https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8421

Republic v Ndavi (Criminal Case E058 of 2021) [2026] KEHC 8421 (KLR) (Crim) (16 June 2026) (Ruling) Neutral citation: [2026] KEHC 8421 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Criminal Case E058 of 2021 K Kimondo, J June 16, 2026 Between Republic Prosecutor and Pythus Sila Ndavi Accused Ruling 1.The accused is charged with murder contrary to section 203 as read with section 204 of the Penal Code. 2.The Director of Public Prosecutions informs the High Court that on the night of 28th July 2021 at a parking yard in Kayole Blue Sky area in Njiru Sub-County within Nairobi County, he murdered an unknown male adult (hereafter the deceased). 3.The prosecution only managed to call four witnesses. I am now called upon to determine whether there is sufficient evidence that calls for a rebuttal from the accused. 4.Learned counsel for the republic and for the accused all opted not to file submissions at this stage. 5.The key evidence went as follows: Kanake Jackson (PW1) is the Assistant Director at National Registration Bureau since the year 2009. He is a qualified fingerprints expert. He received a letter dated 4th August 2021 (exhibit 2 (a)) from the CID Kayole requesting him to verify fingerprints of the unknown male. The letter was accompanied by a set of 10 fingerprints of the deceased (exhibit 2(b)). Upon analysis and comparison, he could not trace them in the database. Paraphrased, the fingerprints were unidentified. 6.The postmortem was conducted on 16th August 2021 by Dr. Grace Midigo (PW2) at the City Mortuary. On the left side of the head, there was a depressed skull fracture. Underneath on the brain there was a contusion. According to the report (exhibit 3), the cause of death was “head injury due to blunt force trauma”. 7.PW3 was Kipng’etich Bernard, the Government Analyst. On 13th August 2021, he received from Sgt Anthony Gikandi (PW4), the following items: A brown t-shirt in a red woven bag marked “A”, a pair of brown shoes in a white/red carrier bag marked “C”, and navy-blue trousers in a khaki envelope marked “B” all belonging to the accused. There was also a blood sample in a vacutainer marked “D” extracted from the deceased. 8.The accompanying exhibit memo requested PW3 to find out whether any of the clothing items from the accused had bloodstains. The result was negative. 9.Like I stated, PW4 was Sgt Gikandi. At the time of the incident, he was based at the Kayole DCI Office. On 28th July 2021 at around 9:00 p.m., he received information of a dead body of a male adult at Kayole, Blue Sky area. When he and his colleagues got there, Piniel Isaya, a guard at a nearby car-yard, told them that he saw the accused person assaulting the deceased. He led them to the house of the accused. The police interviewed the accused, collected the clothes he was wearing and booked him at the Kayole Police Station. 10.My findings are as follows. Section 203 of the Penal Code provides that any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 11.There are three key ingredients that must be present in the offence of murder: first, the prosecution must prove beyond reasonable doubt the death of the deceased and the cause of that death; secondly, that the accused committed the unlawful act that led to the death; and, thirdly, that the accused was of malice aforethought. Malice aforethought is the mens rea or the intention to kill another person. 12.There is absolutely no doubt about the death of the deceased. The lifeless body was found at the scene by PW4. Doubt is completely erased by the post mortem report (exhibit 3) produced by PW2. The pathologist concluded that the cause of death was “head injury due to blunt force trauma”. I thus readily find that the death was unlawful. 13.In order to answer the question whether the evidence is sufficient to place the accused on his defence, I have kept in mind that Piniel Isaya, the guard at the car yard, and who was the key eye-witness, did not testify. The record will show that the court issued summons to this and other witnesses but they failed to appear. As I will discuss further, it was followed by warrants of arrest. The prosecution is thus not entirely to blame. The matter also seems to be compounded by the fact that the deceased is unknown. 14.The result is that none of the four prosecution witnesses saw the accused assault or kill the deceased. I will go back to the non-attendance of key witnesses. Summons were first issued to the witnesses by Chepkwony J on 22nd February 2022. To be clear, the court on 13th February 2023 (Ogembo J) issued warrants of arrest against three witnesses: Esther Thuo; Brighton Mburu and the guard, Piniel Isaya. 15.On 26th March 2025 and 27th July 2025 the court cautioned the prosecution because the police had not yet effected the warrants of arrest and the witnesses were a no show. On 27th January 2026, the prosecution was still not ready with those witnesses and the court was constrained to issue a last adjournment. On 27th April 2026, the prosecution called the last two witnesses and closed its case. 16.Granted those circumstances, the entire case for the prosecution is built atop circumstantial evidence. I must restate that circumstantial evidence is still good evidence. The circumstances under which the court can convict on such evidence was well stated in R v Kipkering arap Koske & another 16 EACA 135 (1949)-In order to justify the inference of guilt, the inculpatory fact must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt 17.In the absence of the evidence of Piniel Isaya, the guard at the car yard, and who claimed to have seen the accused assault the deceased, the testimony of the four state witnesses in this case is weak and cannot sustain a conviction for murder. I should add that the examination by the Government Analyst (PW3) did not detect any bloodstains on the clothes worn by the accused or which matched that of the deceased. 18.In a criminal trial, the standard of proof is beyond any reasonable doubt. As things now stand, there is no concrete evidence proving that the accused killed the deceased or establishing the circumstances under which he was assaulted or murdered. Paraphrased, the Republic has failed to prove both the actus reus and malice aforethought. The point to be made is that there is no evidence to convict if the accused now opts to keep silent. 19.The law on that subject was succinctly captured in Bhatt v Republic [1957] E.A. 332 at 334-It may not be easy to define what is meant by a ‘prima facie case’, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence. [underlining added] 20.From my analysis of the evidence and the legal authorities, I am not persuaded that the Republic has proved a prima facie case against the accused sufficient to place him on his defence. Accordingly, under the provisions of section 306 (1) of the Criminal Procedure Code, I enter a finding of not guilty. The accused is hereby acquitted.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JUNE 2026.KANYI KIMONDOJUDGERuling read virtually on Microsoft Teams in the presence of-Accused.Ms. Kigira for the republic instructed by the Office of the Director of Public Prosecutions.Mr. Nzaku for the accused.Mr. E. Ombuna, Court Assistant.