https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11261

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CRIMINAL CASE NUMBER E014 OF 2024** **REPUBLIC …………………. .………………………………...….. ODPP** **VERSUS** **JOSEPH MUNIU NJERI…...…………………..…..…………..ACCUSED** **JUDGMENT** 1. The accused is charged with **Murder Contary to Section 203 as read with Section 204 of the Penal Code.** The particulars of the information relating to the offence state that on 21st March 2024 at Tumaini Centre, Rongai Subcounty, within Nakuru County he murdered Collins Wanjala Barasa. The accused entered plea of “Not Guilty” to the offence. **The Prosecution Case** 1. The prosecution evidence is that on the material date of around 8:00 pm, PW4 was at his home when the deceased visited in the company of the Accused person. The Accused complained that the deceased had confiscated his mobile phone and urged PW4 to ask him to surrender it. The deceased explained that the Accused owed him Kshs.100/- being the cost of transporting him on a "boda boda" motorcycle. The motorcycle belonged to PW4 who had given it to the deceased to ride and carry pillion passengers on "boda boda" business. 2. Despite PW4's intervention assisted by his wife (PW5), the dispute could not be settled. When the deceased was asked to surrender the motorcycle's ignition keys so that the matter could be resolved the following day, he declined. The deceased was said to be very angry and left PW4's home in a huff. A short while later he returned and started fighting the Accused. PW4's other family members including his mother (PW2) and his brother (PW1) also arrived at the scene and tried to separate the two. PW4 told the court that he himself was unwell and could not restrain the Accused and the deceased. 3. After a while, PW4 further testified, he heard the Accused crying out that he had been stabbed. Then the deceased fell down unconscious and the Accused fled. PW4 and his relatives raised alarm attracting other area residents. The witness said he didn't know if the Accused was in fact also hurt in the fight. He knew both the Accused and the deceased as his neighbours. PW4 added that he later heard of the deceased's death as he was being taken to hospital. 4. PW1, PW2 and PW5 confirmed the fighting. They had heard the disturbance at PW4's part of the homestead and rushed there. PW1 told the court that he held the Accused and saw him tucking a knife in his waist. The knife fell down when he got hold of him. PW1 led the Accused out of their gate. Then he heard PW2 shouting for help saying that the deceased was injured. PW1 went back and noticed that the deceased had a wound in the chest. It was suspected that the Accused had stabbed him. He was taken to Tumaini Dispensary where first aid was administered on him before his relatives took him to hospital for further medical attention. 5. Police officers did arrive at the scene and took possession of the knife suspected to have been used to stab the deceased. They also took custody of the deceased's sweater. 6. PW3, also a resident of the area, testified that she too went to the scene of the fight after hearing screams. She found the deceased on a motorcycle being readied for transportation to hospital. With the aid of her phone light, PW3 saw a blood-stained knife on the ground. She rang up the area chief and thereafter police officers arrived and took custody of the knife which she identified in court. 7. PW5 is PW4's wife. She fully confirmed the testimony of his relatives. 8. PW6, a Police Officer then based at Menengai Police Station, testified that on 22/3/2020 the Accused went to the station and reported the fight between him and the deceased. He is said to have related that the deceased died in the scuffle. The matter was referred to the Directorate of Criminal Investigations Officers. 9. On 4/4/2024 post-mortem examination of the deceased's body was conducted at the Nakuru County Teaching & Referral Hospital. A penetrating stab wound was noted in the chest extending to the chest cavity. There was clotted blood on the left side the chest caused by massive bleeding from the deceased's injured aorta. The Pathologist (PW8) opined that the cause of death was massive blood loss due to injury to the aorta brought about by sharp trauma to the chest. 10. As part of their investigations into the case, the Police sent the deceased's blood sample, his nail cuttings and the collected knife to the Government Chemist in Kisumu for forensic examination. The Government Chemist was asked to determine presence and origin of any infectious material on the exhibits. PW9 carried out the analysis and concluded that DNA profile generated from the finger nail cuttings and the blood stains on the knife matched the deceased's blood samples. The forensic analysis report dated 25/6/2024 was tendered and admitted in evidence. 11. PW7 (Investigating Officer) testified that on 21/3/2024 he learnt of the murder incident from the Directorate of Criminal Investigations (Rongai). Together with other officers, he went to the scene where they learnt that the deceased had been stabbed with a knife. They collected the knife and a jacket said to belong to the deceased at the scene, outside a house. 12. PW7 further testified that they proceeded to Familia Bora Medical Clinic at Kampi ya Moto Trading Centre where the deceased was reportedly taken for treatment. The officer learnt that he was dead and he could see a wound in the deceased’s chest. 