Republic v Kimathi [2026] KEHC 13516 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION CRIMINAL CASE NO. 50 OF 2012 REPUBLIC……………………..………….……………….………PROSECUTOR

VERSUS DUNCAN LIVINGSTONE KIMATHI..……………………………….ACCUSED

JUDGEMENT 1. Sarah Akello Aruwa (hereafter the deceased) was a final year student studying international relations at the United States University (USIU). On the weekend of 30th June 2012, she confided to her friend, Ivy Gathu (PW2), that she was going out to meet a “boy she had met at the university library”. She was instead abducted. What followed were menacing demands and calls for ransom to the deceased’s family. It was the beginning of a tragic nightmare that ended with the discovery of her remains in a faraway village in Ngewa, Githunguri.

2. The Director of Public Prosecutions (hereafter the DPP) brought Information to the High Court charging Duncan Livingstone Kimathi and Winnie Wairimu Kariuki with murder contrary to section 203 as read with section 204 of the Penal Code.

3. The particulars were that between the 30th June 2012 and 1st July JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 1 2012, at Kiamako area in Githunguri within Kiambu County, jointly with others not before the court, murdered the deceased.

4. However, Winnie Wairimu Kariuki jumped bail. On 27th November 2018, her bond was cancelled and a warrant of arrest issued. Efforts to arrest her were unsuccessful. On 21st June 2022, the learned prosecution counsel filed a formal motion to proceed with the hearing of the case against the 1st accused. On 19th October 2022, the court allowed the application by the DPP to separate the trials for the two defendants and to proceed with evidence against Duncan Livingstone Kimathi in the absence of the 2nd accused. Accordingly, this judgement relates only to Duncan Livingstone Kimathi.

5. The prosecution marshalled seventeen witnesses. Twelve of them appeared before my predecessor, R. Lagat-Korir J. On 28th October 2022, and, pursuant to section 200 (3) of the Criminal Procedure Code, the accused elected to proceed from where the matter had reached.

6. Hellen Atieno Aruwa (PW1) is the mother of the deceased. On 30th June 2012, a male caller rang from the deceased’s line and demanded a ransom of Kshs 100,000. A more menacing and JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 2 derogatory demand was made to her on 1st July 2012. Her son in law, Jim Onyango (PW9), was present at the time and tried to negotiate the amount downwards to Kshs 70,000. By then, the matter had been reported to Kasarani Police Station.

7. PW3 was the deceased’s boyfriend, Duncan Okore. On Saturday, 30th June 2012, a few minutes to 1:00p.m., he spoke with the deceased. They agreed to meet the following day and go to church. On Sunday, 1st July 2012, he dialed her number at 8.00a.m. but was answered by a male voice telling him to send Kshs 100,000 to the deceased's cellphone as ransom.

8. Later that afternoon at about 3.00p.m., he together with PW6 and police officers broke into the deceased’s house. On a coffee table they found a “pocket size note book” (exhibit 1). It was written on a page "Gone to meet Daniel Mureithi a U.S.I.U. student phone No. 0727872133/0717370647. He stays in Savanna”. PW3 received another message from the abductor stating the money should be "sent within 30 minutes or she dies". He immediately shared the SMS with the police. JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 3 9. PW4 was Martha Nyambura, the Deputy Principal at Kiambu Institute of Science and Technology (KIST). She confirmed that the co- accused, Winnie Wairimu Kariuki, was a student at KIST taking a diploma in Food and Beverages. As I mentioned earlier, Winnie Wairimu jumped bail.

10. Sylvia Anyango Aruwa (PW6) is a sister of the deceased. When she got the news from their mother, she made a report at Embakasi Police Station under OB No. 60/30/6/12 timestamped 14.54 hrs. She was referred to Kasarani Police Station. She got in touch with PW3 and asked him to go to the deceased’s house to check if she was there. The latter reported that the door was locked. She, her husband Jim Onyango (PW9), a friend Faith Ogola, PW3 and some police officers later broke into the house. They recovered the note book whose contents I highlighted earlier. PW6 said the note was in her sister's handwriting.

11. PW7 was SSP John Muinde, the head of the Document Forensic Unit at the DCI Headquarters. On 6th September 2012, he received the following exhibits: C1 – the notebook with disputed handwriting; and, A1 - A7 which were known handwritings of the deceased. They were accompanied by an Exhibit Memo under the hand of Cpl. Edwin JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 4 Koech of CID Kasarani (exhibit 3). PW7 concluded that the handwritings in C1 and A1 - A7 were made by the same author. His report is dated 7th September 2012 (exhibit 4).

12. Under cross-examination by Mr. Bowry, he stated further- Yes figure 7 appears in both documents. No. they are the same. Yes the cross is there but that is called natural variation. [Attention drawn to figure 4] Yes they are the same. The differences in form is due to variation but the differences are due to variation. [Court sees Letter No. 4 & No.7]. Yes there is capital letter G. I disagree that they are different. [Attention drawn to No.4] No. A human being does not duplicate. There is room for variation.

