https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10322

Republic v Kiarie (Criminal Case E034 of 2022) [2026] KEHC 10322 (KLR) (6 July 2026) (Judgment) Neutral citation: [2026] KEHC 10322 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Case E034 of 2022 JK Sergon, J July 6, 2026 Between Republic Prosecutor and Francis Kiarie Accused Judgment 1.The accused, Francis Kiarie, stands charged with two counts of Murder contrary to Section 203 as read with Section 204 of the Penal Code. Count I alleges that on 3rd December 2016 at Mercy Njeri Centre within Nakuru County, he murdered Charles Kariuki alias Karis. Count II alleges that on the same date and place, he murdered John Maina alias Krobon. 2.The accused pleaded not guilty to both charges on 23rd June 2022 when the information was read and explained to him. The matter proceeded to full hearing, with the prosecution calling nine witnesses. 3.At the close of the prosecution case, the accused was placed on his defence. He gave sworn testimony and called three witnesses in his defence. 4.After the close of the defence case, the court directed parties to file and exchange written submissions. The defence filed their submissions on 14th January 2026. At the time of writing this judgment, the prosecution had not filed their submissions. 5.The prosecution's case is that on the night of 2nd December 2016 and the early morning of 3rd December 2016, an incident occurred at Mercy Njeri Centre, Nakuru County. There was an ongoing burglary at an Mpesa shop in the area. The shop windows had been broken, and the area was known for insecurity incidents. 6.The deceased persons, Charles Kariuki alias Karis and John Maina alias Krobon, were found dead at the scene with multiple gunshot wounds. The first body was found outside Westgate bar while the second body was found near the Mpesa shop, about two metres from the first. 7.PW1, Joel Oduor Ombiti, a guard at Kamuka Bar, testified that at about midnight, he saw two young men whom he knew. He later saw a person in a leather jacket, said to be a police officer, approaching. He went inside and heard gunshots. After about ten minutes, he checked and found both men dead. He testified that he met the accused, whom he had known for about two years, and the accused told him he had killed the two thieves. 8.In cross-examination, PW1 testified that he recorded his statement on 8th October 2017, eleven months after the incident. He stated that he did not sign or thumbprint the statement, although he claimed it was his. He admitted that he never recorded a statement at Menengai Police Station. He further testified that he did not see the accused shoot the deceased, as he was inside when the gunshots were fired. He contradicted himself on the number of gunshots heard, stating at one point that he heard two gunshots, then five. He also admitted that he had no identification documents and did not know his employer's contact details. He further stated that he did not know the officer who recorded his statement. 9.PW2, Peter Njogu Kariuki, testified that on 3rd December 2016 at about 6:00 PM, the deceased Karis, who was drunk and violent, caused a commotion at his club. He broke a pool table and banged windows and doors. PW2 called AP officers, but they did not come. He stated that anybody could have thought Karis was a thief. He confirmed the Mpesa shop next door had broken windows. He testified that he did not see who shot the deceased and could not see outside from inside the building. He confirmed the incident happened before midnight. 10.PW3, Fredrick Ng'anga'a Maina, a church caretaker, testified that he called a police officer at about 2:11 AM to report a break-in at an Mpesa shop. About twenty-five minutes later, he heard gunshots. He was about seventy-five metres from the scene. He confirmed the Mpesa shop windows had been broken. He confirmed that he knew the accused since he attended church on weekends. He stated that those who were shot are the one who had broken the windows. 11.PW4, IP Peter Mwangi, a scene of crime officer, testified that he was called to the scene and took photographs. He found two bodies lying in a pool of blood, about two metres apart. He produced a certificate confirming the photographs were processed without interference as PEXB 1 and PEXB 2. 12.PW6, Dr. Daniel Wainaina Ndungu, a medical officer, testified that he conducted post-mortem examinations on both victims. On John Maina, he found six gunshot wounds with entry points on the posterior parts of the body. Internally, he found a collapsed right lung, massive bleeding, a fractured 9th rib, a ruptured liver, and shattering of the thoracic spine. All bullets had exited. On Charles Kariuki, he found nine gunshot wounds: five to the left upper limb, two to the trunk and thorax area, and two in the left hand. Internally, he found a ruptured left lung and multiple gut perforations. One bullet was recovered and handed over to the police. Under cross-examination, he admitted that he did not record wound measurements and did not extract samples for further examination. 13.PW7, SSP Alex Chirchir, a ballistic expert with seventeen years' experience, testified that he received one fired bullet, marked E8, from James Ndombi of IPOA. He also received two pistols from Menengai Police Station: a Ceska pistol serial number KE KPH 5397 and a Ceska pistol serial number KE APF 9089. He conducted microscopic analysis and found sufficient matching striation markings to conclude that bullet E8 was fired from the Ceska pistol serial number H 5397. 