[2023] KEHC 24798 (KLR)

Republic v Gitau & 3 others (Criminal Case 64 of 2015) [2023] KEHC 24798 (KLR) (30 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24798 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Criminal Case 64 of 2015

RM Mwongo, J

October 30, 2023

Between

Republic

Prosecutor

and

Patrick Mwangi Gitau

1st Accused

Joseph Maina Njuguna

2nd Accused

Agnes Njeri Hinga

3rd Accused

Rose Wambui Mweri

4th Accused

Judgment

1. The four accused persons are charged, jointly with others not before court, with the murder of Lucy Wambui Ngeri, contrary to Section 203 as read with Section 204 of the Penal Code. The murder is alleged to have occurred on 18th September, 2014, along Maai Mahiu - Naivasha Highway, in Naivasha Sub- County, Nakuru County.

2. The state tendered evidence through fifteen (15) witnesses. After hearing all the prosecution witnesses, the Court placed the accused on their defence. The 1st and 3rd accused gave unsworn testimony; the 2nd accused decided to remain silent, not entering a defence; and the 4th accused gave sworn testimony.

Prosecution case 3. PW1, PC Jared Mose testified that whilst on night duty at Naivasha Police station, on 18/9/2014, he was instructed by Chief Inspector Owuor to visit a scene at Maai Mahiu Road. Once he got there, he and Corporal Rop found a body of a half-naked brown woman covered in a lesso. Members of the public led them to a pair of torn trousers about a kilometre away. The body appeared to have been thrown out of a moving vehicle. Scenes of crime officers took photographs and PW1 took the body to the mortuary.

4. PW2 George Gichanga, the deceased’s brother-in-law, testified that on 20/9/2014, his wife Mary Nyokabi had reported his sister missing since 18/9/2014. He and his wife lived at the 3rd Accused’s family home. On his way to Kabete Police station where he had been referred to, he met 3rd accused. She told him she had heard a radio report of a body recovery at Naivasha. Since PW2 knew people in Naivasha, he called a friend, Mwangi, who worked at the mortuary. Mwangi described one of the bodies and clothes worn, and PW2 and Agnes thought it could be the deceased.

5. They decided to go to Naivasha on that Saturday 20/9/2014. On arrival he called Mwangi, and he showed them the body which they identified to be that of the deceased. They were told to return on Monday to record statements at Naivasha Police station. He returned to Naivasha with Joseph Njenga, the deceased’s husband. In cross examination, he said that he knew Accused 3 and 4, but not accused 1 and 2.

6. PW3 Joseph Njenga Ngigi, a mason, stated that he was the deceased’s older brother; That Accused 3 and 4 were sisters-in-law to the deceased, and accused 1 and 2 were their friends. He testified that on 20/9/2014 his sister Lucy Njoki, called him on Agnes Njeri’s (3rd Accused’s) phone and told him the deceased had been missing for two days, and that Lucy and Agnes had been to report to the police station at Kabete.

7. Two hours later, Lucy Njoki called in tears saying that the deceased was no more, as a body had been described to them at Naivasha mortuary matching the deceased. On questioning further, Lucy told him even the clothes matched the deceased. He then went to Lucy’s home and learnt that Agnes and PW2 had gone to Naivasha. Shortly thereafter, Agnes called and confirmed seeing the body of the deceased.

8. The next day, PW3 went to the compound where the deceased lived with Agnes and her mother. He noticed that neither Agnes nor any of the visitors came to the deceased’s house, and was concerned that no one was taking responsibility over matters leaving it to the in-laws. He later went to Naivasha and identified the body at a post mortem, and recorded a statement at Naivasha Police station. He recalled that deceased had told him that Agnes was often drunk and used to abuse her; so, she wanted to move out of the compound. In cross examination he stated he did not live with Agnes at Dagoretti.; but that Accused 4 lived at Dagoretti and Accused 3 regularly accused the deceased according to what the deceased had told him.

9. PW4 Corporal Julius Rop testified that he was attached to Longonot Police Post when he was instructed by Chief inspector Owuor to inquire about a body reported to have been seen at the roadside on the way to Naivasha. He went and found a woman’s half naked body with black top and sweater and white inner pants by the roadside at Kamuyu stage. They secured the scene and called the OCS Naivasha who came with other police who took photos. They also found red female trousers about one kilometre from the scene

10. Corporal John Wambua, PW5, testified that on 23/9/2014 he was asked to take photographs of Vehicle Reg No KBW 567D Toyota Probox, which the police had traced. He was told it was an exhibit in a murder case. He was also shown a trouser with stains, a stained red t-shirt, two sisal ropes, and empty Pilsner, Fanta and Vodka bottles. He went and took a total of fifteen photographs. They were produced as PExb 1a-o. He also took pictures of the other items, ropes, bloodstained clothes, bundle of shoes and bottles. They were marked asPExbs 3a-k. He produced the same with a Certificate marked PExb 2. In cross examination he confirmed he did not visit the scene of crime.

