https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7037

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYANDARUA** **CRIMINAL CASE NO. 24 OF 2023** **REPUBLIC...........................................................................................................PROSECUTOR** **VERSUS** **NAFTALY KAUNA KENDI…………………………………………................ 1ST** **ACCUSED** **JACKINS NGUGI MARANGU………………………………………………. 2ND ACCUSED** **MERCY KENDI KABURU …………………………………………………….3RD ACCUSED** **JUDGMENT** 1. Naftaly Kauna Daniel, Jackins Ngugi Marangu, and Mercy Kendi Kaburuare charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. 2. The particulars of the offence are that on the 11th day of August 2020, at Gwa Kiongo Township, Mirangine sub-county within Nyandarua County, they murdered Erick Mureithi James. 3. Erick Mureithi James, the deceased, was a police officer stationed at Gwa Kiongo police patrol base. It is not disputed that he was friends with both the first and the second accused. He went missing, initially reported as having deserted duty. His body was later found in the Gathanji River in Nyandarua West sub-county. The accused were arrested and charged because they were allegedly the last to be with the deceased on August 11, 2020. Moreover, the second accused was linked to the crime because he was found with some items belonging to the deceased. 4. Naftaly Kauna Daniel, the first accused, stated that he was friends with the deceased but denied any participation in his death. 5. Jackins Ngugi Marangu, the second accused and a friend of the deceased, stated that upon noticing the deceased was missing, he took his belongings for safekeeping. He also denied any participation in the death. 6. Mercy Kendi Kaburu, the third accused, also denied involvement in the death of the deceased. 7. The questions to be resolved are: a) If any or all of the accused were involved in the death of the deceased; b) Whether the charge of murder can be proven against any of the accused. 1. The prosecution based its case on the alleged friendship between the deceased and both the first and second accused. The two confirmed this friendship. The third accused admitted she knew the deceased, as he would buy miraa (khat) from her stall. This close relationship was used to support the theory that they exploited their connection to the deceased to withdraw his cash without his awareness. Although not explicitly stated, it appears the prosecution viewed the withdrawal of the deceased’s money as the motive behind his killing. 2. Ellyjoy Gatwiri Kirimi (PW1), the sister of the deceased, testified that on August 10, 2020, the deceased reported to her losing some money from his account after misplacing his identity card and ATM card. He also mentioned that the first and second accused could access his house because he did not habitually lock the door. 3. Julius Kipkorir (PW24) testified that he knew the deceased, and between July and August 2020, he frequently withdrew money from an Equity agency located at Charity Annex Chemist. 4. Other withdrawals occurred at Faith General Shop between July 27, 2020, and August 11, 2020, as confirmed by Serah Wanjiru Waweru (PW 25). The transactions were made by Eric Muriithi, whose identity card number is 25439231. At the time the deceased was alive. 5. Monicah Muthoni Njoroge (PW31) operates an Equity Bank agency in Ol Kalou. A customer visited the agency on August 22, 2020, and again on September 11, 2020. On both occasions, the customer withdrew cash using the Equity line and identity card registered to Erick Mureithi James, the deceased. She was unable to identify the person who conducted the transactions. Notably, these transactions occurred after Erick Mureithi James's death. 6. The investigating officer, Sgt. Reuben Mwaniki (PW36) alleged that the first accused used the deceased's Easypay account to pay for hotel services. However, George Maina Ruiru (PW3) stated that the first accused made the payment using his mobile phone number 0710278489 on August 6, 2020. 7. Cpl. Ronald Emase (PW33), a data analyst attached to Safaricom, provided data that did not connect the first accused or any other accused individuals to withdrawals from the deceased’s account. 8. From the foregoing analysis on the withdrawals made into the account of the deceased before and after his death, none of the accused persons has been linked to any of the transactions. 9. The three accused were linked to the deceased’s disappearance by the evidence of Paul Mwangi Chege (PW4), a taxi driver. His evidence was that he knew Kauna through his wife (Kauna). Kauna is the first accused. 10. PW4 testified that on August 11, 2020, Kauna requested him to pick him up at Dundori, and they travelled to Nakuru. After finishing their mission in Nakuru, they set out to return to Gwa Kiongo. At the junction to Kabazi, he alighted. He told him to pick someone at Gwa Kiongo. The individual he was assigned to pick up appeared to be intoxicated. He described him as tall and thin. This person was unknown to him. He sat in the front passenger seat. He was in the company of a lady who sat in the rear seat. This was at 4.20 p.m. He drove to the place where he had left Kauna. Kauna joined them in the motor vehicle. They drove via Murram Road to Boiman, arriving at 9 p.m. 11. They drove past Boiman and reached a trading Centre Where Kauna asked him to stop the motor vehicle. Kauna gave him his flash disk. He went to the front seat and opened the front door for the passenger to alight. The three left him in the motor vehicle. Kauna and the lady returned after about 40 minutes and asked him to drive to Engineer. Joram Maina Muthua (PW5) found the body of the deceased the following morning at about 8 a.m. and reported to the police. 12. From the narration of this witness, Kauna (accused 1) was known to him. The man and the lady whom he picked at Dundori were not previously known to him. 13. The body of the deceased was recovered in the Gathanji River, Boiman area. There was no eyewitness to the incident. The evidence against the first accused is therefore circumstantial. In the case of **Mohamed & 3 Others vs Republic [2005]1KLR 722**, Osiemo, Judge, restated what circumstantial evidence is, as follows: ***Circumstantial evidence means evidence that tends to prove a fact indirectly by proving other events or circumstances which afford a basis for reasonable inference of the occurrence of the fact at issue. The circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis but the one proposed to be proved.