REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KIAMBU
CRIMINAL CASE NO. 43 OF 2019
REPUBLIC………………………………………..…………..……PROSECUTOR
VERSUS
EUNICE NJERI MUTHONI…….………………………....………. ACCUSED
JUDGMENT
A. INTRODUCTION
1. The accused person herein 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 25 th day of October, 2019 at around 0745hrs at Miti-kenda area within Ruiru sub county, Kiambu County murdered ERICK NJUGUNA KIBUE .
2. The accused person was arraigned before court and took plea on 13th November 2019. She denied the charge faced and pleaded not guilty. The case proceeded to full trial with the prosecution calling four (4) witnesses in support of their case.
(B) PROSECUTION CASE
3. PW1 Samuel Kimani Kibue confirmed that he was the deceased brother and recalled that on 25.10.2019, he was at Githurai area, at about 1,00pm, when he received a call from somebody who identified himself as a neighbour of the deceased at Miti-kenda along the bypass and he did inform him that his brother had unfortunately passed on and his body had been taken to the mortuary. He called his uncle and two friends and went to Kenyatta University hospital mortuary but did not find the deceased body, and then proceeded to Ruiru police station, where they met DCI officers handling the matter and were directed to identify the body at General Kago Hospital mortuary. They did proceed to the said mortuary and identified his brother’s body and noted the stab wound on the left side of the chest. Under cross examination he confirmed that he had not visited his brother at Miti-Kenda and also had not met the accused person before.
4. PW2 Allan Thairu Wangoi, testified that the deceased was his workmate at various construction sites and he also knew the accused person as she ran a bar, where they would occasionally converge after work and enjoy their drink before retiring to their respective homes. On the material day, they left work at about 5.00pm and agreed with the deceased to meet at the accused pub at 7.00pm after freshening up. Later when he arrived at the said pub, he met the deceased with his cousin/housemate, known as “Browny” and he joined them in taking Keg beer and later about 10.00pm, they decided to go shot pool, with Browny. While playing pool he noticed that the accused person had join their table and was drinking, “Allsop beer”, while the deceased had changed and was drinking spirits- Alcohol.
5. At about midnight, when the said bar was closed for the day, they were about five (5) persons left therein, which included himself, the deceased, Browny, Nyambura and the accused person. While still outside the said bar, browny asked the deceased if they were going home together, but he said that he was sorted and would go home with the accused person. They thereafter left the two together and headed towards their home. He also confirmed that he was aware that the deceased and the accused had an intimate relationship and that the accused would often go and spend at the accused house.
6. The following morning at about 7.00am, when he woke up, he was informed that his friend had passed on and his body had been found lying outside the accused house. He went to the incident scene and confirmed this fact. He saw the accused amongst the persons who were in the crown and noticed that the deceased body had been dragged from the accused house to where it was finally discovered. He emphasized that there was a clear drag marks on the ground, dragged like, “ a gunia bag being dragged ” and that there were blood stains too along the dragging path. The police were called in and they processed the scene and took the body to the mortuary.
7. Under cross examination he affirmed that the deceased resided with his cousin, Browny, but would frequently sleep over at the accused house. He was also certain that the two were romantically involved and that on the material evening they were cordial, and did not fight at the bar. He reaffirmed that the deceased went to spend the night at the accused house and from the “ drag marks ” seen, it was evident that the accused body had been dragged from the main gate/entrance of the accused house to where it was found, which was about 120m away. The said path too, he observed had blood droppings from the gate of the accused house to where the deceased body was damped.
8. PW3 Cpl Zablon Atubwa previously of DCI- Ruiru, confirmed that on 25.10.2019, he was on duty at 08.00hrs, when they got a report of a murder incident which had occurred at miti-kenda area. They mobilized and went to the scene of crime, where they found the deceased body lying by the roadside (lying face down). He searched the body and found the deceased wallet, which contained his national identity card, and established his identity. Physically the deceased had a stab wound on the left chest and bruises behind the head and on his back. After making inquires they established that the accused had been last seen with the accused person and proceeded to arrest her to help in investigations and later had her charged with the offence of murder.
