1. Alex Kanini Kuna, alias Paul, is charged with murder contrary to section 203, as read with section 204 of the Penal Code.
2. The particulars of the offence are that on the 24th day of May 2025, at Chobe village, South Kinangop Sub-County within Nyandarua County, he murdered Daisy Wambui Wangari.
3. Daisy Wambui Wangari, the deceased, was sent to purchase some super glue at about 2.30 p.m. She did not return, and a search for her was conducted. Her body was recovered from a dam the following day. The accused was implicated as the last person seen with her.
4. Alex Kanini Kuna, alias Paul, the accused, elected to remain silent after the prosecution closed its case.
5. The issues to be determined are:
a) Whether the prosecution adduced adequate evidence to link the accused to the death of the deceased; and
b) Whether the offence of murder was proved against him.
6. The prosecution argued that the accused was the last person seen with the deceased. This theory was advanced by Martha Wangari Kibe (PW1), the deceased's mother, who testified that the accused told her he was with the deceased. However, she did not specify where they were, which led her to suspect his involvement in the offence. During cross-examination, she introduced another angle to the case. She contended that while she was tethering her cow, she saw the deceased in the company of Alvin and another person whom she did not recognise. The other person cannot be the accused, for she stated that she knew the accused well, as they are cousins.
7. Paul Kanini Kibe (PW4) also testified that the accused was with the deceased. He stated that the accused said he had borrowed some glue from her, but when she refused, he let her go ahead. This evidence, without anything more, does not implicate the accused in the offence.
8. The evidence against the accused by PW1 was based on suspicion. The court of appeal in the case of Sawe vs Republic [2003] KLR 354, the Court of Appeal held as follows:
Suspicion, however strong, cannot provide the basis for inferring guilt, which must be proved by evidence beyond reasonable doubt.
This witness's suspicion lacked a logical basis. One is left wondering why she did not suspect Alvin or that other person in his company.
9. Alvin Paul Kanini (PW2) contradicted the evidence of PW1. He testified that he saw the deceased going towards her home at about 3 p.m. He never saw her meeting anybody. When he met the deceased’s mother, he told her that he had seen her going towards her home. The Court of Appeal in the case of Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA), held:
The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.
10. In this case, I find PW1’s and PW2’s evidence difficult to reconcile.
11. CPL. Kennedy Kengere (PW7) was the investigating officer in this matter. His evidence was that when he visited the scene where the deceased's body was recovered, the accused's father, Lukas Kuna, was asked to open the house because of its proximity to the scene. When he did so, the officer recovered a spade and a piece of cloth with bloodstains. The walls were spattered with blood. He arrested Lukas Kuna and locked the house. He took possession of the key. When the accused followed his father to the police post, he was arrested as a suspect. This was on the 25th day of May 2025.
12. On May 26, 2025, he returned to the scene and collected some items from a pit latrine. He also stated that he found a multicoloured T-shirt in the accused's house and took it as an exhibit.
13. The inventory that was produced as prosecution exhibit 1 is not accurate. This is what it states:
Inventory of exhibits recovered from Alex Kanini Kuna/a pit latrine and dwelling house located in Chobe village within South Kinangop sub-county on the 26th May 2025.
14. The investigating officer testified that on 25 May 2025, upon arresting Lukas Kuna, he retrieved a spade and a bloodstained cloth from the house where Kuna was the caretaker. These items were among those the accused signed for in an inventory dated 26 May 2025.
15. CPL. Kennedy Kengere (PW7) did not provide any evidence linking the accused to the pit latrine or to the exhibits found there.
16. Whenever material evidence is introduced, it is intended to assist the court in reaching a decision, not merely to serve as embroidery. PW7 testified that the walls of the house where some exhibits were found were splattered with blood. However, there was no effort to determine whether the blood was human or of what origin. He also admitted during cross-examination that he did not have the blood on the wall examined. This was likely due to a lack of interest, inexperience, or other reasons. As a result, the court was denied the opportunity to understand the circumstances surrounding the case.
17. It is uncertain whether the investigating officer and prosecutor intentionally overlooked calling Lukas Kuna or simply forgot. They did not attempt to summon this witness but did try to call Lilian Wairimu Muiruri, the homeowner, who had Lukas Kuna as a caretaker. The court was told she lives in Narok, and, based on the record, her testimony might not have contributed significantly to the case. However, even to a layperson, Lukas Kuna was a very important witness in this case. The Court of Appeal in the case of Bukenya vs Uganda [1972] EA 549 (Lutta Ag. Vice President) held:
The prosecution must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent.
Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.
This omission was serious.
18. CPL. Kennedy Kengere (PW7) reported that on May 26, 2025, he visited the accused's residence and retrieved a multicoloured T-shirt, which was later sent for DNA testing. During cross-examination, the issue of recovery was not contested. The Court of Appeal (Tanzania) in the case of Martin Masara vs The Republic, Criminal Appeal No. 428 of 2016, CAT at Mbeya (unreported), held that,
It is trite law in this jurisdiction founded upon prudence that failure to cross-examine on a vital point, ordinarily implies the acceptance of the truth of the witness evidence; and any alarm to the contrary is taken as an afterthought if raised thereafter.
