In re Ambuga

7. It would appear that whoever dumped the deceased’s body in the said septic sewer had hoped against hope that the septic sewer would serve as the deceased’s silent grave, holding the secrets to the circumstances under which the deceased died. Lo and behold, the deceased’s spirit must have refused to rest in perfect peace until the deceased’s killer (s), whether dead or alive, are known or face the legal consequences of their most macabre, senseless, unlawful and inexcusable act of snung out life from an innocent, helpless and defenseless child. 8. Bungoma South Sub-County Directorate of Criminal Investigations (DCI) ocers commenced investigations into this matter when, on 16th May 2025, they recovered the deceased’s school bag, school uniforms, school books, and other clothes behind the deceased’s father’s house, leading to the deceased’s father’s arrest on suspicion of having murdered the deceased. 9. The deceased’s post-mortem examination was conducted at Bungoma County Referral Hospital on 23rd May 2025, when it was established that the deceased’s death was caused by respiratory arrest secondary to a blunt chest trauma. 10. The resultant investigations le was forwarded to the Oce of the Director of Public Prosecutions (ODPP) Bungoma for further action, when the ODPP, in exercise of its prosecutorial mandate under Article 157 (6) of the Constitution, directed that this matter be disposed of by way of a public inquest per section 386 of the Criminal Procedure Code. Evidence 11. The prosecution called ten (10) witnesses to shed light on the circumstances under which the deceased died. The evidence adduced by the prosecution through the said witnesses is summarized below. 12. IW1 Nicholas Omariba is the deceased’s father. His testimony was that he went to sleep with the deceased in his house after taking supper from his mother’s house (IW3) on the night preceding the morning the deceased reportedly disappeared. 13. He added that he woke up with the deceased on the morning of 12th May 2025 when he prepared the deceased for school and escorted him to Bungoma Bus Park for the deceased to proceed to Moi DEB Primary School. He further stated that he went back to his home that day at around 2000hrs when he was told that the deceased was missing. 14. He also testied that he informed IW2 about the deceased’s disappearance and a search for the deceased ensued, only for the deceased’s naked decomposing body to be found in a septic sewer some 800 metres from his house on 14th May 2025. 15. He reiterated that he escorted the deceased to school on 12th May 2025 while the deceased was in full school uniform. He cast doubt on the recovery of the deceased’s school uniforms and school books behind his house on 16th May 2025. He also added that the people who saw him escorting the deceased to school refused to testify. 16. IW2 Violet Wambani is the deceased’s mother. She recalled that she gave birth to the deceased on 25th March 2017. She added that she stayed with the deceased until June 2024, when IW1 requested to enroll the deceased at Moi DEB Primary School. She further stated that there was an agreement between her and IW1 that the deceased would be staying with her during school holidays. 17. She stayed with the deceased during the April 2025 school holidays, but the deceased fell ill before the schools opened for second term. She nursed the deceased until 04th May 2025 when his condition https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/904/eng@2026-08-26 2

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improved. She then escorted the deceased to Keringet area on the same date and conrmed that the deceased had gone back to his father’s home in Mteremko area. 18. It was her further testimony that IW1 later called her on 13th May 2025 at around 2130hrs and informed her that the deceased was missing. She requested IW1 to report the deceased’s disappearance to the police. A search ensued when the deceased’s naked body was found in a septic sewer on 14th May 2025 in Mteremko area, where she went and identied the deceased’s body. 19. She alleged that the deceased once complained to him that IW1 was harsh and that IW1 used to beat him. She denied having a strained relationship with IW1. She reiterated that she used to communicate well with IW1 about IW1’s welfare save for instances when IW1 could abuse her while drunk. 20. IW3 Alice Moraa is the deceased’s paternal grandmother. She testied that on the night she last saw the deceased alive, IW1 and the deceased left her house after supper and went to sleep in IW1’s house. 21. She added that she would have seen the deceased on the date he disappeared had he gone back home from school. She questioned the discovery of the deceased’s dry books, dry school uniforms, and dry school bag behind IW1’s house given that it had rained heavily during the period in question. 22. IW4 Alex Ongeri Ondiba is the deceased’s paternal uncle. He recalled that IW3 informed her on 15th May 2025 that the deceased was missing. He remembered that it rained heavily on the night of 15th May 2025. IW3 later called her that day at around 1900hrs, informing her that the deceased’s body had been found in a septic tank in Mteremko area. He identied the deceased’s body in the mortuary. 23. He claimed that IW2 handed over the deceased to IW1, claiming that her husband (IW6) disliked the deceased. 24. IW5 Margaret Nakhumicha is the Mteremko area’s mukasa/village elder. She testied that on 14th May 2025 she noticed a foul stench within her rental house. She mistook the foul smell for dead mice. She added that the foul stench became worse and unbearable whenever she ushed their toilets. 25. She decided to open the septic sewer at around 1700hrs when she saw a child’s hand. She informed the local administrators and the police about the discovery, leading to the retrieval of the deceased’s body from the said septic sewer. She later came to learn that the deceased was her neighbour. 26. She added that whereas the septic sewer was right in front of her door, it had rained heavily the previous night; thus, she could not have heard any movements outside her house when the deceased’s body was dumped in the septic sewer. 27. IW6 Titus Wakhwabubi Khaemba is the deceased’s stepfather. He recalled that he began staying with the deceased from 2018 until the deceased was admitted to Moi DEB Primary School, when IW1 and IW2 agreed that the deceased would stay at IW1’s home since the school was closer to IW1’s home. 28. He conrmed that the deceased stayed with them during the April 2025 school holidays until 04th May 2025 when IW2 ensured that the deceased returned to his father’s home. 29. He added that on 13th May 2025 at around 2130hrs, he heard IW1 informing IW2 over the phone that the deceased was missing. 30. He denied having any dierences with the deceased or IW1 before the deceased’s death. He reiterated that the deceased was transferred to Moi DEB Primary School after an agreement between IW1 and IW2. He claimed that the deceased had informed him before his death that IW2 used to beat him. 31. IW7 No. 261XXX PC Munyes David a duly gazetted Scenes of Crime personnel from Bungoma County DCI produced the scene photos and the photos’ certicate of print on behalf of his colleague https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/904/eng@2026-08-26 3

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PC Monari, who had visited and processed the scene of crime on 14th May 2025 and 16th May 2025 while in the company of the investigating ocer (IW9). 32. He added that PC Monari and IW9 recovered the deceased’s school uniforms behind IW1’s house when they visited the scene of crime. 33. IW8 No. 77XXX Ssgt. Patrick Muriuki of Bungoma South sub-county DCI investigated this case. 34. His investigations revealed that the deceased was last seen on 11th May 2025 when he had supper at his maternal grandmother’s home and later went to sleep with IW1, only to be found dead in a septic sewer in Mteremko area on 14th May 2025. 35. He added that he visited the deceased’s father’s house on 16th May 2025 while in the company of PC Monari for a further search, when they recovered the deceased’s school bag containing his school books, school uniform, and a pair of trousers behind IW1’s house. 36. He was of the opinion that, given the deceased was last seen with IW1, the deceased’s death was possibly caused by IW1. 37. IW9 Nelly Imbwaga testied that she was the deceased’s Grade 3 class teacher at Moi DEB Primary School at the time of the deceased’s death. Her testimony was that the deceased did not report to school after school opened for the second term in May 2025. 38. IW10 Dr. Eliud Kiplimo Kosgey performed the deceased’s post-mortem examination at Bungoma County Referral Hospital (BCRH) on 23rd May 2025, when he formed an opinion that the deceased’s death had been caused by respiratory failure secondary to a blunt trauma to the chest. He produced the deceased’s post-mortem examination form dated 23rd May 2025 as an exhibit. He added that the deceased had already died before falling in the septic tank. Analysis And Determination 39. This court has given due regard to the evidence on record. The nature of inquest proceedings was well explained in Domascewicz vs. State Coroner [2004] VSC 528 as follows: “ An inquest is not a proceeding inter partes. It is part of an investigative process which is concerned, inter alia, to set the public mind at rest where there are unanswered questions about a reportable death.” 40. The scope of an inquest was also elucidated in Re Joyce Mumo Makenzie (Deceased) [2009] eKLR, where Lenaola J. (as he then was) rendered himself thus: “ As I understand it, an Inquest is conducted so that upon evaluating the evidence tendered, the Court can determine the cause of death and whether probable cause has been established for a person responsible for that death to be prosecuted. In the instant case, the learned magistrate found for a fact that either, PW5, Cpl David Kambi or PW6, PC Denies Psamut or PW7 Cpl Benjamin Ngila were the persons who shot and killed the deceased, Joyce Mumo Makenzie. Having so done, it was her duty to examine whether there was probably cause for them to be prosecuted for either the oence of murder or manslaughter. She concluded that the were not to be prosecuted and she gave her reasons based on the evidence; that the shooting was accidental because the police ocers were pursuing armed robbers who had committed a crime and the deceased, who was rushing her injured workers to hospital was shot by mistake. Was that decision equivalent to that of a trial Court" In my mind the answer is in the armative. The learned magistrate was obligated to state why https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/904/eng@2026-08-26 4

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either the police ocers should be charged with an oence and leave the trial to another Court or why they should not be charged and why the investigation’s le should be closed. She did the latter but the decision was so conclusive, it was akin to that of a trial Court. Having found that three persons may have been responsible for the death, the proper order to make was to order the DCIO Machakos to arrest the three police ocers, and establish who to charge for the oence of manslaughter. To acquit them at an inquest is improper. In the event, I will revise the orders made and shall substitute that nding with the above nding.” 41. In Re Estate of Phillip Otieno Odhiambo (Deceased) [2015] eKLR, Majanja J (as he then was) eloquently expressed himself thus on the role of the court upon conclusion of the inquest proceedings: “ ... Article 157(6)(a) of the Constitution which vests in the Director of Public Prosecutions the state power to “ institute and undertake criminal proceedings against any person before any Court (other than a Court martial) in respect of any oence alleged to have been committed,” does not permit the magistrate’s Court to initiate criminal proceedings in a manner prescribed by section 387(3) of the Criminal Procedure Code.” 42. This court’s reading of the authorities above is that where a court conducts inquest proceedings under section 386 of the Criminal Procedure Code, such a court metamorphoses into an adversarial court mandated to carry out further investigations on the circumstances under which the deceased died. Further, an inquest court cannot make a nding akin to an acquittal or order someone to be charged with a given criminal oence. The court’s role is limited to making ndings on the cause of the deceased’s death and whether the evidence gathered during the inquest proceedings disclosed the commission of a criminal oence by any person(s). Those inquest ndings are then forwarded to the ODPP for necessary action. 43. Having suciently appreciated the scope of this court’s powers in inquest proceedings, it is this court’s considered view that the issues for determination are: the cause of the deceased’s death and whether the evidence on record supports a proposition of criminal culpability by some known or unknown person for causing the deceased’s death. Cause of the deceased’s death 44. The deceased’s post-mortem form dated 23rd May 2025 produced by IW9 shows that the deceased’s death was caused by respiratory arrest secondary to blunt chest trauma. There is nothing on record to impeach IW9’s expert opinion on the cause of the deceased’s death. Therefore, this court nds no reason to disbelieve IW9’s expert opinion on the cause of the deceased’s death (see Parvin Singh Dhalay v Republic [1997] KLR 514). 45. The foregoing leads to the inevitable nding that the deceased’s death was caused by respiratory arrest secondary to blunt chest trauma. (b)Whether the evidence on record supports a proposition of criminal culpability by some known or unknown person 46. This court has already made a nding that the deceased died after being hit on the chest by a blunt object leading to respiratory arrest. It follows that there must be a person or persons who inicted the fatal blunt injuries to the deceased’s chest and thereafter dumped the deceased’s body in the septic sewer in Mteremko area near the deceased’s home. Holding otherwise will be akin to this court turning into the infamous Dr. Kaviti, the then Chief Government Pathologist who, when Dr. Robert Ouko https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/904/eng@2026-08-26 5

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was killed in 1990, shocked the whole world by making a nding that Dr. Ouko committed suicide by shooting himself on the head at close range, then doused his body with petrol and acid. 47. The evidence led by the witnesses herein left no doubt in this court’s mind that the deceased did not report to Moi DEB Primary School on the date IW1 reportedly escorted the deceased to Bungoma Bus Park to go to school. This begs the question whether IW1 actually escorted the deceased to school in full school uniform on the date the deceased reportedly disappeared, as alleged by IW1. 48. The record shows that the deceased’s body was naked when it was retrieved from the septic sewer on 14th May 2025. It is also noteworthy that the deceased’s school bag, school uniform, shoes, and books were recovered by DCI ocers behind IW1’s house on 16th May 2025. 49. IW1 appeared to question why the deceased’s items recovered behind his house were not wet, yet the recovery was made during a rainy season. 50. There is nothing on record to suggest that the said deceased’s items recovered by the DCI ocers had been dumped behind IW1’s house on a night it rained. Those items could as well have been dumped on the date they were recovered after the deceased’s body had been recovered from the septic sewer in an attempt to show that the deceased came back home in his school uniform and undressed behind his father’s house. 51. The recovery of the deceased’s items behind IW1’s house, coupled with the fact that the deceased’s body was recovered while naked, points to the fact that the deceased never left IW1’s house in full school uniform on the morning IW1 reportedly escorted him to school. 52. The fact that IW1 never escorted the deceased to school, as he alleged is also reinforced by IW1’s failure to mention the people who allegedly saw him escorting the deceased to school on the date the deceased reportedly disappeared, for this court to summon them to shed light on the circumstances under which the deceased allegedly disappeared from home. That omission by IW1 to give information within his knowledge on the identity of the person(s) who saw him escorting the deceased to school in full school uniform makes this court draw an adverse inference against IW1 that had he mentioned those alleged persons for them to be summoned to testify before this court, those persons would have given adverse evidence against him regarding the circumstances under which the deceased died. 53. IW1, IW3, and IW4 appeared to suggest that the deceased’s stepfather (IW6) may have been involved in causing the deceased’s death since he allegedly disliked the deceased. This suspicion, when analyzed together with the evidence on record that IW6 peacefully stayed with the deceased during the better part of his childhood before the deceased was handed over to IW1 to join Moi DEB Primary School close to his father’s home, collapses like a house of cards. 54. It is also doubtful that a stranger who is not familiar with the Mteremko area would abduct the deceased, undress him, fatally injure him, and then dump his body in a septic sewer near IW1’s house. Whoever killed the deceased and dumped his body in the septic sewer near his father’s home must have been a person well familiar with the deceased’s neighborhood. At least from the evidence herein, IW6 is not one such person. 55. The recovery of the deceased’s naked body and the recovery of the deceased’s school uniforms behind IW1’s house, when analyzed with the other evidence on record, leads to the irresistible conclusion that the deceased never left IW1’s house alive after IW3 last saw him alive going to sleep with IW1 in his house. 56. IW1 did not state if he used to sleep in his house with any other person other than the deceased. He did not also state if anyone attacked him and the deceased when they were asleep in his house on the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/904/eng@2026-08-26 6

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night he was last seen with the deceased. This shows that IW1 was the only person in contact with the deceased on the date the deceased was last seen alive. 57. Given the foregoing, the circumstances of this case call for the consideration of the last seen doctrine in identifying the person or persons criminally culpable in causing the deceased’s death. This doctrine was well explained by the Court of Appeal in Mukhwana v Republic (Criminal Appeal 211 of 2020) [2026] KECA 188 (KLR) as follows: “ 25. This Court, in the case of Kimani v Republic [2023] KECA 1390 (KLR), held that: “The doctrine of ‘last seen alive’ is based on circumstantial evidence where the law prescribes that the person last seen with the deceased before their death was responsible for his or her death and the accused is expected to provide an explanation as to what happened.” 26. And in the case of Moingo & Another v Republic [2022] KECA 6 (KLR) the Court reiterated that: “The fact that the deceased was last seen in the hands and restraint of the appellants, a prima facie case was established to require the appellants to give a reasonable explanation as to what befell him. Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the Last Seen doctrine in the prosecution of murder or culpable homicide cases is that, where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his/or her death. In the absence of any explanation, the court is justied in drawing an inference that the accused killed the deceased).”See also Ngeno v Republic (Criminal Appeal 24 of 2016)[2024] KECA 757 (KLR).” 58. Guided by the authority above, it follows that IW1, being the person with whom the deceased was last seen alive, bore the burden of explaining the circumstances in which the deceased died. IW1’s explanation that he escorted the deceased to school on the date the deceased reportedly disappeared has been disproved by the evidence on record and the analysis above. 59. It is against this backdrop that this court nds and holds that the evidence on record discloses criminal culpability on the part of IW1 in unlawfully causing the deceased’s untimely death. Determination 60. In sum, this court makes the following ndings and orders: a. The deceased died as a result of respiratory arrest secondary to blunt chest trauma b. The evidence on record discloses criminal culpability on the part of Nicholas Omariba for unlawfully causing the deceased’s death c. This inquest le be forwarded to the ODPP for further action per section 387(4) of the Criminal Procedure Code 61. This inquest le is closed 62. Orders accordingly. RULING READ, SIGNED AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 26TH DAY OF AUGUST 2026 T. O. OMONO https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/904/eng@2026-08-26 7

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SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Mulwa for ODPP C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/904/eng@2026-08-26 8

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