Republic v Jushua Kyema Wambua

9. The prosecution’s case against the accused person was that, the deceased, an old lady of advanced age, 85 years, according to the post mortem report, was staying in her home with her daughter PW 3, Betty, the mother of the accused person and PW 1. They would occasionally take the accused person’s child J.M.K. to spend a few days with them at the home. PW 1’s home is a closer to the deceased’s home while that of the accused person is further away, some 500 metres or so. 10. On the material day, the accused person’s said child was at the deceased’s home. It was a Sunday. PW 3, Betty was going to church. She asked her son PW 1, Moses to pick the accused person’s child and stay with him at his home. Moses did pick the child and went with him to his home but shortly afterwards the accused person went to his home and took the child away with him. 11. In the meantime, Betty left for church. She said their mother, the deceased was well and only complained of pain in the leg. She left the deceased seated on a plastic chair at the verandah. 12. At around 1.00 p.m. Moses went to the deceased’s home and found her slumped in her seat, dead. He called and alerted his mother Betty as well as PW 2, the deceased’s other daughter and also called in neighbours. Betty and PW 2 came over and the body was taken to the mortuary. Due to the advanced age of the deceased and knowing that she suffered fron high blood pressure, they concluded that she had died of natural causes. They took the body to the mortuary. 13. At 8.00 p.m. in the night, one Mwala came over carrying the accused person on a motorcycle. Mwala informed the family members who were present, including Moses, Betty and Tabitha that he had found Joshua, the accused person drinking heavily at Mwala’s pub. He guessed that the accused person seemed to have a lot of money and yet he owed him some KShs 20,000/=. Mwala went on to inform them that he had then taken the accused person to Kibaoni police station for the police to find out where he had gotten the money from. At the police station the accused person was searched and found with KShs 270,000/= in cash. The police officers recovered and kept the cash. The police officers asked Mwala to take the accused person to his mother and ask the mother to go to the police station the following day with the accused person so that he could explain the source of the large amount of money. 14. The following day, Betty, PW 1 and PW 2 went to Kibaoni police station and the police officers handed over the KShs 270,000/= that had been recovered from the accused person the previous day. The accused person did not accompany them. 15. When they went back home, the accused person went there. PW 3 asked him where he had got the money from. He said that it he had been given the money by somebody to construct for him a house. They did not believe him and they took him to the nearest police post at Kikoneni. 16. According to PW 2, while at the police post, the accused person requested that he wished to remain with his brother Moses, PW 1 and police officers. His mother, PW 2 and the other people left the room. Moses, PW 1 said that the accused person informed the police officers that he found their grandmother dead at home. He picked a key from around the deceased’s neck, entered the house, took the money, returned they key around the neck and left. For that reason, the family became suspicious of the cause of death of the deceased and decided that a post mortem be conducted on the body. The accused person was detained at the police post. 17. PW 6, Dr. Samwel Mungai conducted the post mortem on the body of the deceased on 21st May 2024. He said that there was evidence of strangulation marks on the anterior neck and lower jaw on both sides, left and right as a result of repetitive inward pressure exerted on the neck. The marks resembled blunt force exerted by the upper fingers, index fingers, middle finger on one side and the thumb on the other side. There was associated anterior neck swelling pitting in nature. There were observed two https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11265/eng@2026-03-10 2

