https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7113

Republic v Okumu (Criminal Case E027 of 2023) [2026] KEHC 7113 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 7113 (KLR) Republic of Kenya In the High Court at Machakos Criminal Case E027 of 2023 RC Rutto, J May 15, 2026 Between Republic Prosecutor and Janet Achieng Okumu Accused Judgment 1.The Accused herein was charged with the offence of murder contrary to Section 203 as read with section 204 of the Penal Code. The particulars are that on 26th July 2023 at Manyatta Estate in Mumbuni Location, Machakos Sub-county within Machakos County, murdered Kyle Leo. The prosecution called a total of 5 witnesses in support of its case. 2.PW1, Lucia Mwende Mutinda, testified that she resides at Manyatta Garden in Mumbuni and is a teacher at Machakos Girls High School. She stated that on 26th July 2023 at about 6.00 a.m., she woke up from bed went to the washroom. While there, she heard her baby cry sharply. As she was unable to leave immediately, she called out to her house help pick the baby. She stated that the baby was nine days old. 3.She further stated that the house help had introduced herself as Susan Pauline Okumu and had provided copies of an identity card bearing those names. However, following the death of the child, she discovered that the house help’s real names were Janet Achieng Okumu. 4.The witness testified that when the baby’s crying persisted, she left the washroom and found the house had been ransacked. The drawers in the house help’s bedroom were open and bags lay scattered on the floor. She also noticed that the laptop bag had been placed inside a clothes bin. 5.Upon proceeding to her bedroom, she found the baby still crying, uncovered and facing upwards, contrary to the doctor’s advice. She stated that before going to the washroom, the baby had been covered and placed at the centre of the bed. She also noticed a white power bank on the bed, which she had not placed there. 6.She picked up the baby went to the sitting room where she attempted to soothe him, but the crying persisted. While there, she discovered that the balcony door was open, despite having locked it the previous night. Noticing that the baby appeared weak, she briefly placed him on the couch and went back to the bedroom to retrieve the keys so as to lock the balcony. However, the keys were missing. She searched within the house without success. 7.She then went to the balcony and called out to the day security guard inquiring whether he had seen her house help. The guard informed her that the house help had left approximately ten minutes earlier. The witness then went to a neighbour’s house but found no one home. She returned to continue attending to the baby, who was still crying. 8.PW1 testified that she again called the security guards to inquire about her keys which included those of her Nairobi house and motor vehicle. She then realized that her Samsung Galaxy mobile phone and Kshs.2,000/= which had been kept beside her laptop bag were missing. She instructed the night security guard to alert the day guard to search for the accused because she feared the accused might have stolen property from neighbours as well. 9.PW1 testified that she then proceeded to Machakos Police Station with the baby who was still crying and refusing to breastfeed. After some time, the baby became quiet. She recorded her statement and showed the police a photograph of the identity card previously given by the accused, who was the house help. She also provided contact details of the accused’s alleged relatives. Attempts to reach the accused by phone were unsuccessful as her phone was switched off. 10.PW1 further testified that she stepped outside to breastfeed the baby, she noticed that the baby was bleeding from the nose. She sought assistance and was initially advised her to go to Bristol Park Hospital, but the person who gave that advice declined to accompany her. She then contacted another friend who advised that they proceed to Machakos Level 5 Hospital. 11.Upon arrival at the hospital, her friend appeared confused, prompting her to grab the baby and rush to the casualty department where doctors attended to the child. that the baby remained unresponsive and continued bleeding from the nose. Eventually, the doctors informed her that the baby had died. She called her friend, Phyllis Mutio, a nurse at Machakos Level 5 Hospital who came and confirmed the child’s death. She then informed her husband, Anthony Miles, who arrived shortly thereafter and also confirmed that their son, Kyle, had died. 12.Pw1 stated that the doctors informed them that the matter was a police case. They returned to Machakos Police Station accompanied by Phyllis Mutio and her husband. While at the police station she fainted and was assisted by officers before they all proceeded to the DCI offices while carrying the deceased child. 13.At the DCI offices, she narrated the events of the previous night and informed the officers that the accused had taken her phone and that she had demanded its return. She also recounted an earlier incident in which she found her spectacles and artificial hair inside the accused’s bag, which led to a verbal confrontation between them after she accused the accused of stealing her belongings. She stated that at around 1.00 a.m. she was still seated in the sitting room, the accused asked her for the house keys but she declined and directed her to go bed, indicating that she would secure the house herself. This was the last interaction she had with the accused. 