https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11792

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU CRIMINAL CASE (HCCR) NO. 21 OF 2016** *(Consolidated with HCCR No. 51 of 2020)* **REPUBLIC ....................................................................... PROSECUTOR** **VERSUS** **MARY RAEL SYOMBUA ................................................. 1ST ACCUSED** **SAMUEL GATHOGO MIANO ...................................... 2ND ACCUSED** **JUDGMENT** 1. The 1st accused, Mary Rael Syombua, and the 2nd accused, Samuel Gathogo Miano, are charged with the murder of Julia Ntheru Kaburu, contrary to **Section 203 as read with section 204 of the Penal Code**. 1. The particulars allege that on 4th December 2013, at Itumi village, Kanthiari Location, Igembe South Sub-County, Meru County, the accused jointly murdered the deceased, an elderly woman in whose homestead each of them was employed. 2. The prosecution's case is that on the morning of 4th December 2013, at about 9.30 a.m., the 1st accused came to PW1’s house asking his wife Rachael Kalingo for the telephone number of Charles (PW2), the deceased's herdsman and milk manager. PW1 overheard the 1st accused telling PW2 by telephone that her colleague, the 2nd accused, had entered the deceased's house and locked himself inside. PW1 armed himself with a knife and, together with his wife and the 1st accused, went to his mother's house, which they found padlocked from the outside. A worker, Stephen, told him the deceased had gone to her other son's house nearby, which PW1 found suspicious, given the early hour and the rain. When the 2nd accused emerged from his own room, PW1 confronted him, held him by the collar, and threatened him with a knife. The 2nd accused pulled free, jumped a fence, and fled towards Maua. PW1 then looked through his mother's window and saw her lying motionless, face up, on the bed. He pursued the 2nd accused as far as the Maua stage without success, then reported to Maua Police Station. He returned with the police and the Assistant Chief (PW7). The door was forced open, and the deceased was found dead with a rope around her neck. A panga and a piece of rope were recovered near the bed. PW1 identified the panga as belonging to the 2nd accused. 1. PW2, the deceased's Milking-Manager and General Manager of six years, testified that at about 6.00 A.m. that morning he found the deceased awake, with the 1st accused preparing her tea. He went about the milking and delivered milk to Maua as usual. At about 7.00 a.m. he received a call from the 1st accused reporting that the 2nd accused had locked himself inside the deceased's house. On PW2's instruction, the 1st accused was to have the deceased lock the door from the outside so the 2nd accused would remain inside until PW2 returned. However, the 2nd accused had already escaped. In cross-examination PW2 confirmed it was the 1st accused who suspected the 2nd accused intended to steal, and that he personally had once taken the 2nd accused to hospital. 2. PW3, a hawker who had known the 2nd accused for some years in Nyeri County, testified that on 8th December 2013 in Meru town the 2nd accused approached him wanting to sell a Nokia mobile telephone to raise fare home. PW3 could not buy it himself and found a buyer, PW8 Onesmus Mwangi, who paid Kshs 700 for the handset; PW3 handed the proceeds to the 2nd accused. PW3 was himself arrested on 21st December 2013 in connection with the phone and later released. 3. PW4 testified that he attended and identified his grandmother's body prior to the post-mortem examination on 6th December 2013 at Maua Methodist Hospital mortuary. 1. PW5 testified to tracing the deceased's stolen mobile telephone through Safaricom records to Ann Gaichu, arrested on 17th December 2013, and further to her husband Elias Mbindi, who said he had bought it. Neither Ann Gaichu nor Mbindi was prosecuted, and PW5 conceded under cross-examination that no link was established between the handset and either accused directly through this chain. 1. PW6 a taxi driver, testified that on 3rd December 2013 he picked the deceased and took her to Equity Bank, Maua, and returned her home later that afternoon, confirming that the deceased had visited her bank the day before she was killed. 2. PW7 testified that he was alerted that morning by Rachael Kalingo (PW1's wife) that the 1st accused had reported of someone locked inside the deceased's house, and was not responding to calls. He went with her, found the 1st accused and PW1 outside the padlocked house, and the door was broken open, revealing the deceased body on her bed with a rope around her neck. He recovered the broken padlock (MFI 8), the blue nylon rope (MFI 3) and the bed cover (MFI 4). He then summoned the OCS Maua. Under cross-examination he confirmed the 1st accused had no criminal history and that it was PW2 (Charles) who later reported having encountered the fleeing 2nd accused on the road to Maua. 1. PW 8 testified to buying the Nokia telephone from PW3 for Ksh.700 on 8th December 2013 and reselling it the next day at ICE Club restaurant in Nkubu. He was later arrested, detained for fourteen days and released. He identified and produced the phone as evidence (MFI 7). He denied any prior connection to either accused or the deceased. 