High Court 12411 of 2026

3. Following the transfer of the trial judge to Nairobi I took over the matter and heard the defence case. The matter is now pending for judgment. THE EVIDENCE 4. PW1 JONATHAN NYAMARI GACHIRA, told the Court that he was a watchman working at the property of Elias Thuo in Othaya. He states that on 13th July 2022 at about 9.00pm whilst on duty he saw two men near his employer’s compound, just outside the fence. One man was on the ground and the other was bending over him. PW1 asked what was happening. The man who was bending responded that the other man was his uncle who was drunk and that he was lifting him up to take him home. 5. After a while the man ran away. PW1 gave chase and caught him and returned him to the scene. It was then that PW1 using his torch checked the man who was lying on the ground. He saw there was blood oozing from his ears. phoned his manager who came to the scene. PW1 then The manager looked at the man and said he was already dead. Police were called to the scene. Members of public who had gathered at HIGH COURT CRIMINAL CASE NO. E011 OF 2022 JUDGEMENT Page 2 of 17

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the scene beat up the accused causing him injuries. A piece of string suspected to have been used to strangle the deceased was collected by police. 6. PW2 DOMINIC JUMA told the court that he too worked for Elias Juma. PW2 stated that on 13th July 2022 at about 8.30pm the watchman PW1 called him and informed him that he has seen a man who appeared dead and that he had also arrested a suspect who was running away. PW2 went to the scene and found PW1 there and a crowd gathered at the scene. PW2 saw the body lying on the ground. He stated that the body had a rope around the neck and another rope tying the hands. Blood was oozing from the ears and nostrils. PW2 called the chief and also reported the incident at Othaya Police Station. Irate members of public beat up the accused. The matter was left to police to handle. 7. PW3 MARY WAVINYA MUCHIRI is the mother of the accused. She told the court that on 13th July 2022 she was at her home preparing supper. That one Cecilia Nyokabi phoned and informed PW3 that she had seen her son fighting with the HIGH COURT CRIMINAL CASE NO. E011 OF 2022 JUDGEMENT Page 3 of 17

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accused. Late PW3 was informed that her son had killed the Deceased. PW3 stated that she later went to see the accused at Othaya Police Station. The accused denied having assaulted and/or killed the deceased. 8. PW4 GERALD NDEGWA KARIUKI told the court that the accused was his nephew whilst the deceased was his brother. PW4 told the court that on 13th July 2022 at about 8.00pm he was at his home when he received a phone call from a lady who informed him that a body had been found in the river. PW4 rushed to the scene and found a body at the river bank. The deceased had been tied with a nylon rope on the neck and on the hands. PW4 then phoned his father to tell him the news. Police later came and removed the body to the mortuary. 9. PW5 INSPECTOR SIMON NANSHURAI told the Court that on the material date he was on duty at Othaya Police Station. That at about 8.30pm PW5 received a report of suspected murder. He went to the scene with other officers where they HIGH COURT CRIMINAL CASE NO. E011 OF 2022 JUDGEMENT Page 4 of 17

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found the body of a male adult lying on the riverbank with a manila rope tied around his neck. They also found the accused at the scene having been subjected to mob violence as it was alleged that he had been seen dumping the body at the river bank. 10. Police rescued the accused from the mob and took him to hospital as he had been badly injured. The body of the deceased was moved to the mortuary. PW5 said that he tried to interrogate the accused but accused was unable to talk much due to his injuries. PW5 left the matter to be handled by the investigating officer. 11. PW6 DR. MUTHUKI was the government pathologist who conducted the autopsy on the body of the deceased. The doctor noted ligature marks and bruising on the neck and hands and lacerations on both legs. There was a base fracture of the skull and swelling on brain. PW6 opined that the cause of death was asphyxia due to strangulation. She produced as HIGH COURT CRIMINAL CASE NO. E011 OF 2022 JUDGEMENT Page 5 of 17

