[2022] KEHC 15633 (KLR)

Republic v Onsongo & 2 others (Criminal Case 67 of 2015) [2022] KEHC 15633 (KLR) (Crim) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15633 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case 67 of 2015

J Wakiaga, J

November 11, 2022

Between

Republic

Prosecution

and

Ezekiel Momanyi Onsongo

1st Accused

Dennison Mose Maroko

2nd Accused

Philip Manyura Maroko

3rd Accused

Judgment

Introduction 1. The deceased was James Karanja Maina was a young Accountant who had just married and was employed by Nakumatt Holding, then a Premier Supper Market, which was the to go to place for shopping popular with the Kenyan emerging middle class, to who they issued with a loyalty card and they would at every shopping earn points, which they would redeem to enable them buy more goods. Their symbol was an elephant just to depict how rough and big it was.

2. At the time of this judgement it was a pall shadow of its former self and was under statutory management with almost all its former stores having been taken by the new kid on the block known as Naivas. This case explains partly why it went under and provides so the prosecution claimed the motive for the untimely death of the deceased, who had been employed as an Internal Auditor to try and un earth the alleged theft by the staff of the super market and that explains why the second accused was charged

3. The tribal nature of our Kenyan society is also not left behind, the 1st accused was a Police Officer, stationed as at the time of the offence at Spring valley Police station, the Third Accused was an employer of the said Nakumat and Co-worker with the deceased , he was working in the finance Department and was a part- time student at one of the Kenyan Universities, while the second accused was a Boda- Boda Rider within the city and they all shared the same ethnicity together with the prosecution star witness, who doubled up as a police informer and a confidant of the first accused among other police officers within the said police station.

4. They first appeared before Kimaru J as he then was on July 10, 2015 charged that on the May 7, 2015 at 6. 30 pm at Nakumatt Supermarket, Mombasa road within Nairobi County jointly with others not before the court, murdered James Karanja Maina and they all pleaded not guilty and on 27th, they appeared before Ombija J before appearing on 30th before Lesiit J as she then was for directions on the bail application, which was then fixed for hearing on September 17, 2015 before Korir J , only to be adjourned to the 1st of October on account that the 3rd accused had not served his application

5. The said applications were heard by Lesiit J and by a ruling thereon dated October 29, 2015 dismissed the applications in respect to the 1st and 3rd accused persons and on February 23, 2016 dismissed a similar application filed by the 2nd accused and on July 18, 2016 this court dismissed their applications for review. It must therefore be stated for record purposes and the spirit of judicial accountable that the accused persons have been in remand custody throughout the period of their trial.

6. On the March 1, 2016, this trial commenced before me and at the close of the defence case on July 28, 2022 I had heard and recorded the evidence of twenty-seven (27) prosecution witnesses and four (4) defence witnesses.

Prosecution Case 7. The prosecution case was that there had been theft by Employees and Suppliers of Nakumatt and that the deceased being the Internal Auditor of the firm, was investigating the said theft ,for which he had received several threatening emails, warning him to stop interfering with what the people who were involved considered their empire and that the first accused was hired by the 3rd accused who was an employee of Nakumatt to eliminate the deceased in a bid to stop the said investigations and to execute the said mission, the 1st accused was driven to the vicinity of where the deceased was working by the 2nd accused, who had been introduced to him by the Prosecution star witness (PW1), on a motor bike and when the deceased left his office in the evening, they trailed him before the 1st accused gunned him down using a gun which has been stolen and later on handed to him, before escaping from the scene, as PW1 watched and followed him.

8. PW1 Daniel Nyongo Dauditestified that he was a Boda Boda, operator within the Kagemi Area of Nairobi County since 2008, it was his evidence that sometimes in August 2015 a gentleman by the name Douglas called him and told him that there was a customer who wanted to the transported from the Loresho Area and he gave him the cell phone number of the said customer, who turned out to be the 1st accused, whom he knew as a Police Officer. He proceeded as instructed and met the 1st accused who was in civilian clothes but had a pistol on him. He then carried him to his house for which he paid Ksh.100. They then exchanged telephone contacts.

9. After three days the 1st accused called him again at about 1. 00 pm and he once again took him to his house and left him there, after which they developed a customer relationship. In the month of April, he did not have a motor cycle for his use but Mr. Momanyi, (the 1st accused) looked for him and found him while playing pool and they went to his motor vehicle which was parked nearby and he told him that there was someone who owed him some Ksh.5000, he then asked him to look for a motor cycle so as to take him to where the debtor was and to thereafter follow him up to his residence.

10. The following day he went to the 1st accused place at 6. 00 am on a motor cycle and he told him that he had a case at Kibera Law Courts, so they left the motor cycle at the station and went together in his motor vehicle registration number KAH 860M and on the way he told him that they should proceed to Mombasa road first before going to Kibera. They got to Mombasa road between 7. 00 -7. 30 a.m and at 8. 00 a.m a motor vehicle registration KBJ came by and he said it belonged to his Cousin Philip, whom he knew, having taken to him in the company of 1st Accused, gun oil for curing a burn and who was being driven by Kiptoo. It was his evidence that the said Philip whom he had met was not the one charged in court.

11. The said Philip gave the 1st accused Kshs 80000(eighty thousand) to use and when the work is done he promised to give him more in Ekegusi language. The 1st accused, then showed him the picture of the person who owed him money from the photos from his phone, whom he said was an Auditor at Nakumatt and shortly thereafter the deceased motor vehicle registration number KCA 303 L BMW black in colour passed by and he said that it was the person they were looking for. As the deceased motor vehicle entered into Nakumatt head office, they then proceeded to Kibera before going back to Kibagara and the 1st accused once again paid him Kshs 500, having been instructed to trace the deceased from Nakumatt to his home on a motor cycle.

12. At about 4. 00 pm he proceeded back to Mombasa road, reaching there at 5. 00 pm, and he waited until 7. 00pm when the deceased passed by in motor vehicle registration number KCA 303L, whereas he had been given KCA 300L as the registration number, so he called Momanyi for confirmation, who told him that he had made a mistake on the number plate and asked him to go back the following day and for that day he paid him Ksh 100.

13. The following day Momanyi called him at about 1. 00pm and when he went to see him at the police station, he paid him Ksh 500 for fuel and since he did not have a motor bike that day, he then looked for the 2nd accused who took him to Mombasa road, reaching there at 4. 00p.m and at 5. 30 pm the deceased motor vehicle passed and they followed him up to the southern by passed, only for him to speed away from them. They went back to the station and were paid Kshs 1000 of which he gave the second accused Ksh 300.

14. The following day the 1st accused once again called him and gave him Kshs 500 for fuel , before they proceeded together to Mombasa road, getting there at 5. 30 pm and they once again followed the deceased motor vehicle but lost him in the traffic jam , they then went back to Kangemi and was paid Ksh 500 by the 1st accused through Mpesa and since it had rained on them he fell sick, so the following day he called the 2nd accused to take the 1st accused once again to Mombasa road and he did not know of their whereabouts, until Momanyi called him and told him that they had gone to Mombasa road and were stuck in traffic jam, so he wanted him to go for him from Mombasa road using his motor vehicle.

15. He followed the 1st accused to Mombasa road and as he turned into the Nakumatt head office, the deceased motor vehicle passed by and he saw the 1st accused ahead of him walking on foot, and he saw him, shoot at the deceased three times from the driver’s side, before running away from the scene, and when he tried to call him, his phone was off. He proceeded back to the police station but did not find him, so he left the motor vehicle with the key inside it and went and reported to the in-charge Inspector Memusi (PW1), who asked him what gun Momanyi had used and he told him that he had used a pistol which he used to keep at the back seat of his car.

16. The following day the 2nd accused went to his house at 7. 00 am and told him that Momanyi had killed someone at the place where he had taken him on Mombasa road and left him at the scene. He then took him to Memusi whom he told that Momanyi told him that he had killed a thief and were advised not to give out that information. On their way from Memusi”s office, they met Momanyi who told them that he had killed a thief and inquired from him where he had left his car key.

17. The following day Memusi called him and requested that he assist him recover the murder weapon from Momanyi, by telling him that he had a robbery job at an M Pesa establishment, of about Ksh 300,000 (these included 1st accused’s) which he would share with him and therefore wanted a gun for that purpose. He called Momanyi who gave him the gun in a paper bag, which he took to Memusi who paid him Kshs 10,000.

18. In cross examination by Mr Mochere on behalf of the 1st accused , he said that he first met the 1st accused in 2014 August and he had a gun which he hid in his car and that on the material day he saw him at Mombasa road next to a Coca Cola shop dressed in a leather jacket and an helmet though he did not have a gun in his hand and that he saw him shoot the deceased three times and that he had left for Mombasa road in Momanyi’s car at 3. 30 pm and that on May 15, 2015 he met Mr Momanyi’s Advocate on Uhuru highway after being called on phone and he gave him Ksh 1000. He stated further that when the gun was recovered from the accused, he asked Inspector Memusi how he was going to cover him up and he told him that they were going to create a scene on the same and record in the OB.

