https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9885

Republic v Ngugi (Criminal Case E003 of 2023) [2026] KEHC 9885 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9885 (KLR) Republic of Kenya In the High Court at Thika Criminal Case E003 of 2023 FN Muchemi, J July 2, 2026 Between Republic Prosecutor and Alex Kiongo Ngugi Accused Judgment 1.The accused person Alex Kiongo Ngugi was jointly charged with Joseph Njogu Kamande and Joseph Mburu Waithera both of whom were convicted and sentenced following plea bargain. The two were the 1st and 2nd accused in this file while the accused herein Alex Kiongo was the 3rd accused. The accused’s case went through a full hearing whereas seven prosecution witnesses testified. The charge facing the accused that of the murder contrary to section 203 as read with section 204 of the Penal Code. The accused pleaded not guilty to the charge. The deceased James Njihia was a resident of Gatongora in Ruiru where the accused also lives. 2.Precisely, the facts of the case are that on 3rd June 2019, the deceased was leaving his parents home where he was confronted by a group of about 50 men and beaten fiercely thereby sustaining fatal injuries. He died while at Thika Level 5 hospital undergoing treatment on 5th June 2019. The accused and his two accomplices were arrested and charged with the murder of the deceased in Kiambu High Court on 19th June 2019. This case was transferred to Thika on 21st November 2023. This court proceeded with the case as a fresh one. The evidence 3.PW3 was the mother of the deceased who testified to the effect that on 03.06.26 at around 9.30 am, she was on the road next to her home tying her goat to graze. A group of young men came towards her home armed with pangas, spades, sticks and whips. She identified the accused person who was popularly known as “Kisii” and two others not before the court. The suspects were the neighbours in Kona Mutonya village. The accused person belonged to a group called Kainuke. while the deceased belong to Kibendera group. Both groups were from the area and were competing for casual labour of loading and offloading building materials, that is, sand and stones on and from lorries which used to come to a nearby quarry at Kona Mutonya. 4.The men assaulted the deceased on the road critically using crude weapons. Although the deceased was rushed to hospital, he died two days after the attack while undergoing treatment. 5.PW2, the father of the deceased did not witness the incident. He was called on phone by his son known as Peter following the assault of the deceased. Together with others neighbors, they escorted the deceased to Thika Level 5 hospital. He found his son at Ruiru sub-county hospital where he had been examined but had to be transferred to Thika Level 5 hospital due to the gravity of the injuries. 6.PW5 was the chairman of the Kibendera group to which the deceased belonged. He said his members had reported to work early in the morning. At around 10:00 am, a fight broke between his group and the rival one called Kainuke. It was PW5’s group that was on duty at the quarry on the material day. The rival group arrived armed with dangerous weapons and confronted the Kibendera group but were repulsed. Police were called to come to the scene and the members of the aggressor group ran away. The deceased was assaulted on the road near his home as the Kainuke group left the quarry. 7.PW6 said he witnessed the confrontation between the two groups and saw some suspects assault the deceased. He saw the mother of the deceased at a distance as she called for help for her son who was under attack from the Kainuke group members. He said he knew the accused person and that he saw him hitting the deceased with a stick. The accused was popularly known as “Kisii” in the area. He assisted in the arrest of the accused together with his accomplices. 8.PW3 Dr. Mathaiya performed the postmortem on the body of the deceased on 12th June 2019. The report showed multiple injuries on the deceased’s head, face and other parts of the body. The doctor formed the opinion that the cause of death was severe head injuries due to blunt force trauma of the head consistent with homicide. 9.The scene was attended to by police officers from Ruiru police station on the same day of the incident led by Officer Commanding Station (OCS) and District Criminal Investigation (DCI) Ruiru. PW7 was among the team. He found the OCS Ruiru and his officers at the scene having been sent by the DCI. Upon arrival, he was informed that the aggressor group had left and that the deceased has been taken to hospital. The accused herein was arrested on 06.06.19 in presence of PW7 with assistance of the members of the public who said they had witnessed him assault the deceased together with other people. 10.The accused in his defence denied the offence. In his evidence on oath, he said that on 03.06.19, he was on duty loading sand on a lorry. He had reported at the Mutonya office at around 6.15 am. The lorry came a little later and it was loaded with sand that was being taken to Gikumari in Juja. He left corner Mutonya with his colleagues Patrick Gachagua and John Ngugi and then proceeded to Juja where they offloaded the sand. On his return to Kona Mutonya, he did not find his group members there. It was the following day that he was informed that there was a confrontation at the quarry between his group Kainuke the day before with that of Kibendera. 