Republic & 1 other v Jane Wanjiku Mutahi & 3 others

The offence of murder is defined under section 203 of the penal code in the following manner; ‘Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder’ Section 206 of the penal code defines malice aforethought in the following terms; ‘Malice aforethought shall be deemed to be established by evidence proving any one of the following circumstances; a) An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; c) An intent to commit a felony; d) An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony’’ The onus of proof in criminal cases is that beyond reasonable doubt. It is the duty of the prosecution to attain that threshold. In the Court of Appeal case of Anthony Ndegwa vs. Republic (2014) eKLR three (3) crucial ingredients of the offence of murder were identified for proof. These are; a) The death of the deceased and the cause of death. b) That the accused persons committed the unlawful act which caused the death of the deceased. c) That the accused had malice aforethought. Death of the Deceased PW8 Dr. Obiero Okoth, the pathologist who performed the post mortem examination after the body was identified to him formed the opinion HIGH COURT CRIMINAL CASE NO. 32 OF 2011 2

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that the cause of death was multiple chest injuries, stab wounds which led to collapsed lungs and injuries to the liver and kidneys. There is evidence by PW4 Simon Maina to the effect that he saw when the body of the deceased was being retrieved from a disused pit latrine in their family shamba, naked and partially burnt. The fact of the death of the deceased and the cause of that death is not in dispute. The unlawful cause of death either by acts of omission or commission. PW1 Boniface Mutahi aged seven (7) years at the time and a son to the deceased did testify to have seen the 4 th accused hit the deceased with a piece of stick, he bled. The 1 st accused rushed back with a gunny bag and they took the body to the shamba. This information was given to PW4 by the witness. PW9 sergeant Kipkorir was the investigating officer in the murder case, he testified that it is the 1 st accused who led police to where the body of the deceased was dug out which was from a disused pit latrine in the family shamba. PW1 while in the company of the 1 st accused did proceed to the home of PW6 where they were later joined by the 2 nd accused. PW6 was instructed to go back to the house. PW8 overheard them saying that Lydia Njoki (3rd accused) be escorted to the toilet. When the 1 st accused returned at 7.00am for breakfast, she found a crowd of people at the toilet retrieving a phone. The 1 st accused deserted the homestead till the time of her arrest on 9th November, 2021. The phone belonged to the deceased John Mutahi. It is the prosecution case that it is the 1st accused who took the police to where the body of the deceased was recovered. That it is the 2nd accused who gave out the mobile number of the 1 st accused to police who tracked and arrested her. This phone was produced as an exhibit in Chief Magistrate’s Court Criminal Case No. 1076 of 2011 by consent of both parties. In the above mentioned case, the accused persons were Simon Murage Mutahi and Shem Kiama Mutahi both of whom who are accused No. 1’s sons. HIGH COURT CRIMINAL CASE NO. 32 OF 2011 3

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As for the 4th accused Shem Kiama Mutahi. It is the prosecution case that he was seen by PW1 in the act of beating and killing the deceased who was his brother. He was staying in the same compound as the deceased. He visited PW2 while riding the deceased bicycle. Upon being asked the whereabouts of John, he said that the bicycle had been sold to him by the deceased and he had gone to Mandera. He did not report the matter of the fact that the deceased who was a neighbor was missing. Before his death the deceased is said to have informed PW4 that in the event of his death, it should be known that his family was against him because he had objected to the sale of their matrimonial land. The defence has tried to poke holes on the evidence of PW1 who was a young man aged seven years at the time and especially his concession of the fact that what he told the court was what he was told to say by PW2. The defence seems to suggest that it is PW2 who killed the deceased in that she is the one who coached PW1 to mention the 4 th accused and that she was the one who was mentioned by the crowd which had gathered at the scene when the body of the deceased was dug out. That she had access to the deceased who used to stay in the same compound as hers. In her defence the 1st accused maintained that she did receive a call from her daughter Lydia Njoki asking her to meet her at Kiawara trading centre where she met her in the company of police. She had not been at her home for close to two (2) weeks as she had gone to take care of her uncle who was ailing. She denied the existence of disharmony in the family over the sale of ancestral land and the fact that the deceased had placed and or registered a caution over it. The accused in his defence testified that he resided at Kiganjo but not at Githiru where the deceased was staying and that he did not kill the deceased. Determination The 2nd and 3rd accused persons passed on. They stand discharged. The remaining ones are the 1st accused Jane Wanjiku Mutahi and 4th accused Shem Kiama Mutahi. The only eye witness in this case is PW1 a boy aged 7 years at the time. His evidence was not very consistent. This could have been HIGH COURT CRIMINAL CASE NO. 32 OF 2011 4

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attributed to his tender age among other factors. It is not in dispute that he did allude to have been told what to testify by PW2 who was his Aunt. It takes some courage to mention your father as a killer. PW1 was the son of Simon Murage now deceased, and formerly accused No. 2. He testified to have seen his father and the 4 th accused beat and kill the deceased. He maintained to have seen the incident properly and further saw the body being put into a gunny bag which was provided by his Aunt 1st accused and was taken to the shamba. This being evidence of a child of tender years, I find that there is need for corroboration. The offence of murder is said to have been committed on the 20th day of October, 2011. On 5th November, 2011 the 1st accused in the company of PW1 went to the home of PW6. They were joined by the 2 nd accused Lydia Njoki. There was discussion of visiting the toilet. This toilet was at PW5’s shamba and in the same compound of PW3 and PW6. This is the toilet where a mobile phone belonging to the deceased body was retrieved. When the 1st accused discovered the recovery of the phone, she went away till the date of arrest which was on 9th November, 2011. It is PW9’s contention that it is the 1 st accused who pointed out to police where the body of the accused was buried in a disused pit-latrine. The evidence by PW9 also touches on the issue of the deceased mobile phone having been in the possession of the 1 st accused who handed it over to her daughter 2nd accused for purposes of throwing it into a pit latrine. This was an item belonging to the deceased which was recovered after his death. Evidence was adduced to the effect that the deceased was staying in the same compound as his mother 1 st accused and the 4th accused. They must have known that the deceased was missing. Their silence cannot in any way be said to be consistent with their innocence. It was guilt written all over. The 4th accused Shem Kiama did visit PW2 while riding a bicycle belonging to the deceased. He alleged that the deceased sold it to him for Ksh. 2,500 and proceeded to go to Mandera. The incident is said to have happened after the death of the deceased. The accused was HIGH COURT CRIMINAL CASE NO. 32 OF 2011 5

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found with an item belonging to the deceased soon after his death without giving reasonable explanation. The Motive Though denied by the defence, there is ample evidence to the effect that after the death of their father, the deceased had lodged a caution on the ancestral land after some members of the family had shown great interest in selling it. This did not go well with them. PW4 did testify that before his death the deceased had confided to him that his life was in danger and that his family was not happy with him for his refusal to the sale of their ancestral land. In the Court of Appeal case of Abanga alias Onyango vs. Republic, Criminal Appeal No. 32 of 1990 vs. Republic The Court observed that circumstantial evidence should be admitted when the circumstances taken cumulatively 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 person. I find that in the case at hand, the circumstantial evidence adduced points irresistibly to the guilt of the two (2) accused persons. I am satisfied that they had formed the common intention to kill and they proceeded to kill the deceased. The two (2) are found guilty of the offence of murder contrary to section 203 as read with section 204 of the penal code and are convicted accordingly under section 306 of the CPC. JUDGMENT DELIVERED virtually this 25th day of March, 2026. ________________________________ MARTIN M. MUYA JUDGE HIGH COURT CRIMINAL CASE NO. 32 OF 2011 6

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In the Presence of: Miss Wambui for 1st and 4th Accused person. Isack - Court Assistant. Mention on 29.04.2026 for mitigation and sentencing. Probation officers report to be availed. 1st accused bond cancelled. She will be remanded in custody. HIGH COURT CRIMINAL CASE NO. 32 OF 2011 7

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