REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KIAMBU
CRIMINAL CASE NO. E005 OF 2022
REPUBLIC ……………………………..……….………….…..PROSECUTION
=VERSUS=
EDWIN OBWORO MOKUA
Alias SAMMY Alias SAMUEL………………….….…………………ACCUSED
JUDGEMENT
A. INTRODUCTION
1. The accused, EDWIN OBWORO MOKUA alias SAMMY alias SAMUEL is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63) Laws of Kenya . The particulars were that on the 6 th January, 2022 at Thika section 2 area in Thika West Sub-county within area within Kiambu county, Murdered one LUCY WANJIRU NJEREHU , alias NJAMBI.
2. The gist of the prosecution's evidence was that the accused and deceased were in a relationship and upon falling out, the accused person proceeded to fatally stab the deceased within her own house.
B. EVIDENCE
3. PW1 Jane Wanjiku Chege, confirmed that the deceased was her 1 st born child and it was within her knowledge that she had been in relationship with the accused person, and they had resided together for about 3 years. On the material evening she was at her home in Nyeri, when she first received an SMS from the caretaker of the building where her daughter resided and he informed her that her daughter was in danger and subsequently, he called her and informed her daughter had been stabbed and was rushed to Thika level 5 hospital for emergency treatment.
4. Together with her husband, they rushed to Thika Level 5 hospital and arrived at the said hospital at about 11.00pm, only to find that her daughter was no more. she observed that the deceased had sustained several knife stab wounds to her neck, near the mouth and one tooth was also broken. She further emphasized that the accused person was a person well known to her since he had been to her home on several occasion. Also in December 2021, the couple had come to her home for Christmas, accompanied by a pastor to help them mediate over their differences. as the deceased had expressed her desire to break the said relationship.
5. Under cross examination, PW1 reiterated that the accused person had come to her home severally over the two-year period he was in a relationship with her daughter and he was a person who was well known to her. The couple initially resided within Section 2 of Thika town, moved together to Section 9 and after they fell part, her daughter had moved back to Section 2, where the fatal incident had occurred. The couple had also been blessed with a child, who unfortunately died. She further confirmed that the reconciliation efforts at her home did not bear fruits, as her daughter was adamant that she did not want to be in a relationship with the accused person any longer.
6. PW1, further clarified that on the material evening, she had talked to her daughter on phone while she was enroute from her Mpesa shop until she arrived at her house. During the said conversation, her daughter had informed her that she was with the accused person in his motor vehicle, and that he was still insisting that they should get back together, but she was adamant and unwilling to relent on her stand to end the said relationship. She ended the call when she arrived at her house and excused herself to go to the toilet and soon thereafter was called on the different turn of events.
7. PW2 Dennis Kiiru, recalled that on the material evening he was at home – Sunrise Twin apartment at about 7.30pm, when he heard piercing screams and rushed to check what the issue was. He found the deceased lying on the 1 st floor staircase landing, and was bleeding profusely. Together with other neighbours they carried her downstairs, into one of the neighbour’s car and rushed her to Thika level 5 hospital. He observed that the deceased had suffered several stab wounds on her back, stomach and also had a big laceration on her cheek. He also confirmed that prior to the said incident he did not know both the deceased and the accused person.
8. PW3 Martha Njenga, also confirmed that she was a resident of Sunrise Twin Apartment, and that on the material evening, she was on her way home, on a motorcycle when they encountered a Toyota Probox being driven away at high speed and her rider had to give way to avoid being knocked. When they reached her apartment gate, she found her neighbours had gathered outside and informed her that one of her neighbour had been stabbed on the 1 st floor landing and was bleeding profusely. Being a medic, she dashed to help her and together with PW2 they carried her downstairs, into a neighbours car and rushed her to hospital.
9. While enroute she asked the deceased for an emergency contact and she gave them PW1’s phone number and. She further told them that she had been stabbed by a person known as “Sam” and gave his phone number 0721326777. When they reached the hospital, the doctor established that the patient had 7 – 8 stab wounds and was in dire need of blood. She dashed to the laboratory to assist in obtaining the same and left the doctors handling the emergency situation as she dashed to the police station to report the said incident. When she came back to the hospital, she found that the deceased had unfortunately passed on. She later learnt that the deceased was known as lucy, and further confirmed that she did not know the accused person, as he was not a person he had seen before.
10. Under cross examination, she confirmed that as she approached her apartment, she met a Toyota Probox speeding away therefrom, but did not know/see its occupants. Immediately, when she arrived at home, she met a crowd on the 1 st floor landing where the deceased was lying on the ground stabbed and organized for her to be covered and had her rushed to hospital. In the process of rushing the deceased to hospital, she had specifically told them that it was, “Sam”, who had stabbed her and also gave them two phone numbers of her mother and the said Sam.
11. PW4 John Kamondo Njoroge, confirmed that he was the caretaker of Sunrise apartments at the material time and recalled that on the material evening of 06.01.2022, at about 7.00pm he was at his place of work, but had stepped out to go buy medicine. Shortly thereafter, one of the tenants called, Steve, called him and informed him that one of the tenants had been stabbed. He dashed back and went to the deceased house and found her door open, with blood spilt all over the floor. He also saw a broken knife on the floor and confirmed that the deceased stayed alone and had taken up residence in October 2021. He had also not seen the accused visit the deceased over the said period of time.