11.On 06.06.19 the accused said he was attacked by about 30 men from Kibendera group at Kaguru secondary and he was seriously assaulted and robbed of cash Sh. 2750 and phone. He reported the matter at Ruiru police station but did not follow up on the investigations. He denies the offence and says he was not at the scene at the time of the fracas. 12.The accused called one witness who testified as DW2. He said that he was a loader/tonne boy in lorries which carried sand from Maai Mahiu and Ukambani rivers to transport to various places. He testified that on 03.06.26, he was on duty after being called by his boss to go to work in the morning. The lorry was registration number KAZ 929Z. He went to load sand at Mutonya with the accused who was popularly known as “Kisii”. The sand was taken to destination and accused with other two loaders were returned to Mutonya corner. As for him, he proceeded with the lorry to Naivasha to carry another trip of sand. The prosecution submissions 13.Both parties filed submission in this case. The prosecution urged the court to disregard the alibi defence for it came on board a bit late in the day and did not allow the prosecution time to respond to it as required by the law. On cross examination the accused failed to give any reason for his late entry in regard to the alibi defence. The allegation that the accused was robbed and beaten by the rival group did not convince the court as true in that the accused failed to follow up the report with the police. He did not produce an O.B number to confirm that he had made such a report. The two people the accused said were with him on duty of loading sand on the material day, did not give evidence in the defence. The person who come to give evidence was a stranger in the previous defence story and may have been coached. He said he did not witness the accused being assaulted by the rival group on 06.06.26 as alleged. The prosecution relied on the case of Chemulon Wero Olango 1937 4 EACA 46; R VS Sukha Singh s/0 Wazir Singh & others 1939 6eaca, 145; R VS Ahmed Abdul Hafid (1934) I EACA 76; Festo Andora Asenua vs Uganda Cr. Application number 1 of 1998 in challenging of the alibi defence. 14.The prosecution argued that the accused was positively identified by PW1, PW5 and pw6 who were at the scene. The death of the deceased was unlawful as shown by the evidence adduced. The element of malice aforethought was discernible from the grave injuries inflicted as well as the organs of the body targeted being the head and also considering the types of weapons used. The prosecution urged the court to find that the prosecution has proved its case to the standards required. The defence 15.The defence submitted that the prosecution has failed to adduce evidence to prove that the accused unlawfully caused the death of the deceased. During the fracas between the two rival groups, there was a lot of confusion for any witness to identify any of the attackers. The attack was kind of by a mob which was evident from the multiple injuries inflicted on the deceased. The accused gave an alibi defence and had witnesses to support his alibi defence but unfortunately, they feared to attend court for the reason that they would be victimsed testifying. The fact that the accused was not arrested at the scene and no identification parade was held weakens the prosecution’s evidence on identification. There was no evidence of malice aforethought adduce in this case to justify conviction of the offence of murder. The defence urged the court to acquit the accused for the reason that the ingredients of murder were not established. 16.The defence in its submission raised a number of issues in regard to proof of the prosecution’s case which I hereby set to address in regard to the ingredients of the offence of murder. Analysis of the evidence 17.In a charge of murder, the prosecution must prove the following: -a.The death of the deceased.b.That the accused caused the death of the deceased through an unlawful act or mission.c.That the accused was positively identified as one of the person who caused the unlawful act or acts.d.That the accused had malice aforethought. 18.The defence submitted that no murder weapon was produced by the prosecution. It is trite that in investigations of murder cases that the murder weapon must be produced. In the event that a murder weapon is not recovered, the court will rely on other evidence of the witnesses which may or may not lead to a conviction. In other words, it is not a legal requirement that the murder weapon must be produced in court for a conviction to be sustained. 