13. PC John Amalemba (PW8) was attached to Githunguri Police Station. On 1st July 2012, he received information that some herdsmen had spotted a body somewhere between Ngewa and Ruiru at Ndithiati Village. He and an AP Officer Samuel Njuguna from Ngewa AP Camp visited the scene. They found a crowd of “about 100 villagers standing on the roadside” waiting for the police. The body was inside a thicket about 2 to 3 metres off the road.

14. He added that as they waited for scene of crime personnel- At 11.30 a.m., a saloon car came with some men inside and one stepped out and passed [sic] the rope which we had JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 5 tied. Members of the public asked them who they were [sic] and answered that he was a police officer. He was informed that we were there; that he approaches us. We were 7 metres away. He did not come to us. He entered the car and sped off.

15. According to this witness, the man who emerged from the car “was a big man who was of slightly dark complexion. He was a young man with lots of hair”. On 10th July 2012 he claimed to have identified him at Kasarani Police Station at an identification parade conducted by SSP Valentian Wambutsi (PW17).

16. When PW8 was recalled for further cross-examination on 9th July 2025, he said- I had been called to a scene where a body was found. There was a crowd of 100 people. At the scene a white car Toyota Corolla came. We were near the body. It had 3 occupants. One of them alighted and went to where the body was. We thought it was DCI officers from Scene of Crimes. He claimed in fact to be a police officer and he came towards us but he then got back to the car and took off. I am not the one who spoke to him. I wrote a statement on 10/7/2012. I had been called by OCS Kasarani for an ID Parade. I found the person I had seen at the scene. When I had seen him first at the scene, I thought he was a scene of crimes officer, but when he took off I doubted him. He had black hair. JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 6 17. Like I mentioned, PW9 was Jim Onyango, a brother in law of the deceased. while at the police station, a man called PW1’s phone from the deceased’s number 0721864133. He testified as follows- I took the phone off her [PW1’s] hands and picked the phone. On the other end a man's voice came through. The man demanded that we pay up some money, that they had Sarah. We asked how much they wanted. He said Kshs. 100,000. I told him we did not have and we could not send through Mpesa. He was patient and engaged me in haggling and

bargaining and brought down the demand to Kshs. 70,000. The phone was then disconnected. After a few minutes an SMS came to the same number, my mother in law's-number. It was a derogatory text — ‘Lipeni haraka ama atakufa kama mbwa’ 18. On 2nd July 2012 and while going through records at USIU with the police, PW9 decided to send Kshs 200 each to the two numbers. The number 0727872133 did not indicate the name of the recipient. The other number 0717370647 indicated that the amount had been sent to Duncan Livingstone Mureithi. I think there is a mix-up in the names but he said he promptly alerted the police.

19. The scene of crime at Ngewa was processed by Cpl. Frank Anunda (PW10) on 1st July 2012. He was accompanied by the OCS JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 7 Githunguri. He produced a bundle of 12 photographs together with a certificate dated 25th July 2012 (exhibits 6 & 7).

20. There is then the evidence of Paul Muiru (PW12). He runs a car hire company, Boot Hire Company. He said that on 30th June 2012 at 10.30 a.m., he hired out his motor vehicle KBH 642R Toyota NZE Saloon to the accused. He produced the receipt produced the receipt (exhibit 9) and copies of the drivers licence and identity card of the accused (Exhibit No. 10 (a) & (b)). The customer’s cell phone was indicated as 0717370647. He said that a tracking device showed the car in Ngewa in Ruiru heading towards Githunguri.

21. I should mention that the tracking report was not produced. However, under cross examination by Mr. Bowry, he stated that the tracking device was fitted by a company in South C Nairobi and that “using the mobile phone, you dial a number and a map comes up and you can see where the car is. I fitted the tracking when I bought the car. I can find the receipt”. When the accused returned the car at 8:00p.m., he asked him why he had gone to Ngewa. The accused answered that he was teaching his girlfriend to drive. The accused returned the car accompanied by a woman. JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 8 22. PW16 was Jonathan Limo, working at the Safaricom Law Enforcement Liaison Office. He produced the subscriber and call data records for six mobile lines (exhibits 16 to 28)-  0721864133 was registered to Aruwa Akello (Deceased)  0723361799 was registered to Paul Muiru (PW12)  0723871752 was for Alice Mwangi  0717370647 was registered to Duncan Kimathi (accused)  0727872133 was unregistered  0712877504 registered to Duncan Kimathi (accused) 23. He testified that the number 0717370647 communicated with 0723361799 on 30/6/2012 from 08.50 until 20.27 hours. 0721864133 was not in communication with 0717370647. The unregistered line 0727872133 was in communication with 0721864133 on 29/6/2012 at 16.15, 16.16 and on 30.6.2012 also up to 13.33hrs. At 11.52 on 30/6/2012 the unregistered line above communicated with 0724207496. On 1/7/2012 at 15.00hrs two SMSs were sent out from 0721864133 to 0720788600. The witness said he got the subscriber details of the 6 lines from the system which generated an ID Number and a name (exhibits 16 to 21).

