The Republic VS Joseph Murathi Njeru AND Nancy Muthoni Kinyua The Republic VS Joseph Murathi Njeru AND Nancy Muthoni Kinyua

The accused persons are facing 2 counts of murder contrary to Section 203 as read together with Section 204 of the Penal Code. The particulars of the first count are that on 01^st May 2019 at Kanungo village, Kaagari South East location in Embu East subcounty within Embu County, the accused persons, jointly with other not before court, murdered Joseph Kinyua. The particulars of the second count are that on 01^st May 2019 at Kanungo village, Kaagari South East location in Embu East subcounty within Embu county, the accused persons, jointly with other not before court, murdered Mwiti Gikware.
Upon arraignment, they pleaded not guilty and a plea of not guilty was duly entered for each of them before the matter proceeded to full hearing.
PW1 was Philis Kanini who stated that she identified the body of Mwiti Gikware (deceased) at Embu Level 5 Hospital Mortuary. That the 2^nd accused is known to her.
PW2 was James Muriithi Nyaga who stated that on the day of the incident, he left Ugweri Market in the company of his fellow bodaboda rider, one Samuel Ndwiga and they headed towards Kanungo shopping center. That while on the way, they met 5 people but he could only recognize one of them and he carried Samuel- the butchery owner on his motor cycle. That a few meters from Kanungo, his companion signaled him to stop as had other bodaboda operators, and he did so. That his companion Samuel Ndwiga gave him Kshs.100/= and he began riding back. While on the way back, he stated that he heard something like a gunshot coming from the direction of Kanungo but he did not stop. That later that evening, he learned from the news that 2 people had died and one of them was an OCS. On cross-examination, he stated that his friend Samuel Ndwiga carried one person and he carried 2 people on his motorcycle, one being Samuel- the butchery owner.
PW3 was Rahab Muthoni Nyaga, a trader at Kanungo shopping center. She stated that she was returning from purchasing stock for her shop when she saw Dave being held by a crowd. That one person was holding a stick which he wanted to used to hit Dave but she restrained him. That Dave was made to sit down and one person who was holding a pistol aimed at Dave’s shoulder and fired it. That Dave bled profusely and he was taken to hospital but his wife informed them that he had died. That 2 of the people who had accosted Dave, jumped over the fence and got away but she did not recognize them. This witness was stood down pending production of the original witness statement.
PW4 was Dr. Moses Njue Gachoki who stated that he conducted postmortem on the body of the 2 deceased persons. That he examined the body of Joseph Kinyua (deceased) at Jamii Hospital and he observed that there was foaming from the mouth and nostrils. That there were numerous sharp and blunt lacerations from the face to the back of the head as follows: stellate laceration on the right side of the head; 3cm long sharp longitudinal incision over the occipital scalp; deep cut from the face to the base of the nose, measuring 3×1 cm; long sharp cut on the forehead measuring 4×0.5cm; abrasion on the right side of the face measuring 5×4cm as a result of being dragged on the ground; an amputated left earlobe. Upon internal examination, he observed that there was a complex fracture of the skull on the back of the head extending to the spinal cord. He stated that the observation was evidence of massive blunt force occasioned on the head, which he documented as the cause of death.
He also testified that he examined the body of Mwiti Gikware (deceased) at Embu Level 5 Hospital. He observed that the skull was deformed and the main injury was at the back of the head. That there was a superficial injury on the face, abrasion on the left arm and intravenous line mark on the left elbow. That there were blood clots under the skull and the brain was covered with blood. That the pressure within the brain was raised. He formed the opinion that the cause of death was massive injury due to blunt forces and sharp injuries to the skull. He produced the postmortem reports for both deceased persons as evidence.
PW5 was Rtd. C.I. Paul Kimiti formerly of Runyenjes Police Station. He stated that Joseph Kinyua (deceased) was the former OCS Chuka Police Station. It was his testimony that on the day of the incident, he was at the station when the chief (Daniel Ndwiga) of Ugweri location called to inform him that members of the public had informed him that there were 3 people claiming to be police officers and they were terrorizing them. That while he was mobilizing his team to visit the scene, the chief called him again informing him that the people who were alleging to be police officers had shot someone. That the chief later joined him and his team and while they were enroute, they were informed that the people at the scene had killed the OCS. That on arrival, they found the people at the shopping center being unruly, uncontrollable and they were armed with crude weapons.
He stated that the 3^rd accused person was armed with a Jericho pistol which they recovered together with an empty magazine, which were produced as evidence. That the members of the public handed over to the police 2 live ammunitions. He stated that the chief advised him to leave the scene since the crowd was growing and was charged. That he saw the bodies of the deceased persons in the mortuary and he revisited the scene later when it was deserted. He stated that the OCS was killed 200 meters from the market and he found a holster used to carry the gun at the scene.
On cross-examination, he stated that the commander had gone to the scene on a bodaboda having left the police vehicle at Ugweri and his mission was to rescue the OCS who had been shot. That on his way to the scene, he met the police officers carrying the body of the OCS from the scene. That the police officers had used their weapons to disperse the crowd but the cartridges he was given were empty and had been used in different firearms. That he did not see the 1^st and 2^nd accused persons at the scene but the 3^rd accused was there and he voluntarily handed over his firearm to the police.
PW6 was Senior Superintendent of Police, Bashir Mohamed Abdullahi who was Tharaka Nithi County Commander at the time of the incident. He stated that on the day of the incident, he received reports that the chief of Igamba Ng’ombe had been murdered and the suspect was at Ugweri. That C.I. Joseph Kinyua (deceased), who was the OCS Chuka and 7 other police officers went to Ugweri to look for the suspect. That when they arrived at Ugweri, members of the public told them that the suspect was at Kanungo but since they did not know him physically, they went with an informer who could identify the suspect. The informer was Mwiti Gikware (deceased).
He stated that even before they could apprehend the suspect they were after, the 2^nd accused person raised an alarm saying that they were thieves and a crowd started gathering. That the crowd continued growing until there were about 200 people who were armed with pangas. That he began talking to them in a bid to identify himself as a police officer but while he was in the process of doing so, Joseph Kinyua (deceased) shot in the air. That he went near the OCS and persuaded him to leave the scene so that they could seek for reinforcement. He stated that he took a bodaboda and when he reached the main road, he called officers from Chuka on the phone who came in a vehicle and together they returned to the scene where they found the OCS had been badly injured. That he took the OCS and the other deceased person to Runyenjes hospital but the OCS died while on the way while the other deceased person died the following day.
He testified that no weapons were recovered at the scene that day but the OCS’s pistol was taken to the police station by the area chief, who said that a member of the public had given it to him. On cross-examination, he stated that he was an investigating officer in the murder of the Chief and he had gone to arrest the suspect who was David Ikamba’s father but when the 2^nd accused saw the informer, she started screaming. He stated that he did not know the nature of their relationship, if any. That the 2^nd accused started screaming immediately they arrived and so the police officers did not have time to identify themselves.
It was his further evidence that there were 3 police officers and the informer at that point and that it is David Ikamba who hit the OCS with a rungu. That the commotion began almost 10 minutes after they arrived. That he saw the 1^st accused person leaving his business and he was calling out to more people to gather at the scene. That after he heard gunshots, he only saw the 2 deceased persons. That the crowd was under the impression that the police officers were thieves. That the 2^nd accused is the wife of David Ikamba who was later reported to have been shot dead. That he did not see the 3^rd accused person at the scene.
PW7 was P.C. Daniel Kiragu who produced photographic evidence of Joseph Kinyua (deceased). He stated that he did not take any photographs of the other deceased person.
PW8 was Senior Superintendent of Police, Florence Karimi, a ballistic expert and firearm examiner working at DCI headquarters. She testified that she examined one Jericho pistol, one magazine, five fired cartridge cases and 2 rounds of ammunition, which were exhibits presented to their ballistic laboratory by Sgt. Samuel Ekodoi. She observed that the pistol was in good mechanical working condition with all its components including its 16 rounds box detachable magazine. That she tested the pistol using 3 rounds of ammunition picked from their laboratory and the test cartridges were recovered for further examination.
She stated that her opinion was based on matching ejector markings and sufficient matching firing pin indentation markings. She found that the cartridge cases presented for examination were fired from the same firearm. However, in comparison with the 3 rounds used to test the pistol, the 5 cartridge cases from the crime scene did not match any other outstanding similar caliber cartridge cases submitted in the laboratory. She also observed that the 2 rounds of ammunition that were collected from the crime scene are designed to be chambered in firearms such as G3 rifles, LIAI, among others and that one of them was fired in the laboratory in a G3 rifle picked from the facility. She formed the opinion that the pistol and the rounds of ammunition are capable of being fired being a firearm and ammunition within the meaning of Firearms Act.
PW9 was Jane Mumbi Ngure who is the elder sister of Joseph Kinyua (deceased). She stated that she was present during the postmortem exercise and she identified the body of the deceased to the pathologist.
PW10 was Mercy Wahu Chiiria who is the assistant chief of Gicera sub-location. She stated that she knows the accused persons who hail from her jurisdiction. She testified that on the day of the incident, she was at home when her informer called to tell her that he had heard gunshots at Kanungo and she called the chief, Daniel Ndwiga to inform him but he was already informed. That she took a motorcycle towards Kanungo and while enroute, she saw 2 people shooting in the air and a civilian being dragged into the police vehicle. She saw a police vehicle leaving the scene and shortly after, another police vehicle arrived carrying the chief, the OCS Runyenjes and other officers.
She stated that she got off the motorcycle and joined them as they went towards the scene, where a big crowd had gathered and the chief tried to address them. That in the process, the 3^rd accused person called her and showed her a pistol but she called the OCS who took the pistol from the 3^rd accused. She stated that she only saw the 3^rd accused person at the scene. On cross-examination, she stated that she did not indicate in her initial statement that she saw civilians shooting in the air but she stated that she indeed heard gunshots.
That she could not tell what transpired and what led to the death of the deceased persons. That the 3^rd accused person arrived at Kanungo market carrying a pistol about 35 minutes after she arrived. That she called the OCS who took the pistol and that the 3^rd accused appeared normal. That she did not know the owner of the pistol but what the 3^rd accused did was the right thing. Upon re-examination, she stated that she saw the 2 civilians both holding guns. That when she asked the 3^rd accused person where he got the pistol from, he told her that he had picked it up. That after the OCS had taken the firearm, he did not ask the 3^rd accused where he had found it.
PW11, Dr. Sheila Shavulimo of Embu Level 5 Hospital, produced a mental assessment report authored by Dr. Thuo who conducted a mental assessment on the 3^rd accused and he found him fit to plead.
PW12 was Sgt. Samuel Onyamasi of DCI Embu East who was assigned to investigate the case. He stated that from the investigations, he learned that police officers from Chuka Police Station had gone to effect an arrest and they were accompanied by officers from Runyenjes Police Station who were dressed as civilians. That the suspect being pursued was one David, husband of the 2^nd accused. That when the officers arrived at the market, the 2^nd accused raised alarm saying that they were being attacked by thieves (meaning the police officers dressed as civilians). That a crowd gathered and started attacking the police officers, forcing the OCS Chuka Police Station, deceased, to draw his pistol and he began shooting in the air to disperse the crowd.
He stated that in the process of the scuffle, the OCS was fatally wounded by the suspect (David) and the informer who had accompanied the police officers was also fatally injured. That the police officers had tried to escape from the scene but the members of the public were in hot pursuit and cornered the OCS and the informer. That initially, the officers who had accompanied the deceased OCS were left at Ugweri and were to go to Kanungo after receiving a call from the commander. That after a while when they did not receive the call, they went to Kanungo and that is where they found the OCS having been badly injured.
It was his testimony that the other officers took him to Tenri Hospital where he was pronounced dead on arrival. That it is the OCS Runyenjes who rescued the informer from the scene and took him to Runyenjes hospital before be was referred to Embu Level 5 Hospital for further treatment. That David, the suspect whom they were pursuing was taken to St. Michael Hospital where he was pronounced dead on arrival and his body was taken to Embu level 5 Hospital Mortuary. That he sent the file to the ODPP and at the time he had arrested the 1^st and 2^nd accused persons. The 3^rd accused person was arrested later in Gilgil following a tipoff from his wife.
He stated that the 1^st accused is the one who was mobilizing the crowd and gathering crude weapons for them, which weapons were used to kill the deceased persons. He was wearing a brown overall which was recovered as evidence. The 2^nd accused is the one who misled the crowd by raising alarm saying that the police officers were thieves and she was armed with bows and arrows. She is also a sister-in-law to Mwiti Gikwere (deceased) and the wife of David who was suspected of killing the chief of Kamaindi location and she knew that the police had gone to arrest her husband with the help of her brother-in-law as an informer. The 3^rd accused is the one who handed over the late OCS’s firearm to the OCS Runyenjes and then he disappeared from the area until he was arrested in Gilgil.
He produced the 1^st accused’s brown overall, bow and arrows, the Jericho pistol, live and used ammunition, the magazine and sketch plan of the crime scene. Upon cross-examination, he stated that the bow and arrows were not used in the murders. That the 2^nd accused and the deceased informer knew each other well and they were related. That she was arrested and arraigned because she raised the alarm that drew the crowd to the deceased persons and that besides that, there is no other evidence against her. That the 1^st accused was identified in an identification parade but the relevant form was not produced as evidence. That the pangas were not recovered from the scene and the testimony to that effect was given by PW6. That the 1^st accused is the only employee of the posho mill and he was identified using his brown overall.
It was his evidence that the 3^rd accused was arrested in Gilgil but no OB was produced as evidence. That following the incident, he recorded witness statements the following day but by then, the 3^rd accused had already disappeared and to date, he has never recorded his statement on the occurrence of that day. That the firearm recovered by the 3^rd accused was not used in the murders and that the 3^rd accused did the right thing to hand over the firearm to the police. On re-examination, he stated that the ID parade form was misplaced, which is why it was not produced as evidence.
PW13 was Cpl. Patrick Musyoka Muli formerly of Ishiara Police Station. He stated that he accompanied the police officers from Chuka who were pursuing a suspect. That he accompanied them to Ugweri where they were informed that the suspect was at Kanungo at his place of business, a butchery. That since Kanungo was a small market, they decided to go using motor cycles so as not to scare the suspect away if they used their motor vehicles. That him and the informer took one motor cycle and PW6 and Joseph Kinyua (deceased) took another one.
He stated that when they alighted from the motorcycles, the informer spotted the 2^nd accused and they went to the front door of the butchery and then the 2^nd accused person entered the house and came out with bows and arrows and she was shouting saying “Gitonga, Gitonga”. That he introduced himself as a police officer and she dropped the bow and arrows. That a man ran from the kitchen and the informer told them that it was the suspect they had gone to arrest, and he pursued him and caught up with him just before he jumped over the fence. That the OCS held the suspect who was trying to resist arrest and the 2^nd accused shouted saying “wachana na yeye, sio yeye” until a crowd started gathering.
At that time, PW6 was trying to call the driver of the police motor vehicle to come to the scene and take the suspect but he couldn’t reach him on the phone. The crowd began agitating that the suspect be released but Joseph Kinyua (deceased) introduced himself and the other police officers and told them that the suspect would be released if he was not found culpable but the crowd insisted that the suspect be set free. The 2^nd accused went into the house and returned with a panga, rungu and loose stones. That one young man who was demanding for the release of the suspect took the panga and stones and the crowd was rapidly growing bigger.
In a bid to contain the crowd, OCS (Joseph Kinyua (deceased)) shot in the air but some young men dared him to kill them. That at that moment, he released the suspect and told the OCS that they should escape but the OCS refused and he began retreating with the informer as the crowd pelted stones on the deceased OCS. That him and the informer managed to jump over the fence and he escaped and entered an open house and locked himself inside. That the crowd continued charging at the OCS and he continued to shoot in the air to save himself.
That the crowd pursued him to where he was hiding and they were trying to access the house through the roof when he was saved by the police officers who arrived at the scene. That they brought the vehicle near the door of the house and he entered, leaving his shirt behind and by then the OCS had been badly injured and he was pronounced dead on arrival at the hospital before investigations began. He stated that the accused persons were identified, arrested and arraigned.
On cross-examination, he stated that the 3^rd accused person was part of the crowd and he was saying “ua, ua”. That by the time the 2 deceased persons were killed, he was hiding inside a house, thus he did not see who killed them. He was not aware of whether the OCS shot and killed the suspect they were pursuing. That the ID parade was conducted because he did not see any of the accused persons. That he did not witness preparation of the ID parade forms.
At the end of the prosecution’s case, the court found that the accused persons had a case to answer and they were placed on their defense.
DW1 was the 1^st accused person who stated that on the day of the incident, he was at his home in Kerero village, Karurumo, which is 40KM away from Kanungo where he was arrested as he had gone to seek for menial jobs. That he was given a job by Kithaka Karukenya and that the workers there put on dust coats but he does not know those workers. That he does not know anything about the death of the deceased persons. On cross-examination, he stated that he was at home on the day of the incident and that he went to Kanungo the following day to look for a job.
DW2, the 2^nd accused person stated that on the day of the incident, she was at her butchery business with her husband David Kinyua. That suddenly, she saw 2 men coming in and they got hold of David and he started screaming and a crowd gathered. That there was a third person who was shooting and when the crowd gathered, they ran away and they saw David falling down. That they took him to Emco Hospital Runyenjes with the police but he was pronounced dead on arrival.
She stated that she was arrested the following day and was charged with the offence. That when she saw that the 3 men had disappeared, her attention turned to her husband and she did not see who killed the 2 deceased persons. That they did not identify themselves and she did not know who the people who had come for husband were. On cross-examination, she stated that she did not scream but she rushed to where her husband was. That one of the 3 men was beating her husband and the crowd started gathering when the 3^rd man started shouting. She denied having raised alarm saying that thieves were upon them and she stated that she did not know that the 3 men were police officers.
DW3 was the 3^rd accused person who stated that he lives and works in Nakuru and that he had gone home in Kanungo to attend his cousin’s burial. That on the day of the incident, he had gone near Kanungo shopping center to collect fodder for the cows when on his way back home, he saw a pistol on the path. That at first, he ignored it but when he returned for another trip of fodder, he saw the pistol again and that is when he resolved to pick it up and take it to the sub-area chief.
That the sub-area chief declined to receive it and instead, took him to a police officer who received it and then he was asked to go to the police station. That the following day he was travelling back to Nakuru and he was later arrested in connection with the incident. On cross-examination, he stated that the pistol was lying along the road which is through somebody’s land which is about 300 meters from the shopping center. That the members of the public were far from where the pistol was found.
The defense case was closed and the court directed that the parties file their written submissions. Only the 3^rd accused person and the prosecution complied.
In its submissions, the prosecution relied on the case of Anthony Ndegwa Ngari v. Republic (2014) eKLR and section 203 of the Penal Code. It also relied on Article 26 of the Constitution and the case of Republic v. Stephen Sila Wambua (2017) eKLR. It was its submissions that PW6 and PW13’s testimonies place the accused persons at the scene of the crime. That the deaths of the deceased persons were caused with malice aforethought according to section 206 of the Penal Code and the case of Joseph Kimani Njau v. Republic (2014) eKLR. It urged the court to consider the testimony of PW9 who testified on the nature of injuries sustained by the deceased persons and infer malice.
It was the prosecution’s submission that according to section 21 of the Penal Code and the cases of Njoroge v. Republic (1983) eKLR, Dickson Mwangi Munene & Another v. Republic (2010) eKLR and Otieno Evans Oduor v Republic (2021) eKLR the accused persons had a common intention to prosecute an unlawful act which resulted in the death of the deceased persons. It urged the court to dismiss the defenses of the accused persons terming them as mere denials.
The 3^rd accused person submitted stating that he acted in good faithby collecting the firearm which was lying on his path and taking it to the assistant chief. That he did not at any point enter the shopping center but he called the assistant chief aside and gave the firearm to her. That the weapon was handed over to the police officer and he left his details behind but they never called him to record his statement. He cited evidential gaps in the prosecution’s case against him and urged the court to acquit him, while placing reliance on the case of Pius Arap Maina v. Republic (2013) eKLR.
It is now upon this court to determine whether the prosecution has proved the offence of murder beyond reasonable doubt against the accused persons.
Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law. The accused persons herein face the charge of murder contrary to section 203 as read together with 204 of the Penal Code. It is the duty of the prosecution to prove beyond reasonable doubt, that the accused persons murdered the deceased. These provisions of the Penal Code provide the elements of the offence as follows:

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

204. Any person who is convicted of murder shall be sentenced to death.”

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 stated, being 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.”

On the first element of death and cause of death, PW4 produced postmortem reports for both deceased persons. He observed that the deceased persons suffered severe injuries to the head and concluded that the cause of the death of Joseph Kinyua (deceased) was due to massive blunt force occasioned on the head. In the case of Mwiti Gikwere (deceased), he concluded that the cause of death was massive injury due to blunt forces and sharp injuries to the skull.
On the element of unlawful act which caused the death of the deceased, the prosecution bore the burden of proving that the accused persons are linked to the death of the deceased. From the flow of evidence by the prosecution, it is settled that the deceased persons met their death while on a mission to arrest a suspect in another murder case. This suspect was one David Ikamba (deceased) and he is the husband of the 2^nd accused person. PW3 stated that she saw 2 people in civilian clothes holding Dave (David) and one of them shot him before the men ran away and jumped over the fence.
PW5 stated that he received a phone call from the chief informing him that there were 3 people pretending to be police officers and they were terrorizing members of the public. That while he was mobilizing a team of officers to visit the scene, the chief called him back and informed him that the alleged masqueraders had shot somebody. That while he was enroute, the chief called to inform him that the OCS who had gone to effect an arrest had been killed. He stated that when he arrived at the scene, the deceased persons had already been attacked and the 3^rd accused had surrendered a pistol and an empty magazine. That he did not see the 1^st and 2^nd accused persons at the scene.
PW6 stated that he was in the company of the deceased persons and their mission was to arrest a suspect whom they had been told was at Kanungo. That when they arrived at the small shopping center, the 2^nd accused raised alarm saying that they were thieves since they had gone on the mission without their uniforms or police motor vehicles. That as a result of the 2^nd accused’s reaction, a crowd began to gather and it was rapidly growing.
That in as much as they had apprehended the suspect, it worried him that the crowd was becoming bigger and more charged and so he retreated to call for reinforcement from officers who were waiting for his call at Ugweri, a nearby shopping center. That since there was no network, he moved a distance further to the main road and when he returned, he found the deceased persons had already been lynched by the mob and the OCS was badly injured. He stated that the chief brought him a pistol which had been given to her by the 3^rd accused person. He did not see the 3^rd accused person at the scene but he was not sure.
Regarding the firearm, PW4 testified that the cause of death of the deceased was severe head injuries and there were no gunshot wounds on the deceased. However, PW8, a ballistic expert testified that upon examining the firearm, the magazine, live and used ammunition, there is no doubt that the firearm was indeed discharged at the scene. PW10 is the one who received the firearm from the 3^rd accused person who surrendered it voluntarily to the authorities. In his defense, the 3^rd accused person narrated that he saw the firearm while he was going to fetch fodder for his cows. That at first, he had bypassed it and on his second trip, he saw it again and he decided to take it to the authorities, lest it ends up in the hands of children and cause harm.
PW12 testified that he was among the police officers who had remained at Ugweri awaiting the call from PW6 and when it was not forthcoming, they went to the scene and found the deceased persons had already been lynched by the mob and were badly injured. He stated that the 1^st and 2^nd accused persons were identified through an identification parade but the relevant forms were not produced as evidence.
The 1^st accused’s brown overall was recovered from the scene and produced as evidence. He stated that the 1^st accused was the one calling out to the crowd to gather and he gave them crude weapons to use, even though none of them were recovered. In his defense, the 1^st accused stated that he went to Kanungo shopping center the day after the incident and that he was looking for menial jobs. That the job he got did not involve him wearing an overall/ dustcoat but the people who worked there wore them. He denied having anything to do with the death of the deceased persons.
PW12 stated that the 3^rd accused person was arrested in Gilgil after his wife reported to the police that he had threatened to kill her. In his defense, the 3^rd accused person stated that he lives and works in Nakuru and that he had travelled back to Nakuru the day after the incident since he had only gone to Kanungo for a cousin’s burial. He stated that after he handed over the pistol to the authorities, the police did not ask him to record a statement.
PW13 was also with the deceased persons who had gone to arrest a suspect. He stated that he had already apprehended the suspect but was forced to release him when the crowd became too agitated. That he attempted to flee the scene and he jumped over the fence. That the deceased OCS fired in the air in a bid to disperse the crowd but they overpowered him and lynched him. He stated that the deceased OCS refused to fall back when he tried to plead with him to escape. He stated that he narrowly escaped the crowd who later found out where he was hiding and his colleagues saved him in the nick of time. He stated that he saw the 3^rd accused person in the crowd heckling and saying “ua, ua”. That the 1^st and 2^nd accused persons were identified through an identification parade.
The 2^nd accused person defended herself saying that some 2 men came to her husband’s butchery and they accosted him and then one of them shot him. She was aware that her husband was being suspected of killing somebody. That when her husband was shot, she did not focus on the 3 people who had come to arrest him but she focused on getting him medical help. She denied screaming or raising any alarm to call the crowd. In relation to this testimony, PW12 stated that the 2^nd accused person removed a bow and arrows from her house and these were recovered and produced as evidence.
There is the issue of identification of the 1^st and 2^nd accused persons through the identification parade. Several prosecution witnesses testified that the identification parade was conducted but the Police Form 156 was not produced as evidence since it was misplaced. The Court of Appeal in the case of David Mwita Wanja & 2 Others v. Republic Criminal Appeal No. 117 of stated thus:

“The purpose for, and the manner in which, identification parades ought to be conducted have been the subject matter of many decisions of this court over the years and it is worrying that officers who are charged with the task of criminal investigations do not appear to get it right. As long ago as 1936, the predecessor of this Court emphasized that the value of identification as evidence would depreciate considerably unless an identification parade was held with scrupulous fairness and in accordance with the instructions contained in Police Force Standing Orders. See R v Mwango s/o Manaa (1936) 3 EACA 29.

The court can only determine the credibility of an identification parade in identification of an accused person, when there is evidence from the police officer who conducted the parade. Needless to say, the police form 156 should form part of the evidence if an accused person was properly identified through an identification parade. In this case, PW12 testified that the form was misplaced. This makes it difficult to go by identification parade identification of the 1^st accused person. The 1^st accused person was said to have been working at a posho mill at the shopping center. His brown overall/dustcoat was recovered and produced as evidence and his defense did not do much to displace the prosecution’s evidence.
There is overwhelming evidence that the offence occurred within a mob of about 200 people, meaning that it was a tall order to single out the 1^st accused for sure (besides by his brown overall), thus necessitating an identification parade. However, given the fact that the identification parade form 156 was not produced as evidence that could have been interrogated, it is my view that there is reasonable doubt as to the identification of the 1^st accused being a part of the large mob. It is only on this basis that the reasonable doubt created will be adjudged in favour of the 1^st accused person. In the case of JMN v Republic (Criminal Appeal E017 of 2021) [2022] KEHC 279 (KLR), the court stated:

“A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient.”

There was sufficient evidence proving that the 2^nd accused person raised an alarm saying that the police officers were thieves, even though in her defense she denied this. I do note that the 2^nd accused person and the informer were relatives and she was aware that her husband was a suspect in a murder case involving the death of a Chief in Chuka. PW13 stated that as soon as they arrived and the informer pointed out the suspect they were going to arrest, the 2^nd accused person raised an alarm, causing a crowd to start gathering. As stated earlier, there is overwhelming evidence that the death of the deceased persons was caused by a mob which included the 2^nd accused. Her identity is not in question since she interacted with the police on that day. It is my view that she played a key role in gathering the mob and that she was present at the scene of the crime.
The 3^rd accused person stated that he picked the Deceased OCS’s pistol and brought it to the chief at the scene. He was seen at the crime scene but he said that he was around there to hand over the firearm he had picked up while on his errands. PW10 stated that he looked calm and voluntarily handed over the weapon to the police. PW13 stated that he saw the 3^rd accused at the scene heckling “ua, ua”. I do not think it is a coincidence that he was at the scene and in possession of the pistol on the same day and while the crowd was still gathered.
There is evidence that the deceased OCS fired in the air in a bid to disperse the crowd, meaning that he had the pistol by the time he was lynched by the mob. The fact that the 3^rd accused surrendered the gun shortly after the chaos does not exonerate him because the circumstances of the events do not exempt his presence at the scene. It is also my view that there is insufficient explanation by way of evidence, as to how he ended up with the deceased OSC’s pistol. Furthermore, the 3^rd accused person travelled to Nakuru the next day after the incident and he was arrested only when his wife told the police that he had threated her life. All these circumstances speak of the 3^rd accused person’s presence at the scene participating in the unlawful act the led to the death of the deceased.
It is very important that I do expound on the fact that the offence occurred within a mob and the criminal liability arising from mob (in)justice. Section 21 of the Penal Code provides that:-

“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

Similarly, Section 10 of the Evidence Act states follows:

“Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.”

In making my findings on the second and third elements of the offence, I am guided by the case of Republic v. Florence Kola, Carol Kola & another (2021) eKLR, the court held:

“From all the foregoing evidence it is without doubt that the deceased met his death after being assaulted and fatally injured by a group of villagers or mob of people on suspicion of having stolen chicken from the first accused. This was a typical case of what is referred as “mob justice” which in real sense is actually “mob injustice”. Mob justice is nothing but a form of extra judicial punishment in which a person suspected of wrong doing is humiliated, beaten and in many cases, killed by a mob of people. Such act is criminal, pure and simple. Any person participating in it commits an offence and must invariably be held responsible for the consequences of his unlawful action…..In situations where the death of the deceased is attributed to “mob justice” or “mob injustice”, it is difficult if not impossible to pinpoint which person in the mob administered the killer or fatal blow….”

In the circumstances, a common intention by the assailants to assault and kill the deceased or to take the law in their own hands may be lacking. However, it can be inferred by their presence at the crime scene. In the case of Rex v. Tabula Yenka s/o Kirya & others (1943) 10 EACA 51, it was stated that:-

“To constitute a common intention to prosecute an unlawful purpose….it is not necessary that there should have been any concerted agreement between the accused prior to the attack on the so-called thief. Their common intention may be inferred from their presence, their action and the omissions of any of them to disassociate himself from the assault.””

Therefore, the 2^nd and 3^rd accused persons’ presence at the scene and their individual participation in the unlawful acts as detailed hereinbefore, forms the basis for their criminal liability and malice aforethought.
In the upshot, I find that the prosecution has failed to prove the case against the 1^st accused person beyond reasonable doubt and he is hereby acquitted of the offence of murder. The prosecution has, however, proved the case against the 2^nd and 3^rd accused persons beyond reasonable doubt and they are hereby convicted of the charge of murder contrary to section 203 of the Penal Code.
It is so ordered.

Delivered, dated and signed at Embu this 9^th day of October, 2024.