INFORMATION
1. The Accused persons Simon Gitau Karanja and Dominic Okoth John were charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code
Particulars of the offence being that on 11 th day of April 2019 at City Garden area Embakasi East Subcounty within Nairobi County they murdered Vallary Atieno Amenyi .
2. Mental assessment was done and reports filed in Court on 16/5/2019. the accused persons were found fit to plead. The accused persons later pleaded not guilty to the charges and the prosecution called 10 witnesses in proof of the charges.
THE PROSECUTION EVIDENCE
The hearing commenced on 3/2/2020 before Hon. D Ogembo J
3. PW1, Laura Akinyi Odhiambo testified that she resided at City Carton in Embakasi West ward where she runs an Mpesa shop Gikomba. The deceased was her friend and they grew up together, that sometime in 2017 her friend Valeria Atieno requested for her ID card to register her mobile line. The deceased did not have her ID.PW1 called her parent and they went to the Mpesa next to them at City Carton.
4. They bought a Safaricom line using 100/=, PW1 identified her ID in Court number 34192024 produced as P Exh1.The deceased was registered and they went home. The deceased was their neighbor at City Carton.
5. That on 11/4/2019 at about 3:00am they were sleeping when the deceased’s brother knocked their door, they found the deceased being carried by her father and Baba Ben and her parents. The deceased was bleeding and she was taken to Mama Lucy hospital while other neighbors remained behind. The deceased’s father called after 30 minutes and told them she had died.
6. PW1 stated that the deceased was their neighbor for 10 years, she had a kambambe phone; her father bought her China phone which was black and shiny, her boyfriend known as Mwanake gave her another phone Nokia Lumia black in color.
7. That on 4/6/2019 PW1 was called by DCI Wanjohi to go to Buruburu police station and was to identify a phone. She found many phones on the table and she was able to identify the deceased’s Nokia Lumia phone .The phone had a cracked screen and she also saw her with it the day before. PW1 identified the phone in court as PMFI- 2. She recorded her statement.
8. PW2, Dr Charles K Muturi , Pathologist based at Mama Lucy Kibaki hospital referred court to the postmortem report done on 16/4/2019 at the hospital. The deceased was 20 years old of good nutritional state and medium physique.
9. She had a recent injury in form of penetrating stab wound on the left side of the neck which was 5 cm long 1.5 cm width. It severed the neck vessels and fractured the cervical vertebrate, transected through the spinal cord.
10. The skin had punctured marks on the left elbow signifying drug administration . The cause of death was severed blood loss and cervical spine injury due to sharp force trauma consistent with stab wound.
11. He also took blood specimen as requested by the police for matching the weapon of assault. The postmortem report was produced as Exhibit 1.
12. PW3 Fredrick Jesse Ochieng Ouma , also a resident of Carton Buruburu where he did panel beating and spray painting for a living.
13. He stated that he was at his house on 11/4/2019 sleeping when at 3:00am he was woken up by screams from his neighbors’ children. The children slept in the first room next to his gate. The neighbor was called Mama Valerie. He put on the lights and got an iron rod from under the bed, the gate was opened, he headed towards the gate. Mama Valerie was also from the children’s room and she told him to go to the room and help Valerie and remove the knife that was stuck on her neck and take her to hospital.
14. He found the deceased on the bed and she had a knife on her neck, she was sleeping on one side . The 3 other children were in the room, the knife had a black handle which he removed from her neck and placed it down. He identified it as MFI- 4. He headed to the gate where he found a black cap and a black handbag, the cap had a mark of 2 guns making an X at the front, he identified it as MFI -5 and the black bag as MF1- 6.
15. Neighbors came out and entered the plot, they carried her to the road and got a taxi. Her mother and neighbors went with her to hospital while he remained behind. He was called after 1 hour and informed of her death.
16. PW4, Samuel Ameli Adiyo, [father of deceased] also a resident of City Carton Buruburu where he works as a welder testified that on 10/4/2019 at 10:30pm he was at his house with his wife and children. That he heard sounds calling “mum mum mum..” 3 times .It was at 3:30 am. He lived with his 5 children who slept at a room next to the gate, his house had 4 rooms. He woke his wife up to check on the children, she opened the door and they reappeared while screaming telling Baba Ben to go see saying that a knife was stuck on the neck of Atieno.
17. He ran and found Baba Ben was already outside, he headed to the room, he found the gate opened and the door to the room was also opened. The deceased was on the bed and lay on her side with a knife stuck on her neck.
18. Baba Ben removed the knife from the deceased neck, PW4 took it and hid it in fear that someone could go away with it. The knife was identified in court. He kept the knife fearing someone would go with it.
19. They started seeing how they could take her to Mama Lucy Kibaki hospital, neighbors also gathered they found a vehicle after 30 minutes. He searched Valerie’s room, he said that she had Itel phone he had bought for her at Ksh 2100/=. He produced the receipt as P Exh- 7.
20. He did not get the deceased’s phones; he went outside the gate and saw a black bag and cap with an X sign of guns-MFI-5 It was next to a water tap. He saw the bag and was convinced the phones had been stolen. The deceased used the bag to carry her things.
21. He headed to hospital but before he reached the gate he heard his wife screaming. He went to hospital and that found she had already died. He made the report at Buruburu police station, he took the police to the scene; they went in 2 land cruisers, he also handed over the exhibits to the police who came to the scene. He identified the body on 14/4/2019 for Post mortem.
22. On 5/5/2019, he was called by the police, he travelled from home and on the next day the he went to the police station where he found 2 people and he was asked if he knew them. He said he did not know them. He was also asked about the deceased’s bag and was asked to identify Valerie’s phone. He identified the Nokia phone with a cracked screen from 5 or 6 phones shown to him. He also identified the two men in court; he had seen at the Police Station.
23. PW5 Florence Aoko, [mother of deceased] a resident of Carton City where she works as a fish vendor testified that on 10/4/2019 she was with her children listed as the deceased, Vivian Whitney and Leah together with PW4 who is her husband. That the children left to sleep in the other room at 10:30 pm, their room is separate from theirs. Vivian and deceased slept on one bed, Leah and Whitney slept on the other, she heard screams at 3:00 am coming from Valery calling “..mum mum mum..”
24. She opened her door and went to see, Vivian was at the door and she told her to rush in and see the deceased, the gate and the door to the room was open, she removed the curtain to the room and saw a knife stuck in her neck, it was a black knife. She rushed out and called for help, a young man Ochieng was the first to arrive, they entered where Valery was and he removed the knife from the neck, the deceased never spoke.
