoming his ‘dying declaration’ . This is because according to him CID officers had picked him from home, had shot him and left him for dead with gunshot wounds and three bullet heads in the head. When he got away, while undergoing treatment for those wounds they found him in the ward and in the hearing of PW3 and PW4 he screamed ‘ndio hawa wamekuja kunimaliza’. And , all the while he was in the hospital ward he expressed fear for his life and at one point wanted the doctor to take him away with him. 262. The history that he gave repeatedly and the statements he made just before he was shot constitute a dying declaration. The Dying Declaration 263. This doctrine and its admissibility or lack thereof of dying declarations is provided for under . Section 33(a) of the Evidence Act, Chapter 80 of the Laws of Kenya which states; 33.Statements, written or oral or of electronically recorded of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases: (a)Relating to cause of death; When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question and such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. ( emphasis is mine) The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 70/85

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264. The predecessor to the Court of Appeal in Pius Jasunga s/o Akumu -vsR (1954) 21 EACA 333 discussed the aspect of a dying declaration. In that case, the deceased had been found lying on the road with a stab wound in his chest. He told the police officer who had found him that he had been stabbed by the appellant. The officer took him to hospital from where the deceased’s statement was also recorded. In that statement, the deceased stated that he was on his way home when the appellant and another person confronted him. The appellant demanded money from him and assaulted him; he also threatened that he would kill him if he did not give him money. The appellant then drew a knife stabbed the deceased in his chest. He fell down and the appellant and the other man ran away. He died of internal hemorrhage and shock the following morning. 265. In discussing the admissibility of a dying declaration, the Learned Judges in the Jasunga case (supra) had the following to say; “In Kenya, the admissibility of a dying declaration does not depend, as it is England, upon the declarant having at the time, a settled, hopeless expectation of imminent death, so that the awful solemnity of his situation may be considered as creating an obligation equivalent to that imposed by the taking of an oath. In Kenya (as in India), the admissibility of statements by persons who have died as to the cause of death depends merely upon section 32 of the Indian Evidence Act. It has been said by this court that the weight to be attached to the dying declarations in this country must, consequently, be less than that attached to them in England, and that the exercise of caution in the reception of such statements is even more necessary in this country than in England. The question of the caution to be exercised in the reception of dying declarations and the necessity for their corroboration has been considered by this Court in numerous cases, and a passage from the 7th edition of Field on Evidence has repeatedly been cited with approval. The caution with which this kind of testimony should be received has often been commented upon. The test of cross-examination may be wholly wanting; and... the particulars of the violence may have occurred circumstances of confusion and surprise calculated to prevent their being accurately observed…The deceased may have stated his inferences from facts concerning which he may have omitted important particulars, from not having his attention called to them. Particular caution must be exercised when an attack takes place in darkness when identification of the assailant is, usually, The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 71/85

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more difficult than in daylight (R v. Ramazani bin Mirandu (1934) 1 E.A.C.A 107; R v. Muyovya bin Msuma (1939) 6E.A.C. A. 128. The fact that the deceased told different persons that the appellant was the assailant is evidence of consistency of his belief that such was the case: it is no guarantee of accuracy.” 266. As to whether the dying declaration must be corroborated in order to sustain a conviction, the Learned Judges had this to say; “It is not a rule of law that, in order to support a conviction, there must be corroboration of a dying declaration (R. v. Eligu s/o Odel &Another 1943) 10 E.A.C.A 90; re Guruswami (1940) Mad. 158, and there may be circumstances which go to show that the deceased could not have been mistaken in his identification of the accused… But it is, generally speaking, very unsafe to base a conviction solely on a dying declaration of a deceased person, made in the absence of the accused and not subject to cross-examination, unless there is satisfactory corroboration. R v Said Abdulla, (1945) 12 E.A.C.A 67; R v Mgundwa s/o jalo and others, (1946) 13 E.A.C.A 169, 171.).In addition to the cases cited above, we have examined the decisions of this court on the subject of dying declarations since 1935 and we have been unable to find a single case where a conviction has been upheld which was based upon a dying declaration without satisfactory corroboration, unless, as in Epongu’s case (Epongu s/o Ewunyu, (1943) 10 E.A.C.A 90) there was evidence of circumstances going to show that the deceased could not have been mistaken in his identification of the accused. The learned trial judge convicted the appellant based on the assessors’ unanimous verdict that the appellant was guilty. 267. On the weight to be attached to a dying declaration, the Learned Judges rendered themselves as follows; “The statement was, apparently taken when the accused was suffering from extreme exhaustion: it was un acknowledged and there is no means of knowing whether the deceased would have acknowledged its correctness or would have wished to alter or add to it, had he been able to do so. If the statement had, on the face of it, been incomplete because the accused had sunk into a coma before he finished it, it would have been inadmissible (Waugh v The King, (1950) A.C 203) … It is not necessary, in order to render a dying statement admissible, that it should be a complete account of the attack, provided that it is, or may rationally be assumed to be, all that the deceased wished to say about it. (Sarkar on Evidence, 9th Edition, p 510). But the weight to be accorded to a dying statement must depend, to a great extent, upon the circumstances in which it is given, and the effects of a The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 72/85

