https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8875

Republic v Echwa alias Mathenge (Criminal Case E001 of 2020) [2026] KEHC 8875 (KLR) (22 June 2026) (Judgment) Neutral citation: [2026] KEHC 8875 (KLR) Republic of Kenya In the High Court at Nyahururu Criminal Case E001 of 2020 LN Mutende, J June 22, 2026 Between Republic Prosecution and Michael Echwa Alias Mathenge Accused Judgment 1.Michael Echwa alias Mathenge is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. Particulars of the offence being that 31st day of August, 2020, at Uaso Narok Nyahururu Sub-County he murdered William Leirapa (deceased). 2.To prove the case the prosecution called 10 witnesses. PW1 Florence Leira the wife of the deceased stated that the deceased left in the evening of 30th August, 2020 going to their neighbour, the Accused’s place where alcohol was ordinarily sold. Later he called and instructed her to notify his mother to go to where he had gone and she complied. 3.That at midnight the Accused went and told her to go collect her husband who was dead. When she sought to know who had killed him, he ran away. She went to where alcohol was being taken only to find her husband dead by the roadside. She found her mother in-law among the women who were at the scene. She witnesses as the Accused was taken to the scene by members of public. 4.PW2 Mrefu Mnuru Lepachiro a neighbour to both Accused and Deceased stated that his wife was being delivered of a child and women were present for that particular purpose. That at midnight the Accused went and told the women to go see the deceased who was on the road. He went to the road to find William bleeding. The deceased’s mother who was among the women who went to the roadside screamed. The Accused who had gone to call the deceased’s wife returned and denied having killed anybody. He accused him of having killed and deposited the body near his home, then hit him with a club and he ran away. Women screamed and other people went to the scene. In company of other people, they pursued the Accused, found him at a local school and tied him with ropes then took him to the scene and then left going to sleep. 5.On cross – examination he denied having seen him kill the deceased save that they were together. That he heard them talking. On re – examination he started that there was a blood trail which was about some 10 meters up to where the deceased was lying. 6.PW3 Lepaomo Elarapo the mother of the deceased stated that at 11.00pm or thereabout she had gone to assist a lady who was delivering a baby and the deceased went to the Accused’s place before the attack. Then the Accused went and told her that the deceased was at the road lying down. That she went with PW2 to the scene who asked the Accused if he had killed somebody and he ran away. People pursued, arrested and took him back to the scene. 7.On cross – examination she said she heard coughs at the scene but she was not aware if the deceased was sick. That nobody told him that the Accused killed her son. 8.PW4 Jackson Moire got a report that the deceased had died and he witnessed the postmortem that was conducted on his body at Nyahururu County Hospital. 9.PW5 Kitanga Lakoitan a neighbour of both the Accused and deceased heard screams at about 12.18hours. He went to the scene and it was alleged by some two women that the Accused had killed the deceased, and he called the police. On cross – examination he said that they acted on Memusi’s information and moved to arrest the Accused some ½ km away at the school where he worked. That he did not know if the Accused killed the deceased. 10.PW6 Dr. Boniface Miring’u performed a postmortem on the body of the deceased. 11.PW7 Tipina Lentunyai heard screams and on going to the scene he found the deceased’s lifeless body. And, while at the scene the Accused was taken there amidst accusations that he had killed the deceased. 12.PW8 Michael Kitela a nephew to the deceased was at home when people went looking for the Accused. He joined them and in the course of the search they found the Accused at the school. They took him to the scene where the body had been covered. The police arrived soon thereafter. 13.PW9 Nancy Wambui Muriithi a wife to the deceased said he left at 5.00pm of 30th August, 2020 going to his wife’s home. The following day the police went to her house and told her that they had taken him to hospital. She later went to the mortuary and confirmed he was dead. 14.On cross – examination she said that her husband used to take alcohol despite being a victim of tuberculosis. That he was not of good health and he was not in good terms with his first wife. 15.PW10 No. 236630 Inspector Johnson Mutua arrived at the scene to find the Accused having been arrested from the school where he had gone to perform his usual duties. At the scene they found a bolted club alleged to belong to the Accused. The body was removed to the mortuary pending postmortem procedure. The Accused was re-arrested and taken to Kinamba Police Station. 16.On cross – examination he stated that the club was the murder weapon because when the Accused was arrested at his place of work, he was in possession of the club which was the murder weapon. He admitted that there was no direct evidence linking the Accused to the offence. 