https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8975

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CRIMINAL CASE NO. 36 OF 2017** **REPUBLIC................................................................................PROSECUTOR** **VERSUS** **DANIEL THIONG’O MAIGWA …………………………...............ACCUSED** **JUDGMENT** 1. The accused person herein **Daniel Thiongo Maigwa** was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on the 10th day of August 2017 at Dundori Centre in Nakuru North Sub County within Nakuru County , he murdered **Gladys Muthoni.** 2. He denied the charge and the matter proceeded for hearing with the Prosecution calling seven ten (7) witnesses in support of its case. **Prosecution Case** 1. On 10/8/2017, **Ann Wairimu Mwangi (PW1)** took her6-year-old daughter (deceased) to deceased’s grandmother **Gladys Muthoni Mwangi** (**PW2**). The deceased wore trousers and a full dress. PW1 left the deceased under the care of PW2 as was usual. She proceeded to work at about 7.30 am at NYS Kazi Kwa Vijana . 2. She came back at around 5.00 p.m. and her 8 -year old nephew **John Ndungu** (**PW3**) asked her if she had seen the deceased. She had not and therefore, she asked him to look for the deceased among neighbours. She proceeded to mother’s house and her mother told her that the deceased had left the house at 3.00 p.m. 3. The deceased was found the following day at a neighbour’s pit latrine. The neighbour was **Esther Wanjiru** (**PW5**) . **PW2** went there and only saw one leg as the rest of the body was submerged in the sewage of the pit latrine. 4. Upon reporting the matter, the chief and the police came and retrieved the body. It was in a gunny bag which was sealed at the top. One leg had slipped through a hole. She later saw the body in the police vehicle, naked except that she had a vest on. She identified the body as that of her as her child. 5. On 12/10/17, the deceased’s trousers were found in the accused person’s toilet. The following day, the dress and gumboots were found in the accused’s person's house. The accused was their neighbour. She identified them to the police. She told the police she suspected the accused, as the deceased had earlier told her three days before she disappeared, that the accused had tried to lure her to give her some avocados. 6. **PW2 Gladys Muthoni Mwangi’s** evidence was that after PW1 dropped the deceased on 10/8/2017, she (**PW2**) went to a Chama’s meeting. She came back and found the deceased and other children playing by the road. Baba Hannah came to make fence, and he even spoke with Deceased. 7. It rained heavily at around 5.00pm. The deceased did not come inside the house when the rain subsided. PW2 started looking for the child and even called neighbours to help trace the child. 8. The accused was a neighbour. That night, PW2 had called him and asked him where deceased had gone. He had replied that he had seen her earlier. He used to fetch water from her house. They had no issues between them and PW2 used to give his mother the padlock so as to access the water. 9. The deceased’s body was found in a toilet the following day. PW2 heard Dan (accused) saying the person who did that should be punished by God. PW2 went to the scene and saw the legs protruded out. The body was naked when it was retrieved. 10. **PW3 John Ndungu** was a 13-year-old minor and a standard student at Nakuru Mountain Park Academy as at the time he testified. At the time of this incident in 2017, he was a standard 3 student at Magumu. It was his evidence that around 1.00 p.m. on 10/8/2017, he was on the street with the deceased and another boy when the accused person who he only knew as Dan came and called them to take avocados. When they went to gate around 1.00 p.m., the accused threatened to unleash dogs on them and only allowed the deceased to go in. Then PW2 called him to light start the fire for her. She asked him where deceased was, and he told her that she had been called by Dan. She asked him to look for the deceased. He searched for her but did not find her. He maintained that he was with the deceased when accused called her. 11. During cross examination, he maintained that it was the first time the accused called them for Avocados. The accused then threatened to call dogs on them. He then came and called only the deceased. PW3 saw the deceased going into the accused person’s gate. It started raining. He did not see the deceased again. 12. **PW4 David Gatonye** aged 11 years and a Grade 1 student at Ndundori Primary School, recalled that on 11/8/2017, he was in Grade 1 at Ndundori Primary School. He recalled that on 11/08/2017 he was at home at around 9.00 a.m. He went to the latrine and a human leg in the pit to the latrine. The leg was sticking up from the hole in the latrine. The latrine was almost full. 13. He called his mother Esther Wanjiru who came to the scene before he left. He later learnt that it was Muthoni’s (deceased’s ) leg. At that time, he knew the deceased was missing. 