https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11640

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAIROBI** **CRIMINAL CASE NO. E026 OF 2021** **REPUBLIC-----------------------------------------------------------PROSECUTION** **VERUS** **JAMES KINUTHIA SILIMA ALIAS ‘KAJIM’---------------------ACCUSED** **JUDGMENT** 1. The accused person was charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. 2. The particulars of the offence were that on 19th March 2021 at Kasabuni Estate Area within Starehe Sub County in Nairobi County the accused person JAMES KINUTHIA SILIMA ALIAS ‘KAJIM’ murdered PETER NG’ANG’A NYAMBURA. 3. The prosecution called a total of 9 prosecution witnesses in support of the case. **PROSECUTION’S CASE** 1. PW1 was Dr. Peter Muriuki Ndegwa, a pathologist attached to the Ministry of Health under the Department of Diagnostic and Forensic Services since 2005. He testified that he conducted the post mortem examination on the body of the deceased, Peter Nganga Nyambura, on 22nd March 2021. 2. He stated that the body was identified to him by the deceased’s brother, Stephen Irungu Nyambura, and sister, Nancy Gathoni Njoki, in the presence of Cpl Maina and PC Mwanzia. 3. He described the deceased as a 38-year-old African male adult who was moderately built, tall and of good nutritional status. Upon examination, he observed swelling of the left eye, bruises on the right lower anterior chest wall and anterior abdominal wall, rupture of the liver accompanied by haemoperitoneum containing approximately two litres of blood in the abdominal cavity, and subgaleal haemotoma affecting the left temporal, frontal and occipital skull regions. 4. From those findings he formed the opinion that the deceased died from multiple organ injuries caused by blunt force trauma consistent with an assault. He produced the certified copy of the post mortem form as PExhibit 1. 5. During cross-examination by Mr Maina counsel for the accused, PW1 clarified that that he found no indication of poisoning and therefore did not remove any samples for toxicological examination. 6. He further testified that although the injuries were consistent with assault, the injuries could also be consistent with a fall. He did not detect any smell of alcohol from the deceased’s body or clothing. He explained that the only visible external injury was the swollen eye and that the remaining injuries became apparent after opening the body during examination. He stated that the injuries appeared fresh and were only hours old. 7. He further explained that loss of two litres of blood was fatal as the human body normally contains about five litres of blood. He confirmed that the blood found in the abdominal cavity was fresh and had formed clots. 8. Upon re-examination by Ms Ogweno prosecution counsel, PW1 reiterated that a person could not survive after losing two litres of blood. He explained that in most cases it is difficult to determine the exact weapon used unless a weapon leaves distinct impressions. 9. He also testified that refrigeration preserves injuries in the state they existed at death and prevents decomposition. He further maintained that there were no signs suggesting poisoning or alcohol consumption and confirmed that the organs injured included the skin, chest cavity, head, liver and eye. 10. PW2 was Nancy Gathoni Njoki who testified that on 19th March 2021 she finished work at Carrefour TRM Mall at about 3.00pm and while approaching her home at around 4.00pm, she met her neighbour Mitchell, who informed her that her nephew, Ng’ang’a, had been assaulted and had not regained consciousness. 11. She proceeded with Mitchell to the scene approximately 500 metres from her home and found the deceased seated alone on a veranda with his back against the wall and his head bent forward. 12. She testified that a woman known as Anyango approached her and informed her that the deceased had been beaten by “Kajim” following a disagreement over a metal object used to open a sewer line. 13. PW2 stated that she called the deceased’s name three times without response. When she lifted his head, she noticed his eyes and mouth were open and motionless. After laying him down with Mitchell’s assistance, blood started oozing from his left ear and his hands felt cold, leading her to suspect he was dead. She then reported the matter at Ruaraka Police Station where the OCS assigned six police officers who accompanied them back to the scene. 14. She further testified that they found the body still lying there though now covered with a cloth. Photographs were later taken before the body was transported to the City Mortuary. She further stated that she later participated in identifying the body for purposes of post mortem examination. 15. During cross-examination by Mr Maina, PW2 stated that Mitchell had not telephoned her despite having her contact and only informed her physically about the incident. She confirmed she had not witnessed the assault and did not see the accused at the scene. She testified that the deceased had been living with her for approximately ten years and was a casual labourer who also consumed alcohol, particularly chang’aa. 16. She stated that she had been informed he had taken alcohol on the material day. She testified that she did not observe visible injuries on the deceased’s face or blood stains on his clothes and that blood only started flowing from his left ear after they laid him down. 17. She confirmed that after suspecting he was dead, they walked to Ruaraka Police Station which took about ten minutes. She further testified that when they returned to the scene with police officers, approximately fifty people had gathered there. 