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wound may dim the memory or weaken or confuse the intellectual powers. (Sarkar on Evidence, 9th Edition pp.303,309).” 268. Accordingly, the elements of a dying declaration were distilled in Republic -vs- Kweli & Anor (Criminal Case 2 of 2017) [2023] KEHC 25892 (KLR) (28 November 2023) (Judgment) as follows; a) The statement must have been made by the deceased. b) The statement must refer to the accused. c) The statement must relate to the cause of one’s death, or as to any of the circumstances of the transaction which resulted in one’s death. d) Whereas there is no standing rule on the need for corroboration of a dying declaration, extreme caution must be taken in assessing the weight to be attached to a dying declaration. 269. In this case, the evidence points to the all the presence of all elements 270. The deceased made the statements. 271. The statements identified the accused persons not specifically person by person but as part of a team: officers from CID Kitui Office. 272. The statements spoke about his death. The first attempt at killing him did not succeed. The second time he saw the two men and stated that they were the same people who had come to finish him. And they did. 17 bullets. 273. The court takes seriously the guidance set out in precedent : the need to exercise caution in assessing the weight to be attached to the dying declaration and while it is not a rule of law that, in order to support a conviction, there must be corroboration of a dying declaration and there may be circumstances which go to show that the deceased could not have been mistaken in his identification of the accused, the court is warned that it is , very unsafe to base a conviction solely on a dying declaration of a deceased person. 274. This is because it is made in the absence of an accused person, it is not subjected to cross examination, hence the need for satisfactory corroboration, unless it is evident that the deceased could not have been mistaken in his identification of the accused The Corroboration: The Ballistics Evidence 275. In considering this aspect of the case constantly kept in mind the defence statements by each of the accused persons. Each of the accused is presumed innocent until proven guilty and the onus is always upon the The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 73/85

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prosecution to prove each his guilt. 276. In their statements of defence each of the accused persons herein each denied being anywhere within the vicinity of Ukasi where the first shooting took place , and that they were not in Mwingi on the night of the shooting at the hospital. The 1st accused told the court he was generally within Kitui and at night went to Mbondoni and came back on the morning of 25th August 2016. That he also handed over his Ceska pistol with 14 rounds of ammunition to the armorer, Cpl Adan on the evening of 24th August 2016. The 2nd accused relied heavily on the work ticket that did not have any entries for anu authorised journey to Ukasi or Mwingi. 277. The deceased was shot in two different scenes. The evidence as presented what happened at both scenes as the transactions that led to the death of the deceased herein. The Ukasi scene flowed into the Mwingi Hospital scene. 278. The fact that there was movement in a motor vehicle, and guns were involved the evidence of the whereabouts of the accused persons and the m/s vehicle, and about their firearms was critical 279. Cpl Adan handed over all the firearms that were issued on 23rd August 2016 to the CID officers, Kitui. The ballistics expert (PW 12) analyzed a total of 12 firearms and found that two the Ceska issued to 1st accused and a Jericho issued to CI Thuku ( at Large) were used in the Mwingi hospital shooting. The bullet heads were from a Taurus revolver 280. The police reservist, Mwangangi Tangili (PW5) testified that on 24/08/2026, he saw the deceased with gunshots on the head at the Ukasi area and that he assisted him to get a bus which took him to the police road block. The boda boda rider (PW 6) confirmed that, on the material day, he was called to the Ukasi road block by Corporal Yoya where he found the deceased bleeding from the head and took him to Ukasi hospital. The Clinical Officer of Ukasi hospital (PW 15) confirmed that, on the material day at 2.00pm, the deceased was taken to Ukasi hospital in a lot of pain and blood was oozing from the mouth and back of head. 281. PW 10 - CIP Isaiah Mwiranga- produced an inventory (P. EX 12) of what was recovered from the deceased’s body during post mortem i.e three bullet heads; two from the left occipital and one from upper left neck (P. Ex 24). Additionally, PW 10 testified that the three bullets recovered from the back of deceased’s head were from a Taurus pistol of 38mm calibre . The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 74/85