9. Under cross examination he confirmed that the deceased body was dragged to the final site, where it was found and that the said drag marks emanated from the accused house to where the deceased body was found. Also, from how the body was positioned vis a vis the accused house, they established that he had been dragged using his legs and his head faced the accused house at his final resting place. As part of their investigation, they had arrested other persons of interest and had established that the accused was the last person seen with the deceased, who was her boyfriend and she had failed to explain what transpired when alone with the deceased that lead to the murder.
10. PW4 Dr John Mathaiya confirmed that he did the post mortem examination on the deceased body on 29.10.2019 at General Kago hospital mortuary, after it was identified by two of his relatives. The body was pale as the deceased had lost a lot of blood and had a stab wound on the left side of the chest between the 1 st and 2 nd rib, which penetrated into the deceased left lung and perforated an artery. His lower back extending to the legs to had abrasions and the back of his head had contusion and bruises. He established that the cause of death was due to a single penetrating injury to the chest and produced the post mortem report as Exhibit P1.
11. Under cross examination, he confirmed that the deceased did not have any defensive injuries, but has sustained a sharp force trauma injury about 12cm-15cm deep into the chest. The deceased had also suffered occipital scalp bruise but had no skull fracture.
12. The prosecution closed their case at that point and the accused was placed on her defence and opted to give sworn evidence.
C. DEFENCE CASE
13. The accused gave sworn evidence and stated that on the material day she ran her errands the whole day in Nairobi and took public means back to Ruiru at about 4.30pm. While still enroute her employee, Nyambura called her and requested her to add provisions for her bar business, and opted to alighted at Ruiru to enable her do so. She later arrived at her business premises at about 7.00pm, where she found many customers, the deceased being amongst them. After settling down, she joined the deceased and his friends at his table, but initially did not drink any Alcohol until after she ate boiled meat, which was ordered by the deceased and then took Guinness beer.
14. They chatted with the deceased until about 11.00pm, when they closed down for the day, after which, the deceased left with his friends and Nyambura, while she also left for her residence which was in the opposite direction- about 500m away. Upon reaching home, she showered and retired for the night. The following morning at about 6.30am she was woken up by her neighbours who told her of what had occurred, and she went out and confirmed the same. The area chief and the police were informed and they came and processed the scene.
15. She confirmed that she knew the deceased well, since he had worked for her previously at bar, but denied any suggestion that they were romantically involved. She denied having any thing to do with his death and emphasized that she had no grudge and/or motive, which would lead her to kill the deceased. She also denied being the last person to be seen with the deceased.
16. Under cross examination, she admitted that the deceased body was found about 20m from her house, but again emphasized that no incriminating evidence was found in her residence. She also denied that a brown washed trouser had been recovered therefrom. As regards the drag marks seen to emanate from her gate towards where the body was recovered, she was categorical that she had not seen any such marks, though it had rained and only footsteps could be seen. In reexamination the accused admitted that, “ I saw dragging marks on the roadside heading to the body, but it was not from our plot.”
D. DETERMINATION
17. 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 murdered ERIC NJUGUNA KIBUE, the deceased herein.
18. 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.”
19. 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.
20. 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 ”.
Standard and Burden of proof .
21. 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.”
22. It is a constitutional imperative under Article 50 (2) (a) of the constitution that an accused person has a right to presumption of innocence until the contrary is proven beyond reasonable doubt.
23. I will now proceed to interrogate each issue.
(i) The death of the deceased and its cause.
