https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6854

Republic v Ngige (Criminal Case E035 of 2021) [2026] KEHC 6854 (KLR) (18 May 2026) (Judgment) Neutral citation: [2026] KEHC 6854 (KLR) Republic of Kenya In the High Court at Kiambu Criminal Case E035 of 2021 FR Olel, J May 18, 2026 Between Republic Prosecution and Amos Kibuthu Ngige 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 18th February 2021 at Mutarakwa area, in limuru Sub County within Kiambu County he did murder one Patrick Kamau Njenga. The accused person took plea and denied the charge. The prosecution called twelve (12) witnesses to prove their case (b) Prosecution Case 2.PW1 Mary Wanjiru Macharia stated that she resides at Mutarakwa village and was the manager of a club/bar known as DS Villa situated therein. She recalled on 17.02.2021 at about 11.00pm she was at work, when two customers came in. They were the deceased and the accused person (who she referred to with his nickname, “fungo”). She directed the counter lady to serve them with drinks and later retired for the night. The following day, when she reported to work at about 11.00am, the watchman informed her that the two gentlemen she had left behind had fought and he had to throw them out, unfortunately he confirmed that one of them had been found dead. 3.Under cross examination, she confirmed that she knew both the deceased and the accused person as they were her regular customers at the club and she had left them sharing a table before she retired to go sleep. She was also surprised by the incident that occurred since she had left the two in good terms and did not foresee the incident that later occurred. When further questioned on her statement to the police she confirmed that she had recorded that there was a fracas between the two and that “Susan” had got them removed from the club when the caused the racus. 4.PW2 Peter Kariuki Mbugua, also stated that he was from Mutarakwe village, where he ran a café business known as “Together café”. On 18.02.2021 he went to work at about 9.00am and started by cleaning his café and in the process of going to throw garbage at the garbage site, which was about 50 meters away from his café, he saw the legs of a human being and though it was a village drunkard, but on closer examination saw that the body was half naked. He then informed one, “Felista” of what he had seen and resumed his work at the café. Under cross-exam examination he reaffirmed that he saw the body but did not go near it and that his café was about 1km away from D.S Villa Club. 5.PW3 Felister Wamuhiu Mbochi, recalled that on 18.02.2021 at about 8.30am, PW2 did come running to her and informed her that he had seen a body at the dumpsite. They went back together and saw the man’s legs, but the body was inside a bush partly hidden. She called the Assistant chief, who arrived with the police and after processing the scene, took the deceased body away. The deceased was a person known to her since he was her customer at her grocery shop. Further she did not see anything unusual other than the body was naked and about two days later, the deceased phone was recovered from the dumpsite. She also knew the accused person and was aware that he was related to the deceased. 6.PW4 Faith Wangeci Kiriba, also confirmed that she resided within Mutarakwa village in Limuru and ran her Mpesa and cosmetics businesses thereat . She confirmed that the accused was her uncle, while the deceased was her cousin. She recalled that on 18.02.2021 in the morning, PW3 came and told her that somebody had been killed, and his body thrown near her place of work. She did not go to the scene, but she did get information from other family members who went to the scene, that it was her cousin- Patrick who had been killed. Later on, 20.02.2021 PW3 had called her and informed her that the deceased phone had been recovered, and she took possession of the same. Under cross-examination she confirmed that the accused and the deceased would hang out together and did not have any personal difference known to her. 7.PW5 James Njenga Ngige recalled that on 17.02.2021 in the morning at about 8.00am, he was at home with his son, the deceased, and took breakfast together. His son later, requested for money to enable him to go to the local cyber at Mutarakwa shopping Centre and he gave him Ksh 150/=, and that was the last time he saw his son alive, as he did not come back home on the said night. On the following day at about 9.00am, While at his brother’s house, the said brother,( John Kiriba) did receive a call from a good Samaritan, who informed him that the deceased body had been recovered by the roadside. They dashed to the scene and unfortunately confirmed the bad news. 8.He had later learnt that the deceased and the accused were captured on CCTV of DS Villa Club, leaving the said club at 3.00am and that there was also CCTV footage from a carwash that captured them fighting. Under cross examination he confirmed that the deceased was his last-born child aged 27 years at the time of death. The accused was his stepbrother, though he was the one who had raised him and generally had a good relationship with the deceased. He had personally viewed the CCTV footage and saw them fight, though both appeared to be drunk. 