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laceration wounds on the lower jaw both sides each measuring 2cm x 1.5 cm. From these findings, the doctor formed the opinion that the deceased died due to asphyxiation as a result of strangulation. 18. PW 5, the investing officer said took statements from witnesses and had the accused person charged with the offence. PW 5 said that he also spoke to the accused person who told him that when he went to the deceased’s home, he found her slumped on the chair, dead. He then took the key from the deceased’s neck, went into the house, took the money and returned the key to her neck and left. He said that the accused stays about 1.5km from the deceased’s home. He also said that the deceased’s family had used the money recovered from the accused person for the funeral. 19. In defence the accused person denied that he strangled his grandmother and took her money. He said that he is a motorcycle operator, ferrying passengers for hire commonly referred to as “boda boda.” On the material day he went to his grandmother’s home and picked his child who was staying there with the deceased and Joshua’s mother, PW 3, Betty and took him home where to his wife. 20. Later in the day, his brother Moses, PW 1, informed him that their grandmother was dead. He went there and found that indeed their grandmother was dead. There were many people around. He left on his motor cycle. 21. Later that day, he was found at a club commonly referred to as “Mangwele” for selling traditional local brew owned by one Mwala whom he owed some money. He had his money on him which he had been paid by Base Titanium Company. Mwala started disturbing him and then arrested and took him to the police station where his money was taken and he was told to go back with his mother to collect it. He went and informed his mother and brother Moses. The two went to the police station the following morning before he got there and collected the money and went back hom e using a different route from the one he had used to the police station. When he arrived home, they took him to the police station. 22. The accused person said that he had no knowledge of the murder because he was not there when it happened. 23. In cross-examination, the accused person said that Base Titanium had paid them compensation for removing them from their parcels of land and for the houses thereon. He had been paid KShs 700,000/ =. He was found with KShs 270,000/=. He said that he was beaten by DCI officers to accept what his brother had told them that he took the money from their grandmother but he told them that the money was his. 24. The accused person also said that when he went to collect his child, he left his mother PW 3 and the deceased there. 25. Learned counsel for the accused person submitted that the amount the deceased was paid by Base Titanium was never stated by any of the prosecution witnesses yet the prosecution based its case on the amount of money so paid as compensation. 26. Learned counsel submitted that the strangulation marks found on the deceased’s body by PW 6 were not subjected to forensic examination in order to link the accused person to the incident. 27. Learned counsel submits that for those reasons, none of the prosecution witnesses offered evidence to link the accused to the death of the deceased. He said the evidence against the accused person was circumstantial and cited the case of Ahamad Abolfathi Mohammed & another v Republic [2018] https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11265/eng@2026-03-10 3

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KECA 743 (KLR) where the Court of Appeal said the following regarding reliance on circumstantial evidence: “ ... it is a truism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence, which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form as strong a basis for proving the guilt of an accused person just like direct evidence. Way back in 1928 Lord Heward, CJ, stated as follows on circumstantial evidence in R v. Taylor, Weaver & Donovan [1928] CR. App. R. 21: “It has been said that the evidence against applicant is circumstantial. So it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of Mathematics. It is no derogation from evidence to say that is circumstantial.” (See also Musili Tulo v. Republic Cr. App. No. 30 of 2013). 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. In Abanga alias Onyango v Republic, Cr. App No. 32 of 1990 this Court set out the conditions as follows: “ It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy 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 guilt of the accused; (iii) 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.” 28. Learned counsel submits that the prosecution evidence is scanty and speculative and therefore leaves more questions than answers. That it is not cogent to prove the charge against the accused person. He cites the case of Sawe v Republic [2003] KECA 182 (KLR) for the holding that the evidence did not irresistibly point to the appellant to the exclusion of all others as the one who had committed the murder. Part of that submission however seems to have been for a different case as the facts are not for the present case. 29. The prosecution did not make submissions in this case. 30. I have considered the evidence of the five prosecution witnesses, the defence by the accused person, and the submissions by learned counsel for the defence. The point for determination is whether or not the prosecution has proved a case of murder against the accused person beyond a reasonable doubt. 31. The offence of murder is provided for under section 203 of the Penal Code as follows: “S. 203. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.” 32. In the case of Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) the Court of Appeal said thus regarding the ingredients of the offence of murder: “ For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11265/eng@2026-03-10 4

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deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought. (See Nyambura & Others-vs-Republic, [2001] KLR 355).” 33. In this case, there is evidence that the deceased died from strangulation as per the evidence of PW 6, Dr. Samwel Mungai who conducted a post mortem examination on the body on 21st May 2024. 34. There was no dispute on those findings and on the first ingredient of murder, that of actus reus, I find that the death of the deceased and the cause of death were established by the prosecution beyond a reasonable doubt. 35. The next issues for determination is whether the prosecution has established beyond a reasonable doubt that the accused committed the unlawful act which caused the death of the deceased and that he had the malice aforethought. In the case of Republic v Boniface Isawa Makodi [2016] KEHC 162 (KLR) the case of Gusambizi Wesonga v Republic [1948] 15 EACA 65 is cited for the holding that: “ Every homicide is presumed to be unlawful except where circumstances make it excusable or where it has been authorized by law. For a homicide to be excusable, it must have been caused under justifiable circumstances, for example in self-defense or in defense of property.” 36. In this case, the deceased having died from strangulation it follows that the death was unlawful. 37. There was no eye witness to the strangulation of the deceased. The available evidence is circumstantial. The Court of Appeal in the case of Neema Mwandoro Ndurya v Republic [2008] KECA 324 (KLR) considered the threshold for reliance upon circumstantial evidence as follows: “ It is true that circumstantial evidence is often the best evidence as it is evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with the accuracy of mathematics as was said in R v. Taylor Weaver And Donovan (1928) 21 Cr App. R. 20. But circumstantial evidence should be very closely examined before basing a conviction on it. In Teper v. R [1952] AC at p. 489 Lord Normand said: “Circumstantial evidence must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another… It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the influence” In view of the foregoing, we think that as there was the lingering doubt as regards the possibility of Kaka (PW8) having been involved in the commission of the offence, and as there was no evidence as to when the appellant was last seen with the baby, it cannot be said that circumstantial evidence was so watertight as to exclude a possibility of another person having murdered the child. There might have been a suspicion that the appellant might have known how the deceased died but suspicion alone, however strong, is not enough to sustain a conviction. In Sawe v. Republic [2003] KLR 364 at pp. 375-6 this Court said:“ In this state of the evidence, the two watchmen are not excluded from being persons who might have started the fire or for that matter any intruder might have done so. If that be the case, then the evidence does not irresistibly point to the appellant to the exclusion of all others within the meaning of R v Kipkering Arap Koske & Another 16 EACA 135 where it held, inter alia, that; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11265/eng@2026-03-10 5

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‘In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.’ In our judgment, the evidence does not satisfy the legal requirements of circumstantial evidence to warrant or justify the conviction of the appellant on the basis of the evidence on the record. We are, therefore, unable to uphold the conviction entered by the learned trial judge. We have evaluated the evidence as we are entitled to at great length and there is really nothing left to connect the appellant with the death of the deceased except mere suspicion. The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this Court made clear in the case of Mary Wanjiku v Republic (Criminal Appeal No. 17 of 1998) (unreported), suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence.” 38. The circumstantial evidence against the accused person is that he had in his possession a considerably large sum of money in the circumstances whose source was said to be the house of the deceased. The witnesses who allegedly found the money on the accused person were not made available to testify. These were one Mwala the owner of the drinking joint where the accused person was allegedly seen in a spending thrift, and also a police officer from Kabaoni police post who recovered the money from the accused person. The amount was said to have been either KShs 270,000/=. Some KShs 18,000/= was then given to one Mwala and the balance was retained by the accused person’s relatives. Although these two people did not testify, the accused person conceded in his evidence that he had such a large sum of money at the time but that it was his and not taken from his grandmother. 39. The money was handed over to PW 1, PW 2 and PW 3 from the police post with an explanation that it had been recovered from the accused person. 40. The accused person who had been told to go back to the police post with his mother, PW 3 did not turn up the following day when PW 1, PW 2, and PW 3 went to the police post and the money was handed over to them. Instead he sent someone else to his own mother, brother and other relatives to ask them to hand over the money alleging that it was for a contract to construct a house. In spite of the money not being given back to him, there is no indication that the person who had allegedly contracted him to construct the house ever went to ask for the same. The money was not produced in court as exhibit as it was said to have been used to conduct the funeral of the deceased. It is inconceivable that a person would have given the accused person such a large sum of money to construct a house for him then left it to go unclaimed. 41. The other piece of circumstantial evidence that the prosecution relied upon was that the accused person had made an admission at Kikoneni police post before police officers and his brother PW 1 that he had taken the money from his grandmother’s house. PW 1’s evidence was that the accused person informed them that when he went to the grandmother’s home, he found her slumped on her chair, already dead. He took the key from around the neck, went into the house, took the money and returned the key around the deceased’s neck and left. 42. PW 1 was the only witness who allegedly heard the accused person make the admission of theft. PW 2 said that at the police station the accused person asked for all the other family members to get out of the room before he spoke out. When they were called back in, PW 1 told them about the admission. PW 3 said that she never heard of the accused person admitting that he had taken money from the deceased’s house. I am inclined to believe PW 1 that the accused person admitted to having taken the money from the deceased’s house. His evidence is supported by PW 2 that the accused person requested that other https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11265/eng@2026-03-10 6