24. It is common ground that Eric Njuguna Kibue , died on the early morning of 25 th October 2019 as a result of fatal injuries sustained from an Assault. This was confirmed Dr John Mathaiya (PW4), the pathologist who conducted the post mortem on 29.10.2019. He confirmed that the cause of death was due to chest injury due to single penetrating injury/ sharp force trauma injury which penetrated about 12cm – 15 cm deep into the chest and perforated a critical Artery. The decease lower back extending to the legs too, had abrasions and the back of his head had contusion and bruises
25. 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 :
26. PW2 testified that on the material night they were the last customers left at the bar run by the accused and after it was close for the day at about 11.00pm, they (himself, browny and Nyambura) left the deceased with the accused person headed towards her residence. He also confirmed that it was within his knowledge that the two were romantically involved and that the deceased would occasionally spend at the accused house. The following morning the deceased was discovered dead, outside the accused house and that there was clear drag marks showing that the body had been dragged from the said plot to where the body was last dumped. Also, on the said path there was a trail of blood from the gate leading to where the body was damped.
27. PW3 also visited the scene and confirmed this fact. It was his evidence too, that the body was dragged by its feet and finally rested with the deceased head facing the plot, where the accused person lived. They arrested the accused person and investigations established that she was the person last scene with the deceased and therefore had to explain what transpired.
28. When placed on his defence, the accused person denied committing the murder and insisted the deceased had gone home with PW2, browny and Nyambura, while had had retreated to house, which was about 500m from her pub and slept alone. She was woken up the following morning and informed of the discovery of the deceased body, which she confirmed was about 20m from her house but denied being the last person seen with the deceased or the suggestion that they were romantically involved. In her evidence in chief she denied seeing the drag marks the prosecution witnesses had alluded to, but in cross examination admitted that, “ I saw dragging marks on the roadside heading to the body, but it was not from our plot.”
29. From the evidence adduced, there is no direct evidence incriminating the accused person to the crime, but circumstantial evidence gathered laid a strong basis to support an inference of her 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.
30. 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.”
31. 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.”
32. 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 .
32. Though the accused person denied being the last person seen with the deceased, PW1 established this fact and it is also not in doubt that the deceased body was discovered outside the plot where she resided. The evidence clearly established that the body was dragged from her plot and damped about 20m away, and the said trail had blood spots, from the plot gate to where the body finally rested. The accused therefore had a duty to proffer and cogent explanation as to what had occurred to the deceased, who was her boyfriend though she denied this fact.
33. 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.
34. 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.”
Also see; Ramreddy Rajeshkhanna Reddy & Another v State of Andhra Pradesh, JT 2006 (4) SC 16
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. It was established that she had a relationship with the deceased, and on the material night they had both left the pub together and the deceased ended up dead 20m away from the plot where she resided, with clear evidence that he had been dragged by his legs therefrom and left with his head facing the gate to her plot. The blood trail also emanated from the said plot gate to where the body rested.
37. The accused person failed to exonerate herself from this crime and nothing would have been easier that to call his worker Nyambura to defend her and/or other immediate neighbours to explain what transpired that material night/early morning and thus failed to exonerated herself from the said crime.
38. 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 “ Eric Njuguna Kibue” and leads to the inescapable conclusion that within all human probability, the murder which occurred was without doubt committed by her.
(iii) Malice Aforethought
39. 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.”
40. 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.”
41. 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. 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.”
42. The deceased a stabbed on his left chest which injury went 12cm -15cm deep into the chest and perforated the artery leaving the heart. 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 her 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.
43. 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
44. Accordingly, it is my finding and holding that the prosecution has proved all the ingredients of the Information of murder against the subject herein, EUNICE NJERI MUTHONI beyond reasonable doubt and convicted hER accordingly under section 215 of the Criminal Procedure Code.
45. Sentencing will await the filing of a pre-sentence report by the probation and aftercare services department, within the next 21 days.