18. She stated that she did not witness the actual post mortem examination as she walked out after identifying the body together with Stephen Irungu and Edward Wachira. She maintained that she did not know the relationship between the accused and the deceased. 19. PW3 Emily Ondeche Wekesa, testified that she was a business lady residing at Kasabuni since 2007 or 2008. She recalled that on 19th March 2021 at about 3.00pm, while washing buckets at the gate of her plot, she heard children screaming. On looking towards the source of the screams, she saw the deceased lying on a veranda of the neighbouring plot while the accused, whom she identified as Kajim was assaulting him using stones. 20. She specifically testified that she saw the accused strike the deceased on the head with a stone, then hit him again on the stomach and chest before stepping on his stomach and knees. 21. She further stated that the deceased lay on the veranda attempting to shield himself using his arms. PW3 testified that she attempted to intervene but became afraid after seeing another man, Jasiaya being struck on the head with a stone by the accused when he attempted to separate them. 22. PW3 further testified that she proceeded to inform the deceased’s sister, Nancy Gathoni, but upon finding her absent, left a message with a nearby vegetable vendor. She then returned to the scene and heard the deceased asking for water. Members of the public attempted to give him water but it poured onto his clothes. She checked his pulse but found none. 23. After Nancy arrived PW3 informed her that Kajim had assaulted the deceased and advised her to report the matter to police. She stated that she had known the accused and his family for over ten years and positively identified him in court as the assailant. She further testified that police officers later collected stones from the scene, some of which had blood stains, and one square stone was marked for identification as MFI-1. 24. During cross-examination by Mr Maina, PW3 stated that she estimated the time of the incident to have been around 3.00pm based on when she had lunch. 25. She testified that before the assault, the deceased had appeared slightly drunk and had a habit of resting on the veranda after consuming chang’aa. She clarified that she did not witness how the confrontation began but only saw the accused striking the deceased with stones. 26. She confirmed that Jasiaya and Odhiambo referred to the same individual. She testified that she screamed in fear during the assault and later observed bleeding from the deceased’s head and ear, with more blood flowing from the ear and mouth after he was laid down. She reiterated that she informed both Nancy and the police that Kajim was responsible. 27. She also confirmed she had not attended any identification parade and that this was the first time she was seeing the accused since the incident. She further testified that when Nancy arrived, many people had gathered at the scene and that she told Nancy she suspected the deceased was already dead. 28. Upon re-examination by Ms Ogweno, PW3 testified that although she did not attend an identification parade, she knew the accused was arrested on the same day and was even brought back to the scene before the body was removed. She confirmed that some of the stones at the scene had blood stains belonging to the deceased. 29. PW4 was Inspector Benson Mbai of Ruaraka Police Station who testified that on 19th March 2021 while serving as duty officer, PW2 reported at around 6.00pm that her relative, Peter Ng’ang’a, had been murdered at Kasabuni Estate. 30. He booked the report and proceeded to the scene with approximately six officers. He testified that upon arrival they found the lifeless body of the deceased lying on a veranda outside residential premises. He summoned scenes of crime personnel who photographed and processed the scene. 31. PW4 stated that he interviewed several witnesses at the scene including Mary, Odhiambo and Emily. According to him, Mary informed him that the deceased had been struck with a large stone by the accused following a confrontation and pointed out the accused nearby. 32. Odhiambo similarly confirmed that James Kinuthia, also known as Kajim, assaulted the deceased and had also assaulted him when he attempted to intervene. Emily equally confirmed witnessing the accused assault the deceased. 33. PW4 testified that following the information, he arrested the accused at the scene and escorted him to Ruaraka Police Station where he was booked in the cells. 34. He then returned to the scene and collected a blood-stained stone identified by witnesses as one of the weapons used during the assault. He produced the stone in court as PExhibit 2. He further testified that on the following day he swore an affidavit seeking extended detention orders against the accused to facilitate investigations before later handing over the matter and exhibits to DCI Starehe. 35. During cross-examination by Mr Maina, PW4 stated that the body had been covered with a blanket when they arrived and that the scene was cordoned off by police. He explained that Mary identified the accused to him by pointing him out as he passed nearby, leading to his immediate arrest. 36. He further testified that several stones were present at the scene but he specifically collected the blood-stained stone identified by witnesses. 37. He acknowledged that he did not record Odhiambo’s statement and that he did not observe visible injuries on Odhiambo despite allegations that he too had been assaulted. He stated that he neither noticed alcohol on the deceased nor observed blood stains on the accused’s clothes. He also clarified that he verbally informed the accused of the reason for his arrest. 