I. INTRODUCTION
1. The three accused persons, Eddlied Mandi Jilani (A1), Makonde Ruwa Buni (A2), and Ngira Karisa Charo (A3), stand charged with the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code. The information alleges that on 8 March 2018 , within Kilifi and Malindi Counties, the three jointly murdered Issack Kassim Jiraw , also known as "Sokorow."
2. Each of the accused persons pleaded not guilty, thereby placing upon the prosecution the burden of proving every essential ingredient of the offence beyond reasonable doubt. That burden remains throughout the trial and never shifts to an accused person except where statute expressly provides otherwise. See Woolmington v Director of Public Prosecutions [1935] AC 462 and Article 50(2)(a) of the Constitution.
3. The procedural history of this matter is unusually protracted. Initially, the third accused entered into a plea agreement with the Director of Public Prosecutions pursuant to Section 137A of the Criminal Procedure Code. Under that agreement, he pleaded guilty to a lesser offence and undertook to testify against his co-accused. He was accordingly convicted and sentenced to eight years' imprisonment.
4. However, when called upon to testify during the trial, the third accused dramatically changed course. Although he initially adopted his earlier statement in examination-in-chief, he subsequently declined to proceed with cross-examination and informed the Court that he wished to withdraw the incriminating portions of his testimony. He asserted that he had agreed to cooperate only because he had allegedly been assured that he would not serve a custodial sentence. He further alleged that investigating officers had instructed him to implicate the first accused and had promised him immunity from imprisonment if he did so.
5. That development fundamentally altered the course of the proceedings. Upon application by the prosecution under Section 137 of the Criminal Procedure Code, this Court, by its ruling delivered on 28 November 2019 , set aside the plea agreement together with the conviction and sentence founded upon it. A plea of not guilty was thereafter entered on behalf of the third accused, and the matter proceeded to a full trial against all three accused persons.
6. During the trial, the prosecution called thirty-seven (37) witnesses drawn from diverse disciplines, including family members of the deceased, civilian witnesses, county government officials, financial institutions, telecommunications providers, forensic experts, investigating officers, and judicial officers who recorded the impugned confessions. Numerous documentary, electronic and physical exhibits were also produced. Upon considering the prosecution evidence, the Court found that a prima facie case had been established and placed each accused on his or her defence pursuant to Section 306(2) of the Criminal Procedure Code.
7. The first and second accused elected to give sworn evidence denying any participation in the offence. The third accused exercised his statutory right under Section 311 of the Criminal Procedure Code to remain silent and called no evidence in his defence.
8. Whereas the prosecution elected not to file written submissions, the first and second accused filed joint submissions through Messrs J.O. Magolo & Company Advocates, while the third accused filed separate submissions through Messrs Laverne Nabwana & Company Advocates. I have carefully considered the oral testimony, documentary evidence, exhibits, confessions admitted in evidence, the rival submissions and the applicable law before arriving at this decision.
9. The present prosecution is founded substantially upon circumstantial evidence . No witness claims to have seen the actual killing of the deceased. Instead, the prosecution invites the Court to infer guilt from a combination of proved circumstances, namely the financial dealings between the deceased and the first accused, telephone communication and geolocation analysis, forensic findings, the conduct of the accused persons before and after the deceased disappeared, and the confessions recorded from the second and third accused.
10. The law governing convictions founded on circumstantial evidence is now firmly settled. In Republic v Kipkering arap Koskei & Another (1949) 16 EACA 135 , the former Court of Appeal for Eastern Africa held that before a conviction can properly be founded on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. That principle has consistently been reaffirmed in Sawe v Republic [2003] KLR 364, Abanga alias Onyango v Republic , Criminal Appeal No. 32 of 1990 (unreported), and Musili Tulo v Republic [2014] eKLR.
11. Equally settled is the principle that each individual circumstance may appear inconclusive when viewed in isolation. However, where all the circumstances are considered cumulatively and form one continuous chain leading irresistibly to the guilt of an accused person, a conviction may properly be founded upon such evidence. Conversely, if there exists any reasonable hypothesis consistent with innocence, the accused is entitled to the benefit of that doubt. See Teper v R [1952] AC 480 and Sawe v Republic [2003] KLR 364.
12. It is against those established legal principles, while bearing constantly in mind the constitutional presumption of innocence and the prosecution's burden of proof beyond reasonable doubt, that this Court now proceeds to evaluate the evidence.
II. BACKGROUND
13. The deceased, Issack Kassim Jiraw , also known as Sokorow , was a Nairobi-based businessman. Before venturing into private enterprise, he had worked in Mandera in the county govrnment .By 2017 and early 2018, he had expanded his business interests into county government procurement and had focused his commercial activities in Momasa and was now eyeing Kilifi County. Simultaneously, he sought appointment to a senior position of chie f officer within the County Government of Kilifi.
14. The prosecution evidence establishes that, in pursuing those ambitions, the deceased became acquainted with the first accused, Eddlied Mandi Jilani , then an employee in the Department of Devolution, Public Service and Disaster Management within the County Government of Kilifi. He was introduced to her by PW1. According to the prosecution, she portrayed herself as capable of facilitating both procurement opportunities and public appointments within the County Government. Through her, the deceased was introduced to several county officials and progressively advanced substantial sums of money in the expectation of securing lucrative government tenders and eventual appointment as a Chief Officer.
15. The prosecution's case is that those promises never materialised. Instead, after repeated financial demands and unsuccessful attempts to secure employment or payment for procurement opportunities, the deceased began demanding the return of his money. It is alleged that those demands provided the motive for the events that culminated in his death.
16. According to the prosecution, the first accused, acting together with the second and third accused, orchestrated a plan to lure the deceased from Nairobi to the Coast under the guise of resolving his employment and procurement concerns. Once he arrived, he was allegedly collected by the 2 ND AND 3 RD accused PERSONS , transported through Kilifi towards Lango Baya in Malindi, where he was unlawfully killed, his body thereafter being abandoned in a remote bush after being doused with sulphuric acid in an apparent attempt to destroy forensic evidence.
