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JudgmentThe Republic VS DIONESIO KINYUA NJOKA21 min read

The Republic VS DIONESIO KINYUA NJOKA

High Court at Embu High Court · · Lucy Njuguna


  1. The accused faces the charge of murder contrary to Section 203 as read together with Section 204 of the Penal Code. Particulars of the charge are that on 20th August 2023 as Isako Trading Centre in Mbeere South sub-county within Embu County, the accused murdered James Mugambi Paul. Upon arraignment, he pleaded not guilty and a plea of not guilty was duly entered before the matter proceeded to full hearing.
  2. PW1 was Dr. Joseph Thuo, a psychiatrist, who stated that he carried out a mental assessment on the accused person. He concluded that the accused person did not have any mental illness and is fit to stand trial. He produced the mental assessment report.
  3. PW2 was Caroline Muthoni Muriuki who stated that the deceased was her nephew. She stated that on the day of the incident, she went with the deceased to a club called Jerusalem where they stayed until 9PM and then they left to go to club relax which is owned by the accused. That as they were drinking, she was not sitting with the deceased but she heard him and the accused insulting each other and the deceased told the accused ‘wewe ni kivisi’ which statement provoked a fight between them and the deceased was thrown out of the club. That she went to the place where the deceased had fallen when he was pushed by the accused and when she asked the accused to help sit him up, the accused dragged the deceased by the hand, further away from the club.
  4. That she stayed there with the deceased for a while before she called her brother Joseph Kithaka and she explained to him what had happened. She stated that when she asked the deceased to accompany her home, he refused and asked her to leave him with her leso, which she did and she noticed that he had injuries on his head. That the following day, her brother called her to help take the deceased to hospital but she was unavailable. Later on, she was informed that the deceased had died. On cross-examination, she stated that by the time they went to the accused’s bar, they were already drunk and they did not sit together because he regarded the deceased as his son. That she heard the altercation between the accused and the deceased.
  5. She stated that there was blood at the place where the deceased had fallen and inside the club where the 2 were fighting from. That the accused is the one who dragged the deceased to the club’s veranda where she left the deceased at around 10PM. That outside the club it was just the 3 of them and that she took time before calling her brother because she did not know how serious the injuries were. That she thought the deceased would be able to walk home since he was talking. That she did not report the incident to the police and she did not know if the deceased was found by her brother.
  6. PW3 was Joseph Kithaka who stated that on 21st August 2023, he received a phone call from PW2 at around 5:30AM informing him that the deceased had been assaulted by the accused. That he went to the scene where he found the deceased lying down and when he asked him what had happened, he told him that the accused had beaten him. That the accused was inside a pick- up and when he asked him, he denied the allegations. He stated that he passed and went to the petrol station and when he returned, he found the accused preparing to take the deceased to hospital and when they asked him to help, he (PW3) refused.
  7. That the assistant chief went to the scene and told them to take the deceased to hospital through the police station and they did so, ending up at Embu Level 5 Hospital since the private hospital they went to, refused to admit the deceased. It was his testimony that he stayed the whole night with the deceased and went back home on 23rd August 2023. That the accused asked to speak to him and he admitted that he, indeed, was in a fight with the deceased and he was willing to assist with money to settle the hospital bill but he never gave the money. That on 24th August 2023, the mortuary attendant called to inform him that the deceased had died and the body of the deceased was lying at the mortuary.
  8. On cross-examination, he stated that both the deceased and PW2 told him that the accused had beaten the deceased. That when he arrived at the scene, he found the deceased lying outside the bar and he had bleeding injuries on his head. That after he saw the deceased person, he was shocked at the state of his injuries.  He went to the petrol station to fuel his motorcycle. He did not know who authorized the accused person to put the deceased in the pick-up and that the accused gave him money for x-ray required by the hospital. He stated that he was the one who reported the matter to the police
  9. PW4 was P.C. David Karanja of Mutuobare Police Post who stated that the accused went to the station to report that he was the owner of Relax bar which he closed at 11PM on 20th August 2023 and when he opened at 7AM the next morning, the deceased was lying there bleeding profusely. That he advised him to take the deceased to hospital but as he was leaving, PW3 brought the deceased to the station claiming that the accused had assaulted the deceased with a rod at the named bar. That the deceased had bruises and clotted blood on the head and more fresh blood was oozing from his wounds. He stated that the matter was urgent and so he hired a motor cycle and told PW3 to take the deceased to hospital.
