https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10741

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CRIMINAL CASE NO 7 OF 2016** **REPUBLIC ……………….……………………………………..……………….………PROSECUTOR** **VERSUS** **CHRISTOPHER KIURA MUGO……………..………..……………...…………….….1ST ACCUSED** **NICHOLAS KARANI KIBURI........................................................................................2ND ACCUSED** **JUDGMENT** 1. On 25/5/2016, the accused persons were arraigned in court to plead to the offence of murder contrary to section 203 as read with section 204 of the Penal Code*.* The particulars of the offence were that on 11/1/2016 at Ngariama Location in Kirinyaga East Sub County within Kirinyaga County, they jointly with another not before court murdered Samuel Nyaga Njagi. 2. After they denied the charge, the prosecution called 6 witnesses to prove its case. **Evidence** 1. **PW1 Joseph Muchira Mugo** testified that, *“I stay at Ngariama. I am a preacher at Gospel Revival Centre Muthigini Branch. On 10.1.2016 at 9.00 am I left home and went to church. I left my wife at home with Margaret and children. They also went to church after me. Later my wife called me at about 5.00 pm and she informed me that there was theft of a solar system, battery, knapsack sprayer, pressure cooker and coffee. I proceeded to Kiamutugu and met the chief Muchiri Kiura and I reported to him that the house was broken into and items stolen. He told me to go home and investigate. The stolen items were inside my house. I reached home and found that the padlock was cut to give entry and the items stolen. The padlock was dropped at the scene. This is the padlock and key. I put the key - MFI-1. I confirmed that the items were stolen. I informed the neighbours. Some neighbours said MU - UN who is the deceased in this case had been seen in my home. The next day on 11.1.16 myself, my wife and my neighbours we proceed - I can’t remember the names of my neighbours as I had not stayed there for long. I had lived in that home for about four years. The neighbours were there before me. I knew some of the neighbours. I was with my wife, my brother Murage and a village elder by name Murage. I did not know the others by name. We went to the home of deceased in this case. We went to the house of the mother of MU - UN the deceased and I met the mother in her house and I asked her the house of the deceased. She pointed it. Some people had come when they heard we had gone to look for the items. I went and entered the room of deceased which had two rooms. The 1st room was plain. When I entered the bedroom, I removed the blanket which had covered the bed. I saw a bag of coffee under the bed and I removed it. When outside I saw my initials which I had put on the sack, identifies initials. J.M on a sack half full of coffee. The deceased I met him in his house but as I went inside, he went out. He was held by people. I called the chief and told him I had recovered the coffee from deceased. He told me to go to the D. O’s office at Kiamutugu. The deceased apologized and was asking me to forgive him. Many people had come and some I did not know them. I was with my wife, my brother Murage and the village elder. Many people had come and I did not know them. There were boda boda riders and people taking milk and teachers. People started telling deceased he had disturbed people even that he had cut others. The boda boda riders tied the deceased. At Kiamutugu - Mukure junction which is near my home there were very many who had come. It was near my home. I was telling them to leave him as I was taking him to the police. People started beating him telling him he had and others and another said he hit him. I tried to shield him but the mob was telling me I shield thieves. I was pushed until my trouser was torn. I could not stay because after my trouser was torn I went home. There were many boda boda riders who I did not know, people were beating the deceased and threw stones at him. Others were beating him with stick. I then heard people saying he has been lynched and people were shouting and others running away. I was in the coffee plantation. I saw a brother of deceased called Thomas. He was with two others. The three took the deceased where the deceased was being beaten. I could see smoke. When the brother and two were taking the deceased away he was still smoking. I had dropped the coffee when the members of public attacked me and tried to shield the deceased. After the deceased was taken, I went and picked the coffee. The deceased was taken to hospital.”* 2. On cross examination by 1st accused, he stated that, *“The 1st accused in the dock is my brother and the second accused is from a place called Gutemana. I did not see 1st accused there. When I went to the home of deceased, I was not with the 1st accused. His home is a distance from mine. I did not see him. I had no grudge with the deceased.”* 3. On cross examination by the 2nd accused, he stated that, *“The home of the 2nd accused is about one kilometer from my home. The home of deceased is about 2 Kilometres from mine. We reached the home of deceased at 7.00 a.m. It was on a Monday. There were about 100 people. The deceased did not resist. He agreed to walk. We decided to talk as we had no other means. It is about 30 minutes’ walk. At the junction many people started challenging the deceased complaining what he had done to them like stealing and beating others. I did not see the 2nd accused. I called the chief but he said he was far away. The police did not come to assist me.”