[2025] KEHC 9725 (KLR)

Republic v Wanjala (Criminal Case E048 of 2021) [2025] KEHC 9725 (KLR) (4 July 2025) (Judgment)

Neutral citation: [2025] KEHC 9725 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Case E048 of 2021

RN Nyakundi, J

July 4, 2025

Between

Republic

Prosecution

and

Evans Juma Wanjala

Accused

Judgment

1. Evans Juma Wanjala was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that the accused on the night of 31st December, 2019 and 1st January, 2020 in Soweto Estate within Moi’s Bridge Town, within Soy Sub-County, in Uasin Gishu County murdered one SAN.

2. The accused person pleaded not guilty to the offence as stipulated under section 203 of the Penal Code. The lead prosecution counsel in these proceedings was Ms. Sidi Kirenge whereas the Accused person was represented by Mr. Kipsamwo under Art. 50(2)(h) of the Constitution.

3. In discharging its burden of proof, the prosecution called 7 witnesses who gave evidence in an attempt to establish the various elements of murder. The summary of their evidence is as follows:

4. SS, the minor’s mother, testified as PW1 stating that on 31st December 2019 at 6. 30PM, she sent her daughter to the shop around 500 metres away to deposit money at an Mpesa as well as to buy groceries. When it got to 8PM and her daughter had not returned, she went to look for her beginning from the MPESA shop since she had received the funds and confirmed that the minor had been at the shop but had left. She continued looking for her to no avail. The following day, she reported the matter to Moi’s Bridge Police Station. On 1st January 2020 she was informed that there was a dead body at the Soweto Estate Railway Line. Upon reaching the said site, she confirmed that the body was that of her daughter and observed that her neck had been twisted, her trouser and pantie had been lowered to the feet and hence she was half naked. The minor was still holding on to the groceries (dhania and pilipili hoho) she had been sent to get. She later escorted her daughter’s body to Kitale County Referral Mortuary where the post mortem was conducted. Later in June 2021, she was informed that there was a Suspect who had been arrested and that on 21st July 2021, the Suspect being the Accused person herein took PW1 together with other officers to various crime scenes where he had committed a similar offence, including at the Railway line in Soweto estate.

5. Maurice Otieno testified as PW 2 stating that on 31st December 2019, he met the minor at around 7PM and told her to hurry back home after her errands as it was getting late. Later at 9PM, he met with PW1 who questioned him about her daughter’s whereabouts. He was later informed on 1st January 2020 that the child was found dead at the Railway line and went on to confirm this position. PW2 was also present when the post mortem was conducted and where they were informed that S had been defiled and strangled.

6. Paul Karanja Njuguna testified that he met the minor on 31st December 2019 at around 7 PM and confirms that he assisted her deposit money in to her mother’s MPESA Account after which she went away immediately after. PW1 later called asking him the whereabouts of her daughter which he could not account for. On 1st January 2020, he was informed that S had died.

7. PC Okeyo stated that on 1st January 2020, he was informed of an incident of murder at Soweto kwa reli. Together with other officers, he proceeded to the scene where he witnessed the body of a minor who he later came to discover was SN, lying on her right-hand side. She was dressed in a red t-shirt and her long black trouser and her underpants had been removed to the feet. Blood was oozing from her vagina. The minor was clutching on to a paper bag which contained dhania and pilipili hoho. Late on 3rd January 2020, he escorted the body to the mortuary where the post-mortem was conducted and where he was informed that the minor had been defiled and strangled.

8. Dr. Dennis Nanyingi who testified as PW5 observed a number of external bruises on the Deceased including on the eyelids, cheek, mouth, the abdomen and the right hip area as well as a cylindrical depression on the anterior neck. He further observed a 2cm tear on the Deceased’s vagina. Internally, there was a pool of blood in the digestive system and the bladder was shrunk with no urine. His conclusion was that the Deceased died due to Asphyxia secondary to strangulation as well as defilement. The Post Mortem was submitted as evidence in support of this.