24. When cross examined by Mr. Kang’ahi, he said that for the period in question the unregistered number 0727872133 was not active on JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 9 Mpesa but had an active account voucher. He could not tell when the line was first activated for calls. In re-examination, he said that 0717370647 on the other hand was active for both Mpesa and call data.

25. According to the head of security at USIU, Boniface Kibiego Koech (PW15), he knew the accused as a student at the campus. He also confirmed that the deceased was a student at the university and that he (Kibiego) and the accused attended a common course at the university on Criminal Justice. When the police and relatives of the deceased visited the campus, he could not get Daniel Mureithi’s details on database. But when they sent Mpesa to the number of the said Daniel captured in the notebook, it revealed Duncan Kimathi as the subscriber.

26. The system at USIU showed that Duncan Kimathi was still a student. His full name was Duncan Kimathi Livingstone. The Data Sheet showed Duncan was supposed to be in classroom on that day. He was not there. PW15 called the accused’s mother whose details were on the form. She told him that the accused told her there were no classes. That same day, the accused and his mother came to the campus and were later escorted to Kasarani Police Station. JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 10 27. PW11 was Cpl Justus Weduve of Kasarani Police Station. He processed the postmortem form and accompanied PW5 and other relatives for the autopsy. The form was filled in by the pathologist (PW13). He obtained some samples from the deceased’s body for onward transmission to the Government Chemist. On 10th July 2012, he escorted the 1st accused (Duncan Kimathi) to the Government Chemist where buccal swabs were extracted for analysis.

28. Samuel Ruwa (PW5) is an uncle of the deceased. On 9th July 2012, he identified the remains at the City mortuary: The face was swollen; and it had some injuries around the neck.

29. The postmortem was carried out by Dr. Johansen Oduor (PW13). There was laceration at back of the head; bruises on neck; and, the tongue was protruding from the mouth. She had suffered cyanosis – poor oxygenation before death. According to the post mortem report (exhibit 11), the cause of death was “neck compression by manual strangulation”.

30. Henry Kiptoo Sang (PW14) is a government analyst. He concluded that the DNA profiles from the underpants, bra and yellow blouse and fingernails all matched those of the deceased. However, JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 11 attempts to generate DNA from the oral and vaginal swabs were unsuccessful.

31. The last witness was SSP (retired) Valerian Wambutsi (PW17). He testified largely on behalf of the investigating officer, Cpl Koech, who died in the course of the trial. PW17 gave a general summary of the investigations leading to the arrest of the two suspects. At the material time, he was the DCIO at Kasarani and part of the team that visited the deceased’s house, broke in and recovered the notebook (exhibit 1). The witness also produced the sample handwritings of the deceased (exhibit 5).

32. On 10th July 2012 at 9.30a.m., PW17 carried out an identification parade at Kasarani. He got 8 parade members from suspects held in the cells and arranged them in a line away from the cells. He said he informed the accused of the purpose and he agreed to it. He also said he did not have a friend or lawyer. The accused chose the position between members 3 and 4. The witness was PC Amalemba (PW8) and who identified the accused by touching him on the shoulder. The suspect said he had no comment but refused to sign the form (exhibit 30). JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 12 33. He said that further investigations showed the suspect had a girlfriend living in Savannah. The police visited the house and found a bra, pantie and bloodied top. Relatives of the deceased identified the clothes as belonging to deceased. Cpl Koech who was the investigating officer and who recovered them died in a road accident in 2024 as per the signal dated 17th May 2024. The prosecution applied to produce the exhibits under section 33 of Evidence Act. The defence had no objection and the clothes were produced as exhibits 31-33.

34. This witness also produced a number of exhibits including the Exhibit Memo dated 10/7/2012 (exhibit 8) the notebook (exhibit 1), sample or known handwritings of the deceased (exhibit 5) a letter dated 2/7/2012 to Safaricom call data office (exhibit 29), the triangulation of numbers list (exhibit 36), handwritten statement made by CPL Koech (now deceased) dated 15/9/2012 (exhibit 38) as well as the police signal confirming his death (exhibit 34).

35. When the accused was placed on his defence, he protested his innocence. He denied being a student at USIU at the material time or meeting with the deceased. He refuted visiting the scene at JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 13 Ngewa where the body was recovered or hiring the motor vehicle from PW12 on 30/6/2012. He added that the phone numbers in the notebook were manipulated by the prosecution in order to fix him.

