The Republic AND The Republic AND 1 Others VS rosemilia mutuuri njeru AND paulino ireri fasiriana AND 7 Others

1. The accused persons face 2 counts of murder contrary to Section 203 as read together with Section 204 of the Penal Code. Particulars of the charge are that on 13^th February 2022 at Ovarire village, Kiang’ombe location in Mbeere North subcounty, within Embu County, the accused persons murdered Amos Kariuki Njagi and Eusephius Ngari Njagi.
2. The accused persons took a plea of not guilty and the same was duly entered. The case proceeded to trial and the prosecution called nine (9) witnesses and then rested their case.
3. PW1 was Jamlick Mugo Muriuki who stated that on 23^rd February 2022, he identified the bodies of the deceased who are his uncles at Embu Level 5 Hospital for postmortem purposes. That both bodies were swollen and they were bleeding. On cross-examination, he stated that he was not there when the deceased were beaten to death.
4. PW2 was Nicasio Ireri Njeru, the area chief, who stated that a village elder told him that some 2 men had been beaten to death by a mob. He called police from Kanyuambora and DCIO Siakago and together, they visited the scene. The bodies were taken to Embu mortuary and investigations were done. He stated that there was a dispute between one of the deceased persons, Amos, who was attacked by the 1^st accused’s parents and they were charged and convicted. That the 2^nd, 3^rd and 4^th accused are village elders and nyumba kumi elders. On cross-examination, he stated that he was not there when the deceased were attacked and that he was only called to the scene later. That the incident happened a day after the late Amos attacked the 1^st accused’s mother.
5. PW3, Joseph Njuki Mbogo stated that the 5^th accused called him on phone and told him that he had just left Eusephius (deceased) in danger. That when he met the 5^th accused, he learned that Amos (deceased) had cut the 1^st accused’s mother with a panga the previous day. That the 1^st-4^th accused looked for Amos (deceased) and tied him with ropes then they went looking for Eusephius (deceased). He said that the 5^th accused told him that the 1^st-4^th accused were to take Amos (deceased) to the chief but he did not know if they took him but the 2 were later found beaten to death. He urged the 5^th accused to give that information to the police. On cross-examination, he stated that he did not see any of the accused persons beating the deceased.
6. PW4, Julius Ngungi Njagi testified that the 2 deceased persons were his brothers. That the 1^st accused’s parents cut the hand of Amos (deceased) and he was taken to hospital by Eusephius (deceased). That when he got better, Amos (deceased) reported the matter to the police and the 1^st accused’s parents were charged in Court where Eusephius (deceased) was a witness and they were convicted. He stated that Mary, the 1^st accused’s mother served full sentence but his father died before he could complete his sentence and when Mary was about to be released, there was a meeting held at the chief’s office and they agreed that they would go to visit Mary. That Amos (deceased) attacked Mary with a panga and cut her on 12^th February 2022, terming it as revenge for cutting him. That Amos went to hide at his house saying that he was running away from the 1^st and 6^th accused and one Benjamin who had beaten him for cutting the 1^st accused’s mother.
7. That Amos had multiple injuries on the elbow and the hip joint. He stated that he called his other brother Daniel Njuki who had taken Mary to hospital and he told him what Amos (deceased) had told him but he did not see Mary that night. That the following day, Amos sent him to pick his clothes for him from his house and when he went there, he found the door had been removed. That when he left, he saw the 1^st accused passing in front of his house carrying a jembe handle and he was followed by the 2^nd accused, the sub-area chief, who was carrying a rope. That he also saw the other accused persons. That the 2^nd accused asked to see Amos and he called him out of the house where the 2^nd accused tied him with a rope and said they were taking him to the authorities.
8. He urged them not to beat him but they threatened to beat him as well (PW4). He stated that the 3^rd accused told him that they were going to the house of Eusephius next and as they went, they passed by his mother’s house but Eusephius was not there. That he saw the 1^st accused beating Amos (deceased) with a fork jembe handle on his head and he started bleeding profusely. At this point of the testimony, the witness was overcome by emotions and he began to cry. He testified that he saw all the accused persons taking turns at beating Amos with sticks even though he had urged them not to beat him. He identified the bunch of sticks that were used to beat his brother as they were produced in court as part of evidence.
