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The Charge
1. The three accused persons were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 Laws of Kenya. The particulars are that on the 21st day of February 2024 at Majengo area near Pwani Oil Ltd in Mtwapa Location within Kilifi County, jointly with others not before court, they murdered Kenga Kazungu Kombe.
2. They pleaded not guilty and the State called several witnesses, namely:
• PW1: Dr. Gideon Odiambo Onyango
• PW2: Lucy Kenga
• PW3: C.I. John Murima
• PW4: David Maihu
• PW5: PC John Murithu Nyaga
The 3rd accused died in custody while this ruling was pending. This judgment therefore relates only to Accused 1 and Accused 2.
The Law
3. Article 26 of the Constitution of Kenya guarantees the right to life and provides that no person shall be deprived of life intentionally except as authorized by law.
4. The ingredients of the offence of murder were articulated in Republic v Andrew Omwenga [2009] eKLR, namely:
i. Proof of the fact and cause of death;
ii. That the accused’s act or omission caused the death (actus reus);
iii. That the act was accompanied by malice aforethought (mens rea).
Analysis
5. The fact of death was established. The post mortem report shows that the cause of death was multiple deep cut wounds to the head, secondary to force trauma in an assault. It was an extremely brutal and gory murder, where the deceased’s eyes were gored out and he sustained multiple deep and degloving cuts all over the head and neck region.
6. The death was clearly unlawfully caused owing to the nature and extent of the injuries.
7. The challenge in this case lies in linking the remaining two accused persons to the offence. There was no eyewitness, no murder weapon recovered, and no DNA or other forensic evidence tying them to the scene or to the deceased.
8. The only direct evidence touching on motive or threats came from PW2, Lucy Kenga, who stated that one Silaha sent her a threatening message on 22/7/2022 which read:
“Una raha sawa. Ala ba mhoho akifa, bayaye anafa kala umimanya.”
This loosely translates to: “You may be happy now. But if your elder father dies, your father will die. Keep that in mind.”
9. PW2 testified that she discussed the message with her father and they reported it to the police. She added that at the time, her Baba Mkubwa (paternal uncle) was unwell; that he later died; and shortly thereafter the deceased—her father—was killed. She therefore connected the message to the subsequent killing.
10. This Silaha was never arrested. PW2 confirmed she has not seen him since the incident. The prosecution theory was that Silaha hired the accused persons to kill the deceased.
11. It was alleged that Silaha received money from a relative in Sweden for this purpose. Unfortunately, no tangible evidence was produced to support this theory. There were no M-Pesa records, no bank transfers, and no communication linking the accused persons to Silaha.
12. The case against the accused persons therefore rested solely on alleged confession statements attributed to Accused 1 and Accused 2.
13. These confessions were recorded by PW3, CIP John Murimi. He was, however, stood down when defence counsel, Mr. Atancha, objected to their production.
14. The defence supplied medical documents to the prosecution, and upon reviewing them, Mr. Ngiri for the State conceded that the confessions were not procured procedurally and did not meet the legal threshold. Accordingly, there was no need to conduct a trial-within-a-trial.
15. With that concession, the confession evidence collapsed. The second civilian witness did not attend court, and the remaining witnesses merely covered the scene of crime and the investigations.
16. In light of the above, even if the accused persons chose to remain silent upon being placed on their defence, no conviction could result.
17. I therefore find that the evidence on record does not establish a prima facie case against Accused 1 or Accused 2. They cannot be called upon to make their defence.
Disposition
18. The 1st and 2nd accused persons are hereby acquitted under Section 306(1) of the Criminal Procedure Code of the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code.
They shall be set at liberty forthwith, unless otherwise lawfully held.
Dated, signed and delivered in open court and online through MS Teams this 27th day of November 2025.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
• The Accused persons in person
• Ms. Bebora Mwaka – Court Assistant
• Mr. Ngiri for the State
• Mr. Atancha for the Accused
HON. LADY JUSTICE W. K. MICHENI
JUDGE
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The Charge
1. The three accused persons were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 Laws of Kenya. The particulars are that on the 21st day of February 2024 at Majengo area near Pwani Oil Ltd in Mtwapa Location within Kilifi County, jointly with others not before court, they murdered Kenga Kazungu Kombe.
