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Republic v Njoroge & another (Criminal Case E046 of 2023) [2026] KEHC 9915 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9915 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Case E046 of 2023 JM Nang'ea, J July 2, 2026 Between Republic Prosecution and Geoffrey Ndung’u Njoroge 1st Accused Daniel Mbugua Njoroge 2nd Accused Judgment 1.The Accused persons were on 30th November 2023 arraigned in this court on information of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence state that on the 7th November 2023 at Maili Tatu sub location, Njoro Sub County, within Nakuru County they jointly murdered Richard Ekori Ikello (hereinafter referred to as “the deceased’’). They entered “not guilty’’ pleas. Prosecution Evidence 2.Part of the prosecution evidence was recorded before brother Justice H.M Nyaga who has since transferred to another work station. This court took over the case on 15th October 2024 and directed that hearing would continue from the point the previous court left off. 3.PW1 was a shopkeeper at Maili Tatu, Njoro. On 7/11/2023 at around 6.00 am she heard shouts of "Mwizi!" , as she prepared to go to hospital. She got out of her house and went to the home of a boda boda operator called Kevo who she had asked to transport her to hospital. While there and as she spoke with the said Kevo, she saw a man being "frog-marched" out of a bathroom nearby. The two accused persons herein who she knew, together with 2 others were beating up the man, her customer, accusing him of being a thief. The 1st and 2nd Accused persons were said to have been armed with a slasher and a club respectively with which they beat the deceased on the head several times. PW1 identified the slasher and club in court. Later on her way to hospital, PW1 called the area Village elder and gave her the information about the incident. 4.PW1 further testified that she had known the Accused persons for about 10 years as residents of her area. She did not, however, know them by name. The two lived around 2 kilometers away from her, adds the witness. According to PW1, the weather at the time was clear. Although it had rained, it was not dark and she could see the assailants well. 5.PW2 is the Village elder referred to by PW1. Saying that she is also a Pastor, the witness confirmed PW1's call reporting the assault incident. PW1 gave her directions to the scene and she rushed there to rescue the victim. When she arrived at the home of one Daniel she pointed at in court as the 2nd Accused, she found the latter, his three brothers, their sister and mother beating up the victim accusing him of scaling and jumping over their fence and stealing. The male assailants were armed with a “Maasai rungu’’ fitted with a metal head. Despite the witness pleading with them to stop the beating, the assailants could hear none of it. The victim bled and became very weak. PW2 then called the Police who arrived and arrested the four attackers. Later on 10/11/2023, PW2 learnt from some relatives of the victim that he had succumbed to the injuries. 6.PW2 continued to testify that she knew the Accused persons very well and that the 2nd Accused is her neighbour. She had no grudge with them. According to the witness, only the Accused persons and their relatives assaulted the deceased. She did not find a crowd or mob at the scene. 7.PW5 stated that she was one of the police officers based at Njoro Police Station that were sent to the scene of the reported assault. Directed by PW2, they arrived at Maili Tatu area and found 3 male youth armed with a club and slasher beating up another who was seriously injured. The attackers claimed that victim stole their maize. The officers decided not to arrest the assailants immediately and instead ferried the victim to hospital where he later died of the injuries. 8.On 12/11/2023, PW5 continued, they arrested the 2nd Accused in his house, near the scene of the crime. Other unidentified officers arrested the 1st Accused. 9.According to PW5, the accused persons were assaulting the deceased inside their home compound. Other area residents stood at a distance outside the compound. The accused persons' mother was present but did not take part in the attack, according to the witness. 10.PW3 and PW4 were the case Investigating officers. PW3 stated that he was also among the officers who went to the scene of the reported attack. They found a club and slasher identified as the assault objects in the house of the 1st Accused. An inventory of the recovery was prepared and signed by the officers and the suspect. The witness told the court that PW2 who made the report of the incident to them did not name the assailants. 11.PW4 confirmed PW3's evidence, adding that the two accused persons were separately arrested on 12/11/2023 based on information provided by witnesses. The officers tendered in evidence the collected club and slasher as well as the inventory prepared during investigations. PW4 further told the court that he prepared sketch plans of the scene showing how the deceased was dragged for about 1/2 kilometer from his home up to the suspected assailants' home. Investigations did not establish the motive for the attack but the suspects allegedly claimed in their statements to the police that the deceased had attempted to steal from them. 12.Dr. Titus Ngulungu (PW6) conducted post-mortem examination of the deceased's body on 21/11/2023 at Nakuru County Teaching & Referral Hospital. The body showed signs of loss of oxygen and brain damage. Lacerations were visible on the forehead. The lungs collapsed showing difficulty in breathing. The limbs and the lower back bore signs of beating. Loss of blood resulted from the injuries opined to have been caused by a blunt object. 