Republic v Michael Kitaka

2. The Respondent denied the charges and following a full trial, he was acquitted under Section 215 of the Criminal Procedure Code (CPC), provoking the present appeal in which the State through the Director of Public Prosecutions (DPP) is the Appellant, seeking that the acquittal be set aside. The grounds in the petition of appeal dated 5.12.2022 are as follows: a) The Learned Magistrate erred in law and in fact in acquitting the accused person under Section 215 of the Criminal Procedure Code while the evidence presented proved the prosecution's case beyond reasonable doubt as required. b) The Learned Magistrate erred in law and in fact by failing to take judicial notice of the procedure of Kenyan Civil Servants who are interdicted as soon as they take plea and remain so till the criminal matter is concluded. c) The Learned Magistrate erred in law and in fact by stating that the complainant's T-shirt had a hole which could not have been caused by a bullet despite the complainant being categorical on the location of the Judgment HCCRA No. E018 of 2022 2

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bullet wound, namely the left leg, and blood oozing from the right ear. d) The Learned Magistrate erred in law and in fact by disputing the complainant's narrative without a solid rebuttal from the defence to analyze. Consequently, the court provided the accused person with a defence by suggesting that an internal mechanism ought to have been initiated and more witnesses secured so as to make the complainant's claim believable. e) The Learned Magistrate erred in law and in fact by dismissing the complainant's narration of the injuries inflicted without the defence rebutting the same, or even the court offering medical research on the same. There was no basis recorded by the court for dismissing the injuries and further offering explanations on behalf of the accused person, especially concerning a hole on the T-shirt which was never mentioned by the complainant when testifying. Judgment HCCRA No. E018 of 2022 3

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f) The Learned Magistrate erred in law and in fact by failing to arrive at the conclusion that the complainant was injured and further lost total use of his left ear due to the respondent's discharging his service firearm immediately next to the said ear. g) The Learned Magistrate erred in law and in fact by failing to invoke and apply the provisions of Section 179(2) of the Criminal Procedure Code in finding the respondent guilty of causing grievous harm to the complainant, as evidenced by the P3 Form produced and not contested by the respondent. h) The Learned Magistrate erred in law and in fact by failing to consider in totality all the evidence by all prosecution witnesses and instead imported concepts in statistics study instead of applying the law fully to the evidence placed before the court. Appellant’s Submissions Judgment HCCRA No. E018 of 2022 4

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3. The court directed that the appeal be canvassed via written submissions. By its submissions dated 5.09.2023, the Appellant after restating the history of the matter prefaced its substantive arguments with the statement that an appellate court was entitled to re-evaluate the evidence on record and arrive at its own independent conclusions, as held in Njuguna Wairimu v Republic [2010] eKLR. 4. And submitting that the offence of attempted murder was created by Section 220 of the Penal Code asserted that the essential ingredients of the offence comprised proof of intent to commit the offence, preparation and or overt acts directed toward its commission. Whereas Section 388 of the Penal Code defines an attempt as occurring, where a person, intending to commit an offence, begins to put that intention into execution by an overt act but does not fulfil the intention to such an extent as to complete the offence. 5. The Appellant contended that the prosecution established the requisite mens rea and actus reus beyond reasonable doubt. Reliance was placed on Cheruiyot v Republic [1976-1985] EA 47, where Judgment HCCRA No. E018 of 2022 5

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the Court of Appeal stated that attempted murder is a specific-intent offence and that the prosecution must prove a deliberate intention to unlawfully cause death manifested through an overt act. The Appellant therefore submitted that the Respondent's conduct and threats demonstrated the necessary intention to kill the complainant. 6. The Appellant cited the case of Abdi Ali Bare v Republic [2015] eKLR, where the Court of Appeal discussed the distinction between mere preparation and an attempt to commit an offence. The Court holding that, although Section 388 of the Penal Code should not be interpreted narrowly, there must be an overt act toward execution of the criminal intention and a clear nexus between the preparation and the attempted commission of the offence. The Appellant argued that in the present case, the Respondent's actions satisfied this threshold because having armed himself, the Respondent threatened the complainant, before proceeding to shoot at him. 7. Citing evidence at the trial, the Appellant submitted that the evidence established motive, malice and intention. Namely, the fact that the Respondent had received a transfer from Kimana AP Camp to another station and blamed the complainant for the transfer; that the Judgment HCCRA No. E018 of 2022 6

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Respondent openly expressed his displeasure and threatened to kill the complainant; that on the material date confronted the complainant while the Respondent armed with a G3 rifle, and discharged several rounds in the complainant's direction. The Appellant contended that these actions constituted overt acts directed toward causing death, and therefore satisfied the ingredients of the offence of attempted murder. 8. Asserting that the prosecution case was corroborated by both documentary and medical evidence, including, photographs showing bullet trajectories through the complainant's house and spent cartridges recovered at the scene which were subjected to ballistic examination, and the resultant ballistic report establishing that the cartridges had been fired from the Respondent's G3 rifle. The prosecution also cited the complainant's P3 Form and medical records, which showed that the complainant suffered injuries to the thigh and permanent hearing loss in one ear. Injuries that were classified as grievous harm and were described as consistent with the complainant's account of being shot. Judgment HCCRA No. E018 of 2022 7

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9. In summation, reiterating that the testimony of the complainant was corroborated by independent prosecution witnesses and by the forensic evidence, the Appellant submitted that the prosecution proved its case beyond reasonable doubt and that the trial court erred in acquitting the Respondent. The Appellant therefore urged the court to set aside the acquittal, find that the offence of attempted murder was proved, and to enter a conviction against the Respondent. Respondent’s submissions. 10. The Respondent through his counsel filed submissions dated 10.11.2025 in opposition to the appeal. First, counsel raised a preliminary objection challenging the competence of the appeal. By arguing that under Section 349 of the Criminal Procedure Code, an appeal must be filed within fourteen days of the judgment or order appealed from, failing which leave of the court was required to allow the filing of an appeal out of time. Pointing out that the impugned judgment was delivered on 7th September 2021 and the appeal filed on 21st November 2022, which is over fourteen months later, counsel contended that the appeal was hopelessly out of time. Thus, in the Judgment HCCRA No. E018 of 2022 8

