REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KIAMBU
CRIMINAL CASE NO. E028 OF 2019
REPUBLIC………………………………………..…………..……PROSECUTOR
VERSUS
DANIEL NYAMWEYA KEYA…….………………………....………. ACCUSED
JUDGMENT
A. INTRODUCTION
1. The accused person was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63) of the Laws of Kenya . The particulars of the offence were that on or about the 9 th and 10 th day of June 2019 at Riana Boma Chabe village in Kisii south sub county within Kisii County murdered an infant ELIJAH AMBUGA KEYA .
2. The accused person was arraigned before court and took plea on 4 th July 2019. He denied the charge faced and pleaded not guilty. The case proceeded to full trial with the prosecution calling six (6) witnesses in support of their case.
(B) PROSECUTION CASE
3. PW1 Grace Njoki Wangamati stated that she was a teacher at Gachoka Primary School, and were neighbours with the accused person herein, who was also employed as a watchman at the same school but Secondary section. She recalled that on 09.07.2019, at about 7.30am, as she was preparing to go to work, the accused persons children Purity and Faith came to her house and told her that they had been left alone as both parents and their baby brother had taken an abrupt trip to Kisii. She asked them to call their brothers Emmanuel and Shadrack and proceeded to take breakfast together. The accused and his wife disappeared for three days, during which period she had to feed their children and eventually when they came back, their daughters Purity and Faith again informed her of the same and observed that they had not come back with their baby brother, who was about four months old at that time.
4. While at school over lunch time, the two girls come back to her again and informed her that their parent’s had informed them that they would move houses that night. She got concern and informed the area chief and the accused landlady of this development. The area chief followed up on the information passed as they were suspicious of what might have happened to the infant child, and on the same afternoon arrested both the accused and his wife, who later confessed to the chief that the accused had murdered his child and buried him at their home in Kisii. Under cross examination she reiterated her earlier evidence of what transpired and confirmed that she did not witness the murder but the same had been established through meticulous investigations.
5. PW2 Lillian Wangoi Kareku, the Assistant chief of Kimunyu area, testified and stated that on 13.06.2019 at about 8.00am, she got a call from the accused landlady, called Mukami, and she informed her that she had a tenant who had gone to his ancestral home in Kisii accompanied by his wife and infant child, but they had come back without the said child. Later on, during the day, PW1 also called her passing the same information. Alarmed by this development, she got two policemen from Kamunyu Police post and proceeded to the accused house here she found the accused wife, who she recognized as a person known to her as she had previously reported an assault incident occasion on her by her husband.
6. She proceeded to interrogate the accused wife, and she confessed that the accused had suspected her of infidelity and believed that the infant was not his son. She further stated that they had left the child with her mother-in-law, to enable her get time to look for work, but she could tell that his wife was lying and was afraid of speaking in the presence of her husband. At this point, she decided to further interrogate the accused wife and left the accused outside the house with the two policemen and went talk with her, inside their house. It was at this point that she broke down and confessed that once in Kisii, the accused person had taken the child and drowned him at the local stream. He thereafter placed the child inside a bag and buried him next to an abandoned pit latrine within their home.
7. The accused had also threatened her with death should she fail to cover up the said incident. PW2 thereafter arrested both of them and had them booked at Kimunyu Police post, where again she interrogated the accused person, and he confessed that he had killed the said child because he was not his biological child and that even though he had wronged the state, his conscience was clear that as per his culture, he had done the right thing as he could not bring up a child who was not his biological son. Under cross examination she reiterated her evidence and affirmed that she did not coerce the accused and his wife to make the said confession.
8. PW3 Dr Brian Ayara, a consultant pathologist based at Kisii teaching and referral hospital, stated that on 18.06.2019 he carried out a post mortem examination on the body Elijah Abumbuka, an infant, estimated to be less than two years old. Body had markedly decomposed, but he established that the deceased head was deformed due to skull fracture on all sides of the head, which had exposed the brain. The neck too was fractured and he formed the opinion that cause of death was due to blunt force injury on the head with contribution to the said death by strangulation as the child’s neck had bruises and was hyper mobile. He produced the post mortem report as Exhibit 1.