46. 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:-
……………Mr Ngotho………………………..Accused
…………Mr Magero……………………….For O.D.P.P
……………Julie…………………….Court Assistant
KIAMBU HCCR MURDER 43 OF 20192
IN THE HIGH COURT OF KENYA AT KIAMBU
CRIMINAL CASE NO. 43 OF 2019
REPUBLIC………………………………………..…………..……PROSECUTOR
VERSUS
EUNICE NJERI MUTHONI…….………………………....………. ACCUSED
JUDGMENT
A. INTRODUCTION
1. The accused person herein 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 25 th day of October, 2019 at around 0745hrs at Miti-kenda area within Ruiru sub county, Kiambu County murdered ERICK NJUGUNA KIBUE .
2. The accused person was arraigned before court and took plea on 13th November 2019. She denied the charge faced and pleaded not guilty. The case proceeded to full trial with the prosecution calling four (4) witnesses in support of their case.
(B) PROSECUTION CASE
3. PW1 Samuel Kimani Kibue confirmed that he was the deceased brother and recalled that on 25.10.2019, he was at Githurai area, at about 1,00pm, when he received a call from somebody who identified himself as a neighbour of the deceased at Miti-kenda along the bypass and he did inform him that his brother had unfortunately passed on and his body had been taken to the mortuary. He called his uncle and two friends and went to Kenyatta University hospital mortuary but did not find the deceased body, and then proceeded to Ruiru police station, where they met DCI officers handling the matter and were directed to identify the body at General Kago Hospital mortuary. They did proceed to the said mortuary and identified his brother’s body and noted the stab wound on the left side of the chest. Under cross examination he confirmed that he had not visited his brother at Miti-Kenda and also had not met the accused person before.
4. PW2 Allan Thairu Wangoi, testified that the deceased was his workmate at various construction sites and he also knew the accused person as she ran a bar, where they would occasionally converge after work and enjoy their drink before retiring to their respective homes. On the material day, they left work at about 5.00pm and agreed with the deceased to meet at the accused pub at 7.00pm after freshening up. Later when he arrived at the said pub, he met the deceased with his cousin/housemate, known as “Browny” and he joined them in taking Keg beer and later about 10.00pm, they decided to go shot pool, with Browny. While playing pool he noticed that the accused person had join their table and was drinking, “Allsop beer”, while the deceased had changed and was drinking spirits- Alcohol.
5. At about midnight, when the said bar was closed for the day, they were about five (5) persons left therein, which included himself, the deceased, Browny, Nyambura and the accused person. While still outside the said bar, browny asked the deceased if they were going home together, but he said that he was sorted and would go home with the accused person. They thereafter left the two together and headed towards their home. He also confirmed that he was aware that the deceased and the accused had an intimate relationship and that the accused would often go and spend at the accused house.
6. The following morning at about 7.00am, when he woke up, he was informed that his friend had passed on and his body had been found lying outside the accused house. He went to the incident scene and confirmed this fact. He saw the accused amongst the persons who were in the crown and noticed that the deceased body had been dragged from the accused house to where it was finally discovered. He emphasized that there was a clear drag marks on the ground, dragged like, “ a gunia bag being dragged ” and that there were blood stains too along the dragging path. The police were called in and they processed the scene and took the body to the mortuary.
7. Under cross examination he affirmed that the deceased resided with his cousin, Browny, but would frequently sleep over at the accused house. He was also certain that the two were romantically involved and that on the material evening they were cordial, and did not fight at the bar. He reaffirmed that the deceased went to spend the night at the accused house and from the “ drag marks ” seen, it was evident that the accused body had been dragged from the main gate/entrance of the accused house to where it was found, which was about 120m away. The said path too, he observed had blood droppings from the gate of the accused house to where the deceased body was damped.
8. PW3 Cpl Zablon Atubwa previously of DCI- Ruiru, confirmed that on 25.10.2019, he was on duty at 08.00hrs, when they got a report of a murder incident which had occurred at miti-kenda area. They mobilized and went to the scene of crime, where they found the deceased body lying by the roadside (lying face down). He searched the body and found the deceased wallet, which contained his national identity card, and established his identity. Physically the deceased had a stab wound on the left chest and bruises behind the head and on his back. After making inquires they established that the accused had been last seen with the accused person and proceeded to arrest her to help in investigations and later had her charged with the offence of murder.