12. From the apartment, he followed the deceased to Thika level 5 hospital, where she had been rushed for emergency treatment and was informed by one, Janet that the deceased had been stabbed severally and had passed on while getting treatment. He later recorded his statement with the police. Under cross examination reiterated his evidence and confirmed that he found the deceased writhing in pain and asked for water to drink. The deceased also did not mention to him who had stabbed her
13. PW5 PC Samson Kokaro, of DCI- Thika police station recalled that on 07.01.2022, he reported to work and was assigned to investigate an incident which had been reported as an assault, but which had turned to murder since the victim had passed on. They went to the murder scene and later went to Chuka to look for the accused person but found him on the run. They pursued him to Kisii, where he had escaped to his maternal home and eventually arrested him on 04.02.2022, after being identified by his maternal uncle. He confirmed that investigations had established that the accused was the last person seen with the deceased and was the person alleged to have stabbed the deceased and thus had to explain himself.
14. PW6 Dr John Mathaiya, testified that on 11.01.2022, he did receive a request from DCI, Thika police station to undertake a post mortem examination on the deceased, who had been stabbed by her boyfriend. The deceased had suffered multiple stab wounds on the right side of her lips, had a laceration on her neck region measuring 3.5cm, deep stab wound on the right collar bone penetrating deep into the chest measuring 6.5 cm by 2cm, deep stab wound on her left chest measuring 3.7cm by 1.5cm on the posterior aspect and a further stab wound measuring 2.5cm by 1.5cm on the left side of her back.
15. The lacerations on the front chest went deep into her chest cavity had had perforated her lungs and chest caused her to lose a lot of blood. The deceased had also suffered defensive injuries to her arm. Upon conclusion of the said process, he did establish that the cause of death was due to excessive loss of blood due to neck and chest injury caused by multiple sharp force trauma. He also extracted the deceased blood sample and tissue, which was forwarded to the government analyst for further examination.
16. PW7 Inspector Christine Naomi Njeri testified that she previously stationed at DCI- Thika west and was the investigating officer of this murder incident. On 06.01.2022, she was on duty when they got information about a murder incident that had occurred at Sunrise Twin apartments, within Thika town, section 2. They proceeded to the scene of crime and established that the deceased was a tenant therein and had been stabbed by her boyfriend/husband, who was the accused person herein. They had interrogated one Edwin Wekesa, the night guard, at the said apartment and he had confirmed to them that at around 6.00pm of the material evening, the accused person had come with the deceased at around 6.00pm while driving his Toyota Probox registration Number KDE 078V, which they later established was registered under the name of the appellant and Cannon motors limited.
17. After dropping the deceased, the accused had engaged the said watchman in small talk and sent him Kshs 300 through Mpesa, for his belated charismas before proceeding to join the deceased at her house. At about 7.00pm he heard screams emanating from the deceased apartment on the 2 nd floor and while ascending the staircase to go help her, he met the accused descending the said steps while holding a small knife and was running away. When the said watchman and other neighbours reached the incident scene, they found the deceased lying on the ground and had been stabbed severally all over her body.
18. PW7 further testified that they had interrogated to PW2 and PW3 and they had also narrated to them what had transpired. In particular, the deceased, whilst being rushed to hospital had told PW3, that it was “Sammy”, who had stabbed her and provided his telephone number (0721326777), which phone number they established from the service provide that it did belong to the accused person. At the scene of crime, they noted that there had been a struggle, as household items were pushed all over and had recovered a blood stained Maasai knife, white and pink blood stained duvet, white cap, marron half jacket and also took blood swipes for the said scene.
19. On 11.01.2022, she did attend the post mortem examination and it was established that the deceased had been stabbed 8 times on the face, neck, chest and on her back. They started to trace the accused person and established that he had run away to Kisii county. They tracked his calls and established that he used to talk a lot with his uncle known as Tom, who was also interrogated and he helped to trace the accused motor vehicle Toyota Probox registration Number KDE 078V, which was hidden at the home of Julius Alloys Ochogo. Eventually the accused was tracked and arrested at Mosocho area in Kisii and upon completing of the investigations was charged with the offence before court.
20. PW7 further confirmed that the accused person consented to having his DNA taken for comparison purposes and the government analyst had returned a finding that the blood stains on the knife and white Cap did not belong to the deceased. She proceeded to produce all her exhibits into evidence, which included the NTSA car search, Safaricom extract showing ownership of phone number 0721326777 and its Mpesa statement from 06.01.2022 to 19.01.2022, the recovered items from the crime scene, DNA consent form and Government Analyst report.
21. Under cross examination PW7 confirmed that she did not see any CCTV camera at the apartment but affirmed that their investigations had confirmed that the two were romantically involved. Further the apartment watchman Edwin Wekesa had placed the accused at the scene of crime, as he had seen him entering the said apartment and also seen him rushing out immediately after the said incident, while holding a knife. The deceased had also made a dying declaration to PW3 enroute to the hospital, which evidence when looked at in totality, without doubt implicated the accused person as the guilty party who had inflicted fatal injuries upon the deceased. The accused person had also taken off immediately after committing the crime and that also signified his guilt.
22. The prosecution closed their case at that point and the accused person was placed on his defence and opted to give sworn evidence. He confirmed that he previously resided at Thika town, but currently stayed at Ngong and was in Security service industry. He confirmed that the deceased was his business partner but denied being romantically involved with her. On charismas day, he had gone to see his watchmen stationed at Kagumo Technical college, and since the deceased was at their home, which was about 3km away, she opted to invite him for lunch an he honoured the said request and later in the evening went back to his family.
23. On 5 th and 6 th January 2022, he went to Chuka to visit his family and confirmed that at no point during the said period, did he visit sunrise twin apartments, nor had he rent any apartment therein and certainly did not know that the deceased resided therein. Then on 07.01.2022 he travelled to Mosocho in Kisii to take care of his agricultural business interest and was later arrested by 4 DCI officer on 05.02.2022 and was brought to Thika police station, where he was informed that he was being investigated over the murder of the deceased. He was taken to Thika level 5 hospital, where his blood sample was taken for DNA purposes and later, he was charged with the offence before court.
24. The accused person insisted that he was innocent and that he did not kill the deceased. He thus urged the court to discharge him of the charge faced. Under cross examination he confirmed that on 25.12.2021 he went to the deceased family rural home for lunch, he was the owner of Toyota Probox registration Number KDE 078V and also that phone number 0721326777 was registered under his name. He further insisted that 0n 5 th and 6 th January 2022 he was with his family in Chuka and did not visit the deceased at her apartment on the said date.
25. He further clarified that he knew Edwin Wekesa, as one of his employee/guards and had sent him Kshs 300 on the material evening, but he had done so from Chuka and not while in Thika. The said Edwin Wekesa too was not a guard as Sunrise Apartment as alleged by PW7. He also urged the court to disregard the dying confession made to PW3 on the basis that it was untruthful and also clarified that he had travelled to Kisii for business and was not hiding.
26. DW2 Purity Muthoni confirmed that the accused person was her husband of 14 years and that they were blessed with 2 children. She recalled that on 05.01.2022 she was at home in Chuka, while the accused person in Thika, where they run their security firm business and later that evening travelled back to chuka, and arrived home at about 10.00pm. On the following day, the accused person did not leave home, but eventually travelled to Kisii on 07.01.2026. She further clarified that the accused person and the deceased were not married, nor had she met the said deceased before her untimely death.
27. Under cross examination, DW2 denied that they had separated with the accused person in 2016 and/or that they were just co-parenting. She also confirmed that though she had not met the deceased before, they had spoken on phone and were planning to meet.
28. The accused person at that stage closed his case.
C. DETERMINATION
29. I have considered the evidence adduced by both parties and submissions on record, and the question that arises before this court is whether the prosecution has proved beyond reasonable doubt that the accused person herein had a hand in the murder of LUCY WANJIRU NJEREHU alias NJAMBI, the deceased herein.
30. 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. Arising from the foregoing, the ingredients of murder were explained in the case of Roba Galma Wario vs. Republic [2015] eKLR, where the court held that:
“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant, and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”
20. Also In Mombasa High Court Case Number 42 of 2009 between Republic vs. Daniel Musyoka Muasya, Paul Mutua Musya, and Walter Otieno Ojwang, the court expressed itself as hereunder:
“ The prosecution, therefore, is required to tender sufficient proof of the following three crucial ingredients in order to establish a charge of murder:
a) Proof of the fact as well as the cause of the death of the deceased persons.
b) Proof that the death of the deceased resulted from an unlawful act or omission on the part of the accused persons.
c) Proof that such unlawful act or omission was committed with malice aforethought.”
21. It is also trite law that all criminal offences require proof beyond reasonable doubt. Lord Denning in Miller vs. Ministry of Pensions (1947) 2 All ER, 372 stated as follows ;
“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.”
22. In the case of H.L Woolmington Vs DPP {1935} A.C. 462 at pp 481 Viscount Sankey LC did describe burden of proof in criminal matters as;
“ 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 prisoners guilt subject to what I have already said as to the defendant’s insanity and subject also to any statutory exception. If at the end and on the whole of the case, there is 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 be acquittal. No matter what the charge or where the trial, the principal 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.
23. I will now proceed to interrogate each issue.
(i) The death of the deceased and its cause.
24. It is common ground that LUCY WANJIRU NJEREHU alias NJAMBI died on 06.01.2026 at Thika level 5 hospital, having sustained a fatal stab wound injuries which punctured her vital organs. PW4 conducted the post mortem examination and concluded that the cause of death was due to exsanguination due to severe neck and chest injuries due to multiple penetrating sharp force trauma (multiple stabs). He produced the post-mortem report dated 11.01.2022, which certified the said death.
23. This court therefore finds as a fact that the deceased died as a result of the aforestated injuries. Death and its cause was thus proved.
(ii) Whether it has been proved that the accused committed the unlawful act which caused the death of the deceased :
24. From the prosecutions evidence adduced, there was no eye witness to the murder, but PW1 did confirmed that on the material evening she talked to her daughter from the time she left her Mpesa shop until she got home. The deceased had confirmed to her that she was with the accused person in his car, as he was the one dropping her home and was still pursuing her with an intention to have them continue with their romantic relationship, but her daughter was adamant that she had had enough of the same and was not will to change her mind.
