1. The accused person was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. From the Information filed in Court, the particulars of the offence are that on the 4th day of April 2021 at Veterinary Farm within Machakos Sub-County, Machakos County he murdered Felix Muendo Maundu.
2. On 23rd April, 2021, the accused pleaded not guilty to the charge, and the prosecution was tasked with proving its case to the required standard. The prosecution called a total of fifteen (15) witnesses.
A. Prosecution case
3. PW1, Michael Mwangangi Mutunga, a 16 years old Form 2 student at Baptism Secondary School testified that he knew the deceased, Felix Muendo Maundu, as a friend. He stated that on 4th April 2021 at about 8.00 a.m., he left his home in Katoloni and proceeded to herd cows together with the deceased and one Michael Sebastian. They gathered the cows and took them to graze, first passing through River Katoloni, crossing over to Kabanga.
4. After the cattle drunk water and were grazing, they saw a police officer approaching in the company of two security officers. Upon noticing them, they fled towards the direction of White House leaving the cows behind. That the police officer pursued them but later together with the security officers, drove the cows towards the Veterinary farm. The officer stated he would not release the cows unless they paid Ksh. 6,000.
5. PW1 testified that they later decided to retrieve the cows by using a path leading towards the Veterinary Farm while the officer remained on the road. As they were driving the cows away, they heard a gunshot. He stated that the distance between the road and where they were was approximately 30 metres. The officer, who was about 10 metres away, cocked his gun and shot at the deceased. PW1 was about 4 metres from the deceased and witnessed the shooting. He testified that two gunshots were fired. Thereafter, the officer approached, touched the deceased on the chest, and instructed the security officers to leave.
6. PW1 stated that they went to where the deceased lay and discovered that he was dead. The officer left with the firearm. He then returned home and informed the deceased’s parents. Together, they went back to the scene and found the body still lying there.
7. He identified the firearm used as similar to the rifle produced in court and marked Rifle G3 MFI-1. He further stated that when the gunshots were fired, the cows ran towards home. He did not know the owner of the Veterinary Farm but indicated that they had previously grazed in the area without being stopped. However, he stated that he could not clearly identify the police officer as he was wearing a mask and a cap.
8. In cross-examination, PW1 stated that they were grazing near the white house, the government house and had not entered the veterinary farm. he reiterated that he saw the officer remove bullets from his pockets and load the gun and fire in the air.
9. PW2, Byron Muthama Michael a 17 years old young man testified that on 4th April, 2021 around 9.00am, he left home with cows met several others, including Michael (PW1), Sebastian, Muteti, Alex Muendo (deceased), Brian, Manthi, Luta and Kasee, each with their own cows. They grazed the cows while moving from the slaughter house past the sewage area to Kwa Karanga.
10. At about 2.00 p.m., a police officer in green uniform, accompanied by Veterinary Farm security officers, approached them. Upon seeing the officers, they fled. At the time, the cows were near the Government offices (White House). The police officer demanded Kshs. 6,000 for the release of the cows, but they informed him that they had no money. The officer, who was armed, ordered them to look for the money and chased them away, while the cows were driven into the Veterinary Farm and guarded by the two security officers.
11. PW2 testified that when they attempted to retrieve the cows for the fourth time, the officer fired a warning shot in the air. He described the firearm as a long gun similar to the one produced in court as MFI-1. He further testified that the officer moved ahead of them and shot the deceased in the upper arm, causing him to fall. The officer then approached the deceased, touched him, and left the scene.
12. After driving the cows away, they returned and found the deceased lying dead. They went home and reported the incident, then returned to the scene with villagers and the deceased’s parents. They found police officers and members of the media at the scene, with the body still present. Their statements were subsequently recorded.
13. PW2 stated that although they usually grazed in the area, they did not enter the Veterinary Farm, and on the material day, the cows had not crossed into it. He also indicated that he could not identify the police officer due to the mask he was wearing.
14. In cross-examination, he stated that they had been grazing there for a long time and did not enter the Vet farm as it belonged to Veterinary, which kept its own cows and sold milk He said he had never heard anyone being prevented from grazing in the area. They were therefore puzzled as to why the police officer was demanding money, since the believed they had done nothing wrong. They were also afraid that their cattle would be taken away if they left.
15. He testified that the deceased was killed at Vet Farm. According to him while he was at the farm, the police arrived and shot him. He further stated that the police officer removed bullets from his left pocket and cocked the firearm and began shooting from behind them. He saw him shoot Muendo on the upper arm.
16. PW3, Sebastian Kilungya Muteti, testified that on 4th April 2021, he left home with cows at about 8.00 a.m. and went to the slaughterhouse, where he met several others, including Lutta, Byron, Michael, Muendo, Manthi, Kasee, and Brio. They proceeded to graze their cows at People’s Park and later moved towards the Governor’s Office (White House).
17. At around 2.00 p.m., they encountered a police officer accompanied by two security guards. The officer was armed with a gun, while the guards carried batons. Frightened, they ran away. The officer then drove the cows towards the Vet Farm. When they returned, they found some of the cows inside the farm. Their attempts to retrieve them were unsuccessful, as they were chased away twice.
18. On their third attempt, the officer demanded Kshs. 6,000, which they did not have, and they were again driven away. PW3 explained that they feared punishment as students if they abandoned the cows. During their fourth approach, after leaving the officer on the road, he heard a gunshot. The security guards fled, leaving the cows behind. As they gathered the cows, he heard another gunshot and saw the deceased lying on the ground. He observed the officer bend as if to touch the deceased before leaving with the guards. PW3 stated that the officer was about three metres from the deceased at the time of the second shot. They later decided to report the incident at home. He further stated that he was too far from the officer to identify him.
