https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10493

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MARSABIT** **CRIMINAL CASE NO. E003 OF 2024** **REPUBLIC……………………………………………..……PROSECUTOR** **VERSUS** **FRANCIS MBURU KAMAU………………………....………. ACCUSED** **JUDGEMENT** 1. **INTRODUCTION** 2. The accused person was charged with the offence of murder contrary to **section 203 as read with section 204 of the Penal Code (Cap 63)** of the Laws of Kenya. The particulars of the offence were that on the 19th day of February, 2024 at Danaba location in Wajir North Sub County within Wajir County, he murdered **JOHN NJUE WANGARI.** 3. The accused person was arraigned before court and took plea on 10th April 2024. He denied the charge faced and pleaded not guilty. The case proceeded to full trial with the prosecution calling twelve (12) witnesses in support of their case. **(B)** **PROSECUTION CASE** 1. PW1 Abdulrahim Sheikh Osman testified and confirmed that he was a resident of Danaba village situated within Wajir North Sub – county, where he managed a hardware and guest house business. He recalled that on 19.02.2024, at about 7.00am, he went to open the hardware business, and found the night watchman, one Abdikadir, who informed him that two guests had checked into the guest house at night and paid Kshs 1,000/=,which he handed over to him. Further the said watchman had handed over to him a piece of paper, where he had noted down the names and identity card number of the two visitors, who turned out to be the accused person and the deceased herein. 2. He proceeded with his business at the hardware, but at around 10.30am, the cleaning lady came and told him that she had severally knocked on the door to room 1, but the occupants were not responding and requested for his intervention. He too went to check on the situation and when they failed to get any response, he went round and checked through the window, and was shocked to see a person hanging, with a bedsheet tied to the neck and the timber used to hang the Mosquito net. He called the area chief, and also reported the incident at Danaba police station, and they in turn called the DCI from Bute police station, who came and processed the scene of crime. 3. The watchman too was summoned and he confirmed that the deceased was amongst the two guests who had checked in the previous night, and he also observed that a bed had been pushed against the door, which made it difficult for the said door to be to open. Under cross examination, he reiterated his earlier evidence and confirmed that the deceased body was hanging with the bedsheet tied to the frame used to hang the Mosquito net, while both his legs were touching the floor. He also observed that the body did not have any physical injury nor was there any blood spilt on the floor. 4. PW1 further clarified that the watchman had given him a piece of paper, where the names and national identity card numbers of both visitors had been recorded and when he arrived at work the following morning, he had proceeded and inserted the same details into the hotel register. 5. PW2 Abdikadir Abdilahi, stated that the was employed as a watchman at Nurow Guest house situated at Danaba town, and recalled that on 18.02.2024, at about 10.00pm, he was on duty, when he received two guests who wanted a place to spend the night. He requested for their identity cards and asked a person, who had come for prayers to jot down their details on a piece of paper since he was not literate. He also clarified that the guest house had a prayer room, where guests and non-guest could pray. Both visitors paid Kshs 500/= each, and he then directed them to Room 1 therein, which had three beds and left them settling in. The night was uneventful and the following morning at 7.00am he handed over the cash and piece of paper, where they had noted the customers names to PW1, and he retired to go sleep. 6. At about 11.00am, the manager called him and informed him of what had occurred and he rushed back to the hotel and confirmed that indeed one of the persons, who had checked in at night had passed on. Under cross examination, he confirmed that on the material night they did not receive any other visitors, other than the two and he did not encounter any commotion and/or problem that night. He also did not see anybody other than the two come in or go out of the said lodging, which had a stone wall around it, a small back gate at the back which was always locked and the main gate. 7. PW3 Quaresah Abdulahi Ibrahim, also confirmed that she worked at the guest house as a cleaner and recalled that on the material day, she had reported to work at 9.00am and started to clean the rooms. At about 11.00am, she did knock on the door to Room 1, but did not get any response, which prompted her to inform PW1. Together they went back and despite incessantly knocking on the said door, they did not get any response. PW1, then decided to go round and checked through the window, and discovered the tragedy that had unfolded. Under cross examination she reiterated her evidence and further confirmed that there was a bed pushed against the door, which blocked access to the said room. 8. PW4 Anna Wanjiku Nyaguthii, recalled that on 19.02.2024 at about 4.00pm, she was on her way to Nairobi from Eldoret, when she was called by her neighbours and told of the unfortunate news, which had been relied to them by the OCPD- Moyale. she proceeded to call him, and after being briefed, he sent her a copy of the deceased identity card and video of the murder scene, which she viewed and confirmed that indeed the deceased was her brother. The following day, they organized and had the deceased body transported to Ishiara Hospital in Embu, and later had the post mortem carried out on 26.02.2024. 