9. Chief Inspector Brigit Lutta furnished the exhibit memo form, photographs, DVD and certificate of photographic print that depicted the scene as previously described.

10. PW7 one PC Romana Oduor attached to the DCI headquarters homicide department told the court that he was part of the team which investigated this incident where a minor young girl had been killed. It was his testimony that on arrival at Moi’s Bridge area he was properly briefed about victims of murder aged between 10 and 15 years who went missing from the locality. The investigation conducted according to PW7 revealed that one LCK aged 13 years went missing on 11th June, 2021 and her body was discovered on the 15th June, 2021 near cereals staff quarters. The second victim was ME aged 14 years stated to have gone missing on the 15th December, 2020 and her body discovered on 16th December, 2020 near Baharini dam near Moi’s Bridge location. The witness went further to explain to the court that there was a third victim by the name GN aged 12 years had gone missing on 21st May, 2020 and her suspected body remains were recovered on 18th June, 2020 at Sironoi farm within Moi’s Bridge having reached an advanced level of decomposition. Similarly, it was the evidence of PW7 that the investigation further revealed that SNA aged 10 years also went missing on 31st December, 2019 and her body was recovered on 1st January, 2020 near Railway line at Soweto area within Moi’s Bridge town. In addition, the investigation did not end there for one LW aged 14 years old had gone missing at around 1100hours on 15th February, 2020 and her body was found wrapped in a white nylon sack concealed with some vegetables at a nearby bush within Moi’s Bridge area. That all the victims had signs of defilement and physical torture depicting similar modus operandi which gives an inference that the assailant was a serial killer/pedophile. The witness went further to explain to the court that the accused person made an out of court confession articulating how he carried out his heinous act and that confession assisted the investigation in visiting all the scenes which were all within Moi’s Bridge. That is how they reached a conclusion to have the DNA samples of the victim SAN compared with the samples of the accused person to establish whether he could be placed at the scene of the murder. According to the exhibit memo report dated 9th July, 2021 prepared by PW7 is indicative of the following exhibits recovered and sent to the government analyst:“SN – 1” Red torn t-shirt with stains“SN- 2” purple and white pantie torn in the middle“SN-3” Black trouser with brown spots.All from the victim of the murder of SN

11. In addition, the exhibit memo forwarded blood samples from the suspect Evans Juma Wanjala in which a DNA profile was conducted to establish whether he was connected with the death of the deceased.

12. The Government Analyst report dated 2nd August, 2021 was admitted in evidence as an exhibit in support of the prosecution’s case established the following DNA match from the samples analyzed at the lab as the conclusion and the opinion of the report does affirm:“That based on the findings the DNA profile generated from the vaginal swabs marked as item A and C and the long pair of trousers, item SN3 matches the DNA profile of SN the deceased, whereas the DNA profile generated from the seminal stains on the T-shirts and the panty belonging to the deceased matches the DNA profile of Evans Juma Wanjala.”

13. At the close of the prosecution case pursuant to section 306 of the criminal Procedure code, a finding was made by this court that a prima facie case has been made out by the prosecution on the elements of the offence of murder contrary to section 203 of the Penal Code. As a constitutional imperative under Art. 50 of the Constitution as read with section 306 and 307 of the Code, the accused elected to give an unsworn in which the Accused denied the allegations stating that on the night of 31st December 2020 going to 1st December 2020, he went and got drunk in order to usher in the new year and therefore did not recall the events of that evening. He further added that on 1st he was too tired to wake up. From the 1st he continued with his work as a mason before being arrested.

Analysis and Determination** 14. Having provided that background and examined both the evidence presented and submissions filed, this court must now determine whether the prosecution has established a case against the accused person to the required standard of proof beyond reasonable doubt as to the individual responsible for the death of SAN. Section 203 defines the offence of murder and requires proof of the following elements beyond reasonable doubt, to establish the offence of murder: proof of death, the cause of that death, proof that the death was due to an unlawful act or omission, that the unlawful act or omission was on the part of the suspect and that the unlawful killing was with malice aforethought.

