1. The accused person was charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya.
2. The particulars of the offence were that on 19 th March 2021 at Kasabuni Estate Area within Starehe Sub County in Nairobi County the accused person JAMES KINUTHIA SILIMA ALIAS ‘KAJIM’ murdered PETER NG’ANG’A NYAMBURA.
3. The prosecution called a total of 9 prosecution witnesses in support of the case.
PROSECUTION’S CASE
4. PW1 was Dr. Peter Muriuki Ndegwa, a pathologist attached to the Ministry of Health under the Department of Diagnostic and Forensic Services since 2005. He testified that he conducted the post mortem examination on the body of the deceased, Peter Nganga Nyambura, on 22nd March 2021.
5. He stated that the body was identified to him by the deceased’s brother, Stephen Irungu Nyambura, and sister, Nancy Gathoni Njoki, in the presence of Cpl Maina and PC Mwanzia.
6. He described the deceased as a 38-year-old African male adult who was moderately built, tall and of good nutritional status. Upon examination, he observed swelling of the left eye, bruises on the right lower anterior chest wall and anterior abdominal wall, rupture of the liver accompanied by haemoperitoneum containing approximately two litres of blood in the abdominal cavity, and subgaleal haemotoma affecting the left temporal, frontal and occipital skull regions.
7. From those findings he formed the opinion that the deceased died from multiple organ injuries caused by blunt force trauma consistent with an assault. He produced the certified copy of the post mortem form as PExhibit 1.
8. During cross-examination by Mr Maina counsel for the accused, PW1 clarified that that he found no indication of poisoning and therefore did not remove any samples for toxicological examination.
9. He further testified that although the injuries were consistent with assault, the injuries could also be consistent with a fall. He did not detect any smell of alcohol from the deceased’s body or clothing. He explained that the only visible external injury was the swollen eye and that the remaining injuries became apparent after opening the body during examination. He stated that the injuries appeared fresh and were only hours old.
10. He further explained that loss of two litres of blood was fatal as the human body normally contains about five litres of blood. He confirmed that the blood found in the abdominal cavity was fresh and had formed clots.
11. Upon re-examination by Ms Ogweno prosecution counsel, PW1 reiterated that a person could not survive after losing two litres of blood. He explained that in most cases it is difficult to determine the exact weapon used unless a weapon leaves distinct impressions.
12. He also testified that refrigeration preserves injuries in the state they existed at death and prevents decomposition. He further maintained that there were no signs suggesting poisoning or alcohol consumption and confirmed that the organs injured included the skin, chest cavity, head, liver and eye.
13. PW2 was Nancy Gathoni Njoki who testified that on 19th March 2021 she finished work at Carrefour TRM Mall at about 3.00pm and while approaching her home at around 4.00pm, she met her neighbour Mitchell, who informed her that her nephew, Ng’ang’a, had been assaulted and had not regained consciousness.
14. She proceeded with Mitchell to the scene approximately 500 metres from her home and found the deceased seated alone on a veranda with his back against the wall and his head bent forward.
15. She testified that a woman known as Anyango approached her and informed her that the deceased had been beaten by “Kajim” following a disagreement over a metal object used to open a sewer line.
16. PW2 stated that she called the deceased’s name three times without response. When she lifted his head, she noticed his eyes and mouth were open and motionless. After laying him down with Mitchell’s assistance, blood started oozing from his left ear and his hands felt cold, leading her to suspect he was dead. She then reported the matter at Ruaraka Police Station where the OCS assigned six police officers who accompanied them back to the scene.
17. She further testified that they found the body still lying there though now covered with a cloth. Photographs were later taken before the body was transported to the City Mortuary. She further stated that she later participated in identifying the body for purposes of post mortem examination.
18. During cross-examination by Mr Maina, PW2 stated that Mitchell had not telephoned her despite having her contact and only informed her physically about the incident. She confirmed she had not witnessed the assault and did not see the accused at the scene. She testified that the deceased had been living with her for approximately ten years and was a casual labourer who also consumed alcohol, particularly chang’aa.
19. She stated that she had been informed he had taken alcohol on the material day. She testified that she did not observe visible injuries on the deceased’s face or blood stains on his clothes and that blood only started flowing from his left ear after they laid him down.
20. She confirmed that after suspecting he was dead, they walked to Ruaraka Police Station which took about ten minutes. She further testified that when they returned to the scene with police officers, approximately fifty people had gathered there.
21. She stated that she did not witness the actual post mortem examination as she walked out after identifying the body together with Stephen Irungu and Edward Wachira. She maintained that she did not know the relationship between the accused and the deceased.
22. PW3 Emily Ondeche Wekesa, testified that she was a business lady residing at Kasabuni since 2007 or 2008. She recalled that on 19th March 2021 at about 3.00pm, while washing buckets at the gate of her plot, she heard children screaming. On looking towards the source of the screams, she saw the deceased lying on a veranda of the neighbouring plot while the accused, whom she identified as Kajim was assaulting him using stones.
23. She specifically testified that she saw the accused strike the deceased on the head with a stone, then hit him again on the stomach and chest before stepping on his stomach and knees.
24. She further stated that the deceased lay on the veranda attempting to shield himself using his arms. PW3 testified that she attempted to intervene but became afraid after seeing another man, Jasiaya being struck on the head with a stone by the accused when he attempted to separate them.
25. PW3 further testified that she proceeded to inform the deceased’s sister, Nancy Gathoni, but upon finding her absent, left a message with a nearby vegetable vendor. She then returned to the scene and heard the deceased asking for water. Members of the public attempted to give him water but it poured onto his clothes. She checked his pulse but found none.
26. After Nancy arrived PW3 informed her that Kajim had assaulted the deceased and advised her to report the matter to police. She stated that she had known the accused and his family for over ten years and positively identified him in court as the assailant. She further testified that police officers later collected stones from the scene, some of which had blood stains, and one square stone was marked for identification as MFI-1.
