The Republic VS BOAZ WANJALA IYATI The Republic VS BOAZ WANJALA IYATI

The accused was charged with seven (7) counts of murder contrary to Section 203 as read together with Section 204 of the Penal Code. The particulars of the offence are on 02^nd October 2022 at Ngimari village, Gichiche sublocation in Embu East sub-county within Embu County, the accused murdered Charles Kariuki, Catherine Wanjiru, Judy Wanjiku, Mary Ann Murugi, Joel Njeru, Blessing Tumaini and Gift Baraka.
The accused person pleaded not guilty and a plea of not guilty was duly entered before the matter proceeded to full hearing.
PW1 was Tabitha Wanja who stated that she was married to the accused since 2015 until they separated because of his infidelity and violence towards her. That when she separated with the accused, she took the children with her but the accused took the children away from her and took them to his home in Kakamega. After a while, she went to Kakamega to see one of the children who was sick and went to Kisii for 3 months before she went to her brother’s place in Nairobi. That her brother told the accused that she was living at his place and the accused went looking for her. She stated that eventually, she moved back to her parents’ home in Runyenjes and the accused visited her severally. That he used to come to implore upon her to return to his home but she was not interested since the accused had another wife.
It was her testimony that after she refused his advances, he started sending her threatening messages saying that they do not know him well and that he was going to burn their house down so that she and her mother would die. That the accused, in his messages sent from 3 phone numbers, told her that he prefers her dead than away from him. She stated that when he threatened to burn down their house, she did not report the matter to the police because she did not take the threats seriously. That on the day of the incident, a lady went to their house to ask for help since Kariuki’s house was on fire although they had not heard any commotion before they received that report.
She stated that Kariuki’s house was 500 meters from their house and she had never stayed the night at his house. That they rushed to the scene where they found people helping to put out the fire. That the fire had razed down the timber structure completely. It is when she visited the scene that she remembered the accused’s threatening messages which she showed the police officers when she reported at the police station and she recorded her statement. It was her testimony that the day after the incident, the accused sent her a message saying “mbona haujachomeka wewe shetani”(“why haven’t you burned, you devil”). She showed this message to the police and she stated that she did not see the accused on the night of the incident. She did not know if the accused was charged with arson.
On cross-examination, she stated that her relationship with the accused was strained and that she did not see him between 1^st and 3^rd October 2022. That she had last seen him in July 2022. That Kariuki’s house was 500meters from their house and she did not know Kariuki’s wife very well. That there were many houses between their house and that of Kariuki and that the accused had visited her brother at his house which is within the same compound as theirs. That the accused sent her the message asking why she had not burned, on the same day when the incident occurred but he did not say that he was the one who set Kariuki’s house on fire.
PW2 was Vivian Wawira Munyi who stated that she was awake at around 4am when she heard distress calls by children and adults. That she couldn’t tell where the noises were coming from and so she called her son Brian Murimi who said that he also did not know where the noises were coming from. Soon afterwards, they figured out that Kariuki’s house was on fire and so they got out and went to the scene with her son. That they found the late Kariuki’s father at the scene and he said that he arrived there very fast but he had not seen any of the occupants of the house that was on fire. That by the time she got to the scene, the house had been engulfed in fire and she had sent her other son to go and call the subarea chief.
She stated that she tried calling one of the deceased persons but her phone was not going through. That all the deceased were living in the same house that was set ablaze. That the people who had gathered tried to put out the fire but they realized that the deceased persons had burned beyond recognition. The police went and took the bodies of the deceased to the mortuary. On cross-examination, she stated that Catherine Wanjiru (deceased) had business rivalry with someone and she claimed that someone had stolen her clothes. That there was a time when Catherine Wanjiru (deceased) was attacked on her way to work in the morning. She stated that she did not know the accused and that she did not know who set Kariuki’s house on fire.