14.She testified that she supplied the DCI officers with all relevant details and family contacts relating to the accused. Thereafter, together with a female police officer, they transported the deceased child, Kyle, to Machakos Funeral Home. She observed that the nose bleeding had begun to dry and noted marks on the child’s abdomen resembling handprints. A post-mortem examination was conducted and the findings revealed that the child had died from a head injury. The child was buried. 15.PW1 identified photographs of the house girl’s room, photographs of deceased, his clothing, and images showing the child’s condition when undressed at the mortuary, which were marked for identification as MFI-1(a)-(1). She also identified the accused person before the court. 16.She further testified that after leaving the mortuary, they returned to the house accompanied by police officers who inspected the scene. In the accused’s bedroom, the officers recovered a handwritten note from the accused’s bed which stated: “I am sorry I had to go back home. I know you will allow me. When I went to town I went to look for a place or office to book a bus to take me home.” The note was marked for identification as MFI-3. 17.She explained that they had earlier agreed that during the initial days of employment, the accused would not leave. She added that police officers photographed the scene and reviewed CCTV footage from the residential premises. According to the footage, the accused was seen leaving the premises at 6.13 a.m. without carrying anything. 18.During cross-examination, PW1 testified that she recorded two statements with the police dated 23rd August 2023 and 25th August 2023. She admitted that neither statement specifically mentioned the alleged theft of her phone and money, although she had indicated that the accused left with some of her belongings without specifying them. 19.She further stated on the previous day she had confronted the accused about the missing phone and money. Following persistent questioning, the accused allegedly admitted taking them and stated that she had sent the money to her brother, adding that they would return it. Thereafter, the accused locked herself in her bedroom and later came out into the sitting room at around 1.00 a.m., but PW1 informed her that she would personally lock the house. 20.PW1 testified that she later learnt that the accused had purchased a battery and inserted it into the phone. She reiterated that she had been sleeping with the baby in her bedroom and that she woke up at 6.00 a.m. to use the bathroom. When she heard the baby crying, she called out to the accused but received no response. 21.Upon leaving the washroom, she discovered that both her bedroom and the accused’s room had been ransacked. She clarified that the photographs produced in court depicted one room, that is, the accused’s bedroom. She testified that the accused had worked for her for about one week, having been employed on 15th July 2023 and that no prior issues had arisen until the night in question. 22.She further testified that about ten minutes after leaving the smaller room, she confirmed through the security guards that the accused had already left the premises. She maintained that there were no visible external injuries on the child at the time. She stated that she usually kept the house keys in her bedroom but could not find them that morning. Although the accused had given duplicate keys for the main door, the original keys were missing. 23.PW1 also testified that while at the police station, she was advised to keep the baby well covered due to cold weather in July. She added that she did not attend the post-mortem examination because she was traumatized. PW1 further testified that she did not have in court the identity card that the accused had used to introduced herself. She reiterated that she reported the accused’s disappearance and theft of her phone and furnished the police with the accused’s identification details including a photograph of the accused’s identity card and that of her father. She admitted that her statement did not mention the accused’s request for house keys at 1.00 a.m. 24.PW1 also confirmed that she never witnessed the accused physically harm the deceased child. She maintained that although there were no visible injuries on the child’s face, she observed marks on the stomach area after the body was undressed. She further testified that while travelling to the hospital and police station, the baby was handled by Good Samaritans but always in her presence, and that none of them harmed the baby. 25.Upon re-examination, PW1 testified that she provided the police the details appearing on the identity card furnished by the accused in which the accused identified herself as Susan. She reiterated that she supplied all information she possessed regarding the accused. 26.She further clarified that by the time she was advised to keep the baby warm due to the cold weather, the child had already died after they had been to hospital. Lastly, she maintained that both her testimony and her witness statements were truthful, adding that the second statement contained more detailed information regarding how she had left the baby and the events that subsequently transpired. 