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an exhibit the post mortem report duly filled and signed by herself Pexb 1. 12. PW7 PHILLIP MUTISYA was a police officer attached to DCI Othaya who was the investigating officer. He drew a rough sketch plan at the scene and removed the body to the mortuary. PW7 later drew a fair sketch plan. He organized for photographs to be taken of the body at the scene and collected pieces of string which had been tied on the neck and hands of the deceased. PW7 produced the exhibits in court. He later caused accused to be charged for the offence of Murder. 13. At the close of the prosecution case the accused was found to have a case to answer and was placed on his defence. The accused gave a sworn statement in which he denied having strangled the deceased to death. The accused confirmed that the deceased was his uncle. He told the court that the two had been drinking together in Othaya until 3.00pm when they parted ways. That later at 7.30pm the accused who was HIGH COURT CRIMINAL CASE NO. E011 OF 2022 JUDGEMENT Page 6 of 17

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slightly drunk was using a shortcut on his way home when he came across the body of his uncle lying on the ground. The accused denied that he had any grudge against the deceased and denies having murdered the deceased. ANALYSIS AND DETERMINATION 14. The accused faces a charge of Murder. Section 203 of the Penal Code defines the offence of murder as follows “Any person who of malice aforethought causes death of another person by an unlawful act or omissions is guilty of murder.” 15. From the above definition derive the three critical elements of a charge of murder all of which must be proved beyond reasonable doubt. (1) The fact of death of the deceased. (2) That the deceased met his death due to an unlawful act or omissions in the part of the accused. HIGH COURT CRIMINAL CASE NO. E011 OF 2022 JUDGEMENT Page 7 of 17

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(3) That said unlawful act or omission was committed with malice aforethought. 16. The standard of proof required in all criminal cases including murder is proof beyond reasonable doubt. In criminal law the burden of proof lies on the prosecution who are required to prove the guilt of the accused beyond reasonable doubt. In MILLER -VS- MINISTER OF PENSIONS [1947] All ER 372, Lord Denning MR stated as follows:“The degree of beyond reasonable doubt is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond reasonable shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with a sentence of course HIGH COURT CRIMINAL CASE NO. E011 OF 2022 JUDGEMENT Page 8 of 17

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it is possible but not in the least probable”, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 17. Similarly in the case of ANDREA OMBONYO & OTHERS VSREPUBLIC [1962] EA the court stated as follows;“As to the standard of proof required in criminal cases DENNING LJ (as he then was) had this to say in Bater -vs- Bater [1950] ALL ER 458 at 459 “It is true that by our law there is a higher standard of proof in criminal cases than in Civil cases, but this is qualification that there subject is no to the absolute standard of proof in criminal cases than in civil cases, but qualification that this is there standard in either case. the charge must be subject is no to the absolute In criminal cases, proved beyond reasonable doubt but there may be degrees HIGH COURT CRIMINAL CASE NO. E011 OF 2022 JUDGEMENT Page 9 of 17

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of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear.” 18. Regarding the fact of death of the deceased there can be no controversy. PW1 and PW2 narrated to the court how they saw a dead body with blood oozing from the nose and mouth lying on the ground. PW7 the investigating officer did produce as exhibits photographs taken at the scene (Pexb 5). The photographs depicted the dead body of an adult male lying on the ground. With a string tied around the neck and the hands tied together PW4 a brother to the deceased confirmed the identity of the dead man. The post-mortem report Pexb 1 indicates that the body was identified to the doctor as that of John Waruta Kariuki by Gerald Ndegwa Kariuki and Gerald Ndegwa Kariuki (brother and step brother of the Deceased). 19. Similarly the cause of death of the deceased is not in any dispute. The HIGH COURT CRIMINAL CASE NO. E011 OF 2022 JUDGEMENT Page 10 of 17

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witnesses stated that they saw sisal ropes tied around the neck and hands of the deceased. PW6 the government pathologist produced as an exhibit the post-mortem report dated 18th July 2022. The cause of death was found to be “Asphyxia” due to ante-mortem construction [strangulation] of the neck by use of ligature” This was expert medical evidence which was neither challenged nor controverted by the defence. 20. In order to prove the offence of murder the prosecution is required to prove both the “actus reus” i.e the criminal acts leading to the death of the deceased as well as the “mens rea” the mental elements being malice afterthought 21. In this case it has been proved beyond reasonable doubt that the deceased met his death due to strangulation. The prosecution is required to adduce sufficient evidence to prove that it was the accused who strangled and killed the Deceased. The fact is that the accused was found bending over the body of the deceased. This would certainly lead to HIGH COURT CRIMINAL CASE NO. E011 OF 2022 JUDGEMENT Page 11 of 17

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a presumption that the accused is the one who attacked and killed the Deceased. Does this presumption stand up to further scrutiny? 22. There was no witness who saw the accused tie up the deceased and strangle him to death. Indeed no witness saw any quarrel or fight between the accused and the deceased. The only person close to an eye-witness was PW1 a watchman who was on duty on the night in question. According to PW1 while he was on duty when he saw two men outside the fence, one man was on the ground and the second man (the accused) was bending over the prone man. PW1 asked what they were doing. The accused replied that the man lying on the ground was his uncle and he was trying to lift him so that they go home together. Indeed under cross-examination PW1 says “One of them was trying as if he was lifting the other. He was holding his hand like he was trying to help him up. When I interrogated him [accused] he said that he was helping his uncle.” HIGH COURT CRIMINAL CASE NO. E011 OF 2022 JUDGEMENT Page 12 of 17

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23. If the accused had truly murdered the deceased as alleged he would have more likely left the scene immediately. He would not remain at the scene and be trying to lift the deceased so that they go home. It would appear that the accused who told the court that he was tipsy at the time, did not realise that his uncle was dead. This is why he was trying to raise him up so that they go home together. 24. PW1 told the court that initially he did not suspect that anything was amiss. It is only when he approached the scene and using his torch realized that the man lying on the ground was bleeding from the nose and mouth.. 25. The actions of the accused were not the actions of a person who had a guilty mind. If accused had indeed strangled and bludgeoned HIGH COURT CRIMINAL CASE NO. E011 OF 2022 JUDGEMENT Page 13 of 17

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deceased why would he have remained at the scene trying to revive the deceased. 26. There is no witness who saw the accused and deceased struggling at all. PW3 told the court that she was told by one Cecilia Nyokabi that she had seen the two fighting. The said Cecilia Nyakabi was not called as a prosecution witness to give evidence regarding what she had seen. This remains hearsay evidence which is not admissible against the accused. 27. The question may arise on to why the accused tried to run away. Was this not indicative of a guilty mind. However PW1 under cross-examination stated “Initially the accused did not run away when I found him at the scene.” It is quite probable that the accused only took to his heels after realizing that his uncle was actually dead. HIGH COURT CRIMINAL CASE NO. E011 OF 2022 JUDGEMENT Page 14 of 17

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28. From the evidence of the pathologist the deceased was bludgeoned with some heavy weapon as the skull was fractured. There was also evidence of strangulation. Surprisingly PW1 made no mention of having seen or noted any blood on the accused’s clothes. No weapon was found at the scene or in the accused’s hands. No mention was made of any bruises, scratches on the person of the accused. The deceased suffered a violent attack which was fatal. It is highly unlikely that having perpetrated such a vicious attack the accused would have no marks on his person or on his clothes. 29. The accused in his defence did not deny that he was with the deceased on the material day. He testifies that the two were drinking together earlier in the day but that they parted company at about 3.00pm. The accused states that he did not see the deceased again until he stumbled upon the body on his way home at about 7.30m. The accused stated that at the time he was slightly intoxicated. HIGH COURT CRIMINAL CASE NO. E011 OF 2022 The defence raised by the JUDGEMENT Page 15 of 17

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accused is plausible. I was able to observe the demeanour of the accused as he gave his defence. In my view he was being truthful. 30. The police did not carry out any forensic sampling to determine whether any DNA of the accused was found on the body of the deceased or on the pieces of rope which were recovered at the scene. Taking into account the fact that this case boils down to a ‘he said she said’ situation being the word of PW1 against the word of the accused and taking into account the fact that the accused did not run away from the scene until PW1 approached and even answered the questions put to him by PW1. 31. Based on my analysis I find that the prosecution failed to tie up all the loose ends in this case. Several critical questions remain unanswered. In my mind there remains a sliver of doubt regarding the guilt of the accused. The benefit of doubt must be accorded to the accused. I therefore acquit the accused of the charge HIGH COURT CRIMINAL CASE NO. E011 OF 2022 JUDGEMENT Page 16 of 17

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of murder. The accused is to be set at liberty forthwith unless he is otherwise lawfully held. Dated in Nyeri this 31st day of July 2026. ……………………….. MAUREEN A. ODERO JUDGE HIGH COURT CRIMINAL CASE NO. E011 OF 2022 JUDGEMENT Page 17 of 17

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