https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10647

Republic v Njoroge & another (Criminal Case 25 of 2019) [2026] KEHC 10647 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 10647 (KLR) Republic of Kenya In the High Court at Kerugoya Criminal Case 25 of 2019 EM Muriithi, J May 14, 2026 Between Republic Prosecutor and Ernest Kamau Njoroge Accused and Johana Muraguri Njoroge Applicant Ruling Introduction 1.This is a ruling on an application by Notice of Motion dated 2/3/2026 filed by Counsel for the family of the victim in this murder trial and expressed to be brought pursuant to Section 4(2) (b), 9, 16, 19, 20 of the Victim Protection Act, Cap.79A Laws of Kenya; Section 14 of the Office of the Director of Public Prosecutions Act Cap. 6B and Articles 35 (1) (a) (b). 157(11) and 159 of the Constitution, for specific reliefs as follows:“Orders:- 1.That the Honourable Court be pleased to allow the Victims to call independent expert witnesses to produce evidence and for cross-examination during the hearing of this case. 2.That the Victims be provided with all the evidence that the Prosecution intends to rely on including the scene of crime photos and inventory. 3.That the Honourable Court be pleased to direct the Prosecution to supply the victim with the inventory of items recovered at the deceased's residence. 4.That the deceased's cell phone and academic certificates and any other item recovered from his house be returned to the victim. 5.That this case be heard expeditiously and on priority basis and all prosecution witnesses to be bonded to attend Court without fail. 6.That a new Prosecution Counsel be appointed to prosecute the case. 7.That costs be in the cause.” 2.The Notice of Motion was based on grounds set out in the application:“The grounds:-i.This is an old matter that involves criminal homicide in which the Victim/Applicant's son died under unclear circumstances and thus the need for thorough investigations and serious prosecution.ii.That some of the key prosecution's evidence has not been availed to the victim or its officer such as the scene of accident photos, inventories of both the scene of crime and the deceased's residence which are crucial to the prosecution of this case.iii.That failure to avail such evidence will lead to mistrial and eventual denial of justice to the deceased and his family, the victims.iv:That these evidence is key in the prosecution of the murder charges against the accused and if the same is not availed the case will be weakened thus denying justice to the State and the Victim.v.Some of the exhibits such as the deceased's mobile phone and academic certificates have never been given to the family yet investigations were concluded long time ago. The said mobile phone which was in the custody of the Police was used to illegally transfer the deceased's motor vehicle registration No. KCF 802A-Nissan.vi.No report have ever been supplied regarding the said cell phone and it is said investigations were concluded,vii.The victim's family feels that the prosecution Counsel prosecuting this case is not doing enough to ensure a watertight and expeditious disposal of this case and justice is not being seen to be done.viii.That the proposal for plea bargaining with a view to conceding that the victim committed suicide is not acceptable to the victim as it previously failed and as such the victims wishes to have the Prosecution to just do its work.ix.That the prosecution Counsel has on some occasions intimated to the victims that some of the witnesses may not be available which raises concerns of compromise and weakening of the prosecution's case.x.The victim urges the Honourable Court to intervene and urge the Prosecution to supply the victim and its officer with the inventory of items recovered at the deceased's residence as well as on the scene of crime.xi.That the deceased's mobile phone and certificates and any other items recovered from his house should be returned to the victims.xii.That if the foregoing issues are not addressed, the entire proceedings herein will be a mistrial and the deceased and the victims may never get justice or closure on the fate of their kin.xiii.It is in the interest of justice that the application herein be heard without any delay and orders granted.xiv.It is in the interest of justice that this application be allowed as prayed for.xv.The accused and the Prosecution will suffer no prejudice.” 3.The application was supported by a Supporting Affidavit of the applicant sworn on 2/3/2026 as follows:“Supporting AffidavitI, Johana Muraguri Njoroge of Post Office Box Number 5 Kabazi in the Republic of Kenya, do hereby make oath and state as follows:- 1.That I am an adult male of sound mind and disposition well versed with all of the facts in this case hence competent to make and swear this affidavit; 2.That I am the father of the deceased, George Njoroge Muraguri, and a victim under Section 2 (1) of the Victim Protection Act, Cap 79A Laws of Kenya. 