https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11195

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CRIMINAL CASE NO. 29 OF 2019** **REPUBLIC………………..………………………………………PROSECUTION** **VERSUS** **LOCHUKU LEKEPEI…………………………………………………. ACCUSED** **JUDGMENT** 1. The accused person was charged, alongside others, with the Murder, contrary to Section 203 as read with Section 204 of the Penal Code. The Particulars are that on 23rd and 24th of July 2015 at Mlima wa Chui in Oldonyiro, Isiolo North sub-county, they murdered Morris Munene Mate. 2. The accused pleaded not guilty to the charge. 3. The prosecution called a total of 19 witnesses in support of its case. At the close of the prosecution case, the other accused persons were acquitted vide the Court’s ruling delivered by Hon. Justice T.W. Cherere on 18th April 2024. The accused was placed on his defence. 4. PW1 was Maureen Kendi, the deceased’s widow. She told the court that on 22nd July 2015, her husband left home, saying that he was going for business in Oldonyiro. When she returned home from work that evening, he had not returned. His phone was unreachable, though he had previously alerted her about network issues at Oldonyiro. They managed to speak briefly around 9:00 p.m. when he asked her to prepare supper, but the call got disconnected. He never arrived. That she tried calling him without success. On 25th July 2015, his colleague visited her house looking for him because he missed work. On 27th July 2015, she was called to record a statement at the Isiolo Police Station. 5. The witness further stated that on 28th July 2015, she was informed that some items, suspected to belong to her husband, had been recovered at Oldonyiro. She traveled to Oldonyiro where she was shown blood-stained clothing, which she confirmed belonged to her husband. These were a black hoody, black trousers, a green belt, striped inner wear, and a white vest. The police led her to a scene. On the ground she saw bloodstains and a blood-stained stone. 6. She noted her husband, although a Prison Warder, was in the gemstone business and once saw him in possession of ivory with a friend, who she identified as Willy, who was the 1st accused. That the said Willy and the 2nd accused had previously visited her home. 7. PW2 was Naomi Kawira, the mother to the deceased. She testified that on 24th July 2015, the deceased’s wife informed her that the deceased had gone missing. That on 29th July 2015, an officer from Isiolo Prison informed her that the deceased’s clothes had been found at Oldonyiro. Together with the deceased’s wife, she traveled there and met local police. They were shown the recovered items. The deceased’s wife identified them as belonging to him. She also saw bloodstains in a trench. However, police failed to locate her son’s body. A DNA test was performed using blood samples taken from her, which confirmed that the blood found on the recovered clothes matched her DNA, proving they belonged to her son. 8. PW3 was Erick Bundi, who worked with the deceased. He stated that he received a call from the deceased’s wife who informed him that the deceased was missing. He escalated the matter to his superior officer. 9. PW4 was Florence Karimi, a clinical officer at Isiolo Matercare hospital. She worked with the deceased’s wife. She just narrated how the deceased’s wife received the news of her husband. 10. PW5 was Job Komen. He stated that the deceased worked under him. That he was informed that the deceased had not reported for duty and had been reported missing by his wife. The matter was escalated to his superiors. Thereafter, the deceased was officially declared a deserter for missing duty. A show cause letter was issued, and when the deceased failed to appear for the same he was dismissed from service. 11. PW 6 was Chief Inspector Hussein Mathenge Maina, who worked with the deceased. He testified that on 23rd July 2015, while on duty at Isiolo G.K. Prison, he noticed that the deceased had failed to report for his shift. He officially booked him as absent. When Munene still did not show up the following day, he reported the matter to the Deputy Officer in charge. Thereafter, Bundi (PW3) relayed information that the deceased’s wife confirmed that he had been missing for days. On 31st July 2015, he accompanied the police to Mlima Chui in Oldonyiro in search of the deceased. They did not find him or his body, but at the last alleged scene, in a shrubby area, they recovered a blood-stained stone, a torn vest and underwear. 12. PW 7, who’s name was not recorded, told the court that he worked with the deceased at Isiolo Prison. That on 30th July 2015, he was on duty when he was asked to go to Oldonyiro with his colleagues to search for the deceased. They went there accompanied by deceased’s wife and mother. The O.C.S Oldonyiro Police Station showed them some clothes that were identified by the deceased’s wife. 13. PW 8 was Abubakar Ali Boru, who also worked with the deceased. He told the court that around 10th and 11th July 2015, the deceased had asked him to accompany him to Archers Post to buy precious stones. They went there but they didn’t get the seller of the stones, so they returned to Isiolo that evening. He did not see the deceased again. 