* 4. **PW2 Rose Muthoni Njagi**, testified that, *“On 11.1.2016 Joseph and his wife, a sister of his wife and Buda Francis Nyaga Njeru. They came at around 7.00 a.m. Joseph found me in my kitchen and stood holding the door. He greeted me and said I was fine. He asked me if I am fine. I saw the wife and Buda going to the house of Samuel Nyaga Njagi. They did not tell me what they wanted. Samuel Nyaga Njagi is my son who is deceased I went to find out. I met Muchira who had spent the night with deceased. I asked him what was happening. He told me that Nyaga was taken out through the coffee bushes toward the road on allegation he had stolen dry coffee. I went upto the road but I did not see them. After a short while I heard Nyaga was being lynched at the place of Pius. I did not see any coffee which was recovered. They came to my house the others went hurriedly to Nyaga’s house. I followed them after about five minutes. He was lynched at the junction of Githure. Those people who came to my house are not in court, only Joseph. I came to know my son was taken to hospital and I followed him to Kerugoya hospital but we did not talk as he was in bad state. I then recorded a statement.”* 5. On cross examination by 1st accused, she stated that, *“I went to follow them and I met James Muchira. I went to the road and found they had left. I did not see son with those people. I went to see him in hospital. He could not talk due to injury.”* 6. On cross examination by 2nd accused, she stated that, *“I had not met my son that morning. I asked my son whether anything was removed from the house of the deceased and he said no. When they went to the house I was talking with Joseph. Only four people came to my house.”* 7. **PW3 Michael Murimi Njoroge**, testified that, *“On 11.1.2016 I was at home and people were passing by. It was at about 7.00 a.m and I heard people say a thief had stolen some coffee. I left the house and went to Karia town. I found that the thief was taken down wards. I went there and found Samuel Nyaga Njagi who was my village mate. He was at the junction along Ngariama- Githure junction. I found a mob of people who had surrounded Samuel who was sleeping on the ground and his hands were tied to the back. After a few minutes I saw, people had gone to the coffee plantation to collect firewood to burn him. I did not know those people. I was shocked so I moved about twenty feet from him. I identified Karani who was near Samuel who is now deceased. I also identified Chris who was near Samuel. I know them by those names. I don’t know the full names. I saw Karani who was holding a match box in his hands. After a short while I saw fire had started on the body of Samuel. After about three minutes the fire went off. Samuel was screaming for help but nobody could assist him. The body was badly burnt on the stomach, chest and hands. His clothes were burnt and other parts of the body. I saw Karani lighting the match which he had. He had a match box which he had held with his hands at the back. He then lit the match with his hands infront. A fire started then went off. Samuel stood up screaming for help. He could not be assisted as it was alleged that he had stolen Joseph and his wife were the one who were alleging that he had stolen their coffee-dried coffee-“Buni”. Then a brother to deceased called Patrick - He came and called me from where I was. He’s also called another village by name Nyaga. He asked us to assist Samuel. Patrick picked a panga and cut the ropes which had tied Samuel. He brought his motor cycle and requested us to assist him place Samuel on it. We assisted him and placed Samuel on the motor bike. Samuel was not able to do anything. We assisted him to sit on the motor bike and Stephene Nyaga held the deceased. He sat on the motor bike. I also sat on the motor bike and we were four. Samuel, Patrick who was riding, Stephene and myself. We took him to Kianyaga Police Station. We assisted him to alright. Patrick went to OB to report. The report was booked. We were told to take him to Kianyaga sub-county hospital. We took him and he was given first aid. We were then told to take him to Kerugoya General Hospital. We were given an ambulance by the hospital and the four of us boarded. We reached Kerugoya District Hospital and he was admitted. The doctors did their work. After about three hours the doctors said he be taken to Kenyatta National Hospital. I accompanied Patrick, the doctor and the deceased to put him in the vehicle. I then went on 12.1.2016 at about 3.00 pm a report came saying the deceased had passed on. It was the following day. Karani who I said I saw starting a fire on deceased is the 2nd accused in the dock, identified. The one called Chris is the first accused in the dock, identified. The other two were Joseph and his wife who had alleged that the deceased was a thief. Those are the ones I saw. I then recorded a statement at Kianyaga Police Station.”* 8. On cross examination by 1st accused, he stated that, *“Where I met Samuel was at a junction, of Githure and Ngariama. There was a mob of about 30 people. There were some who were passers-by. They were many. The passers - by were many. I identified the two accused and Joseph and his wife. Those are the people I saw who were from my home. I saw the 1st accused after I got shocked and moved backwards. I saw the match box when I was about 30 metres away. I saw Christopher next to Karani. The brother of deceased was around but I was schooled as I had not seen anything like that. I lost my cool - I was confused and could not know what was happening. I came to recognize Stephen after I went close to him when fire went off. I can’t know exactly whether Stephen was around. I was not able to know everybody who was there. The 30 people were surrounding the deceased. They were scattered around him. I could not see deceased. I saw when a match was lit. The deceased was unconscious. He tried to speak but the voice could not come out. He did not speak on the way to Kianyaga and even on the way from Kianyaga to Kerugoya. His clothes were removed and I saw he was badly burnt. He was the same way he was when we took him to Kianyaga.”