PW3 was Alex Mutwiri who is PW2’s son who, stated that on the night of the incident, he had spent the night at his cousin Peter Mwaniki’s house because his brother Brian had come home with his wife. He stated that at around 4am, someone knocked the door and awoke them saying that Kariuki’s house was on fire. That they left and went to the scene where they found a fierce fire had engulfed Kariuki’s house. That the house was a wooden structure where Charles Kariuki lived with his wife, 3 children and 2 grandchildren. On the way to the scene, they did not meet anyone. At the scene, him, his cousin, his brother and his mother all started making distress calls and they tried to put out the fire in vain. He stated that he had called the subarea chief and the chief was also at the scene coordinating the effort to put off the fire and after the fire went down, they saw burned bodies. He did not know the accused person and he said that he did not see him burning the house down.
PW4 was Daniel Kinyua James, PW1’s brother, who stated that PW1 was married to the accused but they separated and his sister got married elsewhere when the accused took the children. That on the day of the fire incident, PW1 told him that the accused had sent her a text message threatening to burn down her parent’s house with the aim of killing her. He stated that he advised her to report the matter to the police and she did. The accused was consequently arrested over the threatening messages he had sent. Before the arrest, he stated that he had last seen the accused in July 2022.
He stated that when the deceased’s’ house burned down, he went to help put out the fire but in vain as the fire was too fierce and the whole family burned to death. That whenever the accused went to his home, he never visited the late Kariuki but PW1 knew the deceased family. On cross-examination, he stated that the accused visited his home 3 or 4 times and he never went to the deceased’s home. That the home of the deceased is about 500 meters from his home. He stated that PW1 never worked at the home of the deceased or stayed there. That in his 2 statements to the police, he did not mention that PW1 received threatening messages from the accused.
PW5 was Dr. Rosemary Wangari Kamau, pathologist at Embu Level 5 Hospital who conducted postmortem on the bodies of the deceased. She stated that the bodies were identified to her by James Nyaga and James Kibuti and the identification was circumstantial because they were burned beyond recognition. They could only tell the gender according to the size. Their approximated ages were; Charles Kariuki- 50 years, Catherine Wanjiru- 40 years, Judy Wanjiku- 20 years, Mary Ann Murugi-13 years, Joel Njeru- 7 years, Blessing Tumaini- 5 years and Gift Baraka- 3 years.
She observed that all the bodies had 100% total body surface burns with charring from open flame burns, which was the cause of death. She produced the 7 postmortem reports as evidence. On cross-examination, she stated that the ages of the deceased were estimated. That the bodies had 100% total body surface burns thus she was not able to ascertain whether there were any defense wounds on any of the bodies.
PW6 was Dr. Sheila Shavulimo, a psychiatrist at Embu Level 5 Hospital who conducted mental assessment on the accused person. She produced the report as evidence in which she found that the accused was mentally fit to plead.
PW7 was CI Sarah Bokosh who produced photographic evidence on behalf of Cpl. David Kipchumba who was ill and admitted in hospital at the time of the testimony. She was familiar with his handwriting and signature. She testified that at around 7am, the said officer was called to attend the scene where the deceased had died in a fire. He secured a sketch plan of the scene and observed that the house had burned to the ground and it had a kitchen, sitting room and 2 bedrooms. The officer documented the scene by taking 10 photographs which were produced as evidence.
She also described the scene as captured in the sketch plan, which was produced as evidence, and noted that the house that was burned was neighboring 2 other houses belonging to the deceased Kariuki’s father and brother. That the burned house had a kitchen whose doorway led to the children’s bedroom where 4 bodies were found and a 5^th one was dug out of the rubble. In the parents’ bedroom, there were 2 bodies, one was found in a kneeling position holding a metal bar while the other body had rolled over from that room. At the scene, a woman told the officers that she has heard an explosion at around 4am. On cross-examination, she stated that she prepared the sketch plan and at the scene, they did not find anything that could have been used to cause the fire.
PW8 was Rita Wambeti Njagi who stated that she is the assistant chief and she knew the deceased family. She stated that on the fateful night, she received a call at around 4:30am from the area chief telling her that he had gotten reports of a house on fire. That he called the OCS Runyenjes and then he mobilized people to put out the fire but it was all in vain since the house was completely burned. That after the fire died out, they discovered bodies of people who had burned to death and the OCS advised that they await scenes of crime personnel.
