1. The accused was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that Mutinda Munyoki on 25th October 2015 at Bombo Village, Bamburi location in Kisauni subcounty unlawfully murdered Kariungi Kaguura.
2. He pleaded not guilty and the prosecution called 13 witnesses in support of its case and produced exhibits.
The summary of the Prosecution’s Case
3. PW 1 – stated that he is a boda boda operator, and he lives at Bombo. That the accused and the deceased are his customers. On 25th October 2015 at around 8.30pm he went to the accused person’s house. While watching TV,, the deceased told him that the accused was coming home. He stood up to leave, and he met the accused at the door and he , accused ,started assaulting him. He sustained injuries on the head left eye and forehead. He however managed to escape. That the accused grabbed his t-shirt, his shorts, open shoes and bracelet which remained behind. He went to his mother’s house and he was taken to Majaoni health care for treatment. Later on, he was issued with P3 form which was filled at Makadara Hospital on 13th November 2015. On cross examination, he denied having a love affair with the deceased.
4. PW 2 – stated that she is the mother to PW 1. On 26th October 2015 while she was sleeping in her house, PW 1 came at night while bleeding on the head. He said he was dying. They took him to the hospital where he was treated. He later told her that he was assaulted by the accused when he was in their house. That the accused and his wife (deceased) were his customers and also like parents, he frequently visited their house.
5. PW 3 – was the assistant Chief, Bamburi Sub-location. His evidence was that on 26th October, 2015 at about 6.00am, he received a call informing him of a woman hanging from a tree. He went there and he saw a woman kneeling while hanging on a tree. The woman’s body was hanging on a rope but the legs were on the ground. He made a report at Kiembeni police station. The police arrived and at the scene . That he saw; blood going inside the house, whose door was closed but not locked .That at the sitting room they found a broken meko gas cylinder. They also observed blood stains on the sitting room and it appeared like someone had tried to wipe them off but they were still visible and thepolice officers photographed the scene.
6. On cross examination he stated that the body was taken from the toilet to the tree. He saw dragging marks from the toilet to the door and at the tree there were blood marks and footprints on the ground.
7. PW 4 was the father to the deceased. He testified that on 26th October, 2015 he received a call informing him that his daughter had been killed. Four days later he travelled to Mombasa and viewed the deceased body at the mortuary where he saw injuries on the head, forehead and a rope tied around her neck. He did not know that the deceased was married to the accused.
8. PW 5 – she stated that on 26th October 2015 at 12 o’clock she received news deceased death. She called PW 4 her brother who lives in Meru and informed him of his daughter’s death. She e called the accused who told her that he was in Nairobi. She went to Kiembeni police station and then to the mortuary and saw the injuries on the body. On cross examination she stated that she is aware deceased was living together with the accused but she does not know if they were married. She witnessed the post mortem examination.
9. PW 6 was a medical officer from Coast General Hospital where the post mortem was done on 4th November 2015. The cause of death was ascertained as severe head injury with by lateral subdural hematoma secondary trauma by blunt object and asphyxia secondary to strangulation. The postmortem report was produced as exhibit and also the p3 form for PW 1 was also produced as PEX6.
10. PW 7 – is a cousin to the deceased. On 26th October 2015, at 10.00am he was informed through phone call that the deceased had been murdered by the husband. He knew the accused was married to the deceased since 2009 and they were staying together. The accused person had informed him that they had problems with the deceased.
11. PW 8 – a police officer, testied that on 26th October, 2015 while attached at Kiembeni Police Station, he received information of a lady who was found hanging on a tree at Utange area near St. Elizabeth school. He proceeded to the scene and found the lady hanging on a tree with a rope on her neck but her legs were touching the ground, her legs were bending. She was 30 metres from her house. The neighbouring houses were 50 metres away. In the house they found blood stains on the floor which had been wiped with something but still visible. That scattered pieces of papers were outside the door steps and shoes and clothes were also at the door steps. According to him,these showed a sign of struggle. They took photographs of the scene. They also recovered the following: a purse with 3000/-, an ATM Card for the deceased, National identity card for the deceased, a black T-shirt blood stained suspected to have been used to wipe blood from the floor, a pair of shorts, a bracelet, open shoes, a piece of rope that had been tied around deceased neck and broken pieces of meko cyclinder gas cooker.