2. They pleaded not guilty and the State called several witnesses, namely:
• PW1: Dr. Gideon Odiambo Onyango
• PW2: Lucy Kenga
• PW3: C.I. John Murima
• PW4: David Maihu
• PW5: PC John Murithu Nyaga
The 3rd accused died in custody while this ruling was pending. This judgment therefore relates only to Accused 1 and Accused 2.
The Law
3. Article 26 of the Constitution of Kenya guarantees the right to life and provides that no person shall be deprived of life intentionally except as authorized by law.
4. The ingredients of the offence of murder were articulated in Republic v Andrew Omwenga [2009] eKLR, namely:
i. Proof of the fact and cause of death;
ii. That the accused’s act or omission caused the death (actus reus);
iii. That the act was accompanied by malice aforethought (mens rea).
Analysis
5. The fact of death was established. The post mortem report shows that the cause of death was multiple deep cut wounds to the head, secondary to force trauma in an assault. It was an extremely brutal and gory murder, where the deceased’s eyes were gored out and he sustained multiple deep and degloving cuts all over the head and neck region.
6. The death was clearly unlawfully caused owing to the nature and extent of the injuries.
7. The challenge in this case lies in linking the remaining two accused persons to the offence. There was no eyewitness, no murder weapon recovered, and no DNA or other forensic evidence tying them to the scene or to the deceased.
8. The only direct evidence touching on motive or threats came from PW2, Lucy Kenga, who stated that one Silaha sent her a threatening message on 22/7/2022 which read:
“Una raha sawa. Ala ba mhoho akifa, bayaye anafa kala umimanya.”
This loosely translates to: “You may be happy now. But if your elder father dies, your father will die. Keep that in mind.”
9. PW2 testified that she discussed the message with her father and they reported it to the police. She added that at the time, her Baba Mkubwa (paternal uncle) was unwell; that he later died; and shortly thereafter the deceased—her father—was killed. She therefore connected the message to the subsequent killing.
10. This Silaha was never arrested. PW2 confirmed she has not seen him since the incident. The prosecution theory was that Silaha hired the accused persons to kill the deceased.
11. It was alleged that Silaha received money from a relative in Sweden for this purpose. Unfortunately, no tangible evidence was produced to support this theory. There were no M-Pesa records, no bank transfers, and no communication linking the accused persons to Silaha.
12. The case against the accused persons therefore rested solely on alleged confession statements attributed to Accused 1 and Accused 2.
13. These confessions were recorded by PW3, CIP John Murimi. He was, however, stood down when defence counsel, Mr. Atancha, objected to their production.
14. The defence supplied medical documents to the prosecution, and upon reviewing them, Mr. Ngiri for the State conceded that the confessions were not procured procedurally and did not meet the legal threshold. Accordingly, there was no need to conduct a trial-within-a-trial.
15. With that concession, the confession evidence collapsed. The second civilian witness did not attend court, and the remaining witnesses merely covered the scene of crime and the investigations.
16. In light of the above, even if the accused persons chose to remain silent upon being placed on their defence, no conviction could result.
17. I therefore find that the evidence on record does not establish a prima facie case against Accused 1 or Accused 2. They cannot be called upon to make their defence.
Disposition
18. The 1st and 2nd accused persons are hereby acquitted under Section 306(1) of the Criminal Procedure Code of the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code.
They shall be set at liberty forthwith, unless otherwise lawfully held.
Dated, signed and delivered in open court and online through MS Teams this 27th day of November 2025.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
• The Accused persons in person
• Ms. Bebora Mwaka – Court Assistant
• Mr. Ngiri for the State
• Mr. Atancha for the Accused
HON. LADY JUSTICE W. K. MICHENI
JUDGE
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