HIGH COURT CRIMINAL CASE NO. 56 OF 2008
REPUBLIC…………………………………………………….PROSECUTOR
-VERSUS-
JOHN KIPTOO SEREM……………………………………RESPONDENT
JUDGEMENT
1. The accused JOHN KIPTOO SEREM has been charged with the offence of MURDER CONTRARY TO SECTION 203 as read with SECTION 204 OF THE PENAL CODE . The particulars of the charge were that
“On the night of 1 st and 2 nd October 2006 at Catholic Church Kerugoya in Kirinyaga District within Central Province murdered PIUS NGARE MWANGI.”
2. The accused entered a plea of ‘ NOT GUILTY’ to the charge. This is one of the oldest pending cases at the Nyeri High Court and the matter has been handled by several different judges. The prosecution called a total of fifteen (15) witnesses.
3. The hearing commenced before Hon. Justice Sergon who heard the first ten (10) witnesses. Thereafter Hon. Justice Ngaah took over the case and heard five (5) witnesses . At the close of the prosecution case the accused was found to have a case to answer and was placed on his defence.
4. The defence hearing commenced before Hon. Justice Ngaah , but upon his transfer from Nyeri High Court the hearing was taken over by Hon. Lady Justice Muchemi who partly heard the defence case. I then took over the case in November 2023 and concluded the defence hearing.
THE EVIDENCE
5. PW1 DAVID NDUATI told the court that on the night of 1 st /2 nd October 2008 at about 2.00am he was at Huruma Bar in Kerugoya Town partaking with one Pius Ngure (the Deceased). At 2.00am the two left the bar heading for home. A vehicle came and parked near them. Two men emerged from the vehicle and began to assault the two saying that they (the occupants of the vehicle) were police officers.
6. PW1 and Deceased were arrested and were being led to the police station on foot. Near the Catholic Church the Deceased managed to disengage himself and fled towards the church compound. PW1 was taken by the other officer to Kerugoya Police Station and placed in cells. The next day PW1 learnt that his companion had been shot and killed.
7. PW2 DOMINIC KARIMI was the watchman on duty at the Kerugoya Catholic church. He told the court that on the night of 1 st /2 nd October 2008 he was on duty within the church compound. At about 2.00 am . PW2 heard someone push open the gate of the compound. PW2 then heard a gunshot and heard someone running away and upon rushing to the scene he found Pius who was a cook employed in the Parish lying on his belly. PW2 called the priest who came and they rushed the Deceased to Kerugoya District Hospital where he was pronounced dead.
8. PW3 Father Karoki Githinji was at the material time the acting Parish Priest. He told the court that on the night of 1 st /2 nd October 2008 he was asleep in bed. At around 2.00am the watchman PW2 woke him up and reported that ‘ Pius’ had been shot. PW3 rushed outside and put the victim in a vehicle. He rushed the Deceased to Kerugoya District Hospital where he was declared dead. Police later came to the scene.
9. PW4 PETERSON WACHIRA was a night guard at Huruma Bar . He
told the court that on the material night at about 11.00pm a police officer called ‘ Momanyi’ came to the bar with a friend. He later saw Momanyi and his colleague (Deceased) come outside and begun to slap some people. The police officers then led the men away on foot.
10. PW5 FRANCIS KIIBANYE GICHANGI told the court that he was a
watchman at ‘ Metro Bar’ which is opposite ‘ Huruma Bar’ . He states that on the night in question he heard a commotion from Huruma Bar . Upon coming out to check he found four (4) people going towards the direction of the Catholic Church. PW5 says that he saw the Accused holding Deceased but that the Deceased managed to disengage himself and fled. PW5 states that he saw Deceased push open the gate of the compound of the church and saw the Accused run after him. Shortly thereafter PW5 heard the sound of a gunfire. He later recorded his statement.
11. PW6 JANE RUGURU MEME was a cashier of Huruma Bar. She states
that on 1 st October 2008 at about 6:30pm a police officer called Momanyi came and asked for food which she served him. Later the accused came and purchased cigarettes and left the bar.
12. PW9 CID DAVID KIPKORI was the officer who examined the
exhibits whilst PW10 JOHNSTON MUNGERE was the Firearms
Examiner.
13. PW12 CORPORAL EVANS MOMANYI stated that on 1 st October
2008 at about 8.00pm he surrendered his firearm to the duty officer at Kerugoya Police Station . Pw12 then left to Huruma Bar where he ordered a meal and a bottle of soda. He chatted with a friend until 11.30pm when accused came and went to the counter to buy cigarettes.
14. Pw12 states that the accused then called him to accompany him to
check on the other officers who were on duty. PW12 followed the accused and they walked within the town until 1.00 am . As they headed back to the police station they spotted a group of men outside Metro Bar . When the men saw the officers they began to run away. The two officers gave chase. PW12 caught ‘ Nduati’ PW1 and accused chased the others. Shortly thereafter PW12 heard the sound of a gun being fired. PW12 stated that when the accused returned to the scene he enquired about the gunshot but accused replied that he did not have any firearm.
15. PW12 took PW1 to the police station and placed him in cells.
16. PW12 testified 2 nd October 2008 he was arrested as a suspect and
was detained at Kianyaga Police Station . Later upon conclusion
of police investigations into the matter he was absolved of blame and instead was told to record a statement.
17. PW13 SERGENT ABUYEKA ARIWO was one of the investigating
Officers in this case. PW15 Corporal ARAN KOROS produced the eight (8) Ceska Pistols and the spent cartridges as exhibits ( Pexb 3 to Pexh 11 )
18. Upon being put on his defence the accused opted to give a sworn
statement in which he denied any involvement in the death of the Deceased. The parties were then invited to file written submissions. The prosecution stated that they would rely on the evidence on record whilst the Accused relied on the submissions dated 6 th May 2025 . It now behoves this court to determine whether the prosecution have proved their case to the standard required in law.
ANALYSIS AND DETERMINATION
19. I have carefully considered the evidence adduced in this case as well
as the written submissions filed by both parties.