19. Cross examined by Mr Ogada for 3rd Accused, he stated that he had not been arrested in respect of this case and that the person he knew as Philip was not in court and that no identification pared was conducted when the 3rd accused as arrested.He denied knowing or seeing the third accused before and that the Philip whom he met with the 1st the accused came in motor vehicle registration number KBJ. He stated that the 2nd accused was known to him as “Daima” and that the1st accused told him that the said Philip was working at Nakumatt and had been dismissed. He denied killing the deceased with inspector Memusi and stated that he had been promised a reward by the police for helping them in the recovery of guns.

20. It was his evidence that the Philip who met with Momanyi was not in court and that every time he met him, he was always in a red cap and that Momanyi had told him that they were cousins and he used to work at Nakumatt and used to live in Nakuru, where Momanyi’s Family used to live. It was his evidence that the 1st accused removed his pistol and shot the deceased as he watched.

21. As regards the third accused, he stated that he first saw him in the year 2015 when Momanyi told him that he was called Philip and on the recovery of the murder weapon he stated that Inspector Memusi had promised to protect him so that the 1st accused would not know that he is the one who had given out the gun, by recording that it was recovered from thugs and that he did not know whether the 1st accused used to give out his gun, even though he was a police informer, who would assist them in recovering illegal guns .

22. He stated that after the shooting he went to the 1st accused house and parked his motor vehicle before proceeding to Inspector Memusi’s house and informed him of the shooting. The 1st accused was later on given one week off and he proceeded to Nakuru. He denied knowing the 3rd accused on the dock. He stated that the Philip who had met with Momanyi had a driver called Kiptoo, whom he used to come with when meeting the 1st accused and that he was always in red cap and that the last time he saw him; he gave the 1st accused Kshs 80000 to use for an assignment which was not disclosed.

23. PW2 Latoya Mghoi Kaka, the wife of the deceased testified that he had worked at Nakumatt for about one year and two months and that on the May 7, 2015, they both left their house separately for work at 7. 20 am, with the deceased driving motor vehicle registration number KCA 303 L and that her phone had a problem so it was not possible to get in touch with each other and that she tried calling him at 7. 45 am and at 10. 00 am, but he did not respond. When she got home at 8. 30 pm she did not find him at home as was the norm. She tried reaching him on phone but he did not answer.

24. At 9. 20 pm she received a call from someone who introduced himself as a Police Officer from Industrial Area Police Station, who told her that the deceased was at the station and she inquired whether he had been arrested over a traffic offense but was told that he had been involved in a road traffic accident, only to be told that he was dead, which she did not believe, since she had earlier received some call to the effect that her child had died, yet she did not have a child of that age. When they later called the police to confirm the death, they were informed that the body had been taken to Lee Funeral Home. The news of the death was thereafter flashed on TV news later in the night.

25. She thereafter attended to the post mortem examination and identified the body of the deceased to PW19 Dr Dorothy NjeruGovernment Pathologist, whose evidence was that the body had gunshot wounds with an entry at the right ear with fragments of bullet head found lodged in the head. The second gunshot had entered at the right side of the neck and there were multiple fractures of the head and as a result formed an opinion that the cause of death was head and spinal injuries due to gun shots. She further sent the bullet head and fragments for ballistic analysis. In cross examination by Mr. Ogada, she stated that the deceased had an underlining kidney decease which had nothing to do with the gun shot injuries.

26. PW7 Timothya Kamau Maintestified that the deceased was his Elder brother and that they were working together at Nakumatt. On the 7th, he was called by a friend of the deceased at 11. 00 pm and informed that he had been shot and the body taken to Lee Funeral Home. He proceeded there at 11. 30 p.m. and saw the body which had blood over the head. On the 11th he identified the body to Dr Njeru for the purposes of post mortem examination and that he used to speak with him on phone but had not complained to him of any threat to his life.

27. PW8 Ken Rodgers Tom Mulwaan employee of Nakumatt as a Leader in the Household Cleaning and Laundry Department in charge of purchase was on duty on the 7th of May 201. He left for home at 5. 45 pm driving motor vehicle registration number KBS 508 E and before reaching Mombasa road, he heard gun shots, which created confusion on the road and as in front of him there was a black motor vehicle coming towards him in high speed. He then saw a white motor vehicle in front of him overtaking another motor vehicle in front of them and a motor bike rushing towards Mombasa road, he then saw the deceased motor vehicle hit the wall and turned and blocked the way, it was then overtaken by the other two motor vehicles and the motor cycle towards Mombasa road.

28. The said motor bike had two people, both wearing helmets and it took off in high speed toward Mombasa road. He then saw PW3 leaning toward the deceased motor vehicle on the driver’s side, he then moved towards him and notice that he was the deceased whom he knew as a co-worker in Nakumatt uniform. He was bleeding from the right ears and there was blood on his chest. He then went back to the officer before returning to the scene together with PW3, PW9 and PW18 and found the police thereat.

29. In cross examination, he started that he did not see the shooting and that the only thing he saw was a red motor cycle. He stated that the act happened so fast and therefore could not tell the timing.

30. PW 6 Samson Mwanzia Munyokian employee of Nakumatt stated that he left his place of work at 5. 45 pm toward the bus stage next to Penari Hotel and before he boarded a motor vehicle, he heard about three gun shots and he decided to go and check what had happened. He then saw the deceased motor vehicle and PW10 standing next to it, when PW10 saw him wearing Nakumatt uniform, he called him to go and identify the deceased, who was also wearing the same uniform and he identified him to the police man. He had a gunshot wound on the right side of his head. He then saw a motor cycle which had rider and a passenger both wearing helmets and reflector jackets, pass next to a canter which was in front of the deceased motor vehicle. He then called PW9 who came to the scene.

31. In cross examination by Mr. Mochere he stated that he did not know whether the deceased was hated because of the nature of his work and that he had no information on the staff who had been charged because of the loss of money. He stated that he saw two people on the motor cycle but did not see whether they had guns. In cross examination by Mr Ogada, he stated that there were many motor cycles which passed through Mombasa road at the said time.

32. PW3 Michael Obiero Odongoa Security Trainer at Nakumatt met the deceased as he was driving out of the office and a few minutes thereafter they received information that he had been shot. When he asked the caller whether he was still alive, he was told that he looked dead. He decided to walk to the scene with his colleague called Michael Ndungu and at the scene found a Police Officer from Richfield police post (PW10) and he noticed that the car had stopped on the wall of a building, having knocked the same on the left front side of the car. The deceased was still inside the car and he noticed that he was building from the gunshot wounds, two on the neck and one on the right ear.

33. At the scene, he saw three spent cartages, one which was near the right tyre, he then sealed the area to await the scene of crime personnel, having informed one of their Directors who had called the Police. The officers came and processed the scene, took the photographs before taking away the body of the deceased and towing away his motor vehicle.

34. On the 9th May 2015, Mr. Francis Kimotho, their Human Resources and Development Manager, called them to his Office and showed them threatening email which was addressed to himself, Michael Ndungu and Gilbert Davies, to the effect that they were dwelling on someone’s empire and that they will face the same fate as the deceased. It was his evidence that at that time the company had been dealing with a lot of theft by staff and false documentation by staff and suppliers which was being investigated by the deceased who was reporting directly to the Directors and as a result action had been taken against some staff.

35. The said email was from one Bernard Anyona and from their records, there was no employee by that name. The 3rd accused was an employee in the Finance Department where he was working as a Senior Officer. They also received another threatening email, which was directed to an officer who was closely working with the deceased and the witness.

36. In cross examination he stated that the cartridges he saw at the scene looked like those that were discharged from a pistol and that he did not know whether there were staff who had been dismissed as a result of the audit which was being carried out by the deceased. He confirmed that he did not know who had killed the deceased and that some of the threatening emails were received two months after the death of the deceased. It was his further evidence that on the 7th, the 3rd Accused was on duty and that the last time he saw him, was when the police took him in for questioning.

37. PW9 Micheal Kamoth Ndungu,the head of Security, stated that he used to work closely with the deceased whose audit report he used to investigate. On the material day, he was in a meeting with PW3, Mr Ludeo and Mr Kimotho when he received a call from Samson Munyoki(PW6) who informed him of the shooting and that when he got to the scene, there were two police officers who confirmed to him that the deceased had died. At the scene, he noticed that the deceased was heading towards Mombasa road but had now crossed the road and hit the wall. The deceased was still in his seat belts with two visible gunshot wounds next to his right ear. He notices three bullet cartridges behind the motor vehicle.

