[2025] KEHC 2824 (KLR)

Republic v Macharia (Criminal Case 29 of 2018) [2025] KEHC 2824 (KLR) (12 March 2025) (Ruling)

Neutral citation: [2025] KEHC 2824 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 29 of 2018

HI Ong'udi, J

March 12, 2025

Between

Republic

State

and

John Gichere Macharia

Accused

Ruling

1. John Gichere Macharia the accused herein stands charged with the offence of murder contrary to section 203 as read with section 204 of the penal code. The particulars are that the accused on the 5th day of June, 2018 at Matunda Location in Mirangine sub-location within Nyandarua county murdered Bernard Kamau Wambui hereinafter referred to as the deceased.

2. He denied the charge and the matter proceeded to full hearing. The prosecution presented a total of six (6) witnesses who testified. PW1 Grace Wangari Maina is the accused’s mother who testified that on 5th June 2018 at 9. 45pm she was in her mother’s (PW3) house watching T.V with her children, when PW3 who had been bathing ran out of the house. She told them she had heard screams, from the road. They went to the road with her children who had followed her. They found someone lying under a motorbike screaming asking for help.

3. They pulled off the motorbike from him. The man told them he had been pierced with a knife. The light was dim so she was not able to see any injuries. A few people responded to PW3’s screams. Later the police came and took the man away. She did not know him. Police officers came to her home and arrested her son (the accused) for reasons unknown to her.

4. In cross examination she denied the accused having been at the scene as he had come with her and the other children there. The accused was 15 years old and in form 2 then. She confirmed having recorded statements while at home. She further confirmed the recovery of a knife by school children near the school gate and her son Daniel (PW4) took it to his grandfather.

5. PW2 – No. 56072 Cpl Musa Koech testified that while based at Mirangine police station of Nyandarua county he was on 7th June, 2018 notified by C. I Singolee of a suspect who had been spotted. Together with other police officers they went to Ruruka area and reaching there they split into 2 groups. The suspect was arrested by officers in the other group.

6. The suspect led to the recovery of the murder weapon which was a kitchen knife. They quickly took away the suspect as the boda boda people were baying for his blood. In identifying the suspect, it was clear he did not know him. He however identified the recovered knife.

7. In cross examination he said he had heard of the murder earlier than 7th June, 2018. That the suspect was in the aunt’s house in Mirangine. He did not witness the arrest nor recovery of the knife. PW3 Jacinta Njeri Maina is the mother to PW1 and grandmother to the accused in whose house PW1 and her children were staying. Most of her evidence is similar to that of PW1 and I will not rehash it here. She testified that when the police arrested the accused the next day they beat him and did not do any search.

8. In cross examination she said she had a small torch in her hand as she went to the scene. The deceased had been stabbed on the back but was not bleeding. She was with PW1 and the accused all along. She stressed that the accused never ran away from home and that’s where he was arrested from. She denied being the owner of the knife (EXB1). The police never told them why the accused was being arrested, she said.

9. PW4 Daniel Kihara Wangari is a younger brother to the accused. He said he was about 12 years when this incident occurred. He gave similar evidence to that of PW1 and PW3. Only to add that he is the one who was left with the baby when the rest went to the road. He stated that the next day as he left for school he met with his friends. Reaching the school gate, they found a knife on the grass. As they played an old man asked him to take the knife home since him and the other children were quarrelling over the same. He took it to his grandfather. He denied knowledge of who killed the deceased. In cross examination he said there was no blood on the knife.

10. PW5 Luka Kipkoech Simbolei a retired police officer was the investigating officer in this matter. He stated that on 5th June, 2018 at 2200 hours he was at Mirangine police station when the area chief Paul Mwangi called and informed him of a bodaboda rider who was lying down beside the road (Matunda – Waraka Murrum road) and the motorbike lay beside him. He instructed the chief to visit the scene. The chief later called and informed him that the boda boda rider Benard Kamau was dead and was lying in a trench. He went to the scene and saw a wound on the left side of the victim’s ribs. He also had soft blood clots on the clothes.

11. Its his evidence that the first witness at the scene was PW3 who had left. She came back to the scene and informed him that when she first came there, the deceased was still alive. They took the body to the mortuary. On 7th June, 2018 they received information of a recovered knife a few meters from the scene. They visited the scene and found the accused at PW3’s house and recovered the knife recovered by PW4 from PW3. That accused told them it was him who killed the deceased.

12. In cross examination he said it’s the area chief who notified him of the incident. He too had been called, and he never considered the area chief as a key witness. He however saw the knife the next day and it had no blood stains. It was to be taken to the government chemist but he never prepared it for the examination. That PW3 said the knife was hers. He said a confession from the accused was recorded by the DCIO’s office OlKalou.

13. PW6 Richard Kimutai Langat of the government chemist examined blood stains on a knife and jumper plus the DNA of the deceased. He found the blood on the knife and jumper to match that of the deceased. He did this on the request of C.I. P Lukas Simbole (PW5). The post mortem report was produced by the consent of the prosecution and defence as EXB3.

14. The prosecution did not file written submissions but the defence did through Kairu Maina and associates advocates. The same are dated 18th February, 2025.

15. Counsel submitted that there was no positive identification of the accused as the killer of the deceased. He cited section 107(1) of the Evidence Act which provides:“Whoever desires any court to give Judgment as to any legal right or ability dependent on the existence of facts which he asserts must prove the facts exist”.He thus submitted that the prosecution had failed to establish the ingredients for proof of a case of murder.On what a prima facie case is, counsel relied on the cases of:i.Republic v Joseph Shitanda & another [2014] eKLRii.Republic v Samuel Karanja Kiria [2009] eKLR

16. I have carefully considered the evidence on record, the defence submissions and the law. In this case there is no dispute that the deceased died. The cause of death is stated in the post mortem report (EXB3) as“Acute haemothorax with pneunothrorax secondary to a stab wound (sharp object) on the left posterior chest wall (Penetrating)”.

17. There is no evidence of any eye witness to this incident. Secondly, there is no evidence as to why the accused was arrested. Thirdly the knife that was sent to the government chemist is shown from the exhibit memo (EXB 2b) to have been forwarded by PW5. The said witness (PW5) in cross examination said he never prepared the knife for examination. So, who took the knife to the government chemist Kisumu?

18. Fourthly, this knife was allegedly recovered a day after the incident, near the school gate on grass. PW4 who with other children recovered the knife said it had no blood on it. PW2 who was allegedly present when the knife was recovered and even saw it stated in cross examination. “I was not there when he was arrested nor when the knife was identified”.

19. Fifthly who put the blood stains on the knife that was examined by PW6 at the government chemist? Lastly the confession allegedly recorded from the accused was never produced. I find the prosecution case against the accused not to have any feet to stand on. As was held in the two cases cited above, if the accused was to be placed on his defence and he elected to remain silent there would be no evidence to make this court to convict him.

20. The upshot is that the prosecution has failed to establish a prima facie case against the accused who I hereby acquit under section 306(1) of the Criminal Procedure Code. He will be set free unless otherwise lawfully held under a separate warrant.

21. Orders accordingly

DELIVERED VIRTUALLY, DATED AND SIGNED THIS 12THDAY OF MARCH, 2025 IN OPEN COURT AT NAKURUH. I. ONG’UDIJUDGE