25. She went with the neighbors to Mama Lucy hospital, she was put on oxygen and the doctor said she was 50:50, she passed away after a short while. The knife was identified in court, the black cap, the black bag found at the gate was also identified. They took them to Buruburu police station.
26. The deceased had 2 phones, Nokia with cracked screen and Itel which was black and shiny, she did not have an ID and her line was registered in the name of Laura Akinyi who was her friend. They did not get her phones that night.
27. She identified her body on 14/4/2019 at Mama Lucy hospital. she was also called to the station on 4/5/2019 and was told about some phones that had been recovered, she saw the deceased Nokia Lumia phone black in colour with a cracked screen, the deceased used to lend it to her to use it.
28. PW6 Vivian Atieno testified that she was in Form 2 and schooled at Golden Gate at the time of the incident. On 10/4.2019 she was in the house with Florence Aoko and her cousins Valery Atieno Whitney Anyango ,Leah ,Adina Trizah .They were in the main house and they went to sleep at about 10:30pm .The room is next to the gate , she slept with Vallary in one bed while Whitney and Leah slept on the next.
29. That she heard Vallary scream at about 3:00am, on waking up everything was all over the floor, the door was open the main gate was also open while Vallary was on the bed and she had a knife on her neck. The lights were on so she could see well. They also slept with the lights on, the other cousins were on the next bed.
30. That she ran and woke up her Aunt Florence and heard Vallary scream she asked her what the problem was, she told her to go call her mother , her aunt Florence rushed to their room had found the deceased on the bed with a knife stuck in her neck. Her aunt called their neighbor, Fredrick who came and removed the knife. Vallary’s handbag was also found outside the gate after she was taken to hospital he knew the handbag and could identify it in court.
31. She also identified the deceased phone at the police station, it had a cracked screen, the phone and the knife were also identified in court. She did not see the person who stabbed the deceased.
The Hearing was taken over by Hon L Mutende LJ under Section 200CPC.
32. PW7, Margaret Wahu Maina from the Government Chemist in Nairobi attended court and produced the government chemist report signed on 1/7/2020.She testified that she received several items from No. 75845 CPL Joseph Wanjohi of DCI Kamukunji. A knife with a black handle marked A1, green piece of cloth placed in a khaki envelop A2, blood samples in a bottle marked A3 belonging to Vallarie Atieno Apiyo. A high vaginal swab in a khaki envelope marked A4.
33. They also received several items on 7/5/2019, a black cap marked A5, blood sample in a bottle neck Simon Gitau, blood sample in a bottle neck A7 Dominic Okoth.
34. On examination, she found that the knife was heavily stained with blood of human origin, the vaginal swab also stained with blood of human origin but did not have semen, the cap did not have blood stains. The green cloth and the cap did not generate DNA.
35. The DNA profiles were generated from the knife and vaginal swab and matched the deceased’s samples.
36. PW8 No 235250 IP Michael Njenga from the Scene of Crime office of Buruburu Directorate of Criminal Investigations testified on 11/10/2021. He has been in the profession since 2015 and holds a Bachelor in Biomedical scientific technology. He was gazetted on 31/7/2015 and his duties entails processing a crime scene which he explained to court.
37. He stated that in this case, he accompanied CPL Wanjohi to Mama Lucy Kibaki hospital mortuary where they saw the body of Valarie Otieno. That she was allegedly pronounced dead on 11/4/2019 upon arrival after being stabbed at their sitting room at their home. He took 11 photographs but the quality was poor. He referred to 4 photographs, the general view of the body the closer view and the general view of the house where the deceased was allegedly stabbed and Photo 4 a closer view of the blood -stained house.
38. He produced the photographs as P Exh 10 a 1-4 and the certificate of the electronic evidence as exhibit 10 b.
The Hearing was taken over by this Court under Section 200CPC; Accused persons opted to proceed from where the matter stopped.
39. PW9 Ambrose Munyoki from Safaricom PLC and a data analyst within law enforcement department testified. He stated that he worked with Safaricom for 8 years. He received a letter dated 14/4/2019 identified as MFI- 11 from DCI Buruburu police station requesting for data of the following phone numbers :-
0704654486
0795188835
40. The letter required the serial numbers of the phones used to call the numbers for the period between 2/3/2019 and 14/4/2019, the names and ID numbers of the owners were also required.
41. He found that phone number 0795188835 belonged to Laura Akinyi Odhiambo of ID No 34192024. investigations revealed some extracted data from IMEI phone which were found on another phone number seen on the same hand set –this was number 0710765245 of ID 25530253 belonging to Dominic Owiti used on 12/4/2019 He produced the report on IMEI identification of handset Laura Akinyi Odhiambo as PEXh 12 (a), the data record PEXh 12 (b) and certificate under Section 106 (A) & (B) of the Evidence Act signed on 9/11/2022.He did not know the accused persons.
42. PW10, No 75854 PC Joseph Wanjohi testified that he was posted at DCI Buruburu police station where he was tasked with general investigations.
43. He testified that he was on duty on 11/4/2019 and was assigned a case where one Valerie Atieno a resident of City Carton within Buruburu police station area.The report was made by the deceased father who narrated what happened .He visited the scene on 12/4/2019.
44. He got into the room at plot. The plot had 7 houses on one side and 7 on the other side and 1 main gate.This particular room was on the right side as one gets into the gate and was the 1st house and a single room.
45. The room was shared by 4 children who were under the care of Samuel Amenyi their father, the scene was disturbed items were scattered all over, the beddings were not in order and physically it looked like looking for something. The parents narrated that they lived in the next room which was also the sitting room and bedroom. It was in the far end corner of the gate, the next one was near the gate on the left side where the 4 children lived. The parents heard screams from the children bedroom at 3:00am, the mother was the first to move quickly to come to the children room to find out what was happening.
46. That she realized Valerie Atieno had been stabbed, she called the children father and responders came to the scene and took Valerie to the hospital and she was pronounced dead on arrival.
47. He learnt that the deceased had 2 phones Nokia Lumia 520, Kytell Kiio MFI2 & MF7.That 0795188835 was the number used with Nokia Lumia phone. He was handed other exhibits recovered outside the plot where the deceased lived; a small black handbag, black cap crossed with guns design. The mother identified the handbag as belonging to the deceased. A cream cloth with dried blood stains, blood-stained knife found inside the room where the deceased was stabbed.