The bodies were removed and taken to the mortuary. She recalled that 2 weeks before the incident, Catherine Wanjiru (deceased) had complained to him that she had been beaten by some people while on her way to work but she did not identify the people who assailed her. She had advised her to report the matter to the police. On cross-examination, she stated that she did not know the accused before the case started. That she knew Catherine Wanjiru (deceased) well because they fellowshipped in the same church and she once complained that her clothes had been stolen.
PW9 was Simon Ndwiga who stated that before the case started, he did not know the accused person. That on the fateful night, PW1 called to inform him about the fire that was ravaging the deceased’s house. That he rushed to the scene with PW1 and PW3 and then they went to PW8’s house and returned with her at the scene. That they also called the chief and they made some efforts towards putting out the fire but in vain. That the police arrived and took away the bodies of the deceased which had been burned in the fire. On cross-examination, he stated that he did not know the accused or PW1. He also did not know what caused the fire.
PW10 was Simon Njiru Njagi who stated that that PW1 informed him that the house of the deceased was on fire and he accompanied PW1 and PW3 to the scene where they found 3 other people. He helped to try and put out the fire for a few hours and then he returned home. On cross-examination, he stated that he did not know the accused before this case and that he did not know who started the fire.
PW11 was James Nganga, brother to Charles Kariuki (deceased). He stated that his late brother lived with his wife, children and grandchildren in his house. That on the night of the incident, he was away in Nairobi but his father called to inform him about the news. That by the time he arrived from Nairobi, the bodies of the deceased had been removed from the scene. That he attended postmortem where he identified the bodies of the deceased together with James Kivuti. On cross-examination, he stated that he did not know the accused or PW1 before the incident. That he had never seen PW1 at their home.
PW12 was Joel Mbogo Njeru who stated that he knew the deceased family. That on the night of the incident, he heard screams and when he opened the door, he met Samuel Kariuki and PW3 who told him that Kariuki’s house was on fire. That he called PW8, the assistant chief, on phone and gave her the sad news and she advised that he goes to the scene. That they started putting out the fierce fire and after it died out, they discovered that there were bodies inside the burned house. That the police arrived at he scene and took the bodies away. On cross-examination, he stated that Catherine Wanjiru (deceased) had been attacked and beaten one morning and she suspected another lady who was her business rival. That this business rival had threatened Catherine Wanjiru (deceased). He stated that he does not know the accused and he had never seen him before the case started.
PW13 was Lucy Warikira Wachira of the Government Chemist Nairobi who stated that her office received a request for analysis from PC Fredrick Kiprop together with samples which included debris from the crime scene. Her findings were that there was petrol which is a fire accelerant detected on samples from the main door of the house, the window of the sitting room and pieces of wood found at the scene. She produced her report of findings as evidence.
PW14 was Margaret Njoki Njue, PW1’s sister-in-law, who stated that the accused was married to PW1 and they used to live in Nairobi. That the accused used to visit them to say hallo but the last time she saw him was in July 2022. On cross-examination she stated that the accused knew their home quite well but she did not see him on the date of the incident.
PW15 was Jackline Kagendo Nyaga who stated that she is a bar owner and she knew the accused as customer. That on 12^th September 2022, the accused booked a room at her establishment and when he paid she issued him with a receipt. That she collected his details from his national ID card and let him stay in room number 2 but she did not know when he left the room. She produced her copy of the receipt issued to the accused as evidence but she was stood down to avail the original receipt.
Later on, she obtained a carbon copy of the receipt she had issued to the accused and it was produced as evidence. On cross-examination, she stated that even though the receipt does not state the name of the bar, it was issued by her because there is no other way she could have known the names of the accused and his personal details. That the accused stayed at her establishment on 12^th September 2022 and the incident occurred on the night of 1^st October 2022.
