REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDAMA RAVINE (SUBREGISTRY)
CRIMINAL CASE NO. E002 OF 2023
REPUBLIC .................................................... PROSECUTION
VERSUS
MOSES KIPCHIRCHIR RUTTO ..................... ACCUSED
JUDGMENT
The accused person, Moses Kipchirchir Rutto , is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code .
The particulars of the charge are that on diverse dates between 27th September 2021 and 10th October 2021 , at Molo River in Mogotio Location within Baringo County , he murdered Purity Chebet .
The accused pleaded not guilty on 24th July 2023 , the accused was represented by Mr. Murunga , while the State was represented by Mr. Ratemo . The matter proceeded before Ngetich J. (as she then was).
Prosecution’s Case
PW1: Samuel Waweru Kariuki
PW1 testified that he was a horticultural farmer and that he knew the accused person, who worked for him beginning March 2021. Before joining him, the accused had worked for a neighbour but left after a disagreement with one Weldon.
PW1 stated that the accused used to come to work accompanied by his wife and their one-and-a-half-year-old child. At some point, he stopped seeing the child and, upon inquiry, the accused informed him that he had left the child with his sister in Kabarak. The accused further stated that he needed daily wages so that he could send money for the child's upkeep.
PW1 further testified that in April 2021, Chebet went home and returned in July accompanied by another child, a girl aged about four years. He stated that the last time he saw Chebet was in August 2021.
In December 2021, he saw police officers in the area amid reports that the accused had buried Chebet. Members of the public proceeded to Molo River where a body was exhumed. PW1 testified that he identified the body by the head, the remainder having decomposed.
On cross-examination, PW1 stated that the accused was not present when the body was exhumed. He further testified that he merely followed the crowd and police officers to the scene and did not know who identified the site where the body was recovered. He testified that Weldon and the accused had fought after the accused delayed returning to work following a call from Chebet. He further stated that he had not seen Chebet since August 2021 and did not know who killed her.
PW2: Selina Cheptui Chepkeitany
PW2 testified that she lived in Mogotio. On 19th August 2021, one Helen brought to her a girl child aged about four or five years and requested her to care of the child while she went to work.
According to PW2, Helen never returned for the child. After staying with the child for three days, PW2 took her to Mogotio Police Station. Helen was summoned and explained that the child had been left with her and that she had taken the child to PW2 because PW2 had children.
The OCS directed PW2 to remain with the child while efforts were made to trace the mother. PW2 stated that she knew the child's mother, Purity Chebet, and had previously seen her with the child.
She stayed with the child for approximately one month. Thereafter, she visited both the police station and the Children's Department in an effort to resolve the matter. Before the end of that process, the Chief of Solai visited her accompanied by Chebet's sister and informed her that Chebet might no longer be alive.
PW2 later attended the funeral of Chebet and a small child. She testified that she was not shown the bodies. Eventually, in the company of the chief, Chebet's mother and sister, she handed over the child at the police station.
On cross-examination, she confirmed that she knew both the child and her mother, Chebet.
PW3: Helen Chebuge Kigen
PW3 testified that she was a resident of Mogotio and sold chickens. She knew Purity Chebet as her tenant. According to PW3, Chebet rented a room at her premises at Equator in Mogotio at a monthly rent of Kshs. 600. She lived there with her daughter, a girl aged about four years.PW3 stated that she knew the child's father and that he and Chebet had previously lived together before Chebet became her tenant. She did not know why they separated. Chebet would often leave the child with PW3 when going for casual work. Eventually, Chebet left the child behind and never returned. PW3 waited for about one month and then reported the matter to Mogotio Police Station.
She identified the accused as Chebet's husband. She testified that she sought Chebet's telephone number from him but he instead provided the number of Chebet's mother. When she called Chebet's mother, she learnt that Chebet had not been seen.PW3 later accompanied PW2 to the police station and subsequently learnt of Chebet's death. She testified that she did not know what caused Chebet's death or who killed her. On cross-examination, she stated that Chebet occasionally slept at her home whenever she disagreed with the accused. She also stated that the accused and Chebet had two children together.
On re-examination, she stated that the last time she saw Chebet, Chebet informed her that she was going to work in a tomato farm
PW4: Dr. Titus Ngulungu
PW4, a pathologist at Nakuru County Teaching and Referral Hospital, conducted the post-mortem examination on the remains of Purity Chebet.
He testified that the remains were identified by Victor Rono and Zipporah Chepkurui. The remains consisted primarily of bones with scanty putrefied soft tissue attached. There were no clothes on the remains.
The witness concluded that the cause of death could not be anatomically ascertained due to the decomposition and absence of sufficient soft tissues. He nevertheless stated that soft tissue injuries as a possible cause of death could not be excluded.
He collected samples including bone tissue, hair and teeth for DNA analysis and identification.
On cross-examination, he stated that he had worked as a pathologist for thirteen years.
PW5: Zipporah Chepkorir Kering testified that Purity Chebet was her daughter and that she died in 2021 She stated that while admitted in Mogotio Hospital, she received a visit from Purity and the accused, whom Purity introduced as her husband
PW5 told the court that after Purity disappeared, one of her friends called and informed her of the disappearance. She reported the matter to the area chief, Nicholas Kiptoo, who initiated efforts to trace her.
She later travelled with her son Victor following communication from officers attached to DCI Mogotio. She testified that the deceased's body was eventually exhumed and that when she viewed the remains, only bones were present. She testified that Purity and the accused had experienced domestic disagreements. On one occasion, the accused cut Purity on the leg. She personally saw the injury and learnt that the accused had been arrested.
On cross-examination, she testified that she could not remember the specific month she last saw Purity but recalled that it was in 2021. She stated that Purity often complained of disagreements with her husband. She told the court that it was the accused killed her daughter
PW6: Victor Rono stated that in 2021, the area chief informed him that officers from DCI Mogotio required his presence because Purity's daughter had been found in the custody of a neighbour. Later, DCI officers escorted him to Molo River where the remains of Purity and a small child were exhumed.
On cross-examination, PW6 stated that he last saw Purity in May 2021 and had never visited her in Mogotio. He testified that although Purity was his sister, she never discussed her personal life or problems with him. He stated that he did not see the accused at the scene where the remains were exhumed. Nonetheless, he believed that the accused killed his sister.
On re-examination, he stated that he did not see Moses and would not have been able to identify him if he had been present at the scene
PW7: Nicholas Kiptoo PW7 testified that he was the Assistant Chief of Chemasis Sublocation and had served in that position since 2016.
He stated that on 18th December 2021 at about 2.00 p.m., he received a call from DCI Mogotio asking whether he knew Purity Chebet and her family. He confirmed that he knew them as they came from his area. He informed the family and accompanied Victor and the deceased's mother to DCI Mogotio. They were asked whether they knew where Chebet was, and Victor indicated that he had not seen her since June 2021 .
On 21st December 2021, they returned to Mogotio and informed investigators that Chebet had three children, one of whom was with the grandmother while two were under Chebet's care.
They were informed that one of the children was in the custody of a person known as Kimoi. PW7 accompanied Victor who identified the child, a girl. On 27th December 2021, PW7 accompanied Victor and DCI officers to a river in Mogotio where the remains of Chebet and a child were exhumed. He stated that the accused was among the people present and that they later accompanied the bodies to the mortuary.
On cross-examination, PW7 stated that he did not know the accused prior to these events. He testified that DCI officers pointed out the accused to them. He also knew of an earlier incident when Purity returned home with an injury on her leg and the accused was arrested. He testified that the accused was the last person known to have been with Purity and expressed the view that the accused killed her.
PW8: No. 52149 Cpl. Jaffeth Milimo the investigating officer testified that he was attached to DCI Mogotio between 2018 and 2022.
He stated that on 20th December 2021 at about 6.00 a.m., he found the accused at the police station after his arrest in Kabarnet. He knew the accused from previous interactions in Mogotio. According to him, the accused requested to speak with him. He told that he had been arrested with murder and he wanted to tell him the truth. He told the court that the accused told him that he had killed his wife, Purity Chebet, and their son following a domestic altercation and that he had buried them along the banks of Molo river.
PW8 testified that he informed the DCIO, SP Luka Tumbo, the OCS and other officers. The police, together with the accused, proceeded to Molo River where they discovered shallow graves. The decomposed bodies of Purity Chebet and her son, were recovered, placed in body bags and transported to Nakuru teaching and referral Hospital Mortuary. The deceased's brother was later contacted and attended the post-mortem examination.
He said Rutto was a serial killer at Mogotio. He identified him in the dock.
He later handed over the investigations to Corporal Johnson Wambulwa.
On cross-examination, PW8 stated that the accused voluntarily made the statement to him. He, however, acknowledged that he was not authorized to record a confession. He stated that the accused personally led police officers to the gravesite. He further stated that he had known the accused before because the accused used to wash clothes at the police station and supply water to the officers
At this point the Prosecutor Ms. Omari told the court that the prosecution had closed its case
Through a ruling dated 19th June 2025 , the Honourable Judge Ngetich J. (as she then was) found that the accused person had a case to answer.
I took over the matter on 13th April 2026 and proceeded with the defence hearing on 19th May 2026 , after complying with the provisions of Section 200 of the Criminal Procedure Code .
The Defence Case
The accused elected to give a sworn statement and did not call any witnesses. He told the court that he was 35 years old and, before his arrest, he lived at Kapsirgoi, Mogotio , where he was a construction worker.
He testified that he did not know Purity Chebet and that the witnesses who testified, including the deceased's mother and brother, did not tell the truth when they said that Purity was married to one Moses Kipchirchir Rutto.
Hetestified that on 21st January 2018 , he was at the Mogotio stage when he saw a woman who had two children and was pregnant. The woman was crying. Two women approached and spoke to her. He stated that the woman told them that she had been chased away by her husband, whom she referred to as "Rasta."
The accused testified that one of the women was the chicken seller who testified in court and she agreed to take the woman to her home. He testified that he heard the chicken seller testify that the deceased had been living with him. He told the court that it was during that testimony that he learnt that the crying woman he had seen at the stage was Purity Chebet.
He said he did not know Victor Rono , who had testified that his sister was married to Moses Kipchirchir. He said that that was not true; that Victor had himself told the court that he neither knew him nor knew his name.
The accused denied that he led police officers to Molo River where the bodies were exhumed. He testified that he was arrested in November 2021 He could not recall the exact date, He said that he never took police to the scene, that while at the police station, he learnt from police that there were fishermen who found the body and took them there. The police told him that because they did not know who had killed Chebet they would charge him. He had been arrested and charged with the murder of Veronica Kanini.
He denied knowing Purity Chebet or her son, Ezra. He stated that he had never met Purity Chebet and that he had been arrested in connection with the murder of Veronica Kanini.
He said he did not know where the bodies were found, although he had heard that they were recovered from Molo River. He said he had no idea where the bodies were found
that if Victor testified that it was, he who led the police to where the bodies were found, then he had lied. He said that it was fishermen who pointed out the location to the police.
The accused testified that he had no grudge with the police officers and did not know why they decided to charge him with this offence.
He said he did not know Zipporah Chepkorir . He said she did not produce any evidence that he had married Purity Chebet.
He also denied the testimony of PW1, Samuel Waweru Kariuki. He stated that he never went anywhere with Purity or her son and denied ever working on the farms of Maina and Ruth Chege in Mogotio. He also denied accompanying anyone to any irrigation farm. He denied ever assaulting or injuring Purity. He stated that there was no report made to police in 2019 and that no such incident ever occurred.
On cross-examination by the prosecution, the accused reiterated that he did not know Purity Chebet or her son Ezra and did not know where their bodies were found.
He maintained that it was fishermen who discovered the bodies and directed police officers to the location.
that the police decided to charge him with this offence because he was already facing another murder charge relating to one Victoria Kanini .
When questioned about an assault case, the accused confirmed that he had been charged before the court at Eldama Ravine with assaulting Purity Chebet and had had been imprisoned for one year
He denied that in that case he had said that Purity Chebet was his wife. He acknowledged that he knew her by the name Purity Chebet but insisted that she was not his wife
Counsel for the accused person submitted that the evidence adduced was largely hearsay, speculative, circumstantial, and heavily dependent on an alleged confession which is inadmissible in law.
Submissions
It was submitted that under Sections 203 and 206 of the Penal Code, the prosecution has to establish beyond reasonable doubt the following ingredients in order to obtain a conviction:
1. The fact and cause of death;
2. That the death resulted from an unlawful act or omission;
3. That the unlawful act or omission was committed by the accused person; and
4. That in causing the death, the accused person possessed malice aforethought as defined under Section 206 of the Penal Code.
Relying on on Woolmington v DPP [1935] AC 462, where the court held that: “Throughout the web of criminal law, the golden thread is always that it is the duty of the prosecution to prove the accused person's guilt. “The defence submitted that the prosecution bears the burden of proof and it never shifts to the accused person.
On the meaning of proof beyond a reasonable doubt the defence relied on Miller v Minister of Pensions [1947] 2 All ER 372, where Lord Denning stated that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt, but that the evidence must carry a high degree of probability, leaving the court with no reasonable doubt as to the guilt of the accused person .
Regarding the evidence by the prosecution witnesses, the defence submitted that none of the witnesses witnessed the alleged killing or connected the accused person with the death of the deceased.
The whether the the accused person was a person who had previously experienced domestic disagreements with the deceased and who had allegedly been convicted in a previous assault matter was not proof that he had committed the murder
That none of the allegations were investigated before this court nor proved through admissible evidence and, therefore, were absolutely of no value. That the prosecution presented evidence of suspicion which was discredited by Sawe v Republic [2003] KLR 364:where the court stated: “Suspicion, however strong, cannot provide the basis of inferring guilt, which must be proved by evidence beyond reasonable doubt.”
Further the evidence of Dr. Ngulungu, the pathologist, simply established that human remains believed to belong to the deceased were recovered and examined. It was not possible to determine the cause of death. Therefore, the prosecution was unable to establish that death resulted from an unlawful act attributable to the accused person a necessary ingredient for the offence of murder. The defence relied on Ndungu v Republic [1985] KLR 487 , where the Court of Appeal emphasized the necessity for the prosecution to prove the cause of death through medical or other cogent evidence.
PW8, who was the investigating officer, provided the basis of the prosecution's case, whereby he testified that the accused person confessed to him. The defence submitted that the alleged confession was legally inadmissible, relying on Section 25A (1) of the Evidence Act. It was argued that this provision of the law was put in place to safeguard an accused person against involuntary or improperly obtained confessions. The defence argued that the evidence before the court showed that the alleged confession was neither recorded before a magistrate or judge, nor before a police officer of the rank of Chief Inspector or above, nor in the presence of a third party of the accused person's choice.
The defence relied on Paul Mwangi Murunga v Republic [2016] eKLR, where the court emphasized strict compliance with Section 25A. They also relied on Republic v Sango Mohamed Sango & Another [2015] eKLR, where the court held that any confession obtained contrary to Section 25A is inadmissible.
The court was urged not to rely on that confession.
Further, it was submitted that the prosecution had not identified the person who caused the death of the deceased. There was no eyewitness, no forensic evidence, no DNA linking the accused to the remains, no scientific evidence connecting the accused to the alleged burial site, and no independent evidence placing the accused at the scene.
The defence submitted that the prosecution relied entirely on circumstantial evidence and that compliance with Section 25A is mandatory before any confession can be admitted into evidence.
The court was urged not to rely on that confession. Further, it was submitted that the prosecution had not identified the person who caused the death of the deceased. There was no eyewitness, no forensic evidence, no DNA linking the accused to the remains, no scientific evidence connecting the accused to the alleged burial site, and no independent evidence placing the accused at the scene.
The defence submitted that the prosecution relied entirely on circumstantial evidence and that compliance with Section 25A is mandatory before any confession can be admitted into evidence.
The prosecution further relied on Abanga alias Onyango v Republic , Criminal Appeal No. 32 of 1990, where the court held that circumstantial evidence can only found a conviction where:
1. The circumstances from which guilt is inferred are firmly established;
2. The circumstances point unerringly to the accused; and
3. The circumstances form a complete chain, leaving no escape from the conclusion that the crime was committed by the accused and none other.
It was submitted that the evidence before this court fell below that standard. Counsel argued that there were numerous gaps and unanswered questions, that the chain of circumstances was incomplete, and that the evidence did not irresistibly point to the accused person.
Regarding the accused person's defence, it was submitted that the accused denied ever making any confession, leading police officers to the alleged burial site, or having any involvement in the death of the deceased. He further stated that he heard that fishermen discovered the remains and reported the matter to the police. He asserted that at the time the remains were allegedly recovered, he was already in police custody.
Counsel submitted that his evidence was never effectively displaced by the prosecution.
On the question of whether there was malice aforethought, it was submitted that under Section 206 of the Penal Code, this would ordinarily depend on proving who inflicted the fatal injuries and the circumstances surrounding the act. Counsel argued that since the prosecution had failed to establish who caused the death, the issue of malice aforethought could not be attributed to the accused person.
It was further submitted that the alleged motive founded on infidelity was derived solely from the alleged inadmissible confession.
In conclusion, counsel submitted that while the death of the deceased had been established, the prosecution failed to prove:
1. The precise cause of death;
2. That the death was caused by the accused person;
3. That the accused possessed malice aforethought; and
4. Any admissible confession linking the accused to the offence.
Relying on Sawe v Republic [2003] KLR 364 , counsel urged the court to find that the case had not been proved beyond reasonable doubt and to acquit the accused person pursuant to Section 215 of the Criminal Procedure Code.
Analysis and Determination:
I have carefully considered the evidence before me, and the submissions and authorities cited by the defence. It is important to point out at this stage that I only heard the defence as the whole prosecution case was heard by the Hon. Ngetich J, as she then was. The honourable Judge also made the finding that the accused had a case to answer.
The case for the prosecution is premised on the alleged confession made to the Investigating Officer. It is alleged that the bodies of a woman and a child were found on the banks of Molo River on 27.12.2021.
In meantime sometime in between April and August, 2021 Purity Chebet disappeared together with her child. According to witnesses, she was married to the accused person, had been doing casual jobs on the farm of PW1 with him, then she disappeared – only their bodies to be found along the Molo River on 27.12.2021.
According the prosecution the body of the female found at Molo River was identified by PW1. He testified that he was able to do so from the appearance of the head because the rest of the body was decomposed. It is not clear from his testimony what about the head made him identify that head as that of Purity Chebet. What was so peculiar about it? How much of the head did he see to be able to say that it was the head of Purity Chebet.
The answer to this question is critical considering the evidence given by the pathologist, Dr. Ngulungu. He told the court that he .could not tell the cause of death because the soft tissues of the body were either missing or putrid. It is therefor evident that there was not sufficient soft tissues on the body to enable any form of physical identification.
The pathologist also testified that during the postmortem examination he extracted and gave out samples of bone and teeth, and for purposes of DNA for identification .
The issues for determination are whether the prosecution has established the charge of murder contrary to s. 203 as read with Section 206 of the Penal Code – beyond a reasonable doubt. Section 203 as read with s. 206 of the Penal code provides the ingredients of murder. These were set out by the Court of Appeal in Anthony Ndegwa Ngari -vs- R [2014] eKLR, as follows
a) The death of the deceased occurred and its cause.
b) That the death was caused by an unlawful act committed by the accused (actus reus).
c) That the accused had malice aforethought (mens rea).
On the first issue, the first question is whether there is before court evidence, proof that the body that was found along Molo River was that of Purity Chebet. In his testimony the pathologist told the court that he gave samples for DNA and for identification. At the close of the case for the prosecution no evidence was placed before court by the prosecution from the government analyst that the body upon which the pathologist conducted the post-mortem was that of Purity Chebet.
Hence before the court there is no proof that the that the body presented to the pathologist was the body of Purity Chebet.
In addition, the prosecution did not account for the body of the child that was said to have been found together with that of the deceased. There was no post mortem of the child and no identification by the prosecution to ascertain who this child was and whether this was the indeed the child of Purity Chebet as alleged. Yes, there was a dead person but who was that person?
On the 2 nd issue – cause of death the pathologist told the court he could not establish the same. hence there was no knowing as to what caused the death of the person alleged to be Purity Chebet.
On the question whether the accused person before court responsible for the death of the person whose was found on the banks of Molo River? The prosecution relied on the alleged confession by the accused person. Was there as confession before court?
PW8 Cpl. Milimo’s testimony was that he found the accused person in the cells. That the accused was known to him. That the accused told him he wanted to tell him the truth about what he had done. That the accused proceeded to tell him that he had killed his wife and child and buried them.
The law on the admissibility of confessions is set out at Section 25A of the Evidence Act Cap 80 laws of Kenya. It states;
25A. Confessions generally inadmissible.
(1) A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Inspector of Police, and a third party of the person’s choice
PW8 was the investigating officer.
He was as officer below the rank of an Inspector of Police
There is no evidence that he complied with the requisite confession rules and neither was there evidence that there was present when the accused person allegedly confessed to him, a third party of the accused’s choice. Hence the alleged confession is inadmissible against the accused person.
The prosecution gave specific dates as the dates when the offence is alleged to have been committed to be between 27th September 2021 and 10th October 2021 .
I have carefully considered the evidence of each of the witnesses. None of them has mentioned that they saw the accused and Purity Chebet anywhere together on those specified dates. PW1 said he last saw Chebet in August, 2021. PW2 received Chebet’s child on 19.8.2021 from Hellen. PW3 the land lady testified that by the time Purity left her with the child she had already disagreed with her husband and they had separated. She could not recall when Purity disappeared completely. However, she confirmed that she spoke to accused person when she was looking for Purity’s phone number. Victor Rono, Purity’s brother had last seen his sister in May/June 2021. Purity’s mother could also not recall when she last saw her daughter. From these witnesses, there is no evidence to place the accused with Purity Chebet anywhere on the dates mentioned – or on any of the dates in between.
The witnesses were divided as to whether the accused was present when the bodies were retrieved , giving credence to the accused person’s defence that he was not the one who led to the recovery of the bodied.
The accused person’s mobile phone number and that of Purity were not investigated to provided evidence of their communication, whereabouts at any one time during that period.
The investigating Officer stated that accused was a serial killer in Mogotio – but did not produce any evidence to support that allegation. If indeed there was similar fact evidence it was upon the prosecution to provide the same but not for the I.O to casually state that he was dealing with a serial killer. If indeed the accused person is one, then the prosecution did a shoddy job of investigating the case and prosecuting the accused and hence placing the society at the risk of a se
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IN THE HIGH COURT OF KENYA AT ELDAMA RAVINE (SUBREGISTRY)
CRIMINAL CASE NO. E002 OF 2023
REPUBLIC .................................................... PROSECUTION
VERSUS
MOSES KIPCHIRCHIR RUTTO ..................... ACCUSED
JUDGMENT
The accused person, Moses Kipchirchir Rutto , is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code .
The particulars of the charge are that on diverse dates between 27th September 2021 and 10th October 2021 , at Molo River in Mogotio Location within Baringo County , he murdered Purity Chebet .
The accused pleaded not guilty on 24th July 2023 , the accused was represented by Mr. Murunga , while the State was represented by Mr. Ratemo . The matter proceeded before Ngetich J. (as she then was).
Prosecution’s Case
PW1: Samuel Waweru Kariuki
PW1 testified that he was a horticultural farmer and that he knew the accused person, who worked for him beginning March 2021. Before joining him, the accused had worked for a neighbour but left after a disagreement with one Weldon.
PW1 stated that the accused used to come to work accompanied by his wife and their one-and-a-half-year-old child. At some point, he stopped seeing the child and, upon inquiry, the accused informed him that he had left the child with his sister in Kabarak. The accused further stated that he needed daily wages so that he could send money for the child's upkeep.
PW1 further testified that in April 2021, Chebet went home and returned in July accompanied by another child, a girl aged about four years. He stated that the last time he saw Chebet was in August 2021.
In December 2021, he saw police officers in the area amid reports that the accused had buried Chebet. Members of the public proceeded to Molo River where a body was exhumed. PW1 testified that he identified the body by the head, the remainder having decomposed.
On cross-examination, PW1 stated that the accused was not present when the body was exhumed. He further testified that he merely followed the crowd and police officers to the scene and did not know who identified the site where the body was recovered. He testified that Weldon and the accused had fought after the accused delayed returning to work following a call from Chebet. He further stated that he had not seen Chebet since August 2021 and did not know who killed her.
PW2: Selina Cheptui Chepkeitany
PW2 testified that she lived in Mogotio. On 19th August 2021, one Helen brought to her a girl child aged about four or five years and requested her to care of the child while she went to work.
According to PW2, Helen never returned for the child. After staying with the child for three days, PW2 took her to Mogotio Police Station. Helen was summoned and explained that the child had been left with her and that she had taken the child to PW2 because PW2 had children.
The OCS directed PW2 to remain with the child while efforts were made to trace the mother. PW2 stated that she knew the child's mother, Purity Chebet, and had previously seen her with the child.
She stayed with the child for approximately one month. Thereafter, she visited both the police station and the Children's Department in an effort to resolve the matter. Before the end of that process, the Chief of Solai visited her accompanied by Chebet's sister and informed her that Chebet might no longer be alive.
PW2 later attended the funeral of Chebet and a small child. She testified that she was not shown the bodies. Eventually, in the company of the chief, Chebet's mother and sister, she handed over the child at the police station.
On cross-examination, she confirmed that she knew both the child and her mother, Chebet.
PW3: Helen Chebuge Kigen
PW3 testified that she was a resident of Mogotio and sold chickens. She knew Purity Chebet as her tenant. According to PW3, Chebet rented a room at her premises at Equator in Mogotio at a monthly rent of Kshs. 600. She lived there with her daughter, a girl aged about four years.PW3 stated that she knew the child's father and that he and Chebet had previously lived together before Chebet became her tenant. She did not know why they separated. Chebet would often leave the child with PW3 when going for casual work. Eventually, Chebet left the child behind and never returned. PW3 waited for about one month and then reported the matter to Mogotio Police Station.
She identified the accused as Chebet's husband. She testified that she sought Chebet's telephone number from him but he instead provided the number of Chebet's mother. When she called Chebet's mother, she learnt that Chebet had not been seen.PW3 later accompanied PW2 to the police station and subsequently learnt of Chebet's death. She testified that she did not know what caused Chebet's death or who killed her. On cross-examination, she stated that Chebet occasionally slept at her home whenever she disagreed with the accused. She also stated that the accused and Chebet had two children together.
On re-examination, she stated that the last time she saw Chebet, Chebet informed her that she was going to work in a tomato farm
PW4: Dr. Titus Ngulungu
PW4, a pathologist at Nakuru County Teaching and Referral Hospital, conducted the post-mortem examination on the remains of Purity Chebet.
He testified that the remains were identified by Victor Rono and Zipporah Chepkurui. The remains consisted primarily of bones with scanty putrefied soft tissue attached. There were no clothes on the remains.
The witness concluded that the cause of death could not be anatomically ascertained due to the decomposition and absence of sufficient soft tissues. He nevertheless stated that soft tissue injuries as a possible cause of death could not be excluded.
He collected samples including bone tissue, hair and teeth for DNA analysis and identification.
On cross-examination, he stated that he had worked as a pathologist for thirteen years.
PW5: Zipporah Chepkorir Kering testified that Purity Chebet was her daughter and that she died in 2021 She stated that while admitted in Mogotio Hospital, she received a visit from Purity and the accused, whom Purity introduced as her husband
PW5 told the court that after Purity disappeared, one of her friends called and informed her of the disappearance. She reported the matter to the area chief, Nicholas Kiptoo, who initiated efforts to trace her.
She later travelled with her son Victor following communication from officers attached to DCI Mogotio. She testified that the deceased's body was eventually exhumed and that when she viewed the remains, only bones were present. She testified that Purity and the accused had experienced domestic disagreements. On one occasion, the accused cut Purity on the leg. She personally saw the injury and learnt that the accused had been arrested.
On cross-examination, she testified that she could not remember the specific month she last saw Purity but recalled that it was in 2021. She stated that Purity often complained of disagreements with her husband. She told the court that it was the accused killed her daughter
PW6: Victor Rono stated that in 2021, the area chief informed him that officers from DCI Mogotio required his presence because Purity's daughter had been found in the custody of a neighbour. Later, DCI officers escorted him to Molo River where the remains of Purity and a small child were exhumed.
On cross-examination, PW6 stated that he last saw Purity in May 2021 and had never visited her in Mogotio. He testified that although Purity was his sister, she never discussed her personal life or problems with him. He stated that he did not see the accused at the scene where the remains were exhumed. Nonetheless, he believed that the accused killed his sister.
On re-examination, he stated that he did not see Moses and would not have been able to identify him if he had been present at the scene
PW7: Nicholas Kiptoo PW7 testified that he was the Assistant Chief of Chemasis Sublocation and had served in that position since 2016.
He stated that on 18th December 2021 at about 2.00 p.m., he received a call from DCI Mogotio asking whether he knew Purity Chebet and her family. He confirmed that he knew them as they came from his area. He informed the family and accompanied Victor and the deceased's mother to DCI Mogotio. They were asked whether they knew where Chebet was, and Victor indicated that he had not seen her since June 2021 .
On 21st December 2021, they returned to Mogotio and informed investigators that Chebet had three children, one of whom was with the grandmother while two were under Chebet's care.
They were informed that one of the children was in the custody of a person known as Kimoi. PW7 accompanied Victor who identified the child, a girl. On 27th December 2021, PW7 accompanied Victor and DCI officers to a river in Mogotio where the remains of Chebet and a child were exhumed. He stated that the accused was among the people present and that they later accompanied the bodies to the mortuary.
On cross-examination, PW7 stated that he did not know the accused prior to these events. He testified that DCI officers pointed out the accused to them. He also knew of an earlier incident when Purity returned home with an injury on her leg and the accused was arrested. He testified that the accused was the last person known to have been with Purity and expressed the view that the accused killed her.
PW8: No. 52149 Cpl. Jaffeth Milimo the investigating officer testified that he was attached to DCI Mogotio between 2018 and 2022.
He stated that on 20th December 2021 at about 6.00 a.m., he found the accused at the police station after his arrest in Kabarnet. He knew the accused from previous interactions in Mogotio. According to him, the accused requested to speak with him. He told that he had been arrested with murder and he wanted to tell him the truth. He told the court that the accused told him that he had killed his wife, Purity Chebet, and their son following a domestic altercation and that he had buried them along the banks of Molo river.
PW8 testified that he informed the DCIO, SP Luka Tumbo, the OCS and other officers. The police, together with the accused, proceeded to Molo River where they discovered shallow graves. The decomposed bodies of Purity Chebet and her son, were recovered, placed in body bags and transported to Nakuru teaching and referral Hospital Mortuary. The deceased's brother was later contacted and attended the post-mortem examination.
He said Rutto was a serial killer at Mogotio. He identified him in the dock.
He later handed over the investigations to Corporal Johnson Wambulwa.
On cross-examination, PW8 stated that the accused voluntarily made the statement to him. He, however, acknowledged that he was not authorized to record a confession. He stated that the accused personally led police officers to the gravesite. He further stated that he had known the accused before because the accused used to wash clothes at the police station and supply water to the officers
At this point the Prosecutor Ms. Omari told the court that the prosecution had closed its case
Through a ruling dated 19th June 2025 , the Honourable Judge Ngetich J. (as she then was) found that the accused person had a case to answer.
I took over the matter on 13th April 2026 and proceeded with the defence hearing on 19th May 2026 , after complying with the provisions of Section 200 of the Criminal Procedure Code .
The Defence Case
The accused elected to give a sworn statement and did not call any witnesses. He told the court that he was 35 years old and, before his arrest, he lived at Kapsirgoi, Mogotio , where he was a construction worker.
He testified that he did not know Purity Chebet and that the witnesses who testified, including the deceased's mother and brother, did not tell the truth when they said that Purity was married to one Moses Kipchirchir Rutto.
Hetestified that on 21st January 2018 , he was at the Mogotio stage when he saw a woman who had two children and was pregnant. The woman was crying. Two women approached and spoke to her. He stated that the woman told them that she had been chased away by her husband, whom she referred to as "Rasta."
The accused testified that one of the women was the chicken seller who testified in court and she agreed to take the woman to her home. He testified that he heard the chicken seller testify that the deceased had been living with him. He told the court that it was during that testimony that he learnt that the crying woman he had seen at the stage was Purity Chebet.
He said he did not know Victor Rono , who had testified that his sister was married to Moses Kipchirchir. He said that that was not true; that Victor had himself told the court that he neither knew him nor knew his name.
The accused denied that he led police officers to Molo River where the bodies were exhumed. He testified that he was arrested in November 2021 He could not recall the exact date, He said that he never took police to the scene, that while at the police station, he learnt from police that there were fishermen who found the body and took them there. The police told him that because they did not know who had killed Chebet they would charge him. He had been arrested and charged with the murder of Veronica Kanini.
He denied knowing Purity Chebet or her son, Ezra. He stated that he had never met Purity Chebet and that he had been arrested in connection with the murder of Veronica Kanini.
He said he did not know where the bodies were found, although he had heard that they were recovered from Molo River. He said he had no idea where the bodies were found
that if Victor testified that it was, he who led the police to where the bodies were found, then he had lied. He said that it was fishermen who pointed out the location to the police.
The accused testified that he had no grudge with the police officers and did not know why they decided to charge him with this offence.
He said he did not know Zipporah Chepkorir . He said she did not produce any evidence that he had married Purity Chebet.
He also denied the testimony of PW1, Samuel Waweru Kariuki. He stated that he never went anywhere with Purity or her son and denied ever working on the farms of Maina and Ruth Chege in Mogotio. He also denied accompanying anyone to any irrigation farm. He denied ever assaulting or injuring Purity. He stated that there was no report made to police in 2019 and that no such incident ever occurred.
On cross-examination by the prosecution, the accused reiterated that he did not know Purity Chebet or her son Ezra and did not know where their bodies were found.
He maintained that it was fishermen who discovered the bodies and directed police officers to the location.
that the police decided to charge him with this offence because he was already facing another murder charge relating to one Victoria Kanini .
When questioned about an assault case, the accused confirmed that he had been charged before the court at Eldama Ravine with assaulting Purity Chebet and had had been imprisoned for one year
He denied that in that case he had said that Purity Chebet was his wife. He acknowledged that he knew her by the name Purity Chebet but insisted that she was not his wife
Counsel for the accused person submitted that the evidence adduced was largely hearsay, speculative, circumstantial, and heavily dependent on an alleged confession which is inadmissible in law.
Submissions
It was submitted that under Sections 203 and 206 of the Penal Code, the prosecution has to establish beyond reasonable doubt the following ingredients in order to obtain a conviction:
1. The fact and cause of death;
2. That the death resulted from an unlawful act or omission;
3. That the unlawful act or omission was committed by the accused person; and
4. That in causing the death, the accused person possessed malice aforethought as defined under Section 206 of the Penal Code.
Relying on on Woolmington v DPP [1935] AC 462, where the court held that: “Throughout the web of criminal law, the golden thread is always that it is the duty of the prosecution to prove the accused person's guilt. “The defence submitted that the prosecution bears the burden of proof and it never shifts to the accused person.
On the meaning of proof beyond a reasonable doubt the defence relied on Miller v Minister of Pensions [1947] 2 All ER 372, where Lord Denning stated that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt, but that the evidence must carry a high degree of probability, leaving the court with no reasonable doubt as to the guilt of the accused person .
Regarding the evidence by the prosecution witnesses, the defence submitted that none of the witnesses witnessed the alleged killing or connected the accused person with the death of the deceased.
The whether the the accused person was a person who had previously experienced domestic disagreements with the deceased and who had allegedly been convicted in a previous assault matter was not proof that he had committed the murder
That none of the allegations were investigated before this court nor proved through admissible evidence and, therefore, were absolutely of no value. That the prosecution presented evidence of suspicion which was discredited by Sawe v Republic [2003] KLR 364:where the court stated: “Suspicion, however strong, cannot provide the basis of inferring guilt, which must be proved by evidence beyond reasonable doubt.”
Further the evidence of Dr. Ngulungu, the pathologist, simply established that human remains believed to belong to the deceased were recovered and examined. It was not possible to determine the cause of death. Therefore, the prosecution was unable to establish that death resulted from an unlawful act attributable to the accused person a necessary ingredient for the offence of murder. The defence relied on Ndungu v Republic [1985] KLR 487 , where the Court of Appeal emphasized the necessity for the prosecution to prove the cause of death through medical or other cogent evidence.
PW8, who was the investigating officer, provided the basis of the prosecution's case, whereby he testified that the accused person confessed to him. The defence submitted that the alleged confession was legally inadmissible, relying on Section 25A (1) of the Evidence Act. It was argued that this provision of the law was put in place to safeguard an accused person against involuntary or improperly obtained confessions. The defence argued that the evidence before the court showed that the alleged confession was neither recorded before a magistrate or judge, nor before a police officer of the rank of Chief Inspector or above, nor in the presence of a third party of the accused person's choice.
The defence relied on Paul Mwangi Murunga v Republic [2016] eKLR, where the court emphasized strict compliance with Section 25A. They also relied on Republic v Sango Mohamed Sango & Another [2015] eKLR, where the court held that any confession obtained contrary to Section 25A is inadmissible.
The court was urged not to rely on that confession.
Further, it was submitted that the prosecution had not identified the person who caused the death of the deceased. There was no eyewitness, no forensic evidence, no DNA linking the accused to the remains, no scientific evidence connecting the accused to the alleged burial site, and no independent evidence placing the accused at the scene.
The defence submitted that the prosecution relied entirely on circumstantial evidence and that compliance with Section 25A is mandatory before any confession can be admitted into evidence.
The court was urged not to rely on that confession. Further, it was submitted that the prosecution had not identified the person who caused the death of the deceased. There was no eyewitness, no forensic evidence, no DNA linking the accused to the remains, no scientific evidence connecting the accused to the alleged burial site, and no independent evidence placing the accused at the scene.
The defence submitted that the prosecution relied entirely on circumstantial evidence and that compliance with Section 25A is mandatory before any confession can be admitted into evidence.
The prosecution further relied on Abanga alias Onyango v Republic , Criminal Appeal No. 32 of 1990, where the court held that circumstantial evidence can only found a conviction where:
1. The circumstances from which guilt is inferred are firmly established;
2. The circumstances point unerringly to the accused; and
3. The circumstances form a complete chain, leaving no escape from the conclusion that the crime was committed by the accused and none other.
It was submitted that the evidence before this court fell below that standard. Counsel argued that there were numerous gaps and unanswered questions, that the chain of circumstances was incomplete, and that the evidence did not irresistibly point to the accused person.
Regarding the accused person's defence, it was submitted that the accused denied ever making any confession, leading police officers to the alleged burial site, or having any involvement in the death of the deceased. He further stated that he heard that fishermen discovered the remains and reported the matter to the police. He asserted that at the time the remains were allegedly recovered, he was already in police custody.
Counsel submitted that his evidence was never effectively displaced by the prosecution.
On the question of whether there was malice aforethought, it was submitted that under Section 206 of the Penal Code, this would ordinarily depend on proving who inflicted the fatal injuries and the circumstances surrounding the act. Counsel argued that since the prosecution had failed to establish who caused the death, the issue of malice aforethought could not be attributed to the accused person.
It was further submitted that the alleged motive founded on infidelity was derived solely from the alleged inadmissible confession.
In conclusion, counsel submitted that while the death of the deceased had been established, the prosecution failed to prove:
1. The precise cause of death;
2. That the death was caused by the accused person;
3. That the accused possessed malice aforethought; and
4. Any admissible confession linking the accused to the offence.
Relying on Sawe v Republic [2003] KLR 364 , counsel urged the court to find that the case had not been proved beyond reasonable doubt and to acquit the accused person pursuant to Section 215 of the Criminal Procedure Code.
Analysis and Determination:
I have carefully considered the evidence before me, and the submissions and authorities cited by the defence. It is important to point out at this stage that I only heard the defence as the whole prosecution case was heard by the Hon. Ngetich J, as she then was. The honourable Judge also made the finding that the accused had a case to answer.
The case for the prosecution is premised on the alleged confession made to the Investigating Officer. It is alleged that the bodies of a woman and a child were found on the banks of Molo River on 27.12.2021.
In meantime sometime in between April and August, 2021 Purity Chebet disappeared together with her child. According to witnesses, she was married to the accused person, had been doing casual jobs on the farm of PW1 with him, then she disappeared – only their bodies to be found along the Molo River on 27.12.2021.
According the prosecution the body of the female found at Molo River was identified by PW1. He testified that he was able to do so from the appearance of the head because the rest of the body was decomposed. It is not clear from his testimony what about the head made him identify that head as that of Purity Chebet. What was so peculiar about it? How much of the head did he see to be able to say that it was the head of Purity Chebet.
The answer to this question is critical considering the evidence given by the pathologist, Dr. Ngulungu. He told the court that he .could not tell the cause of death because the soft tissues of the body were either missing or putrid. It is therefor evident that there was not sufficient soft tissues on the body to enable any form of physical identification.
The pathologist also testified that during the postmortem examination he extracted and gave out samples of bone and teeth, and for purposes of DNA for identification .
The issues for determination are whether the prosecution has established the charge of murder contrary to s. 203 as read with Section 206 of the Penal Code – beyond a reasonable doubt. Section 203 as read with s. 206 of the Penal code provides the ingredients of murder. These were set out by the Court of Appeal in Anthony Ndegwa Ngari -vs- R [2014] eKLR, as follows
a) The death of the deceased occurred and its cause.
b) That the death was caused by an unlawful act committed by the accused (actus reus).
c) That the accused had malice aforethought (mens rea).
On the first issue, the first question is whether there is before court evidence, proof that the body that was found along Molo River was that of Purity Chebet. In his testimony the pathologist told the court that he gave samples for DNA and for identification. At the close of the case for the prosecution no evidence was placed before court by the prosecution from the government analyst that the body upon which the pathologist conducted the post-mortem was that of Purity Chebet.
Hence before the court there is no proof that the that the body presented to the pathologist was the body of Purity Chebet.
In addition, the prosecution did not account for the body of the child that was said to have been found together with that of the deceased. There was no post mortem of the child and no identification by the prosecution to ascertain who this child was and whether this was the indeed the child of Purity Chebet as alleged. Yes, there was a dead person but who was that person?
On the 2 nd issue – cause of death the pathologist told the court he could not establish the same. hence there was no knowing as to what caused the death of the person alleged to be Purity Chebet.
On the question whether the accused person before court responsible for the death of the person whose was found on the banks of Molo River? The prosecution relied on the alleged confession by the accused person. Was there as confession before court?
PW8 Cpl. Milimo’s testimony was that he found the accused person in the cells. That the accused was known to him. That the accused told him he wanted to tell him the truth about what he had done. That the accused proceeded to tell him that he had killed his wife and child and buried them.
The law on the admissibility of confessions is set out at Section 25A of the Evidence Act Cap 80 laws of Kenya. It states;
25A. Confessions generally inadmissible.
(1) A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Inspector of Police, and a third party of the person’s choice
PW8 was the investigating officer.
He was as officer below the rank of an Inspector of Police
There is no evidence that he complied with the requisite confession rules and neither was there evidence that there was present when the accused person allegedly confessed to him, a third party of the accused’s choice. Hence the alleged confession is inadmissible against the accused person.
The prosecution gave specific dates as the dates when the offence is alleged to have been committed to be between 27th September 2021 and 10th October 2021 .
I have carefully considered the evidence of each of the witnesses. None of them has mentioned that they saw the accused and Purity Chebet anywhere together on those specified dates. PW1 said he last saw Chebet in August, 2021. PW2 received Chebet’s child on 19.8.2021 from Hellen. PW3 the land lady testified that by the time Purity left her with the child she had already disagreed with her husband and they had separated. She could not recall when Purity disappeared completely. However, she confirmed that she spoke to accused person when she was looking for Purity’s phone number. Victor Rono, Purity’s brother had last seen his sister in May/June 2021. Purity’s mother could also not recall when she last saw her daughter. From these witnesses, there is no evidence to place the accused with Purity Chebet anywhere on the dates mentioned – or on any of the dates in between.
The witnesses were divided as to whether the accused was present when the bodies were retrieved , giving credence to the accused person’s defence that he was not the one who led to the recovery of the bodied.
The accused person’s mobile phone number and that of Purity were not investigated to provided evidence of their communication, whereabouts at any one time during that period.
The investigating Officer stated that accused was a serial killer in Mogotio – but did not produce any evidence to support that allegation. If indeed there was similar fact evidence it was upon the prosecution to provide the same but not for the I.O to casually state that he was dealing with a serial killer. If indeed the accused person is one, then the prosecution did a shoddy job of investigating the case and prosecuting the accused and hence placing the society at the risk of a se
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