https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6596

State v Gitahi alias Soldier Boy (Criminal Case 4 of 2019) [2026] KEHC 6596 (KLR) (12 May 2026) (Judgment) Neutral citation: [2026] KEHC 6596 (KLR) Republic of Kenya In the High Court at Voi Criminal Case 4 of 2019 AN Ongeri, J May 12, 2026 Between State Appellant and Mark Marobe Gitahi alias Soldier Boy Respondent Judgment 1.The Accused person in this case, David Mark Marobe Gitahi Alias Soldier Boy is charged with murder as 203 as read with section 204 of the Penal Code. 2.The particulars of the charge were that on 29/3/2019 at Rockland Bar in Taveta County, the Accused person murdered Juma Mwangeka. 3.The Accused person pleaded not guilty to the charge. 4.He was represented at the trial by Mr. Muthami Advocate. 5.The prosecution called a total of 19 witnesses whose evidence is summarized hereafter. 6.PW1 Janet Wanjala Juma who is a sister to the deceased Juma Mwangeka said that on 30/3/2019 in the evening at about 4.pm, she was called by her sister called Margaret who told her that the deceased had been shot and he was admitted at Taveta Hospital. 7.PW1 proceeded to Taveta Hospital where she found the deceased had died. She said she attended the post mortem. The body had four (4) bullets on the ribs, chest and on the back. 8.PW2, Mwakughu Juma said the deceased was his younger brother. He said on 30/3/2019, the employer of the deceased called him and told him that he did not see the deceased at the place of work. 9.PW2 investigated and found that the deceased had been shot dead the previous night at Taveta. He said he attended the post mortem. 10.PW2 said the deceased was working as a Shamba boy in Taveta. He said the last time he saw the deceased alive was in 2018 when he went home. 11.PW3, DR Christopher Mbogho Mliwa produced the post mortem report. He said he did the post mortem on 4/4/2019 at 11.00am. 12.PW3 said the cause of death was cardiopulmonary arrest as a result of massive intrathoracic hemorrhage from injuries to the heart, lungs and liver due to bullet wounds. 13.PW4 Chief Inspector Kennedy Atomba who works as a ballistic expert said on 15/4/2019, he received the following exhibits:i.One pistol SN 40306221 marked “A”ii.Pistol magazine marked “B”iii.10 rounds of ammunition marked “C” 1-10iv.Another round of ammunition marked “D”v.3 fired cartridges marked “E” 1-3vi.One bullet – marked “F”. 14.PW4 said the exhibits were escorted with an exhibit memo and he was asked to ascertain the following;i.Whether exhibit marked “A” is a firearm under the Fire Arms Act;ii.whether exhibit marked “A” was capable of firing.iii.Whether exhibit marked “B” can be filled and used in the exhibit marked “A”iv.Whether the caliber of exhibit marked “C1 – C10” is the caliber of exhibit marked “D.v.Whether exhibit marked “A” can fire exhibit marked “C1 – C10”, “D”, “E1” to “E” 2 and “F”.vi.Whether E 1-3 and F were fired from exhibit marked “A”.vii.Description of exhibits marked “A”, “B”, “C” 1 – “C” 10, “D”, “E” 1 - to “E” 3 and “F”. 15.PW4 said upon examination of the exhibits, he ascertained that the exhibit marked “A” was a Jericoh pistol in caliber 9mm designed to charge and fire rounds of ammunition in caliber 9 and 19mm such as exhibit marked “C” 1 – “C” 10 and exhibit marked “D”. 16.PW4 said it was successfully test fired using 3 rounds of ammunition marked at random from exhibit marked “C”1 to C” 10 and exhibit marked “D”. PW4 said the exhibits fired were “C” 2, “C”4 and “C”9. 17.PW5, Corporal Musumba, said he arrived at the scene on the night of the incident after being called after the incident and he did not witness the actual shooting take place. 18.PW6, Francis Chege, the club manager, testified that the accused sat alone in a position with a view of the room before the deceased arrived and sat at an adjacent table. He said went outside with others just before the shots were fired. 19.PW7, John Mwambingu testified to being at the scene at 11:00 p.m., where he heard gunshots and subsequently heard the accused shout in Kiswahili, “nimeua yule mwizi sugu,” indicating he had killed a notorious thief. 20.PW10, Josiah Malombe, the club owner, was at his house during the incident and only arrived afterwards. 21.PW11, Richard Musa Kisenge said he had employed the deceased in his shamba since January 2019. He did witness the shooting. 22.PW13, Shem Asha, a forensic expert, testified that he received and developing photos from the investigating officer. 23.PW14, Antony Nderitu said he heard the accused shout about killing a robber but stated he did not see the weapon or the act. 24.This court took over this case under Section 200 of the Criminal Procedure Codes at this stage and continued from PW15. 25.PW15 Victoria Lelengeshu said she is a business woman at Taveta. On 29/3/2019, she was at Rockland Club where she was working. 26.PW15 said she was serving her customers and the accused person in this case was one of the customers. 27.PW15 said the Accused person was with other police officers drinking alcohol on one table. 28.She said there were about five (5) people at the table with a lady called Gloria. 29.PW15 said a man entered the club with a boda boda man and he ordered for Balozi beer while the other person ordered for a soda. 30.They sat on the same table the Accused person was seated and one of them ordered for food. They at the food and they all left. 31.At 7.30 to 8.00pm, the Accused person returned holding a tusker in a can. 32.The Accused person went to the table. PW15 was seated with her friend Irene and he gave them a high five and he went and sat at a table and continued drinking. 33.Shortly, after that, the Accused person called PW15 and asked for his bill. He paid and continued drinking. 34.PW15 said two boys entered the club. She did not know them. They went to the counter and bought Guinness beer. 35.The two boys went to a table which was far from the Accused person and they started drinking. 36.After that PW15 heard Irene saying “look at Soldier boy, he is removing his thing”. 37.PW15 looked and saw the Accused person remove his gun and he started shooting at the two boys. 38.PW15 said all the people ran out of the club. She also ran away to Bushel Hotel where she hid. Later police arrived and PW15 went back to the club. 39.PW15 said she saw the body of the deceased lying down with blood on the floor and the table had been cracked. She also saw spent bullets. 40.PW15 said the Accused person had been arrested by an officer called Maina. 41.PW15 said police came and took the body. She could not remember what clothes the deceased was wearing. 42.PW16, CIP Paul Kimburu said on 29/3/2019, at around 23.30 hours, he was at his residence at Taveta when he was called by Corporal Geoffrey Musumba who was the duty officer. 43.He was told that there was a shooting incident at Rockland Club. PW16 told SSP Mwita Malwa and SSP Ouko the DCIO and within a short time they all went to Rockland Club with the OCPD. 44.PW16 said on the way, the Accused person yielded his gun. PW16 said at the scene, he saw the body of a man aged 36 years old lying down facing uPWards with blood flowing profusely. 45.PW16 said the Accused person went to the police station where he was disarmed. 46.PW16 said he recovered 3 spent cartridges caliber 9ccm and one used ammunition. 47.PW16 said after the scene was processed, the body was taken to the mortuary. He said the Accused person appeared very drunk. 48.PW16 took action against the Accused person by charging him with murder after investigations. 49.In cross-examination, PW16 said there was an incident which occurred 2 or 3 weeks whereby thugs killed a police officer. 50.He said the matter was under investigations. He said he is the one who charged the Accused person with murder. 51.PW17 Corporal Isaac Wanyoike currently working at DCI Nakuru was working at DCI office at Taveta at the material time. 52.PW17 said on 29/3/2019, at 23.45 hours, he was sleeping in his house when he received a call from the accused person. 53.The Accused person who was working at Taveta Police Station told PW17 that he had seen a robbery suspect whom they were tracking and the pone went off. 54.PW16 said as he was trying to call the Accused person back, the Accused person again called PW17 and told him that he had killed the thug. 55.PW17 tried to get the facts but the Accused person appeared to be in a place that was noisy. 56.PW17 said he immediately received a call from RP Barton with whom he had been looking for a thug who had fled from Mombasa to Taveta after committing a number of robberies. 57.He said he proceeded to the police station where he saw the Accused person who told him he had killed the thug they had been looking for. 58.PW17 said the DCIO arrested the Accused person and placed him in the cells and he was charged with murder. 59.PW17 said the accused person was not coherent in the way he was explaining himself. 60.PW18 CIP Caroline John who was working at DCI Taveta at the material time said she received a call at 8.00 hours on 30/3/2019 from the DCIO Taveta CIP Ouko who informed her about a shooting incident at Rockland Club. 61.PW18 said she read about the incident in the OB and proceeded to Rockland Club where she met the DCIO with Corporal Wanyoike, PC Sanya, Corporal Ouko and the Club Manager Mr. Chege. 62.PW 18 SAID Mr. Chege showed them where the Accused person was seated and where the deceased was seated with his friend. 63.PW18 said the scene was reconstructed and a rough sketch plan drawn and later she did a fair sketch which she produced as an exhibit in this case. 64.PW18 took statements from the witnesses and finally charged the Accused person with murder. 65.PW18 said the Accused person had been allocated a Jerrico pistol KP40306221 per the firearm register with 14 rounds of ammunition. 66.When he returned the pistol on 29/3/2019 there were 4 rounds less. The pistol was returned with 10 rounds of ammunition. 67.PW18 said the post mortem was done on 4/4/2019 at Taveta County Hospital. 68.The postmortem report stated that the body had bullet wounds on the heart, lungs, and liver. 69.The Pathologist formed the opinion the cause of death was cardiopulmonary arrest as a result of massive intrathoracic hemorrhage. 