9. He testified that none of the people who were there tried to restrain others from beating his brother. That they tied him with ropes and went away with him and his other brother Daniel followed him. He stated that he went back to Amos house to collect his personal items so that they could not be stolen and on the way he met the 1^st accused who told him that Amos and Eusephius had been taken to Ishiara Police Station. That later, his brother Daniel told him that the 1^st accused’s brother, Titus Njuki told him that the deceased persons were killed and they never reached the police station. That his friend’s grandfather told him that he was at the scene and he tried to stop the accused persons from beating Amos but they refused to listen. On cross-examination, he stated that he was not at the scene but he was told by his brother Daniel and Mzee Benjamin, his friend’s grandfather of what happened.
10. PW5 was Daniel Njuki who took the stand but he said that he was unwell. The court noted that he was reluctant to testify.
11. PW6 was Benjamin Njeru Ngari who stated that he knows all the accused persons as well as the 2 deceased.  He stated that his home is near the road and on the material day, he heard some noise at around 8:30 a.m and when he went to check, he found the accused persons beating the deceased persons. That he tried to stop them and pleaded with them to take the deceased to the Chief but they told him they will not take the 2 deceased to the chief because the Chief will set them free. That the accused persons also threatened to tie him with ropes and so he feared but he followed them slowly since they said that they were taking them to the mountain. That at the mountain, the accused persons surrounded the deceased and started beating them.
12. As they were beating them, Amos (deceased) was pleading with them not to kill Eusephius (deceased) since he was not involved in assaulting the 1^st accused’s mother. He stated that the accused persons forced the 2 deceased to drink water mixed with pepper and then they beat them death using sticks, which he identified in court. Afterwards, the 6^th accused said that the deceased were pretending to be dead and so he rode over the bodies of the deceased with his motor cycle to verify that they were dead. That the police went to the scene with their motor vehicles and took the bodies away.
13. On cross-examination, he stated that he knew all the accused persons since they were young as they all hail from the same clan. That there were other people at the scene, who were not arraigned alongside the accused persons, and other people gathered at the scene when the police arrived. He did not mention in his initial statement that the deceased persons were run over by a motor cycle but he said that it is what happened since he witnessed the whole incident from the beginning to the end.
14. PW7 was Joseph Thuo of Embu Level 5 Hospital who produced mental assessment reports for the 1^st-6^th accused persons where he had found them to be mentally fit to plead. He also produced the mental reports for the 7^th -12^th accused persons by Dr. S. Munyao of Karatina Sub-county Hospital, who also found them fit to plead.
15. PW8 was Dr. Wangari Kamau, a pathologist at Embu Level 5 Hospital who conducted postmortem on the bodies of the deceased. In the case of Amos Kariuki there was a 4cm injury on the forehead, an injury on the right upper limb and shoulder, a 6cm×4cm injury on the anterior chest on the right side, a broken rib on the right side, lung contusion and hemorrhage. She formed the opinion that the cause of death was severe head injury secondary to blunt force trauma. In the case of Eusephius Ngari (deceased), she observed that there was an abrasion on the anterior abdominal wall measuring 18cm×10cm, an injury on the left knee region and the left thigh and there were signs of raised intercranial pressure with diffuse subarachnoid and left subdural hematoma. She formed the opinion that the cause of death was injury due to blunt force trauma. She produced both postmortem reports as evidence. On cross-examination, she stated that neither of the deceased person had skull fractures.
16. PW9 was Sgt. Awadh Mohammed who stated that the incident was reported at Ishiara Police Station and he proceeded to the scene with his colleagues where he found the bodies of the deceased. He gathered from the chief that the 2 had been lynched by members of the public on allegations that they had attacked one Mary Muthoni. The sticks used to assault the deceased were collected as evidence and the bodies were removed to Embu Level 5 Hospital mortuary. He established through investigations that the deceased and 1^st accused’s parents had disagreed in the past and the 1^st accused’s parents had been sentenced.
17. That after she was released from prison, she met Amos (deceased) so that they could reconcile but instead, he attacked her with a panga. That the 1^st accused led the act of retaliation that caused the death of the deceased persons. That the accused persons were identified to the police by witnesses and they were arrested and escorted for mental assessment. That some of the suspects are still at large. He produced the bundle of sticks recovered from the scene as evidence. On cross-examination, he stated that he came up with the list of witnesses after interviewing people who were at the scene and some of them are still at large. That no ropes were recovered from the scene but the sticks used to beat the deceased were recovered.