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absence of evidence that prior leave was obtained from the court, the appeal was rendered incompetent. 11. For that proposition counsel relied on the pronouncements in Teachers Service Commission v Simon Kamau & 19 Others, Supreme Court Application No. 38 of 2014, where the Court adopted its earlier reasoning in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others, Supreme Court Application No. 16 of 2014 [2014] eKLR; Mutua & 3 Others v Republic [2025] KEHC 44 (KLR); Michael Onyango Owala v Republic [2018] eKLR; Faisal Mohamed Ali alias Faisal Shahbal v Republic [2015] eKLR and Samson Owiti Otambo v Republic [2018] eKLR. He therefore contended that the appeal herein was a nullity for want of leave and the court had no jurisdiction to entertain an incompetent appeal. 12. Counsel also cited Moses Mwicigi & 14 Others v Independent Electoral and Boundaries Commission & 5 Others, Supreme Court Petition No. 1 of 2015 [2016] eKLR, where the Supreme Court observed that procedural rules are not mere technicalities but have a bearing on substantive justice. Counsel Judgment HCCRA No. E018 of 2022 9

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hence argued that the DPP's failure to obtain leave before filing the appeal out of time was fatal to the proceedings. Counsel therefore urged the court to strike out the appeal. 13. In the alternative, and without prejudice to the preliminary objection, the Respondent’s counsel in addressing the substantive appeal, adopted his submissions before the trial court at the conclusion of the hearing, which are annexed to his submissions on this appeal. In defending the findings of the trial court, counsel argued that the prosecution failed to prove the charge of attempted murder beyond reasonable doubt, and the trial court correctly acquitted the Respondent. 14. The annexed submissions filed in the lower court are dated 19.08.2021 and a copy thereof is also found on the lower court record. The submissions open with a restatement of the law governing the standard and burden of proof in criminal cases, citing caselaw, including the famous pronouncement by Lord Denning in Miller vs Ministry of Pensions (1947) 2All ER 372 and in addition the High Court decision in Kevin Kiswiki Kyongi vs Republic (2018)eKLR. Judgment HCCRA No. E018 of 2022 10

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15. Concerning the offence of attempted murder, it was argued that the prosecution was dutybound to prove the essential ingredient of positive intention to murder or to cause grievous harm, which is accompanied by a manifest step in actualising the intent. Counsel citing decisions of the High Court, namely, Gerald Wathiu vs Republic (2016) eKLR and John Ngare Kwena vs Republic (2016) eKLR in support of the proposition. Counsel posited that the prosecution did not establish the element of positive intention as no firm proof was tendered to support oral evidence of bad blood existing at the material time between the Respondent and PW1 arising from either PW1’s alleged denial of the off duty request by the Respondent or alleged transfer moving the Respondent to a new duty station. 16. Reiterating defence evidence that only a scuffle had taken place between PW1 and the Respondent, counsel posited that the Respondent being a trained officer could well have shot and killed PW1 from a distance, had that been his intent. Counsel further citing evidence that the Respondent had soon after the incident proceeded to make a report to the OCS, Kimana Police Station, PW5. Judgment HCCRA No. E018 of 2022 11

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17. With regard to the attempt to kill, counsel submitted that the only witnesses of the incident were the combatants themselves, the Respondent and PW1, and that there was no proof as to who fired the Respondent’s gun which at some point was wrested from him by PW1. Moreover, despite the sound of gunshots and presence of other officers and other persons at the camp at the material time, no independent witnesses were called by the prosecution, which ought to attract an adverse inference as held in Bukenya vs Uganda (1972) EA 549. 18. The Respondent’s counsel further attacked the prosecution evidence by citing what he termed as inconsistencies and contradictions therein, regarding the persons who handled the Respondent’s rifle after the incident until it was handed over to the OCS, the positioning of the alleged bullet holes in PW1’s trousers (Exh. 4b) without a corresponding severe thigh injury, location and severity of injuries in the thigh and ear. In sum, counsel had urged the court to find that the prosecution had failed to discharge the burden of proof beyond reasonable doubt and to acquit the Respondent. Judgment HCCRA No. E018 of 2022 12

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Analysis and Determination 19. The court has reviewed the entire record of the proceedings before the trial court and the rival submissions on the appeal. It is necessary to observe here that the record of appeal on record as prepared and filed by the DPP leaves a lot to be desired. Not only is the record incomplete, the pagination is jumbled up. Therefore, for the purposes of the appeal, the court resorted to the typed proceedings as well as the handwritten original record of the lower court , the former which, proceedings, primarily mentions, unfortunately omitted mention falling between the plea on 11.12.2018 and 18.04.2019. 20. That said, the court proposes to first address the preliminary objection taken by the Respondent concerning the competence of the appeal. The law governing the timelines for the filing of criminal appeals was correctly restated in the Respondent’s submissions, and it is not in dispute that the instant appeal was indeed filed outside the stipulated timelines. However, this was pursuant to leave granted by this court on 9.11.2022 (Mutuku J) as sought in the DPP’s motion dated 16.02.2022 in Misc. Cr. Appln. No. E005 of Judgment HCCRA No. E018 of 2022 13

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2022 which file is housed in the appeal file. The motion had been filed by the DPP on 18.02.2022, seeking inter alia that the appeal be admitted out of time and that the petition of appeal annexed thereto be deemed as properly filed. 21. The petition of appeal herein was according to the date stamp on its face, filed in this court on 21.11.2022. According to the record of this appeal, the appeal was admitted to hearing on 21.07.2023. Thus, the appeal herein is competently before this court, and nothing turns on the Respondent’s preliminary objection. 22. Turning now to the substance of the appeal, the court considers it apposite in this case to set out in detail the prosecution and defense cases in the lower court. The trial commenced on 17.07.2020 and closed on 16.08.2021. Through 13 witnesses, the prosecution case was as follows. In the material period, IP Joseph Kimani Kariuki (PW1), an administration police officer, was Deputy Division Commander, Administration Police (AP), and stationed at Kimana AP Post, Loitokitok as the officer in charge. 23. The Respondent was an AP Constable (APC) working under PW1 at the said post. On the morning of 4.12.2018, having assigned Judgment HCCRA No. E018 of 2022 14