14. PW 9 was Francis Lekoni, the Chief Longepto Location in Isiolo North Oldonyiro Division. He told the court that on an unspecified date in July 2015 he met the O.C.S Oldonyiro Police Station, who enquired from him about a body of a male adult that had been recovered at Mlima Chui. He said he was not aware but he wound find out. Later he accompanied the officer to the scene. He met the elders who confirmed that they had received similar information. They searched the forest but they didn’t get any person dead or alive. 15. PW10 was Mark Lenko Sangiloni , a Corporal stationed at Isiolo G.K. Prison. He told the court that the deceased was his colleague. That despite the prison rules forbidding it, the deceased befriended a prisoner (1st Accused) who was serving a sentence from Maralal Courts. That after the prisoner was released in 2013, he frequently visited the deceased’s home and he even transported his wife to work on his motorcycle. 16. The witness stated further that in July 2015, the deceased failed to show up for duty. He went to his home, where his wife revealed that he had left for Oldonyiro with the 1st Accused. A search was launched two days later, but the deceased was never found, and his body has never been recovered. 17. PW 11 was Kipngetich Bernard, a Government Analyst. He produced the DNA analysis report that was prepared by his colleague, which confirmed that the blood stains found at the scene belonged to the deceased who was the biological son of Naomi Kawira. 18. PW12 was Inspector James Akello. He testified that on 7th April 2019, at Tigania Police Station, he conducted an identification parade related to a murder case. The suspect in custody was identified as Willy Samson Lesingiron (1st Accused) Two witnesses, namely Maureen Kendi and Eric Bundi, identified him. 19. PW13 was CIP Rodwell Wafula. He stated that on 28th July 2015, he received a call from DCI Isiolo inquiring if he was holding a businessman who was dealing with gemstones. He also received information that someone has been found dead at Mlima wa Chui. Together with Police officers they searched Mlima Chui but found no body. Later, officers from Isiolo Prison went to the scene and recovered the missing person's clothing namely a black jumper, torn black jeans, a torn white vest, a black belt, red underwear, and a blood-stained stone. That although a Nyumba Kumi elder stated they had seen a body along the road, the deceased’s body was never recovered. 20. PW14 was Senior Sergeant David Chege, a gazetted Scenes of Crime Officer. He told the court that he joined police investigators at Mlima Chui, Isiolo County, to investigate the alleged murder and disappearance of a prison officer, the deceased herein. He took 12 photographs documenting the crime scene. That the investigating team recovered items, which he identified. The officer compiled a report and certificate dated 5th February 2021. 21. PW 15 was Suleiman Mohamed who was at the material time police officer attached at Oldonyiro Police Station. He told the court that he received information that someone had disappeared from Isiolo and was last seen at Oldonyiro. He was notified of a dead body at Mlima Chui near the Million Moja bridge. They visited the area, where several items were recovered from the scene. The collected exhibits were taken to Oldonyiro Police Station for identification by relatives of the missing person. 22. PW16 was Chief Inspector Fredrick Khatengi Makaa. He testified that on 7th April 2019, Sgt. Raphael Wanjohi requested him to conduct an identification parade at the Archers Post Police Station. The suspect (2nd Accused) was identified by Maureen Kendi (PW1). Erick Bundi failed to identify the suspect. 23. PW 17 was Inspector Daniel kieni, attached to the Digital Forensics Lab at the DCI Headquarters. The officer narrated how he extracted data from the phones that were handed over to him. That the analysis focused on six specific phone numbers namely,0708052892, 0722237949, 0727222630, 0710743461, 0710476709, and 0700084857). 24. PW 18 was Corporal Ronald Emese an officer from the DCI headquarters but stationed at Safaricom Headquarters as a data analyst. He narrated how he processed cell data records for nine phone numbers between 12th July 2015 and 23rd July 2015. He focused heavily on tracing the movements and communications of the number belonging to the deceased, namely 0710476709 and those for; 25. Luchuku Lekepei (0710743461), 26. Maureen Kendi (0712796749), 27. Peter Lekolua (0722837949). 28. The witness confirmed direct communication between the deceased and Lekepei on multiple dates, including calls on 17th July 2015 at 11:30 hours at 12:39 hours on 19th July, 2015, and a final call on 23rd July 2015 at 18:40 hours. That Lekolua's number made four calls to the deceased and Lekepei, including a call to Munene on 19th July 2015. That geographic tracking via Base Transmission Stations (BTS) placed the individuals in close proximity during these communications. The calls between Munene and Lekepei were routed through the Kirimon BTS, which is situated between Isiolo and Nanyuki. That by 23rd July 2015, the deceased’s phone was localized within the Isiolo, Nanyuki, and Samburu areas, being served alternatively by both the Isiolo Eaton and Kirimon masts. That because these phones were hitting the same localized cellular towers, the witness concluded that the users were operating within the exact same geographic location. 