https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8331

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CRIMINAL CASE NO. E004 OF 2021** **REPUBLIC** **VERSUS** **DAVID MUTUKU NDEMWA …………………………….……..ACCUSED** **JUDGMENT** 1. The accused herein was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on 6th August, 2020, at Maseweni village in Yatta sub-county within Machakos County murdered Martha Mbele Thambu. 2. The accused person pleaded not guilty to the charge. 3. The prosecution called a total of 6 witnesses in support of its case. Briefly, they presented their case as follows; 4. **PW1, Dr. Muli Simon Kioko**, testified that he is a general practitioner based in Matuu and holds a Bachelor of Medicine and Surgery degree from the University of Nairobi obtained in 1988, with Licence No. A3342. He stated that on 8th August, 2020, he conducted a post-mortem examination on the body of the deceased, Martha Mbeke Thambu, at Mbaku Funeral Home in Matuu. The body was identified to him by John Kilonzo and Edward Mutiso in the presence of Sergeant Kyalo from Matuu Police Station. He described the deceased as a female aged about 72 years of medium body frame and approximately 5 feet 6 inches tall, whose body was well preserved at the time of examination. 5. He informed the Court that upon external examination, he observed peripheral cyanosis, bruises on the right side of the neck measuring approximately 2½ by ½ centimetres, and blood oozing from the mouth and nostrils. On internal examination, he noted destruction of tissues on the right side of the neck involving the mastoid muscle and blood collection in the chest cavity around the thorax. He formed the opinion that the deceased died as a result of strangulation. He thereafter filled and signed the post-mortem report dated 8th August, 2020, which he produced as Prosecution Exhibit 1. 6. During cross-examination, PW1 stated that he examined the deceased on 8th August, 2020, and estimated that she had died about a week before the examination. He clarified that although he studied pathology during his undergraduate training, he did not possess a master’s degree in pathology. He confirmed that there were bruises on both sides of the neck and explained that in cases of hanging, there are usually marks on the neck, while bruises may vary depending on the positioning of the fingers during strangulation. He further testified that approximately 1.5 litres of blood had collected in the chest cavity and that he did not find evidence of any pre-existing medical condition. He stated that he could not tell who inflicted the injuries. 7. Upon re-examination, PW1 explained that strangulation causes restriction and rupture of blood vessels, which in turn leads to bleeding. 8. **PW2, John Kilonzo** testified that he resides in Ivaani, Kangundo, and that the deceased, Martha Mbeke, was his sister. He stated that on 7th August, 2020, at about 12.00 p.m., he received a telephone call from a person known as Mulingi from Matuu informing him that the deceased had been killed. Following the call, he travelled from Kangundo to Matuu and arrived at the deceased’s home at about 5.00 p.m. 9. Upon arrival, he was informed that he was required at Matuu Police Station. He proceeded there and was informed that the body of the deceased had been taken to Mbaku Funeral Home, where he identified the body. He later returned the following day for purposes of the post-mortem examination and again identified the body of the deceased. 10. PW2 testified that upon viewing the body, he observed injuries on the neck. He stated that the neck appeared loose and that there was a cut on the throat. He also observed blood oozing from the mouth. Thereafter, he recorded his statement with the police. 11. During cross-examination, PW2 stated that the deceased died on 6th August, 2020, although he only received information about her death on 7th August, 2020. He confirmed that the deceased was his elder sister and stated that he was 74 years old at the time and 76 years old at the time of testifying. He further testified that he had been informed that the deceased had been killed by her employee, although he did not know the employee personally. He clarified that no one informed him that they had witnessed the killing. He reiterated that he saw the deceased’s body at the mortuary and observed blood oozing from the mouth. 12. **PW3, Edward Mutiso Ngui** testified that he resides in Matuu and works as a driver. He stated that the deceased, Martha Mbeke Ngui, was his maternal grandmother. He testified that on 6th August, 2020, the deceased closed her shop at about 7.30 p.m. together with her employee, David Mutuku, whom he identified in court as the accused person. PW3 stated that the deceased’s shop was located one plot away from his own shop and that he usually closed his shop at about 9.00 p.m. 13. He testified that on the following morning, he went to open his shop and left his wife at home, intending for her to join him later at about 9.30 a.m. His wife informed him that the security lights at the deceased’s home were still on, prompting him to tell her to wait as he would return. She then sent their children to check on the deceased. The children reported that the employee’s house had a padlock hanging on the door but it was not locked and that the employee was not inside and his clothes were missing. They also found that the deceased’s house had been locked from the outside using a padlock, and they returned without opening it. 14. PW3 testified that at about 10.30 a.m., he returned home together with the children and entered the employee’s house where he confirmed that the accused was not there and that his clothes were missing. His younger son, Selvin, who used to stay with the deceased, informed him that he could access the deceased’s house through a window. 