38. Upon re-examination by Ms Ogweno prosecution counsel, PW4 clarified that the building where the deceased lay appeared residential in nature and that by the time he handed over the file to DCI Starehe, not all witness statements had been recorded, including that of Jasiaya Odhiambo. 39. PW5 was Corporal Gladys Chepkorir who testified that on 19th March 2021 she was attached to Ruaraka Police Station and was on duty in the crime office together with Sgt. Buyuka when they were summoned by the OCS. 40. Upon reporting to the OCS, they were informed of a scene at Kasabuni Area. She proceeded to the scene in the company of IP Mbai and other police officers after being led there by three members of the public. Upon arrival, they found the body of a deceased person lying next to a house. They were informed that the deceased was Peter Ng’ang’a and that he had allegedly been hit with a stone by James Kinuthia. 41. PW5 further testified that officers from the DCI team based at Pangani were called to process the scene. After the scene had been processed, the body was removed and taken to City Mortuary. She further testified that the suspect was later arrested by officers on patrol within the area. She stated that there were many people at the scene but she personally did not see the accused. 42. She testified that the body was already covered when they arrived and she could not recall the names of the individuals who provided information at the scene. 43. She stated that she later learnt that the accused had been arrested by officers on patrol after being led by members of the public. She confirmed that from the time they arrived at the scene until the body was removed, she did not leave the area and did not recall seeing the accused there. She also testified that she did not recover any weapon from the scene and was not involved in processing the scene as that task was undertaken by the DCI officers from Pangani. 44. PW5 clarified that her role was limited to removal of the body to the mortuary together with some members of the public. According to her the officers first returned to the police station with the body where they stopped to draft a signal before proceeding to the mortuary. 45. She further stated that the deceased appeared dead when they collected the body from the scene and that at the mortuary, she did not know whether there had been any formal confirmation of death before the body was preserved. 46. PW6, PC Alex Ole Tanin No. 262069, testified that in the year 2021 he was attached to DCI Starehe Pangani though currently stationed at Karen DCI. He stated that on 19th March 2021, following communication from Ruaraka Police Station, he proceeded together with Sgt. Evans Gitonga to a scene within Kasabuni area. 47. Upon arrival, they found a body lying on the ground covered with a sheet and the face was not visible. He testified that scenes of crime officers from DCI Starehe joined them and documented the scene before the body was removed to City Mortuary by officers from Ruaraka Police Station. 48. PW6 further testified that at the scene, a blood-stained stone alleged to have been the murder weapon was recovered after members of the public indicated it had been used during the assault. 49. He stated that the stone was taken to the station and later, on 8th April 2021, he prepared an exhibit memo requesting the Government Chemist to conduct DNA analysis on the blood stains found on the stone. He testified that the exhibits forwarded included specimen “A” allegedly obtained from the deceased, specimen “B” from the accused, and specimen “C” being the blood-stained stone. According to him, the purpose of the analysis was to establish whether the blood on the stone originated from the deceased or the accused. He produced the exhibit memo as PExhibit 3. 50. During cross-examination by Mr Maina, PW6 stated that they had been called to the scene at about midday and arrived there later in the afternoon after briefing at Ruaraka Police Station. 51. He confirmed that by the time they reached the scene, the accused had already been arrested and was in police custody at Ruaraka Police Station. He testified that approximately twenty people were present at the scene and that the stone had been collected by officers from Ruaraka Police Station, though he could not recall the specific officer who recovered it. He further stated that there were no formal handover notes relating to the stone. He recalled that the stone had been found next to the body and that it was documented by a scenes of crime officer from DCI Starehe, though he could not remember the officer’s name. 52. PW6 testified that after receiving the stone, he took it to the exhibit store at DCI Starehe Pangani but could not recall whether the proper exhibit register entries were made. He stated that he submitted the stone to the Government Analyst on 8th April 2021, approximately two weeks after recovery. He further testified that he formally took over investigations from IP Mbai on 23rd March 2021 after some witness statements had already been recorded. He acknowledged that although the exhibit memo indicated that a sample from the deceased had been submitted to the Government Chemist, the Government Analyst’s report later indicated that no suitable reference sample from the deceased had been provided because the blood sample was putrid and unsuitable for comparison. He admitted that this discrepancy amounted to an error in the exhibit memo. 53. PW6 also testified that he escorted the accused to the Government Chemist where a buccal swab was taken from him, though he could not recall the officer who physically collected the sample. He confirmed that the accused agreed to the swab being taken and no written consent was obtained. He stated that by the time they arrived at the scene it was evening though not yet dark, the body was still covered, and the only exhibit recovered was the stone. 