27.PW2, Phylis Mwikali, testified that she was 34 years old and worked as a nurse at Machakos Level 5 Hospital, where she had been employed since the year 2016. She stated that PW1, Mercy Kasango Munyao, was her friend and that she resided within Machakos Town. She testified that on 26th July 2023 at about 8.00 a.m., PW1 called her and informed her that she was at Machakos Level 5 Hospital and that her baby had died. Within approximately ten minutes, PW2 boarded a motorcycle and proceeded to the hospital. Upon arrival at the emergency room, she saw baby Kyle and observed that he showed no signs of life and that blood was oozing from his mouth and nose. 28.She further testified that PW1 appeared confused while hospital staff were undertaking handing over procedures. Upon inquiry her colleagues informed her that the baby had been pronounced dead on arrival. They were advised to report the matter to the police. 29.About thirty minutes later, PW1’s husband arrived at the hospital and thereafter they all proceeded to Machakos Police Station to report the death. While at the police station, PW1 fainted and had to be stabilized. PW2 stated that she was carrying the baby and was taken to sit at the office of the OCS. 30.PW2 further testified that PW1narrated the events to the police, after which they transported the baby to Machakos Funeral Home. Thereafter, they went to Mercy’s house where photographs were taken and investigations commenced. 31.She testified that PW1 appeared unstable and fainted again at the house prompting them to take her to Bristol Hospital for attention. She later recorded her statement with the police after the burial. 32.PW2 reiterated that the baby had been pronounced dead on arrival and no medical examination was carried out on the child at the hospital. She identified MFI-1 and MFI-2(a)-(b) and testified that upon uncovering the baby’s body, they observed what appeared to be pressure marks on the stomach area. She further testified that prior to the case she did not know the accused person prior to the incident and had only seen her in court. She also confirmed that she did not attend the post-mortem examination. 33.During cross-examination, PW2 testified that the photographs she saw were taken at Machakos Funeral Home and that she had accompanied PW1 to the mortuary. She further stated that she inquired from the doctor about the probable cause of death and was informed that it was probably due to a head injury. She maintained that blood had been oozing from the baby’s mouth and nose. 34.PW3, Chief Inspector Nicholas Mulenye, testified that he was the officer in charge of Crime Scene Investigations in Machakos County. He stated that he had been appointed by the Office of the Director of Public Prosecutions under Section 78(1) of the Evidence Act pursuant to Kenya Gazette Notice No. 5548 dated 30th June 2015. 35.He testified that on 26th July 2023, he accompanied Police Constable Bashil from the DCI Machakos to Machakos Funeral Home where he documented the scene by taking photographs. He stated that photographs numbered 1 to 9 depicted general and close views of the body of a young child lying on a baby shawl placed on the morgue bench. 36.He further testified that photograph number 10 showed both a general and close view of a note allegedly left behind by the house girl which had been marked for identification as MFI-3. He produced photographs as exhibits Exhibit 2(a)-(i) and the note as Exhibit 3. He also produced the scene of crime Report dated 18th September 2023 as Exhibit 4. 37.During cross-examination, the witness clarified that the photographs were taken on 26th July 2023 at Machakos Funeral Home and not at Machakos Level 5 Hospital. He also confirmed that he did not take photographs at the house. 38.PW4, Dr. Kamotho Watenga testified that he was a Government Pathologist based in Murang’a County. He stated that he held a Bachelor’s Degree in Medicine and Surgery, having graduated in the year 2011 and that he later pursued a Master’s Degree in Human Pathology at the University of Nairobi from which he graduated in 2017. 39.He testified that he conducted a post-mortem examination on the body of Kyle Leo, a nine day old infant on 27th July 2023 at about 12.30 p.m. at Machakos Funeral Home. He referred to the post-mortem report dated 27th July 2023. 40.Upon external examination of the body, he observed signs of blood loss and cyanosis which he explained as lack of oxygen in the body. He also noted a depression injury at the back of the skull but found no other external injuries. Internally, he observed a contusion on the front part of the lungs, separation at the joint located at the back of the skull, and a contusion measuring approximately 8 centimetres in that area. He also noted marked swelling of the brain (cerebral oedema). All other body systems were normal. 41.Based on these findings, PW4 concluded that the cause of death was head injury secondary to blunt force trauma consistent with physical assault. He testified that the body had been identified by the parents, although he could not confirm with certainty. He confirmed that he signed and stamped the post-mortem report on 27th July 2023 which was produced as Exhibit 5. 42.During cross-examination, PW4 reiterated that the death resulted from a head injury caused by blunt force trauma. He conceded that such an injury could occur from a fall, but clarified that in this case the injury was localized, whereas falls typically result in more generalized injuries. He confirmed that there was no evidence of strangulation. He also stated that the body had been identified by Antony Muli and Angelina Munyambu whose names appeared in the post-mortem report. 43.Upon re-examination, PW4 explained that a localized injury involves trauma to a specific point whereas a fall is more likely to produce multiple or generalized injuries. 