15. The prosecution's evidence must be evaluated in accordance with the provisions of Section 107(1), 108, and 109 of the Evidence Act, which stipulate the fundamental principles of burden of proof. Section 107(1) provides that whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side, while the burden of proof as to any particular facts lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

16. The proper approach in analyzing both the case for the prosecution and defence is by internalizing the principles in the case of R vs Mlambo 1957 SA 727 in which the judge stated that in my opinion there is no obligations upon the crown for our case the state to close every avenue of escape which may be said to be open to an accused. It is sufficient for the crown or state to produce evidence by means of which such a high decree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must in other words be morally certain of the guilty of the accused. An accused is claim to the benefit of a doubt when it may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created by positive evidence or gathered from reasonable influence which are not in conflict with or outweigh by the proved facts of the case.

17. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.”

18. The first issue for consideration is proof of death. In the instant case, there is no dispute of the deceased's death. This was confirmed by all the prosecution witnesses, more so by the evidence of Dr. Dennis Nanyingi who testified as PW5 and carried out the postmortem on the deceased's body. After examination, he observed a number of external bruises on the deceased including on the eyelids, cheek, mouth, the abdomen and the right hip area as well as a cylindrical depression on the anterior neck. He further observed a 2 cm tear on the deceased's vagina. Internally, there was a pool of blood in the digestive system and the bladder was shrunk with no urine. His conclusion was that the deceased died due to asphyxia secondary to strangulation as well as defilement. Accordingly, it is the court is satisfied that the prosecution has satisfied this element beyond reasonable doubt.

19. The next question is whether the death of SAN was caused by an unlawful act or omission. Article 26(1) of the Constitution guarantees every person the right to life. The postmortem report prepared by Dr. Dennis Nanyingi revealed that the deceased's cause of death was asphyxia secondary to strangulation combined with defilement. The doctor found evidence of sexual assault including a 2 cm tear on the deceased's vagina and external bruises on various parts of the body. PC Okeyo's testimony corroborated this finding, as he observed that the minor's trousers and underpants had been removed to the feet and blood was oozing from her vagina when the body was discovered at the railway line. In the circumstances, I am persuaded beyond reasonable doubt that the deceased SAN died out of an unlawful act.

20. The other question is whether it was the accused Evans Juma Wanjala who unlawfully caused the deceased's death. None of the prosecution witnesses actually saw the accused kill the deceased. In essence, the prosecution case was based on circumstantial evidence.

21. Nobody actually saw the accused attack and assault the deceased. the prosecution relies on circumstantial evidence. Circumstantial evidence is said to be the best evidence. This is what the court stated in Neema Mwandoro Ndunya vs. Republic CRA 466 of 2007 where the court of Appeal cited with approval the case of R vs. Taylor Weaver and Donovan (1928) 21 CRC 20 the court said:-“Circumstantial evidence is often said to be the best evidence. It is the evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with accuracy of mathematics”.

22. Circumstantial evidence, though the best evidence, must be taken with utmost caution where the court relies on it entirely. In Teper vs. R (1952) AC at page 489 the Court said as follows:-“Circumstantial evidence must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of accused’s guilt from circumstantial evidence, to be sure that there are no coexisting circumstances which could weaken or destroy the inference.”

23. In Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, the Court of Appeal stated as follows on reliance on circumstantial evidence:“However, it is a truism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: 'It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”

24. In this case, the most compelling evidence linking the accused to the crime is the DNA analysis conducted by the Government Analyst. The DNA Report dated 2nd August 2021 conclusively established that the DNA profile generated from the vaginal swabs marked as item A and C and the long pair of trousers item SN3 matches the DNA profile of SN the deceased, whereas the DNA profile generated from the seminal stains on the T-shirt and the panty belonging to the deceased matches the DNA profile of Evans Juma Wanjala. This scientific evidence provides direct proof that the accused engaged in sexual contact with the deceased.