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people get out of the police room as he had something he wanted to tell PW 1 and the police. What he wanted to tell PW 1 and indeed told him and the police was how he obtained the money from the deceased’s house. 43. The Court of Appeal in the case of Nickson Ligakha & another v Republic [2020] KECA 934 (KLR) having considered the Supreme Court holding in the case of Republic v Mohammed & another [2019] KESC 48 (KLR) on the distinction between a confession and an admission held that: “ an admission is a statement by the accused, direct or implied, of facts pertinent to the issue which, in connection with other facts, tends to prove his guilt, but which, of itself, is insufficient to found a conviction. It is our finding that the 1st appellant’s disclosure to PW3 which led him to the 2nd appellant’s house where the phone was found amounted to an admission or an action from investigation from which guilt can be inferred but cannot be a basis for conviction as a stand-alone piece of evidence.” 44. The evidence of the accused person’s admission is supported by the fact that shortly the incident of the strangulation of the deceased that day he was in possession of a substantial sum of money. He conceded in evidence that he had such money but alleged that it was part of the proceeds that he had been paid for the surrender of a parcel of land to Base Titanium company. But there is evidence to discount that assertion. 45. First, PW 1 said that indeed the accused person had been paid money much earlier but he had become broke afterwards until this time that again he suddenly had a lot of money. Secondly the accused person said that he owed one Mwala some money. Indeed, part of the money that was recovered from him, KShs 18,000/= was used to pay Mwala his money. If indeed he had money of his own he would have settled that debt first before embarking on thrift spending on drinks. Third, he sent someone to his mother and the other family members alleging that the money was given to him by someone for whom he was to construct a house. His evidence in defense that the money was compensation from Base Titanium company and the explanation he gave his relatives shortly after the money was recovered from him are therefore inconsistent. The conclusion is that, at that time, he was attempting to come up with a convincing explanation of how he came by the money that he had at the time. He could not have told them the story of the money being the proceeds of compensation for his land and house by Base Titanium Company because, as stated by PW 1, Moses, his brother, the family was aware that he had finished the proceeds of compensation a long time ago and he could not have had it at the time. The inconsistence therefore means that his explanation cannot be convincing. Finally, it is again inconceivable that having been paid the KShs 700,000/= much earlier, he would be walking around with KShs 270,000/= of it without any explanation of what he intended to use it for. His conduct can only be explained by the fact that he had come by the money recently as a windfall to him. 46. Consequently, I find that the accused person had no other explanation of the source of the money other than that he had taken the money from his grandmother. I therefore find that this large sum of money that he suddenly had he obtained from the house of the deceased. 47. The fact that the old lady had recently received payment from Base Titanium company appears to have been known by all the family members including the accused person. It is totally inconceivable in the natural course of human conduct that the accused person would have found his grandmother dead and his immediate instinct became getting money from her. 48. Even without him saying so, there is evidence that he went to the grandmother’s house because he was expected there to pick his son. However, the son had been handed over to PW 1 to stay with as they waited for the accused person to go and collect him. Therefore, he must have gone to the deceased’s https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11265/eng@2026-03-10 7

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house before proceeding to PW 1’s house and found the old lady alone. Indeed, he said in his evidence in defense that he went to the deceased’s house to pick the child. He alleged that he found her with his Betty and picked the child and left. However, the evidence of PW 1 and PW 3 was that by the child was picked by PW 1 and PW 3 had left before the accused person reached there. Therefore, his allegation that PW 3 was there with his child was discounted. I find that he found the deceased alone. 49. It is not openly clear how he went about his mission but it is highly probable that since he had a motor cycle, he went to PW 1’s home and picked the child and dropped him home then went back to the grandmother’s home. Alternatively, he committed the act then went and picked his child from PW 1 and left. With nobody around to see what he was doing, the accused person must have proceeded to execute his evil scheme. Perhaps knowing very well that the old lady would report him to the other members of the family, the accused person must have eliminated her in a bid to erase evidence of him having taken the money. The motive of the killing can be inferred from the fact that he stole her money. He therefore had malice aforethought in killing the deceased. 50. Even though there was no evidence of the strangulation marks found around the deceased’s neck being those of the accused person, I am satisfied from the evidence on record that the circumstances of the deceased’s death point to the accused person as the one who strangled the her in order to conceal the evidence of him having taken her money obviously without her consent. I find that the circumstantial evidence irresistibly points to none else but the accused person as the one who committed the murder. 51. In the result, I am satisfied that the prosecution has proved its case against the accused person beyond a reasonable doubt. I find the accused person guilty of murder contrary to section 203 of the Penal Code. He is accordingly convicted thereof. 52. Orders accordingly. JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AND VIRTUAL PLATFORM, TEAMS THIS 10TH DAY OF MARCH 2026 HON. ANDAYI W. F. JUDGE In the presence of: - Accused person in court Kabiaro for accused person. Vallerie (Ms) for the State Ummu - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11265/eng@2026-03-10 8

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