12. That on 27th October 2015, the accused went to Kiembeni police station. He produced two receipts for chania cool dated 26th October 2015 travelling from Nairobi-Mombasa at 7.30pm bearing his name. Another receipt was from skyline boarding and lodging in the name of the accused for dates 23/10/2015, 24/10/2015 and 25/10/2015. On 30/10/2015 he proceeded to Nairobi to Chania Offices and they confirmed that the bus receipt was genuine but he did not obtain the passer manifest to confirm if the accused family actually travelled. He went to skyline boarding and lodging he checked through the ledger book but did not see the name of the accused. His conclusion was that accused obtained receipts from chania cool bus and from skyline boarding and lodging without travelling to Nairobi and spending the 3 nights there.
13. PW 9 – a government analyst officer, stated that he received an exhibit memo with the following exhibits samples :
-a swab taken from the floor marked ‘A’
-blood from the deceased marked ‘B’ and
-blood from PW 1 marked ‘C’,
-nail from deceased marked ‘D’.
14. The memo requested him to find relationship between ‘A’ and ‘B’ ‘C’ ‘D’ ‘E’. According to her findings the DNA profile generated by the swap from the floor marked ‘A’ mathced the DNA profile generated from the exhibit ‘B’ and ‘D’. However, the DNA profile of blood sample for PW 1 marked ‘C’ did not match with exhibit marked ‘A’.
15. PW 10 –was the scenes of crimes officer and he produced the photos and the certificate as PEX 7(a) and PEX 7(b) respectively.
16. PW 11 – the investigating officer, gave evidence that on 26/10/2015 he was notified of the case, the body was brought to the police station, he viewed it and saw the deceased had injuries on the head, legs and arms. He received exhibits from the scene which he produced.
17. That he visited the scene, where he received information that a boda boda man had sustained injuries during the fight. They followed up on the PW 1 and recorded his statement. On 31/10/2015 he arrested the accused. The accused provided the bus ticket and skyline boarding and lodging. He made a request to DCI Nairobi for data from deceased phone. He also made a request to Safaricom to obtain data from accused phone. Both reports confirmed that the accused called the deceased on 25/10/2015 between 2100 hours and 2301 hours 6 calls which went unanswered. The Safaricom data recorded accused phone at Utange area in Bamburi. He then charged the accused with the offence of murder.
18. PW 12 –was an officer from cybercrime unit states that he extracted messages and call data from the deceased phone and produced the mobile forensic examiners report as PEX 25(a).
19. PW 13 – a liaison officer with Safaricom stated that he extracted call data and Mpesa statements from accused phone. He produced the call data record as PEX 26(a) and the certificate as PEX 26(b).
Defence case
20. The court found that the prosecution’s evidence passed the threshold and placed the accused person on his defence.
21. He denied having committed the offence. His evidence was that he had travelled on 23/10/2015, to Mwingi and he had picked their son ;DW2 on 25/10/2015. They (himself and the son DW 2) travelled to Nairobi where they slept at Skyway lodge. That on 26/10/2015, he was called by the Sister and alerted of the death of his wife. That he called his uncle who advised him to report and he reported at Kamkunji Police Station. That he called DW 3 who picked DW 2 and he travelled back to Mombasa and arrived on 27/10/2015. He was then arrested. He denied the offence and attributed it to PW1.
THE LAW
22. Section 203 of the Penal Code provides that;
“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder”.
23. From the above section the elements that the prosecution must prove to establish the offence of murder are:-
i. Proof of death, the cause of that death,
ii. 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,
iii. The unlawful act was with malice aforethought.
Proof of death of deceased and that it was unlawful
24. There is no dispute on the death of the deceased. This was clearly brought out in the evidence of the witnesses PW 1 – pw 5 who stated that they saw the deceased body with injuries on the head and a rope tied around his neck. PW 6 produced the post mortem report and she ascertained that the cause of death was severe head injury with by lateral subdural hematoma secondary trauma caused by blunt object and asphyxia secondary to strangulation.