19. In cross-examination, PW3 stated that the cows had not initially been inside the Vet Farm and he did not know why the officer drove them there. He confirmed that they had never been arrested while grazing near the Governor’s Office, although he had heard that grazing at Vet Farm often led to arrest. He added that the officer did not say anything during the incident. He acknowledged that they forcefully removed the cows from the farm out of frustration and later learned that doing so was an offence. He also confirmed that he had never grazed cattle within the Vet Farm before.
20. PW4, NO. 24009033775 APC Nicholas Musyoka Mutiso, testified that he was attached to the Critical Infrastructure Inspection Unit in Machakos Sub-County, where he performed general and armory duties, including issuing and receiving firearms. He stated that on 26th February 2021, while at the armory, he issued APC Victor Kariuki (the accused) with a G3 rifle, serial number J66277, loaded with 20 rounds of ammunition. The issuance was duly recorded in the Firearms and Arms Movement Registers, and the accused signed for the weapon at 8.30 a.m. PW4 later identified the rifle in court.
21. On 4th April 2021 at around 4.00 p.m., while at the AP camp, PW4 received a call from the accused, who asked him to proceed to the armory to receive the firearm. Upon not finding him there, PW4 called him back and was informed that the accused had discharged the firearm and injured someone. The accused stated that he was at Machakos Police Station.
22. PW4 proceeded to the station and found the accused at the crime office, where he confirmed that he had discharged the firearm and hit someone. PW4 took possession of the rifle, removed the magazine, and made it safe, during which one round fell out. Upon clearing it, he established that two rounds of ammunition were missing.
23. They then returned the firearm to the AP Central Armory, where PW4 recorded its return, noting the shortage of two rounds. He informed his superior, the AP Sub-County Commander, who instructed him to safely secure the firearm pending collection by DCI officers. At about 7.00 p.m., officers from DCI Machakos collected the rifle for investigations.
24. In cross-examination, PW4 stated that upon examining the rifle, he noticed two cuts on the hand guard, which had not been present when it was issued. The accused explained that he sustained the damage while defending himself from an attack by the deceased.
25. PW5, No. 213415, Wesley Kiprop Torotich testified that he was an AP officer attached to the Critical Information Unit attached at the Vet Farm tasked with guarding the Governor’s office. His immediate superior was APC Victor Kariuki(the accused).
26. He stated that on 4th April, 2021 at about 4.30 p.m. on Sunday, while at the Vet Farm camp with his colleague Saumu Ramadhan, the accused entered the armory area, where he was also residing. Shortly thereafter, the accused called them into his house, where they found entries being made in the Arms Movement Register, which was under the accused’s custody.
27. PW5 testified that he was scheduled for night duty that day but had not yet been issued with a firearm. On checking the register, he found that it had already been recorded that he had been issued with a G3 rifle (No. J53987) with 10 rounds of ammunition for day patrol at 0600 hours, which was untrue. The entry had not been signed. When asked to sign, he declined, explaining that he had not gone on patrol. The accused informed him that “things had gone wrong” and later admitted that he had killed someone. PW5 then left the house.
28. He further stated that he crossed out his name in the register, as he had not been on patrol, and refused to sign. His colleague Saumu also declined to sign. He confirmed that he had known the accused for one and a half years, and they had no prior disagreements.
29. In cross-examination, PW5 maintained that the Arms Movement Register records issuance and return of firearms, and there was no indication that he had returned from patrol. He reiterated that he could not have been issued with a firearm at that time, as it was not yet his duty shift. He added that on the material day, he did not collect a firearm from the camp, as he had gone for escort duties and obtained one from headquarters.
30. PW6, No. 2018040301, APC Zainabu Ibrahim testified that she was stationed at the VET Farm Administration Police Post, where they were five officers. In April 2021, their in-charge was Victor Kariuki. A duty roster prepared by the in-charge guided assignments, and she identified the roster for 4th April 2021 in court.
31. On that day, she had been assigned to the IEBC offices in Miwani area alongside APC Kariuki. She left at 11:00 a.m., proceeded to the station, patrolled the area, and opened the offices. She noted that APC Kariuki had earlier signed in at 6:00 a.m. She remained there until 2:20 p.m., when she returned to the AP camp, having not found him at the station. She identified the IEBC register (PMFI-5). Upon reaching her house, she met her husband leaving for work. Shortly thereafter, Kariuki called and instructed her to go to his house, where the armory was located, open it, and collect a rifle. As she approached the house, she heard a gunshot, followed by another shortly after. She nonetheless proceeded, opened the armory, and took a G3 rifle with 20 rounds of ammunition.
32. Uncertain of where to go, she did not proceed further or sign the arms movement register. She returned the rifle, locked the armory, and went back home. On her way, she met Kariuki, who was carrying a G3 rifle and had his right hand in a sling. He asked her to follow him to his house, but she first returned home to breastfeed her child before joining him about 15–20 minutes later.
33. At Kariuki’s house, she found him with PC Wesley, and they appeared to be arguing. Kariuki was making entries in the register and had signed entries for both Wesley and herself. She identified the main register entry for 4th April 2021, noting that the entry beside her name indicated she had drawn a firearm at 6:00 a.m. She denied signing it, stating the signature was forged and the force number recorded (258040) belonged to APC Saumu Ramadhan, not her. She maintained that she had not been armed while on duty at the IEBC offices.
