https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7776

Republic v Kariuki (Criminal Case E008 of 2021) [2026] KEHC 7776 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7776 (KLR) Republic of Kenya In the High Court at Machakos Criminal Case E008 of 2021 RC Rutto, J June 4, 2026 Between Republic Prosecutor and Victor Karugu Kariuki Accused Judgment 1.The accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. From the Information filed in court, the particulars of the offence are that on the 4th day of April, 2021, at Veterinary Farm within Machakos Sub-County, Machakos County, he murdered Felix Muendo Maundu. 2.On 23rd April, 2021, the accused pleaded not guilty to the charge, and the prosecution was tasked with proving its case to the required standard. The prosecution called a total of fifteen (15) witnesses. A. Prosecution case 3.PW1, Michael Mwangangi Mutunga, a 16 years old Form 2 student at Baptism Secondary School, testified that he knew the deceased, Felix Muendo Maundu, as a friend. He stated that on 4th April, 2021, at about 8.00 a.m., he left his home in Katoloni and proceeded to herd cows together with the deceased and one Michael Sebastian. They gathered the cows and took them to graze, first passing through River Katoloni, crossing over to Kabanga. 4.After the cattle drunk water and were grazing, they saw a police officer approaching in the company of two security officers. Upon noticing them, they fled towards the direction of White House leaving the cows behind. That the police officer pursued them but, later, together with the security officers, drove the cows towards the Veterinary farm. The officer stated he would not release the cows unless they paid Kshs. 6,000/=. 5.PW1 testified that they later decided to retrieve the cows by using a path leading towards the Veterinary Farm while the officer remained on the road. As they were driving the cows away, they heard a gunshot. He stated that the distance between the road and where they were was approximately 30 metres. The officer, who was about 10 metres away, cocked his gun and shot at the deceased. PW1 was about 4 metres from the deceased and witnessed the shooting. He testified that two gunshots were fired. Thereafter, the officer approached, touched the deceased on the chest, and instructed the security officers to leave. 6.PW1 stated that they went to where the deceased lay and discovered that he was dead. The officer left with the firearm. He then returned home and informed the deceased’s parents. Together, they went back to the scene and found the body still lying there. 7.He identified the firearm used as similar to the rifle produced in court and marked Rifle G3 MFI-1. He further stated that when the gunshots were fired, the cows ran towards home. He did not know the owner of the Veterinary Farm but indicated that they had previously grazed in the area without being stopped. However, he stated that he could not clearly identify the police officer as he was wearing a mask and a cap. 8.In cross-examination, PW1 stated that they were grazing near the white house, the government house, and had not entered the veterinary farm. He reiterated that he saw the officer remove bullets from his pockets and load the gun and fire in the air. 9.PW2, Byron Muthama Michael, a 17 years old young man testified that on 4th April, 2021, around 9.00am, he left home with cows, met several others, including Michael (PW1), Sebastian, Muteti, Alex Muendo (deceased), Brian, Manthi, Luta and Kasee, each with their own cows. They grazed the cows while moving from the slaughter house past the sewage area to Kwa Karanga. 10.At about 2.00 p.m., a police officer in green uniform, accompanied by Veterinary Farm security officers, approached them. Upon seeing the officers, they fled. At the time, the cows were near the Government offices (White House). The police officer demanded Kshs. 6,000/= for the release of the cows, but they informed him that they had no money. The officer, who was armed, ordered them to look for the money and chased them away, while the cows were driven into the Veterinary Farm and guarded by the two security officers. 11.PW2 testified that when they attempted to retrieve the cows for the fourth time, the officer fired a warning shot in the air. He described the firearm as a long gun similar to the one produced in court as MFI-1. He further testified that the officer moved ahead of them and shot the deceased in the upper arm, causing him to fall. The officer then approached the deceased, touched him, and left the scene. 12.After driving the cows away, they returned and found the deceased lying dead. They went home and reported the incident, then returned to the scene with villagers and the deceased’s parents. They found police officers and members of the media at the scene, with the body still present. Their statements were subsequently recorded. 13.PW2 stated that although they usually grazed in the area, they did not enter the Veterinary Farm, and on the material day, the cows had not crossed into it. He also indicated that he could not identify the police officer due to the mask he was wearing. 14.In cross-examination, he stated that they had been grazing there for a long time and did not enter the Vet farm as it belonged to Veterinary, which kept its own cows and sold milk. He said he had never heard anyone being prevented from grazing in the area. They were therefore puzzled as to why the police officer was demanding money, since the believed they had done nothing wrong. They were also afraid that their cattle would be taken away if they left. 15.He testified that the deceased was killed at Vet Farm. According to him while he was at the farm, the police arrived and shot him. He further stated that the police officer removed bullets from his left pocket and cocked the firearm and began shooting from behind them. He saw him shoot Muendo on the upper arm. 16.PW3, Sebastian Kilungya Muteti, testified that on 4th April, 2021, he left home with cows at about 8.00 a.m. and went to the slaughterhouse, where he met several others, including Lutta, Byron, Michael, Muendo, Manthi, Kasee, and Brio. They proceeded to graze their cows at People’s Park and later moved towards the Governor’s Office (White House). 17.At around 2.00 p.m., they encountered a police officer accompanied by two security guards. The officer was armed with a gun, while the guards carried batons. Frightened, they ran away. The officer then drove the cows towards the Vet Farm. When they returned, they found some of the cows inside the farm. Their attempts to retrieve them were unsuccessful, as they were chased away twice. 