REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
HCCRC NO. 11 OF 2019
REPUBLIC ……………………………………………………..PROSECUTOR
VERSUS
PIUS MUGAMBI ………………………..…………………….…..…ACCUSED
JUDGMENT
1) The accused person PIUS MUGAMBI is charged with murder contrary to section 203 as read with section204 of the Penal Code.
2) That on 29/10/2018 at Athinai area, Rongai Sub-county, Nakuru County he murdered Issac Kipkorir Cheboi.
3) On 26/2/2019 he pleaded not guilty before Ngugi J (as he then was). The matter consequently proceeded before me.
4) Pw1 Veronicah Chebet Cherotich was the mother of Issac Kipkorir, she told the court that her son had been home at about 600pm. About 8 – 900pm she received a phone call that her son had been shot. Her husband Pw2 Charles Keboi is the one who went to check on him.
5) She went the following day to the hospital and found that he had been taken to theatre, and when he came out she saw he had an injury near the umbilicus (kando ya kitovu). On 8/11/2018 they were told that he had died and that he had been shot by a police officer.
6) On cross-examination she said that her son used to take alcohol, that on that day he was not drunk she said his house was far from where he was shot; that one Patrick Kiprotich is the one who brought the empty cartridges home the following day.
7) Pw2 Charles Cheboi testified that on 5/11/2018 after 7:00 pm he was in his house – when he heard a motorbike outside. The rider called him and told him – “ Kijana ameaumia ”. He told him the son had been shot. He boarded the same motor bike and went to Mogotio Hospital. The son was given 1 st aid, then taken to Nakuru Provincial General Hospital.
8) He said he did not know the person who shot his son. When his statement was read to him , he denied that he told the police that his wife was called and informed that his son was shot by unknown people. He confirmed that he is the one who handed over the spent cartridges to the OCS, he said he did not know where Patrick found them. He said he was not aware that his son was among people who attacked police officers.
9) Pw3 Joseph Kibet Talam told the court that he was a water vendor, and would vend water using his motorbike. On 5/11/2018 around 8;47 pm he was going home to Sarambei – while on his way, somewhere along the way he found a crowd of people – he had a pillion passenger who was alighting around that place. He saw a crowd ;in the crowd he saw people with torches, there was a fight, there were shouts of mwizi! Mwizi ! People were running, some to his left, some to his right – he saw one with a panga, he saw a black “drum” and a motorbike next to the drum. He heard the sound of a gunshot – and in his words “ mimi huyoo !” – meaning he took off and in the process rang the OCS Mogotio and reported the incident . He went home. He said he could not have known who was who as people were running.
10) On cross-examination, he said he could not identify anyone, that in the lights of his motorbike he saw people carrying pangas. He saw more than 10 people. They seemed to be fighting, that he heard the gunshot after the fight had gone on for a while, that he saw a drum that had a strong smell of alcohol.
11) On re-examination, he said people were fighting. You would not tell who was the victim/the thief. He said he saw one panga.
12) Pw4 Silas Kibet Kitilit told the court that he was along doing boda boda work – that here is a person he owed money – this person had him arrested. He took his boda boda as security for the debt. It was held at Mogotio police – it was Registration No. KMEG 125W. When he went to collect the motorbike, he was told it had been taken to Rongai – Police Station. On going there, he was told the motorbike had been burnt.
13) On cross-examination he said he did not have any documents to show that he owned such a motorbike – that he did not have any evidence that he had left his motorbike at Mogotio police station on account of a debt owed to a complainant.
14) That he did not have any photos of the burnt motorbike – that he signed an inventory at the police station that a motorbike was burnt, that one Rogers Chebon also signed the document - but that there was no documents at the police station to show that they had witnessed the burnt motorbike, that he had not produced even a search certificate to confirm the existence of the alleged motorbike.
15) Pw5 was the doctor who performed the postmortem – DR MUHIA DOMINIC . He performed the postmortem on 15/11/2018 at 4:40 pm on the body of male adult , 19 years old – there was a bullet entry wound left lower back exiting left lumbar area. He had multiple gut perforations. he established the Cause of death as Respiratory distress. Secondary to hypovolemic and septic shock injury sustained from gunshot and stress from major surgery. On cross-examination he said the surgery was damage control that the patient would have died without surgery.
16) On re-examination he said major surgery involved the removal of the gut was necessary because it was already injured. That there was only one gunshot wound and it had caused damage in the gut. He could not tell how far the gun that caused the wound was shot at. He said he could not tell whether it was a stray or aimed shot; that that question was for the ballistics expert.
17) Pw6 No. 88764 CPL Flora Muthiomi was stationed at Menengai police station at the material time. She was rang by the OCS on 5/11/2018 and informed that someone had been shot at Athinai Area, and people were demonstrating – she called out police officers – and DCI Officers from Rongai Division. They proceeded to the scene. They learnt at the scene that one Issac Kipkorir had been shot, there was a motorcycle burning which had been set ablaze. The people said those who had shot Kipkorir were unknown, had fled leaving their motorbike. They calmed the crowd, took photos of the motorbike, took it, proceeded to Nakuru Provincial General Hospital to visit the victim, he was admitted in critical condition. The matter was handed over to DCI for investigations.
18) On cross-examination she said the members of public at the scene said the users of the motorcycle were unknown, the crowd was very rowdy, there were 30 to 40 people, 2 people were said to have fled. She did not gather any information that one of the two was injured with a panga, she explained the circumstances when a police officer is allowed to use necessary force and can use firearm if attacked. She said the incident took place at night. She said she did not see the drum of Chang’aa.
