https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12015

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAJIADO** **CRIMINAL CASE NO. 16 OF 2020** **REPUBLIC………………………………………..………….….PROSECUTOR** **VERSUS** **ISSACK KAMAU KARIMI…………………..……….……………..ACCUSED** **RULING** 1. **Issac Kamau Karimi,** the Accused herein was charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars being that **on the night of 10th May, 2020 at Tumaini area within Ongata Rongai township, Kajiado North Sub County, Kajiado County, he murdered Abdi Rashid Salim Gikonyo.** 2. The Accused denied the charges and the matter proceeded to hearing, the prosecution calling 11 witnesses. At the close of the prosecution case, the court is called upon to determine whether the evidence tendered by the prosecution establishes a prima facie case to warrant the Accused being placed on his defence. 3. Section 306(2) of the Criminal Procedure Code provides that: **“When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.”** 1. The prosecution case was as follows. **Jackline Tsayo (PW1)** is the widow of the deceased.She testified that on the evening of 10th May 2020, the deceased returned home and was holding their baby while his phone was charging. The phone then rang showing the caller’s name as *Kadosi* (an apparent nickname), the Accused on speaker phone, who asked the deceased to join him for *‘’kufuturu”,* meaning breaking the fast, as it was during the Ramadhan period of fasting. The deceased subsequently left home but delayed in returning, making **PW1** anxious due to the COVID 19 curfew then in force and the fact that the deceased did not answer her repeated calls. When she eventually called the Accused to make inquiries, he insulted her. 2. At 8.00pm, the caretaker came to her house and called her outside to the parking area where she found the deceased weak, unable to walk, and complaining that *Kadosi* had given him juice laced with poison. The deceased was taken for emergency treatment at the local Kisima Health Centre but was referred to Kenyatta National Hospital, where his condition deteriorated despite treatment, and he eventually died on 14th May 2020. **PW1** reported the matter to the police. She identified the Accused in court as her husband's friend, and maintained that her husband consistently stated that the Accused had given him juice rather than milk. 3. During cross-examination, **PW1** reiterated that she directly heard the deceased mention *Kadosi* and denied knowledge regarding any dispute around operations of the local mosque. 4. According to **Joseph Maina Ndung'u (PW2),** a clinical officer at Kisima Diagnostic and Treatment Centre, he examined the deceased after being called from his house to the centre and upon questioning the deceased, he said a friend had given him juice which caused him weakness and suspected poison. The centre nurse had administered intravenous fluids because the deceased had vomited, but since the family could not afford to pay for the recommended head scan, he referred them to Kenyatta National Hospital for specialized treatment. 5. **Ibrahim Mwangi Gakunga,** the caretaker, testified as **PW3**. Stating that he worked as the caretaker of the plot where the deceased lived, **PW3** stated that on the material evening, he had locked up the premises early due to the COVID-19 curfew, when the deceased came knocking and on opening he found the deceased lying on the ground . He requested that he call his wife. **PW3** alerted **PW1** and with other neighbours, assisted the deceased to go up into his house, as he appeared weak, then left after his family members arrived. 6. **Hussein Salim Gikonyo (PW4)**, apparently a brother of the deceased, testified that he had attended prayers with the deceased earlier at 4:00pm before parting ways, only to be summoned to his house later by **PW1** who reported that the deceased had been poisoned. Alarmed, he proceeded to the house where the deceased who spoke with difficulty said his friend had poisoned him. He left for his house as the deceased wanted to rest, but was again summoned by **PW1** to Kisima Centre. 7. The deceased stated at the time that, if he died, it was because *Kadosi*, his friend, had given him juice that was poisoned; that the nurse also summoned *Kadosi*, whom the witness identified as the Accused and on being questioned, the Accused said he had given milk to the deceased not juice, became agitated and left the centre. The witness also visited the deceased at Kenyatta National Hospital where the deceased had been referred on the next day but eventually died. 8. The witness denied the existence of a dispute regarding the management of the local mosque saying his father who had recently died had donated land on which the mosque was built. 9. **Yasin Salim Gikonyo (PW5)** testified that he accompanied his brother **PW4** to the house of the deceased after receiving news that he was unwell and also heard him say that the Accused had poisoned him. He identified his body subsequently during the post mortem examination. 