https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9348

Republic v Njoroge & another (Criminal Case 21 of 2020) [2026] KEHC 9348 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEHC 9348 (KLR) Republic of Kenya In the High Court at Kiambu Criminal Case 21 of 2020 FR Olel, J June 29, 2026 Between Republic Prosecutor and Joseph Kinuthia Njoroge 1st Accused Stephen Njoroge Ndungu 2nd Accused Judgment A. Introduction 1.The accused persons were 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 17th day of May 2020 at Kigutha farm, Rabai village of Kiambu East Sub County within Kiambu County, jointly with others not before court they murdered one MUHAMED NJOROGE NDUNGU. They denied the charge faced and pleaded not guilty. The case proceeded to full trial with the prosecution calling ten (10) witnesses in support of their case. (b) Prosecution Case 2.PW1 Stephen otundo Mukoko, confirmed that he was employed at Kigutha farm as a watchman and the deceased was his colleague at work. On 17.05.2020 at about 3.30pm, he was on patrol duties within the farm, when he met both accused persons, who were person’s well known to him and had interacted with them for a period of over 2 years. He found them carrying illegally harvested firewood and when he tried to snatch the panga, which the 1st accused person was carrying, he resisted and abused him that he was uncircumcised. 3.He eventually managed to take the said panga and the firewood by force and took them to the office. It was his further evidence that later on the same day at about 4.00pm, while he was with the deceased both accused persons came back to demand release of the confiscated panga but he refused to hand it over. During this confrontation both the accused persons were abusive and vowed to come back later. On the same evening at about 9.30pm he was told that the deceased, who had been on duty by the water pump had been assaulted and when he rushed to assist him, found that he had been severely cut on his head and legs, which were broken. He was rushed to Kiambu level 5 hospital and on the following day at about 10.00am, they received news that he had passed on. 4.Under cross examination PW1 clarified that he was going to meet his wife when he met both accused persons and rehashed his earlier evidence as to how he confiscated their panga and how he was abused by the 1st accused person. Later on the same night at about 9.30pm, an alarm was raised and they did find that the deceased had been attacked and had suffered severe panga cut injuries, but he personally did not see the persons who had assaulted the deceased. 5.PW2 Evaline Ambuvi Otundo confirmed that she was PW1’s wife and the deceased neighbour within the farm worker’s camp. On the material day it had rained and she had travelled from Rabai center and on arrived at the farm at about 2.00pm, decided to use a short cut since the main bridge was damaged. Further, since she had to pass through a forest, she called her husband (PW1) to come escort her since she felt it was not safe. Before she met PW1, she heard him quarrelling with the 1st accused person and knew his voice as they had interacted severally whenever he passed by the worker’s camp. 6.As she approached the scene, she saw PW1 carrying a panga and there was firewood on the ground. Other watchmen too, had joined in and though the 1st accused was out of sight, she clearly heard him shout that, he would come back for his panga and abused the watchmen that they were dogs and were uncircumcised (Kihe). Later at about 4,00pm both the accused persons did come back to the camp and continued to abuse her husband and his colleagues for about one hour. In the process, the 1st accused person did removed his shirt and stated that he had been cut on his back during the earlier melee and affirmed that he would come back later and go back with a person’s head. 7.Later that night, at about 9.00pm while preparing to sleep, she heard footsteps outside her door and again heard the 1st accused person, ask his colleagues, where they were going as they had reached PW1’s door. They proceeded to stone her door and window, while demanding for their panga, but one of their colleagues told them that they should stop disturbing her since the panga had been taken to the office. Before they left the 1st accused reiterated that he would harm her husband and his fellow colleagues (watchmen) and then heard their footsteps as they retreated towards the water tank, which was about 15m away from their house. 8.After a few minutes, an alarm was raised that the deceased had been found grievously injured, near the nursery school, which school was about 70m from her house, and was in the same direction that the accused persons and their friends took as they left her house. The deceased colleagues assisted in carrying him across the ridge and rushed him to hospital, but unfortunately, he lost the fight for his life the following morning. 