9. PW4 PC Robert Mwenda testified that previously he was stationed at Kimunya police post and recalled that on the 13.06.2019 at about 3.30pm, PW2 had called him and requested for his presence to resolve an issue. They accompanied her to the accused residence at Gachoka village and found him and his wife (PW1). They interrogated them on the whereabout of their child and initially they insisted that the child had remained in Kisii with his grandmother, but upon further interrogation, the accused wife (Leonida Nyakirani) had broken down and confessed to the murder that the accused had perpetrated. They proceeded to arrest the accused person and his wife and later handed over the case to DCI officers based Gatundu South police station.
10. PW5 PC Gilbert Chisindayi recalled that in 2019 he was based at DCI office Kisii South and on 17.06.2017 they had received communication from their counter parts based at Gatundu south, concerning a murder of a child, which had occurred within their jurisdiction. He accompanied his boss Chief Inspector Langat, and the CSI officers to Riana area within Suneka, where the accused home was situated and retrieved the infants body wrapped in a cement sack, which had been thrown in a pit latrine. The said body had started to decompose, but had open injuries visible on the skull. They processed the scene and took the body to Kisii referral and teaching hospital for preservation. Under cross examination PW5 confirmed that the deceased body was recovered at the paternal grandparents’ home.
11. PW6 Sergent Johnson Wambulwa formerly of DCI Gatundu south, investigated this crime and recapped the evidence as narrated by PW2 and PW4. On 13.06.2019, they rearrested the accused from Kimunyu police station and booked him at Gatundu South police station. He interviewed the accused wife and she had confessed to the accused having murdered their three-month-old son and dropped his body into a pit latrine because he believed that the child was not his biological son. Based on this information they called their counter parts at Gensonse police station, who went to the scene of crime and retrieved the child’s body. Upon completing investigation, they charged the accused person before court with the offence of murder.
12. The prosecution closed their case at that point and the accused was placed on his defence and opted to give sworn evidence.
C. DEFENCE CASE
13. The accused gave sworn evidence and stated that prior to his arrest, he worked as a watchman at Gachoka Secondary school and recalled that on 09.06.2019, they had traveled to Kisii, where he wanted to help his father to resolve a land dispute that was festering. His wife had insisted on accompanying him to Kisii as she too, wanted to go visit her parents. She had also insisted that she wanted their four-month-old son to be left under the care of her mother to enable her get a job and contribute to household sustenance.
14. Once they reached Kisii town, they parted ways as his wife left for their home in west Kitutu, and went along with their son, while he proceeded to Suneka. On the following day at about 3.00pm, his wife came back without the baby and informed him that she had left the child with her mother as earlier advised and he did not have a problem with this arrangement. On 11.06.2019 they travelled back to Nairobi and on 13.06.2019 was arrested by PW2, accompanied by two policemen on suspicion that their infant child was missing.
15. He denied killing his minor son and insisted that his wife and lied to the police to falsely implicate him in the murder. He also clarified that to his knowledge they did not have a pit latrine within their home and had discovered that the latrine referred to was about 300m away from their home. He reiterated that he did not murder his child, had no reason to do so and thus urged this court to return a verdict of not guilty.
D. DETERMINATION
16. I have considered the evidence on record and submissions filed by both parties, and the question that arises before this court is whether the prosecution has proved beyond reasonable doubt that the accused person herein participated in the murder of an infant known as Elijah Ambugu Keya the deceased herein.
17. Section 203 of the Penal Code defines the offence of murder as follows:
“ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
18. The Court of Appeal at Nyeri in Criminal Appeal No. 352 of 2012 Anthony Ndegwa Ngari vs. Republic [2014] eKLR , summed up the elements of the offence of murder as follows: -
a. the death of the deceased and its cause;
b. that the accused committed the unlawful act which caused the death of the deceased; and
c. that the accused had malice aforethought.
19. In Joseph Kimani Njau vs Republic (2014) eKLR , the Court of Appeal in concurring with an earlier finding of that Court (but differently constituted) in Nzuki vs Republic (1993) KLR 171 , held as follows: -
Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused; -
i.The intention to cause death;
ii.The intention to cause grievous bodily harm;
iii.Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.
It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed The mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into a crime of murder. (See Hyman vs. Director of Public Prosecutions (1975) AC 55 ”.
(a) Standard and Burden of proof .
20. The cardinal principle in criminal law, as articulated in Woolmington v DPP (1935) AC 462 , remains that the prosecution bears the burden of proving guilt beyond reasonable doubt. This principle takes on heightened significance in a capital offense where the stakes could not be higher. The court in the said case stated as follows:
“ 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 prisoner’s guilt, subject (to the qualification involving the defence of insanity and to any statutory exception). If at the end of and on the whole of the case, there is a 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.”
