https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13005

Republic v Njigwa (Criminal Case E012 of 2024) [2026] KEHC 13005 (KLR) (24 July 2026) (Ruling) Neutral citation: [2026] KEHC 13005 (KLR) Republic of Kenya In the High Court at Nyeri Criminal Case E012 of 2024 MA Odero, JA July 24, 2026 Between Republic Prosecutor and Cecilia Njeri Njigwa Accused Ruling 1.The Accused Cecilia Njeri Njigwafaces a charge of Murder Contrary To Section203 as read with Section 204 Of The Penal Code. The particulars of the charge were that“On the 1st day of October 2024 at around 1500 hrs at Thika Sub-Location, Muhito Location Mukurweini Sub-County, within Nyeri County murdered ALlan Ndonga” 2.The accused entered a plea of ‘Not Guilty’ to the charge and her trial commenced on 16th June 2023. The prosecution called a total of eleven (11) witnesses in support of their case. 3.Pw1 Kirigo Thanjutold the court that the accused was his sister-in-law being the wife of his brother. PW1 stated that on 1st October 2024 at about 3.00pm he saw a fire from the house of one Grace Watiri (the daughter of the accused). PW1 rushed to the scene and found there was a fire which consumed the house of Grace Watiri the accused’s house and a third house. He states that the accused who was standing outside the burning house asked him who had burnt the house. A crowd gathered and put out the fire. The body of the deceased a two (2) year old child was recovered from the house having been burnt beyond recognition. Police collected the body and took it to the mortuary. Following police investigations the accused was arrested and charged. 4.Pw2 Grace Watirithe mother of the deceased child. She told the court that the accused is her mother and grand-mother to the deceased. PW2 told the court that on 1st October 2024 she went to work at the home of one ‘Mama Wandia’. At 1.00pm she returned home and ate lunch with her child. At 2.00pm PW2 returned to work at the home of ‘Mama Wandia’ and left her son sleeping in her house. She states that she left the door open so that when the child awoke he could come outside. PW2 told the court that she would often leave her child sleeping in the house when she went to work as her mother and brothers house were adjacent to hers. 5.At around 3.00pm PW2 received a call from her sister informing her that her house was on fire. PW2 rushed home to find her house and her cousin’s house burning. She states that her son whom she had left sleeping inside the wooden house was burnt beyond recognition. 6.PW2 told the court that she was not in good terms with her mother (accused) and states that accused often told her to leave the homestead and to go and rent a house elsewhere. PW2 states that accused had previously threatened to kill her son. 7.PW3 Kevin Ngatiatold the court that he is a boda boda operator in Mukurweini. PW3 told the court that the accused is his aunt i.e his uncle’s wife. He stated that on 1st October 2024 while at work a neighbour phoned and told him that there was fire coming from his house. PW3 rushed home and found a crowd in the compound. He found his cousin Grace Watiri crying that her child was inside her burning house. The neighbours helped to put out the fire. PW3 stated that his house, the house of accused and the house of PW2 were all burnt down. That neighbours later assisted the three to rebuild their houses. Police later came to the scene and removed the body of the child which had been burnt beyond recognition. 8.PW4 Nancy Wambuitold the court that she was a neighbour to the accused. PW4 stated that on the material day she went to the home of accused to collect some money which she had loaned to accused. She found the accused at her kitchen and accused told her to return the next day for her money. PW4 then left and went back to her home. Later at 6.00pm PW4 was informed that the house of PW2 had burnt down. PW4 did not witness the fire and has no idea how it started. 9.PW5 and PW6 Francis Thanju, James Gitu Kanyogoare both in-laws of the accused. They told the court that on 3rd October 2024 they identified the body of the deceased child at Mukurweini Hospital for purposes of post-mortem. 10.PW7 Dr. Paul Kimathiis the Assistant director of medical services at Mukurweini County Hospital. PW7 told the court that he performed the autopsy on the body of the deceased child. He opined that the cause of death was ‘severe burns’. PW7 filed and signed the post-mortem report which he produced in court as an exhibit Pexb 1. 11.PW8 Alexander Mbae Mburiais an analyst attached to the Government Chemist Department. He produces the report dated 7th November 2024 relating to debris collected from the scene of the fire Pexb4. PW8 confirms that no accelerant was detected in the debris. 