https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7893

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYAHURURU** **CRIMINAL CASE NO. E009 OF 2023** **REPUBLIC……………………………………………………………..ODPP** **-VERSUS-** **FELIX KERONGO ONDUSO….…………….…………………ACCUSED** **JUDGMENT** 1. **Felix Kerongo Onduso,** the Accused, is charged with the offence of **Murder contrary to Section 203 as read with Section 204 of the Penal Code.** Particulars of the offence are that on the night of 27th and 28th day of April, 2023 at unknown time at Kathara-ini Kwa-Wanjiku area, Nyahururu Sub-County within Laikipia County he murdered Bernard Waweru Kamawira. 2. To prove the case the prosecution availed fifteen(15) witnesses. **PW1 Kelvin Wang’ombe Mundia**, stated that he was called by her cousin and told to go to the home of Bernard Waweru. He complied and found Bernard having been killed. His hands were tied with a rope and he had been cut on the neck. His body was moved to Nyahururu Referral Hospital where a postmortem was conducted and he identified the body to the doctor who conducted the autopsy. 3. **PW2 Richard Maina Kamawira** lived some 70 meters away from the deceased, his brother. He stated that on the night of 30th April – 1st May, 2023 he realized he had not seen the deceased as was the norm. He asked their sister Doris and a few friends who also had not seen him. On 2nd May, he went to the deceased’s house which was locked with a padlock. There was no sign of life hence he decided to make a report to the area Chief and Kwa Wanjiku Police Post. They continued searching for the deceased. Following advise from the Assistant Chief, they gained entry of the house and found the deceased covered with blankets. The police were called and uncovering the deceased the neck was severed. A sharp knife was recovered. 4. On 5th May, 2023, he was called and informed of a person who was trying to sell a cellphone belonging to the deceased. The suspect was taken to the scene that is when he learnt that the suspect had done some work for the deceased. 5. **PW3 Doris Wamaitha** the sister of the deceased on learning from PW2 that he was missing took part in the search. And, when the suspect was arrested, she did not know him. 6. **PW4 Dorcas Waithera Gitau** a bar owner at Kwa Wanjiku stated that the deceased went to her bar and purchased two(2) beers then left a phone to charge. Later a young man went and told her that the deceased had sent him to collect the cellphone and she gave him. She identified the Accused as the person she had previously seen in company of the deceased and the one who went to collect the cellphone. 7. **PW5 Sarah Njeri Wanjohi** identified the Accused as a neighbour’s employee who once robbed her of a cellphone and ordered her to give her Mpesa PIN. And, since he held a knife at her, having put on her neck, she complied. That he sent Kshs.50 Mpesa to another person’s number, picked a handbag from her bedroom and left wit the cellphone. He re-appeared on 3rd May, 2023 and she raised an alarm but he jumped over the fence and disappeared. Then on 5th May, 2023, he returned and slept outside. He was seen by her daughter and when she brought it to her attention she raised an alarm and members of public responded. They beat him up and handed him over to the area Chief who in turn handed him to the police. 8. **PW6 Samuel Wanjohi Wachira,** Chief, Rabira Location testified to have called the police who re-arrested the Accused. 9. **PW7 Kennedy Kariba** worked closely with the deceased as his contact person who connected him with farmers who carried out fish farming. He learnt of the deceased’s demise from his daughter Wanjiku, PW11; and, three(3) days later he got a strange call indicating a person was offering to sell him a cellphone and on interrogation of the purported seller he established it bore the name Ben. Therefore, he advised PW11 to report the occurrence to the police. The real intended seller, the Accused herein was arrested. 10. **PW8 Dr. Wangari Wambugu** conducted the postmortem on the body of the deceased. 11. **PW9 No. 99113 PC Paul Migere Ochieng** re-arrested the Accused who had been subjected to mob justice by members of public. 12. **PW10 No. 846007 Corporal Wilson Mutwiri** visited the scene with PW9 upon receiving a report of an assault upon the person of the Accused. It was their evidence that he was taken to Mweiga Police Station, a search was done and some two(2) identity cards were recovered from him. One was in his name, Felix Kerongo Onduso and the other was for Waweru Bernard. An inventory was prepared which was signed by them, the Accused inclusive. 13. **PW11 Christine Wanjiku Waweru** the daughter of the deceased was informed by PW2 that her father was missing and later she got information that his slain body was found inside the house. Thereafter she got a call from PW7 who informed her that there was a person asking about her father’s cellphone. He mentioned that the person was at Mweiga and gave her his cellphone number. He managed to send the image of the person selling as he caused it to be sent to him. 14. With the information she went to report to Nyahururu DCI and while at the office information of the Accused’s arrest was received. 