21. On the other hand, the burden of proof always rests with the prosecution/state. It is a constitutional imperative under Article 50 (2) (a) that an accused person has a right to presumption of innocence until the contrary is proven beyond reasonable doubt.
22. I will now proceed to interrogate each issue.
(i) The death of the deceased and its cause.
23. It is common ground that the infant Elijah Ambuga Keya , died on the night of 9 th and 10 th of June 2029 as a result of fatal injuries sustained from an Assault. This was confirmed Dr Brian Ayera (PW3), the pathologist who conducted the post mortem on 18.06.2019. He confirmed that the cause of death was due to blunt force injury to the head contributed to also by manual strangulation, but was not in a position to confirm which occurred first.
24. This court therefore finds as a fact that the deceased died as a result of the said extensive injuries sustained as enumerated above.
(ii) Whether it has been proved that the accused committed the unlawful act which caused the death of the deceased :
25. PW1 was informed that the accused, his wife and infant child had travelled to Kisii abruptly and as a good Samaritan took care of their four children for three days, while they were away. When they came back the same children informed PW1 that they had not sited their infant brother and that plans were aloof to move house on the same night. PW1 called the accused landlady and the area chief (PW2), who swiftly intervened and arrested the accused and his wife. The said wife Leonida Nyakirani then confessed to PW2, PW4 and PW6 about the gruesome murder and a physical search of the accused parent’s home led to discovery and recovery of the deceased body.
26. When placed on his defence, the accused person denied committing the murder and insisted that his wife and gone with the child to their home at West Kitutu and joined him on the next day at Suneka, having left the infant under the care of her mother (his mother-in-law), as she wanted to be able to look for work and help in sustaining her family. They travelled back to Nairobi was surprised by the turn of events. He insisted that no recovery was made within their home in suneka and urged the court to acquit him of the charge faced.
27. From the evidence adduced, there is no direct evidence incriminating the accused person to the crime and the confession made by his wife to is inadmissible for not being in compliance of section 25A of the Evidence Act. Be that as it may, the circumstantial evidence gathered laid a strong basis to support an inference of his involvement in the said crime and where the said evidence meets the legal threshold, it may well be a basis for finding the accused person culpable of the offence charged.
28. In Neema Mwandoro Ndurya v. R [2008] eKLR , the Court of Appeal cited with approval the case of R vs. Taylor Weaver and Donovan (1928) 21 Cr. App. R 20 where the court stated that:
“Circumstantial evidence is often said to be the best evidence. It is the evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”
29. The threshold to be established if a conviction is to be based on circumstantial evidence was also discussed In Sawe –vs- Rep [2003] KLR 364, where the Court of Appeal held .
“ 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 hypotheses than that of his guilt; Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on ; The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.”
30. Also in Ahamad Abolfathi Mohammed and Another v Republic [2018] e KLR , the same court further stated as follows, where reliance was placed 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.”
68. In summation, of the aforestated case law, it is thus required that before any conviction based on circumstantial evidence is reached, the said evidence adduced must be adequate to prove the case to the required standard of beyond reasonable doubt. In that regard, the court will admit circumstantial evidence if it meets the following criteria;
a) Evidence that is logically connected to the case.
b) The evidence must prove or disapprove a fact relevant to the case.
c) The evidence should be reliable, and trustworthy with minimal chance of falsehood.
d) Its potential to influence a decision should not outweigh the probative value.
e) The evidence should not be hearsay .
31. The accused person admitted to going to Kisii with his wife and infant child and came back to his residence at Gatundu without the said child. Investigation established that the said infant had been murdered and his body damped in a pit latrine within the accused ancestral home at Suneka. PW 5 confirmed as much, which discredits the accused assertion that the said child was left with his mother-in-law. He was amongst the last person seen with the said child and therefore could be held responsible for the death unless he provided a cogent explanation to extricate himself from the accusation of having had a hand in his death.
32. This is based on the doctrine of last seen alive , which prescribes that the person last seen with the deceased before his/her death could be held responsible for his/her death unless he/she could provide any explanation as to what may have occurred that contributed to the said death.