20. In any criminal case the prosecution is required to prove their case
beyond reasonable doubt. This is a high standard of proof and it reflects the fundamental principle that an accused person is presumed innocent until proven Guilty as stipulated in Article 50(2) (a) of the Constitution of Kenya 2010, which provides that
“(2) Every accused person has the right to a fair trial which includes the right -
(a) To be presumed innocent until the contrary is proved.
(b) ………………………..”
21. In the oft quoted case of WOOLMINGTON -VS- DPP 1935 AC 462
Viscount Sankey LC stated that:
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoners guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is reasonable doubt created by the evidence given either by the prosecution or the prisoner as to whether the offence was committed by him, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
22. In R -VS- LIFCHUS (1997) SCR the Supreme Court of Canada
stated as follows:-
“The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfies you beyond a reasonable doubt that the accused is guilty. The term beyond a reasonable doubt has been used for a very long time and is part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient…..”
23. Closer home in the case of CHARLES MUTURI MACHARIA ( suing
as the next friend of and on behalf of Christine Wangari Muturi) and Others -vs- THE STANDARD GROUP and 4 others SC Petition No. 13 of 2022 the Supreme Court of Kenya observed that:-
“The presumption of innocence is a fundamental principle behind the right to a fair trial. Apart from Article 50(2) (a) of the Constitution, International and regional instruments like the International covenant on Civil and Political rights (ICCPR), THE Universal Declaration of Human Rights (UDHR) and the African Charter on Human and Peoples Rights (ACHPR) also gurantee this right……..”
24. The accused has been charged with the offence of Murder which
offence is defined by Section 203 of the Penal Code as follows;-
“Any person who of Malice aforethought causes death of another person by an unlawful act or omissions is guilty
of Murder”
25. From the above definition derives the three ingredients of the offence
of Murder.
(i) Proof that the named victim is indeed Deceased and the cause of his/her death.
(ii) Proof that the accused caused the death of the Deceased by an unlawful act or omission.
(iii) Proof that said unlawful act or omission was committed with malice aforethought.
26. The prosecution is required to prove all three ingredients in order to
secure a conviction on a charge of Murder.
27. As pointed out by defence counsel in his written submissions the
information indicates that this offence was committed on the night of 1 st /2 nd October 2006 . However the postmortem report indicates that he deceased met his death on 1 st /2 nd October 2008 and not in the year 2006 . The Prosecution made no application to amend the information. As such the evidence on record does not tally with the date as given in the information. This is a defect which in my view could be fatal as it goes to the root of the case i.e the date when the offence was allegedly committed. However the same could have very well been due to a typographical error. As such I will not give this issue much consideration.
28. I will now proceed to analyse the evidence on record to determine
whether or not the prosecution have proved this charge of murder.
29. Regarding the death of the Victim Pius Ngare Mwangi , there exists
no doubt PW2 the watchman who was guarding the church compound and PW3 the Priest in-charge both testify that after hearing the gunshot they found the Deceased lying on his belly within the church compound bleeding from a wound. The two witnesses both of whom knew the Deceased well identified him as Pius Ngare a cook at the Kerugoya Parish .
30. PW7 SUSAN WANJIRU was the mother of the Deceased. She
testified that on 2 nd October 2008 she was informed by the Parish Priest that her son was dead. PW7 went to the mortuary where she identified the body to the Doctor who performed the autopsy.
31. Regarding the cause of death there is equally no controversy. PW11
DR STEPHEN WANGOMBE NDERITU was as doctor attached to the Karatina District Hospital. He told the court that on 3 rd October 2008 , he conducted a post-mortem examination on the body of the Deceased. PW7 noted gun-shot wounds on the chest. The left lung and, the third rib were lacerated and there was massive bleeding in the chest cavity. PW7 opined that the cause of death was ‘ severe chest injury due to a penetrating gunshot wound .” He filled and signed the post-mortem report as well as the Death certificate Serial No. 0778988 both of which were produced as exhibits Pexb 2 .
32. The evidence of PW7 on the cause of death was expert medical
evidence which was not controverted at all. I therefore find as a fact that the Deceased met his death due to a gunshot wound to the chest.
33. The critical question then is who shot and killed the Deceased? Have
the prosecution adduced evidence sufficient to prove that it was the Accused who shot the Deceased?
34. DW1 David Nduati told the court that he was in the company of the
Deceased at Huruma Bar on the night in question. At about 2.00am they left to go home. PW1 states that outside the bar they met two police officers (one of whom was Accused) who began to assault them. The police officers arrested the two men and began to march them on foot to the police station. The accused led the Deceased away whilst PW1 was held by the other officer whom he referred to as ‘ Momanyi’ .
35. PW1 states that as he was being led away the Deceased managed to
escape from the hands of accused and ran towards the church compound. The accused gave chase. PW1 was led to Kerugoya Police Station and placed in cells. The next day he learnt that his companion from the previous night was dead.
36. The evidence of PW1 is corroborated in some respects by PW12
Corporal Evans Momanyi , who told the court that on the night in question he was at Huruma Bar having a meal with a friend. At about 11.00pm the accused came into the bar and purchased cigarettes.
37. PW12 states that the accused then called him to accompany accused
for ‘ pit checking’ i.e checking on the police officers who were on duty in the area. According to PW12 as they walked to town they spotted a group of men near metro Bar when the men saw the officers they began to run away Accused instructed PW12 to arrest them. PW12 apprehended PW1 whilst accused chased the other men in the direction of the church compound.
38. PW12 says that he then heard a gunshot and accused came back to
the scene. PW12 stated that he questioned accused about the gunshot but accused replied that he was not armed.
39. PW4 who was the watchman on duty at Huruma Bar on the night in question states that he saw ‘ Momanyi’ (PW12) and accused arrest some people who were standing outside the bar. The officers then led suspects on foot towards the police station and did not return to the bar.