34. When she questioned Kariuki about the entry, he became angry and stated that they were unwilling to assist him. He explained that he had been attacked by herdsmen, sustained an injury to his right arm, and that during a struggle with a young man attempting to snatch his rifle, he discharged one round, killing the individual instantly. Kariuki later left, and upon further examination, it was discovered that the entries had been cancelled after Saumu confirmed the serial number referred to her.
35. At around 4:30 p.m., passersby informed them that the hay store had been burnt. At approximately 6:00 p.m., she left the camp with her children and spent the night at a friend’s home in Kenya Israel. She identified Victor Kariuki, whom she had known since September 2019, as the accused and stated she had no prior grudge against him.
36. In cross-examination, she maintained that she was on duty in civilian attire on 4th April 2021, although she did not record her presence at the IEBC office. She confirmed receiving the call to collect a firearm but waited for further instructions. She heard gunshots before reaching the house but could not identify their direction. She did not call Kariuki to confirm his location and instead returned the firearm and went home to attend to her child.
37. PW7, Francisca Kaluki Musyoka, testified that she resided in Katoloni, Machakos and is a farmer. On 4th April, 2021 in the morning, she was at home with the deceased. The deceased who lived at his uncle’s place left at about 8 a.m. leaving her behind. She released the cows and instructed the children to take them for grazing at Vet Farm. The children later returned and confirmed that they had taken them. At about 2 p.m. she received a call from the deceased’s brother Kyalo informing her that the deceased had been shot at the Veterinary.
38. She immediately ran to the scene following a group of people. Upon arrival, she found a large crowd including the chief, MCA, police officers. Shortly afterward, more officers arrived and started taking measurements. She saw the deceased, lying down with a T-shirt stained with blood stained on the chest and at the back. The media was also arrived. At about 6 p.m. they were instructed to take the body to the mortuary. The body was transported to Machakos Level 5 mortuary, where upon removal of his shirt, she observed the injury came from the chest to the back. She confirmed that the deceased used to herd the cows at Vet Farm.
39. PW8, Anne Wanzo Mulwa, stated that on 4th April, 2021 she was at home when her daughter informed her that the cows had been detained and Muendo had been shot. She proceeded to the Vet Farm and found Muendo lying face down with blood visible on his back. She did not observe any other injured persons. She was shocked and kept her distance. She found the police officers and members of the public at the scene. She added that the deceased’s father was her husband’ brother.
40. PW9, Judith Ndunge Maundu is the deceased’s mother, testified that the deceased was her 1st born son aged 26 years at the time of his death. On 4th April, 2021 around 4 p.m. while at home, she received a call from her second born son, Musembi, informing her that the deceased had been shot at the Vet farm. She did not go to the scene as she fainted upon receiving the new. She confirmed that the deceased had been living with his uncle at Katoloni.
41. PW10, Michael Sila Muinde the deceased uncle, testified that he attended and identified the deceased’s body for the postmortem on 8th April, 2021 at Machakos Level 5. He identified the body alongside Dominic Matheka Ndivo.
42. PW11, No. 2006042694, Dominic Matheka Ndivo the assistant chief, Katoloni Sub-location, testified that on 4th April, 2021 at around midday, he was in Machakos Town when he received a call from a member of the community informing him of an incident at Vet Farm. He immediately took a motor bike and proceeded to the scene.Upon arriving near the governor’s office, he found about 4 people present and a person lying on the ground whom he recognized as Muendo. He observed a body on the ground but did not approach it. He contacted the OCS Machakos police station and relayed the information. The OCS arrived with three officers followed by officers from the DCI team.
43. As more members of the public gathered, the area became crowded and chaotic, with people expressing anger. The crime scene officers came and took photographs. Together with other authorities they calmed the crowd, after which the body was removed to Machakos level 5. On 8th April 2021, he attended the postmortem and identified the deceased body.
44. PW12, No. 231845, SSP Florence Karimi, a ballistic expert from DCI Headquarters, testified that on 2nd August 2021 she received exhibits submitted by No.60262 Sgt John Kemboi from DCI Mavoko. The exhibits included; a G3 Rifle; marked ‘A”; The magazine; marked “B” and 18 rounds of ammunition marked C (1) – C (18). These were accompanied by an exhibit memo requesting verification of their classification and functionality as follow;
(1) Whether exhibit “A” is a firearm under Firearms Act and whether it was capable of being fired.
(2) Whether exhibits “B” is a magazine under the firearms and whether it was compatible with Exhibit “A”
(3) Whether Exhibit (1) to (18) were ammunition under Firearms Act and whether can be used in “A”.
45. Upon examination, she established that Exhibit “A” was a German made Hecter and Koch G.3 Rifle Serial No S/N J66277 designed to fire rounds of ammunition in caliber 7.62 x 51mm. The firearm was in a good working and mechanical condition, complete with all its components parts including its 18 rounds detachable Box magazine (13).
46. She test-fired the firearm using the submitted ammunition from C(i) to C (18) and recorded the resulting cartridge cases and marked them as TC(i) to TC (13). She also examined the 18 rounds of ammunition Exhibit C (1) to C (18), confirming that all were in good condition and suitable for use in the firearm. Three rounds were randomly selected and successfully test fired.
47. From her examination, she formed the opinion that the rifle and ammunition (Exhibit “A” and C (1) to C (18)) were functional and fell within the definition of a firearm and ammunition under the Firearms Act. She prepared and signed a report dated 18th May 2021. She produced in court the following exhibits; Firearm G.3 Rifle Prosecution-Exhibit 1; 15 complete Rounds of ammunition, Prosecution Exhibit 8(1) – 8(15); 3 Test Cartridge Cases Prosecution exhibits 9(1) – 9(3); Report dated 13th August, 2021, Prosecution Exhibit 10; and Memo marked MFIP-11.
48. PW13, No. 258040, Saumu Ramadhan, testified that she was attached to AP. Camp Vet. On 4th April, 2021 at around 2 p.m. she was at home when her colleague APC Wesley Kiprop called her. Upon responding he asked, whether she knew why Zainabu Ibrahim was rushing to with a firearm. She informed him that she did not know.
49. About twenty minutes later, she heard APC Victor Kariuki and APC Wesley Kiprop talking and went to check. She found APC Kariuki making entries in the firearms movement register, indicating that Wesley Kiprop had gone on patrol and also recording an entry in Zainabu’s name. Kariuki asked for Zainabu’s service number, but in the process, he mistakenly recorded Saumu’s service number, appearing confused and in a hurry. She identified the relevant entry in the register (PMFI-3) in court and noted that Kariuki later cancelled it. She confirmed that she was not on duty that day.
50. She further testified that after Wesley Kiprop left, she asked Kariuki why they had been arguing. He told her that he had shot someone. She advised him not to take any further action with the firearm and instead report the matter to the police. Kariuki then left with the firearm, and she returned to her house.
51. PW14, Benjamin Mutoohi Maringo, work at Vet Farm as Manager. On 4th April, 2021, a Sunday, he was returning from Machakos Town when he briefly met APC Kariuki on a boda boda, dressed in uniform.
52. At around 3:00 p.m., while at his house preparing a meal, he heard two knocks on the door but found no one outside. He then noticed two missed calls from James Makau, a farm employee. Upon calling him back, Makau reported that about twenty people had invaded the farm, set the hay store on fire, and fled.
53. He immediately went to the scene, found the store ablaze, and contacted fire officers. Despite their response, the hay store was completely burnt. He also reported the incident to headquarters at Kabete Veterinary Laboratories and was advised to make a police report.
54. He testified that he did not see those responsible for the fire. Makau further informed him that a young man had been killed. The burnt hay store contained approximately 7,000 bales valued at Kshs 1.7 million, and the total loss, including the structure and part of the farm, was estimated at about Kshs 2 million. He stated that his evidence related solely to the destruction of government property. He confirmed that he knew the accused, Kariuki, but only saw him on the road that day and not within the farm.
55. In cross-examination, he stated that although he usually receives reports from the police officers providing security at the farm, no such report was made to him on that day.
56. PW15, No. 60262 Sgt. John Kemboi, the Investigating Officer, testified that he was attached to the Machakos DCIO office where he performed investigative duties. On 4th April 2021, while on standby, he received instructions from DCIO Rhoda Kanyi to accompany Deputy DCIO CIP Wanjohi and other officers namely; IP Ndunda, PC Mokaya, and PC Lucas to the scene of a shooting incident at Vet Farm, Machakos.
57. They proceeded to the scene opposite the Governor’s Office and found the farm on fire and a man who had been fatally shot. Upon inquiry, members of the public informed them that the deceased, Felix Muendo, had been grazing cattle with others when they were confronted by a police officer from the AP Camp at Vet Farm. The officer allegedly demanded money to allow grazing and, following a disagreement, shot the deceased. It was further reported that the grazers had attempted to remove their cattle, but the officer resisted until payment was made.
58. The officer testified that the situation at the scene was tense, with members of the public becoming rowdy and attempting to prevent the removal of the body. The OCPD and DCIO later joined them, together with local leaders, and managed to calm the crowd. Crime scene personnel led by IP Ndunda documented the scene by taking photographs, after which the body was removed to Machakos Level 5 Mortuary.
59. He confirmed that a livestock feed store within the farm had been set on fire and completely destroyed. Investigations revealed that APC Victor Karugu Kariuki had been assigned to duty at the IEBC offices on that day but had later gone to the Vet Farm where the incident occurred. Upon returning to the station, they learned that Kariuki had already reported at the report office. The Deputy DCIO summoned the officer in charge of CIPU Machakos Sub-County, who produced the accused. After interrogation, Kariuki was placed in custody.
60. PW15 further testified that he and CIP Wanjohi proceeded to the CIPU offices, where they recovered a G3 rifle (Serial No. J66277) with a magazine containing 18 rounds of 7.62 mm ammunition. They also obtained the firearms movement register and the daily arms register from Vet Farm AP Camp. At the time of recovery, Kariuki had already returned the weapon to the armory.
61. The arms movement register showed that Kariuki had been issued with the rifle on 26th February 2021 and returned it on 4th April 2021 at 5:45 p.m., with two rounds missing. The daily register indicated that he had drawn the same rifle at 6:00 a.m. on the day of the incident. The duty roster confirmed that Kariuki and APC Zainabu had been assigned to the IEBC offices on that date.
62. A postmortem examination conducted on 8th April 2021 by Dr. Waithera established the cause of death as a chest injury resulting from a single gunshot. The firearm and ammunition were later forwarded for ballistic analysis under a memo dated 2nd August 2021.