10. **Cpl. Tabitha Kamuri (PW6)** attached to Kiserian Police Station was on duty at the station when on 13th May 2020, **PW1** reported that the deceased who had allegedly been poisoned by a friend, was admitted at Kenyatta National Hospital. She accompanied the reportee and on arrival at the said hospital, the witness found the deceased who, despite having difficulty speaking, was able to record a statement (**Exh. 2a & 2b)** in the presence of **PW1** and his brothers. Stating that on 10.05.2020 the Accused, Isaac *Kadosi*, had given him a bottle of juice during Ramadhan prayers and that shortly afterwards he became weak, collapsed, and had to be assisted home before being taken to Kisima Centre and later Kenyatta National Hospital. During cross-examination, she acknowledged that the deceased was conscious and able to communicate; that he did not mention poison, only that he was given juice which upon consuming he felt weak. 11. **Stephen Mnangat Tukei (PW7)** a Government Analyst with expertise in forensic toxicology testified that he received several exhibits, including blood sample, stomach contents, liver, kidney, urine sample, bile sample, and gall bladder samples collected from the deceased during the post-mortem examination and was requested to conduct an analysis. Using standard forensic techniques, including gas chromatography-mass spectrometry, ultraviolet-visible spectrophotometry and thin-layer chromatography, he analysed the samples and detected in the stomach and liver the presence of methyl carbamate, an organophosphate insecticide that is poisonous to humans. 12. He explained that methyl carbamate is an agricultural pesticide and is not a substance naturally found in food or fruit juice. According to his expert opinion, the poison detected in the deceased's organs was consistent with poisoning by ingestion. He produced his report as **Exh.4** and identified the accompanying exhibit memo as **MFI3.** 13. During cross-examination, **PW7** explained the scientific procedures followed in handling and analysing the samples, confirmed that proper chain of custody had been maintained, and stated that although the poison may not remain detectable indefinitely because it degrades over time, the laboratory results clearly established its presence in the identified specimens; that if untreated the ingestion of the pesticide can kill in 3 days; that while ingestion was lethal if no antidote was administered, inhalation of the substance caused minor symptoms whereas the pesticide cannot be absorbed via the skin. He affirmed his findings as reliable and prepared in accordance with accepted forensic laboratory standards. 14. **Dr. Edwin Wekesa (PW8)** a consultant pathologist and lecturer at Maseno University, performed the post-mortem examination on the deceased at Kenyatta National Hospital on 15th May 2020. His findings were as follows. Externally, the body showed no signs of injury, while internally he found a blood clot within the middle cerebral artery of the brain accompanied by severe inflammation. Tissue samples and body organs were submitted for histopathological and toxicological examination. After reviewing the hospital laboratory reports, he concluded that the deceased died from an acute ischaemic stroke caused by blockage of the cerebral artery resulting from severe inflammation. 15. He explained that although toxicological analysis confirmed the presence of poison in the deceased's body, the medical evidence did not establish that poison directly induced the stroke. In his opinion, the extensive inflammation could also have been associated with conditions such as COVID-19 or other diseases capable of producing severe inflammatory changes. He produced his reports as **Exh. 1a and b.** 16. Under cross-examination, he maintained that while poisoning was scientifically confirmed, there was insufficient pathological evidence to conclude that it caused the fatal stroke, noting that organ damage typically associated with acute organophosphate poisoning was absent. He therefore stood by his conclusion that the immediate cause of death was an acute ischaemic stroke rather than poisoning. 17. An Imam at the Ongata Rongai mosque, **Kassim Musimi Mukuta** (**PW9**) testified as follows. That he succeeded his brother as imam at the Ongata Rongai mosque and was working there in 2020 upon recommendation by the deceased’s father who was the chair of the mosque committees and on his death, the mosque committee recommended his son, the deceased herein to succeed him as chair of the mosque committee and madrassa teacher. A day before the material incident the witness and deceased had discussed his nomination as chair of mosque committee and when he learned of the incident he went to visit the deceased in hospital (Kisima Health Centre). 18. There, he heard the deceased say that *Kadosi* (Accused) had poisoned him and that he witnessed **PW1** confront the Accused asking why he had poisoned her husband, which the Accused disputed and following an exchange, left while crying. The witness later learned of the death of the deceased. He said that at the time, two groups were contesting the leadership of the mosque but the Accused was not one of them. Nor was he a member of his mosque. 19. During cross-examination, he stated that he was unaware of the ownership of the land on which the mosque stood and maintained that although there were leadership wrangles in the mosque, the Accused was not involved, not being a member of his mosque, and that during his visit, he never personally heard the deceased repeat the accusation by **PW1** that the Accused had poisoned him. 20. **Sgt. Rebecca Nasimiyu Baraza (PW10)** testified that she took over investigations from the initial investigating officer. She visited the scene, reviewed the post-mortem findings, recorded additional witness statements, and analysed the available evidence. Her investigations established that the deceased consistently reported that he became ill after consuming juice allegedly given to him by the Accused outside the mosque. The witness also escorted samples collected by the pathologist to the Government Analyst vide exhibit memo **EXh3.** 21. She subsequently obtained the Government Chemist's toxicology report confirming the presence of pesticide poison in the deceased's body and, based on the witness statements, concluded that there was sufficient evidence to charge the Accused with murder. **PW10** also investigated the relationship between the deceased and the Accused and established that there had been rivalry concerning the leadership of the mosque after the death of the deceased's father, the previous chairman. 