18.On their third attempt, the officer demanded Kshs. 6,000/=, which they did not have, and they were again driven away. PW3 explained that they feared punishment as students if they abandoned the cows. During their fourth approach, after leaving the officer on the road, he heard a gunshot. The security guards fled, leaving the cows behind. As they gathered the cows, he heard another gunshot and saw the deceased lying on the ground. He observed the officer bend as if to touch the deceased before leaving with the guards. PW3 stated that the officer was about three metres from the deceased at the time of the second shot. They later decided to report the incident at home. He further stated that he was too far from the officer to identify him. 19.In cross-examination, PW3 stated that the cows had not initially been inside the Vet Farm and he did not know why the officer drove them there. He confirmed that they had never been arrested while grazing near the Governor’s Office, although he had heard that grazing at Vet Farm often led to arrest. He added that the officer did not say anything during the incident. He acknowledged that they forcefully removed the cows from the farm out of frustration and later learned that doing so was an offence. He also confirmed that he had never grazed cattle within the Vet Farm before. 20.PW4, NO. 24009033775 APC Nicholas Musyoka Mutiso, testified that he was attached to the Critical Infrastructure Inspection Unit in Machakos Sub-County, where he performed general and armory duties, including issuing and receiving firearms. He stated that on 26th February, 2021, while at the armory, he issued APC Victor Kariuki (the accused) with a G3 rifle, serial number J66277, loaded with 20 rounds of ammunition. The issuance was duly recorded in the Firearms and Arms Movement Registers, and the accused signed for the weapon at 8.30 a.m. PW4 later identified the rifle in court. 21.On 4th April, 2021, at around 4.00 p.m., while at the AP camp, PW4 received a call from the accused, who asked him to proceed to the armory to receive the firearm. Upon not finding him there, PW4 called him back and was informed that the accused had discharged the firearm and injured someone. The accused stated that he was at Machakos Police Station. 22.PW4 proceeded to the station and found the accused at the crime office, where he confirmed that he had discharged the firearm and hit someone. PW4 took possession of the rifle, removed the magazine, and made it safe, during which one round fell out. Upon clearing it, he established that two rounds of ammunition were missing. 23.They then returned the firearm to the AP Central Armory, where PW4 recorded its return, noting the shortage of two rounds. He informed his superior, the AP Sub-County Commander, who instructed him to safely secure the firearm pending collection by DCI officers. At about 7.00 p.m., officers from DCI Machakos collected the rifle for investigations. 24.In cross-examination, PW4 stated that upon examining the rifle, he noticed two cuts on the hand guard, which had not been present when it was issued. The accused explained that he sustained the damage while defending himself from an attack by the deceased. 25.PW5, No. 213415, Wesley Kiprop Torotich, testified that he was an AP officer attached to the Critical Information Unit attached at the Vet Farm tasked with guarding the Governor’s office. His immediate superior was APC Victor Kariuki (the accused). 26.He stated that on 4th April, 2021, at about 4.30 p.m. on Sunday, while at the Vet Farm camp with his colleague Saumu Ramadhan, the accused entered the armory area, where he was also residing. Shortly thereafter, the accused called them into his house, where they found entries being made in the Arms Movement Register, which was under the accused’s custody. 27.PW5 testified that he was scheduled for night duty that day but had not yet been issued with a firearm. On checking the register, he found that it had already been recorded that he had been issued with a G3 rifle (No. J53987) with 10 rounds of ammunition for day patrol at 0600 hours, which was untrue. The entry had not been signed. When asked to sign, he declined, explaining that he had not gone on patrol. The accused informed him that “things had gone wrong” and later admitted that he had killed someone. PW5 then left the house. 28.He further stated that he crossed out his name in the register, as he had not been on patrol, and refused to sign. His colleague Saumu also declined to sign. He confirmed that he had known the accused for one and a half years, and they had no prior disagreements. 29.In cross-examination, PW5 maintained that the Arms Movement Register records issuance and return of firearms, and there was no indication that he had returned from patrol. He reiterated that he could not have been issued with a firearm at that time, as it was not yet his duty shift. He added that on the material day, he did not collect a firearm from the camp, as he had gone for escort duties and obtained one from headquarters. 30.PW6, No. 2018040301, APC Zainabu Ibrahim testified that she was stationed at the VET Farm Administration Police Post, where they were five officers. In April 2021, their in-charge was Victor Kariuki. A duty roster prepared by the in-charge guided assignments, and she identified the roster for 4th April, 2021, in court. 31.On that day, she had been assigned to the IEBC offices in Miwani area alongside APC Kariuki. She left at 11:00 a.m., proceeded to the station, patrolled the area, and opened the offices. She noted that APC Kariuki had earlier signed in at 6:00 a.m. She remained there until 2:20 p.m., when she returned to the AP camp, having not found him at the station. She identified the IEBC register (PMFI-5). Upon reaching her house, she met her husband leaving for work. Shortly thereafter, Kariuki called and instructed her to go to his house, where the armory was located, open it, and collect a rifle. As she approached the house, she heard a gunshot, followed by another shortly after. She nonetheless proceeded, opened the armory, and took a G3 rifle with 20 rounds of ammunition. 32.Uncertain of where to go, she did not proceed further or sign the arms movement register. She returned the rifle, locked the armory, and went back home. On her way, she met Kariuki, who was carrying a G3 rifle and had his right hand in a sling. He asked her to follow him to his house, but she first returned home to breastfeed her child before joining him about 15–20 minutes later. 33.At Kariuki’s house, she found him with PC Wesley, and they appeared to be arguing. Kariuki was making entries in the register and had signed entries for both Wesley and herself. She identified the main register entry for 4th April, 2021, noting that the entry beside her name indicated she had drawn a firearm at 6:00 a.m. She denied signing it, stating the signature was forged and the force number recorded (258040) belonged to APC Saumu Ramadhan, not her. She maintained that she had not been armed while on duty at the IEBC offices. 