40. PW2 was the watchman who was on duty in the church compound. He states that at about 2.00am , he heard the gate being pushed open. He heard a gunshot and heard somebody running away. PW2 went to check and recognized the victim as ‘Pius Ngare’ an employee at the Parish. PW2 then woke up the Parish Priest and together they rushed the Deceased to hospital where he was pronounced dead.
41. The evidence of the prosecution witnesses is contradictory in certain respects, Whereas PW1 said the accused and his fellow police officer only accosted himself and Deceased. PW4 said there was a group of men standing outside the bar. PW12 stated that when the men saw the police they all scattered in different directions. PW1 made no mentioning of a group of men. From the evidence of these, witnesses who actually mentioned having seen the accused and the victim together on the night in question none saw the accused with a firearm and none saw the accused shoot at the Deceased. All that the witnesses were able to say is that they saw accused who was a police officer arrest the Deceased. The Deceased slipped out of the grasp of the accused and ran into the church compound then a gunshot was heard. It is telling that PW2 who was inside the church compound stated that he heard a gunshot then heard somebody running away. PW2 made no mention of having seen the accused and states that he does not know who ran out of the church compound, more specifically PW2 was not able to identify the accused as the person who ran out of the church compound after the shot was fired.
42. There being no direct evidence to prove that it was the accused who shot the Deceased the prosecution would be seeking to rely on ‘ circumstantial evidence’ being the fact that he accused was seen chasing the Deceased the latter having escaped after having been apprehended.
43. Blacks Law Dictionary Tenth Edition defines circumstantial evidence as follows:-
“Evidence based on inference and not on personal knowledge or observation.”
44. In R -VS- TAYLOR, WEAVER and DONOVAN [1928] Cr App 21,
Lord Heward CJ stated as follows:-
“It has been said that the evidence against the applicant is circumstantial. So it is but circumstantial evidence is very often the best evidence. It is evidence surrounding circumstances which by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”
45. In the case of AHAMAD ABOLFADHI MOHAMED & Another -vs-
REPUBLIC [2018] eKLR , the Court of Appeal stated that:-
“However it is a truism that the guilt of an accused person can be proved either by direct or circumstantial evidence, circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances of facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence.”
46. In SAWE -VS- REPUBLIC [2003] eKLR the Court of Appeal
reiterated that in order to justify a conviction 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 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 remains with the prosecution. It is burden which never shifts to the accused .” [Own emphasis]
47. The parameters under which an inference of guilt can be made from
Circumstantial evidence was set out in the case of ABANGA alias
ONYANGO -VS- REPUBLIC CR APP NO. 32 of 1990 as follows:-
“It is well settled that when a case rests entirely on
circumstantial evidence, such evidence must satisfy
three tests
(i) the circumstances from which an inference of guilty is sought to be drawn must be cogently and firmly established.
(ii) those circumstances should be a definite tendency unerringly pointing towards the guilt of the accused.
(iii) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human possibility the crime was so committed by the accused and no one else.”
48. Firstly as stated earlier none of the witnesses saw the accused with a
firearm. Indeed PW12 told the court that when he questioned accused
about the gunshot, the accused replied that he was not armed.
49. There is evidence that a spent cartridge was recovered at the scene.
PW8 PC DORCAS ONGAGI , told the court that she and Chief
Inspector Kibet who was the OCS visited the scene at Kerugoya
Catholic Church . They recovered a spent cartridge which was
produced in court as an exhibit Pexb 11 . Logic would dictate that the
spent cartridge found at the scene must have come from the firearm
that shot and killed the Deceased.
50. PW9 Chief Inspector DAVID KIPKORIR CHERUIYOT told the court
that he collected eight (8) Ceska Pistols from the armoury at Kerugoya
Police Station . The eight (8) pistols bore the following Serial
Numbers;-
G 8244
F 6022
F 4806
G 3270
F 4923
G 7776
F 6115
G 5932
The witness produced the eight pistols as exhibits in this case Pexb 2
to Pexh 9 respectively.
51. PW10 Johnstone Mungere was the firearms examiner. He told the
court that he received from the investigating officer eight (8) pistols,
fifty (50) rounds of ammunition and one spent cartridge marked ‘ A’ .
PW10 was asked to examine and compare the exhibits with a view to
establishing which pistol fired the spent cartridge marked ‘ A ’.
52. PW10 told the court that he conducted his examination and prepared
his report dated 9 th October 2008 which report was produced as an
exhibit Pexb 12 . From his examination of all the exhibits which were
presented to him PW10 concluded that the spent cartridge ‘ A’ was
fired from the Ceska Pistol Serial Number G8244 .
53. From the above opinion of the expert witness which was not challenged
it would not be wrong to surmise that the person who was issued with
or who had in his possession this Pistol No G 8244 on the night of in
question was the person who shot and killed the Deceased. The
prosecution therefore needed to prove a definitive link between the
accused and the ceska pistol serial No. G8244 . This is where the
prosecution case begins to unravel.
54. PW13 SERGENT Abuyeka Ariwo who was the investigating officer
told the court that it was he who took the eight (8) pistols to the firearms
examiner. He states that amongst the pistols which he took for analysis
was the Ceska Serial No. G 8244 . Under cross-examination PW13
admitted that he forwarded the exhibits to the firearms examiner by
way of a typed memo dated 6 th October 2008 which was prepared
and signed by himself However that memo form did not include the
pistol Serial No. G 8244 . Instead typed memo included a pistol Serial
No. G6244 . That entry was later cancelled and Serial No. 8244
inserted in its place in writing. PW13 states that he later abandoned
the typed memo and forwarded the exhibits using a handwritten memo
form dated 8 th October 2008 . Therefore the original typed memo form
which was signed by PW13 did not include a pistol Serial No. 8244 .
It would appear that police used two memo forms to forward the pistols
to the firearms examiner – why was this?