25. Shortly thereafter she was called and informed of what had transpired and dashed to Thika from Nyeri, only to find that her 1 st born daughter had passed on. PW3 a neighbour to the deceased also met a Toyota Probox being driven recklessly and at high speed, from the direction of their Apartment and when she arrived thereat was greeted with the grisly occurrence. They organized and rush the deceased to hospital and in the process the she was able to provide the phone numbers of her mother and the person who stabbed her, whom she referred to as, “Sam”.PW7 investigated the said phone number being 0721326777 and produced Exhibit 3 being an extract from Safaricom confirming that the said phone number belonged to the accused person herein. In defence the accused person too corroborated this finding and confirmed that that was his phone number.
26. PW5 and PW7 also confirmed that after the incident, the accused person had run away and they tracked him down to his maternal home in Kisii, where he was eventually arrested on 04.02.2022 and his motor vehicle registration Number KDE 078V Toyota Probox was also recovered from where it was hidden within the compound of one Julius Alloys Ochogo. It was therefore the prosecutions case that the accused person had been directly placed at the scene of crime, had the motive to harm the deceased for rejecting his advances and his running away also signified his guilt.
27. In defence, the accused person admitted to knowing the deceased and confirmed that they were business partners in his security firm, he had visited her at their home in Nyeri on charismas day, but denied being romantically involved with her. He also insisted that on 5 th and 6 th January 2022, he was with his family in Chuka and did not visit the deceased at her rented Apartmeent.DW2 also testified to corroborate this assertion.
28. For the prosecution to succeed and secure a conviction based on circumstantial evidence, the inference of guilt and the inculpatory facts must be incompatible with the innocence of the accused and incapable of any other explanation or reasonable hypotheses other than that of the accused person's guilt. In Ahamad Abolfathi Mohammed and Another v Republic [2018] e KLR , the Court of Appeal stated as follows on reliance 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.
29. The same issue was discussed in Abanga Alias Onyango vs. Rep CR. A No.32 of 1990 (UR), the Court of Appeal set out the principles to apply to determine whether the circumstantial evidence adduced in a case is sufficient to sustain a conviction. These are:
“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.”
27. 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 on 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 disprove a fact relevant to the case.
c) The evidence should be reliable, 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 .
28. Accordingly, it would be safe to conclude that circumstantial evidence may include;
a) Physical evidence, such as fingerprints or DNA, that connects the accused to the crime or scene of crime.
b) Documentary evidence, for example, documentary records and text messages that support inference of guilt.
c)Behavioral evidence includes the accused's actions that point to his guilt or involvement in the crime. Examples include running away after the offence is committed or attempting to destroy incriminating evidence.
30. Even though there was no eyewitness to the stabbing incident, PW1 evidence placed the accused as being one of the last persons to be seen with the deceased and PW3 also saw a Toyota Probox being driven away at high speed as its driver escaped from the said scene. In all probability this is the same car, which the accused used to pick the deceased from work, and was escaping from the crime scene after committing the offence. The said car was proved to belongs to the accused person and NTSA search produced as Exhibit 3 confirming the same.
31. Secondly and more convincingly, the deceased made a dying declaration to PW3 and stated clearly that it was her boyfriend “Sam/Smauel who had inflicted the vicious injuries upon her and also gave out his phone number 0721326777. Dying declaration is provided for under Section 33[a] of the Evidence Act , Cap 80 which provides as follows:
33. Statements by deceased person , e.t.c.,
when. Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases
-(a)relating to cause of death
When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of death comes into question.
32. Notwithstanding the provisions of section 33(a) of the Evidence Act Cap 80 , courts have consistently held the view that evidence of a dying declaration must be admitted with caution because firstly, the dying declaration is not subject to the test of cross-examination and secondly, circumstances leading to the death of the deceased such as acts of violence, may have occasioned him confusion and surprise so as to render his perception questionable. While it is not a rule of law that a dying declaration must be corroborated to found a conviction, nevertheless the trial court must proceed with caution and to get the necessary assurance that a conviction founded on a death declaration is indeed safe. This Court expressed itself as follows in CHOGE V. REPUBLIC [1985] KLR1 :
The general principle on which a dying declaration is admitted in evidence is that it is a declaration made in extremity when the maker is at a point of death and the mind is induced by the most powerful considerations to tell the truth. In Kenya, however the admissibility of dying declaration need not depend upon the declarant being, at the time of making it, in a hopeless expectation of eminent death. There need not be corroboration in order for a dying declaration to support a conviction but the exercise of caution is necessary in reception into evidence of such declaration as it is generally unsafe to base a conviction solely on the dying declaration of a deceased person
33. Though the deceased was fatally wounded, PW5 confirmed that she was coherent and even asked for water to drink as they carried her to the car. PW3 also did not know the accused person and had no reason to lie as against him and without doubt the said declaration was made in extremity when the deceased was at a point of death. PW1’s evidence also corroborated PW3’s evidence and she had given a vivid background to the strained relationship between the two and that it was the accused person who was last with the deceased on the material evening. It was also to be noted that immediately after the incident happened, the accused person ran way and hid at his maternal home at Mosocho- Kisii for about a month before he was tracked down and arr
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IN THE HIGH COURT OF KENYA AT KIAMBU
CRIMINAL CASE NO. E005 OF 2022
REPUBLIC ……………………………..……….………….…..PROSECUTION
=VERSUS=
EDWIN OBWORO MOKUA
Alias SAMMY Alias SAMUEL………………….….…………………ACCUSED
JUDGEMENT
A. INTRODUCTION
1. The accused, EDWIN OBWORO MOKUA alias SAMMY alias SAMUEL is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63) Laws of Kenya . The particulars were that on the 6 th January, 2022 at Thika section 2 area in Thika West Sub-county within area within Kiambu county, Murdered one LUCY WANJIRU NJEREHU , alias NJAMBI.