34.When she questioned Kariuki about the entry, he became angry and stated that they were unwilling to assist him. He explained that he had been attacked by herdsmen, sustained an injury to his right arm, and that during a struggle with a young man attempting to snatch his rifle, he discharged one round, killing the individual instantly. Kariuki later left, and upon further examination, it was discovered that the entries had been cancelled after Saumu confirmed the serial number referred to her. 35.At around 4:30 p.m., passersby informed them that the hay store had been burnt. At approximately 6:00 p.m., she left the camp with her children and spent the night at a friend’s home in Kenya Israel. She identified Victor Kariuki, whom she had known since September 2019, as the accused and stated she had no prior grudge against him. 36.In cross-examination, she maintained that she was on duty in civilian attire on 4th April, 2021, although she did not record her presence at the IEBC office. She confirmed receiving the call to collect a firearm but waited for further instructions. She heard gunshots before reaching the house but could not identify their direction. She did not call Kariuki to confirm his location and instead returned the firearm and went home to attend to her child. 37.PW7, Francisca Kaluki Musyoka, testified that she resided in Katoloni, Machakos and is a farmer. On 4th April, 2021, in the morning, she was at home with the deceased. The deceased who lived at his uncle’s place left at about 8 a.m. leaving her behind. She released the cows and instructed the children to take them for grazing at Vet Farm. The children later returned and confirmed that they had taken them. At about 2 p.m. she received a call from the deceased’s brother Kyalo informing her that the deceased had been shot at the Veterinary. 38.She immediately ran to the scene following a group of people. Upon arrival, she found a large crowd including the chief, MCA, police officers. Shortly afterward, more officers arrived and started taking measurements. She saw the deceased, lying down with a T-shirt stained with blood stained on the chest and at the back. The media was also arrived. At about 6 p.m. they were instructed to take the body to the mortuary. The body was transported to Machakos Level 5 mortuary, where upon removal of his shirt, she observed the injury came from the chest to the back. She confirmed that the deceased used to herd the cows at Vet Farm. 39.PW8, Anne Wanzo Mulwa, stated that on 4th April, 2021, she was at home when her daughter informed her that the cows had been detained and Muendo had been shot. She proceeded to the Vet Farm and found Muendo lying face down with blood visible on his back. She did not observe any other injured persons. She was shocked and kept her distance. She found the police officers and members of the public at the scene. She added that the deceased’s father was her husband’ brother. 40.PW9, Judith Ndunge Maundu, is the deceased’s mother, testified that the deceased was her 1st born son aged 26 years at the time of his death. On 4th April, 2021, around 4 p.m. while at home, she received a call from her second born son, Musembi, informing her that the deceased had been shot at the Vet farm. She did not go to the scene as she fainted upon receiving the news. She confirmed that the deceased had been living with his uncle at Katoloni. 41.PW10, Michael Sila Muinde, the deceased uncle, testified that he attended and identified the deceased’s body for the postmortem on 8th April, 2021, at Machakos Level 5. He identified the body alongside Dominic Matheka Ndivo. 42.PW11, No. 2006042694, Dominic Matheka Ndivo, the assistant chief, Katoloni Sub-location, testified that on 4th April, 2021, at around midday, he was in Machakos Town when he received a call from a member of the community informing him of an incident at Vet Farm. He immediately took a motor bike and proceeded to the scene. Upon arriving near the governor’s office, he found about 4 people present and a person lying on the ground whom he recognized as Muendo. He observed a body on the ground but did not approach it. He contacted the OCS Machakos police station and relayed the information. The OCS arrived with three officers followed by officers from the DCI team. 43.As more members of the public gathered, the area became crowded and chaotic, with people expressing anger. The crime scene officers came and took photographs. Together with other authorities they calmed the crowd, after which the body was removed to Machakos level 5. On 8th April, 2021, he attended the postmortem and identified the deceased body. 44.PW12, No. 231845, SSP Florence Karimi, a ballistic expert from DCI Headquarters, testified that on 2nd August, 2021, she received exhibits submitted by No.60262 Sgt John Kemboi from DCI Mavoko. The exhibits included; a G3 Rifle; marked ‘A”; The magazine; marked “B” and 18 rounds of ammunition marked C (1) – C (18). These were accompanied by an exhibit memo requesting verification of their classification and functionality as follows;1.Whether exhibit “A” is a firearm under Firearms Act and whether it was capable of being fired.2.Whether exhibits “B” is a magazine under the firearms and whether it was compatible with Exhibit “A”3.Whether Exhibit (1) to (18) were ammunition under Firearms Act and whether can be used in “A”. 45.Upon examination, she established that Exhibit “A” was a German made Hecter and Koch G.3 Rifle Serial No S/N J66277 designed to fire rounds of ammunition in caliber 7.62 x 51mm. The firearm was in a good working and mechanical condition, complete with all its components parts including its 18 rounds detachable Box magazine (13). 46.She test-fired the firearm using the submitted ammunition from C(i) to C (18) and recorded the resulting cartridge cases and marked them as TC(i) to TC (13). She also examined the 18 rounds of ammunition Exhibit C (1) to C (18), confirming that all were in good condition and suitable for use in the firearm. Three rounds were randomly selected and successfully test fired. 47.From her examination, she formed the opinion that the rifle and ammunition (Exhibit “A” and C (1) to C (18)) were functional and fell within the definition of a firearm and ammunition under the Firearms Act. She prepared and signed a report dated 18th May 2021. She produced in court the following exhibits; Firearm G.3 Rifle Prosecution-Exhibit 1; 15 complete Rounds of ammunition, Prosecution Exhibit 8(1) – 8(15); 3 Test Cartridge Cases Prosecution exhibits 9(1) – 9(3); Report dated 13th August, 2021, Prosecution Exhibit 10; and Memo marked MFIP-11. 48.PW13, No. 258040, Saumu Ramadhan, testified that she was attached to AP. Camp Vet. On 4th April, 2021, at around 2 p.m. she was at home when her colleague APC Wesley Kiprop called her. Upon responding he asked whether she knew where Zainabu Ibrahim was rushing to with a firearm. She informed him that she did not know. 49.About twenty minutes later, she heard APC Victor Kariuki and APC Wesley Kiprop talking and went to check. She found APC Kariuki making entries in the firearms movement register, indicating that Wesley Kiprop had gone on patrol and also recording an entry in Zainabu’s name. Kariuki asked for Zainabu’s service number, but in the process, he mistakenly recorded Saumu’s service number, appearing confused and in a hurry. She identified the relevant entry in the register (PMFI-3) in court and noted that Kariuki later cancelled it. She confirmed that she was not on duty that day. 50.She further testified that after Wesley Kiprop left, she asked Kariuki why they had been arguing. He told her that he had shot someone. She advised him not to take any further action with the firearm and instead report the matter to the police. Kariuki then left with the firearm, and she returned to her house. 