https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11552

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NANYUKI** **CRIMINAL CASE NO. 19 OF 2019** **REPUBLIC …………………………………………….………. PROSECUTOR** **=VERSUS=** **RICHARD MITHIKA KARUME …………………………………… ACCUSED** **JUDGMENT** 1. The Accused herein, Richard Mithika Karume, was charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on the 28th day of June 2018 at Kibunja Market Kaburaini Location in Kieni East Sub-County within Nyeri County murdered Stephen Kangangi. 2. To prove its case against the accused, the prosecution adduced evidence through 13 witnesses, whose testimonies are summarized below. 3. **PW1, Josephine B. Cadida** **Wambui** told Court that she lived in Narumoru and worked at a hotel. She recalled on 28.6.18 she was 16 years old schooling at at Irigithathi Secondary school - form 2 which was a day school. She was living at Kibunja with Zipporah Wambui her mother and Richard Mithika, her mum's boyfriend who is the accused. Rosemary Njoroge was also living there, she was 5 months old then. Stephen King’ang’i also stayed there too. The house had 2 rooms. On 28.6.18, she woke up in the morning but she was not going to school due to fees. When she woke up, her mum, the accused and her little sister were home. Stephen her brother had gone to school. He was 8 years old. She made Lunch and at 4:00 p.m she left home and went to her grandfather's place. The accused had left home at 2.00 p.m. Her mother had left to look for potatoes. She was left with her little sister. Her grandfather lived at Motel area which was around 3 kms away. She left no one at the house and she went to her grandfathers with her little sister. She locked the door and put keys where they usually kept them. All the residents including the accused knew where the keys were kept. She returned home at 6.50 p.m and found her brother was not at home. She found the door was not locked. The padlock was not there. She looked around for her brother in vain. Ordinarily he would come home around 4.30 p.m. Her mother was working 1 km away. She went there at Kibunja and informed her mother that she could not trace her brother. Her mother closed the business and they both went home. They found some stuff was missing and still there was no one at home. They noticed the accused's clothes were missing from the house. She was left with her little sister at home. Her Mother went to their grandfather’s. She then saw bloodstains leading towards under the bed, she got curious and lit a paper. There was electric light but she could not see under the bed. She saw her brother. He was dead. The curtains caught fire from the paper that she had lit. She tried to extinguish. She called neighbors. She was able to put off the fire. In the meantime, her mother was called. She removed her brother from under the bed. She noticed the deceased was stabbed on the stomach and neck. The Sub-Chief was called and he came. Police were called and they took the body to the mortuary. She recorded a statement at Narumoru Police Station. The accused never came back since that day. The door to the house had not been broken into. It is only her, her mum, her brother and accused who knew where the key was. One key was with her mother. They would use the other key i.e. herself, her late brother and the accused. No one else knew where the key was. The door was unlocked but left ajar. 4. **PW2 was Zipporah Wangui Wamahiga**. She told the Court that she lived at Narumoru and was a green grocer. She recalled on 28/6/18 she was Living at Narumoru at Kibunja with Josephine, Roseline, Stephen and the Accused. By then Josephine was 16 years, Stephen was 8 and Roseline was around 5 months old. She lived with the accused. He was her boyfriend. The house she lived in was a double room. On 28.6.18 she woke up and did chores and also prepared Stephen who went to school. PW1 was home due to school fees. She woke Josephine and told her to take care of Roseline. She left the young child too and others in the house. The accused said he was unwell that day. PW2 stayed in the shamba till 12.00 p.m. She went to her parents’ home. She heard the accused call her from outside who told her he had come to check on her. She made tea in her mum's house and they took just the 2 of them. They carried the potatoes she had and they returned home. They found Josephine and Roseline at home. She told accused that she was to go to work. She told PW1 to peel some potatoes and also to prepare githeri to take at her work place. The accused offered to help her carry the githeri. She received a call and the accused questioned her who she was speaking to. She told him the phone was hers and could speak to whomever she desired. She took her githeri and left him behind. On arrival at the market she saw the accused had followed her. She went to buy cooking oil at Narumoru. As she took a boda boda, the accused told her he wanted her to go with him. She told him they were not going together. She left him at the stage. As she reached Narumoru, Muthoni a neighbor