9.PW6 John Kiriba, recalled that on 18.02.2021 at about 10.00am, he was at home with PW5, when he received a call from their cousin, one Nicholas, who informed them that somebody had been killed and his body left to lie by the roadside. Enroute to the scene, Peter Nga’nga called and confirmed that it was their son who had been killed and reconfirmed the sad news when they reached the scene and viewed the body. Under cross examination he confirmed that as a family they did not have any dispute and that the deceased and the accused were good friends and would usually go to drink Alcohol together. 10.PW7 Elizabeth Wariara Wanjiru stated that she was a resident of Mutarukwa and was engaged in the business of selling chicken, though she previously worked as a cleaning lady at DS Villa Club. She recalled that on 17.02.2021 in the evening, she was at the said club, when the deceased came with his friend and sat next to her. She inquired why he was insisting on sitting next to her, yet the club was not full, but the deceased became aggressive and she opted not to engage him further. She continued to drink Alcohol and later blacked out therein until about 05.00hrs when she woke up and went home. 11.The following day, she reported to work as normal to undertake her cleaning duties and was informed that the deceased body had been found by the roadside. She did not go to the scene, and did not know what occasion his death, but also affirmed that the deceased was with the accused on the material night, when they came to the club. 12.PW8 PC Misango Dancan stated that at the time of the incident, he was stationed at Mutarakwa Police post and on the material morning, he was called by the OCS Tigoni Police station and informed of the deceased body which had been recovered by the roadside. He rushed to the scene with PC Mburu and secured it while waiting for the DCI team to arrive from Tigoni Police station to take over the investigations. 13.PW9 Cpr Charles Ilado, stated that at the time of the incident, he was stationed at Tigoni police station and was the initial investigating officer but handed over the file to Inp Nyengenya, since he was transferred to Wajir DCI office. He had recorded some of the witness statements and later got to see the CCTV footage of the club, which revealed that the accused and deceased walked into the said club at 1.00am and left at about 4.00am. They suspected that after they had left the club the two disagreed and fought, but this was not captured in the CCTV, but their suspicion was re-enforced since the accused went underground after the incident, and they had to look for him before he was arrested. 14.Under cross examination, he confirmed that he visited the scene of crime and found it disturbed which was a sign that a fight had occurred, and the CCTV footage had also confirmed that the accused was the last person seen with the deceased and had an obligation to explain what happened to him. 15.PW10 Dr Peter Ndegwa Kariuki, the pathologist confirmed that he did the postmortem on the deceased body on 19.02.2021, after it had been identified by PW5 and PW6. His finding was that the deceased had internal bruises on the neck tissue and muscles and also a fractured neck bone ( circo -thyroid). The other systems were generally normal. He formed the opinion that the deceased had died due to manual strangulation. 16.PW11 Inp Elisha Chirchir, of DCI headquarters- cyber crime and forensics Laboratory, stated that he had 10 years’ experience working in the said department and had been extensively trained in cybercrime both in Kenya and abroad. With respect to the case at hand, he had received a request from Limuru DCIO through his letter dated 26.02.2021 to retrieve and examine two CCTV footages concerning an incident which occurred within his jurisdiction. The said CCTV footages were to be retrieved from the club and carwash along Mai Maihu – Limuru road. 17.On 17.03.2021, while accompanied by Chief Inspector Kennedy Karanja, they did proceed to the said scenes and retrieved the relevant footage from the primary device. The relevant period was the night of 17.02.2021 between 23.54hrs to 03.30hrs on 18.02.2021. The club had seven cameras but only two were of interest (camera 5 which captured the footage of the two entering the said club and camera 7, which captured them seated within the said club). 