9.Under cross examination, she confirmed that she had known the accused persons for about 2 years as they would pass by the farm for their own engagements and reiterated her earlier evidence as to how her husband and other watchmen engaged both the accused persons and took away their panga and the unlawfully harvested firewood. She further confirmed that she did not know who inflicted the fatal injuries upon the deceased nor did she hear anybody screaming for help on the material night. 10.PW3 Joseph Malanda Amaluka, testified that he too, was employed as a security guard at Kigutha farm and recalled that on the material day while on patrol with his colleagues (Tundu and Mohammed), they heard sounds of trees being cut and decided to go check on what was going on. Upon recaching the scene, they found both accused person’s cutting wood and demanded an explanation as to why they had trespassed into the said farm. They proceeded to confiscate the intruders panga and the illegally harvested firewood and took the said items to the farm office. 11.Later on, at about 2200hrs, while still at work he was called by the deceased, who told him that, “hawa vijana wamerudi”. He immediately called his manager and informed him of the prevailing situation and mobilized his colleagues to go assist the deceased, but unfortunately by the time they reached his station, they found that he had been grievously assaulted and had panga cuts on his head, arm’s and all over the body. They then immediately organized to have him rushed to hospital, where he unfortunately succumbed to the injuries suffered on the following morning. 12.PW3 further affirmed that both accused persons were well known to him, he knew where they resided and were persons who always walked through the farm but never worked therein. He was also certain of his evidence as the confrontation which occurred earlier that evening, had happened in broad day light and resulted in them detaining the accused persons panga and firewood. Under cross examination, he confirmed that he was with his colleagues Mohammed (the deceased), James Kuya, and Stephen Otundo, when they confronted the accused persons and did not see PW2 at the scene. He further rehashed his evidence as to how they had stopped the trespass and the incident that later occurred that night. 13.Further, under cross examination by counsel for the 2nd accused person, PW3 clarified that he had worked at the said farm for about 30 years and they had encountered persistent problems with their neighbours who persistently trespassed into the farm to illegally harvest firewood from their blue gum trees. When the deceased called him, he was at the farm gate, which was about 2km away, and after mobilizing his colleagues they had rushed to assist him but unfortunately found that he had already been harmed and was laying by the roadside near the water pump. He also clarified that when they had first intercepted the accused person’s, he was with the deceased and when he called to say that, “Hawa Vijana wamerudi tena”, the deceased meant that it was the accused persons and their friends who had come back. 14.PW4, Leah Wangare also confirmed that she worked at Kigutha farm and recalled that on the material day at about 1700hrs, she had gone to visit her father ( the deceased), who also worked therein, and while seated with him outside his house, she heard PW1 shouting at both accused persons, who were on the other side of the ridge and they were equally throwing back abuses and kept on demanding to be given back their panga. 15.Both accused crossed over the stream, while carrying a Slasher and “tarimbo” respectively, and menacingly advanced towards PW1, who remained adamant and maintained that the said panga, had been forwarded to the office and thus was not in his possession. At this point, the exchange did attract the attention of Susan Wamboi, who intervened and told both the accused to easy off, and they heeded to her demand and crossed back to their side of the ridge, but warned that they would be back. 16.Later on, the same night, at about 9.30pm to 10.00pm, she heard screams and together with other neighbours went to check on what was going on. She met PW1, who informed them that her father had suffered panga cut injuries. They rushed to assist take him to hospital, where he unfortunately passed on the following morning. PW4 further emphasized that she believed that both the accused persons were part of the group that attacked the deceased as Immediately after the incident had occurred a mob had gone to look for the 1st accused at his house and had found his wet cloths (trouser and Red T-shirt) outside his house. This signified that he had cross the stream back to their side of the ridge after the said incident and changed cloths. She also recalled those were the same cloths the 1st accused wore on the material evening, whilst exchanging harsh words with PW1 and other guards. The 2nd accused too had taken off and was not found on the said night. 