* 9. On cross examination, he stated that, *“On 11.1.16 I was present when the incident took place. I left home at 7.30 am. I reached the scene at 8.45 a.m. From my house to the scene is 300 metres. I first took tea at Karia town. First, I heard from passers-by that somebody stole. I first had breakfast at Karia town. I then heard the noise and went to the scene. I found about 30 people - estimation. They were picking firewood on deceased. About 15 people were bringing firewood and piling on the deceased. The deceased was lying on the ground tied. I did not see who tied him. I saw Joseph who was piling fire wood but I don’t know his other name. I was shocked and moved away. I got scared and went far away. I could see where Samuel was when I was 30 metres. I normally see from far and I could see. I saw Karani from where I was and saw he had a match box. After a short while I saw a fire had started. I was 12 to 30 metres. It is not everybody who had surrounded him, they were scattered around some shouting and saying the thief had been lynched. I saw Karani had a match box. I don’t know how it was lit either from the matchbox or a cigarette. He was burnt at the front, from the chest, face and his clothes were burnt. I could not assist him because people were claiming he is a thief. I could not do anything to assist him. I was not one of those who were lynching him. I did not call police or the chief as I did not have their number. People said they had called.”* 10. In re-examination, he stated that, *“I saw Karani with a match box. I saw somebody light a match box it’s Karani who had a match box and he lit it. I did not see it was a cigarette he lit but after he lit, I saw fire. After that I assisted deceased and took him to hospital. I could see what was happening from where I was. I moved backwards when they claimed he was a thief and wanted to lynch him. I got afraid and scared. I was not unconscious.”* 11. PW4 James Muchira Njagi testified that, *“On 11.1.2016 people came to my house at 7.00 a.m where I was sleeping with my brother. It was Bunda, Mary Joseph and Susan who came to my house. They knocked on the door and did not tell us to open. They broke the door. I was asleep in the house with Samuel Nyaga who is deceased. I woke up. They held my brother and started beating him. It was Joseph and Bunda who held the deceased, beat him and went with him. Mary and Susan were outside the house. I did not ask them why they picked him because Bunda had alleged my brother is a thief and I talk I will also be lynched. They went with my brother towards the junction to Githure-Ngariama. I went to look for my older brother. He is called Thomas. I went to Ngariama town but he was not there. I did not go there. Those who came to my house alleged that my brother had stolen coffee beans. They did not recover the coffee alleged to have been stolen. I did not see them carrying coffee from the house. I had not seen any coffee in that house. I remained at Ngariama until I heard from people that my brother had been taken to hospital. I did not see him because when I wanted to go, I heard he passed away. I went and recorded a statement.”* 12. On cross examination by 1st accused, he stated that, *“The deceased was my brother. I was the last born. He was older than me with some years. Joseph and Bunda came and took deceased and went with him. From the junction, from Githure, Ngariama and Kiamutugu is about 500 metres. From Ngariama to the junction is about 300 metres. They did not tell me where they were taking him. My brother is Tom Patrick Muriuki Njagi who I went to look for. My brother and deceased had disagreed at some point. They had agreed over a land dispute but he issue was settled. The deceased came home at 9.00 pm the previous night. That time he was living at home doing farming. He would come then go away and so on.”* 13. On cross examination by 2nd accused, he stated that, *“I saw the people who came for deceased. I did not see 2nd accused with them nor did I see him that day.”* 14. **PW5 Stephen Nyaga Muguongo** testified that, *“On 11/1/2016, I was going to Kasigoini to pick coffee. On reaching Ngariama - Githure junction I met a group of people who had surrounded Samuel Nyaga. I then saw Joseph his wife, Christopher, Bunda placing firewood on Samuel Nyaga who was on the ground and his both hands tied to his back. Nicholas removed match box and started a fire. A fire started burning. Samuel screamed for help but nobody assisted him. I did not assist him myself because I was not to assist him. Samuel sustained injuries on his body. After a few minutes his brother Patrick Muriuki came on a motor bike. He cut the ropes on Samuel using a panga. He then called me and also called Michael Murimi. We took Samuel to Kianyaga Police Post. We recorded a statement. We then took him to Kianyaga Sub-District Hospital. He was not treated. We were advised to take him to Kerugoya Hospital. We took him there and he was given some treatment. He was then transferred to Kenyatta Hospital. Myself and Michael were left and he went to Kenyatta with his brother Patrick Muriuki. Later on, 12.2.16 I heard that Samuel had passed away. I recorded a statement with police at Kianyaga Police Station. Among those who were placing firewood on Samuel one was Chris who is the 1st accused in the dock, identified. Karani who lit a match and started a fire is the 2nd accused in the dock, identified.”