17. The prosecution therefore relies principally upon circumstantial evidence, financial records, electronic communication data, forensic findings and the confessions attributed to the second and third accused. The central issue throughout this judgment is whether those several strands of evidence, when woven together, establish one complete and unbroken chain pointing irresistibly to the guilt of each accused person, to the exclusion of every other reasonable hypothesis consistent with innocence.
II. THE EVIDENCE
A. The Prosecution Case
18. The prosecution called thirty-seven (37) witnesses and produced numerous documentary, electronic and physical exhibits. The evidence comprised testimony from members of the deceased's family and associates, officers of the County Government of Kilifi, banking and telecommunications officers, forensic experts, police investigators, independent civilian witnesses, and the judicial officer who recorded one of the impugned confessions. Collectively, the prosecution sought to demonstrate that the three accused persons jointly orchestrated and executed the murder of the deceased in order to prevent him from pursuing repayment of substantial sums of money which he had advanced in anticipation of obtaining county government tenders and public employment.
(i) The Deceased's Relationship with the First Accused
19. The evidence of PW1 Abbas Mohamed Sheikh, PW2 Mohamed Rashid Ali Jiram, PW3 Abdullahi Omar Sheikh, PW4 Abdirahman Kassim Jiraw, PW19 Maimuna Abubakar Abdi, PW22 Mohamed Isaack Gedo, and PW36 James Muthethe Malewa established the background to the relationship between the deceased and the first accused. The deceased had ventured into procurement business within Kilifi County while simultaneously pursuing appointment as a Chief Officer in the County Government. Through PW1, he became acquainted with the first accused, who represented herself as capable of facilitating both procurement opportunities and public appointment within the County Government of Kilifi. She subsequently introduced the deceased to the Chairman of the County Public Service Board and to other county officials.
20. The prosecution evidence further established that, over several months, the deceased remitted substantial sums of money to the first accused, either directly or through members of his family and business associates. The money was allegedly demanded for purposes of facilitating procurement contracts, influencing interview panel members, securing appointment to public office, and obtaining payment for county tenders. The prosecution contended that these representations were false and formed part of an elaborate scheme to defraud the deceased and others.
(ii) Financial Transactions
21. The financial aspect of the prosecution case was supported principally by PW18, a banker from Co-operative Bank, who produced bank statement PEXT 16A TO F .The Safaricom M-Pesa records and subscriber for a1 and the deceased were produced as PXT 22 a to e. The bank statements produced in evidence disclosed repeated deposits into the first accused's account during January and February 2018, including deposits made by the deceased and persons associated with him. The M-Pesa records similarly demonstrated direct transfers between the deceased and the first accused. Those records corroborated the oral evidence that the deceased had parted with considerable sums of money in expectation of receiving employment and procurement opportunities .The LPOs and other documents given to the deceased and as confirmed by pw24 were produced as P exbts5 to 12. It emerged that those documents were not genuine.
(iii) The Employment Process
22. The evidence of PW36, the Chairman of the Kilifi County Public Service Board, assumed particular significance. He confirmed that the deceased had indeed applied for the position of Chief Officer, was shortlisted and interviewed on 31 January 2018, but failed to attain the requisite pass mark. Another candidate ADAN MOHANNED was subsequently recommended and appointed. The advertisement, application by the deceased ,board analysis and letters appointing Adan were produces as P exts 26 a to f. PW36 testified that the first accused had personally introduced the deceased to him before the recruitment process commenced. This evidence established that by early March 2018 the deceased's prospects of appointment had effectively come to an end, thereby lending support to the prosecution's contention that the deceased thereafter began demanding reimbursement of the monies he had paid.
(iv) The Deceased's Final Movements
23. The evidence of PW2, PW3, PW4, PW19 and PW22 established the deceased's movements immediately before his disappearance. On 7 March 2018, he travelled from Nairobi to Mombasa by the Standard Gauge Railway. The SGR manifest was PET 28. He spent the night at PW2's residence and remained in communication with members of his family and associates. On the morning of 8 March 2018, he informed several witnesses that he was proceeding to Kilifi to meet the first accused and other county officials concerning both his employment and pending payments. Later that afternoon, communication with him abruptly ceased. His mobile telephone was thereafter switched off and all subsequent attempts to contact him proved unsuccessful.
(v) Discovery of the Body
24. The circumstances surrounding the discovery of the deceased's body were narrated by PW5 Sergeant James Kasoko, PW6 Sifa Mtawani, PW7 Stephen Jefa Mweni, PW20 Dr Eddy Nzomo, PW24 CPL John Manyani, and PW34 Dr Eman Ibrahim. Their evidence established that on 10 March 2018, the deceased's naked body was discovered in a bush at Bandala within Lango Baya. A belt was tightly fastened around his neck, empty acid containers were recovered at the scene, and his clothing lay some distance away. The post-mortem examination concluded that death resulted from cervical spine fracture secondary to strangulation. Sulphuric acid had been poured on portions of the body after death, evidently in an attempt to destroy forensic evidence.
(vi) Fraudulent Procurement Documents
25. The prosecution further led evidence through PW10, PW11, PW16 and PW29 demonstrating that several Local Purchase Orders (LPOs) associated with the transactions between the deceased, PW22 and the first accused were fraudulent. County procurement officials testified that the documents did not originate from the County Government of Kilifi, while verification by the Ministry of Interior similarly established that some of the LPO serial numbers related to entirely different government entities. This evidence reinforced the prosecution theory that the deceased had been induced to part with money through false representations.