19.It was further argued that an identification parade was not held. An identification parade must not be held in all murder cases. A parade becomes necessary only when the witnesses do not know the suspect and may have seen him only during the incident and can only describe him by his physical appearance. This is where a parade is required to be conducted for the witness to point out the person he saw during the material time. In the case before me, the witnesses were neighbours of the accused person and knew him well. The family of the deceased live in one village known as Kona with the accused’s family. Other witnesses were members of the two rival groups who lived in the same neighbourhood of Kona Mutonya with the accused and the deceased. PW1 said she had known the accused for many years. The accused said he had moved to the village in 2017 which means that by the time of the incident, he had lived in the village for about two or more years. The period of two years is sufficient time for people living in one village to know one another. PW2 on cross-examination said that he had known the accused person herein for several years. He also knew his parents. Their home is in the rural Mutonya village as described by PW2. PW6 said he knew the accused who was popularly known as “Kisii”. He saw him hit the deceased with a stick. PW6 assisted the law enforcers in arresting the accused herein. In my view, there was no need of holding an identification parade for it would not have served any useful purpose. 20.The defence further argued that the prosecution did not adduce evidence of the fatal blow or strike that the accused caused on deceased. This issue will be addressed later in regard to the evidence of the ingredients of identification. Proof of Death 21.The evidence of PW1 and PW2 who were the parents of the deceased was that the deceased died only two days after the attack. Dr, Mathaiya produced in evidence the post mortem report dated 12th June 2019 to the effect that the injuries inflicted on the deceased especially on the head were the cause of death. The prosecution established the fact that the deceased died as a result of the injuries inflicted on him on 3rd June 2019. Defence of the Accused 22.The accused raised the defence of alibi, that he was not at the scene when the incident occurred. He gave no account to the effect that he left his home at around 6.15 a.m. and went to Kona Mutonya quarry to load sand which was his usual occupation to earn a living. The vehicle which was a lorry came to the quarry. Loading was done by him and two others namely Patrick Gachagua and John Ngugi. The lorry proceeded to Gikumari in Juja after loading. The sand was offloaded and the accused and his companions went back to Kona Mutonya in the same vehicle. The loaders including the accused were dropped at the quarry at Kona. The accused said he did not find the members of his “Kainuke” group there. He learnt later that there had been a fracas between members of his group and those of Kibendera to which the accused belonged. Was the Death Unlawful? 23.The prosecution adduced evidence that the death of the deceased was caused by assault that was so grave that it brought his life to an end. There is evidence that the accused in the company of others not before the court assaulted the deceased and inflicted fatal injuries. The accused has not raised any justifiable defence to negate the unlawful act. 24.On 06/06/2019, the accused said he was assaulted by about 30 men of the Kibendera group and his cash Ksh.2750 and mobile phone were stolen. He said he did not follow up on the investigations. The accused did not give any reason why he did not follow up on the said investigations by Ruiru Police Station whereas a serious crime described in law as robbery with violence had taken place. However, this occurrence was after the fact that it happened three days after the date of the offence. As for the alibi, the accused raised it at defence stage. The law requires that such defence be raised well in advance during the hearing to give the prosecution an opportunity to prepare to challenge it, if need be. The prosecution, herein had no time to investigate the alibi. This omission denies the prosecution of their right to counter the said aspect of defence. However, the accused still retains the right to rely on the defence of alibi though weakened by the delay to raise it. During cross-examination, this alibi defence was not mentioned which renders it an afterthought. The other aspect of the defence submissions was that the accused mentioned names of two people who were with him at the place the sand was loaded and went in the lorry together to Gikumari in Juja where offloading was done. The accused did not call any of the two men as witnesses. The court agreed with the defence that the evidence of PW2 on names of attackers disclosed by the deceased in hospital was not admissible in evidence since it was not processed in accordance with the law on death declarations. The court disregarded the said evidence. 25.His witness DW2 said he was a loader of building materials including sand. He gave the registration number of the lorry as KAZ 929 Z but said he could not remember the name of the owner of the lorry. He further stated that on the material day he was with the accused person as they loaded sand and later offloaded. They returned to Kona Mutonya where they dropped the accused and two of his colleagues. It was intimated before the court by the defence counsel that the two preferred witnesses of the accused were afraid to testify in court for reasons known to them. Had the accused called the two men whose names he had given earlier as having been with him on the material day, his defence would have been fortified by that evidence to some extent. 