1. PW 9 produced the post-mortem report of Dr Michael Kariuki, his former colleague, whose signature and writing he identified, recording petechiae hemorrhages in conjunctiva bilaterally, cyanotic peri-oral region, a fresh cut on the left heel, and a cause of death of cardiorespiratory arrest due to asphyxia by suffocation leading to hypoxia which was confirmed under cross-examination to be consistent with strangulation. 2. PW 10 testified to forensic examination of the recovered exhibits: the rope, bed cover, head dress, a light blue stained blazer, head band, a checked shirt, a panga and a pair of black shoes together with buccal swabs from the 2nd accused and from a maternal relative of the deceased, Catherine Muthomi Kaburu. Only the blazer bore blood staining, and the DNA profile recovered from it matched a biological relationship to Catherine Muthomi Kaburu. No DNA profile linked the 2nd accused to any exhibit. 3. PW11 testified that he took over the file in August 2020, traced the 2nd accused to Karatina through informers, and arrested him on 1st September 2020. Following a fourteen-day detention order, he interrogated the 2nd accused on 4th September 2020 and recorded a statement under inquiry (PEX 13) in which the 2nd accused admitted having conspired with the 1st accused to steal from the deceased and he injured her in the course of the theft. PW 11 thereafter arranged for an Independent Officer, Chief Inspector Mohamed Jillo to record a formal out-of- Court confession, which was done on 15th September 2020 (PEX 14). 4. Counsel for the 2nd accused objected to production of the statement under inquiry and the confession, contending that **Section 25A of the Evidence Act and Article 49 of the Constitution** had been breached. The 2nd accused had not been informed of his right to have a relative or an advocate of his choice present, and that the confession was not voluntary. A trial within a trial was accordingly conducted. The prosecution called the Recording Officer, Chief Inspector Mohamed Jillo, who testified that he administered the Judges' Rules in full before recording the confession, that the 2nd accused indicated in writing that he did not wish to be represented by a third party or by an Advocate, elected to proceed in Kiswahili without an interpreter, confirmed he had not been coerced, and had been given lunch and permitted contact with his family. The exercise took two hours and five minutes. The 2nd accused, testifying in his own defence in the *voir dire*, alleged that he had earlier been assaulted and threatened at gunpoint by the Investigating Officer, Inspector Kananu, and two other DCI Officers, and forced to copy a confession dictated by Chief Inspector Jillo without being permitted to read it before signing. 1. The Court delivered a Ruling on 22nd August 2024, where Muriithi J found the confession voluntary and admissible. The court held that the confession document itself, properly headed **"Out of Court Confessions",** was compliant at each step with the Out of Court Confession Rules, 2009. The 2nd accused had certified in writing, against each rule; that he did not wish third-party representation, that he preferred Kiswahili, that he had not been subjected to coercion, duress or torture, and that he had been informed of and declined his right to legal representation. The Court found the 2nd accused's account of being tied by the neck and arms with a police lanyard and forced to write at gunpoint **"simply unbelievable",** noting that he had never raised the allegation with any authority including his own Advocate, on record since September 2020. The objection was accordingly declined and the confession (PEX 14) admitted as PEX 14, with the trial directed to proceed to conclusion with the remaining prosecution witness. 1. At the close of the prosecution case the Court found each accused had a case to answer and placed both on their defense. 