17.She further observed that the accused persons used to walk with their dogs and that the deceased had suffered dog bites on his leg, which she believed were inflicted by the said dogs. Finally, she also stressed that she personally heard both the accused persons issue threats that evening, and had insisted that they would not let the issue lie and would be back, stressing that, “ tuta rudi, na mutajua sisi ni nani” three times. 18.Under cross examination she reiterated her earlier evidence and clarified that the deceased had been rushed to Kiambu level 5 hospital and on the following morning had been taken to St Elizabeth Hospital for CT-Scan, but unfortunately passed on before the said process could be undertaken. PW1, had raised an alarm that night and all neighbours had joined to assist the deceased and later searched for both accused persons, but found that they had taken off. The mob had also burnt down the 1st accused person house in rage, and the GSU police officers, who resided nearby came to check on what was going on. She confirmed that she did not see both accused attack her father, but strongly believed that they were involved for reasons already explained. 19.PW5 Susan Wangoi Nuibo recalled that on the material day, she was at home situated at the staff quarters, when PW1 came and told her that there were some people who had trespassed into the farm and were cutting trees. He gathered a few of his colleagues and they went to confront the said persons. After a while, they did come back and as they were explaining what had transpired, both accused persons crossed the stream and started to exchange harsh words with PW1. She intervened and directed the accused person to go back to their residence as the exchange was getting heated and was worried about the security of the children who were within the said vicinity. They did heed to her advice, but warned that they would come back for their panga. 20.At about 9.00pm, as promised, the accused persons and their friends came back and started to knock on PW1’s door, while demanding for their panga and used a stone to hit the said door. Her house was one door away and she confirmed that she clearly heard both accused persons talk, while demanding for the said panga. PW2 started to scream for help and after a while the 2nd accused directed the group to the office to go demand for the said panga. After they left neighbours came out and after a short while, word came in that Mr Mohammed had been grievously assaulted by the said gang, but she did not go to the scene of crime. 21.She reiterated that she knew both the accused persons very well as they were children, she had seen growing up within the said village. Under cross examination she affirmed her evidence in chief as to what had occurred during that evening and the fact the she clearly heard both accused persons talk outside Mr Stephen Otundo’s house on the material night, while demanding for the panga. It was also the 2nd accused who advised the team to leave for the main office. 22.PW6 Francis Thiongo Njoroge testified that he was the farm manager of Kigutha farm and on average had 80 workers but the number would increase depending on the volume of work. They also accommodated some workers within the said farm, the main camp was near the main office, while the 2nd camp was at the Coffee factory. 23.On the material evening, he was at home, when the security supervisor (PW3) and other workers knocked on his door and informed him of the attack that had occurred and the injury sustained by one of their guards. He tried to organize for means to rush him to hospital, but it had rained and getting access to where the guard had been injured was difficult. The incident had also occurred during Covid 19 period and by the time he got means, the family had already organized for alternative means to rush the injured guard to hospital. The following day he went to see the said guard at Kiambu level 5 hospital and was present when he took his last breath. 24.Under cross examination, he confirmed that he did not know both the accused person, and reaffirmed that the panga confiscated, on the material afternoon was the one before court. 25.PW7 Cpl John Munga stated that on 09.08.2021, he was on patrol with his colleagues Constable Martin Mwangi and Constable Julius Mwangi within Gatina village and found a group of boys standing together, which was in breach of Covid protocol. The said boys started to run away, but they managed to arrest the 2nd accused and took him to Rabai police station and booked him under OB:10/9/8/2021. He did not investigate the murder case, but after the coincidental arrest of the said accused person for breaking Covid protocols, he was subsequently linked to the murder and was rearrested by the concern officers. 