63. PW15 produced in court the firearm (Prosecution Exhibit 1), 15 live rounds of ammunition (Prosecution Exhibit 8), test-fired cartridges (Prosecution Exhibit 9), the arms movement register (Prosecution Exhibit 2), the daily arms register (Prosecution Exhibit 3), the duty roster (Prosecution Exhibit 4), the IEBC attendance register (Prosecution Exhibit 5), the postmortem report (Prosecution Exhibit 6), and the scenes of crime certificate and photographs (Prosecution Exhibit 7).
64. He testified that neither the bullet head nor the spent cartridge responsible for the fatal shot was recovered, as the bullet exited the body and the scene had been disturbed.
65. He also noted a cut mark on the rifle, which the accused claimed resulted from the deceased attempting to cut him with a panga. In his assessment, the location of the cut was inconsistent with that explanation.
66. In cross-examination, he stated that the body was found within the Vet Farm, about 50 metres from the main road, possibly in tall grass. He reiterated that no cartridge was recovered and that his conclusion linking the firearm to the shooting was based on the fact that the rifle was assigned to the accused, who was present at the scene.
67. Upon conclusion of PW15’s evidence, the prosecution closed its case. The court reviewed the evidence and placed the accused on his defence.
B. Defence case
68. In his defence, the accused, DW1 APC Victor Karugu Kariuki, gave sworn testimony and called three witnesses. He stated that he joined the Administration Police in 2008 after training at Gilgil NYS camp. He was initially posted to Garissa and, in April 2020, transferred to Machakos and deployed as the officer in charge of the Vet Farm AP Post near the Governor’s office. He testified that he was trained in the use of firearms and was responsible for the armory, including issuing firearms.
69. On 4th April 2021, he received a call from a security guard, Mwendwa, informing him that cows had trespassed into the Vet Farm. At about 3:00 p.m., he dressed in uniform, took his G3 rifle (Serial No. A3J66277), and informed APC Zainabu of the situation. He also issued her with a firearm. According to him, they were both on duty, although it was a Sunday and they were initially in civilian clothing.
70. Upon arrival at the farm, he found several cattle and a young herder who appeared to be speaking on behalf of others. He informed them that the animals would be detained in accordance with procedure until their owners were identified and potentially charged with trespass. He testified that the herders initially left, but later returned in larger numbers, agitated and demanding the release of the cattle. When he declined, they became hostile, throwing stones and sticks. The two watchmen fled towards the road.
71. He stated that about 8, continued to confront him. He stated that as a policeman he could not run away as when you run away you put your life in more danger. That one of the herders was armed with a panga and attempted to cut him, resulting in injuries to his hand. He defended himself using the gun, which he said was struck during the attack, leaving visible cuts on it.
72. It was obvious that his life was in danger. He stepped back and fired a warning shot in the air, but the group did not retreat. At that point, the deceased allegedly grabbed the front part of the riffle and a struggle ensued. In the process the deceased picked up a stone with the left hand and hit him on his right hand. During the struggle the deceased fell, and the riffle discharged, hitting him on the right shoulder.
73. The deceased collapsed, and the other herders fled. He checked and realized the deceased had died. Fearing for his safety, he left the scene with Mwendwa and proceeded to Machakos Central Police Station, where he reported the incident and surrendered the firearm.
74. He maintained that the incident occurred within the Vet Farm, among the cattle, and that the herders were the aggressors. He added that the farm housed livestock and required protection from outside animals to prevent disease. He testified that the herders attacked him. He wanted to retreat but h
[...truncated]
2. On 23rd April, 2021, the accused pleaded not guilty to the charge, and the prosecution was tasked with proving its case to the required standard. The prosecution called a total of fifteen (15) witnesses.
A. Prosecution case
3. PW1, Michael Mwangangi Mutunga, a 16 years old Form 2 student at Baptism Secondary School testified that he knew the deceased, Felix Muendo Maundu, as a friend. He stated that on 4th April 2021 at about 8.00 a.m., he left his home in Katoloni and proceeded to herd cows together with the deceased and one Michael Sebastian. They gathered the cows and took them to graze, first passing through River Katoloni, crossing over to Kabanga.
4. After the cattle drunk water and were grazing, they saw a police officer approaching in the company of two security officers. Upon noticing them, they fled towards the direction of White House leaving the cows behind. That the police officer pursued them but later together with the security officers, drove the cows towards the Veterinary farm. The officer stated he would not release the cows unless they paid Ksh. 6,000.
5. PW1 testified that they later decided to retrieve the cows by using a path leading towards the Veterinary Farm while the officer remained on the road. As they were driving the cows away, they heard a gunshot. He stated that the distance between the road and where they were was approximately 30 metres. The officer, who was about 10 metres away, cocked his gun and shot at the deceased. PW1 was about 4 metres from the deceased and witnessed the shooting. He testified that two gunshots were fired. Thereafter, the officer approached, touched the deceased on the chest, and instructed the security officers to leave.
6. PW1 stated that they went to where the deceased lay and discovered that he was dead. The officer left with the firearm. He then returned home and informed the deceased’s parents. Together, they went back to the scene and found the body still lying there.
7. He identified the firearm used as similar to the rifle produced in court and marked Rifle G3 MFI-1. He further stated that when the gunshots were fired, the cows ran towards home. He did not know the owner of the Veterinary Farm but indicated that they had previously grazed in the area without being stopped. However, he stated that he could not clearly identify the police officer as he was wearing a mask and a cap.