2. The 1st accused (Mary Rael Syombua) gave sworn evidence and called one witness. She maintained that on the material day the deceased sent her to buy airtime. On her return she found the house locked from the inside, when she knocked she received no response, peeped through the window and saw the 2nd accused inside, and went to PW1's house to raise the alarm. She denied entering the house, touching the deceased, or assisting the 2nd accused in any way, and pointed to her own conduct raising the alarm and leading others to the scene as inconsistent with guilt. Under cross-examination, however, she was shown to have understated her length of service (four months, on PW1 and PW2's evidence, against the one-and-a-half months she claimed) and to have denied any prior acquaintance with the 2nd accused notwithstanding her own admission of once taking him to hospital when he fell ill. She was further confronted with her own extra-Judicial statement, in which she is recorded as having admitted to acting in cahoots with the 2nd accused to steal from the deceased, to knowing that the deceased had been to the bank the day before the killing, to knowing where the deceased kept her money, and to having received a share of the proceeds of the theft. 3. The 2nd accused (Samuel Gathogo Miano) gave sworn evidence and called no witness. He repeated, in his defence, his account that the confession of 15th September 2020 was extracted under duress and did not reflect his own words, and advanced a defence of alibi that he was not at the deceased's residence at the material time and suggested that he had been the victim of a frame-up orchestrated by third parties, including the witness Stephen (PW3) and unnamed associates. He relied heavily on the absence of any forensic (DNA or fingerprint) evidence connecting him to the scene or to the exhibits, and on the fact that the only bloodstained exhibit, the blazer had a DNA profile consistent with the deceased's own family, not with him. **Analysis** 1. The accused herein faces the charge of murder, contrary to **Section 203 as read with** **Section 204 of the Penal Code**. To secure a conviction for the offence, the prosecution is required to prove beyond reasonable doubt. Firstly, the fact and cause of the deceased’s death, Secondly, that was caused by an unlawful act or Omission, thirdly, that the unlawful act or Omission was perpetrated by the accused person(s) and lastly, that the accused acted with malice aforethought as contemplated under **Section 206 of the Penal Code**. 2. The Prosecution submitted that all four ingredients of murder were proved beyond reasonable doubt: the fact and cause of death were undisputed; the 2nd accused was linked to the killing both by direct evidence of his presence, flight and by his own voluntary and detailed confession; and the 1st accused was liable jointly under **Section 21 of the Penal Code** as a party to a common intention to steal from the deceased, of which her murder was a natural and probable consequence, given the 1st accused's own admissions as to her role in furnishing information about the deceased's money. 3. The 1st accused, submitted that the case against her is built on suspicion rather than evidence: there is no direct evidence placing her at the scene of death, no forensic linkage, and her own conduct, of raising the alarm and leading others to the scene, is incompatible with one guilty of participation in a murder case. It was submitted, relying on **Anyangu & Others v Republic [1968] EA 239***,* that the 2nd accused's confession is evidence only against its maker and cannot found her conviction, and, relying on **Sawe v Republic [2003] KLR 364 and Njoroge v Republic [1983] KLR 197,** that mere presence, prior knowledge or association falls short of the shared intention required for liability under **Section 21**. 4. The 2nd accused submitted that his alibi was not disproved by the prosecution. He further submitted that the confession, twice retracted, and recorded without the presence of a third-party of his choosing, should be treated with caution referring to a retracted confession as was held under***R v Muthiwa (1935) 2 EACA 66,*** whereby absence of independent corroboration, and of forensic (DNA and fingerprint) linkage, taken with the alternative hypothesis of a frame-up by third parties, left the Prosecution's case short of the standard required for a safe conviction. 1. In this case, the fact of death, and the cause of the said death is not disputed. It is amply established by the direct evidence of PW1 and PW7, who found the body: PW4's identification of it for post-mortem purposes, and the unchallenged post-mortem findings of PW9 stating that death was out of asphyxia consistent with strangulation. I therefore find this ingredient established by the prosecution beyond reasonable doubt. 1. The admissibility of the confession was conclusively determined in the Ruling of 22nd August 2024 and need not be revisited. What remains for determination is its weight. It is trite that a retracted or repudiated confession, whilst admissible, must be approached with caution as guided by **R v Muthiwa (1935) 2 EACA 66; Tuwamoi v Uganda [1967] EA 84: and Kanini Muli v Republic [2014] eKLR.** The settled rule is that a Court may act on a retracted confession alone only if, having considered all the material points and surrounding circumstances, it is satisfied the confession cannot but be true. Otherwise, corroboration in material particulars, from an independent source, is required. Here, the confession is not the sole plank of the prosecution's case against the 2nd accused. It is corroborated in material particulars by evidence that is entirely independent of it. PW1's direct account of physically confronting with the 2nd accused outside the locked house within minutes of the alarm, and of his flight over the fence; PW2's account of the telephone report that the 2nd accused had locked himself inside; PW3 and PW8's evidence that the 2nd accused sold the deceased's mobile telephone within days of the murder to raise bus fare out of the area, and the seven years he spent evading arrest. Each of these matters is consistent with, and corroborative of, the confession's account, and none of it depends on the confession for its own proof. I find that the confession is amply corroborated in material particulars and is entitled to full weight. 1. Even leaving the confession aside, the case against the 2nd accused independently satisfies the test for circumstantial evidence. As held in ***Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990****,* the circumstances from which guilt is inferred **must be cogently and firmly established, must be of a definite tendency unerringly pointing to guilt, and must, taken cumulatively, form a chain so complete that there is no escape from the conclusion that the accused, and no one else, committed the offence**. Here, the 2nd accused was the last person seen inside the deceased's locked house, he gave an implausible account when confronted (that he had locked the door because he found no one inside, notwithstanding that the deceased was found within, dead, in the same house), he fled immediately upon confrontation, he disposed of the deceased's telephone within days, in a location distant from the scene to raise funds to leave the area and that he evaded arrest for almost seven years. Combined with his voluntary and materially corroborated confession in which he describes, in his own words, entering with a rope, strangling the deceased, dragging her to her bedroom, tying her to the bed, gagging her, and breaking into her drawer to take approximately Ksh.30,000; the totality of the evidence excludes every reasonable hypothesis save that the 2nd accused unlawfully caused the deceased's death. As to malice aforethought, the deliberate use of a ligature around the neck, a manner of restraint any reasonable person would appreciate is likely to obstruct breathing and cause death or grievous harm, the sustained tying of the elderly deceased to her own bed, the gagging of her mouth, and the complete ensurance of her inability to render resistance, satisfy and establish, at the least, knowledge that the act would probably cause death or grievous bodily harm. I find both the unlawful act and malice aforethought proved beyond reasonable doubt as against the 2nd accused. 1. As held in**Joseph Waiguru Wangombe v Republic [1980] KECA 6 (KLR),** an accused who raises an alibi assumes no burden of proof, the prosecution must disprove it. Here, however, the alibi is not merely disproved by omission. It is affirmatively contradicted by direct eyewitness evidence (PW1) placing the 2nd accused inside the locked house, and PW-2 confronting him physically within minutes of the alarm, and by his own confession. An alibi cannot survive direct eyewitness placement of the accused at the scene, particularly where the accused's own extra-Judicial account corroborates his presence. The suggestion of a frame-up by Stephen (PW3) or unnamed third parties is speculative and unsupported: PW3's evidence, that the 2nd accused himself approached him to sell the deceased's telephone to raise bus fare, is more consistent with a guilty man's flight than with any design by PW3 to implicate an innocent one, and no motive, opportunity or evidence of collusion on PW3's part was established in cross-examination. The 2nd Accused was found in recent possession of a Nokia phone belonging to the deceased person, though he had sold it. The doctrine of recent possession permits this Court to draw an inference that the accused committed the offence of murder, unless he offered a reasonable and credible explanation as to how he had come to it’s possession, of which he did not. 1. The determination of criminal liability of the 1st accused is the most difficult issue in this case, and the one on which the two accused's positions diverge most sharply. There is no direct evidence that the 1st accused entered the deceased's house, used any violence on her, or was present when she was murdered. On the contrary, she is the person who raised the alarm and led PW1 and the Assistant Chief to the scene, conduct not ordinarily associated with a guilty participant in a violent murder. 2. The Prosecution's case against her rests on two pillars. The first is the 2nd accused’s confession, in which he states that the 1st accused told him where the deceased kept her money and when the opportune moment to steal it would be. That evidence, however, is inadmissible against the 1st accused as proof of the truth of its contents under **Section 32(1)** **of the Evidence Act** and as held in **Anyangu & Others v Republic [1968] EA 239;** a confession by one accused implicating a co-accused is evidence only against its maker, and **"evidence of the weakest kind"** against the co-accused, incapable without independent corroboration of founding a conviction against that co-accused. I hereby decline, as the 1st accused's submissions correctly urge, to treat the 2nd accused's account of her role as proof against her. 1. The second, and more substantial, pillar is the 1st accused’s own extra-Judicial statement, in which she is recorded as admitting to acting in concert with the 2nd accused to steal from the deceased, to knowing the deceased had visited the bank the day before, to knowing where the deceased kept her money, and to having received a share of the stolen proceeds. Unlike the 2nd accused’s confession, this is her own admission and is, in principle, direct and independent evidence against her. She confirmed the signature as hers and offered no evidence, such as an allegation of coercion or involuntariness, capable of displacing it. Taken at its highest, it establishes that the 1st accused shared a common intention with the 2nd accused to prosecute an unlawful purpose, theft from the deceased. **Section 21 of the Penal Code** provides that where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the execution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of that purpose, each is deemed to have committed the offence as underscored in***Solomon Mungai v Republic [1965] EA 363*.** 1. I have nonetheless weighed this against the considerations that properly tell in the 1st accused's favor. Her own statement, unlike the 2nd accused's confession, was not itself the subject of a trial within a trial on voluntariness, its evidential foundation is accordingly thinner than that laid for PEX 14, and it was put to her only in the course of cross-examination without the same procedural rigor. Her conduct immediately after the event; raising the alarm without prompting, leading PW1 and the Assistant Chief to the scene, and making no attempt to flee, sits uneasily with a person who anticipated, that a theft she had helped to plan would end up in murder. A common intention to steal does not, without more, establish that the death was a probable, as opposed to a merely possible, consequence of that design in the mind of every participant; the graver the ulterior offence, the more cogent the evidence of shared foresight must be:***Njoroge v Republic [1983] KLR 197*; *R v Tabulayenka s/o Kirya (1943) EACA***. 1. Guided by**Republic v Gachanja [2001] KLR 428; Miller v Minister of Pensions [1947] 2 All ER 372**, suspicion is not proof, and the benefit of any reasonable doubt must go to the accused. On balance, I am not satisfied to the standard of proof beyond reasonable doubt that the 1st accused shared, or ought reasonably to have foreseen, an intention to steal, extending to the murder of the deceased. There’s no sufficient evidence suggesting or even establishing such. I accordingly find the prosecution has not discharged its burden as against the 1st accused on the charge of murder. 2. I therefore do hereby find that the prosecution has proven beyond reasonable doubt that the **2nd accused, Samuel Gathogo Miano**, murdered Julia Ntheru Kaburu on 4th December 2013, contrary to **Section 203 as read with Section 204 of the Penal Code**. He is accordingly found **GUILTY** and is convicted as charged. 3. I as well do hereby find that the prosecution has not proved beyond reasonable doubt that the **1st accused, Mary Rael Syombua**, murdered the deceased. She is accordingly found **NOT GUILTY** of murder and is acquitted of that charge under **Section 322 of the Criminal Procedure Code.** **DATED AND DELIVERED AT MERU THIS 29TH DAY OF JULY, 2026.** **S.M. GITHINJI –JUDGE** **29/7/2026** **In the presence of:-** Mr. Ashaba for the 1st Accused. Mr. Karanja for 2nd Accused. Ms. Adhi for the State. M/s Adhi:- 2nd Accused is a first offender. We request his pre-trial sentence report. We can have a date for mitigation and sentencing. Mr. Karanja:- I also request for the said report. Court:- Pre – sentence report be availed by a Probation Officer. Mention on 29/9/2026. **S.M. GITHINJI –JUDGE** **29/7/2026**