48. He undertook further investigations from subscriber of Safaricom Ltd, he wrote to Safaricom Ltd as per letter marked MFI 11. He got response which was that on 12/4/2019 the gadget was inserted with the line Number 0710765245 registered in the name of Dominic Owiti and ID 25530253. The earlier number was registered in the name of Laura Akinyi ID 34192024.
49. That the phones had not been recovered from the scene. The investigations showed that Dominic Owiti inserted a line in the Nokia Lumia phone initially used by the deceased. The phone had a broken screen.
50. That the Dominic Owiti was arrested on 3/5/2019 in his house at Kuria Dudu Ruaraka area, they also found a bag of phones where they recovered the Nokia Lumia among various phones. They prepared an inventory which was signed by his colleague the accused and he also signed it. The accused told them that Simon Mwaura sold to him the Nokia Lumia phone at Ksh 800/=, they went to Simon Mwaura who worked as a phone technician. He admitted that he sold the phone to the 2nd accused.
51. They tried to find out how he got the phone, he told them he bought it for Ksh 200/= and that he did not know the name of the person but he could identify the person physically. The two were escorted to Buruburu police station, they did not trace the person who sold the phone to Simon Mwaura. The accused was detained at the police station through a court order.
52. The witness produced the Nokia Lumia phone, exhibit 2, black handle knife as exhibit 4 and 14 black cap exhibit 5, black bag exhibit 6 receipt for Kytel phone exhibit 7, exhibit memos dated 23//4/2019 and 7/5/2019 as exhibit 8 (a) and (b), a cream cloth as exhibit 13 and the inventory as exhibit 15.
53. He identified the accused in court, he also witnessed the postmortem and the cause of death was stab wound excessive bleeding. The girls sharing the room were between 6 and 10 years old, he could not tell exact date of birth but they were below 15 years old.
RULING
54. On 2/7/2025 the Court delivered Ruling and stated that the prosecution has proved prima facie case against the accused persons due to the doctrine of recent possession to warrant them to be put on their defenses and the matter shall proceed for defense.
DEFENSE CASE
55. 1 st Accused called defense witnesses; the 1 st one; DW1 John Macharia Kimani; a neighbour who stated he knew this matter from start to finish; he lives in Korogocho Kariobangi and knew 1 St accused from when he was young and now as Mobile Repairer and witnessed him carry out his trade and knew of good character and are shocked by this case.
56. In cross examination by ODPP, he confirmed he did not work with 1 st Accused as mobile repairer and did not know which phones were sold or brought for repair. He came to Court to state that 1 St Accused did not commit the offence.
57. The 1 st Accused; 2 nd witness; Lucy Wangui Karanja; sister to 1 st Accused and have been together for 29 years; he is Phone repairer and have never heard of any misconduct against him.
58. The 1 st Accused person sworn statement stated that he lived in Korogocho with family parents and sisters. In 2004 he was involved in an accident and he was paralyzed and amputated on the left leg. From 2007 he begun repairing phone and later opened a ‘kibanda’. He would go to dumpsite-Dandora. He admitted he received phones from a person from dumpsite for repair and he received Nokia Lumia 520-black on 12/4/2019, he bought the phone at Ksh 250 and he did not ask where he got the phone. He had dirty clothes and gumboots. He took the phone tested it with battery and the inner glass is broken. He admitted Dominic 2 nd Accused was/is his friend known each other for 7 years; he came asked him to lend him a phone and bought the Lumia for Ksh 800/-.
59. Later, Police officers came to his place of work as he closed his shop and took him to Buruburu Police Station and he explained what happened and he recorded his statement.
60. In cross examination by ODPP; he did not produce medical documents to prove his claim but they were at home and in the slums he did not see anyone with license for [the phone repair] business and he bought dead phones and he did not have receipts for those he bought save for those he repaired and sold to customers.
61. On 14/5/2019, a young man came to his shop and said he got the phone from the dumpsite and the phone was very dirty, he bought it for Ksh 200/- and he did not give a receipt-Nokia Lumia 520 and sold it for Ksh 800/-
62. The 2 nd Accused Dominic Okoth John in a sworn statement, on 12/4/2019 he went to Korogocho; to buy carpenter tools next to 1 st Accused person’s place. He greeted him , saw a mobile phone Nokia Lumia 250 and he was repairing it. The 1 st Accused said he was repairing the broken mirror. He asked him if he was selling and they negotiated and he bought the phone for Ksh800/- paid Ksh 500/- and remained to pay Ksh 300/- He left with the phone and put his SIM card and used it for 1 week. Later, he was found at his place of work and he was taken to Kariobangi Police Post and was asked for his phone. The Police Officers took him to his house at Kariadudu and he gave them the phone and told them he bought it from 1 st Accused person. He took the police to 1 st Accused place; he admitted selling him the phone and he said the one who sold it to him was on a Telkom line. They arrested taken to Mama Lucy Hospital and later Police Station.
63. In cross examination by ODPP he reiterated that he was carpenter but also phone repairer if and when he got work and he did it at 1 st Accused’s workshop. He bought 2 other phones before from 1 st Accused person and he did not ask him where he got the phones from.
SUBMISSIONS OF THE 1 ST ACCUSED PERSON SIMON GITAU KARANJA
1. The Prosecution failed and did not establish beyond reasonable doubt the charge of Murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap 63, Laws of Kenya) contained in the charge sheet dated 15th May 2019 against the 1st Accused Person. We therefore urge the Court to acquit the 1 st Accused under Section 215 of the Criminal Procedure Code, CAP 75 Laws of Kenya. Section 215 provides that:
"The Court having heard both the complainant and the accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order against him according to law, or shall acquit him."
We further submit as follows:-
A. INTRODUCTION :
1. On the 22nd of May 2019, the 1ª Accused was jointly charged alongside the 2 nd Accused person with the offence Murder contrary to Section 203 as read with Section 204 of the Penal code (Cap 63) Laws of Kenya in that.
Simon Gitau Karanja and Dominic Okoth John on the 11 th day of April 2019 at City Carton Area, Embakasi East Sub-County within Nairobi County jointly murdered Vallary Atieno Amenyi
2. The Prosecution presented its case against the accused persons through the evidence of ten (10) witnesses, who gave both oral testimony and expert evidence in support of the charge.
3. On 17 September 2025, the Court delivered its ruling pursuant to Section 210 of the Criminal Procedure Code, CAP 75 Laws of Kenya, and accordingly placed the accused persons on their defence on the basis of the doctrine of recent possession to respond to the evidence presented by the Prosecution.