3.That my dear son died painfully under unclear circumstances and this should not be taken lightly or carelessly and justice should not only be done but be seen to be done. 4.That, together with my family were not satisfied with the manner the investigations were done and on 20.01.2020 we wrote to the Director of Criminal Investigation for intervention. (Annexed and marked JMN-l is a copy of the said letter). 5.That again we wrote a letter dated 06.03.2020 to the Independent Policing Oversight Authority seeking for intervention. (Annexed and marked JMN-2 is copy of the said letter). 6.That the crime was committed in the year 2019 but the prosecution has dragged its feet in prosecuting this case and there are numerous glaring lapses that despite our efforts to address them to the prosecution they have not been acted upon casting doubt on possibilities of compromise, cover up or laxity. 7.That I do acknowledge that it is the sole duty of the Prosecution to prosecute the case herein and I am in no way seeking to advance a parallel prosecution but, rather, I feel that as a victim I have been left in the darkness and that I have not been accorded my rights contrary to the express provisions of the Victim Protection Act, Cap 79A Laws of Kenya. 8.That the death of my dear son should not be taken lightly or carelessly and our rights to information and fair hearing under the Constitution and the Victim Protection Act, Cap. 79A Laws of Kenya should be facilitated and this Honourable Court should intervene. 9.That the loss of my son left a devastating impact on my life and my family and I am afraid that if certain issues are not addresses on the manner [in] which the prosecution of this case is being conducted, the deceased, myself and the family may never get justice. 10.That I pray that this Honourable Court allows me to call expert witness, & in support of the prosecution's case, who will produce documents and be cross-examined. In this case I intend to call an independent pathologist. 11.That due to poor investigations and contradictory reports in the ; postmortem and the government chemist, we sought for an independent expert and consultant pathologist who prepared autopsy report which we urge that it be admitted as part of the prosecution's evidence with the rights of cross-examination to the defence. (Annexed and marked JMN·3 is a copy of the Report by Independent consultant Pathologist) 12.That as a victim I have never been given the cell phone Make Tecno Camon of my late son, now seven years and counting. (Annexed and marked JMN·4 is a copy of the Investigation Diary showing that the phone was recovered). 13.That to make matters worse the said mobile phone was used to commit a crime of fraudulent transfer of my son's motor vehicle KCF 802A-Nissan to a third party. This points that there are other persons who should have not been arrested and charged alongside the accused herein. 14.That on 04.12.2019 we had written to the NTSA requesting that a caution be registered to protect [any] fraudulent transfer of my late son's motor vehicle KCF802A-Nissan.(Annexed and marked JMN-5is a copy of the Letter dated 04.12.2019). 15.That to our dismay, upon conducting a search in year 2016 we noted that it had been illegally and fraudulently transferred to one Kelvin Muriu Waruguru. (Annexed and marked JMN-6 is a copy of search results). 16.That the transactions were done in my late sons NTSA account and this may inform why the phones went missing. There is a lot that needs to be explained at this instance since we still retain the Original Logbook for my son's motor vehicle KCF 802A-Nissan. 17.That no report on the said cell phone analysis was ever presented to the victims and the continued seizure of the phone is unjustifiable on any grounds. 18.That I have in countless times urged for the surrender of the cell phone but has been in vain, making this application extremely inevitable and urgent. 19.That the prosecution Counsel has on an occasion said that a witness would be a short one which preempts that nothing much he intends to do. In such a grievous crime as the one before the Court such terms as a short witness does not seat well with the victim. 20.That I am not willing to in a plea bargain that requires me to concede that my son committed suicide as that is not the case. In any case committing suicide may affect any dues he is entitled to. 21.That I pray that all witnesses be availed to testify in this case without fail. 22.That it is, therefore, in the interest of justice that this Honourable Court intervenes so that our late son, myself and the entire family can have justice.” 4.The application was opposed by the Counsel for the Accused by a Replying Affidavit sworn on 23/3/2026 casting the application as an abuse of the process of the Court and emphasizing the prosecutorial mandate of the DPP, as follows:“Replying AffidavitI, Ernest Kamau Njoroge, do hereby make oath and state as follows: 1.That I am the accused herein and well conversant with the facts relating to this matter thus competent to swear this Affidavit. 2.That I have read the contents of the Applicant's Application and Affidavit in support dated the 2nd March 2026 and wish to respond as follows: 3.That the said Application is a non-starter and is purely an abuse of the court process and only meant to delay this case. 4.That it is the Director of Public Prosecutions who are mandated to conduct proceedings in criminal matters. 5.That the Director of Public Prosecutions have at all times conducted these proceedings openly and the Applicant has been following the matter and even appearing in court on many occasions. 6.That pre-trial was conducted in this matter several years ago and all parties had been provided with the pre trial bundle that included all documents, evidence and witness statements that the prosecution would be relying on. 7.That the Respondent never objected to production of any document or made a prayer requesting for more documents or evidence at the pretrial stage and this is an indication that he out to delay this matter further. 8.That the Applicant has had in his possession all the evidence from the year 2019 when this matter was instituted and never raised any objection or issue with them. 9.That the Applicant has not given any reason or evidence as to why a new prosecutor should be appointed to handle this matter. 10.That the issues in prayers 3 and 4 of the Application are issues that should be dealt with between the Applicant and the Investigating Officer and should not be brought before this court as they are delaying the matter from proceedings. 11.That I swear this affidavit in opposition to the Applicant's Application and Affidavit in support dated the 2nd March 2026.” 5.Despite adjournment granted for the purpose on 30/3/2026 and 8/4/2026, Counsel for the DPP did not file any response to the application and as at the 30/4/3026, the Court embarked on the preparation of the ruling for delivery on 14/5/2026 as scheduled. Determination 6.The right of victim participation in a criminal trial was set down by the Supreme Court in the case of Joseph Lendrix Waswa v. Republic, Petition No. 23 of 2019; [2020] eKLR, where the Court observed that a victim cannot and does not wear the hat of a secondary prosecutor, and set the guidelines to assist courts in considering an application by a victim or his legal representative to participate in a criminal trial, as follows: 7.Under the enabling statutory provision, section 9 of the Victim Protection Act provides for victim participation in the trial process specifically as follows:“ 9.Rights during the trial process (1)A victim has a right to —(a)be present at their trial either in person or through a representative of their choice;(b)have the trial begin and conclude without unreasonable delay;(c)give their views in any plea bargaining;(d)have any dispute that can be resolved by the application of law decided in a fair hearing before a competent authority or, where appropriate, another independent and impartial tribunal or body established by law;(e)be informed in advance of the evidence the prosecution and defence intends to rely on, and to have reasonable access to that evidence;(f)have the assistance of an interpreter provided by the State where the victim cannot understand the language used at the trial; and(g)be informed of the charge which the offender is facing in sufficient details.(2)Where the personal interests of a victim have been affected, the Court shall—(a)permit the victim's views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court; and(b)ensure that the victim's views and concerns are presented in a manner which is not—(i)prejudicial to the rights of the accused; or(ii)inconsistent with a fair and impartial trial.(3)The victim's views and concerns referred to in subsection (2) may be presented by the legal representative acting on their behalf.” What is the position in this case? 8.The principal complaint as set out by Counsel for the victim’s family in their certificate of urgency dated 2/3/2026 is that “the victim and his family feel that the prosecution counsel prosecuting this case is not doing enough to ensure prosecution of a water-tight case in an expeditious way and justice is not being seen to be done [and] that the investigations were done in a poor manner and the victims complained of the same and the victim feel the need to be allowed to call additional expert witness to adduce more evidence and to be cross-examined.” 