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duties to his officers, PW1 left the post to collect some letters relating to transfers of officers under him, from his in charge one DAPC Marera, and to perform official errands at Loitokitok. The Respondent was on duty at the post sentry from 6.00am on that date, taking over from APC (W) Ruth Maina (PW3) whose night duty having ended, she had gone home. 24. Having collected the mail, PW1 returned to Kimana AP post in the afternoon and went to his mabati house. While seated on his bed sorting documents in his briefcase, he was approached by his deputy at the post, Sgt. Jeremano Ngunjiri (PW9) who informed him of a request made through him by the Respondent at about 2.00pm, to go on off-duty. To which request PW1 responded that the Respondent was under transfer from the post, that he would hand over the transfer letter to him, and hence he should wait. 25. Earlier that morning, PW9 had issued a G3 rifle serial no. FMP 388845 (Exh. 2) to the Respondent with 20 rounds of ammunition in its magazine (Exh.3) and made the requisite entry in the post’s arms movement register P.Exh. 9. PW9 having later in the afternoon relayed the response by PW1 to the Respondent had Judgment HCCRA No. E018 of 2022 15

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proceeded to Kimana market, leaving PW1 and the Respondent who was on duty, at the camp. PW9 was later called back to the post by IP Ewoi of Isineti who updated him of events at the post. Meanwhile, as PW9 was away, AP Senior Sgt Kaunda (PW2) of Isineti AP Post who had been dispatched by his superior IP Ewoi to collect some letters from PW1 arrived at Kimana AP Post at about 4.00pm. He found the Respondent on duty, but upon inquiring on the whereabouts of PW1, the Respondent told him he was not around. 26. It appears that in the course of conversation with PW2 the Respondent was agitated and stated to PW2, ‘’usiniletee hata wewe. Kariuki ananipiga transfer sababu ya gari yangu’’ , and when PW2 responded to this statement, the Respondent stepped back and cocked his gun. The Isineti driver, one APC Ezekiel who was waiting at the vehicle which he and PW2 had come in, sensing danger, suggested to the latter that they leave, and PW2 boarded the vehicle and the duo drove off. 27. Prior to PW2’s abrupt departure from the post however, the area chief, Kimana Joseph Parmwat (PW6) who happened to be in his office next to the post had on stepping out of his office seen Judgment HCCRA No. E018 of 2022 16

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PW2 conversing with the Respondent and had proceeded to greet them. He noted that the Respondent appeared tense, and as PW6 turned to walk back to his office, he heard PW2 say to the Respondent, ‘’Kitaka acha ujinga. Usifanye chochote’’. 28. According to PW6, the Respondent had harshly ordered PW2 and his Isineti counterpart to go away and they left. The Respondent thereafter started walking towards PW1’s nearby house while stating, ‘’Haki ya mungu leo utaniona, nitakuua leo.’’ Presently gunshots rent the air forcing PW6 to shut himself in the office with others present there. When he eventually peeped through the window, he saw PW1 leave in his vehicle. The Respondent also later drove off. 29. According to PW2, after driving for about 100 meters, he heard gunshots emanating from the post and stopped. Soon, he received a call from Sgt. Andrew Kusimba (PW10) who informed him that PW1 had been shot and was being rushed to hospital. PW2 in turn reported to his senior IP Ewoi regarding what had transpired, and was instructed to pick him up before they all proceeded to the Loitokitok sub-County Hospital where they found Judgment HCCRA No. E018 of 2022 17

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PW1 undergoing treatment. And later, the party proceeded to Kimana AP post where information was received through PW5 that the Respondent had surrendered the magazine (Exh.3) to the Kimana police post. 30. It appears that after parting with PW2 and PW6, the Respondent had proceeded to the house of PW1. According to PW1, the Respondent knocked on the door of his mabati house and entered while armed with his weapon (Exh.2). PW1 stated that the Respondent addressed him saying,‘’Kariuki umenisumbua kwa muda mrefu sana, na leo nitakuua’’, before he started firing several shots at him from his firearm. 31. Whereupon PW1 charged towards the Respondent, grabbed and forcefully directed the muzzle of the rifle downwards, and a struggle ensued between the two officers over the firearm. Both men eventually ended up outside the house. Altogether, seven shots had been fired from the Respondent’s firearm. When the men got outside the house, PW1 struck the Respondent, forcing him to release the rifle whose magazine (Exh. 3) had already fallen off. The Respondent then picked up the magazine, and left the scene. Judgment HCCRA No. E018 of 2022 18

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32. On his part, PW1 who was bleeding on the right ear lobe and left thigh entered his vehicle and started to drive to hospital, with the Respondent’s rifle in the vehicle. On the way however, he met PW10 who observed that PW1 was bleeding from the ear and leg and also had a rifle in the vehicle as he got into the driver’s seat, at the request of PW1 to be driven to hospital. As PW10 drove PW1 to hospital, PW1 informed him that he had been shot by the Respondent. 33. After PW1 was treated, PW10 drove him to make a report at Loitokitok Police Station and the firearm was taken over by DCI officers, who in the company of police officers visited Kimana AP post after the report. PW10 identified the red t-shirt and grey pair of trousers worn on the material day by PW1 as P.Exh. 4a and 4b, adding that he had noted blood stains on the t-shirt. 34. It would appear that as PW1 was being escorted to hospital, the Respondent driving his vehicle described as a Probox, had arrived at the Kimana Police Post, and presented himself to C.I.P Osman Mohamed Aden (PW5) the officer incharge. His appearance was disheveled, with his jungle shirt untacked. He allegedly reported to Judgment HCCRA No. E018 of 2022 19

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PW5 that he had “killed” PW1. He had with him the magazine (Exh. 3) loaded with 13 live ammunition (Exh. 14 and 15) which he surrendered to PW5. Leaving the Respondent at the post, the witness rushed to the Kimana AP post where he learned that PW1 had proceeded to hospital, and followed him there. 35. At the hospital he had found PW1 being treated and noted a bullet injury on the left leg, and the right ear injury being stitched, but on returning to his post found that the Respondent had left. He was subsequently arrested at Imbirikani while driving his vehicle and was accompanied to the AP post where the uniform he wore was recovered (Exh. 5a-d) from him. 36. The witness (PW5) said he later handed over the magazine, as was the firearm (Exh. 2), to IP Marwa Wycliffe Marwa of DCI (PW13) and among the first officers to visit PW1 at the hospital, and to visit the scene and retrieve 4 spent cartridges (Exh. 13 a-d). PW5 also identified the smoke jacket, jungle trouser, jungle shirt and maroon belt (Exh. 5a, b, c and d) as the clothes worn by the Respondent on the material date. APC Moses Ngogo (PW4) who was scheduled to take over duties from the Respondent arrived at Judgment HCCRA No. E018 of 2022 20