26.PW8 Dr Eunice Mugwero, confirmed that on 22.05.2020 at Kiambu level 5 hospital mortuary, she did perform a post mortem examination on the deceased body and observed that he suffered five (5) cut wounds injuries on his head of various dimensions/depth. The longest cut was 6cm long and 4cm wide on the left side of the skull. 2 cuts were 10cm and 6cm wide respectively and on the back of the head (Occipital region) the deceased had suffered a cut that was 8cm long. The said panga cuts were deep and had penetrated the deceased skull and fractured the base of his skull. 27.Further, the deceased had suffered a fracture on the left upper limb and also had a fracture of the tibia and fibula bones of the right leg. The other body systems were essentially normal and as a result, she concluded that the deceased had died due to severe head injuries, leading to internal brain injury cause by assault. She produced the post mortem report as Exhibit 3. 28.PW9 Cpl George Muchai stated that in May 2020 he was the OCS at Mukunyi police post, under Rabai police station and several robbery incidences and instances of illegal harvesting of firewood, which occurred at Kigutha coffee farm, were reported at their police post. As a result, it was common to find disputes between the guards and the villagers, who then, because of the frequent interaction became known to each other. At their post, Joseph Kinuthia Njoroge- Alias Rasta, Peter Mwea and Stephen Kimani Wanjiru Alias Ndunda were some of the suspects that had been reported to them as having carried out these illegal activities. 29.On the material day, it was reported that the guards had confronted the said men while illegally harvesting firewood and proceeded to confiscate their panga and the said firewood. This had enraged the accused persons and later on the same night, whilst accompanied by 6 other men, they returned to the coffee estate and went the house of PW1. As a result, PW2 had screamed for help, and on being outnumbered by her neighbours, the assailants ran away and met the deceased who was responding to the distress call and it was at the said moment that they had attacked him with crude weapons and left him for dead. The said guard was rushed to hospital, but he unfortunately succumbed to the fatal injuries sustained on the following morning. 30.On 27.05.2020, while acting on intelligence reports they received information that the 1st accused was hiding at Ruaka-Kanyangu village and they organized for his arrest. Under cross examination, he confirmed that after the incident was reported, he did visit the scene of crime and found that the deceased had been rushed to hospital, but they did recover the panga and firewood which the guards and earlier confiscated during the day. He also had not witnessed the incident occur, but relied on verified information of witnesses, who were present to arrive at the conclusion that both the accused persons were involved in the said crime. 31.PW10 Cpl Peter Kilgawi of DCI-Kiambu, recalled that on 18.05.2020, he got instructions to investigate a murder incident which had occurred within Kigutha coffee farm. He proceeded to the said farm, where he talked to the farm manager (PW6) who narrated to him the events of the previous day, that finally lead to the murder of the deceased. After the incident both the accused persons and their friends went underground, and they managed to track and arrest the 1st accused person on 27.05.2020, while the 2nd accused person was arrested in August 2021 for violating covid protocol and they rearrested him based on the earlier murder complaint which was pending. 32.Under cross examination, he confirmed that he did not arrest both accused persons, but charged them based on the verified information received during investigations, that they lead the group that attacked the deceased. During the earlier confrontation, they had also told PW2 and her husband, that they would come back for the confiscated panga and indeed did so and went directly to PW2 house to demand for the same, but she raised alarm and they ran away. Further, while there was no eye witness to the incident, the circumstantial evidence directly implicated both the accused person to the murder incident and that is why they were charged with the offence before court. 