51.PW14, Benjamin Mutoohi Maringo, work at Vet Farm as Manager. On 4th April, 2021, a Sunday, he was returning from Machakos Town when he briefly met APC Kariuki on a boda boda, dressed in uniform. 52.At around 3:00 p.m., while at his house preparing a meal, he heard two knocks on the door but found no one outside. He then noticed two missed calls from James Makau, a farm employee. Upon calling him back, Makau reported that about twenty people had invaded the farm, set the hay store on fire, and fled. 53.He immediately went to the scene, found the store ablaze, and contacted fire officers. Despite their response, the hay store was completely burnt. He also reported the incident to headquarters at Kabete Veterinary Laboratories and was advised to make a police report. 54.He testified that he did not see those responsible for the fire. Makau further informed him that a young man had been killed. The burnt hay store contained approximately 7,000 bales valued at Kshs 1.7 million, and the total loss, including the structure and part of the farm, was estimated at about Kshs 2 million. He stated that his evidence related solely to the destruction of government property. He confirmed that he knew the accused, Kariuki, but only saw him on the road that day and not within the farm. 55.In cross-examination, he stated that although he usually receives reports from the police officers providing security at the farm, no such report was made to him on that day. 56.PW15, No. 60262 Sgt. John Kemboi, the Investigating Officer, testified that he was attached to the Machakos DCIO office where he performed investigative duties. On 4th April, 2021, while on standby, he received instructions from DCIO Rhoda Kanyi to accompany Deputy DCIO CIP Wanjohi and other officers namely; IP Ndunda, PC Mokaya, and PC Lucas to the scene of a shooting incident at Vet Farm, Machakos. 57.They proceeded to the scene opposite the Governor’s Office and found the farm on fire and a man who had been fatally shot. Upon inquiry, members of the public informed them that the deceased, Felix Muendo, had been grazing cattle with others when they were confronted by a police officer from the AP Camp at Vet Farm. The officer allegedly demanded money to allow grazing and, following a disagreement, shot the deceased. It was further reported that the grazers had attempted to remove their cattle, but the officer resisted until payment was made. 58.The officer testified that the situation at the scene was tense, with members of the public becoming rowdy and attempting to prevent the removal of the body. The OCPD and DCIO later joined them, together with local leaders, and managed to calm the crowd. Crime scene personnel led by IP Ndunda documented the scene by taking photographs, after which the body was removed to Machakos Level 5 Mortuary. 59.He confirmed that a livestock feed store within the farm had been set on fire and completely destroyed. Investigations revealed that APC Victor Karugu Kariuki had been assigned to duty at the IEBC offices on that day but had later gone to the Vet Farm where the incident occurred. Upon returning to the station, they learned that Kariuki had already reported at the report office. The Deputy DCIO summoned the officer in charge of CIPU Machakos Sub-County, who produced the accused. After interrogation, Kariuki was placed in custody. 60.PW15 further testified that he and CIP Wanjohi proceeded to the CIPU offices, where they recovered a G3 rifle (Serial No. J66277) with a magazine containing 18 rounds of 7.62 mm ammunition. They also obtained the firearms movement register and the daily arms register from Vet Farm AP Camp. At the time of recovery, Kariuki had already returned the weapon to the armory. 61.The arms movement register showed that Kariuki had been issued with the rifle on 26th February, 2021, and returned it on 4th April, 2021, at 5:45 p.m., with two rounds missing. The daily register indicated that he had drawn the same rifle at 6:00 a.m. on the day of the incident. The duty roster confirmed that Kariuki and APC Zainabu had been assigned to the IEBC offices on that date. 62.A postmortem examination conducted on 8th April, 2021, by Dr. Waithera established the cause of death as a chest injury resulting from a single gunshot. The firearm and ammunition were later forwarded for ballistic analysis under a memo dated 2nd August, 2021. 63.PW15 produced in court the firearm (Prosecution Exhibit 1), 15 live rounds of ammunition (Prosecution Exhibit 8), test-fired cartridges (Prosecution Exhibit 9), the arms movement register (Prosecution Exhibit 2), the daily arms register (Prosecution Exhibit 3), the duty roster (Prosecution Exhibit 4), the IEBC attendance register (Prosecution Exhibit 5), the postmortem report (Prosecution Exhibit 6), and the scenes of crime certificate and photographs (Prosecution Exhibit 7). 64.He testified that neither the bullet head nor the spent cartridge responsible for the fatal shot was recovered, as the bullet exited the body and the scene had been disturbed. 65.He also noted a cut mark on the rifle, which the accused claimed resulted from the deceased attempting to cut him with a panga. In his assessment, the location of the cut was inconsistent with that explanation. 66.In cross-examination, he stated that the body was found within the Vet Farm, about 50 metres from the main road, possibly in tall grass. He reiterated that no cartridge was recovered and that his conclusion linking the firearm to the shooting was based on the fact that the rifle was assigned to the accused, who was present at the scene. 67.Upon conclusion of PW15’s evidence, the prosecution closed its case. The court reviewed the evidence and placed the accused on his defence. B. Defence case 68.In his defence, the accused, DW1 APC Victor Karugu Kariuki, gave sworn testimony and called three witnesses. He stated that he joined the Administration Police in 2008 after training at Gilgil NYS camp. He was initially posted to Garissa and, in April 2020, transferred to Machakos and deployed as the officer in charge of the Vet Farm AP Post near the Governor’s office. He testified that he was trained in the use of firearms and was responsible for the armory, including issuing firearms. 69.On 4th April, 2021, he received a call from a security guard, Mwendwa, informing him that cows had trespassed into the Vet Farm. At about 3:00 p.m., he dressed in uniform, took his G3 rifle (Serial No. A3J66277), and informed APC Zainabu of the situation. He also issued her with a firearm. According to him, they were both on duty, although it was a Sunday and they were initially in civilian clothing. 