https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11827

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYERI** **CRIMINAL CASE NO. 15 OF 2018** **REPUBLIC ...........…………………...…....................................PROSECUTION** **VERSUS** **ELIUD KANUMBI Alias NDERITU ...............................................1ST ACCUSED** **PATRICK NGATUNYI Alias NGATIA .......................................2ND ACCUSED** **DUNCAN NDEGWA MUKIRA .................................................3RD ACCUSED** **JUDGMENT** The three (3) accused persons are jointly 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 are that on the night of 13th and 14 October, 2018 along *Njigari Gitugi* road at *Njigari* village within Mathira West in Nyeri county in the Republic of Kenya, jointly murdered *Erick Nguri Gikunju*. The three (3) pleaded Not guilty to the charges and the case proceeded to full hearing and determination. The prosecution called eight (8) witnesses. **The Facts** *Solomon Kiragu Muchiri (PW1)* testified that on 14th October, 2018 got information that there was a body lying on the Lower ground near his home. He proceeded to the scene saw the body and turned it over and saw a slip of paper fall. Upon closer scrutiny he saw that it bore the names of *Nderitu Sammy* and *Ngatia*. He was not able to identify the body. *John Wachira Mwangi* (PW2) is a village elder. He testified that on the 14th day of October, 2018 he was called by PW1 who informed him that a body had been found lying on the road side. He proceeded to the scene and observed that the body bore marks on the neck and legs an indication that it had been tied with ropes. He was given the slip of paper which he handed to Benjamin Wanjiru Nderitu (PW3). The assistant chief (PW3) testified that he proceeded to the scene and saw the body of the deceased. He reported the matter to his area chief and police. He stated that he did receive a note from PW2 and information that the deceased had been spotted by members of public while in the company of accused No. 1 and 2. A boda boda rider David Njuguna (PW4) testified that he knows the three accused persons since their youth and that on 12th October, 2018 at 11.45am he was called by the 1st accused to meet him at Kaharu bridge so as to pick a customer and to drop him at *Iriani* tea factory gate. On 13th October, 2018 the 1st accused called him. At 10.00pm he took him to Aberdares forest through Kahuru junction. On the way he met Ngatia, Ndegwa and the deceased. He dropped them at the forest. He proceeded back to the shopping centre. After a duration of 20 minutes he saw the 1st accused running along the road. He asked him to take him to the shopping centre. The 1st accused later approached him wanting to be taken to *Giakanja* but he declined as it was already late. The following day he received information that a man was lying dead at the road side. Upon checking he identified him as the one he had given a lift together with the accused persons two days earlier. His hands and feet appeared to have been tied with a wire or rope. The investigating officer *Abraham Koech* (PW5) took fingerprints of the deceased for purposes of examination and identification. He was identified as *Erick Nguri Gikunju*. A postmortem was conducted on the body of the deceased and the cause of death was ascertained as asphyxia secondary to strangulation. He sought the examination of the note that was found on the body of the deceased. Dr. *Paul Kimathi* (PW6) conducted a postmortem examination on the body of the deceased and found the cause of death as asphyxia due to strangulation. The document examiner (PW7) conducted an analysis on the questionable handwriting ‘A1’ and B1 – B2 (specimen handwriting) and concluded that A1 and B1 were made by the same person accused No. 1. Safaricom Liason officer *Daniel Hamisi* (PW8) did receive a request from DCI Nyeri to provide Data on specific numbers. He produced a report which was to the effect that the numbers contained in the note found at the scene belonged to the accused persons No. 1, 2 and 3. In his defence the 1st accused did testify to know PW4 as a boda boda rider and that on the 12th October, 2018 he did call PW4 and instructed him to pick the 3rd accused who was a cattle trader to meet him at Karangi as they had agreed on buying a cow from him. The following day 13th October, 2018 he went to the local trading centre for a drink. He later went home. The following day he got information that there was a body of a man lying on the roadside. He did not know the man nor did he call him by phone to meet him. He denied to have written a note containing the phone numbers, names of the accused persons. The second accused testified that he is a farmer. One week before his arrest he had received information that there were threats on his life. He went and reported the mater to police. On 13th October, 2018, he went to the local shopping centre for drinks in the company of Njoroge and Michuki. They left for some time. At around 2.30am they returned while in the company of 1st accused. The following day he was called by one Solomon to the scene of murder. He told him that a note had been recovered bearing the names and telephone numbers of the other accused persons and himself. After one week they were arrested. It was alleged that they were dealing in the illegal trade of selling fake mercury. PW4 was alleging that he was in the company of the other accused persons on the night of 13th October, 2018. The 3rd accused in