19. This decision correctly interprets the law. Therefore, I find that the multicoloured T-shirt was recovered from the accused's house.
20. The government analyst report states that one of the seven items received was a multicoloured T-shirt labelled “J”. The conclusion and the opinion were as follows:
The DNA profile generated from the bloodstains on the sweater (item G1), the long trousers (item G2) and the T-shirt (item J) and the high vaginal swabs (items H1 & H2) all matched those generated from the blood sample marked “ H3 & H4, Daisy Wambui (deceased) with a probability of random match of 1 in 1.34x1012.
21. In an Indian case in Manoj v. State of M.P.9, S. Ravindra Bhat J. observed;
158. This Court, therefore, has relied on DNA reports, in the past, where the guilt of an accused was sought to be established. Notably, the reliance was to corroborate. This Court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that being an opinion, the probative value of such evidence has to vary from case to case.
22. In the present case, the T-shirt had dry bloodstains. I am satisfied that there was no possibility of contamination. Without any explanation of how the deceased's blood came to be on the jacket found in the accused's house, the only logical conclusion is that the accused had contact with the deceased shortly before her death. I therefore find that the accused caused the deceased's death.
23. To secure a conviction based on the evidence on record, the prosecution must establish the presence of malice aforethought. In Black’s Law Dictionary, 10th Edition, malice aforethought is defined as:
The requisite mental state for common-law murder, encompassing any one of the following (1) the intent to kill (2) the intent to inflict grievous bodily harm (3) extremely reckless difference to the value of human life (the so-called “abandoned and malignant heart”), or (4) the intent to commit a dangerous felony (which leads to culpability under the felony-murder rule).
24. Section 206 of the Penal Code gives instances when malice aforethought may be proved. It provides:
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.
25. Dr Titus Ngulungu conducted the post-mortem on the body of the deceased. He found the following injuries:
a) Multiple superficial incisions on the anterior neck.
b) There’s a slash wound @120mm on the anterior neck involving the skin, muscle, trachea and vessels.
c) Bruises noted on the introitus and anal orifice, and gaping of the anal orifice.
d) Torn hymen.
e) Severed trachea – blood noted in the tracheal lumen.
f) Collapsed lungs and surface hemorrhagic infarcts.
He formed the opinion that the cause of death was massive blood loss with aspiratory asphyxia following severed great neck vessels due to sharp force trauma to the neck.
26. After considering the evidence in totality, I conclude that the prosecution has proved the charge beyond a reasonable doubt. I find him guilty and convict him of murder.
Delivered and signed at Nyandarua, this 26th day of May 2026
2. The particulars of the offence are that on the 24th day of May 2025, at Chobe village, South Kinangop Sub-County within Nyandarua County, he murdered Daisy Wambui Wangari.
3. Daisy Wambui Wangari, the deceased, was sent to purchase some super glue at about 2.30 p.m. She did not return, and a search for her was conducted. Her body was recovered from a dam the following day. The accused was implicated as the last person seen with her.
4. Alex Kanini Kuna, alias Paul, the accused, elected to remain silent after the prosecution closed its case.
5. The issues to be determined are:
a) Whether the prosecution adduced adequate evidence to link the accused to the death of the deceased; and
b) Whether the offence of murder was proved against him.
6. The prosecution argued that the accused was the last person seen with the deceased. This theory was advanced by Martha Wangari Kibe (PW1), the deceased's mother, who testified that the accused told her he was with the deceased. However, she did not specify where they were, which led her to suspect his involvement in the offence. During cross-examination, she introduced another angle to the case. She contended that while she was tethering her cow, she saw the deceased in the company of Alvin and another person whom she did not recognise. The other person cannot be the accused, for she stated that she knew the accused well, as they are cousins.
7. Paul Kanini Kibe (PW4) also testified that the accused was with the deceased. He stated that the accused said he had borrowed some glue from her, but when she refused, he let her go ahead. This evidence, without anything more, does not implicate the accused in the offence.
8. The evidence against the accused by PW1 was based on suspicion. The court of appeal in the case of Sawe vs Republic [2003] KLR 354, the Court of Appeal held as follows:
Suspicion, however strong, cannot provide the basis for inferring guilt, which must be proved by evidence beyond reasonable doubt.
This witness's suspicion lacked a logical basis. One is left wondering why she did not suspect Alvin or that other person in his company.
9. Alvin Paul Kanini (PW2) contradicted the evidence of PW1. He testified that he saw the deceased going towards her home at about 3 p.m. He never saw her meeting anybody. When he met the deceased’s mother, he told her that he had seen her going towards her home. The Court of Appeal in the case of Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA), held:
The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.
10. In this case, I find PW1’s and PW2’s evidence difficult to reconcile.
11. CPL. Kennedy Kengere (PW7) was the investigating officer in this matter. His evidence was that when he visited the scene where the deceased's body was recovered, the accused's father, Lukas Kuna, was asked to open the house because of its proximity to the scene. When he did so, the officer recovered a spade and a piece of cloth with bloodstains. The walls were spattered with blood. He arrested Lukas Kuna and locked the house. He took possession of the key. When the accused followed his father to the police post, he was arrested as a suspect. This was on the 25th day of May 2025.