70.Upon arrival at the farm, he found several cattle and a young herder who appeared to be speaking on behalf of others. He informed them that the animals would be detained in accordance with procedure until their owners were identified and potentially charged with trespass. He testified that the herders initially left, but later returned in larger numbers, agitated and demanding the release of the cattle. When he declined, they became hostile, throwing stones and sticks. The two watchmen fled towards the road. 71.He stated that about 8, continued to confront him. He stated that as a policeman he could not run away as when you run away you put your life in more danger. That one of the herders was armed with a panga and attempted to cut him, resulting in injuries to his hand. He defended himself using the gun, which he said was struck during the attack, leaving visible cuts on it. 72.It was obvious that his life was in danger. He stepped back and fired a warning shot in the air, but the group did not retreat. At that point, the deceased allegedly grabbed the front part of the riffle and a struggle ensued. In the process the deceased picked up a stone with the left hand and hit him on his right hand. During the struggle the deceased fell, and the riffle discharged, hitting him on the right shoulder. 73.The deceased collapsed, and the other herders fled. He checked and realized the deceased had died. Fearing for his safety, he left the scene with Mwendwa and proceeded to Machakos Central Police Station, where he reported the incident and surrendered the firearm. 74.He maintained that the incident occurred within the Vet Farm, among the cattle, and that the herders were the aggressors. He added that the farm housed livestock and required protection from outside animals to prevent disease. He testified that the herders attacked him. He wanted to retreat but he had no chance. He could not turn and run away. Their training is that you do not retreat by giving the assailant your back. 75.He further testified that after the incident, he reported to his supervisor and was later arrested and charged. He did not receive medical treatment for his injured hand and was held in custody for one week. He testified that the vet farm is on one side of the road and there is no private land to graze. The herders were within the Vet farm and the incident happened inside the Vet farm. The deceased died within the Vet farm. The deceased insisted that some of the cows were his and forcefully wanted to take them away. 76.In cross-examination, he reiterated that he was the officer in charge of the AP Post and that APC Wesley Kiprop would deputize in his absence. On the material day, he was on duty with APC Zainabu. He stated that although the duty roster showed deployment to IEBC offices, he did not report there and remained at the Vet Farm. 77.He testified that upon going to the field, he found Mwendwa and Julius. He instructed the herders to go and call the owners of the cattle. Initially, the herders left, but they later returned in a rowdy manner, insisting on taking the cows. He denied asking any of the herders for money, including the alleged sum of Kshs 6,000/=. He stated that he engaged the herders for approximately 40 minutes on the two occasions they confronted him. During the confrontation, the two watchmen fled towards the road. He added that he had expected APC Zainabu to reinforce him, but she did not arrive. 78.Regarding the firearms register, he stated that he had issued a firearm to himself earlier that morning at 6:00 a.m., namely a G3-A3 rifle, Serial No. J66277. He did not complete the issuance records upon return because he took the firearm directly to the DCI after the incident. 79.He testified that his firearm entry was recorded as Entry No. 16. Entry No. 17 showed that APC Wesley Kiprop had been assigned a G3-A3 rifle (Serial No. J53987) at 6:00 a.m., but the entry was later deleted. He stated that he did not know who deleted it and noted that APC Kiprop did not sign for the weapon, indicating that he had not actually collected it. He explained that assignment of a firearm is distinct from its physical collection. 80.Entry No. 18 reflected that APC Zainabu Ibrahim had been assigned a G3-A3 rifle (Serial No. A03344) at 6:00 a.m. The entry bore a signature, but it had been cancelled. He stated that he did not know who cancelled it, though he believed she had indeed collected the firearm. Entry No. 19 showed that APC Penina Kisingu was assigned a G3-A3 rifle (Serial No. J53987) at 6:00 p.m., and she signed for it. He stated that he was not present at the camp at that time and did not issue the firearm. Entry No. 20 indicated that APC Wesley Kiprop collected a G3-A3 rifle (Serial No. A03344) at 10:30 p.m. He confirmed that he did not issue that firearm. 81.He further testified that he was in official uniform during the confrontation and that the incident occurred within his designated area of duty. He explained that duty at the IEBC involved sentry responsibilities, while patrol duties involved movement within his jurisdiction. As the officer in charge of the armory, he managed four firearms that could be allocated among officers at the Vet Farm. He added that whenever an officer discharges a firearm, it must be reported to a superior. Accordingly, after the incident, he reported to the County Headquarters, which accounted for his absence from the Vet Farm later that evening. 82.DW2, Dickens Charo Karema testified that he works at the Vet farm performing general duties such as picking dung for fertilizer, milking and looking after animals. He resides within the Vet farm and know the accused as ‘Kariuki’ and a police officer (AP). 83.He stated that on 4th April, 2021, at 2pm, he was tending to sheep and goats near the governor’s officer. he explained that a road separates the Vet farm from the Governor’s office. On that day, herders who brought cows into the Vet farm, which was not permitted. That the Vet farm security (3 watchmen) attempted to remove them but the herdsmen refused, stating that there was sufficient graze on the farm. 84.He saw the accused arrive with a security officer. Being nearby, he intended to separate the farm’s sheep and goats from the intruding cattle. He observed the accused engage the herders in conversation, but a disagreement arose as the accused intended to detain the cows at the holding area for trespassing livestock. 85.The herders, who were initially young men, began shouting and ran towards a nearby stream where other people were cultivating vegetables. They returned shortly thereafter with a larger group of about 9–10 individuals, including adults. One of them confronted the accused while armed with a panga and grabbed the officer’s firearm. 86.DW2 testified that a struggle ensued. The individual first attempted to cut the accused with the panga, which the accused blocked using the rifle. The individual then dropped the panga and tried to wrest the firearm from the accused. During the struggle, both were holding the gun, which was initially pointing upwards. It discharged once while pointing upward. A second shot followed shortly thereafter, at which point the firearm was directed toward the individual, who fell after being shot. 87.He stated that he was shocked and hurriedly removed the sheep and goats from the area. He did not know the victim but confirmed he was male. After the shooting, members of the public became hostile and set fire to the hay store within the Vet Farm compound. 