36. The material part of his sworn evidence went as follows- I stopped attending USIU in December 2011. One required to sign in at the security desk with name, ID and time. CCTV footage at the entrance etc would capture. There were CCTVs at every corner. When I was arrested, I drew attention of this to the DCIO. The notebook (exhibit 1) produced by the prosecution. It has page 1 to 43. 43 is the cover. Page 23 that has prejudicial information is stitched. The page has no date. It says going to meet “Daniel Mureithi”. I have never been known as such. As at 30/6/2012 I was using 0712897504 and 0717370647. They were for Dancun Kimathi. The number in the notebook is not mine. The last digit “4” on 0717370647 is unclear. It seems to be “9” or “1”. To the best of my knowledge they were not investigated. The handwriting report just says it corresponds to that of the deceased. It relates only to page 23 of the book. Not all the pages are written on. I have asked Emannuel Kenga to prepare an independent report dated 16/3/2026 (DMFI 6). It relates to one page. Page 14 and 15 of the notebook in colour Red and Blue seem to be by a different hand. (witness reads the messages). It is like the writers were in class exchanging information. Opposite page 8, the handwritings are different. The colours are different. (Witness reads the contents). It seems to be by two writers in a class setting.

Page 13 has names of people and telephone numbers. It is dated. The notebook has no name of the deceased. It states that “Daniel Mureithi” lives in Savannah. JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 14 PW3 indicated he and deceased were to meet and then go to church. The call records produced by PW12 I communicated with him 13 times. It was PW12 calling me. It is not accurate because sometimes I was the one calling him. I called PW12 on 29/6/2012 to hire the car to go to carnivore for a concert as a tribute to Michael Jackson. I have a poster advertising the event (exhibit 7 & 8). The car was not delivered. I never attended the event because I feared to go by public means. On 30/6/2012 I told PW12 to cancel. I knew him on 8/6/12 when hiring a car. That time I needed to go to Ole Poros. I used it for 24 hours. I wish to produce it (exhibit 2). I have seen the receipt alleged for 30/6/2012. I never did so. On 9/7/2012 I participated in an ID parade. I was arrested on 2/7/2012. PW8 had seen me at the station and interrogated me. I was not satisfied and did not sign the forms for that reason. I was not “hairly” when I took plea on 10/7/2012. I have never been to Ngewa. No witnesses have corroborated PW8. I never spoke to PW9 or received any money from him (Jim Onyango).

37. The accused called one witness, Emmanuel Karisa Kenga (DW2), a document examiner and now a retired police officer. He stated- I got a letter on 12.3.2026 from the defendant’s advocates requesting me to do some analysis on some documents marked A1 and B1. They were clear and legible copies. I was to examine the handwriting on both and determine their authenticity. A1 was the exhibit in court (Prosecution exhibit 5) and B1 is the notebook produced earlier as (Prosecution exhibit 1). From the copies I formed the opinion that the two were from a common handwriting and as more detailed in JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 15 my report. I also examined telephone numbers 0727870133 and 0717306… (The last figure for the last one is not clear). It could be 4 or 1. I prepared my report and comparison chart dated 16/3/2026. I wish to produce it as an exhibit. Report and annexed chart produced as D exhibit 6. I also made a supplementary report after getting the originals from the Deputy Registrar. It is dated 29/5/2026 confirming that the originals agree with the copies I worked with. Accordingly, my conclusion remains the same. I wish to produce the supplementary report. Supplementary report dated 29/5/2026 produced as exhibit 10.

38. The DPP lodged final submissions dated 17th July 2026. According to the learned counsel for the Republic, Ms. M. Kigira, there is a combination of direct, circumstantial and documentary evidence linking the accused to the homicide. She submitted that at all material times the accused was a student at USIU and it was a lie to say he left the institution in December 2011. She attacked the supplementary report by DW2 and insisted that the more reliable evidence on the notebook or handwriting was the report by PW7. She added that the accused was positively identified and linked to the offence through digital evidence. JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 16 39. Learned Principal Prosecution Counsel also submitted that the accused admitted he was convicted in Makadara CMCR 3413 of 2012 for abduction of a girl and demanding a ransom. She argued that it fell within the exception to section 57 of the Evidence Act.

40. The accused filed detailed submissions together with a bundle containing 18 decisions by superior courts. According to learned counsel for the accused, Mr. Ong’ato, the prosecution’s case is extremely weak and built entirely on circumstantial evidence. Relying on a number of authorities including Joan Chebichii Sawe v Republic (Criminal Appeal 2 of 2002) [2003] KECA 182 (KLR), he submitted that there can be no conviction unless the evidence points exclusively to the guilt of the accused.