9. PW5 Ali Abdirahman Abdi, testified and stated that he was a businessman residing with Danaba- Wajir and operated a motor cycle spare parts shop and garage thereat. He recalled that on 16.02.2024, while in Nairobi to buy spare parts for his shop, he met one Njoroge at the said shop and struck a conversation with him, which ended with him asking his new found acquittance, if he could get a mechanic willing to work at his garage at Danaba. They exchanged phone numbers and later as he left Nairobi, he called the said Njoroge, who was already at Chaka town-Nyeri, where upon arrival later in the evening they met at his shop, and he introduced him to two Mechanic’s, one for wiring and the other for engine repair. 10. They negotiated, what the two considered as fair wage, and before they left, Njoroge asked him to also give both of them Kshs 4,000/= each, which they could leave behind to support their immediate families.They thereafter proceeded onward with their journey to Danaba and arrived the following day at about 2.00 pm. The first day at work for the two was productive and they managed to collect Kshs 4,800/= which he asked them to share, but was surprised when on 19.02.2024, at about 1.00pm, was informed that one of the Mechanics he had come with had hanged himself at a lodging belonging to Mohammed Nuro. 11. He proceeded to the scene and confirmed the said incident and asked PW2, where the other Mechanic was, and he confirmed that he had not seen him after they had checked in together with the deceased. He then called Njoroge and passed the sad new and also informed him that the accused too had gone underground. He further identified the accused as one of the Mechanics he had employed. Under cross examination he confirmed that he had not noted any enmity between the two for the period they stayed together and did not know of the circumstance that led to the deceased death. 12. PW6 Sergeant Samuel Maru of Chaka Police post, confirmed that on 25.02.2024, he was on duty with Constable Ouma at Chaka Police station, when he received a distress call to go rescue the accused person, who was being subjected to Mob justice on suspicion that he had a hand in the deceased death. He acted quickly and proceeded to “Locosta Bar”, where he found the accused locked therein to prevent further injuries and proceeded to arrest him and took him to the police station and he was later escorted to Naru-moru police station, where the case was taken over by the DCI. PW7 PC Moses Ouma too reaffirmed this evidence. 13. PW8 PC Kelvin Kimani, stationed at DCI, Bute police station, recalled that he was on duty on 19.02.2024 at about 10.30am, when he was informed by his boss PW10, that they needed to visit a murder scene at Danaba town, where the deceased body had been discovered at Noor guest house. They arrived at the scene at about 1300hrs and found the deceased hanging from a Mosquito net holder, attached to one of the 3 beds in the said room. They processed the scene and had the body transferred to Ishiara hospital mortuary for preservation. On 25.02.2024, they received information from Chaka police station that the accused had been arrested and liaised with DCI Narumoru to get detention order from Nyanuki law courts. 14. On 26.02.2024 post mortem was done and it was established that the deceased had been strangled. On 04.03.2024, they went and picked the accused person and after completing their investigations had him charged in court with the said offence. He also confirmed that during his investigations, he did interrogate the accused person, and he had failed to give a proper account of his movements on the material night and had also given conflicting explanation regarding the events leading to the murder. 15. Under cross examination PW8 confirmed that he assisted Sergeant Busolo (PW10), who was the lead investigator and when they visited the scene, he observed that the door of the guesthouse room where the deceased body was found was partially block by a bed and that the said room had two doors, one big door and a small door. He believed that the person who left the room had pulled the bed to block the door and left through the small door, but that was his perspective, not supported by any eye witness evidence. Also, from his observation of the crime scene, the deceased had died with his hands loosely resting by the side, had not struggled since the bedsheet on the bed was intact and his feet were touching the ground, which position was inconsistent with the suicide theory put forth. His observation too, was supported by post mortem examination, which revealed that the deceased was strangled. 16. PW8 also revealed that when he was interrogating the accused person, he mentioned that the deceased had used all his money, and that he was maintaining him and paying for his daily needs. On the material day, they had been paid by PW5 and the accused expected to have his money refunded. Accordingly, that could have been the genesis of the dispute that led to the murder. The accused had also taken off immediately the incident occurred and that pointed towards his guilt. 17. PW9 Amina Godana Galgalo, confirmed that she was the Area Assistant chief of Odda sub location and recalled that on 19.02.2024 at about 2.00pm, a bodaboda rider brought the accused person to her after being directed to do so by a military officer, who had found him loitering near Taari Military camp. She did attempt to interrogate him but since he was not fluent in Kiswahili, she decided to take him to Odda police station, where she got a police officer fluent in Kikuyu language to interrogate him. He confided in them that he was from Chaka village in Nyeri and wanted to go back home. She also noted that, when she was alone with the accused, he was feigning that he could not speak, but in the presence of the said police officer, he spoke fluently. 18. She thereafter took the accused person to Moyale police station, and left him under their custody. Later she was called from the said station and injformed that the accused had committed a crime and was on the run. She identified the accused on the dock as the person, she had assisted. 19. PW10 PC Davis Arika confirmed that at the time of the incident, he was stationed at Danaba police station and was on duty, when PW1 reported the murder incident. Together with his colleagues, they proceeded to the guest house and found the door to the room partially closed and realized that a bed had been placed across the said door to block access into the said room. They pushed the door and when they got enough room, one person squeezed through and they managed to get access to the said room. He observed that the room had three beds and one bed had been used to block the door. Also, they found the deceased hanging using a bedsheet tied to a wooden plank used to hold up the Mosquito net, but his foot still touched the ground. 20. His OCS, then informed DCI officers stationed at Bute police station, who arrived at the scene at about 2.00pm and proceeded to process the same. He also confirmed on 18.02.2024 at about 7.00pm, he seen the accused person at Danaba police station, canteen, where he had come to buy beer and three cigarettes. Under cross examination he confirmed he was the one who booked the incident on the occurrence book and rehashed his earlier evidence regarding the scene of crime, which did not look disturbed nor did they notice any sign of a struggle therein. 21. PW11 Dr Ann Rose Njagi, confirmed that she performed the autopsy examination on the deceased on 26.02.2024 and noted that externally, he did not have any significant injury, but the bedsheet was still tied on his neck. Internally the cardiovascular system and spinal code was normal and concluded that the cause of death was asphyxia (lack of oxygen to the body) caused by strangulation on the neck. Further she was shown photographs of the scene of crime and looking at the body position, she concluded that in her opinion, it was not self-strangulation. 22. Under cross examination, she reaffirmed that she did not see any sign of struggle or lacerations on the deceased body, though the neck had a deep ligature- mark. PW12 Sergeant Geoffrey Busolo evidence mirrored that of PW9 regarding the scene visit and action taken while investigating this matter. When the accused re-emerged at Chaka town on 25.02.2025 he was arrested by members of the public and taken to Chaka police station, who in turn informed them and they later went and picked him up. He produced the exhibits collected and further stated that based on their investigations and the accused inconsistent explanation when asked to account for his movement, they did conclude that he had a hand in the murder that occurred and therefore charged him with the offence before court. 23. Under cross examination PW12 confirmed that they did not establish the motive of the murder, but suspected that the two had disagreed over money they had been paid by PW5 on the material evening. The accused had also run away immediately after the incident had occurred and as the last person seen with the deceased had to explain what he knew about the said incident. He had also obtained the hotel register from PW1 and believed that the records contained therein were accurate. He also reiterated that he did not observe any physical injury to the deceased body and that the room where the said body was found too did not appear to be disturbed. 24. The prosecution closed their case at that point and the accused was placed on his defence and opted to give sworn evidence. **C**. **DEFENCE CASE** 1. The accused gave sworn evidence and testified that he was a mechanic by profession and resided at Chaka town within Nyeri County. He recalled that on 16.02.2024, he was at his garage, when his friend Njuguna called him and requested him to consider working for a businessman based in Wajir County, since a good remuneration package was offered. The said Njuguna, also mentioned to him that he had already talked to the deceased and he had accepted a similar offer. 2. Later in the day, they met PW5, who was the person they were to work for and after discussions he gave both of them Kshs 2000/= each, which they left for their families to survive on, as they embarked on the journey to their new work station. They left Chaka town at 5.00pm and arrived at Moyale the following morning at about 3.00am. They took a break and later left for Wajir at about 5.00pm and reached Danaba about I hour later, where PW5 got them a guest house where they could rest. 3. The following day they reported to work, and during the day, he was asked to go rescue a client, who was stuck on the road, and was provided with a rescue motorbike to aid his movement. When he later came back, he found the deceased in gloomy mood and proceeded to inquire from him what the issue was. The deceased told him that he did not feel safe in the said work environment as his life had been threatened by 3 co-workers. They talked to PW5 and raised their concerns, but he brushed them off and told them that it was his garage and had the final say on all issues arising therein, thus should not feel threatened. 4. After considering the prevailing circumstances, he opted to leave immediately, without his toolbox and neither did he tell PW5 and/or the deceased. He looked for the first car headed towards Moyale and was lucky to find a public service vehicle headed in the said direction. He was dropped at a small town known as Odda, which had a army camp, and he decided to seek temporary shelter thereat. The sentries gave him food and water, and also gave him a phone, which he used to call his Aunty and explained to her his plight. The said officer also directed him to report to the local chief (PW9), who also listen to him and took him to Moyale police station. 5. It was his further evidence that, after explaining himself to the OCS Moyale police station, he was released and he got a lorry driver, who gave him a lift upto Chaka town, where he decided to go catch a drink at “Lacosta Bar,” but immediately members of the public noticed his presence, they started to assault him, while demanding for an explanation as to his involvement in the deceased death. He was rescued by the local police and denied having a hand in the untimely death that occurred. 6. He reiterated that the deceased was his childhood friend, and that they had no differences and/or running grudge to resolve and thus he had no reason to harm him. He also insisted that on the material night he never slept with the deceased at the lodging and only got to know of his death when he arrived back home at Chaka. He thus urged the court to acquit him of the murder charge faced. Under cross examination he reaffirmed his earlier evidence regarding the work place tension that arose due to their arrival and insisted that he left Danaba on 18.02.2024 at 5.00pm, which was the last time he set his eyes upon the deceased, who had refused to leave. 7. He also clarified that in his statement made under inquiry to PW10, he had stated that, when he arrived back at the workshop on 18.02.2024, in the evening after rescuing a client, he found the deceased and PW5 haggling over pay and had left them, went to the police canteen, where he drank Alcohol and woke up the following morning in the bush. He insisted that version of events was not true and that he did not make any such statement to PW10. 8. The accused person closed his case at that point and opted not to call any witness. **D. DETERMINATION** 1. I have considered the evidence and submissions on record, and the question that arises before this court is whether the prosecution has proved beyond reasonable doubt that the accused person herein participated in the murder of ***JOHN NJUE WANGARI*** the deceased herein. 2. **Section 203 of the** [**Penal Code**](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1948/81) defines the offence of murder as follows: *“****Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”*** 1. The Court of Appeal at Nyeri in **Criminal Appeal No. 352 of 2012 Anthony Ndegwa Ngari vs. Republic [2014] eKLR**, summed up the elements of the offence of murder as follows: - 1. ***the death of the deceased and its cause;*** 2. ***that the accused committed the unlawful act which caused the death of the deceased; and*** 3. ***that the accused had malice aforethought.*** 2. ***The death of the deceased and its cause.*** 3. It is common ground that **John Njue Wangari**, died on the early morning hours of 19.10.2020 as a result of being strangled. This was confirmed by all the witnesses and especially by the evidence of Dr Ann Rose Njagi (PW 11), the pathologist who conducted the post mortem on 26.02.2024, and formed the opinion that the cause of death was asphyxia due to strangulation, but that it was not self-strangulation/suicide. The post mortem report was produced into evidence as Exhibit 3. 4. This court therefore finds as a fact that the deceased died as a result of the said asphyxia as enumerated above. 5. ***Whether it has been proved that the accused committed the unlawful act which caused the death of the deceased:*** 6. PW2 confirmed that the accused and the deceased checked in together at the guest house on 18.02.2024, at about 10.00pm and gave him their national identity card, which details he recorded on a piece of paper and handed over to the manager (PW1), the following morning. He identified the accused person as the person who was with the deceased and further stated that on the material night, they did not receive other guests. 7. PW3, got suspicious, when the occupants of Room 1 did not respond to her, incessant knocks on their door, and informed PW1, who after failing to get any response, went round and looked through the window, only to discover the deceased body hanging by the bedsheet tied to his neck and on a wooden plank used to hold the Mosquito net. Under cross examination, he confirmed that though he did not see any physical injuries on the deceased body, “***both of his legs were touching the floor of the room***”. PW8, PW10 and PW12, all police officers who visited the scene, confirmed this fact. 8. The accused person on his part stated that the deceased was his childhood friend and pointed out to the fact that he did not have any grudge or ill motive as against the deceased, which would lead to him harming the deceased. On 18.02.2024, they had discussed about their personal safety and he had opted to take off immediately, leaving behind his toolbox with PW5 as he felt that their life was in danger. He proceeded to board a PSV headed to Moyale, but was dropped at Odda, and went to the Army camp to seek assistance. He was then referred to PW9, who took him to Moyale police station. 9. After explaining himself to the OCS -Moyale police station, he was released and got a good Samaritan, lorry driver, who gave him a lift to Chaka town-Nyeri, where members of the public arrested him and handed him over to the police. He reiterated that on the material night, he did not spend at the guest house, where the deceased body was recovered and thus urged the court to acquit him of the charge faced. 10. From the evidence adduced, nobody saw the accused harm the deceased but the circumstantial evidence gathered laid a strong basis to support an inference of his involvement in the said crime. The prosecution evidence was therefore circumstantial but, where the said evidence meets the legal threshold, it may well be a basis for finding the accused person culpable of the offence charged. See **Neema Mwandoro Ndurya v. R [2008] eKLR**, where the Court of Appeal cited with approval the case of **R vs. Taylor Weaver and Donovan (1928) 21 Cr. App. R 20** where the court stated that: ***“Circumstantial evidence is often said to be the best evidence. It is the evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”*** 1. In **Sawe –vs- Rep** **[2003] KLR 364,** the Court of Appeal, discussing the said issue did hold that; ***“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt; Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on; The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.”*** 1. Also in **Ahamad Abolfathi Mohammed and Another v Republic [2018] e KLR,**the same court further stated as follows, where reliance was placed on circumstantial evidence: **“However, it is a truism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -** **“It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”** 1. Back to the facts herein, though the accused person denied being with the deceased on the material night, he was positively identified by PW2, as the person who was the deceased room mate on the material night and vanished without trace, leaving behind a dead body. It was also not a coincidence that his name and identity card details were captured in the piece of paper PW2 handed over to PW1, who subsequently entered the details in the hotel register. It is also to be noted that PW2 and the accused were not known to each other and he would not have had access to the accused national identity card details, had the accused and the deceased not checked into the said guest house on the material night at about 10.00pm. 2. Secondly, even though the accused person alleged that he took off immediately he felt that his life was in danger on the evening 18.02.2024, he was seen and positively identified by PW10, who served him at Danaba police canteen, where he bought beer and three cigarettes on the material evening at about 7.00pm. This evidence corroborates that of PW5, who stated that he allowed both the accused person and the deceased to share **Kshs 4,800/=** being business profit made on the material day and thus issue of him leaving Danaba in a rush does not arise. 49. As the last person seen with the deceased person, and ought to have then given a plausible explanation regarding what he knew about the said incident and/or place exculpatory evidence before court to exonerated himself. The doctrine of last seen alive is based on circumstantial evidence where the law prescribes that the person last seen with the deceased before his death was responsible for his death and the accused is therefore expected to provide any explanation as to what happened. Having been placed at the scene of the incident as the person who was last seen with the deceased before he died, 50. In the Nigerian case of **Stephen Haruna v The Attorney-General of The Federation (2010) 1 iLAW/CA/A/86/C/2009** the court opined thus: "***The doctrine of "last seen" means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstance. In the absence of a satisfactory explanation, a trial court and an appellate court will be justified in drawing the inference that the accused person killed the deceased.”*** 51. **Sections 111(1) and 119 of the Evidence Act** anchors this principal and provides that : **“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 prosecuting, 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.”** **“119. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”** 1. In the circumstances of this case, the accused person failed to explain, what might have occurred on the material night and gave contradictory statements to the investigating officers PW8 and PW12, when pressed to explain what transpired. Also, when he was taken to PW9, he pretended not to be able to communicate, but to her surprise the accused miraculously could talk in Kisiwahili and explain himself once taken to Odda police station. It is my view that the accused person failed to offer any explanation as to how the deceased might have met his death. His defense, in my mind, was hollow, amounted to a mere denial, and was full of actual lies deliberately advance to mislead court as to what might have occurred. 2. Thus, in conclusion, when all the evidence presented is considered, the veracity of the prosecution evidence forms a complete chain of events that unerringly points at the accused as the guilty party who had a hand in the murder of “***JOHN NJUE WANGARI”*** and leads to the inescapable conclusion that within all human probability, the murder which occurred was without doubt committed by him. 3. **Malice Aforethought** 4. Having found that the prosecution has proved **actus reus**, the other issue for determination is whether malice aforethought can be inferred from the prosecution's evidence presented. The offence of murder is complete when “**malice aforethought**” is established. **Section 206** of the **Penal Code**, provides that: ***“(a)******an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;*** ***(b)******Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;*** ***(c)******An intent to commit a felony;*** ***(d)******An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”*** 1. It is sufficient to say that the mental element required by **section 206 of the Penal Code** can be equated to broad guidelines set out in the case of **Tubere s/o Ochen vs. Republic [1945] 12 EACA 63:** “***The weapon in possession of the accused while carrying out the intention, the manner in which it was used to strike the human being whether one off blow or violent multiple blows, the conduct of the accused in fleeing from the scene afterwards, the permanency or dangerous severity of the bodily harm and that cumulatively the death of the deceased must ensue from the bodily harm intentionally inflicted.”*** 1. In assessing the weight to be given to intention as an element of murder, the relevant circumstances must be considered as to whether the appellant foresaw the real or substantial risk and the consequences of targeting the part of the body that may result in the fatal injuries suffered by the deceased. A similar statement of Law was made in the persuasive authority of **S. vs. Sigwahla 1967 4 SA 566** in which the court stated: ***“The expression intention to kill does not in Law, necessarily require that the accused should have applied his will to compassing the death of the deceased. It is sufficient if the accused subjectively foresaw the possibility of his act causing death and was reckless of such a result. This form of intention is known as a dolus eventualis as distinct from dolus directus.”*** 1. The deceased was strangled and died as a result of asphyxia (lack of oxygen in the body). PW11, who performed the autopsy confirmed that the strangulation was not self-inflicted and PW3, PW8, PW10 and PW12 also confirmed that the deceased feet were touching the floor, though he was hanged by his neck using a bedsheet, tied to a wooden plank used to hold the Mosquito net. It is obvious that he must have been placed in the said position by someone, who wanted to cover his tracks and that person, must be the accused person, who slept in the same room with the deceased and fled before sunlight. 2. From the above analysis of the injury inflicted, it is clear that the accused did not have any other intention other than to inflict grievous harm upon the deceased. It is my finding that the accused person knew or ought to have known that his action would result in death, and it can be safely inferred from the nature of injury inflicted on the deceased that the accused person's action was premeditated. 3. In the circumstances I am persuaded beyond reasonable doubt that the prosecution has proved their case and specifically the presence of malice aforethought on the part of the accused too has been proved. **E. DISPOSITION** 1. Accordingly, it is my finding and holding that the prosecution has proved all the ingredients of the Information of murder against the subject herein, **FRANCIS MBURU KAMAU** beyond reasonable doubt and convicted her accordingly under section 215 of the Criminal Procedure Code. 2. Sentencing will await the filing of a pre-sentence report by the probation and aftercare services department, within the next 21 days. 3. It is so Ordered. **Judgment, signed at KIAMBU this 15th day of JULY, 2026.** **FRANCIS RAYOLA OLEL** **JUDGE** **Judgment read and delivered in open court on this 15th day of JULY 2026.** **In the presence of:-** Present in court ……………………………..Accused Mr. Mburugu ………………………….For O.D.P.P Jarso ……………………….Court Assistant