25. PW1 SS testified that on 31st December 2019 at 6. 30PM, she sent her daughter to the Mpesa shop around 500 metres away to deposit money and buy groceries. When the child failed to return by 8PM, she went looking for her. The following day, she was informed that there was a dead body at the Soweto Estate Railway Line. Upon reaching the site, she confirmed that the body was that of her daughter and observed that her neck had been twisted, her trouser and pantie had been lowered to the feet and she was half naked. The minor was still holding on to the groceries she had been sent to get.

26. The evidence of PW7 PC Romana Oduor adds significant weight to the prosecution's case. His testimony established that the accused was responsible for a series of murders targeting young girls in the Moi's Bridge area, all displaying similar modus operandi involving defilement and physical torture. The investigation revealed that LCK aged 13 years went missing on 11th June 2021, ME aged 14 years went missing on 15th December 2020, GN aged 12 years had gone missing on 21st May 2020, and LW aged 14 years had gone missing on 15th February 2020. All the victims had signs of defilement and physical torture depicting similar modus operandi which gives an inference that the assailant was a serial killer and pedophile.

27. PW7 further testified that the accused person made an out of court confession articulating how he carried out his heinous acts, and that confession assisted the investigation in visiting all the scenes which were all within Moi's Bridge. This confession provides additional corroboration and demonstrates the accused's intimate knowledge of the crime and his participation in it.

28. In construing and interpreting each facts and evidence by the 7 witnesses this court has come to the conclusion by laying emphasis on the credibility of the witnesses, there reliability in explaining the chain of events which subsequently led to the recovery of the deceased body and further investigations conducted placed the accused at the scene of the crime. The witnesses candour and demeanour suffered no internal or external contradiction and as such all aspects pointed towards the commission of this heinous crime against the deceased and there was no break in the chain that it was committed by non other than the accused himself before this court. The elements of the offence of murder which has been measured or weighed with the evidence of the 7 prosecution witnesses and proven beyond reasonable doubt include:a.That the deceased SAN is deadb.That her death was unlawfully causedc.That in causing death the perpetrator herein being the accused person was actuated with Malice Aforethought contrary to Section 206 of the Penal Code.d.That the perpetrator or accused person before court was positively identified by the circumstantial evidence and placed squarely at the scene of the crime.

29. The proper test of what constitutes a crime of murder proven beyond reasonable doubt is manifested in the circumstances surrounding the death of the deceased as logically established within the text, context, and content of the analysis laid down in the four corners of this judgment.

30. From the evidence adduced by the prosecution, it is clear that the DNA evidence unerringly points to the accused as the perpetrator of this heinous crime. The scientific evidence, corroborated by the pattern evidence of similar crimes and the accused's own confession, forms a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

31. Finally, on the question of whether there was malice aforethought on the part of the accused, Section 206 of the Penal Code defines malice aforethought as follows:“206. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—(a)an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;(b)knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;(c)an intent to commit a felony;(d)an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony."

32. The Court of Appeal in the case of Joseph Kimani Njau v R (2014) eKLR held as follows:“Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused;i.The intention to cause death;ii.The intention to cause grievous bodily harm;iii.Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts. It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed......"

33. In the instant case, Dr. Dennis Nanyingi who carried out the postmortem on the deceased's body testified that his examination revealed that the cause of death was asphyxia secondary to strangulation combined with defilement. The doctor observed a cylindrical depression on the anterior neck indicative of strangulation and a 2cm tear on the deceased's vagina evidencing sexual assault. The deceased minor in my opinion suffered such a terrible death, being defiled and then strangled to death. The evidence shows that the accused engaged in sexual intercourse with the minor, as confirmed by the DNA analysis, and then proceeded to strangle her to death.