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the camp from Kimana town at 4:30pm and was instructed by AP Cpl Lucy Kimina to change into uniform and commence duties because an incident had occurred at the camp. 37. The evidence by Abdi Hussein Sheikh (PW8) a clinical officer at Loitokitok Sub-county Hospital was that PW1 was treated on 4.12.2018 at the hospital for gunshot wounds; that on 6.12.2018 the witness attended to PW1 who complained of difficulties with hearing in the right ear; that the witness noted that PW1’s eardrum had been perforated, and; that he had a wound on the right ear lobe and a superficial cut on the left thigh. PW8’s opinion was that the injuries were caused by a bullet and the ear perforation due to gunshot sound. He assessed the degree of the injury as grievous harm, and completed the P3 form dated 6.12.2018 (Exh 1). 38. The scene of crime was visited by PW13 among other officers including the PW5, IP Ewoi, the DCIO and OCPD Loitokitok. Photographs were subsequently taken on 20.12.2018 by PC Maxwell Musembi under the direction and supervision of PW13, who was also the investigating officer. According to PW13, upon visiting the house of PW1 after the events of the material date, the Judgment HCCRA No. E018 of 2022 21

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police collected 4 spent cartridges (Exh 13 a, b, c, d). PW13 noted the bullet exit holes at PW1’s house where items were scattered while the bed, and briefcase on it, had sustained bullet damage. 39. PW13 also took possession of the G3 rifle (Exh.2), the magazine (Exh. 3) with 13 rounds of live ammunition which at the time of the trial comprised 10 live rounds of ammunition which he identified as Exh 14 C1 - C10 and 3 spent cartridges from three live rounds used in ballistic testing (Exh. 15 TC1 - TC3). The witness prepared the exhibit memo forms forwarding the firearm and live ammunition and spent cartridges to the ballistics experts for examination and PW1’s clothes (red t-shirt and brown trousers) and the blood-stained Respondent’s police uniform (Exh4(a) and (b), Exh 5 a - d), respectively, to the government chemist. 40. PW13 also identified 54 photographs of the scene as (Exh 6), the Compact Disc (CD) containing the images, and a related certificate as Exh (10b). The witness also produced the Kimana AP post arms movement register (Exh. 9) confirming that the rifle, magazine and ammunition (Exh. 2,3 13,14,15) were issued to the Respondent on 4.12.2018. Judgment CIP Abel Onyapidi (PW11), a HCCRA No. E018 of 2022 22

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gazetted scene of crime officer, testified that he received from PC Maxwell the CD containing images accompanied by the exhibit memo form (Exh.10a) and processed the photographs (Exh.6) and prepared his certificate /report (Exh 10 b). 41. PW7 was CIP Kenneth Chomba, a ballistics forensic examiner based at DCI Headquarters. He testified that on 20.12.2018 he received a request to examine the following items forwarded via an exhibit memo form (Exh. 8): the G3 Rifle Serial No. 38845 (Exh.2) which was marked A; an empty magazine marked B (Exh3); 13 rounds of ammunition marked C1 - C13 (Exh. 14, 15), 4 spent cartridges marked B1 - B4 (Exh.13a-d) . 42. On 24.12.2018, he examined the exhibits. He testified that from his examination, he noted that Exh A was a G3 rifle in caliber 7.62mmx51mm, designed to fire rounds of ammunition in caliber 7.62mm x 51mm, which was in good mechanical condition and complete in all components. He test fired Exh A using 3 rounds of ammunition which he randomly picked from the live rounds of ammunition marked C1 - C13 and therefore obtained 3 cartridges for comparison. Judgment HCCRA No. E018 of 2022 23

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43. Describing Exh B the magazine as a G3 detachable magazine in good working condition which worked well in Exh A, he stated that when fully loaded, it had a firing capacity of 20 rounds of ammunition in caliber 7.62mm x51mm. He said of Exh C1 - C13 that they comprised 13 rounds of ammunition in caliber 7.62mm X 5mm and were all live, as the 3 rounds picked at random were successfully test fired in Exh A. 44. Based on his examination, he stated that he formed the opinion that Exh A and C1 - C13 are capable of being fired and they were a firearm and ammunition, respectively as defined under the Firearm Act. Exh B1 - B4 were 4 spent cartridges each of caliber 7.62 x 51mm, formerly a component part of rounds of ammunition. A microscopic examination revealed that they were fired by the same firearm. Further, his examination of spent cartridges B1 - B4 against the spent cartridges obtained from 3 random rounds he test fired in G3 rifle Exh A, revealed that they were all fired by the same firearm the G3 rifle marked Exh. A. He produced his report as Exh 7. 45. Ruth Wangari a Government Analyst based at the Government Chemist Nairobi testified as PW12. Her evidence was Judgment HCCRA No. E018 of 2022 24

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that the office received the exhibit memo (Exh 11(a)) from Loitokitok Police station on 20.12.2018, forwarding the following exhibits1. Blood sample in containers marked A1 and A2 (IP Joseph Kimani Kariuki - PW1). 2. Blood sample in containers marked B1 & B2 labelled APC Michael Kitaka (Respondent). 3. Pair of brown trousers in an envelope marked C labelled Joseph Kariuki (PW1). 4. Red T-shirt in a khaki enveloped marked D labelled Joseph Kariuki (PW1). 5. Brown long sleeved uniform shirt marked E (Michael Kitaka - Respondent), 6. Green pair of trousers marked F (Michael Kitaka Respondent). 46. It was desired to examine the items and determine presence and the origin of any bloodstains. Upon examination, she found that items C, E and F were slightly stained with human blood while T-shirt B was moderately stained with blood and that the DNA profiles Judgment HCCRA No. E018 of 2022 25

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generated from item C (trousers), B (T-shirt), E (Shirt) and item F (Green pair of trousers) matched the DNA profiles generated from blood sample item A labelled Joseph Kariuki (PW1). The witness produced her report as Exh 11b. 47. At the close of the prosecution case, the trial court found that a prima facie case had been made out, and proceeded to place the Respondent on his defence. In his defence, the Respondent first testified on 12.4.2021, giving unsworn evidence. He then closed his defence case and the court gave directions for filing of submissions. However, on 26.4.2021 when the case was next scheduled for mention, counsel for the Respondent orally applied to have the proceedings of 12.04.2021 set aside and the defence case reopened. The court granted the prayer and, having set aside the proceedings of 12.04.2021 scheduled a date for the fresh defence hearing, which eventually proceeded on 15.07.2021. 48. On this 2nd occasion, the Respondent elected to give sworn evidence and did not call any witness. His testimony was to the effect that in the material period he was attached to Kimana AP Post. On 4.12.2018 he was scheduled to work from 6.00am to 6.00pm as the Judgment HCCRA No. E018 of 2022 26