15. PW3 explained that Selvin had been away visiting an aunt in Kithimani on the material night and that he would sometimes use the window to get food whenever the deceased was not there. Selvin then entered the deceased’s house through the window and informed PW3 that the deceased was covered with a blanket and was not responding. Since the house had three exits, PW3 instructed Selvin to open one of the doors that had been locked from the inside, which he did, allowing PW3 to enter the house. 16. Upon entering, PW3 found the deceased lying covered with a blanket. He uncovered her and observed blood coming from her mouth and nostrils, as well as marks on her neck. He immediately went outside and called the area headman, who in turn called the sub-chief. The local administrators later contacted the police, who came to the scene, observed the body and removed it to the mortuary. PW3 testified that he did not see the deceased’s phone when he entered the house and that he was not aware whether any other items were missing. 17. PW3 further testified that the accused, David Mutuku, disappeared after the incident. He stated that for about one year, neither him nor other family members knew the whereabouts of the accused until they later heard that he had been found in a hospital after hospital staff contacted the chief. He stated that they did not know how or why the accused had gone to the hospital. 18. During cross-examination, PW3 stated that on 7th August, 2020, he had initially sent his children, Stephen Muia aged 9 years, Faith Wayua aged 6 years, and Junior Mulwa aged 3 years, to check on the deceased. He clarified that Selvin, who entered the house through the window was 6 years old at the time and used to stay with the deceased. He testified that schools were closed at the time due to the Covid-19 pandemic. PW3 stated that Selvin was interviewed by the police but was only crying. 19. He further testified that the deceased’s house was large, consisting of 11 rooms and that there was no eyewitness to the incident because only the deceased and the accused were present at the home that night. He stated that the nearest neighbour lived about 150 metres away while his own home was approximately 200 metres away, and that screams could be heard from the deceased’s home if someone screamed. PW3 also testified that he observed nail marks on the deceased’s neck, although he conceded that he was not a doctor. He confirmed that the main door to the deceased’s house was locked from the outside but he did not see the key. 20. He further testified that the deceased’s phone was never found and that he was not present when the accused was arrested about one year later. He also stated that he was not informed whether the phone had been recovered. PW3 testified that he had never heard of any disagreement between the deceased and the accused. He further stated that although there had previously been an incident in which the deceased’s house was burnt, he denied allegations that the deceased was a witch. 21. Upon re-examination, PW3 stated that he could not recall when the deceased’s house had burnt or the circumstances under which the fire occurred because he had been in Nairobi at the time. He maintained that the deceased was not a witch. 22. **PW4, Jaquim Mbithi**, testified that he is a construction worker and resides at Masewani Village in Matuu. He stated that he knew the deceased as his neighbour, their homes being approximately 200 metres apart, although their parcels of land bordered each other. He described the deceased as an elderly woman aged about 80 years who operated a small cereal shop. He also knew the accused person, whom he stated had been employed by the deceased as a shamba boy and herder and was the only worker at the deceased’s home. 23. PW4 testified that on 6th August, 2020, at about 6.00 p.m., while going to buy meat from a butchery located near the deceased’s shop, he met the deceased in the company of the accused at the shop. He greeted them and later while returning home at about 9.00 p.m., he again met the deceased and the accused on the road as they were heading home. On the following day at about 10.00 a.m., while going to the market, he met a person named Alex who was on his way to sell cowpeas to the deceased. Alex informed him that the deceased had not opened her shop and that he had been told she had been killed by her worker. 24. PW4 then proceeded to the deceased’s home where he met the deceased’s grandson, Edward Mutiso, who informed him that the deceased had indeed been killed. PW4 testified that he entered the deceased’s house and proceeded to the bedroom where he found the deceased lying in a pool of blood while facing upwards. He observed blood oozing from her nose and noted that her fingers were injured and bleeding. He asked Edward Mutiso about the whereabouts of the accused and was informed that the accused had disappeared together with his clothes. PW4 stated that Edward informed the chief and sub-chief who later came to the scene together with police officers. The deceased’s body was subsequently removed to Mbaku Funeral Home. 25. He further testified that he was present when the post-mortem examination was conducted by Dr. Muli and identified the post-mortem report produced in court as Exhibit 1. PW4 also testified that the accused was eventually arrested on 8th February, 2021, after his aunt, Penina, who resided in Kitui and knew the accused as a neighbour, informed him that she had seen the accused admitted at Kitui Level 5 Hospital. PW4 relayed the information to Edward Mutiso and Mercy, Edward’s sister and together with Mercy travelled to the hospital where they confirmed that the accused had been admitted in Ward 6, Bed 21. They thereafter reported the matter to Kitui Police Station, leading to the arrest of the accused and his subsequent transfer to Matuu Police Station before he was charged in court. 