11. PW6 Edward Ndirangu Muriithi, is a building contractor. He testified that he had a Probox vehicle KBW 567D, loaned to him by Tuzo Capital for which he had made a down payment of 280,000/, and was to pay 22,000/- monthly-. On 20/9/2013, he received a call from his nephew Michael Matu who was running the vehicle as a taxi in Kariobangi to say it had been detained by police. It was at the time with a customer who had self-hired it to Naivasha. He was told the vehicle had been used to commit a murder. He produced a copy of the log book (MFI3).

12. At this stage of the hearing, a trial within a trial (TWT) was held concerning a confession statement by Accused 3. The statement was made to the Principal Magistrate, Hon Kimilu, who recorded it and testified to it in the TWT. After the TWT hearing and submissions, the court ruled that the statement made by Accused 3 was voluntarily made and was admissible. Hon Kimilu later testified as PW11.

13. PW7 Mercy Mugweru, a doctor, was the Medical Officer from Naivasha District Hospital. She testified on behalf of Dr Ngulungu who had performed the post mortem and with whose handwriting she was familiar. She produced the Post Mortem report of the deceased, which was done on 27th September, 2014.

14. According to the report, the body had bruises on the forehead, side of the head and the trachea. Internally, there was haemorrhage of the trachea, neck muscle had coalesced into haematoma and there was fracture of the thyroid cartilage. There was haematoma on the head bruise but no fracture; the nervous system was congested; there was dislocation of the 2nd cervical bone. In the opinion of the doctor, death was due to strangulation by blunt object pressure to the neck. The report was produced as PExb 4.

15. PW8 Prisca Wanjiku Kiarie is the deceased’s daughter. She testified that her father passed on in 2009; that her mother took over and dealt with his properties including those of the extended family; that her mother told her that there were disagreements regarding some of the properties in Kikuyu which she was entitled to inherit as a widow alongside her father’s sisters, namely, 3rd and 4th Accused. When her mother died, her body was buried in a cemetery because the family land reserved for burial had been sold.

16. PW9 Lucy Njoki Ngei, a sister of the deceased, testified that she lived with the deceased for about ten years; that Agnes Njeri, 1st Accused, denied the deceased a share of her (deceased’s) husband’s inheritance, and there was a serious dispute over the issue. She stated that the deceased worked as a barmaid at Seven’s Club, Wangige. On 18th September, 2014 the deceased left home at 10. 00am. She did not call as she usually did about her children. On 19th September, 2014, the deceased did not come home and she could not be reached on her phone. So PW9 called a neighbour at Wangige who told her to come there.

17. When she went and after a discussion with the lady, she rang her brother who told her to report to the police. She was then directed to Kabete Police station. Soon thereafter, 3rd Accused stated that she would accompany them to Kabete. As they walked from Kabete, they heard of a body that was found at Maai Mahiu. She reiterated that there had been a property dispute between the deceased and Accused 3. In cross examination, she said that the land in dispute belonged to the father of 3rd and 4th accused, and that the mother of 3rd and 4th accused is still alive. She said she witnessed several incidents concerning the land dispute between the deceased and 3rd accused, including threats of assault and abuse. She said she did not know Accused 1 or 2.

18. PW10 Nyancendo Nduhiu, a Loans Officer with Enea Sacco, Karatina, testified that in 2014 he was in customer care as a teller. His Mpesa Agent No was 94058. On 17th September, 2014 at about 4. 00pm a lady came to him and wanted to deposit 40,000/-. He asked her for her telephone number, and she pushed her phone to his face. The number he read was 0723 688515. He deposited the money to that number and the recipient’s name disclosed was Patrick Mwangi Gitau. The transaction number was FR21XL264. He asked her why the number of a man came up as the recipient, but she proceeded to call her sister who said the money had been received. He did not reverse the transaction because another customer came and it was nearing time to close.

19. Soon thereafter, the police from Kiamariga Police post came to the Sacco and said they wanted to see the transactions for 17th September 2014. He gave them the Agent Record Book, Agent Message book and the phone for the Sacco agent.

20. In cross examination, he admitted that he did not get the original ID card for the depositor although he is the one who wrote the ID number; that he did not check if the customer’s number existed in real life; and that he did not get the printout statement showing the recipient was Patrick.

21. PW 11, was Naivasha Principal Magistrate Esther Kimilu. She testified that on 29th September, whilst in her office, CI John Owour the OCS Naivasha came to her and said he had suspects who wanted to make a confession in relation to a murder case. Later CI Owuor and Corporal Audrey Cheron brought Agnes Njeri Hinga and a lady called Rose who came as a witness for Agnes. PW11 explained the process of making a confession and the ladies were satisfied.

