https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10537

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CRIMINAL CASE NUMBER E058 OF 2021** **REPUBLIC ---------------------------------------------------------------------------- ODPP** **VERSUS** **STEPHEN GACHARA KARUMA-------------------------------------- 1ST ACCUSED** **DUNCAN GITA------------------------------------------------------------2ND ACCUSED** **JUDGMENT** **Charge facing the accused person** 1. This is a very long pending case instituted way back in 2021. The above named (hereinafter referred to as ‘’the 1st Accused and 2nd Accused respectively’’) were on 5th January 2022 arraigned in this court on information of **Murder Contrary to Section 203 as read with Section 204 of the Penal Code.** The particulars of the offence state that on the 11th of December 2021 at Ndege Ndimu Trading Centre, Nakuru North Sub County, within Nakuru County they, jointly with others not before the court, murdered Sammy Odongo Nendi (hereinafter referred to as ‘’ the Deceased’’). 2. The Accused persons denied the offence. **The Prosecution case.** Part of the prosecution evidence was recorded before my brother ( H.M Nyaga J) who has since transferred to another work station. This court took over the case on 19th November 2024 and directed that hearing would continue from the point the previous court left off. 1. The Prosecution case is that on the material date at around 5:00 p.m., PW5 was working in a club belonging to one Wanse with her colleague called Grace (PW6). The 1st Accused, he named as Gachara, entered the club followed later by the deceased who the witness named as Sammy. The deceased went to where the 1st Accused was seated and engaged him in an argument. He was allegedly protesting that the 1st Accused did not pay him for work he did at his home. Sensing a fight between the two, PW5 states that he asked them to get out of the club. At that point, the 2nd Accused who was named as Gitau also entered the club and left together with the 1st Accused and the deceased. According to PW6, someone informed him a while later that the deceased had been killed outside the club. He did not witness any attack on the deceased. A crowd had threatened to break into the bar, thereafter forcing him to close and leave. 2. PW6 was PW5's co-worker at the club above referred to. She confirmed PW5's evidence, saying that she was also on duty at the bar at the material time. The witness said the deceased quarreled with the 1st Accused after which they left the bar together with the 2nd Accused who was also present. According to PW6, the 1st Accused and the deceased often quarreled. In the material evening, the two never feuded in her presence. 3. PW1 and PW2 are the deceased's uncles. On the fateful date at around 10:00 p.m., they learnt of an attack against the deceased. PW2 was the one who received the information from a crowd of people who turned up at his gate. One "John of Fish" was among the mob. He then alerted PW1. PW2 was led to the local Trading Centre where he found the deceased lying down dead. There was a knife beside the body. There was a stab wound on the left side of the deceased's chest. PW2 further testified that he knows both Accused persons well, having grown up together with them. PW1 stated that he equally knew them as his neighbors. 4. PW3 told the Court that he was a Consultant Surgeon based at the Nakuru County Teaching and Referral Hospital. On 17/12/2021, he conducted an autopsy on the deceased's body, which was identified at the Hospital Mortuary by his relatives. The deceased's clothes had blood stains A stab wound was noted in the deceased’s chest which resulted in bleeding. The upper limbs bore bruises, the expert witness explained to be defensive marks. 5. PW3 opined that the cause of death was “severe hemorrhagic shock and cardiac tamponade caused by a sharp object. This is consistent with a stab wound to the chest/heart intentionally inflicted (Homicide)” The Post-Mortem report dated 17/12/2021 was tendered and admitted in evidence. 6. PW4 told the Court that she is a Senior Government Analyst attached to the Government Chemist, Kisumu. She stated that she holds a Bachelor's degree of Science (Biochemistry) from Kenyatta University. On 10/1/2022, she received an Exhibit Memo Form by which blood samples of one Sammy Odonga (deceased) and a knife were submitted for further analysis by a Police Officer based at the Directorate of Criminal Investigations (Nakuru North). PW4's duty was to determine if there was a connection between the blood and the knife. Her analysis showed that the DNA profile generated from the knife matched the DNA profile generated from the blood samples of the deceased. The witness identified the knife in court but told the court that the blood samples have been kept in their laboratories for safe safety purposes. PW4 presented her analysis report dated 3/6/2022 and the Exhibit Memo Form referred to, in evidence. 