29. PW 19 was Sergeant Mohamed Hassan of DCI headquarters. He told the court that he and other officers were tasked with investigating this case. **Defence case** 1. In his defence, the accused testified on oath. He averred that he availed himself to the police station upon being informed that the police officers were looking for him. That he was not aware of the alleged incident. That at the material time he was at home. That on 23rd July 2015, as he was going about his work, he met one Dankorde, Lonkorde and Domarii. That he lent his phone to the said Dankorde who is like a brother to him as his had run out of power. That the said phone was returned to him on 24th July, 2015 at 10am. He insisted that he did not know the deceased person. That the distance from his home to Mlima Chui is 3 hours walk. That he was before the court because of his phone, which he had lent to his friend. 2. DW 2 was Lepakio Reuben Marupel. He told the court that he knew the accused since their childhood. That on 23rd July 2015, he met the accused and other 3 men at around 18:00 hours. That he saw the accused lend his phone to one of the men. That this was normal in their area since in their community lacked electricity. 3. DW 3 was Surale Lencheru the Sub-Area, Donguma Location. He told the court that he knew the accused since he was young. That on the material day, the accused went to his home in the evening and they sat and chatted and he left at 10:00 pm. That he saw the accused the next day. That Mlima wa Chui is very far from the accused’s home. 4. DW 4 was John Prekiom. He testified that at the material time he had employed the accused. That he accompanied the accused to the police station when he heard that police officers were looking for him. # Analysis and Determination 1. The accused is charged with the offence of murder contrary to section 203 of the Penal Code which provides that; **“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”** 1. From the wording of the said section, the burden on the prosecution is to prove the three key elements of the offence of murder, namely: 1. That the death of the deceased occurred. 2. That the death occurred through the unlawful act or omission of the accused which caused the death. 3. That the accused acted with malice aforethought. 2. These elements were re-affirmed in **Republic v Ali Kajoto Ali [2021] eKLR.** 3. I have carefully considered the evidence tendered by both prosecution and the defence witnesses. 4. The applicable standard of proof required is well settled. In the case of **Joseph Kimani Njau V Republic [2014] eKLR,** the court of appeal stated that: - **“In all criminal trials, both the actus reus and the men’s rea are required for the offence charged; they must be proved by the prosecution beyond reasonable doubt. The trial court obliged to ensure that before any conviction is entered, both actus reus and men’s rea have been proven to the standard required.”** 1. The first element is whether the death of the deceased has been proved. 2. The evidence on record is that the deceased's body has never been recovered, notwithstanding numerous searches conducted between July 2015 and June 2017. 3. Being a so called no body murder case, the duty of the court is to establish whether, from the evidence adduced there can be a firm conclusion that there was death. 4. The law does not insist on the production of a body before a court can find that death has occurred. The fact of death may be established by cogent and compelling circumstantial evidence, provided that evidence leaves no reasonable doubt on the point.In **Wahih & Another vs Uganda (1968) EA 278**, the Court of Appeal for East Africa discussed the issue and held as follows; ***“There have been cases in East Africa where persons have been convicted of murder although the body of the victim was never found and the case against the appellant depended entirely on circumstantial evidence. There may be other cases where medical evidence is lacking but where there is direct evidence of an assault so violent that it could not but have caused immediate death...”*** 1. **In Kimweri vs Republic(1968) EA 452 the same court considered the issue and held as follows;** ***“While death may be proved by circumstantial evidence, without evidence as to the production of the body of the allegedly dead person, and without any evidence of a person who saw the body of dead person, and without a confession by a person accused that he caused the death, yet where a court is asked to find in a murder charge that a person is dead in the circumstances which we have stated, the evidence on which the court is asked to infer the death must be such as to compel the inference of death, and must be such as to be inconsistent with any reasonable theory of the alleged deceased being alive, with the result that, taken as a whole the evidence leaves no doubt whatsoever that the person in question is dead”.*** 1. In this case, the deceased has not been seen or heard from since 23rd July 2015. He failed to return home as promised. He also missed duty at his workplace without explanation, and has since been formally declared a deserter by his employer, notwithstanding that he was, by every account, a diligent and reliable officer. Blood-stained clothing were positively identified by his widow. Those items, together with a blood-stained stone and a sample of skull skin and hair recovered from the scene at Mlima Chui, were subjected to DNA analysis which confirmed, through comparison with a reference sample from his mother, that the biological material belonged to her son. 2. Taken cumulatively, I am satisfied that the prosecution has proved, to the required standard, that Morris Munene Mate is dead. 3. The second issue is whether the death of the deceased was caused by an unlawful act. This will be considered with the third issue, that is, whether it is the accused who caused it. 4. There was no witness testified to seeing the accused assault, threaten, or otherwise cause harm to the deceased, and no confession or admission of the offence was made by the accused. The evidence adduced against him is entirely circumstantial. 5. It is settled law, and was long affirmed in **R v Kipkering Arap Koske & Another vs Republic (1949) 16 EACA 135,** that before a court may convict 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. Every link in the chain of circumstances must be established, and if any reasonable hypothesis consistent with innocence remains open, the accused is entitled to the benefit of that doubt. 6. The evidence placing the accused in proximity to the offence rests substantially on the call data record as set out in the evidence of PW18. The witness established communication between the accused's number 0710743461 and the deceased's number 0710476709 on several dates, starting from 12th July 2015, until a final call at 18:40 hours on 23/7/2015. 7. According to PW18, cell-site data suggested that the two numbers were served by the same Base Transmission Station (BTS) masts within the same area. While this evidence may not seem insignificant, it establishes that there was constant communication between the accused and the deceased and that it took place right about the time that the deceased disappeared. The data also showed that their respective handsets/numbers were in a zone within the radius of the BTS at Kirimon. The clothes belonging to the deceased and a piece of the deceased’s head remains were found at Mlima Chui, also within that BTS mast covered. 8. In my view there is a rebuttable presumption that the deceased and the accused not only communicated but actually met within the said vicinity. 9. That evidence must be weighed against the accused's account, corroborated by DW2, that his phone was in the hands of another person, one of the original co-accused, on the evening of 23rd July 2015, and was not returned to him until the following morning. 10. That evidence by the accused is doubtful, as his phone/number had been in constant communication with that of the deceased from 12th July 2015. Does that mean that the accused gave away his phone for close to two weeks? This is highly improbable. 11. The data provided by PW18 shows a pattern that the number belonging to the accused and the other accused were in communication with each other and then with that of the deceased. 12. Applying the test in **Kipkering’s case (supra),** I find that the circumstantial evidence against the accused, resting on call records and general cell-site proximity, is incapable of any other explanation other than the accused, probably alongside others, met the deceased on the fateful day. The accused’s explanation that he had given the phone to someone else does not add up, for reasons that I have given. 13. Having found the above I am satisfied that the prosecution has proved that the accused, alongside others had occasioned the disappearance or death of the deceased. 14. The evidence at the scene suggests that there was violence meted on the deceased. His clothes were intact and it is a clear sign that he was undressed before his disappearance and subsequent death. It rules out an attack by wild animals, which obviously, cannot undress their prey before devouring them. 15. In my view this tragic end to the deceased’s life was caused by an unlawful act, perpetuated by human beings and not wild animals. The accused was among the people who perpetrated that act. 16. Was there malice aforethought? 17. Given the circumstances of the case and the fact that the deceased’s main body was not found, there are no indicators on whether this was a thought-out plan executed by the persons that the deceased met or was to meet that fateful day. The element of malice aforethought is thus lacking. 18. In light of the foregoing, I hereby find that the prosecution has discharged its burden of proof, albeit on the offence of manslaughter, contrary to section 202 as read with section 205 of the Penal Code. 19. The accused is hereby convicted on the said offence under the provisions of section 322(2) of the Criminal Procedure Code. 20. Orders accordingly. **Dated, signed and delivered at Meru this 16th day of July 2026.** **H.M. NYAGA** **JUDGE**