* 15. On cross examination by 1st accused, he stated that, *“I was going to Gacigoini. I find people surrounding Samuel. He is my cousin. The people were not very many. They were over ten but not more than twenty. I did not count them. It was at a junction. I saw Christopher Kiura, Joseph and his wife and Bunda. I was not very far. I was very near Samuel. I was among those who surrounded him. Some were spectators; they did not participate in lynching him. Chris was placing firewood on the deceased. Those surrounding were a bit far from him. Me I was near him. Those I mentioned are the ones I know. I live in that area. I identified the four because there are the ones placing firewood. There was a commotion. I could not do anything. I assisted when his brother Patrick came. He came on a motor bike and panga. Patrick is the one who came and assisted him. He could not speak. He was in critical condition. He could not talk. All the way we took him to hospital he did not speak. He did not say anything.”* 16. On cross examination, he stated that, *“I had left him at about 8.10 a.m. My home is not far, from my house where deceased was. I can take 15 minutes to reach there while walking. I suddenly bumped on them as I went to pick coffee. They were over ten. I did not see who tied him. I did not know where they took him from. I did not know who brought him there. People were coming. They kept coming. I can’t tell the number of people. I did not see a group of people who came on motor bikes. Two motor bikes came while I was there. I did not know the riders. The firewood was from a coffee farm, about ten metres from the scene. The firewood was from coffee. Others were spectators. I did not place firewood. Some people were surrounding him when I arrived at the scene. I did not know them. There were men and women. I was among those who surrounded him. I did not assist him. I could not assist him. I had no telephone I could use to call. I was not one of those lynching him. I was not threatened to write a statement or I be charged. I could have been beaten. I saw those four people. Karani lit a match. I could see from where I was surrounding. I was about five metres from him. I was with those surrounding. I was behind. There were no people blocking him. Those surrounding were behind. The brother after five to ten minutes after fire went off. We went took him to hospital with Michael Murimi. I had not mentioned Michael. I took Samuel to hospital with firewood. Michael was not around. I was present at the scene. I have not come to assist implicate the accused. We are not immediate neighbours I knew the two accused before. I can’t tell their names. I did not hear the deceased talk as we took him to hospital. He was burnt on the hands both hands, and stomach. The hands were tied to the back. The deceased was burnt. He lay on the ground facing down. Firewood was placed on him. The firewood was placed in his back. The hands and stomach were burnt. The fire burnt for about five minutes before it was put off. The hands and stomach were burnt. I am saying where I saw he was burnt. I was at the scene. He had a trouser which is for track - black tied at the front and a red T-shirt. I can’t remember the clothes which Nicholas was wearing.”* 17. *In re-examination, he stated that, “I confirm to this court that I witnessed and I was present. Michael Murimi was present. Joseph, his wife Bunda and Christopher are the ones I saw placing firewood on the deceased. The one I saw lit a match was Nicholas.”* 18. **PW6 Patrick Muriuki Njagi** testified that, *“I stay at Ngariama, Kirinyaga East. I am a farmer. In this case on 11.1.16 I left home before 7.00 a.m where I was going to work in my shamba is a distance from my home. Before 7.00 am I went to the shamba. I came back at around 9.00 a.m. There is a junction of Ngariama and Githure. I met many people who were on the side of the road. They were looking at my brother who was being burnt. He is Samuel Nyaga. He had burnt on the back and hands. He was on the middle of the road. His hands were tied to the back. When I saw him, I parked the motor bike which I was riding on the side of the road. I picked the panga which I had and cut the ropes tieing him. I tried to speak to him. I asked him what happened. He mentioned Karani and said instead of doing what they did they could have cut his neck and dies suddenly because he was in a lot of pain. He had burn injuries on the hand and the back. The right hand was burnt and the left hand was burnt on the shoulder. When I faced the people, I called Samuel Nyaga and Michael Murimi. They were about ten metres from where deceased was. They assisted me. We placed the deceased on the motor bike and took him to Kianyaga Police Station. I was given OB No. 18 of 11.1 2016. I was allowed to take him to hospital. I took him to Kianyaga Hospital. He was not treated. I was given an ambulance to take him to Kerugoya Hospital where he was given first aid. I was given an ambulance to take him to Kenyatta Hospital He was treated. The following day at 1.00 pm he passed away. When I was cutting the ropes, deceased said Karani and that he could have cut his neck so that he dies very fast. I knew Karani. He was on the side of the road squatting. He was about six metres from the deceased. There were other people there who I knew. There was Joseph and his wife who were nearby, a sister to Joseph’s wife. There was a woman who I heard calling me and is called Faith Murugi. I was not called by anybody I just found an emergency and assisted my brother. I went to Kianyaga Police Station and recorded a statement.”