Therefore, the prosecution has established the deceased death and it was unlawfully caused.
Whether the death was due to an unlawful act
or omission of the accused.
25. PW 1 stated that on 25/10/2015 he was with the deceased in her house when the accused came in and started assaulting him he had to escape to save his life. He sustained injuries as per the P3 form produced as exhibit. That he also heard commotion inside the house when the the accused person re-entered the house after chasing him out. The following morning, he was informed that the deceased was no more.
26. PW 2, PW 3, PW 4 and PW 5 arrived at the scene the following day and found the deceased passed on.
27. There is no direct evidence connecting the accused to the murder of the deceased. However, we have some circumstantial evidence.
28. The test to be applied when considering circumstantial evidence is settled and there is now a long line of cases on that issue. In the case of Sawe V Republic [2003] eKLR the Court of A ppeal stated thus :-
“I n order to justify a conviction on circumstantial evidence, the inference of guilt, the exculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused.”
29. The case of Abanga alias Onyango vs Republi c, Cr. App No. 32 of 1990 outlines the three tests for applying circumstantial evidence as follows:-
“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy
three tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances taken cumulatively, should from 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.”
30. Also, in A hamad Abolfathi Mohammed & another vs Republic [2018] eKLR the court stated as follows:
“However, it is altruism 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 as strong a basis for proving the guilt of an accused person just like direct evidence. Way back in 1928 Lord Heward, CJ, stated as follows on circumstantial evidence in R vs Taylor, Weaver & Donovan [1928] CR. App. R. 21:
“It has been said that the evidence against applicant is circumstantial. So it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undersigned coincidence is capable of proving a proposition with the accuracy of Mathematics. It is no derogation from evidence to say that is circumstantial”.
ANALYSIS
31. From the evidence of PW1 we can confirm that the accused person was at the scene at the time of the deceased death. PW1 testified that they had a confrontation with the accused person from which he sustained severe injuries which are captured in the P3 form. He reported to PW2 that very night that the accused person is the one who had attacked him.
32. It was also established that the deceased did not hang herself but the scene was stage-managed to make her death appear as suicide. Pw3, pw4 testified that they saw blood stains leading from the sitting room , to the toilet and on to the tree. The blood on the sitting room floor generated the DNA profile matching that of the deceased so we can safely conclude she was injurIed and she bled in the house.
33. PW1 testified that when he left the deceased and the accused person were in some violent confrontation. The photographs of the scene depict this.
34. Even though the accused person denied having been at the scene, the mobile data anlysis placed him in Utange and therefore this corroborated PW1’S EVIDENCE that he was in mombasa and at home that fateful night.
35. Further, derived from the facts of the case, and the circumstances above, there is evidence on the that on the night of 25/10/2015, the accused person came home having called the deceased and his calls were not being picked, he was furious. He found PW 1 in the house and on suspicion that PW 1 was having an affair with the deceased, he assaulted him and PW 1 had to run away to save his life, escaping with head injuries that were later treated. Then the accused assaulted and strangled the deceased to her death, thereafter dragged her body from the house and hanged it on the tree with a rope around her neck while legs bent on the ground.
36. From the above, we can safely conclude that the accused person unlawfully caused the death of the deceased.
whether there was Malice Aforethought
37. Section 206 of the Penal Code provides for what constitute Malice aforethought;
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.
38. The elements that constitute malice are;
(a) the nature of the weapons used
(b) the nature of injuries sustained
(c) the conduct before, during and after the incident and
(d) the manner the weapon was used.
39. The cause of death according to PW 6 was severe head injury and asphyxia secondary to strangulation. However, there was no sign of strangulation around the neck which rules out the likelihood that the deceased committed suicide using the rope. PW 3 and PW 8 collected the broken gas cylinder from the scene of crime produced as exhibits and the same was used to hit the deceased on the head hence the fatal head injuries and the bleeding sustained by the deceased.