27. During cross-examination by Mr Maina, PW3 stated that she estimated the time of the incident to have been around 3.00pm based on when she had lunch.
28. She testified that before the assault, the deceased had appeared slightly drunk and had a habit of resting on the veranda after consuming chang’aa. She clarified that she did not witness how the confrontation began but only saw the accused striking the deceased with stones.
29. She confirmed that Jasiaya and Odhiambo referred to the same individual. She testified that she screamed in fear during the assault and later observed bleeding from the deceased’s head and ear, with more blood flowing from the ear and mouth after he was laid down. She reiterated that she informed both Nancy and the police that Kajim was responsible.
30. She also confirmed she had not attended any identification parade and that this was the first time she was seeing the accused since the incident. She further testified that when Nancy arrived, many people had gathered at the scene and that she told Nancy she suspected the deceased was already dead.
31. Upon re-examination by Ms Ogweno, PW3 testified that although she did not attend an identification parade, she knew the accused was arrested on the same day and was even brought back to the scene before the body was removed. She confirmed that some of the stones at the scene had blood stains belonging to the deceased.
32. PW4 was Inspector Benson Mbai of Ruaraka Police Station who testified that on 19th March 2021 while serving as duty officer, PW2 reported at around 6.00pm that her relative, Peter Ng’ang’a, had been murdered at Kasabuni Estate.
33. He booked the report and proceeded to the scene with approximately six officers. He testified that upon arrival they found the lifeless body of the deceased lying on a veranda outside residential premises. He summoned scenes of crime personnel who photographed and processed the scene.
34. PW4 stated that he interviewed several witnesses at the scene including Mary, Odhiambo and Emily. According to him, Mary informed him that the deceased had been struck with a large stone by the accused following a confrontation and pointed out the accused nearby.
35. Odhiambo similarly confirmed that James Kinuthia, also known as Kajim, assaulted the deceased and had also assaulted him when he attempted to intervene. Emily equally confirmed witnessing the accused assault the deceased.
36. PW4 testified that following the information, he arrested the accused at the scene and escorted him to Ruaraka Police Station where he was booked in the cells.
37. He then returned to the scene and collected a blood-stained stone identified by witnesses as one of the weapons used during the assault. He produced the stone in court as PExhibit 2. He further testified that on the following day he swore an affidavit seeking extended detention orders against the accused to facilitate investigations before later handing over the matter and exhibits to DCI Starehe.
38. During cross-examination by Mr Maina, PW4 stated that the body had been covered with a blanket when they arrived and that the scene was cordoned off by police. He explained that Mary identified the accused to him by pointing him out as he passed nearby, leading to his immediate arrest.
39. He further testified that several stones were present at the scene but he specifically collected the blood-stained stone identified by witnesses.
40. He acknowledged that he did not record Odhiambo’s statement and that he did not observe visible injuries on Odhiambo despite allegations that he too had been assaulted. He stated that he neither noticed alcohol on the deceased nor observed blood stains on the accused’s clothes. He also clarified that he verbally informed the accused of the reason for his arrest.
41. Upon re-examination by Ms Ogweno prosecution counsel, PW4 clarified that the building where the deceased lay appeared residential in nature and that by the time he handed over the file to DCI Starehe, not all witness statements had been recorded, including that of Jasiaya Odhiambo.
42. PW5 was Corporal Gladys Chepkorir who testified that on 19th March 2021 she was attached to Ruaraka Police Station and was on duty in the crime office together with Sgt. Buyuka when they were summoned by the OCS.
43. Upon reporting to the OCS, they were informed of a scene at Kasabuni Area. She proceeded to the scene in the company of IP Mbai and other police officers after being led there by three members of the public. Upon arrival, they found the body of a deceased person lying next to a house. They were informed that the deceased was Peter Ng’ang’a and that he had allegedly been hit with a stone by James Kinuthia.
44. PW5 further testified that officers from the DCI team based at Pangani were called to process the scene. After the scene had been processed, the body was removed and taken to City Mortuary. She further testified that the suspect was later arrested by officers on patrol within the area. She stated that there were many people at the scene but she personally did not see the accused.
45. She testified that the body was already covered when they arrived and she could not recall the names of the individuals who provided information at the scene.
46. She stated that she later learnt that the accused had been arrested by officers on patrol after being led by members of the public. She confirmed that from the time they arrived at the scene until the body was removed, she did not leave the area and did not recall seeing the accused there. She also testified that she did not recover any weapon from the scene and was not involved in processing the scene as that task was undertaken by the DCI officers from Pangani.
47. PW5 clarified that her role was limited to removal of the body to the mortuary together with some members of the public. According to her the officers first returned to the police station with the body where they stopped to draft a signal before proceeding to the mortuary.
48. She further stated that the deceased appeared dead when they collected the body from the scene and that at the mortuary, she did not know whether there had been any formal confirmation of death before the body was preserved.
49. PW6, PC Alex Ole Tanin No. 262069, testified that in the year 2021 he was attached to DCI Starehe Pangani though currently stationed at Karen DCI. He stated that on 19th March 2021, following communication from Ruaraka Police Station, he proceeded together with Sgt. Evans Gitonga to a scene within Kasabuni area.
50. Upon arrival, they found a body lying on the ground covered with a sheet and the face was not visible. He testified that scenes of crime officers from DCI Starehe joined them and documented the scene before the body was removed to City Mortuary by officers from Ruaraka Police Station.
51. PW6 further testified that at the scene, a blood-stained stone alleged to have been the murder weapon was recovered after members of the public indicated it had been used during the assault.
52. He stated that the stone was taken to the station and later, on 8th April 2021, he prepared an exhibit memo requesting the Government Chemist to conduct DNA analysis on the blood stains found on the stone. He testified that the exhibits forwarded included specimen “A” allegedly obtained from the deceased, specimen “B” from the accused, and specimen “C” being the blood-stained stone. According to him, the purpose of the analysis was to establish whether the blood on the stone originated from the deceased or the accused. He produced the exhibit memo as PExhibit 3.