34. The act of defilement of a minor is itself a felony under our laws. The subsequent strangulation that caused the victim's death occurred in the context of this felonious act. The nature and manner of the killing, involving strangulation that left a cylindrical depression on the neck, demonstrates a deliberate application of force with knowledge that such force could cause death or grievous harm. The evidence of PW7 regarding the accused's confession and the pattern of similar crimes involving multiple young victims all displaying the same modus operandi of defilement and murder further establishes the deliberate and calculated nature of these acts.

35. The accused must have intended to cause the deceased grievous harm or death, particularly given the pattern of similar crimes he committed against young girls in the area. In the circumstances I am persuaded beyond reasonable doubt that the prosecution also proved this element of the presence of malice aforethought on the part of the accused beyond reasonable doubt.

36. I am persuaded and convinced from the facts of this case which were never deconstructed by the defence that the foresight of death, murder under Section 203 of the Penal Code as a probable consequence of the unlawful acts of the omission by the accused are definitive and precise. In support of this proposition, the court in Hyam v DPP (1975) AC 55 in which the house of Lords took the approach on manifestation Malice Aforethought that it is murder not only if a person intended to kill or cause grievous bodily harm to another but also where it was established that a person had knowledge or foresight that the Act which caused death would probably cause death or grievous bodily harm to another and proceeded indifferent to the consequences. In the same court, Lord Diplock said in respect of the state of mind for the offence of murder as follows: What is common to both this state of mind is willingness to produce the particular evil consequences and this in my view is the mens rea needed to satisfy a requirement whether imposed by statute or existing at common law that in order to constitute the offence with which the accused is charged he must have aced with “Intent” to produce a particular evil consequence or in the ancient phase, which still survives in crimes of homicide, with malice aforethought. When the law requires that something must be proved to have been done with a particular intent it means this, a man intends the consequences of his voluntary act when he desires it happen, whether or not he foresees that it will probably happen or when he foresees that it will happen whether he desires it or not,

37. These guideline principles in the Hyam case when weighted against the circumstantial evidence of the seven witnesses taken cumulatively do point to the guilty of the accused person as having intended the consequences of his action, by kidnapping the victim, committing the sextual acts of defilement and finally inflicting fatal injuries and abandoning the body at the scene to decompose as a means of destroying credible evidence. However, as luck will have it he was to be investigated, arrested, and charged with this offence which he must face the full force of the law.

38. In my own assessment, and having been taken through by the prosecution counsel, on the transactional evidence pieced together by the witnesses summoned to lay the foundation of the indictment against the accused person there is no doubt left in my mind that this was a planned and premeditated offence combining the serious harm of defilement under Section 8 (1) of the Sexual Offences Act and subsequent violation of the right to life guaranteed under our Article 26 of the Constitution.

39. A peruse of the penal code, has not alluded to the definition or elements of planned ore premeditated offences. However comparative law jurisprudence provide some guidance as can be appreciated herein under. This position is well set out in the case of S v Taunyane 2018 SACR (1) 163 clearly the concept suggest a deliberate weighing up of the proposed criminal conduct as opposed with the commission of the crime on the Spur of the moment or in unexpected circumstances. There is however, a broad continuum between the two poles of a murder committed in the heat of the moment and one which had been conceived and planned over months or even years before its execution…Only an examination of all the circumstances surrounding any particular murder, including not least the accused state of mind, will allow one to arrive at the conclusion as to whether a particular murder is planned or premeditated. In such an evolution the period of time between the accused forming the intent to commit the murder or carrying out this intention is obviously of cardinal importance but, equally, does not at some arbitrary point provide a ready-made answer to the question for whether the murder was planned or premeditated” Similarly in S v PM 2014 (2) SACR 481 where the court stated that it was found that the concepts were distinct from each other-premeditation referring to something done deliberately after rationally considering the timing or method of so doing, calculated to increase the likelihood of success, or to evade detection or apprehension” While planning refers to “ a scheme designed or method of acting, doing, proceeding or making which is developed in advance as a process, calculated optimally achieve a goal.