called her and told her the accused had followed her on another boda boda. She entered a shop and bought cooking oil and took a vehicle back to work. She did not see the accused as she boarded the vehicle. It was about 3-3.30 p.m. She found deceased had left school and he was at her workplace. She told him to go home and he would find Josephine and Richard. They had 3 keys. One was spare. She and the Accused each had a key. The children would always pick keys from her. She called Mithika and asked about food. She asked if he had seen deceased. He said he had not. The accused offered to bring her food and sweater. Esther Wanjira came and she invited her to eat with her. The accused looked uneasy. He then left and he took 3 "ngumu" and tea. She told him she would pay. He left about 5 to 5.30 p.m. and never told her where he was going. At 6.30 p.m. accused called her and asked if the man she was talking to at Narumoru was the father to the child. She disconnected. At around 7.00 p.m. she saw Josephine who told her Stephen had not gone home. She called Accused and asked about deceased and he told her he did not know. She told him to come for her so that they look for the child. He said he would not come he was at Namae's Hotel. She left the shop with PW1 at 7.30 p.m. and found the house was not locked. She checked the bed which was in the sitting room and deceased was not there. She went out checking around for the deceased but didn't find him. She thought of looking for him at her parents. She did not check in her bedroom. As she walked towards the main road to take a boda boda to go to her parents, the accused told her not to ask him about the child again and that men are many she could give birth to other children. The accused called her again and told her that they had thought they are very wise and that they could not eat his money for nothing. She reached the stage of boda boda and was called by one Njoki who told her to return home the child was at home. She told her to return and stop going where she was headed. She returned and found neighbours crying. She entered the room where she used to sleep and found the bedroom was turned upside down. She noticed all clothes and shoes belonging to accused were not there - she dragged the body of the deceased from under the bed where he was. She noticed he had been stabbed on the stomach and he had been cut on the neck. She did not do anything else - Police Officers came from Naromoru and body was taken away. She recorded statement at Naromoru Police Station. On 8.10.2018, the DCIO Naromoru Police Station called her and said that they had arrested the accused. From 28.6.18, she never saw the accused again. She went to Naromoru Police Station on 9.10.18 and found accused had been taken to court. She saw the accused in a vehicle and confirmed that accused was the suspect. He was wearing her black leather jacket. She identified the jacket - MFI P1. She was taken to accused's cell the next day 10.10.18. The accused had clothes in a sack. None was hers save for the jacket. The accused confirmed on being questioned that the jacket was hers. He sought forgiveness from her and if they agreed he would bring cows which she declined. She was shown a knife that they had taken from her house. The knife was hers. The blood matched the blood of deceased. She identified the knife. It had no handle. She recorded a further statement. Their door was not broken into on the material day. The door key was with her then and she used to lock the door. When recalled, PW2 told Court on cross examination that she recorded a statement on 1.7.2018, another statement on 14.10.19 and a third one too. She said that she had three children, Josephine the first child, Deceased the 2nd and 3rd Roseline Thompson. She said that they did not get a child with the accused. She said that on 28.6.18 is when the deceased was killed. The deceased's father was Richard Mwangi who is the father of deceased and Roseline. PW1 had a different father. On 27.6.18 in the night, she was with Richard. The accused used to work at Shalom school but was sacked. He then got a job at Snow View farm. He would work in the morning to evening. He was not working at night. On 27.6.18, she did not go with 5 men to see accused at his place of work. In her 1st statement of 1.7.18 at line 23, she stated that Richard asked her about the men she was with at Naromoru. She told him she would tell him at home. She stated that they were having differences and any time she was called by anyone, he would question her - He would follow her everywhere. She had seen deceased coming from school on the material day. The deceased was 8 years old then. He would take himself to and from school. 