7. PW7 told the Court that she investigated the case that was assigned to the Directorate of Criminal Investigations (Nakuru North). On receiving information about the deceased's attack from her boss, she and other officers proceeded to the scene. They found the deceased's body in a pool of blood with a knife fitted with a red handle next to it. A wound was visible in the chest. After taking of photographs, the body was removed to the mortuary for preservation pending further investigations. 8. According to PW7, members of the public handed the 1st Accused to Ndege-Ndimu Police Post the following day. Upon interviewing the suspect, the officers also later arrested the 2nd Accused as an accomplice to the killing. The witness produced the knife they recovered as an exhibit in support of the prosecution case. He confirmed that post-mortem examination on the body and DNA profiling of the deceased's blood samples and the knife were also done by relevant experts. 9. PW7 also exhibited photographs the officers took at the scene as well as a certificate issued in respect of processing of the photography for use as evidence. 10. Under cross-examination by the defense counsel, PW7 stated that they found no eye witness to the attack. Investigations, however, showed that the deceased died after a fight. It was not established if the 1st Accused person's fingerprints were on the knife suspected to be the attack weapon. **The Defence Evidence** 1. The Accused persons were put on their defence to the charge after close of prosecution evidence, and both chose to offer sworn evidence. The 1st Accused confirmed visiting and meeting the deceased in the bar in question on the date under reference at around 7:00 p.m. He contends that the deceased started assaulting him with fists without any provocation, causing him to fall down. The 2nd Accused, who was also in the club, restrained the deceased who was allegedly vowing to beat him to death. The club operators chased them out for the disturbance. The 1st Accused stated that he could not fight back since the deceased was well built and usually violent. When he got a chance, he fled for his safety. 2. The 1st Accused further told the court that a mob went to his home the following day and arrested him. He was taken to the local Trading Centre amidst threats to lynch him. Afterwards he was escorted to Ndege-Ndimu Police Post. He denied killing the deceased. 3. The 2nd Accused affirmed his co-accused's evidence. He told the Court that he had gone out of the bar to find the 1st Accused and the deceased quarreling He counselled them against fighting and they obliged. The two then went back into the bar as the 1st Accused left for home. 4. The 2nd Accused continued to tell the Court that the police arrested him the following day for allegedly attacking the deceased. He did not know the circumstances in which the deceased met his death. The 2nd Accused also told the Court that he never sat down with the 1st Accused while inside the bar in question. 5. Learned Counsel for the Prosecution and the Defence filed their final written submissions which the court has carefully perused against the record. 6. The Prosecution Counsel submits that in homicide cases, death is presumed to have been unlawfully caused unless it is otherwise accidentally caused in circumstances that make it excusable. The Ugandan cases *to wit*; **Uganda V. Lydia Draru *Alias* Atim HCT-00-CR-SC-0404 High Court of the Republic of Uganda** and **Akol Patrick & Others V. Uganda (2006) HCB (Vol. 1) 06,** as well as **t**he Court of Appeal for East Africa’s decision in **R V. Gusambiza s/o Wesonga 1948 15 EACA 65** are cited in the Prosecution submissions *inter alia* to underscore the legal position . 7. The Defence Counsel in their submissions correctly state the law regarding circumstantial evidence the Prosecution relies upon. 8. Case law in **Republic V. Gideon Wambua Kioko & 2 Others (2019) eKLR** lists three essential elements of the offence of murder as hereunder; 9. The death and cause of death of the deceased. 10. That the accused caused the death through an unlawful act or omission. 11. The accused possessed the intention to cause harm, or kill, or malice aforethought. 12. The sole issue for determination is whether the prosecution has proved beyond reasonable doubt that the Accused persons murdered the Deceased, actuated by malice aforethought. 13. There is no direct evidence linking the accused to the killing as none of the witnesses testified to seeing the accused burning his house or otherwise commit the offence. Determination of the case therefore wholly depends on circumstantial evidence. In **Mwangi vs Republic (Criminal Appeal No. E054 of 2023) [2024] KEHC 3113 (KLR) 15 March 2023) (Judgment)** this court explained that for circumstantial evidence to be reliable it must be inconsistent with the Accused person’s innocence. 