33.The prosecution closed their case at this point, and the accused was placed on his defence and opted to given sworn evidence. (c) Defence Case 34.The 1st accused gave unsworn evidence and confirmed that he was a resident of Rabai village and was a tailor by proffession. As regard’s the incident in question, he stated that on 17.05.2020 during the day, he left home at 6.30am for Mboi Kamiti but later at about 10.00am, he went to fetch firewood for his grandmother. Enroute back, he passed through Kigutha farm, while carrying the said firewood, where he met PW1, who demanded to know the source of the said firewood and before he could explain himself, PW1 proceeded to beat him up until he fell down. As a result, he left the said firewood with PW1, but picked his panga and walked away. 35.PW1 followed him to the boundary between their village and the farm, which boundary was a stream and told him that he would ensure that he does not stay within the said area. They proceeded to exchange harsh words after which they each went their separate ways and he did not follow up on the matter. He also affirmed that the panga produced before the court was not his panga and insisted that he was not part of the gang that attacked the deceased. 36.The 2nd accused, gave sworn evidence and confirmed that on 09.08.2021, he was arrested for breaking covid protocol, (failing to put on a mask) and was taken to court. Later while still being held at the police station, he was re-arrested and was informed that he was involved in a pending murder case, which allegation he denied. He stated that he did not know the 1st accused and/or the deceased and had been wrongly included in the said case. Further, none of the prosecution witnesses had also placed him at the murder scene nor did he have any motive to harm the said deceased. He thus urged the court to acquit him of the charge faced. 37.Under cross examination he confirmed that he knew where Kigutha farm was situated but insisted that it was far from where his home was. He further confirmed that his home and the said farm where on opposite ridges/hills and that one had to cross the stream to go to the said farm or pay boda boda Kshs 100/= to go round through the road. He reiterated that he had been wrongly charged with the offence before court and pleaded with the court to discharge him. (d) Determination 38.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 both accused person herein murdered Muhamed Njoroge Ndungu, the deceased herein. 39.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.” 40.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.” 41.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. 42.In Mombasa High Court Case Number 42 of 2009 between Republic vs. Daniel Musyoka Muasya, Paul Mutua Musya, and Walter Otieno Ojwang, the court expressed itself as hereunder:“The prosecution, therefore, is required to tender sufficient proof of the following three crucial ingredients in order to establish a charge of murder:a.Proof of the fact as well as the cause of the death of the deceased persons.b)Proof that the death of the deceased resulted from an unlawful act or omission on the part of the accused persons.c)Proof that such unlawful act or omission was committed with malice aforethought.” 43.I will now proceed to interrogate each issue. i. The death of the deceased and its cause. 44.It is common ground that MUHAMED NJOROGE NDUNGU died on 17.05.2020 and this was confirmed by all the prosecution witnesses. Dr. Eunice Mugweru (PW8),the pathologist who conducted the postmortem examination on the deceased body on 22.05.2020, confirmed that the deceased suffered five (5) deep panga cut wounds injuries on his head of various dimensions/depth. The longest cut was 6cm long and 4cm wide on the left side of the skull. 2 cuts were 10cm and 6cm wide respectively and on the back of the head (Occipital region) the deceased had suffered a cut that was 8cm long. The said panga cuts were deep and had penetrated the deceased skull and fractured the base of his skull. 45.Further, the deceased also suffered a fracture on the left upper limb and also had a fracture of the tibia and fibula bones of the right leg. The other body systems were essentially normal and as a result, she concluded that the deceased had died due to severe head injuries, leading to internal brain injury cause by assault. She produced the post mortem report as Exhibit 3. 46.This court therefore finds as a fact that the deceased died as a result of the said extensive injuries as enumerated above. ii. Whether it has been proved that the accused committed the unlawful act which caused the death of the deceased: 47.PW1 to PW5 explained at length the confrontation that occurred at Kugutha farm on the material day between the farm guards and both the accused person, resulting to detention of the 1st accused panga and confiscation of the illegally harvested firewood, which were all taken to the farm office. Later at about 5.00pm both accused persons again crossed into the farm and engaged PW1 and other farm watchmen in heated exchanges and abuses, and at some point, it forced PW5 to intervene and demand that the accused return back to their village but as the left they warned that they would be back to get their panga at all costs. 48.In particular PW3, who had come to visit her father, the deceased stressed that, she personally heard both the accused persons issue threats that evening as they confronted PW1, and as they left after being requested by PW5, they warned that they would not let the issue lie and would be back, stressing that, “ tuta rudi, na mutajua sisi ni nani” three times. 