14. **PW5 Esther Wanjiru Kimani**, recalled that she was home on 11/08/2017 at around 9.00 a.m when her son (PW4) went to the toilet after waking up. He came back running and reported that he had found a leg in the pit latrine. PW5 went there and confirmed. She alerted her neighbour, Baba Karanja . He came to the scene and also confirmed. They screamed and called the Area Chief, Mbiyu. A crowd came to the scene. The body was removed from the latrine and cleaned. The Chief and the police came and took over the scene. 15. She explained that the latrine was built at the fence separating them with the accused who was their immediate neighbour. She identifies the accused on the screen. 16. She further explained that the body had been thrown through hole dug from the accused’s side and not directly through the pit in the latrine. The police demolished the latrine to retrieve the body. The body was covered in a gunny bag. It had only a vest on. The body was cleaned and taken away. 17. On cross - examination, she explained thatthe pit latrine was on the boundary and was constructed of iron sheets and timber on the floor. Her side was slightly elevated. The police came and concluded that the body had been thrown using a hole dug from the accused’s side. She did not know if the hole had been there before or whether it had just been dug. She had never seen it before from her side. The deceased never used their (PW5’s ) side of the pit latrine. 18. She told the court that on 11/08/2017 or 10/08/2017, the accused brought her his phone charging . She did not see him near her toilet as she was busy with her business. The relationship between deceased’s family and accused’s family was okay. She was not aware of any animosity between the two. 19. **PW6 Arthur Mwangi Ndirangu** told the court that the deceased was his niece. On 16/8/2017, he identified her body of the deceased to the doctor who performed the post-mortem. The doctor told him that the cause of death was suffocation. 20. **PW7:** **No. 236979 CI Julius Kiptanui** was the current investigating officer having taken over from Sergeant Makau who had since died. He was with Sergeant Makau on 12/8/2017 at Bahati when he received information that Daniel Thiongo had been arrested by members of the public over disappearance of a child on 10/8/2017 and taken to Bahati police station. 21. He accompaniedSergeant Makau and Corporal Evans Mbane and the suspect to Mugumoini village in Dundori. The accused told them that he had killed the child Gladys Muthoni six years old.He took them to the pit latrine at a neighbour’s home, Peter Njoroge. The pit latrine was not in use. They retrieved the body in a sack tied with a wire. The body was naked. 22. The accused took them to his house where they recovered the deceased’s gumboots, a sisal rope which he said he used to strangle the child, his trouser and his jacket. 23. PW7 made the inventory and the same was signed by himself, Sergeant Makau, John Ng’ang’a, John Mwangi Kamau, Elijah Ngatia Mwangi and the accused. They called the Scene of Crime personnel and he took photographs of the same. 24. They escorted the accused together with the exhibits and the body to Bahati police station. The body was taken to hospital for post mortem. They obtained custodial orders for the accused. They took blood samples from the accused. During post mortem, they took vaginal swab from the deceased’s body to rule out defilement. 25. They took the exhibits and samples to Government Chemist for analysis. Also taken for analysis were sisal rope, trouser and green jacket but PW7 did not know their whereabouts as the filed was being handled by another officer who he did not know. However, the received the report from the Government Analyst. PW7 could not recall who took the photographs at the scene and he did not have them in court when he testified. 26. By consent of parties, PW7 produce the Exhibit Memo Form dated 16/8/2017 as P Exhibit 2, the Government Analyst Report dated 20/3/2019 as P Exhibit 3). On cross examination, he told the court that the jacket and trouser were stained though according to the Government chemist report, these items were not stained. Further, he told the court that it was the accused who led them to the scene where the body was. The accused told them that he is the one who killed the deceased. That statement was taken by Sergeant Makau though it was not in court. He explained that the only motive that came up was that the accused had differences with deceased’s mother. 27. Further, PW7 told the court that in his statement, the accused was trying to implicate one Ndirangu who was the brother to the deceased’s mother, as the one who killed the deceased. However, the accused did not talk of any conflict between him (accused) and the mother of deceased. 