13. The Accused is said to have surrendered to the police at Menengai Police Station and he was apprehended. PW7 confirmed that the knife suspected to have been used to kill the deceased was subjected to forensic examination which showed blood found thereon matched that of the deceased. 14. PW7 exhibited *inter alia* the knife and the deceased's jacket / sweater in support of the prosecution case. **The Defence Case** 1. The Accused was put on his defence to the charge. Choosing to offer sworn testimony, he confirmed that the deceased transported him on a “boda boda’’ motorcycle for pay on the fateful day. When he was dropped off at his destination, he offered to pay the deceased's charges by the M-Pesa money transfer service. The deceased allegedly rejected that mode of payment and confiscated the Accused person's phone . It would appear that the two decided to refer the dispute to the motorcycle owner (PW4) and rode to his home. According to the Accused, PW4 directed the deceased to release the phone but he declined. Instead he angrily left PW4's home with the phone and the motorcycle's ignition keys. 2. The Accused further told the court that the deceased later returned to PW4's home while he was still there and started fighting him. As they struggled, the Accused stated that he felt a stab to his hand. Then a knife in possession of the deceased accidentally injured him (the deceased). PW4 and his relatives restrained them. The Accused said he surrendered to the Police after the incident. 3. The Accused therefore denied injuring the deceased saying he was the one who was armed with a knife and started the fight. He claimed that he only acted in self defence. **Analysis and Determination** 1. I have perused the evidence proffered and the Parties’ submissions in relation to the charge facing the Accused.The sole issue for determination is whether the prosecution has proved beyond reasonable doubt that the accused murdered the deceased, actuated by malice aforethought. 2. There is no direct evidence linking the accused to the killing as none of the witnesses testified to seeing the accused commit the offence. Determination of the case therefore wholly depends on circumstantial evidence. In **Mwangi vs Republic (Criminal Appeal No. E054 of 2023) [2024] KEHC 3113 (KLR) 15 March 2023) (Judgment)** this court explained that for circumstantial evidence to be reliable it must be inconsistent with the accused person’s innocence. 3. In the case of **Ahamad Abolfathi & Another vs Republic (2018) eKLR** Counsel, it was elaborated that; **“circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence.”** 1. In a much older case **(Republic vs Taylor, Weaver & Donoram (1928) Cr. Application R 21)**, it was observed that; **“Circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable or proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that is circumstantial.”** 1. In the often quoted case of **Sawe vs. Republic (2003) KLR 364,** it was stated that circumstantial evidence must satisfy three tests, namely;- **“the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”** 1. In the case of **R vs Kipkering Arap Koskei (1949) EACA 135,** the prosecution must also show that there existed in-culpatory facts that were incompatible with the innocence of the accused and incapable of any explanation upon any other reasonable hypothesis other than that of guilt. 2. **Section 206 of the Penal Code** provides that malice aforethought is proven by one or more of the following circumstances;- 3. **Intention to cause death or do grievous harm whether the death actually occurs or not**. 4. **Knowledge that the act or omission causing death will probably cause the death or grievous harm to a person, whether the death is actually caused or not**. 5. **An intention to commit a felony**. 6. **An intention by an act or omission to facilitate flight or escape from custody of any person who attempts to commit a felony**. 7. The prosecution does not have to prove the motive for commission of any crime, and neither is the evidence of motive sufficient by itself to prove commission of a crime by a person who possesses the motive {(**see Case law in Robert Onchiri Ogeto vs Republic (2004) KLR (1a)}.** **Determination** 1. None of the prosecution witnesses actually saw the Accused stabbing the deceased and injuring him. PW4 said he heard the Accused crying out that he had been stabbed as he struggled with the deceased. PW1 related that when he intervened in the fight by holding the Accused, he saw him tucking a knife in his waist. Thereafter the witnesses found out that the deceased had been wounded. 2. If indeed the Accused was also stabbed during the fight, it is not explained why there is no evidence of his injury. Whereas the circumstances show that the deceased was the aggressor, the Accused exceeded his right of self defence by stabbing the deceased in the chest. It is not shown that the deceased was armed with a dangerous weapon as to pose danger to the Accused. Considering the object used and the part of the deceased's body that was injured, the Accused's intention was clearly to cause death. 27. In the premises, I find that circumstantial evidence herein irrestibly points to the Accused’s guilt He is convicted of the charge under **Section 215 of the Criminal Procedure Code.** **J.M.** **NANG’EA, JUDGE.** **Judgment, dated, signed and delivered virtually this 14th day of July, 2026.** **In the presence of:** Mr. Wakasyaka for the DPP. Ms Ochieng Advocate for Mr. Orenge Advocate for the Accused. Accused, present. Court Assistant (Jeniffer). **J. M. NANG’EA, JUDGE.**