18.They further proceeded to the car wash, which was about 50 meters away from the club and retrieved the footage of the CCTV for the period 03.09hrs and 03.22hrs of early morning of 18.02.2021. Specifically, camera 3 of the car wash was of interest since it captured the deceased and the accused standing at one point for about 10 minutes before moving away at 03.22hrs. The said camera though was at a distant captured the accused (who had a reflector jacket) dragging the deceased along the road. He deduced his findings in his report dated 10.05.2021, which he presented into evidence together with the certificate under section 106 of the Evidence Act, and both videos, which was stored in a flash disk. 19.Under cross examination PW11 confirmed that the CCTV footage from the carwash corroborated the evidence retrieved from the clubs CCTV, which clearly captured the accused wearing the reflector jacket, and he is later captured by camera 3 of the car wash CCTV dragging the deceased and though the said footage is not clear, his action can be seen since he is visible through the reflector jacket worn. 20.PW12 Inp Linus Nyegenye, confirmed that he was the investigating officer and recapped the evidence given by the other prosecution witnesses as to the sequence of events that occurred on the material morning when the deceased body was recovered. As part of their investigations, they had retraced the deceased last moments and viewed the CCTV footage of the club where he was said to have patroned with the accused person. They established that when the two were leaving the club, they were drunk and were quarrelling. He further viewed the CCTV of the carwash, and it clearly showed the accused assaulting the deceased on their way home. 21.They had viewed the CCTV together with PW6 who positively identified the accused and they subsequently arrested him. He also did write to the cyber crime department and requested them to come and retrieve the said CCTV footage. Under cross examination he confirmed that it was PW6 who identified the parties on the CCTV since they were relatives and they were known to him and further reiterated that though the car wash CCTV was not very clear, the accused could be identified from the reflector jacket he was putting on and he is seen assaulting and dragging the deceased along the road. 22.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 23.DW1 Amos Kibuthi Ngige, confirmed that the deceased was his nephew, and they enjoyed cordial relationship all through, since they grew up together and even in adulthood would spend social time together. On 18.02.2021 they did meet, together with other cousins in the evening at club Icon and he bought for the deceased Alcohol. At about 11.00 pm they went to club DS villa, where they continued to drink spirits and left for home at about 2.00am. 24.During the said evening, and/or even as they walked home, they never disagreed and he left the deceased at their gate and proceeded further down the road to their home. The following morning at about 10.00am, while still at home, he got to know of the incident through his boda boda rider and was shocked by what had occurred. He was later arrested after about 3 months and charged with the offence before court. He reiterated that he did not fight with the deceased on the said night and insisted that the car wash CCTV was blurry and did not show him assaulting the deceased. He therefore urged this court to acquit him of the murder charge faced. (d) Determination 25.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 Patrick Kamau Njenga, the deceased herein. 26.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.” 27.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.” 28.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. 29.I will now proceed to interrogate each issue. The death of the deceased and its cause. 30.It is common ground that Patrick Kamau Njenga died on 18.02.2021 and this was confirmed by all the witnesses. Dr Peter Ndegwa (PW 10), the pathologist who conducted the postmortem on 19.02.20121 established that the deceased had internal bruises on the neck tissue and muscles and also a fractured neck bone (circo -thyroid ). The other body systems were essentially normal. He formed the opinion that the deceased had died due to manual strangulation. 31.This court therefore finds as a fact, that death and its cause was fully established. Whether it has been proved that the accused committed the unlawful act which caused the death of the deceased: 32.PW1 and PW7 confirmed that the deceased and the accused walked into DS Villa club on the night of 17.02.2021 and enjoyed their alcohol drinks therein until wee hours of the morning, when they left for home. The following morning the deceased body was found lying by the road side by PW2, who informed other members of the village/family. PW 9 and PW12 both conducted investigations into this matter and retraced the deceased movement the night prior to his death. From a review of the CCTV footage at DS Villa club and a neighboring carwash it was established that the accused and the deceased left the club together, were drunk and were seen quarreling as they left. 33.The said CCTV footage for both the club and the carwash were played on the court screen and this is a fact established. More importantly the CCTV footage clearly shows that the accused was wearing a jacket which had reflectors. The second footage from the car wash CCTV, though not clear then shows the two standing by the carwash and seem to be quarrelling. The appellant is then seen assaulting and dragging the deceased towards the direction of their home. This camera captures the accused reflector jacket and his action is unmistakable. 