8. In cross-examination, PW1 stated that they were grazing near the white house, the government house and had not entered the veterinary farm. he reiterated that he saw the officer remove bullets from his pockets and load the gun and fire in the air.
9. PW2, Byron Muthama Michael a 17 years old young man testified that on 4th April, 2021 around 9.00am, he left home with cows met several others, including Michael (PW1), Sebastian, Muteti, Alex Muendo (deceased), Brian, Manthi, Luta and Kasee, each with their own cows. They grazed the cows while moving from the slaughter house past the sewage area to Kwa Karanga.
10. At about 2.00 p.m., a police officer in green uniform, accompanied by Veterinary Farm security officers, approached them. Upon seeing the officers, they fled. At the time, the cows were near the Government offices (White House). The police officer demanded Kshs. 6,000 for the release of the cows, but they informed him that they had no money. The officer, who was armed, ordered them to look for the money and chased them away, while the cows were driven into the Veterinary Farm and guarded by the two security officers.
11. PW2 testified that when they attempted to retrieve the cows for the fourth time, the officer fired a warning shot in the air. He described the firearm as a long gun similar to the one produced in court as MFI-1. He further testified that the officer moved ahead of them and shot the deceased in the upper arm, causing him to fall. The officer then approached the deceased, touched him, and left the scene.
12. After driving the cows away, they returned and found the deceased lying dead. They went home and reported the incident, then returned to the scene with villagers and the deceased’s parents. They found police officers and members of the media at the scene, with the body still present. Their statements were subsequently recorded.
13. PW2 stated that although they usually grazed in the area, they did not enter the Veterinary Farm, and on the material day, the cows had not crossed into it. He also indicated that he could not identify the police officer due to the mask he was wearing.
14. In cross-examination, he stated that they had been grazing there for a long time and did not enter the Vet farm as it belonged to Veterinary, which kept its own cows and sold milk He said he had never heard anyone being prevented from grazing in the area. They were therefore puzzled as to why the police officer was demanding money, since the believed they had done nothing wrong. They were also afraid that their cattle would be taken away if they left.
15. He testified that the deceased was killed at Vet Farm. According to him while he was at the farm, the police arrived and shot him. He further stated that the police officer removed bullets from his left pocket and cocked the firearm and began shooting from behind them. He saw him shoot Muendo on the upper arm.
16. PW3, Sebastian Kilungya Muteti, testified that on 4th April 2021, he left home with cows at about 8.00 a.m. and went to the slaughterhouse, where he met several others, including Lutta, Byron, Michael, Muendo, Manthi, Kasee, and Brio. They proceeded to graze their cows at People’s Park and later moved towards the Governor’s Office (White House).
17. At around 2.00 p.m., they encountered a police officer accompanied by two security guards. The officer was armed with a gun, while the guards carried batons. Frightened, they ran away. The officer then drove the cows towards the Vet Farm. When they returned, they found some of the cows inside the farm. Their attempts to retrieve them were unsuccessful, as they were chased away twice.
18. On their third attempt, the officer demanded Kshs. 6,000, which they did not have, and they were again driven away. PW3 explained that they feared punishment as students if they abandoned the cows. During their fourth approach, after leaving the officer on the road, he heard a gunshot. The security guards fled, leaving the cows behind. As they gathered the cows, he heard another gunshot and saw the deceased lying on the ground. He observed the officer bend as if to touch the deceased before leaving with the guards. PW3 stated that the officer was about three metres from the deceased at the time of the second shot. They later decided to report the incident at home. He further stated that he was too far from the officer to identify him.
19. In cross-examination, PW3 stated that the cows had not initially been inside the Vet Farm and he did not know why the officer drove them there. He confirmed that they had never been arrested while grazing near the Governor’s Office, although he had heard that grazing at Vet Farm often led to arrest. He added that the officer did not say anything during the incident. He acknowledged that they forcefully removed the cows from the farm out of frustration and later learned that doing so was an offence. He also confirmed that he had never grazed cattle within the Vet Farm before.
20. PW4, NO. 24009033775 APC Nicholas Musyoka Mutiso, testified that he was attached to the Critical Infrastructure Inspection Unit in Machakos Sub-County, where he performed general and armory duties, including issuing and receiving firearms. He stated that on 26th February 2021, while at the armory, he issued APC Victor Kariuki (the accused) with a G3 rifle, serial number J66277, loaded with 20 rounds of ammunition. The issuance was duly recorded in the Firearms and Arms Movement Registers, and the accused signed for the weapon at 8.30 a.m. PW4 later identified the rifle in court.
21. On 4th April 2021 at around 4.00 p.m., while at the AP camp, PW4 received a call from the accused, who asked him to proceed to the armory to receive the firearm. Upon not finding him there, PW4 called him back and was informed that the accused had discharged the firearm and injured someone. The accused stated that he was at Machakos Police Station.
22. PW4 proceeded to the station and found the accused at the crime office, where he confirmed that he had discharged the firearm and hit someone. PW4 took possession of the rifle, removed the magazine, and made it safe, during which one round fell out. Upon clearing it, he established that two rounds of ammunition were missing.
23. They then returned the firearm to the AP Central Armory, where PW4 recorded its return, noting the shortage of two rounds. He informed his superior, the AP Sub-County Commander, who instructed him to safely secure the firearm pending collection by DCI officers. At about 7.00 p.m., officers from DCI Machakos collected the rifle for investigations.
24. In cross-examination, PW4 stated that upon examining the rifle, he noticed two cuts on the hand guard, which had not been present when it was issued. The accused explained that he sustained the damage while defending himself from an attack by the deceased.