12.PW9 Sergeant Ali Bakariwas the investigating officer. 13.PW10 Dr Richard Mwendais a consultant psychiatrist who examined the accused and found that she was fit to plead. He produces the medical report as an exhibit Pexb 5. 14.PW11 Inspector Stephen Natembeyawas a police Officer who confirms that the scene was visited and photographs taken. However he explained to Court that the hard drive later mal-functioned and the photographs could not be retrieved. PW11 produced as an exhibit the expert report dated 25th April 2026 Pexb 6. The report indicates that no documents were recovered and no pictures were recovered. 15.At the close of the prosecution case the parties were invited to file submissions. The Prosecution relied upon their written submissions dated 13th May 2026. Counsel for the defence did not file any submissions. Analysis And Determination 16.The prosecution having closed their case it behoves this court to determine whether a prima facie case has been established such as would warrant calling upon the accused to defend himself, in line withSection 306 of the Criminal Procedure Code Cap 75 Laws of Kenya. 17.In the case of Republic -vs-Abdi Ibrahim Owl[2013] eKLR the Court defined what constitutes a ‘prima facie case’ in the following terms“Prima facie is a Latin word defined by Black’s Law Dictionary, 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. Prima facie is defined by the same dictionary as “The establishment of a legally required rebuttal presumption. To digest this further and in simple terms, it means the establishment of a legally required rebuttal presumption that an accused person is guilty of the offence he or she is charged with. [Own emphasis] 18.In simple and clear terms a prima facie case under Criminal Law means the establishment of a rebuttable presumption that an accused person is guilty of the offence with which he has been charged unless the contrary is proved. 19.It is important to note that the establishment of a prima facie case by the prosecution does not necessarily mean that the accused will ultimately be convicted. The finding merely implies that the prosecution has adduced sufficient evidence which if left uncontroverted could sustain a conviction. The final standard of guilt still remains proof beyond reasonable doubt, which can only be determined at the conclusion of the entire trial. 20.The accused herein faced a charge of murder. Section 203 of the Penal Code Cap 63 Laws of Kenya 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.” 21.Following from the above definition arise the following critical elements requiring proof by the prosecution(1)The fact and cause of death of the Deceased.(2)That the death of the Deceased was the direct result of an unlawful act or omission on the part of the Accused the ‘actus reus’ of the offence.(3)That said unlawful act or omission was committed with malice aforethought - the ‘mens rea’ of the offence. 22.The fact of death of the deceased is not in any dispute. PW1, PW2 and PW3 all state that they were present when the body of the Deceased was removed from the burnt house. PW5 James Kanyogo and PW6 Francis Thanju both told the court that they attended the Post-mortem examination at Mukurwe-ini Hospital. They both identified the body of the Deceased the doctor. All these witnesses who knew the deceased child well identified him as Allan Ndonga. 23.Similarly the cause of death of the deceased is not in any dispute. PW2 told the court that she had left her son sleeping in her house. The said house was completely destroyed by a fire. 24.PW7 DR. Paul Kimathi was a medical practitioner based at Mukurweini Hospital. PW7 told the court that he conducted the post-mortem examination on the body of the deceased. He stated that the body had been burnt beyond recognition. That all four (4) limbs had been amputed by burns and the internal organs were also burnt. PW7 opined that the cause of death was “severe burns”. He filled and signed the post-mortem report dated 3rd October 2024 Pexb 1 and issued a Death Certificate Serial Number 0400279. 25.The evidence adduced by PW7 was expert medical evidence which was neither challenged nor controverted by the defence. I find as a fact that the child died in the fire which consumed his mother’s house. 26.In order to establish a prima facie case the prosecution was required to adduce evidence sufficient to point exclusively at the accused herein as the person who started the fire which ultimately led to the death of the deceased. 