40. Further, PW 8 stated that the accused availed the receipts from chania bus and the skyline boarding and lodging, without being asked, alluding that at the time of deceased death he was in Nairobi hence distancing himself from the scene of crime. However, the evidence of PW 1, PW 8 investigations on the two receipts and the data call logs from accused phone obtained by PW 11, clearly disapproves accused alibi theory and correctly place him at the scene of crime.
41. Consequently, it is the court finding that the accused had the intent and the malice to murder the accused which he did, by hitting her on the head and thereafter stage managing her death as suicide. Also, by attempting to distance himself from the scenes of crime shows his well-orchestrated attempt to cover up his heinous acts.
whether the accused was provoked?
42. The accused acted on the suspicion that the deceased had an affair with PW 1. Moreover, he did not find the PW 1 and the deceased in the act, that would warrant the defence of provocation to be invoked in the circumstances. Also, PW 1 stated that they struggled with the accused for almost one hour before he finally escaped his wrath.
Conclusion
43. From the analysis above, the 3 ingredients of murder were proved beyond reasonable doubt. The defence by the accused person was also demolished by the state.
44. The Investigating Officer testified that the sky lodge did not have the name of the accused person in their register. Further, the court found that the defence by the accused person was not credible. His son (DW 2) lied in court about his age and grade. Even if we were to go by the age he gave it would mean that he was only 3 or 4 years old in 2015. He could not possibly recall the events as he purported to recount in court. Further , when cross examined, DW2 testified that the father arrived in kitui picked him on 25/10/2015 yet the father said he travelled home on 23/10/2015.
45. Worst still, DW 3, the alleged good Samaritan who went to collect DW 2 turned out to be the accused person’s wife. That means that the accused person only made up the story of going to Kitui and called his family members to prop up his defence. In any event the data analysis-especially the call data report PEXT. PECT 25A AND 26A. placed him Utange in Mtwapa on 25/10/2015 between 21.07, 29 and 23 17 hours. This was the critical time of the murder. The report also shows that he was in Dandora on 24/10/2015 and he travelled towards Mombasa on 25/10/2025. At around 15.16.45 the signal was at around Mtito Andei and at 18.47 at Mariakani. Then eventually Shanzu at 20.06 before being traced at Utange at 21.15.
46. The exit routes then shows up on 26/10/2025 at 12.07 at Sultan Ahmud. Then Mlolongo at 14.05 and eventually at Kamkunji road at 15.57. This shows that he had the time to travel to Mombasa and back to Nairobi where he went to craft his defence by making a report at Kamkunji police station hoping to exonerate himself.
47. The malice aforethought is well established. The accused not only hit the deceased on the head but he dragged the body out of the house and later stage managed the ‘suicide’ scene by hanging her. He then embarked on the elaborate journey of travelling back to Nairobi and preparing the false documents to cover up his evil and devious scheme.
48. The accused person admitted that the deceased was his wife. We however see an incoming text on 5/10/2015 from 254722500166 saying warning the deceased thhat’’mpenzi wako ako na mpenzi mwingine na ako na nia mbaya sana na wewe.’ there are other text messages between them which show that all was not well. He then prepared himself and travelled to Mombasa where he committed the heinous crime. The presence of PW 1 cannot be provocation since he had already pre meditated on his actions.
49. Accordingly the defence of provocation can not be accorded to him . In any event he did not raise the same. His defence was that of denial and an alibi but the state demolished the same.
50. Accordingly, I find that all the 3 ingredients of the offence of murder were proved . His defence was just a crafty fabrication by an extremely dangerous mind indicated by one who can clobber his wife to death, then drag her body outside and hang her with a rope on the neck. He then embarked on a frenzy of activity to cover up his on deeds abut after careful investigations, the truth was un earthed.