9. Under cross examination he confirmed that the deceased body was dragged to the final site, where it was found and that the said drag marks emanated from the accused house to where the deceased body was found. Also, from how the body was positioned vis a vis the accused house, they established that he had been dragged using his legs and his head faced the accused house at his final resting place. As part of their investigation, they had arrested other persons of interest and had established that the accused was the last person seen with the deceased, who was her boyfriend and she had failed to explain what transpired when alone with the deceased that lead to the murder.
10. PW4 Dr John Mathaiya confirmed that he did the post mortem examination on the deceased body on 29.10.2019 at General Kago hospital mortuary, after it was identified by two of his relatives. The body was pale as the deceased had lost a lot of blood and had a stab wound on the left side of the chest between the 1 st and 2 nd rib, which penetrated into the deceased left lung and perforated an artery. His lower back extending to the legs to had abrasions and the back of his head had contusion and bruises. He established that the cause of death was due to a single penetrating injury to the chest and produced the post mortem report as Exhibit P1.
11. Under cross examination, he confirmed that the deceased did not have any defensive injuries, but has sustained a sharp force trauma injury about 12cm-15cm deep into the chest. The deceased had also suffered occipital scalp bruise but had no skull fracture.
12. The prosecution closed their case at that point and the accused was placed on her defence and opted to give sworn evidence.
C. DEFENCE CASE
13. The accused gave sworn evidence and stated that on the material day she ran her errands the whole day in Nairobi and took public means back to Ruiru at about 4.30pm. While still enroute her employee, Nyambura called her and requested her to add provisions for her bar business, and opted to alighted at Ruiru to enable her do so. She later arrived at her business premises at about 7.00pm, where she found many customers, the deceased being amongst them. After settling down, she joined the deceased and his friends at his table, but initially did not drink any Alcohol until after she ate boiled meat, which was ordered by the deceased and then took Guinness beer.
14. They chatted with the deceased until about 11.00pm, when they closed down for the day, after which, the deceased left with his friends and Nyambura, while she also left for her residence which was in the opposite direction- about 500m away. Upon reaching home, she showered and retired for the night. The following morning at about 6.30am she was woken up by her neighbours who told her of what had occurred, and she went out and confirmed the same. The area chief and the police were informed and they came and processed the scene.
15. She confirmed that she knew the deceased well, since he had worked for her previously at bar, but denied any suggestion that they were romantically involved. She denied having any thing to do with his death and emphasized that she had no grudge and/or motive, which would lead her to kill the deceased. She also denied being the last person to be seen with the deceased.
16. Under cross examination, she admitted that the deceased body was found about 20m from her house, but again emphasized that no incriminating evidence was found in her residence. She also denied that a brown washed trouser had been recovered therefrom. As regards the drag marks seen to emanate from her gate towards where the body was recovered, she was categorical that she had not seen any such marks, though it had rained and only footsteps could be seen. In reexamination the accused admitted that, “ I saw dragging marks on the roadside heading to the body, but it was not from our plot.”
D. DETERMINATION
17. 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 murdered ERIC NJUGUNA KIBUE, the deceased herein.
18. 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.”
19. 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.
20. 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 ”.
Standard and Burden of proof .
21. 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.”
22. It is a constitutional imperative under Article 50 (2) (a) of the constitution that an accused person has a right to presumption of innocence until the contrary is proven beyond reasonable doubt.
23. I will now proceed to interrogate each issue.
(i) The death of the deceased and its cause.