33. In the Nigerian case of Stephen Haruna v The Attorney-General of The Federation (2010) 1 iLAW/CA/A/86/C/2009 the Court opined thus:
" The doctrine of "last seen" means that the law presumes that the person last seen with a deceased bears full responsibility for his death . Thus where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstance. In the absence of a satisfactory explanation, a trial court and an appellate court will be justified in drawing the inference that the accused person killed the deceased.”
34. Similarly, in the Indian case of Ramreddy Rajeshkhanna Reddy & Another v State of Andhra Pradesh, JT 2006 (4) SC 16 the court held that:
“Even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small, that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.”
35. The above proposition is supported by. Sections 111(1) and 119 of the Evidence Act both of which provide as follows:
“111. (1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact, especially within the knowledge of such person is upon him:
Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecuting, whether in cross-examination or otherwise, that such circumstances or facts exist:
Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.”
“119. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
36. The explanation offered by the accused in defence was escapist and without doubt consisted of outright lies. His averment that the infant was left with his mother-in-law and/or that the deceased child’s body was not recovered from their home was disapproved by the prosecution evidence adduced. Further it was established by his own children that they intended to move houses on the very day they came back, which clearly established a pattern of a person who knew what he did and planned to escape from his known surrounding to a place where he could not face questions relating to the whereabouts of his infant child. The information gathered by the police were also accurate and lead to the discovery of the deceased body. The accused act of planning his escape and change location also points to his guilt.
37. when all the evidence presented is considered, the veracity of the prosecution evidence forms a complete chain of events that unerringly points at the accused as the guilty party who had a hand in the murder of “ Elijah Ambuga Keya” and leads to the inescapable conclusion that within all human probability, the murder which occurred was without doubt committed by him.
(iii) Malice Aforethought
38. Having found that the prosecution has proved actus reus , the other issue for determination is whether malice aforethought can be inferred from the prosecution's evidence presented. The offence of murder is complete when “ malice aforethought ” is established. Section 206 of the Penal Code, provides that:
“(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) An intent to commit a felony;
(d) An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
39. It is sufficient to say that the mental element required by section 206 of the Penal Code can be equated to broad guidelines set out in the case of Tubere s/o Ochen vs. Republic [1945] 12 EACA 63:
“ The weapon in possession of the accused while carrying out the intention, the manner in which it was used to strike the human being whether one off blow or violent multiple blows, the conduct of the accused in fleeing from the scene afterwards, the permanency or dangerous severity of the bodily harm and that cumulatively the death of the deceased must ensue from the bodily harm intentionally inflicted.”
131. In assessing the weight to be given to intention as an element of murder, the relevant circumstances must be considered as to whether the appellant foresaw the real or substantial risk and the consequences of targeting the part of the body that may result in the fatal injuries suffered by the deceased.
132. A similar statement of Law was made in the persuasive authority of S. vs. Sigwahla 1967 4 SA 566 in which the court stated:
“The expression intention to kill does not in Law, necessarily require that the accused should have applied his will to compassing the death of the deceased. It is sufficient if the accused subjectively foresaw the possibility of his act causing death and was reckless of such a result. This form of intention is known as a dolus eventualis as distinct from dolus directus.”
133. The deceased a child barely four months old was strangled and had his head smashed, before being placed in a cement back and was damped inside a pit latrine. From the above analysis of the injuries inflicted, it is clear that the accused did not have any other intention other than to inflict grievous harm upon the deceased. It is my finding that the accused person knew or ought to have known that his action would result in death, and it can be safely inferred from the nature of injury inflicted on the deceased that the accused person's action was premeditated.
55. In the circumstances I am persuaded beyond reasonable doubt that the prosecution has proved their case and specifically the presence of malice aforethought on the part of the accused too has been proved.
G. DISPOSITION
56. Accordingly, it is my finding and holding that the prosecution has proved all the ingredients of the Information of murder against the subject herein, DANIEL NYAMWEYA KEYA beyond reasonable doubt and convicted him accordingly under section 215 of the Criminal Procedure Code.
57. Sentencing will await the filing of a pre-sentence report by the probation and aftercare services department, within the next 21 days.
58. It is so Ordered.
Judgement, signed at KIAMBU this …30th…….day of JULY , 2026.
FRANCIS RAYOLA OLEL
JUDGE
Judgement read and delivered in open court on this……30th…………..… day of JULY 2026.
In the presence of:-
……………………………………..Accused
………………………………….For O.D.P.P
………………………………….Court Assistant
KIAMBU HCCR MURDER E028 OF 20192
IN THE HIGH COURT OF KENYA AT KIAMBU
CRIMINAL CASE NO. E028 OF 2019
REPUBLIC………………………………………..…………..……PROSECUTOR
VERSUS
DANIEL NYAMWEYA KEYA…….………………………....………. ACCUSED
JUDGMENT
A. INTRODUCTION
1. The accused person was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63) of the Laws of Kenya . The particulars of the offence were that on or about the 9 th and 10 th day of June 2019 at Riana Boma Chabe village in Kisii south sub county within Kisii County murdered an infant ELIJAH AMBUGA KEYA .
2. The accused person was arraigned before court and took plea on 4 th July 2019. He denied the charge faced and pleaded not guilty. The case proceeded to full trial with the prosecution calling six (6) witnesses in support of their case.
(B) PROSECUTION CASE
3. PW1 Grace Njoki Wangamati stated that she was a teacher at Gachoka Primary School, and were neighbours with the accused person herein, who was also employed as a watchman at the same school but Secondary section. She recalled that on 09.07.2019, at about 7.30am, as she was preparing to go to work, the accused persons children Purity and Faith came to her house and told her that they had been left alone as both parents and their baby brother had taken an abrupt trip to Kisii. She asked them to call their brothers Emmanuel and Shadrack and proceeded to take breakfast together. The accused and his wife disappeared for three days, during which period she had to feed their children and eventually when they came back, their daughters Purity and Faith again informed her of the same and observed that they had not come back with their baby brother, who was about four months old at that time.
4. While at school over lunch time, the two girls come back to her again and informed her that their parent’s had informed them that they would move houses that night. She got concern and informed the area chief and the accused landlady of this development. The area chief followed up on the information passed as they were suspicious of what might have happened to the infant child, and on the same afternoon arrested both the accused and his wife, who later confessed to the chief that the accused had murdered his child and buried him at their home in Kisii. Under cross examination she reiterated her earlier evidence of what transpired and confirmed that she did not witness the murder but the same had been established through meticulous investigations.
5. PW2 Lillian Wangoi Kareku, the Assistant chief of Kimunyu area, testified and stated that on 13.06.2019 at about 8.00am, she got a call from the accused landlady, called Mukami, and she informed her that she had a tenant who had gone to his ancestral home in Kisii accompanied by his wife and infant child, but they had come back without the said child. Later on, during the day, PW1 also called her passing the same information. Alarmed by this development, she got two policemen from Kamunyu Police post and proceeded to the accused house here she found the accused wife, who she recognized as a person known to her as she had previously reported an assault incident occasion on her by her husband.
6. She proceeded to interrogate the accused wife, and she confessed that the accused had suspected her of infidelity and believed that the infant was not his son. She further stated that they had left the child with her mother-in-law, to enable her get time to look for work, but she could tell that his wife was lying and was afraid of speaking in the presence of her husband. At this point, she decided to further interrogate the accused wife and left the accused outside the house with the two policemen and went talk with her, inside their house. It was at this point that she broke down and confessed that once in Kisii, the accused person had taken the child and drowned him at the local stream. He thereafter placed the child inside a bag and buried him next to an abandoned pit latrine within their home.
7. The accused had also threatened her with death should she fail to cover up the said incident. PW2 thereafter arrested both of them and had them booked at Kimunyu Police post, where again she interrogated the accused person, and he confessed that he had killed the said child because he was not his biological child and that even though he had wronged the state, his conscience was clear that as per his culture, he had done the right thing as he could not bring up a child who was not his biological son. Under cross examination she reiterated her evidence and affirmed that she did not coerce the accused and his wife to make the said confession.
8. PW3 Dr Brian Ayara, a consultant pathologist based at Kisii teaching and referral hospital, stated that on 18.06.2019 he carried out a post mortem examination on the body Elijah Abumbuka, an infant, estimated to be less than two years old. Body had markedly decomposed, but he established that the deceased head was deformed due to skull fracture on all sides of the head, which had exposed the brain. The neck too was fractured and he formed the opinion that cause of death was due to blunt force injury on the head with contribution to the said death by strangulation as the child’s neck had bruises and was hyper mobile. He produced the post mortem report as Exhibit 1.