5. **PW3 Dr. Ayub Gitaka Macharia,** a Consultant filled a post mortem report in respect of Stephen Kingangi (deceased). He performed the post mortem on 2.7.18. The deceased was a male African, 8 years old and he was 122 cm in length. On external appearance, the head and face were covered with dry blood. There was a horizontal anterior neck cut 10 cm in length cutting through the right and left artery (major vessels of the neck) and severing the right and left internal jugular vein. The cut was cutting through the trachea. The cut was severing the esophagus. It cut the major organs of the neck. There was a cut on the abdominal area which ran from lower chest to the left side of the abdomen. This was on the left side. On opening the body, he confirmed that the trachea was cut and major vessels in the neck were cut on both sides. There was exposed large colon and small intestines on the cut wound. There was collection of blood in the abdominal cavity. From the examination, he formed the opinion that the cause of death was the cut or severed major vessels of the neck. Blood was taken. The post mortem report was stamped and produced as an exhibit. 6. **PW4** was **John Njoroge Mithiga** who told Court that he lived at Nanyuki and was a farmer. He recalled on 2/7/18 at 10.00am he went to Nanyuki referral hospital and identified the body of Stephen King’ang’i. He was his grandfather. The body had injuries on the stomach and neck. A post mortem was done. The deceased was living with Wangui the mother and Richard Mithika, the Accused. 7. **PW5** was **Gilbert Muchoki Simon**. He told Court that he lived at Nanyuki and was a boda boda rider between Kibunja Nanyuki. That on 28/6/18 he was called by Zipporah and she asked him to drop her at Nanyuki from Kibunja. He used his bike to drop her at Joruna Apartment - There is a hotel. She told him that she would call him on her time to return. At 8pm, he heard colleagues saying that the child of Zipporah had been killed by the accused - Jack. The Accused was living with Zipporah. They mobilized and started searching for Accused. They did not find him. He disappeared completely. He knew the accused was living with Zipporah. He recorded his statement. No one forced him to record a statement. When he dropped her at Joruna, he left her outside. He did not see her meet anyone. He learnt of the death from villagers. He never saw the accused again in the village after the incident. 8. **PW6** was **Esther Wanjira Gatu**. She told Court that she lived at Manyatta and was a farmer and business lady. On 28/6/2018 at 5.00pm she was on her way to sell tea leaves at Kibunja. She went to the business of Wangui, a neighbour and found them with the Accused and she knew they lived together. She saw the accused panting and asked if he was sick. He said he had sprayed crops. She wanted to give him treatment. He was asked by Wangui if he had taken drugs. He was told to go home and come back for Wangui as usual later. This was about 5.30pm. She stayed with Wangui for minutes and she went home. In the night Wangui called her sometime before 9.00 pm and told her that a child they were looking for was found killed under a bed. 1. **PW7, Elizabeth Oyiengo** a Government Analyst based at Government Chemist Kisumu told Court that on 11/7/2018 at the Laboratory at Government Chemist Nairobi she received the following from PIC Anyona of Naromoru; Item 1 labelled K which was a handless kitchen knife in a khaki envelope and Blood sample indicated as of deceased Stephen King’ang’i. She was to examine the items and confirm origin of blood. Findings were that the knife item K was stained with human blood and DNA profile generated from the blood stains are recorded in the report and conclusion is that the DNA profile generated matched the DNA profile generated from blood sample indicated as of deceased Stephen King’ang’i which was a perfect match. She compiled the report and signed on 19/3/2020 and produced it as Exhibit. She identified the knife shown to her as the one she received. The report was produced as Exhibit 4(b) Exhibit memo from Exhibit 4(a). 2. **PW8** was **No. 234524 C.I Bernard Koech** formerly of Naromoru police station but now working at KRA at the time of testimony. He told Court that on 28.6.18 at 6:30 pm, he received a call about murder within Narumoru. He mobilized Officers including deputy OCS C. I. Wanjiru. They went to scene and found one child, Stephen Kirig’ang’i had been killed. The scene was in a house and the body was under a bed. There were deep cuts on neck and stomach. There was a crowd among them the mother of deceased. The house had 2 rooms. The bed under which body was found was the sitting room. He interrogated the mother who told him the deceased was last seen with the accused at around 1600 hours that day. He searched the house and they recovered the killer knife. The suspect was at large. He could not recall exactly where he recovered the knife. The knife had blood stains. The same identified as (MFI-P2). They kept the exhibit and handed over to the Investigating Officer I.P Wanjiru. They moved body to Nanyuki County Referral. Nobody was arrested on that day. 3. **PW9** was **No. 58160 CPL Eric Kithinji** of DCI Laikipia Headquarters as a Crime Scene Investigator. He produced in Court photographic certificate and photographs. That the certificate was prepared by Isaac Kitui. The said Officer is based at Kiganjo but formerly of Nyeri Headquarters, that he worked with him for 2 years and was conversant with his signature. PW 9 further stated that on 16.6.21 the report was made. Kitui was a Gazetted Officer certified that on 16.6.21 he received a CD purporting to contain photographs and exhibit Memo form sent by Sgt Hussein Rija of Kieni - DCI requesting him to prepare positive enlargements. He prepared the prints and he numbered them 1-4 showing a deceased child with a cut on the neck and abdomen. The same are as nearly as exactly as from the CD and have not been altered. He signed the report and stamped it. It is dated 16.1.21. 