18. At the end of the prosecution’s case, the court found that the accused persons had a case to answer and they were placed on their defense.
19. DW1 was the 1^st accused person who stated that the day before the incident, he was informed that his mother had been attacked and injured by the deceased who are his uncles. That he found his mother with injuries on her hand and legs at the 2^nd accused’s place since he was a sub-area chief. He stated that there was a longstanding land dispute between his parents and the deceased. That his mother was taken to Embu Level 5 Hospital by Daniel Njuki and himself and they were advised to take her back for check-up. That he spent the night in Siakago town with his uncle Daniel Njuki and the following morning, they went to check on his mother where they had left her. That he stayed with his mother until around midday when he walked home with his uncle and while on the way, they heard people saying that some people had been beaten to death.
20. He later learned that the deceased were his 2 uncles but he did not go to the scene. That the DCI summoned him in relation to the incident and he recorded his statement. That when he denied being involved, the police officers beat him up and he was arrested in connection with the incident. He stated that his uncles do not like him because he is not their brother’s biological son. On cross-examination, he stated that Amos did not have one hand and he did not know how he lost that hand.
21. That when his mother was attacked, the incident was reported at Siakago Police Station. That PW5 works in cohorts with people who have been meaning to chase him away from the land. That he could not remember the name of the lodging where he spent the night with Daniel and he did not have a receipt for the Kshs.500/= he paid. That he reached home around 3.00 p.m. on the day of the incident.
22. DW2, the 2^nd accused person stated that on the day of the incident, Mary Muthoni went to inform him that he had been attacked by the deceased persons and she reported to him in his capacity as a village elder. Mary had sustained injuries on her hand and leg. He stated that he helped her to the road and a motor vehicle carried her in the company of the 1^st accused and Daniel Njuki to the hospital but he did not accompany them. That the following day, he got fodder for his goats and them went for a function and at around 12:30 p.m, he heard people saying that someone had been killed but he did not have the details.
23. That he went to the scene where he found the bodies of the deceased and people had gathered. That the police visited the scene and he was implicated only because he helped Mary the previous day. On cross-examination, he stated that the deceased persons hailed from his jurisdiction and that there had been a longstanding land dispute between Mary and the deceased persons.
24. DW3 was the 3^rd accused person who stated that on the day of the incident, she went for a Chama meeting at 8.00 a.m which ended at 9.00 a.m and by 10.00 a.m she was back home. That her children had gone to church and they returned at 1.00 p.m with news that they had heard that some people had been killed. That she brushed them off because they were too young to know what they were saying. That she investigated and found that it was true that the deceased had died and she did not know why they had been killed. She heard that they had been killed by a mob but she did not go to the scene. That later, PW9 arrested her as a suspect but she denied being involved since her home is far from the scene. That PW6 testified against her because he did not like her since she was telling on his illegal alcohol business. On cross-examination, he stated that she was attending a chama meeting that morning and the 10 members of the Chama do not hail from that village. That PW6 sells illegal brew that causes havoc in the community. That her village and that of the deceased are 2 km apart.
25. DW4 was the 4^th accused who stated that he was resting at home alone when he heard noises near the road and when he went to check, he saw a crowd of about 100-200 people. That his wife returned from church and told him that the deceased persons had been killed. Later, he was summoned by PW9 and was arrested as a suspect. On cross-examination, he stated that he was a nyumba-kumi officer but he did not go to the scene because he was feeling unwell. He knew about the land dispute between the 1^st accused’s parents and the deceased.
26. DW5 was the 5^th accused who stated that on the day of the incident, he woke up early to go to the water supply group establishment where he was a caretaker. He ran several work-related errands including repairing pipes with one Joseph Njuki and then he visited his uncle who had called him to discuss some family matters. That he returned home at 7.00 p.m and his grandmother told him that the deceased had been killed by a mob. That he knew them because they hailed from the same village. That later, a DCI officer called him to the police station and threatened to lock him up if he refused to give his statement and so he did. Some days later, he was arrested in connection with the offence. On cross-examination, he stated that he parted ways with his colleague at around 11.00 a.m and he testified at PW3. He denied being involved in the incident.
