https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9513

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUSIA** **HCCR NO. E008 OF 2025** **REPUBLIC ………………………………………………….......PROSECUTOR** **VERSUS** **EMMANUEL MATHEW AGOYA …………………..………………ACCUSED** **JUDGEMENT** 1. Emmanuel Mathew Agoya is charged with the offence of murder contrary to **Section 203** as read with **Section 204** of the Penal Code; *“That on the 2nd May 2025, at Mudoma Sub-Location, Samia Sub-County, Busia County, murdered* ***Shantel Kadogo alias Rembo****.”* 1. He denied the charges, and the prosecution presented 12 witnesses. **Prosecution’s case** 1. PW1, Francis Wanyama Oduor, was the father of a child called Ajiambo. He testified that that Ajiambo, who was also called Karembo, was called by another child called Rina, on 25th April 2025, in his presence, and she left. She never came back. He got worried, and they started looking for Ajiambo. They went to the home of Rina, but she was not there. The matter was escalated to the authorities. On 2nd May 2024, he got a report that the man, at whose home Rina stayed, said he would bring her. Later, PW1 was told to go to Namboboto Dispensary, where he found Ajiambo sleeping. He was told the child had been brought there by the accused. The child was dead, and the body was moved to the mortuary. He and others went to the home of the accused, and found clothes there, which had blood. He stated that he did not know the connection between the accused and Rina, the person who had called Ajiambo alias Karembo. 2. PW2, Sylvia Auma, was the mother of the deceased, Shantel Kadogo. She had gone for matanga, on 25th April 2025, leaving the deceased at home. When she came back, she did not find her. She was informed that someone had called her, and had left with her. When she did not come back, by 6.00 PM, she decided to search for her. She was informed, by some children, that the deceased had been seen with a woman who was wearing white clothes. She reported the matter of the disappearance of the deceased to the police. The police later informed her that the deceased had been traced at Kilgoris, and was being taken to Tanzania. After some days, she was called to the Namboboto Dispensary, where she found the deceased. The accused informed her that he had heard the deceased screaming at night, and he went and picked her, and stayed with her, and took her to hospital. She described the accused as a neighbour. 3. PW3, Christine Agutu Juma, was a neighbour of Abara, the employer of a maid identified as Rina, alias DJ. He saw Lina at the door to the home of Abara, and then she went to the home of Mang'eni. She later said that she saw Lina leave the home of her employer, Leon Barasa. A boda boda rider came, and Rina mounted the motorcycle of the boda boda operator, carrying a child and a bag. She later heard that the child was lost. She heard from the wife of Abara, that her child, Rembo, was lost. She said that she knew the accused, but she could not tell the connection between him and the instant case. 4. PW4, Leon Barasa Ogutu, was the employer of Lina. He testified that when he went home on 25th April 2025, after closing his business premises, at 9,30 PM, he did not find Lina at home. His wife informed him that Lina had gone to Kisumu, for a funeral. The next day, he was informed that Lina had left with the child of a neighbour, who he identified as Christine Agutu. He closed the shop and went to the home, of the missing child, who he identified as Rembo. The parents said that they were not aware that Lina had left with the child. He went to the police, and established that a report had already been made there, of the missing child. On 2nd May 2025, someone telephoned him at dawn, telling him that Lina was at a clinic at Bukina. He rushed there and found Lina there. He took her to the police, where she was arrested. He was instructed to inform the parents of Rembo. He got the mother of Rembo, and asked her to inform Mang'eni, and advised them to go to the police station. At 8.00 AM, he heard screams from Namboboto Clinic, as if someone was mourning. He rushed there, but was not allowed to get in. He, instead, heard that the child, Rembo, was at that hospital, and had died. He said that he knew the accused, but he could not tell how he was connected to the matter. 5. PW5, Albert Ojiambo Ouma, was a boda boda operator. He testified that he had heard, on 25th April 2025, that a child, called Rembo, had disappeared. On 2nd May 2025, the accused, also known as Obichu, hailed him, and asked him to take him to his home, at about 8.00 AM. The accused told him that he had a sick child, who had been brought by the wife of his younger brother, and he wanted him to take the child to hospital. He saw the child, at the home of the accused, lying on amattress, with blood on her body, and a wound on the side of her mouth. The child was covered in such a way that only the head was visible. He declined to take the child out of the house, to hospital, arguing that it was a police case. The accused said he would get another boda boda operator to assist him, and PW5 took him to the stage. After