53. During cross-examination by Mr Maina, PW6 stated that they had been called to the scene at about midday and arrived there later in the afternoon after briefing at Ruaraka Police Station.
54. He confirmed that by the time they reached the scene, the accused had already been arrested and was in police custody at Ruaraka Police Station. He testified that approximately twenty people were present at the scene and that the stone had been collected by officers from Ruaraka Police Station, though he could not recall the specific officer who recovered it. He further stated that there were no formal handover notes relating to the stone. He recalled that the stone had been found next to the body and that it was documented by a scenes of crime officer from DCI Starehe, though he could not remember the officer’s name.
55. PW6 testified that after receiving the stone, he took it to the exhibit store at DCI Starehe Pangani but could not recall whether the proper exhibit register entries were made. He stated that he submitted the stone to the Government Analyst on 8th April 2021, approximately two weeks after recovery. He further testified that he formally took over investigations from IP Mbai on 23rd March 2021 after some witness statements had already been recorded. He acknowledged that although the exhibit memo indicated that a sample from the deceased had been submitted to the Government Chemist, the Government Analyst’s report later indicated that no suitable reference sample from the deceased had been provided because the blood sample was putrid and unsuitable for comparison. He admitted that this discrepancy amounted to an error in the exhibit memo.
56. PW6 also testified that he escorted the accused to the Government Chemist where a buccal swab was taken from him, though he could not recall the officer who physically collected the sample. He confirmed that the accused agreed to the swab being taken and no written consent was obtained. He stated that by the time they arrived at the scene it was evening though not yet dark, the body was still covered, and the only exhibit recovered was the stone.
57. PW7, Sergeant Evans Gitonga, testified that he was currently attached to the Serious Crime Unit at DCI Headquarters but in 2021 had been stationed at Starehe DCI office. He stated that on 23rd March 2021, together with PC Alex Tanin, they were instructed by DCIO Musangi to take over investigations into a murder case from Ruaraka Police Station.
58. Upon reviewing the matter, they established that the incident had occurred on 19th March 2021 between 4.00pm and 5.00pm and that it was alleged that a fight had broken out between the accused and the deceased during which the accused used a stone to inflict injuries that resulted in the deceased’s death.
59. PW7 testified that at Ruaraka Police Station they met IP Mbai who informed them that he and his team had visited the scene on the material date, processed the matter with the assistance of scenes of crime officers from Starehe, arrested the accused, obtained custodial orders to continue detaining him pending investigations. Statements were recorded from two eye witnesses and recovered a stone from the scene as an exhibit. He stated that IP Mbai thereafter handed over both the accused and the recovered stone to them.
60. He testified that they transferred the accused to Pangani Police Station and on 6th April 2021 escorted him to Mathare Mental Hospital for psychiatric assessment.
61. He produced the psychiatric report dated 6th April 2021 prepared by Dr. Catherine Siengo Mutisya as PExhibit 4, which confirmed that the accused was fit to stand trial. He further testified that thereafter the stone was taken to the Government Analyst by PC Alex Tanin after PW7 had been transferred. He identified the accused before court as the same person they had taken over from Ruaraka Police Station.
62. PW8, Henry Kiptoo Sang, a Government Analyst based at the Government Chemist in Nairobi, testified that he holds a Bachelor of Science degree in Chemistry from Moi University obtained in 1997 and had approximately fifteen years’ experience conducting analysis of human body fluids and tissues, particularly DNA analysis. He stated that he prepared a DNA analysis report dated 11th May 2022.
63. PW8 testified that on 8th April 2021, while at work, the Government Chemist received a khaki evidence bag marked “C” containing a stone as well as a buccal swab sample obtained from the accused, James Kinuthia. He stated that the exhibits were delivered by PC Alex Tanin of DCI Starehe together with an exhibit memo requesting DNA analysis and comparison. Upon examination, he established that the stone was slightly stained with blood of human origin. He then conducted DNA analysis on both the blood stains from the stone and the buccal swab obtained from the accused. According to his findings, the DNA profile generated from the blood stains on the stone originated from an unknown male person. He testified that there was no DNA linking the blood on the stone either to the accused or to the deceased because a proper reference sample from the deceased had not been successfully submitted for comparison. He explained that although the exhibit memo indicated that specimen “A” was from the deceased, the blood sample provided was putrid and decomposed and therefore unsuitable for DNA comparison. He stated that no replacement sample was ever submitted. He produced the DNA analysis report as PExhibit 5.
64. PW9, Catherine Anyango Arum testified on oath that she resided at Kasabuni Estate in Baba Dogo, Nairobi. She stated that on 19th March 2021 at approximately 3.00pm she was inside her house and upon stepping outside she found the deceased Ng’ang’a, lying on a veranda situated about seven metres away from her house.
65. She testified that after approximately ten minutes, the accused, whom she identified as Kajim, arrived and demanded from the deceased a metallic device used for unlocking sewage lines. According to PW9, the deceased informed the accused that he did not have the device at that moment but would deliver it later at around 8.00pm.
66. PW9 testified that upon hearing that response, the accused became angry, started shouting abusive words including “Malaya, umbwa hakuna yule unalea,” and immediately began kicking the deceased on the rib cage. She stated that the deceased was drunk at the time and that the veranda where he lay was a place he commonly rested whenever intoxicated.
67. She further testified that a man identified as Stephen Otieno questioned the accused by asking him why he was beating a drunk person.
68. According to PW9, the accused then turned against Stephen Otieno and started fighting him as well. She testified that Amos, the accused’s brother, attempted to caution the accused to stop the assault but was unsuccessful. She further stated that the accused’s mother also shouted words to the effect that the people of Kasabuni were accustomed to them and that “Ongwaro must stay,” explaining that the accused’s mother was nicknamed Ongwaro because she had relocated from Kawangware and was also known to be violent.