26. During cross-examination, PW4 acknowledged that although he witnessed the post-mortem examination, his name did not appear among the witnesses listed in the post-mortem report. He reiterated that when he entered the deceased’s house, he observed blood oozing from her nose and injuries on her fingers, although he did not know whether those injuries had been captured in the post-mortem report. He clarified that he was not related to the deceased despite being neighbours. He confirmed that on the night of 6th August, 2020, he saw both the deceased and the accused at the shop and later at about 9.00 p.m. as they walked home together. 27. PW4 further testified that he only learnt of the deceased’s death on 7th August, 2020, through Alex. He stated that Edward Mutiso and Mercy Mbeke, who were the deceased’s grandson and daughter respectively, lived within the same compound as the deceased but in separate houses. According to him, Mercy’s house was situated about 40 to 50 metres away from the deceased’s house, while the accused’s house was approximately 10 metres away. 28. He expressed the view that the deceased had been suffocated, although he admitted he did not know whether she screamed during the night. He stated that he had only known the accused for about one week because the deceased’s previous worker, who had worked for about one year, had left at the end of July 2020 and the accused had taken over thereafter. 29. PW4 also testified that there was a great-grandson known as Selvin and a person named Maureen, though Selvin was not present during the incident. He confirmed that he did not hear any noise from the deceased’s home on the night in question. He further stated that announcements had been made over local radio stations indicating that the accused was being sought although he did not produce any such report in court. He reiterated that it was his aunt Penina who ultimately identified the accused at Kitui County Hospital, leading to his arrest on 8th February, 2021. PW4 stated that he did not know whether the accused and the deceased had been attacked by thugs on the night of 6th August, 2020, and conceded that he did not witness the killing of the deceased. 30. Upon re-examination, PW4 reiterated that his house was approximately 200 metres from the deceased’s house and that he therefore could not hear what transpired in the deceased’s house during the night. He also stated that when the accused was arrested, he did not claim that they had been attacked by thugs on the material night. 31. **PW5, Mary Mbeke Thambu,** testified that she resides in Nairobi and is a businesswoman. She stated that on 10th February, 2021, she received a call from Jacklyne Mbithi requesting her to accompany her to Kitui Level 5 Hospital to confirm whether the accused person had been admitted there. PW5 stated that prior to that date, she did not know the accused person. PW5 testified that she agreed to accompany Jacklyne Mbithi and that on the said date they travelled to Kitui and proceeded to Kitui Level 5 Hospital. She stated that Jacklyne Mbithi went into the hospital and confirmed that the accused, David, had indeed been admitted in Ward 6. 32. Thereafter, they proceeded to Kitui Police Station and reported the matter to the police. PW5 stated that they were assigned two police officers who accompanied them back to the hospital where the accused was arrested in their presence. They informed the police officers that the accused was a murder suspect in connection with the death of Martha Mbeke Ngui, whom PW5 referred to as their grandmother. She testified that after the arrest, the accused was taken to Matuu Police Station. 33. During cross-examination, PW5 confirmed that she did not know the accused before 10th February, 2021, and that she was not present on 6th and 7th August, 2020, when the deceased, Martha Mbeke, was murdered. She testified that the accused was arrested by officers from Kitui Police Station before being handed over to officers from Matuu Police Station. PW5 further stated that she had been informed that the accused had been admitted to hospital after allegedly taking poison, although she did not know whether that information was true. She also confirmed that she did not witness the accused murder the deceased. 34. Upon re-examination, PW5 stated that although she did not see the accused murder her grandmother, she believed he was responsible because he had been staying with the deceased and disappeared immediately after her death. 