The Republic VS JOSEPH FUNDI NYAGA The Republic VS JOSEPH FUNDI NYAGA

The accused was charged with murder contrary to Section 203 as read together with Section 204 of the Penal Code. Particulars of the offence are that on 14^th November 2019 at Nyanjas bar in Muchonoke Shopping Center in Mbeere North Sub-county within Embu County, the accused person murdered James Mugo Kivivu. The accused person pleaded not guilty and a plea of not guilty was duly entered before the matter proceeded to full hearing.
PW1 was Lucy Kagendo Muriithi who testified that at the time of the incident, the accused and the deceased were both her customers at Nyanjas bar where she used to work. That she reported to work at 7pm and at around 8pm, the accused and one police officer known as Muasya entered the bar and began taking their drinks. That at around 9:30pm, the deceased, who was the accused’s employee at his video business, entered the bar through the back door and joined the accused and Muasya at their table. That she heard the deceased telling the accused that he did not want to continue working for him and Muasya told them not to discuss that subject while they were drunk.
She stated that the deceased left the bar and the following morning, she got the news that the deceased had been killed at Zebra Club. On cross-examination, she stated that she was the bartender and the only employee at the bar on the material day. That the accused and his companion entered the bar at around 8:30pm and the deceased, who was already drunk, joined them an hour later but he only stayed for around 3 minutes. That she closed the business at around 10:40pm and by that time, the accused and his companion had already left but she did not know where they went. She did not know how the deceased met his death.
PW2 was Alfred Muriithi Ngari, the deceased’s cousin, who stated that he identified the body of the deceased for purposes of postmortem at Siakago Hospital mortuary.
PW3 was Kissinjer Njeru Kivevu, the deceased’s brother. He stated that at around 10:45pm, his aunt known as Ng’endo arrived home hurriedly and told him that she had left the deceased bleeding. That he went to where the deceased was in the company of Gerald Mukundi and they found him lying at the gate of an estate called Zebra, appearing dead. That he had a torch and he saw that the deceased’s neck had been cut. That they reported the matter at the police station and then they waited until the body was removed by police officers. He testified that they recorded their statements with the police. That the day before that incident, the deceased told him that he had borrowed some money from the accused and the debt was bothering him.
He told the deceased that he would talk to the accused to give him some time to repay the debt but, in the meantime, he told the deceased to pick some miraa and sell it to raise the money. That the deceased had worked for the accused for about 1 year. On cross-examination, he stated that there are many tenants living at Zebra estate and the body of the deceased was found outside the small gate leading to the estate. That the deceased was selling bhang and he did not tell him how much he owed the accused. That the accused had been demanding the deceased to repay his money and he also threatened him. He stated that by the time he arrived at the scene, the deceased was already dead and he believes that it was the accused who killed him.
PW4 was Beatrice Ng’endo who stated that she had returned from her business when a neighbor called Gabriel told her to accompany her outside the gate where the deceased was lying. Gabriel told her that the accused was responsible for stabbing the deceased on the neck and he mentioned the accused’s name 3 times. It was her testimony that she called her mother to get help to take the deceased to hospital and then she went to the home of PW4 who accompanied her back to the scene together with Gerald Mukundi. That Mukundi touched the deceased and realized that he was dead then they reported the matter to the police, who went to the scene and took the body away.
That earlier that day, the deceased had gone to her house to ask for money to repay Kshs.2,000/= he owed to the accused, his employer. On cross-examination, she stated that her neighbor called her at around 11pm and she used a torch at the scene since it was dark. She believed that it was the accused who had killed the deceased because earlier that day, the deceased told her that the accused had been harassing him about money he owed him and later, the deceased was killed. That when she first went to the scene, the deceased was still alive and talking but crying. She did not see the accused or any murder weapon at the scene but the deceased said it was Fundi who had beaten him.
PW5 was Gerald Mukundi Kivevu, the deceased’s brother who stated that on the day of the incident, the deceased borrowed Kshs.600/= from him to repay a debt he owed the accused. That he told the deceased he did not have the money but they would raise it the following day after picking miraa. That the deceased told him that he had been selling bhang for the accused and he had used some of his money which he now needed to refund. He testified that the following day, PW3, PW4 and another person called Mukundi told him that the deceased had been killed and they asked him to go and break the news to his mother Mary Mboya. That he went to the accused to borrow his motorcycle but he refused to give it to him and said that the matter does not concern him and that the deceased should be left to die.
He did not understand why the accused would refuse to give the motor cycle to help his employee who had a stab wound on the neck and he was bleeding. He said that the deceased was working at the accused’s video shop and he was also selling bhang for him. On cross-examination, he stated that when he was looking for a motorcycle, he found the accused at another bar called Nyase and he was in the company of another person. That he did not see the accused killing the deceased.
PW6 was Dr. Mwaniki Job who conducted postmortem on the body of the deceased 4 days after the incident. He observed that the deceased had a deep cut on the left side of the neck measuring 5cm×3cm and another cut on the right lower abdomen measuring 2cm×1cm. The external carotid, internal and external jugular veins had been severed. He formed the opinion that the cause of death was cardiopulmonary failure due to hypovolemic (lower than normal blood volume) shock as a result of attack by a sharp object and a penetrating abdominal injury. He produced the postmortem report and death certificate as evidence and stated that samples were collected for further examination. On cross-examination, he stated that the time of death was approximately 4 days prior to the postmortem and the death was due to injuries that caused the bleeding.
PW7 was Kipng’etich Bernard from government chemist Nairobi. He stated that his office received samples from PC Brian Olweny of DCI Mbeere North with a request to examine the items for presence of and source of blood stains. The samples were, the deceased’s shirt, a soil sample from the scene, a soil sample from the accused’s home, the accused’s trousers (jeans), a pair of white shoed belonging to the accused, a blood sample in a vacutainer and a buccal sample of the accused. He stated that human blood was found on the samples and DNA profiles were generated. That the deceased shirt and soil sample from the scene contained the deceased’s blood while the accused’s clothes, shoes and soil sample from his home did not have blood stains. That the buccal swabs had no relationship with the DNA samples from the deceased’s shirt. On cross-examination, he stated that he could not connect the accused with the offence through his findings.
PW8 was Dr. Sheila Shavulimo of Embu Level 5 Hospital who stated that she examined the accused and found that he had no mental illness and was fit to stand trial.
PW9 was CI Peter Mururu who stated that a member of the public called to inform him that someone commonly known as Msanii had been cut as he was going home from Muchonoke. That he sent PC Muasya and PC Rashid to the scene and then he called the OCS Siakago and the DCI. They cordoned off the scene and PW4 informed them that she was the first person to see the deceased. Another person said that before the deceased died, he said that the accused was his attacker and the body was found outside the gate leading to his home. They went to the home of the accused and when they arrested him, they found muddy shoes and trousers in his house.
The accused told them that when he heard about the death of the deceased, he fell down unconscious and that is how his clothes and shoes got soiled. The accused was taken to Siakago Police Station. On cross-examination, he stated that before he reached the scene, he had sent 2 officers to cordon it off. He was aware that one of the officers, PC Muasya was drinking with the accused earlier that night and he was interviewed and he recorded his statement but he is not a witness in the case. He stated that the bar where the accused and PC Muasya were drinking at was about 1½km from the scene and none of the people they interviewed saw the accused killing the deceased.
PW10 was PC Owino Keith formerly of DCI Mbeere North who was also the investigating officer in the case. He stated that he took over investigations from a colleague who was going away on transfer and had handed over to him exhibits and an exhibit memo. That he sent samples to the government chemist for further analysis and other samples were mobile phones which were produced as evidence. The mobile phone analysis showed that the accused and the deceased were in communication with each other and that the deceased was the accused’s employee at his video business.
He stated that the investigations revealed that the deceased had sold bhang on behalf of the accused but he did not remit some of the proceeds to the accused. That the accused and the deceased had a wrangle at a bar and that PC Muasya had stopped the altercation. That later on, the accused left the bar before the accused and he was found dead at the gate leading to his house. PW4 told the police that she had been called by a neighbor to see her relative who was lying in a pool of blood outside the gate and she notified the other family members.
On cross-examination, he stated that he took over investigations in the case and he did not know that officer Muasya was not a witness in the case. That one of the 3 phones belonged to the accused but he did not know where the other 2 came from. That he was told by PW4 that the deceased named the accused as his attacked before he died. That he did not visit the scene and no murder weapon was recovered.
PW11 was PC Edward Muasya who stated that the accused was his friend and on the material day, he called him to take him to Muraru market on his motorcycle. That the accused took him to Muraru and then returned him to Muchonoke market where they went to Nyanjas bar for a drink. That at around 10:45pm, the deceased went to the bar to bring the accused person the money he had brought from his video business but it was less Kshs.900/= which the deceased promised to pay the following day. That the deceased then asked the accused for Kshs.40/= to buy bread but the accused refused to give him and a scuffle ensued.
He stated that he convinced the deceased to go home and at around 11pm, he parted ways with the accused on his way home and he returned to the police station. That when he arrived at the station, he found the deceased’s relatives who reported that the deceased had been found dead outside the gate leading to his rented home at Zebra. It was his testimony that he went to the scene in the company of his colleagues and they found the deceased with a slit throat appearing dead. That the body was removed and taken to Siakago Mortuary and the accused was arrested and taken to Siakago Police Station after PW4 said that the accused was the suspect as named by the deceased. No weapon was recovered at the scene.
On cross-examination, he stated that the accused and deceased did not argue about the deficit of Kshs.900/= but the argument was about the deceased demanding Kshs.50/= for bread from the accused. That when he parted ways with the accused, he was walking but the accused rode his motorcycle home. That as he was walking, he was given a lift by a bodaboda person to the police station. That from the bar they were at to the scene is 500-600 meters. According to him, the accused ran a video library business and he did not know if there was any other business besides that one.
After the close of the prosecution’s case, the court found that the accused person had a case to answer and he was placed on his defense.
DW1, the accused person, stated on the material day, PW11 called to ask him to help him transport a gaming machine from Muchonoke to Muraru and he did. That the gaming machine was set up and he fed it with cash then he received a call from PC Rashid before they left Muraru for Muchonoke to Nyanjas bar. That he had some drinks with PW11 and the deceased went to the bar and gave him Kshs.2,000/= being the day’s proceeds from his video business. The money was less Kshs.900/= and the deceased told him that he would give him the money later then he asked him for Kshs.50/= but he refused to give him.
He stated that PW11 told the deceased to leave and he left saying that he would bring the balance of the sales the following day. That afterwards, the deceased’s brother went to the bar to borrow his motorcycle to take the deceased to hospital but he refused and they stayed in the bar until 11pm with PW11 then he left for home where he arrived at 11:30pm. That the same night, he was arrested by the police in connection with the incident. On cross-examination, he stated that the deceased had been his employee for a period of 9 months. He said that he did not quarrel with the deceased that night neither did he kill him.
After the close of the defense case, the parties filed their written submissions.
The accused submitted that the prosecution witnesses did not place him at the scene and there were no DNA findings pointing to him as the assailant. That there was also no evidence proving that the accused committed the offence even though the deceased owed him Kshs.900/=. That at the time of reporting the incident, PW3 and PW4 did not mention the accused as a suspect. That one Catherine Kasyoka David who recorded her statement was not called as a witness and her testimony contradicts that of PW3 and PW4 regarding the alleged debt amount the deceased owed the accused.
The prosecution submitted relying on section 203 of the Penal Code and the case of Anthony Ndegwa Ngari v Republic (2014) eKLR. It was its submission that the accused person’s presence at the scene can be proved through direct and circumstantial evidence of PW2, PW3, PW4, PW5, PW6 PW9 and PW10. Further reliance was placed on the case of Republic v. Stephen Sila Wambua (2017) eKLR and it argued that the death of the deceased was not executed in self-defense and nothing in his defense weakened the prosecution’s case. That the chain of circumstantial evidence is strong and it implies the deceased as the perpetrator and it relied on the case of Republic v. Richard Itweka Wahiti (2020) eKLR.
That the body of the deceased was discovered at the scene shortly after he had an altercation with the accused. That the deceased was not dead when PW4 found him but it is suspect that the accused refused to offer his motorcycle to take him to hospital that night. It relied on section 119 of the Evidence Act and stated that the court should presume that the accused was the one who murdered the deceased because of his conduct that night. It relied on the case of Republic v. Richard Mbaabu (2014) eKLR and argued that the accused had malice aforethought to murder the deceased.
The issue for determination herein is whether or not the offence of murder has been proved beyond reasonable doubt.
Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law. Section 203 of the Penal Code provides:

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

In the case of Republic v W.O.O. [2020] eKLR (Migori High Court Criminal Appeal No. 26 of 2017) the elements of murder were explained, as guided by the Court of Appeal in the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR, as follows:

“For the offence of murder to be proved, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.”

The first element is death and cause of death. PW6 testified that the cause of death was cardiopulmonary arrest due to hypovolemic (lower than normal blood volume) shock as a result of attack by a sharp object and a penetrating abdominal injury. His testimony also detailed the injuries inflicted upon the deceased that led to his death.
The second thing is to prove that the accused is responsible for inflicting the fatal injuries upon the deceased. PW1 testified that she was working at Nyanjas bar when she heard the accused, who was sitting with PW11, talking with the deceased and the deceased was telling him that he was not interested in working for him anymore. That PW11 tried to stop the altercation and told them not to talk about that issue while they were drunk. PW3 testified that prior to his death, the deceased had borrowed some money from him saying that he owed the accused money. That he told the deceased that he would talk to the accused to give him some time to repay the money and then he told the deceased that he would help him raise the money the following day.
That night, PW4 told PW3 that she had found the deceased bleeding outside the gate leading to their estate and near Zebra bar. PW4 also said that the deceased had borrowed some money from her earlier that day so that he could repay the accused. He told her that he owed Kshs.2,000/=. PW5 was with the deceased at Muchonoke at about 9pm and he had borrowed Kshs.600/= from him saying that he owed the accused some money but the did not say how much. That PW5 told the deceased that he would help him raise some money the following day and they parted ways only for PW3 to call him later telling him that the deceased had been found dead. PW4 said that when she first found the deceased, he was not dead and he said that he had been attacked by the accused and she relayed this information to the police, according to PW10.
PW11 said that he was at Nyanjas bar with the accused and the deceased went to the same bar at around 10:45pm and left. That he parted ways with the accused at 11pm and he walked to the police station before he was offered a lift by a bodaboda rider while on his way. He said that the accused rode his motor cycle home. PW11 arrived at the police station at 11:30pm and he found PW3 and PW4 reporting the incident. He stated that he went to the scene with his colleagues at around midnight. PW5 said that he received the news of the incident at around 11.00 p.m and he went to try and get transport to his sister’s place to inform her of the incident. That he asked the accused for his motor cycle but he refused and he told him ‘hiyo inanihusu nini’ (that is not my concern) and ‘achana na yeye akufe’ (let him die). PW5 said that by the time he went to ask the accused for help, he found him sitting with PW11.
In his defense, the accused stated that he arrived home at 11:30pm after parting way with PW11. There is no direct evidence placing the accused at the scene of crime but the court can examine plenty of circumstantial evidence arising from the case. For guilt to be inferred from circumstantial evidence, there has to be a strong chain of evidence. In the case of Chiragu & another v Republic (Criminal Appeal 104 of 2018) [2021] KECA 342 (KLR) the court stated:

“Thus, there was no direct evidence linking the appellants to the death of the deceased. The prosecution case on this aspect therefore hinged on circumstantial evidence. In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, this Court had this to say on circumstantial evidence: “However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: ‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.’”

According PW11, he parted ways with the accused at 11pm and he arrived at the police station at 11:30pm just when the incident was being reported. The accused said that he also got home at about 11:30pm after leaving the bar. PW5 said that when he went to ask for help from the accused, PW11 was sitting at the bar with him and it was at around 11pm. PW1 said that the deceased entered the bar at around 9:30pm and he stayed about 3 minutes. PW11 said that the deceased entered the bar at around 10:45pm and then he left and they left at 11.00 p.m but both him and the accused got to their destinations at 11:30pm.
From this, there is a gap in time between 11.00 p.m and 11:30pm when the accused was not with PW1 and he was not at home. This time is not accounted for but the accused and his whereabouts between that period are unknown. It is not known where the deceased went after he left Nyanjas bar that night but he was found dead at around 11.00 p.m. It was PW1’s evidence that she closed the bar at around 10:40pm and by that time, the accused and PW11 had already left the bar. The accused said that he got home at 11:30pm. This means that there is an unaccounted period between 10:40pm and 11:30pm when he got home. Either way we look at it, his whereabouts that night are not known and the accused was the last person he had disagreed.
It is highly likely that the accused was at the scene that night. However, this evidence does not prove beyond reasonable doubt that the accused committed the offence. The circumstantial evidence raises a very strong suspicion that the accused was at the scene that night. Suspicion is not enough to place him at the scene, and possibly convict him. Additionally, the witnesses who found the deceased said that he was lying in a pool of blood and at first, he was not dead. However, PW7 testified that after analyzing the samples sent to his office, he couldn’t find a connection between the accused and the offence. There were no blood stains on his shoes and clothes. In the case of Musili Tulo v Republic [2014] KECA 412 (KLR) the Court of Appeal held:

“There may well be serious suspicions that the appellant killed his wife, but suspicion alone, however high, has never sustained any conviction for a criminal offence.”

Therefore, I find that the evidentiary burden has not been discharged to the required standard. The prosecution has failed to prove the offence against the accused person beyond reasonable doubt. The accused is hereby acquitted of the offence of murder contrary to section 203 of the Penal Code.
It is so ordered.

Delivered, dated and signed at Embu this 4^th day of December, 2024.