69. PW9 testified that during the incident the deceased requested for water and she gave him some, but as he attempted to drink it he collapsed. She stated that she briefly went into the toilet and upon returning found three women present at the scene, one of whom was Nancy Gathoni, the deceased’s sister. She testified that she sent a young boy from the plot to summon the accused’s mother but she did not come.
70. According to PW9, the deceased died at the scene and Nancy Gathoni later proceeded to report the matter to the police station. She stated that she initially avoided speaking to the police because she feared retaliation from the accused’s family whom she described as violent. She therefore fled the scene and only recorded her statement at Ruaraka Police Station approximately two weeks later after police officers traced her and requested her to do so. She maintained that she personally witnessed the accused assault the deceased and stated that the attack occurred at approximately 3.00pm. She also pleaded for protection.
71. According to PW9, the accused assaulted the deceased through kicks to the abdomen and chest and eventually picked up a stone which he used to strike the deceased on the chest and head, causing bleeding from the ears.
72. PW9 further testified that Stephen Otieno who attempted stopping the accused from assaulting the deceased left to report the matter after he was also assaulted by the accused.
73. She stated that PW3 Emily Wekesa lived in the neighbouring block and arrived at the scene after the fight had already ended. She reiterated that Amos, the accused’s brother, also attempted unsuccessfully to stop the accused from beating the deceased. She testified that many people later gathered at the scene and that the accused only stopped fighting after his mother arrived.
74. The evidence captured above was analyzed by this court and the court in its ruling on a case to answer placed the accused person on his defense and he elected to give evidence and call witnesses.
DEFENCE CASE
75. In his sworn defense DW1, James Kinuthia Silima, the accused person, stated that he previously worked as a water vendor at Kasabuni, Baba Dogo, Kasarani during the Covid-19 period after construction sites where he had worked were closed. He stated that he was married with two children, namely Cecilia Anyango aged 12 years and Silima Amin aged 6 years, and that he lived near his brother’s residence.
76. He testified that on 19th March 2021 he opened his water vending business at around 9.00am. At approximately 10.30am, one of his regular customers who washed carpets and bicycles arrived. Later, at about 12.30pm, his brother Amos Ochieng joined them and remained there chewing muguka while DW1 continued selling water.
77. According to the accused the three remained together at the business premises until around 5.00pm when three men in civilian clothes approached them and asked for their names before commencing a search on them.
78. He stated that because he occasionally sold bhang, he assumed the officers were searching for bhang, though he did not have any at the time and therefore was not worried. He testified that two officers apprehended him and escorted him away without informing him why he was being arrested.
79. DW1 stated that he was taken to a nearby road where he found the OCS together with a crowd of people. He was instructed to sit down and was questioned by the OCS though he was not handcuffed. He further testified that after about three minutes his mother arrived at the scene and questioned the police regarding the reasons for his arrest but they did not respond to her. He was thereafter placed in a police vehicle and taken to Baba Dogo Police Station where he was booked. He testified that he initially believed his arrest was connected to the sale of bhang. He further stated that on the following Monday he was taken to Makadara Court.
80. DW1 testified that he knew the deceased, Ng’ang’a, merely as a village drunkard and denied having had any business dealings or disputes with him. He stated that at about 3.00pm on the material day he was still together with the two men at his water vending point.
81. He also testified that he knew PW9, Catherine Anyango, who sold chang’aa, though he did not see her on the material day. He stated that she lived in a mabati house reflected in the sketch plan though the sketch plan had not been produced in court. He further testified that he knew PW3 Emily Wekesa, who lived in a nearby storey building close to the alleged scene, but asserted that from the place where he conducted his water business, one could not see the scene.
82. DW1 further testified that he was later taken to the Government Chemist where a swab was taken from his mouth without the officers informing him of the purpose of the swab.
83. He stated that he had not changed his clothes before the swab was taken. He further complained that when the matter was later taken over by the CID, he was not cautioned in accordance with the law.
84. He denied knowledge of how the deceased died and alleged that PW9, Catherine Anyango, had differences with his mother and had therefore framed him. He urged the court to note that he was suffering as a result of the case.
85. During cross-examination by Ms Njoroge, DW1 reiterated that he sold water near his mother’s plot and that the residence of PW3 Emily Wekesa was approximately five minutes’ walk from his business premises.
86. He also stated that Catherine Anyango lived in the same area as PW3. He confirmed knowing PW2 Nancy Njoki as the deceased’s sister and again described the deceased as a drunkard though he did not know where he lived. He maintained that both PW2 and PW9 had disagreements with his mother in the year 2021 though he did not know the cause of the quarrels. He testified that he personally witnessed one such quarrel but did not intervene and understood that the matter had been reported to the Chief’s office, though he did not intend to call the Chief as a witness. He clarified that he personally had no differences with PW3 Emily Wekesa.
87. DW1 further testified that on the day of his arrest he remained throughout with Alan and Amos at the water vending point and did not leave the premises. He stated that he could not remember who else visited the premises that day. He confirmed that he recorded a statement in the matter and that he alone was arrested while the other two men were left behind.
88. He testified that he was chewing muguka at the time of arrest and up to the point of reaching the police station still believed the arrest related to bhang. He further stated that after arresting him, the officers took him to Emily’s place though he was not assaulted during the arrest and neither Alan nor Amos were beaten. He confirmed that his mother, Rosemary Anyango, was present in court during his testimony. He reiterated that he never learnt how the deceased died and denied having any differences with Catherine Anyango, Nancy Njoki or Emily Wekesa.
89. Upon re-examination, DW1 stated that he sold water to many people at his business premises and that his mother informed him she had learnt of his arrest through Alan. He also clarified that the disagreements between his mother and Catherine Anyango existed prior to his arrest.