14.Under cross-examination, he admitted that he received the bullet from a civilian, not a police officer. He prepared two reports, and the one from Menengai Police Station was not before court. He did not indicate whether the firearms were capable of firing. He did not document the unique markings of the two firearms. Both firearms were of the same calibre. He did not conclusively exclude the second firearm in his report. He forwarded the firearms to Menengai Police Station and has not seen them again. 15.PW8, CI Sheila Kegode, the former Ag. OCS of Menengai Police Station, testified that on 3rd December 2016 at 2:00 AM, she received a report of robbers shot at Mercy Shopping Centre. She proceeded to the scene and found two dead bodies. She found two officers at the scene: Corporal Anthony Kachisa and the accused, Police Constable Francis Kiarie. She disarmed them of their Ceska pistols. The accused's pistol had no rounds of ammunition, while Corporal Kachesa's pistol had ten rounds of 9mm ammunition. 16.Upon cross-examination, she admitted that she did not prepare an inventory for the recovery of the firearms. No cartridges were recovered at the scene. A member of the public brought a spent bullet to the station, claiming to have recovered it before police arrived. The initial report was that two burglars were shot by a police officer while smashing the windows of the Mpesa shop. 17.PW9, Dr. James Muthomi, an IPOA Principal Investigator, testified that he investigated the matter, attended the post-mortem, and seized the bullet recovered from Charles Kariuki's body. He forwarded it to the ballistic expert. He confirmed that the Ceska pistol H5397 was issued to Police Constable Francis Kiarie on 24th November 2016 with 15 rounds of ammunition for VIP protection. 18.In cross-examination, he admitted that no report was made to IPOA; they took up the matter on their own motion after it was reported in the media. The deceased were brothers. No blood samples were taken for DNA analysis. There were two OB reports showing that both officers utilized their firearms. 19.The accused gave sworn testimony and called three witnesses. 20.DW1, Francis Kiarie the accused, testified that he was a police officer stationed at Parliament Police Station, attached to MP Hon. Mutahi Kimaru. On 2nd December 2016, he returned home and slept at about 10:30 PM. He was awakened by his wife at 2:10 AM and informed that his phone was ringing. The caller was Fredrick Ng'ang'a, PW3, who reported a break-in at an Mpesa shop. 21.Afterwards, he heard gunshots. He waited with a neighbour for about thirty minutes before approaching the scene armed with an unloaded Ceska pistol. At the scene, he found two bodies already lying on the ground and police officers already present. He was disarmed by PW8 and his pistol was seized. He stated: "I never shot the deceased persons. I found them dead." 22.He maintained that his pistol was unloaded, that he had no ammunition or magazine, and that PW8 refused to let him go and retrieve his magazine from his house. He noted that Corporal Kachesa's firearm had ammunition. He stated that the ballistic expert testified but he never saw his firearm in court. It was never produced, and he was not given an opportunity to confirm that the firearm examined by the ballistic expert was his. 23.DW2, James Kibathi Wainaina, testified that he knew the accused as a member of his church. He stated that PW1 was not his employee and that he never owned a tractor. He said that PW1 lied to court. 24.DW3, Elijah Muigai Njoroge, the former Assistant Chief, testified that he was called to the scene and found the two deceased persons. He knew them as they had been arrested severally for offences. He confirmed that the accused arrived at the scene after him, and that Administration Police were already at the scene armed. He stated the accused arrived at about 3:00 AM. 25.DW4, Anthony G. Machogu, a neighbour of the accused, testified that he heard gunshots at about 3:00 AM, met the accused near his residence, and they went to the scene together. He stated that the accused told him that it appeared he had no ammunition. He was within three metres when police asked for the accused's pistol, and he heard the accused say he had left something behind. 26.The defence filed written submissions dated 14th January 2026. The key submissions are that there was no direct evidence as no witness saw the accused shoot the deceased; PW1 was unreliable as he disowned his statement, denied the signatures, contradicted himself, and was discredited by DW2; the accused was not at the scene at the time of shooting as he was asleep until 2:10 AM, heard gunshots, and went to the scene after 30 minutes; the accused's pistol was unloaded as confirmed by PW8; there was an alternative suspect in Corporal Kachesa who arrived earlier and had ten rounds of ammunition; the ballistics evidence was compromised as PW7 admitted he did not document unique markings and did not conclusively exclude the second firearm; the chain of custody was broken as the firearm was never produced in court and no inventory was prepared; crucial witnesses including Corporal Kachesa, the armoury officer, and the officer who recorded PW1's statement were not called; the victims were burglars who were breaking into an Mpesa shop with violent conduct confirmed by PW2 and DW3; and there was no malice aforethought as the accused was responding to a call of duty, not acting with premeditation. 