4. **PW10 No. 236568 C.I Francis Wambura** of DCI Sub-County Mhooni, stated that in 2018, he was attached as deputy DCI Kieni East. On 28.6.18 at 9:00 pm, he was present in his house. He was called by Deputy OCS CI Koech and informed of an incident at Kabiru-ini, Mung'etho Market. He proceeded to the scene and found a young child aged 8 years named Stephen King’ang’i had been placed under a bed dead. On arrival they preserved the scene. The house had 2 rooms with 3 doors - 2 external to the rooms and a centre door joining the 2 rooms. There were 2 beds and inner room had blood flowing on the floor. They pulled the child out and on examination, the neck of the child had deep cut and at the chest the intestines were protruding. They documented the scene and collected information from bystanders. They recorded the statements. The mother was there in a shock and crying. She could not interview her then. Body was moved to Nanyuki Referral to await post mortem. At the house was a handleless knife with blood stains. It was kept at the Police Station awaiting to be taken for analysis. He delegated several Officers to start investigations. On 2.7.18 having been given the phone number of the suspect, he wrote a letter to Liaison Officer DCI giving the No 0702256857 which was the suspect's phone number. Information was given by the mother to the deceased. He got a report from Liaison Officer which implied that on 28.6.18, the suspect before noon had followed Zipporah to Narumoru. He is the Accused. They were cohabiting at Mung'etho. The data showed that his No Number 0702256857 was registered by him. It shows he was using Itel phone and he got the MI number 27273198 which is ID No. On returning back to Mung'etho and after committing the offence, he went back to Narumoru and proceeded towards Chaka, passed Karatina to Makutano heading to Embu and Wanguru in Mbeere. On 29th (the next day), the suspect switched off the phone. 5. When a postmortem was conducted a blood sample of deceased together with the blood stained knife were taken for analysis at Government Chemist. The blood on the knife was confirmed to be that of the deceased. 6. Having gotten the MI No of the Itel phone, PW10 wrote to the Liaison Officer. He sent data indicating that the Accused was staying at Narok Sub-County. He prepared a team of Officers including David Roma and proceeded to Narok Sub-County and they found that Richard was selling boiled eggs and they arrested him on the 7.10.19. They placed him at a Police Station in Narok Vide OB 16/07/10/2019 awaiting to be ferried to Narumoru and be charged. On 13.10.19 he embarked on interrogation of the suspect at Narumoru Police Station. He realized that he was making a confession. He requested Deputy OCPD who was C.I Francis Muthamia to record the statement of the Accused. He asked the accused if he needed an advocate or relative. He called a relative from home. They complained that he was a threat and that is why he relocated to Mung'etho. He was present when the statement was being recorded in Meru language. The statement was then interpreted to him. The Accused requested PW10 C.I to call the girlfriend to apologize and give a cow and other proceeds. 7. The accused had been reported to have gone with the lover’s black leather jacket and it was confirmed to be the one the accused was wearing at arrest. PW10 affirmed that he wrote to Safaricom Officer on 3.7.2018. He produced the letter as an exhibit. He received data showing the movement of the suspect. He wrote again to Liaison Officer to trace No. 0798703565 which the accused was later using. His location was established. 8. **PW11 No. 241433 IP David Rono** Officer at Regional Office Central region formerly DCI Kieni East. He recalled that on 7.10.19, the then DCIO and Investigating Officer sent him with CPL Muturi and PC Muhoro. Investigating Officer was IP Wang'oe. He sent them to Narok at Narso - Narosuura to effect arrest against the accused. He was a murder suspect. He told us that he had relocated there. They got to Narosuura and sought assistance of OCS. They informed him of their mission. The OCS seemed to know him. On 7.10.19 at 10pm they arrested him and escorted him to Narumoru Police Station. He was hawking boiled eggs. They escorted him to the Investigating Officer. 9. **PW 12 Francis Mwongera Muthamia** Force No. 23312 was a Chief Inspector before he retired. He told Court that in 2019 he was at Narumoru Police Station. On 13.10.19 at 11.00 am, the Investigating Officer Inspector Wambua asked him to take a confession by the Accused person. The suspect was brought to him at the DCIO's Office at 11.00 hrs. He was alone with the suspect. He was dressed in civilian and not armed. The physical condition of Suspect was alright. He made no complaints. He informed suspect of his rights and asked if he would like to have a relative present and he declined. The suspect used Kimeru language. He took 1 hour with the accused between 1100 hrs to 1200 hrs. He was not the Investigating Officer in the matter. The suspect did not ask for any break. He raised no complaint. The statement is headed; The Confession in Meru language of Richard Mithika Karume. On 13/10/19 he cautioned the suspect in words *"Do you wish to say anything. You are not obliged to say anything unless you wish to do so. Whatever you say shall be put into down in writing and may be used as evidence."* 1. The suspect signed the caution putting his name and ID NO. After he recorded his statement, the same was interpreted into English and the officer made a certificate of interpretation. He was the one who recorded the statement. He read it back to the suspect. He wrote his name and Identity Card number. The statement was read in open Court. PW 12 further stated that the suspect wrote his name and identity card number. He confirmed to have recorded the statement and interpreted it from Kimeru to English. The statement was produced as evidence in Court both in Kimeru & English and a Certificate thereto was exhibited. 2. **PW13 Ambrose Munywa** of Safaricom PLC, a data analyst Law enforcement unit told Court that he has worked for more than 10 years. On 10.7.18 in respect to a police data request dated 3.7.18, requesting for call data records of Mobile No. 0702256857 as from 28.6.18 to 4.7.18. he processed the cell data records. The request was signed by C.I. Francis Waiganjo - DCIO Nyeri East. He forwarded the processed data to the Investigating Officer. The holder of that line was Richard Mithika Karume, ID No 27273198. He printed the data for 28.6.18 to 4.7.18. The phone was in use upto 29.6.18 at around 0741 hrs. On 28.6.18 11.29 am the phone was at Mungetho, Mt. Kenya. On 28.6.18 at 5.54 pm, the signal was at Mungetho, Mt Kenya. At 18.42 hours, it was captured at Chaka. At 18.43 it was at Nyeri hub 11. At 18.52, it was captured at Kirichu. At 18.58 hours it was at Marua. At 1916 hours, it was captured at Shirikisho traders. At 1927 hrs it was captured at Karatina town. At 1952 hours, it was at Mwanda. At 2026 hrs, it was at Mathatani Mwea. At 2117 hours it was captured at Wanguru South Gate. The signal remained at Wanguru. On 29.6.18, 0741 hours it was captured at Wanguru. No further activity was captured. This means the mobile phone was not active probably switched off. He prepared a certificate under Sect 65 (B) as read with part 7 S 106 A and 107 of the Evidence Act. This confirmed that he extracted and printed the data. He signed the certificate on the 25.4.25 which was produced as exhibit in Court. 3. Upon the close of the prosecution's case, the Court found that the accused had a case to answer and accordingly placed him on his defence. 4. **DW1 Richard Mithika Karume (accused)** gave a sworn statement. He stated that he knew Stephen King’ang’i as he was living with him as his child. That he was living with Zipporah Wambui his wife. That the deceased was not his biological child. That they were also living with a child called Josephine. He was working as a watchman at night at Shalom School and had worked for 7-8 years thereabouts. He added that he would report to work at 6.00 pm and leave at 6.00 am. He would go home where he was living at Kibunja with his wife and children. Zipporah was doing business at Kihunja as she had a small Kiosk. She would work from 10.00 am or 7.00 am depending and she would close at 8 or 8.30 pm. On 28.6.18 he left work at 6:00 am and went to the house as he was not feeling well. He slept until 1.00 pm, took a shower and asked Zipporah that they go to the Shamba. Josephine had gone to see her relatives. He had leased a Shamba at Mungetho and they went with Zipporah and they planted potatoes till 2:30 pm. They walked to the farm which was about 7 kms away. When they returned they took lunch and he prepared for work in the evening. That he did not see Stephen Kingangi the whole day. He changed the statement and said that he saw the deceased in the morning as he prepared to go to school. In the evening he did not find the deceased. That he prepared and left home at 6:00 pm. and that he did not go to work. When they were planting potatoes they had quarrelled with his wife as she told him that she did not want him as she had other men. This is why he did not go to work. Instead he went to work at Narok as another job had been found for him. He carried only his clothes. That he put off his phone as Zipporah was disturbing him. At Narok he engaged in farming activities. That he did not kill the deceased and that he had even reported to the police at Narok. That Stephen Kingangi was like his own child. He asked the court to dismiss the charges. 5. On cross examination he stated that his employer Isack had told him to leave work the previous week as he had differences with Zipporah. That he was arrested on 7.10.19 and brought to Naromoru Police Station. His identity card No. is 27273198. That he was interviewed by police and recalled C.I. Francis Muthama. He recalled that the C.I said he (the Accused) had on 28.10.18 he killed Kingangi. That the Officer fixed him to say so. That at no time did he come to Kihunja since the killing of the deceased. That at Narok he was using the same phone number and never changed the same. That the phone lost charge and the phone got lost but he replaced the number and that he kept his phone on. He used to communicate. He recalled an Officer from Safaricom testified and said that the phone was put off but the truth is that the phone got lost. He did not have the phone number of his family. He added that he was arrested by police and brought back to Kibunja after more than 1 year. 6. The defence relied on the evidence on record without making submissions. 7. The prosecution filed final submissions. Learned Counsel Miss Kimani based the prosecution’s case on the doctrine of last seen, the circumstantial evidence which includes the fleeing of the Accused from the locality to Narok and the confession made by the Accused before Chief Inspector Muthamia. Counsel submits that evidence that the Accused was the author of the Act that led to the death of the deceased. 8. On malice aforethought, it is submitted that this ingredient of the offence was also proved. Reliance was placed on the decision in **John Mutuma Gatobu v Republic Criminal Appeal No. 78 of 2013 and Bonaya Tutu and Another v Republic MLD CA Criminal Appeal No. 43 & 50 of 2014.** 9. I have had occasion to consider the charges, the evidence adduced, the submissions on record and the applicable law. The issue for determination is whether the prosecution has proved beyond reasonable doubt that the Accused murdered the deceased. **ANALYSIS AND DETERMINATION** 1. The cardinal principle in every criminal trial is that the burden of proving the guilt of an accused person rests throughout upon the prosecution and never shifts to the accused except in the limited statutory exceptions which are inapplicable herein. The accused bears no obligation to prove his innocence. Should any reasonable doubt remain after the whole of the evidence has been considered, such doubt must be resolved in favour of the accused. 2. The standard of proof is proof beyond reasonable doubt. It does not mean proof beyond all possibility of error, but proof which leaves the Court with no reasonable doubt that the accused committed the offence charged. In **Miller v Minister of Pensions [1947] 2 All ER 372**, Lord Denning explained that proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. Similarly, in **Woolmington v DPP [1935] AC 462**, the House of Lords affirmed that throughout the web of the criminal law one golden thread is always to be seen, namely that it is the duty of the prosecution to prove the prisoner's guilt. **See** Sawe **v Republic [2003] KLR 364**. 3. The accused is charged with the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code. Section 203 provides: *"Any person who of malice aforethought causes the death of another* *person by an unlawful act or omission is guilty of murder."* 1. Consequently, the prosecution was required to establish beyond reasonable doubt the following ingredients: 2. That the deceased died; 3. That the death was caused by an unlawful act or omission; 4. That the unlawful act was committed by the accused person; and 5. That in committing the act, the accused acted with malice aforethought as defined under Section 206 of the Penal Code. See **Anthony Ndegwa Ngari v Republic [2014] eKLR**, **Roba Galma Wario v Republic [2015] eKLR** and **Bonaya Tutu Ipu & Another v Republic [2015] eKLR**. **PROOF OF DEATH** 1. Medical evidence was tendered through PW3, Dr. Ayub Gitaka Macharia, who performed the post-mortem examination. The doctor observed a massive cut wound extending across the neck severing both carotid arteries, jugular veins, trachea and oesophagus, together with a deep abdominal cut exposing the intestines. His opinion was unequivocal that death resulted from severance of the major blood vessels of the neck. The post-mortem findings corroborated the testimony of the eye witnesses who recovered the body. I therefore find that the fact and cause of death were proved beyond any doubt. 