(vii) Electronic and Telephone Evidence
26. The prosecution placed considerable reliance on electronic evidence. PW21, PW26, PW31 and PW37 produced forensic extraction reports, subscriber registration details, call data records and geolocation analysis. According to that evidence, the deceased remained in communication with the first accused immediately before his disappearance. Telephone analysis further suggested communication between the first accused and the second and third accused using a second telephone line allegedly associated with the first accused. The investigating officer testified that the geolocation data placed the second and third accused along the route travelled from Mombasa through Kilifi to Lango Baya at the material time. The prosecution relied upon this evidence as corroboration of a common design linking the accused persons to the deceased's final journey.
(viii) Independent Civilian Witnesses
27. The prosecution also called independent civilian witnesses, notably PW32 Joyce Chome and PW33 Kenga Ziro, who described encountering three men travelling together in the vicinity of Lango Baya on the evening of 8 March 2018. PW33 identified the third accused as one of those men. Although neither witness observed the commission of the offence itself, their testimony placed the third accused within the locality where the deceased was later found dead.
(ix) The Confessions
28. Finally, the prosecution relied upon confessional statements allegedly made by the second and third accused. The confession of the third accused was recorded by PW23, while that of the second accused was recorded before PW35, then a Principal Magistrate, in the presence of counsel. The admissibility of both confessions was contested, leading to a trial within a trial. By a ruling delivered on 21 May 2023, this Court admitted both confessions into evidence, leaving the question of the weight to be attached to them for determination in the final judgment.
B. THE DEFENCE CASE
29. At the close of the prosecution case, this Court found that a prima facie case had been established against each of the accused persons and accordingly placed them on their defence pursuant to Section 306(2) of the Criminal Procedure Code. The first and second accused elected to give sworn testimony, while the third accused exercised his statutory right under Section 311 of the Criminal Procedure Code to remain silent.
(i) Defence of the First Accused
30. The first accused, Eddlied Mandi Jilani, admitted knowing the deceased but denied any involvement in his death. She testified that she was employed by the County Government of Kilifi and first met the deceased after he had been introduced to her by PW1, who informed her that the deceased was interested in obtaining employment within the County Government. According to her, she merely facilitated an introduction between the deceased and the Chairman of the County Public Service Board (PW36) and played no further role in the recruitment process.
31. She stated that after the recruitment advertisement was published, the deceased submitted his application, attended the interview and thereafter returned to Nairobi. She maintained that she had no influence over the recruitment exercise and was unaware of its outcome until much later. She denied making any promises regarding employment or procurement opportunities and asserted that any assistance she rendered was purely administrative.
32. The first accused admitted receiving money from the deceased but explained that the payments were merely tokens of appreciation for introducing him to senior county officials. She denied receiving money for purposes of bribery or facilitating employment and rejected the prosecution's allegation that she had fraudulently induced the deceased to part with money. She further denied using any telephone number other than her registered number and denied communicating with the deceased through any covert line. She also denied owning or using the motor vehicle allegedly involved in collecting the deceased on 8 March 2018.She also denied owning or using any other sim card .
33. According to the first accused, the last communication she had with the deceased concerned his intention to meet a Member of County Assembly in Malindi. She stated that after learning of his disappearance, she cooperated with investigators but was nevertheless arrested in May 2018 and charged with an offence she did not commit. She denied knowing the third accused and acknowledged only that the second accused was her uncle. She maintained throughout that she had neither motive nor reason to harm the deceased.
(ii) Defence of the Second Accused
34. The second accused, Makonde Ruwa Buni, also gave sworn evidence. He denied participating in the murder and rejected the prosecution's allegation that he travelled with the deceased or participated in transporting him to Lango Baya. He maintained that he was merely arrested while going about his ordinary activities and had no knowledge whatsoever of the circumstances surrounding the deceased's death. He equally denied the truth of the confession attributed to him.
(iii) Defence of the Third Accused
35. The third accused, Ngira Karisa Charo, elected to exercise his constitutional right to remain silent and did not call any evidence in his defence. In accordance with Article 50(2)(i) of the Constitution and Section 311 of the Criminal Procedure Code, no adverse inference may be drawn solely from his election to remain silent. His culpability must therefore be determined exclusively on the strength or otherwise of the prosecution evidence. See Okethi Okale & Others v Republic [1965] EA 555.
III. ISSUES FOR DETERMINATION
36. Having carefully considered the evidence adduced by both the prosecution and the defence, the documentary exhibits, the rival submissions of counsel, and the applicable law, the following issues arise for determination:
i. Whether the death of Issack Kassim Jiraw and its cause were proved beyond reasonable doubt;
ii. Whether the confessions attributed to the second and third accused are reliable and, if so, the evidential weight to be attached to them;
iii. Whether the prosecution proved beyond reasonable doubt that the accused persons, jointly or individually, committed the unlawful act which caused the death of the deceased;
iv. Whether the prosecution established malice aforethought within the meaning of Section 206 of the Penal Code; and
v. Whether the charge of murder contrary to Sections 203 and 204 of the Penal Code was proved beyond reasonable doubt against each accused person.
37. I shall consider each of these issues sequentially, bearing in mind that the prosecution bears the legal burden throughout and that every accused person is presumed innocent until proved guilty beyond reasonable doubt.
IV. ANALYSIS AND DETERMINATION
Issue I: Whether the Death of the Deceased and its Cause were Proved
38. The first issue is whether the prosecution proved the fact and cause of the deceased's death. Unlike the subsequent issues relating to the identity of the perpetrators, this aspect of the prosecution case is substantially uncontested. Both the prosecution and the defence proceeded on the common premise that Issack Kassim Jiraw is deceased. The Court must nevertheless independently satisfy itself that the prosecution discharged its burden of proof.