55. PW13 goes on to state that
“The handwritten exhibits memo is in respect of
the ammunitions and not the pistols. I do not have
the memo to [for] the Ceska pistols……………”
56. If PW13 did not have the memo form for the pistols then how were
they forwarded to the examiner. There is clearly some confusion on
what memo was used to forward the pistols. Why was the Serial
number 6244 cancelled and a pistol bearing Serial No. 8244
inserted in its place. If a mistake had been made in typing out the
memo forms nothing would have been easier than to type out in
another memo form. It would appear that there was an attempt to
alter and/or manipulate the evidence i.e the memo form, to include the
pistol Serial No. 8244 .
57. Although PW13 denies the suggestion that he was part of a scheme
to exonerate Momanyi ( PW12 ) from any blame relating to the death of the Deceased it is not lost on this court that PW12 did state that he was armed on 1 st October 2008 , and that he surrendered his firearms Serial No. F4923 before he went to Huruma Bar to take his dinner. It is surprising that PW12 did not surrender his firearm to the armoury as is the laid down procedure. Instead he claims that he returned the firearm to one Corporal Jones Kimatu the duty officer. This Corporal Kimatu was not called as a witness to confirm that PW13 did indeed surrender a firearm to him. More importantly PW13 did not produce the OB extract to confirm the Serial Number of the firearm which PW12 claims to have surrendered on that date.
58. The failure to call as a witness Corporal Kimatu who allegedly
received the firearm from PW12 cannot have been inadvertent. It
was not suggested that there was any difficulty in procuring the
attendance of this person who was a serving police officer. In my view
the failure/omission to call this witness was deliberate as he may have
contradicted the testimony of PW12 regarding whether PW12 returned any firearms and if so the Serial number of the firearm so returned. As such no proof exists to show that PW12 had been issued with a firearm [pistol] Serial No. F4923 , or that he had surrendered the same back to the police station.
59. In his defence the accused categorically denied having shot the
Deceased. He states that on the night in question he was at Kutus
Town attending a party to celebrate the promotion of a fellow police
officer. The accused concedes that he did go to Huruma Bar that
night. He states that he went there, only to purchase cigarettes.
This corresponds with the testimony of PW6 who both state that
when accused went to the bar he went to the counter and purchased
cigarettes then left.
60. The witnesses state that accused came to Huruma Bar driving a vehicle
which was parked outside as he went into the bar to buy cigarettes. I
find it curious that having arrived driving a vehicle the accused then
allegedly proceeded to arrest people outside the bar and march them
on foot towards the police station. Why did he not place the suspect
in the car he had arrived in? What happened to the vehicle the accused
came in? None of the witnesses makes any mention of what happened
to the accused’s vehicle which was at the scene.
61. The accused totally denied that he had in his possession or that he had
been issued with a pistol Serial No. 8244 on the material date. The accused did request that certain crucial documents from Kerugoya Police Station be produced in support of his defence. These were the Arms Inventory Register for 2008 and the Arms Movement Register for the year 2008 which would indicate which firearms had been issued to both accused and Momanyi (PW12).
62. Dw2 Chief Inspector Kili who was the OCS Kerugoya Police Station
did appear in court as a witness. He produced as an exhibit the Arms
Inventory Dexb. DW1 stated that arms movement register indicated which pistols had been issued and received at the police station. He states that the inventory register did not include a Ceska Pistol Serial No. 8244 .
63. In his evidence DW1 states
“In the exhibit memo produced in court by Abuyeko Ariwo,
item No. 15 is a number typed and cancelled G6244. It is
replaced with a handwritten Serial No. 8244 AA. In the
inventory register I have produced there is no pistol No.
8244 AA” [Own emphasis].
64. This is a clear indication that this pistol No. 8244 could not have been
issued to accused because it was not one of the pistols held at Kerugoya
Police Station.
65. I have myself carefully perused the Firearms Inventory Register which
was produced in Court and is stamped 22 nd January 2022 . Item No.
15 references a Ceska Pistol Serial No. G 8244 allegedly received in
the station on 25 th June 2003 . The last Column indicates the date of
issue as 25 th June 2003 .
66. However even to the naked eye it is quite obvious that this latter date
has been interfered with by overwriting. This alteration was not
explained by the witness and is not countersigned. Who interfered with
this official record and why?
67. Further the document bears two official stamps. One from Kirinyaga
Police station dated 21 st January 2010 and the other from Kerugoya
Police station dated 27 th January 2022 . It is not clear which of the
two police stations issued the document.
68. PW9 who was at the material time the DCIO Kerugoya claimed that the
accused who was incharge of the armoury at Kerugoya Police station
had in his possession a firearm (pistol) that was not recorded in the arms
movement register. Firstly no evidence was tendered to show that the
accused was the officer in charge of the armoury on the material date.
Secondly no arms movement register was produced to enable court to
confirm whether or not the pistol in question had been recorded
therein. Thirdly there was no evidence that accused had sole access to
the armoury. Therefore these claims by Pw9 remain mere allegations
with no evidence to support said allegations.
69. More importantly DW2 was unable to produce the arms movement
register which the witnesses told the court he would not trace. This
arms movement register was a critical document as it would have
shown which officer had been issued with the pistol Serial No. 8244 if
at all and would have conclusively linked the accused to this pistol Serial
No . 8244 .
70. DW2 told the court that he did not know what happened to the Arms
Movement register for October 2008 . This the court finds difficult to
believe. An arms movement register is a critical document, one which
the police are required to store securely as a means of keeping track of the firearms and ammunitions held and/or issued out by that particular police the Station. To casually tell the court that such a document is missing beggars belief. It is quite safe to conclude that the police were reluctant and/or declined to avail this critical document to court as it may have exonerated the accused and possibly pointed the finger at some other officer.