2. The gist of the prosecution's evidence was that the accused and deceased were in a relationship and upon falling out, the accused person proceeded to fatally stab the deceased within her own house.
B. EVIDENCE
3. PW1 Jane Wanjiku Chege, confirmed that the deceased was her 1 st born child and it was within her knowledge that she had been in relationship with the accused person, and they had resided together for about 3 years. On the material evening she was at her home in Nyeri, when she first received an SMS from the caretaker of the building where her daughter resided and he informed her that her daughter was in danger and subsequently, he called her and informed her daughter had been stabbed and was rushed to Thika level 5 hospital for emergency treatment.
4. Together with her husband, they rushed to Thika Level 5 hospital and arrived at the said hospital at about 11.00pm, only to find that her daughter was no more. she observed that the deceased had sustained several knife stab wounds to her neck, near the mouth and one tooth was also broken. She further emphasized that the accused person was a person well known to her since he had been to her home on several occasion. Also in December 2021, the couple had come to her home for Christmas, accompanied by a pastor to help them mediate over their differences. as the deceased had expressed her desire to break the said relationship.
5. Under cross examination, PW1 reiterated that the accused person had come to her home severally over the two-year period he was in a relationship with her daughter and he was a person who was well known to her. The couple initially resided within Section 2 of Thika town, moved together to Section 9 and after they fell part, her daughter had moved back to Section 2, where the fatal incident had occurred. The couple had also been blessed with a child, who unfortunately died. She further confirmed that the reconciliation efforts at her home did not bear fruits, as her daughter was adamant that she did not want to be in a relationship with the accused person any longer.
6. PW1, further clarified that on the material evening, she had talked to her daughter on phone while she was enroute from her Mpesa shop until she arrived at her house. During the said conversation, her daughter had informed her that she was with the accused person in his motor vehicle, and that he was still insisting that they should get back together, but she was adamant and unwilling to relent on her stand to end the said relationship. She ended the call when she arrived at her house and excused herself to go to the toilet and soon thereafter was called on the different turn of events.
7. PW2 Dennis Kiiru, recalled that on the material evening he was at home – Sunrise Twin apartment at about 7.30pm, when he heard piercing screams and rushed to check what the issue was. He found the deceased lying on the 1 st floor staircase landing, and was bleeding profusely. Together with other neighbours they carried her downstairs, into one of the neighbour’s car and rushed her to Thika level 5 hospital. He observed that the deceased had suffered several stab wounds on her back, stomach and also had a big laceration on her cheek. He also confirmed that prior to the said incident he did not know both the deceased and the accused person.
8. PW3 Martha Njenga, also confirmed that she was a resident of Sunrise Twin Apartment, and that on the material evening, she was on her way home, on a motorcycle when they encountered a Toyota Probox being driven away at high speed and her rider had to give way to avoid being knocked. When they reached her apartment gate, she found her neighbours had gathered outside and informed her that one of her neighbour had been stabbed on the 1 st floor landing and was bleeding profusely. Being a medic, she dashed to help her and together with PW2 they carried her downstairs, into a neighbours car and rushed her to hospital.
9. While enroute she asked the deceased for an emergency contact and she gave them PW1’s phone number and. She further told them that she had been stabbed by a person known as “Sam” and gave his phone number 0721326777. When they reached the hospital, the doctor established that the patient had 7 – 8 stab wounds and was in dire need of blood. She dashed to the laboratory to assist in obtaining the same and left the doctors handling the emergency situation as she dashed to the police station to report the said incident. When she came back to the hospital, she found that the deceased had unfortunately passed on. She later learnt that the deceased was known as lucy, and further confirmed that she did not know the accused person, as he was not a person he had seen before.
10. Under cross examination, she confirmed that as she approached her apartment, she met a Toyota Probox speeding away therefrom, but did not know/see its occupants. Immediately, when she arrived at home, she met a crowd on the 1 st floor landing where the deceased was lying on the ground stabbed and organized for her to be covered and had her rushed to hospital. In the process of rushing the deceased to hospital, she had specifically told them that it was, “Sam”, who had stabbed her and also gave them two phone numbers of her mother and the said Sam.
11. PW4 John Kamondo Njoroge, confirmed that he was the caretaker of Sunrise apartments at the material time and recalled that on the material evening of 06.01.2022, at about 7.00pm he was at his place of work, but had stepped out to go buy medicine. Shortly thereafter, one of the tenants called, Steve, called him and informed him that one of the tenants had been stabbed. He dashed back and went to the deceased house and found her door open, with blood spilt all over the floor. He also saw a broken knife on the floor and confirmed that the deceased stayed alone and had taken up residence in October 2021. He had also not seen the accused visit the deceased over the said period of time.