41. Learned counsel implored the court to take into account the sworn evidence of the accused and his witness DW2 which debunks the theory by the DPP. In particular, the accused had raised an alibi. Reliance was made on Elizabeth Waithiegeni Gatimu v Republic, Nyeri High Court Criminal Case 50 of 2012 and Miller v Ministry of Pensions [1947] 2 All ER 372 among others. JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 17 42. Learned counsel submitted that the accused left USIU in December 2011 and accordingly, the inferences by PW2 and PW15 that he met the deceased there in June 2012 is unbelievable. In Part F paragraphs 11 to 26 of the submissions, the accused challenges at length the process of the recovery of the notebook, its integrity or the conclusions made by PW7 on the handwritings and more particularly the cellphone numbers. For instance, PW16 confirmed that the line 0727872133 was unregistered. And whereas the prosecution insisted that the number 0717370647 listed in the book belongs to the accused, DW2 had concluded the digit between the numerals 6 & 7 is not clear and could be 1, 4 or 9.

43. The defence argued further that the deceased was going out to meet a certain Daniel Muriithi who is not connected with the accused. The accused also denied hiring out motor vehicle KBH 642R on 30th June 2012 from PW12 or using it to kidnap the deceased. Relying on Maitanyi v Republic [1986] KLR 198 among other cases, he cast doubt on whether a fleeting siting at the scene by PW8 or the alleged voice identification by PW9 amounted to positive identification. The accused also disputed the prosecution’s JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 18 version relating to his arrest or his alleged relationship with Winnie Wairimu Kariuki.

44. Relying on section 33 of the Evidence Act and several decisions including Jasunga s/o Akumu v R [1954] 21 EACA 333, learned defence counsel submitted that the deceased’s last words to her mother do not amount to a dying declaration. He also argued that the evidence of the accused’s conviction in Makadara CMCR 3413 of 2012 is inadmissible by dint of section 34 (1)(d) of the Evidence Act as well as section 277 of the Criminal Procedure Code.

45. In a synopsis, the defence contends that the charge has not been made out; that the circumstantial evidence is disjointed, contradictory and unreliable; that the accused was not positively identified; that the forensic evidence by the document examiner (PW7) and the Safaricom Law Enforcement Liaison Officer (PW16) make a poor connection between the accused and the death of the deceased. Furthermore, there was no DNA match between the buccal swab from the accused and the samples extracted from body of the deceased.

46. My findings are as follows. The burden of proof that the accused murdered the deceased lay squarely with the Republic. JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 19 Woolmington v DPP [1935] AC 462, Bhatt v Republic [1957] E.A. 332, Miller v Ministry of Pensions [1947] 2 All ER 372.

47. Section 203 of the Penal Code provides that any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

48. There are four key ingredients that must be present: first, the prosecution must prove beyond reasonable doubt the death of the deceased; and, secondly, the cause of that death; thirdly, that the accused committed the unlawful act that led to the death; and, fourthly, that the accused was of malice aforethought.

49. The death of the deceased and its cause has been proved. PC John Amalemba (PW8) saw the remains at the scene at Ngewa. Relatives of the deceased including PW6 and PW9 viewed the body at the City Mortuary. On 9th July 2012, Samuel Ruwa (PW5), an uncle of the deceased, identified it for post mortem purposes.

50. From the autopsy report by Dr. Johansen Oduor (PW13), there was laceration at back of the head; bruises on the neck; and, the tongue was protruding from the mouth. The cause of death was “neck compression by manual strangulation”. JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 20 51. I thus readily find that the death was unlawful. The next question then is whether the Republic proved beyond reasonable doubt that the accused, of malice aforethought, killed the deceased.

52. There is no eye-witness account of the abduction or strangling of the deceased. The prosecution’s case is built largely upon circumstantial evidence. In order to convict on such evidence, the entire chain must be complete and point to the guilt of the accused “incapable of explanation upon any other reasonable hypothesis than that of his guilt”. R v Kipkering arap Koske & another 16 EACA 135 (1949). See also Sawe v Republic [2003] KLR 364, Mutua v Republic, High Court, Machakos, Criminal Appeal 198 of 2013 [2015] eKLR, Republic v Richard Itweka Wahiti, High Court, Kiambu, Criminal Case 9 of 2016 [2020] eKLR.

53. I also remain alive that the legal burden of proof lay throughout with the prosecution. Woolmington v DPP [1935] AC 462, Bhatt v Republic [1957] E.A. 332.

54. But in this case there are strong pieces of incriminating evidence which tied together point wholly to the guilt of the accused: To start with, the accused had access to the USIU campus and an opportunity to lure the deceased into his trap. Furthermore, the JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 21 deceased was living off-campus in a one bedroomed unit only five minutes away from USIU.

55. Although the accused claimed in his sworn defence that he left USIU in December 2011, it was some clever doublespeak. He may have been skipping classes but he was still registered as a student at USIU. His lies are exposed by the testimony of the head of security at USIU, Boniface Kibiego Koech (PW15). He knew the accused as a student but more importantly, they both attended a common course at the university on Criminal Justice.