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282. Perusing the arms movement register produced in court revealed a significant piece of evidence. That the Taurus firearm s/no XG18067 was consistently issued to one Cpl S. Mwenzwa from June , July 2016 including the period when this offence was committed. The evidence on record is that the bullet heads found lodged in the deceased’s head were from a Taurus revolver. 283. The totality of this evidence : the deceased’s account to numerous people that officers from Kitui CID office had picked him and taken him to Ukasi and shot him; the fact that the bullet heads shot at Ukasi and extracted from his head were shot by a Taurus revolver; the evidence of the government analyst about the presence of the deceased’s blood at the scene; those who saw the deceased after he was shot at the Ukasi scene:. This evidence places the deceased and the police officers from Kitui CID office at the scene at Ukasi where the deceased was first shot and left for dead. The Taurus Revolver and the bullet heads in the deceased’s head clicked the connection between the CID officers and the shooting at the Ukasi. It would explain why Cpl S Mwenzwa was arrested because at the material time he was the only officer issued with a Taurus firearm. 284. Regarding the shooting at the hospital the Ballistics expert confirmed that among the cartridges found at the scene , 9 of them marked as a(1) – a(5), a(8) – a(14), a(16) and a(17) were fired from Ceska Pistol SNo. F3841. This was the firearm issued to IP G Maina the 1st accused as per the firearm movement register; the cartridges marked a(6), a(7) and a(15) were fired from J3 – Jericho pistol serial 45302638 which was issued to C.I D Thuku again as per the firearms movement register. These firearms were present at Mwingi hospital where the deceased was shot to death. Those who shot, shot17 bullets into him to ensure he was completely dead. 285. The evidence on record leaves no doubt that three firearms a Taurus, a Jericho and a Ceska belonging to the CID Kitui office were used in the shooting of the deceased herein sometime in afternoon of 24th August 2016 and the early hours of 25th August 2016. From the arms register these had been issued to Cpl S. Mwenzwa, CI D. Thuku and IP G. Maina during that period. The Corroboration: The Call Data, Personal and Motor 286. The call data evidence given by the investigation officer PW21 placed the The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 75/85