27.From the evidence on record, the following issues arise for determination:i.whether the death and cause of death of the deceased persons have been proved;ii.whether the accused caused the deaths through an unlawful act or omission;iii.whether the accused had malice aforethought; 28.Section 203 of the Penal Code defines murder as follows:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder." 29.Section 202 of the Penal Code defines manslaughter as:“Any person who by an unlawful act or omission causes the death of another person is guilty of manslaughter." 30.The ingredients of murder were identified in the case of Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) as the death of the deceased and the cause of that death, that the accused committed the unlawful act which caused the death of the deceased, and that the accused had malice aforethought. 31.Section 206 of the Penal Code defines malice aforethought as: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. 32.There is no dispute that Charles Kariuki and John Maina died on 3rd December 2016. The pathologist, PW6, confirmed the cause of death as massive bleeding and shock due to gunshot wounds. The post-mortem reports were produced as EXB 3 and EXB 4. The first element is therefore proved. 33.The central issue is whether the accused caused the deaths. The prosecution relies on three main strands of evidence: the eyewitness testimony of PW1 who claimed the accused confessed to the killing, the ballistics evidence linking bullet E8 to the accused's pistol, and the circumstantial evidence of the accused at the scene armed and his weapon seized. 34.PW1's testimony is critical as he claimed the accused confessed to the killing. However, several factors undermine his credibility. He denied the signatures on his own statement, stating it was not his. He had no identification documents and did not know his employer's contact details. He contradicted himself on the number of gunshots heard. The statement was recorded eleven months after the incident. DW2 directly contradicted PW1's claim that he was employed by him, stating that PW1 lied to court. 35.The Court of Appeal in Tweka Wamunga v Republic [1989] KLR 424 held that where inconsistencies create doubt on the guilt of an accused person, such doubt must be resolved in favour of the accused. I find that PW1's evidence is riddled with material contradictions and cannot safely be relied upon to prove malice aforethought. 36.PW7's evidence linking bullet E8 to the accused's pistol is the most damning evidence against the accused. I have carefully considered the defence's concerns. The firearm was never produced in court, breaking the chain of custody. PW7 admitted he did not document the unique markings of the two firearms. He did not conclusively exclude the second firearm in his report. He admitted he received the bullet from a civilian, not a police officer. He prepared two reports, but only one was produced in court. 37.Despite these concerns, I find that the ballistics evidence is sufficient to prove causation. The scientific match between bullet E8 and the accused's pistol is clear and unequivocal. PW7 was categorical in his conclusion that E8 was fired from the accused's pistol. The chain of custody is sufficient to admit the evidence. I therefore find that the prosecution has proved that the accused fired the shot that killed Charles Kariuki. 38.The accused argues that his pistol was unloaded and therefore could not have fired the fatal shots. PW8 confirmed that the accused's pistol had no rounds of ammunition. However, PW9 testified that the accused was issued with 15 rounds of ammunition on 24th November 2016, just nine days before the incident. The accused did not explain what happened to that ammunition. The fact that his pistol was unloaded at the time of his arrest does not prove it was unloaded at the time of the shooting. It is reasonable to infer that the accused had ammunition, used it to fire the fatal shots, and the pistol was empty when he was disarmed. I reject the defence of the unloaded pistol. The accused was issued with ammunition, and there is no evidence that he surrendered it or that it was otherwise accounted for. 39.The following factors suggest malice aforethought: the accused fired multiple shots at both victims, six shots on John Maina and nine shots on Charles Kariuki; the shots were aimed at vital areas including the chest, back, thorax, and spine; the use of a firearm is inherently lethal; and the victims were unarmed. For clarity, it is clear that the total number of shots is fifteen which is similar to the number of rounds of ammunition issued to the accused on 24th November 2016. 40.The victims posed no immediate threat to the accused's life; the accused fired multiple shots after the victims were already incapacitated; and a police officer is trained to use proportional force and should not execute unarmed civilians. The sheer number of shots demonstrates an intention to kill, not a loss of self-control in the heat of passion. 41.I am satisfied that the prosecution has proved malice aforethought beyond reasonable doubt. The accused fired multiple shots at vital areas of unarmed victims. The use of lethal force against unarmed burglars is unlawful. The accused's actions were intentional and accompanied by malice aforethought. The ballistics evidence clearly links the accused to the fatal shots. 42.Consequently, I find the accused namely Francis Kiarie guilty of murder contrary to Section 203 as read with Section 204 of the Penal Code on both Count I and Count II, and he is hereby convicted accordingly. DELIVERED, DATED AND SIGNED AT NAKURU THIS 6TH DAY OF JULY, 2026.J. K. SERGONJUDGEIn the presence of:Jamleck/Rutoh C/AMiss Kemunto holding brief for the AccusedMiss Ayumba for State