22. According to PW11, Agnes Njeri Hinga of ID No 0374292 of Dagoretti Centre, stated that she had been arrested on 24th September, 2014 as a suspect in the case of Lucy Wambui. She said she and Lucy had had a conflict regarding her mother’s property which Lucy had been given the responsibility of taking care of; that they were not happy with the way she was handling the property; that she met Patrick Mwangi and they agreed to kill Lucy so as to be free of the property; that Patrick demanded Ksh 100,000/- with Ksh 50,000/- as a down payment; that she paid the money on 17th September 2014 and Patrick got a taxi to do the hit job; that the taxi required 2,000/- per day; that she called her sister Rose Wambui for a soft loan; that Rose sent shs 40,000/- to Patrick’s phone No 0723 688519; that Agnes paid the difference of Ksh 10,000/- to complete the down-payment.

23. Esther Kimilu further testified that according to the confession, Agnes and Patrick worked together; that on 17th September2014 Patrick went to Lucy’s house and did the job, ad on 20th September, 2014 Agnes was informed that the job was done; that Agnes came to Naivasha with Lucy’s brother-in-law George to Naivasha mortuary where they saw Lucy’s body. PW1 said the confession was made in the presence of Rose Mweri, the 4th Accused, and PW11 signed in the presence of both Rose Mweri and Agnes Hinga. She said the original statement was given to CI Owuor and produced a copy signed by her as PExb 6. She identified the 3rd Accused in the dock as the person who came and gave the confession; and that she wrote the confession by hand and then typed it in her chambers.

24. In cross examination, PW11 stated that she was not aware that the 4th accused had been arrested and locked for one week; that they were conversing in Kiswahili and she would write in English, although the statement does not indicate that there was translation; that she did not know the confessor or her witness; that the police officers were not in her office as she anticipated that they would give evidence; that she warned the 3rd Accused that the confession could be used in court and warned them of the consequences; that she did not record that she had so warned them;

25. Finally, in re-examination PW11 confirmed that the police had no role in the confession; that they did not attest it or participate in it, but waited outside her chamber; that she recorded the confession in Kiswahili but it was made in English; that she explained to 3rd Accused its content, which they confirmed and signed voluntarily and without coercion.

26. PW12 Sergent Luke Marwa Olang was the DCI Naivasha. He testified that he was instructed by the DCIO Martin Mbaya to investigate the circumstances of the death of Lucy Ngei. Her body had been reported to be lying at Naivasha mortuary and it was suspected she was murdered. Her brother Joseph Ngei had reported her death. On or to that date, duty officers at Longonot Police Post had recovered the deceased’s body along Maai Mahiu Longonot road on 18th September 2014.

27. PW12 stated that he went with Joseph Ngei to the mortuary and viewed the body and noted it had a necklace and one golden earring. He produced these as PExb 7 and 8 respectively. He requested scene of crime officers to photograph the body, which they did at the mortuary. PW12 testified that one of the officers had arrested a motor vehicle on suspicion that it had been used to commit a crime. The vehicle was Registration No. KBN 567 D Toyota Probox. They did a search in the vehicle and found one earing in it. With this, they linked the vehicle to the death of the deceased, as the earrings were similar. He produced the earring found in the vehicle as PExb 9.

28. Two suspects, Patrick Mwangi, the 1st Accused and Joseph Mwangi, 2nd Accused, were in remand for possession of a suspected stolen vehicle. Upon interrogation 1st Accused recorded a statement saying he knew more about the deceased’s death. He stated that he had been hired as a hitman for 100,000/=; that Agnes Njeri who resided in Dagoretti was known to him, and that he worked as a caretaker. On strength of this information, PW12 contacted officers at Dagoretti, and with assistance of Joseph Ngei, they traced Agnes Njeri at her parent’s home in Dagoretti. Accused 1 states he had been given a down payments of Kshs.100,000/= and another 40,000/= was sent to him through her Mpesa line by an agent in Karatina. The money was sent by one Rose, who is Agnes Njeri’s sister.

29. PW12 traced Rose in Karatina and arrested her. She said that her sister had requested he to send the money as she need it for construction. PW12 recovered the Mpesa Book and the agent was taken to Naivasha where she recorded a statement. She is PW10 in this case. PW12 also took statements from the ladies at the bar where the deceased worked and they stated that Accused 1 and two others came to the bar, had drinks past 1. 00 pm as they knew one another, and left in a Probox with the deceased. The two ladies were at large.

30. According to PW12, the 2nd Accused stated that the two ladies were in the back of the Probox which he was hired to drive and 1st Accused was the co-driver. He testified that according to 2nd Accused, he heard as if someone left the vehicle near Longonot but Accused 1 told him to drive on. Accused 1 and 2 were arrested whilst trying to fix the vehicle at a petrol station.

31. PW12 did a search for the ownership of the vehicle and found it belonged to Edward Ndirangu who availed a copy of the logbook for the vehicle and which was produced as PExb3. PW12 also obtained a copy of Safaricom statement of Patrick Mwangi marked as MFI - 10.

32. In cross-examination PW12 submitted that it was an error not to produce a photograph showing where the deceased’s ring was found in the vehicle. He admitted that in his statement he said the earring was silver. Further that the accused at the car were not photographed; that the scientific examination by the Government Analyst did not link what was in the car with what was on deceased.

33. He further stated in cross-examination that the prosecution evidence did not show who killed the deceased and that he had not availed evidence linking to the death of the deceased to the accused.

34. In re-examination PW12 confirmed he took one earring from the body after it was photographed, and that it was gold not silver. He said the Government Chemist report was to ascertain if there was any connection with the 1st accused.

35. PW13 Assistant Superintendent Nzioka Sungi was the officer in charge of the Flying Squad, Naivasha in 2014. He stated that he was called by the investigating officer PC Johnson Wambua who told him he had a suspect that wished to make a confession. The suspect Patrick Mwangi Gitau, 1st Accused. When the suspect was brought, he informed him that he was inquiring about a murder the previous night; that Accused 1 was being treated as a suspect; that he was not obligated to say anything, but that if he did it could be used against him; that he should tell the truth about what he knew on the issue. The 1st Accused signed a statement and inquiry under caution (MFI - 10)

36. According to PW13, the 1st Accused told him that he was married with a child; that the house he was renting and had lived in for five years belonged to Agnes Njeri Hinga (3rd Accused); that he knew the deceased, Lucy Wambui; that sometime in 2012 3rd Accused approached him and asked him to look for a killer team to kill Lucy Wambui; that on 17th September 2014 3rd Accused called him and they met at a bar on Outering Road. He went with one Njogu and another person; that he met 3rd Accused with a lady friend to the deceased and they all drank beer whilst Agnes and her friend took juice.

37. Further, PW13 said a time came when the 1st Accused introduced the two other men; that they suggested the price of 150,000/= for the hit job; that after negotiations they agreed on Shs.100,000/=; that after the agreement Agnes stepped out and spoke to her sister; that when she came back in 1st Accused received 40,000/= from a Safaricom agent in Karatina; that Agnes added 10,000/= to his mobile to make a total of 50,000/=.

38. As part of discussion, 3rd Accused told 1st Accused to arrange for transport and he called Mbugua owner of KBN 567 D Probox; that they agreed to costs of 6000/= for three days; That 1st Accused went out and withdrew 20,000/=and paid Mbugua 6000/=; that he called a friend Joseph Njuguna Maina (2nd Accused) who came and was to be the driver.

39. After the arrangements were done, according to the 1st Accused’s statement, they left Kariobangi with the 3rd Accused at the front seat, driven by 2nd Accused. The 1st Accused sat in the rear with three others. The 3rd Accused was dropped off at Dagoretti after showing the hit team Club 7 in Dagoretti where the deceased worked. The team went back to Club 7 and met the deceased at the counter, where they ordered drinks.

40. The 1st Accused then told the deceased the plans against her made by the 3rd Accused. The deceased retorted that she was also fed up with the 3rd Accused and wanted to make arrangements to kill her. 1st Accused offered to rent a house in Nakuru for the deceased; in turn she promised to pay double the money the 3rd Accused had offered.

41. According to the 1st Accused they left the bar at about 2. 00 am, got into vehicle KBW 567D and headed to Nakuru where the rental house would be taken up. On the way the 1st Accused heard some sounds, and when he asked Njogu, they laughed and said “it’s over”. It was then that 1st Accused realised the deceased had been killed.

42. The car developed problems at Naivasha, and 1st Accused went to a bar where he slept, only waking up in the morning to seek a place to repair the car. He was at a garage when the police arrested him.

43. PW13 confirmed that the information in the statement was given and signed by the 1st Accused. PW13 wrote and signed a certificate stating that he, 1st Accused; had given the statement voluntarily without force or intimidation or promise of any kind. PW13 signed the certificate and produced the statements under inquiry as PExb 10.

44. In cross-examination, PW13 admitted that he did not indicate the language preferred by 1st Accused; that he knew the accused had been in prison custody; that he did not record the witness’s name and that the 1st Accused did not sign the certificate as required.

45. PW14 Veronica Nzila Kimanyi testified as the Assistant Registrar of Persons. She stated that they were requested by DCI to confirm fingerprints for identity card holders Nos. 0374292, identity card 25208026 and identity card 22584768.

46. She confirmed identity card 0374292 was for Patrick Mwangi Gitau and details of domicile parent’s fingerprints and photo were confirmed in a report produced as Pexb 12. Identity card 25208026 was for Joseph Njuguna Maina and the report was produced at PExb 13. Identity card 0374292 was for Rose Wambui Mweri and the report was produced as PExb 14.

47. PW15 Daniel Hamisi works with Safaricom in the Nairobi Liaison Office for Law Enforcement. He stated that he was a Sergeant and one of his roles is to give details of communication on Safaricom mobile telephone numbers who investigations are reported. He produced certificates in Computers Criminal Intelligence Analysis, Basic Cybercrime Investigations and IBM Analyst and Anti Money Laundering as PExbs 16, 17, 18, 19 & 20 respectively.

48. Upon request of PW12, the investigating officer, he produced Mpesa statements for four telephone accounts. The numbers he was given and the details he provided were as follows:a)0723688519 registered to Patrick Mwangi identity card 22584768 and the report was produced as PExb 21. Entries for 17 September 2013 shows a deposit through Mathira Agent Till of Shs.40,000/= and on the same date a receipt of Shs.10,000/= from Tel 0721628552 belonging to Agnes Hinga.b)0721628552 registered in the name of Agnes Njeri Hinga identity card No. 5184054, and the report was produced as Pexb 22. An entry of 17th September 2014 shows a transfer of Shs.10,000/= to Patrick Mwangi Gitau.

49. He prepared a certificate under Section 106 of the Evidence Act and produced it as PExb 23. The court order for Telephone Extracts was produced as PExb 24.

50. In cross-examination, PW12 admitted that, although he was requested under PExb 24 statements and for information on telephone Nos 0707531610 and 0721238046, he did not provide these. He indicated that he highlighted only the transaction he was asked to highlight; that Safaricom maintains all the records of transactions, and that he has authority to access them. He further

Defence Case 51. The prosecution case close and the court ruled that there was a case to answer.

52. Accused 1 (DW1) gave an unsworn statement, he stated that he was caretaker to Agnes Njeri who had plots in Kariobangi and in Nakuru. The Nakuru plot had a leaking roof and worn off paints. He met Accused 3 in Kariobangi to buy cheaper paints, and hired a private vehicle a Probox. They drove towards Nakuru and were stopped at a roadblock. Despite the owner asserting that the paint belonged to Accused 1, they were arrested and taken to Police Station at Naivasha.

53. Later, he was charged for handling stolen property. His boss, Agnes was also arrested, and he confirmed he knew her. His phone was taken away from him. He was thereafter taken to Nakuru High Court, where the charges were read to him.

54. Accused 2 did not testify but opted to remain silent, which is his right as granted under Article 50(2) of the Constitution.

55. Accused 3, gave an unsworn statement. She stated that she was from Dagoretti Centre; that on 17 September 2014 she called Patrick Mwangi (Accused 1) on telephone; that he was the caretaker for her father’s houses in Nakuru and Kariobangi; That the Nakuru home needed painting. She asked 1st Accused for a quotation. She gave him 10,000/= which she had on her phone. As for the balance of 40,000/= she borrowed the same from 4th Accused, and told her to send it direct to her caretaker. She was later picked up by the police while at home.

56. The 3rd Accused was later taken to Naivasha police Station, and charged with killing her sister. She was also taken to a place where she was told to write a statement of what she knew. According to her, she in fact said:“I did not write anything. I was shown some written papers and told to sign them”.

57. DW4 Accused 4, gave sworn statement. She stated that she received a call from her sister Agnes (Accused 3) whilst she was in Nyeri, who requested a loan of Shs.40,000/=. The loan was for painting her houses. As she had just sold some potatoes for 60,000/=, she was able to lend some. Agnes told her to send the money to her caretaker, Patrick (Accused 1).

58. Accused 4 went to Kamariga and gave the money to a Safaricom agent of ENEA Sacco. She also gave the agent the number for Patrick. After the money was sent, she called Agnes to confirm, and she did. After two to three days her sister came with the police and she was arrested together with the ENEA Sacco Agent. She said she knew nothing about the deceased’s death.

59. In cross-examination, 4th Accused confirmed that the evidence given by the ENEA Sacco witness PW10 was correct; that 3rd Accused had requested a loan of Shs.40,000/= which she sent; that she has heard evidence of PW11, Hon. Esther KImilu and PW15.

Analysis and Determination 60. The four accused persons are facing a charge of murder under Section 203 as read with Section 204 of the Penal Code. The offence is defined in Section 203 as follows:“Any person who of malice aforethought causes death of another person by an unlawful act or mission is guilty of murder”.

61. It is trite law that for a person to be convicted of murder it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or mission. In order to secure a conviction, the following ingredients must be proved by the prosecution, as set out in Omanga v Republic (2009) KLR:“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 that the accused had the malice aforethought”.

62. It is also trite law that the burden of proof is placed on the person who desires the court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts (Section 107(1) Evidence Act. In criminal cases the standard of proof is proof beyond reasonable doubt. Lord Deming described this standard well in Miller v Minister of Pensions (1949) 2 All ER 372 - 373 when he stated:“It [the standard of proof] need not reach certainty but must carry a high degree of probability proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible’ the case is proved beyond reasonable doubt. But nothing short of that will suffice”.

Death of Deceased 63. In the present case the death of the deceased is not disputed. There is the evidence of the Post Mortem report produced as PExb 4. Dr. Mary Mugweru testified concerning the post mortem done on the body of Lucy Wambui Ngei. She was identified by her younger brother Joseph Njenga Ngigi PW3.

64. The cause of death was described by Dr. Ngulungu who carried out the post mortem as follows:“Asphyxia due to blunt object pressure to the neck keeping with manual strangulation in a body with multiple blunt force trauma to the head”.

65. He further found that the body had bruises on the face with cuts from which blood had flowed forming blood tracks on the face; there was several bruises on the side of the trachea. Internally, there was extensive haemorrhage of the trachea; the neck muscles coalescing into haematoma with fractures of the thyroid cartilage and hyoid bone. The atlas was also dislocated at the second cervical bone or axis.

66. The critical question is, who did this heinous act to the deceased?

66. In a nutshell, the prosecution’s case is that the 3rd Accused in concert with the 1st accused planned the killing; that the 3rd and 4th accused participated in funding the hit job leading to the killing; that the 1st and 2nd Accused were paid for executing the killing, with the 2nd Accused facilitating the killing by providing the transportation to execute the act.

The Case Against the 1st Accused 67. The evidence against the 1st Accused is essentially that the he masterminded the manner in which the deceased was to be eliminated by organising the hit job on the consideration of money paid or promise to be paid by the 3rd Accused. Since none of the prosecution witnesses saw the execution or participated in it, there is no direct evidence against the 1st Accused, or at all.

68. The most serious evidence against the 1st Accused as submitted by the defence is that in upon strength of the confession, he made to PW13 Assistant Superintendent Nzioka Sungi. The confession was produced as Exhibit 10 which is a Statement Under Inquiry. The details are already set out in the testimony of PW13. In his cross-examination he admitted that the language used in the confession was not stated; there is no indication that there was an interpreter or that the 1st Accused was told of his right to have legal representation of his own choice; nor is there any indication that the 1st Accused was told of his right to nominate a third party to be present during the confession.

69. In general, confessions that are self-incriminating are not admissible unless the strict rules for confessions are complied with. The defence referred to the case of Josephat Manoti Omwancha v R [2021] eKLR where the Court of Appeal acquitted the accused for the reason that the officer recording the confession failed to comply with the Evidence Act (Out of Court Confessions) Rules 2009, Rule 4 which are made under Section 25 of the Evidence Act. The Court stated:“It is explicit from the record that only SSP Grace and the appellant were present throughout the time the recording of the impugned confessionary statement took place. It is evident from the evidence of SSP Grace that after the appellant declined to have a family member to be present during the recording of the statement for the reason that he did not want his family members to know what he had done. SSP Grace never asked him if he wanted any other person of his choice other than a family member to be present. This default on the part of SSP Grace renders the statement inadmissible for lack of compliance”.

70. It is true that what PW13 recorded was a Statement Under Inquiry, and not, strictly speaking, a confession. The general legal position on statements under inquiry is that they must abide by the Judges rules of prudence in the recording of incriminating material. These rules are premised on the well accepted principles that: an accused person has a constitutional right to be presumed innocent unless proven guilty; a right to remain silent during proceedings; and a right to refuse to give self-incriminating evidence.

71. In Douglas Sila Mutuku & 2 Others v R [2014] eKLR, the Court of Appeal acquitted the 2nd Appellant where the statement under inquiry recorded from him contained evidence adversely implicating him. The court said:“[ A] statement under inquiry on the other hand is in form of an inquiry into an alleged crime where the police believe that the suspect may be connected with the crime or has useful information regarding it. It follows that a statement under inquiry precedes the taking of a statement under charge and caution.….But whether a statement is taken under charge and caution or under inquiry, the Judges Rules must be complied with.’’

72. In the statement under inquiry, the 1st Accused stated that he was complicit with 3rd Accused in planning and executing the killing of the deceased. Even if the statement under inquiry were to be accepted, it would still have to be tested for its probative value. In this case its probative value is in question because the facts set out in it differ in substantial respects from the confession made by the 3rd Accused before Hon. Magistrate Kimilu PW11.

73. Some of the discrepancies between the statements are as follows: The 1st Accused stated he met 3rd Accused on 17th September in the presence of Njogu and a tall black man. In the confession of 1st Accused (PExb 6) she said she met 1st Accused and gave him a down payment. She made no reference to other persons present.

1st Accused did not indicate he was the 3rd Accused’s caretaker, instead he stated he knew her since 2010 because he was her tenant for five years at Kariobangi Light Industry.

1st Accused indicated that Njogu and the tall man negotiated the hit job price from 150,000/= and 10,000/= was agreed. 3rd Accused made no mention of the other two men. Indeed, she stated that 1st Accused would get two hit men.

1st Accused stated that he called the taxi man one Mbugua, who came to the bar, to arrange for the trip and he also called Joseph Maina the 2nd Accused to be the driver. He also came to the bar and they had a drink. The 3rd Accused’s confession does not indicate the actual presence of these men.

The 1st Accused indicated they went together with 3rd Accused in the hit car from Kariobangi to Dagorretti where 3rd Accused took them through the bar where the deceased worked, but did not alight and was dropped at a Petrol Station. The 3rd Accused made no mention of ever entering the hit vehicle.

74. In addition to the foregoing, the 1st accused in his unsworn testimony effectively retracted his statement under inquiry in that he gave a totally different narrative of evens. He stated that he was a caretaker for the 3rd Accused; that they met so that he could purchase paints for the Nakuru property where there had been complaints of a leaking roof and worn off paint; that he purchased paints and got a private vehicle to take him there; that they drove off towards Nakuru and were stopped at a roadblock at Naivasha; that the police alleged that they were in possession of stolen property and arrested him; and that he was thereafter charged for murder.

75. In light of this inconsistent evidence, it is unsafe to rely on it for proof of the allegations against that 1st accused that he planned and executed the murder.

76. The other evidence which the prosecution adduced and which tended to connect the 3rd accused and the murder was that of the investigating officer where he said after the Probox KBW 567 D was detained on suspicion of being a stolen vehicle, it was searched thoroughly and PW 12 said:“We recovered one earring in the said vehicle, KBW 567D. We were able to linkthe said vehicle with the death of the deceased. I produce the earring found in the vehicle. The earring was of the same colour and the rings were similar. I produce the second earring as PExb 9Earlier, PW 12 had testified that:“I accompanied the reportee to the mortuary. He identified the body for me. I viewed the body. The body had one earring on the right ear and a necklace…. The earring is here – a golden earring PExb 8. I also requested the Scene of Crime officers who visited the mortuary and photographed it at the mortuary….”

77. However, from the evidence of PW5 Cpl John Wambua who was called to take photographs, he produced 15 photographs as PExb 1-A to 1-O. They were bound in a booklet form marked CID/NKU/CSSS/3. I have looked at each photograph. I agree with the submissions of the defence, that: there was no photograph of the body of the deceased with an earring actually produced; that there was no photograph showing any earring found in the vehicle; and that the bottles, ropes, shoes and clothing found in the vehicle were not specifically connected to the deceased.

78. Accordingly, as admitted by the Investigating Officer in cross examination, the DNA tests done on the items had negative results:“The Government Chemist Report states (Reading) found that items listed were found to have DNS with negative results….The scientific examination does not link what was found in car and what was found with (sic)”Further, when pressed by Mr Owuor, he stated that:“Other than the confession, I have no evidence linking death of the accused”.

79. It is curious that the Government Chemist report which IO was referred to in cross examination was not produced in evidence, but I say o more on it.

80. In conclusion, other than the Investigation Officer’s word, there was no evidence to show that an earring was found in the vehicle, nor that there was an earring found on the deceased. In the absence of such photographs, the alleged connecting evidence collapses, and we are left in the very unsafe position of having to rely on the 2nd Accused’s retracted statement under inquiry.

81. This court is not prepared to risk the liberty of the 1st accused on that retracted statement whose material contents cannot be otherwise corroborated.

The case against the Second Accused 82. After carefully perusing all the evidence adduced, it is clear the strength of the prosecution’s case against the 2nd Accused, was the fact that he was the driver of the vehicle KBW 567 D. Even if it were taken as true that the 2nd accused was the driver of the said vehicle, the fact that the key connecting evidence showing that the vehicle had some connection with the deceased – such as that it had carried her – was not proved. As such the allegation against him cannot stand.

83. I have carefully perused the prosecution’s submissions. The DPP mentions the 2nd accused only five times, and in each case either as the driver of the vehicle or as the person hired to drive the vehicle. There is no evidence given that he was involved in the alleged murder plans or any explanation of how he participated in the actual murder.

84. Further, it has been shown that the connection between the said vehicle and the transportation of the deceased in it is, at best, extremely tenuous. As such there is no proof to the required high standards that the 2nd accused participated in the offence for which he is charged.

The case against the 3rd Accused 85. As in the case of the 1st accused, the fulcrum of the case against the 3rd Accused is contained in her confession before Hon Magistrate Kimilu. I have already discussed some aspects of confessions in respect of the 1st accused’s statement of inquiry.

86. The confession by the 3rd Accused was admitted into evidence by this court after a trial within a trial. The court held that notwithstanding the lapse occasioned by formal non-compliance with Rules 5 and 9 of the Rules [ Out of Court Confessions Rules], the magistrate took the necessary steps to ensure that the statement by the 3rd Accused was voluntary, and Meoli, J, then held:“In the circumstances I find and hold that the impugned statement was voluntarily made and is admissible”

87. In R v Frederick Ole Leliman & 4 Others, Lessit J (as she then was) pointed out that it was not for the court to reconsider or review the admissibility of a confession:“The court cannot review or reconsider the admissibility of the statement: What the court can do is consider the entire evidence and weigh it for two things: one, whether there is independent evidence which would lead to a conclusion that what the [5th] Accused stated in his retracted statement must be true; and two, consider whether there is evidence of some material particular which implicates the 5th Accused and establishes that he is guilty of the offence”

88. In her unsworn evidence in defence, the 3rd accused stated as follows concerning her confession:“From there I stayed at the Police station. I was taken to a place/room where I was told to write a statement of what I knew. I did not write anything. I was shown some written papers and told to sign them then I be taken to Nakuru to be released”

89. This is a repudiation of the confession. It is not a recantation o taking back, or retraction of the statement she had made to the Magistrate. She is saying, in essence that she did not make the statement. She denies making the statement.

90. On both retracted and repudiated confessions, the Court of Appeal in Mohamed Shiraz Hussein v Republic [1995] eKLR stated:“Of course, it is always unsafe to act upon a repudiated or retracted confession without corroboration; rarely does that happen and the courts invariably look for corroborative evidence in such cases. But our understanding of the law is that it is NOT illegal for a court to act upon a retracted and / or repudiated statement without corroboration. Where the court is alive to the need for corroboration but is nevertheless satisfied that the repudiated and / or retracted confession cannot be but true the court is perfectly entitled to act upon such a confession even in the absence of corroborative evidence. That is our understanding of the case of Tuwamoi v Uganda (1967) EA 84 and the subsequent line of authorities on the issue. In Tuwamoi’s case, the then Court of Appeal for East Africa having gone into a very detailed examination of the origin of the law in East Africa regarding retracted and repudiated or both retracted and repudiated confessions stated as follows at pg 91 letters F to H:-We would summarise the position thus – a trial court should accept any confession which has been retracted or repudiated or both retracted and repudiated with caution, and must before founding a conviction on such a confession be fully satisfied in all the circumstances of the case that the confession is true. The same standard of proof is required in all cases and usually a court will only act on the confession if corroborated in some material particular by independent evidence accepted by the court. But corroboration is not necessary in law and the court may act on a confession alone if it is fully satisfied after consider and all the material points and surrounding circumstances that the confession cannot be but true.”We are satisfied that is still the correct legal position in Kenya with regard to retracted or repudiated or both retracted and repudiated confessions.”

91. Since, principally, it is clearly unsafe to rely on retracted or repudiated statements, the first stop in the evidential process is to see whether the same is corroborated in material particulars. This means juxtaposing the evidence in the retracted/ repudiated confession against the other evidence available whether it be oral, expert, forensic or otherwise to see its convergence with the retracted /repudiated confession.

92. The aspects of the confessions that are consistently supported and corroborated are as follows: That the 3rd Accused called 1st Accused and then met him; that the 3rd Accused called her sister, the 4th Accused and took a loan of 40,000/-; that the said amount was paid through an Mpesa agent (PW10 Nyancendo Nduhiu) directly to the 1st Accused; that the 3rd Accused sent the 1st Accused a further 10,000/- ; that the 3rd Accused was arrested by police from Dagoretti Police station and taken to Naivasha Police station; That the 3rd Accused at least signed the repudiated confession; and that she was charged at Naivasha.

93. I had, in discussing the evidence of the 1st accused set out the differences between his statement and the 3rd accused confession.

94. I have also discussed the fact that the forensic evidence linking the deceased with the vehicle was all but non-existent; and that the Investigating Officer admitted that the connection between the vehicle and the deceased was the earrings alleged to be the deceased, but whose chain of custody cannot be verified as no photographs were taken of them at the time they were allegedly found. Thus, the probative value of the confession is rather underwhelming in terms of confirming that the deceased’s murder was occasioned by the 3rd accused.

95. Given all these gaping holes in the evidence, and given the requirement of extreme caution when dealing with confessions, I find it unsafe to conclude that the 3rd Accused’s confession implicates her in the murder of the deceased.

The case against the 4th Accused 96. The 4th Accused is alleged to have been a cog in the planning and financing of the murder. Her key role was the sending of Kshs 40,000/- to the 1st Accused. In her sworn statement, she said that the 3rd Accused called her for a loan. She was given the number to send it to. She sent it through ENEA Sacco by mpesa. She knew the 1st Accused as a caretaker. She was not sure of his number, but her sister, 3rd Accused, confirmed the money had reached the him.

97. In cross examination she was asked whether she had heard the evidence of the Magistrate who took the confession, and of Daniel Hamisi PW15 the Safaricom Legal Liaison Officer. She said she did. However, no follow up questions were asked by the DPP and the thread was left hanging. Except for the impugned and repudiated confession of the 3rd Accused and 1st Accused’s Statement under inquiry There was nothing in the prosecution evidence that connected her to, or implicated her in the murder.

Conclusions and Disposition 98. With regard to the 1st Accused it is unsafe to rely on the Statement of Inquiry for proof of the allegations against him that he planned and executed the murder. This court is not prepared to risk the liberty of the 1st accused on that retracted statement whose material contents cannot be otherwise corroborated.

99. With regard to the 2nd Accused there is no proof to the required high standards that he participated in the offence for which he is charged.

100. As for the 3rd Accused, given all the gaping holes in the evidence, and given the requirement of extreme caution when dealing with confessions, I find it unsafe to conclude that the 3rd Accused’s confession implicates her in the murder of the deceased.

101. There is no evidence whatsoever that discloses that Rose Mweri the 4th Accused, was involved in any scheme related to the murder of the deceased.

102. I thus find the 1st to 4th Accused are all not guilty of the offence charged, and hereby acquit each of them. They shall be set at liberty unless they are otherwise lawfully held.

103. Orders accordingly.

104. Sureties may be discharged.

DATED AT KERUGOYA THIS 30TH DAY OCTOBER, 2023R MWONGOJUDGERead out Virtually in the presence of:Accused 1 - 4 All Present in Court.Mr. Owour for All AccusedMr. Ndiema for State