35. **PW6, Police Constable Mary Munyao,** testified that she is attached to the Directorate of Criminal Investigations (DCI) Thika West Sub-County and that at the time of the incident she was stationed at DCI Yatta. She stated that she participated in the investigations relating to the present case. PW6 testified that on 7th August, 2020, a report was made at Yatta Police Station through the area sub-chief of Masewani that a dead body had been found in a house and that the matter was suspected to be a murder case. Following the report, the Officer Commanding Station (OCS), Sergeant Kyalo and herself proceeded to the scene. 36. Upon arrival, they found a crowd of people gathered at the homestead. The relatives led them to a small house occupied by the employee of the deceased, who was the accused person herein, but who had already fled. PW6 stated that the house was opened and found to be untidy and messy, with utensils and other items scattered all over. 37. She further testified that they then proceeded to the main house and entered the deceased’s bedroom, where they found the body of the deceased lying on the bed covered with a blanket. Upon uncovering the body, they observed that the deceased was naked, with blood coming from her mouth and nose, and that she also had bruises on the neck. PW6 stated that they documented the scene and thereafter removed the body to Mbaku Funeral Home. 38. PW6 further testified that at the scene, the deceased’s mobile phone was missing and was switched off. Efforts to trace the accused were unsuccessful because both he and his phone could not be located. She stated that on 10th February, 2021, Sergeant Kyalo informed her that the accused had been traced at Kitui Level 5 Hospital after the deceased’s family members located him there. She testified that Sergeant Kyalo proceeded to the hospital on the same day and arrested the accused, who was later brought to Yatta Police Station, processed, and subsequently charged with the offence of murder. 39. During cross-examination, PW6 confirmed that the murder report had been made to Yatta Police Station on 7th August, 2020, by the area sub-chief. She stated that by the time police arrived at the scene, the deceased’s relatives had already accessed the house and discovered the body. She further testified that there were approximately 50 people gathered at the scene and that she spoke to some relatives who confirmed that the accused worked at the deceased’s home and had disappeared after the incident. PW6 stated that those relatives later testified as witnesses in court. She reiterated that when they examined the body, they observed blood on the mouth and nose, although by then it had stopped oozing because the deceased had already died. 40. PW6 further testified that although the deceased was naked, there was no evidence of sexual molestation. She also confirmed that the accused’s house was dirty and disorganized, with utensils lying on the floor. She stated that the deceased’s mobile phone was never recovered. PW6 further testified that at the time of arrest, the accused had been admitted at Kitui Level 5 Hospital for treatment after allegedly attempting to commit suicide. She stated that she was not aware whether the accused had instead been poisoned by chemicals he was using to spray cowpeas. 41. PW6 concluded by stating that the deceased’s relatives informed the investigators that the accused had been employed at the deceased’s home, had been the last person seen with the deceased, and had disappeared immediately after the incident. 42. At the close of the prosecution’s case, this Court found that a prima facie case had been established by the prosecution and that the accused was therefore put on his defence. He opted to tender a sworn testimony. 43. **DW1, David Mutuku Ndemwa**, testified that he comes from Katuku Village in Kabati, Kitui County, and that he is the accused person. He denied the charge of murdering Martha Mbeke and stated that the deceased had employed him to work for her. He testified that on 6th September, 2020, after closing the deceased’s shop located within the same compound as her homestead in Masewani, Yatta Sub-County, they both walked home together at about 7.30 p.m. 44. DW1 stated that upon reaching the gate to the homestead, they encountered four men. According to him, two of the men escorted the deceased into the homestead while the remaining two stayed with him and inquired where he slept. He testified that the men proceeded into his house and collected his clothes, after which a Probox motor vehicle arrived. 45. He stated that he was forced into the vehicle, blindfolded and assaulted while inside the vehicle. He further testified that he later found himself admitted at Kitui Hospital. He denied attempting to commit suicide and maintained that he had no disagreement or dispute with the deceased. He further denied killing her and stated that he did not know who was responsible for her death. He also testified that he had no conflict with PW3, Edward Mutiso. 46. During cross-examination, DW1 reiterated that the deceased was his employer and that on the material night they were alone when they closed the shop at about 7.30 p.m. He testified that upon reaching the gate, the four men appeared, with two accompanying the deceased into the house while the other two remained with him and asked where he lived. He stated that the men entered the homestead, one of them went into his house and collected all his belongings, including his clothes, which he kept in a bag. He testified that he used to keep all his possessions, including shoes, inside the bag and therefore nothing was left behind in his room. He denied having planned to leave and insisted that he was telling the truth. 