* 19. On cross examination by 1st accused, he stated that, *“The deceased was my brother. I was coming from Githure. I came from an earth road from Githure and there was a road to Kiamutugu. I found not more than fifteen people because they had finished their work. I saw, Nyaga Kasuku and Mama Simba. The people were not near deceased, they were looking at deceased. I saw Nyaga, Kasuku Mama Simba. Kasuku is Michael Murimi, Nyaga and Mama Simba as I said in my statement Stephene Nyaga was one of them. Nyaga and Michael assisted me to lift deceased to police station hospital and Kerugoya. The deceased was not critical because his heart was beating but he was not talking. He had burn injuries on the back and hands. I did not observe injuries on face and front. It was about 9.30 a.m, the fire had extinguished completely.”* 20. On cross examination by 2nd accused, he stated that, *“I got to the scene at about 9.30 a.m. I found about fifteen people that time. I had no time to enquire how he got there on what happened. I had no time to know how many people were there before. I did not see who burnt him. The people I found there were people I knew and others I did not know. The situation I found there was that I could not say who was who. He was burnt and had sat down. When I got there, I asked him what happened and instead of answering he told me Karani, instead of burning me you could had cut my neck I die straight away because I am in a lot of pain. After that he did not speak. God could have assisted him to say that. I asked him and that is what he answered me. He could have expected he was speaking loudly by the voice was so low. Karani did not respond. Nobody else heard because they were a distance. When he mentioned Karani, anybody could ask why Karani. After that I took him to hospital. He had injuries on the back, hands. Face and front head no injuries. The deceased could not talk with the voice like the way I was doing so nobody could hear. Michael is not a relative, he is my neighbour. The two accused are from my home area. I can’t say they were the only neighbours and were framed, those who saw them saw and have given evidence. At Kerugoya the deceased did not talk. In my statement that on 12.1.16 he talked and said Joseph and his wife have decided to mess him is a false statement. I recorded a statement. I signed. Many people were mentioned. I signed my statement. I did not say he told me.”* ***Accused’s defence*** 1. **In his sworn defence, DW1 Christopher Kiura Mugo**, the 1st accused testified that, *“I have been charged with murder. It is not true that I was involved in the death of the deceased. On 11.1.2016 at about 7.00 a.m. I left home to go work at Ndundu’s place. I worked as a farmhand to tend arrowroots. I arrived at about 7.16 a.m. I went to Ndungu’s home at his father’s home to take food as I went to the shamba. I got to the shamba at about 8.00 a.m. Where the incident happened is along the same way at a junction. When I passed by, the incident had not happened. I went on with my work until the evening 5.00 p.m. We left the shamba with one Wambui a person who had been engaged by Ndungu. I went home and went to town at Ngariama. From my home to Ngariama is about 95 minutes away walking. When I went to Ngariama town, I heard that Nyaga, the deceased had stolen coffee beans from my brother’s home and he had been beaten at the junction state. The junction state is near my home. It had taken (1) minute to get there. To get to Ndungu’s home I passed by the junction. I passed the junction at 7.00 a.m.”* 2. On cross examination, he stated that, *“Joseph Muchira is my brother, an elder brother. He is a farmer. He has a business shop. He also rears cattle. Kiamutugu is a market town. There are chief’s office and AP camp. There is a D. O’s office. Stephen Nyaga Mugo is known to me. We were in the same town Ngariama. He is a casual labourer like me. On 10.1.2016, I was at a shamba. I know Stephen Nyaga testified. It is not true that I am the one lit the metal to burn the deceased. I left the shamba at 5.00 p.m. and then went to town at Ngariama. People’s coffee was stolen that night.”* 53 1. **DW2 Susan Wambui Thiga**, testified that, *“I work as a farmer. I came to testify for the 1st accused Topher. On 11.1.2016 I was doing casual work at Kamugumo at a home Ndungu’s place. I started the work at about 8.00 a.m. I was alone while waiting for the accused Topher as he was the manager. He came at 00 a.m. and I went to his shamba. We went to the shamba and we stayed there until 5.00 p.m. working. There is no time any of us came out of the shamba before 5.00 p.m. At 5.00 p.m. we left for home. I went to my home. The 1st accused went at a separate place. I never heard anything until the deceased’s case. I heard it later that what happened that day but I was surprised because we had stayed with the accused working at the shamba. I was surprised to hear the allegations. The 1st accused is there. As far as I know him the 1st accused is at the shamba that day. I have told the truth on oath. I have not been forced to testify.”