4. The first accused person adduced his defence by way of oral testimony from two witnesses in addition to his own testimony.
B. ISSUE FOR DETERMINATION
5. The Court having heard the Prosecution's case, evidence and the testimony of the Accused person in his Defence and witnesses, we submit that at this juncture the issue for determination is
Whether the evidence presented before this Court establishes beyond reasonable doubt that the Accused person committed the offences as charged, thereby warranting a conviction, or whether the defence has successfully raised sufficient doubt to acquit the 1 st Accused.
menyi as would be required under the provisions of the Evidence Act. Cap
20. The Prosecution's only key piece of evidence against the 1st Accused Person was that he was found in possession of a black Nokia Lumia 520 mobile phone (Exhibit 1), said to have allegedly belonged to the deceased. However, the Prosecution did not adduce any credible evidence to prove ownership of the said phone by the deceased. Consequently, that assertion remained an unproven fact, which this Court cannot rely upon in determining the guilt of the 1st Accused Person.
21. They submited that the evidence of PW9 the Safaricom Liaison Officer did not support the Prosecution's contention that Exhibit 1, the black Nokia Lumia 520, belonged to the deceased. The call data records produced in evidence revealed that the mobile phone was operating with a SIM card registered in the name of one Laura Akinyi Odhiambo and not in the name of the deceased This evidence did not support the Prosecution's case on the issue that the 1 st Accused had been found in possession of a mobile phone belonging to the deceased person.
23. The evidence of PW7 Government Chemist Analyst Margaret Wahu Maina did not support the Prosecution's case. She produced a forensic report dated 1 st July 2020 (Exhibit 8(b) in which she concluded that the blood samples obtained from the 1st Accused did not match any of the items recovered from the crime scene. Consequently, there was no forensic evidence placing the 1 st Accused at the City Carton area in Embakasi East Sub-County. within Nairobi, where the deceased, Vallery Atieno Amenyi, was murdered.
24. The 1 st Accused Person's evidence that he is a phone repair technician remained uncontroverted by the Prosecution. The Prosecution did not adduce any evidence to challenge or disprove this assertion. Consequently, this unchallenged evidence raises reasonable doubt as to the Prosecution's case against the 1st Accused Person.
25. PW10 the Investigating Officer Corporal Wanjohi testified that he conducted the investigations and subsequently recommended the charge of murder against the 1 st accused person the 1 st accused perosn without any credible evidential basis linking him to th eoffence.
SUBMISSIONS BY THE 2 ND ACCUSED PERSON DOMINIC OKOTH JOHN
BACKGROUND.
1. The two Accused persons stand charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, alleged to have been committed against one Vallary Atieno Amenyi on the night of 11 th April 2019. The deceased, a young woman of about nineteen (19) years, was fatally stabbed on the left side of the neck at approximately 3:30 am. The assailant fled the scene, taking with him the deceased's black handbag, which was later recovered discarded outside, the black Nokia Lumia phone (hereinafter "the subject phone"), and the gate's padlock and keys.
2. The following day, 12 th April 2019, the 1 st a Accused, a phone repair technician, was approached at his shop by a man offering to sell him a damaged Nokia Lumia phone. He purchased it for Kshs. 200, cleaned and repaired it for resale. Later that morning, the 2 nd Accused, a carpenter by trade and a casual acquaintance of the 1 st Accused, stopped by the shop while on his way to work to look for a carpentry tool. Finding the 1 Accused repairing the subject phone, he expressed interest in purchasing it. After brief negotiations, they agreed on a price of Kshs. 800, of which the 2 nd Accused paid Kshs. 500 in cash, undertaking to pay the balance later.
3. Upon taking the phone home, the 2 nd Accused inserted his SIM card, only to discover that the SIM slot was defective and could not connect to the network. He removed his SIM card, left the phone at home, and went on with his normal routines. Approximately three weeks later, on 3 rd May 2019, DCI officers traced the subject phone through Safaricom data showing his SIM card had once been inserted in it. The 2 nd Accused was arrested & cooperated fully-he voluntarily surrendered the phone and led the officers to the 1 st Accused who had sold it to him. From that day forward, both men have endured the weight of this prosecution, with the 2 nd Accused having now spent over six and a half years in custody awaiting his day of vindication.
INTRODUCTION
4. The charge before the Court is that of murder. The ingredients for such an offence are settled: proof beyond reasonable doubt of
(a) The fact and cause of death
(b) That the death was caused by the unlawful act or omission of the accused, and
(c) That the act was committed with malice aforethought. These elements are codified in Sections 203 and 206 of the Penal Code and have been reaffirmed in Anthony Ndegwa Ngari vs Republic [2014] eKLR and a long line of authorities
5. In the present case, there is no direct evidence linking the 2 nd Accused to the commission of the offence. None of the ten (10) prosecution witnesses saw, heard, or identified him at, near the scene or ever. No forensic or DNA evidence ties him to the murder. The entirety of the prosecution's case rests upon the alleged recent possession of the deceased's phone. It is on this narrow but overwhelmingly significant issue that the prosecution has invited this Honourable Court to into infer guilt.
6. With utmost respect, we submit that the evidence on record not only fails to meet the standard of proof required to invoke that doctrine but, in fact, provides a reasonable and credible explanation for the 2nd Accused's possession. The consistent account of an innocent purchase sufficiently rebuts the presumption and severs the chain of culpability. It is upon this framework of fact and law that we now proceed to address the issues for determination.
ISSUE FOR DETERMINATION.
(i) Whether the offence of murder is proven to the required standard.
(ii) Whether in the circumstances, the 2nd Accused persons recent possession of the subject phone suffices to found a safe conviction.
THE OFFENCE OF MURDER IS NOT PROVED TO THE STANDARD REQUIRED.
7. The Court to interrogate the prosecution's case in its entirety and juxtapose it against the well-established ingredients of the offence of murder. We submit that when properly examined, the prosecution evidence falls far short of proving the charge as against the 2 nd Accused beyond reasonable doubt
8. The prosecution called ten (10) witnesses in its attempt to link the Accused to the tragic death of the deceased, Valerie Atieno Apiyo. Their evidence, highest was purely circumstantial, anchored only on the deceased's missing phones. No single witness placed the 2 nd Accused at or near the scene nor was any forensic or direct evidence adduced to connect him to the act of Killing
9. PW1, the deceased's long-tine
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1. The Accused persons Simon Gitau Karanja and Dominic Okoth John were charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code
Particulars of the offence being that on 11 th day of April 2019 at City Garden area Embakasi East Subcounty within Nairobi County they murdered Vallary Atieno Amenyi .
2. Mental assessment was done and reports filed in Court on 16/5/2019. the accused persons were found fit to plead. The accused persons later pleaded not guilty to the charges and the prosecution called 10 witnesses in proof of the charges.
THE PROSECUTION EVIDENCE
The hearing commenced on 3/2/2020 before Hon. D Ogembo J
3. PW1, Laura Akinyi Odhiambo testified that she resided at City Carton in Embakasi West ward where she runs an Mpesa shop Gikomba. The deceased was her friend and they grew up together, that sometime in 2017 her friend Valeria Atieno requested for her ID card to register her mobile line. The deceased did not have her ID.PW1 called her parent and they went to the Mpesa next to them at City Carton.
4. They bought a Safaricom line using 100/=, PW1 identified her ID in Court number 34192024 produced as P Exh1.The deceased was registered and they went home. The deceased was their neighbor at City Carton.
5. That on 11/4/2019 at about 3:00am they were sleeping when the deceased’s brother knocked their door, they found the deceased being carried by her father and Baba Ben and her parents. The deceased was bleeding and she was taken to Mama Lucy hospital while other neighbors remained behind. The deceased’s father called after 30 minutes and told them she had died.
6. PW1 stated that the deceased was their neighbor for 10 years, she had a kambambe phone; her father bought her China phone which was black and shiny, her boyfriend known as Mwanake gave her another phone Nokia Lumia black in color.
7. That on 4/6/2019 PW1 was called by DCI Wanjohi to go to Buruburu police station and was to identify a phone. She found many phones on the table and she was able to identify the deceased’s Nokia Lumia phone .The phone had a cracked screen and she also saw her with it the day before. PW1 identified the phone in court as PMFI- 2. She recorded her statement.
8. PW2, Dr Charles K Muturi , Pathologist based at Mama Lucy Kibaki hospital referred court to the postmortem report done on 16/4/2019 at the hospital. The deceased was 20 years old of good nutritional state and medium physique.
9. She had a recent injury in form of penetrating stab wound on the left side of the neck which was 5 cm long 1.5 cm width. It severed the neck vessels and fractured the cervical vertebrate, transected through the spinal cord.
10. The skin had punctured marks on the left elbow signifying drug administration . The cause of death was severed blood loss and cervical spine injury due to sharp force trauma consistent with stab wound.
11. He also took blood specimen as requested by the police for matching the weapon of assault. The postmortem report was produced as Exhibit 1.
12. PW3 Fredrick Jesse Ochieng Ouma , also a resident of Carton Buruburu where he did panel beating and spray painting for a living.
13. He stated that he was at his house on 11/4/2019 sleeping when at 3:00am he was woken up by screams from his neighbors’ children. The children slept in the first room next to his gate. The neighbor was called Mama Valerie. He put on the lights and got an iron rod from under the bed, the gate was opened, he headed towards the gate. Mama Valerie was also from the children’s room and she told him to go to the room and help Valerie and remove the knife that was stuck on her neck and take her to hospital.
14. He found the deceased on the bed and she had a knife on her neck, she was sleeping on one side . The 3 other children were in the room, the knife had a black handle which he removed from her neck and placed it down. He identified it as MFI- 4. He headed to the gate where he found a black cap and a black handbag, the cap had a mark of 2 guns making an X at the front, he identified it as MFI -5 and the black bag as MF1- 6.
15. Neighbors came out and entered the plot, they carried her to the road and got a taxi. Her mother and neighbors went with her to hospital while he remained behind. He was called after 1 hour and informed of her death.
16. PW4, Samuel Ameli Adiyo, [father of deceased] also a resident of City Carton Buruburu where he works as a welder testified that on 10/4/2019 at 10:30pm he was at his house with his wife and children. That he heard sounds calling “mum mum mum..” 3 times .It was at 3:30 am. He lived with his 5 children who slept at a room next to the gate, his house had 4 rooms. He woke his wife up to check on the children, she opened the door and they reappeared while screaming telling Baba Ben to go see saying that a knife was stuck on the neck of Atieno.
17. He ran and found Baba Ben was already outside, he headed to the room, he found the gate opened and the door to the room was also opened. The deceased was on the bed and lay on her side with a knife stuck on her neck.
18. Baba Ben removed the knife from the deceased neck, PW4 took it and hid it in fear that someone could go away with it. The knife was identified in court. He kept the knife fearing someone would go with it.
19. They started seeing how they could take her to Mama Lucy Kibaki hospital, neighbors also gathered they found a vehicle after 30 minutes. He searched Valerie’s room, he said that she had Itel phone he had bought for her at Ksh 2100/=. He produced the receipt as P Exh- 7.
20. He did not get the deceased’s phones; he went outside the gate and saw a black bag and cap with an X sign of guns-MFI-5 It was next to a water tap. He saw the bag and was convinced the phones had been stolen. The deceased used the bag to carry her things.
21. He headed to hospital but before he reached the gate he heard his wife screaming. He went to hospital and that found she had already died. He made the report at Buruburu police station, he took the police to the scene; they went in 2 land cruisers, he also handed over the exhibits to the police who came to the scene. He identified the body on 14/4/2019 for Post mortem.
22. On 5/5/2019, he was called by the police, he travelled from home and on the next day the he went to the police station where he found 2 people and he was asked if he knew them. He said he did not know them. He was also asked about the deceased’s bag and was asked to identify Valerie’s phone. He identified the Nokia phone with a cracked screen from 5 or 6 phones shown to him. He also identified the two men in court; he had seen at the Police Station.
23. PW5 Florence Aoko, [mother of deceased] a resident of Carton City where she works as a fish vendor testified that on 10/4/2019 she was with her children listed as the deceased, Vivian Whitney and Leah together with PW4 who is her husband. That the children left to sleep in the other room at 10:30 pm, their room is separate from theirs. Vivian and deceased slept on one bed, Leah and Whitney slept on the other, she heard screams at 3:00 am coming from Valery calling “..mum mum mum..”
24. She opened her door and went to see, Vivian was at the door and she told her to rush in and see the deceased, the gate and the door to the room was open, she removed the curtain to the room and saw a knife stuck in her neck, it was a black knife. She rushed out and called for help, a young man Ochieng was the first to arrive, they entered where Valery was and he removed the knife from the neck, the deceased never spoke.
25. She went with the neighbors to Mama Lucy hospital, she was put on oxygen and the doctor said she was 50:50, she passed away after a short while. The knife was identified in court, the black cap, the black bag found at the gate was also identified. They took them to Buruburu police station.
26. The deceased had 2 phones, Nokia with cracked screen and Itel which was black and shiny, she did not have an ID and her line was registered in the name of Laura Akinyi who was her friend. They did not get her phones that night.
27. She identified her body on 14/4/2019 at Mama Lucy hospital. she was also called to the station on 4/5/2019 and was told about some phones that had been recovered, she saw the deceased Nokia Lumia phone black in colour with a cracked screen, the deceased used to lend it to her to use it.
28. PW6 Vivian Atieno testified that she was in Form 2 and schooled at Golden Gate at the time of the incident. On 10/4.2019 she was in the house with Florence Aoko and her cousins Valery Atieno Whitney Anyango ,Leah ,Adina Trizah .They were in the main house and they went to sleep at about 10:30pm .The room is next to the gate , she slept with Vallary in one bed while Whitney and Leah slept on the next.
29. That she heard Vallary scream at about 3:00am, on waking up everything was all over the floor, the door was open the main gate was also open while Vallary was on the bed and she had a knife on her neck. The lights were on so she could see well. They also slept with the lights on, the other cousins were on the next bed.
30. That she ran and woke up her Aunt Florence and heard Vallary scream she asked her what the problem was, she told her to go call her mother , her aunt Florence rushed to their room had found the deceased on the bed with a knife stuck in her neck. Her aunt called their neighbor, Fredrick who came and removed the knife. Vallary’s handbag was also found outside the gate after she was taken to hospital he knew the handbag and could identify it in court.
31. She also identified the deceased phone at the police station, it had a cracked screen, the phone and the knife were also identified in court. She did not see the person who stabbed the deceased.
The Hearing was taken over by Hon L Mutende LJ under Section 200CPC.
32. PW7, Margaret Wahu Maina from the Government Chemist in Nairobi attended court and produced the government chemist report signed on 1/7/2020.She testified that she received several items from No. 75845 CPL Joseph Wanjohi of DCI Kamukunji. A knife with a black handle marked A1, green piece of cloth placed in a khaki envelop A2, blood samples in a bottle marked A3 belonging to Vallarie Atieno Apiyo. A high vaginal swab in a khaki envelope marked A4.
33. They also received several items on 7/5/2019, a black cap marked A5, blood sample in a bottle neck Simon Gitau, blood sample in a bottle neck A7 Dominic Okoth.
34. On examination, she found that the knife was heavily stained with blood of human origin, the vaginal swab also stained with blood of human origin but did not have semen, the cap did not have blood stains. The green cloth and the cap did not generate DNA.
35. The DNA profiles were generated from the knife and vaginal swab and matched the deceased’s samples.
36. PW8 No 235250 IP Michael Njenga from the Scene of Crime office of Buruburu Directorate of Criminal Investigations testified on 11/10/2021. He has been in the profession since 2015 and holds a Bachelor in Biomedical scientific technology. He was gazetted on 31/7/2015 and his duties entails processing a crime scene which he explained to court.
37. He stated that in this case, he accompanied CPL Wanjohi to Mama Lucy Kibaki hospital mortuary where they saw the body of Valarie Otieno. That she was allegedly pronounced dead on 11/4/2019 upon arrival after being stabbed at their sitting room at their home. He took 11 photographs but the quality was poor. He referred to 4 photographs, the general view of the body the closer view and the general view of the house where the deceased was allegedly stabbed and Photo 4 a closer view of the blood -stained house.
38. He produced the photographs as P Exh 10 a 1-4 and the certificate of the electronic evidence as exhibit 10 b.
The Hearing was taken over by this Court under Section 200CPC; Accused persons opted to proceed from where the matter stopped.
39. PW9 Ambrose Munyoki from Safaricom PLC and a data analyst within law enforcement department testified. He stated that he worked with Safaricom for 8 years. He received a letter dated 14/4/2019 identified as MFI- 11 from DCI Buruburu police station requesting for data of the following phone numbers :-
0704654486
0795188835
40. The letter required the serial numbers of the phones used to call the numbers for the period between 2/3/2019 and 14/4/2019, the names and ID numbers of the owners were also required.
41. He found that phone number 0795188835 belonged to Laura Akinyi Odhiambo of ID No 34192024. investigations revealed some extracted data from IMEI phone which were found on another phone number seen on the same hand set –this was number 0710765245 of ID 25530253 belonging to Dominic Owiti used on 12/4/2019 He produced the report on IMEI identification of handset Laura Akinyi Odhiambo as PEXh 12 (a), the data record PEXh 12 (b) and certificate under Section 106 (A) & (B) of the Evidence Act signed on 9/11/2022.He did not know the accused persons.
42. PW10, No 75854 PC Joseph Wanjohi testified that he was posted at DCI Buruburu police station where he was tasked with general investigations.
43. He testified that he was on duty on 11/4/2019 and was assigned a case where one Valerie Atieno a resident of City Carton within Buruburu police station area.The report was made by the deceased father who narrated what happened .He visited the scene on 12/4/2019.
44. He got into the room at plot. The plot had 7 houses on one side and 7 on the other side and 1 main gate.This particular room was on the right side as one gets into the gate and was the 1st house and a single room.
45. The room was shared by 4 children who were under the care of Samuel Amenyi their father, the scene was disturbed items were scattered all over, the beddings were not in order and physically it looked like looking for something. The parents narrated that they lived in the next room which was also the sitting room and bedroom. It was in the far end corner of the gate, the next one was near the gate on the left side where the 4 children lived. The parents heard screams from the children bedroom at 3:00am, the mother was the first to move quickly to come to the children room to find out what was happening.
46. That she realized Valerie Atieno had been stabbed, she called the children father and responders came to the scene and took Valerie to the hospital and she was pronounced dead on arrival.
47. He learnt that the deceased had 2 phones Nokia Lumia 520, Kytell Kiio MFI2 & MF7.That 0795188835 was the number used with Nokia Lumia phone. He was handed other exhibits recovered outside the plot where the deceased lived; a small black handbag, black cap crossed with guns design. The mother identified the handbag as belonging to the deceased. A cream cloth with dried blood stains, blood-stained knife found inside the room where the deceased was stabbed.
48. He undertook further investigations from subscriber of Safaricom Ltd, he wrote to Safaricom Ltd as per letter marked MFI 11. He got response which was that on 12/4/2019 the gadget was inserted with the line Number 0710765245 registered in the name of Dominic Owiti and ID 25530253. The earlier number was registered in the name of Laura Akinyi ID 34192024.
49. That the phones had not been recovered from the scene. The investigations showed that Dominic Owiti inserted a line in the Nokia Lumia phone initially used by the deceased. The phone had a broken screen.
50. That the Dominic Owiti was arrested on 3/5/2019 in his house at Kuria Dudu Ruaraka area, they also found a bag of phones where they recovered the Nokia Lumia among various phones. They prepared an inventory which was signed by his colleague the accused and he also signed it. The accused told them that Simon Mwaura sold to him the Nokia Lumia phone at Ksh 800/=, they went to Simon Mwaura who worked as a phone technician. He admitted that he sold the phone to the 2nd accused.
51. They tried to find out how he got the phone, he told them he bought it for Ksh 200/= and that he did not know the name of the person but he could identify the person physically. The two were escorted to Buruburu police station, they did not trace the person who sold the phone to Simon Mwaura. The accused was detained at the police station through a court order.
52. The witness produced the Nokia Lumia phone, exhibit 2, black handle knife as exhibit 4 and 14 black cap exhibit 5, black bag exhibit 6 receipt for Kytel phone exhibit 7, exhibit memos dated 23//4/2019 and 7/5/2019 as exhibit 8 (a) and (b), a cream cloth as exhibit 13 and the inventory as exhibit 15.
53. He identified the accused in court, he also witnessed the postmortem and the cause of death was stab wound excessive bleeding. The girls sharing the room were between 6 and 10 years old, he could not tell exact date of birth but they were below 15 years old.
RULING
54. On 2/7/2025 the Court delivered Ruling and stated that the prosecution has proved prima facie case against the accused persons due to the doctrine of recent possession to warrant them to be put on their defenses and the matter shall proceed for defense.
DEFENSE CASE
55. 1 st Accused called defense witnesses; the 1 st one; DW1 John Macharia Kimani; a neighbour who stated he knew this matter from start to finish; he lives in Korogocho Kariobangi and knew 1 St accused from when he was young and now as Mobile Repairer and witnessed him carry out his trade and knew of good character and are shocked by this case.
56. In cross examination by ODPP, he confirmed he did not work with 1 st Accused as mobile repairer and did not know which phones were sold or brought for repair. He came to Court to state that 1 St Accused did not commit the offence.
57. The 1 st Accused; 2 nd witness; Lucy Wangui Karanja; sister to 1 st Accused and have been together for 29 years; he is Phone repairer and have never heard of any misconduct against him.
58. The 1 st Accused person sworn statement stated that he lived in Korogocho with family parents and sisters. In 2004 he was involved in an accident and he was paralyzed and amputated on the left leg. From 2007 he begun repairing phone and later opened a ‘kibanda’. He would go to dumpsite-Dandora. He admitted he received phones from a person from dumpsite for repair and he received Nokia Lumia 520-black on 12/4/2019, he bought the phone at Ksh 250 and he did not ask where he got the phone. He had dirty clothes and gumboots. He took the phone tested it with battery and the inner glass is broken. He admitted Dominic 2 nd Accused was/is his friend known each other for 7 years; he came asked him to lend him a phone and bought the Lumia for Ksh 800/-.
59. Later, Police officers came to his place of work as he closed his shop and took him to Buruburu Police Station and he explained what happened and he recorded his statement.
60. In cross examination by ODPP; he did not produce medical documents to prove his claim but they were at home and in the slums he did not see anyone with license for [the phone repair] business and he bought dead phones and he did not have receipts for those he bought save for those he repaired and sold to customers.
61. On 14/5/2019, a young man came to his shop and said he got the phone from the dumpsite and the phone was very dirty, he bought it for Ksh 200/- and he did not give a receipt-Nokia Lumia 520 and sold it for Ksh 800/-
62. The 2 nd Accused Dominic Okoth John in a sworn statement, on 12/4/2019 he went to Korogocho; to buy carpenter tools next to 1 st Accused person’s place. He greeted him , saw a mobile phone Nokia Lumia 250 and he was repairing it. The 1 st Accused said he was repairing the broken mirror. He asked him if he was selling and they negotiated and he bought the phone for Ksh800/- paid Ksh 500/- and remained to pay Ksh 300/- He left with the phone and put his SIM card and used it for 1 week. Later, he was found at his place of work and he was taken to Kariobangi Police Post and was asked for his phone. The Police Officers took him to his house at Kariadudu and he gave them the phone and told them he bought it from 1 st Accused person. He took the police to 1 st Accused place; he admitted selling him the phone and he said the one who sold it to him was on a Telkom line. They arrested taken to Mama Lucy Hospital and later Police Station.
63. In cross examination by ODPP he reiterated that he was carpenter but also phone repairer if and when he got work and he did it at 1 st Accused’s workshop. He bought 2 other phones before from 1 st Accused person and he did not ask him where he got the phones from.
SUBMISSIONS OF THE 1 ST ACCUSED PERSON SIMON GITAU KARANJA
1. The Prosecution failed and did not establish beyond reasonable doubt the charge of Murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap 63, Laws of Kenya) contained in the charge sheet dated 15th May 2019 against the 1st Accused Person. We therefore urge the Court to acquit the 1 st Accused under Section 215 of the Criminal Procedure Code, CAP 75 Laws of Kenya. Section 215 provides that:
"The Court having heard both the complainant and the accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order against him according to law, or shall acquit him."
We further submit as follows:-
A. INTRODUCTION :
1. On the 22nd of May 2019, the 1ª Accused was jointly charged alongside the 2 nd Accused person with the offence Murder contrary to Section 203 as read with Section 204 of the Penal code (Cap 63) Laws of Kenya in that.
Simon Gitau Karanja and Dominic Okoth John on the 11 th day of April 2019 at City Carton Area, Embakasi East Sub-County within Nairobi County jointly murdered Vallary Atieno Amenyi
2. The Prosecution presented its case against the accused persons through the evidence of ten (10) witnesses, who gave both oral testimony and expert evidence in support of the charge.
3. On 17 September 2025, the Court delivered its ruling pursuant to Section 210 of the Criminal Procedure Code, CAP 75 Laws of Kenya, and accordingly placed the accused persons on their defence on the basis of the doctrine of recent possession to respond to the evidence presented by the Prosecution.
4. The first accused person adduced his defence by way of oral testimony from two witnesses in addition to his own testimony.
B. ISSUE FOR DETERMINATION
5. The Court having heard the Prosecution's case, evidence and the testimony of the Accused person in his Defence and witnesses, we submit that at this juncture the issue for determination is
Whether the evidence presented before this Court establishes beyond reasonable doubt that the Accused person committed the offences as charged, thereby warranting a conviction, or whether the defence has successfully raised sufficient doubt to acquit the 1 st Accused.
menyi as would be required under the provisions of the Evidence Act. Cap
20. The Prosecution's only key piece of evidence against the 1st Accused Person was that he was found in possession of a black Nokia Lumia 520 mobile phone (Exhibit 1), said to have allegedly belonged to the deceased. However, the Prosecution did not adduce any credible evidence to prove ownership of the said phone by the deceased. Consequently, that assertion remained an unproven fact, which this Court cannot rely upon in determining the guilt of the 1st Accused Person.
21. They submited that the evidence of PW9 the Safaricom Liaison Officer did not support the Prosecution's contention that Exhibit 1, the black Nokia Lumia 520, belonged to the deceased. The call data records produced in evidence revealed that the mobile phone was operating with a SIM card registered in the name of one Laura Akinyi Odhiambo and not in the name of the deceased This evidence did not support the Prosecution's case on the issue that the 1 st Accused had been found in possession of a mobile phone belonging to the deceased person.
23. The evidence of PW7 Government Chemist Analyst Margaret Wahu Maina did not support the Prosecution's case. She produced a forensic report dated 1 st July 2020 (Exhibit 8(b) in which she concluded that the blood samples obtained from the 1st Accused did not match any of the items recovered from the crime scene. Consequently, there was no forensic evidence placing the 1 st Accused at the City Carton area in Embakasi East Sub-County. within Nairobi, where the deceased, Vallery Atieno Amenyi, was murdered.
24. The 1 st Accused Person's evidence that he is a phone repair technician remained uncontroverted by the Prosecution. The Prosecution did not adduce any evidence to challenge or disprove this assertion. Consequently, this unchallenged evidence raises reasonable doubt as to the Prosecution's case against the 1st Accused Person.
25. PW10 the Investigating Officer Corporal Wanjohi testified that he conducted the investigations and subsequently recommended the charge of murder against the 1 st accused person the 1 st accused perosn without any credible evidential basis linking him to th eoffence.
SUBMISSIONS BY THE 2 ND ACCUSED PERSON DOMINIC OKOTH JOHN
BACKGROUND.
1. The two Accused persons stand charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, alleged to have been committed against one Vallary Atieno Amenyi on the night of 11 th April 2019. The deceased, a young woman of about nineteen (19) years, was fatally stabbed on the left side of the neck at approximately 3:30 am. The assailant fled the scene, taking with him the deceased's black handbag, which was later recovered discarded outside, the black Nokia Lumia phone (hereinafter "the subject phone"), and the gate's padlock and keys.
2. The following day, 12 th April 2019, the 1 st a Accused, a phone repair technician, was approached at his shop by a man offering to sell him a damaged Nokia Lumia phone. He purchased it for Kshs. 200, cleaned and repaired it for resale. Later that morning, the 2 nd Accused, a carpenter by trade and a casual acquaintance of the 1 st Accused, stopped by the shop while on his way to work to look for a carpentry tool. Finding the 1 Accused repairing the subject phone, he expressed interest in purchasing it. After brief negotiations, they agreed on a price of Kshs. 800, of which the 2 nd Accused paid Kshs. 500 in cash, undertaking to pay the balance later.
3. Upon taking the phone home, the 2 nd Accused inserted his SIM card, only to discover that the SIM slot was defective and could not connect to the network. He removed his SIM card, left the phone at home, and went on with his normal routines. Approximately three weeks later, on 3 rd May 2019, DCI officers traced the subject phone through Safaricom data showing his SIM card had once been inserted in it. The 2 nd Accused was arrested & cooperated fully-he voluntarily surrendered the phone and led the officers to the 1 st Accused who had sold it to him. From that day forward, both men have endured the weight of this prosecution, with the 2 nd Accused having now spent over six and a half years in custody awaiting his day of vindication.
INTRODUCTION
4. The charge before the Court is that of murder. The ingredients for such an offence are settled: proof beyond reasonable doubt of
(a) The fact and cause of death
(b) That the death was caused by the unlawful act or omission of the accused, and
(c) That the act was committed with malice aforethought. These elements are codified in Sections 203 and 206 of the Penal Code and have been reaffirmed in Anthony Ndegwa Ngari vs Republic [2014] eKLR and a long line of authorities
5. In the present case, there is no direct evidence linking the 2 nd Accused to the commission of the offence. None of the ten (10) prosecution witnesses saw, heard, or identified him at, near the scene or ever. No forensic or DNA evidence ties him to the murder. The entirety of the prosecution's case rests upon the alleged recent possession of the deceased's phone. It is on this narrow but overwhelmingly significant issue that the prosecution has invited this Honourable Court to into infer guilt.
6. With utmost respect, we submit that the evidence on record not only fails to meet the standard of proof required to invoke that doctrine but, in fact, provides a reasonable and credible explanation for the 2nd Accused's possession. The consistent account of an innocent purchase sufficiently rebuts the presumption and severs the chain of culpability. It is upon this framework of fact and law that we now proceed to address the issues for determination.
ISSUE FOR DETERMINATION.
(i) Whether the offence of murder is proven to the required standard.
(ii) Whether in the circumstances, the 2nd Accused persons recent possession of the subject phone suffices to found a safe conviction.
THE OFFENCE OF MURDER IS NOT PROVED TO THE STANDARD REQUIRED.
7. The Court to interrogate the prosecution's case in its entirety and juxtapose it against the well-established ingredients of the offence of murder. We submit that when properly examined, the prosecution evidence falls far short of proving the charge as against the 2 nd Accused beyond reasonable doubt
8. The prosecution called ten (10) witnesses in its attempt to link the Accused to the tragic death of the deceased, Valerie Atieno Apiyo. Their evidence, highest was purely circumstantial, anchored only on the deceased's missing phones. No single witness placed the 2 nd Accused at or near the scene nor was any forensic or direct evidence adduced to connect him to the act of Killing
9. PW1, the deceased's long-tine
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