27. DW6 was the 6^th accused who stated that on the day of the incident, he went o sell miraa which was picked up at 10:30 a.m and then he went to Siakago to buy diesel before heading home. That while on the way home, he heard people discussing the deaths of the deceased and upon arriving at Kamakwa, he saw a police vehicle with police officers and the area chief and assistant chief. That he went near the scene and saw the bodies and Cyrus Munyi told him that the deceased had been lynched by a mob. That he stayed there for about 10 minutes and then he left. That a few days later he was called by PW9 as a suspect in the matter. On cross-examination, he stated that he knew about the land dispute existing between the 1^st accused and the deceased. That his father had a dispute with PW6. That his uncle Cyrus Munyi sent him to buy 20 liters of diesel and he gave him Kshs.2,500/= including transport.
28. DW7 was Cyrus Munyi Nguuri who stated that he runs a posho mill at Kamakwa Shopping center. That he heard some noise about 300 meters from his house and when he went to check he heard someone saying ‘niue, mimi siogopi kukufa’ (‘kill me, I do not fear to die’). He did not recognize the voice but he later learned that the deceased persons, who are his first cousins, were beaten to death as a retaliation for cutting their sister-in-law’s hand. He stated that he had sent DW6 for fuel the previous day and he delivered it the following day.
29. That DW6 found him at the scene and when he arrived, they went back to his house together then they returned at the scene together but DW6 left since he had other things to attend to. He was surprised to hear that the 6^th accused was arrested in connection with the offence. On cross-examination, he stated that he could not tell whether the 6^th accused was at the scene the whole time or he had just arrived when he saw him. He did not identify those who were beating the deceased but he saw the 2^nd accused there in the crowd.
30. DW8 was the 7^th accused who stated that he went to sell miraa at 4.00 a.m and by 7:30 a.m, he had finished then he took a customer to Kasavali from Katitu. That he went to a group meeting and then he returned home by 11.00 a.m and went back to sleep. At 3.00 p.m, his wife returned from church and told her about the incident. He denied involvement in it and stated that he knew the deceased persons since he did business with them. That PW9 called him and threatened him and then arrested him as a suspect. On cross-examination, he stated that he was not at the scene that day even though PW6 said that he was the one who brought pepper at the scene.
31. DW9 was the 8^th accused person who stated that he was in the farm with his mother when he heard that some people had been killed. He denied that his dog attacked the deceased persons at the scene and that his home is about 15KM from the scene. That later, he was called to the DCI offices where he was interrogated and arrested as a suspect in connection with the offence. He denied involvement in the incident. On cross-examination, he stated that he was at his aunt’s place at 9:30 a.m in Ovarire (the area of the scene) where he stayed for a few minutes and it was put to him that it is at that time that the incident occurred.
32. DW10 was the 9^th accused who stated that he went for a chama meeting that morning between 8:10 a.m and 11:30 a.m and then he returned home to care for his livestock until 6.00p.m. That all along, he was in his farm when his wife told him about the deaths of the deceased but he got details of the incident the following day. He knew the deceased as quarrelsome neighbours but he denied having anything to do with their deaths. That he was arrested in connection with the incident, but he had nothing to do with it.
33. DW11 was the 10^th accused who stated that he went to a chama meeting and then returned home at 9:30 a.m and took care of his cows until evening. That when he returned, Cyrus told him about the death of the deceased, saying that they were killed by a mob. That he did not leave his home that evening and later he was arrested in connection with the offence. That PW9 threatened him when he said he was not involved in the deaths of the deceased. On cross-examination, he stated that he has ever quarreled with PW5 when his cows strayed and ate his crops but the matter was resolved peacefully.
34. DW12 was Cyrus Munyi who stated that he was at home when DW11 called to tell him to open the cowshed so that he could take the animals to graze and he did. That DW11 spent the whole day in Kiang’ombe hills taking care of the cows and he returned in the evening. That while at home, he heard some noise coming from outside and he went to the scene but he did not see DW11 there. That DW11 could not have been involved in the incident. He said that the family of the deceased was quarrelsome and was involved in many disputes. On cross-examination, he stated that the 6^th and 10^th accused persons are his nephews and that he did not accompany DW11 to the grazing fields that day and he couldn’t tell whether he was at the scene at the time of the incident. That there were more than 100 people at the scene.