19) She said on re-examination that if officers were in an ambush – one could give a warning but also judge the situation – shoot in the air.
20) Pw7 No. 107072 PC Irene Cheboi is sister to the deceased. She learnt about the shooting from one Patrick Kiplobei, and that the suspects were police officers. She attended the postmortem with her father, and saw that her brother had suffered gunshot wound.
21) On cross-examination she said she did not go to the scene – but that it was around 2km away from home – she said she was not aware her brother took chang’aa.
22) Pw8 No. 231845 SSP Florence Karimi was at DCI Headquarters, Ballistics. She recovered exhibits from one No. 232526 ASP Dorcas Cherui from DCI Rongai.
1. A Jericho Pistol – marked EZ A.
2. 12 rounds of Ammunition.
- 3 Justifiable marked EZ B1 to B12.
3. One fired cartridge case – marked EZ C.
4. One magazine marked EX D.
They were accompanied by Exhibit Memo Form .
23) She said she was supposed to ascertain the following ;
1) Whether EZ A was a firearm capable of firing, whether it expended.
EZ C.
2) Whether EZ B1 to B12 were ammunitions capable of being fired, whether they could be used in EZ A.
3) Whether EZ C was an ammunition capable of being fired and could be used in EZ A.
4) Whether EZ D was a magazine.
24) She said she examined the exhibits and made following findings :-
1) EZ A is a Jericho pistol serial number 44332654 designed to chamber and fire rounds of ammunition in caliber 9 x 19 mm. it is in good physical and mechanical condition complete in all as component parts.
25) She successfully test fired it using three rounds of ammunition which she picked randomly from EZ B1 to B 12. She did recover the three test bullets and 3 test cartridge cases
- PEx 2 (a, (b), (c) 3 test bullets, PEx3 (a) (b), (c)
- EZ B1 to 12 – 12 rounds of ammunition – caliber 9 x 19 mm each one of them was on good working order.
- 9 rounds of ammunition – PEX 4 (a) to (i).
- EZ C is one fired cartridge case in caliber 9 x 19mm PEX 5.
26) She submitted them to comparative microscopic examination PEX 5 in conjunction with test cartridges cases PEx 2 (a) (b) and c which revealed sufficient matching ejection markings, and breech face makings – these enabled her to form the opinion that they were fired by the Jericho Pistol – PEX 6.
27) Pw9 No. 230185 Chief Inspector Maurice Situma the OCS Mogotio at the material time told the court that on 5/11/2018 told the court that at 8:30 pm he received a call from a boda boda rider who told him he had heard gunshots at Athinai.
28) He called his colleague in Rongai to find out what was happening. 15 minutes later he received a call from Pc Mugambi – the accused who was an officer at his station. He was aware that he and PC Patel Sanga had gone out on inquiries within Athinai area – to arrest a suspect of assault.
29) He told him they had arrested the suspect but were confronted by angry mob of members of the public -, and that he and PC Sanga had fled to different directions, and that he had fired 2 shots in the air, and was hiding in a sisal plantation. Pw9 informed the OCPD – they put together a rescue team to rescue the officers but the two arrived on their own. He took over PC Mugambi’s rifle – a Jericho Pistol it had 12 rounds of ammunition – 9 complete, 3 bullet heads.
30) PC Patel had bruises/injuries, he caused him to go for treatment. OCPD Rongai was communicated to visit the scene. He confirmed that PC Mugambi was issued with 14 heads of ammunition and Jericho Pistol serial Number 44332654 and had shot 2. The pistol and copy of arms register were produced as evidence.
31) Two days later he learnt from DCI that a person was shot and died. He confirmed that the 2 officers had booked out in the OB to arrest a suspect of assault – the DCI took over the assault file. On cross-examination he said when accused called him he sounded scared. Prosecution closed its case on 21/2/2023.
Defence Case
32) The accused gave sworn statement of defence. He testified that he was minuted the case of Margaret Nakito reported at Mogotio police station vide OB 17/29/10/18. On 5 th November 2018, he was informed of the location of the suspect. He and PC Sanga (DW2) proceeded to the place where the suspect was to be found. They arrested him without commotion. They found him distilling chang’aa. They were using a motorbike of a friend. As they were about to get to the Nakuru/Marigat Highway they were intercepted by another motorcycle from behind. It had 4 occupants – armed with pangas and rungus – they tried to explain who they were but in no time there was a crowd of over 50 people. Those people took away the suspect. An argument ensued – they torched the motorcycle, assaulted PC Sanga – he was cut on the wrist.
33) He said the crowd became unruly and they ran away – he fired one in the air while and another round after he fell down. They entered a sisal plantation. From where he called the OCS. He later learnt that one of the youths had died – he was sorry because he never intended to shoot anyone, he was just trying to get away.
34) He said he incident happened around 7:00 pm. He said he tripped in the fencing wire of the sisal plantation. He said his colleague had been cut. Their motorcycle had been torched and the crowd was pursuing them. Shouting ua hao! Ua hao mapolisi !
35) On cross-examination he continued that he and PC Sanga travelled on motorbike registration number KMEG 125W. He said the person was brewing chang’aa and they took one sky plast. He said the motorbike was torched before the shooting. He said the deceased was not known to him before.
36) DW2 No. 112581 PC Patel Sanga testified and told a similar story to that of DW1. He said that he would understand the language the mob was speaking and he tried to speak to them – however, one attacked him with panga and cut his left wrist – he was rescued by a woman to her house but the mob followed he ran off into the plantation where he waited for some time before calling PC Mugambi who said he was also in the plantation. They rang OCS, and some officers were sent to rescue them but they went to the station where he was sent to hospital, as PC Mugambi was disarmed. He marked his P3 as DMFI 1 as the prosecutor objected to his producing it.
