https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9469

Republic v Muindi & another (Criminal Case 90 of 2015) [2026] KEHC 9469 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9469 (KLR) Republic of Kenya In the High Court at Meru Criminal Case 90 of 2015 SM Githinji, J June 25, 2026 Between Republic Prosecutor and Cyprian Muindi 1st Accused Onesmus Kamanja 2nd Accused Judgment 1.Cyprian Muindi and Onesmus Kamanja are charged with the offence of Murder, contrary to Section 203 as read with Section 204 of the Penal Code. 2.The particulars of this offence are that on the 11th day of November, 2015 at Kieni Kia Inono Village, Naathu Location, Igembe North Sub – County within Meru County, the accused persons jointly murdered Morris Kirimi. 3.The Prosecution case is that on 15/10/2015 at about 8.00 Pm, PW-2 was at home. He heard screams emanating from the road which borders his house. He took his rechargeable flashlight and headed to the place to find out what was happening. Upon arrival he found Cyprian and Onesmus who are his neighbours cutting another neighbour who’s the deceased in this case. Cyprian is the one who was armed with a c-line panga. He flashed his torch light on them and they escaped, leaving behind the deceased. The deceased had his two hands cut, almost severed. PW-2 held the deceased and took him to his mother, the PW-1 in this case. The deceased was at the time able to talk and told the mother that Cyprian Muindi and Onesmus Kamanja are the ones who had attacked him. They looked for a vehicle and rushed him to Meru Level 5 hospital where he was admitted. They then went and reported the case at Mutuati Police Station. The police referred them to Kabaci Police Station. On 11/11/2015 the deceased succumbed to the injuries. 4.The postmorterm was conducted on the body on 23/11/2015 at Meru Referral Hospital at 2.10 Pm by Doctor Adda Bahinga. The Doctor noted the body had deep cut wound to the left radial – Ulna joint with the bones exposed. There was also a deep cut wound to the proximal of the right hand. The said area also suffered compound fracture. At the time of admission the patient (deceased) had bled profusely. He was of the opinion that the cause of death was due to Massive Haemorrhage. He thus filled the postmortem form of which was produced as an exhibit by PW-3, Dr. Martha Muthoni Mwangi. 5.The matter was investigated by PW-4. The suspects herein were later arrested by members of the public who informed the police about the arrests. The police went and re-arrested them. PW-4 recorded witness statements. He did not recover the murder weapon. He had the accused charged with the offence. 6.As the matter proceeded, the accused were out on bond. After the Court found that they had a case to answer and placed them on their defence they absconded and efforts to trace and arrest them proved fruitless. 7.In interest of bringing the matter to an end, the prosecution urged the Court to find that by the accused absconding, they had waived their right to adduce evidence in defence of the charge, and to further participate in the trial. The Court found so, and the accused’s Advocates indicated they had no witness to call in defence, and the defence case was marked as closed. 8.Before I undertake to evaluate the evidence in relation to the offence, it’s important to indicate that some facts also arose during cross-examination of the prosecution witnesses by the accused Advocates. 9.PW-2 stated that he was about 10 metres away from the point of the incident when he witnessed it. The incident took about 6 minutes. He found the deceased standing. The first accused Cyprian faced the witness. PW-2 flashed his light once and the suspects runaway. He did not tell the police that the deceased told him it’s the accused who chopped off his hands. The two accused had no miraa farm at the place and neither did the deceased have. It was not true that the deceased was stealing miraa. He (deceased) had said he was from Mutuati. He was not aware that the 1st accused had made a report that the deceased had attacked him. 10.On re-examination, PW-2 stated he had his torch continuously and saw the two accused persons. 11.PW-4 on Cross-examination revealed that the first accused person in OB 3/16/20/3025 had reported at 03.00 hours that while at his Miraa farm guarding, he was confronted by 5 people and one of them was Morris Selesio. He was attacked by them and since he was armed he was able to defend himself. Morris was injured and the 5 managed to steal miraa valued at Kshs 1,500/-. 12.PW-4 further revealed that Cyprian (1st Accused) had eye witnesses who recorded statement. He did not include those statements in this case. He chose those which would assist him in the case. 13.PW-1 had disclosed that eye witnesses were Mutuma Maingi (PW-2) and Kanaru Miaka. Kanaru Miaka declined to record a statement. The Officer further stated there was laxity at the post. Silas Maingi (PW-2) statement to the police does not disclose that he spoke to the deceased before he passed on. The same applies to the statement of Veronica (PW-1). Silas Mutuma (PW-2) did not give description of the attackers. The Officer did not conduct an Identification parade as he trusted the public who arrested them. 14.The accused herein faces the charge of murder, contrary to Section 203 as read with Section 204 of the Penal Code. To secure a conviction for the offence, the prosecution is required to prove beyond reasonable doubt. Firstly, the fact and cause of the deceased’s death; Secondly, that the death was caused by an unlawful act or Omission; thirdly, that the unlawful act or Omission was perpetrated by the accused person(s); and lastly, that the accused acted with malice aforethought as contemplated under Section 206 of the Penal Code. 15.In this case, it’s not disputed that the deceased suffered deep, fatal cuts on both hands, of which were almost severed, leading to massive hemorrhage which caused his death. The fact of his death, and the cause of the said death was therefore established by the prosecution beyond reasonable doubt. 16.The Prosecution case did not reveal the motive or why the deceased was attacked. However from cross-examination of the witnesses, it’s revealed that it was alleged that he was in company of 4 more men and went to the farm of the first accused person with intention of stealing miraa. They attacked the first accused person but given that he was armed he was able to defend himself and his farm. He chased them away and in the process the deceased was injured. They only managed to steal miraa worth 1,500/-. The first accused is indicated to had made such a report to the police concerning the incident. 17.Of interest too is that the first accused person had eye witnesses who recorded statements regarding the incident but the Investigating Officer chose to only call the evidence which favoured the prosecution side. 18.Section 17 off the Penal code, Cap 63 Laws of Kenya provides that:-“Subject to any express provisions in this code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.” 19.In the case of Ahmed Muhammed Omar and 5 others –vs- Republic (2014) eKLR, the Court of Appeal adopted the principles in Palmer –vs- R (1971) AC 814 and Backford –vs- R(1988) AC 130, and stated that:-“Self defence, as the term suggests, is defence of self. It’s the use of force or threat to use force to defend oneself, one’s family or one’s property from real or threatened attack.” 20.The Court further held that:-1.A person may use force to defend himself, another person, or property.2.The danger apprehended must be imminent or reasonably perceived to be imminent.3.The force used must be necessary and reasonable in the circumstances.4.The Court considers the circumstances as the accused honestly believed them to be.5.Once self defence is raised, the burden remains on the prosecution to disprove it beyond reasonable doubt. 21.Having considered the evidence on record, the Court must determine whether the force used was necessary and proportionate in the circumstances and whether the prosecution has negated the defence beyond reasonable doubt. 22.The Prosecution bears a duty, not merely to secure a conviction, but to assist the Court in arriving at the truth. Consequently, it is obliged to disclose and present all material evidence uncovered during investigations, including evidence that may be favourable to the accused. This duty flows from Article 50 of the Constitution and was affirmed in Thomas Patrick Gilbert Cholmondeley –vs- Republic (2008) eKLR. Further, as was expressed in Bukenya and Others –vs- Uganda (1972) EA 549, the Prosecution ought to make available all material witnesses necessary to establish the truth, and failure to do so may justify an adverse inference against the prosecution. 23.In this case the police had statements recorded by eye witnesses of the first accused regarding his report to the police on how the deceased and four others attacked him while trying to steal his miraa at night, and how he fought them off, and in the process injured the deceased. The prosecution did not avail the evidence as the Investigating Officer chose to avail only what was favourable to the prosecution case. By doing so, this Court was prevented from knowing and establishing the true circumstances that led to the injury of the deceased and eventual death. Such lacking, the Court is unable to adequately and sufficiently weigh as to whether the force used by the accused was necessary and reasonable, given the circumstances. 24.The burden rested throughout upon the prosecution to prove the guilt of the accused persons beyond reasonable doubt. 25.The Accused bore no obligation to prove their innocence. Consequently, where the evidence leaves room for a reasonable doubt on any material ingredient of the offence, such doubt must be resolved in favour of the accused person(s). This is consistent with Article 50(2) (a) of the Constitution and the principles enunciated in Miller –vs- Minister of Pensions (1947) 2 AK ER 372, Bhatt –vs- Republic (1957) EA 332 and Sawe –vs- Republic (2003) KLR 364. 26.Given the foregoing, it’s clear that the benefit of doubt, as to whether the deceased was attacked while stealing miraa or not, and whether the accused used necessary and reasonable force given the circumstances, must be resolved in their favour. 27.Having done so, even without weighing other ingredients for the offence, I am of the finding that the accused cannot be held criminally responsible for the “offence”. 28.Consequently, I find the accused persons not guilty of the offence of murder, contrary to Section 203 as read with Section 204 of the Penal Code, and are hereby acquitted under Section 322(1) of the Criminal Procedure Code. ` DATED AND DELIVERED AT MERU THIS 25TH DAY OF JUNE, 2026.S.M. GITHINJI –JUDGE25/6/2026In the presence of:-Absence of Ms. Nelima for the accused persons.Ms. Wakoli – For the State