  10. That they went to a private hospital where first aid was done before they were referred to Embu Level 5 Hospital. That he visited the scene in the company of Sgt. Simba where they found and photographed drops of blood inside the club, along the corridor and outside. That the accused person was taken to the police station but was released on cash bail of Kshs.30,000/= because the complainant was still in hospital. That on 24th August 2023, they were informed by the area sub-chief that the deceased had died while undergoing treatment at Embu Level 5 Hospital. That he proceeded back to the scene in the company of 5 colleagues and apprehended the accused person in connection with the death of the deceased. On cross-examination, he stated that when he visited the scene, the deceased was not there. That the people who took the deceased to the station said that they had found him lying on the veranda outside the bar. That it was the accused person who reported the incident first.
  11. PW5 was Dr. Rosemary Wangari Kamau, a pathologist at Embu Level 5 Hospital who stated that she conducted an autopsy on the body of the deceased. She observed that there were several injuries on the head, bruises on the right hand, some blood on the stomach and injury on the liver. That there were fractures on the skull and blood in the brain. She formed the opinion that the cause of death was severe head injury due to blunt force trauma which was consistent with assault. She produced the postmortem report as evidence. On cross-examination, she stated that she could not tell the age of the injuries since the body was embalmed and there was medical intervention. That the deceased had multiple injuries on the head and on the arm.
  12. PW6 was John Musila Paul, the deceased’s elder brother. He stated that he identified the body of the deceased for purposes of postmortem. That he was informed of the death of the deceased by PW3
  13. PW7 was Sgt. Stephen Simba of Mutuobare Police Post stated that he was working on 21st August 2023 when the accused reported that he had found somebody lying unconscious outside his bar. That while the accused’s report was being recorded, he received a call from the area assistant chief who informed him that there was an incident of serious assault where the accused was a suspect but had gone to the station to report otherwise. That they proceeded to the crime scene and they found that the deceased had already been taken to hospital using the accused’s father’s motor vehicle.
  14. He noted that inside the bar, there was blood spilled everywhere inside, along the corridor and outside, an indication of a fight and they secured the scene. That they followed the deceased to the hospital and they arrested the accused who was released on cash bail. He stated that he received a phone call on 24th August 2023 informing him that the deceased had died and they re-arrested the accused and charged him with murder. On cross-examination, he stated that the accused was the first person to report the incident and by the time they arrived at the scene, the deceased had already been taken to hospital. That it is the people who took him to hospital that showed the police where they found him lying.
  15. PW8 was Cpl. Joseph Ngari of DCI Mbeere North who stated that he was assigned to investigate an incident of assault which turned into murder. That since the accused had already been arrested, he presented him before a magistrate for custodial orders and then investigated the matter. That from the investigation, he found that the deceased had gone to the accused’s bar in the company of PW2 and a fight ensued between him and the accused. That in the process of fighting, the accused hit the deceased with a metal rod from a broken chair and then dragged him outside the bar.
  16. That the deceased was attended to by PW3, his uncle and the matter was reported to the police. That the deceased was taken to a nearby dispensary where he received first aid and then proceed to Embu Level 5 Hospital where he died while undergoing treatment. He stated that a postmortem was conducted to establish the cause of death and that he escorted the accused person for a mental assessment. That he sought the opinion of the ODPP who recommended that the accused person be charged with the offence of murder. That no-exhibit was recovered from the scene and no photographs were taken because the matter was initially reported as assault. Upon cross-examination, he stated that deceased was reported to have gone drinking with his aunt at Jerusalem bar and then they went to Relax bar which was about 50 meters away. That the metal bar used to hit the deceased was not recovered as an exhibit.
  17. After the close of the prosecution’s case, the court found that the accused person had a case to answer and was placed on his defense.
  18. DW1, the accused person, stated that on 20th August 2023, he worked on his father’s project until 6PM when he went to his bar establishment namely Relax. That some 2 people entered the bar and one of them was the deceased. That there were no female customers in the bar on that day. That the 2 men sat near the entrance and one of them ordered a drink which he served but the deceased did not make any order. That a quarrel ensured between them and the deceased was demanding for money from the other man and so he decided to escort them out of the bar but he denied that he pushed them out. He stated that after he sent them away, they went to another bar and he returned to his bar where he stayed until 11PM when he closed and went home. That by then, the deceased was not anywhere near the bar.