15. **PW12 No. 93937 Corporal Edward Esanya,** the Crime Scene Officer visited and processed the scene by taking photographs of the body which he adduced in evidence. 16. **PW13 No. 236867 CI Mackmillan Chembero** investigated the case and caused the Accused to be arraigned. 17. **PW14 No. 234662 CI Titus Ngare** conducted an identification parade where the Accused was identified by Dorcas Waithera, PW4, as the young man who collected the deceased’s cellphone from her pub. 18. **PW15 Talala Koyapa,** a Ranger, stated that the Accused offered to sell to him the cellphone. He scrutinized and saw the name Kennedy then called PW7 who notified PW11. He stated that when he asked the Accused to tender evidence of ownership he offered to go to the Chief himself to get a letter confirming he owned the cellphone. He tricked him by paying a deposit then. He then made arrangements for his image to be taken secretly which was forwarded to Kennedy. In the meantime, he rang the OCS Mweiga. The person went away and later was arrested having been subjected to mob justice. He followed and found him having been taken to hospital by the police. 19. Upon being placed on his defence, the Accused denied the charges. He explained that he went to look for a job at Mweiga. That he searched and got employment at Kanyagia, Nanyuki Road. He was to report for duty on 5th May, 2023 the following day. That he walked and reached a place he was conversant with. He decided to go sleep in grass near a certain homestead. In the morning, having overslept, workmen found him and raised an alarm. The ladies who went to the scene called the Chief who went to the scene and searched his pockets. They beat him up. That he only had one identity card which the Chief took. The police from Mweiga were called. They took him to Mweiga Police Station then transferred to Nyahururu Police Station where it was alleged he committed murder. He was escorted to a home alleged to be for the deceased. His blood sample was taken in the course of investigations. That as he was being moved around people took photographs. He denied the allegation that an identification parade was conducted. He denied having been in possession of the deceased’s identity card. He also denied knowing Talala. 20. I have considered evidence adduced by the State and the defence. **Section 203 of the Penal Code** provides; ***Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.*** 1. Elements for the offence of Murder as derived from the Penal Law were defined in the case of ***Antony Ndegwa Ngari v Republic [2014] KECA 424 (KLR)*** where the Court of Appeal stated that elements of Murder are; ***“(a)the death of the deceased and the cause of that death;*** ***(b) that the accused committed the unlawful act which caused the death of the deceased and*** ***(c) that the Accused had the malice aforethought.”*** 1. A report was made of the deceased missing. The deceased’s body was found in his bedroom, in a pool of blood. The body was mutilated and a knife which was concluded to be the murder weapon was placed on the bed. The pathologist Dr. Wangari Wambugu confirmed the cause of death as acute neck injury (a deep incisional wound on the neck) due to sharp force trauma following assault. This was proof of the fact of death. 2. The prosecution is duty bound to prove existence of malice aforethought for the act to be murder. Malice aforethought is defined by **Section 206 of the Penal Code** thus; ***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.*** 1. In ***Nzuki v Republic [1993] KLR 171*** the Court of Appeal addressed the requirement in proving malice aforethought as follows; ***“Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused:*** ***The intention to cause death;*** ***The intention to cause grievous bodily harm;*** ***Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts. It does not matter in such circumstances whether the accused desires those consequences to ensue or not and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed. The mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into a crime of murder. (see Hyman – v- Director of Public Prosecutions, {1975} AC 55.”*** 1. Looking at the nature of injuries sustained by the deceased, the deceased was slaughtered like a chicken. The neck was dissected, clearly the perpetrator had an intent to kill. 2. The next issue is therefore, who committed the heinous act? 3. Kennedy, PW7 received a call and the caller said he had a phone that was to be sold, it had a name Ben and he advised the person to derail the seller. He notified Wanjiku (PW11) the daughter of the deceased to report the matter to the police. It was stated that the person left the phone with PW7 to go take tea. 4. PW9 PC Ochieng and PW10 PC Mutwiri rescued the Accused who intended to sell the cellphone and took him to Mweiga Health Centre. Then they took him to Mweiga Police Station. Before booking him they searched and recovered from him two (2) national identification cards in the name of Felix Kerongo Onduso and Bernard Waweru, respectively. And an inventory of recovery was prepared which was signed. The Accused thumb printed. The explanation given was that he had injuries. Notably, the Accused was silent on the issue of the inventory of recovery of the ID cards. 5. DCI Marmanet collected him as a murder suspect. 6. PW11 Christine Wanjiku on getting a call asked PW7 to send her the image he had of the person who was to sell the phone. She went to report to DCI Nyahururu and while there she got information that he had been arrested at Mweiga. 7. PW15 Robert Talala Kayapa, a Ranger, stated that he met the Accused on 3rd May, 2023. He testified to have had a Miraa business then. That the person went to buy Miraa from him. He later returned wanting to sell him a cellphone (Samsung) at Kshs.1,500/-. He did not have a receipt but said he could go to the Chief to record that the cellphone was his. He paid Kshs.500/- cash, then scrutinized the phone as the person went and returned saying he had not found the Chief. He explained how he had many problems; hence he gave him the balance Kshs.1,000/-. The person sent him a photocopy of his identity card in the name Felix Onduso. On checking the cellphone there was a message to Kennedy, hence he called the number to establish if the cellphone was genuine. Kennedy gave him another number for Wanjiku. 8. Later he was called by Ann, OCS Mweiga and asked to take the cellphone to the police station. He went and it turned out that the seller who was arrested had been taken to hospital for treatment and he identified him. That his wife had secretly taken his photo. 9. PW13 the DCIO Marmanet and Investigation Officer, on 5th May, 2023 got information of the arrest of the Accused who had worked for the deceased who owed him Kshs.1,100/- that he was demanding. 10. According to PW4 Dorcas Waithera Gitau a bar owner and bar tender, the deceased left his cellphone to charge at the bar on 27th April, 2023, which was collected by a young man who said he had been sent by the deceased. On cross – examination she stated that she had seen the person in company of the deceased a week before and could identify him physically. 11. Later, on 14th May, 2023 – PW13 CI Ngare conducted an identification parade where PW4 identified the Accused who did not raise any objection. 12. Circumstances leading to his arrest by members of public were stated by PW5 Sarah Wanjohi from whom he stole a cellphone at a knife point and made her give her M-pesa PIN. He disappeared until 3rd May, 2023 when he returned and slept outside. On seeing him she called for help. He was caught by people who assaulted him and called the Chief PW5 who calmed them down. 13. The defence put up was a denial and explanation of circumstances under which he was arrested. There is the question of having been found in possession of two identity cards. He thumb printed on the inventory for recovery of the two (2) identification cards which he did not explain in his defence. He was identified on a police identification parade by PW4. In the parade form he had no objection. He duly signed the documents. It was not suggested that there was any error in the manner in which the parade was conducted. He was later found in possession of the cellphone that he collected from PW4’s bar which he sold to PW15 who reached out to the person who would link it to the owner, PW7. These was evidence that remained unexplained that pointed to the Accused as the person who had the phone. 14. There was no direct evidence of who caused the death of the deceased. Evidence adduced is indirect and circumstantial. 15. While admissible, the chain of events must be woven together to reach a conclusion of guilt beyond reasonable doubt. In ***Joan Chebichii Sawe v Republic [2003] eKLR*** it was stated that; **“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 his 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.”** 1. In ***Abang’a alias Onyango v Republic*** principles of circumstantial evidence were stated thus; ***“It is settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is to be drawn must be cogently and firmly established (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else.”*** 1. Circumstances that prevailed conclusively established that the Accused possessed the ID card of the person found murdered. He collected his phone without proper explanation. Facts are entirely incompatible with his innocence. 2. Therefore, I find that he must be the person who was at the home of the deceased, and committed the heinous act that was unlawful. 3. The upshot is that the Accused is guilty and I convict him accordingly as charged. 4. It is so ordered. **Dated, signed and delivered virtually this 26th day of May, 2026.** **……………………** **L.N. MUTENDE** **JUDGE**