1. The injuries suffered by the deceased were brutal, deliberate and extensive. No lawful justification, excuse or accident was suggested. The deceased was an innocent eight-year-old child who suffered multiple deep cuts to the neck and abdomen. Such injuries could only have been inflicted intentionally using a sharp object. I therefore find that the death resulted from an unlawful act. **Whether it was the accused who committed the offence** 1. There was no direct eye witness to the actual killing. The prosecution case therefore rests substantially on circumstantial evidence coupled with the doctrine of last seen. 2. Circumstantial evidence is often the best evidence because it is founded upon objective surrounding circumstances from which the Court may safely draw an irresistible inference of guilt. In **Sawe v Republic [2003] KLR 364**, the Court of Appeal held that before a conviction can be founded on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. Similar principles were stated in **Abanga alias Onyango v Republic Cr. A. No. 32 of 1990** and **Musili Tulo v Republic [2014] eKLR**. 3. The doctrine of last seen is also applicable in this case. Where a deceased person was last seen alive in the company of the accused and shortly thereafter is found dead, the accused bears an evidential obligation to offer a reasonable explanation as to what happened. Failure to give such explanation strengthens the prosecution case. See **Ahmed Abolfathi Mohammed & Another v Republic [2018] eKLR** and **Republic v EKM [2015] eKLR**. 4. The evidence before Court establishes an uninterrupted chain of circumstances pointing exclusively to the accused. 5. First, PW2 testified that after she reported to work, the deceased left school and she instructed him to go home where he would find the accused. At that point, the accused was the only adult expected to be at the house. The accused himself admitted being at the house and admitted seeing the deceased that morning before changing his evidence and stating that he did not see him during the day. The deceased never emerged alive from that house. 6. Secondly, there was no evidence whatsoever of a forced entry into the house. PW1 testified that the door had not been broken. The keys were only accessible to members of the household, including the accused. The deceased's body was discovered concealed beneath the bed inside the house. The concealment of the body demonstrates an attempt to avoid immediate discovery. 7. Thirdly, PW2 found that immediately after the murder all the accused's clothes had disappeared from the house. He had vanished completely. From the date of the killing on 28 June 2018 until his arrest in Narok in October 2019, he never returned to Kibunja, never attended the funeral and never made any report to police concerning the child whom he claimed to have treated as his own son. 8. Fourthly, Safaricom data produced by PW13 objectively tracked the accused's movements immediately after the murder. The records demonstrate that after being at Mungetho the accused travelled rapidly through Chaka, Karatina, Mwea and Wanguru before his phone became inactive the following morning. PW10 further established through subsequent investigations that the accused later adopted another telephone number to evade detection before eventually being traced to Narok. This evidence completely disproves the accused's assertion that he never changed his telephone number. Indeed, in one breath he claimed he never changed his number, yet in the next breath admitted that the phone got lost and he replaced the line. These are irreconcilable positions which seriously undermine his credibility. 9. Fifthly, the accused was arrested over one year later in Narok after extensive investigations. Significantly, at the time of arrest he was wearing PW2's black leather jacket which had disappeared from the house on the very day of the murder. PW2 positively identified the jacket as hers. The accused himself acknowledged it belonged to her. The recovery of the complainant's jacket in the possession of the accused long after he fled constitutes further incriminating conduct linking him to the events of that day. 10. Sixthly, the murder weapon recovered from the house was scientifically connected to the deceased. PW7 confirmed through DNA analysis that the blood stains on the recovered knife matched the deceased's blood. Although fingerprints were not recovered, the presence of the murder weapon within the house occupied by the accused further reinforces the chain of circumstantial evidence. **Motive** 1. Although motive is not an essential ingredient of the offence of murder, where proved it strengthens the prosecution case. Section 9(3) of the Penal Code expressly provides that unless otherwise expressly declared, motive is immaterial so far as criminal responsibility is concerned. Nevertheless, evidence of motive is admissible because it assists the Court in determining whether the accused committed the offence. 