39. The evidence concerning the discovery of the deceased's body was consistent, mutually corroborative and remained largely unchallenged. PW6, a schoolboy who had gone to graze goats at Bandala, Lango Baya, testified that on the morning of 10 March 2018 , he came upon the body of a naked man lying in bushes. He immediately informed his father, who in turn alerted the village elder, PW7. Their evidence was corroborated by PW5, Sgt. James Kasoko, and PW24, CPL John Manyani, who were among the first police officers to attend the scene. They found the deceased lying partly concealed in bushes, naked, with a belt tightly fastened around his neck. Empty bottles later established to have contained sulphuric acid were recovered at the scene, while the deceased's clothes were found some distance away.
40. The prosecution also established an unbroken chain regarding the identification of the body. PW2, PW3, PW4, PW19 and PW34, all close relatives or persons well known to the deceased, participated in identifying the body at Malindi Sub-County Hospital Mortuary before the post-mortem examination was undertaken. There is therefore no doubt that the body examined by the pathologist was that of Issack Kassim Jiraw .
41. The medical evidence was presented by PW20, Dr. Eddy Nzomo , who conducted the post-mortem examination on 11 March 2018 . His findings as contained in the post mortem report PEXT 13, were both detailed and unequivocal. He observed that the body was naked and already in a state of decomposition. A belt remained tightly fastened around the neck and had to be cut to facilitate examination. Internally, he found a fracture of the cervical spine consistent with severe compression of the neck. In his professional opinion, the cause of death was cervical spine fracture secondary to strangulation . His evidence was neither contradicted by another medical expert nor seriously challenged during cross-examination.
42. The evidence of the Government Analyst, PW17 , further established that the bottles recovered at the scene contained sulphuric acid . Although no usable DNA profile was recovered from the exhibits submitted for examination, the presence of sulphuric acid was significant because it corroborated the observations of witnesses who noted apparent acid burns on the deceased's body. The evidence therefore demonstrates that after the deceased had been killed, his body was deliberately doused with sulphuric acid. Such conduct is consistent with an attempt to destroy forensic evidence and hinder subsequent identification or investigation. The report was PXT 15.
43. Having considered the entirety of this evidence, I am satisfied that the prosecution has proved beyond reasonable doubt that Issack Kassim Jiraw died on or about 8 March 2018 and that his death resulted from unlawful violence. The medical evidence conclusively excludes death by accident, suicide or natural causes. A belt was tightened around the deceased's neck with such force as to fracture the cervical spine. That degree of force could only have been intentionally applied by another person.
44. The law is settled that where medical evidence establishes that death resulted from deliberate violence unlawfully inflicted by another person, the prosecution has proved the corpus delicti of the offence of murder. See Ndungu v Republic [1985] KLR 487, where the Court of Appeal observed that proof of death, together with proof that the death resulted from an unlawful act or omission, constitutes the foundation upon which the remaining ingredients of the offence are built.
45. The defence did not dispute either the fact of death or the medical cause of death. Their challenge was directed solely at the identity of those responsible. I therefore find that the prosecution has satisfactorily established the first ingredient of the offence of murder, namely, that the deceased died and that his death was caused by an unlawful act.
46. The more difficult question , and indeed the central issue in this trial, is whether the prosecution has proved beyond reasonable doubt that the unlawful act which caused the deceased's death was committed by the accused persons. That determination necessarily requires the Court to evaluate the admissibility and evidential weight of the confessions before considering the remaining circumstantial evidence.
Issue II: Whether the Confessions Attributed to the Second and Third Accused are Reliable and the Weight to be Attached to Them
47. The prosecution placed considerable reliance upon the confessional statements allegedly made by the second and third accused persons. The admissibility of those confessions was vigorously contested during the trial, culminating in a trial within a trial. By a ruling delivered on 21 May 2023, this Court found that the confessions had been recorded in compliance with the Evidence Act and the Evidence (Out of Court Confessions) Rules, 2009, and consequently admitted them into evidence. That ruling settled only the question of admissibility. It did not determine the probative value or reliability of the confessions, which remains an issue for determination in this judgment.
48. It is trite that admissibility and evidential weight are distinct legal concepts. A confession may be lawfully admitted into evidence yet, upon consideration of the entire record, be found unreliable or insufficient to sustain a conviction. The Court must therefore evaluate the confessions alongside all the other evidence before deciding the extent to which they may safely be relied upon.
49. Section 25A of the Evidence Act provides that a confession is admissible only if made before a judge, magistrate or police officer of or above the rank prescribed by law and recorded in accordance with the prescribed procedure. The object of these safeguards is to ensure that confessions are voluntary, reliable and free from oppression, inducement, threat or promise.
50. Even where a confession has been admitted, the Court must exercise caution before founding a conviction upon it. In Tuwamoi v Uganda [1967] EA 84, the former Court of Appeal for East Africa held that a court may convict on a retracted confession if satisfied that it is true, but, as a matter of prudence, it should ordinarily look for independent evidence which materially corroborates the confession. The same principle was affirmed in Kinyori s/o Karuditu v R (1956) 23 EACA 480 and has consistently been applied by Kenyan courts.
51. The rationale for this rule is self-evident. Experience demonstrates that confessions may occasionally be motivated by fear, self-interest, misunderstanding, or the hope of obtaining favourable treatment. Consequently, where an accused retracts or repudiates a confession, the Court must scrutinise it with the greatest care and seek assurance from independent evidence that the confession is truthful in its material particulars.
(a) The Third Accused's Confession
52. The confession attributed to the third accused presents particular difficulty. It was initially made in the context of plea bargain negotiations with the Director of Public Prosecutions. After pleading guilty to a lesser offence and receiving a custodial sentence, the third accused dramatically altered his position. He informed the Court that he had expected not to be imprisoned and alleged that investigating officers had induced him to implicate the first accused by promising him favourable treatment. He thereafter withdrew the incriminating aspects of his testimony and declined to maintain the account contained in his confession.