51. I must thank the investigating officer who went out to find evidence to challenge the alibi .
52. The court hereby convicts the accused person as charged for the offence of murder contrary to section 203 as read with section 204 of the penal code.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this …17th day of …July …2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
The accused person and his advocate Mr. Magolo
Mr. Ngiri for the state
Bebora court assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE
2. He pleaded not guilty and the prosecution called 13 witnesses in support of its case and produced exhibits.
The summary of the Prosecution’s Case
3. PW 1 – stated that he is a boda boda operator, and he lives at Bombo. That the accused and the deceased are his customers. On 25th October 2015 at around 8.30pm he went to the accused person’s house. While watching TV,, the deceased told him that the accused was coming home. He stood up to leave, and he met the accused at the door and he , accused ,started assaulting him. He sustained injuries on the head left eye and forehead. He however managed to escape. That the accused grabbed his t-shirt, his shorts, open shoes and bracelet which remained behind. He went to his mother’s house and he was taken to Majaoni health care for treatment. Later on, he was issued with P3 form which was filled at Makadara Hospital on 13th November 2015. On cross examination, he denied having a love affair with the deceased.
4. PW 2 – stated that she is the mother to PW 1. On 26th October 2015 while she was sleeping in her house, PW 1 came at night while bleeding on the head. He said he was dying. They took him to the hospital where he was treated. He later told her that he was assaulted by the accused when he was in their house. That the accused and his wife (deceased) were his customers and also like parents, he frequently visited their house.
5. PW 3 – was the assistant Chief, Bamburi Sub-location. His evidence was that on 26th October, 2015 at about 6.00am, he received a call informing him of a woman hanging from a tree. He went there and he saw a woman kneeling while hanging on a tree. The woman’s body was hanging on a rope but the legs were on the ground. He made a report at Kiembeni police station. The police arrived and at the scene . That he saw; blood going inside the house, whose door was closed but not locked .That at the sitting room they found a broken meko gas cylinder. They also observed blood stains on the sitting room and it appeared like someone had tried to wipe them off but they were still visible and thepolice officers photographed the scene.
6. On cross examination he stated that the body was taken from the toilet to the tree. He saw dragging marks from the toilet to the door and at the tree there were blood marks and footprints on the ground.
7. PW 4 was the father to the deceased. He testified that on 26th October, 2015 he received a call informing him that his daughter had been killed. Four days later he travelled to Mombasa and viewed the deceased body at the mortuary where he saw injuries on the head, forehead and a rope tied around her neck. He did not know that the deceased was married to the accused.
8. PW 5 – she stated that on 26th October 2015 at 12 o’clock she received news deceased death. She called PW 4 her brother who lives in Meru and informed him of his daughter’s death. She e called the accused who told her that he was in Nairobi. She went to Kiembeni police station and then to the mortuary and saw the injuries on the body. On cross examination she stated that she is aware deceased was living together with the accused but she does not know if they were married. She witnessed the post mortem examination.
9. PW 6 was a medical officer from Coast General Hospital where the post mortem was done on 4th November 2015. The cause of death was ascertained as severe head injury with by lateral subdural hematoma secondary trauma by blunt object and asphyxia secondary to strangulation. The postmortem report was produced as exhibit and also the p3 form for PW 1 was also produced as PEX6.
10. PW 7 – is a cousin to the deceased. On 26th October 2015, at 10.00am he was informed through phone call that the deceased had been murdered by the husband. He knew the accused was married to the deceased since 2009 and they were staying together. The accused person had informed him that they had problems with the deceased.
11. PW 8 – a police officer, testied that on 26th October, 2015 while attached at Kiembeni Police Station, he received information of a lady who was found hanging on a tree at Utange area near St. Elizabeth school. He proceeded to the scene and found the lady hanging on a tree with a rope on her neck but her legs were touching the ground, her legs were bending. She was 30 metres from her house. The neighbouring houses were 50 metres away. In the house they found blood stains on the floor which had been wiped with something but still visible. That scattered pieces of papers were outside the door steps and shoes and clothes were also at the door steps. According to him,these showed a sign of struggle. They took photographs of the scene. They also recovered the following: a purse with 3000/-, an ATM Card for the deceased, National identity card for the deceased, a black T-shirt blood stained suspected to have been used to wipe blood from the floor, a pair of shorts, a bracelet, open shoes, a piece of rope that had been tied around deceased neck and broken pieces of meko cyclinder gas cooker.