PW16 was Caroline Muthoni Kithinji who worked at a hotel near Runyenjes where Catherine Wanjiru (deceased) also ran her hotel business called Ebenezer. That she fellowshipped in the same church with Catherine Wanjiru (deceased) and one day she heard that her house had burned down and she had died with her whole family. She stated that she was summoned by the police because she was not in good terms with Catherine Wanjiru (deceased) but it was not true. On cross-examination, she stated that she did not know the accused or who started the fire. She denied being involved in the incident where Catherine Wanjiru (deceased) was beaten while on her way to work.
PW17 was Peter Mwaniki Kivuti a nephew to Charles Kariuki (deceased). He stated that before the incident, he did not know the accused. That on the night of the incident, he missed a call from one Simon and when he returned the call the following morning, Simon told him that the deceased had died. That he went to the scene where he found out their house was burned down and they all perished in the fire. On cross-examination, he stated that he did not know who burned down the deceased’s house.
PW18 was Sgt. Samuel Onyamasi who was the investigating officer in the case. He stated that the incident was reported as arson but when he visited the scene after being allocated the case, he found that there were 7 family members who had burned to death in the fire. That he called the scenes of crime personnel who processed the scene and took photographs and samples for analysis. That he recorded statements from witnesses, some of whom stated that Catherine Wanjiru (deceased) had a dispute with PW16. It was his testimony that he tried to explore that allegation but his investigations reached a dead end. He investigated the allegations that PW16’s husband could have been involved but that investigation also reached a dead end.
He stated that PW1 reported that she had been receiving some threatening messages from her estranged husband and he investigated the allegation then confiscated her phone for analysis. That PW1's phone was subjected to forensic analysis which linked the accused to the offence. That a digital forensics report was generated indicating that on 1^st October 2022 in the morning, the accused wrote a message to PW1 stating: “hiyo kibanda mumejenga nitaichoma usiku na petrol nivile hunijui” (loosely translates to: I will burn down that shack you have built with petrol at night, you do not know me).
The digital forensics report revealed that a few minutes later, the accused wrote another message to PW1 stating: “kwanza naweza kuja leo usiku” (loosely translates to: I might even come tonight). A few minutes later, another message from the accused to PW1 read: “vitu zangu utarudisha zote kumbe unafikiria ni mchezo utajua hujui mimi boaz wanja utanijua sasa labda petrol wafunge kenya” (loosely translates to: you will return all my things and if you think it is a joke, I will show you who Boaz is, unless they close down all the petrol stations in Kenya.)
His testimony referenced several other messages found in PW1’s phone and which were recorded in the digital forensics report which was produced as evidence. He stated that he obtained the accused’s phone number verification from Airtel and Safaricom for all his simcards and he produced the letters from Airtel and Safaricom as evidence. He found the accused’s national ID number and he requested for verification of the accused’s identity and the same was availed through a letter from the National Registrar which was produced as evidence. According to the Safaricom data, the accused was at Runyenjes on 12^th September 2022.
The evidence was pieced together and the accused was tracked down to Kakamega where he was arrested at his rural home in Navakholo sublocation in liason with police officers in Kakamega county. He stated that him and his colleagues went to collect the accused and he was identified by PW1. The accused was charged with the offence based on the threatening messages he had sent to PW1 saying that he would burn down her home. He stated that he believed the accused missed the house he meant to burn down and ended up torching a close neghbour’s house. That the accused’s phone was not digitally analysed because by the time of his arrest, 3 months had passed and it wouldn’t have been possible to get messages beyond 3 months.
However, his phones and simcards were recovered and produced as evidence. He produced an exhibit memo of the samples collected from the scene that were analysed by the government chemist. He stated that the accused suspected that one of the children he had with PW1 was sired by another man and that PW1 refused to go back to him after they separated. On cross-examination, he stated that PW16 was in her house on the night of the incident. He believed that the accused could have burned down the house of the deceased by mistake. That the accused’s phone was off on 1^st and 2^nd October 2022 and at first, he couldn’t place the accused at the scene but with further investigations, he believed the accused was involved. That the house of PW1 and that of the deceased are 600 meters apart.