  19. He stated that he woke up the next morning at 6AM and went to his father’s home to continue with the work he had been doing the previous day and while on the way, he saw someone lying outside his bar. That he was unbothered because it was not unusual to find people lying there after indulging the previous night. That he joined the crowd that had gathered and he discovered it was the man who had caused trouble at his bar the previous night and had been sent away. That PW3 arrived at the scene but he was unwilling to take the deceased to hospital but he later changed his mind and took the deceased to hospital. That he decided to report the incident at the police station and while on the way back, he met with his father’s pick-up carrying the deceased to hospital since he was unable to sit on a motor cycle.
  20. That he was arrested in connection with the death of the deceased. That PW3 later went to see him at his bar and asked for Kshs.12,300/= for the deceased’s treatment and he sent the money to him. He denied killing the deceased and he stated that he has nothing to do with that death. On cross-examination, he stated that he did not know the person who was in the company of the deceased the previous night but they stayed in his bar for about 10 minutes and they left between 10:30PM and 11PM. That after he escorted them out of his club, he did not see them again and he recognized the deceased lying outside his bar from the previous night. That he does not know who authorized the driver to carry the deceased in the pick-up. That he told the police that he had seen the accused with another person the previous night.
  21. DW2 was Elvis Mulandi Kathua who stated that he was selling miraa in the accused’s bar when the deceased walked in with another man who ordered a drink. That while that man was drinking, the deceased started quarrelling with him because he had refused to buy him alcohol. That the accused escorted them outside the bar and returned in the company of another customer. He stated that they left the bar at 11PM and on the way out they did not see the deceased or the man in whose company he was. That the following day, he found the deceased lying a few meters from the accused’s bar and he recognized him from the previous night. On cross-examination, he stated that the accused allowed him to be selling miraa in his bar and that he was there when the incident happened.
  22. DW3 was Boniface Kiaroki stated that he arrived at the accused’s bar at around 10:30PM and found him telling some 2 people to get out because they were making noise. That he did not know where those 2 men went because at 11PM they left the bar. That the following day, he found people gathered outside the bar discussing how to take someone to hospital and he recognized the man as the one the accused was sending out of his bar. On cross-examination, he stated that he did not know why the accused was removing the 2 men from the bar or what they had done.
  23. After the close of the defense case, the parties filed their written submissions. 
  24. The prosecution relied on the provisions of section 203 of the Penal Code and the case of Anthony Ndegwa Ngari v. Republic (2014) eKLR where the elements of the offence of murder were discussed. It was its argument that the death of the deceased is inexcusable according to Article 26 of the Constitution and the case of Guzambizi Wesonga v. Republic (1948) 15 EACA 63. It stated that the testimony of PW2 places the accused at the scene committing the offence. It urged the court to disregard the defense testimony, stating that the same does not in any way displace the prosecution’s case. That, in any event, the accused only brought the issue of a third party too late in the day such that the possibility could not be interrogated. On its argument on malice aforethought, it relied on section 206 of the Penal Code and the case of Joseph Kimani Njau v. Republic (2014) eKLR. It urged that the nature of injuries inflicted on the deceased were intended to kill him and they point towards malice aforethought. It urged the court to convict the accused.
  25. The accused person submitted that the prosecution has failed to prove its case beyond reasonable doubt and he relied on the case of Anthony Ndegwa Ngari v. Republic (2014) eKLR where the court discussed the elements of the offence of murder. He argued that indeed PW5 had established the cause of death but the only witness that can identify the accused as the assailant is PW2. He urged that there is great risk in relying on the testimony of a single witness as was warned in the case of Paul Etole & Another v. Republic (2001) eKLR as cited in the case of Leonard Kinyua v. Republic (2012) eKLR.
  26. He also relied on the cases of Mwangi & Another v. Republic (2004) 2KLR 32, Republic v. Itweka Wahiti (2020) eKLR, Ahamad Abolifathi Mohammed & Another v. Republic (2018) eKLR and Abanga alias Onyango v. Republic Cr. App. No 32 of 1990. It was his argument that the evidence is largely circumstantial and that it does not form a strong chain as required. He stated that the element of malice aforethought cannot be established from the evidence adduced and he relied on the cases of Republic v. Andrew Mueche Omwenga (2009) eKLR and Ouma v. Republic (1986) eKLR. He urged the court to acquit him since the evidence is not sufficient to sustain a conviction
  27. The issue for determination is whether the prosecution has proved the offence of murder beyond reasonable doubt.
  28. 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 under sections 203 as read together with 204 of the Penal Code. Section 203 of the Penal Code provides as follows:

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

  1. In the case of Republic v W.O.O. [2020] eKLR (Migori High Court Criminal Appeal No. 26 of 2017) the elements of murder were 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.”

  1. PW5 established the cause of death as severe head injury due to blunt force trauma which was consistent with assault. This settles the first element of the offence. The next thing is to establish that the accused person was indeed at the scene and committed the unlawful act that resulted in the death of the deceased. PW2 testified that she was in the company of the deceased at the accused person’s bar when an altercation ensued. She stated that she was not sitting with the deceased, who was her nephew but she could see him from where she was. That the accused and the deceased hurled insults at one another and then they started fighting. That in the process, the accused, who is the bar owner threw the deceased outside the bar and he fell down. That the accused later held the deceased by his hand and dragged him further outside the bar and onto the veranda.
  2. PW2 is the only prosecution eye-witness. In his defense, the accused person testified and he called 2 other witnesses. In his own testimony, the accused stated that the deceased walked into his bar in the company of another man and that there were no female customers that night in his bar. That the deceased began quarrelling with his companion over some money owed to him and when they became too noisy, he resolved to escort them out of his bar. He stated that after he removed the deceased and his companion from the bar, he returned and continued serving his customers until 11PM.
  3. DW2 stated that DW1 actually escorted the deceased outside his bar that night and they did not see him again even when they were leaving at 11PM. According to him, the deceased and his companion were unruly and noisy and so the accused, being the bar owner chose to send them out. All the defense witnesses spoke of the deceased walking into the bar with a male companion and not a female one. That they did not see the deceased again that night but in the morning, they learned that the man that was lying outside the accused’s bar was the deceased, whom the accused had sent out of his establishment the previous night.
  4. From these testimonies and apart from the evidence of PW2, there is no other direct evidence beyond reasonable doubt to prove that the accused indeed caused the death of the deceased. Therefore, it is prudent to look at circumstantial evidence at this point.  From the testimony of PW2, DW1, DW2 and DW3, the accused person was indeed at the Relax bar which he owned and there was an altercation between him and the deceased that night. However, all the defense witnesses stated that there were no female customers in the bar that night and that the deceased was in the company of a man that none of them had seen before.
  5. When a court resort to examine circumstantial evidence, it must caution itself that the circumstantial evidence forms a strong chain of evidence as was stated in the Court of Appeal case of Chiragu & another v Republic (Criminal Appeal 104 of 2018) [2021] KECA 342 (KLR). In the same case, the court discussed the doctrine of ‘last seen’ which means that the person last seen with the deceased is responsible for his death, especially if the time between when they were last seen and the time he died co-relates. This superior court relied on the following jurisprudence; in the case of  Moses Jua v. The State (2007) LPELR-CA/IL/42/2006, the Nigerian court, while considering the ‘last seen alive with’ doctrine held:

“Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, the court is justified in drawing the inference that the accused killed the deceased.”

  1. In yet another Nigerian case considering the same doctrine, in 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.”

  1. Further, in the 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.”

  1. Being thus guided, the testimonies of PW2 and all the defense witnesses indeed placed the accused person at the scene which is his bar. The common factor in these testimonies is some sort of altercation between the accused and the deceased, which ended in the accused escorting/throwing the deceased out of his bar. DW1 stated that after he closed his bar that night, he went home and the next morning, he ignored the man lying outside his bar since it was not an unusual sight to him to see an overindulgent client lying at the same veranda.
  2. However, I find it fascinating that PW4, PW7 and PW8 stated that the accused was the first person to report about the incident but they later learned that he was a suspect. PW3 stated that he received money from the accused to cover a part of the deceased’s treatment before he died. DW1, the accused also stated as much, even though he was not allowed to produce his M-Pesa statement as he intended to. In the eyes of this court, the accused person’s interaction with the deceased during the altercation that night at his bar, ended up with the deceased sustaining injuries and later his death while undergoing treatment. Between the time that the deceased was last seen being tackled by the accused and the time he was found with injuries that led to his death, co-relates and the accused did not provide a justifiable explanation.
  3. The final element to be proven is malice aforethought at provided under section 206 of the Penal Code which provides:

“Malice Aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances-

(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 of any person who has committed or attempted to commit a felony.”

  1. Malice can be inferred from the nature of injuries inflicted, the murder weapon, among other factors (see the case of Republic v. Stephen Sila Wambua Matheka (2017) eKLR). In this case, the deceased died as a result of head injuries while undergoing treatment. PW8 stated that no murder weapon was recovered despite PW2 having stated that the accused hit the deceased with a metal bar. From the circumstantial evidence considered herein, the altercation between the accused and the deceased is what sparked the assault. Further, the accused was the first person to report the incident at the police station and he was among the people who concerned themselves to take the deceased to the hospital when they saw him. This is not conduct of someone who premeditated the assault and subsequent death of the deceased. It is my view that the element of malice aforethought was not proved beyond reasonable doubt.
  2. In the circumstances, I find that the prosecution has proved the lesser offence of manslaughter contrary to section 202 as read together with section 205 of the Penal Code against the accused, beyond reasonable doubt.
  3. I therefore substitute the charge of murder with manslaughter contrary to section 202 read together with section 205 of the Penal Code and convict the accused accordingly.
  4. It is so ordered.

Delivered, dated and signed at Embu this 28th day of August, 2024.


    The Republic VS DIONESIO KINYUA NJOKA The Republic VS DIONESIO KINYUA NJOKA