88.He estimated that the incident occurred about 30 metres inside the Vet Farm. Subsequently, many police officers arrived to control the situation. He stated that the body was later moved from the farm to the roadside after the fire incident. 89.In cross-examination, he maintained that the incident occurred at about 2:00 p.m. while he was within the farm tending livestock. He estimated the ages of the herders to be between 20 and 25 years and initially about four in number. The watchmen had asked them to remove the cattle, but they refused. One herder went to call others from the river, and they returned in larger numbers. 90.He testified that the accused approached the herders politely and did not demand any money. The confrontation escalated only after the larger group arrived and became hostile. The individual who was shot had attempted to cut the accused before engaging in a struggle over the firearm. 91.He reiterated that the deceased dropped the panga during the altercation and used both hands to hold the rifle. The firearm discharged while pointed upward during the struggle and fired a second time while facing the deceased, who was still attempting to seize it. He maintained that he clearly saw both individuals holding the firearm during the struggle. He identified the firearm shown in court, noting visible cut marks, which he believed were caused during the incident. He confirmed that at the time of the incident, he was alone as his colleague had gone for lunch. 92.He also named other herders in the vicinity and stated that they worked within the farm’s external grazing areas. He added that, due to the danger, some individuals did not approach the scene, and police were later called to restore order after members of the public set the farm store on fire in protest. 93.DW3, Elijah Mwema, testified that he worked with Hatari Security and knew the accused, Kariuki, as a police officer (“askari”). As security personnel at the Vet Farm, they were required to report any incidents to him. He stated that grazing on the farm was prohibited. He testified that on 5th April, 2021, at around 3:00 p.m., he was on duty with Elizabeth, who was stationed at the gate, and Patrick, with whom he was patrolling. During patrol, they encountered about ten individuals grazing approximately fifty cows within the farm. They asked the herders to remove the animals, but the herders refused and threatened them with stones, sticks, and pangas. 94.He immediately attempted to call Kariuki, but the communication was unclear. He and Patrick then proceeded to the police post to seek assistance. On the way, they met Kariuki on a motorcycle. He informed him of the situation, explaining that the herders had refused to leave and were threatening them. 95.Kariuki accompanied them back to the farm. He was in uniform and armed with a firearm. About five metres from the grazing area, Kariuki instructed them to remain behind while he approached the herders. Two herders went forward to engage Kariuki, one armed with a panga and the other carrying a stick and a stone. DW3 stated that instead of resolving the matter, a confrontation ensued. The herder with the panga attempted to attack Kariuki, who ducked and blocked the blow with his rifle. The other herder placed down his stick and attempted to grab the firearm. 96.Kariuki moved aside to create space and fired a warning shot into the air. DW3 testified that the other herders, speaking in Kikamba, remarked that the gun had no ammunition. The confrontation continued, with the herder armed with the panga attempting to snatch the firearm. Kariuki then fired at him in what DW3 described as self-defense. 97.He stated that the other herders had been encouraging the confrontation. After the gunshots, they fled. Kariuki then returned and, together with Patrick, left to report the incident. DW3 remained at the farm, as it was nearly time for milking. He further testified that the herders later regrouped, were joined by others, and returned to the farm, where they set fire to the hay store. Upon seeing them approach, he fled and hid for safety and did not return to the scene. 98.He added that illegal grazing had been a recurring issue, especially on weekends when security presence was reduced. Normally, herders would comply when asked to leave, but on this occasion, they were aggressive. He stated that, due to safety concerns and fear of retaliation, he eventually resigned from his job. 99.DW4, Patrick Mutunga testified that on 5th April, 2021, he was on duty at Machakos Veterinary Farm, where he worked for Hatari Security. There were three officers on duty. One remained at the gate while he and his colleague, Elijah (DW3), went on patrol near the “White House” area. During patrol, they found cows grazing unlawfully within the farm. They attempted to drive the animals away but were unsuccessful. When they approached the herders, the latter confronted them while armed with stones and became hostile. 100.They attempted to contact Kariuki (the accused) using Elijah’s phone, but were unable to reach him. They then proceeded to the police post, where they found him just arriving. They informed him of the situation, and he accompanied them back to the grazing area. He testified that Kariuki spoke to the herders and instructed them to remove the cows, but they refused. Kariuki then asked the security officers to assist in driving the cattle away. As they attempted to do so, one herder armed with a panga and another with a stick approached Kariuki. 101.The herder with the panga attempted to cut Kariuki, who blocked the attack using his rifle. The herder then grabbed the firearm and pulled it, during which the first shot was fired. At the same time, the second herder struck Kariuki with a stick, while others shouted that the gun was not loaded. 102.After the first shot, the witness ran approximately 150 metres to the Vet Farm offices. He later returned and stopped about 30 metres from the scene. He observed that the struggle for the firearm continued, and as the herder again tried to wrest it from Kariuki, a second shot was fired, striking the herder. The distance between them at the time was about 1.5 metres. 103.He stated that he saw the herder fall to the ground, after which the accused left the scene. The herders remained behind while the witness and his colleague went to report the incident at the police station. He confirmed that Kariuki also went to the station, recorded the incident, and surrendered his firearm. The witness was then dismissed and left Kariuki at the station. 104.With that testimony, the defence closed its case. The Court granted the defence 30 days to file and serve submissions, with corresponding leave granted to the prosecution. At the time of preparing the judgment, only the defence had filed submissions. C. Defence submissions 105.The defence submissions are dated 7th April, 2026. The gist of the defence is that there was an incident on 4th April, 2021, at Veterinary farm/white house area in Katoloni, Machakos County, the accused, an Administrative Police Constable, was on duty and lawfully armed when he was confronted by a group of youth herders who were grazing cattle unlawfully within the farm. 106.It is submitted that the accused attempted to remove the herders, which led to a confrontation. The herders allegedly attacked him with a panga, attempted to seize his firearm. In the course of the struggle, the firearm discharged fatally injuring the deceased. 