37) On cross-examination he said when PC Mugambi fired – he was in hiding and heard the gunshots.
Submissions
38) Counsel for the prosecution filed written submissions. After reiterating the evidence by the prosecution and by the defence he set out the issues for determination as hereunder:-
1. Whether the prosecution has proved the ingredients of murder.
2. Whether the defence is self defence is admissible to the accused person.
3. Whether the prosecution has proved the case beyond reasonable doubt.
39) Relying on Republic v Gedion Wambua Kioko & Others [2019] eKLR it was submitted that the court established that to prove a charge of murder, the prosecution had a duty to establish the following elements:
i) The death and cause of death of the deceased;
ii) That the accused caused the death through an unlawful act or omission; and
iii) The accused possessed the intention to cause harm or kill or malice aforethought.
40) The defence cited section 207 of the Criminal Procedure Code arguing that the accused could only be guilty of manslaughter at most. However, citing Mancini vs Director of Public Prosecutions, [1941] AII 272 where the English House of Lords held that
...not every kind of provocation, however, will reduce murder to manslaughter. To have that effect the provocation must be such as to temporarily deprive the person provoked of the power of self-control, as a result of which he commits the act which causes the death. The test to be applied therefore is that of the effect the provocation would have on a reasonable man, so that an unusual excitable or pugnacious person is not entitled to rely on provocation which would not have led an ordinary and reasonable person to act as he did. And before provocation becomes an operative factor in a murder trial, however, the prosecution must have proved beyond reasonable doubt, that murder, provocation apart, had been committed by the accused .
41) The defence argues that the prosecution had not proved the charge of murder against him in order to have the same reduced to manslaughter. It is argued that the accused shot once in the air, and that when he fell down the gun discharged – that he never aimed at anyone.
42) It is submitted that PW3 corroborated the evidence of the defence in that he found a commotion and he heard one gun shot and he ran away.
43) On whether the prosecution had proved the case beyond reasonable doubt the defence relied on – Muthini v Republic (Criminal Appeal 15 of 2023)[2024] KEHC 2182 (KLR) (22 February 2024) (Judgment) where the court reiterated the case of Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR and stated;
In Criminal Cases, the standard of proof is beyond reasonable doubt and it was due to this that Mativo, J (as he then was) in Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR expressed himself as hereunder.
“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it would be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence. It is the duty of the court to find the defendant not guilty. Having considering the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case. It is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”
44) The defence also relies on Paul v Director of Public Prosecutions (Criminal Appeal E069 of 2023 [2024] KEHC 5520 (KLR) (25 April 2024) (Judgment).
45) The court was urged to acquit the accused.
Analysis and Determination
46) I have carefully considered the evidence by both sides the submissions by the defence – as the state did not file any.
47) It is not in dispute that Isaac Kipkorir died. The doctor who conducted the postmortem report clearly established that he died from a single gunshot.
48) It is also not in dispute that the accused person and his colleague PC Sanga were in Athinai area on the material night on police duties, and that the accused was armed when they were attacked by a mob, forced to flee for safety abandon the suspect they had arrested and their motorbike set ablaze. That the accused was forced to fire in the air, so as to keep safe – it was after 7:00 pm and by the evidence of PW3 – it was after 8:30 pm. It was in a place where there were no lights as Pw3 said he had to rely on the lights from his motorbike – there was a fracas where he saw at least 1 person armed with a panga.
49) The question that begs after hearing the defence case is whether the prosecution proved the charge against the accused person – that indeed he was the one who shot and killed the deceased.
50) According to the prosecution, one Patrick is the one who recovered “ shells ” of bullets – ( maganda ya Risasi ). He is said to have taken those to the father of the deceased who in turn handed them to the OCS.
51) The ballistics is expert told the court that he tested a Jericho Pistol of 12 rounds of ammunition. (3 test fired ) and one fired cartridge. She confirmed that the fired cartridge was fired from the Jericho Pistol. The ballistics expert could not have told the court where the fired cartridge was found because the person alleged to have recovered the same did not testify.– he was not availed yet he was known . This Patrick was a very crucial witness. He appears to have been present where this fracas was going on. He could have been the eye witness but he was not brought forward to testify.
52) Why? The court is at liberty to presume that his evidence would not have supported that case for the prosecution.
53) Hence – the evidence as to where the fired cartridges were found vis a vis where the accused and the deceased were in relation to each other was kept away from court. There was no eye witness evidence that the accused aimed the gun at the crowd/mob or at the deceased. His unchallenged testimony was that he fired in the air as he ran to safety. There is no evidence before this court that he aimed at the deceased on at anyone.
54) The Investigating Officer did not testify in this case – to tell the court whether, there was any evidence to show that the accused shot at the crowd or at the deceased and not in the air.
55) PW3 confirmed that when he was at the place where the crowd was and heard one gunshot ;people were running – some to his left some to his right then he heard the gunshot. He did not see the accused aim at anyone and he reported the gunshot to the OCS a fact that was supported by the OCS.
56) There was evidence that Dw2 was injured – he was treated – this was confirmed by the OCS, that when they reached the police station that he had been injured and he was sent to hospital for treatment.
57) I find that this case falls on all fours with Ahmed Mohammed Omar & 5 others v Republic [2014] KECA 515 (KLR) The Court of Appeal had this to say:
There is no dispute that each of the appellants had been issued with a gun and ammunition. Evidence to that effect was given by Senior Sergeant Samuel Kiplagat, PW17 and AP Sergeant Francis Siema, PW25 .
Medical evidence revealed that each of the deceased died of multiple gun shot injuries.
In their respective defences, each of the appellants admitted that on the material day they had been issued with a gun and several rounds of ammunition. The 1 st appellant stated that at about 12.30 a.m. they were patrolling Kawangware area together with the 2 nd , 3 rd and 6 th appellants when they heard screams. As they approached the place where the screams came from, they saw a group of more than ten people about 40 to 50 metres ahead of them. Among them, one person was pleading for his life.
The 1 st appellant shouted aloud that they were police officers and asked the approaching men to surrender. Instead of surrendering or dispersing, the men fired at the appellants. The appellants took cover and fired in the air to disperse the crowd but the crowd was unmoved, they continued to fire at the appellants. The appellants fired in the air a second time but the crowd kept on advancing, whilst firing. The first appellant continued:
“I was scared for my life and the lives of my colleagues. I tried to guess the kind of weapons they had, from the sound of the gunfire. I knew that they had a more powerful firearm than what we had. I concluded that we could not stand up to them in that confrontation.
Shooting continued. I was forced to seek for help. I used my radio to reach the controller. I told him that we had been attacked. I asked for reinforcement…… After a short while, some police officers came to our help. Together with them, we fired at the thugs; while they too fired at us.”
The 4 th and 5 th appellants were among the officers that were sent to assist the 1 st , 2 nd , 3 rd and 6 th appellants after they called for reinforcement. The Duty Officer told them that he had received a signal from the Radio Controller informing him that some officers on patrol at Kawangware had been attacked by armed men. All the appellants contended that they used reasonable force in self-defence and to protect lives of Kenyans, after the crowd refused to disperse and began firing at them. They asserted that they did so in the line of duty, that they are empowered by law to use firearms when they had no alternative ways to prevent crime.
58) The difference here is that the accused did not shoot at the deceased – no such evidence is on record. However, he acted as a police officer would act when in danger – in Ahmed Mohammed Omar & 5 others above the CoA stated
Section 28 of the Police Act as well as the Kenya Police Manual of 1980 set out explicitly the circumstances under which a police officer may use a firearm. One of them is when the officer has reasonable grounds to believe that he or she or any other person is in danger of grievous bodily harm. See this Court’s decision in ANTHONY NJUE NJERU v REPUBLIC [2006] eKLR.
Taking into account the provisions of Section 17 of our Penal Code that import application of the English Common Law into cases of this nature, we are satisfied that the appellants’ defences of self-defence were improperly rejected because the learned trial Judge did not apply the right test. For this reason, we allow this appeal, quash the convictions for murder and set aside the death sentence passed by the trial court as against each of the appellants. The appellants are set at liberty unless otherwise lawfully held
59) In Anthony Njue Njeru v Republic [2006] KECA 339 (KLR) the court of appeal had stated;
On being cross-examined SSP Mwangi is recorded to have stated, inter alia:-
“No one has volunteered information about what happened apart from the accused and Kamwanza. It is my view that accused did not use his firearm recklessly. I could have behaved the same. I inquired from the accused about the inquiry and he told me he was injured by the deceased with the knife. The accused was charged with the offence because we wanted an independent conclusion. I say the shooting was justified.”
In view of the foregoing, it can be said that the shooting of the deceased occurred in the manner explained by the appellant since, as correctly pointed out by Mrs. Murungi in her submission in the superior court, there was no eye-witness to the shooting except the appellant. It has not been shown that the appellant’s version was incorrect or a deliberate lie. Hence, the issue then was whether the appellant was justified to kill the deceased in the circumstances of this case. A number of senior police officers were asked about this issue of shooting and they all thought the appellant was justified in behaving in the manner he did bearing in mind the prevailing conditions.
A killing of a person can only be justified and excusable where the accused’s action which caused the death was in the course of averting a felonious attack and no greater force than is necessary is applied for that purpose. For the plea to succeed, it must be shown by the accused on a balance of probabilities that he was in immediate danger or peril arising from a sudden and serious attack by his victim. It must also be shown that reasonable force was used to avert or forestall the attack. In the present case, it is not in dispute that the appellant being a police officer on duty who was lawfully armed with a pistol shot the deceased and that the deceased died as a result of that shooting. It was therefore upon the appellant to show that at the time of the shooting he was in the course of averting a felonious attack and that no greater force than necessary was applied. The appellant was bound to show that he was in immediate danger or peril arising from a sudden and serious attack by the deceased. In his defence, the appellant explained how he was confronted by ten people some of them armed with dangerous weapons and that these people would not surrender even when ordered to do so by the appellant after he had introduced himself as a police officer. The appellant further explained that when he fired two shots in the air, nine of the ten men ran away while the deceased who had a knife advanced towards the appellant and indeed inflicted some injury on the appellant’s hand.
60) In these cases, the appellants shot the deceased person. They fired at them and shot them. in this case the accused person did not aim at the deceased. The prosecution proved deceased died of a gunshot wound – the bullet came from the gun that had been issued to the accused but in the the circumstances of this case – no blame can be attributed to the accused person – the accused gets the benefit of doubt. The charge of murder is dismissed and he is acquitted accordingly.
Judgment dated signed and delivered virtually at Eldama Ravine Court this 22 nd July 2026.
Mumbua T Matheka
Judge
Accused present in open Court at Nakuru
Ms. Moitui Court Assistant (Nakuru)
Mr. Karanja Court Assistant Eldama Ravine
Ms. Kemunto for the accused
Ms. Omari holding Brief for Ms. Bosire for State
JUDGMENT Nakuru HCCRC NO. 11 of 2019 Page 16 of 17
IN THE HIGH COURT OF KENYA AT NAKURU
HCCRC NO. 11 OF 2019
REPUBLIC ……………………………………………………..PROSECUTOR
VERSUS
PIUS MUGAMBI ………………………..…………………….…..…ACCUSED
JUDGMENT
1) The accused person PIUS MUGAMBI is charged with murder contrary to section 203 as read with section204 of the Penal Code.
2) That on 29/10/2018 at Athinai area, Rongai Sub-county, Nakuru County he murdered Issac Kipkorir Cheboi.
3) On 26/2/2019 he pleaded not guilty before Ngugi J (as he then was). The matter consequently proceeded before me.
4) Pw1 Veronicah Chebet Cherotich was the mother of Issac Kipkorir, she told the court that her son had been home at about 600pm. About 8 – 900pm she received a phone call that her son had been shot. Her husband Pw2 Charles Keboi is the one who went to check on him.
5) She went the following day to the hospital and found that he had been taken to theatre, and when he came out she saw he had an injury near the umbilicus (kando ya kitovu). On 8/11/2018 they were told that he had died and that he had been shot by a police officer.
6) On cross-examination she said that her son used to take alcohol, that on that day he was not drunk she said his house was far from where he was shot; that one Patrick Kiprotich is the one who brought the empty cartridges home the following day.
7) Pw2 Charles Cheboi testified that on 5/11/2018 after 7:00 pm he was in his house – when he heard a motorbike outside. The rider called him and told him – “ Kijana ameaumia ”. He told him the son had been shot. He boarded the same motor bike and went to Mogotio Hospital. The son was given 1 st aid, then taken to Nakuru Provincial General Hospital.
8) He said he did not know the person who shot his son. When his statement was read to him , he denied that he told the police that his wife was called and informed that his son was shot by unknown people. He confirmed that he is the one who handed over the spent cartridges to the OCS, he said he did not know where Patrick found them. He said he was not aware that his son was among people who attacked police officers.
9) Pw3 Joseph Kibet Talam told the court that he was a water vendor, and would vend water using his motorbike. On 5/11/2018 around 8;47 pm he was going home to Sarambei – while on his way, somewhere along the way he found a crowd of people – he had a pillion passenger who was alighting around that place. He saw a crowd ;in the crowd he saw people with torches, there was a fight, there were shouts of mwizi! Mwizi ! People were running, some to his left, some to his right – he saw one with a panga, he saw a black “drum” and a motorbike next to the drum. He heard the sound of a gunshot – and in his words “ mimi huyoo !” – meaning he took off and in the process rang the OCS Mogotio and reported the incident . He went home. He said he could not have known who was who as people were running.
10) On cross-examination, he said he could not identify anyone, that in the lights of his motorbike he saw people carrying pangas. He saw more than 10 people. They seemed to be fighting, that he heard the gunshot after the fight had gone on for a while, that he saw a drum that had a strong smell of alcohol.
11) On re-examination, he said people were fighting. You would not tell who was the victim/the thief. He said he saw one panga.
12) Pw4 Silas Kibet Kitilit told the court that he was along doing boda boda work – that here is a person he owed money – this person had him arrested. He took his boda boda as security for the debt. It was held at Mogotio police – it was Registration No. KMEG 125W. When he went to collect the motorbike, he was told it had been taken to Rongai – Police Station. On going there, he was told the motorbike had been burnt.
13) On cross-examination he said he did not have any documents to show that he owned such a motorbike – that he did not have any evidence that he had left his motorbike at Mogotio police station on account of a debt owed to a complainant.
14) That he did not have any photos of the burnt motorbike – that he signed an inventory at the police station that a motorbike was burnt, that one Rogers Chebon also signed the document - but that there was no documents at the police station to show that they had witnessed the burnt motorbike, that he had not produced even a search certificate to confirm the existence of the alleged motorbike.
15) Pw5 was the doctor who performed the postmortem – DR MUHIA DOMINIC . He performed the postmortem on 15/11/2018 at 4:40 pm on the body of male adult , 19 years old – there was a bullet entry wound left lower back exiting left lumbar area. He had multiple gut perforations. he established the Cause of death as Respiratory distress. Secondary to hypovolemic and septic shock injury sustained from gunshot and stress from major surgery. On cross-examination he said the surgery was damage control that the patient would have died without surgery.
16) On re-examination he said major surgery involved the removal of the gut was necessary because it was already injured. That there was only one gunshot wound and it had caused damage in the gut. He could not tell how far the gun that caused the wound was shot at. He said he could not tell whether it was a stray or aimed shot; that that question was for the ballistics expert.
17) Pw6 No. 88764 CPL Flora Muthiomi was stationed at Menengai police station at the material time. She was rang by the OCS on 5/11/2018 and informed that someone had been shot at Athinai Area, and people were demonstrating – she called out police officers – and DCI Officers from Rongai Division. They proceeded to the scene. They learnt at the scene that one Issac Kipkorir had been shot, there was a motorcycle burning which had been set ablaze. The people said those who had shot Kipkorir were unknown, had fled leaving their motorbike. They calmed the crowd, took photos of the motorbike, took it, proceeded to Nakuru Provincial General Hospital to visit the victim, he was admitted in critical condition. The matter was handed over to DCI for investigations.
18) On cross-examination she said the members of public at the scene said the users of the motorcycle were unknown, the crowd was very rowdy, there were 30 to 40 people, 2 people were said to have fled. She did not gather any information that one of the two was injured with a panga, she explained the circumstances when a police officer is allowed to use necessary force and can use firearm if attacked. She said the incident took place at night. She said she did not see the drum of Chang’aa.
19) She said on re-examination that if officers were in an ambush – one could give a warning but also judge the situation – shoot in the air.
20) Pw7 No. 107072 PC Irene Cheboi is sister to the deceased. She learnt about the shooting from one Patrick Kiplobei, and that the suspects were police officers. She attended the postmortem with her father, and saw that her brother had suffered gunshot wound.
21) On cross-examination she said she did not go to the scene – but that it was around 2km away from home – she said she was not aware her brother took chang’aa.
22) Pw8 No. 231845 SSP Florence Karimi was at DCI Headquarters, Ballistics. She recovered exhibits from one No. 232526 ASP Dorcas Cherui from DCI Rongai.
1. A Jericho Pistol – marked EZ A.
2. 12 rounds of Ammunition.
- 3 Justifiable marked EZ B1 to B12.
3. One fired cartridge case – marked EZ C.
4. One magazine marked EX D.
They were accompanied by Exhibit Memo Form .
23) She said she was supposed to ascertain the following ;
1) Whether EZ A was a firearm capable of firing, whether it expended.
EZ C.
2) Whether EZ B1 to B12 were ammunitions capable of being fired, whether they could be used in EZ A.
3) Whether EZ C was an ammunition capable of being fired and could be used in EZ A.
4) Whether EZ D was a magazine.
24) She said she examined the exhibits and made following findings :-
1) EZ A is a Jericho pistol serial number 44332654 designed to chamber and fire rounds of ammunition in caliber 9 x 19 mm. it is in good physical and mechanical condition complete in all as component parts.
25) She successfully test fired it using three rounds of ammunition which she picked randomly from EZ B1 to B 12. She did recover the three test bullets and 3 test cartridge cases
- PEx 2 (a, (b), (c) 3 test bullets, PEx3 (a) (b), (c)
- EZ B1 to 12 – 12 rounds of ammunition – caliber 9 x 19 mm each one of them was on good working order.
- 9 rounds of ammunition – PEX 4 (a) to (i).
- EZ C is one fired cartridge case in caliber 9 x 19mm PEX 5.
26) She submitted them to comparative microscopic examination PEX 5 in conjunction with test cartridges cases PEx 2 (a) (b) and c which revealed sufficient matching ejection markings, and breech face makings – these enabled her to form the opinion that they were fired by the Jericho Pistol – PEX 6.
27) Pw9 No. 230185 Chief Inspector Maurice Situma the OCS Mogotio at the material time told the court that on 5/11/2018 told the court that at 8:30 pm he received a call from a boda boda rider who told him he had heard gunshots at Athinai.
28) He called his colleague in Rongai to find out what was happening. 15 minutes later he received a call from Pc Mugambi – the accused who was an officer at his station. He was aware that he and PC Patel Sanga had gone out on inquiries within Athinai area – to arrest a suspect of assault.
29) He told him they had arrested the suspect but were confronted by angry mob of members of the public -, and that he and PC Sanga had fled to different directions, and that he had fired 2 shots in the air, and was hiding in a sisal plantation. Pw9 informed the OCPD – they put together a rescue team to rescue the officers but the two arrived on their own. He took over PC Mugambi’s rifle – a Jericho Pistol it had 12 rounds of ammunition – 9 complete, 3 bullet heads.
30) PC Patel had bruises/injuries, he caused him to go for treatment. OCPD Rongai was communicated to visit the scene. He confirmed that PC Mugambi was issued with 14 heads of ammunition and Jericho Pistol serial Number 44332654 and had shot 2. The pistol and copy of arms register were produced as evidence.
31) Two days later he learnt from DCI that a person was shot and died. He confirmed that the 2 officers had booked out in the OB to arrest a suspect of assault – the DCI took over the assault file. On cross-examination he said when accused called him he sounded scared. Prosecution closed its case on 21/2/2023.
Defence Case
32) The accused gave sworn statement of defence. He testified that he was minuted the case of Margaret Nakito reported at Mogotio police station vide OB 17/29/10/18. On 5 th November 2018, he was informed of the location of the suspect. He and PC Sanga (DW2) proceeded to the place where the suspect was to be found. They arrested him without commotion. They found him distilling chang’aa. They were using a motorbike of a friend. As they were about to get to the Nakuru/Marigat Highway they were intercepted by another motorcycle from behind. It had 4 occupants – armed with pangas and rungus – they tried to explain who they were but in no time there was a crowd of over 50 people. Those people took away the suspect. An argument ensued – they torched the motorcycle, assaulted PC Sanga – he was cut on the wrist.
33) He said the crowd became unruly and they ran away – he fired one in the air while and another round after he fell down. They entered a sisal plantation. From where he called the OCS. He later learnt that one of the youths had died – he was sorry because he never intended to shoot anyone, he was just trying to get away.
34) He said he incident happened around 7:00 pm. He said he tripped in the fencing wire of the sisal plantation. He said his colleague had been cut. Their motorcycle had been torched and the crowd was pursuing them. Shouting ua hao! Ua hao mapolisi !
35) On cross-examination he continued that he and PC Sanga travelled on motorbike registration number KMEG 125W. He said the person was brewing chang’aa and they took one sky plast. He said the motorbike was torched before the shooting. He said the deceased was not known to him before.
36) DW2 No. 112581 PC Patel Sanga testified and told a similar story to that of DW1. He said that he would understand the language the mob was speaking and he tried to speak to them – however, one attacked him with panga and cut his left wrist – he was rescued by a woman to her house but the mob followed he ran off into the plantation where he waited for some time before calling PC Mugambi who said he was also in the plantation. They rang OCS, and some officers were sent to rescue them but they went to the station where he was sent to hospital, as PC Mugambi was disarmed. He marked his P3 as DMFI 1 as the prosecutor objected to his producing it.
37) On cross-examination he said when PC Mugambi fired – he was in hiding and heard the gunshots.
Submissions
38) Counsel for the prosecution filed written submissions. After reiterating the evidence by the prosecution and by the defence he set out the issues for determination as hereunder:-
1. Whether the prosecution has proved the ingredients of murder.
2. Whether the defence is self defence is admissible to the accused person.
3. Whether the prosecution has proved the case beyond reasonable doubt.
39) Relying on Republic v Gedion Wambua Kioko & Others [2019] eKLR it was submitted that the court established that to prove a charge of murder, the prosecution had a duty to establish the following elements:
i) The death and cause of death of the deceased;
ii) That the accused caused the death through an unlawful act or omission; and
iii) The accused possessed the intention to cause harm or kill or malice aforethought.
40) The defence cited section 207 of the Criminal Procedure Code arguing that the accused could only be guilty of manslaughter at most. However, citing Mancini vs Director of Public Prosecutions, [1941] AII 272 where the English House of Lords held that
...not every kind of provocation, however, will reduce murder to manslaughter. To have that effect the provocation must be such as to temporarily deprive the person provoked of the power of self-control, as a result of which he commits the act which causes the death. The test to be applied therefore is that of the effect the provocation would have on a reasonable man, so that an unusual excitable or pugnacious person is not entitled to rely on provocation which would not have led an ordinary and reasonable person to act as he did. And before provocation becomes an operative factor in a murder trial, however, the prosecution must have proved beyond reasonable doubt, that murder, provocation apart, had been committed by the accused .
41) The defence argues that the prosecution had not proved the charge of murder against him in order to have the same reduced to manslaughter. It is argued that the accused shot once in the air, and that when he fell down the gun discharged – that he never aimed at anyone.
42) It is submitted that PW3 corroborated the evidence of the defence in that he found a commotion and he heard one gun shot and he ran away.
43) On whether the prosecution had proved the case beyond reasonable doubt the defence relied on – Muthini v Republic (Criminal Appeal 15 of 2023)[2024] KEHC 2182 (KLR) (22 February 2024) (Judgment) where the court reiterated the case of Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR and stated;
In Criminal Cases, the standard of proof is beyond reasonable doubt and it was due to this that Mativo, J (as he then was) in Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR expressed himself as hereunder.
“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it would be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence. It is the duty of the court to find the defendant not guilty. Having considering the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case. It is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”
44) The defence also relies on Paul v Director of Public Prosecutions (Criminal Appeal E069 of 2023 [2024] KEHC 5520 (KLR) (25 April 2024) (Judgment).
45) The court was urged to acquit the accused.
Analysis and Determination
46) I have carefully considered the evidence by both sides the submissions by the defence – as the state did not file any.
47) It is not in dispute that Isaac Kipkorir died. The doctor who conducted the postmortem report clearly established that he died from a single gunshot.
48) It is also not in dispute that the accused person and his colleague PC Sanga were in Athinai area on the material night on police duties, and that the accused was armed when they were attacked by a mob, forced to flee for safety abandon the suspect they had arrested and their motorbike set ablaze. That the accused was forced to fire in the air, so as to keep safe – it was after 7:00 pm and by the evidence of PW3 – it was after 8:30 pm. It was in a place where there were no lights as Pw3 said he had to rely on the lights from his motorbike – there was a fracas where he saw at least 1 person armed with a panga.
49) The question that begs after hearing the defence case is whether the prosecution proved the charge against the accused person – that indeed he was the one who shot and killed the deceased.
50) According to the prosecution, one Patrick is the one who recovered “ shells ” of bullets – ( maganda ya Risasi ). He is said to have taken those to the father of the deceased who in turn handed them to the OCS.
51) The ballistics is expert told the court that he tested a Jericho Pistol of 12 rounds of ammunition. (3 test fired ) and one fired cartridge. She confirmed that the fired cartridge was fired from the Jericho Pistol. The ballistics expert could not have told the court where the fired cartridge was found because the person alleged to have recovered the same did not testify.– he was not availed yet he was known . This Patrick was a very crucial witness. He appears to have been present where this fracas was going on. He could have been the eye witness but he was not brought forward to testify.
52) Why? The court is at liberty to presume that his evidence would not have supported that case for the prosecution.
53) Hence – the evidence as to where the fired cartridges were found vis a vis where the accused and the deceased were in relation to each other was kept away from court. There was no eye witness evidence that the accused aimed the gun at the crowd/mob or at the deceased. His unchallenged testimony was that he fired in the air as he ran to safety. There is no evidence before this court that he aimed at the deceased on at anyone.
54) The Investigating Officer did not testify in this case – to tell the court whether, there was any evidence to show that the accused shot at the crowd or at the deceased and not in the air.
55) PW3 confirmed that when he was at the place where the crowd was and heard one gunshot ;people were running – some to his left some to his right then he heard the gunshot. He did not see the accused aim at anyone and he reported the gunshot to the OCS a fact that was supported by the OCS.
56) There was evidence that Dw2 was injured – he was treated – this was confirmed by the OCS, that when they reached the police station that he had been injured and he was sent to hospital for treatment.
57) I find that this case falls on all fours with Ahmed Mohammed Omar & 5 others v Republic [2014] KECA 515 (KLR) The Court of Appeal had this to say:
There is no dispute that each of the appellants had been issued with a gun and ammunition. Evidence to that effect was given by Senior Sergeant Samuel Kiplagat, PW17 and AP Sergeant Francis Siema, PW25 .
Medical evidence revealed that each of the deceased died of multiple gun shot injuries.
In their respective defences, each of the appellants admitted that on the material day they had been issued with a gun and several rounds of ammunition. The 1 st appellant stated that at about 12.30 a.m. they were patrolling Kawangware area together with the 2 nd , 3 rd and 6 th appellants when they heard screams. As they approached the place where the screams came from, they saw a group of more than ten people about 40 to 50 metres ahead of them. Among them, one person was pleading for his life.
The 1 st appellant shouted aloud that they were police officers and asked the approaching men to surrender. Instead of surrendering or dispersing, the men fired at the appellants. The appellants took cover and fired in the air to disperse the crowd but the crowd was unmoved, they continued to fire at the appellants. The appellants fired in the air a second time but the crowd kept on advancing, whilst firing. The first appellant continued:
“I was scared for my life and the lives of my colleagues. I tried to guess the kind of weapons they had, from the sound of the gunfire. I knew that they had a more powerful firearm than what we had. I concluded that we could not stand up to them in that confrontation.
Shooting continued. I was forced to seek for help. I used my radio to reach the controller. I told him that we had been attacked. I asked for reinforcement…… After a short while, some police officers came to our help. Together with them, we fired at the thugs; while they too fired at us.”
The 4 th and 5 th appellants were among the officers that were sent to assist the 1 st , 2 nd , 3 rd and 6 th appellants after they called for reinforcement. The Duty Officer told them that he had received a signal from the Radio Controller informing him that some officers on patrol at Kawangware had been attacked by armed men. All the appellants contended that they used reasonable force in self-defence and to protect lives of Kenyans, after the crowd refused to disperse and began firing at them. They asserted that they did so in the line of duty, that they are empowered by law to use firearms when they had no alternative ways to prevent crime.
58) The difference here is that the accused did not shoot at the deceased – no such evidence is on record. However, he acted as a police officer would act when in danger – in Ahmed Mohammed Omar & 5 others above the CoA stated
Section 28 of the Police Act as well as the Kenya Police Manual of 1980 set out explicitly the circumstances under which a police officer may use a firearm. One of them is when the officer has reasonable grounds to believe that he or she or any other person is in danger of grievous bodily harm. See this Court’s decision in ANTHONY NJUE NJERU v REPUBLIC [2006] eKLR.
Taking into account the provisions of Section 17 of our Penal Code that import application of the English Common Law into cases of this nature, we are satisfied that the appellants’ defences of self-defence were improperly rejected because the learned trial Judge did not apply the right test. For this reason, we allow this appeal, quash the convictions for murder and set aside the death sentence passed by the trial court as against each of the appellants. The appellants are set at liberty unless otherwise lawfully held
59) In Anthony Njue Njeru v Republic [2006] KECA 339 (KLR) the court of appeal had stated;
On being cross-examined SSP Mwangi is recorded to have stated, inter alia:-
“No one has volunteered information about what happened apart from the accused and Kamwanza. It is my view that accused did not use his firearm recklessly. I could have behaved the same. I inquired from the accused about the inquiry and he told me he was injured by the deceased with the knife. The accused was charged with the offence because we wanted an independent conclusion. I say the shooting was justified.”
In view of the foregoing, it can be said that the shooting of the deceased occurred in the manner explained by the appellant since, as correctly pointed out by Mrs. Murungi in her submission in the superior court, there was no eye-witness to the shooting except the appellant. It has not been shown that the appellant’s version was incorrect or a deliberate lie. Hence, the issue then was whether the appellant was justified to kill the deceased in the circumstances of this case. A number of senior police officers were asked about this issue of shooting and they all thought the appellant was justified in behaving in the manner he did bearing in mind the prevailing conditions.
A killing of a person can only be justified and excusable where the accused’s action which caused the death was in the course of averting a felonious attack and no greater force than is necessary is applied for that purpose. For the plea to succeed, it must be shown by the accused on a balance of probabilities that he was in immediate danger or peril arising from a sudden and serious attack by his victim. It must also be shown that reasonable force was used to avert or forestall the attack. In the present case, it is not in dispute that the appellant being a police officer on duty who was lawfully armed with a pistol shot the deceased and that the deceased died as a result of that shooting. It was therefore upon the appellant to show that at the time of the shooting he was in the course of averting a felonious attack and that no greater force than necessary was applied. The appellant was bound to show that he was in immediate danger or peril arising from a sudden and serious attack by the deceased. In his defence, the appellant explained how he was confronted by ten people some of them armed with dangerous weapons and that these people would not surrender even when ordered to do so by the appellant after he had introduced himself as a police officer. The appellant further explained that when he fired two shots in the air, nine of the ten men ran away while the deceased who had a knife advanced towards the appellant and indeed inflicted some injury on the appellant’s hand.
60) In these cases, the appellants shot the deceased person. They fired at them and shot them. in this case the accused person did not aim at the deceased. The prosecution proved deceased died of a gunshot wound – the bullet came from the gun that had been issued to the accused but in the the circumstances of this case – no blame can be attributed to the accused person – the accused gets the benefit of doubt. The charge of murder is dismissed and he is acquitted accordingly.
Judgment dated signed and delivered virtually at Eldama Ravine Court this 22 nd July 2026.
Mumbua T Matheka
Judge
Accused present in open Court at Nakuru
Ms. Moitui Court Assistant (Nakuru)
Mr. Karanja Court Assistant Eldama Ravine
Ms. Kemunto for the accused
Ms. Omari holding Brief for Ms. Bosire for State
JUDGMENT Nakuru HCCRC NO. 11 of 2019 Page 16 of 17