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two accused persons on the road to Ukasi, and the m/vehicle GKB 886E at Ukasi area, which is the area where the deceased was first shot.. 287. From this call data it emerges that 1st accused person did not tell the truth when he said he was at the Kitui Police Station and within Kitui the whole day of 24th August 2016. His call data placed him within Kitui on 24/08/2016 from 07:56 hrs. to 08:13 hrs.. His phone went off until 1536 hrs.. His evidence about having lunch at the Police Canteen at 1:00pm is not verifiable but there is evidence that the m/v GKB 886E was along Thika Garissa Highway between 8:21 am and 15:02 and 15;24 pm and 17:01 PM. His call data shows that around that time he was in Katutu/ Kangonde area which is along the Thika Garissa Highway which was the way to and from Ukasi. His defence as to his whereabouts during the day did not dislodge the evidence that he was out of station and not in Kitui town at the alleged times. The evidence places him in the places where the deceased was first shot. 288. In addition, the same call data placed the 1st accused person in Mwingi between 19:55 and 23:56Hrs.. His colleague Rono ( at large) was identified by the gate askaris within the vicinity of the hospital that night . It is evident that the call data evidence on record establishes that the 1st accused was within the vicinity of the killing at Mwingi Hospital that was about to take place, and from the circumstances of this case, he knew/ was aware of what was about to happen. 289. The 2nd accused Paul Odoyo Ng’oma was also not truthful when he denied that the m/vehicle for which he was the sole driver did not leave Kitui on the material date. His own phone data, and the movement records of the m/vehicle place him on the road to Ukasi and at Ukasi itself. 290. From this call data, the 2nd accused, on 24/8/2016, went to Ukasi and returned to Kitui. At 0944hrs., he was at Mwingi. At 1033, hrs. he was captured at Nguni along Garissa Road, at 1148hrs. he was captured at Ngomeni on the way to Mwingi, at 1259hrs. he was captured at Katumba along the way to Ukasi, at 1318 hrs. he was at Ukasi, he came back , was captured at Mbitini at 1344hrs.. 291. The evidence places the 1st and 2nd accused in the m/vehicle that picked the decease with their colleagues could not have been at the police station in Kitui as the m/v was at Ukasi and along the Garissa Thika Highway most of the days. The evidence on record renders the statements of defences as to their whereabouts on the 24th and 25th August 2016 not believable. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 76/85

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292. The 2nd accused made reference to the work ticket. However, the work ticket was evidently contradicted by the tracked actual movements of the motor/vehicle he was driving. There is no evidence that there was any other driver for that m/vehicle or that he handed it over to any other driver. Evidently he drove it at all material times. 293. It is also not in doubt that the CID officers had a civilian number plate for the m/vehicle 294. I am persuaded by the evidence on record that the accused persons before me together with the two suspects at large and most likely Cpl Mwenzwa were in the police m/vehicle that ferried Nganda Malia from his house to Ukasi where he was shot leaving three bullet heads in his head. The Corroboration: The 1st accused’s firearm puzzle 295. According to the totality of the evidence on record, deceased was killed at the Mwingi hospital at around 2.00am on 25/08/2016 . So, nine of the spent cartridges came from the Ceska Pistol S.No. F3841 , three from the Jericho pistol. According to the 1st accused he returned his firearm to the armory of 24th at about 6:00pm. That he physically handed over the firearm and the 14 rounds of ammunition that had been issued to him in good order to Cpl Adan the armorer. It was his defence that he did not have the firearm on the night of 24th August 2016 , and the entry in the firearm register proved this. 296. So, the question became: That the deceased was shot with a gun which was in the armory, that he was shot with a gun which did not expend any bullets? How was the court to consider this evidence in light of the evidence of the ballistics expert that nine cartridges from the scene were shot by that gun; that there was evidence from the scene that it was that gun that shot those bullets? Yet there are no charges against PW13 the armorer for misuse of firearms. 297. The deductible conclusion here is that the movement register was also not truthful and was tampered with. A keen observation reveals the shifting around the last pages of the register evidenced by staple holes on the wrong side of the pages. Be that as it may PW13 the armorer had this to say that on 23/8/2016, he was approached by IP Maina- his senior who told him that he (Maina) had been given assignment and wanted to be issued firearm. The next day 24/08/2016 the firearms were returned to armory. On 24/08/2016 at 4 pm, PW 13 saw CI Thuku, IP. Maina, PC Salim, PC Rono and Sgt. Odoyo (driver) removed one prisoner from cell temporarily to Kathukeini area – Kitui County. PW 13 joined them in the operation and the suspect took them to the scene of The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 77/85