14. In the case of **Ahamad Abolfathi & Another vs Republic (2018) eKLR** also cited by the Prosecution Counsel, it was elaborated that; **“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.”** 1. In a much older case **(Republic vs Taylor, Weaver & Donoram (1928) Cr. Application R 21)**, it was observed that; **“Circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable or proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that is circumstantial.”** 1. In the often-quoted case of **Sawe vs. Republic (2003) KLR 364,** it was stated that circumstantial evidence must satisfy three tests, namely; - **“The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”** 1. As in the case of **R vs Kipkering Arap Koskei (1949) EACA 135** Counsel further made reference to**,** the prosecution must also show that there existed in-culpatory facts that were incompatible with the innocence of the Accused and incapable of any explanation upon any other reasonable hypothesis other than that of guilt. 2. **Section 206 of the Penal Code** provides that malice aforethought is proven by one or more of the following circumstances; - 3. **Intention to cause death or do grievous harm whether the death actually occurs or not**. 4. **Knowledge that the act or omission causing death will probably cause the death or grievous harm to a person, whether the death is actually caused or not**. 5. **An intention to commit a felony**. 6. **An intention by an act or omission to facilitate flight or escape from custody of any person who attempts to commit a felony**. 7. The prosecution does not have to prove the motive for commission of any crime, and neither is the evidence of motive sufficient by itself to prove commission of a crime by a person who possesses the motive {(**see Case law in Robert Onchiri Ogeto vs Republic (2004) KLR (1a).}** **Determination** 1. As discerned from the evidence before the Court, none of the prosecution witnesses testified to seeing any of the Accused persons assaulting and fatally injuring the deceased. The evidence only shows that there was a quarrel between the 1st Accused and the deceased before the latter was thereafter found dead. He was the last person seen with the deceased before his death. None of the members of the public, who included one "John of Fish" who conveyed information of the attack to PW2, was called to testify. These were the witnesses who probably saw the persons who fatally injured the deceased. 2. The Prosecution Counsel alluded to application of the "last seen doctrine" in criminal cases where, as is the case here, the available evidence is only circumstantial. This principle derives from **Section 111 (1) of the Evidence Act**, which provides that when a fact is especially within the knowledge of any person, the burden of proving such fact is upon them. It is an exception to the rule that the burden is always on the Prosecution to prove a charge. This onus is, however, rebuttable by a satisfactory explanation. 3. Application of the "last seen doctrine" has been reiterated as by the Court of Appeal in **Kaburu vs Republic (Criminal Appeal 103 of 2023) (2024) KECA 536 (KLR) (9 May 2024) (Judgment).** The court may convict on the basis of this principle if satisfied beyond reasonable doubt that the person last seen with the deceased before his death was the killer. 4. The Accused persons were the ones last seen with the deceased in the evening of 11/12/2021 before he was found dead a while later. It is undisputed that he quarreled with the 1st Accused before they got out of the bar in the company of the 2nd Accused. The 1st Accused in particular, therefore, has the duty of explaining what happened between them outside the bar from which they were removed for creating a disturbance. The explanation has not been offered. 5. The circumstances prove beyond reasonable doubt that the 1st Accused murdered the deceased. Considering that the deceased died of a stab wound to the chest, the intention was clearly to kill. 6. There is, however, no sufficient evidence that the 2nd Accused was also involved in the murder. It is not shown that he also had a grudge with the deceased. His explanation as to what he did when the three got out of the club is not rebutted by the prosecution. 7. The 1st Accused is accordingly convicted of the offence pursuant to **Section 215 of the Criminal Procedure Code**, while the 2nd Accused is acquitted thereof under the same statutory provision. **Judgment delivered virtually this 7th day of July, 2026.** **J.M NANG’EA, JUDGE.** **In the presence of:** **The Prosecution Counsel, Mr Wakasyaka.** **Ms Karuga Advocate for the 1st Accused.** **Ms Ngugi Advocate for the 2nd Accused.** **Both Accused persons.** **The Court Assistant, Jeniffer.** **J. M. NANG’EA, JUDGE.**