22. During cross-examination, she acknowledged that the alleged bottle of juice was never recovered and therefore was not subjected to forensic analysis; that she did not inquire into whether the Accused was a member of the mosque at Ongata Rongai, that the autopsy was inconclusive, and that while there was no direct eyewitness who actually saw the accused administer poison to the deceased, there were call records indicating communication between the two men on the material date. Further, her conclusions were based on the deceased's dying declaration, witness accounts, forensic reports, and communication records. 23. **Ambrose Mundole (PW11)** a data analyst at **Safaricom** testified that acting on formal requests from the Directorate of Criminal Investigations and subsequent court orders, he extracted and analysed call data records relating to the mobile phone numbers used by the deceased **line no. 0723206976** and the Accused using **line no. 0729628590** between 1st May 2020 and 25.05.2020 . 24. His analysis showed that there were several telephone communications between the two numbers on the day of the incident, including calls lasting approximately 24 seconds and additional calls later that evening. He also produced cell site analysis indicating that the phones were connected to the same base station within the Ongata Rongai area during the relevant period. The data and reports as well as court order were produced as **Exh. 5A, B, 6, 7 and 8** respectively. 25. **PW11** explained that while the data demonstrated communication and placed both phones within the same geographical coverage area, cell site information could not prove that the two individuals were physically together because one base station may serve a relatively wide area and multiple users simultaneously. 26. During cross-examination, he confirmed that the data was lawfully obtained pursuant to court orders and official requests and reaffirmed the accuracy and authenticity of the call data records that he produced as exhibits. 27. From the foregoing evidence, there is no dispute that the deceased died some five days after the incident on 10.05.2020, while undergoing treatment at Kenyatta National Teaching and Referral Hospital. According to the pathologist, **PW8** the deceased died from an acute ischaemic stroke due to a clot in the brain vessel accompanied by severe inflammation. On his part, **PW7**, the Government Analyst, stated that toxicological analysis of the deceased’s stomach, contents and liver detected the ingestion of methyl carbamate, an organophosphate insecticide, in the deceased's body. Although **PW8** opined that the pathological findings did not conclusively establish that the poison directly caused the stroke, he acknowledged that poisoning was scientifically confirmed. 28. The prosecution also adduced evidence linking the Accused to the events preceding the deceased's health condition that rendered him weak and unable to walk unaided as described by **PW1** and **PW3** inter alia. **PW1, PW4, PW5** and **PW6** reiterated the dying declaration by the deceased to the effect that the Accused had given him juice in the course of *"kufuturu"* and shortly thereafter had become weak. 29. The statement made by the deceased to **PW6** while admitted in hospital was produced in evidence. Further, **PW4** testified that when the Accused visited the hospital, he initially stated that he had given the deceased milk, whereupon the deceased corrected him and insisted that it had been juice. **PW11**'s call data evidence further established communication between the deceased and the Accused on the material day and placed their mobile phones within the same geographical area. 30. In the case **of Wibiro alias Musa V. Republic (1960) E.A. 184** the Court of Appeal for East Africa defined the term “prima facie case” as follows: - **“By his use of the phrase “prima facie case” the learned judge has left this court in doubt as to his precise meaning. It is a phrase more commonly used at the close of the prosecution’s case than at the end of the whole case at which stage the only question is whether the prosecution has proved its case, on the whole of the evidence, beyond reasonable doubt. The question of what constitutes a prima facie case was dealt with by this court in 1957 in the case of Ramanlal Trambklal Bhatt V. R. (1957) EA 332 (E.A.) and the following passage was taken from the judgment of the court at [age 334 and p. 335:-** ***“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction. “This is perilously near suggesting that the court would not be prepared to convict if no defence is made; but rather hopes the defence will fill the gaps in the prosecution case. “Nor can we agree that the question whether there is a case to answer depends only on whether there is ‘some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence. “A mere scintilla of evidence can never be enough; nor can any amount of worthless discredited evidence. It is true as WILSON J, said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively; that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.” (Emphasis added)*** 1. Having carefully considered the evidence on record and applying the principles set out in **Bhatt v Republic [1957] EA 332**, I am satisfied that the prosecution has established a prima facie case against the Accused person sufficient to require him to be placed on his defence pursuant to Section 306(2) of the Criminal Procedure Code. 2. Accordingly, the court finds that the Accused person has a case to answer and will hereby place him on his defence. **DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 28TH DAY OF JULY 2026** **** **C.MEOLI** **JUDGE** **In the presence of:** **Ms. Kihumba for the State** **Ms. Wairimu h/b for Mr. Kiama for the Accused** **Accused: Present** **C/A: Lepatei**