107.On whether the prosecution had proved the offence of murder, the accused relied on Section 17 of the Penal Code arguing that an act done in self-defense. That it is justifiable where a person reasonably believes that the use of force is necessary to prevent imminent unlawful harm. That accused outlined the key ingredients of self defence as: reasonable belief of threat; imminence of threat; proportionality of force used; and no intention to exceed necessary defensive force. 108.The accused also invoked Section 61 of the National Police Service Act, which requires police officers to first employ non-violent means and permits the use of force, including firearms, only when such means are ineffective, and only to the extent necessary to achieve a lawful objective. The Act further permits the use of firearms in circumstances such as self-defense or defense of another person against an imminent threat of death or serious injury. 109.The accused urged the Court to analyse the facts in light of these legal provisions. They conceded that the death of the deceased is not disputed, but argued that malice aforethought had not been established, and therefore the offence of murder was not proved. In support of this position they cited the cases of Republic v Andrew Mueche Omwenga [2009] eKLR, Nzuki v Republic [1993] KLR and Bonaya Tutu Ipu & Another v Republic [2015] eKLR on the ingredients of murder. 110.It was further submitted that the accused responded to a distress call and arrived at the scene where he found a group of herds unlawfully grazing cattle. He initially engaged them peacefully, but when they realized he would not yield, they turned violent. The accused issued a warning shot but the situation escalated as one individual allegedly attacked him with a panga, and another attempted to grab the firearm. During this ensuing struggle, the firearm discharged. 111.The defence maintained that the accused did not act with malice and had no intention to kill the deceased. They relied on authorities including; Republic v Andrew Mueche Omwenga [2009] eKLR, Joseph Kimani Njau v Republic (2014) eKLR, Libambula v Republic [2003] KLR 683. 112.On the right to self-defense, the accused reiterated the principles under section 17 of the Penal Code and cited the case of Robert Kinuthia Mungai v Republic (1982–88) 1 KAR, in submitting that self-defense is assessed on both subjective and objective grounds. They argued that an accused person is entitled to be judged based on the circumstances as he honestly perceived them, provided that belief was reasonable. 113.The defence also argued that even prosecution witnesses (PW1–PW3) admitted that the herders repeatedly returned in groups, acted in concert, and forcefully attempted to recover the cattle, while evidence from PW4 and PW6 suggested there was a struggle over the firearm. 114.In conclusion, the defence submitted that the prosecution failed to prove all the essential ingredients of murder beyond reasonable doubt and urged the Court to acquit the accused. D. Analysis and determination 115.I have carefully considered the totality of the evidence on record, together with the submissions by the accused’s counsel. At the outset, it is trite law that the burden of proof rests entirely upon the prosecution to prove its case, and the standard required is that of proof beyond reasonable doubt. The accused bears no obligation whatsoever to prove his innocence, for he is presumed innocent until proven guilty on the basis of evidence adduced by the prosecution. 116.In Republic v Leserpeno (Criminal Case 7 of 2021) [2026] KEHC 6704 (KLR) (15 May 2026) (Judgment), it was held that:-“In criminal cases, it is trite law that the burden of proof lies with the prosecution and the standard of such proof is beyond reasonable doubt. Viscount Sankey L.C in Woolmington vs. DPP [1935] A.C 462 pp 481 stated the law on legal burden of proof in criminal matters, that; “Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’ 117.Similarly, in Mugendi v Republic [2026] KEHC 1225 (KLR) it was emphasized that: “the Appellant bore no duty to prove his innocence as the burden of proof lay on the prosecution.” Consequently, the prosecution in this matter carries the sole burden of proving all the ingredients of the offence with which the accused was charged with in the Information filed before this Court. 118.To sustain a conviction for murder, the prosecution must establish beyond reasonable doubt, the following elements (a) the fact of death; (b) the cause of death; (c) that the act was caused by the wrongful act or omission of the accused; and (d) that the act or omission of the accused was with malice aforethought, as defined under section 20 of the Penal Code (See State v Ademi (Criminal Case E023 of 2023) [2026] KEHC 1358 (KLR) (12 February 2026) (Judgment)). 119.The fact of death of the deceased is not disputed. PW1, PW2 and PW3 were present at the scene and witnessed the incident. More importantly, PW10 and PW11 identified the body of the deceased for the post-mortem which procedure confirmed the fact of death. This post-mortem report was, produced in evidence as prosecution exhibit No 6 by PW15, the investigation Officer. And lastly, the accused himself also concedes to the fact of death of the deceased. Hence the first ingredient was proved. 120.As regards the cause of death, again PW1, PW2 and PW3 all testified that the deceased was a victim of a gun shot at the veterinary farm. They testified that he was shot by a police officer, whom none of the three could identify. Their evidence was further corroborated by the evidence of PW15 who produced the post-mortem report in which it was stated that the cause of death was “chest injury due to one single gunshot”. Again, the accused also admitted the fact that the deceased succumbed to a gunshot discharged from his rifle. Consequently, the second ingredient as to the cause of death is proved. 121.I now turn to the third ingredient: whether the act was caused by the wrongful act or omission of the accused. This Court underscores that this third ingredient is core in proving the prosecution case as against an accused. It is the first legal strand that links the accused to the alleged crime. Consequently, the prosecution cannot afford to casually approach this issue, since if this ingredient is not proved, the prosecution’s case collapses and results to the accused person being acquitted. It is on this basis that I have thoroughly evaluated the prosecution’s evidence. 122.Having established that the deceased succumbed to a gun shot, the question that follows is who shot/discharged the fatal shot? The totality of the evidence on record points to the accused. Indeed, the accused has admitted in his defence that indeed he is the one who discharged the fatal shot. The direct eyewitnesses of the prosecution, to wit, PW1, PW2 and PW3 all testified that while the saw and/or heard the police officer shoot the deceased, they could not identify the police officer as he wore a mask and a cap. Without that direct evidence, this Court was left to consider the existence of any indirect and/or circumstantial evidence. 