34.To crown this evidence PW11, the cyber/forensic expert explained at length how they extracted the footage and subjected it to analysis. They did extract and examined what occurred at DS Villa Club from 23.54hrs to 02.30hrs, when the two left the club and from the CCTV footage of the car wash extracted footage of camera 3 between 03.09hrs to 03.22hrs. It is the second footage that shows the deceased and the accused standing/ quarrelling for about 10mins and later he is see dragging the deceased away. He emphasized that what helped to trace their movement was the accused reflector jacket, through which he can be clearly seen in both videos. PW11 findings were reduced in his report dated 10.05.2021, which was produced into evidence, together with the certificate under Section 106 of the Evidence Act and both CCTV footages, which were stored in a flash disk. 35.This evidence placed the accused as the last person not only seen with the deceased but also establishes that he was assaulting the said deceased and thus had an obligation to explain, what subsequently occurred that lead to the demise of deceased. See Stephen Haruna v The Attorney-General of The Federation (2010) 1 iLAW/CA/A/86/C/2009 . 36.Sections 111(1) and 119 of the Evidence Act also provides as follows:“ 111.(1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecuting, whether in cross-examination or otherwise, that such circumstances or facts exist:Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.” “119.The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” 37.In defence the accused did admit that they were with the deceased until the wee hours of the fateful morning but strenuously denied harming him. He stated that he left the deceased at their gate and proceeded to walk to their home which was about 800m ahead. He did not harm the deceased and they shared a cordial relationship, having grown up together and therefore and no motive to harm him. 38.In the circumstances of this case, it is my view that the subject’s defence failed to offer any explanation as to how the deceased might have met his death. He captured on camera assaulting the deceased and his defense, in my mind, amounts to a mere denial. 39.Therefore, based on the prosecution evidence adduced especially the CCTV footage, I do find that it was proved beyond reasonable doubt that it was the accused, who unlawfully caused the deceased death. Malice Aforethought 40.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.” 41.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. 42.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.” 43.Though it has been established that the accused did assault the deceased and unlawfully caused his death, from the CCTV footage it can be clearly seen that they were both extremely drank having taken a copious amount of Alcohol - KC Vodka. 44.Section 13 of the penal code, deals with the issue of intoxication in criminal matter and provides that:“13(1) Save as provided in this section, intoxication shall not constitute a defence to any criminal charge.(2)Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and –(a)the state of intoxication was caused without his consent by the malicious or negligent act of another person; orb)the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.(3)Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused shall be discharged, and in a case falling under paragraph (b) the provisions of this Code and of the Criminal Procedure Code relating to insanity shall apply.(4)Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.(5)For the purpose of this section, “intoxication” includes a state produced by narcotics or drugs.” 45.Under section 13 of the Penal Code, intoxication is not a general defence to a criminal offence, except in the circumstances set out in the section. A person who commits an offence while intoxicated is not ipso facto excused from the consequences of his act. The aforementioned section affords a defence of intoxication in three situations as follows.(a)The first situation is in what is called involuntary intoxication, where at the time of the commission of the act complained of, the accused person does not know that it is wrong or does not know what he is doing, because of intoxication caused without his consent by the malicious or negligent act of another person. In such a case, the court is required to discharge the accused person.