53. The subsequent setting aside of the plea agreement does not, by itself, render the confession inadmissible. Nevertheless, it is a circumstance that bears directly upon the weight to be attached to the confession. The Court must therefore examine with
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1. The three accused persons, Eddlied Mandi Jilani (A1), Makonde Ruwa Buni (A2), and Ngira Karisa Charo (A3), stand charged with the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code. The information alleges that on 8 March 2018 , within Kilifi and Malindi Counties, the three jointly murdered Issack Kassim Jiraw , also known as "Sokorow."
2. Each of the accused persons pleaded not guilty, thereby placing upon the prosecution the burden of proving every essential ingredient of the offence beyond reasonable doubt. That burden remains throughout the trial and never shifts to an accused person except where statute expressly provides otherwise. See Woolmington v Director of Public Prosecutions [1935] AC 462 and Article 50(2)(a) of the Constitution.
3. The procedural history of this matter is unusually protracted. Initially, the third accused entered into a plea agreement with the Director of Public Prosecutions pursuant to Section 137A of the Criminal Procedure Code. Under that agreement, he pleaded guilty to a lesser offence and undertook to testify against his co-accused. He was accordingly convicted and sentenced to eight years' imprisonment.
4. However, when called upon to testify during the trial, the third accused dramatically changed course. Although he initially adopted his earlier statement in examination-in-chief, he subsequently declined to proceed with cross-examination and informed the Court that he wished to withdraw the incriminating portions of his testimony. He asserted that he had agreed to cooperate only because he had allegedly been assured that he would not serve a custodial sentence. He further alleged that investigating officers had instructed him to implicate the first accused and had promised him immunity from imprisonment if he did so.
5. That development fundamentally altered the course of the proceedings. Upon application by the prosecution under Section 137 of the Criminal Procedure Code, this Court, by its ruling delivered on 28 November 2019 , set aside the plea agreement together with the conviction and sentence founded upon it. A plea of not guilty was thereafter entered on behalf of the third accused, and the matter proceeded to a full trial against all three accused persons.
6. During the trial, the prosecution called thirty-seven (37) witnesses drawn from diverse disciplines, including family members of the deceased, civilian witnesses, county government officials, financial institutions, telecommunications providers, forensic experts, investigating officers, and judicial officers who recorded the impugned confessions. Numerous documentary, electronic and physical exhibits were also produced. Upon considering the prosecution evidence, the Court found that a prima facie case had been established and placed each accused on his or her defence pursuant to Section 306(2) of the Criminal Procedure Code.
7. The first and second accused elected to give sworn evidence denying any participation in the offence. The third accused exercised his statutory right under Section 311 of the Criminal Procedure Code to remain silent and called no evidence in his defence.
8. Whereas the prosecution elected not to file written submissions, the first and second accused filed joint submissions through Messrs J.O. Magolo & Company Advocates, while the third accused filed separate submissions through Messrs Laverne Nabwana & Company Advocates. I have carefully considered the oral testimony, documentary evidence, exhibits, confessions admitted in evidence, the rival submissions and the applicable law before arriving at this decision.
9. The present prosecution is founded substantially upon circumstantial evidence . No witness claims to have seen the actual killing of the deceased. Instead, the prosecution invites the Court to infer guilt from a combination of proved circumstances, namely the financial dealings between the deceased and the first accused, telephone communication and geolocation analysis, forensic findings, the conduct of the accused persons before and after the deceased disappeared, and the confessions recorded from the second and third accused.
10. The law governing convictions founded on circumstantial evidence is now firmly settled. In Republic v Kipkering arap Koskei & Another (1949) 16 EACA 135 , the former Court of Appeal for Eastern Africa held that before a conviction can properly be founded on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. That principle has consistently been reaffirmed in Sawe v Republic [2003] KLR 364, Abanga alias Onyango v Republic , Criminal Appeal No. 32 of 1990 (unreported), and Musili Tulo v Republic [2014] eKLR.
11. Equally settled is the principle that each individual circumstance may appear inconclusive when viewed in isolation. However, where all the circumstances are considered cumulatively and form one continuous chain leading irresistibly to the guilt of an accused person, a conviction may properly be founded upon such evidence. Conversely, if there exists any reasonable hypothesis consistent with innocence, the accused is entitled to the benefit of that doubt. See Teper v R [1952] AC 480 and Sawe v Republic [2003] KLR 364.
12. It is against those established legal principles, while bearing constantly in mind the constitutional presumption of innocence and the prosecution's burden of proof beyond reasonable doubt, that this Court now proceeds to evaluate the evidence.
II. BACKGROUND
13. The deceased, Issack Kassim Jiraw , also known as Sokorow , was a Nairobi-based businessman. Before venturing into private enterprise, he had worked in Mandera in the county govrnment .By 2017 and early 2018, he had expanded his business interests into county government procurement and had focused his commercial activities in Momasa and was now eyeing Kilifi County. Simultaneously, he sought appointment to a senior position of chie f officer within the County Government of Kilifi.
14. The prosecution evidence establishes that, in pursuing those ambitions, the deceased became acquainted with the first accused, Eddlied Mandi Jilani , then an employee in the Department of Devolution, Public Service and Disaster Management within the County Government of Kilifi. He was introduced to her by PW1. According to the prosecution, she portrayed herself as capable of facilitating both procurement opportunities and public appointments within the County Government. Through her, the deceased was introduced to several county officials and progressively advanced substantial sums of money in the expectation of securing lucrative government tenders and eventual appointment as a Chief Officer.
15. The prosecution's case is that those promises never materialised. Instead, after repeated financial demands and unsuccessful attempts to secure employment or payment for procurement opportunities, the deceased began demanding the return of his money. It is alleged that those demands provided the motive for the events that culminated in his death.
16. According to the prosecution, the first accused, acting together with the second and third accused, orchestrated a plan to lure the deceased from Nairobi to the Coast under the guise of resolving his employment and procurement concerns. Once he arrived, he was allegedly collected by the 2 ND AND 3 RD accused PERSONS , transported through Kilifi towards Lango Baya in Malindi, where he was unlawfully killed, his body thereafter being abandoned in a remote bush after being doused with sulphuric acid in an apparent attempt to destroy forensic evidence.