13.PW6 explained the cause of death as lung failure as a result of blockage of vessels thereby affecting oxygen circulation in the body. The cause is more technically stated in the autopsy report as "pulmonary fat/thrombo-emboli following extensive fat / muscular trauma due to multiple blunt bodily trauma in keeping with fatal assault". The autopsy report dated 12/11/203 was produced in evidence. 14.The accused persons were put on their defence following close of the prosecution evidence and both gave sworn evidence. The 1st Accused told the court that on 7/11/2023, he was asleep at his home when at around 5:00 am he heard screams outside. The screams could later be heard closer at his gate. He could not get out as he discovered that his door had been locked from outside. When the door was later unlocked, the 1st Accused further states, he got outside and found a mob beating up a male youth. Since it was still dark, he could not identify those among the mob. The 1st Accused's mother is said to have also gotten out of her house and informed him that the assault victim had stolen her maize which she showed to him, contained in 2 bags. 15.According to the 1st Accused, they made a report to the area chief. The area Village elder (PW2) arrived at the scene as did the 1st Accused and the 2nd Accused. The crowd was still beating up the victim. At about 7:00 am, Police officers are said to have also gone to the scene and interviewed the victim. The officers allegedly threatened to shoot him if he did not speak up. The victim and alleged suspect was thereafter ordered to load the maize into the Police vehicle after which the police drove away with the victim as well. Then on 11/11/2023 Police officers returned to the 1st Accused person's home escorting the 2nd Accused and he was also arrested. 16.The 1st Accused denies taking part in the assault of deceased. He added that his other brothers were never at the scene and that PW2 falsely implicated them. 17.The 2nd Accused supported his co-accused evidence. He testified that on 7/11/2023 at around 6:00 am the 1st Accused who is his brother, rang him up and asked him to go to his home because there was a theft incident. He did go to his brother's home where he found a mob beating the deceased. The 2nd Accused then appeared to clarify that he arrived at his brother's home only to learn that a mob that had allegedly assaulted the deceased had dispersed. The deceased was there crying in pain. 18.The 2nd Accused also denied complicity in the assault and consequent demise of the deceased. Analysis and Determination 9.Only the prosecution Counsel (Mr Wakasyaka) seem to have filed final submissions. He submits that the accused caused the death with malice aforethought. The court is told that in homicide cases, death is presumed to have been unlawfully caused unless it is otherwise accidentally caused in circumstances that make it excusable. In support of this proposition, Counsel referred the court to two Ugandan cases to wit; Uganda vs Lydia Draru Alias Atim HCT-00-CR-SC-0404 High Court of the Republic of Uganda and Akol Patrick & Others vs Uganda (2006) HCB (Vol. 1) 06. The Court of Appeal for East Africa in R vs Gusambiza s/o Wesonga 1948 15 EACA 65 is also said to have underscored the legal position. According to the Prosecution Counsel, the evidence adduced proves that the deceased’s fatal injuries were deliberately inflicted with intention to kill. It is submitted that on the evidence the Accused persons were culpable. 10.I have considered the submissions against the evidence adduced. Where the accused person is placed at the scene of crime he is duty bound to explain how the deceased met his death (see the judicial decision in R vs F.O.O {2021} eKLR). 11.In Republic vs Gideon Wambua Kioko & 2 Others (2019) eKLR three essential elements of the offence of murder were listed as hereunder;i.The death and cause of death of the deceased.ii.That the accused caused the death through an unlawful act or omission.iii.The accused possessed the intention to cause harm, or kill, or malice aforethought. 9.The sole issue for determination is whether the prosecution has proved beyond reasonable doubt that the accused murdered the deceased, actuated by malice aforethought. Section 206 of the Penal Code provides that malice aforethought is proven by one or more of the following circumstances;-a.Intention to cause death or do grievous harm whether the death actually occurs or not.b.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.c.An intention to commit a felony.d.An intention by an act or omission to facilitate flight or escape from custody of any person who attempts to commit a felony. 9.In Republic vs Juma Kituko Mwambegu (2020) eKLR it was observed thus in relation to cases of murder;“In determining existence or non-existence of malice one has to look at the facts proving the weapon used, the manner in which it is used and the part of the body injured’’. 9.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 9.PW1's evidence on the accused's culpability as corroborated by PW2 which has not been discredited. There is nothing that the two witnesses bore any ill will towards the accused persons. By occasioning the deceased multiple blunt bodily trauma on the head using a blunt object as opined in the autopsy report, the intention was to kill him. The attack was not lawfully justified even if the deceased was stealing. The deceased had already been subdued and there is no evidence that he posed any danger. The accused persons were obligated to report the alleged theft to the police instead of employing extra-judicial means of redress. I find that the accused persons murdered the deceased as charged, and reject their defence. 10.In the premises, I find that the prosecution proved the charge beyond reasonable doubt. Both accused persons are accordingly convicted thereof pursuant to the provisions of section 215 of the Criminal Procedure Code. JUDGEMENT DELIVERED THIS 2ND DAY OF JULY, 2026J. M. NANG’EA, JUDGE.In the presence of:Mr Wakasyaka for the Director of Public Prosecutions.Mr. Maina Advocate for Mr Ouma Advocate the Accused.Court Assistant (Jeniffer).