PW20 was PC Wakaba Mungai of DCI headquarters Nairobi who stated that his office received a request for analysis of a phone and retrieval of text messages to help with investigations into an arson case. He stated that they managed to retrieve the messages from PW1’s phone for the period between 22^nd September 2022 to 5^th October 2022. That the analysis was done using a forensic tool known as cellebrite and a report was submitted to PW19. The digital forensic report was produced as evidence together with the certificate of evidence under section 65(8) of the Evidence Act. On cross-examination, he stated that the report does not indicate the location of the sender of the messages.
PW21 was Cpl. William Katama based in Kakamega county. He stated that he was informed about the incident and that the officers investigating the case needed help apprehending the accused who was within his jurisdiction. That he went with his colleagues to arrest the accused and upon searching his home, they found his national ID and phone which they recovered and produced as evidence.
After the close of the prosecution’s case, the court found that the accused person had a case to answer and he was placed on his defense.
DW1, the accused person, stated that on the night of the incident between 1^st -2^nd October 2022, he was in Nairobi where he lived with his brother Anthony Sifuna Olando. That PW1 is his wife and they lived together in Nairobi. That PW1 comes from Runyenjes and that he has visited her home 9 times, the latest being 12^th September 2022. He stated that when he was arrested in Kakamega at his rural home, he was not informed of the charges he was facing until he was arraigned. On cross-examination, he stated that he had been living with his brother and PW1 since 2021.
That on 1^st October 2022, he went to his usual workplace in construction and he returned home at 2pm. That his brother returned home at 6pm and PW1 was in Runyenjes since they had separated. He confirmed that he sent the threatening messages to PW1 on 1^st October 2022 but he said they were just empty threats since they had disagreed. He said that the following day, he heard about the incident from the news. That on the night of the incident, his phone was on but it was put to him that he had switched off his phone to conceal his location. He denied that he had run away to Kakamega to evade arrest. He also stated that him and PW1 used to threaten each other all the time. That the kibanda he threatened to burn down was next to PW1’s house in Runyenjes, a place he knew very well.
DW2 was Anthony Sifuna Olando who stated that on the night of the incident, he was at home in Nairobi with his brother DW1. That he started living with DW1 in 2019 and at the time PW1, his wife were there but they separated.
After the close of the defense case, the parties filed their written submissions.
In its submissions, the prosecution relied on section 203 of the Penal Code and the case of Anthony Ndegwa Ngari v Republic (2014) eKLR. Further reliance was placed on Article 26 of the Constitution and the cases of Republic v. Stephen Sila Wambua (2017) eKLR and Guzambizi Wesonga v Republic [1948] 15 EACA 65 and it argued that the cause of the deceased’s deaths were firmly established. As to the accused’s participation in causing those deaths, it urged the court to consider circumstantial evidence whose application was guided by the cases of Abanga alias Onyango v R Cr. App. No 32 of 1990 and Kipkering Arap Koske and another [1949] EACA 135.
It urged the court to consider the threatening text messages the accused sent to PW1 and the way the incident occurred shortly after the messages were sent. Reliance was placed on sections 111(1) and 119 of the Evidence Act and it urged the court to infer guilty on the accused. It relied on section 206 of the Penal Code and the case of Joseph Kimani Njau v Republic (2014) eKLR and argued that the accused had malice aforethought at the time of the offence.
The accused submitted that there was no evidence placing him at the scene and he relied on the cases of Republic v Savi Musingila [2018] eKLR and Pius Arap Maina v Republic [2013] eKLR. He stated that the prosecution evidence points towars another person as the assailant because PW16 was said to have had a business rivalry with Catherine (deceased) although the police believed that she was innocent. That even forensic evidence could not place him near the scene on the day of the incident. He relied on the cases of Republic v. Richard Itweka Wahiti (2020) eKLR and urged that if the court should resort to circumstantial evidence, then the same should form a very strong chain of evidence for an inference of guilty to be drawn. He relied on the case of Kiarie v. Republic (1984) KLR and Erick Otieno Meda v. Republic (2019) eKLR and argued that he had an alibi and DW2 confirmed that he was at home with him on the night of the incident. He argued that there is no logical reason why the accused would want to burn down the house of people he did not know. He urged the court to acquit him.
The issue for determination herein is whether or not the offence of murder has been proved beyond reasonable doubt.
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. The accused person herein faces the charge of murder contrary to section 203 as read together with 204 of the Penal Code. Section 203 of the Penal Code provides:

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

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 explained, as 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.”

The first element is death and cause of death. PW5 testified that she conducted postmortem on the bodies of all the 7 victims of the fire. She noted that the bodied were burned beyond recognition and their identification was circumstantial. All the bodies had 100% total body surface burns with charring from open flame burns, which was the cause of death.
The second element is to prove that the accused committed the unlawful act, in this case, setting the house on fire. PW1, PW2, PW3, PW4, PW8, PW9, PW10, PW11, PW12, PW14 and PW17 were all at the scene. They all stated that they did not see the accused that day, either at the scene or walking away from it. PW1 stated that the accused was her husband but they had separated. That the accused sent her some threatening text messages on the day of the incident but she did not think much of it until she was informed that the deceased’s house was burning. That it was then that she reported the threats to the police.
PW19 stated that he investigated the alleged conflict between PW16 and one of the deceased persons but he could not find anything substantial. However, when PW1 reported the threats by the accused, he found an angle to work with. He concluded that given the proximity of the deceased’s house from PW1’s house, he believed that the accused mistakenly set the wrong house on fire but he was targeting PW1 as he had threatened. PW19 referred to the digital forensic report which showed the text messages that the accused sent to PW1 and some of them were:

“hiyo kibanda mumejenga nitaichoma usiku na petrol nivile hunijui” (loosely translates to: I will burn down that shack you have built with petrol at night, you do not know me).

“kwanza naweza kuja leo usiku” (loosely translates to: I might even come tonight).

“vitu zangu utarudisha zote kumbe unafikiria ni mchezo utajua hujui mimi boaz wanja utanijua sasa labda petrol wafunge kenya” (loosely translates to: you will return all my things and if you think it is a joke, I will show you who Boaz is, unless they lock up all the petrol in Kenya.)

According to the digital forensic report, the messages were sent in close succession on the morning of 1^st October 2022. The same night, the deceased’s house was set ablaze and they all burned to death. This calls for examination of circumstantial evidence. In examining circumstantial evidence, it is necessary that the court does so cautiously to find a strong chain of evidence before an inference of guilt can be made. The Court of Appeal has pronounced itself on this subject in the case of Chiragu & another v Republic (Criminal Appeal 104 of 2018) [2021] KECA 342 (KLR) where it stated:

“Thus, there was no direct evidence linking the appellants to the death of the deceased. The prosecution case on this aspect therefore hinged on circumstantial evidence. In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, this Court had this to say on circumstantial evidence: “However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: ‘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 of 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.’”

Further, the conditions for the application of circumstantial evidence in order to sustain a conviction in any criminal trial have been laid down in several authorities of this court. Suffice to mention Abanga alias Onyango v. Republic CR. App NO. 32 of 1990(UR) in which this court held as follows:

“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards 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 probability the crime was committed by the accused and none else.”

And in Sawe v. Republic [2003] KLR 364, the Court of Appeal amplified on the above thus: “In order to justify on circumstantial evidence, the inference of guilt, 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 remain with the prosecution. It is a burden which never shift to the party accused.”

The house of the deceased and that of PW1 were about 600 meters apart, being relatively close to each other. The accused threatened PW1 and her mother’s lives literally a few hours before the fire incident. In my view, it is not a coincidence that the accused hurled death threats to PW1 who was the deceased’s close neighbor, a few hours before the deceased’s house burned down. While none of the prosecution witnesses actually saw the accused setting the deceased’s house on fire, his threats to the deceased’s neighbor, who is PW1 speak clearly to his intention to start a fire that night. Further, I do note the precise details in the text messages as to how the accused threatened to burn down PW1’s house, using petrol as an accelerant. From this, I also think that it is not a coincidence that PW13 found petrol in the samples collected from around the scene, which petrol was the accelerant used to burn the house down. The accused had told this court to acquit him because he cannot be placed at the scene on that night, and in his defense, he stated that he was in Nairobi. His brother, DW2 said that indeed the accused was at home with him.
The accused alibi defense should also be considered alongside all the other evidence wholesomely. These were the sentiments of the court in the case of Victor Mwendwa Mulinge vs. Republic (2014) eKLR where the Court of Appeal stated the following on the issue of alibi:-