24. It is common ground that Eric Njuguna Kibue , died on the early morning of 25 th October 2019 as a result of fatal injuries sustained from an Assault. This was confirmed Dr John Mathaiya (PW4), the pathologist who conducted the post mortem on 29.10.2019. He confirmed that the cause of death was due to chest injury due to single penetrating injury/ sharp force trauma injury which penetrated about 12cm – 15 cm deep into the chest and perforated a critical Artery. The decease lower back extending to the legs too, had abrasions and the back of his head had contusion and bruises
25. 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 :
26. PW2 testified that on the material night they were the last customers left at the bar run by the accused and after it was close for the day at about 11.00pm, they (himself, browny and Nyambura) left the deceased with the accused person headed towards her residence. He also confirmed that it was within his knowledge that the two were romantically involved and that the deceased would occasionally spend at the accused house. The following morning the deceased was discovered dead, outside the accused house and that there was clear drag marks showing that the body had been dragged from the said plot to where the body was last dumped. Also, on the said path there was a trail of blood from the gate leading to where the body was damped.
27. PW3 also visited the scene and confirmed this fact. It was his evidence too, that the body was dragged by its feet and finally rested with the deceased head facing the plot, where the accused person lived. They arrested the accused person and investigations established that she was the person last scene with the deceased and therefore had to explain what transpired.
28. When placed on his defence, the accused person denied committing the murder and insisted the deceased had gone home with PW2, browny and Nyambura, while had had retreated to house, which was about 500m from her pub and slept alone. She was woken up the following morning and informed of the discovery of the deceased body, which she confirmed was about 20m from her house but denied being the last person seen with the deceased or the suggestion that they were romantically involved. In her evidence in chief she denied seeing the drag marks the prosecution witnesses had alluded to, but in cross examination admitted that, “ I saw dragging marks on the roadside heading to the body, but it was not from our plot.”
29. From the evidence adduced, there is no direct evidence incriminating the accused person to the crime, but circumstantial evidence gathered laid a strong basis to support an inference of her 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.
30. 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.”
31. 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.”
32. 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 .
32. Though the accused person denied being the last person seen with the deceased, PW1 established this fact and it is also not in doubt that the deceased body was discovered outside the plot where she resided. The evidence clearly established that the body was dragged from her plot and damped about 20m away, and the said trail had blood spots, from the plot gate to where the body finally rested. The accused therefore had a duty to proffer and cogent explanation as to what had occurred to the deceased, who was her boyfriend though she denied this fact.
33. 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.
34. 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.”
Also see; Ramreddy Rajeshkhanna Reddy & Another v State of Andhra Pradesh, JT 2006 (4) SC 16
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. It was established that she had a relationship with the deceased, and on the material night they had both left the pub together and the deceased ended up dead 20m away from the plot where she resided, with clear evidence that he had been dragged by his legs therefrom and left with his head facing the gate to her plot. The blood trail also emanated from the said plot gate to where the body rested.
37. The accused person failed to exonerate herself from this crime and nothing would have been easier that to call his worker Nyambura to defend her and/or other immediate neighbours to explain what transpired that material night/early morning and thus failed to exonerated herself from the said crime.
38. 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 “ Eric Njuguna Kibue” and leads to the inescapable conclusion that within all human probability, the murder which occurred was without doubt committed by her.
(iii) Malice Aforethought
39. 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.”
40. 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.”
41. 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. 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.”
42. The deceased a stabbed on his left chest which injury went 12cm -15cm deep into the chest and perforated the artery leaving the heart. 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 her 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.
43. 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
44. Accordingly, it is my finding and holding that the prosecution has proved all the ingredients of the Information of murder against the subject herein, EUNICE NJERI MUTHONI beyond reasonable doubt and convicted hER accordingly under section 215 of the Criminal Procedure Code.
45. Sentencing will await the filing of a pre-sentence report by the probation and aftercare services department, within the next 21 days.
46. 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:-
……………Mr Ngotho………………………..Accused
…………Mr Magero……………………….For O.D.P.P
……………Julie…………………….Court Assistant
KIAMBU HCCR MURDER 43 OF 20192