70.PW19 Investigations Officer James Magondu Mburu said he was currently based at Eldoret IPOA office. 71.PW19 said at the material time he was based at Mombasa IPOA Regional Office which covers Taveta. 72.PW19 said on 1/4/2019, the authority received a report through the media in the Daily Nation about a shooting incident. 73.The information was captured as IPOA/CMV/000882/2019 and a team of investigators were sent to Taita Taveta. 74.PW19 was in the team together with Asia Chazo. 75.At Taveta Police Station PW19 obtained the following;i.The OB entries for 28/3/2019ii.A signal relating to the shooting incident that occurred on 28/3/2019.iii.Arms registrar movement for 28/3/2019 to 29/3/2019.iv.Duty rooster for the week ending 3/3/2019v.List of the officers involved in the shooting. 76.PW19 explained in great detail all the investigations that were undertaken in this case as related by the other witnesses (PW1 TO PW18) and he said the accused person was eventually charged with murder. 77.In cross examination PW19 said the work of IPOA is to investigate complaints against Police Officers. 78.PW19 also said he went to the home of the deceased and confirmed he was a man of good behavior. 79.At the close of the prosecution case, this court found that the prosecution had established a prima facie case to warrant the accused person to be placed on his defence. 80.The court ruled that the Accused person has a case to answer. 81.The Accused person gave a sworn statement and said he had worked with the police force for 35 years before the incident. 82.He said on 29/3/2019, he was on duty the previous night and in the morning he did not have time to return his jerrico pistol since he received a distress call from Malkoriti Area. 83.It was a case of cruelty to animals where a suspect had hacked 24 animals with a panga. 84.When the Accused person returned to the station, he was again sent to Chumvini Area where there was a case of suicide. 85.The Accused person went and retrieved the body of a young man who had hanged himself with a rope. He said he still had the jerrico pistol with 14 rounds of ammunition. 86.They took the body to Taveta Mortuary which was about 26Km away. 87.When he returned to the station, it was already 9.00pm and he decided to go and look for something to eat. 88.He went to Rockland Club which had two butcheries and also selling alcohol. 89.While outside the club, an informer called Mwadime from Taveta Police Station told him that two suspects they had been looking for had entered the club. 90.He said the suspects they were looking for had killed a police officer the previous week at Taveta Stage. 91.The Accused person told Mwadime that he was alone and he required back up. Mr. Mwadime showed him the two suspects from a distance. 92.The Accused person said he entered the club and ordered for a sprite soda. Then he went to the corridor to call Corporal Wanyoike who was at CID Taveta. 93.He said he told Corporal Wanyoike that the two suspects they were looking for had entered Rockland Club. 94.Corporal Wanyoike told him to give him five minutes. 95.The Accused person said he still had the ferrico pistol and 14 rounds of ammunition. 96.The Accused person said he was not wearing uniform. He waited for Corporal Wanyoike for 15 minutes to come with backup. 97.He said the club was full of people and before he could reach the center of the club, someone tried to grab his gun. 98.He turned and removed the gun after he realized it was one of the suspects. 99.He gave him a warning and told him to go back to the place he was drinking where the other suspect was seated. The Accused told him he was not after him. 100.All of a sudden, the suspect removed the gun and pulled it. In the process, the gun cocked itself and he again told him to stop and that the gun had cocked itself. 101.The Accused person said the suspect did not listen. He said the suspect pulled the gun and pressed the trigger and it hit him in the chest and he fell down. 102.The Accused person said 4 rounds of ammunition were fired. The other suspect disappeared and the deceased was hit by the 2nd ,3rd and 4th shots and he fell in front of him. 103.The Accused person said the Jerrico pistol is an automatic pistol. 104.The Accused person said he called the OCS and told him what had happened. 105.The OCS went to the scene with the OCPD. He went to the Police Station and handed over the Pistol. 106.He said he tried to explain what had happened but nobody listened to him. They told him to defend himself ahead (Kujitetea Mbele). 107.He was kept in the cells for 8 days before being taken to the Magistrates Court at Taveta. 108.He was thereafter taken to Voi High Court and charged with murder. 109.He denied allegations that he had been going to the bar with a gun and threatening people. 110.He said the suspect had killed a flying Squad Police Officer. He said the suspect who ran away had a gun. He did not see the pistol but he suspected he had one. 111.The Accused person said in cross-examination that he had learnt from an informer that the suspect had killed a Flying Squad Police Officer. 