9. PW4 PC Robert Mwenda testified that previously he was stationed at Kimunya police post and recalled that on the 13.06.2019 at about 3.30pm, PW2 had called him and requested for his presence to resolve an issue. They accompanied her to the accused residence at Gachoka village and found him and his wife (PW1). They interrogated them on the whereabout of their child and initially they insisted that the child had remained in Kisii with his grandmother, but upon further interrogation, the accused wife (Leonida Nyakirani) had broken down and confessed to the murder that the accused had perpetrated. They proceeded to arrest the accused person and his wife and later handed over the case to DCI officers based Gatundu South police station.
10. PW5 PC Gilbert Chisindayi recalled that in 2019 he was based at DCI office Kisii South and on 17.06.2017 they had received communication from their counter parts based at Gatundu south, concerning a murder of a child, which had occurred within their jurisdiction. He accompanied his boss Chief Inspector Langat, and the CSI officers to Riana area within Suneka, where the accused home was situated and retrieved the infants body wrapped in a cement sack, which had been thrown in a pit latrine. The said body had started to decompose, but had open injuries visible on the skull. They processed the scene and took the body to Kisii referral and teaching hospital for preservation. Under cross examination PW5 confirmed that the deceased body was recovered at the paternal grandparents’ home.
11. PW6 Sergent Johnson Wambulwa formerly of DCI Gatundu south, investigated this crime and recapped the evidence as narrated by PW2 and PW4. On 13.06.2019, they rearrested the accused from Kimunyu police station and booked him at Gatundu South police station. He interviewed the accused wife and she had confessed to the accused having murdered their three-month-old son and dropped his body into a pit latrine because he believed that the child was not his biological son. Based on this information they called their counter parts at Gensonse police station, who went to the scene of crime and retrieved the child’s body. Upon completing investigation, they charged the accused person before court with the offence of murder.
12. The prosecution closed their case at that point and the accused was placed on his defence and opted to give sworn evidence.
C. DEFENCE CASE
13. The accused gave sworn evidence and stated that prior to his arrest, he worked as a watchman at Gachoka Secondary school and recalled that on 09.06.2019, they had traveled to Kisii, where he wanted to help his father to resolve a land dispute that was festering. His wife had insisted on accompanying him to Kisii as she too, wanted to go visit her parents. She had also insisted that she wanted their four-month-old son to be left under the care of her mother to enable her get a job and contribute to household sustenance.
14. Once they reached Kisii town, they parted ways as his wife left for their home in west Kitutu, and went along with their son, while he proceeded to Suneka. On the following day at about 3.00pm, his wife came back without the baby and informed him that she had left the child with her mother as earlier advised and he did not have a problem with this arrangement. On 11.06.2019 they travelled back to Nairobi and on 13.06.2019 was arrested by PW2, accompanied by two policemen on suspicion that their infant child was missing.
15. He denied killing his minor son and insisted that his wife and lied to the police to falsely implicate him in the murder. He also clarified that to his knowledge they did not have a pit latrine within their home and had discovered that the latrine referred to was about 300m away from their home. He reiterated that he did not murder his child, had no reason to do so and thus urged this court to return a verdict of not guilty.
D. DETERMINATION
16. I have considered the evidence on record and submissions filed by both parties, and the question that arises before this court is whether the prosecution has proved beyond reasonable doubt that the accused person herein participated in the murder of an infant known as Elijah Ambugu Keya the deceased herein.
17. Section 203 of the Penal Code defines the offence of murder as follows:
“ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
18. The Court of Appeal at Nyeri in Criminal Appeal No. 352 of 2012 Anthony Ndegwa Ngari vs. Republic [2014] eKLR , summed up the elements of the offence of murder as follows: -
a. the death of the deceased and its cause;
b. that the accused committed the unlawful act which caused the death of the deceased; and
c. that the accused had malice aforethought.
19. In Joseph Kimani Njau vs Republic (2014) eKLR , the Court of Appeal in concurring with an earlier finding of that Court (but differently constituted) in Nzuki vs Republic (1993) KLR 171 , held as follows: -
Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused; -
i.The intention to cause death;
ii.The intention to cause grievous bodily harm;
iii.Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.
It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed The mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into a crime of murder. (See Hyman vs. Director of Public Prosecutions (1975) AC 55 ”.
(a) Standard and Burden of proof .
20. The cardinal principle in criminal law, as articulated in Woolmington v DPP (1935) AC 462 , remains that the prosecution bears the burden of proving guilt beyond reasonable doubt. This principle takes on heightened significance in a capital offense where the stakes could not be higher. The court in the said case stated as follows:
“ 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 prisoner’s guilt, subject (to the qualification involving the defence of insanity and to any statutory exception). If at the end of and on the whole of the case, there is a 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.”