9.The hearing in the trial has proceeded on 19/5/2025 and 29/10/2025 and the Prosecution has so far called two witnesses and both PW1 and PW2 were cross-examined by Mr. Kimani Counsel the victim’s family in observance of the victim’s right to participation in the trial. The further hearing of the murder trial is set for two days on 22nd & 23rd June 2026. 10.The Defence opposes the application herein and objects that pretrial directions were given and all parties were served with the prosecution’s bundle of documents. The Court notes from the record that the family of the Victim were previously represented by another counsel and he may be the one who had been served, and the call for the documents sought to be relied on by the prosecution may be reasonable of the present counsel. 11.Of course, the Court does not know which documents and evidence to be produced by the Prosecution other than as testified by PW1 and PW2. The Court may consequently only make a direction in general terms that the Prosecution shall, in accordance with victim’s right under section 9(1) (e) of the Victim Protection Act to “(e) be informed in advance of the evidence the prosecution and defence intends to rely on, and to have reasonable access to that evidence”, supply to the Victim’s family all evidence by way of statements, photographs together with such reports, scene of crime, sketches or other documentary evidence that it seeks to rely on at the trial. 12.It is noted from record of court proceedings of 29/11/2024 before Mwongo, J. that the Defence Mr. Maringa confirmed that he had been “served with all Prosecution documents” and the DPP Counsel, Mr. Mamba then, had said that “there are no reports other than Post-mortem that we rely on.” Counsel for the Victim family was not present at this pre-trial session when it was confirmed that Plea Bargain Agreement negotiations had collapsed and the matter was to proceed to hearing, which was set for 19/5/2025. However, it is noted that the Victim attached to his supporting affidavit to this application, a copy of the Police Investigation Diary in this case indicating that he had been supplied with some of the Prosecution documents. 13.The request for the victim’s family to call for an expert witness is clear a parallel prosecution if the DPP does not intend to call such a witness, and if the DPP plans to call such expert evidence, then this application is redundant. The victim family should consult with the DPP as to the witness to be called. This court cannot compel the calling of any witnesses consistently with prosecutorial independence under Article 157 (10) of the Constitution, that “(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.” 14.If the DPP has considered the evidence allegedly with the victim’s family and decided against its use in this trial the Court cannot in a fair trial compel, as requested by the victim’s family, its use and production in the court, as it would then appear that the Court agrees as to the relevance and competence of the evidence over and above the DPP’s independent prosecutorial decision. 15.The documents attached to the application by the victim’s family are not exhibits before the Court, as they are not produced by any competent witness presented in the trial, and they pose a risk of poisoning the Court’s mind to prejudge the trial. They will be expunged. 16.The Release of documents said to have been recovered at the scene or in the course of investigations may be prejudicial to both the Prosecution and Defence cases, as they may not be able to use them as exhibits and to examine or cross-examine witnesses on them, as the case may be. The Court is not able to order the release of such items at this stage of the trial, not being aware as to which of the said items are or are not exhibits for use by the prosecution. The victim’s family may, of course, renew the application upon the judgment of the Court after the trial. 17.For the same reason of prosecutorial independence, this court cannot direct the DPP as to who of its many officers may prosecute this case, such internal decision must be made by the DPP, and it has not been demonstrated any issues of conflict of interest that may call for the disqualification of any particular prosecutor among Mr. Ashimosi, Ms. Maari and Mr. Mamba who prosecuted the case since 2019 upto the time when PW1 and PW2 were taken or the present Prosecutor in Charge of the County Mr. Ngetich who was with Mr. Mwangi taken over upon the transfers of the other prosecutors in the course of time. 18.Investigations into a criminal offence are the preserve of the police and the Court cannot properly direct the Police as to how to conduct their investigations under Article 244 of the Constitution and by virtue of Article 245 (4) “no person may give a direction to the Inspector-General with respect to— (a) the investigation of any particular offence or offences….” 