49.According to PW2, later that night at about 9.00pm, the accused persons and their friends came to her house and started to throw stones on her door and windows as they demanded that they be given the confiscated panga. Though she did not open her door, she clearly heard both accused persons speak and confirmed that they were persons she knew very well, through daily interaction and therefore was certain about their presence at her door. She was certain, that it was the 1st accused person who told the group that they had reached PW1’s door and as they banged her door and window, the 2nd accused told her to throw out the panga, so that they could leave. As they left, the 1st accused promised that they would still come back and the group walked away towards the water tank/nursery school, where the deceased was stationed and was attacked by the said gang. PW1, PW3, PW4 and PW5 also confirmed the night attack and actions taken to rush the deceased to hospital, where he unfortunately succumbed to his injuries on the following day. 50After the said incident members of the public went to hunt down the accused persons, and found that they had run away from their houses. PW4 confirmed that outside the 1st accused house they found his red Tshirt and trousers, which was wet, and that signified that he had crossed the stream at night, when the water tides were high and also noted that he father suffered dog bites on his legs, which she suspected was inflicted by the accused persons dogs, which they always walked with. 51.In defence, the 1st accused person admitted to the confrontation that occurred at Kigutha farm that afternoon and the exchange of harsh words in the evening, but denied coming back to the said farm at night to confront PW1 and/or the deceased. He also denied that the panga produced in court was his and clarified that his had a different handle. The 2nd accused person on his part confirmed that he was arrested on 09.08.2021 for breaking covid protocols and later was rearrested after being linked to the murder. He stated that he did not know PW1 and/or the deceased, did not carry any grudge against them and certainly was not part of the gang that attacked the deceased. 52.From the evidence adduced, none of the prosecution witnesses saw the accused persons inflict harm upon the deceased but the circumstantial evidence gathered laid a strong basis to support an inference of their involvement in the said crime. The law is that where circumstantial evidence meets the legal threshold, it may well be a basis for finding the accused person culpable of the offence charged. 53.In Neema Mwandoro Ndurya v. R [2008] eKLR, the Court of Appeal cited with approval the case of R vs. Taylor Weaver and Donovan (1928) 21 Cr. App. R 20 where the court stated that:“Circumstantial evidence is often said to be the best evidence. It is the evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.” 54.The threshold to be established if a conviction is to be based on circumstantial evidence was also discussed In Sawe –vs- Rep [2003] KLR 364, where the Court of Appeal held.“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt; Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on; The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.” 55.Also in Ahamad Abolfathi Mohammed and Another v Republic [2018] e KLR, the same court further stated as follows, where reliance was placed on circumstantial evidence:“However, it is a truism that the guilt of an accused person can be proved by either direct or circumstantial evidence. 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. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -“It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.” 56.In summation, of the aforestated case law, it is thus required that before any conviction based on circumstantial evidence is reached, the said evidence adduced must be adequate to prove the case to the required standard of beyond reasonable doubt. In that regard, the court will admit circumstantial evidence if it meets the following criteria;a)Evidence that is logically connected to the case.b)The evidence must prove or disapprove a fact relevant to the case.c)The evidence should be reliable, and trustworthy with minimal chance of falsehood.d)Its potential to influence a decision should not outweigh the probative value.e)The evidence should not be hearsay. 57.Accordingly, it would be safe to conclude that circumstantial evidence may include;a)Physical evidence, such as fingerprints or DNA, that connects the accused to the crime or scene of crime.b)Documentary evidence, for example, documentary records and text messages that support inference of guilt.c)Behavioral evidence includes the accused's actions that point to his guilt or involvement in the crime. Examples include running away after the offence is committed or attempting to destroy incriminating evidence. 