12. From the apartment, he followed the deceased to Thika level 5 hospital, where she had been rushed for emergency treatment and was informed by one, Janet that the deceased had been stabbed severally and had passed on while getting treatment. He later recorded his statement with the police. Under cross examination reiterated his evidence and confirmed that he found the deceased writhing in pain and asked for water to drink. The deceased also did not mention to him who had stabbed her
13. PW5 PC Samson Kokaro, of DCI- Thika police station recalled that on 07.01.2022, he reported to work and was assigned to investigate an incident which had been reported as an assault, but which had turned to murder since the victim had passed on. They went to the murder scene and later went to Chuka to look for the accused person but found him on the run. They pursued him to Kisii, where he had escaped to his maternal home and eventually arrested him on 04.02.2022, after being identified by his maternal uncle. He confirmed that investigations had established that the accused was the last person seen with the deceased and was the person alleged to have stabbed the deceased and thus had to explain himself.
14. PW6 Dr John Mathaiya, testified that on 11.01.2022, he did receive a request from DCI, Thika police station to undertake a post mortem examination on the deceased, who had been stabbed by her boyfriend. The deceased had suffered multiple stab wounds on the right side of her lips, had a laceration on her neck region measuring 3.5cm, deep stab wound on the right collar bone penetrating deep into the chest measuring 6.5 cm by 2cm, deep stab wound on her left chest measuring 3.7cm by 1.5cm on the posterior aspect and a further stab wound measuring 2.5cm by 1.5cm on the left side of her back.
15. The lacerations on the front chest went deep into her chest cavity had had perforated her lungs and chest caused her to lose a lot of blood. The deceased had also suffered defensive injuries to her arm. Upon conclusion of the said process, he did establish that the cause of death was due to excessive loss of blood due to neck and chest injury caused by multiple sharp force trauma. He also extracted the deceased blood sample and tissue, which was forwarded to the government analyst for further examination.
16. PW7 Inspector Christine Naomi Njeri testified that she previously stationed at DCI- Thika west and was the investigating officer of this murder incident. On 06.01.2022, she was on duty when they got information about a murder incident that had occurred at Sunrise Twin apartments, within Thika town, section 2. They proceeded to the scene of crime and established that the deceased was a tenant therein and had been stabbed by her boyfriend/husband, who was the accused person herein. They had interrogated one Edwin Wekesa, the night guard, at the said apartment and he had confirmed to them that at around 6.00pm of the material evening, the accused person had come with the deceased at around 6.00pm while driving his Toyota Probox registration Number KDE 078V, which they later established was registered under the name of the appellant and Cannon motors limited.
17. After dropping the deceased, the accused had engaged the said watchman in small talk and sent him Kshs 300 through Mpesa, for his belated charismas before proceeding to join the deceased at her house. At about 7.00pm he heard screams emanating from the deceased apartment on the 2 nd floor and while ascending the staircase to go help her, he met the accused descending the said steps while holding a small knife and was running away. When the said watchman and other neighbours reached the incident scene, they found the deceased lying on the ground and had been stabbed severally all over her body.
18. PW7 further testified that they had interrogated to PW2 and PW3 and they had also narrated to them what had transpired. In particular, the deceased, whilst being rushed to hospital had told PW3, that it was “Sammy”, who had stabbed her and provided his telephone number (0721326777), which phone number they established from the service provide that it did belong to the accused person. At the scene of crime, they noted that there had been a struggle, as household items were pushed all over and had recovered a blood stained Maasai knife, white and pink blood stained duvet, white cap, marron half jacket and also took blood swipes for the said scene.
19. On 11.01.2022, she did attend the post mortem examination and it was established that the deceased had been stabbed 8 times on the face, neck, chest and on her back. They started to trace the accused person and established that he had run away to Kisii county. They tracked his calls and established that he used to talk a lot with his uncle known as Tom, who was also interrogated and he helped to trace the accused motor vehicle Toyota Probox registration Number KDE 078V, which was hidden at the home of Julius Alloys Ochogo. Eventually the accused was tracked and arrested at Mosocho area in Kisii and upon completing of the investigations was charged with the offence before court.
20. PW7 further confirmed that the accused person consented to having his DNA taken for comparison purposes and the government analyst had returned a finding that the blood stains on the knife and white Cap did not belong to the deceased. She proceeded to produce all her exhibits into evidence, which included the NTSA car search, Safaricom extract showing ownership of phone number 0721326777 and its Mpesa statement from 06.01.2022 to 19.01.2022, the recovered items from the crime scene, DNA consent form and Government Analyst report.
21. Under cross examination PW7 confirmed that she did not see any CCTV camera at the apartment but affirmed that their investigations had confirmed that the two were romantically involved. Further the apartment watchman Edwin Wekesa had placed the accused at the scene of crime, as he had seen him entering the said apartment and also seen him rushing out immediately after the said incident, while holding a knife. The deceased had also made a dying declaration to PW3 enroute to the hospital, which evidence when looked at in totality, without doubt implicated the accused person as the guilty party who had inflicted fatal injuries upon the deceased. The accused person had also taken off immediately after committing the crime and that also signified his guilt.