71. It is my opinion that the actions of the police in withholding this register
is clearly part of a cover up. In any event the evidence on record does
not show any connection between the accused and the pistol from which
the fatal shot was fired. This gaping omission breaks the chain of
circumstantial evidence which the prosecution seeks to rely on to link the
accused to the murder weapon. Grave doubt remains firstly whether this
pistol s
[...truncated]
REPUBLIC…………………………………………………….PROSECUTOR
-VERSUS-
JOHN KIPTOO SEREM……………………………………RESPONDENT
JUDGEMENT
1. The accused JOHN KIPTOO SEREM has been charged with the offence of MURDER CONTRARY TO SECTION 203 as read with SECTION 204 OF THE PENAL CODE . The particulars of the charge were that
“On the night of 1 st and 2 nd October 2006 at Catholic Church Kerugoya in Kirinyaga District within Central Province murdered PIUS NGARE MWANGI.”
2. The accused entered a plea of ‘ NOT GUILTY’ to the charge. This is one of the oldest pending cases at the Nyeri High Court and the matter has been handled by several different judges. The prosecution called a total of fifteen (15) witnesses.
3. The hearing commenced before Hon. Justice Sergon who heard the first ten (10) witnesses. Thereafter Hon. Justice Ngaah took over the case and heard five (5) witnesses . At the close of the prosecution case the accused was found to have a case to answer and was placed on his defence.
4. The defence hearing commenced before Hon. Justice Ngaah , but upon his transfer from Nyeri High Court the hearing was taken over by Hon. Lady Justice Muchemi who partly heard the defence case. I then took over the case in November 2023 and concluded the defence hearing.
THE EVIDENCE
5. PW1 DAVID NDUATI told the court that on the night of 1 st /2 nd October 2008 at about 2.00am he was at Huruma Bar in Kerugoya Town partaking with one Pius Ngure (the Deceased). At 2.00am the two left the bar heading for home. A vehicle came and parked near them. Two men emerged from the vehicle and began to assault the two saying that they (the occupants of the vehicle) were police officers.
6. PW1 and Deceased were arrested and were being led to the police station on foot. Near the Catholic Church the Deceased managed to disengage himself and fled towards the church compound. PW1 was taken by the other officer to Kerugoya Police Station and placed in cells. The next day PW1 learnt that his companion had been shot and killed.
7. PW2 DOMINIC KARIMI was the watchman on duty at the Kerugoya Catholic church. He told the court that on the night of 1 st /2 nd October 2008 he was on duty within the church compound. At about 2.00 am . PW2 heard someone push open the gate of the compound. PW2 then heard a gunshot and heard someone running away and upon rushing to the scene he found Pius who was a cook employed in the Parish lying on his belly. PW2 called the priest who came and they rushed the Deceased to Kerugoya District Hospital where he was pronounced dead.
8. PW3 Father Karoki Githinji was at the material time the acting Parish Priest. He told the court that on the night of 1 st /2 nd October 2008 he was asleep in bed. At around 2.00am the watchman PW2 woke him up and reported that ‘ Pius’ had been shot. PW3 rushed outside and put the victim in a vehicle. He rushed the Deceased to Kerugoya District Hospital where he was declared dead. Police later came to the scene.
9. PW4 PETERSON WACHIRA was a night guard at Huruma Bar . He
told the court that on the material night at about 11.00pm a police officer called ‘ Momanyi’ came to the bar with a friend. He later saw Momanyi and his colleague (Deceased) come outside and begun to slap some people. The police officers then led the men away on foot.
10. PW5 FRANCIS KIIBANYE GICHANGI told the court that he was a
watchman at ‘ Metro Bar’ which is opposite ‘ Huruma Bar’ . He states that on the night in question he heard a commotion from Huruma Bar . Upon coming out to check he found four (4) people going towards the direction of the Catholic Church. PW5 says that he saw the Accused holding Deceased but that the Deceased managed to disengage himself and fled. PW5 states that he saw Deceased push open the gate of the compound of the church and saw the Accused run after him. Shortly thereafter PW5 heard the sound of a gunfire. He later recorded his statement.
11. PW6 JANE RUGURU MEME was a cashier of Huruma Bar. She states
that on 1 st October 2008 at about 6:30pm a police officer called Momanyi came and asked for food which she served him. Later the accused came and purchased cigarettes and left the bar.
12. PW9 CID DAVID KIPKORI was the officer who examined the
exhibits whilst PW10 JOHNSTON MUNGERE was the Firearms
Examiner.
13. PW12 CORPORAL EVANS MOMANYI stated that on 1 st October
2008 at about 8.00pm he surrendered his firearm to the duty officer at Kerugoya Police Station . Pw12 then left to Huruma Bar where he ordered a meal and a bottle of soda. He chatted with a friend until 11.30pm when accused came and went to the counter to buy cigarettes.
14. Pw12 states that the accused then called him to accompany him to
check on the other officers who were on duty. PW12 followed the accused and they walked within the town until 1.00 am . As they headed back to the police station they spotted a group of men outside Metro Bar . When the men saw the officers they began to run away. The two officers gave chase. PW12 caught ‘ Nduati’ PW1 and accused chased the others. Shortly thereafter PW12 heard the sound of a gun being fired. PW12 stated that when the accused returned to the scene he enquired about the gunshot but accused replied that he did not have any firearm.
15. PW12 took PW1 to the police station and placed him in cells.
16. PW12 testified 2 nd October 2008 he was arrested as a suspect and
was detained at Kianyaga Police Station . Later upon conclusion
of police investigations into the matter he was absolved of blame and instead was told to record a statement.
17. PW13 SERGENT ABUYEKA ARIWO was one of the investigating
Officers in this case. PW15 Corporal ARAN KOROS produced the eight (8) Ceska Pistols and the spent cartridges as exhibits ( Pexb 3 to Pexh 11 )
18. Upon being put on his defence the accused opted to give a sworn
statement in which he denied any involvement in the death of the Deceased. The parties were then invited to file written submissions. The prosecution stated that they would rely on the evidence on record whilst the Accused relied on the submissions dated 6 th May 2025 . It now behoves this court to determine whether the prosecution have proved their case to the standard required in law.
ANALYSIS AND DETERMINATION
19. I have carefully considered the evidence adduced in this case as well
as the written submissions filed by both parties.