12. That on 27th October 2015, the accused went to Kiembeni police station. He produced two receipts for chania cool dated 26th October 2015 travelling from Nairobi-Mombasa at 7.30pm bearing his name. Another receipt was from skyline boarding and lodging in the name of the accused for dates 23/10/2015, 24/10/2015 and 25/10/2015. On 30/10/2015 he proceeded to Nairobi to Chania Offices and they confirmed that the bus receipt was genuine but he did not obtain the passer manifest to confirm if the accused family actually travelled. He went to skyline boarding and lodging he checked through the ledger book but did not see the name of the accused. His conclusion was that accused obtained receipts from chania cool bus and from skyline boarding and lodging without travelling to Nairobi and spending the 3 nights there.
13. PW 9 – a government analyst officer, stated that he received an exhibit memo with the following exhibits samples :
-a swab taken from the floor marked ‘A’
-blood from the deceased marked ‘B’ and
-blood from PW 1 marked ‘C’,
-nail from deceased marked ‘D’.
14. The memo requested him to find relationship between ‘A’ and ‘B’ ‘C’ ‘D’ ‘E’. According to her findings the DNA profile generated by the swap from the floor marked ‘A’ mathced the DNA profile generated from the exhibit ‘B’ and ‘D’. However, the DNA profile of blood sample for PW 1 marked ‘C’ did not match with exhibit marked ‘A’.
15. PW 10 –was the scenes of crimes officer and he produced the photos and the certificate as PEX 7(a) and PEX 7(b) respectively.
16. PW 11 – the investigating officer, gave evidence that on 26/10/2015 he was notified of the case, the body was brought to the police station, he viewed it and saw the deceased had injuries on the head, legs and arms. He received exhibits from the scene which he produced.
17. That he visited the scene, where he received information that a boda boda man had sustained injuries during the fight. They followed up on the PW 1 and recorded his statement. On 31/10/2015 he arrested the accused. The accused provided the bus ticket and skyline boarding and lodging. He made a request to DCI Nairobi for data from deceased phone. He also made a request to Safaricom to obtain data from accused phone. Both reports confirmed that the accused called the deceased on 25/10/2015 between 2100 hours and 2301 hours 6 calls which went unanswered. The Safaricom data recorded accused phone at Utange area in Bamburi. He then charged the accused with the offence of murder.
18. PW 12 –was an officer from cybercrime unit states that he extracted messages and call data from the deceased phone and produced the mobile forensic examiners report as PEX 25(a).
19. PW 13 – a liaison officer with Safaricom stated that he extracted call data and Mpesa statements from accused phone. He produced the call data record as PEX 26(a) and the certificate as PEX 26(b).
Defence case
20. The court found that the prosecution’s evidence passed the threshold and placed the accused person on his defence.
21. He denied having committed the offence. His evidence was that he had travelled on 23/10/2015, to Mwingi and he had picked their son ;DW2 on 25/10/2015. They (himself and the son DW 2) travelled to Nairobi where they slept at Skyway lodge. That on 26/10/2015, he was called by the Sister and alerted of the death of his wife. That he called his uncle who advised him to report and he reported at Kamkunji Police Station. That he called DW 3 who picked DW 2 and he travelled back to Mombasa and arrived on 27/10/2015. He was then arrested. He denied the offence and attributed it to PW1.
THE LAW
22. Section 203 of the Penal Code provides that;
“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder”.
23. From the above section the elements that the prosecution must prove to establish the offence of murder are:-
i. Proof of death, the cause of that death,
ii. 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,
iii. The unlawful act was with malice aforethought.
Proof of death of deceased and that it was unlawful
24. There is no dispute on the death of the deceased. This was clearly brought out in the evidence of the witnesses PW 1 – pw 5 who stated that they saw the deceased body with injuries on the head and a rope tied around his neck. PW 6 produced the post mortem report and she ascertained that the cause of death was severe head injury with by lateral subdural hematoma secondary trauma caused by blunt object and asphyxia secondary to strangulation.