22. The prosecution closed their case at that point and the accused person was placed on his defence and opted to give sworn evidence. He confirmed that he previously resided at Thika town, but currently stayed at Ngong and was in Security service industry. He confirmed that the deceased was his business partner but denied being romantically involved with her. On charismas day, he had gone to see his watchmen stationed at Kagumo Technical college, and since the deceased was at their home, which was about 3km away, she opted to invite him for lunch an he honoured the said request and later in the evening went back to his family.
23. On 5 th and 6 th January 2022, he went to Chuka to visit his family and confirmed that at no point during the said period, did he visit sunrise twin apartments, nor had he rent any apartment therein and certainly did not know that the deceased resided therein. Then on 07.01.2022 he travelled to Mosocho in Kisii to take care of his agricultural business interest and was later arrested by 4 DCI officer on 05.02.2022 and was brought to Thika police station, where he was informed that he was being investigated over the murder of the deceased. He was taken to Thika level 5 hospital, where his blood sample was taken for DNA purposes and later, he was charged with the offence before court.
24. The accused person insisted that he was innocent and that he did not kill the deceased. He thus urged the court to discharge him of the charge faced. Under cross examination he confirmed that on 25.12.2021 he went to the deceased family rural home for lunch, he was the owner of Toyota Probox registration Number KDE 078V and also that phone number 0721326777 was registered under his name. He further insisted that 0n 5 th and 6 th January 2022 he was with his family in Chuka and did not visit the deceased at her apartment on the said date.
25. He further clarified that he knew Edwin Wekesa, as one of his employee/guards and had sent him Kshs 300 on the material evening, but he had done so from Chuka and not while in Thika. The said Edwin Wekesa too was not a guard as Sunrise Apartment as alleged by PW7. He also urged the court to disregard the dying confession made to PW3 on the basis that it was untruthful and also clarified that he had travelled to Kisii for business and was not hiding.
26. DW2 Purity Muthoni confirmed that the accused person was her husband of 14 years and that they were blessed with 2 children. She recalled that on 05.01.2022 she was at home in Chuka, while the accused person in Thika, where they run their security firm business and later that evening travelled back to chuka, and arrived home at about 10.00pm. On the following day, the accused person did not leave home, but eventually travelled to Kisii on 07.01.2026. She further clarified that the accused person and the deceased were not married, nor had she met the said deceased before her untimely death.
27. Under cross examination, DW2 denied that they had separated with the accused person in 2016 and/or that they were just co-parenting. She also confirmed that though she had not met the deceased before, they had spoken on phone and were planning to meet.
28. The accused person at that stage closed his case.
C. DETERMINATION
29. I have considered the evidence adduced by both parties and submissions on record, and the question that arises before this court is whether the prosecution has proved beyond reasonable doubt that the accused person herein had a hand in the murder of LUCY WANJIRU NJEREHU alias NJAMBI, the deceased herein.
30. 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. Arising from the foregoing, the ingredients of murder were explained in the case of Roba Galma Wario vs. Republic [2015] eKLR, where the court held that:
“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant, and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”
20. Also In Mombasa High Court Case Number 42 of 2009 between Republic vs. Daniel Musyoka Muasya, Paul Mutua Musya, and Walter Otieno Ojwang, the court expressed itself as hereunder:
“ The prosecution, therefore, is required to tender sufficient proof of the following three crucial ingredients in order to establish a charge of murder:
a) Proof of the fact as well as the cause of the death of the deceased persons.
b) Proof that the death of the deceased resulted from an unlawful act or omission on the part of the accused persons.
c) Proof that such unlawful act or omission was committed with malice aforethought.”
21. It is also trite law that all criminal offences require proof beyond reasonable doubt. Lord Denning in Miller vs. Ministry of Pensions (1947) 2 All ER, 372 stated as follows ;
“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.”
22. In the case of H.L Woolmington Vs DPP {1935} A.C. 462 at pp 481 Viscount Sankey LC did describe burden of proof in criminal matters as;
“ 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 prisoners guilt subject to what I have already said as to the defendant’s insanity and subject also to any statutory exception. If at the end and on the whole of the case, there is 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 be acquittal. No matter what the charge or where the trial, the principal 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.
23. I will now proceed to interrogate each issue.
(i) The death of the deceased and its cause.
24. It is common ground that LUCY WANJIRU NJEREHU alias NJAMBI died on 06.01.2026 at Thika level 5 hospital, having sustained a fatal stab wound injuries which punctured her vital organs. PW4 conducted the post mortem examination and concluded that the cause of death was due to exsanguination due to severe neck and chest injuries due to multiple penetrating sharp force trauma (multiple stabs). He produced the post-mortem report dated 11.01.2022, which certified the said death.
23. This court therefore finds as a fact that the deceased died as a result of the aforestated injuries. Death and its cause was thus proved.
(ii) Whether it has been proved that the accused committed the unlawful act which caused the death of the deceased :
24. From the prosecutions evidence adduced, there was no eye witness to the murder, but PW1 did confirmed that on the material evening she talked to her daughter from the time she left her Mpesa shop until she got home. The deceased had confirmed to her that she was with the accused person in his car, as he was the one dropping her home and was still pursuing her with an intention to have them continue with their romantic relationship, but her daughter was adamant that she had had enough of the same and was not will to change her mind.