38. While still at the scene, the OCS Industrial Area Police Station arrived at took over the scene, before being joined by the OCS Langata. They collected the cartridges and bullet heads and took away the body and the deceased motor vehicle.

39. The following day on the 8th while holding briefings with PW3, they were called by Mr. Kamotho the HR Officer who produced to them an email which was from one Bernard Anyona directed towards several officer which they thought was directly connected to the death, since it indicated that last year they had warned him but he did not listen. It was his evidence that at that time they were working on fraud cases dealing with Equity cash back which had been reported to Thika Police station and one involving Global Card. They reported the threats to the police and on the 8th he received a call, from a private number which he did not answer. He stated that he knew the 3rd accused who was a Chief Accountant.

40. In cross examination by Mr. Ogada he stated that he did not know the 1st and the 2nd accused. He stated that in addition to the 3rd Accused, there was another Philip Ludeo who was a Regional Manager of the Regions which were affected by the fraud, which the deceased was auditing.He stated that the death was linked to the audit because he had been warned through the emails and that there were employees who had been charged and that they had reported the threats to the cybercrime unit.

41. PW18 Francis Njoroge Kamothoa Human Resource and Development Manager was on duty when PW9 informed him of the shooting. They proceeded to the scene where they found the deceased motor vehicle with a crowd around it. The engine was still running and when they looked inside, they saw him bleeding from the ear and the nose. There were also two police officers from the nearby police post. He then contacted the MD and briefed him. It was his evidence that the deceased was in charge of internal audit, who was checking processes and payments. He knew the 3rd accused who was head of internal systems and that the deceased though not as qualified as he was, was senior to him.

42. It was his evidence that on the 8th of May 2015, while on duty, he received an email from one Bernard Anyona, whom he did not know and which read “yes my empire is alive and will for ever, my people will not be shaken … last year I warned James Karanja to stop investigating my people he did not… you cannot afford a bullet proof car… am watching”. It was his evidence that the sender knew them very well based on the information contained therein and that they reported to the CID.

43. In cross examination, he stated that he could not tell whether the deceased had enemies but there was a time he had mentioned that he was receiving threats through his phone without giving details. He stated that some people lost their job as a result of the investigations which were being carried out on the cash back, which was being run by Equity Bank which allowed customers to withdraw money from the till as an ATM which was being abused by employees.The deceased gave his report on the 10th March 2015in which thirty cashiers were accused of committing fraud. In cross examination by Mr. Ogada he stated that he did not mention the 3rd accused in any of his statements and that he was not mentioned in any of the audit reports. He stated that whereas he was more qualified than the deceased, he was not discriminated upon when the same was appointed as he did not apply for the position.

44. PW 10 CORP.Joshua Awinowas attached to Richfield Police station within the area of Nakumatt Head Office and on the material day had just returned to the post from day shift when he heard gun shots towards Mombasa road and saw people running towards the direction, so he followed and on reaching road C he smelt gun powder and saw a blue stationary motor vehicle, in which he found the driver motion less with the engine running on, which he switched off through the driver’s window. He later learned that he was an employee of Nakumatt. he checked the scene and was able to see two empty cartridges behind the motor vehicle and two bullet fragments which were stack on the wall. He secured the scene and notified the OCS. He later recorded his statement.

45. In cross examination, he stated that he did not witness the shooting but was informed that there were two men on an unmarked motor cycle who shot the driver and ran towards Mombasa road. He confirmed having not seen any of the accused persons at the scene. He stated that he used to see the 3rd accused within the area being picked up by a taxi whose driver he knew physically. He confirmed having been among the first people at the scene and that people were shouting that he had been shot by two people on a motor bike wearing reflectors. It was evidence that they gave him the information since he was in police uniform. He was followed by PC Martin Murithi from behind.

46. PW16 Shavia Mametia Scene of Crime Officer visited the scene on the road next to Nakumatt Head Office, which he processed by taking photographs. On examination of the car he found a bullet lodged in the left front door near the side mirror and on the wall next to the car, there was another bullet. The OCS then showed him three spent cartridges and he thereafter took twenty-nine (29) photographs and later revised the scene and took more photographs. In cross examination he stated that the deceased had one wound on the body.

47. PW5 Newton Omondi Osiemoa civilian gun owner stated that he was issued with certificate number 8160 in respect of a CESKA pistol no A974347 which he purchased on 28th may 2012. On the 3rd November 2014 as he was leaving his home at the Hardy Area of Karen, he was accosted by thugs in a probox motor vehicle who robbed him of his personal belongings including the said gun. He reported the incidence to the police and recorded his statement. In cross examination he stated that his gun was new and in excellent condition.

48. PW13 Muthui Ndimaa Security Guard was on his way home, walking towards Hardy Estate when a motor vehicle passed by and dropped some two items. He decided to check what it was and noticed that it was a gun and its hoister. He took it and put it in his bag with the intention of taking it to the police, but since it was his reporting hours, he decided to proceed to his place of work with it. He then sought the advice of PW14 who told him that he had a friend who was a Police Officer who could assist him get the gun to the police. The next day the said Police Officer called him to inquire if he still had the gun and he confirmed and gave him direction to where he was. When he met him, he was accompanied with the 1st accused whom he introduced as a regular police officer since he was an AP and he received the gun from him, having confirmed that it was new and had not been used.

49. The 1st accused assured him that he had done well in handing over the gun, since the same could have gotten into the wrong hands and could have been used to kill people. He assured them that if the gun is handed over to the owner and he gives a token of appreciation, he would call them for it, but he did not call until the 13th day of July 2015 when he was taken to Lang’ata police station to record his statement. He later attended to an identification pared where he identified the 1st accused by touching his shirt as the person he had given the gun.

50. In cross examination, he stated that the motor vehicle which dropped the gun was a probox whose registration number he did not see. He stated that he could not remember how the 1st accused was dressed when he came for the gun but he was in civilian clothes and that he introduced himself as Momanyi.

51. PW14 Isaac Kathurimawas working as a security officer in the same company with PW 13 and that in the compound where he used to work PW12’ s girlfriend used to work there. In the month of November on a date he could not remember, he met with PW13 who informed him that he had picked a gun on the road on his way to work and asked him why he had not taken it to the police, to which he responded that he was scared. He then told him that he had a friend who was a police officer who could assist, he then called PW12 who later on came with the 1st Accused who told them that the said gun did not belong to the police since it did not have police serial number and that they will take it to the owner if found, who might give them a reward.

52. Mr. Yego told them that he was an AP while Momanyi was a regular Police who would deal with the issue of the gun. He did not hear anything thereafter on the gun until the 29th of May 2015 when Yego called him and told him that the gun had been used to commit a crime and they were needed to record a statement.He then recorded his statement and later took part in identification parade where he identified the 1st accused as the person they had given the gun and that he had seen him for the first time the day he came for the gun with Yego. In cross examination, he stated that when he was told that criminals had used the gun, he believed that it was Yego and Momanyi but he did not see Yego at the identification pared. He stated that the day Momanyi came for the gun, he had a brown jacket.

53. PW12 SSGT Peter Yegoan Administration Police Officer who was at that time attached to the residence of Hon Peter Kenneth, then an Assistant Minister testified that he received a call from PW14 who was guarding the residence where his girlfriend used to live, who told him that a friend of his PW13 had found a pistol by the road side and was afraid to take it to the police for fear of arrest. He advised him to tell PW13 not to throw away the gun. He then looked for the 1st Accused, who was known to him, and told him that he had some useful information that would assist them in fighting crime and that he had been called by PW14 about a gun that had been picked up by PW13.

54. The 1st accused told him that he would get time so as to go to Karen to confirm the said information. On the 4th of November 2014 the first accused called him and they proceeded to Karen, where they took possession of the subject gun with fifteen rounds of ammunition, which he confirmed to had been new and never used. The 1st accused said that he was going to inform the OCS on the recovery and that he knew Corp Chege who was working at the firearm Bureau who was going to confirm the ownership of the gun. He later called him and said that the said gun had been reported stolen in Hardy area and that he was not going to surrender the gun to the OCS as it was going to create and impression that he was with the gang that had robbed the owner of the gun sand that he was going to create a scene to make it look as if he had recovered the gun from a shootout with gang stars.

55. Since he was an officer who was with SPIV, he did not distrust him. He later called him and stated that he had problems with his boss Inspector Memusi who had a grudge with him. He said that he had initiated the process of surrendering the gun. He later told him that the Deputy OCS had conducted a search in his house on an allegation that he used to hire out his gun to thugs and that he had been summoned by the OCPD. When he asked him whether he had surrendered the gun ads agree, he did not answer.