17. The prosecution therefore relies principally upon circumstantial evidence, financial records, electronic communication data, forensic findings and the confessions attributed to the second and third accused. The central issue throughout this judgment is whether those several strands of evidence, when woven together, establish one complete and unbroken chain pointing irresistibly to the guilt of each accused person, to the exclusion of every other reasonable hypothesis consistent with innocence.
II. THE EVIDENCE
A. The Prosecution Case
18. The prosecution called thirty-seven (37) witnesses and produced numerous documentary, electronic and physical exhibits. The evidence comprised testimony from members of the deceased's family and associates, officers of the County Government of Kilifi, banking and telecommunications officers, forensic experts, police investigators, independent civilian witnesses, and the judicial officer who recorded one of the impugned confessions. Collectively, the prosecution sought to demonstrate that the three accused persons jointly orchestrated and executed the murder of the deceased in order to prevent him from pursuing repayment of substantial sums of money which he had advanced in anticipation of obtaining county government tenders and public employment.
(i) The Deceased's Relationship with the First Accused
19. The evidence of PW1 Abbas Mohamed Sheikh, PW2 Mohamed Rashid Ali Jiram, PW3 Abdullahi Omar Sheikh, PW4 Abdirahman Kassim Jiraw, PW19 Maimuna Abubakar Abdi, PW22 Mohamed Isaack Gedo, and PW36 James Muthethe Malewa established the background to the relationship between the deceased and the first accused. The deceased had ventured into procurement business within Kilifi County while simultaneously pursuing appointment as a Chief Officer in the County Government. Through PW1, he became acquainted with the first accused, who represented herself as capable of facilitating both procurement opportunities and public appointment within the County Government of Kilifi. She subsequently introduced the deceased to the Chairman of the County Public Service Board and to other county officials.
20. The prosecution evidence further established that, over several months, the deceased remitted substantial sums of money to the first accused, either directly or through members of his family and business associates. The money was allegedly demanded for purposes of facilitating procurement contracts, influencing interview panel members, securing appointment to public office, and obtaining payment for county tenders. The prosecution contended that these representations were false and formed part of an elaborate scheme to defraud the deceased and others.
(ii) Financial Transactions
21. The financial aspect of the prosecution case was supported principally by PW18, a banker from Co-operative Bank, who produced bank statement PEXT 16A TO F .The Safaricom M-Pesa records and subscriber for a1 and the deceased were produced as PXT 22 a to e. The bank statements produced in evidence disclosed repeated deposits into the first accused's account during January and February 2018, including deposits made by the deceased and persons associated with him. The M-Pesa records similarly demonstrated direct transfers between the deceased and the first accused. Those records corroborated the oral evidence that the deceased had parted with considerable sums of money in expectation of receiving employment and procurement opportunities .The LPOs and other documents given to the deceased and as confirmed by pw24 were produced as P exbts5 to 12. It emerged that those documents were not genuine.
(iii) The Employment Process
22. The evidence of PW36, the Chairman of the Kilifi County Public Service Board, assumed particular significance. He confirmed that the deceased had indeed applied for the position of Chief Officer, was shortlisted and interviewed on 31 January 2018, but failed to attain the requisite pass mark. Another candidate ADAN MOHANNED was subsequently recommended and appointed. The advertisement, application by the deceased ,board analysis and letters appointing Adan were produces as P exts 26 a to f. PW36 testified that the first accused had personally introduced the deceased to him before the recruitment process commenced. This evidence established that by early March 2018 the deceased's prospects of appointment had effectively come to an end, thereby lending support to the prosecution's contention that the deceased thereafter began demanding reimbursement of the monies he had paid.
(iv) The Deceased's Final Movements
23. The evidence of PW2, PW3, PW4, PW19 and PW22 established the deceased's movements immediately before his disappearance. On 7 March 2018, he travelled from Nairobi to Mombasa by the Standard Gauge Railway. The SGR manifest was PET 28. He spent the night at PW2's residence and remained in communication with members of his family and associates. On the morning of 8 March 2018, he informed several witnesses that he was proceeding to Kilifi to meet the first accused and other county officials concerning both his employment and pending payments. Later that afternoon, communication with him abruptly ceased. His mobile telephone was thereafter switched off and all subsequent attempts to contact him proved unsuccessful.
(v) Discovery of the Body
24. The circumstances surrounding the discovery of the deceased's body were narrated by PW5 Sergeant James Kasoko, PW6 Sifa Mtawani, PW7 Stephen Jefa Mweni, PW20 Dr Eddy Nzomo, PW24 CPL John Manyani, and PW34 Dr Eman Ibrahim. Their evidence established that on 10 March 2018, the deceased's naked body was discovered in a bush at Bandala within Lango Baya. A belt was tightly fastened around his neck, empty acid containers were recovered at the scene, and his clothing lay some distance away. The post-mortem examination concluded that death resulted from cervical spine fracture secondary to strangulation. Sulphuric acid had been poured on portions of the body after death, evidently in an attempt to destroy forensic evidence.
(vi) Fraudulent Procurement Documents
25. The prosecution further led evidence through PW10, PW11, PW16 and PW29 demonstrating that several Local Purchase Orders (LPOs) associated with the transactions between the deceased, PW22 and the first accused were fraudulent. County procurement officials testified that the documents did not originate from the County Government of Kilifi, while verification by the Ministry of Interior similarly established that some of the LPO serial numbers related to entirely different government entities. This evidence reinforced the prosecution theory that the deceased had been induced to part with money through false representations.
(vii) Electronic and Telephone Evidence
26. The prosecution placed considerable reliance on electronic evidence. PW21, PW26, PW31 and PW37 produced forensic extraction reports, subscriber registration details, call data records and geolocation analysis. According to that evidence, the deceased remained in communication with the first accused immediately before his disappearance. Telephone analysis further suggested communication between the first accused and the second and third accused using a second telephone line allegedly associated with the first accused. The investigating officer testified that the geolocation data placed the second and third accused along the route travelled from Mombasa through Kilifi to Lango Baya at the material time. The prosecution relied upon this evidence as corroboration of a common design linking the accused persons to the deceased's final journey.
(viii) Independent Civilian Witnesses
27. The prosecution also called independent civilian witnesses, notably PW32 Joyce Chome and PW33 Kenga Ziro, who described encountering three men travelling together in the vicinity of Lango Baya on the evening of 8 March 2018. PW33 identified the third accused as one of those men. Although neither witness observed the commission of the offence itself, their testimony placed the third accused within the locality where the deceased was later found dead.
(ix) The Confessions
28. Finally, the prosecution relied upon confessional statements allegedly made by the second and third accused. The confession of the third accused was recorded by PW23, while that of the second accused was recorded before PW35, then a Principal Magistrate, in the presence of counsel. The admissibility of both confessions was contested, leading to a trial within a trial. By a ruling delivered on 21 May 2023, this Court admitted both confessions into evidence, leaving the question of the weight to be attached to them for determination in the final judgment.
B. THE DEFENCE CASE
29. At the close of the prosecution case, this Court found that a prima facie case had been established against each of the accused persons and accordingly placed them on their defence pursuant to Section 306(2) of the Criminal Procedure Code. The first and second accused elected to give sworn testimony, while the third accused exercised his statutory right under Section 311 of the Criminal Procedure Code to remain silent.
(i) Defence of the First Accused
30. The first accused, Eddlied Mandi Jilani, admitted knowing the deceased but denied any involvement in his death. She testified that she was employed by the County Government of Kilifi and first met the deceased after he had been introduced to her by PW1, who informed her that the deceased was interested in obtaining employment within the County Government. According to her, she merely facilitated an introduction between the deceased and the Chairman of the County Public Service Board (PW36) and played no further role in the recruitment process.
31. She stated that after the recruitment advertisement was published, the deceased submitted his application, attended the interview and thereafter returned to Nairobi. She maintained that she had no influence over the recruitment exercise and was unaware of its outcome until much later. She denied making any promises regarding employment or procurement opportunities and asserted that any assistance she rendered was purely administrative.
32. The first accused admitted receiving money from the deceased but explained that the payments were merely tokens of appreciation for introducing him to senior county officials. She denied receiving money for purposes of bribery or facilitating employment and rejected the prosecution's allegation that she had fraudulently induced the deceased to part with money. She further denied using any telephone number other than her registered number and denied communicating with the deceased through any covert line. She also denied owning or using the motor vehicle allegedly involved in collecting the deceased on 8 March 2018.She also denied owning or using any other sim card .
33. According to the first accused, the last communication she had with the deceased concerned his intention to meet a Member of County Assembly in Malindi. She stated that after learning of his disappearance, she cooperated with investigators but was nevertheless arrested in May 2018 and charged with an offence she did not commit. She denied knowing the third accused and acknowledged only that the second accused was her uncle. She maintained throughout that she had neither motive nor reason to harm the deceased.
(ii) Defence of the Second Accused
34. The second accused, Makonde Ruwa Buni, also gave sworn evidence. He denied participating in the murder and rejected the prosecution's allegation that he travelled with the deceased or participated in transporting him to Lango Baya. He maintained that he was merely arrested while going about his ordinary activities and had no knowledge whatsoever of the circumstances surrounding the deceased's death. He equally denied the truth of the confession attributed to him.
(iii) Defence of the Third Accused
35. The third accused, Ngira Karisa Charo, elected to exercise his constitutional right to remain silent and did not call any evidence in his defence. In accordance with Article 50(2)(i) of the Constitution and Section 311 of the Criminal Procedure Code, no adverse inference may be drawn solely from his election to remain silent. His culpability must therefore be determined exclusively on the strength or otherwise of the prosecution evidence. See Okethi Okale & Others v Republic [1965] EA 555.
III. ISSUES FOR DETERMINATION
36. Having carefully considered the evidence adduced by both the prosecution and the defence, the documentary exhibits, the rival submissions of counsel, and the applicable law, the following issues arise for determination:
i. Whether the death of Issack Kassim Jiraw and its cause were proved beyond reasonable doubt;
ii. Whether the confessions attributed to the second and third accused are reliable and, if so, the evidential weight to be attached to them;
iii. Whether the prosecution proved beyond reasonable doubt that the accused persons, jointly or individually, committed the unlawful act which caused the death of the deceased;
iv. Whether the prosecution established malice aforethought within the meaning of Section 206 of the Penal Code; and
v. Whether the charge of murder contrary to Sections 203 and 204 of the Penal Code was proved beyond reasonable doubt against each accused person.
37. I shall consider each of these issues sequentially, bearing in mind that the prosecution bears the legal burden throughout and that every accused person is presumed innocent until proved guilty beyond reasonable doubt.
IV. ANALYSIS AND DETERMINATION
Issue I: Whether the Death of the Deceased and its Cause were Proved
38. The first issue is whether the prosecution proved the fact and cause of the deceased's death. Unlike the subsequent issues relating to the identity of the perpetrators, this aspect of the prosecution case is substantially uncontested. Both the prosecution and the defence proceeded on the common premise that Issack Kassim Jiraw is deceased. The Court must nevertheless independently satisfy itself that the prosecution discharged its burden of proof.
39. The evidence concerning the discovery of the deceased's body was consistent, mutually corroborative and remained largely unchallenged. PW6, a schoolboy who had gone to graze goats at Bandala, Lango Baya, testified that on the morning of 10 March 2018 , he came upon the body of a naked man lying in bushes. He immediately informed his father, who in turn alerted the village elder, PW7. Their evidence was corroborated by PW5, Sgt. James Kasoko, and PW24, CPL John Manyani, who were among the first police officers to attend the scene. They found the deceased lying partly concealed in bushes, naked, with a belt tightly fastened around his neck. Empty bottles later established to have contained sulphuric acid were recovered at the scene, while the deceased's clothes were found some distance away.
40. The prosecution also established an unbroken chain regarding the identification of the body. PW2, PW3, PW4, PW19 and PW34, all close relatives or persons well known to the deceased, participated in identifying the body at Malindi Sub-County Hospital Mortuary before the post-mortem examination was undertaken. There is therefore no doubt that the body examined by the pathologist was that of Issack Kassim Jiraw .
41. The medical evidence was presented by PW20, Dr. Eddy Nzomo , who conducted the post-mortem examination on 11 March 2018 . His findings as contained in the post mortem report PEXT 13, were both detailed and unequivocal. He observed that the body was naked and already in a state of decomposition. A belt remained tightly fastened around the neck and had to be cut to facilitate examination. Internally, he found a fracture of the cervical spine consistent with severe compression of the neck. In his professional opinion, the cause of death was cervical spine fracture secondary to strangulation . His evidence was neither contradicted by another medical expert nor seriously challenged during cross-examination.
42. The evidence of the Government Analyst, PW17 , further established that the bottles recovered at the scene contained sulphuric acid . Although no usable DNA profile was recovered from the exhibits submitted for examination, the presence of sulphuric acid was significant because it corroborated the observations of witnesses who noted apparent acid burns on the deceased's body. The evidence therefore demonstrates that after the deceased had been killed, his body was deliberately doused with sulphuric acid. Such conduct is consistent with an attempt to destroy forensic evidence and hinder subsequent identification or investigation. The report was PXT 15.
43. Having considered the entirety of this evidence, I am satisfied that the prosecution has proved beyond reasonable doubt that Issack Kassim Jiraw died on or about 8 March 2018 and that his death resulted from unlawful violence. The medical evidence conclusively excludes death by accident, suicide or natural causes. A belt was tightened around the deceased's neck with such force as to fracture the cervical spine. That degree of force could only have been intentionally applied by another person.
44. The law is settled that where medical evidence establishes that death resulted from deliberate violence unlawfully inflicted by another person, the prosecution has proved the corpus delicti of the offence of murder. See Ndungu v Republic [1985] KLR 487, where the Court of Appeal observed that proof of death, together with proof that the death resulted from an unlawful act or omission, constitutes the foundation upon which the remaining ingredients of the offence are built.
45. The defence did not dispute either the fact of death or the medical cause of death. Their challenge was directed solely at the identity of those responsible. I therefore find that the prosecution has satisfactorily established the first ingredient of the offence of murder, namely, that the deceased died and that his death was caused by an unlawful act.
46. The more difficult question , and indeed the central issue in this trial, is whether the prosecution has proved beyond reasonable doubt that the unlawful act which caused the deceased's death was committed by the accused persons. That determination necessarily requires the Court to evaluate the admissibility and evidential weight of the confessions before considering the remaining circumstantial evidence.
Issue II: Whether the Confessions Attributed to the Second and Third Accused are Reliable and the Weight to be Attached to Them
47. The prosecution placed considerable reliance upon the confessional statements allegedly made by the second and third accused persons. The admissibility of those confessions was vigorously contested during the trial, culminating in a trial within a trial. By a ruling delivered on 21 May 2023, this Court found that the confessions had been recorded in compliance with the Evidence Act and the Evidence (Out of Court Confessions) Rules, 2009, and consequently admitted them into evidence. That ruling settled only the question of admissibility. It did not determine the probative value or reliability of the confessions, which remains an issue for determination in this judgment.
48. It is trite that admissibility and evidential weight are distinct legal concepts. A confession may be lawfully admitted into evidence yet, upon consideration of the entire record, be found unreliable or insufficient to sustain a conviction. The Court must therefore evaluate the confessions alongside all the other evidence before deciding the extent to which they may safely be relied upon.
49. Section 25A of the Evidence Act provides that a confession is admissible only if made before a judge, magistrate or police officer of or above the rank prescribed by law and recorded in accordance with the prescribed procedure. The object of these safeguards is to ensure that confessions are voluntary, reliable and free from oppression, inducement, threat or promise.
50. Even where a confession has been admitted, the Court must exercise caution before founding a conviction upon it. In Tuwamoi v Uganda [1967] EA 84, the former Court of Appeal for East Africa held that a court may convict on a retracted confession if satisfied that it is true, but, as a matter of prudence, it should ordinarily look for independent evidence which materially corroborates the confession. The same principle was affirmed in Kinyori s/o Karuditu v R (1956) 23 EACA 480 and has consistently been applied by Kenyan courts.
51. The rationale for this rule is self-evident. Experience demonstrates that confessions may occasionally be motivated by fear, self-interest, misunderstanding, or the hope of obtaining favourable treatment. Consequently, where an accused retracts or repudiates a confession, the Court must scrutinise it with the greatest care and seek assurance from independent evidence that the confession is truthful in its material particulars.
(a) The Third Accused's Confession
52. The confession attributed to the third accused presents particular difficulty. It was initially made in the context of plea bargain negotiations with the Director of Public Prosecutions. After pleading guilty to a lesser offence and receiving a custodial sentence, the third accused dramatically altered his position. He informed the Court that he had expected not to be imprisoned and alleged that investigating officers had induced him to implicate the first accused by promising him favourable treatment. He thereafter withdrew the incriminating aspects of his testimony and declined to maintain the account contained in his confession.
53. The subsequent setting aside of the plea agreement does not, by itself, render the confession inadmissible. Nevertheless, it is a circumstance that bears directly upon the weight to be attached to the confession. The Court must therefore examine with
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