58.The evidence of PW1 to PW5 succinctly laid out the accused person actions from the afternoon of 17.05.2020 until about 9.00pm, when they came back to demand for the confiscated panga at PW1 house. The said witnesses were present in the evening when vitriolic words were exchanged between the farm watchmen and the accused persons and as the accused persons left, they gave clear warning that they would be back, and that the watchmen would suffer their wrath. When the came back, they went directly to PW1 house and fortunately he was way on duty, but PW2 (his wife) who also knew both accused persons clearly heard their voices as they demanded for the said panga and hit her door and widows with stones. As they left the 1st accused remarked that they wanted five heads, including that of the deceased as the group walked away towards the water tank/nursery. 59When the deceased saw, the group of robbers, he managed to call PW3, who was their supervisor and he told him that, “hawa vijana wamerudi”. PW3 scrambled to get help and rushed to the deceased duty station, where they unfortunately found that he had been viciously attacked and left for dead. It is obvious the deceased was referring to the accused persons, as he was part of the team that intercepted them earlier in the afternoon. 60.PW4 also confirmed that after her father was rushed to hospital, the mob went searching for both accused persons and found that they had taken off. In particular they found the 1st accused wet trouser and red Tshirt outside his house, and stated that this corroborated their suspicion that they he had crossed the stream at night, when the tides were high, which explained his wet cloths. In anger, the mob burnt down his house on the said night. 61.After the vicious attack on the deceased, the 1st accused person ran away from Rabai village and was later on arrested on 27.05.2020 at Ruaka Karura Kanyungu village, where he was hiding, while the 2nd accused was arrested, after one year on 09.08.2021 at Gatina village, for breaking covid protocol and upon his finger prints being placed on the database, it was discovered that he was wanted for his involvement in this murder. This action of running away also corroborates their guilt and established that fact that the guilty are afraid. 62.When the prosecution evidence is considered in its totality, it leaves no shred of a doubt that both accused person were directly involved in the vicious assault on the persons of the deceased and their action of running away after the said incident, corroborated their guilt as the offenders thereof. In short without doubt, the inculpatory facts established herein are incompatible with the innocence of both the accused and incapable of any other reasonable explanation, or reasonable hypotheses, other than that of their guilt. iii. Malice Aforethought 63.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.” 64.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. 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.” 65.The accused persons inflicted five (5) deep panga cut wounds on the deceased head resulting to him fracturing the base of the skull, deep cut wounds on the upper limbs and right leg, which fractured the fibula and tibia bones. The accused person had the whole day to rethink their actions and retreat, but instead sought to exact revenge in the most savage and inhuman manner. They definitely knew or ought to have known that the same would be fatal. 66.From the above analysis of the injuries inflicted, it is clear that the accused did not have any other intention other than to inflict grievous harm upon the deceased. It is my finding that the accused person knew or ought to have known that their action would result in death, and it can be safely inferred from the nature of injury inflicted on the deceased that the accused person's action was premeditated. 67.In the circumstances I am persuaded beyond reasonable doubt that the prosecution has proved their case and specifically the presence of malice aforethought on the part of the accused too has been proved. G. Disposition 68.Accordingly, it is my finding and holding that the prosecution has proved all the ingredients of the Information of murder against the subject herein, JOSEPH KINUTHIA NJOROGE & STEPHEN KIMANI WANJIRU beyond reasonable doubt and convicted them accordingly under section 215 of the Criminal Procedure Code. 69.Sentencing will await the filing of a pre-sentence report by the probation and aftercare services department, within the next 21 days. 70.It is so Ordered. JUDGMENT, SIGNED AT KIAMBU THIS 29TH DAY OF JUNE 2026.FRANCIS RAYOLA OLELJUDGE Judgment read and delivered in open court on this 29th day of JUNE 2026.In the presence of:-……………………………………..Accused………………………………….For O.D.P.P………………………………….Court Assistant