(b)The second situation is where the accused person, by reason of intoxication is insane, temporarily or otherwise, so that at the time of commission of the act complained of, he does not know that it is wrong or does not know what he is doing. This situation brings the case within the M’Naghten Rules and the court is required to deal with the accused person in the manner prescribed by the Criminal Procedure Code for accused persons who were insane at the time of commission of the offence, culminating in a special finding of guilty but insane and the detention of the accused person in a mental hospital at the pleasure of the President.In Rex v. Retief [1940-1943] EA 71, the former Court of Appeal for Eastern Africa explained this aspect of the defence of intoxication as follows:“The insanity whether produced by drunkenness or otherwise is a defence to the crime charged. The law takes no note of the cause of insanity and, if actual insanity in fact supervenes as the result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause. It is immaterial whether the insanity so induced was permanent or temporary and if a man’s intoxication were such as to induce insanity so that he did not know the nature of his act or that his act was wrongful, his act would be excusable on the ground of insanity and the verdict should be as laid down in section 159 of the Criminal Procedure Code ‘guilty of the act charged but insane when he did the act.’ ”(c)The third situation, contemplated by section 13(4), arises whereby reason of intoxication the accused person is incapable of forming a specific intent, which is an element of the offence charged. Sometimes this situation is referred to as “intoxication or drunkenness negativing mens rea”. In Said Karisa Kimunzu v. Republic, CR App No. 266 of 2006 (Msa), the Court stated thus regarding intoxication or drunkenness negativing mens rea:“But under subsection (4) the court is required to take into account the issue of whether the drunkenness or intoxication deprived the person charged of the ability to form the specific intention required for the commission of a particular crime. In a charge of murder such as the one under consideration, the specific intention required to prove such an offence is malice aforethought as defined in section 206 of the Penal Code. If there be evidence of drunkenness or intoxication then under section 13(4) of the Penal Code, a trial court is required to take that into account for the purpose of determining whether the person charged was capable of forming any intention, specific or otherwise, in the absence of which he would not be guilty of the offence. In the circumstance of this appeal, the learned trial Judge was required to take into account the appellant’s drinking spree of the previous night and even that morning in determining the issue of whether the appellant was capable of forming and had formed the intention to kill his son.” 46.The appellant and the deceased were drunk on the material night having drank KC- Vodka from 8.00pm to about 3.00 a.m. when they retired and set for home. The CCTV footage confirms this fact as they are seen staggering out of the DC Villa pub, while quarrelling and he is later seen assaulting and dragging the deceased enroute home through camera 3 of the car wash CCTV. The question arises whether in the said state the subject herein was fully aware of the consequences of his action and/or if it deprived him of the mens rea required for the commission of a particular crime. 47.PW3, PW5 and PW6 confirmed that the deceased and the accused were bossom buddies, same age set uncle/son who grew up together and also always socialized together. There was no grudge or motive shown to have existed, which would make the subject herein want to kill the deceased. 48.Based on the evidence presented, am not satisfied that malice aforethought has been established in terms of Section 206 of the Penal Code as all the parties involved were in a state of drunken stupor, when the dispute arose, resulting in the accused person assaulting the deceased and inflicting the injuries that unfortunately lead to his death. 49.Having so determined, the court falls back to Section 179 of the Criminal Procedure Code, which provides-(1)When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.(2)When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it. D. Disposition. 50.In the premises, I find that the offence of Murder has not been proved and accordingly reduce the charge of murder to manslaughter. The accused is acquitted of the charge of murder but convicted of the lesser offence of manslaughter contrary to section 202 as read with Section 205 of the Penal Code. 51.The probation and after care department are directed to file the pre-sentence report within the next 21 days. 52.Right of Appeal, 14 days. 53.It is so Ordered. JUDGMENT, SIGNED AT KIAMBU THIS 18TH DAY OF MAY 2026.FRANCIS RAYOLA OLELJUDGEJUDGMENT READ AND DELIVERED IN OPEN COURT ON THIS 18TH DAY OF MAY 2026.In the presence of:-……………………………………..Accused………………………………….For O.D.P.P………………………………….Court Assistant