25. PW5, No. 213415, Wesley Kiprop Torotich testified that he was an AP officer attached to the Critical Information Unit attached at the Vet Farm tasked with guarding the Governor’s office. His immediate superior was APC Victor Kariuki(the accused).
26. He stated that on 4th April, 2021 at about 4.30 p.m. on Sunday, while at the Vet Farm camp with his colleague Saumu Ramadhan, the accused entered the armory area, where he was also residing. Shortly thereafter, the accused called them into his house, where they found entries being made in the Arms Movement Register, which was under the accused’s custody.
27. PW5 testified that he was scheduled for night duty that day but had not yet been issued with a firearm. On checking the register, he found that it had already been recorded that he had been issued with a G3 rifle (No. J53987) with 10 rounds of ammunition for day patrol at 0600 hours, which was untrue. The entry had not been signed. When asked to sign, he declined, explaining that he had not gone on patrol. The accused informed him that “things had gone wrong” and later admitted that he had killed someone. PW5 then left the house.
28. He further stated that he crossed out his name in the register, as he had not been on patrol, and refused to sign. His colleague Saumu also declined to sign. He confirmed that he had known the accused for one and a half years, and they had no prior disagreements.
29. In cross-examination, PW5 maintained that the Arms Movement Register records issuance and return of firearms, and there was no indication that he had returned from patrol. He reiterated that he could not have been issued with a firearm at that time, as it was not yet his duty shift. He added that on the material day, he did not collect a firearm from the camp, as he had gone for escort duties and obtained one from headquarters.
30. PW6, No. 2018040301, APC Zainabu Ibrahim testified that she was stationed at the VET Farm Administration Police Post, where they were five officers. In April 2021, their in-charge was Victor Kariuki. A duty roster prepared by the in-charge guided assignments, and she identified the roster for 4th April 2021 in court.
31. On that day, she had been assigned to the IEBC offices in Miwani area alongside APC Kariuki. She left at 11:00 a.m., proceeded to the station, patrolled the area, and opened the offices. She noted that APC Kariuki had earlier signed in at 6:00 a.m. She remained there until 2:20 p.m., when she returned to the AP camp, having not found him at the station. She identified the IEBC register (PMFI-5). Upon reaching her house, she met her husband leaving for work. Shortly thereafter, Kariuki called and instructed her to go to his house, where the armory was located, open it, and collect a rifle. As she approached the house, she heard a gunshot, followed by another shortly after. She nonetheless proceeded, opened the armory, and took a G3 rifle with 20 rounds of ammunition.
32. Uncertain of where to go, she did not proceed further or sign the arms movement register. She returned the rifle, locked the armory, and went back home. On her way, she met Kariuki, who was carrying a G3 rifle and had his right hand in a sling. He asked her to follow him to his house, but she first returned home to breastfeed her child before joining him about 15–20 minutes later.
33. At Kariuki’s house, she found him with PC Wesley, and they appeared to be arguing. Kariuki was making entries in the register and had signed entries for both Wesley and herself. She identified the main register entry for 4th April 2021, noting that the entry beside her name indicated she had drawn a firearm at 6:00 a.m. She denied signing it, stating the signature was forged and the force number recorded (258040) belonged to APC Saumu Ramadhan, not her. She maintained that she had not been armed while on duty at the IEBC offices.
34. When she questioned Kariuki about the entry, he became angry and stated that they were unwilling to assist him. He explained that he had been attacked by herdsmen, sustained an injury to his right arm, and that during a struggle with a young man attempting to snatch his rifle, he discharged one round, killing the individual instantly. Kariuki later left, and upon further examination, it was discovered that the entries had been cancelled after Saumu confirmed the serial number referred to her.
35. At around 4:30 p.m., passersby informed them that the hay store had been burnt. At approximately 6:00 p.m., she left the camp with her children and spent the night at a friend’s home in Kenya Israel. She identified Victor Kariuki, whom she had known since September 2019, as the accused and stated she had no prior grudge against him.
36. In cross-examination, she maintained that she was on duty in civilian attire on 4th April 2021, although she did not record her presence at the IEBC office. She confirmed receiving the call to collect a firearm but waited for further instructions. She heard gunshots before reaching the house but could not identify their direction. She did not call Kariuki to confirm his location and instead returned the firearm and went home to attend to her child.
37. PW7, Francisca Kaluki Musyoka, testified that she resided in Katoloni, Machakos and is a farmer. On 4th April, 2021 in the morning, she was at home with the deceased. The deceased who lived at his uncle’s place left at about 8 a.m. leaving her behind. She released the cows and instructed the children to take them for grazing at Vet Farm. The children later returned and confirmed that they had taken them. At about 2 p.m. she received a call from the deceased’s brother Kyalo informing her that the deceased had been shot at the Veterinary.
38. She immediately ran to the scene following a group of people. Upon arrival, she found a large crowd including the chief, MCA, police officers. Shortly afterward, more officers arrived and started taking measurements. She saw the deceased, lying down with a T-shirt stained with blood stained on the chest and at the back. The media was also arrived. At about 6 p.m. they were instructed to take the body to the mortuary. The body was transported to Machakos Level 5 mortuary, where upon removal of his shirt, she observed the injury came from the chest to the back. She confirmed that the deceased used to herd the cows at Vet Farm.