17.Upon being placed on his defence, the Accused denied the allegation that he was also known as Mathenge. He stated that he is a watchman at Uaso Narok Secondary School. That he was arrested on 30th August, 2020 at 5.30am while at home. Further, he stated that he reported on duty at night. That at 4.44am while at the kitchen warming he saw a flickering torch light and a person said he wished to see him. All over a sudden people started beating him up. The watchman from the primary section sought to know what was happening but people did not listen to him. He was arrested and taken to Kinamba Police Station. 18.That he was ordered to sign some papers that the Investigating Officer had. Then the Investigating Officer told him that the deceased had been killed. He acknowledged that the deceased was his neighbour who lived a kilometer away but stated that he had seen him last in April, 2020. He denied having disagreed with him or having killed him. He denied owning the weapon produced in court. He said that while on duty he had a slasher and arrows. 19.He stated that one Mnuru was his predecessor at the school and upon being sacked he took over from him but he vowed to make him see. He stated that Pauline Lemyin was his counterpart at the primary section and when he reported on duty he did not leave the school. He denied having gone to the house of the mother of the deceased. 20.On cross – examination, he denied having any knowledge if the deceased’s family was connected with that of Mnuru but stated that Mnuru took advantage of the deceased’s case to falsely accuse him. 21.The Accused called witnesses. DW1 Peter Ekiletan Lomunyin a watchman at Uaso Narok Primary School who stated that the Accused is a watchman at the secondary section, schools that are opposite each other. That on 30th – 31st August, 2020, he was on duty. That he went to the Accused’s home and they went together to work. The Accused reported to the secondary section while he reported to the primary section. He patrolled the compound then went to check on the Accused, and on confirming that he was okay he went back. That at 4.00am the Accused also went to check on him. Then at 4.45am he was attacked. He went to check only to find Mnuru who had been laid off duty. It was alleged he had killed someone. To his knowledge the person used to visit the village with his wife. He was called Mbuzi. 22.That he did not know if the person had a problem with the Accused that would result into the killing but there was a time Mnuru went to the school as they reported on duty and alleged that the Accused made him to be sacked hence he would see. He denied the allegation that the deceased was killed by the Accused since he was with him. He concluded that the deceased was HIV positive. 23.On cross – examination he stated that watchmen used clubs arrows and knife while on duty. 24.DW3 Joseph Onyambu Gisore a watchman at Uaso Narok School stated that on the 31st August, he was the day watchman while the Accused was the night watchman but when he reported for duty the following morning he was informed by another watchman that the Accused had been arrested. 25.Further, he stated that a Samburu Watchman was sacked following theft and general misconduct and he vowed to ensure the Accused who was employed would suffer consequences. 26.DW4 Peter Erege Makuria stated that he used to stay with the Accused and on 30th August, 2020 he woke up to go herd goats. In the evening he returned home and the Accused went to work. In the morning he went to graze the goats and on returning in the evening he heard that the Accused had been arrested. He also alleged that Munoru on being sacked blamed the Accused for his misfortune and vowed to ensure he would suffer the consequences. 27.DW5 Florence Ewoi stated that she was called to go assist Rose to deliver a child. It was raining heavily but Rose was delivered of twins, a boy and a girl. That while contemplating on getting a motorcycle to take the mother and children to hospital there was a knock at the door. It turned out to be Simon Echwa who told them that while from Kwa Wanjiku he found a person lying on the road and on flashing the torch he realized it was William (deceased) and when he called him out the person was not responding. Hence he decided to go to Mnuru’s place to inform people. Then he left going to his place which was 2 – 3 kilometers away. 28.Further, it was his testimony that Simon Echwa was not the Accused and she could not tell if they were related. That the mother of the deceased was with them and even asked Mnuru to go call William (deceased) to enter the house who went but returned saying that William and his mother blamed him for partaking alcohol knowing that he was suffering from tuberculosis. That she saw pus oozing from the deceased’s mouth and nose and people crowded. She denied having seen the Accused at the scene. It was the following morning that she heard that young people had gone to arrest the Accused. 29.On cross – examination she denied having been with the Accused while he was working at about 8.00pm. She could not remember other people who went to the scene and whether the Accused Michael was there. 30.In the final submissions it was urged that evidence adduced was circumstantial. Relying on the case of Hanuman Govind Nargundkar AIR 1952 SC 343 it is argued that there was no eye witness to the murder of the deceased. That the Accused was at his place of work while the deceased was found dead on the roadside. Considering that the deceased was unwell suffering from HIV/AIDS and tuberculosis, he may have collapsed and died on his way from an alcohol den. 31.Also relied on is the case of Republic v Mate (Criminal Case 20 of 2018) [2023] KEHC 1456 (KLR). 