112.The Accused person also said in cross-examination that it was the deceased who pulled the gun and it cocked itself. 113.The learned defence counsel submitted that the prosecution failed to prove its case beyond a reasonable doubt and failed to establish malice aforethought. 114.He highlighted that none of the 19 prosecution witnesses actually saw the shooting, as key witnesses were either outside the bar or arrived after the incident. 115.Furthermore, he challenged the credibility of the medical evidence, noting a significant contradiction between the post-mortem report, which stated the entry wound was in the back, and the testimony of several other witnesses who observed the entry wound in the chest. 116.The defence maintained that the accused acted with the reasonable belief that the deceased was a dangerous criminal involved in a recent shooting of a police officer. 117.This belief was supported by the accused’s call for backup prior to the incident and his immediate declaration that he had shot a "hardened thief". 118.Additionally, the defence pointed to the deceased’s six-year absence from his home and the suspicious disappearance of his drinking partner as evidence of his bad character. 119.Further, he submitted that the shooting occurred during a struggle for the accused’s firearm and requests an acquittal under section 215 of the Criminal Procedure Code. 120.The issues for determination in this case are as follows;i.Whether the death of the deceased, Juma Mwangeka, occurred;ii.Whether the death was caused by an unlawful act or omission of the accused; andiii.Whether the accused acted with malice aforethought as defined under Section 206 of the Penal Code. 122.From the evidence presented, there is no dispute that Juma Mwangeka died. 123.This fact was confirmed by the testimony of his siblings, PW1 and PW2, and the medical evidence provided by PW3, Dr. Christopher Mbogho Mliwa. 124.The post-mortem report established the cause of death as cardiopulmonary arrest resulting from massive intrathoracic hemorrhage due to multiple bullet wounds to the heart, lungs, and liver. 125.The fact of death is a foundational element that the prosecution must prove beyond a reasonable doubt, and in this instance, that burden has been discharged. 126.Regarding the second issue, the evidence clearly links the accused to the act that caused the death. 127.PW15, an eyewitness, testified that she saw the accused remove his firearm and shoot at the deceased and his companion. 128.This is further corroborated by the ballistic expert, PW4, who confirmed that the spent cartridges and bullets recovered from the scene were fired from the Jericho pistol assigned to the accused. 129.The accused himself admitted to the shooting in his sworn statement, though he claimed it was accidental or occurred during a struggle. 130.The prosecution has thus proved that the death was caused by the act of the accused. 131.The main issue of the matter lies in whether this act was unlawful and whether it was committed with malice aforethought. 132.The accused’s defence was that of self-defense and the performance of duty, claiming he believed the deceased was a "notorious thief" involved in the killing of a fellow officer. 133.However, the use of force by a police officer must be "strictly necessary" and proportionate. 134.The evidence from PW15 was that the deceased and his companion were simply sitting and drinking when the accused opened fire. 135.Furthermore, the claim that the gun "cocked itself" and fired multiple times during a struggle is inconsistent with the medical evidence of four distinct bullet wounds and the testimony of PW15, who saw the accused initiate the shooting. 136.The existence of malice aforethought is deemed established under Section 206 of the Penal Code if there is an intention to cause death or grievous harm. 137.The nature of the weapon used and the parts of the body targeted are key indicators of intent. 138.By firing multiple shots into the deceased's chest and vital organs, the accused demonstrated a clear intent to cause, at the very least, grievous harm. 139.The accused person’s attempt to paint the deceased as a criminal of "bad character" does not justify extrajudicial killing. 140.The law does not permit a summary execution where no immediate threat to life is posed to the officer. 141.Consequently, the defence of self-defence fails as the force used was neither necessary nor proportionate. 142.The accused's conduct after the shooting, shouting that he had killed a "notorious thief", points to a deliberate act rather than an accidental discharge. 143.I find that the prosecution has proved all the elements of murder beyond a reasonable doubt. 144.Therefore, this court finds the accused, David Mark Marobe Gitahi alias Soldier Boy, guilty of the murder of Juma Mwangeka contrary to Section 203 as read with Section 204 of the Penal Code and hereby convicts him accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 12TH DAY OF MAY 2026.HON A.N. ONGERIJUDGEIn the presence of;No appearance for Accused person.Mrs. Kanyuira for State.Mabishi – Court Assistant