Therefore, the prosecution has established the deceased death and it was unlawfully caused.
Whether the death was due to an unlawful act
or omission of the accused.
25. PW 1 stated that on 25/10/2015 he was with the deceased in her house when the accused came in and started assaulting him he had to escape to save his life. He sustained injuries as per the P3 form produced as exhibit. That he also heard commotion inside the house when the the accused person re-entered the house after chasing him out. The following morning, he was informed that the deceased was no more.
26. PW 2, PW 3, PW 4 and PW 5 arrived at the scene the following day and found the deceased passed on.
27. There is no direct evidence connecting the accused to the murder of the deceased. However, we have some circumstantial evidence.
28. The test to be applied when considering circumstantial evidence is settled and there is now a long line of cases on that issue. In the case of Sawe V Republic [2003] eKLR the Court of A ppeal stated thus :-
“I n order to justify a conviction on circumstantial evidence, the inference of guilt, the exculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused.”
29. The case of Abanga alias Onyango vs Republi c, Cr. App No. 32 of 1990 outlines the three tests for applying circumstantial evidence as follows:-
“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy
three tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances taken cumulatively, should from 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.”
30. Also, in A hamad Abolfathi Mohammed & another vs Republic [2018] eKLR the court stated as follows:
“However, it is altruism 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 as strong a basis for proving the guilt of an accused person just like direct evidence. Way back in 1928 Lord Heward, CJ, stated as follows on circumstantial evidence in R vs Taylor, Weaver & Donovan [1928] CR. App. R. 21:
“It has been said that the evidence against applicant is circumstantial. So it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undersigned coincidence is capable of proving a proposition with the accuracy of Mathematics. It is no derogation from evidence to say that is circumstantial”.
ANALYSIS
31. From the evidence of PW1 we can confirm that the accused person was at the scene at the time of the deceased death. PW1 testified that they had a confrontation with the accused person from which he sustained severe injuries which are captured in the P3 form. He reported to PW2 that very night that the accused person is the one who had attacked him.
32. It was also established that the deceased did not hang herself but the scene was stage-managed to make her death appear as suicide. Pw3, pw4 testified that they saw blood stains leading from the sitting room , to the toilet and on to the tree. The blood on the sitting room floor generated the DNA profile matching that of the deceased so we can safely conclude she was injurIed and she bled in the house.
33. PW1 testified that when he left the deceased and the accused person were in some violent confrontation. The photographs of the scene depict this.
34. Even though the accused person denied having been at the scene, the mobile data anlysis placed him in Utange and therefore this corroborated PW1’S EVIDENCE that he was in mombasa and at home that fateful night.
35. Further, derived from the facts of the case, and the circumstances above, there is evidence on the that on the night of 25/10/2015, the accused person came home having called the deceased and his calls were not being picked, he was furious. He found PW 1 in the house and on suspicion that PW 1 was having an affair with the deceased, he assaulted him and PW 1 had to run away to save his life, escaping with head injuries that were later treated. Then the accused assaulted and strangled the deceased to her death, thereafter dragged her body from the house and hanged it on the tree with a rope around her neck while legs bent on the ground.
36. From the above, we can safely conclude that the accused person unlawfully caused the death of the deceased.
whether there was Malice Aforethought
37. Section 206 of the Penal Code provides for what constitute Malice aforethought;
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.
38. The elements that constitute malice are;
(a) the nature of the weapons used
(b) the nature of injuries sustained
(c) the conduct before, during and after the incident and
(d) the manner the weapon was used.
39. The cause of death according to PW 6 was severe head injury and asphyxia secondary to strangulation. However, there was no sign of strangulation around the neck which rules out the likelihood that the deceased committed suicide using the rope. PW 3 and PW 8 collected the broken gas cylinder from the scene of crime produced as exhibits and the same was used to hit the deceased on the head hence the fatal head injuries and the bleeding sustained by the deceased.