44.PW5, PC Stephen Pashile, testified that he was Police Constable No. 99051 attached to the Directorate of Criminal Investigations (DCI) at Machakos and was the investigating officer in this case reported at Machakos Police Station under OB No. 18 of 26th July 2023. 45.He testified that on 26th July 2023, he was summoned by the DCIO and found PW1 in the office, crying, while the other was holding a baby in her arms. The DCIO informed him that (PW1), had initially reported a case of a missing house help but while at the police station she noticed the baby was bleeding from the nose. She was advised to take the baby to Machakos Level 5 Hospital where the child was declared dead on arrival. They were advised to take the body to Machakos Funeral Home where photographs were taken by scenes of crime officers. 46.PW5 testified that thereafter they proceeded to PW1 residence located at Manyatta Estate in Machakos. At the scene, photographs were taken of the house including the mother’s bedroom where the baby had been sleeping and the house help’s room which appeared ransacked. He referred to Exhibits 1 to 5 and testified that they recovered a handwritten note from the house help’s room addressed to her employer, corresponding with Exhibit 3. Efforts to trace the house help were initially unsuccessful as her mobile phone was switched off. He described Exhibit 1 as comprising photographs of the child, including close-up and full body images, as well as a photograph of the blood-stained baby shawl. He clarified that these photographs were taken at Machakos Funeral Home by the scenes of crime officer and were produced as Exhibit 2. 47.PW5 further testified that on 27th July 2023, a post-mortem examination was conducted by Dr. Kamotho Watenga and a report dated 27th July 2023 produced as Exhibit 5 confirming the cause of death as blunt force trauma consistent with physical assault. 48.PW5 testified that investigations continued and led to the arrest of the house help in the Buruburu area of Nairobi as the prime suspect. He stated that although she had initially identified herself as Susan Pauline Okumu, upon arrest it was established that this was not her true identity. Her real name was found to be Janet Achieng Okumu and she had been using another person’s identity card. He testified that the accused had no valid identification documents of her own and admitted that she had never applied for an identity card. Investigations further revealed that Susan Pauline Okumu was her sister who resided in Uganda. 49.PW5 testified that after escorting the accused back to Machakos, she was charged with the offence of murder. He further stated that they reviewed CCTV footage from the residential building and observed the house help leaving the premises at about 6.10 a.m. He explained that the CCTV cameras were positioned at the gate, parking area, and along the perimeter fence capturing motion images However, the footage could not be retrieved or processed because access to the system was restricted to its owner, who declined to grant then access. Consequently, although they viewed the recordings, they were unable to produce them in court. 50.He further testified that he interrogated the accused, but she did not disclose any material information. According to his investigations, only the baby’s mother and the house help were present in the house on the material morning. The accused stated that when she left the house, everything was normal and that the mother was in the washroom. 51.PW5 stated that according to the investigations, the mother heard the baby cry and called out to the house help, who did not respond. She then attended to the child and later discovered that the house help was missing. Upon inquiry, the security guard informed her that the house help had left the building approximately ten minutes earlier. 52.PW5 testified that the security guard, Peter Mwau Kingoo informed him that he had opened the gate for the house help at around 6.10 a.m. Although the guard recorded a statement, he did not testify in court as he could not be traced after leaving employment. He stated that guard’s account was consistent with what he observed on the CCTV footage. 53.He further testified that the mother found the baby lying in a different position from the one she had left him. He reiterated that the child was only nine days old. Statements were recorded from several witnesses, and the file was thereafter forwarded to the Office of the Director of Public Prosecutions which recommended that the accused be charged with murder. 54.PW5 added that no other person was seen entering the building and that investigations could not conclusively establish what transpired in the house. He confirmed that the toilet was situated inside the house, directly opposite the mother’s bedroom, in a two bedroomed unit. He also stated that no weapon was recovered. 55.During cross-examination, PW5 testified that the initial report was made at approximately 7.30 a.m. and that the incident likely occurred between 6.00 a.m. and 6.13 a.m. He clarified that the matter was first reported at the occurrence desk before being referred to the DCI offices. 56.He further testified that at the police station the baby was initially being carried by the mother and later by PW2. He acknowledged that other individuals may have handled the baby during that period. He also conceded that although his earlier statement indicated that photographs were taken before the body was transported to the mortuary, they were in fact taken at the morgue. 57.PW5 reiterated that while he initially stated that the accused left the premises at around 6.10 a.m., subsequent information placed the time at 6.13 a.m. He admitted that the CCTV footage was not produced in court and that no formal steps were taken to secure it. 58.He further testified that although PW1 stated she was in the bathroom when she heard the baby cry, they could not determine how long it took her to respond. He also acknowledged that no forensic analysis was conducted to establish whether the handwritten note recovered from the room was authored by the accused. 59.PW5 conceded that blunt force trauma could result from a fall or the use of a hands, and that the only injury observed on the child was the head injury. He further confirmed that no witnessed saw the accused assault the baby and that no conclusive evidence was produced to show that the room had been ransacked. 60.He admitted that investigations focused on the person who had fled and did not extend to the mother. He also stated that he had knowledge of postpartum depression. Additionally, he confirmed that investigators could not establish what transpired between 6.13 a.m. and 7.30 a.m. 61.PW5 further admitted that his statement did not mention photographs allegedly taken within the house. He also confirmed that the issue of the accused using two different names, that is, Susan and Janet were not included in his statement. 62.He acknowledged that no identification documents belonging to the accused were produced in court. He further testified that there was no evidence establishing the exact time the mother left the house. He also confirmed that no effort was made to secure the attendance of the missing witness, Peter Kingoo through court. 63.He reiterated that he did not see any other person enter the house and that, in the absence of CCTV footage, he could not rule out the possibility. He also admitted that the layout of the house including the washroom was not documented nor supported by photographic evidence. 64.Upon re-examination, PW5 testified that the accused was identified through the person who referred her to PW1 from a domestic worker’s bureau. He stated that PW1 positively identified the accused person and confirmed that, during her employment, she identified herself as Susan Pauline Okumu and pointed her out in court. 65.He also testified that investigations did not reveal any evidence suggesting that the baby injuries occurred while being transported to the police station or hospital nor were they caused by exposure to cold weather. He maintained that the room had indeed been ransacked. 66.He explained that references to time being “around” indicated approximation rather than exact time. Finally, he stated that investigations did not establish that any unknown persons handled the baby apart from the mother and the house help and confirmed that the accused left the premises at approximately 6.13 a.m. 67.At the close of the prosecution’s case, this court found that a prima facie case had been established and placed the accused on his defence. The accused opted to tender a sworn testimony. 68.DW1, Janet Achieng Okumu, testified that she hails from Busia County and worked as a house help. She stated that Susan Pauline Okumu is her cousin. She explained that when she sought employment through a bureau, she was required to provide a guarantor, and her cousin stood in for her using her identification card. She testified that she was subsequently employed by Madam Mercy (PW1) in July 2023 and worked in her house for about two weeks. 69.DW1 testified that on 25th July 2023 she had a mobile phone which she used to communicated with PW1 while she was at the hospital. However, the phone later stopped functioning and switched off, making communication impossible. She stated that PW1 resorted to contacting her through the watchman to inquired why she could not be reachable on phone. 70.DW1 explained that the phone failed to charge even after PW1 directed her to retrieve a charger from a drawer in PW1’s bedroom. While doing so, she found a Samsung J1 phone. She testified that she called PW1 to seek permission to use it but received no response. Despite this, she proceeded to use the phone explaining that PW1 would call her to give instructions as she was still new in the house and often remained there alone. 71.DW1 further testified that later that night PW1 found her using the phone, and became upset, threatening to call her husband to take action against her. She stated that she pleaded for forgiveness, but PW1 declined. She testified that PW1 then made a phone call in Kikamba a language she did not understand, which frightened her further. 72.She stated that at about 11.00p.m, PW1 instructed her to prepare warm water and change the baby’s diaper. Later, PW1 directed her to go sleep, indicating that the matter would be addressed the following day. 73.DW1 testified that, out of fear, she resolved to leave the house early the next morning before PW1’s husband arrived. She packed her belongings and wrote a note informing PW1’s that she had left. 74.She testified that on 26th July 2023 at about 6.00 a.m., she woke up, collected her belongings, and left for Nairobi. She proceeded to the employment bureau that had connected her with PW1. She found a different attendant from the one who had initially linked her to the employment. She explained the situation, requesting that PW1 be contacted to send her wages and collect the phone from the bureau. She was advised to return later when the relevant person was available. 