*** 1. Earlier, in the case of **Republic vs Kipkering arap Koskei & Another 16 EACA 135**, the Court of Appeal held: ***To justify the inference of guilt, the inculpatory*** ***facts must be*** ***incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.*** 1. Naftaly Kauna Daniel, the first accused, chose not to address the evidence regarding his movements on 11 August 2020. This evidence was not challenged. While I am aware that he does not have to prove his innocence, the prosecution has fulfilled its obligation. His failure to respond to the compelling evidence enables the court to conclude that the evidence is inconsistent with his innocence and can only reasonably be explained by his involvement in the deceased’s death. 2. Jackins Ngugi Marangu, the second accused, was connected to the crime through evidence showing he possessed some of the deceased's belongings. PC Joseph Ngatia (PW8) stated that around mid-August, the accused told him that the deceased’s property had been stolen and that he had discussed with his mother and taken the woofer to keep it safe. He was aware that the two were friends. Felister Ngata Nkabu (PW10), the deceased’s mother, testified that the accused called her, saying he had found the deceased’s TV stolen and that he had taken his subwoofer for safekeeping. However, she clarified that she never instructed him to take the woofer. 3. In his defence, the accused claimed that he took possession of the deceased's belongings and kept them at his house after noticing the TV set was missing, and he didn't know the deceased's whereabouts. This was done in front of other officers. APC Paul Mbugua (PW17) confirmed this assertion. 4. The second accused, after explaining when, why, and how he took the deceased’s items, is not deemed responsible for the murder. There being no other evidence against him, I acquit him of the offence of murder. 5. Mercy Kendi Kaburu, the third accused, was linked to the offence through the evidence of the purported identification by Paul Mwangi Chege (PW4), the taxi driver. 6. An identification parade is designed to fairly and effectively assess a witness's capability to recognize a suspect. It offers an opportunity for witnesses or complainants to identify suspects during criminal investigations. The basis of an identification parade is the suspect's description, which indicates that they can identify the culprit. If the witness or victim does not positively identify the accused, a conviction cannot be secured unless there is other evidence that conclusively connects the suspect to the crime. The Court of Appeal in **Samuel Kilonzo Musau v. Republic [2014] KECA 372 (KLR)**expounded on the importance of a properly conducted identification parade. The Court stated as follows: - ***…*** ***As the Committee on Evidence of identification in Criminal Cases, 1976 (The Devlin Committee), Cmnd, 338 observed the identification parade is not a scientific test and cannot be treated as one. Instead, it is merely the best practical method of achieving an identification without confrontation. The purpose of an identification parade, as explained in Kinyanjui & 2 Others vs Republic (1989) KLR 60,****“is to give an opportunity to a witness under controlled and fair conditions to pick out the people he is able to identify, and for a proper record to be made of that event to remove possible later confusion”****. It is precisely for that reason that courts have insisted that identification parades must be fair and be seen to be fair.*** ***Scrupulous compliance with the rules in the conduct of identification parades is necessary to eliminate any unfairness or risk of erroneous identification. In particular, all precautions have to be taken to ensure that a witness’s attention is not directed specifically to the suspect, instead of equally to all persons in the parade. Once a witness has properly identified a suspect out of court, the witness is allowed to identify him on the dock on the basis that such dock identification is safe and reliable, it being confirmed by the earlier out of court identification.*** 1. In this case, the identification parade was conducted by CIP Erick Ochieng (PW29), but it was flawed. There was no record that the witness (PW4) described the person he was to identify. Ideally, this description should have been documented in detail to guide the selection of parade participants and the arrest of the accused. 2. During the identification parade, all participants wore masks, and PW4 stated he recognized the third accused by her brown eyes. However, he did not clarify whether she was also masked when he identified her. This was a serious oversight by the investigators, who handled the case too casually. It is important to note that during the COVID-19 pandemic, people frequently mistook others they knew. 3. With no other material evidence linking the third accused to the offence, I acquit her of the charge of murder. 4. In order to secure a murder conviction based on the available evidence, the prosecution must demonstrate the presence of malice aforethought. According to Black’s Law Dictionary, 10th Edition, malice aforethought is defined as: ***The requisite mental state for common-law murder, encompassing any one of the following (1) the intent to kill (2) the intent to inflict grievous bodily harm (3) extremely reckless difference to the value of human life (the so-called “abandoned and malignant heart”), or (4) the intent to commit a dangerous felony (which leads to culpability under the felony-murder rule).*** 1. Section 206 of the Penal Code gives instances when malice aforethought may be proved. It provides: ***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.*** 1. Dr Donna Nyamunga performed a post-mortem on the deceased, revealing multiple injuries on the head, chest wall, and arms. Ligature marks on the neck indicated strangulation. The cause of death was determined to be ligature strangulation along with multiple injuries. 2. When considering all of the prosecution's evidence, it convincingly establishes the murder charge against the first accused. I find him guilty and accordingly convict him of the offence of murder. **Delivered and signed at Nyandarua, this 21st day of May 2026** **KIARIE WAWERU KIARIE** **JUDGE**