https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7033

Republic v Nandwa (Criminal Case E025 of 2021) [2026] KEHC 7033 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEHC 7033 (KLR) Republic of Kenya In the High Court at Kiambu Criminal Case E025 of 2021 FR Olel, J May 21, 2026 Between Republic Prosecutor and Amos Simiyu Nandwa Accused Judgment A. Introduction 1.The accused person was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63) of the Laws of Kenya. The particulars of the offence were that on 25th April 2021 at Thindigua area, in Kiambu Sub County within Kiambu County he did murder one Elijah Ekwenyi Otolim. The accused person took plea and denied the charge. The prosecution called eight (8) witnesses to prove their case (B) Prosecution Case 2.PW1 Calisto Omasaje Mrefu stated that he was a bodaboda rider and recalled that on 25.04.2021 at about 6.30pm, he was with the deceased at Kariobangi roundabout, when he got a call to deliver some parcel at Winsor roundabout in Kiambu. The deceased offered to accompany him and told him that their home was about 1km away from the said delivery point. After delivery, the deceased made some calls and directed him towards their home, where they met some two teenage girls and the deceased opted to go greet the girl’s mother who was at home, while he waited for him by the roadside as he had indicated that he would not take long. 3.After about 10mins, he saw the deceased stumbling back towards him and he informed him that he had been stabbed on the neck before he fell and collapsed. As he sought to help his friend, he saw the accused person being chased by members of the public, but he did not follow them and rushed the deceased to a nearby clinic, where after first Aid, they were redirected to Kiambu county level 5 hospital. He also called the deceased brother, but unfortunately by the time he arrived at the said hospital, the deceased had already passed on. They then reported the incident at Kiambu police station and were informed that the accused had been arrested but was still being held at Thindigua Police post. 4.Together with the deceased brothers, they did proceed to the said police post and confirmed that it was the accused who had been arrested for stabbing the deceased. Under cross examination he confirmed that the incident had occurred at about 7.00pm and that the deceased had only told him that, “Nimedungwa” but did not mention the name of the person, who stabbed him. 5.PW2 Kiran Mukeshi Bhatt recalled that on the material day at about 7.00pm, she was at home with her mum, when the deceased (who was her cousin) called and informed her that he was within the vicinity of their home and wanted to pass by to greet them. They met up and as they walked into their compound, they met the accused, who was their neighbour within the said compound, and he blocked their path. 6.A commotion ensued as the accused started to rough up the deceased, and in the process, he was joined by his brother and friend who held her and dragged her towards the toilet. She managed to free herself and dashed into their house to inform her mum of what was happening, but before they could react, she heard screams from neighbours, dashed out and to her shock discovered that the accused had stabbed the deceased on his neck and he was bleeding profusely. PW1 and a good Samaritan rushed the deceased to hospital, and were later informed that the deceased had passed on. 7.PW2 further confirmed that immediately after the incident occurred, the accused person did take off but was arrested by members of the public. She reiterated that it was the accused person who fought the deceased, and his identity was not in doubt as he was a person well known to her, given that they were immediate neighbours and also there was security light at the gate, which was on and enabled her to identify him. Under cross examination she reaffirmed her evidence in chief and clarified that she had no romantic relationship with the accused person. 8.PW3 Elizabeth Wanjiku Njogu confirmed that she has a stall where she sold vegetables near her residence and on the material night, she was at her stall, when saw the deceased and PW1 arrived and subsequently the deceased walked into their compound. After a short while she heard screams and dashed to see what the problem was. She me the deceased crying for help and he told her that, “Nimedungwa Kisu”. She screamed for help and as other neighbours came to his rescue, she simultaneously she saw the accused running away, but luckily was apprehended by the watchmen, who had chased after him. 9.Under cross-exam examination she confirmed that the incident happened about 30m from where her stall was and was the first to respond to the deceased scream for help. She also saw the accused taking off immediately, but he was arrested at the estate main gate by the watchmen and was returned to the incident scene. 10.PW4 Simeon Murunga, the deceased brother, confirmed that PW1 did call him on the material night at about 7.20pm and informed him of the incident that had occurred. He rushed to Kiambu county level 5 hospital and found his deceased brother being attended to at the emergency room, but he passed on shortly thereafter. They later went to Thindigua Police post and found that the accused person had been arrested in connection with the murder. 11.PW5 Duncan Kazi Otolim corroborated the evidence of PW4 as relates to what occurred on the material night, and further confirmed that on 29.04.2021 he identified the deceased body before the post mortem was carried out, by the pathologist who confirmed that the deceased suffered a fatal stab wound injury that severed the his neck blood vessels and as a result had died of excessive blood loss. 12.PW6 Dr Eunice Mugweru a consultant pathologist stationed at Kiambu county level 5 hospital confirmed the she did undertake the post mortem on the decease body and established that he had a stab wound on the left side of the neck just below the jaw measuring ( 4cm x 2 cm) and also a linear abrasions on the left side of the face along the jaw line, The stab wound had penetrated the muscle and severed the jugular vein and stopped on the anterior to the spinal column. She formed the opinion that cause of death was due to sever hemorrhage due to penetrating sharp object injury. 13.PW7 Cpl Josephat Wambua confirmed that on the material night he was the duty officer at Thidigua police station and he did receive a call from the area chief, Madam Veronica Kimani who informed him of an incident, where a person had been stabbed by his colleague on his neck and requested for his assistance to go contain the situation. He called for backup, but before they could proceed to the incident scene, the appellant was brought to the station by security officer belonging to Swift rock security company Ltd. 14.They informed him that he was the suspect, who had been arrested by members of the public as he attempted to run away after stabbing his colleague and he proceeded to place him under custody. They thereafter went to the crime scene with DCI officers from Kiambu police station and saw blood near the gate but did not find the murder weapon. Later they did get information that the injured person had died and the case was taken over by the DCI officers. 15.PW8 Srgt Thomas Mbuvi Mwithia of DCI Kiambu police station recalled that he was the duty officer on the material night, when he received information from PW1, PW4 and PW5 about a murder which had occurred at Oloriet area within Thindigua. He summoned his team and they went to Kiambu county level 5 hospital, where they viewed the body and saw that the deceased had suffered a deep cut on the left side of the neck. They then proceeded to the scene of crime and learnt that the deceased had gone to visit PW2, and this had infuriated the accused person, who had attacked the deceased and fatally wounded him. 16.Immediately after stabbing the deceased, the accused person had taken off but was chased and arrested by member of the public and estate watchmen, who subsequently took him to Thindigua Police post. He later re-arrested the accused and took him to Kiambu police station where he was booked and after investigations were completed, he was charged with the offence before court. 17.The prosecution closed their case at this point, and the accused was placed on his defence and opted to give sworn evidence. (C) Defence Case 18.DW1 Amos Simiyu Nandwa, recalled that on the material day he was at home with his friends until 4 pm and left to go watch football at Thindigwa sports club until 6pm when he reported to work at Oloriet School, where he worked as a watchman, but requested his colleagues to give him 30 minutes to enable him dash back to the house to power his phone and prepare quick supper before reporting back. 19.As he walked towards their plot, he met two men and a woman and they passed each other, and he proceeded to his house. While there he placed his phone on the charger and as he was going out for a short call, he met PW2 who told him that she was going to report to her mum that the two boys who were outside the gate had harassed her. One of the boys had tried to hold her hand but she had brushed him off and ran into the plot, The said boy did not enter the plot but ran back to join his friend who was on a bike. 20.He did not follow up on the issue, and after finishing his preparation he did report back to work at the school, from where he heard the public shouting, and running after a thief, but he did not immediately bother to find out what had happened. His colleagues insisted that they should investigate what the issue was and they all walked back to the plot, which was about 250m away but did not find PW2 and/or the two boys who she had accused of harassing her. While there, other neighbour’s accused him of stabbing the deceased, and despite maintaining his innocence, he was arrested and taken to Thindigua Police post. 21.He maintained that he was innocent and had been wrongly accused of a crime that he did not commit. He urged that court to so find and that he be acquitted of the charge he faced. (D) Determination 22.I have considered the evidence adduced by both parties and submissions on record, and the question that arises before this court is whether the prosecution has proved beyond reasonable doubt that the accused person herein murdered Elijah Ekwenyi Otolim, the deceased herein. 23.Section 203 of the Penal Code defines the offence of murder as follows:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 24.Arising from the foregoing the ingredients of murder were explained in the case of Roba Galma Wario vs. Republic [2015] eKLR where the court held that:“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.” 25.In Republic vs. Mohammed Dadi Kokane & & 7 Others [2014] eKLR the elements of the offence of murder were listed by M. Odero, J as follows: -1.The fact of the death of the deceased.2.The cause of such death.3.Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly4.Proof that said unlawful act or omission was committed with malice aforethought. 26.I will now proceed to interrogate each issue. i. The death of the deceased and its cause. 27.It is common ground that ELIJAH EKWENYI OTOLIM died on 25.04.2021 and this was confirmed by all the witnesses. Dr Eunice Mugweru (PW 6), the pathologist who conducted the postmortem on 29.04.2021 established that the deceased had a deep stab wound on the neck, just below the jaw measuring ( 4cm x 2cm) and also a linear abrasion on the left side of the face along the jaw line. The other body systems were essentially normal. The stab wound had penetrated the muscle and severed the jugular vein and stopped on the anterior to the spinal column. She formed the opinion that cause of death was due to sever hemorrhage due to penetrating sharp object injury 28.This court therefore finds as a fact, that death and its cause was fully established. ii. Whether it has been proved that the accused committed the unlawful act which caused the death of the deceased: 29.PW2 did confirm that the accused was a person well known to her and was their immediate neighbour at the plot where they resided. On the material night as she walked into their compound with the deceased, the accused person confronted them and started to fight with the deceased. she took off and dashed into their house to inform her mum of what was going on and before she could even finish explaining herself, she heard piercing screams from the deceased and when they went back, they discovered that the deceased had been fatally stabbed on his neck and was bleeding profusely. 30.PW3 was the first to respond to the deceased cry for help and as she dashed from her stall to go assist, she met with the accused running away. She also stumbled upon the deceased who told her and PW1 that he had been stabbed on his neck and collapsed before them. PW1, with the assistance of a good Samaritan rushed the deceased to hospital, and Luckly the public chased after the accused person, and he was arrested at the out-estate gate of the said estate by the watchmen before he could escape from the scene. 31.The accused person was the last person seen fighting with deceased, before he suffered the fatal knife attack and immediately thereafter took flight to escape, but was immediately apprehended by members of the public. The circumstantial evidence squarely place him as the person who stabbed the deceased and his action of running away corroborated his guilt as the offender thereof. In short without doubt, the inculpatory facts established herein are incompatible with the innocence of the accused and incapable of any other reasonable explanation, or reasonable hypotheses, other than that of his guilt. See Neema Mwandoro Ndurya v. R [2008] eKLR, the Court of Appeal cited with approval the case of R vs. Taylor Weaver and Donovan (1928) 21 Cr. App. R 20 & Sawe v Rep [2003] KLR 364 32.In defence the accused person admitted being within the compound where the incident occurred but maintained his innocence. In my view his defence is evasive, inconsistent and untruthful. At one point he alleges that he met PW1 going to report the two boys to her mum for harassing her, which implies the report is over an incident that has already occurred, but contradicts himself subsequently by explaining what had allegedly occurred between the deceased and PW2 outside the compound, yet he denied being with them. To my mind, the defence raised is premised on lies conjured up in the accused fertile imagination and is rejected. 33.Therefore, based on the prosecution evidence adduced, I do find that it was proved beyond reasonable doubt that it was the accused, who unlawfully caused the deceased death. iii. Malice Aforethought 34.Having found that the prosecution has proved actus reus, the other issue for determination is whether malice aforethought can be inferred from the prosecution's evidence presented. The offence of murder is complete when “malice aforethought” is established. Section 206 of the Penal Code, provides that:“(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;(c)An intent to commit a felony;(d)An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.” 35.In assessing the weight to be given to intention as an element of murder, the relevant circumstances must be considered as to whether the appellant foresaw the real or substantial risk and the consequences of targeting the part of the body that may result in the fatal injuries suffered by the deceased. 36.A similar statement of Law was made in the persuasive authority of S. vs. Sigwahla 1967 4 SA 566 in which the court stated:“The expression intention to kill does not in Law, necessarily require that the accused should have applied his will to compassing the death of the deceased. It is sufficient if the accused subjectively foresaw the possibility of his act causing death and was reckless of such a result. This form of intention is known as a dolus eventualis as distinct from dolus directus.” 37.The accused person fatally inflicted a deep stab wound measuring ( 4cm x 2cm) on the neck of the deceased and also cut him on the left side of the face along the jaw line. From the above analysis of the injuries inflicted, it is clear that the accused did not have any other intention other than to inflict grievous harm upon the deceased. It is my finding that the accused person knew or ought to have known that his action would result in death, and it can be safely inferred from the nature of injury inflicted on the deceased that the accused person's action was premeditated. 38.In the circumstances I am persuaded beyond reasonable doubt that the prosecution has proved their case and specifically the presence of malice aforethought on the part of the accused too has been proved. G. Disposition 39.Accordingly, it is my finding and holding that the prosecution has proved all the ingredients of the Information of murder against the subject herein, Amos Simiyu Nandwa beyond reasonable doubt and convicted him accordingly under section 215 of the Criminal Procedure Code. 40.Sentencing will await the filing of a pre-sentence report by the probation and aftercare services department, within the next 21 days. 41.It is so Ordered. JUDGMENT, SIGNED AT KIAMBU THIS 21ST DAY OF MAY 2026.RANCIS RAYOLA OLELJUDGEJudgment read and delivered in open court on this 21st day of MAY 2026.In the presence of:-……………………………………..Accused………………………………….For O.D.P.P………………………………….Court Assistant