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robbery incident. They searched area and did not recover anything. They went back to station and booked suspect in the cell by signing in occurrence book. He then then went to watch a football match. He never came back to work that night. That later, on 25/08/2016, PW 13 renewed IP Maina’s weapons, as he had not returned it. 298. Cpl Adan’s testimony is that the 1st accused stayed with his firearm on the night of 24th, He did not return after they came back from the operation. 299. In his defence the 1st accused stated that he physically handed over his firearm to Cpl Aden but Cpl Aden testified that he renewed the weapon on 25th because the 1st accused had not returned it. It then means that on the night of 24th the 1st accused had his firearm with himself. 300. Hence what clearly stands out from the evidence is that the Ceska issued to the 1st accused and the Jericho issued to C.I Thuku are the guns that finished off the deceased while he was undergoing treatment at Mwingi Hospital. That the 1st accused had not returned the same and only renewed it on the 25th . The time is not stated but it was definitely after the shooting at Mwingi hospital because on the night of 24th Cpl Adan was not at the police station. 301. The only persons who had been issued with those pistols were the 1st accused and C.I Thuku, The Ceska Pistol S.No. F3841 could not have shot the deceased while it was in the armory and the bullets expended and the ones allegedly returned with the firearm. Cpl Adan by stating that thee accused renewed his weapon on 25th was simply saying that he could not vouch for what happened with the gun that night. The register was therefore not truthfully maintained . How is it possible that the Ceska Pistol S.No. F3841 was one of the fire arms used in the execution of the deceased yet the arms movement register shows that it had been returned at the time of execution and that all the 14 rounds of ammunition had also been returned? This is no contradiction or inconsistency. The evidence rules out the possibility that the Ceska was in the armory that night. It places the Ceska with the 1st accused at all material times bringing the conclusion that he was an accomplice as the undisputed clear evidence is that the gun was among those that shot the bullets that killed Ngandi Malia. 302. The evidence of identification is that the 1st accused was not identified by any of the witnesses. In fact, the one who watched the shooting before ducking under the bed testified that the shooter had an appearance ( build) similar to counsel for the 2nd accused – quite different from the 1st accused person. 303. Hence the prosecution did not establish that it was indeed the 1st accused who fired some of the bullets that killed the deceased there is no The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 78/85

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evidence beyond reasonable doubt that the Ceska Pistol S.No. F3841 was fired by the 1st Accused at Mwingi hospital on the material night. Additionally, neither of the Accused persons was identified by PW3 who was present when the deceased was shot at Mwingi hospital. 304. The Accused 2, was not connected to any of the guns used at Mwingi hospital and the testimony of PW 10 was that Accused 2 had a Ceska pistol from 21/08/2016 but the same was not connected to the shooting at the Mwingi hospital scene. According to PW 21 however, accused 2 was the only driver of GKB 886E which was tracked to Ukasi area on the morning of 24/08/2016 and that Accused 2 was interrogated and he denied ever going to Ukasi on the material day. 305. The call data [P. Ex 27 (c)] shows that on 24/08/2016 at 8.54 am, Accused 2 was at a place called Essar Ngurigi which, according to PW 21, was Ukasi. At 9.44am, he was at Mwingi. At 10.33am, he was captured at an area called Nguni along Garissa Road. At 11.48am, he was captured at Ngomeni, which according was on the way to Mwingi. At 12.59pm, he was captured at Katumba, which was along the way to Ukasi. At 13.18pm, he was at Ukasi. At 4.19pm, he was at Kitui and at 4.54pm, he was at Kitui Majengo. This part of the evidence agrees with that of the 1st accused that he was in Kitui around this time. 306. The tracking report [P. Exh 28 (b)] shows that on 24/08/2016, GKB 886E (the vehicle) was in Kitui between 5.52am and 8.16am then, between 8.21am and 15.06pm, it covered a total of 640kms between Kitui and Thika Garissa highway. It covered another 61 kms between 15.24pm and 17.01pm between Thika Garissa highway and Kitui. Between 17.56pm and 21.17pm, it was in Kitui. The fuel report [P. Ex 28 (c)] shows that, on 24/08/2016 at 8.21 am, the vehicle fueled 50 litres at Kitui Total Station. The work ticket (P.Ex 8) shows that the vehicle was assigned to the 2nd Accused on the material day and the 2nd Accused confirmed that the vehicle was indeed assigned to him on the material day and that it remained in his custody and control until he returned and/or booked it back in at Kitui Police Station at around 0015 Hrs., a few minutes after midnight on 25/08/ 2016. 307. Again, this agrees with the call data of the 1st accused that he came back to Kitui after midnight and that before that he was in Mwingi. The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 79/85