* 2. On cross examination, she stated that, *“I was at work at 8.00 a.m. I was alone while waiting for 1st accused who was a manager. He was my boss. I am never his control. I cannot ask where the 1st accused as my manager, would go if he directed me to do some work. The accused came after me. He reached at 8.30 a.m. I have known Christopher at the farm. I do not know his family. I do not know whether he is married or not. I do not know where he would go. I left at 5.00 p.m. we left together and parted at Kithure and we went different ways. The accused went toward Ngariama and I went towards Gachingo. I do not know why he is before the court. I heard after (3) days. I do not know what happened. I have come to court to say I was with him from 2.30-5.00 p.m.”* 3. In re-examination, she stated that, *“We were at the shamba between 8.30 a.m. to 5.00 p.m. the 1st accused did not leave the shamba the whole day.”* 4. **DW3 Nicholas Karani Kiburi**, the 2nd accused testified that, *“I come from Ngariama location, sub location Nyangeni, village Gitamene. I work as a farmer. I have been charged with murder. On 11.1.2016 in the morning I was at home tending to my tomatoes. I had gone at about 8.00 a.m. The shamba is at my home is about (1) kilometre from the scene. While there I heard people motorcycles each carrying the rider and a passenger. I hailed one of the cycles and asked them what was going at the place where they were coming from. They said they had left Nyaga on the ground and they had killed him. I did not know who they were. I went to the scene to see what was happening. As I went to the scene I saw a fire made from the grass. I went off the road and started watching from the side. There were many people about 30 - 40 people. I stayed there for about 20 minutes. The brother of the person who had been killed was called and he came and they took Nyaga by motor cycle. At the time Nyaga was in a bad condition. He was lifted and placed on the motorcycle. I was not there when Nyaga was brought at the scene. The scene was not the junction of the road from Githine and Ngariama. This was at 9.00 a.m. when I got to the scene. The person killed is from a far distance from my home. I did not know him very well before the incident. I did not participate beating the accused or in the fire.”* 5. On cross examination by counsel for the 1st accused, he stated that, *“I know the 1st accused. I know him for many years. We were in school together. When I went I did not see him at the scene when I came. I got to the scene after the incident had happened. I came where the fire had been lit. I went side of the fire. I was not there when the incident happened.”* 6. On cross examination by the prosecutor, he stated that, *“I know Christopher 1st accused from school. I was ahead of him. I know his family. His brother Joseph is a farmer, livestock and pastor. On that day I was at my shamba when I heard screams and noises from people. I met (2) people on motorbikes. I stopped them. They told me Muun had died. I went to the scene. Immediately I arrived, I found people surrounding him and immediately I saw a fire and people started going back. There were about (40) people. Even if 1st accused was there, I could not tell. Patrick Thomas a brother of the deceased, was telephoned and he came with a bike and took the deceased. I had known Thomas for many years. He knew me for a long time. We have not had any disagreements with him. I do not know why he had taken against me. I have called Patrick Gachoki as a witness for my case. I shall call him.”* 7. **DW4 Patrick Gachoki Ndege**, testified that, *“I come from Ngariama location, Nyangeni sub-location, Gitamene area. I work as farmer - coffee and livestock. 11.1.2016 I went to my shamba. On the way at the junction, I met a large gang of people almost 50 people. There was a hill beside the road. I climbed there to see what was going on. As I was up at the hill, I saw Nicholas coming up the road. People were surrounding Nyaga who was inside the large group surrounding. I saw a fire erupt and I told Nicholas that we should go each our own way. I had known Nicholas for a long time. I saw him coming up the road and I called him to where I was. After the fire, I told him that we should go to our respective ways.”* 8. On cross examination by counsel for the 1st accused, he stated that, *“I know Macharia for a long time. I used to see the accused Christopher for something. On this day, I did not see the 1st accused at the scene. I was a part from the group surrounding the deceased. The 2nd accused came and I asked him to come to where I was and as he came, fire started. The 2nd accused came and found me there. He was not at the scene before.”* 9. On cross examination by the prosecutor, he stated that, *“Patrick Gachoki Ndege. There was a junction of roads towards the Ngariama and Kithure. There were many people. There were about 50 people. I was at a hill by the scene. I saw Nicholas 2nd accused coming to the scene. As he came, I saw a fire erupt. I have not been paid to come and testify before court. I know the 1st accused. His home is about 3 kilometers from our home. I did not see 1st accused at the scene. I cannot tell all the 50 people who were there. I did not whether Christopher was there. He is working as farmhand at an arrowroot farm. I do know Christopher’s brother. He works as a coffee farmer.”* **Submissions** 1. The 1st accused urged that it was incumbent upon the prosecution to dispel his alibi defence, and cited the celebrated case of ***Ssentale v Uganda [1968] E.A, 365***. In his view, the 2 alleged eye witnesses gave inconsistent testimonies, which ought to be resolved in his favour. 2. The 2nd accused urged that the prosecution has not proved the case beyond reasonable doubt, as the evidence tendered was purely circumstantial, and cited ***Joan Chebii Sawe v Republic (2003) eKLR and Peter Wafula Juma & 2 Others v Republic (2014) eKLR***. He faulted the prosecution for failing to produce the post mortem to establish the cause of death, and cited ***Ndungu v Republic (1985) eKLR and Isaac Onyango Mugoma & Another v Republic (2003) eKLR.*** 3. The Respondent urged that the accused persons knowingly and wrongly caused the death of the deceased, as they were placed at the scene by the witnesses. **Analysis and Determination** 1. The formulation by Etyang, J. in ***R. v Nyambura & 4 Others*** (2001) KLR 355, and approved by the Court of Appeal in ***Antony Ndegwa Ngari v R*** [2014] eKLR as to the ingredients of the offence of murder is follows: ***“There are three ingredients of murder which the prosecution must prove beyond reasonable doubt so as to earn a conviction, namely:*** 1. ***The death of the deceased, and cause of death*** 2. ***That the accused committed the unlawful act which cause the deceased’s death; and*** 3. ***That the accused had malice aforethought.*** ***The issue for determination in this case is whether these three ingredients of murder have been proved by the prosecution beyond reasonable doubt.”*** 1. There exists doubt as to both the fact and cause of death of the deceased. The evidence on record reveals that the deceased had initially been assaulted by a vigilante mob before he was allegedly set ablaze by the accused persons. It is further common ground that the fire burned for a few minutes before it was extinguished and the deceased rushed to the hospital. 2. It behoved the Prosecution to, at the very least, call a medical practitioner to produce a post mortem report, so as to conclusively establish the cause of death. 3. In ***Ndungu v Republic [1985] KECA 93 (KLR*)**, the Court of Appeal held that, ***“Where the body is available and the body has been examined, a post-mortem report must be produced, the trial court having informed the prosecution that the normal and straightforward means of seeking to prove the cause of death is by regularly producing the post-mortem examination report as a result of which the Medical Officer who performs the post-mortem examination is cross-examined. Here, no post-mortem examination report was produced. Very poor reasons were given for not producing it. The original report must have been lying in some hospital or police file. No adjournment was applied for to obtain the original report. The haste to produce the unsatisfactory copy is in the circumstances inexplicable and was unhelpful to the prosecution and to the judge.”*** *Identification of the accused* 1. On whether the said death was caused by an unlawful act of omission or commission on the part of the accused persons, the identifying witnesses in this case were PW3 and PW5. 2. PW3 testified that, ***“I found a mob of people who had surrounded Samuel who was sleeping on the ground and his hands were tied to the back. After a few minutes I saw, people had gone to the coffee plantation to collect firewood to burn him. I did not know those people. I was shocked so I moved about twenty feet from him. I identified Karani who was near Samuel who is now deceased. I also identified Chris who was near Samuel. I know them by those names. I don’t know the full names. I saw Karani who was holding a match box in his hands****.* ***I saw Karani lighting the match which he had. He had a match box which he had held with his hands at the back. He then lit the match with his hands infront.****”*On cross examination by 1st accused, he stated that, *“****I saw the 1st accused after I got shocked and moved backwards. I saw the match box when I was about 30 metres away. I saw Christopher next to Karani.******The 30 people were surrounding the deceased. They were scattered around him. I could not see deceased. I saw when a match was lit. The deceased was unconscious. He tried to speak but the voice could not come out. He did not speak on the way to Kianyaga and even on the way from Kianyaga to Kerugoya****”* On cross examination, he stated that, *“****I then heard the noise and went to the scene. I found about 30 people - estimation.******I saw Joseph who was piling fire wood but I don’t know his other name. I was shocked and moved away****.* ***I got scared and went far away. I could see where Samuel was when I was 30 metres****.* ***I saw Karani had a match box. I don’t know how it was lit either from the matchbox or a cigarette.”*** 3. PW5testified that, ***“On reaching Ngariama - Githure junction I met a group of people who had surrounded Samuel Nyaga. I then saw Joseph his wife, Christopher, Bunda placing firewood on Samuel Nyaga who was on the ground and his both hands tied to his back. Nicholas removed match box and started a fire.******Among those who were placing firewood on Samuel one was Chris who is the 1st accused in the dock, identified. Karani who lit a match and started a fire is the 2nd accused in the dock, identified.”*** On cross examination by 1st accused, he stated that, *“****I find people surrounding Samuel. He is my cousin. The people were not very many. They were over ten but not more than twenty. I did not count them. It was at a junction. I saw Christopher Kiura, Joseph and his wife and Bunda****.* ***Chris was placing firewood on the deceased.******He could not speak. He was in critical condition. He could not talk. All the way we took him to hospital he did not speak. He did not say anything.”*** On cross examination, he stated that, ***“I saw those four people. Karani lit a match. I could see from where I was surrounding.******I was about five metres from him****.* ***We went took him to hospital with Michael Murimi. I had not mentioned Michael. Michael was not around.******I did not hear the deceased talk as we took him to hospital.******The deceased was burnt.******He lay on the ground facing down.****”* In re-examination, he stated that,***“I confirm to this court that I witnessed and I was present. Michael Murimi was present. Joseph, his wife Bunda and Christopher are the ones I saw placing firewood on the deceased. The one I saw lit a match was Nicholas.”*** 4. PW6testified that, ***“I tried to speak to him. I asked him what happened. He mentioned Karani and said instead of doing what they did they could have cut his neck and dies suddenly because he was in a lot of pain.******I called Samuel Nyaga and Michael Murimi. They were about ten metres from where deceased was. They assisted me. We placed the deceased on the motor bike and took him to Kianyaga Police Station.******When I was cutting the ropes, deceased said Karani and that he could have cut his neck so that he dies very fast. I knew Karani. He was on the side of the road squatting. He was about six metres from the deceased.”*** On cross examination by 1st accused, he stated that, ***“The deceased was not critical because his heart was beating but he was not talking.”*** On cross examination by 2nd accused, he stated that, ***“I got to the scene at about 9.30 a.m. I found about fifteen people that time.******The situation I found there was that I could not say who was who. He was burnt and had sat down. When I got there, I asked him what happened and instead of answering he told me Karani, instead of burning me you could had cut my neck I die straight away because I am in a lot of pain.******In my statement that on 12.1.16 he talked and said Joseph and his wife have decided to mess him is a false statement. I recorded a statement. I signed. Many people were mentioned. I signed my statement. I did not say he told me.”*** 5. PW1 stated on cross examination stated that, ***“I did not see 1st accused there. When I went to the home of deceased, I was not with the 1st accused. There were about 100 people. I did not see the 2nd accused.”*** 6. PW4 did not visit the scene, and as such, was not in a position to testify as to the manner in which the offence was committed.On cross examination by 2nd accused, he stated that, ***“I saw the people who came for deceased. I did not see 2nd accused with them nor did I see him that day.”*** 7. While PW3 and PW5 maintained that they had witnessed the accused persons place firewood upon the deceased and ignite the fire, they conceded that they were approximately 30 and 5 meters, away from the scene, respectively. Upon cross-examination, PW5 appeared uncertain whether PW3 was present. Conversely, PW6 testified that he called PW3 and PW5, who were about 10 meters from the deceased to assist him take the deceased to the hospital. 8. Whereas PW3 and PW5 were categorical that the deceased was unconscious and incapable of speech, PW6 did not tender any cogent evidence of a dying declaration, notwithstanding his assertion that the deceased had mentioned the 2nd accused while his hands were being untied. 9. In light of the inconsistencies in the testimonies of the identifying witnesses, and considering the presence of a multitude at the scene, and in view of their alibi defences, the court is not persuaded that the totality of the evidence led irresistibly points to the accused persons. 10. The prosecution has a duty to prove malice aforethought on any of the circumstances stated under section 206 of the Penal Code. What can be deduced from section 206 is that malice aforethought can be either direct or indirect, depending on the facts of each case. That position has been explained by the Court of Appeal in ***Bonaya Tutu Ipu & another v Republic [2015] eKLR***as follows: ***“It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of CHESAKIT V. UGANDA, CR. APP. NO. 95 OF 2004, the Court of Appeal of Uganda stated that in determining in a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person. Earlier in REX V. TUBERE S/O OCHEN (1945) 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue:*** ***It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick…”*** 1. While it is plausible that the deceased succumbed to injuries sustained from the mob assault preceding the alleged lynching, the evidence does not establish beyond reasonable that the accused persons actively participated in the fatal acts. 2. Indeed, the accused persons led defences as to their whereabouts at the time of the alleged offence. In addition to the alibi defence raised by the 1st accused, DW4 was unequivocal in his testimony that the 1st accused was not at the scene while the 2nd accused arrived thereto after the fire had ignited. It is thus improbable that he committed the said offence. The evidence of PW1 also indicated that he did not see the two accused persons, and PW4 did not see the 2nd accused, at the scene of the crime. 3. This court finds that the prosecution did not prove beyond reasonable doubt that the accused persons, without any lawful excuse and with malice aforethought, caused the death of the deceased. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds the accused persons, Christopher Kiura Mugo and Nicholas Karani Kiburi, not guilty of the offence of murder contrary to section 203 as read with 204 of the Penal Code, and acquits them. 2. The accused’s surety are discharged and security returned to the depositors. *Orders accordingly.* **DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Mwangi for DPP. Mr. Muchira for the 1st Accused. Mr. Ndana for the 2nd Accused.