32.I have duly considered evidence adduced by the prosecution in support of the information presented and the defence mounted by the Accused. 33.What amounts to murder is defined in Section 203 of the Penal Code that stipulates thus;Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 34.In Republic v Omwenga Mueche Omwenga [2009] KEHC 1573 (KLR) the court stated that;“There are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.” 35.In Republic v David Ruo Nyambura & 4 Others [2001] KEHC 826 (KLR) it was held that;“It is our cardinal principle of law that in a criminal case the legal onus is always on the prosecution to prove the guilt of an accused person, and the standard of proof is proof beyond reasonable doubt. The burden of proof therefore lies on the prosecution throughout to prove the guilt of an accused.”“There are three ingredients of murder which the prosecution must prove beyond reasonable doubt so as to earn a conviction, namely: (a) The death of the deceased, and cause of that death. (b) that the accused committed the unlawful act which caused the deceased’s death and (c) that the accused had malice aforethought. The issue for determination in this case is whether these three ingredients of murder have been proved by the prosecution beyond reasonable doubt.” 36.On the first element of death of the deceased, the lifeless body of the deceased was found lying by the roadside. It was later removed and taken to the Nyahururu County Referral Hospital mortuary where a postmortem was conducted by PW6, Dr. Boniface Miring’u who opined that the cause of death was epidural and subdural haematoma following severe blunt force trauma to the head. This was evidence of death and the cause. 37.The next element is as to whether the Accused was the perpetrator of the unlawful act that caused the death of the deceased. Evidence on record was not direct as there was no eye witness to the act. As correctly submitted by counsel for the defence, the evidence on record is circumstantial. In this regard the defence relies on the case of Hanumant Govind Nargundakar AIR 1952 SC 343, where the court stated that;“…….. In dealing with circumstantial evidence the rules especially applicable to such evidence must be borne in mind. In such cases there is always a danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the Jury in Reg. vs. Hodge, (1838) 2 Lewin 227 where he said:“The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wonting, to take for granted some fact consistent with its previous theories and necessary to render them complete.”“it is well to remember that in cases where the evidence is of circumstantial in nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of guilt of the accused. Again, the circumstances should be a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable doubt for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused...” 38.Also cited is the case of Republic v Mate (Supra) the court stated as follows;“Further, the conditions for the application of circumstantial evidence in order to sustain a conviction in any criminal trial have been laid down in several authorities. See Abanga alias Onyango v Republic CR App No 32 of 1990 (UR) in which it was held that:“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 guilt of the accused;(iii)the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”In this case, the only evidence tending to link the accused herein to the crime is the fact that it was stated by PW1 that the deceased, the accused herein, and Laban Mate were drinking in the same pub the previous night and thereafter left together at around 10.30 pm. Apart from this, there is no other evidence either direct or circumstantial that links the accused herein to the alleged death of the deceased. It is not clear to this court why the accused person and his brother Laban Mate were the only ones who were charged with the murder of the deceased and who the other people who left the bar with the deceased were and/or why they were also not charged.That being the case, it therefore follows that the prosecution did not prove that the accused person herein was the one who caused the death of the deceased, despite having succeeded in establishing the death and the cause of the said death. Having failed to do so, it is my considered view that the prosecution failed to prove all the elements of the offence of murder.” 39.And, Abang’a alias Onyango v Republic Cr. App. No. 32 of 1990 (UR) where it was held that;“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 guilt of the accused.(iii)The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” 40.The Accused and deceased were friends and neighbours. Evidence by PW1 was that when the deceased rang and instructed her to tell his mother to go to where they were, he was in company of the Accused who also talked to her. This piece of evidence was not displaced. On the fateful night PW2 Mnuru’s wife was being delivered of a child and one of the traditional midwives present having been called by the deceased was PW3 the mother of the deceased. People who were at PW2’s house were called out to go and see the deceased who was by the roadside. They all identified the Accused as the individual who called them and on reaching the roadside, indeed they found the lifeless body of the deceased. 41.It is therefore presumed that the Accused was the last person seen with the deceased. In Moingo & Another v Republic [2022] KECA 6 (KLR) the Court of Appeal held;“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 justified in drawing an inference that the accused killed the deceased (see the Nigerian case of Moses Jua v the State [2007] PELR-CA/11 42/2006).” 42.In Marita v Republic (Criminal Appeal 200 of 2018 [2023] KECA 580 (KLR) the Court of Appeal stated;“ 21.The Last Seen Doctrine is an instantiation of circumstantial evidence and an application of section 111 of the Evidence Act. Section 111(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which casts the burden of proof on the accused person in certain circumstances, provides as follows:- 111 (1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist:Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence. 22.The Last Seen Doctrine essentially provides that if a person is the last one seen with the deceased just before his death or within a reasonable period of his death and no other person could have intervened in between them, then the presumption can be taken that he (the person who was last seen with the deceased) is the author of the crime causing the deceased’s death. In such a case, the burden of proof shifts to the person last seen with the deceased to negate this fact and if he is not able to give a lucid and sufficient explanation about his innocence then the presumption becomes even stronger. Ideally, for the Last Seen Doctrine to safely apply, the duration of the accused and deceased last seen together and the recovery of the dead body should be minimal. This rules out the possibility that another person intervened. In cases where there exists a significant time gap between the time the deceased was last seen with the accused person and the time when the body was recovered, the presumption is considerably weakened.” 43.The prosecution adduced evidence that the Accused was the last person with the primary victim, hence responsible for his death. The legal burden hence shifted to him to render a plausible explanation of what happened. In his defence, the Accused denied having been the one responsible for the unlawful act or omission that caused the death of the deceased. Further, he even denied having been at the place where the deceased met his death. 44.The Accused called his colleagues as witnesses. The Accused worked at a school estimated to be ½ km away from the scene where the deceased lay. It is argued by the prosecution that when the Accused was asked who killed the deceased he ran away. PW2 said he hit him and he ran away. Later he was found at his place of work and arrested. 45.DW2 his workmate and fellow watchman said he checked on him at 1.00am and he was at the school. Then he also checked on him at 4.00am and he was at the school. The Accused and his witnesses came up with a narrative that PW2 Mnuru had a grudge with him since he was sacked for misconduct and the Accused employed which made him vow that he would ensure something happened. But, when PW2 testified, the allegation was not brought up in cross – examination. This must therefore be an afterthought. Similarly, DW5 came up with an allegation that the person who went to call people from PW2’s house to go see the deceased was not the Accused but one Simon Echwa. No such allegation came up during cross – examination. The defence introduced the allegation without laying any foundation for the witnesses especially PW2 to respond. Therefore, this is piece of evidence is dismissed as an afterthought. 46.It is also argued that the death in question was natural, that the deceased was ailing from tuberculosis and HIV. The result obtained following the autopsy conducted revealed that the cause of death was severe force trauma to the head. This was not a natural death since the deceased suffered epidural and subdural haematoma due to the force blunt trauma to the head. The explanation given by the Accused was not plausible therefore circumstantial evidence irresistibly pointed to the guilt of the Accused as the perpetrator of the act that caused the death of the deceased. 47.To be guilty of murder, the Accused must have acted with malice aforethought. Section 206 of the Penal Code defines malice aforethought as follows;Malice aforethought shall be deemed to be established by evidence proving 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. 48.In Tebere s/o Ochien v Republic [1945] 12 EACA 63 it was stated that;“It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick…” 49.The deceased was hit on the forehead, frontal and left temporal regions. The nervous system had diffuse brain oedema which was life threatening and did result in death. when the injury was inflicted the perpetrator must have known that the deceased would at least suffer grievous harm. He had an intent to either kill or at least cause grievous harm. Therefore, he acted with malice aforethought. 50.In the upshot, I find and hold that the prosecution proved the case of murder against the Accused. Accordingly, he is guilty and convicted for the offence as charged contrary to Section 203 of as read with Section 204 of the Penal Code. 51.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF JUNE, 2026.……………………L.N. MUTENDEJUDGE