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day sentry guarding the camp and DO’s office. Having booked himself, he was issued with a firearm with live ammunition in magazine (Exh. 2 and 3). At 10:00am he saw the post incharge PW1 arrive in his vehicle with a friend and offload 2 jerricans of petrol, before apparently leaving. Returning at 4:00pm, PW1 went directly to his house which was 10 metres away from where the Respondent was seated under a tree, close to the DO’s office. PW1 thereafter called the Respondent who went to the door of PW1’s house, while holding his rifle facing up and standing in attention. 49. He stated that PW1 then questioned him about a case from that had been filed by three brothers from Isineti relating to cattle. PW1 demanded to know why as incharge he had not been involved. To which the Respondent answered that Sgt Ngunjiri had been incharge of the particular case from Isineti, and that the chief had advised the reportees to ‘’go and negotiate as brothers’’. 50. Whereupon PW1 asked who was the boss at the post, and when the Respondent replied that PW1 was, PW1 said, ‘’Kitaka una madharau’’, before he jumped and got hold of the Respondent’s rifle and cocked it as the Respondent held onto his end Judgment HCCRA No. E018 of 2022 27

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of the rifle. A struggle over the firearm ensued between them and in the process, bullets were fired, but the Respondent managed to remove the magazine and it fell off, and he then released the rifle, took the magazine and ran away. The magazine had 20 rounds of ammunition, 7 of which had been fired during the struggle. 51. He added that PW1 then took the firearm to his car as the Respondent ran away and entered his vehicle and proceeded to report to PW5 at Kimana Police Post. That PW5 on receiving his report left him, and fearing that PW1 would follow him and kill him the Respondent drove towards Emali but was arrested at a road block and brought back to Kimana. Describing the injuries of PW1 as superficial, he said that if the holes or tears in the T-shirt and trouser were caused by bullets, PW1 would have been killed. 52. He further described the ear and leg injury sustained by PW1 as superficial, disputing they amounted to grievous harm. Adding that the tears on PW1’s clothes were not caused by gunshots and that the perforated eardrum must have been caused by the sound of the gunshots. Further, he said that disputes between police officers Judgment HCCRA No. E018 of 2022 28

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are ordinarily resolved through disciplinary proceedings. The rest of his evidence comprised argumentative statements. 53. As the first appellate court, the duty of the High Court is to reconsider and re-evaluate the evidence afresh while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. In Okeno vs. Republic [1972] EA 32, the Court of Appeal stated as follows: “ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. R. [1957] E.A. 336) and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala vs. R., [1957] E.A. 570). It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Judgment HCCRA No. E018 of 2022 29

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magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post, [1958] E.A. 424’’. 54. Similarly, in the case of David Njuguna Wairimu vs. Republic [2010] eKLR the Court of Appeal reiterated that: “The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the Judgment HCCRA No. E018 of 2022 30

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evidence to satisfy itself on the correctness of the decision.’’ 55. The offence of Attempted murder contrary to Section 220 of the Penal Code falls under the category of offences referred to as inchoate or incomplete offences, comprising a criminal intent, or recklessness accompanied by an overt substantial step taken in furtherance of the intent or acts that indirectly point to participation in the commission of a crime. “Black’s Law Dictionary 9th Edition defines “inchoate” as: “Imperfect; unfinished; began, but not completed; as a contract not executed by all parties”. 56. Thus, an inchoate offence is an offence where the person accused did not actually complete the commission thereof, as to justify the charging of such person with the commission of the actual offence. Section 220 of the Penal Code is in the following terms:- ‘'Any person who— (a)Attempts unlawfully to cause the death of another; or Judgment HCCRA No. E018 of 2022 31

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(b)with intent unlawfully to cause the death of another does any act or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of a felony and is liable to imprisonment for life.” 57. The Respondent was charged under sub-section (a) of the above section. In the case of Cheruiyot v Republic (1976–1985) EA, where the Court of Appeal for East Africa held that: “…an essential ingredient of an attempt to commit an offence is a specific intention to commit that offence. If the charge is one of attempted murder, the principal ingredient and the essence of the crime is the deliberate intent to murder. It must be shown that the accused person had a positive intention to unlawfully cause death and that intention must be manifested by an overt act.” See also Gwempazi S/O Mukonzo (1943) 10 EACA 101 and Hamisi S/O Tambi (1953) 20 EACA 176. Judgment HCCRA No. E018 of 2022 32

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58. Hence, the offence of Attempted murder under Section 220(a) of the Penal Code requires demonstration of two elements namely, proof of the principle ingredient, a positive intention to unlawfully cause death (mens rea), and the commission of an overt act manifesting the intention, directed towards causing the death of another person (actus reus). 59. This accords with the definition of attempted offences found in Section 388 of the Penal Code. That section states as follows: “(1)When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence. (2)It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of Judgment HCCRA No. E018 of 2022 33

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his will, or whether he desists of his own motion from the further prosecution of his intention. (3)It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence’’. 60. The Appellant's complaints on this appeal relate to the findings of the trial court regarding the evidence adduced at the trial. This court is obligated to subject that evidence to a fresh and exhaustive examination to determine whether the lower court’s findings and resultant acquittal of the Respondent under Section 215 of the CPC were justified. 61. The basic facts of the case were not in dispute. The Respondent was at the material time employed as an administration police constable stationed at Kimana AP post where PW1 was the incharge and therefore the Respondent’ s superior. Other officers based at the post included PW3, PW4, PW9 and PW10. On 4.12.2018, the Respondent was on day sentry duty at the AP post and was to work between 6.00am and 6.00pm. For purposes of his Judgment HCCRA No. E018 of 2022 34

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duties, he was armed with the G3 rifle (Exh. 2) which had a magazine (Exh.3) containing 20 live rounds of ammunition. There is no dispute that PW1 resided in a mabati structure at the post and that earlier in the day, he had left the post, and returning later in the afternoon, went to his house. 62. The incident giving rise to the charges apparently occurred some time after PW1 returned to his house late in the afternoon, and it is not disputed that at the time of the incident, the Respondent having left his post at the sentry, was in the house or at door of the house of PW1, while armed with his firearm. Although the circumstances surrounding the Respondent’s presence there and events unfolding immediately before and thereafter were contested, there is no dispute that he and PW1 exchanged words and that the two men were eventually engaged in a physical struggle as PW1 attempted to wrest the firearm from the Respondent. 63. Further there is no dispute that seven rounds of ammunition were discharged and that the magazine containing 13 rounds of ammunition eventually fell off, and picking it up, the Respondent left the scene and proceeded to make a report to PW5 at Kimana Police Judgment HCCRA No. E018 of 2022 35

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Station. Whereupon, PW5 left the Respondent there as he rushed to find out the condition of PW1. 64. On his part, PW1 having taken possession of the firearm which he had successfully wrested from the Respondent, he placed it in his vehicle before driving off towards the hospital. However, as he drove he met and wasbdriven by PW10 to Loitokitok sub- county hospital for treatment of injuries sustained on his left thigh and right ear lobe. After treatment, PW1 reported to Loitokitok Police station, by which time, the Respondent had been arrested at Imbirikani while headed towards Emali direction. Police officers including PW13 who subsequently visited the scene collected four spent cartridges associated with the Respondent’s firearm. 65. The key disputed issue was whether the Respondent with intent to kill PW1 attacked him using his firearm by shooting in his direction and caused him the injuries documented in the P3 form (Exh.1). In the court’s view, the events preceding the admitted incident at PW1’s house were critical to the determination of that issue because, from the prosecution evidence, the admitted incident at PW1’s house was a culmination of a transaction that started Judgment HCCRA No. E018 of 2022 36

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earlier on the material day. The events occurring earlier were narrated by PW2, PW6 and PW9. 66. First, PW9 described how while PW1 was away from the post, the Respondent approached him at 2:00pm seeking to take a day offduty, and having completed the relevant paperwork, PW9 awaited the return of PW1 to approve. Approaching PW1 later at his house after he arrived, PW1 informed him that the Respondent had been transferred and that he intended to hand him his letter, hence to advise him to wait. 67. PW9 having delivered PW1's response left the post, before the arrival of PW2 who described a tense incident when he arrived at the Kimana post from Isineti on instructions of his boss IP Ewoi, to collect transfer letters. He said the Respondent told him that PW1 was not at the station, itself a false allegation, because by that time, PW1 was already in his house having returned from Loitokitokok. It is during their conversation that the Respondent, seemingly agitated, ‘’usiniletee hata wewe. Kariuki ananipiga transfer sababu ya gari yangu’’ before cocking his firearm and forcing PW2, himself an officer holding a higher rank than the Respondent being a senior Judgment HCCRA No. E018 of 2022 37

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sergeant and his driver, sensing danger, to leave without seeing PW1. 68. While it is true that neither the request for off-duty to PW9 nor transfer letter cited in respect of the Respondent were produced as correctly observed by the trial court, neither PW2 nor PW9 had any reason to lie about those matters. PW2 was not an officer based at Kimana but was from a different post who happened to be sent by his boss to Kimana AP post to collect transfer letters. He was not shown to have had any prior disagreement or bad blood with the Respondent. As for PW9, he was merely carrying out his routine duties while PW1 was away. Equally, no suggestion of illwill or bias against the Respondent was levelled against him in crossexamination by the defence. 69. The prosecution theory as I understood it was not so much that the Respondent was aggrieved for being denied off-duty, but that there were transfers affecting officers at Kimana AP post, and believing that he was one of those affected as he indicated to PW2, the Respondent was irked. Judgment HCCRA No. E018 of 2022 38

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70. Indeed, from the evidence of PW2, the Respondent’s statement to him that usiniletee hata wewe. Kariuki amenipiga transfer sababu ya gari yangu indicated several things. First, that the Respondent had heard news of his transfer from some source, whether from rumours as is usually the case in public offices; and secondly, whether true or not he had believed it, despite not having received his letter, and finally; that he was aggrieved, blaming PW1 for his transfer. So aggrieved that in a foul mood, he had become so agitated while conversing with PW9 that he cocked his firearm and literally chased PW2 from the post, a matter confirmed by PW6 who having greeted the two men noticed the tension. PW2 who worked at a different AP post, had no axe to grind with the Respondent, and acquitted himself well during cross-examination. 71. Like PW2, PW6 was not part of Kimana AP post, only that his office was next to the post. Thus, in the court’s view the fact that the Respondent’s request for off-duty and transfer letter were not produced does not detract from the evidence of the two witnesses, given the words spoken by the Respondent to PW2, and which the trial court seemingly glossed over. It was enough that there was Judgment HCCRA No. E018 of 2022 39

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credible evidence that the Respondent at the material time was labouring under the belief that he was on transfer from Kimana post and that PW1 had somehow instigated the transfer, in his words, impliedly due to jealousy or ill will against him due to his acquisition of a motor vehicle. 72. Unlike the report allegedly made by the Respondent to PW5 at Kimana Police Station after the shooting incident, the Respondent’s prior statements to PW2 and PW6 conveyed his rancour, and animus towards PW1 prior to the shooting incident, and were admissible. 73. The departure of PW2 marked the beginning of the last part of the transaction. Before PW2 left, however, PW6 had started to walk back to his office. According to PW6 as he walked to his office, close to PW1’s house, he heard PW2 say to the Respondent, Kitaka, wacha ujinga. Usifanye chochote. Although it is unclear what the Respondent had said to invite the statement, it sounded more like a word of caution to the Respondent. Presently, PW6 heard the Respondent state, Haki ya mungu leo utaniona, nitakuua leo, before proceeding towards PW1’s house, soon Judgment HCCRA No. E018 of 2022 40

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followed by the sound of gunfire which PW2 reported hearing some 100 metres after leaving the post. Prompting PW6 to lock himself in his office together with other persons. 74. Pausing here, the Respondent’s counsel had in the trial repeatedly asked prosecution witnesses including PW6 during crossexamination whether persons they cited in their evidence were also witnesses in the case. This is as good a place as any to consider the issue which appeared to inform the trial court’s rejection of the evidence of PW2, PW6 among other key witnesses called to corroborate the testimony of PW1. 75. This is how the trial delivered itself, after restating the above testimony of PW6 and the warning said to have been issued to PW2 by the Respondent to the effect that the witness should not aggravate the Respondent as he had been transferred at the instigation of PW1: “PW6 Joseph Parmwat says he heard the accused person say, haki ya mungu leo utaniona, nitakuua leo then walked towards PW1’s house. To start with, if the chief was with one Richard (Parokia), Richard should Judgment HCCRA No. E018 of 2022 41

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have heard the accused person threaten to kill, but he was never called to record a statement or…to testify as a witness. This witness would have been an excellent corroboration outside the people who had a work relationship with the complainant.”(sic) 76. The last statement ignores the fact that the Respondent and PW1 were both police officers, although the latter was the more senior of the two. The caption above appears to suggest that PW6 could not be believed merely because another witness who was with him when PW6 heard the words by the Respondent, was not called as a witness. As earlier observed, PW6 was the area chief whose office was next to the Kimana AP post and not being a police officer was not a colleague of PW1 or the Respondent. He evidently had a cordial relationship with the Respondent because having seen him in the company of PW2, he had walked over to greet them. 77. From the record, PW6‘s evidence was not shaken during cross- examination, and what he stated was consistent with PW2’s description of his encounter with the Respondent just moments before the subsequent incident described by PW6. It appears that Judgment HCCRA No. E018 of 2022 42

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the trial court tarred the evidence of PW6 with the same brush by which it dismissed the evidence of the police officers, who testified concerning the shooting incident including PW2, himself not based at Kimana AP post and had only visited on an official errand. And for the simple reason that the officers happened to be colleagues of PW1. 78. It is not clear who Richard Parokia was or why he was with the chief on the material date. Equally, apart from PW1 and the Respondent other officers at the station such as PW3, 4, 9 and 10 stated that they were away from the post at the material time. Depending on the circumstances of an offence, there will always be situations where the only witnesses to an incident are colleagues of, or people well known to or acquaintances to the victim and/or offender. It would be an absurdity if on that account alone, the evidence of such witnesses was peremptorily rejected. The evidence of each witness ought to be examined firstly independently for veracity respecting the facts in issue, and then in conjunction with the entire evidence. 79. The trial court barely examined the evidence of PW2 and PW6 before dismissing it on suppositions of possible bias presumably Judgment HCCRA No. E018 of 2022 43

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against the Respondent. On the basis that they were police officer and chief, respectively hence possibly qualifying in the words of the trial court as “people who had a work relationship with the complainant”. A matter never raised by the defence during crossexamination. 80. Generally, there is no requirement for the prosecution to call any number of witnesses in proving any fact in issue. Section 143 of the Evidence Act provides that no number of witnesses is required to prove any fact. In Keter versus Republic [2007] 1EA135 the court observed that:“The prosecution is not obligated to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.” 81. Before a court can make an adverse inference, it ought to examine all the evidence before it and conclude that it was barely adequate whereas essential witnesses were not called. The predecessor of the Court of Appeal stated in Bukenya and Others vs Uganda [1972] EA 549 firstly, that the prosecution must make Judgment HCCRA No. E018 of 2022 44

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available all witnesses necessary to establish the truth, even if their evidence may be inconsistent; second, that the court has the right and the duty to call witnesses whose evidence appears essential to the just determination of the case; and third, that where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution. 82. In the court’s view, the trial court fell into error, not only by glossing over the evidence of PW2 and PW6, but also in dismissing the evidence wholesale, ostensibly because, the former was a police officer and the latter’s workstation happened to be next to the AP post and therefore could not be believed. And this, without a definite finding that as a whole, their evidence was incapable of belief and that the entire prosecution evidence was barely adequate. Indeed, the trial court failed to consider the progression of the transaction as narrated through witnesses, and which put PW1’s testimony in perspective. 83. Concerning the actual undisputed shooting incident, the prosecution case rested on PW1's testimony that the Respondent Judgment HCCRA No. E018 of 2022 45

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entered his house, and addressed PW1 to the effect; ‘’Kariuki umenisumbua kwa muda mrefu sana, na leo nitakuua’’ as he immediately opened fire in his direction. This version is supported by PW2 and PW6, in two respects. PW6 had moments before the shots rang out, heard the Respondent utter similar intentions while heading towards the direction of PW1’s house. 84. On his part, PW2 earlier met with the wrath of the Respondent who, having warned PW2 not to vex him, presumably in asking after PW1, had literally chased him off the AP post after cocking his firearm. This, after the Respondent told PW2 that it was PW1 who had instigated his transfer from Kimana AP post, and as PW2 departed, PW6 heard the former caution the Respondent effectively not to do anything foolish or rash. According to PW2, having moved about 100 metres from the post, he heard the shots also described by PW6. 85. During cross-examination of PW6, the defence did not suggest to him that it was PW1 who called the Respondent to his house. And given the short interval and quick succession of events between PW2’s departure from the post and the Respondent’s utterances Judgment HCCRA No. E018 of 2022 46

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described by PW6 as he headed to PW1’s house, it appears unlikely that PW1 summoned the Respondent to his house as the Respondent claimed in his defence. Equally, in cross-examination of PW1, the defence did not advance this line of defence, or even the allegation that the purpose of PW1 summoning the Respondent was to admonish him about his handling of a case from Isineti, in which PW9 was also involved. That such a case had been received at the Kimana AP post and that PW9 had been involved in it was equally not suggested to PW9 during cross-examination. 86. Hence the most reasonable conclusion to be drawn from the flow and sequence of events prior to the gun shots in PW1’s house is that the Respondent, full of animus against the complainant, had initiated his visit to PW1’s house. And for the purpose he declared while walking there. The declared intention in PW6’s hearing and to PW1 upon entering the house, and manifested overtly by the commencement of shooting from his rifle at PW1 was to kill PW1. 87. Indeed, it was not disputed that the Respondent was wielding the weapon as he entered PW1’s house, that shots were fired from the Respondent’s rifle and that a physical combat ensued between Judgment HCCRA No. E018 of 2022 47

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the Respondent and PW1. Despite these facts, the trial court theorised that the Respondent could well have aimed at and shot PW1 through the wall of his house from his sentry position, without the necessity of going to his house to shoot him at close range. 88. The court further seemingly accepted defence evidence that the Respondent could not have shot at PW1 as his allegedly minor injuries, except for the ear perforation, were exaggerated. In that regard, the trial court made technical surmises, which it was not competent to make, concerning the hole in the red t-shirt and grey trousers worn by PW1 on the material date. This, despite PW1 not having testified to having been shot on or to have sustained an injury on the chest or lower leg. It is true that proof of serious injury could potentially strengthen the prosecution case in a case of attempted murder. However, the absence of such injury cannot diminish otherwise strong evidence of an overt act in furtherance of an intention to kill. 89. Here, however, the evidence of PW8 established beyond dispute that PW1 sustained grievous harm. The whizzing shots likely grazed PW1’s thigh and tore PW1’s lobe of right ear and perforated Judgment HCCRA No. E018 of 2022 48

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the eardrum of the right ear, as documented in the P3 form Exh. 1, and hit and punched holes in the mabati wall, hit objects in PW1’s house, such as the bed and briefcase, as the captured in the photographs (Exh.6) and the evidence of PW13. In light of the number of shots discharged, seven in total, and damage caused in PW1’s house, it appears that the torn earlobe and perforated eardrum, both on the right ear, may have been caused by a bullet whose trajectory was quite close to the affected ear. On his part, the Respondent did not sustain any injuries although his uniform bore blood stains whose DNA matched with PW1’s blood sample, according to PW12. 90. Further, the learned trial magistrate erred by equating her role in analyzing the evidence before her with that of a statistical investigator and applying theories from her own studies in statistics in arriving at her findings on the evidence. And, in addition stating that the motive for the attack was unproven, before concluding that there was reasonable doubt to be resolved in the Respondent’s favour. Judgment HCCRA No. E018 of 2022 49

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91. These were serious misdirections on the part of the trial court, leading to the rejection of the evidence of PW1 as corroborated by eyewitnesses PW2, PW6 and expert evidence from PW7, PW8, PW11 and PW12. Thus, in its conclusion, the trial court having effectively dismissed on what appear partly conjecture and flimsy grounds, the evidence by PW2 and PW6 comprising relevant res gestae , was left with the rival accounts of PW1 and the Respondent, and proceeded to pronounce itself unable to determine which version could be believed. 92. Moreover, as with murder, motive is not an ingredient of attempted murder. Section 9 (3) of the Penal Code stipulates as follows: “Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.” 93. In the case of Choge vs Republic (1985) KLR 1, the Court of Appeal observed as follows regarding that provision:- Judgment HCCRA No. E018 of 2022 50

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“Under section 9(3) of the Penal Code (cap 63) , the prosecution is not required to prove motive unless the provision creating the offence so states, but evidence of motive is admissible provided it is relevant to the facts in issue. Evidence of motive and opportunity may not of itself be corroboration but it may, when taken with other circumstances, constitute such circumstantial evidence as to furnish some corroboration sufficient to establish the required degree of culpability…." 94. In Libambula Vs. Republic [2003] KLR 683, the Court of Appeal defined motive in the following terms: “Motive is that which makes a man do a particular act in a particular way. A motive exists for every voluntary act and is often proved by the conduct of a person. See section 8 of the Evidence Act Cap. 80 Laws of Kenya. Motive becomes an important element in the chain on presumptive proof and where the case rests on purely circumstantial evidence. Motive of course, may be Judgment HCCRA No. E018 of 2022 51

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drawn from the facts, though proof of it is not essential to prove a crime.” (Emphasis added) 95. In the case before the trial court, there was firm evidence of statements first made by the Respondent himself first to PW2, and later in the hearing of PW6 and finally directly to PW1, which revealed three things. First that the Respondent had become aware, despite not having received the official transfer letter, that he had been transferred from Kimana AP camp, secondly that he believed that PW1 had instigated his transfer, and thirdly that he was so aggrieved that he had resolved to kill PW1. Thus, as earlier observed, while production of the transfer letter would have been ideal, the failure to produce the letter could not, without more detract from the weight of the prosecution case. Thus, not only was motive established, there was strong evidence of a positive intent on the part of the Respondent. 96. Based on credible evidence of preceding and surrounding events, which the trial court peremptorily disregarded, it is inconceivable that PW1 summoned and allegedly questioned the Respondent about a case from Isineti, before he proceeded to snatch Judgment HCCRA No. E018 of 2022 52

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the firearm from the Respondent thus starting the fight, as suggested by the defence. This allegation, together with the subject of the alleged case from Isineti, was not canvassed in the cross-examination of PW1 or PW9. Indeed, the trial court correctly dismissed the defence evidence that PW1 attempted to snatch the rifle from the Respondent leading to the ensuing combat. 97. Therefore the proven surrounding facts, pointed to the Respondent as the aggressor, although PW1 had in response, sprang into action hence a physical struggle ensued. According to PW1, he was able to grab the muzzle of the firearm and force it downwards, while the Respondent held onto the other end. In his evidence, the Respondent said he held onto his end of the firearm, which must mean for the Respondent who had initial possession of the firearm, the area near the handle of the rifle, and that it was a while before he let go of it. Considering the ordinary length and design of a G3 rifle, the Respondent’s implied claim that PW1 while holding the muzzle side of the firearm somehow managed during the scuffle to cock it and fire shots appears a practical impossibility. Judgment HCCRA No. E018 of 2022 53

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98. In any event, from the evidence of PW6 and supported by testimony by PW2, the shots first rang out immediately after the Respondent had walked towards the house of PW1, an interval too short for the scuffle between the two men to have taken place, and following which PW1 eventually took possession of the the firearm. 99. In all likelihood, based on the prosecution evidence, it is the Respondent who initially held the trigger and, having shot before at the complainant and holding onto the control of the firearm, continued to pull the trigger in the course of his struggle with PW1. That struggle ended when PW1 finally wrested the rifle from him and the Respondent took the magazine which had fallen off. Meaning that PW1 could not thereafter fire from the rifle. 100. Thus, in the court’s view, not only did the prosecution establish the two key ingredients of attempted murder as spelt out in Cheruiyot vs. Republic (supra) beyond reasonable doubt, its evidence completely displaced the defence, key elements of which were raised at the last possible moment by the Respondent. Had the trial court fully and properly considered the prosecution evidence before it, it would have found that the testimony of PW1 was well Judgment HCCRA No. E018 of 2022 54

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corroborated by credible witnesses, especially PW2 and PW6, as well as expert evidence, hence arriving at the same conclusion. The complaints raised by the DPP on this appeal are therefore justified, and the appeal merited. 101. Consequently, the appeal is hereby allowed. The judgment of the lower court dated 7th September 2021 and resultant acquittal cannot stand and are set aside. The court substitutes therefor a finding that the prosecution proved the charge against the Respondent beyond reasonable doubt, and finds him guilty and hereby convicts him for the offence of Attempted murder contrary to Section 220(a) of the Penal Code. It is so ordered. DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 2ND DAY OF JULY, 2026 C. MEOLI JUDGE In the presence of: For the Appellant (DPP): Ms. Kihumba For the Respondent: Ms. Omari h/b for Mr. Mulyungi Respondent: N/A C/A: Lepatei Judgment HCCRA No. E018 of 2022 55

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