56. It is then not surprising that the accused had lied to his mother that there were no classes on the material day. His mother told PW15 as much. Like I stated, the records at the campus showed the accused was still a student. The Data Sheet (exhibit 15) showed he was supposed to be in a class under instructor G. Njeru for course HRM 3010 for the Summer Semester 2012 but he was a no-show.

57. I thus readily find that the accused and the deceased were students at the USIU at all material times. Firstly, it means that the accused had the opportunity to meet and abduct the deceased; secondly, it ties in with the general evidence of Ivy Gathu (PW2), that the deceased had confided to her that she was going out to JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 22 meet a student she ran into at the library; thirdly, it corresponds with the deceased’s entry in her notebook that she was going out to meet one Daniel Muriithi and the contacts provided. And, fourthly, it is not lost on me that the deceased lived off-campus, a 5-minute distance from USIU.

58. True, the accused is not known as Daniel Muriithi. But the accused had criminal intent from the start. It would then be foolhardy to expect him to provide his true bona fides to the deceased. But technology has a way to catch up with people. I deduce that he exchanged his telephone contacts with the deceased which she wrote down in the notebook.

59. The deceased’s hostel unit was locked and the notebook was found when the door was broken in the presence of the police officers, the caretaker known as Rasta and several witnesses including PW3, PW6 and PW9. I thus disagree with the accused that the notebook was planted or that its chain of custody was broken. I will come back to its contents shortly.

60. I stated that technology has a way of catching up with people. The accused in his sworn evidence was emphatic that on 30/6/2012 he was only using cell phone numbers 0712897504 and JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 23 0717370647. On 2nd July 2012, PW9 sent Kshs 200 each to two numbers: 0727872133 did not indicate the name of the recipient but the other number 0717370647 indicated that the amount had been sent to Duncan Livingstone Mureithi. As I mentioned earlier, PW9 mixed up names here. The point is that this last number was also given to PW12 by the accused when he leased the car. And as I will discuss shortly, he had also given out a different number 0712897504 on a previous occasion when he hired out a vehicle from PW12. The accused admitted this fact in his defence.

61. The evidence of PW16 (the Safaricom Law Enforcement Liaison Officer) is central to this issue. He produced the subscriber and call data records for six mobile lines (exhibits 16 to 28). 0717370647 (which was listed in the deceased’s notebook) was registered to Duncan Kimathi (the accused). The accused freely admitted it was his line. That line communicated with PW12’s number 0723361799 on 30.6.2012 from 0850 until 2027 hours. This reinforces PW12’s evidence that the accused approached him to hire the motor vehicle KBH 642R on that date and returned it well after 8.00p.m.

62. There is then then the unregistered line 0727872133 that the deceased noted in her notebook. Whereas it was not active on JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 24 Mpesa, it had an active account voucher. This unregistered line was in communication with the deceased’s number 0721864133 on 29.6.2012 at 1615 and 1616 hours and again on 30.6.2012 at 1141, 1305 and 1333 hrs.

63. Under cross examination, the accused admitted that “from exhibit 20 0727872133 and 0717370647 communicated”. He also agreed that the number 0727872133 communicated with the deceased’s line 0721864133. In light of the timelines of the deceased’s disappearance and abduction on 30th June 2012, I conclude further that the unregistered line was being used either by the accused or by his accomplices. It is not lost on me that the Information charges him together with others not before the court.

64. I have then juxtaposed the two forensic reports by SSP Muinde (PW7) and Emmanuel Kenga (DW2). According to PW7, Exhibit C1 (the notebook) and A1 - A7 (known handwriting of the deceased) were made by the same author based on similarities between the two sets. Mr. Kenga (DW2) agreed by stating “A1 was the exhibit in court (p exhibit 5) and B1 is the notebook produced earlier as (P exhibit 1). From the copies I formed the opinion that the two were from a common handwriting and as more detailed in my report”. JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 25 65. But Mr. Kenga’s supplementary report dated 29th May 2026 delves into the cellphone number 0717370647 which was listed in the deceased’s notebook (and which was confirmed to be registered in the name of the accused). In his view, the digit 4 appearing between numerals 6 and 7 could be either be 1 or 4.

66. The supplementary report seems solely geared to support the assertion by the accused in his defence that “the last digit “4” on 0717370647 is unclear. It seems to be “9” or “1”. But the trouble is that Mr. Kenga was using photocopies of the notebook. In his evidence in chief, he said: They were clear and legible copies.