56. In cross examination, he stated that when he went with the 1st accused to recover the gun, he did not make any report to Hardy Police station, since he knew the first accused would do so. He stated further that he did not have incidence report book at his place of work. He later learned that the gun was not surrendered. He stated that he did not make any official report as he thought the 1st accused would do so.

57. PW4 CORP, Timothy Chegeattached to the Central Firearm Bureau stated that PW5 was issued with the subject gun and that on 4th November 2014, he received a call from the 1st accused with who he had worked before, who wanted him to check and confirm the details on firearm serial number A974347 and he checked and confirmed that it belonged to PW5, a civilian licenced firearm holder and that from the records there was a signal communication from Lang’ata Division Hardy Police Station where the owner had reported that he had been robbed of the firearm. It was his evidence that he gave this information to the 1st Accused and advised him to get in touch with the relevant police station.

58. He never received any communication on the same from the 1st Accused until he received another communication from Spring Valley Police Station on the 23rd may 2015 on the recovery of the same gun loaded with eight arms of ammunition by the police who were on patrol within the University of Nairobi Staff quarters at Loresho.There was a further communication dated 25th may 2015 from the OCS Spring Valley Police Station to the Firearms Licencing Bureau informing him of the recovery of the firearm from criminals in a police operation.

59. He stated that when the first accused called him, he wanted to know whether the firearm belonged to a civilian holder so as to trace the owner, since he was in possession of the said gun and that the chief Licencing Officer on 25th may 2015 informed Spring Valley of the ownership of the gun. In cross examination, he stated that he came to know the 1st accused in the year 2008 and that he called him on the 14th day of November 2014 about the subject firearm which was reported stolen on the 4th as a result of a robbery which he came to learn from the 1st accused and that he later thought that the 1st accused and the watchman would have been suspects on the said robbery.

60. PW 11 INSP Nicholas Memusiwas the officer in charge of Spring Valley Police station where the 1st accused was working at and that he met PW1 DANIEL NYONGO DAUDI who was a boda boda operator and a residence of Kibagare slums, whom he asked to assist them with fighting robbery within the slums and who informed him that the problem was within the police post. He then told him that the 1st accused had a pistol for hire and upon receipt of the said information, he commenced investigations and promised PW1 a reward of Ksh. 10000 if he were to recover the said gun from the 1st accused. He then called the 1st accused in his presence and alleged that he had an operation for a bout Ksh. 300000 for which he needed the pistol, to which he responded that he was on Mombasa road and would call him later. At this point, PW1’s phone was on speaker phone.

61. PW1 later came to the station to check on the 1st accused and he once again called him on speaker phone and was told to wait. He was later on called by PW1 who told him that he had managed to get the said gun from the 1st accused ceska pistol serial number A974347 loaded with eight rounds of ammunition. He then informed PW1 that they will stage a cover up in respect of the said recovery, since the 1st accused was still an officer at the station. They then requested for the ownership of the firearm and asked the ballistic experts to confirm whether it had been used to commit an offence.

62. They then confirmed that the test fired cartridges from the said gun matched those that had been recovered from the scene of the murder of the deceased by the DCIO Makadara and that PW1 had on 6th July 2015 given information that the said pistol had been used by the 1st accused to kill one of the staff of Nakumatt on Mombasa road and he later handed the said witness to the officers for further investigations. It was his evidence that on the week of 2nd -9th may 2015, the first accused was on duty but on the 7th he was not on duty, while between 23rd and 30th my 2015 he requested for off duty to attend a function in Nakuru but was just around the station.

63. In cross examination, he stated that he met the 1st accused at the post when he was deployed and that they had a cordial relationship, that on 22 May 2014, he had a murder case he was investigating where the 1st accused was a witness and that PW1 had told him that the 1st accused had a pistol which he was giving out for hire on 18th May and that he eventually recovered the said pistol which they booked in the OB and kept under safe custody and HAving Made a false report on the same to cover the witness.

64. PW15 C.I Alex Chirchir a fire arm examiner on 12th and 25th May 2015 received the cartridge cases, their buckle and bracket forthwith from PC Julius Kiema and the subject fire arm to confirm whether it had been used in reported crimes and whether the said bullets were fired from it. Having carried out an examination, he formed an opinion that firearm was in good working condition and that the bullets were fired from it based upon the bullet marks thereof. In cross examination he stated that those marks matched the subject firearm and that the fragments were that of the bullet which they recovered from the scene.

65. PW17 DR Kizi Shako examined the accused persons and found them fit to stand trial. PW20 Willy Kiptoo Chepkwonya Taxi driver stationed at Vision Plaza stated that the3rd accused was his regular customer since 2007 and that he was living at Syokimau with his wife and children. He stated that in 2015 February he had introduced him to many customers including the 1st accused who wanted to be taken to Mlolongo next to hotel connection between 6-7 pm which he did and he left him there. In the month of May 2015the sister of the 3rd accused deposited into his account a sum of Kshs.900,000 to enable him buy for her a matatu for business and he went to Mombasa with the 1st accused together with someone called Tom who was their cousin. They bought a vehicle at a sum of Kshs. 940,000 while he had been given Kshs. 900,000 so they called the 3rd accused who sent to him the 50000 deference through mpesa and they paid for the motor vehicle and drew a sale agreement with Tom as the buyer in place of Wilfreda.

66. They then took the 1st accused to the tour of Mombasa after the 3rd accused joined them, before coming back to Nairobi. It was his evidence that the 3rd accused did not want his wife to know that the car had been bought by his sister and that on 23rd June he was informed that the3rd accused had been arrested by the police. They later accompanied the police to the house of the 3rd accused where they carried out a search. The police later asked him for the motor vehicle which he told them did not belong to the 3rd accused, they then informed him that he had blocked the deceased motor vehicle so as to be killed which he denied. He confirmed that he used to meet the 3rd accused during the time, since he used to take him to JKUCAT where he was a student.

67. In cross examination, he stated that the 900000 was sent to him by Kemunto Ndemo who was not related to the 1st accused whom he first met during graduation and that he did not block the deceased to be killed, he stated that when he needed the Kshs 50000 shortfall on the purchase price, he called Wilfred whom he knew as the purchaser who told him that she was in the rural part of Kisii and that it was Tom their cousin who called the 3rd accused.

68. PW21 Wilfred Kemunto Ndemostated that the 3rd accused was her step brother and that in the year 2015, she wanted to buy a matatu and sought help from PW20 who was their family friend who then went to Mombasa and bought for her the motor vehicle and asked him to get shortfall on the purchase price from her brother the 3rd accused. On the 26th of May the police called her in relation to the death of the deceased and the motor vehicle which was connected to it.

69. PW22 Thomas Ondaristated that the 3rd accused was his cousin and that he used to operate a matatu business with the 1st accused, having been introduced to him by EDMNAN OSORO and that they used to meet every week. He testified that he had offered to go to Mombasa on behalf of PW22 to assist her get a motor vehicle and that while he was there, he asked the 3rd accused to send him money to cover for the shortfall, in the purchase price. He stated that they went to Mombasa by road and that he paid the bus fare for the 1st accused and PW20. The sales agreement was in his name because the purchaser insisted that the agreement had to be signed by those that were present in Mombasa.

70. PW23 Joseph Tukshostated that he was in charge of the flying squad and on the 22nd day of June 2015, the 2nd accused was brought to his office for purposes of recording a statement and he agreed to give a confession, which statement was recanted by the accused, which statement after a trail within a trial was by a ruling dated 18th July 2019 found valid and admissible.He produced the said statement.

71. PW 24 ASP Robinson Cherenjeconducted an identification pared where the 1st accused was positively identified by PW14 and PW13 and signed the identification pared forms. He stated that he knew the 1st accused before the date of the identification pared as a police officer.

72. PW25 SGT Francis Singilawas instructed to investigate the matter and went for the 1st accused at Gigiri Police station and took possession of his Mobile phones and other items from his house.

73. PW 26 SGT Isaac Sangwas on 26th June 2015 called by PW11 with information on the arrest of a suspect in respect of the shooting of the deceased and he went to the station and met PW1 and the 3rd Accused whom he interrogated whereupon the 3rd accused told him that on the 7th of May 2015 he was along Mombasa road with the 1st accused and participated in a shooting, he then handed them over to PW23 who recorded his confession. He stated that he did not arrest the first accused and he only arrested the 2nd accused from the Police Station.

74. PW 27 Daniel Khamisan officer of Safaricom was given instruction on cell phone numbers 0725832429 and 0726561430, to produce the registration details and Mpesa details, he received further instructions on line number 0714747952and a third request on the following other numbers: 0714747952, 0725832430, 0725 579894, 0724923508,0713337810, 0721862532and 0723688019.