2. The evidence of PW2 established persistent domestic disagreements between herself and the accused arising from his suspicion that she was involved with other men. On the material day he questioned her telephone conversations, followed her to Narumoru against her wishes and repeatedly confronted her over men he believed she was seeing. Even after the child disappeared, he telephoned PW2 and made the chilling remark that she should stop asking him about the child because she could get other children through the many men she had. 3. The accused himself substantially confirmed the existence of this dispute. He admitted in his defence that while in the shamba PW2 informed him that she no longer wanted him because she had other men. According to him, this revelation made him abandon his employment and leave immediately for Narok carrying all his clothes. That explanation is wholly implausible. A reasonable person who had merely suffered a domestic disagreement would not disappear permanently without informing anyone, abandon his employment, switch telephone contacts, remain away for over a year and surface hundreds of kilometres away. His own defence therefore inadvertently confirms the existence of the domestic dispute which supplied a motive for the attack. **Flight after the offence** 1. Flight immediately after the commission of an offence does not by itself prove guilt, but it is conduct from which a court may infer a guilty mind when considered alongside all the other evidence. In **Republic v Tubere s/o Ochen (1945) 12 EACA 63**, and in numerous subsequent decisions, courts have treated unexplained flight as conduct consistent with consciousness of guilt. 2. The accused's conduct after the murder is wholly inconsistent with innocence. He fled immediately, never returned to the village, changed his communication details, remained hidden in Narok for over one year and was only apprehended after painstaking police investigations. His conduct is inconsistent with that of an innocent man. 3. The Prosecution case is further bolstered by the Accused own admission in his statement of confession taken in evidence herein dated 13th October 2019 in which he admitted the offence. This statement coupled with rest of the circumstantial evidence on record leaves no doubt on the culpability of the Accused in the commission of the offence. **Defence** 1. I have carefully considered the accused's sworn defence. It does not raise any reasonable doubt. 2. His testimony was internally inconsistent and materially contradicted by independent evidence. He first stated that he never changed his telephone number. He later admitted that the phone got lost and he changed the number. That contradiction is disproved by the objective Safaricom records showing the original line ceased operation before investigators later traced him through another line. 3. His explanation that he abruptly left for Narok because PW2 allegedly rejected him cannot reasonably explain why he vanished immediately after the deceased was brutally murdered, why he secretly carried away his clothes and PW2's jacket, why he failed to report the alleged domestic dispute to anyone, why he never contacted the family, and why he remained away for over one year until arrested. 1. His defence is therefore a mere denial and does not displace the overwhelming prosecution evidence. **Malice aforethought** 1. Malice aforethought is defined under Section 206 of the Penal Code. The nature of the injuries inflicted in this case leaves no room for doubt regarding the assailant's intention. 2. The deceased suffered repeated deep cuts directed at the neck where vital blood vessels are located. The trachea, oesophagus, carotid arteries and jugular veins were severed. The abdomen was also cut open exposing the intestines. Such injuries demonstrate a deliberate intention either to kill or to cause grievous harm. 3. In **Rex v Tubere s/o Ochen (1945) 12 EACA 63**, the Court held that malice aforethought may be inferred from the weapon used, the manner in which it is used, the part of the body targeted and the severity of the injuries inflicted. The Court of Appeal reaffirmed the same principles in **Bonaya Tutu Ipu & Another v Republic [2015] eKLR** and **John Mutuma Gatobu v Republic [2015] eKLR**. 4. Applying those principles, I am satisfied that whoever inflicted these injuries acted with unmistakable malice aforethought. **Conclusion** 1. Having carefully evaluated the entire evidence, I am satisfied that the prosecution established a complete and unbroken chain of circumstantial evidence. The deceased was last seen in circumstances pointing to the accused; there was no forced entry into the house; the accused disappeared immediately after the killing; fled to Narok; changed his telephone contacts; remained in hiding for over one year; was arrested wearing PW2's stolen jacket; had an established motive arising from domestic jealousy; and offered a defence riddled with contradictions and falsehoods. 2. The cumulative effect of these facts is that they are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that it was the accused who murdered the deceased. The prosecution has proved every ingredient of the offence of murder beyond reasonable doubt. 3. I therefore find the accused, **Richard Mithika Karume**, guilty of the offence of **Murder contrary to Section 203 as read with Section 204 of the Penal Code** and accordingly convict him under **Section 322(2) of the Criminal Procedure Code**. **DATED SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY OF JULY 2026** **A.K. NDUNG’U** **JUDGE**