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308. The foregoing evidence, corroborates the narrative given by the deceased on the sequence of events i.e, that he was picked from his house by the vehicle and he recalled that it proceeded to a petrol station where it was fueled. The fuel report confirms that indeed the vehicle fueled 50 litres at Total petrol station at 8.21am on the material day. Despite the evidence showing that the deceased was ordered lie in the vehicle facing down, it is not impossible for someone in that position to tell that a vehicle is in a petrol station. 309. After leaving the petrol station, the vehicle proceeded to cover a total of 640kms between Kitui and Thika Garissa highway despite the work ticket showing that it did not move out of Kitui area on the material day hence Accused 2’s denial of having moved out of Kitui upon interrogation by PW 21 is not true and is contradicted by the milage reflected in the motor vehicle. The Tracking report confirms that indeed the vehicle covered a circular direction. 310. Further, the Clinical Officer at Ukasi hospital, PW 15, testified that he was called and informed that a patient has been brought in with gunshots at 2.00pm. This falls, within the deceased’s own narrative as captured in the history (P. Ex 1) recorded by PW 2, was that he was shot at around 1.30pm on the material day and the time frame that the vehicle covered 640kms., the vehicle returned to Kitui by 5.00pm . 311. The 2nd Accused’s defence appears to be simply that he he was just the driver under instructions from his seniors. Granted, the 2nd Accused may not have been the one who fired the bullets at Ukasi or at Mwingi hospital but he participated in ferrying the killers in pursuit of the deceased making him an accomplice in the offence. 312. The Accused persons are charged jointly with the offence of killing the deceased. 313. It is the evidence on record that the participation of the two Accused persons in the killing of the deceased was not direct. They did not fire the shots. But the same evidence points to their otherwise participation as part of the team that picked and took the deceased to Ukasi, and later followed him to Mwingi and hospital and killed him. The Accomplices The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 80/85

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314. Section 20 of the Penal Code which provides that; “When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence charged: (a). Every person who actually does the act or makes the omission which constitutes the offence. (b). Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.” 315. Section 21 of the Penal Code codifies the doctrine of common intention as follows; “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed, of such a nature that its commission the prosecution of that purpose each of them is deemed to have committed the offence.” 316. It is clear from the evidence that the gist of the prosecution’s case is that the Accused persons, together with others who are still at large, picked the deceased from his home. The accused persons defence is not that the Ukasi shooting did not happen, it is that they were not there. The evidence shows that they were, and the fact that they were all together in the m/vehicle that took him to Ukasi, where the fist attempt to his life was made is evidence that they were together in this. Neither the 1st accused nor the second accused who was the driver reported this incident, or took any action to avert the execution of Ngandi Malia. This was the grounding for the ultimate killing of Ngandi Malia, it would appear, so as to eliminate any evidence of identification. 317. The definition of an accomplice was attempted by the court in the case of Antony Kinyanjui Kimani -Vs- Republic [2011] KLR as follows; “What legally constitutes an accomplice is not defined in our statutes but section 20 of the Penal Code makes every person who counsels or procures or aids or abets the commission of an offence, a principal offender. Section 396 of the Penal Code also defines an accessory after the fact but it does not cover a person who merely fails to report a crime. In the case of Watete v Uganda [2000] 2 EA 559, the supreme court held that “in a criminal trial a witness is said to be an accomplice if, inter alia, he participated as a principal or an accessory in the commission of the offence, the subject of the trial”, The same definition was restated by the same court in the case of Nasolo v The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 81/85