75. He stated that in respect to 0725579894 registered in the name of the deceased on 7th at 17. 49. 22 hours the last out going call was at Lima ltd along Mombasa road. On 0725832429 registered under the 1st accused, there was an incoming call at 18. 03. 06 when he was at Lima ltd on Mombasa road, 0714749952 belonging to the 2nd accused it was also picked along Mombasa road at 19. 00. hours. He further stated that the 1st accused cell phone was active on Mombasa road up to the 29th of May 2015 and on the Mpesa transactions between 1st April 2015 to 31st may 2015, he confirmed that the 1st accused received funds from the 3rd Accused during the period in question as follows: 4/4/2015 Kshs. 2550, 14/4/201Kshs. 2050, 17th Kshs. 4500, 20th Kshs. 10000.

76. As regards the transactions on the 1st accused account on the 7th May 2015, he confirmed the following transactions; Kshs. 300 to PW1 at 18. 55 hours and at 1900hours Kshs. 300 to the 2ndaccused and at 2152hours a further Kshs. 300 to the 2nd accused, he further confirmed that the 1st accused number had a relationship with PW1 number, that is to say they either communicated through voice and text messages. On the 3rd accused account, he confirmed that on the 7th it was located at lima ltd along Mombasa road and at vision plaza at 16. 00 hours before moving to Kitengele at 17. 23 hours and then back to Mombasa road at 19. 34 hours and that the transaction was similar to that of the 1st accused. He produced the Mpesa transactions between the account of the 1st accused and the 3rd accused during the said period.

77. In cross examination he stated that he captured the lines of the 1st and 3rd accused in Mlolongo along Mombasa road and that on the 7th the 1st accused received Kshs. 500 at 21. 49. 37 hrs from the cell phone number 0729348529 belonging to PW11 Inspector Memusi. He denied manufacturing the evidence and stated that he pulled the data and supplied to the investigation team and that it was not possible for him to establish that the registered owner of the line is the one who was using it at the material time.

78. PW28 COR. Julius Kiemawas on 8th assigned to investigate the matter where the deceased an employee of Nakumatt holdings was gunned down. He recorded the witness statements and on the 11th day attended the post mortem examination at Lee funeral home during which a bullet head and fragments were removed from the body and taken for ballistic examination. On the 8th day of June 2015, he accompanied SGT Bondo to the office of OCPD Gigiri , who instructed them to proceed to Spring Valley station where they met INSP. Memusi with PW1 who had some information that he had been tasked by the 1st accused who was stationed at the station to trail and identify motor vehicle registration number KCA 303L from a specific point up to his residence, but he did not succeed and that on another date he had gone to Mombasa road with the first accused and the 2nd accused who was a Boda Boda rider and witnessed Momanyi Shoot the deceased.

79. They were also told by Inspector Memusi that PW1 had helped them recover a pistol from the 1st accused, which had been submitted to the ballistic experts which confirmed that it had fired the spent cartridges which were found at the scene of the shooting. From the records he confirmed that the said fire arm had been robbed from PW5 Newton Osiemo. On 23rd June he arrested the 3rd Accused at his place of work and that the 1st and 2nd accused persons were arrested on the same day by Officers from the flying squad and handed over to him for investigations.

80. He sought to establish whether there had been communications between the 1st 2nd and 3rd accused persons and PW1 in terms of Mpesa and confirmed that on the 7th of May 2015 the 1st accused had transferred to the 2nd accused Kshs. 600 and Kshs. 300 to the account of PW1. He also established that the 3rd accused had transferred Kshs. 10000 to the Mpesa account of the 1st accused person. On 28th June, there was fund transfer from the Mpesa account to a Till Agent Deposit from the account of the 3rd accused person.

81. It was his evidence that in the course of his duties the deceased had managed to point out cases where Nakumatt holdings had lost money through fraud.They picked the two cell phones, bank cards and safaricom card from the house of the third accused where there was a photograph of the1st accused which had been taken at a function and that the items were listed down for analysis.

Defence Case 82. When put on their defence, the 1st Accused DW1 Ezekiel Momanyi gave a sworn statement that he was employed in the police force in the year 2001 and at the time of his arrest on 22nd June 2015 he was serving at Runda Police Station from where a search was conducted in his house and his mobile phones taken.He was informed that he had been connected with the death of the deceased and he told them that the only person he knew set Nakumatt was the 3rd accused whom he came to Know on 1st of November 2014 through his cousin who had a matatu plying Kayole route called Tom who had requested him to use his matatu to ferry people to the 3rd accused home for his wife’s graduation party. He thereafter visited his rural home for a burial.

83. It was his evidence that the 3rd accused never shared with him any issues at his place of work. He denied having spoken to PW1 in the month of May and that he did not have any other gun save for the one he was officially issued with and that the subject gun was never recovered from him, based on the report filed from Loresho Police Station. He stated that he differed with PW11 who was his boss on the use of his private car which he had used and damaged but did not want to repair and that on the 3rd day of May 2015 the relationship worsened and he was not assigned duty during that week and that he was accused of this offence while he was on off duty.

84. He stated that on the 20th he was supposed to travel to Nakuru since he did not do so on the 3rd and once again PW11 denied him off and recalled him from nakuru on account that he was wanted in Nairobi.He stated that on the 7th he was on Mombasa road where he had gone to see Mr Mochoge who was working at Orbit Chemicals and that he did not kill the deceased. In cross examination by Mr Okeyo, he confirmed that he knew the 2nd accused as a Boda boda operator through PW1 who was also an operator and that he would only use him when PW1 was not available.

85. He confirmed that he had the cell phone number of the 2nd accused and that he was not with him on Mombasa road but had called him on some Kshs. 300 which he owed him. He confirmed that when he called him, he was on Mombasa road. He stated that he knew the 3rd accused and had in March attended his brother’s funeral in Kisii and that he paid him for the services of ferrying people to Kisii using his motor vehicle. He confirmed that he knew PW4 who was attached to the residence of Hon Peter Kenneth and that they were good friends but he used to arrest people and bring them to the station to mint money from them which was against the law.

86. He confirmed having been positively identified by PW13 and14 but they did not say that he committed the offence. He denied that they gave him any gun. In cross examination by Mr. Ogada He confirmed that he knew the 3rd accused because he had used his matatu which he paid for in three instalments.

87. DW4 Walter Martin Mochoge testified in defence of the 1st accused and stated that he was his first cousin and that they used to visit each other. He stated that the 1st accused visited him on the 7th at 4. 30 pm at his place of work and they agreed to meet at Connection Bar at Mlolongo and he joined him there at 5. 00pm and were together until 8. 00 pm when they parted company. On 20th he came to learn that he had been arrested in regards to this offence and that he was with him between 4. 30 and 8. 00 p.m.

88. In cross examination, he stated that when the accused visited him at the place of work, he directed him to go to connection bar and that he did not know what he was doing between 4. 30 and 5. 00 when they met and that when he came to see him he was alone and not driving and neither did he have a car at Connection Bar. He stated that he called the accused for his where about outside the time they were together.

89. DW2 Dennison Mose Marokogave unsworn statement in his defence and stated that he was a Boda Boda operator and his wife had a Kiosk at Pipeline Area. He denied ever witnessing any killing and that he was arrested on 22nd June 2015 by the police who asked him if he had witnessed the killing of the deceased and that they assaulted him and kept him in custody and forced him to sign a statement whose content he denied.

90. DW3 Philip Manyura Marokogave a sworn statement in his defence and stated that he was not related to the 2nd accused. He denied committing the offence herein. He stated that PW1 did not identify him in Court and stated that he was not the Philip he had spoken about as was the evidence of the witnesses from Nakumatt who stated that they did not know how he was linked to the offence, as his name did not appear in the Audit report, which the deceased was working on. He stated that he owed the 1st accused money for ferrying relatives to Kisii and he paid him by instalments.

91. It was his evidence that he did not have any grudge with the deceased who had even visited his rural home for the burial of his brother and that on the 8th after his death, he is the one who led the delegation from Nakumatt who visited his home. He was later on arrested by a group of eight Police Officers who searched his office and took away his personal lap top, before going to his home for a further search and was later on joined at the police offices by the 2nd accused whom he did not know before the said date.

92. It was his evidence that throughout the case, none of the prosecution 28 witnesses mentioned his name as having been involved in the death of the deceased. In cross examination by Mr Okeyo, he stated that he knew the 1st accused in November 2014 and that he paid him some money through Mpesa which did not indicate the purpose which was only known between them. He stated that he was aware of the Nakumatt audit report, and that his name as not in the said report. He confirmed that he was on duty on the material day the 7th from 8. 00am until 4. 00 pm when he left for Juja to meet with his supervisor as he was a PhD student, he then went to Kitengele when he was called by a Mr. Limo who broke to him the news of the death of the deceased.