123.In a case of a fatal shooting, the evidence of a ballistic expert is always key and crucial. The evidence of PW12 only confirmed that the G3 rifle was a firearm in a working condition and that the 18 rounds of bullets were ammunition under Firearms Act. This evidence of an expert did not link the accused whatsoever to the incident. Be that as it may, from the evidence of PW5, PW6 and PW13 the accused disclosed to them that he had shot an individual .and as already stated, the accused admits in his defence to having discharged the fatal gunshot. Hence this third element was proved. 124.The final ingredient is the crux of this matter. Whether the fatal shooting was accompanied by malice aforethought? In other words, did the accused possess the requisite guilty mind and intention to kill or cause grievous harm to the deceased? 125.Section 206 of the Penal Code provides the definition of malice aforethought as follows:-Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—(a)an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;(b)knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;(c)an intent to commit a felony;(d)an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony. 126.The question therefore is whether the circumstances of this case fall within any of the above scenarios? In addressing this issue, the Court remains guided by two fundamental principles; first, that the burden of proof lies solely with the prosecution and second, that the standard of proof is beyond reasonable doubt. It is equally settled that any doubt, must be resolved in favour of the accused. 127.It is common ground that the deceased was shot at the Vet farm by the accused. PW1, PW2 and PW3 were present during the incident. Their evidence shows that they had taken cattle to graze at the Vet Farm, a protected area where such grazing is prohibited. According to their testimony, a police officer confronted them, detained their cattle, and allegedly demanded Kshs. 6,000/= before they could release them. They thereafter forcefully re-entered the farm to recover their cattle, at which point the police officer fired two shots. They all agree in their testimonies that the first shot was discharged into the air, while the second one struck the deceased. 128.The question that arises is whether, in firing the second shot, the accused intended to kill or cause grievous harm within the meaning of Section 206 of the Penal Code. 129.The defence case, taken as a whole, is that the accused was called by DW3 and DW4 after initial efforts to remove the herders had failed. APC Kariuki was not present when the herders first entered the farm. Upon arrival, he attempted to resolve the situation peacefully by asking the herders to remove the cattle. The young herders initially retreated but soon returned with a larger and more hostile group of about 9-10 people. 130.This account was corroborated by DW2, an independent farm employee who stated that he witnessed the struggle between the accused and two herders, including the deceased. DW3 and DW4 gave consistent accounts of the confrontation escalating into violence. The Court observed DW3 during cross examination and found his testimony firm, candid and credible. 131.It is true that the accused attempted to manipulate the firearms register, a factor that reflects negatively on his conduct. However, this alone does not establish malice aforethought in relation to the shooting. Notably, the accused surrendered to the police and admitted to discharging the firearm. His explanation of events, particularly his assertion of self-defense, raises substantial doubt as to whether he acted with the requisite malice. 132.Crucially, the evidence of a struggle over the firearm between the accused and the deceased was not rebutted by the prosecution. On the contrary, it is supported by the physical evidence of cut marks observed on the rifle produced before the Court. This lends credence to the defence version that the confrontation involved an attempt to disarm the officer. 133.This Court takes judicial notice of the serious implications of a police officer being disarmed. A police officer cannot afford to have his rifle taken away from him by a civilian. Such an occurrence poses not only a personal threat to the officer but also a broader risk to public safety. Members of the public should therefore not engage in acts of attempting to snatch firearms from members of our disciplined forces. While this Court in no way condones the use of excessive force, the law particularly section 61 of the National Police Service Act recognizes that an officer may use reasonable force, including a firearm, where necessary to protect life or prevent imminent harm. 134.Another crucial aspect in this case is that even the prosecution witnesses, PW1, PW2 and PW3 stated that a shot was first fired in the air and it was the second shot that struck the deceased. I agree that the first shot was a warning shot. Further, in determining the existence of malice aforethought, the weapon used and the nature of the injury is a key consideration. In this case, the post-mortem report found that the cause of death was one penetrating gunshot injury to the chest. The fact that there was only one gunshot wound to the chest gives more credence to the defence testimony that there was a struggle between the accused and the deceased over the gun with both parties holding on to the gun. 135.The upshot is that I find that the fact that the accused person had been called to the scene by DW3 and DW4 to assist removing herders from the farm, and therefore had no motive to go there with the intention of fatally shooting anyone. Secondly, the defence of self-defense is established in this case. The evidence shows that the accused was struggling to safeguard his gun from the deceased when it fired and fatally injured the deceased. In the circumstance, the prosecution case cannot be said to be flawless, and without doubt. The accused has successfully rebutted the prosecution case against him and his defence has not been rebutted by the prosecution. 136.Accordingly, this Court finds that the prosecution failed to prove beyond reasonable doubt all the essential ingredients of the offence of murder against the accused person. Malice a forethought as a key component of the offence of murder, was not established in this case. 137.I therefore find and hold that Victor Karugu Kariuki, is not guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and is acquitted under Section 215 of the Criminal Procedure Code. The accused person is hereby released unless otherwise lawfully held. The Bond terms are released and surety discharged. 138.Orders accordingly. DELIVERED, DATED AND SIGNED VIRTUALLY THIS 4TH DAY OF JUNE, 2026RHODA RUTTOJUDGEIn the presence of;Court Assistant: WabwireMr. Ogada for the accusedMr. Musili watching brief for Mr. Motende for State