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Uganda [2003] 1 EA 181 where the court further stated: “On the authorities, there appears to be no one accepted formal definition of “accomplice”. Only examples of who may be an accomplice are given. Whether a witness is an accomplice is, therefore, to be deduced from the facts of each case. In Davies of Director of Public Prosecutions (supra), the House of Lords said at 513: ‘On the cases it would appear that the following persons, if called as witnesses for the prosecution have been treated as failing within the category: (i) on any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons, committing, procuring or aiding and abetting (in case of misdemeanors).’ 318. Similarly, in Republic -vs- Suleiman Mwagandi Kiponda & 2 Others [2021] KEHC 4075 (KLR), the court expressed itself as follows; “I think the question as who among the three accused persons actually hit the fatal blow against the deceased is of little consequence. The natural and primary meaning of the term accomplice connotes particeps criminis. That means any person whether a principal, or accessory before or after the fact is guilty of the offence charged.” 319. Consequently, the participation of the 1st accused was by an act either of commission or omission that saw the weapon that had been issued to him shoot and kill the deceased in this case. His presence in the journey to Ukasi made him an accessory before the fact. 320. The 2nd Accused’s participation was by virtue of being the driver of GKB 886E which ferried the victim and the killers , constituting an unlawful act that led to the death of the deceased. Was there Malice Aforethought 321. This is set out under s. 206 of the Penal Code. The Court in consideration of this element has to endeavour to determine from the evidence ; (a). An intention to cause the death of another human being. (b). An intention to cause grievous harm to another. (c). Knowledge that the act or omissions will cause death. (d). Intent to commit a felony. (e). Intention to facilitate the escape from custody of a person who has committed a The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 82/85

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felony. 322. In R -vs- Tubere s/o Ochen 12 EACA 63 & Moms Aluoch -vs- R CCRA No. 47 of 1996 the courts highlighted the circumstances that demonstrate malice aforethought as follows; a) The weapon used, whether lethal or not, b) The part of the body targeted to inflict the fatal injuries, c) The manner in which it was used by the perpetrators, d) The conduct of the assailants before, during and after the attack. e) The brutality of the injuries inflicted. 323. In this case, the deceased was initially shot at the back of the head and neck which he survived . He was later shot multiple times at Mwingi hospital. Death was as a result of multiple gunshots. Those who shot him used lethal weapons. Shot him multiple times to ensure that he was dead dead. There could have been no other intention other than to kill him. Other Concerns 324. The defence raised concerns about the police officers who fist arrived at the scene and who collected the cartridges. It was submitted that the scenes were not protected and could have been interfered with . 325. These cartridges were submitted to the ballistics expert. There nothing before me to suggest that the two officers who visited the scene would have any reason to set up the 1st accused . 326. The first persons who visited the first scene who encountered Ngandi Malia on the roadside after his ordeal. How would they have interfered with the scene? The fact that Ngandi’s blood was found in the soil collected from there is not in dispute. 327. The scene at Mwingi hospital, it is evident that after the shooting the other patients were removed from the ward. It is the medical personnel who looked at the body. Conclusion 328. The Judiciary of Kenya From the totality of the foregoing, the prosecution has proved beyond Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 83/85

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reasonable doubt that each of the accused persons were an accomplices each of the accused persons herein was an accomplice in his own right in the unlawful killing of Ngandi Malia. That the manner in which he was killed established malice aforethought. Each of the accused is there for guilty as charged. 329. In the circumstances I find that the case for the prosecution is proved beyond a reasonable doubt that. I find each of them guilty as charged and convict each accordingly. 330. In that event each of the accused person's bond is cancelled and will remain in custody pending sentence. JUDGMENT dated, signed and delivered virtually this 24th April 2026 Mumbua T Matheka Judge Present in open court CA Chrispol Accused 1. Present Accused 2. Present Advocates for 1st Accused Ms. Kinyanjui & Mr. Muchoki Advocates for 2nd Accused Mr. Onyango(virtually) Ms. Kinyanjui holding his brief in open court The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 84/85

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Judgment HCCRC 203 of 2017 Page 2 of 2 SIGNED BY/FOR: LADY JUSTICE MATHEKA, TERESIA MUMBUA ★ THE JUDICIARY OF KENYA ★ LADY JUSTICE MATHEKA, TERESIA MUMBUA Makueni High Court High Court Div Date: 2026-04-25 15:52:46 The Judiciary of Kenya Doc IDENTITY: 826764267372301556724119597 Tracking Number:OOQTG72026 85/85

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