75.DW1 further testified that she later went to her brother Bernard Okumu’s residence and did not returned to the bureau. She stated that her brother later informed her that PW1 had contacted him regarding her departure. PW1 also contacted her sister, Brenda Okumu, who resided in Uganda. DW1 testified that she later secured a job through a different contact which she accepted because she was desperate for work. Although she could not recall the exact date, she stated that this occurred sometime in August 2023. 76.DW1 testified that she was later contacted and asked to come to Buruburu where she found PW1 in the company of two men and a woman. She stated that the two men identified themselves as DCI officers. She was then informed that she was under arrested for the offence of murder. 77.She denied involvement in the child’s death, stating that she believed the issue concerned the phone, but was instead informed that it was a murder investigation. 78.DW1 further testified that she was detained at the police station and later arraigned in court. She described PW1’s bedroom as self-contained, while her own toilet was situated outside the bedroom. Upon being shown Exhibit 3, namely the note she had written, she confirmed that she authored it to inform PW1 that she left. 79.During cross-examination, DW1 confirmed her name as Janet Achieng Okumu and stated that she did not possess a national identity card, only a waiting card which remained uncollected after her arrest. She stated that she had a birth certificate, and that her KCSE records bore her name although she had not had not collected her certificate due to an outstanding school fees balance. She testified that she was 25 years old but had no document before court to confirm her age. 80.She confirmed that her phone had been operational when she commenced employment but later stopped working, forcing PW1 to communicate through the watchman on at least two occasions. She could identify the watchman physically but did not know his name since she was still new at the premises. 81.DW1 admitted that she used PW1’s Samsung phone without express permission, acknowledging that she knew she had taken it. She testified that on the morning of 26th July 2023, she woke at about 6.00 a.m., did not see PW1, who was in the bedroom, and did not see the baby. She stated that the last time she saw the baby was on 25th July 2023 when the child was with the mother. 82.She further testified that she wrote the note on as the morning she left and placed it on the kitchen table. She admitted that she did not date it. She also stated that she had gone to town earlier to look for a Safaricom line. 83.She stated that after leaving the house she proceeded to Nairobi to her brother’s residence but she did not inform him or her sister that she had taken PW1’s phone and had no explanation for failing to disclose that fact. 84.DW1 testified that she left through the gate at around 6.00 a.m. and found a watchman on duty although she did not inform him of her departure. She stated that she initially believed the matter concerned theft and only later learnt that she would be charged with murder, with the theft allegations having been dropped. 85.She admitted that she did not report to the police that she had been threatened and stated that although she intended to leave the phone at the bureau, she did not do so as she planned to return later, which she never did due to her arrest. 86.On 4th March 2026, DW1 was recalled and produced identification documents namely Birth Certificate as Defence Exhibit 1 (DExh.1), her KCPE Certificate as Defence Exhibit 2 (DExh.2), and her National Identity Card Waiting Card as Defence Exhibit 3 (DExh.3). 87.During further cross-examination, she confirmed that her name is Janet Achieng Okumu and confirmed that her KCPE certificate bore the name Janet Achieng. 88.Upon re-examination, DW1 clarified that “Okumu” was her father’s name and that Janet Achieng and Janet Achieng Okumu refers to the same person. 89.That marked the close of the defence case. Despite directions to file submissions, none of the parties had filed by the time of writing of this judgment. Analysis and Determination 90.I have carefully considered the totality of the evidence tendered by both prosecution and defence. It is trite law that the burden of proof in criminal proceedings rests entirely upon the prosecution and never shifts to the accused person. The prosecution must prove its case beyond reasonable doubt. 91.The accused person is charged with the offence of murder contrary to Section 203 of the Penal Code which stipulates thus:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 92.The standard of proof required is that of beyond reasonable doubt. In the case of Joseph Kimani Njau v Republic [2014] eKLR, the Court of Appeal stated that-“In all criminal trials, both the actus reus and the men's rea are required for the offence charged; they must be proved by the prosecution beyond a reasonable doubt. The trial court is obliged to ensure that before any conviction is entered, both actus reus and mens rea have been proven to the required standard.” 93.Similarly, in Anthony Ndegwa Ngari v Republic [2014] eKLR, the Court of Appeal identified three crucial ingredients of the offence of murder that have to be proved for a conviction to be entered are as follows: -(a)Proof of the death of the deceased and the cause of that death(b)proof that the accused committed the unlawful act or omission which caused the death of the deceased and(c)proof that the accused had the malice aforethought. 