35. DW13 was the 11^th accused who stated that he went for a chama meeting that had 15 members and it ended at 9.00 p.m then he went to his farm to water his miraa plants. That his grandmother asked him to help her cut meat and that day, he did not see the deceased persons, neither did he go to Kamakwa. He heard that 2 people had been killed and he found that they were people he knew. He stated that he was later arrested by PW9 whom he had already told he had nothing to do with the deaths of the deceased. He denied any involvement in the deaths of the deceased. On cross-examination, he stated that at the chama meeting, only 14 members were present and the treasurer was Peter Kariuki but Albert Njeru is the one who was collecting the contributions that day. That he did not know that the 1^st accused’s mother had been injured the previous day. That he has known PW4 for about 15 years and PW5 since he was born.
36. DW14 was the 12^th accused who stated that on the day of the incident, he was with the 5^th accused and they were repairing broken water supply pipes at Kathiga Kambaki and they were assisted by Joseph Njuki who brought them some fittings. That he parted ways with the 5^th accused and then went to do another task at his piece of land with Njeru Nyaga, his friend. He denied being near Kamakwa that day and he heard that the deceased had been killed. That the investigating officer threatened him but he gave his side of the story, denying any involvement. Later, he was arrested in connection with the incident. On cross-examination, he stated that he was with the 5^th accused from 6.00 a.m and he arrived at his shamba at 1.00p.m with his friend. That they heard about the deaths of the deceased in the evening that day.
37. DW15 was Njeru Nyaga who stated that at around 11:30 a.m, he met DW14 and together, they went to his shamba to construct a cowshed and they worked on it until 6.00 p.m. That on their way home, his children told him about the deaths of the deceased who were killed by a mob. That DW14 couldn’t have participated in killing the deceased since they were together that day.
38. The defense case was closed and the court directed the parties file their written submissions.
39. In its submissions, the prosecution relied on the case of Anthony Ndegwa Ngari v. Republic (2014) eKLR and section 203 of the Penal Code. It also relied on Article 26 of the Constitution and the case of Republic v. Stephen Sila Wambua (2017) eKLR and Guzambizi Wesonga v. Republic (1948) 15 EACA 63. It was its submissions that PW7 established the causes of death for both deceased. That the prosecution witnesses placed the accused persons at the scene of crime causing the injuries to the deceased. That the deaths of the deceased persons were caused with malice aforethought according to section 206 of the Penal Code and the case of Joseph Kimani Njau v. Republic (2014) eKLR. It urged the court to consider the testimony of PW9 who testified on the nature of injuries sustained by the deceased persons and infer malice.
40. It was the prosecution’s submission that according to section 21 of the Penal Code and the cases of Njoroge v. Republic (1983) eKLR, Dickson Mwangi Munene & Another v. Republic (2010) eKLR and Otieno Evans Oduor v Republic (2021) eKLR all the accused persons had a common intention to prosecute an unlawful act which resulted in the death of the deceased persons. It urged the court to dismiss the defenses of the accused persons terming them as mere denials.
41. The accused persons submitted that the evidential threshold in criminal cases is well established and they relied on the cases of Ryde v. Bushell (1967) EA 817, Pius Arap Maina v. Republic (2013) eKLR and Stephen Nguli Mulili v. Republic (2014) eKLR.  They urged the court to consider the defenses given and that the same should not only be mentioned in passing. They relied on the case of Karanja v. Republic (1983) KLR 501. They argued that the prosecution evidence does not support their case since PW1-PW4 were not present at the scene and they were merely told what happened. That there is no direct evidence according to section 63 of the Evidence Act. That PW5 failed to identify the accused persons in the dock and he seemed not to know them at all even when he was taken close to the accused persons in court. That the investigating officer bullied the accused persons and failed to actually prove that they were at the scene at the time of the offence. They urged the court to consider the flaws in the prosecution’s case and acquit the accused persons.
42. The issue for determination is whether the prosecution has proved the offence of murder beyond reasonable doubt against the accused persons.
43. Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law. It is the duty of the prosecution to prove beyond reasonable doubt, that the accused persons murdered the deceased persons. These provisions of the Penal Code provide the elements of the offence as follows:

“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

204. Any person who is convicted of murder shall be sentenced to death.”

1. In the case of Republic v W.O.O. [2020] eKLR (Migori High Court Criminal Appeal No. 26 of 2017) the elements of murder were stated, being guided by the Court of Appeal in the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR, as follows:

“For the offence of murder to be proved, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.”

1. On the first element of death and cause of death, PW8 produced postmortem reports for both deceased persons. She formed the opinion that the death of deceased persons was due to severe head injury secondary to blunt force trauma.
2. On the element of unlawful act which caused the death of the deceased, the prosecution has the legal burden of proving that the accused persons are linked to the death of the deceased. From the flow of evidence by the prosecution, it is settled that the deceased persons died from being beaten to death by a mob. PW2 testified that he was informed about the deaths of the deceased by the 2^nd accused, a village elder, and he called the police then they visited the scene together.
3. PW3 stated that the 5^th accused told him that he had just left Eusephius (deceased) in trouble because Amos (deceased) had cut the 1^st accused’s mother with a panga. The 5^th accused told him that the 1^st - 4^th accused had tied Amos (deceased) with ropes claiming that they were taking him to the chief but the 1^st accused hit Amos (deceased) with a fork jembe handle. The 5^th accused also told PW3 that both deceased had been badly beaten.
4. PW4 stated that Amos attacked the 1^st accused’s mother, on the 12/02/2022 and on 13/02/2022 he sought refuge at his home after he was beaten by 1^st, 6^th accused and one Benjamin and he had multiple injuries and he spent the night there. That the following morning, he went to Amos’s house to get his clothes and he found the door had been removed and when he returned to his house he saw the 1^st accused passing by his house looking agitated and carrying a jembe handle. A few minutes later, he saw Njagi Ngai, the sub area chief carrying a rope and the rest of the accused persons unarmed. That the 2^nd accused asked for Amos and when he went outside, they tied him with a rope and took him away. Later, PW5, who was unwilling to testify, told him that they killed the deceased. PW4 did not follow them as they took Amos away.
5. PW6 said he saw the whole ordeal and how the accused persons beat the deceased to death. He named the accused persons in court stating how he knew them. He stated that he saw the 2^nd accused person with a jembe handle and the other accused persons had sticks which they used to beat the deceased until they died before the police vehicle arrived. On cross-examination, he said that his sight got worse after the incident.
6. The incident occurred between 8.00 a.m  and 9.00 a.m In their defenses, the 7^th, 9^th, 10^th and 11^th accused persons stated that on the morning of the incident, they were attending the same chama meeting for Beekeepers at Ovarire before resorting to other businesses of their various days. The 1^st accused stated that his mother was attacked by the Amos (deceased) and he took her to hospital, company of his uncle PW5 and they both spent the night at a lodging in Siakago Town. That the following morning, he checked on his mother and then walked home with his uncle and he arrived the at the scene at around noon. That he heard that the deceased had been attacked by a mob. It is unclear where he was checking on his mother or his whereabouts that morning between 8.00a.m and 9.00 a.m.
7. The 2^nd accused stated that he went to get fodder for his livestock and afterwards he attended an event until around 12:30 p.m when he heard the sad news of the deaths. His testimony does not specifically account for his whereabouts between 8.00 a.m  and 9.00 a.m The 3^rd accused said that she woke up at 7AM and attended a chama meeting at Kavingori between 8.00 a.m and 9.00a.m after which she went home and arrived at 10.00 a.m. She said that her children broke the sad news to her at about 1.00 p.m. The 4^th accused said that he was having breakfast outside his house at about 9:30 a.m when he heard noises near the road but he did not go to check because he was unwell. That later his wife told him about the deaths.
8. The 5^th and 12^th accused persons said that they were together that day repairing water pipes from around 6.00 a.m. The 12^th accused said that they parted ways with the 5^th accused at about 11.00 a.m when he went on to meet with his friend DW15. DW7 said that he had sent the 5^th accused for diesel the previous day and they met on the morning of the incident. It was his testimony that the 5^th accused delivered the fuel at the scene and they went to his house together to deliver the diesel and then they returned at the scene. On cross-examination, he stated that he couldn’t tell whether the 5^th accused had been at the scene when the deceased were beaten to death. The 6^th accused said he finished his miraa trade at 7.00 a.m, dropped off a client at 8:30 a.m and then he went home at 11.00 a.m since the chama meeting had already ended by the time he arrived at Ovarire.   
9. From the testimonies, PW6 attempted to place the accused persons at the scene and he said that they hail from his area. When he was asked to identify them in court, he was even brought near them but he couldn’t tell them apart and he mixed up their names as he pointed them out. His identification of the accused persons is in question since his eye sight seemed to fail him. His testimony is not dependable if this court is to determine the case to the required standard of proof of beyond reasonable doubt.
10. Looking at the testimony of PW4, he saw the accused persons whom he named and identified even in court. He did not follow them to the scene but he saw the 1^st accused carrying a jembe handle and the 2^nd accused person carrying a rope. He said that PW5, his brother who did not tender his testimony, is the one who told him about the deceased being beaten to death. It was his testimony that when the accused persons were taking Amos away, he told them not to beat him but rather, take him to the police, but they did not. The testimony of PW4 remains as hearsay since PW5 failed to testify. The Court of Appeal in the case of Kinyatti v. Republic (1984) eKLR held that:

“Hearsay or indirect evidence is the assertion of a person other than the witness who is testifying, offered as evidence of the truth of that asserted rather than as evidence of the fact that the assertion was made. It is not original evidence. The rule against hearsay is that a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of a stated fact.”

1. However, the testimony of PW4 may still be examined in the context of circumstantial evidence to the extent of his statement that he saw the accused persons when they went to his house to get Amos (deceased). (see the case of Chiragu & another v Republic (Criminal Appeal 104 of 2018) [2021] KECA 342 (KLR)). PW4 identified the accused persons that day and stated that the 1^st and 2^nd accused were armed with a jembe handle and a rope while the rest were unarmed. That he witnessed when the 1^st accused hit Amos with a jembe handle and he bled profusely as he pleaded with him to stop beating him. That they left his place and went to look for Eusephius. Later that morning, the deceased persons were found dead beaten to death. PW9 stated that he recovered a bundle of sticks at the scene and they were identified as the murder weapons.
2. From examination of the accused persons’ defenses, they failed to properly account for their whereabouts that morning. They all denied having been involved in the events that led to the death of the deceased persons even though circumstantial evidence points towards their involvement since they were all seen when the deceased persons were being taken away to their deaths. It is my view that they are all criminally liable. I am guided by the provisions of section 21 of the Penal Code which provides:

“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

1. On the issue of malice aforethought, PW8 testified of the injuries that led to the deaths of the deceased persons and she stated the cause of death. The injuries were inflicted on the heads of the deceased persons. In my view, the accused persons intended to kill the deceased persons. The bundle of sticks recovered by the investigating officer is proof of the common intention by the accused persons to kill the deceased. In the case of Republic v. Stephen Sila Wambua Matheka (2017) eKLR it was held;

“The courts in interpreting the provisions of section 206 have stated as such in various authorities. In the classic case of Republic v Tubere S/O Ochen [1945] 12 EACA 63 the court held that an inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before, during and after the attack.”

It is my view that the accused persons bore malice aforethought at the time of the offence.

1. In the end, I find that the prosecution has proved its case against all the accused persons save for the 3^rd accused, beyond reasonable doubt. They are hereby convicted of the 2 counts of murder contrary to section 203 of the Penal Code.
2. The 3^rd accused person is hereby acquitted.
3. It is so ordered.

Delivered, dated and signed at Embu this 4^th day of December, 2024.