47. DW1 further testified that he did not know the four men and that they assaulted him while inside the Probox vehicle, particularly hitting him on the head. He admitted that he did not have treatment notes to prove that he had received treatment for the alleged assault. He also testified that he did not know how long he stayed in hospital and that he never made a report to the police alleging that he had been assaulted or injured. He maintained throughout that his testimony was truthful. 48. Upon re-examination, DW1 stated that he was arrested while still admitted at Kitui Hospital and that he had remained in custody since his arrest. He reiterated that he did not know the individuals who allegedly abducted him. He also clarified that by the time he was in hospital he no longer had his belongings and that he had been provided with clothes while admitted there. 49. That marked the close of the defence case. I note that the accused’s counsel indicated to this Court that they will not be filing submissions. At the time of writing this judgment, the Respondent had not filed submissions either. I therefore proceed to determine this matter based on the evidence on record. ***Analysis and Determination*** 1. I have considered the evidence tendered by both prosecution and defence. It is the duty of the prosecution to prove the guilt of the accused to the required standard of beyond reasonable doubt. 2. The accused person is facing a charge of murder contrary to Section 203 of the Penal Code, which section provides that:- **“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”** 1. The standard of proof required is beyond reasonable doubt. In the case of ***Joseph Kimani Njau v Republic [2014] eKLR****,* the Court of Appeal stated that:- *“****In all criminal trials, both the actus reus and the men's rea are required for the offence charged; they must be proved by the prosecution beyond a reasonable doubt. The trial court is obliged to ensure that before any conviction is entered, both actus reus and mens rea have been proven to the required standard****.”* 1. In ***Anthony Ndegwa Ngari v Republic [2014] eKLR****,* the Court of Appeal identified that three crucial ingredients of the offence of murder that have to be proved for a conviction to be entered are as follows:- ***“For the offence of murder, there are three elements that the prosecution must prove beyond a reasonable doubt to secure a conviction. They 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. I will consider these elements of the offence to determine whether the prosecution has proved the charge against the accused beyond a reasonable doubt. 2. As regards the death of the deceased and the cause thereof, the evidence on record leaves no doubt that Martha Mbeke Thambu died and that her death was caused unlawfully. PW1, Dr. Simon Kioko Muli, conducted the post-mortem examination on the body of the deceased, which body was identified to him by among others, PW2, a brother to the deceased. PW1, in his testimony, observed bruises on the neck, blood oozing from the mouth and nostrils, destruction of neck tissues involving the mastoid muscle and blood collection in the chest cavity. His professional opinion was that the deceased died as a result of strangulation. 3. The post-mortem report was produced as Prosecution Exhibit 1. The evidence of PW2, PW3, PW4 and PW6 corroborated the medical findings. They all testified to observing injuries around the deceased’s neck as well as blood emanating from the mouth and nostrils. PW6 further testified that the deceased’s body was found lying naked on the bed and covered with a blanket. There was no evidence suggesting that the death arose from natural causes, accident or lawful justification. The injuries sustained by the deceased were consistent with a violent attack. Consequently, this Court is satisfied that the prosecution proved beyond reasonable doubt both the fact of death and that the cause of death was manual strangulation. 4. On whether it was the accused person who committed the unlawful act that caused the death of the deceased. There was admittedly no eyewitness who saw the accused strangling the deceased. The prosecution case therefore rests entirely on circumstantial evidence. The law regarding reliance on circumstantial evidence is well settled. In the case of ***Sawe v Republic [2003] eKLR****,* the Court of Appeal held that in order for circumstantial evidence to justify a conviction, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. 5. I have carefully considered the chain of circumstances established by the prosecution. The evidence of PW3 and PW4 placed the accused with the deceased on the evening of 6th August, 2020, shortly before her death. PW3 testified that the deceased closed her shop at about 7.30 p.m. in the company of the accused and that they went home together. PW4 similarly testified that he saw the deceased and the accused together at the shop at about 6.00 p.m. and again later at about 9.00 p.m. as they walked home. The accused himself confirmed in his defence that he and the deceased were together that evening and walked home together after closing the shop. 6. The following morning, the deceased was found dead inside her bedroom. The accused, who ordinarily resided within the same homestead and whose house was only about 10 metres away according to PW4, had disappeared. PW3 testified that the accused’s room had a hanging padlock, that the accused was nowhere to be seen and that all his clothes were missing. PW6 equally confirmed that when police visited the accused’s house, it appeared abandoned, untidy and that the accused had fled. 7. The disappearance of the accused immediately after the death of the deceased is a significant inculpatory circumstance. The accused remained untraced for approximately one year until he was found admitted at Kitui Level 5 Hospital in February 2021. PW4, PW5 and PW6 all testified regarding the circumstances leading to his arrest. The prolonged disappearance of the accused immediately after the incident and his failure to report the alleged attack on himself raises serious doubt as to the truthfulness of his defence. 