20. In any criminal case the prosecution is required to prove their case
beyond reasonable doubt. This is a high standard of proof and it reflects the fundamental principle that an accused person is presumed innocent until proven Guilty as stipulated in Article 50(2) (a) of the Constitution of Kenya 2010, which provides that
“(2) Every accused person has the right to a fair trial which includes the right -
(a) To be presumed innocent until the contrary is proved.
(b) ………………………..”
21. In the oft quoted case of WOOLMINGTON -VS- DPP 1935 AC 462
Viscount Sankey LC stated that:
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoners guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is reasonable doubt created by the evidence given either by the prosecution or the prisoner as to whether the offence was committed by him, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
22. In R -VS- LIFCHUS (1997) SCR the Supreme Court of Canada
stated as follows:-
“The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfies you beyond a reasonable doubt that the accused is guilty. The term beyond a reasonable doubt has been used for a very long time and is part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient…..”
23. Closer home in the case of CHARLES MUTURI MACHARIA ( suing
as the next friend of and on behalf of Christine Wangari Muturi) and Others -vs- THE STANDARD GROUP and 4 others SC Petition No. 13 of 2022 the Supreme Court of Kenya observed that:-
“The presumption of innocence is a fundamental principle behind the right to a fair trial. Apart from Article 50(2) (a) of the Constitution, International and regional instruments like the International covenant on Civil and Political rights (ICCPR), THE Universal Declaration of Human Rights (UDHR) and the African Charter on Human and Peoples Rights (ACHPR) also gurantee this right……..”
24. The accused has been charged with the offence of Murder which
offence is defined by Section 203 of the Penal Code as follows;-
“Any person who of Malice aforethought causes death of another person by an unlawful act or omissions is guilty
of Murder”
25. From the above definition derives the three ingredients of the offence
of Murder.
(i) Proof that the named victim is indeed Deceased and the cause of his/her death.
(ii) Proof that the accused caused the death of the Deceased by an unlawful act or omission.
(iii) Proof that said unlawful act or omission was committed with malice aforethought.
26. The prosecution is required to prove all three ingredients in order to
secure a conviction on a charge of Murder.
27. As pointed out by defence counsel in his written submissions the
information indicates that this offence was committed on the night of 1 st /2 nd October 2006 . However the postmortem report indicates that he deceased met his death on 1 st /2 nd October 2008 and not in the year 2006 . The Prosecution made no application to amend the information. As such the evidence on record does not tally with the date as given in the information. This is a defect which in my view could be fatal as it goes to the root of the case i.e the date when the offence was allegedly committed. However the same could have very well been due to a typographical error. As such I will not give this issue much consideration.
28. I will now proceed to analyse the evidence on record to determine
whether or not the prosecution have proved this charge of murder.
29. Regarding the death of the Victim Pius Ngare Mwangi , there exists
no doubt PW2 the watchman who was guarding the church compound and PW3 the Priest in-charge both testify that after hearing the gunshot they found the Deceased lying on his belly within the church compound bleeding from a wound. The two witnesses both of whom knew the Deceased well identified him as Pius Ngare a cook at the Kerugoya Parish .
30. PW7 SUSAN WANJIRU was the mother of the Deceased. She
testified that on 2 nd October 2008 she was informed by the Parish Priest that her son was dead. PW7 went to the mortuary where she identified the body to the Doctor who performed the autopsy.
31. Regarding the cause of death there is equally no controversy. PW11
DR STEPHEN WANGOMBE NDERITU was as doctor attached to the Karatina District Hospital. He told the court that on 3 rd October 2008 , he conducted a post-mortem examination on the body of the Deceased. PW7 noted gun-shot wounds on the chest. The left lung and, the third rib were lacerated and there was massive bleeding in the chest cavity. PW7 opined that the cause of death was ‘ severe chest injury due to a penetrating gunshot wound .” He filled and signed the post-mortem report as well as the Death certificate Serial No. 0778988 both of which were produced as exhibits Pexb 2 .
32. The evidence of PW7 on the cause of death was expert medical
evidence which was not controverted at all. I therefore find as a fact that the Deceased met his death due to a gunshot wound to the chest.
33. The critical question then is who shot and killed the Deceased? Have
the prosecution adduced evidence sufficient to prove that it was the Accused who shot the Deceased?
34. DW1 David Nduati told the court that he was in the company of the
Deceased at Huruma Bar on the night in question. At about 2.00am they left to go home. PW1 states that outside the bar they met two police officers (one of whom was Accused) who began to assault them. The police officers arrested the two men and began to march them on foot to the police station. The accused led the Deceased away whilst PW1 was held by the other officer whom he referred to as ‘ Momanyi’ .
35. PW1 states that as he was being led away the Deceased managed to
escape from the hands of accused and ran towards the church compound. The accused gave chase. PW1 was led to Kerugoya Police Station and placed in cells. The next day he learnt that his companion from the previous night was dead.
36. The evidence of PW1 is corroborated in some respects by PW12
Corporal Evans Momanyi , who told the court that on the night in question he was at Huruma Bar having a meal with a friend. At about 11.00pm the accused came into the bar and purchased cigarettes.
37. PW12 states that the accused then called him to accompany accused
for ‘ pit checking’ i.e checking on the police officers who were on duty in the area. According to PW12 as they walked to town they spotted a group of men near metro Bar when the men saw the officers they began to run away Accused instructed PW12 to arrest them. PW12 apprehended PW1 whilst accused chased the other men in the direction of the church compound.
38. PW12 says that he then heard a gunshot and accused came back to
the scene. PW12 stated that he questioned accused about the gunshot but accused replied that he was not armed.
39. PW4 who was the watchman on duty at Huruma Bar on the night in question states that he saw ‘ Momanyi’ (PW12) and accused arrest some people who were standing outside the bar. The officers then led suspects on foot towards the police station and did not return to the bar.