that, he went on his usual errands. Later in the day, he heard that the child the accused took to hospital had died. He went to the hospital at Namboboto, and saw the body of the child, and identified her as a child of PW1. He noted injuries at the neck and face, which appeared to have had been inflicted with a knife. He rushed to the police station and reported. He escorted the police to the house of the accused, where they demolished a toilet, looking for a knife, but recovered a baby-feeding bottle. He said that he found the deceased in the house of the accused, who informed him that the child had been brought by a girl, who ran had away. 6. PW6, Michael Okello, was the second boda boda operator that the accused approached, for assistance to move the child to hospital, on 2nd May 2025, at 8.00 AM or thereabouts. At the home of the accused, he did not enter the house, but the accused did. The accused came out with a bag and the child. The child had-blood, although he did not note any injuries. When he enquired, from the accused person, whose child it was, he said she was a daughter of his brother, Collins. PW6 telephoned Collins about the matter, and he said he was away, and was unaware of what was going on, and he, Collins, asked him to go to his home to confirm. He called the wife of Collins, who said that her child was in school. He took the accused and the child to hospital, and then went for the wife of Collins, and also brought her to the hospital. She said that that child was not hers. Another person came in, who said that the child was called Rembo. PW7 then left the scene. He later heard that the child had died, and he went and confirmed the same. 7. PW7, Daniel Ochieng Odhiambo, was a government analyst, working with the Government Chemist. He received an exhibit from the police, for analysis, being a white substance in a blue bottle; stomach contents; pieces of the intestines, liver and kidney; and urine. He did the analysis. There was a pesticide, detected in the whitish liquid. No poisonous chemical substances were detected from the other samples. He stated that the pesticide would be fatal, if ingested. He said that the other samples were preserved in formalin, which was wrong, as formalin was itself a chemical, which could react with the samples, andcontaminate them. He asserted that the samples should have been presented while fresh. 8. PW8, Dr. Dixon Mchana, was the pathologist who conducted postmortem on the body of the deceased. He noted superficial wounds on the right chin, and the outer side of the right knee. There were also other superficial injuries on the right index finger and palm. There was evidence of recent medical intervention. Internally, the lungs were inflated, with excess froth in the airways. There were dark spots on the surface of the heart. The stomach and intestines were filled with blood, and had a chemical smell. The liver and all the abdominal organs appeared dark. The blood vessels in the brain were filled with blood, and there was pressure in the brain, which meant that the brain was swelling beyond its boundaries. He concluded that the cause of death was asphyxia, secondary to chemical poisoning. He took samples, for toxicology, being urine, kidney, intestines, stomach, liver and gallbladder, for deoxyribonucleic acid, DNA, analysis. He handed the samples over to the investigating officer. 9. During cross-examination, he explained that he was not able to tell the drugs administered during the medical intervention, but as the cause of death was chemical poisoning, a toxicology was necessary to confirm his findings and conclusions. He further explained that one limitation of toxicology was embalming, for formalin, used for that process, interfered, by way of causing contamination. He said he used the sense of smell, to determine what might have caused the death. He concluded that the smell he detected was of a chemical, and he wanted toxicology to identify the chemical. 10. PW9, David Kiara Muthoni, was another analyst, from the Government Chemist. He received 3 samples from the investigating officer, for analysis, being 2 bedsheets and a cartilage from the deceased. The bedsheets had a red coloration, which he identified as blood of human origin. The DNA, generated from the bloodstains on the bedsheets, were identical, and matched the DNA from the cartilage taken from the deceased. He concluded that both the cartilage and the bloodstains from the bedsheets all came from the deceased. 11. Collins Owuor Oremo, was a clinician at the ACK Namboboto Health Centre. He stated that he attended to an unknown African child, on 2nd May 2025. She was brought in, at 9.00 AM, sickly-looking, pale and dehydrated. Her pulses were weak and feeble. She had cut wounds 12. PW11, No. 75208 Police Corporal Peris Kinei, received a report of a missing person, on 26th April 2025, from PW2, the mother of the deceased. She detailed the steps taken, with respect to tracing the whereabouts of the missing child. The principal suspect, Lina, eventually showed up, and was arrested. Information was received, on 2nd May 2025, that there was a child at the Namboboto health Centre, and by the time PW11 got there, the child had already been declared dead. She collected exhibits, and arrested various suspects. The accused was arrested at the Namboboto Health Centre. 