25. Shortly thereafter she was called and informed of what had transpired and dashed to Thika from Nyeri, only to find that her 1 st born daughter had passed on. PW3 a neighbour to the deceased also met a Toyota Probox being driven recklessly and at high speed, from the direction of their Apartment and when she arrived thereat was greeted with the grisly occurrence. They organized and rush the deceased to hospital and in the process the she was able to provide the phone numbers of her mother and the person who stabbed her, whom she referred to as, “Sam”.PW7 investigated the said phone number being 0721326777 and produced Exhibit 3 being an extract from Safaricom confirming that the said phone number belonged to the accused person herein. In defence the accused person too corroborated this finding and confirmed that that was his phone number.
26. PW5 and PW7 also confirmed that after the incident, the accused person had run away and they tracked him down to his maternal home in Kisii, where he was eventually arrested on 04.02.2022 and his motor vehicle registration Number KDE 078V Toyota Probox was also recovered from where it was hidden within the compound of one Julius Alloys Ochogo. It was therefore the prosecutions case that the accused person had been directly placed at the scene of crime, had the motive to harm the deceased for rejecting his advances and his running away also signified his guilt.
27. In defence, the accused person admitted to knowing the deceased and confirmed that they were business partners in his security firm, he had visited her at their home in Nyeri on charismas day, but denied being romantically involved with her. He also insisted that on 5 th and 6 th January 2022, he was with his family in Chuka and did not visit the deceased at her rented Apartmeent.DW2 also testified to corroborate this assertion.
28. For the prosecution to succeed and secure a conviction based on circumstantial evidence, the inference of guilt and the inculpatory facts must be incompatible with the innocence of the accused and incapable of any other explanation or reasonable hypotheses other than that of the accused person's guilt. In Ahamad Abolfathi Mohammed and Another v Republic [2018] e KLR , the Court of Appeal stated as follows on reliance 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.
29. The same issue was discussed in Abanga Alias Onyango vs. Rep CR. A No.32 of 1990 (UR), the Court of Appeal set out the principles to apply to determine whether the circumstantial evidence adduced in a case is sufficient to sustain a conviction. These are:
“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.”
27. 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 on 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 disprove a fact relevant to the case.
c) The evidence should be reliable, 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 .
28. Accordingly, it would be safe to conclude that circumstantial evidence may include;
a) Physical evidence, such as fingerprints or DNA, that connects the accused to the crime or scene of crime.
b) Documentary evidence, for example, documentary records and text messages that support inference of guilt.
c)Behavioral evidence includes the accused's actions that point to his guilt or involvement in the crime. Examples include running away after the offence is committed or attempting to destroy incriminating evidence.
30. Even though there was no eyewitness to the stabbing incident, PW1 evidence placed the accused as being one of the last persons to be seen with the deceased and PW3 also saw a Toyota Probox being driven away at high speed as its driver escaped from the said scene. In all probability this is the same car, which the accused used to pick the deceased from work, and was escaping from the crime scene after committing the offence. The said car was proved to belongs to the accused person and NTSA search produced as Exhibit 3 confirming the same.
31. Secondly and more convincingly, the deceased made a dying declaration to PW3 and stated clearly that it was her boyfriend “Sam/Smauel who had inflicted the vicious injuries upon her and also gave out his phone number 0721326777. Dying declaration is provided for under Section 33[a] of the Evidence Act , Cap 80 which provides as follows:
33. Statements by deceased person , e.t.c.,
when. Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases
-(a)relating to cause of death
When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of death comes into question.
32. Notwithstanding the provisions of section 33(a) of the Evidence Act Cap 80 , courts have consistently held the view that evidence of a dying declaration must be admitted with caution because firstly, the dying declaration is not subject to the test of cross-examination and secondly, circumstances leading to the death of the deceased such as acts of violence, may have occasioned him confusion and surprise so as to render his perception questionable. While it is not a rule of law that a dying declaration must be corroborated to found a conviction, nevertheless the trial court must proceed with caution and to get the necessary assurance that a conviction founded on a death declaration is indeed safe. This Court expressed itself as follows in CHOGE V. REPUBLIC [1985] KLR1 :
The general principle on which a dying declaration is admitted in evidence is that it is a declaration made in extremity when the maker is at a point of death and the mind is induced by the most powerful considerations to tell the truth. In Kenya, however the admissibility of dying declaration need not depend upon the declarant being, at the time of making it, in a hopeless expectation of eminent death. There need not be corroboration in order for a dying declaration to support a conviction but the exercise of caution is necessary in reception into evidence of such declaration as it is generally unsafe to base a conviction solely on the dying declaration of a deceased person
33. Though the deceased was fatally wounded, PW5 confirmed that she was coherent and even asked for water to drink as they carried her to the car. PW3 also did not know the accused person and had no reason to lie as against him and without doubt the said declaration was made in extremity when the deceased was at a point of death. PW1’s evidence also corroborated PW3’s evidence and she had given a vivid background to the strained relationship between the two and that it was the accused person who was last with the deceased on the material evening. It was also to be noted that immediately after the incident happened, the accused person ran way and hid at his maternal home at Mosocho- Kisii for about a month before he was tracked down and arr
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