94.I will now consider whether the prosecution has proved these elements to the required standard. a. The death of the deceased and the cause of that death 95.There is no dispute regarding the fact of death of the deceased child, Kyle Leo. The evidence of PW1 is that the child persistently cried, later became unusually quiet, and began bleeding from the nose, prompting her to rushed him to Machakos Level 5 Hospital where he was pronounced dead. This evidence was corroborated by PW2 who found the child unresponsive with blood oozing from the mouth and nose. 96.The fact of death was further confirmed by PW3 who photographed the body at Machakos Funeral Home as well as PW4, the pathologist, who conducted the post-mortem examination. 97.As regards the cause of death. PW4 gave detailed medical findings. He observed a depression injury at the back of the skull, separation of the skull joint, an 8centimetre contusion at the back of the skull, cerebral oedema and contusion at the front part of the lungs. He formed the opinion that the cause of death was head injury secondary to blunt force trauma consistent with physical assault. The post-mortem report was produced as PExh.5. 98.Although PW4 conceded during examination that such injuries could theoretically result from a fall he clarified that the injuries in this case was localized, whereas a fall would ordinarily produce more generalized injuries rather than a localized contusion confined to one point. 99.In the circumstances, this court is satisfied that the prosecution proved beyond reasonable doubt both the fact and cause of death of the deceased child. b. Whether the accused committed the unlawful act causing the death 100.The critical issue for determination is whether it is the accused person who inflicted the fatal injuries upon the deceased. There was no direct evidence linking the accused to the assault of the child. No witness testified to having seen the accused assault or harm the deceased child. The prosecution case therefore rests entirely on circumstantial evidence. 101.The law on circumstantial evidence is well settled.In Neema Mwandoro Ndurya v. R CRA.446/2007, the Court of Appeal cited with approval the case of R v 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.” 102.However, courts have consistently cautioned that such evidence must be examined with great care. That caution was expressed in Teper v. R [1952] AC at p. 489 where the court had this to say:“Circumstantial evidence must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of accused’s guilt from circumstantial evidence to be sure that there are no co-existing circumstances which could weaken or destroy the inference.” 103.Based on the above, this court must determine whether the totality of the evidence irresistibly points to the accused as the perpetrator and excludes any other reasonable hypothesis, as guided by the principles in Sawe v Republic (Criminal Appeal 2 of 2002) [2003] KECA 182 (KLR) (6 June 2003) (Judgment) where the Court of Appeal held that;“22.As we have already pointed out. the evidence in this case was entirely circumstantial. 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 hypothesis than that of Iris guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden, which never shifts to the party accused.” 104.It therefore follows that, for a conviction to be sustained on circumstantial evidence, the prosecution must establish a complete and unbroken chain of events which irresistibly points to the accused as the perpetrator, to the exclusion of any other reasonable possibility. 105.Applying these principles to the present case, the prosecution’s theory was essentially that the accused was the only other person present in the house with PW1 and the deceased and that she fled immediately after the incident. PW1 testified that when she heard the child cry while she was in the washroom, she called out to the accused but received no response. Upon leaving the washroom, she discovered that the accused had already left the premises. The prosecution also relied on the fact that the accused had allegedly stolen PW1’s phone and money and had earlier quarrelled with PW1 the previous night after being confronted about the theft. Additionally, the prosecution relied on the note allegedly left by the accused and the CCTV footage said to have shown her leaving the premises at around 6.13 a.m. 106.While these circumstances may raise suspicion, the law is clear that suspicion alone, however strong, cannot form the basis of a conviction. The court must examine whether these facts form a coherent and complete chain pointing exclusively to the accused. 107.In this regard, upon carefully evaluating the totality of the evidence on record, this court finds that several material gaps and inconsistencies exist in the prosecution case, which create reasonable doubt as to whether it was indeed the accused who inflicted the fatal injuries upon the child. 108.First, although the prosecution alleged that CCTV footage captured the accused leaving the premises at about 6.10 a.m. or 6.13 a.m., that footage was never produced in evidence. PW5 candidly admitted that the investigators did not retrieve it because access to the system was restricted to its owner, and further conceded that no effort was made to seek assistance in securing it. 109.This omission is significant. The CCTV evidence would have been crucial in establishing not only the exact time the accused left the premises, but also whether any other person entered or exited the premises around the material time. In its absence, the court is left with uncorroborated oral assertions as to what investigators allegedly observed, which cannot carry the same evidential weight. 110.Secondly, the prosecution failed to call material witnesses whose evidence would have been crucial. In particular, the security guard, Peter Mwau Kingoo, who allegedly saw the accused leave the premises and whose account was said to corroborate the CCTV footage, was not called to testify. PW5 merely stated that he had been dismissed from employment and could not be traced. No evidence was tendered to demonstrate efforts made to secure his attendance before court. His evidence would have been material in confirming the exact time the accused left and the circumstances under which she departed. 111.It is well established that where the prosecution fails to call a key witness without sufficient explanation, the Court is entitled to draw an adverse inference that such evidence would not have supported the prosecution’s case. 112.Thirdly, there was no forensic or scientific evidence linking the accused to the injuries sustained by the deceased. No fingerprints, blood stains, DNA evidence, or forensic examination of the scene was undertaken. PW5 admitted that no forensic examination was conducted even in respect of the alleged note left behind by the accused. Additionally, although PW1 testified that the house had been ransacked, PW5 conceded during cross-examination that he did not produce evidence demonstrating that the room had indeed been ransacked. 113.Fourthly, the evidence discloses a critical gap in the timelines of events. There existed a window of uncertainty regarding what transpired between the time the accused allegedly left the premises and the time the matter was formally reported. PW5 admitted that investigations could not determine what transpired between 6.13 a.m. and 7.30 a.m. Additionally, it was acknowledged that other persons handled the child before the child reached hospital. While there is no direct evidence implicating those individuals, this uncertainty nonetheless introduces reasonable doubt and undermines the prosecution’s assertion that the accused was the only possible perpetrator. 114.Further, while PW4 concluded that the injuries were consistent with blunt force trauma and physical assault, he also conceded that a fall could potentially occasion similar injuries. Although he distinguished the injuries herein as localized, the medical evidence did not conclusively eliminate all other possible causes. Importantly, no evidence was led to demonstrate precise mechanism by which the injuries were inflicted. 115.This court also notes that the investigations appear to have focused almost exclusively on the accused from the outset primarily because she left the premises abruptly after being confronted over the phone issue. PW5 expressly admitted that attention was directed primarily at the accused because she left the premises and that PW1 was not investigated. Such an approach falls short of the standard of thorough, impartial, and objective investigations, particularly in serious offences such as murder. The investigative process ought to explore all reasonable lines of inquiry rather than proceed on a preconceived theory of guilt. 116.The conduct of the accused specifically, leaving the premises abruptly and using another person’s identification card and admitting to taking PW1’s phone without permission, undoubtedly raises suspicion. However, suspicion alone, no matter how strong, cannot substitute proof beyond reasonable doubt. This court must guard against the danger of convicting an accused person on the basis of suspicion or moral disapproval of an accused person’s conduct. 117.Upon a careful evaluation of the entire evidence on record, this court finds that the chain of circumstantial evidence is incomplete and does not irresistibly point to the guilt of the accused. There exist material gaps unexplained inconsistencies and co-existing circumstances that weaken the prosecution’s case and render it incapable of excluding other reasonable hypothesis. Consequently, the prosecution has failed to prove beyond reasonable doubt that it was the accused person who committed the unlawful act that caused the death of the deceased. (c) Whether there was malice aforethought 118.Section 206 of the Penal Code as follows:Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—(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. 119.Summarily, Section 206 of the Penal Code defines malice aforethought and includes intention to cause death or grievous bodily harm, knowledge that the act will probably cause death and intention to commit a felony such as rape. 120.In the present case, since the prosecution failed to establish beyond reasonable doubt that the accused committed the act causing death, the issue of malice aforethought does not properly arise for determination. Even assuming the injuries were unlawfully inflicted by another person, the prosecution still bore the burden of proving that it was the accused who possessed the requisite malice aforethought. That burden was not discharged. 121.Accordingly, this court finds that the prosecution failed to prove the essential ingredients of the offence of murder beyond reasonable doubt. 122.Accordingly, I hold that Janet Achieng Okumu, is found not guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. She is hereby acquitted under Section 215 of the Criminal Procedure Code. The accused shall be released forthwith unless otherwise lawfully held. 123.Orders accordingly. DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 15TH DAY OF MAY, 2026RHODA RUTTOJUDGEIn the presence of;………………………… Accused……………………………ODPPSelina Court Assistant