“It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution, see also Karanja v. Republic (1983) KLR 501 where the court held that in a proper case a trial court may, in testing a defence of alibi and in weighing it with all other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.”

PW19 testified that it was not possible to determine the accused’s location on the night of the incident since his known phone numbers were switched off. The accused stated that he returned from work at 2pm and DW2 returned at 6pm and that they stayed in the house that night. From this defense, it is not possible to account for the accused’s whereabouts that night since the fire that killed the deceased persons was said to have started at around 4am. Given the distance between Nairobi and Runyenjes, and the fact that the accused’s whereabouts cannot be sufficiently accounted for, I find critical doubts in the accused’s alibi defense.
The accused also said on cross-examination that him and PW1 used to threaten each other and that there was nothing unusual about the threats he sent her that day. To this court, the timing of these death threats and the precision with which the accused promised to execute, does not seem like a joke, especially given that 7 people ended up dead in the manner described by the accused. In fact, I am persuaded by the narrative by PW19 that the accused had meant to torch PW1’s house but he ended up at the deceased’s house by mistake. That being said, it is my view that the circumstantial evidence in this case is so strong that the same cannot be ignored as it puts the accused at the center of the offence, either by himself or through other parties.
The next issue is to establish whether from the evidence, the accused bore malice aforethought. 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. In the Ogelo v Republic [2004] 2KLR 14 the appellant in this case chased the deceased and another. He caught up with the deceased and stabbed him with a knife on the chest. The deceased died of the stab wounds. The court held interalia that by dint of section 206 (1) an intention to cause death or grievous harm malice aforethought is deemed to have been established by evidence presented by the prosecution. Malice aforethought can also be inferred from the manner of killing. See the case of Ernest Bwire Abanga Onyango v Republic [1990] Cr. Appeal No. 32 of 1990. The principle here as enunciated under section 206 and the authorities is the fact of establishing by evidence that the accused conceived the criminal mind before converting that in the mind into acts of omission to commit the murder.

The 7 deceased persons in this case were burned beyond recognition. They all died of 100% total surface burns. PW13 established that the fire was started by petrol as the accelerant. It is my view that when the fire was lit on that house, the intention was to end the lives of the occupants therein. Again, I infer malice from the text messages sent to PW1 by the accused describing how he would burn her house with petrol, preferably on the same night after he sent the messages.
The accused person intended to kill PW1 as he had firmly and repeatedly threatened to do so. However, when he put his threats to actions, the result was the death of 7 innocent lives, among them minors of tender ages. This is known as transferred malice. In the case of Peter Kiambi Muriuki v Republic [2013] KECA 452 (KLR), the court of Appeal held:

“What is the law on transferred malice? Where a person intends to commit a particular crime and brings about the elements which constitute that crime, he may be convicted notwithstanding that the crime takes effect in a manner which was unintended or unforeseen. The intent and the act must coincide. Under the doctrine of transferred malice, where a defendant fires a gun intending to kill X, but misses and instead kills Y, he will not be able to escape liability for the murder of Y simply because it was his intention to kill X.” (see also the case of R v. Latimer (1886) 17 QBD 359)

The lives of the deceased persons were cut short prematurely by the acts of the accused. It is embittering to see three generations wiped away in the same incident through a selfish criminal act that could have been avoided.
Therefore, I find that the prosecution has proved the offence against the accused person beyond reasonable doubt. This court finds him guilty of seven (7) counts of murder contrary to section 203 of the Penal Code, and hereby convicts him accordingly.
It is so ordered.

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