40. PW2 was the watchman who was on duty in the church compound. He states that at about 2.00am , he heard the gate being pushed open. He heard a gunshot and heard somebody running away. PW2 went to check and recognized the victim as ‘Pius Ngare’ an employee at the Parish. PW2 then woke up the Parish Priest and together they rushed the Deceased to hospital where he was pronounced dead.
41. The evidence of the prosecution witnesses is contradictory in certain respects, Whereas PW1 said the accused and his fellow police officer only accosted himself and Deceased. PW4 said there was a group of men standing outside the bar. PW12 stated that when the men saw the police they all scattered in different directions. PW1 made no mentioning of a group of men. From the evidence of these, witnesses who actually mentioned having seen the accused and the victim together on the night in question none saw the accused with a firearm and none saw the accused shoot at the Deceased. All that the witnesses were able to say is that they saw accused who was a police officer arrest the Deceased. The Deceased slipped out of the grasp of the accused and ran into the church compound then a gunshot was heard. It is telling that PW2 who was inside the church compound stated that he heard a gunshot then heard somebody running away. PW2 made no mention of having seen the accused and states that he does not know who ran out of the church compound, more specifically PW2 was not able to identify the accused as the person who ran out of the church compound after the shot was fired.
42. There being no direct evidence to prove that it was the accused who shot the Deceased the prosecution would be seeking to rely on ‘ circumstantial evidence’ being the fact that he accused was seen chasing the Deceased the latter having escaped after having been apprehended.
43. Blacks Law Dictionary Tenth Edition defines circumstantial evidence as follows:-
“Evidence based on inference and not on personal knowledge or observation.”
44. In R -VS- TAYLOR, WEAVER and DONOVAN [1928] Cr App 21,
Lord Heward CJ stated as follows:-
“It has been said that the evidence against the applicant is circumstantial. So it is but circumstantial evidence is very often the best evidence. It is evidence surrounding circumstances which by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”
45. In the case of AHAMAD ABOLFADHI MOHAMED & Another -vs-
REPUBLIC [2018] eKLR , the Court of Appeal stated that:-
“However it is a truism that the guilt of an accused person can be proved either by direct or circumstantial evidence, circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances of facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence.”
46. In SAWE -VS- REPUBLIC [2003] eKLR the Court of Appeal
reiterated that in order to justify a conviction 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 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 remains with the prosecution. It is burden which never shifts to the accused .” [Own emphasis]
47. The parameters under which an inference of guilt can be made from
Circumstantial evidence was set out in the case of ABANGA alias
ONYANGO -VS- REPUBLIC CR APP NO. 32 of 1990 as follows:-
“It is well settled that when a case rests entirely on
circumstantial evidence, such evidence must satisfy
three tests
(i) the circumstances from which an inference of guilty is sought to be drawn must be cogently and firmly established.
(ii) those circumstances should be a definite tendency unerringly pointing towards the guilt of the accused.
(iii) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human possibility the crime was so committed by the accused and no one else.”
48. Firstly as stated earlier none of the witnesses saw the accused with a
firearm. Indeed PW12 told the court that when he questioned accused
about the gunshot, the accused replied that he was not armed.
49. There is evidence that a spent cartridge was recovered at the scene.
PW8 PC DORCAS ONGAGI , told the court that she and Chief
Inspector Kibet who was the OCS visited the scene at Kerugoya
Catholic Church . They recovered a spent cartridge which was
produced in court as an exhibit Pexb 11 . Logic would dictate that the
spent cartridge found at the scene must have come from the firearm
that shot and killed the Deceased.
50. PW9 Chief Inspector DAVID KIPKORIR CHERUIYOT told the court
that he collected eight (8) Ceska Pistols from the armoury at Kerugoya
Police Station . The eight (8) pistols bore the following Serial
Numbers;-
G 8244
F 6022
F 4806
G 3270
F 4923
G 7776
F 6115
G 5932
The witness produced the eight pistols as exhibits in this case Pexb 2
to Pexh 9 respectively.
51. PW10 Johnstone Mungere was the firearms examiner. He told the
court that he received from the investigating officer eight (8) pistols,
fifty (50) rounds of ammunition and one spent cartridge marked ‘ A’ .
PW10 was asked to examine and compare the exhibits with a view to
establishing which pistol fired the spent cartridge marked ‘ A ’.
52. PW10 told the court that he conducted his examination and prepared
his report dated 9 th October 2008 which report was produced as an
exhibit Pexb 12 . From his examination of all the exhibits which were
presented to him PW10 concluded that the spent cartridge ‘ A’ was
fired from the Ceska Pistol Serial Number G8244 .
53. From the above opinion of the expert witness which was not challenged
it would not be wrong to surmise that the person who was issued with
or who had in his possession this Pistol No G 8244 on the night of in
question was the person who shot and killed the Deceased. The
prosecution therefore needed to prove a definitive link between the
accused and the ceska pistol serial No. G8244 . This is where the
prosecution case begins to unravel.
54. PW13 SERGENT Abuyeka Ariwo who was the investigating officer
told the court that it was he who took the eight (8) pistols to the firearms
examiner. He states that amongst the pistols which he took for analysis
was the Ceska Serial No. G 8244 . Under cross-examination PW13
admitted that he forwarded the exhibits to the firearms examiner by
way of a typed memo dated 6 th October 2008 which was prepared
and signed by himself However that memo form did not include the
pistol Serial No. G 8244 . Instead typed memo included a pistol Serial
No. G6244 . That entry was later cancelled and Serial No. 8244
inserted in its place in writing. PW13 states that he later abandoned
the typed memo and forwarded the exhibits using a handwritten memo
form dated 8 th October 2008 . Therefore the original typed memo form
which was signed by PW13 did not include a pistol Serial No. 8244 .
It would appear that police used two memo forms to forward the pistols
to the firearms examiner – why was this?
55. PW13 goes on to state that
“The handwritten exhibits memo is in respect of
the ammunitions and not the pistols. I do not have
the memo to [for] the Ceska pistols……………”
56. If PW13 did not have the memo form for the pistols then how were
they forwarded to the examiner. There is clearly some confusion on
what memo was used to forward the pistols. Why was the Serial
number 6244 cancelled and a pistol bearing Serial No. 8244
inserted in its place. If a mistake had been made in typing out the
memo forms nothing would have been easier than to type out in
another memo form. It would appear that there was an attempt to
alter and/or manipulate the evidence i.e the memo form, to include the
pistol Serial No. 8244 .
57. Although PW13 denies the suggestion that he was part of a scheme
to exonerate Momanyi ( PW12 ) from any blame relating to the death of the Deceased it is not lost on this court that PW12 did state that he was armed on 1 st October 2008 , and that he surrendered his firearms Serial No. F4923 before he went to Huruma Bar to take his dinner. It is surprising that PW12 did not surrender his firearm to the armoury as is the laid down procedure. Instead he claims that he returned the firearm to one Corporal Jones Kimatu the duty officer. This Corporal Kimatu was not called as a witness to confirm that PW13 did indeed surrender a firearm to him. More importantly PW13 did not produce the OB extract to confirm the Serial Number of the firearm which PW12 claims to have surrendered on that date.
58. The failure to call as a witness Corporal Kimatu who allegedly
received the firearm from PW12 cannot have been inadvertent. It
was not suggested that there was any difficulty in procuring the
attendance of this person who was a serving police officer. In my view
the failure/omission to call this witness was deliberate as he may have
contradicted the testimony of PW12 regarding whether PW12 returned any firearms and if so the Serial number of the firearm so returned. As such no proof exists to show that PW12 had been issued with a firearm [pistol] Serial No. F4923 , or that he had surrendered the same back to the police station.
59. In his defence the accused categorically denied having shot the
Deceased. He states that on the night in question he was at Kutus
Town attending a party to celebrate the promotion of a fellow police
officer. The accused concedes that he did go to Huruma Bar that
night. He states that he went there, only to purchase cigarettes.
This corresponds with the testimony of PW6 who both state that
when accused went to the bar he went to the counter and purchased
cigarettes then left.
60. The witnesses state that accused came to Huruma Bar driving a vehicle
which was parked outside as he went into the bar to buy cigarettes. I
find it curious that having arrived driving a vehicle the accused then
allegedly proceeded to arrest people outside the bar and march them
on foot towards the police station. Why did he not place the suspect
in the car he had arrived in? What happened to the vehicle the accused
came in? None of the witnesses makes any mention of what happened
to the accused’s vehicle which was at the scene.
61. The accused totally denied that he had in his possession or that he had
been issued with a pistol Serial No. 8244 on the material date. The accused did request that certain crucial documents from Kerugoya Police Station be produced in support of his defence. These were the Arms Inventory Register for 2008 and the Arms Movement Register for the year 2008 which would indicate which firearms had been issued to both accused and Momanyi (PW12).
62. Dw2 Chief Inspector Kili who was the OCS Kerugoya Police Station
did appear in court as a witness. He produced as an exhibit the Arms
Inventory Dexb. DW1 stated that arms movement register indicated which pistols had been issued and received at the police station. He states that the inventory register did not include a Ceska Pistol Serial No. 8244 .
63. In his evidence DW1 states
“In the exhibit memo produced in court by Abuyeko Ariwo,
item No. 15 is a number typed and cancelled G6244. It is
replaced with a handwritten Serial No. 8244 AA. In the
inventory register I have produced there is no pistol No.
8244 AA” [Own emphasis].
64. This is a clear indication that this pistol No. 8244 could not have been
issued to accused because it was not one of the pistols held at Kerugoya
Police Station.
65. I have myself carefully perused the Firearms Inventory Register which
was produced in Court and is stamped 22 nd January 2022 . Item No.
15 references a Ceska Pistol Serial No. G 8244 allegedly received in
the station on 25 th June 2003 . The last Column indicates the date of
issue as 25 th June 2003 .
66. However even to the naked eye it is quite obvious that this latter date
has been interfered with by overwriting. This alteration was not
explained by the witness and is not countersigned. Who interfered with
this official record and why?
67. Further the document bears two official stamps. One from Kirinyaga
Police station dated 21 st January 2010 and the other from Kerugoya
Police station dated 27 th January 2022 . It is not clear which of the
two police stations issued the document.
68. PW9 who was at the material time the DCIO Kerugoya claimed that the
accused who was incharge of the armoury at Kerugoya Police station
had in his possession a firearm (pistol) that was not recorded in the arms
movement register. Firstly no evidence was tendered to show that the
accused was the officer in charge of the armoury on the material date.
Secondly no arms movement register was produced to enable court to
confirm whether or not the pistol in question had been recorded
therein. Thirdly there was no evidence that accused had sole access to
the armoury. Therefore these claims by Pw9 remain mere allegations
with no evidence to support said allegations.
69. More importantly DW2 was unable to produce the arms movement
register which the witnesses told the court he would not trace. This
arms movement register was a critical document as it would have
shown which officer had been issued with the pistol Serial No. 8244 if
at all and would have conclusively linked the accused to this pistol Serial
No . 8244 .
70. DW2 told the court that he did not know what happened to the Arms
Movement register for October 2008 . This the court finds difficult to
believe. An arms movement register is a critical document, one which
the police are required to store securely as a means of keeping track of the firearms and ammunitions held and/or issued out by that particular police the Station. To casually tell the court that such a document is missing beggars belief. It is quite safe to conclude that the police were reluctant and/or declined to avail this critical document to court as it may have exonerated the accused and possibly pointed the finger at some other officer.
71. It is my opinion that the actions of the police in withholding this register
is clearly part of a cover up. In any event the evidence on record does
not show any connection between the accused and the pistol from which
the fatal shot was fired. This gaping omission breaks the chain of
circumstantial evidence which the prosecution seeks to rely on to link the
accused to the murder weapon. Grave doubt remains firstly whether this
pistol s
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