26.The prosecution witnesses at the scene PW1, PW2 and PW6 told the court the accused was at the scene and was armed with a stick as he assaulted the deceased together with other members of their Kainuke group. The court found these three witnesses credible as opposed to the defence who kind of struggled to avail the defence witnesses he had mentioned were with him on the material day. The accused did not mention during his defence that DW1 was with him on the material day but nevertheless called him to testify after others declined to do so. The alibi defence was not convincing and it was tendered a bit late in the trial. In my considered view, the defence of the accused was not plausible and did not dislodge the prosecution’s evidence against the accused. 28.On the issue raised by the defence that there was no evidence that the accused struck the fatal blow that killed the deceased, I wish to state that in a case where several people with common intention fatally assault a person, it is not necessary to prove this aspect in regard to each accused or aggressor. Any person who took part in the assault is held liable for the end result irrespective of whether they struck the fatal blow or not. All are held to have acted with common intention and bear the responsibility of the end result. 29.The defence raised the issue that the evidence of the prosecution was circumstantial and submitted that it did not meet the threshold required in law. I wish to state that the prosecution relied on direct evidence of PW1, PW2 and PW6 who witnessed the assault at the scene. Each of them gave details of the parts played by the accused whom they all positively identified in action at the scene. The evidence of the prosecution was mostly direct and was not wholly circumstantial as alleged by the defence. The incident took place during the day and the witnesses said they recognised the accused person whom they knew before the incident. 30.After a careful analysis of the evidence of the prosecution and the defence of the accused, I find that the prosecution have proved beyond reasonable doubt that the accused together with others not before the court caused the unlawful act that led to the death of the deceased. Malice Aforethought 31.The prosecution have a duty to prove that the accused had the intention to cause the death of the deceased as defined under Section 206 of the Penal Code. Section 206 defines malice aforethought as follows: -(a)An intention to cause the death of another.(b)An intention to cause grievous harm to another.(c)Knowledge that the act or omission will probably cause death.(d)An intention to commit a felony.(e)An intention to facilitate an escape from lawful custody, or flight of any person who has committed a felony or attempted it. 32.In this case, the deceased was assaulted by a group of people and only a few of them were identified by the witnesses who gave evidence in court. It is important to take note that the accomplices of the accused who were Joseph Njogu and Josphat Mburu have already been convicted of the offence of manslaughter following plea bargain. For this reason, I wish to refer to Section 21 of the penal code which provides for joint offenders in prosecution of common purpose. 33.Section 21 establishes that where two or more people form a shared plan to commit a crime, and another crime is committed that was probable consequence of their plan, all the members are deemed equally guilty. The crime was committed by a group of people who were competing for casual labour within local companies against one another. The aggressor group known as Kainuke are the ones who confronted the other group while at work loading building materials at the quarry. The aggressor group found the other group unprepared for a fight and tried to attack them. When the Kainuke group was repulsed due to joint effort of the people at the quarry, they left the scene going towards the home of the deceased who belonged to the rival Kibendera group. The Kainuke group members met the deceased on the road near his home and assaulted him fatally. 34.Although the injuries caused on the deceased were so severe and extensive and that they were caused by several aggressors this court finds that none of the Kainuke group members had the intention to kill the deceased. The deceased became a victim of circumstances after the original intention, probably, to chase away the Kibendera group from the quarry failed. This leads the court to the finding that the accused and his accomplices did not have the intention to kill the deceased. Apart from the multiple and grave injuries inflicted on the deceased, the prosecution failed to prove there existed the intention to kill on the part of the accused. However, the common purpose of the Kainuke group of assaulting the members of the rival group was well established. 35.I therefore, find that the prosecution have failed to prove malice aforethought on the part of the accused person. 36.Consequently, having found that the accused committed the unlawful act together with others not before the court, I find that the offence of manslaughter under Section 202 of the Penal Code has been proved beyond reasonable doubt against the accused person. I, therefore, find the accused guilty of manslaughter and convict him accordingly. 37.It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 2ND DAY OF JULY 2026.F. MUCHEMI.JUDGE