Submissions. 93. On behalf of the first accused, he filed his personal submissions in addition to that of his Advocate, the contents of which were similar. It was submitted that PW1s account on how he recovered the subject gun from the 1st accused was not true as a civilian could not disarm an armed police officer and that there was inconsistence on its recover as per the evidence of PW11. It was therefore submitted that mere suspicion however strong cannot be a basis for conviction as was stated in the case of Mary Wanjiku Gichira v Republic.

94. It was submitted that the prosecution failed to establish the doctrine of common intention between the accused and the perpetrators of the murder and that the prosecution witnesses failed to demonstrate that there was a plan on how to assassinate the deceased prior to the incidence as was stated in the case ofWanjiku D/O Wameo Criminal Appeal No.318 AND 329 of1995.

95. It was submitted further that critical witnesses were not called including OCS spring valley Mr Kioko who took the gun from PW1 CPL Jeremiah Makarimo who was with pw11, and officers from the flying squad and therefore the court should make adverse inference on the said evidence as was stated in the cases of Bukenya v Uganda [1972] Ea 549 And Juma Ngondi v Republic [1982-88] eKLR.

96. It was stated that there were material contradiction inconsistencies and lock of corroboration in the evidence tendered by the prosecution which the accused raised including the evidence of pw1, pw4, pw8, pw12 pw13 pw14 and pw28(the Investigating officer) which should not be relied by the court. In support of this contention reference was made to the case ofDavid Ojeabuovs Federal Republic Of Naigeria[2014] LPWLR-2255(CA). It was contended that the said contradictions cannot give corroboration needed to prove the case in support of which the following cases were tendered: Director Of PublicProsecution Hester[1972]3AER 1056, Director Of Public Prosecutionvs Kilbourne [1973] AER440 and Denis Muchoki Mugo &2others vs R [2008] eKLR.

97. It was submitted that the evidence ofPW1 could not be trusted as he got confused while he was testifying and therefore his evidence lacked credibility. It was contended that PW11 and 12 could not be trusted and that they set out to frame the 1st accused out of malice due to a grudge between the accused and pw11 on the use of his motor vehicle, in support of this the following cases were referred to: Omuroni v R (2002)2ea508, Ndungu Kimani v R (1979) Klr282.

98. It was submitted that PW1 was a hostile witness and should have been treated as such having changed his earlier recorded statement as provided for under section 163 of the evidence Act. It was contended that the identification pared conducted was not safe as the procedures were not followed in support reference was made to the case of James Tinega Omwenga v R Criminal Appeal No 143 of 2011 and Kariuki Njiru& 7 others v R Criminal Appeal no 6 of 2001.

99. It was contended that the circumstantial evidence tendered to connect the accused with the offence did not meet the legal threshold as stated in the case of SAWE v R (2003) eKLR as the fact that the accused was on Mombasa road did not mean that he was at the crime scene taking into account the evidence of DW4. It was submitted that the accused gave a plausible defence having put forward an alibi defence as was stated in Ugandav Sabyala[1969] EA 204.

100. It was submitted that the confession by the 2nd accused was not admissible as it was irregularly admitted by the court contrary to section 25A of The Evidence Act as the 2nd accused was not accorded a chance to bring in a third party. It was contended that Pw23 Tukisho who recorded the statement was part of the investigating team, it was therefore prejudicial to the accused as was stated in the case of Njuguna s/o Kanyuru v R [1921] EACAvol16.

101. It was finally contended that the murder weapon was not established as PW15 did not explain the process of examination to enable him reach the conclusion he made. It was submitted that he failed to explain the uniqueness of the tool marks that were left on the cartridges, in support of this line reference was made to Utrata, Dave, Johnson Marcus(october2003)” Magnetic Particle Recoveryof Serial Numbers”and 2009nas Reporton the current state of various forensic field in the united states.

102. It was therefore submitted that the prosecution failed to prove its case beyond reasonable as required in law and it was only morally just that the1staccused be acquitted.

2ndand 3rdAccused Submissions. 103. It was submitted that there was no evidence tendered by the prosecution proving murder or any offence against the two. The prosecution evidence was that the 2nd accused drove the 1st accused to the scene but there was no evidence that he knew or was aware of what the 1st accused was going to do and that the evidence that he was paid more than the agreed fare was only contained in the repudiated confession which did not constitute the offence of murder. It was submitted he knew the 1st accused as a police officer who hired him to take him to a place where he shot someone and that failure to report a crime does not constitute murder.

104. It was submitted that although the prosecution was allowed to produce a retracted statement under inquiry, the said statement is neither a confession to a murder nor admission of any offence and that instead of embracing him as a witness the prosecution turned on him and charged him. It was contended that the said confession did not comply with the rules and was contrary to article 49 of the constitution for which reference was made to R v Kibon Kibelion [2018] eKLR.

105. On the 3rd Accused, it was submitted that there was no evidence that placed him at the scene and that the evidence against him was purely based on suspicion. The prosecution star witness stated in his evidence that he was not the Philip whom he had seen with the 1st accused during dick identification and that upon his arrest no identification pared was conducted.

106. It was contended that the hypothetical motive by the prosecution was debunked as there was no evidence tendered to show that he was one of the Nakumatt staff who was being investigated or audited by the deceased. It was contended that motive must be proved beyond reasonable doubt as was stated in Joseph Kimani Njau v R [2014] eKLR. It was submitted that failure on the part of the prosecution to produce the audit report created a wide lacuna on the prosecution case as it was impossible to link the accused with it so as to create the motive.It was submitted further that there was another Philip who was working with the deceased and the accused who was not eliminated as being involved as no evidence was tendered to rule out the fact that they were also known to the 1st accused.

107. It was submitted that the evidence against the 3rd accuse did not amount to circumstantial evidence and that none of the items collected from his house directly or indirectly connected him with the offence. It was submitted that a family photograph with the 1st accused and small sums of money sent to him by the 3rd accused which he accounted for did not connect him to the murder.

108. It was submitted that the 2nd and 3rd accused persons gave consistent evidence in their defence denying involvement in the crime and that the 3rd accused was only charged because the 1stvaccused stated that he knew him and he was working at Nakumatt and that there was no proof rather than that of his insolvent in the crime and therefore the two should be acquitted.

109. The prosecution through Mr Okeyo opted not to file the final submissions and stated that he would rely on the submissions at no case to answer and the evidence on record and therefore left it to the court to make determination thereon.

Analysis And Determination. 110. To sustain a conviction on a charge of murder, the prosecution is under evidential and legal duty to prove beyond reasonable doubt all the elements of the information and in particular, the fact and cause of death, that the said death was caused by unlawful act on the part of the accused persons with malice aforethought and in this case that the accused persons who are charged together had a common intention to cause the death and acted on the said intention.

111. As I have stated before, whereas the accused persons were charges together, they retain their individuality and must be treated as such throughout the trial, as the same can even testify against each other and shall, in this judgement treat them as such, see R v Joseph Kuria Irungu alias Jowi & another [2020] eKLR.

112. The fact and cause of death of the deceased was not disputed throughout this trial. PW1 saw him being shot at, PW2 his dear wife received a cell phone call from someone who identified himself as a police officer, and informed her that he was at the police station, only to break the sad news of his death, which she confirmed to be true at the Lee funeral home. PW10 the first police respondent to the scene confirmed that he was indeed dead inside his BMW motor vehicle, which fact was corroborated byPW3, PW8, PW9 and the 3rd Accused his co-workers at the Nakumatt.

113. The cause of death was confirmed by the evidence of PW19 Dr. Dorothy Njeru a Government Pathologist who conducted a post mortem examination on the body which was identified to her by the deceased brother Timothy Kamau and his wife in the presence of PC Julias Kiama from CID Makadara, who stated that the cause of death was head and spinal injuries due to gunshot.

114. The body of the deceased was later buried and remains so buried since 2015 and therefore find and hold that the death and cause thereof was proved beyond any reasonable doubt.

115. On whether the said death was caused by an unlawful act on the part of the accused persons, I would state that the 2nd accused, the evidence tendered by the prosecution is that the 3rd accused paid the 1st accused some money so as to eliminate the deceased who was an Internal Auditor with the Nakumatt and to execute this assignment he was taken to the scene by the 2nd accused on a motor cycle. The evidence tendered against the 2nd accused at the close of the prosecution case was that PW1 the prosecution star witnesses introduced him to the 1st accused whom he took to the scene along Mombasa road for which the 1st accused paid him for the services through Mpesa which was confirmed through the call data produced in court.

116. After coming from the scene the 2nd Accused went straight to PW1 to whom he reported what he had witnessed and was later on taken to PW11 a Police officer. As submitted by Mr Ogada, there is no evidence tendered by the prosecution to prove that the 2nd accused knew of what was going to happen and neither is there any evidence that he had any joint intention to commit the alleged murder. The only evidence linking him to the offence is his alleged confession, which he gave at the time when he reported the offence and as submitted by his Advocate, his role was only limited to giving an account of what happened.