40. Further, PW 8 stated that the accused availed the receipts from chania bus and the skyline boarding and lodging, without being asked, alluding that at the time of deceased death he was in Nairobi hence distancing himself from the scene of crime. However, the evidence of PW 1, PW 8 investigations on the two receipts and the data call logs from accused phone obtained by PW 11, clearly disapproves accused alibi theory and correctly place him at the scene of crime.
41. Consequently, it is the court finding that the accused had the intent and the malice to murder the accused which he did, by hitting her on the head and thereafter stage managing her death as suicide. Also, by attempting to distance himself from the scenes of crime shows his well-orchestrated attempt to cover up his heinous acts.
whether the accused was provoked?
42. The accused acted on the suspicion that the deceased had an affair with PW 1. Moreover, he did not find the PW 1 and the deceased in the act, that would warrant the defence of provocation to be invoked in the circumstances. Also, PW 1 stated that they struggled with the accused for almost one hour before he finally escaped his wrath.
Conclusion
43. From the analysis above, the 3 ingredients of murder were proved beyond reasonable doubt. The defence by the accused person was also demolished by the state.
44. The Investigating Officer testified that the sky lodge did not have the name of the accused person in their register. Further, the court found that the defence by the accused person was not credible. His son (DW 2) lied in court about his age and grade. Even if we were to go by the age he gave it would mean that he was only 3 or 4 years old in 2015. He could not possibly recall the events as he purported to recount in court. Further , when cross examined, DW2 testified that the father arrived in kitui picked him on 25/10/2015 yet the father said he travelled home on 23/10/2015.
45. Worst still, DW 3, the alleged good Samaritan who went to collect DW 2 turned out to be the accused person’s wife. That means that the accused person only made up the story of going to Kitui and called his family members to prop up his defence. In any event the data analysis-especially the call data report PEXT. PECT 25A AND 26A. placed him Utange in Mtwapa on 25/10/2015 between 21.07, 29 and 23 17 hours. This was the critical time of the murder. The report also shows that he was in Dandora on 24/10/2015 and he travelled towards Mombasa on 25/10/2025. At around 15.16.45 the signal was at around Mtito Andei and at 18.47 at Mariakani. Then eventually Shanzu at 20.06 before being traced at Utange at 21.15.
46. The exit routes then shows up on 26/10/2025 at 12.07 at Sultan Ahmud. Then Mlolongo at 14.05 and eventually at Kamkunji road at 15.57. This shows that he had the time to travel to Mombasa and back to Nairobi where he went to craft his defence by making a report at Kamkunji police station hoping to exonerate himself.
47. The malice aforethought is well established. The accused not only hit the deceased on the head but he dragged the body out of the house and later stage managed the ‘suicide’ scene by hanging her. He then embarked on the elaborate journey of travelling back to Nairobi and preparing the false documents to cover up his evil and devious scheme.
48. The accused person admitted that the deceased was his wife. We however see an incoming text on 5/10/2015 from 254722500166 saying warning the deceased thhat’’mpenzi wako ako na mpenzi mwingine na ako na nia mbaya sana na wewe.’ there are other text messages between them which show that all was not well. He then prepared himself and travelled to Mombasa where he committed the heinous crime. The presence of PW 1 cannot be provocation since he had already pre meditated on his actions.
49. Accordingly the defence of provocation can not be accorded to him . In any event he did not raise the same. His defence was that of denial and an alibi but the state demolished the same.
50. Accordingly, I find that all the 3 ingredients of the offence of murder were proved . His defence was just a crafty fabrication by an extremely dangerous mind indicated by one who can clobber his wife to death, then drag her body outside and hang her with a rope on the neck. He then embarked on a frenzy of activity to cover up his on deeds abut after careful investigations, the truth was un earthed.
51. I must thank the investigating officer who went out to find evidence to challenge the alibi .
52. The court hereby convicts the accused person as charged for the offence of murder contrary to section 203 as read with section 204 of the penal code.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this …17th day of …July …2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
The accused person and his advocate Mr. Magolo
Mr. Ngiri for the state
Bebora court assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE