1. The accused person herein was charged with the offence of murder contrary to Section 203 as read with Section 204 of the penal code.
2. The particulars of the offence as per the information dated 31st October 2022 at SARAGOI AREA, MWEMBE TAYARI LOCATION MVITA SUB COUNTY, WITHIN MOMBASA he murdered CAROLNE GACHERI.
3. The accused person denied the offence and the state called 10 witnesses. These were: -
i. 237485 - Inspector Timothy Muturi
ii. Dr. Mngola
iii. Mwidadi Omar
iv. Ignesius Mutegi
v. Ashruf Ali Badi
vi. Dr. Julius Maneno Sango
vii. No. 60026 Sgt. Emmanuel Konde
viii. PW 7 recalled
ix. Ramathan Mohammed Faraj
x. No. 225039 Sgt. Nadia Nadi
4. Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law.
5. Section 203 of the Penal Code gives the elements of the offence as follows: -
“ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
6. The elements of murder were set out by the Court of Appeal in the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR, as follows:
“For the offence of murder to be proved, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased an
(c) the intention
7. Therefore , on the first part , the state had to prove the deaths, and that the accused person committed the acts or omissions which caused the death of the deceased.
8. The death is not disputed. Even the accused person acknowledged that she passed on. He also mentioned a stabbing incident. The postmortem report shows the cause of death as Exsanguination due to left heomothorax and pericardial effusion secondary to incisional cut wound to the dust. The photographs of the scene show the deceased lying at the floor at the scene.
The critical question is who inflicted this incisional
wound on the late Caroline?
9. We have two versions of the events of that night. One from PW 4 Ignitius Mutegi the step brother to the late Caroline. According to him, he had arrived in Mombasa some two weeks prior to this incidence on 23/10/2022.
10. His mission in Mombasa was to eke a living. He testified that the late sister had acquired a trolley to hauke eggs.
11. PW 4 testified that upon arrival in Mombasa, he went to live with the deceased Carol and the accused person and their child in their rented house at Saragoi, Mwembe Tayari. That he quickly picked that the union between the deceased and the accused was not peaceful. The issue was money. The late sister was complaining that the husband, now the accused person was not chipping into the family expenses and she was shouldering the burden alone.
12. PW 4 said the two would quarrel daily but there was no violence.
13. That on the material date of 30/10/2024, the late Sister arrived home at 8.30pm and found him (PW 4) and the accused person watching TV. She complained again and threatened to leave the house since the accused person was not helping her. That he (PW 4) intervened and told her to relax and they would sort the issue the next day. That indeed she relaxed and they watched football for while with the deceased chatting a but the accused person remained silent as he was stressed.
14. That at midnight, the late Sister got up and went into the bedroom. That the husband also got up, went into the kitchen, then switched off the lights in both the kitchen and the sitting room while saying that it was hot.
15. That after a while, Koome, the accused person followed the wife into the bedroom, leaving him in the sitting room with the child. That suddenly he heard his sister saying in Kiswahili – “ uuui Mutegi ninakufa”. That he got startled but before he could react, he was shocked to find that he was under attack. That someone was pushing him against the wall and stabbing him with the knife all over. From the right shoulder, both hands and legs. The court saw the scars. He had 7 stab wounds as per the P3 produced as PEXT. 8.
16. PW 4 said that it was Samson the accused who stabbed him and he was able to see him with the light from the TV. He also identified the knife used to stab him – PEXT. 7. He stated that he struggled with the accused person and eventually managed to disarm the accused person. That the accused person ran outside and he followed him outside then he recalled his sister. He turned back into the house where he found the sister lying on the floor of the kitchen with a stab wound on the chest and in bad shape. That was when he raised an alarm and the village elder, Ahsraff Ali Badi PW 5 responded.
17. PW 5 and his friends called the police who came and documented the scene then took the deceased to Makadara Mortuary and PW 4 to hospital.
18. In the meantime, PW1- P.1 Muturi Timothy says he heard the report over the control room. As he was rushing to the scene he met a person at the entrance of the police station and this person introduced himself as Samson Koome. That this Samson told him that he had killed his wife and that is when he (PW 1) instructed the personnel in the report office to lock him up.
19. That was the version by the prosecution side.
20. The other version by the accused person is that PW 4 had come to Mombasa to work as a Security Guard. That he (PW 4) however could not take up the job since he did not have his 4th form certificate. The accused person said the certificate was withheld since PW 4 had squandered some fees. That it was then agreed that the PW 4 would join him in the milk distribution business using a tuk-tuk belonging to one Mama Dee-Jay.
21. That on 28/10/2024 they went to Majengo to Mama Dee jay to collect the tuktuk. That as they were waiting for Mama Dee jay to hand-over the Tuk Tuk, PW 4 stole a phone which was in the said Tuktuk. The said phone belonged to one of the employees to Mama De-Jay. That their child confirmed having seen the accused person with a phone and he also saw the phone. That he told PW 4’s sister now his late wife to call the mother as he could not live with a thief and the mother promised to come Mombasa. That on Sunday evening, the late wife confronted PW 4 for not preparing dinner and also, the issue of the mother not arriving from home came up.
22. That PW 4 and the deceased Carol argued and Mutegi (PW 4) brought up the issue of their father’s identify card. That he intervened and asked if PW 4 had come for a job or identity card. That PW 4 went into the kitchen and came with a knife with which he stabbed the deceased. That the deceased fell and ran towards the kitchen. That he struggled with the PW 4, and even bite PW 4 on the stomach in a bid to disarm him. That PW 4 hurt him on the forehead.
23. That he then heard the deceased fall with a thud with the neck to the side. That he got shocked and he ran out and straight to the police station. That at the gate he met two policemen whom he told he had come to report that his wife had been killed. He was sent to the report desk. That he was panting and bleeding from the forehead. That when he tried to make his report, the report office personnel told him he was drunk and he should go away. That he refused to go away and he sat down. That was when Inspector Mutugi arrived and found him seated down and on asking him what the issue was he (accused) said his wife had been stabbed. That was when Inspector Mutugi turned against him and said he had stabbed someone and he ordered his arrest.
24. So, basically those two theories as to how the late Gaderi was stabbed. There was no other witness as the child was not called to testify.
25. The only other evidence was the blood and the knife PEXT. 7. This was tested and PW 2 produced the report (PW ext 5) dated 4/4/2023. It shows that it tested position for human blood which generated a male profile matching the DNA Profile generated from the blood sample of Ignitus – EXCT.C) – and DNA alleges at Locs (D35, D16, D12, D18, D19, Thosi, D5 S, D7 OS and D2 SI – from the blood sample of Caroline. From this, it can be safely concluded, it was the murder weapon.
26. The accused person pointed to some differences between the knife produced in court PEXT 7 and the knife in the photographs.
I looked at the photograph keenly and clearly it is the same knife
.
27. The other evidence was the photographs – but I must say the crimes scenes officer did not do a good job. He only took photographs mainly of the external room. He even described the house as a single room and this interested the court since all the other witnesses had mentioned 3 rooms. As a result, the court visited the scene and saw that indeed there were 3 rooms.
28. The investigating officer did a better job and said that the blood stains started from the bedroom. This supported the version by PW 4, that the incidence started in the bedroom. That unlocked the deadlock and the court believes the version by PW 4. In as much as the accused person cross examined PW 4 on the Tuk-tuk story , I note he did not make any attempts to call this Mama Dejay and neither did he cross examine PW 4 on the security job or squandered school fees.
29. We also have the evidence of Inspector Mutugi. They had not even interacted and he had no reason to frame him.
30. The court finds that the accused person surrendered himself to the police after his heinous crime.
31. As to the malice aforethought, PW 4 stated that the couple had been squabbling over finances. The village elder also alluded to the same.
32. The accused waited for his wife to go to bed, he armed himself with a kitchen knife and inflicted the cut wound on the left fore arm, 2cm, cut wound on the chest . The cut to the chest was through left 3rd intercostal space left lung and left atrium, causing massive hematoma. He then attacked PW 4 causing 7 cuts before fleeing. Clearly, he intended to cause the death of the deceased.
33. Accordingly, I convict him for the offence of murder contrary to section 203 as read with 204 0f the penal code.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this ……26th……..day of …June…2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
The accused person and his advocate Mr Khamisi Salim
Mr. Sirima for the prosecution side
MS Bebora court assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE
2. The particulars of the offence as per the information dated 31st October 2022 at SARAGOI AREA, MWEMBE TAYARI LOCATION MVITA SUB COUNTY, WITHIN MOMBASA he murdered CAROLNE GACHERI.
3. The accused person denied the offence and the state called 10 witnesses. These were: -
i. 237485 - Inspector Timothy Muturi
ii. Dr. Mngola
iii. Mwidadi Omar
iv. Ignesius Mutegi
v. Ashruf Ali Badi
vi. Dr. Julius Maneno Sango
vii. No. 60026 Sgt. Emmanuel Konde
viii. PW 7 recalled
ix. Ramathan Mohammed Faraj
x. No. 225039 Sgt. Nadia Nadi
4. Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law.
5. Section 203 of the Penal Code gives the elements of the offence as follows: -
“ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
6. The elements of murder were set out by the Court of Appeal in the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR, as follows:
“For the offence of murder to be proved, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased an
(c) the intention
7. Therefore , on the first part , the state had to prove the deaths, and that the accused person committed the acts or omissions which caused the death of the deceased.
8. The death is not disputed. Even the accused person acknowledged that she passed on. He also mentioned a stabbing incident. The postmortem report shows the cause of death as Exsanguination due to left heomothorax and pericardial effusion secondary to incisional cut wound to the dust. The photographs of the scene show the deceased lying at the floor at the scene.
The critical question is who inflicted this incisional
wound on the late Caroline?
9. We have two versions of the events of that night. One from PW 4 Ignitius Mutegi the step brother to the late Caroline. According to him, he had arrived in Mombasa some two weeks prior to this incidence on 23/10/2022.
10. His mission in Mombasa was to eke a living. He testified that the late sister had acquired a trolley to hauke eggs.
11. PW 4 testified that upon arrival in Mombasa, he went to live with the deceased Carol and the accused person and their child in their rented house at Saragoi, Mwembe Tayari. That he quickly picked that the union between the deceased and the accused was not peaceful. The issue was money. The late sister was complaining that the husband, now the accused person was not chipping into the family expenses and she was shouldering the burden alone.
12. PW 4 said the two would quarrel daily but there was no violence.
13. That on the material date of 30/10/2024, the late Sister arrived home at 8.30pm and found him (PW 4) and the accused person watching TV. She complained again and threatened to leave the house since the accused person was not helping her. That he (PW 4) intervened and told her to relax and they would sort the issue the next day. That indeed she relaxed and they watched football for while with the deceased chatting a but the accused person remained silent as he was stressed.
14. That at midnight, the late Sister got up and went into the bedroom. That the husband also got up, went into the kitchen, then switched off the lights in both the kitchen and the sitting room while saying that it was hot.
15. That after a while, Koome, the accused person followed the wife into the bedroom, leaving him in the sitting room with the child. That suddenly he heard his sister saying in Kiswahili – “ uuui Mutegi ninakufa”. That he got startled but before he could react, he was shocked to find that he was under attack. That someone was pushing him against the wall and stabbing him with the knife all over. From the right shoulder, both hands and legs. The court saw the scars. He had 7 stab wounds as per the P3 produced as PEXT. 8.
16. PW 4 said that it was Samson the accused who stabbed him and he was able to see him with the light from the TV. He also identified the knife used to stab him – PEXT. 7. He stated that he struggled with the accused person and eventually managed to disarm the accused person. That the accused person ran outside and he followed him outside then he recalled his sister. He turned back into the house where he found the sister lying on the floor of the kitchen with a stab wound on the chest and in bad shape. That was when he raised an alarm and the village elder, Ahsraff Ali Badi PW 5 responded.
17. PW 5 and his friends called the police who came and documented the scene then took the deceased to Makadara Mortuary and PW 4 to hospital.
18. In the meantime, PW1- P.1 Muturi Timothy says he heard the report over the control room. As he was rushing to the scene he met a person at the entrance of the police station and this person introduced himself as Samson Koome. That this Samson told him that he had killed his wife and that is when he (PW 1) instructed the personnel in the report office to lock him up.
19. That was the version by the prosecution side.
20. The other version by the accused person is that PW 4 had come to Mombasa to work as a Security Guard. That he (PW 4) however could not take up the job since he did not have his 4th form certificate. The accused person said the certificate was withheld since PW 4 had squandered some fees. That it was then agreed that the PW 4 would join him in the milk distribution business using a tuk-tuk belonging to one Mama Dee-Jay.
21. That on 28/10/2024 they went to Majengo to Mama Dee jay to collect the tuktuk. That as they were waiting for Mama Dee jay to hand-over the Tuk Tuk, PW 4 stole a phone which was in the said Tuktuk. The said phone belonged to one of the employees to Mama De-Jay. That their child confirmed having seen the accused person with a phone and he also saw the phone. That he told PW 4’s sister now his late wife to call the mother as he could not live with a thief and the mother promised to come Mombasa. That on Sunday evening, the late wife confronted PW 4 for not preparing dinner and also, the issue of the mother not arriving from home came up.
22. That PW 4 and the deceased Carol argued and Mutegi (PW 4) brought up the issue of their father’s identify card. That he intervened and asked if PW 4 had come for a job or identity card. That PW 4 went into the kitchen and came with a knife with which he stabbed the deceased. That the deceased fell and ran towards the kitchen. That he struggled with the PW 4, and even bite PW 4 on the stomach in a bid to disarm him. That PW 4 hurt him on the forehead.
23. That he then heard the deceased fall with a thud with the neck to the side. That he got shocked and he ran out and straight to the police station. That at the gate he met two policemen whom he told he had come to report that his wife had been killed. He was sent to the report desk. That he was panting and bleeding from the forehead. That when he tried to make his report, the report office personnel told him he was drunk and he should go away. That he refused to go away and he sat down. That was when Inspector Mutugi arrived and found him seated down and on asking him what the issue was he (accused) said his wife had been stabbed. That was when Inspector Mutugi turned against him and said he had stabbed someone and he ordered his arrest.
24. So, basically those two theories as to how the late Gaderi was stabbed. There was no other witness as the child was not called to testify.
25. The only other evidence was the blood and the knife PEXT. 7. This was tested and PW 2 produced the report (PW ext 5) dated 4/4/2023. It shows that it tested position for human blood which generated a male profile matching the DNA Profile generated from the blood sample of Ignitus – EXCT.C) – and DNA alleges at Locs (D35, D16, D12, D18, D19, Thosi, D5 S, D7 OS and D2 SI – from the blood sample of Caroline. From this, it can be safely concluded, it was the murder weapon.
26. The accused person pointed to some differences between the knife produced in court PEXT 7 and the knife in the photographs.
I looked at the photograph keenly and clearly it is the same knife
.
27. The other evidence was the photographs – but I must say the crimes scenes officer did not do a good job. He only took photographs mainly of the external room. He even described the house as a single room and this interested the court since all the other witnesses had mentioned 3 rooms. As a result, the court visited the scene and saw that indeed there were 3 rooms.
28. The investigating officer did a better job and said that the blood stains started from the bedroom. This supported the version by PW 4, that the incidence started in the bedroom. That unlocked the deadlock and the court believes the version by PW 4. In as much as the accused person cross examined PW 4 on the Tuk-tuk story , I note he did not make any attempts to call this Mama Dejay and neither did he cross examine PW 4 on the security job or squandered school fees.
29. We also have the evidence of Inspector Mutugi. They had not even interacted and he had no reason to frame him.
30. The court finds that the accused person surrendered himself to the police after his heinous crime.
31. As to the malice aforethought, PW 4 stated that the couple had been squabbling over finances. The village elder also alluded to the same.
32. The accused waited for his wife to go to bed, he armed himself with a kitchen knife and inflicted the cut wound on the left fore arm, 2cm, cut wound on the chest . The cut to the chest was through left 3rd intercostal space left lung and left atrium, causing massive hematoma. He then attacked PW 4 causing 7 cuts before fleeing. Clearly, he intended to cause the death of the deceased.
33. Accordingly, I convict him for the offence of murder contrary to section 203 as read with 204 0f the penal code.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this ……26th……..day of …June…2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
The accused person and his advocate Mr Khamisi Salim
Mr. Sirima for the prosecution side
MS Bebora court assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE