Republic & 1 other v Isaac Lekachuma

read with Section 204 of the Penal Code. The particulars of the offence state that on the 2nd October 2017 at Salgaa area, Rongai Sub County, within Nakuru County he murdered Emmanuel Makokha (hereinafter referred to as ‘’ the deceased’’). 1. The Accused denied the offence. The Prosecution case. 2. Part of the prosecution evidence was recorded before my brother (Justice H.M Nyaga) who has since transferred to another work station. This court took over the case on 24 th October 2024 and directed that hearing would continue from the point the previous court left off. 3. The Prosecution called a total of 13 witnesses. PW4 was at the material time a security guard in Salgaa watching over lorries parked at the Centre. On the date of the alleged murder at around 6:00 pm or thereabouts he was at his place of work when he allegedly saw a man armed with a gun appearing from the direction of a club called HIGH COURT CRIMINAL CASE NO.E026 OF 2022 2 JUDGMENT

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Club 42 heading towards a tarmac road. According to the witness it was not very dark at the time and security lights were on at the place. PW4 further testified that he also saw another man near the tarmac road who fled when he saw the gun man. The armed man is said to have pursued the other and the two men disappeared from PW4's view. 4. PW4 continued to tell the court that seconds later he heard about four gun shots and ran to the direction thereof where he found a man lying on the ground and the gun man was standing next to him. A crowd soon gathered there and it was feared that the man on the ground was dead. The crowd "bayed for the blood" of the armed man in civilian clothes who shot in the air to scare off the mob. Police officers are said to have soon arrived at the scene. 5. PW4 told the court that he knew the gun man as an Administration Police Officer nicknamed Peter nicknamed HIGH COURT CRIMINAL CASE NO.E026 OF 2022 3 JUDGMENT

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"Masai". The witness added that he used to see him at Salgaa and pointed at him in court as the Accused person. 6. PW7, also popularly called Maasai told the court that he was also performing security guard duties at Salgaa Trading Centre in the material evening when he heard shouts of "thief thief!". People ran towards his direction before he heard a gunshot and fled towards lorries he was watching over. PW7 further testified that someone held him from behind and he tried to fight him off. He then saw a gun man who shot down the person who had grabbed him (PW7). The attacker also allegedly shot at PW7 as he fled for his safety, and missed him. According to PW7, he heard about 3-gun shots aimed at the victim. The witness said he did not know the shooter before but saw that he was wearing a police T-shirt. He later learnt that he was a police officer. 7. PW6 told the court that on 29/9/2017 at 8:00 p.m. she was serving customers in Olive Bar in Salgaa, where she worked. One of the customers called Okengo or Okonwo HIGH COURT CRIMINAL CASE NO.E026 OF 2022 4 JUDGMENT

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she served paid for his drinks by the M-Pesa mobile money transfer platform. PW6, however, learnt the following day that the payment of Kshs. 350 the customer had made had been reversed. The witness asked one Maasai the customer was drinking with, about the said customer. Maasai claimed that the customer was a notorious thug armed with a gun. 8. On the stated date at around 9.00 pm, PW6 heard that the indebted customer had been sighted at a vehicles stage. She alerted a police officer called Cpl Mwaniki who sent police officers to the bar. They went in search of the customer but did not find him. On 2/10/2017 at 6.00 pm. PW6 claims to have heard gunshots emanating from the stage and later heard of a man who had been shot dead at a stage. 9. PW6 further testified that she knew the Accused as a police officer in Salgaa. She added that he was not among Police Officers Cpl Mwaniki had sent to her to help to trace and arrest the indebted bar customer. HIGH COURT CRIMINAL CASE NO.E026 OF 2022 5 JUDGMENT

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10. Cpl Mwaniki mentioned by PW6 testified as PW8 and confirmed PW6's evidence. They had gone in search of the client said to have failed to pay a bill at PW6's bar, but didn't find him. Information was later received that the man whose name was given as Okonkwo had been shot by two officers who had been dispatched to arrest him. According to PW8, an officer called Sgt Kilel named the two officers as Police Constables Lekachuma and Mwaura. PW8 and other officers rushed to the scene of the shooting and secured it. The victim was allegedly wearing military boots and trousers. It was suspected that Constable Lekachuma was the one who shot the victim since his gun was established to have fired 4 shots while Constable’s Mwaura's did not discharge any. According to PW8, the accused officer and his colleague officer Mwaura reported that the victim had tried to snatch Officer Mwaura's gun. 11. PW8 further testified that when he got to the scene, he noted that the deceased was on military boots and a long trouser but conceded that the apparel was not illegal. At HIGH COURT CRIMINAL CASE NO.E026 OF 2022 6 JUDGMENT

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the time, there were incidents of insecurity in the area with gangs wielding guns terrorizing residents, according to the witness. 12. PW9 was also a Police Officer in charge of Boror Police Post, Rongai Sub County in Nakuru County before she moved to Naivasha Police Station. The Accused was an officer under him at Boror Police Post. On 2/10/2017 at around 6.00 pm, PW9 continued, he was at the police lines when PW8, the Accused and two other officers were sent out for patrol duties and to arrest a murder and theft suspect. He issued the officers with G3 rifles which were recorded in the Arms Register he tendered in evidence. The Accused was given a gun whose serial No. was GA 3540897 loaded with 20 rounds of ammunition. 13. PW9 further stated that the officers later returned to the Post without arresting the suspect. At around 8.00 pm, he heard one of the officers called Mwaura informing the Accused officer that the suspect had been found. Thereafter PW9 heard gunshots emanating from Salgaa HIGH COURT CRIMINAL CASE NO.E026 OF 2022 7 JUDGMENT

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Trading Centre, about 300 meters from the Police Post. He rushed to the Centre and saw a human body with injuries on the ground. The Accused and officer Mwaura were beside the road near the body. When the officers he issued with guns inspected them, the Accused's rounds were found to be less by 4. 14. A Firearms Examiner at the Directorate of Criminal Investigations (DCI) Headquarters, Nairobi, testified as PW10. His duties include examination of firearms and their component parts using his training locally and internationally in ballistics. On 29/11/2018 he received a G3 rifle serial no. GA 3540897 and a magazine with 16 rounds of ammunition from a Police officer based at the DCI – Rongai. Based on an Exhibit Memo Form accompanying the firearms, PW10 stated that they were requested to establish whether the exhibits were firearms within the meaning of the law. 15. The witness successfully test-fired 3 of the 16 rounds using the submitted firearm during his examination and HIGH COURT CRIMINAL CASE NO.E026 OF 2022 8 JUDGMENT

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collected the resulting bullet heads and cartridges. They had not been given any spent cartridge or bullet heads together with the forwarded firearms. The forwarding officers later took back the exhibits. 16. PW9 tendered his analysis report dated 3/12/2018 which was admitted in evidence. 17. PW11 told the court that she is an officer from the Directorate of Criminal Investigations Officer (Juja) in Kiambu County. On 2/10/2017 while she was attached to the DCI (Rongai) in Nakuru County, the area Officer Commanding Police Division (OCPD) informed her of a shooting incident at Salgaa Trading Centre, Nakuru County. The OCPD led her and other officers to the scene where they found a human body bearing a wound on the left side of the chest. PW11 added that they also found two Administration Police Officers there. The Officer Commanding Station (OCS), Rongai Police Station, is said to have related that the Administration Police Officers were the ones who shot the deceased. HIGH COURT CRIMINAL CASE NO.E026 OF 2022 9 JUDGMENT

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18. The body was removed to the Nakuru County Teaching and Referral Hospital Mortuary. According to PW11, the police opened an Inquest file to investigate circumstances leading to the fatal shooting. A gun suspected to have been used in the shooting and which had been issued to an AP officer was sent for ballistic examination. PW11 further testified that the Accused was established to have been the officer issued with the particular gun on the material date. The witness stated that she was not the case Investigating Officer. The Independent Policing Oversight Authority (IPOA) is said to have taken over investigations into the case. 19. Post-Mortem examination of the deceased's body took place on 11/10/2017 conducted by Dr. Titus Ngulungu (PW5). He established that the deceased suffered massive loss before death. An injury consistent with a gunshot was visible on the left side of the chest. Multiple bruises were on the left shoulder, extending to the back. HIGH COURT CRIMINAL CASE NO.E026 OF 2022 10 JUDGMENT

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20. PW5 formed the opinion that the cause of death was severe chest injury attended by lung lacerations and massive chest bleeding consistent with a single gunshot to the chest, in keeping with homicide. The autopsy report was produced in evidence. 21. An IPOA Officer (PW13) testified as the Investigating Officer and confirmed the testimony of the prosecution witnesses regarding the circumstances leading to the death of the deceased. He tendered the gun allegedly used in the attack as well as the magazine and 16 bullets referred to by the witnesses. According to the Officer, they had interviewed members of the public about the incident and they recorded witness statements. 22. The other Prosecution witnesses are the deceased's relatives who only heard of the fatal shooting and saw the deceased's body in the mortuary. 23. The Accused gave sworn evidence in his defence. He confirmed the prosecution evidence that he and other officers were on patrol duty at Salgaa Trading Centre on HIGH COURT CRIMINAL CASE NO.E026 OF 2022 11 JUDGMENT

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the material date. Members of the public informed them about criminals spotted at a Wines & Spirits shop in the town. They went to the shop where theft reportedly occurred but did not find the criminals. 24. The Accused further stated that later while he was in his house his colleague called Mwaura related to him that the criminals had been seen somewhere. The Accused armed himself with a G3 rifle Serial number 3540897 and 20 rounds of ammunition and left with other officers to arrest the suspects, some of whom were reported to be armed. At a Matatu Stage, they found a gathered mob. The officers crossed a ditch and saw two people struggling and the Accused recognized one of them as his colleague Constable Mwaura. Constable Mwaura was down struggling with a stranger who held the sling of his gun. The Accused states that he fired shots in the air to scare off the strange man who wore military uniform. The man instead turned to attack him, forcing him to fire at him in his defence. He shot him at close range in the chest. HIGH COURT CRIMINAL CASE NO.E026 OF 2022 12 JUDGMENT

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25. According to the Accused, he acted within the law as he used the gun as a last resort for his safety and that of his colleague. As a result of his intervention, he said Officer Mwaura was able to secure his gun. Following the incident, irate members of the public confronted them. The Accused tells the Court that he shot in the air to deter them. He had later established that the deceased was not in fact armed. 26. During investigations into the case, the Accused says IPOA officers recorded his statement under caution. He exhibited the statement in his defence. The Court was further told that Officer Mwaura has not testified in the case because he suffered a mental illness. 27. The Accused confirmed that after the incident he returned his rifle and magazine to his post less 4 rounds of ammunition that were issued to him. 28. The prosecution Counsel ( Mr. Wakasyaka) filed written submissions. He submits that the accused caused the death with malice aforethought. The court is told that in HIGH COURT CRIMINAL CASE NO.E026 OF 2022 13 JUDGMENT

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homicide cases, death is presumed as unlawfully caused unless it is otherwise accidentally caused in circumstances that make it excusable. Counsel referred the court to two Ugandan cases to wit; Uganda V. Lydia Draru Alias Atim HCT-00-CR-SC-0404 High Court of the Republic of Uganda and Akol Patrick & Others V. Uganda (2006) HCB (Vol. 1) 06. The Court of Appeal for East Africa in R V. Gusambiza s/o Wesonga 1948 15 EACA 65 is also said to have underscored the legal position. According to the Prosecution Counsel, the evidence adduced proves that the deceased‘s fatal injuries were deliberately inflicted. It is argued on the authority of decided cases that prosecution evidence tendered case proves the Accused’s guilt beyond reasonable doubt. 29. The defence Counsel on their part submit inter alia that the prosecution evidence does not prove the charge beyond reasonable doubt. It is submitted that the prosecution evidence does not prove the element of malice aforethought allegedly harboured by the Accused HIGH COURT CRIMINAL CASE NO.E026 OF 2022 14 JUDGMENT

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in the commission of the offence. The defence contends that the Accused acted in exercise of his lawful right to self defence. Counsel referenced various decided cases including the Court of Appeal decision in Ahmed Mohamed Omar & Others V. Republic (2014) eKLR where it was observed that self defence arises where an accused person reasonably believes that he is in imminent danger and use of force is necessary to avert the danger. 30. The sole issue for determination is whether the prosecution has proved beyond reasonable doubt that the accused murdered the deceased, actuated by malice aforethought. Section 206 of the Penal Code provides that malice aforethought is proven by one or more of the following circumstances; a. Intention to cause death or do grievous harm whether the death actually occurs or not. b. Knowledge that the act or omission causing death will probably cause the death or grievous harm to a person, whether the death is actually caused or not. c. An intention to commit a felony. HIGH COURT CRIMINAL CASE NO.E026 OF 2022 15 JUDGMENT

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d. An intention by an act or omission to facilitate flight or escape from custody of any person who attempts to commit a felony. 31. In Republic V. Juma Kituko Mwambegu (2020) eKLR it was observed thus in relation to cases of murder; 32. ‘’ In determining existence or non-existence of malice one has to look at the facts proving the weapon used, the manner in which it is used and the part of the body injured’’. 33. In Republic V. Gideon Wambua Kioko & 2 Others (2019) eKLR three essential elements of the offence of murder were listed as hereunder; (i) The death and cause of death of the deceased; (ii) That the accused caused the death through an unlawful act or omission; a. The accused possessed the intention to cause harm, or kill, or malice aforethought. 34. The prosecution does not have to prove the motive for commission of any crime, and neither is the evidence of motive sufficient by itself to prove commission of a HIGH COURT CRIMINAL CASE NO.E026 OF 2022 16 JUDGMENT

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crime by a person who possesses the motive {(see Case law in Robert Onchiri Ogeto vs Republic (2004) KLR (1a)} . Determination 35. It is common ground that the Accused shot at the deceased in the chest resulting in his death as also corroborated by the Pathologist. The issue to determine is whether the Accused was actuated by malice aforethought or he was exercising his lawful right of self defence. As held in the Court of Appeal case of Nzuki vs Republic (1993) KLR 171 cited and relied upon by the defence, malice aforethought is proven by evidence showing intention to cause death or grievous harm. 36. The evidence of PW7 is that the Accused shot the deceased as he tried to seek rescue from him. PW4 had also seen the Accused pursuing the deceased before he heard gunshots. The evidence of these two witnesses implicating has not been discredited either by crossexamination or the defence evidence. This discounts the HIGH COURT CRIMINAL CASE NO.E026 OF 2022 17 JUDGMENT

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Accused person's evidence of self defence especially since the deceased was unarmed. PW7 said that the deceased was desperately seeking rescue from him when he was shot at. This is direct evidence implicating the Accused and the question of self defence does not arise in the circumstances. 37. It appears from the evidence of PW8 (Cpl Mwaniki) that the customer who allegedly failed to pay a bill was the one shot by the Accused. This further discredits the Accused's defence. It is incomprehensible as to why the officers acted with such force to help recover a civil debt. Malice aforethought is therefore established. A gunshot to the chest is evidence of intention to kill. 38. The court accordingly finds that the charge has been proven against the Accused beyond reasonable doubt and he is convicted as charged under Section 215 of the Criminal Procedure Code. HIGH COURT CRIMINAL CASE NO.E026 OF 2022 18 JUDGMENT

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J. M. NANG’EA, JUDGE. Judgment, dated, signed and delivered virtually this 9th day of July, 2026. In the presence of: Mr. Wakasyaka for the DPP. Ms Ngugi Advocate for Mr. Matoke H. for the Accused. The Accused. Court Assistant (Jeniffer). J. M. NANG’EA, JUDGE. HIGH COURT CRIMINAL CASE NO.E026 OF 2022 19 JUDGMENT

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