21. On the other hand, the burden of proof always rests with the prosecution/state. It is a constitutional imperative under Article 50 (2) (a) that an accused person has a right to presumption of innocence until the contrary is proven beyond reasonable doubt.
22. I will now proceed to interrogate each issue.
(i) The death of the deceased and its cause.
23. It is common ground that the infant Elijah Ambuga Keya , died on the night of 9 th and 10 th of June 2029 as a result of fatal injuries sustained from an Assault. This was confirmed Dr Brian Ayera (PW3), the pathologist who conducted the post mortem on 18.06.2019. He confirmed that the cause of death was due to blunt force injury to the head contributed to also by manual strangulation, but was not in a position to confirm which occurred first.
24. This court therefore finds as a fact that the deceased died as a result of the said extensive injuries sustained as enumerated above.
(ii) Whether it has been proved that the accused committed the unlawful act which caused the death of the deceased :
25. PW1 was informed that the accused, his wife and infant child had travelled to Kisii abruptly and as a good Samaritan took care of their four children for three days, while they were away. When they came back the same children informed PW1 that they had not sited their infant brother and that plans were aloof to move house on the same night. PW1 called the accused landlady and the area chief (PW2), who swiftly intervened and arrested the accused and his wife. The said wife Leonida Nyakirani then confessed to PW2, PW4 and PW6 about the gruesome murder and a physical search of the accused parent’s home led to discovery and recovery of the deceased body.
26. When placed on his defence, the accused person denied committing the murder and insisted that his wife and gone with the child to their home at West Kitutu and joined him on the next day at Suneka, having left the infant under the care of her mother (his mother-in-law), as she wanted to be able to look for work and help in sustaining her family. They travelled back to Nairobi was surprised by the turn of events. He insisted that no recovery was made within their home in suneka and urged the court to acquit him of the charge faced.
27. From the evidence adduced, there is no direct evidence incriminating the accused person to the crime and the confession made by his wife to is inadmissible for not being in compliance of section 25A of the Evidence Act. Be that as it may, the circumstantial evidence gathered laid a strong basis to support an inference of his involvement in the said crime and where the said evidence meets the legal threshold, it may well be a basis for finding the accused person culpable of the offence charged.
28. In Neema Mwandoro Ndurya v. R [2008] eKLR , the Court of Appeal cited with approval the case of R vs. Taylor Weaver and Donovan (1928) 21 Cr. App. R 20 where the court stated that:
“Circumstantial evidence is often said to be the best evidence. It is the evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”
29. The threshold to be established if a conviction is to be based on circumstantial evidence was also discussed In Sawe –vs- Rep [2003] KLR 364, where the Court of Appeal held .
“ 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 hypotheses than that of his guilt; Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on ; The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.”
30. Also in Ahamad Abolfathi Mohammed and Another v Republic [2018] e KLR , the same court further stated as follows, where reliance was placed 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.”
68. In summation, of the aforestated case law, it is thus required that before any conviction based on circumstantial evidence is reached, the said evidence adduced must be adequate to prove the case to the required standard of beyond reasonable doubt. In that regard, the court will admit circumstantial evidence if it meets the following criteria;
a) Evidence that is logically connected to the case.
b) The evidence must prove or disapprove a fact relevant to the case.
c) The evidence should be reliable, and trustworthy with minimal chance of falsehood.
d) Its potential to influence a decision should not outweigh the probative value.
e) The evidence should not be hearsay .
31. The accused person admitted to going to Kisii with his wife and infant child and came back to his residence at Gatundu without the said child. Investigation established that the said infant had been murdered and his body damped in a pit latrine within the accused ancestral home at Suneka. PW 5 confirmed as much, which discredits the accused assertion that the said child was left with his mother-in-law. He was amongst the last person seen with the said child and therefore could be held responsible for the death unless he provided a cogent explanation to extricate himself from the accusation of having had a hand in his death.
32. This is based on the doctrine of last seen alive , which prescribes that the person last seen with the deceased before his/her death could be held responsible for his/her death unless he/she could provide any explanation as to what may have occurred that contributed to the said death.
33. In the Nigerian case of Stephen Haruna v The Attorney-General of The Federation (2010) 1 iLAW/CA/A/86/C/2009 the Court opined thus:
" The doctrine of "last seen" means that the law presumes that the person last seen with a deceased bears full responsibility for his death . Thus where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstance. In the absence of a satisfactory explanation, a trial court and an appellate court will be justified in drawing the inference that the accused person killed the deceased.”
34. Similarly, in the Indian case of Ramreddy Rajeshkhanna Reddy & Another v State of Andhra Pradesh, JT 2006 (4) SC 16 the court held that:
“Even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small, that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.”
35. The above proposition is supported by. Sections 111(1) and 119 of the Evidence Act both of which provide as follows:
“111. (1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact, especially within the knowledge of such person is upon him:
Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecuting, whether in cross-examination or otherwise, that such circumstances or facts exist:
Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.”
“119. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
36. The explanation offered by the accused in defence was escapist and without doubt consisted of outright lies. His averment that the infant was left with his mother-in-law and/or that the deceased child’s body was not recovered from their home was disapproved by the prosecution evidence adduced. Further it was established by his own children that they intended to move houses on the very day they came back, which clearly established a pattern of a person who knew what he did and planned to escape from his known surrounding to a place where he could not face questions relating to the whereabouts of his infant child. The information gathered by the police were also accurate and lead to the discovery of the deceased body. The accused act of planning his escape and change location also points to his guilt.
37. when all the evidence presented is considered, the veracity of the prosecution evidence forms a complete chain of events that unerringly points at the accused as the guilty party who had a hand in the murder of “ Elijah Ambuga Keya” and leads to the inescapable conclusion that within all human probability, the murder which occurred was without doubt committed by him.
(iii) Malice Aforethought
38. Having found that the prosecution has proved actus reus , the other issue for determination is whether malice aforethought can be inferred from the prosecution's evidence presented. The offence of murder is complete when “ malice aforethought ” is established. Section 206 of the Penal Code, provides that:
“(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) An intent to commit a felony;
(d) An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
39. It is sufficient to say that the mental element required by section 206 of the Penal Code can be equated to broad guidelines set out in the case of Tubere s/o Ochen vs. Republic [1945] 12 EACA 63:
“ The weapon in possession of the accused while carrying out the intention, the manner in which it was used to strike the human being whether one off blow or violent multiple blows, the conduct of the accused in fleeing from the scene afterwards, the permanency or dangerous severity of the bodily harm and that cumulatively the death of the deceased must ensue from the bodily harm intentionally inflicted.”
131. In assessing the weight to be given to intention as an element of murder, the relevant circumstances must be considered as to whether the appellant foresaw the real or substantial risk and the consequences of targeting the part of the body that may result in the fatal injuries suffered by the deceased.
132. A similar statement of Law was made in the persuasive authority of S. vs. Sigwahla 1967 4 SA 566 in which the court stated:
“The expression intention to kill does not in Law, necessarily require that the accused should have applied his will to compassing the death of the deceased. It is sufficient if the accused subjectively foresaw the possibility of his act causing death and was reckless of such a result. This form of intention is known as a dolus eventualis as distinct from dolus directus.”
133. The deceased a child barely four months old was strangled and had his head smashed, before being placed in a cement back and was damped inside a pit latrine. From the above analysis of the injuries inflicted, it is clear that the accused did not have any other intention other than to inflict grievous harm upon the deceased. It is my finding that the accused person knew or ought to have known that his action would result in death, and it can be safely inferred from the nature of injury inflicted on the deceased that the accused person's action was premeditated.
55. In the circumstances I am persuaded beyond reasonable doubt that the prosecution has proved their case and specifically the presence of malice aforethought on the part of the accused too has been proved.
G. DISPOSITION
56. Accordingly, it is my finding and holding that the prosecution has proved all the ingredients of the Information of murder against the subject herein, DANIEL NYAMWEYA KEYA beyond reasonable doubt and convicted him accordingly under section 215 of the Criminal Procedure Code.
57. Sentencing will await the filing of a pre-sentence report by the probation and aftercare services department, within the next 21 days.
58. It is so Ordered.
Judgement, signed at KIAMBU this …30th…….day of JULY , 2026.
FRANCIS RAYOLA OLEL
JUDGE
Judgement read and delivered in open court on this……30th…………..… day of JULY 2026.
In the presence of:-
……………………………………..Accused
………………………………….For O.D.P.P
………………………………….Court Assistant
KIAMBU HCCR MURDER E028 OF 20192