27.It is not in dispute that the deceased child was the grandchild of the accused being the son to the accused’s daughter Grace Watiri. What possible reason would a grand-mother have to kill her own grandson. The child had certainly not wronged her in any way. 28.There was evidence from several witnesses that suspicion fell on the accused because she was known to have had a long-standing feud with her daughter (the childs mother). 29.PW1 who was an in-law to accused and PW3 a nephew of the accused all told the court that the accused and her daughter often quarreled. PW3 who was the accused’s daughter confirmed that she and her mother were on bad terms. PW2 told the court that she had been married but had returned to her father’s compound with her child when the marriage fell apart. That the accused often told her to leave the home and to go and rent a house elsewhere. PW3 admits that their relationship was so bad that she was at one time jailed for assaulting her mother. 30.PW9 who was the investigating officer also stated that he suspected the accused because he was informed that she had a bad relationship with the child’s mother. 31.The mere fact that the accused and her daughter had a stormy relationship does not amount to proof that she started the fire. All this amounts to is suspicion. It is trite law that suspicion alone no matter how strong can never amount to proof of guilt. In the case of Mary Wanjiku Gichira -vs- Republic Criminal Appeal No.17 of 1995 the court of appeal held that“Suspicion however strong cannot provide a basis for inferring guilt which must be proved by evidence.Before a court of law can convict an accused person of an offence, it ought to be satisfied that the evidence against him is overwhelming and points to his guilt.” 32.PW3 told the court that the accused often threatened her and that the accused also threatened that she would harm the child. However under cross-examination PW2 admits that she did not report these threats to any authority. Under cross-examination PW2 says“The accused used to threaten my life. I did not make any report.”It would appear that PW2 did not take the said threats seriously and that is why she took no action. PW2 claimed that the accused hated the deceased because the child was bore the name Allan Ndonga which was the name of a son of the accused who according to PW2 the accused had chased away from homestead. This convoluted reasoning was also repeated by the investigating officer who in his evidence stated that“The accused had a son called Ndonga whom she did not like and chased away from the home. The said Ndonga left the home and went to live elsewhere.” 33.Further in his evidence PW9 says“Accused transferred her hatred for her son to the minor who was also called Ndonga. Grace told me this.” 34.This is simply psychobabble. PW9 is not a psychologist and has no expertise in determining the feelings of the accuseds towards her son or the deceased child. The officer was merely relying on what PW2 told him. 35.Firstly there exists no evidence to show that the accused’s son ‘Ndonga’ did not leave the home voluntarily. The said ‘Ndonga’ was said to be working in Nairobi. It is a common practice for many young men to leave their village home and relocate to the cities to seek employment opportunities. There is not an iota of evidence to show that it was the accused who ‘chased’ her son away from home. 36.The said Ndonga was not called as a prosecution witness to clarify when, why and under what circumstances he left the family home. The investigating officer admitted that he did not bother to summon and/or interview the accuseds said son. In my view this is a ridiculous explanation as to why the accused would want to harm (kill) a little child). It is a mere allegation with no evidence to back said claims. 37.PW1 told the court that when he got to the scene he found the accused standing outside the burning house. PW1 emphasizes that the accused was not taking any action to put out the fire and was not calling for help, that she merely stood there asking who had burnt the house. This accusation is also repeated by the investigating officer who states that“When the fire broke out accused did not scream for help and she made no effort to put out the fire. She did nothing……….” 38.The fact that the accused took no steps to put out the fire was taken as evidence of her complicity in the arson. This is a misconceptionof the facts. The accused was an elderly frail woman. She basically shuffled around in court and even appeared hard of hearing. What would such an old frail woman be expected to do when faced with a fierce fire which as the court was informed consumed three (3) houses. Even the men who rushed to the scene were not able to approach the burning houses to put out the fire. Under cross-examination PW1 stated that“The fire was too fierce and we could not enter.” 