28. PW7 further told the court that the accused was within the vicinity when the search for the child was being carried out. However, the accused was not involved in the search though he, PW7, was not there then. He clarified thatfrom their naked eye, they saw blood stains in the accused’s trouser and the accused’s green jacket. **The defence case** 1. In his sworn statement, he stated that the deceased herein was his neighbour’s child. He recall the 10/8/2017 at about 5.00 p.m., he met children namely Ndungu ,the deceased, another neighbour’s daughter and a cousin to the deceased. They asked him for fruits. He told them to wait. He brought each of them fruits. 2. Thereafter he took his sheep to their shed within his compound and then went to watch football at Dundori shopping centre. When the game was over, he went back to his house and it is then that the deceased’s grandmother called him about 10.00 p.m. asking him if he had seen the deceased. 3. His reply was that he had seen the deceased with other children and that he had given each of them fruits. She asked him to assist her look for the deceased. He wore gumboots as it had rained and while using the torch, they started looking for the deceased. It got late and he suggested that they go to sleep and continue the following day. They searched the following day but in vain. His father who sells meat told him to handle the business for him. 4. At about 5.00 p.m. some elders who he knew came to the butchery. They were armed with pangs. They asked him to accompany them to where the police officers were. He complied and the police took him to Dundori Patrol Base. He told the court that the deceased’s cousin (PW3) and the 2 children in his company never entered his compound. 5. He admitted signing the inventory (P Exhibit 1) but he stated that those present were only four police officers. He denying knowing John Nganga Mathia, John Mwangi Kimani and Elija Ngatia Mwangi. He told the court that he was in the vehicle when the search was conducted and the exhibits recovered. He told the court that those exhibits did not belong to him. 6. It was his evidence that the relationship between him and the family of deceased was not good. He stated that the deceased’s grandmother had asked him to get another young man work in the company he worked in. He told her that it was not possible. He was supposed to personally go to the company. He had no relationship with the mother of the deceased. He denied involvement in the murder claiming that he was one of the people who assisted to search for the deceased. **Prosecution’s Submissions dated 16th July, 2025** 1. Upon highlighting the evidence before court by both the prosecution and the defence, the learned Prosecution Counsel submitted that upon being asked by the deceased’s grandmother if he had seen the deceased, the accused replied that he given the deceased in company of other children some fruits. Upon being requested to assist searching for the deceased, he wore his gumboots and took his torch. They started the searched but it was put off until the following day. However, he chose to work at his father’s butchery. 2. It was submitted that evidence by prosecution witnesses was that after the accused was arrested by villages and taken to the Police patrol base, opened up on where the deceased was as the people searching for her were unable to trace her. 3. Further it was submitted that though he denied that the items recovered belonged to him, he did not address the issue of DNA results confirming that blood in one of the garments belonged to the deceased. 4. Further, it was submitted that the gum boots and a rope were recovered. The deceased had been strangled and the rope was used to strangle her. Further, the post-mortem report was that the deceased had been defiled. 5. Regarding the accused’s alibi defence, it was submitted that the accused did not bring any witness to confirm his allegation that he was watching football shopping centre at the time the deceased disappeared. 6. Further it was submitted that PW3’s testimony was that the accused was last seen with the deceased going to his house. There was no reason for PW3 to falsely implicate the accused. Further that , though to PW1 told the court that she had no grudge with the accused, the accused told the court that there was a grudge between him and the deceased’s family after he failed to secure a job for their kin. However, the accused raised this only during the defence hearing. 7. It was therefore submitted that that the accused defence did not dislodge the prosecution case. The had been proved beyond any reasonable doubt that the accused murdered the deceased and the killing was with malice aforethought. He urged the court to convict the accused. **Submissions by Defence dated 9th July 20225** 1. Rehashing the evidence on record, Ms Chemgetich for the accused submitted that none of the witnesses saw the accused leave with the deceased to give her fruits and therefore, the prosecution had to prove the three elements of circumstantial evidence it relied on as stated by the Court of Appeal in ***Abanga alias Onyango v Republic Criminal Appeal No. 32 of 1990*** :- 2. ***Circumstances from which an inference of guilt is sought to be drawn must be cogently established ;*** 3. ***Those circumstances should be of a definite tendency unerringly pointing to the guilt of the accused and that;*** 4. ***The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and no one else.*** 5. In regard to last seen doctrine relied on by the prosecution, it was submitted that the accused clearly stated in his defence how he met the deceased playing with other children ; that the deceased asked him for fruits from his home ; the accused and deceased went to pick fruits and he let her go home. Thereafter, he left to watch football. 6. Citing Section 124 of the Evidence Act, it was submitted that the children who were allegedly playing with the deceased were not called despite being mentioned by PW3. Hence, the evidence by PW3 aged 13 years, lacked corroboration. 7. Arguing that the PW3 and the deceased were cousins, their evidence had to be aligned in favour of each other. Further it was submitted that the accused confirmed having bad blood with PW2. 8. On malice aforethought, it was submitted that from the evidence on record, PW1, PW2 and PW3 appear to have been suspicious of the accused only because of existing grudge with t deceased. Hence it can be deduced that the accused did not take part in the murder. 9. Citing the Court of Appeal decision in ***Joan Chebichii Sawe v Republic Criminal Appeal No. 2 of 2002***, it was submitted that suspicion alone however strong cannot form basis of inferring guilt which must be proved by evidence. 10. He urged the court to find that the that the prosecution failed to prove its case beyond any reasonable doubt and therefore acquit accused under section 215 of the Criminal Procedure Code. **Analysis And Determination** 1. After considering the evidence on record together with submissions, there is no doubt or dispute that the deceased died on 10th August, 2017. 2. As to the cause of death, the post-mortem produced as exhibit shows that on external examination of the body, Dr. Titus Ngulungu noted the following; - * ***The body had cyanosis seen at the finger nail beds.*** * ***The body had bruises with some foci abrasions seen at the lips- upper and lower angle of the mouth*** * ***The bruises also extended to the rims of nail opening, tip of the nose and nasal bridge.*** * ***The vagina orifice showed hymenal tear at 10-oclock and 2-oclock as well as the 6-oclock.*** * ***Abrasion also seen at the mucous with bruise/abrasion at the introitus .*** 1. Internally, there was brain swelling .The pathologist concluded that the cause of death was Asphyxia due to pressure to the mouth/nose in keeping with smothering in a body with bruises/abrasions at the introitus , attempted/ penetration. 2. From those injuries, it is clear that the person who inflicted them intended her death. As to inference of malice aforethought, the Supreme Court of Uganda in ***Rwabugande v Uganda [2017] UGSC*** laid down the circumstances from which an inference of malicious intent can be deduced as follows:- ***“(a), the weapon used, (b) the part of the body targeted i.e. whether it is a vulnerable part or not, (c) the manner in which the weapon was used i.e. whether repeatedly or not, or number of injuries inflicted and (d) the conduct of the Accused before, during and after the incident i.e. whether there was impunity.”*** 1. From the findings contained in the post-mortem report, the attacker was savage , targeting specific parts of body not only to smother the deceased but also to cause physical injuries on this child including sexually violating her. It was a most cruel act on the vulnerable child. As though that was not enough, that person threw the body into a latrine from where it was retrieved the following day. The death was caused with malice aforethought within the meaning of Section 206 of the Penal Code which states that: ***“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.”*** 1. The issue then is whether it is the accused herein who caused this death. Whereas it is true that no one saw the accused kill the deceased, the Prosecution relied on the circumstantial evidence that it is the accused who murdered the deceased, particularly based on last seen doctrine. Regarding such evidence , the Court of Appeal had this to say in the case of [***Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/743/eng%402018-01-26): - ***“However, it is altruism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence, which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form as strong basis for proving the guilt of an Accused person just like direct evidence.”*** 1. Tied with the with circumstantial evidence is the ***‘last seen with’*** doctrine and in that regard, the Court of Appeal in ***Kimani v Republic (Criminal Appeal 41 of 2022) [2023] KECA 1390 (KLR)*** held that: ***“The doctrine of ‘last seen alive’ is based on circumstantial evidence where the law prescribes that the person last seen with the deceased before their death was responsible for his or her death and the Accused is expected to provide an explanation as to what happened.”*** 1. In this case, and contrary to the accused’s defence, this court is satisfied that it is the accused who called the children to get the avocados but at the gate, he only allowed the deceased in side but threatened the other children that he would unleash dogs. That is the last time the deceased was seen alive and she was with the accused. In ***Moingo & Another v. Republic [2022] KECA 6 (KLR)*** , the Court of Appeal in held that:- ***“The fact that the deceased was last seen in the hands and restraint of the appellants, a prima facie case was established to require the appellants to give a reasonable explanation as to what befell him. Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the Last Seen doctrine in the prosecution of murder or culpable homicide cases is that, where the deceased was last seen with the Accused, there is a duty placed on the Accused to give an explanation relating to how the deceased met his/or her death. In the absence of any explanation, the court is justified in drawing an inference that the Accused killed the deceased.”*** 1. In an attempt to disprove this, the accused raised alibi defence about going to watch football and then coming back to be asked to assist looking for deceased. It is trite that alibi defence should be raised at the early to allow the prosecution test it. He further alleged that there was bad blood between him and the deceased’s grandmother (PW2) making the defence appear an afterthought. 2. Regarding alibi defence, the Court of Appeal in ***Erick Otieno Meda v Republic [2019] eKLR*** had this to say:- ***“In an alibi defence based on witness testimony, the credibility of the witness can strengthen or weaken the defence dramatically. A successful alibi defence entirely rules out the accused as the perpetrator of the offence. There is no burden of proof on the accused to prove an alibi. If there is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubt.”*** 1. The accused person confirmed seeing the children including the deceased. He knew them as noted in his evidence in court. He claimed that they asked him for fruits and he told them to wait. He allegedly brought each of them the fruits and then, he took his sheep to the shelter in his compound before going to watch the football. That does not dislodge the prosecution case on ***last seen with*** doctrine. 2. Further, he admitted signing the inventory of the items recovered from his house that is black gumboots, a wire and sisal rope , blue jeans trouser and green jacket. 3. Though the Government Analyst’s report shows that:- no vaginal swab was generated from the deceased; no blood was found on the accused’s gumboots , blue jeans and the sisal rope, the evidence on record is that the deceased’s body was found in a pit latrine by PW 4. 4. According to PW5 , it was thrown through a hole to the toilet on the accused accused’s side of the fence. It is undisputed that the accused was a neighbour. It is not material that only the PW3 out of the children who were with the deceased on the material date testified. His evidence on oath was not shaken even in cross-examination. Under Section 143 of the evidence Act, no number of witnesses is required to prove a fact. 5. The accused person’s line of submissions that evidence of PW1, PW2 and PW3 was based on suspicion due to existing grudge with the deceased is untenable. Further, this court is not satisfied by accused’s defence that a there was a grudge between him and the family of the deceased hence this charge. 6. The circumstantial evidence herein points at no other hypothesis other than the guilt of the accused person. The doctrine of last seen with squarely applies on the accused. He is the one who lured this child to enter his gate to get avocados, then killed and threw the body into the pit latrine. 7. In conclusion, this court finds the prosecution proved its case beyond any reasonable doubt. The accused is guilty of the offence of murder as charged and is convict him accordingly. **Dated and signed at Nairobi this 21st Day of June, 2026.**  **PATRICIA GICHOH** **JUDGE** **Delivered at Nakuru this 24th Day of June, 2026.** **………………………** **DR. JOSEPH SERGON** **JUDGE**