54. PW7, Sergeant Evans Gitonga, testified that he was currently attached to the Serious Crime Unit at DCI Headquarters but in 2021 had been stationed at Starehe DCI office. He stated that on 23rd March 2021, together with PC Alex Tanin, they were instructed by DCIO Musangi to take over investigations into a murder case from Ruaraka Police Station. 55. Upon reviewing the matter, they established that the incident had occurred on 19th March 2021 between 4.00pm and 5.00pm and that it was alleged that a fight had broken out between the accused and the deceased during which the accused used a stone to inflict injuries that resulted in the deceased’s death. 56. PW7 testified that at Ruaraka Police Station they met IP Mbai who informed them that he and his team had visited the scene on the material date, processed the matter with the assistance of scenes of crime officers from Starehe, arrested the accused, obtained custodial orders to continue detaining him pending investigations. Statements were recorded from two eye witnesses and recovered a stone from the scene as an exhibit. He stated that IP Mbai thereafter handed over both the accused and the recovered stone to them. 57. He testified that they transferred the accused to Pangani Police Station and on 6th April 2021 escorted him to Mathare Mental Hospital for psychiatric assessment. 58. He produced the psychiatric report dated 6th April 2021 prepared by Dr. Catherine Siengo Mutisya as Exhibit 4, which confirmed that the accused was fit to stand trial. He further testified that thereafter the stone was taken to the Government Analyst by PC Alex Tanin after PW7 had been transferred. He identified the accused before court as the same person they had taken over from Ruaraka Police Station. 59. PW8, Henry Kiptoo Sang, a Government Analyst based at the Government Chemist in Nairobi, testified that he holds a Bachelor of Science degree in Chemistry from Moi University obtained in 1997 and had approximately fifteen years’ experience conducting analysis of human body fluids and tissues, particularly DNA analysis. He stated that he prepared a DNA analysis report dated 11th May 2022. 60. PW8 testified that on 8th April 2021, while at work, the Government Chemist received a khaki evidence bag marked “C” containing a stone as well as a buccal swab sample obtained from the accused, James Kinuthia. He stated that the exhibits were delivered by PC Alex Tanin of DCI Starehe together with an exhibit memo requesting DNA analysis and comparison. Upon examination, he established that the stone was slightly stained with blood of human origin. He then conducted DNA analysis on both the blood stains from the stone and the buccal swab obtained from the accused. According to his findings, the DNA profile generated from the blood stains on the stone originated from an unknown male person. He testified that there was no DNA linking the blood on the stone either to the accused or to the deceased because a proper reference sample from the deceased had not been successfully submitted for comparison. He explained that although the exhibit memo indicated that specimen “A” was from the deceased, the blood sample provided was putrid and decomposed and therefore unsuitable for DNA comparison. He stated that no replacement sample was ever submitted. He produced the DNA analysis report as PExhibit 5. 61. PW9, Catherine Anyango Arum testified on oath that she resided at Kasabuni Estate in Baba Dogo, Nairobi. She stated that on 19th March 2021 at approximately 3.00pm she was inside her house and upon stepping outside she found the deceased Ng’ang’a, lying on a veranda situated about seven metres away from her house. 62. She testified that after approximately ten minutes, the accused, whom she identified as Kajim, arrived and demanded from the deceased a metallic device used for unlocking sewage lines. According to PW9, the deceased informed the accused that he did not have the device at that moment but would deliver it later at around 8.00pm. 63. PW9 testified that upon hearing that response, the accused became angry, started shouting abusive words including “Malaya, umbwa hakuna yule unalea,” and immediately began kicking the deceased on the rib cage. She stated that the deceased was drunk at the time and that the veranda where he lay was a place he commonly rested whenever intoxicated. 64. She further testified that a man identified as Stephen Otieno questioned the accused by asking him why he was beating a drunk person. 65. According to PW9, the accused then turned against Stephen Otieno and started fighting him as well. She testified that Amos, the accused’s brother, attempted to caution the accused to stop the assault but was unsuccessful. She further stated that the accused’s mother also shouted words to the effect that the people of Kasabuni were accustomed to them and that “Ongwaro must stay,” explaining that the accused’s mother was nicknamed Ongwaro because she had relocated from Kawangware and was also known to be violent. 66. PW9 testified that during the incident the deceased requested for water and she gave him some, but as he attempted to drink it he collapsed. She stated that she briefly went into the toilet and upon returning found three women present at the scene, one of whom was Nancy Gathoni, the deceased’s sister. She testified that she sent a young boy from the plot to summon the accused’s mother but she did not come. 67. According to PW9, the deceased died at the scene and Nancy Gathoni later proceeded to report the matter to the police station. She stated that she initially avoided speaking to the police because she feared retaliation from the accused’s family whom she described as violent. She therefore fled the scene and only recorded her statement at Ruaraka Police Station approximately two weeks later after police officers traced her and requested her to do so. She maintained that she personally witnessed the accused assault the deceased and stated that the attack occurred at approximately 3.00pm. She also pleaded for protection. 68. According to PW9, the accused assaulted the deceased through kicks to the abdomen and chest and eventually picked up a stone which he used to strike the deceased on the chest and head, causing bleeding from the ears. 69. PW9 further testified that Stephen Otieno who attempted stopping the accused from assaulting the deceased left to report the matter after he was also assaulted by the accused. 70. She stated that PW3 Emily Wekesa lived in the neighbouring block and arrived at the scene after the fight had already ended. She reiterated that Amos, the accused’s brother, also attempted unsuccessfully to stop the accused from beating the deceased. She testified that many people later gathered at the scene and that the accused only stopped fighting after his mother arrived. 71. The evidence captured above was analyzed by this court and the court in its ruling on a case to answer placed the accused person on his defense and he elected to give evidence and call witnesses. **DEFENCE CASE** 1. In his sworn defenseDW1, James Kinuthia Silima, the accused person, stated that he previously worked as a water vendor at Kasabuni, Baba Dogo, Kasarani during the Covid-19 period after construction sites where he had worked were closed. He stated that he was married with two children, namely Cecilia Anyango aged 12 years and Silima Amin aged 6 years, and that he lived near his brother’s residence. 2. He testified that on 19th March 2021 he opened his water vending business at around 9.00am. At approximately 10.30am, one of his regular customers who washed carpets and bicycles arrived. Later, at about 12.30pm, his brother Amos Ochieng joined them and remained there chewing muguka while DW1 continued selling water. 3. According to the accused the three remained together at the business premises until around 5.00pm when three men in civilian clothes approached them and asked for their names before commencing a search on them. 4. He stated that because he occasionally sold bhang, he assumed the officers were searching for bhang, though he did not have any at the time and therefore was not worried. He testified that two officers apprehended him and escorted him away without informing him why he was being arrested. 5. DW1 stated that he was taken to a nearby road where he found the OCS together with a crowd of people. He was instructed to sit down and was questioned by the OCS though he was not handcuffed. He further testified that after about three minutes his mother arrived at the scene and questioned the police regarding the reasons for his arrest but they did not respond to her. He was thereafter placed in a police vehicle and taken to Baba Dogo Police Station where he was booked. He testified that he initially believed his arrest was connected to the sale of bhang. He further stated that on the following Monday he was taken to Makadara Court. 6. DW1 testified that he knew the deceased, Ng’ang’a, merely as a village drunkard and denied having had any business dealings or disputes with him. He stated that at about 3.00pm on the material day he was still together with the two men at his water vending point. 7. He also testified that he knew PW9, Catherine Anyango, who sold chang’aa, though he did not see her on the material day. He stated that she lived in a mabati house reflected in the sketch plan though the sketch plan had not been produced in court. He further testified that he knew PW3 Emily Wekesa, who lived in a nearby storey building close to the alleged scene, but asserted that from the place where he conducted his water business, one could not see the scene. 8. DW1 further testified that he was later taken to the Government Chemist where a swab was taken from his mouth without the officers informing him of the purpose of the swab. 9. He stated that he had not changed his clothes before the swab was taken. He further complained that when the matter was later taken over by the CID, he was not cautioned in accordance with the law. 10. He denied knowledge of how the deceased died and alleged that PW9, Catherine Anyango, had differences with his mother and had therefore framed him. He urged the court to note that he was suffering as a result of the case. 11. During cross-examination by Ms Njoroge, DW1 reiterated that he sold water near his mother’s plot and that the residence of PW3 Emily Wekesa was approximately five minutes’ walk from his business premises. 12. He also stated that Catherine Anyango lived in the same area as PW3. He confirmed knowing PW2 Nancy Njoki as the deceased’s sister and again described the deceased as a drunkard though he did not know where he lived. He maintained that both PW2 and PW9 had disagreements with his mother in the year 2021 though he did not know the cause of the quarrels. He testified that he personally witnessed one such quarrel but did not intervene and understood that the matter had been reported to the Chief’s office, though he did not intend to call the Chief as a witness. He clarified that he personally had no differences with PW3 Emily Wekesa. 13. DW1 further testified that on the day of his arrest he remained throughout with Alan and Amos at the water vending point and did not leave the premises. He stated that he could not remember who else visited the premises that day. He confirmed that he recorded a statement in the matter and that he alone was arrested while the other two men were left behind. 14. He testified that he was chewing muguka at the time of arrest and up to the point of reaching the police station still believed the arrest related to bhang. He further stated that after arresting him, the officers took him to Emily’s place though he was not assaulted during the arrest and neither Alan nor Amos were beaten. He confirmed that his mother, Rosemary Anyango, was present in court during his testimony. He reiterated that he never learnt how the deceased died and denied having any differences with Catherine Anyango, Nancy Njoki or Emily Wekesa. 15. Upon re-examination, DW1 stated that he sold water to many people at his business premises and that his mother informed him she had learnt of his arrest through Alan. He also clarified that the disagreements between his mother and Catherine Anyango existed prior to his arrest. 16. DW2, Allan Maina Muthomi, testified that he worked at a car wash and previously worked as a casual labourer washing carpets at Kasabuni in Baba Dogo. He stated that on 19th March 2021 he reported to work at approximately 10.00am and continued working until about 6.00pm. He testified that he knew the accused because he used to buy water from him for washing carpets and that their business premises were close to each other, enabling him to see the accused from where he worked. 17. DW2 testified that when he arrived at his workplace on the material day, he found the accused already present together with his brother assisting in the water business. 18. He stated that throughout the day he did not observe the accused leave the premises. According to him, at about 5.00pm, three men in civilian clothes arrived and found the accused together with his brother and another young man. He stated that the three men asked them for their names and proceeded to search their pockets. 19. He testified that the men were specifically asking where bhang was and thereafter held the accused around the waist before taking him away. He further testified that the accused’s brother then went to inform their mother. DW2 stated that he did not follow the men and did not know where they took the accused. He also stated that by that time he had not heard of any death occurring in the area. 20. During cross-examination by Ms Njoroge, DW2 testified that he recorded his statement personally and forwarded it to the defence advocate on 30th December 2025. He clarified that although he completed washing carpets at around 3.00pm, he remained at the premises waiting for the carpets to dry. He stated that he had received the carpets from customers at 9.00am and commenced work at 10.00am. 21. He further testified that he took lunch nearby at a food kiosk operated by a woman close to the business premises and that she could see him while he worked. He stated that lunch was brought to him and he spent approximately five minutes eating before resuming work. 22. DW2 reiterated that he remained busy throughout the day fetching water for cleaning carpets and that the accused’s water point was nearby. He stated that the area was busy with many people. He testified that he had known the accused for about three years through their business dealings and would regularly buy water from him. He stated that he occasionally found the accused’s brother operating the water business and confirmed that the brother was present when the accused was arrested. 23. He testified that the three men who arrested the accused went directly to the water point and searched all three men there. He stated that he asked the accused what the problem was, but the accused replied that he did not know. According to DW2, that is when the accused’s brother left to call their mother. He further stated that it was common to see people arrested within the area and therefore he did not report the arrest to anyone. He testified that he did not know whether the accused sold bhang. 24. DW2 further testified that he had previously attended court in relation to the matter and that the accused’s mother, Rosemary, had later approached him in 2025 and requested him to testify. He stated that she initially met him on the streets in Kasabuni and later visited his business premises in Riverside after he relocated there in 2022. He confirmed once more that on 19th March 2021 he saw the accused continuously within the business premises. 25. He concluded by stating that he was looked for and requested to come and testify in favor of the accused. 26. DW3, Amos Ochieng Silima, testified on oath that he was a casual labourer residing at Kasabuni and that on 19th March 2021 he was together with the accused, who is his younger brother, selling water at their business premises. He testified that they sold water from morning until approximately 5.00pm. At about that time, three men in civilian clothes approached them while they were with another person identified as Ken. According to DW3, the three men asked for their names and began searching their pockets. He stated that one of the men removed handcuffs and thereafter handcuffed the accused, James Kinuthia. 27. DW3 testified that he questioned why his brother was being handcuffed but did not receive an explanation. He stated that as the men led the accused away, he ran home to call their mother, who then followed the people who had arrested the accused. He testified that the area contained many businesses and that from where they sold water, he could see other nearby businesses. After informing his mother, he returned home. 28. DW3 further testified that he started work at about 8.00am and remained with the accused throughout the day until 5.00pm, insisting that the accused never went anywhere during that period. 29. However, DW3 later admitted during cross-examination that the accused also sold bhang at the same premises where he sold water. He acknowledged that selling bhang was a criminal offence but stated that although he knew of the activity, he had never reported his brother to the authorities because he cared about him and did not want anything bad to happen to him. He openly stated that he had come to court to support the accused in his defence and would protect him if able to do so. 30. DW3 further testified that although he initially stated the accused never left the workplace, there were occasions when each of them could briefly leave while the other remained behind. He subsequently admitted that on 19th March 2021 the accused left him working between approximately 10.00am and 11.00am and went to visit his family before returning shortly thereafter. He stated that he knew the accused had gone home because he was absent only briefly. 31. He testified that he did not know the persons named Emily or Cynthia. He further stated that he was present when the accused was arrested and suspected the arrest was related to bhang. He confirmed that he did not follow up on the arrest because their mother handled the matter. 32. He testified that he only later learnt that the accused was facing a murder charge after he himself was arrested in another matter involving grievous harm and met the accused in prison. He stated that his own criminal case was still pending and that on 19th March 2021 he was not arrested. He also stated that the person identified as Ken fled the scene to avoid arrest. 33. Upon re-examination, DW3 clarified that the accused had briefly left the business premises between 10.00am and 11.00am before returning. 34. The defense closed it defense after the third defense witness. **ANALYSIS AND DETERMINATION** 1. The state and the accused person’s counsel filed written submissions in support of their respective position in this matter which the court has considered. 2. The offence of murder is deemed to have been established once the prosecution adduces sufficient credible and reliable evidence connecting the accused person to the offence and in particular establishes beyond a reasonable doubt that by an act or omission of the accused person, with malice aforethought, the accused person caused the death of the deceased. 3. In **Joseph Githua Njuguna vs Republic (2016) eKLR and Milton Kabulit & 4 others v Republic [2015] eKLR** the court held the elements of the offence of murder to be established upon the prosecution proving: - a. The death of the deceased occurred and the cause of that death; b. The appellant committed the unlawful act which caused the death of the deceased; and c. The appellant had harbored malice aforethought 4. In this case Pw1 Dr Ndegwa gave evidence that established that the deceased in this case died and his death was as a result of injuries consistent with an assault or a fall. 5. The court noted from the evidence of Pw1 that the deceased suffered multiple injuries to the skin, chest cavity, head, liver and the eye. The first element of the offence of murder was therefore sufficiently established. 6. The court heard direct eye witness account from Pw3 and Pw9 who stated that they both witnessed the accused person assaulting the deceased. 7. The witnesses were consistent in their testimony that the offense occurred at 3:00pm thus there was no possibility of mistake in the identification of the accused as the person who assaulted the deceased. The witnesses corroborated each other’s evidence by giving a vivid detailed account of the vicious attack of the deceased by the accused. 8. It was clear from the evidence of the two witnesses that none of them heard or saw the deceased attacking the accused but they all narrated how one Otieno tried dissuading the accused from assaulting the deceased who appeared drunk at the time of the attack. 9. The two witnesses knew the accused person before the date of the attack thus there cannot have been any doubt about the identity of the deceased’s attacker. It was a case of recognition in circumstances that favored positive identification. 10. The evidence of the two prosecution witnesses completely displaced the defense of alibi introduced by the accused and his witnesses. 11. The two witnesses PW3 and PW9 placed the accused person at the scene of attack thus the claim in his defense that he never left his work place cannot stand in the circumstances. 12. The credibility of the accused and that of his witnesses is questionable in view of the fact that the accused is a self- confessed peddler of bhang. The accused by his own admission is a matter given to breaking the law knowingly thus it is no surprise that he took the law into his own hands and senselessly assaulted the deceased. 13. The second ingredient of actus reus was therefore proved beyond a reasonable doubt. The attack was unprovoked and the accused continued with the assault of the deceased even after attempts were made to stop him by Amos and Otieno. 14. The claim by the accused that the two witnesses had a problem with his mother was a well calculated attempt by the accused to taint the image of the two witnesses with a view to casting doubt on the veracity of their evidence. 15. This court is not inclined to accept that line of defense because the court was not told by the accused what was the nature of the quarrel between the two prosecution witnesses and his mother and when that happened. 16. The claim was without merit or substance and is therefore rejected. The court has no hesitation in accepting the evidence of Pw3 and Pw9 that the accused assaulted the deceased inflicting the fatal injuries. 17. The third element of Murder is Malice aforethought on the part of the accused. Malice aforethought may be inferred from the specific acts of the accused causing the death including the weapons used to inflict the injuries causing death as well as a consideration of the specific parts of the body targeted by the assailant. 18. Furthermore, malice aforethought has been considered in several cases. The Court of Appeal in **Odio v Republic [2024] KECA 1544 (KLR)** stated that: - “Malice aforethought may be express or implied. Express malice aforethought refers to when a deliberate intention is manifested to take away the life of a person unlawfully. Implied malice aforethought applies when no considerable provocation appears or when the circumstances attending the killing show a reckless and wicked heart. To be convicted of murder, malice aforethought must be proved. Malice aforethought cannot be imputed to an accused person based solely on their participation in a crime. If it is shown that the killing resulted from an intentional act with express or implied malice aforethought, no other mental state need be shown to establish malice aforethought. 19. In Nzuki vs. Republic [1993] eKLR, the Court of Appeal defined malice aforethought as: “**…a term of art and is either an express intention to kill, as could be inferred when a person threatens another and proceeds to produce a lethal weapon and uses it on his victim; or implied, where, by a voluntary act, a person intended to cause grievous bodily harm to his victim and the victim died as the result. See the case of Regina v Vickers, [1957] 2 QB 664 at page 670. An intention connotes a state of affairs which the person intending does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition. See the case of Conliffe v Goodman, [1950] 2 KB 237.”"** 20. The vicious attack on the deceased by the accused in this matter without provocation was calculated to cause grievous harm. The assault was voluntary and unprovoked. The accused by using stones to hit the deceased on the chest knew or he should have known that such an act would cause grievous harm or result in instant death of the deceased. 21. The intention to cause the death of the deceased becomes even more pronounced when one considers that the accused landed kicks on the abdomen and the chest part of the deceased. 22. The head, the chest cavity and the abdomen are highly sensitive and crucial parts of the body for injuries to any of them depending on the force applied could lead to immediate death. 23. The evidence of Pw1 showed that he found approximately two liters of blood in the abdominal cavity. According to the pathologist, the loss of such an amount of blood is fatal. The Doctor was categorical that the injuries causing the loss of blood were consistent with an assault thus corroborating the evidence of PW3 and PW9. 24. The manner in which the assault was executed leads this court to conclude that there was implied malice aforethought. The courts have held that this concept of implied malice aforethought applies when no considerable provocation appears or when the circumstances attending the killing show a reckless and wicked heart. 25. The accused was outrightly reckless and his heart was full of wickedness. The attack on persons coming to the rescue of the deceased was a clear indication that the accused did not wish to have the deceased receive any help from anyone thus his intention was to extinguish his life completely. 26. This court is therefore satisfied that Malice aforethought in terms of the provisions of Section 206 of the Penal code was established beyond a reasonable doubt. 27. Section 206 of the Penal Code defines malice aforethought as follows; - “Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances— **a.** an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; **b.** knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; **c.** an intent to commit a felony; 1. The three limbs of Section 206 of the Penal code were established beyond a reasonable doubt thus the accused is guilty of the offence of murder. The assault on the deceased was savage and uncalled for. The deceased did not from the evidence of the witnesses fight back thus the accused person had no reason whatsoever to attack him in the manner he did. 2. A blow to a man’s head is dangerous prima facie and the accused ought to have known that such an attack would most likely result in death. 3. The prosecution witnesses were clear that any attempt to save the deceased was met with violence by the accused a clear indication that he executed the attack with malice aforethought and did not intend that the deceased survives. 4. The alibi defense by the accused was displaced by the prosecution witnesses’ evidence for they knew the accused and the offence was committed in broad daylight thus there was no doubt that he was the one who attacked the deceased. 5. On the strength of the evidence received, this court finds the accused person guilty of the offence of Murder Contrary to Section 203 as read with 204 of the Penal Code and is accordingly convicted. It is so ordered. **DATED, SIGNED** and **DELIVERED VIRTUALLY** at **NAIROBI** this **23RD** day of **JUNE, 2026.** 1. **M. MUTETI** **JUDGE** **In the presence of:** Habiba: Court Assistant Ms Njoroge for the state Maina for the Accused Accused: Present