40. The inference I draw from the circumstances of this case, is that the issue of young girls below the age of 18 or within the bracket of tender years were being searched and traced by the offenders like the accused person before court, who cost each of their victim to go missing and if discovered they were already defiled and subsequently killed and their existence became a mirage as their dream of survival was pre-maturely terminated. The proved facts are that this was a well planned and premeditated offences of defilement against the victims and at the end of it all they were brutally killed from the face of the earth. As such in the view of this court, it can be said that the prosecution proved beyond reasonable doubt that the murder as defined under Section 203 of the Penal Code was planned, premeditated hence a manifested of Malice Aforethought.

41. Accordingly, it is my finding and holding that the prosecution has proved all the ingredients of the offence of murder against the accused Evans Juma Wanjala beyond reasonable doubt. I record and enter a finding of guilty against the accused as charged. The sentencing hearing is scheduled for 12th March, 2025.

RULING ON SENTENCING** 42. The accused person was charged and convicted for the offence of murder contrary to section 203 as punishable under 204 of the Penal Code. The matter was scheduled for hearing on sentence wherein the parties filed their respective written submissions on the question of sentence, which submissions are captured as hereunder:

The Prosecution written submissions** 43. Learned Counsel Ms. Kirenge submitted that the Judiciary Sentencing Guidelines emphasize the principle of proportionality as a fundamental consideration in determining an appropriate sentence. That this principle requires that the punishment imposed corresponds precisely to the seriousness of the conduct in question and as such it should neither exceed nor fall short of what is justified by the nature and severity of the offence. Counsel further submitted that in evaluating proportionality, the court considers the actual, intended, and foreseeable consequences of the offence, as well as the degree of culpability of the offender.

44. Ms. Kirenge invited this court to note the deplorable manner in which the deceased a girl aged 8 years, met her death:a.The deceased was discovered with her neck visibly twiste, suggesting the use of extreme force in the act that caused her death.b.The deceased similarly had multilple bruises literally all over her body extending from her on her eyelids, cheek and mouth, going down to her neck, abdomen and hip area.c.As a result of these injuries she suffered internal bleeding.d.The minor had a 2 cm tear in her vagina indicating that she had been sexually assaulted prior to her death. Further evidence showed that the seminal fluid of the accused was found on the victim’s t-shirt and inner wear.e.Her body was found lying on its side, indicating that she may have been left in that position after the fatal act.f.The child’s trousers and undergarments had been pulled down to her feet, leaving her exposed from the waist downward.

45. Learned Counsel in agitating for a proportionate sentence submitted that the state in which the body was found reflects not only violence by also severe degradation and violation of the deceased’s dignity. That the sentence that this court imposes must promote, and not undermine, human rights and fundamental freedoms. She quoted the decisions in State vs. FAO (2021) KEHC and Republic v. Ayako (Petition E002 of 2024) (2025) KESC 20 (KLR) (11 April 2025) and proposed a life sentencing, which in her opinion would befit the objectives of retribution, deterrence, rehabilitation and restorative justice.

Accused Mitigation** 46. The accused in his submissions stated that he comes from a humble background and he has been doing menial work to earn a living before he was charged and he is a person of good character who regrets his actions which resulted to his conviction.

47. Learned Counsel Mr. Kipsamo observed that the accused is a first time offender and therefore urged the court not to apply the maximum penalty for this offence. Further that the accused is a young man, with a bright future ahead. He urged for leniency as the accused will not be able to start a family, if given the maximum sentence or lengthy sentence and his family will be filled with grief if there will be no opportunity for the re-uniting with him again in future. Counsel also prayed that the time spent in remand be considered in the final sentence.