39.The fact that the accused was helpless in the circumstances cannot be taken as evidence that she started that fire. The accused did not run away from the scene and by all accounts she participated in the burial of her grandson. The actions of the accused were not indicative of a guilty mind. 40.PW3 Kevin Ngatia who was a nephew of the accused told the court that he heard the accused say that she had poured petrol on a blanket and set the house on fire. Firstly such a statement if indeed made by the accused would amount to a ‘confession’. Article 50(2) of the Constitution of Kenya 2010 protects the rights of an accused person against self-incrimination. Such an admission (confession) would only be admissible as evidence against the accused if taken in line with section 25 A of the Evidence Act, Cap 80, Laws of Kenya. There is no evidence that the accused made such an admission/confession after being cautioned in line with Section 25 A. 41.Under cross-examination PW3 contradicted his own evidence by stating that:-“I do not know how he fire started. I did not see anyone light the fire.”PW3 further admits that he did not include in his written statement to police the fact that he had heard accused admit to setting the fire. It is obvious that PW3 is fabricating his evidence with a view to implicating the accused in this murder. I was able to observe the demeanour of PW3 as he testified in court. In my view he was not an honest witness." 42.Secondly according to PW1 the accused said she had poured petrol and set the house alight. It is pertinent to note that the fire in question consumed three (3) houses including the house of the accused herself and the house of PW1. What reason or motive would accused have to burn down her own house. 43.PW8 Alexander Mburua was analyst attached to the government chemist. He told the Court that on 11th October 2024 they received debris from the fire with a request to analyse said debris to ascertain the presence of fire accelerants. PW8 produced as an exhibit a report dated 7th November 2024 Pexb 4. The said report concludes that after analysis no flammable substances were detected in the debris.Petrol is a fire accelerant and if used would have been detected in the debris. Therefore the claim by PW1 that petrol was used to startthe fire falls flat on its face. 44.The prosecution have not tendered concrete evidence to demonstrate with any certainty how the fire started. In his evidence PW9 the investigating officer admits that“We did not establish the exact cause of the fire.”PW9 goes on to admit that“We did not find any jerrican containing kerosene at the scene……” 45.In absence of tangible evidence on how the fire started how then can it be concluded that it was the accused who started that fire? Under cross-examination PW2 says“I do not know what was used to start the fire in my house. It is the accused who set my house on fire. I did not see the accused setting the house on fire. Nobody told me that they saw accused setting my house on fire.” 46.It is obvious that due to her long-standing feud with the accused PW2 was determined to pin the blame for the fire on her mother even in the absence of any tangible evidence that accused started the fire. 47.As it is no witness saw the accused set fire to her daughters house. Nobody saw the accused purchase any fire accelerant and nobody saw the accused having in her possession any flammable substance. Nobody saw accused enter the house of her daughter on the material day. The investigating officer it seems was influenced by PW3 who has had long-standing problems with her mother to charge the accused. There is no evidence of any act done by the accused to set fire to the three (3) houses. There is no plausible motive why accused would want to kill her own grandson. The evidence adduced by the prosecution consists mainly of innuendo and suspicion. This is not sufficient to show ‘actus reus’ on the part of the accused. 48.To put the accused on her defence on the basis of the evidence on record would be tantamount to calling upon the accused to fill the gaps in the prosecution case. It has not been demonstrated how the fire was started - the accused was merely a convenient scapegoat. 49.Finally I find that the prosecution have failed to establish a prima facie case to warrant calling upon the accused to defend herself. I therefor acquit the accused of this charge of murder, under Section 306 (1) of the Criminal Procedure Code. The is to be set at liberty forthwith unless otherwise lawfully held. DATED IN NYERI THIS 24TH DAY OF JULY 2026.…………………….…..MAUREEN A. ODEROJUDGE