67. He conceded that he only requested for the originals from the registry by a letter dated 27th May 2026. There is no reply to his letter. The exhibits were in the custody of the court and could not be released without a suitable order. SSP Muinde on the other hand worked from the originals at the police laboratory. DW2 said further as follows: “It [ supplementary report] is dated 29/5/2026 confirming that the originals agree with the copies I worked with. Accordingly, my conclusion remains the same” 68. From the detailed report of PW7; the concurrence by Mr. Kenga about the common handwriting in the notebook and samples; and, JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 26 from my examination of the original notebook before the court, I am satisfied that the defence is trying to split hairs. The number in the notebook is clearly 0717370647 as detailed by PW7, PW6 and PW3. Learned Principal Prosecution Counsel, Ms. Kigira, tried to impute, and quite unfairly in my view, that Mr. Kenga was using inferior scientific equipment but that is neither here nor there.

69. I will now return to the twin issue of identification. I will first deal with whether PW9 identified the accused when he heard his voice at Kasarani Police Station. In Limbambula v Republic [2003] KLR 683, the Court of Appeal stated that evidence of voice identification is receivable so long as the person giving the evidence is familiar with it, recognizes it and there is no mistake in testifying to that which was said and who said it.

70. PW9 claimed in cross-examination that from the two telephone conversations over the phone with the male caller demanding a ransom; and, when he heard the accused speaking at Kasarani Police Station on 2/7/2012, he formed the opinion that the accused was the caller. The phone conversations were when the male caller called PW1’s number and which PW9 took over; and, another call received from the number 0727872133. JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 27 71. In re-examination, the witness said his training covered voice identification and that his work experience as voice editor at KTN aided him in identifying the voice. While that may be so, the two phone conversations were very brief. PW9 did not know the accused. I am thus not satisfied that PW9 was familiar with the voice, recognized it and there is no likelihood of mistake in testifying to that which was said and who said it. Limbambula v Republic [supra].

72. I will now revisit the identification by PW8 and other surrounding evidence vis-à-vis the alibi set up by the accused. The alibi is three- pronged: Firstly that he was not at USIU on 30th June 2012. Secondly, that he never hired a car from PW12 on that date; and, thirdly, that he was not anywhere near Ngewa.

73. According to the accused, on 29/6/2012 he called PW12 to hire a vehicle to attend a concert at Carnivore in tribute to Michael Jackson as per the copy of a poster advertising the event (exhibit 7 & 8). But because the car was not delivered, he missed the event as he “feared to go by public means”. On 30/6/2012 he claims that he told PW12 to cancel the order. JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 28 74. An alibi never shifts the burden of proof to the accused; it is sufficient if it introduces a reasonable possibility of truth. Kiarie v Republic [1984] KLR; Wang'ombe v Republic [1980] KLR 149, Vol 1 [1976-1980] 1683.

75. However, the weight to be attached to the alibi is affected by two important elements: (a) how early it was raised and whether the prosecution had a fair opportunity to test it; and, (b) whether it is corroborated by independent testimony. See generally Erick Otieno Meda v Republic, Kisumu Court of Appeal Criminal Appeal 55 of 2015. See also Republic v Johnson [1961] 3 ALL E.R. 969, Saidi Mwakawanga v Republic [1963] E.A. 6.

76. I have weighed the three versions of the alibi against the evidence of PW8 and PW12. According to PW8, the person he saw at the scene at Ngewa (the accused) was moving towards where he and his colleague were and was standing 7 metres away. It was broad daytime. This is the same person he identified at Kasarani Police Station during the police identification parade.

77. He described the person he saw at Ngewa as “a big man who was of slightly dark complexion. He was a young man with lots of hair”. He added: “I found [at Kasarani Police] the person I had seen at the JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 29 scene. When I had seen him first at the scene, I thought he was a scene of crimes officer, but when he took off I doubted him. He had black hair”. PW8 upon his recall admitted in cross-examination by Mr. Kang’ahi, that his original statement did not have the description of the suspect. However, I find that his evidence on this point was unshaken in cross examination. The witness was emphatic: “I am sure it was the 1 st accused who was there at the scene” 78. In his defence, the accused stated that PW8 had interrogated him at the station prior to the parade; and, that that is why he declined to sign the form. I think the narrative is an afterthought. This issue was never raised when PW8 first testified or was recalled to the stand. PW17 testified that after the parade, the accused said he had no comment but refused to sign the form (exhibit 30). PW17 signed the form. I find that the failure by the accused to sign or state his reasons does not invalidate the form. I also find that the exercise substantially complied with the Force Standing Orders.

79. The sighting of the accused by PW8 at Ngewa is further corroborated by the evidence of PW12. He was emphatic that on 30/6/2012 he hired out motor vehicle KBH 642R to the accused at about 10:30 a.m. To support it, he produced the receipt (exhibit 9) JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 30 and copies of the drivers licence and identity card of the accused (exhibit No. 10 (a) & (b)). The customer’s cell phone was indicated as 0717370647. He added that a tracking device beamed to his cellphone showed the car in Ngewa in Ruiru heading towards Githunguri. When he confronted the accused about the journey, the accused said he was teaching his girlfriend to drive. He was accompanied by a woman when he returned the vehicle.