19.The victim must seek the DPP’s concurrence, in accordance with Article 157 (11) of the Constitution that “”, as regards the investigation of the possible angles of the case, which he considers are inculpatory and the presentation of such evidence as may be recovered by such additional investigation. Of course, as held by the Supreme Court, there is a right of the Prosecution to continue with investigations during pendency of trial but this must be conducted by the Police as directed by the DPP not the Court which is an impartial arbiter in criminal and civil proceedings before it. The Supreme Court in Hussein Khalid And 16 Others SC No 32 of 2019 observed:[27]. This is because unless hearing is concluded and judgment reserved, new evidence can be availed in course of a criminal trial, as long as the defence is afforded time to defend their case as we stated in Hussein Khalid& 16 Others vs The Attorney General & 2 Others, SC Petition 21 of 2018:“[92] …the 2nd and 3rd Respondents are not prevented from continuing investigations or even receiving new evidence once the accused has been charged and in the course of trial. The duty of the prosecutor is to bring the new information and evidence to the attention of the accused and for the court to give the accused the opportunity to interrogate the new evidence and adequate time to prepare his defence (See George Taitumu v Chief Magistrates Court, Kibera & 2 others [2014] eKLR).”” 20.However, this court cannot properly interfere to direct any investigations or the calling of particular witnesses with a view to proving a criminal offence. As shown in section 9(2) of the Victim Protection Act, the permitted parameters of evidence that may be allowed pursuant to victim participation are for presentation of the impact or the effect of the offence on the victim not the proof of the offence, which goes to the prosecution of the case and risks parallel prosecution of the accused. 21.Subsection 9 (2) of Victim Protection Act is clear in this regard that it is an avenue for presentation of the victim’s views and concerns as follows–“(2)Where the personal interests of a victim have been affected, the Court shall—(a)permit the victim's views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court; and(b)ensure that the victim's views and concerns are presented in a manner which is not—(i)prejudicial to the rights of the accused; or(ii)inconsistent with a fair and impartial trial.” 22.It is obvious now that the victim wants to direct the investigations into the offence of which he complains and the prosecution thereof by water-tight evidence, for which he considers the state Prosecutor has shown incapacity. This is clearly a parallel prosecution which the Supreme Court warned against in Lendrix Waswa. If allowed the victim would become the investigator, the prosecutor and he has already convicted the accused against whom he seeks justice by punishment, rejecting any plea bargain agreement. Such an outcome would not be a fair trial which is protected under the Constitution by means of non-derogability provisions of Article 25 (c) of the Constitution that the right to a fair trial shall not be limited. 23.Consequently, the Court finds merit only in the application for provision of the evidence sought to be relied on by the Prosecution and in the request for an expedited trial, which has already been addressed by the order for hearing on priority on two consecutive dates on 22nd and 23rd June 2026. The parties should not be permitted to delay the fair hearing of the case. Orders 24.Accordingly, for the reasons set out above, the Court partially finds merit in the application dated 2/3/2026 and it is allowed to the extent as follows:1.Prosecution shall, in accordance with victim’s right under section 9(2) (e) of the Victim Protection Act to “(e) be informed in advance of the evidence the prosecution and defence intends to rely on, and to have reasonable access to that evidence”, supply to the Victim’s family through Counsel all evidence by way of statements, photographs together with such reports, scene of crime sketches or other documentary evidence that it seeks to rely on at the trial, other than what has already previously been supplied.2.In accordance with the victim’s right to expeditious trial under section 9 (1) (a) of the Victim Protection Act, the hearing in this matter which is set for two (2) days on 22nd and 23rd June shall proceed as scheduled. 25.There shall be no orders as to costs.Orders accordingly. DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.EDWARD M. MURIITHIJUDGEAppearances:Mr. Ngetich with Mr. Mwangi for DPP.Mr. Munene Maringa for the AccusedMr. F. Kimani for the Victim’s family.