12. On May 26, 2025, he returned to the scene and collected some items from a pit latrine. He also stated that he found a multicoloured T-shirt in the accused's house and took it as an exhibit.
13. The inventory that was produced as prosecution exhibit 1 is not accurate. This is what it states:
Inventory of exhibits recovered from Alex Kanini Kuna/a pit latrine and dwelling house located in Chobe village within South Kinangop sub-county on the 26th May 2025.
14. The investigating officer testified that on 25 May 2025, upon arresting Lukas Kuna, he retrieved a spade and a bloodstained cloth from the house where Kuna was the caretaker. These items were among those the accused signed for in an inventory dated 26 May 2025.
15. CPL. Kennedy Kengere (PW7) did not provide any evidence linking the accused to the pit latrine or to the exhibits found there.
16. Whenever material evidence is introduced, it is intended to assist the court in reaching a decision, not merely to serve as embroidery. PW7 testified that the walls of the house where some exhibits were found were splattered with blood. However, there was no effort to determine whether the blood was human or of what origin. He also admitted during cross-examination that he did not have the blood on the wall examined. This was likely due to a lack of interest, inexperience, or other reasons. As a result, the court was denied the opportunity to understand the circumstances surrounding the case.
17. It is uncertain whether the investigating officer and prosecutor intentionally overlooked calling Lukas Kuna or simply forgot. They did not attempt to summon this witness but did try to call Lilian Wairimu Muiruri, the homeowner, who had Lukas Kuna as a caretaker. The court was told she lives in Narok, and, based on the record, her testimony might not have contributed significantly to the case. However, even to a layperson, Lukas Kuna was a very important witness in this case. The Court of Appeal in the case of Bukenya vs Uganda [1972] EA 549 (Lutta Ag. Vice President) held:
The prosecution must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent.
Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.
This omission was serious.
18. CPL. Kennedy Kengere (PW7) reported that on May 26, 2025, he visited the accused's residence and retrieved a multicoloured T-shirt, which was later sent for DNA testing. During cross-examination, the issue of recovery was not contested. The Court of Appeal (Tanzania) in the case of Martin Masara vs The Republic, Criminal Appeal No. 428 of 2016, CAT at Mbeya (unreported), held that,
It is trite law in this jurisdiction founded upon prudence that failure to cross-examine on a vital point, ordinarily implies the acceptance of the truth of the witness evidence; and any alarm to the contrary is taken as an afterthought if raised thereafter.
19. This decision correctly interprets the law. Therefore, I find that the multicoloured T-shirt was recovered from the accused's house.
20. The government analyst report states that one of the seven items received was a multicoloured T-shirt labelled “J”. The conclusion and the opinion were as follows:
The DNA profile generated from the bloodstains on the sweater (item G1), the long trousers (item G2) and the T-shirt (item J) and the high vaginal swabs (items H1 & H2) all matched those generated from the blood sample marked “ H3 & H4, Daisy Wambui (deceased) with a probability of random match of 1 in 1.34x1012.
21. In an Indian case in Manoj v. State of M.P.9, S. Ravindra Bhat J. observed;
158. This Court, therefore, has relied on DNA reports, in the past, where the guilt of an accused was sought to be established. Notably, the reliance was to corroborate. This Court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that being an opinion, the probative value of such evidence has to vary from case to case.
22. In the present case, the T-shirt had dry bloodstains. I am satisfied that there was no possibility of contamination. Without any explanation of how the deceased's blood came to be on the jacket found in the accused's house, the only logical conclusion is that the accused had contact with the deceased shortly before her death. I therefore find that the accused caused the deceased's death.
23. To secure a conviction based on the evidence on record, the prosecution must establish the presence of malice aforethought. In Black’s Law Dictionary, 10th Edition, malice aforethought is defined as:
The requisite mental state for common-law murder, encompassing any one of the following (1) the intent to kill (2) the intent to inflict grievous bodily harm (3) extremely reckless difference to the value of human life (the so-called “abandoned and malignant heart”), or (4) the intent to commit a dangerous felony (which leads to culpability under the felony-murder rule).
24. Section 206 of the Penal Code gives instances when malice aforethought may be proved. It provides:
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.
25. Dr Titus Ngulungu conducted the post-mortem on the body of the deceased. He found the following injuries:
a) Multiple superficial incisions on the anterior neck.
b) There’s a slash wound @120mm on the anterior neck involving the skin, muscle, trachea and vessels.
c) Bruises noted on the introitus and anal orifice, and gaping of the anal orifice.
d) Torn hymen.
e) Severed trachea – blood noted in the tracheal lumen.
f) Collapsed lungs and surface hemorrhagic infarcts.
He formed the opinion that the cause of death was massive blood loss with aspiratory asphyxia following severed great neck vessels due to sharp force trauma to the neck.
26. After considering the evidence in totality, I conclude that the prosecution has proved the charge beyond a reasonable doubt. I find him guilty and convict him of murder.
Delivered and signed at Nyandarua, this 26th day of May 2026