48. Let me start with the Supreme Court decision in Francis Muruatetu & Another V Republic [2017] eKLR in which the Supreme Court of Kenya while retaining the death sentence found that its mandatory nature was unconstitutional and for the purposes of this sentence had this to say:“45. To our minds what Section 204 of the Penal Code is essentially saying to a convict is that he or she cannot be heard on why in all the circumstances of his/her case. The death sentence should not be imposed on him or her, or that even if he or she is heard, it is only for the purposes of the record as at that time of mitigation because the court has to impose the death sentence nonetheless, as illustrated by the foregoing Court of Appeal decision. Try as we might we cannot decipher the possible rationale for this provision. We think that a person facing the death sentence is most deserving to be heard in mitigation because of the finality of the sentence.46. We are of the view that mitigation is an important congruent element of fair trial. The fact that mitigation is not expressly mentioned as a right in the Constitution does not deprive it of the necessity and essence in the fair trial process. In any case, the right pertaining to fair trial of an accused pursuant to Article 50 (2) of the Constitution are not exhaustive.”

49. The court further stated that:“58. We now lay to rest the quagmire that has plagued the court with regard to the mandatory nature of Section 204 of the Penal Code. We do this by determining that any court dealing with the offence of murder is allowed to exercise judicial discretion by considering any mitigating factors in sentencing an accused person charged with and found guilty of that offence. To do otherwise will render a trial, with the resulting sentence under Section 204 of the Penal Code unfair thereby conflicting with article 25(c), 28, 48 and 50(1) and (2) (g) of the Constitution.”

50. The present case involves far more aggravating circumstances than typical domestic murder cases. This involves the systematic targeting and murder of multiple innocent children by a serial killer. In Dennis Kirui Cheruiyot [2014] eKLR, the Court of Appeal noted that when dealing with serious offences like murder, particularly involving minors, custodial sentences are necessary to enable offenders to bear the weight and responsibility of their actions.

51. The principle of proportionality requires that the punishment imposed corresponds precisely to the seriousness of the conduct in question. The Judiciary Sentencing Guidelines emphasize that the sentence should neither exceed nor fall short of what is justified by the nature and severity of the offence.

52. The sentencing objectives in Kenya have been captured in the Judiciary Sentencing Policy Guidelines to be the following:“Retribution: to punish the offender for his criminal conduct in a just manner.Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.Rehabilitation: to enable the offender reform from his criminal disposition and become a law abiding person.Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.Community protection: to protect the community by incapacitating the offender.Denunciation: to communicate the community's condemnation of the criminal conduct.”

53. Having carefully weighed all the aggravating and mitigating factors, and considering the objectives of sentencing, I am of the firm view that this case calls for a substantial custodial sentence that reflects the gravity of the crimes and serves the multiple purposes of punishment, deterrence, community protection, and denunciation.

54. The systematic nature of these crimes against vulnerable children, the accused's role as a serial killer and pedophile, and the devastating impact on the community require a sentence that adequately reflects society's abhorrence of such conduct. The sentence must also serve to protect the community from an offender who has demonstrated a clear pattern of predatory behavior against children.

55. While I note the accused's claim of youth as a potential mitigating factor, the evidence of his repeated targeting, sexual assault, and murder of innocent children demonstrates a level of moral depravity that far outweighs any considerations of youth. The possibility of rehabilitation, while always to be considered, must be balanced against the overwhelming need to protect society from an offender who has shown a persistent pattern of the most serious and depraved criminal conduct.

56. An aggravating feature of the present crime is the manner the accused accosted the minor of tender years whom in our society she could have looked up to for protection, trust and guarantees of survival rights but it so happened that those values were all substituted with unlawful acts of kidnap, attack, defilement and abandonment by the accused in the instant case. the conduct of the accused perpetrated and violated various constitutional rights of the victim including her human dignity, bodily integrity and privacy. The defilement is a stand alone offence as defined in section 8(1) of the Sexual Offences Act and for this specific case is punishable under Section 8(2) of the same Act which the legislature set at life imprisonment. This means had the victim not been killed in violation of Art. 26(3) of the Constitution, which essentially outlaws the depriving of life intentionally, except to the extent authorized by the Constitution or other written law, the accused was liable to life imprisonment in the first instance. After defilement what followed was planned, meditated and brazen. Given the facts of the matter, the accused went further not only to commit the act of defilement but violated the right to life under section 203 of the Penal Code punishable with death under section 204 of the Code. I need not reiterate the various dimensions of the offences committed against the deceased and its likely long lasting impact on a family.

57. Sentencing involves a very high degree of responsibility which should be carried out with a sense of punishing crime protecting our communities and to discourage the will-be offenders out there already encompassing an intention to engage in such heinous activities like the accused person in this case. It is trite law in our jurisdiction that courts have repeatedly emphasized that a sentence imposed by a trial court must always be individualized, considered and passed dispassionately, objectively and upon careful consideration of all relevant factors. Therefore, there must be an appropriate nexus between the reprehensible conduct of an accused person, the seriousness and severity of the crime committed in which he has been successfully prosecuted, found guilty and convicted within the spectrum of the Penal Law. This court takes judicial notice of the rampant cases of defilement and femicide which have surged in recent times even necessitating the president to appoint a task force in furtherance of finding a common purpose to deal with such heinous crimes within our society. While personal circumstances as advanced by learned counsel may be of significance but taken cumulatively do not constitute substantial and compelling circumstances to accord the accused person a non-custodial or a lesser sentence than life imprisonment. Throughout the sentencing hearing, I find no concrete evidence that the accused has shown genuine remorse or taken any steps to translate his remorse and regret on paper into action. In the comparative case of S v. Matyityi (2011) (1) SACR 40 (SCA) it was observed:“There is moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself as having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; where he or she does indeed have a true appreciation of the consequences of those actions.”

58. From the mitigation advanced by the accused person, there is nothing near like being remorseful or regretting the offence which he committed against the deceased. The best the court has is his youthful age as a young adult but that is even not excusable. It is a call for a higher moral standard to protect the vulnerable of our society like the deceased in this case.

59. The DNA evidence proving sexual assault, combined with the serial nature of these crimes against children, places this case in the most serious category of murder cases. The protection of innocent children from sexual predators and killers is a paramount duty of the courts. A sentence that fails to adequately reflect the gravity of these crimes would fail to serve the interests of justice and community protection.

60. This crime committed against a victim of tender years is so serious such that any mitigation advanced by the accused person now convict does not constitute compelling all exceptional circumstances to impose a verdict of a lesser period which may be contemplated in any event by the convict in this case. It becomes clear from the facts of this case that the offence is deserving a substantial period of imprisonment but given the provisions of Section 8(1) as read with Section 8(2) of the Sexual Offences Act and subsequently combined with the sentencing guidelines applicable to Section 204 of the Penal Code which sets a maximum sentence for murder to be that of the death penalty, in my considered view whether the accused or convict is married, single, has been blessed with children, who may even be at their tender years, whether the accused or convict has been in gainful employment before the commission of the offence, or is a first offender, with no previous conviction are all largely of no weight to be measured to avoid this court to pass a fair and proportionate sentence for the offence.

61. Accordingly, I sentence the accused Evans Juma Wanjala to life imprisonment contrary to Section 204 of the Penal Code as read with Section 8(2) of the Sexual Offences Act, if need be without parole within the provisions of Article 133 of the Constitution under the letter and spirit of the power of mercy.

62. Orders accordingly. 14 days Right of Appeal Explained.

DATED SIGNED AND DELIVERED AT ELDORET THIS 4TH JULY, 2025In the Presence of:Mr. Kipsamu for the AccusedM/s Sidi Kirenge for the State…………………………………………R. NYAKUNDIJUDGE