80. Furthermore, PW12’s business had leased out another vehicle previously to the accused. They thus knew each other well. In his sworn defence, the accused said he called PW12 on 29/6/2012 to hire a vehicle to attend the event at Carnivore in tribute to Michael Jackson. He said that since it was not delivered, he missed the event. Upon closer examination of Defence Exhibit 7, the event was advertised to take place on 30 th June 2012 from 8.p.m. onwards . The deceased was already in the hands of her captors by the afternoon of 30/6/2012 and the demands for ransom made. In any event, the accused admitted that he missed the show. His alibi is thus fictitious and does not dislodge the clear evidence of PW8 and PW12.

81. I have also kept in mind that the particulars in the Information are that the offence occurred between 30/6/2012 and 1/7/2012. I found JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 31 earlier that the accused and the deceased were both students at all material times; and, that on 30/6/2012, the accused had access and the opportunity to abduct the deceased. When weighed against the totality of the prosecution’s evidence, I have reached the inescapable conclusion that the three versions of the alibi are false.

81. From what I have stated in the preceding paragraphs coupled with the electronic and call data evidence, I am fully satisfied that the accused was positively identified as the person who lured and abducted the accused on 30/6/2012, demanded a ransom, issued threats to kill the deceased in default of payment and that he together with other persons not before the court strangled the deceased to death. See generally Wamunga v Republic [1989] KLR 424; Maitanyi v Republic [1986] KLR 198 at 201.

82. Another important piece of circumstantial evidence is that the accused’s “girlfriend” Wairimu lived in Savannah. Like I stated earlier, the 2nd accused jumped bail and the court ordered that the remainder of the trial proceed in her absence. When the police visited her house in Savannah they recovered a bra, pantie and bloodied top belonging to the deceased (exhibits 31-33). It is not lost on me that in the notebook of the deceased (exhibit 1), she JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 32 indicated that the phantom Daniel Muriithi she was to meet lived in Savannah. It was all part of a nefarious scheme by the accused and his accomplices to abduct the deceased and cover his tracks.

83. In answer to a question in cross examination, the accused admitted that he was charged and convicted for abduction of a girl in Makadara Chief Magistrates Criminal Case 3413 of 2012. The accused in his final submissions contended that the admission is inadmissible for offending section 34 (1)(d) of the Evidence Act as well as section 277 of the Criminal Procedure.

84. I disagree with that submission. I am alive that under section 57 of the Evidence Act, the fact that the accused was charged or convicted with any offence other than the one he is then charged, or is of bad character, is inadmissible unless “(aa) such evidence is otherwise admissible as evidence of a fact in issue or is directly relevant to a fact in issue”. In this case, the admission of the conviction for abduction is directly relevant to the fact in issue: The murder in this case was preceded by an abduction of a female and demands for ransom payment.

85. I stated earlier that the abduction, demands for ransom and eventual murder was a premeditated criminal enterprise by the JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 33 accused. That is why he tried to cover his tracks by giving false names to the deceased or even using an unregistered line. He had a clear motive to extort monies or kill the deceased.

86. I thus readily find that the accused had malice aforethought as defined in section 206 of the Penal Code. He and his accomplices lured the accused into a trap for abduction with the aim of collecting a ransom. When the payment was not forthcoming, or when the police dragnet started closing, he or his accomplices carried out their overt threat to kill the deceased. He or his accomplices strangled the deceased to death and discarded her body in a thicket at Ndithiati Village, Ngewa, Githunguri.

87. The conduct of the accused person is inconsistent with his plea of innocence or counterfeit alibi. The deceased died as a direct consequence of his unlawful conduct. The entire corpus of direct, circumstantial, electronic and documentary evidence points irresistibly to his guilt.

88. The upshot is that the prosecution has proved beyond reasonable doubt that the accused person, of malice aforethought, caused the death of Sarah Aruwa Akello by an unlawful act. I accordingly enter a JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 34 finding of guilty and convict the accused (Duncan Livingstone Kimathi) of murder contrary to section 203 as read with section 204 of the Penal Code. It is so ordered. DATED, SIGNED and DELIVERED at NAIROBI this 16th day of September 2026.

KANYI KIMONDO

JUDGE Judgement read in open court in the presence of: The accused. Ms. Okusimba & Ms. Kigira for the republic instructed by the Office of the Director of Public Prosecutions. Mr. Ong’ato for the accused instructed by Ong’ato Ochieng & Company Advocates. Mr. E. Ombuna, Court Assistant. JUDGEMENT NAIROBI HCCRC NO. 50 OF 2012 Republic v Duncan Livingstone Kimathi Page 35