13. PW12, No. 97110 Police Corporal Moses Maina Muraguri, was a scene of crime officer. He processed photographs, that had been taken by Police Constable Kevin Munyoki. PW13, Police Constable Kevin Munyoki, investigated the matter, essentially taking over from PW11. He detailed all the steps that he took in the process. He was the last witness for the prosecution. 14. The Accused was placed to his defence and elected to tender sworn evidence, explaining how the deceased Shantell ws left in his custody and whilst acting as a good Samaritan was arrested and charged for her murder, he denied committing the offense. **Determination** 1. I have carefully considered all the evidence availed before court the filed submissions and the only issue in question in this case is whether the prosecution have proved whether the accused persons caused the death of the deceased persons and was there actual malice? 2. The offence and punishment for murder is provided for under **Section 203** and **204**of the **Penal Code**. The said provisions provide that; ***“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.*** ***204. Any person who is convicted of murder shall be sentenced to death.”*** 1. To establish the offence of murder, the prosecution is required to prove beyond reasonable doubt, proof of death, proof that the death was caused by the accused, by an unlawful act or omission and that, the unlawful act or omission was through malice aforethought. **Proof of Death** 1. The post mortem report by Dr. Dickson Mchana was as **P-Exh 1** revealed that the cause of death was Asphyxia, secondary to chemical poisoning. **Whether the death was caused by an unlawful act or omission by the accused** 1. In this instance the Identification of the accused as the one who caused injuries on the deceased or administered chemicals upon her is absent rather he is identified as the one who presented the deceased for medical attention and that is all. 2. Therefore, the evidence adduced falls short of implicating the accused on this ingredient 1. The offence of murder is complete when, “malice aforethought” is established if, pursuant to section 206 of the Penal Code evidence proves any one or more 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.”*** 1. The prosecution is firmly anchored on circumstantial evidence, and affirm the authority by the defense in the case of JOHN MUTUA MUNYOKI VERSUS REPUBLIC [20171 eKLR; it was held that ; *"The prosecution has the task of proving its case against an Accused person beyond reasonable doubt and it is a burden the prosecution must discharge in relation to each and every ingredient of the particular offence charged" In our case the charge of Murder /section 203 as read with section 204 of the penal code. In the same Judgement, the Court observed further ; "The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of the innocence of the suspect is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused."* 1. Hence even where the prosecution relies on circumstantial evidence same must meet the threshold. 2. In **Ahamad Abolfathi Mohammed and Another v Republic [2018]** e KLR, the Court of Appeal stated as follows on reliance on circumstantial evidence: *“However, 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 a strong basis for proving the guilt of an accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in* ***R v Taylor, Weaver and Donovan [1928] Cr. App. R 21****: -* *“It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”* 1. In the same case, the Court of Appeal set out the test to be applied in considering whether circumstantial evidence placed before a court can support a conviction. The court stated: *“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 Subject person, and to no other person, as the perpetrator of the offence. In* ***Abanga alias Onyango v R 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 the guilt of the Subject; 9iii) the circumstances taken cumulatively, should from 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.”* 1. The benefits accruing from doubts are to the advantage of the accused and the material inconsistency, contradictions in evidence and want of identification evidence created reasonable doubt as to who killed the deceased. 2. In this instance the circumstantial evidence is incoherent broken and cannot be the basis of a conviction, the benefit is naturally to the accused person. **Disposition** 1. In conclusion, it is the finding of this court that, the prosecution has failed to prove the charge of murder against the accused beyond reasonable doubt. The Accused is found not guilty of the offence of Murder and is consequently acquitted under section 215 of the criminal procedure code. 2. The accused shall forthwith be set free, unless otherwise lawfully held. It is so ordered. **Judgement read, signed and delivered at Busia** **this 2nd day of July, 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **Mohochi. S. M.** **Judge**