8. The accused’s defence was that upon arriving at the gate to the homestead, they encountered four unknown men who allegedly abducted him, assaulted him, took his belongings and later left him at Kitui Hospital. However, the Court finds this explanation implausible and unsupported by any independent evidence. First, the accused did not report the alleged kidnapping or assault to the police at any point despite claiming that he had been violently assaulted. He did not explain for how long he was held in captivity upon the alleged abduction, if at all he was abducted. Secondly, he did not produce any treatment notes or medical evidence to support the alleged injuries. Thirdly, he could not explain why the alleged attackers would spare him, abduct him and simultaneously kill the deceased without any apparent motive. Fourthly, despite claiming that unknown persons abducted him, the accused never raised this explanation until his defence. PW4 specifically testified during re-examination that upon arrest, the accused did not claim that they had been attacked by thugs on the material night. 9. The Court further notes that the deceased’s mobile phone disappeared after the incident and was never recovered. While no direct evidence linked the accused to the missing phone, the fact that he disappeared immediately after the death and remained away for a prolonged period strengthens the inference that he fled after the commission of the offence. 10. Flight by an accused person, though not conclusive proof of guilt, may amount to corroborative conduct pointing towards a guilty mind when considered together with other evidence. Notably, his resurfacing after this long period was not even voluntarily on the part of the accused. It was by sheer coincidence when he was stumbled upon by PW5 and other deceased family members. While an accused person bears no burden to prove his innocence, any defence brought forward by him must first meet the evidentiary threshold. It must be credible, trustworthy, consistent and acceptable. This Court find his defence remote and not believable. It does not rebut the prosecution case that is anchored on circumstantial evidence. 11. The totality of the circumstantial evidence forms a complete chain pointing irresistibly to the accused person and no one else. The accused was the last person seen with the deceased, all heading to the home of the deceased. He resided within the same compound. The deceased was found dead shortly after they returned home together. The accused disappeared immediately thereafter together with all his belongings and remained untraceable for close to one year. His explanation regarding abduction by unknown people is unsubstantiated and incredible. This Court is therefore satisfied that the prosecution proved beyond reasonable doubt that it was the accused who unlawfully caused the death of the deceased. 12. The final issue is whether the accused acted with malice aforethought. Section 206 of the Penal Code provides circumstances from which malice aforethought may be inferred, including an intention to cause death or grievous harm. 13. In the present case, the nature of the injuries inflicted upon the deceased clearly demonstrates malice aforethought. PW1 testified that the deceased died from strangulation and that there was destruction of tissues around the neck together with rupture of blood vessels. Strangulation is not an accidental act. It involves deliberate application of force to the neck sufficient to obstruct breathing and blood circulation. The injuries sustained by the deceased were severe and directed at a vulnerable part of the body. 14. The act of strangling an elderly woman until death demonstrates a clear intention to either kill or to cause grievous bodily harm. The conduct of the accused after the incident equally points to a guilty mind. Instead of reporting the alleged attack or seeking assistance for the deceased, he disappeared from the scene immediately after the incident and remained in hiding for close to one year. Such conduct is inconsistent with innocence and supports an inference of malice aforethought. 15. Having carefully analysed all the evidence on record, this Court finds that the prosecution proved beyond reasonable doubt all the ingredients of the offence of murder against the accused person. The prosecution established that the deceased died as a result of unlawful strangulation, that the accused person caused the said death and that he acted with malice aforethought. 16. Accordingly, this Court finds the accused person, David Mutuku Ndemwa, guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and convicts him accordingly. 17. Orders accordingly. ***Delivered, Dated and Signed virtually this 12th day of June, 2026*** **RHODA RUTTO** **JUDGE** **In the presence of;** **Court Assistant: Selina** **Ms. Machuma for state** **Accused present from Machakos Main Prison**