117. Since he was charged jointly with the 1st and the 3rd accused persons, the state was to adduce evidence to prove the element of common purpose as provided for under section 21 of the Penal Code which the prosecution made no attempt to do. There is no evidence tendered before the court to prove that there was any common intention, neither was there any evidence that the 2nd accused was an accessory after the fact, as the evidence on record clearly shows that he never assisted any of his co accused to escape.

118. There is further no evidence tendered to prove e that the 2nd accused had any motive to cause the death of the deceased. In as much as the 2nd accused was silent on what actually took place, in a criminal trial the burden of proof, always remain with the Prosecution and an accused person is under no obligation to offer any explanation. I would therefore agree with the submissions by Mr Ogada that instead of embracing the 2nd accused as one of their most potent witness the prosecution for reasons which the court cannot understand, as there was no witness who attempted to explain, including the Investigating Officer, as to why the 2nd accused was charged with this offence a burden which he has carried for the last seven years. The prosecutor opted to charge him with the offence.

119. From the evidence tendered I find and hold that the prosecution failed to prove the elements of the offence of murder against the 2nd accused and accordingly acquit and discharge the same of the charge of murder. He shall be set free forthwith unless otherwise lawfully held. And it is ordered.

120. As regards the 3rd accused, the prosecution case against him was purely based on circumstantial evidence, as there was no direct evidence tendered by the prosecution to prove that he was involved in the murder of the deceased.

121. The jurisprudence on circumstantial evidence in Kenya, as they say is well settled. The High Court in the case of Sylvester Mwacharo Mwakeduo v R [2019] e KLR thus; be relied on to prove a case to the required standard of beyond reasonable doubt. For circumstantial evidence to form the basis of a conviction several conditions must be satisfied to ensure that it points only to the guilt of the accused to the exclusion of others. This test has previously been applied by this Court in a myriad of cases for instance in the case of Judith Achieng’ Ochieng’ v Republic, Criminal Appeal 128 of 2006, this Court stated the law as follows:-It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:-i.The circumstances from which the inference of guilt is sought to be drawn must be cogently and firmly established;ii.Those circumstances should be of a definite tendency unerringly pointing towards the 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 none else;iv.In other words, in order to justify a finding of guilt, the circumstantial evidence, in its totality, ought to be such that the incriminating facts lead to the unimpeded conclusion of guilt and that there are no co-existent facts that are capable of explanation upon any reasonable hypothesis other than that of the accused’s guilt.”

122. The Court of Appeal in the cases of Ahamad Abolfathi Mohamed & Another V Republic[2018] E KLR had this to say:“Before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the Accused person, and to no other person, as the perpetrator of the offence. In Abang’a alias Onyango v R CR. App. No 32 of 1990, this court set out:-“It is settled law 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 sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; (iii) the circumstances taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within al human probability the crime was committed by the Accused and none else.”

123. In this case the following circumstantial evidence were advanced by the prosecution against the 3rd Accused person, that he was an employer of Nakumatt and a friend of the 1st accused who is alleged to had shot the deceased so as to stop him from investigating some fraud which had been committed at the said firm and according to the evidence of Pw1 he paid the 1st accused some Kshs. 80000 for the said job when they were together with a promise to pay more when the job was done.

124. That when the same as arrested and his cell phones analyzed, there were confirmation of some payments made by him to the 1st accused through the M.3pesa platform and from his house a family photo with him, his family and the 1st accused was recovered, thereby linking them together.

125. The prosecution’s star witness when testifying in court stated that the only remarkable thing about the 3rd accused was that both himself and the 1st accused were from the same tribe and were all from Nakuru, however when he was told to identify the 3rd accused on the dock his evidence was clear that the person before the court was not the Philip he had seen with the 1st accused.

126. The prosecution witnesses who were employees of Nakumatt, all stated that the 3rd accused was not among any of the employees who were being investigated for fraud and neither had he been charged for the same along with the other employees, thereby eliminated the theory of the prosecution that he hired the 1st accused to eliminate the deceased. In cases based on circumstantial evidence, one of the link which joins the chain of event and which he prosecution must prove is motive, as was stated by this court in the case of Republic vs Elizabeth Anyango Ojwang [2018] e KLR , to the effect that in cases where the prosecution case is solely based on circumstantial evidence it is very important for the prosecution to establish motive as one of the chains linking the accused to the crime and the prosecution is not able to establish a motive behind the alleged crime, it assumes importance as proof of motive on the part of the accuse person to commit the offence satisfies the judicial mind about the authorship of the crime. In the absence of motive, the court is then required to have a deeper search into the circumstantial evidence tendered so as to link the accused to the crime.

127. Further the prosecution attempt to link him with the threating messages that was sent to employees of Nakumatt from one Bernard Anyona was discounted by the Investigating Officer PC Kiama, and no attempt was made by the prosecution to join the link in this chain. The other circumstantial evidence which the prosecution attempt to prove but which they failed to do at the close of its case was an attempt to link the 3rd accused with the purchase of some matatu in Mombasa through PW20, his taxi driver friend Kiptoo, which to my mind was an attempt to link him to the fraud in Nakumatt, so as to show that the said Matatu was a proceeds from the fraud at Nakumatt or that he had some un explained source of money.

128. This theory was again discredited through the evidence of PW21 Wilfred Kemunto Ndemo and Tom Opiyo whose evidence was that the only money the 3rd accused contributed towards the purchase was Kshs. 40000, on behalf of his sister and the mere fact that the 3rd accused joined them in Mombasa together with his family and according to the evidence of PW20 did not want his wife to know of the purchase of the matatu, without more evidence cannot link the accused to the ownership thereof all the families are dynamic with the one challenge of communication.

129. As rightly pointed out by Mr Ogada, the prosecution failed to tender into evidence the audit report from nakumatt and further failed to call as a witness the other Philip who was working at Nakumatt and whose region had been mentioned as one of those that had been affected by the fraud and as at the close of this case despite the fact that the both the 1st and the 3rd accused had confirmed that they knew each other, in the face of the evidence of PW1 there remains a doubt in the mind of the court as to whether that Philip is the one the witness had seen. The mere fact that all the star actors in this case were Kisii’s, the court was not told, which the prosecution was under a duty to do by way of evidence why the other Philip was eliminated as a potential suspect and whether according to the evidence of PW1 there was another Philip who had been dismissed from the employment of Nakumatt, the benefit of which the 3rd accused is entitled.

130. The 3rd accused as is required in law gave a plausible defence, he accounted for the money which he had given to the 1st accused, he was the Head of delegation which visited the home of the accused upon his death, he had no ill motive against the same, who was promoted to a more senior position despite the fact that he was more qualified. He accounted for his friendship with the 1st accused which act of friendship was the link between him and the crime herein. There was no evidence that he is the Philip who paid the 1st accused Kshs.80000.

131. Whereas there remains a strong suspicion of the possible involvement of the 3rd accused in the murder of the deceased based on the evidence of PW1, mere suspicion however strong cannot form a basis for conviction in criminal case, more so the one based on circumstantial evidence, whose chain had been broken in several places as stated herein above and I would only add for effect purposes the words of this court in R v Elizabeth Anyango Ojwang (supra)thus: “22. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. When the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubt. The court must be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between “may be true” and “must be true” and the same divides conjectures from sure conclusions, see Navaneetha Krishnan v The State By Inspector of Police – Supreme Court Of India, Criminal Appeal No. 434 Of 2013. From the line of authorities on circumstantial evidence the court has to judge the total cumulative effect of all the proved circumstances each of which reinforces the conclusion of the guilt of the accused person and if the combined effect of such circumstances is taken to be conclusive in establishing the guilt of the accused the conviction would be justified.”

132. From what I have stated herein it follows that there is a lacuna in the prosecution case against the 3rd accused, the gaps which perhaps they expected the accused to fill for them and therefore find and hold that the prosecution failed to prove to the required standard its case against the 3rd accused and accordingly find the same not guilty of the charge of murder and acquit the same. The 3rd accused shall be set free forth with unless otherwise lawfully held and it is ordered.

133. As regards the 1st accused, the prosecution evidence tendered placed the same at the scene. There is the evidence of PW1 who was known to him and who had been recruited as a Police Informer leading to a working relationship between him and the Police Officers at the Spring Valley police station.

134. The said witness testified before the court under witness protection and whereas the 1st accused through his testimony tried to discredit his evidence, he admitted that he knew him. In the course of their interaction, he noticed that the same was keeping an additional gun in his car at a special place he had created for it. This gun turned out to be the murder weapon.

135. Credible and believable evidence was tendered in court on how the said gun was stolen from PW5 who was a licenced civilian gun holder and how the said gun was handed to the accused person by PW13 and PW14, who approached PW12 SSG Peter Yego to assist them get the said gun to the police, and it is PW12 who then roped the 1st accused who was a member of SPIV a special police formation dealing with crime and that the said gun was handed over to the accused.

136. The fact that the gun was handed over to the accused was corroborated by the evidence of PW4 Corp. Timothy Chege whose evidence was that the accused approached him on 4th November 2014 to assist him confirm the details of the said firearm which according to him had been brought to him by a watchman who claimed to had picked it after it had been dropped from a motor vehicle, the prosecution star witness PW1 confirmed that during the said period of time the 1st accused had the murder weapon which he kept in his motor vehicle and PW13 and 14 positively identified the accused at an identification parade as the person they had handed over the gun to.

137. Whereas the accused has through his submission, raised issue with the way the recovery of the said gun was done and recorded in the OB, I find the explanation given by PW11 believable, since the accused was a serving Police Officer who had been accused by a civilian to be renting out his gun to criminal, the aid civilian needed to be protected and was so protected by the police in their report as to how the said gun was recovered. That this was the usual police practice was confirmed by P.C. Yeso on that the 1st accused had intended to when reporting the recovery of the weapon.

138. The fact that the said gun was used to kill the deceased was confirmed through the evidence of PW15 Chief Inspector Alex Chirchir who examined the cartridges called from the scene and the bullet found lodged in the body of the deceased and confirmed that they were fired from the gun which the accused had in his possession. Further at the time the said gun was handed over to the accused, it had fifteen rounds of ammunition and by the time it was handed over to PW11, it had eight rounds of ammunition.

139. The possession and the use of the said gun, brought the 1st accused within the scope of the doctrine of resent possession as was defined in the case of Kevin Nyongesa v R [2017] eKLR thus “19. The meaning of possession was elucidated in Kinyatti v R [1984]eKLR where the Court of Appeal held that in defining “being in possession”, full control of the object or article in possession of the accused is not necessary nor is it a requirement of that definition. It further held that in order to prove possession, it is enough to prove either that the accused was in actual possession of the item or that he knew that the item was in the actual possession or custody of another person or that he had the item in any place (regardless of whether the place belongs or is occupied by him or not) for his use or benefit or another person. The Court further explained that knowledge that the item is in actual possession or in one’s custody or of another person may be inferred from the circumstances or proved facts of the particular case.”

140. The first accused when given any opportunity in his defense to offer an explanation on how he came into possession of the said gun was silent only to advance a theory in his submission that there was no way a civilian PW1 would have disarmed an armed police officer contrary to the evidence on record that the 1st accused gave the gun voluntarily to PW1,on the instructions of PW11and contrary to the 1st accused assertion that he was framed by PW11, I find no evidence tendered either by way of cross examination or in chief upon which I can come to that conclusion.

141. On the accused alibi defense, whereas it is not for the accused person to prove the said defense, in this case the evidence of DW4 to the extent that he was with the accused person, did not dislodge the evidence that he was at the sign before going to meet the said witness. PW1 saw the accused whom he knew every well and who had called him to follow him with his motor vehicle shot the deceased, whose motor vehicle they had been following. The 2nd accused in his statement under caution and inquiry and in his report to PW1 and11 confirmed that in deed he had shot the deceased and further the gun with had been recently given to the accused was confirmed to be the murder weapon. Further the M pesa account for the 1st and 2nd accused corroborated the evidence of PW1 that the 2nd accused took the 1st accused to the murder scene for which he paid him through Mpesa .

142. The evidence tendered by PW 27 Daniel Khamisi confirmed and corroborated the evidence of PW1 of the Mpesa payment by the 1st accused to both himself and the 2nd accused for the services of taking him to the crime scene before and on the material day. The call logs sand mast location further confirmed that the 1st accused was within the location of the crime scene.

143. I am not persuaded by the submission by the 1st accused that the murder weapon was not established and find and hold that lack of explanation as to process of examination does not vitiate the evidence of PW15 who was an expert in his field and whose conclusion remained un challenged at the close of the prosecution and defence case.

144. Whereas there were contradictions on the prosecution case, those contradictions where expected as not all human beings who have witnessed an action would be expected to give an almost similar account of what they witnessed as they did not witness the action, with the expectation of at some day being called to testify thereon ad having seen them testify before the court I have no reason not to believe their individual account as I look at the evidence in whole.

145. I therefore find and hold that the death of the deceased was caused by unlawful act on the part of the accused person, a police officer who was in possession of a firearm which was stolen from a civilian firearm holder as he confirmed to PW13 and 14 that it did not have police serial number and which gun PW1 had seen in his possession before the date of murder.

146. The final issue is whether the accused person had the necessary malice aforethought for the commission of the offence. According to PW1 the 1st accused had initially indicated to him that the deceased owed him some money which he had refused to refund and thy set on a mission to locate his residence so that he could deal with him. There is uncontroverted evidence that before the fatal day they had tried to follow the deceased, but the same was lucky as he was driving a German Machine BMW with was no match for the Chinese motor cycle they were using to track him down.

147. There is further evidence that the 1st accused was paid some Kshs 80000, by a person whom the police believed to be the 3rd accused to perform some duty on his behalf during the time when the deceased was killed.There is also evidence that the deceased who was an internal Auditor at Nakumatt and was auditing some fraud at the said firm, had received some threats to his life which threats continued to some other officers of the said firm soon after his death, thereby proving the motive for the murder beyond any reasonable doubt.

148. I have further taken note that the deceased was shot three time and on the ear and neck thereby bringing his action with the definition thereof as was stated in the case of R v Juma Kituko Mwambego [2020] eKLR thus “Malice aforethought is defined in Section 206 of the Penal Code in the following terms:(a)An intention to cause death or to do grievous harm to any person whether such person is the person actually killed or not.(b)Knowledge that the act or omission causing death will cause the death of or grievous harm to some person, whether such person is the person 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 be caused.(c)An intent to commit a felony.(d)An intention to facilitate the escape from custody of a person who has committed a felony.There are numerous authorities covering manifestation of malice aforethought in homicide cases on the charge under Section 203 of the Penal Code. For the offence of murder and proof of malice aforethought in Rex v Tubere s/o Ochen [1945] 1Z EACA 63, Eastern Court of Appeal observed:“In determining existence or nonexistence of malice one has to look at the facts proving the weapon used, the manner in which it is used and part of the body injured.”In the case of Hyam v DPP [1974] A.C. the Court held interalia that:“Malice aforethought in the crime of murder is established by proof beyond reasonable doubt when during the act which led to the death of another the accused knew that it was highly probable that, that act would result in death or serious bodily harm.”Some of the compelling evidence to infer malice aforethought is to be found in Ernest Asami Bwire Abanga alias Onyango v R (CACRA No. 32 of 1990) where the Court held:“the question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased.”

149. I am therefore satisfied and hold that the prosecution established beyond any reasonable doubt that the 1st accused had the necessary malice aforethought and therefore all the three elements of the offence were established. Having acquitted the 2nd and 3rd accused person the issue of common intention as submitted by the 1st accused does not arise.

150. I therefore find the 1st accused guilty of the murder of James Karanja on the 7th day of May 2014 along Mombasa road within Nairobi county. And it is ordered.

151. Before I pen off this judgement as submitted by Mr Ogada, unless the 2nd Accused, now that he has been acquitted offers to talk, this court and those who shall read this judgement will never understand why the 2nd accused was not made a State witness and why he carried the cross for the 1st accused for the last seven years.Further the court and those who will read the judgement will not understand if indeed it is the 3rd accused who had been seen by PW1 with the 1st accused and if so why he was unable to identify the same at the dock and further why the investigators did not deem it necessary to carry out an identification parade when he was arrested.

152. Further the court will not understand why the prosecution did not deem it necessary to investigate further the issue of fraud at Nakumatt and the threatening emails which were forwarded to the cyber-crime and why none of those employee of Nakumatt who were arrested and charged for fraud were never investigated for the murder as they say the blood of the deceased and his cry for justice might have been one of those that caused the death of the giant Nakumatt, as I have taken judicial notice that Nakumatt was never the same after the death of James Karanja and as at the time of this judgement the same had died and died with the Loyalty Points which I together with other Kenyans had accumulated and were unable to redeem because he was no more.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 11th DAY OF NOVEMBER 2022J. WAKIAGAJUDGEIn the presence of: Mr. Okeyo ……… prosecutorMr. Ogado for Mr. Mochere Advocate for the 1stAccusedMr. Ogada Advocate for the 2ndand 3rdAccusedCourt Assistant Yusuf