90. DW2, Allan Maina Muthomi, testified that he worked at a car wash and previously worked as a casual labourer washing carpets at Kasabuni in Baba Dogo. He stated that on 19t
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2. The particulars of the offence were that on 19 th March 2021 at Kasabuni Estate Area within Starehe Sub County in Nairobi County the accused person JAMES KINUTHIA SILIMA ALIAS ‘KAJIM’ murdered PETER NG’ANG’A NYAMBURA.
3. The prosecution called a total of 9 prosecution witnesses in support of the case.
PROSECUTION’S CASE
4. PW1 was Dr. Peter Muriuki Ndegwa, a pathologist attached to the Ministry of Health under the Department of Diagnostic and Forensic Services since 2005. He testified that he conducted the post mortem examination on the body of the deceased, Peter Nganga Nyambura, on 22nd March 2021.
5. He stated that the body was identified to him by the deceased’s brother, Stephen Irungu Nyambura, and sister, Nancy Gathoni Njoki, in the presence of Cpl Maina and PC Mwanzia.
6. He described the deceased as a 38-year-old African male adult who was moderately built, tall and of good nutritional status. Upon examination, he observed swelling of the left eye, bruises on the right lower anterior chest wall and anterior abdominal wall, rupture of the liver accompanied by haemoperitoneum containing approximately two litres of blood in the abdominal cavity, and subgaleal haemotoma affecting the left temporal, frontal and occipital skull regions.
7. From those findings he formed the opinion that the deceased died from multiple organ injuries caused by blunt force trauma consistent with an assault. He produced the certified copy of the post mortem form as PExhibit 1.
8. During cross-examination by Mr Maina counsel for the accused, PW1 clarified that that he found no indication of poisoning and therefore did not remove any samples for toxicological examination.
9. He further testified that although the injuries were consistent with assault, the injuries could also be consistent with a fall. He did not detect any smell of alcohol from the deceased’s body or clothing. He explained that the only visible external injury was the swollen eye and that the remaining injuries became apparent after opening the body during examination. He stated that the injuries appeared fresh and were only hours old.
10. He further explained that loss of two litres of blood was fatal as the human body normally contains about five litres of blood. He confirmed that the blood found in the abdominal cavity was fresh and had formed clots.
11. Upon re-examination by Ms Ogweno prosecution counsel, PW1 reiterated that a person could not survive after losing two litres of blood. He explained that in most cases it is difficult to determine the exact weapon used unless a weapon leaves distinct impressions.
12. He also testified that refrigeration preserves injuries in the state they existed at death and prevents decomposition. He further maintained that there were no signs suggesting poisoning or alcohol consumption and confirmed that the organs injured included the skin, chest cavity, head, liver and eye.
13. PW2 was Nancy Gathoni Njoki who testified that on 19th March 2021 she finished work at Carrefour TRM Mall at about 3.00pm and while approaching her home at around 4.00pm, she met her neighbour Mitchell, who informed her that her nephew, Ng’ang’a, had been assaulted and had not regained consciousness.
14. She proceeded with Mitchell to the scene approximately 500 metres from her home and found the deceased seated alone on a veranda with his back against the wall and his head bent forward.
15. She testified that a woman known as Anyango approached her and informed her that the deceased had been beaten by “Kajim” following a disagreement over a metal object used to open a sewer line.
16. PW2 stated that she called the deceased’s name three times without response. When she lifted his head, she noticed his eyes and mouth were open and motionless. After laying him down with Mitchell’s assistance, blood started oozing from his left ear and his hands felt cold, leading her to suspect he was dead. She then reported the matter at Ruaraka Police Station where the OCS assigned six police officers who accompanied them back to the scene.
17. She further testified that they found the body still lying there though now covered with a cloth. Photographs were later taken before the body was transported to the City Mortuary. She further stated that she later participated in identifying the body for purposes of post mortem examination.
18. During cross-examination by Mr Maina, PW2 stated that Mitchell had not telephoned her despite having her contact and only informed her physically about the incident. She confirmed she had not witnessed the assault and did not see the accused at the scene. She testified that the deceased had been living with her for approximately ten years and was a casual labourer who also consumed alcohol, particularly chang’aa.
19. She stated that she had been informed he had taken alcohol on the material day. She testified that she did not observe visible injuries on the deceased’s face or blood stains on his clothes and that blood only started flowing from his left ear after they laid him down.
20. She confirmed that after suspecting he was dead, they walked to Ruaraka Police Station which took about ten minutes. She further testified that when they returned to the scene with police officers, approximately fifty people had gathered there.
21. She stated that she did not witness the actual post mortem examination as she walked out after identifying the body together with Stephen Irungu and Edward Wachira. She maintained that she did not know the relationship between the accused and the deceased.
22. PW3 Emily Ondeche Wekesa, testified that she was a business lady residing at Kasabuni since 2007 or 2008. She recalled that on 19th March 2021 at about 3.00pm, while washing buckets at the gate of her plot, she heard children screaming. On looking towards the source of the screams, she saw the deceased lying on a veranda of the neighbouring plot while the accused, whom she identified as Kajim was assaulting him using stones.
23. She specifically testified that she saw the accused strike the deceased on the head with a stone, then hit him again on the stomach and chest before stepping on his stomach and knees.
24. She further stated that the deceased lay on the veranda attempting to shield himself using his arms. PW3 testified that she attempted to intervene but became afraid after seeing another man, Jasiaya being struck on the head with a stone by the accused when he attempted to separate them.
25. PW3 further testified that she proceeded to inform the deceased’s sister, Nancy Gathoni, but upon finding her absent, left a message with a nearby vegetable vendor. She then returned to the scene and heard the deceased asking for water. Members of the public attempted to give him water but it poured onto his clothes. She checked his pulse but found none.
26. After Nancy arrived PW3 informed her that Kajim had assaulted the deceased and advised her to report the matter to police. She stated that she had known the accused and his family for over ten years and positively identified him in court as the assailant. She further testified that police officers later collected stones from the scene, some of which had blood stains, and one square stone was marked for identification as MFI-1.
27. During cross-examination by Mr Maina, PW3 stated that she estimated the time of the incident to have been around 3.00pm based on when she had lunch.
28. She testified that before the assault, the deceased had appeared slightly drunk and had a habit of resting on the veranda after consuming chang’aa. She clarified that she did not witness how the confrontation began but only saw the accused striking the deceased with stones.
29. She confirmed that Jasiaya and Odhiambo referred to the same individual. She testified that she screamed in fear during the assault and later observed bleeding from the deceased’s head and ear, with more blood flowing from the ear and mouth after he was laid down. She reiterated that she informed both Nancy and the police that Kajim was responsible.
30. She also confirmed she had not attended any identification parade and that this was the first time she was seeing the accused since the incident. She further testified that when Nancy arrived, many people had gathered at the scene and that she told Nancy she suspected the deceased was already dead.
31. Upon re-examination by Ms Ogweno, PW3 testified that although she did not attend an identification parade, she knew the accused was arrested on the same day and was even brought back to the scene before the body was removed. She confirmed that some of the stones at the scene had blood stains belonging to the deceased.
32. PW4 was Inspector Benson Mbai of Ruaraka Police Station who testified that on 19th March 2021 while serving as duty officer, PW2 reported at around 6.00pm that her relative, Peter Ng’ang’a, had been murdered at Kasabuni Estate.
33. He booked the report and proceeded to the scene with approximately six officers. He testified that upon arrival they found the lifeless body of the deceased lying on a veranda outside residential premises. He summoned scenes of crime personnel who photographed and processed the scene.
34. PW4 stated that he interviewed several witnesses at the scene including Mary, Odhiambo and Emily. According to him, Mary informed him that the deceased had been struck with a large stone by the accused following a confrontation and pointed out the accused nearby.
35. Odhiambo similarly confirmed that James Kinuthia, also known as Kajim, assaulted the deceased and had also assaulted him when he attempted to intervene. Emily equally confirmed witnessing the accused assault the deceased.
36. PW4 testified that following the information, he arrested the accused at the scene and escorted him to Ruaraka Police Station where he was booked in the cells.
37. He then returned to the scene and collected a blood-stained stone identified by witnesses as one of the weapons used during the assault. He produced the stone in court as PExhibit 2. He further testified that on the following day he swore an affidavit seeking extended detention orders against the accused to facilitate investigations before later handing over the matter and exhibits to DCI Starehe.
38. During cross-examination by Mr Maina, PW4 stated that the body had been covered with a blanket when they arrived and that the scene was cordoned off by police. He explained that Mary identified the accused to him by pointing him out as he passed nearby, leading to his immediate arrest.
39. He further testified that several stones were present at the scene but he specifically collected the blood-stained stone identified by witnesses.
40. He acknowledged that he did not record Odhiambo’s statement and that he did not observe visible injuries on Odhiambo despite allegations that he too had been assaulted. He stated that he neither noticed alcohol on the deceased nor observed blood stains on the accused’s clothes. He also clarified that he verbally informed the accused of the reason for his arrest.
41. Upon re-examination by Ms Ogweno prosecution counsel, PW4 clarified that the building where the deceased lay appeared residential in nature and that by the time he handed over the file to DCI Starehe, not all witness statements had been recorded, including that of Jasiaya Odhiambo.
42. PW5 was Corporal Gladys Chepkorir who testified that on 19th March 2021 she was attached to Ruaraka Police Station and was on duty in the crime office together with Sgt. Buyuka when they were summoned by the OCS.
43. Upon reporting to the OCS, they were informed of a scene at Kasabuni Area. She proceeded to the scene in the company of IP Mbai and other police officers after being led there by three members of the public. Upon arrival, they found the body of a deceased person lying next to a house. They were informed that the deceased was Peter Ng’ang’a and that he had allegedly been hit with a stone by James Kinuthia.
44. PW5 further testified that officers from the DCI team based at Pangani were called to process the scene. After the scene had been processed, the body was removed and taken to City Mortuary. She further testified that the suspect was later arrested by officers on patrol within the area. She stated that there were many people at the scene but she personally did not see the accused.
45. She testified that the body was already covered when they arrived and she could not recall the names of the individuals who provided information at the scene.
46. She stated that she later learnt that the accused had been arrested by officers on patrol after being led by members of the public. She confirmed that from the time they arrived at the scene until the body was removed, she did not leave the area and did not recall seeing the accused there. She also testified that she did not recover any weapon from the scene and was not involved in processing the scene as that task was undertaken by the DCI officers from Pangani.
47. PW5 clarified that her role was limited to removal of the body to the mortuary together with some members of the public. According to her the officers first returned to the police station with the body where they stopped to draft a signal before proceeding to the mortuary.
48. She further stated that the deceased appeared dead when they collected the body from the scene and that at the mortuary, she did not know whether there had been any formal confirmation of death before the body was preserved.
49. PW6, PC Alex Ole Tanin No. 262069, testified that in the year 2021 he was attached to DCI Starehe Pangani though currently stationed at Karen DCI. He stated that on 19th March 2021, following communication from Ruaraka Police Station, he proceeded together with Sgt. Evans Gitonga to a scene within Kasabuni area.
50. Upon arrival, they found a body lying on the ground covered with a sheet and the face was not visible. He testified that scenes of crime officers from DCI Starehe joined them and documented the scene before the body was removed to City Mortuary by officers from Ruaraka Police Station.
51. PW6 further testified that at the scene, a blood-stained stone alleged to have been the murder weapon was recovered after members of the public indicated it had been used during the assault.
52. He stated that the stone was taken to the station and later, on 8th April 2021, he prepared an exhibit memo requesting the Government Chemist to conduct DNA analysis on the blood stains found on the stone. He testified that the exhibits forwarded included specimen “A” allegedly obtained from the deceased, specimen “B” from the accused, and specimen “C” being the blood-stained stone. According to him, the purpose of the analysis was to establish whether the blood on the stone originated from the deceased or the accused. He produced the exhibit memo as PExhibit 3.
53. During cross-examination by Mr Maina, PW6 stated that they had been called to the scene at about midday and arrived there later in the afternoon after briefing at Ruaraka Police Station.
54. He confirmed that by the time they reached the scene, the accused had already been arrested and was in police custody at Ruaraka Police Station. He testified that approximately twenty people were present at the scene and that the stone had been collected by officers from Ruaraka Police Station, though he could not recall the specific officer who recovered it. He further stated that there were no formal handover notes relating to the stone. He recalled that the stone had been found next to the body and that it was documented by a scenes of crime officer from DCI Starehe, though he could not remember the officer’s name.
55. PW6 testified that after receiving the stone, he took it to the exhibit store at DCI Starehe Pangani but could not recall whether the proper exhibit register entries were made. He stated that he submitted the stone to the Government Analyst on 8th April 2021, approximately two weeks after recovery. He further testified that he formally took over investigations from IP Mbai on 23rd March 2021 after some witness statements had already been recorded. He acknowledged that although the exhibit memo indicated that a sample from the deceased had been submitted to the Government Chemist, the Government Analyst’s report later indicated that no suitable reference sample from the deceased had been provided because the blood sample was putrid and unsuitable for comparison. He admitted that this discrepancy amounted to an error in the exhibit memo.
56. PW6 also testified that he escorted the accused to the Government Chemist where a buccal swab was taken from him, though he could not recall the officer who physically collected the sample. He confirmed that the accused agreed to the swab being taken and no written consent was obtained. He stated that by the time they arrived at the scene it was evening though not yet dark, the body was still covered, and the only exhibit recovered was the stone.
57. PW7, Sergeant Evans Gitonga, testified that he was currently attached to the Serious Crime Unit at DCI Headquarters but in 2021 had been stationed at Starehe DCI office. He stated that on 23rd March 2021, together with PC Alex Tanin, they were instructed by DCIO Musangi to take over investigations into a murder case from Ruaraka Police Station.
58. Upon reviewing the matter, they established that the incident had occurred on 19th March 2021 between 4.00pm and 5.00pm and that it was alleged that a fight had broken out between the accused and the deceased during which the accused used a stone to inflict injuries that resulted in the deceased’s death.
59. PW7 testified that at Ruaraka Police Station they met IP Mbai who informed them that he and his team had visited the scene on the material date, processed the matter with the assistance of scenes of crime officers from Starehe, arrested the accused, obtained custodial orders to continue detaining him pending investigations. Statements were recorded from two eye witnesses and recovered a stone from the scene as an exhibit. He stated that IP Mbai thereafter handed over both the accused and the recovered stone to them.
60. He testified that they transferred the accused to Pangani Police Station and on 6th April 2021 escorted him to Mathare Mental Hospital for psychiatric assessment.
61. He produced the psychiatric report dated 6th April 2021 prepared by Dr. Catherine Siengo Mutisya as PExhibit 4, which confirmed that the accused was fit to stand trial. He further testified that thereafter the stone was taken to the Government Analyst by PC Alex Tanin after PW7 had been transferred. He identified the accused before court as the same person they had taken over from Ruaraka Police Station.
62. PW8, Henry Kiptoo Sang, a Government Analyst based at the Government Chemist in Nairobi, testified that he holds a Bachelor of Science degree in Chemistry from Moi University obtained in 1997 and had approximately fifteen years’ experience conducting analysis of human body fluids and tissues, particularly DNA analysis. He stated that he prepared a DNA analysis report dated 11th May 2022.
63. PW8 testified that on 8th April 2021, while at work, the Government Chemist received a khaki evidence bag marked “C” containing a stone as well as a buccal swab sample obtained from the accused, James Kinuthia. He stated that the exhibits were delivered by PC Alex Tanin of DCI Starehe together with an exhibit memo requesting DNA analysis and comparison. Upon examination, he established that the stone was slightly stained with blood of human origin. He then conducted DNA analysis on both the blood stains from the stone and the buccal swab obtained from the accused. According to his findings, the DNA profile generated from the blood stains on the stone originated from an unknown male person. He testified that there was no DNA linking the blood on the stone either to the accused or to the deceased because a proper reference sample from the deceased had not been successfully submitted for comparison. He explained that although the exhibit memo indicated that specimen “A” was from the deceased, the blood sample provided was putrid and decomposed and therefore unsuitable for DNA comparison. He stated that no replacement sample was ever submitted. He produced the DNA analysis report as PExhibit 5.
64. PW9, Catherine Anyango Arum testified on oath that she resided at Kasabuni Estate in Baba Dogo, Nairobi. She stated that on 19th March 2021 at approximately 3.00pm she was inside her house and upon stepping outside she found the deceased Ng’ang’a, lying on a veranda situated about seven metres away from her house.
65. She testified that after approximately ten minutes, the accused, whom she identified as Kajim, arrived and demanded from the deceased a metallic device used for unlocking sewage lines. According to PW9, the deceased informed the accused that he did not have the device at that moment but would deliver it later at around 8.00pm.
66. PW9 testified that upon hearing that response, the accused became angry, started shouting abusive words including “Malaya, umbwa hakuna yule unalea,” and immediately began kicking the deceased on the rib cage. She stated that the deceased was drunk at the time and that the veranda where he lay was a place he commonly rested whenever intoxicated.
67. She further testified that a man identified as Stephen Otieno questioned the accused by asking him why he was beating a drunk person.
68. According to PW9, the accused then turned against Stephen Otieno and started fighting him as well. She testified that Amos, the accused’s brother, attempted to caution the accused to stop the assault but was unsuccessful. She further stated that the accused’s mother also shouted words to the effect that the people of Kasabuni were accustomed to them and that “Ongwaro must stay,” explaining that the accused’s mother was nicknamed Ongwaro because she had relocated from Kawangware and was also known to be violent.
69. PW9 testified that during the incident the deceased requested for water and she gave him some, but as he attempted to drink it he collapsed. She stated that she briefly went into the toilet and upon returning found three women present at the scene, one of whom was Nancy Gathoni, the deceased’s sister. She testified that she sent a young boy from the plot to summon the accused’s mother but she did not come.
70. According to PW9, the deceased died at the scene and Nancy Gathoni later proceeded to report the matter to the police station. She stated that she initially avoided speaking to the police because she feared retaliation from the accused’s family whom she described as violent. She therefore fled the scene and only recorded her statement at Ruaraka Police Station approximately two weeks later after police officers traced her and requested her to do so. She maintained that she personally witnessed the accused assault the deceased and stated that the attack occurred at approximately 3.00pm. She also pleaded for protection.
71. According to PW9, the accused assaulted the deceased through kicks to the abdomen and chest and eventually picked up a stone which he used to strike the deceased on the chest and head, causing bleeding from the ears.
72. PW9 further testified that Stephen Otieno who attempted stopping the accused from assaulting the deceased left to report the matter after he was also assaulted by the accused.
73. She stated that PW3 Emily Wekesa lived in the neighbouring block and arrived at the scene after the fight had already ended. She reiterated that Amos, the accused’s brother, also attempted unsuccessfully to stop the accused from beating the deceased. She testified that many people later gathered at the scene and that the accused only stopped fighting after his mother arrived.
74. The evidence captured above was analyzed by this court and the court in its ruling on a case to answer placed the accused person on his defense and he elected to give evidence and call witnesses.
DEFENCE CASE
75. In his sworn defense DW1, James Kinuthia Silima, the accused person, stated that he previously worked as a water vendor at Kasabuni, Baba Dogo, Kasarani during the Covid-19 period after construction sites where he had worked were closed. He stated that he was married with two children, namely Cecilia Anyango aged 12 years and Silima Amin aged 6 years, and that he lived near his brother’s residence.
76. He testified that on 19th March 2021 he opened his water vending business at around 9.00am. At approximately 10.30am, one of his regular customers who washed carpets and bicycles arrived. Later, at about 12.30pm, his brother Amos Ochieng joined them and remained there chewing muguka while DW1 continued selling water.
77. According to the accused the three remained together at the business premises until around 5.00pm when three men in civilian clothes approached them and asked for their names before commencing a search on them.
78. He stated that because he occasionally sold bhang, he assumed the officers were searching for bhang, though he did not have any at the time and therefore was not worried. He testified that two officers apprehended him and escorted him away without informing him why he was being arrested.
79. DW1 stated that he was taken to a nearby road where he found the OCS together with a crowd of people. He was instructed to sit down and was questioned by the OCS though he was not handcuffed. He further testified that after about three minutes his mother arrived at the scene and questioned the police regarding the reasons for his arrest but they did not respond to her. He was thereafter placed in a police vehicle and taken to Baba Dogo Police Station where he was booked. He testified that he initially believed his arrest was connected to the sale of bhang. He further stated that on the following Monday he was taken to Makadara Court.
80. DW1 testified that he knew the deceased, Ng’ang’a, merely as a village drunkard and denied having had any business dealings or disputes with him. He stated that at about 3.00pm on the material day he was still together with the two men at his water vending point.
81. He also testified that he knew PW9, Catherine Anyango, who sold chang’aa, though he did not see her on the material day. He stated that she lived in a mabati house reflected in the sketch plan though the sketch plan had not been produced in court. He further testified that he knew PW3 Emily Wekesa, who lived in a nearby storey building close to the alleged scene, but asserted that from the place where he conducted his water business, one could not see the scene.
82. DW1 further testified that he was later taken to the Government Chemist where a swab was taken from his mouth without the officers informing him of the purpose of the swab.
83. He stated that he had not changed his clothes before the swab was taken. He further complained that when the matter was later taken over by the CID, he was not cautioned in accordance with the law.
84. He denied knowledge of how the deceased died and alleged that PW9, Catherine Anyango, had differences with his mother and had therefore framed him. He urged the court to note that he was suffering as a result of the case.
85. During cross-examination by Ms Njoroge, DW1 reiterated that he sold water near his mother’s plot and that the residence of PW3 Emily Wekesa was approximately five minutes’ walk from his business premises.
86. He also stated that Catherine Anyango lived in the same area as PW3. He confirmed knowing PW2 Nancy Njoki as the deceased’s sister and again described the deceased as a drunkard though he did not know where he lived. He maintained that both PW2 and PW9 had disagreements with his mother in the year 2021 though he did not know the cause of the quarrels. He testified that he personally witnessed one such quarrel but did not intervene and understood that the matter had been reported to the Chief’s office, though he did not intend to call the Chief as a witness. He clarified that he personally had no differences with PW3 Emily Wekesa.
87. DW1 further testified that on the day of his arrest he remained throughout with Alan and Amos at the water vending point and did not leave the premises. He stated that he could not remember who else visited the premises that day. He confirmed that he recorded a statement in the matter and that he alone was arrested while the other two men were left behind.
88. He testified that he was chewing muguka at the time of arrest and up to the point of reaching the police station still believed the arrest related to bhang. He further stated that after arresting him, the officers took him to Emily’s place though he was not assaulted during the arrest and neither Alan nor Amos were beaten. He confirmed that his mother, Rosemary Anyango, was present in court during his testimony. He reiterated that he never learnt how the deceased died and denied having any differences with Catherine Anyango, Nancy Njoki or Emily Wekesa.
89. Upon re-examination, DW1 stated that he sold water to many people at his business premises and that his mother informed him she had learnt of his arrest through Alan. He also clarified that the disagreements between his mother and Catherine Anyango existed prior to his arrest.
90. DW2, Allan Maina Muthomi, testified that he worked at a car wash and previously worked as a casual labourer washing carpets at Kasabuni in Baba Dogo. He stated that on 19t
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