his testimony denied knowing the deceased but knew the 1st accused who was a timber man as well as a cattle trader. That on 12th October, 2018 he left Othaya and proceeded to *Ichingari*. He met the 1st accused and they had an agreement for purchase of one head of cattle. The 1st accused made arrangement and called a boda boda rider who took him to *Iriani* tea factory. PW4 was the boda boda rider. In the evening he went home. On 13th October, 2018 he proceeded to Othaya. That it is not true that he was in the company of the deceased on the day it is alleged. **Determination and Conclusion** The offence of murder is defined under section 203 of the penal code in the following manner; ‘Any person who of malice aforethought causes the death of another person by unlawful act or omission is guilty of murder’. Section 206 of the penal code defines malice aforethought thus; ‘Malice aforethought shall be deemed to be established by evidence proving any one of the following circumstances; 1. 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. 2. 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. 3. Intent to commit a felony. 4. 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’ The onus of proof in criminal cases is that beyond reasonable doubt. It always lies on the prosecution. In the case of *Anthony Ndegwa vs. Republic* (2014) eKLR The Court of Appeal identified three (3) crucial elements for proof in a case of murder namely; 1. The death of the deceased and the cause of death. 2. That the accused persons committed the unlawful act which caused the death of the deceased. 3. That the accused had malice aforethought. **Death of the Deceased** PW5 produced a postmortem report for the deceased *Erick Gikunju* which showed the death of deceased to have been caused by asphyxia secondary to strangulation. **Whether the accused persons committed the unlawful act causing the death**? PW1 acting on information received proceeded to a scene where a body was lying beside the road. This was on 14th October, 2018. He turned the body to check whether he could identify it and a slip of paper fell down. He was not able to identify the body. The slip of paper contained names and phone addresses. PW2 was called by PW1 on 14th October, 2018 and informed about the body lying beside the road. The piece of paper was handed over to him by PW1 and in return he handed it over to PW3 the local assistant chief. PW4 is the prosecution witness. He testified to have known all the three accused persons since their youth and that on the 12th October, 2018 he was called by the 1st accused to meet him at *Kaharu* bridge and pick a customer. He picked the customer and dropped him at *Iriani* tea factory gate. On 13th October, 2018 the 1st accused called and informed him that he would require his services later in the evening. At 10.00pm he picked the 1st accused who wanted to be taken to Aberdare forest through Kahuru junction. A few metres away he met the deceased in the company of Ngatia and Ndegwa and dropped them at the forest. Some twenty minutes later he saw the 1st accused running and panting. He asked to be taken to the shopping centre which he did. Later in the night he asked to be taken to *Giakanja* but the witness declined as it was late. The evidence before the court is purely circumstantial in nature. Nobody saw the deceased being killed. Nobody saw the three accused persons in the act that caused the death. The offence of murder is said to have been committed between the 13th and 14th October, 2018. The body of the deceased was discovered in the morning of 14th October, 2018. PW4’s evidence is that he ferried the deceased and the three (3) accused persons to the forest at around 10.00pm. It would be safe to assume PW4’s bike was a normal one because we are not told otherwise. How would it have ferried four (4) people plus himself making five (5) people. This creates doubts in the mind of the court as to the veracity of his evidence. The other evidence tending to link the accused persons with the offence of murder is the slip of paper found on the body. This piece of paper is said to have contained the names of the accused persons and their mobile phone numbers. The said piece of paper is alleged to have been authored by the 1st accused person. How that piece of paper found itself at the scene is not explained? It needs explanation because it is highly unlikely that an accused would want to incriminate himself in such a manner. Any other member of public had the opportunity to place the piece of paper at the scene. The only link with the accused person is that it bore their names and that it was found at the scene where body was lying. The evidence by the prosecution which is circumstantial in nature does not point irresistibly to the guilt of the accused persons. However, it does raise serious suspicions but as it was held in the case of *Sawe vs. Republic* (2003) eKLR ‘Suspicions however strong cannot form the basis of a conviction’. I am not satisfied that the prosecution has proved this case beyond reasonable doubts. I find the accused persons not guilty and acquit them accordingly of the offence of murder contrary to section 203 as read with section 204 of the penal code. **JUDGMENT READ** and **DELIVERED** virtuallythis 11th day of May, 2026. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **MARTIN M. MUYA** **JUDGE** **In the Presence of:** Miss Kaniu – For the State Kimunya – For the Accused Gathiye Mwangi – For 2nd Accused *Isacko -* Court Assistant