39. PW8, Anne Wanzo Mulwa, stated that on 4th April, 2021 she was at home when her daughter informed her that the cows had been detained and Muendo had been shot. She proceeded to the Vet Farm and found Muendo lying face down with blood visible on his back. She did not observe any other injured persons. She was shocked and kept her distance. She found the police officers and members of the public at the scene. She added that the deceased’s father was her husband’ brother.
40. PW9, Judith Ndunge Maundu is the deceased’s mother, testified that the deceased was her 1st born son aged 26 years at the time of his death. On 4th April, 2021 around 4 p.m. while at home, she received a call from her second born son, Musembi, informing her that the deceased had been shot at the Vet farm. She did not go to the scene as she fainted upon receiving the new. She confirmed that the deceased had been living with his uncle at Katoloni.
41. PW10, Michael Sila Muinde the deceased uncle, testified that he attended and identified the deceased’s body for the postmortem on 8th April, 2021 at Machakos Level 5. He identified the body alongside Dominic Matheka Ndivo.
42. PW11, No. 2006042694, Dominic Matheka Ndivo the assistant chief, Katoloni Sub-location, testified that on 4th April, 2021 at around midday, he was in Machakos Town when he received a call from a member of the community informing him of an incident at Vet Farm. He immediately took a motor bike and proceeded to the scene.Upon arriving near the governor’s office, he found about 4 people present and a person lying on the ground whom he recognized as Muendo. He observed a body on the ground but did not approach it. He contacted the OCS Machakos police station and relayed the information. The OCS arrived with three officers followed by officers from the DCI team.
43. As more members of the public gathered, the area became crowded and chaotic, with people expressing anger. The crime scene officers came and took photographs. Together with other authorities they calmed the crowd, after which the body was removed to Machakos level 5. On 8th April 2021, he attended the postmortem and identified the deceased body.
44. PW12, No. 231845, SSP Florence Karimi, a ballistic expert from DCI Headquarters, testified that on 2nd August 2021 she received exhibits submitted by No.60262 Sgt John Kemboi from DCI Mavoko. The exhibits included; a G3 Rifle; marked ‘A”; The magazine; marked “B” and 18 rounds of ammunition marked C (1) – C (18). These were accompanied by an exhibit memo requesting verification of their classification and functionality as follow;
(1) Whether exhibit “A” is a firearm under Firearms Act and whether it was capable of being fired.
(2) Whether exhibits “B” is a magazine under the firearms and whether it was compatible with Exhibit “A”
(3) Whether Exhibit (1) to (18) were ammunition under Firearms Act and whether can be used in “A”.
45. Upon examination, she established that Exhibit “A” was a German made Hecter and Koch G.3 Rifle Serial No S/N J66277 designed to fire rounds of ammunition in caliber 7.62 x 51mm. The firearm was in a good working and mechanical condition, complete with all its components parts including its 18 rounds detachable Box magazine (13).
46. She test-fired the firearm using the submitted ammunition from C(i) to C (18) and recorded the resulting cartridge cases and marked them as TC(i) to TC (13). She also examined the 18 rounds of ammunition Exhibit C (1) to C (18), confirming that all were in good condition and suitable for use in the firearm. Three rounds were randomly selected and successfully test fired.
47. From her examination, she formed the opinion that the rifle and ammunition (Exhibit “A” and C (1) to C (18)) were functional and fell within the definition of a firearm and ammunition under the Firearms Act. She prepared and signed a report dated 18th May 2021. She produced in court the following exhibits; Firearm G.3 Rifle Prosecution-Exhibit 1; 15 complete Rounds of ammunition, Prosecution Exhibit 8(1) – 8(15); 3 Test Cartridge Cases Prosecution exhibits 9(1) – 9(3); Report dated 13th August, 2021, Prosecution Exhibit 10; and Memo marked MFIP-11.
48. PW13, No. 258040, Saumu Ramadhan, testified that she was attached to AP. Camp Vet. On 4th April, 2021 at around 2 p.m. she was at home when her colleague APC Wesley Kiprop called her. Upon responding he asked, whether she knew why Zainabu Ibrahim was rushing to with a firearm. She informed him that she did not know.
49. About twenty minutes later, she heard APC Victor Kariuki and APC Wesley Kiprop talking and went to check. She found APC Kariuki making entries in the firearms movement register, indicating that Wesley Kiprop had gone on patrol and also recording an entry in Zainabu’s name. Kariuki asked for Zainabu’s service number, but in the process, he mistakenly recorded Saumu’s service number, appearing confused and in a hurry. She identified the relevant entry in the register (PMFI-3) in court and noted that Kariuki later cancelled it. She confirmed that she was not on duty that day.
50. She further testified that after Wesley Kiprop left, she asked Kariuki why they had been arguing. He told her that he had shot someone. She advised him not to take any further action with the firearm and instead report the matter to the police. Kariuki then left with the firearm, and she returned to her house.
51. PW14, Benjamin Mutoohi Maringo, work at Vet Farm as Manager. On 4th April, 2021, a Sunday, he was returning from Machakos Town when he briefly met APC Kariuki on a boda boda, dressed in uniform.
52. At around 3:00 p.m., while at his house preparing a meal, he heard two knocks on the door but found no one outside. He then noticed two missed calls from James Makau, a farm employee. Upon calling him back, Makau reported that about twenty people had invaded the farm, set the hay store on fire, and fled.
53. He immediately went to the scene, found the store ablaze, and contacted fire officers. Despite their response, the hay store was completely burnt. He also reported the incident to headquarters at Kabete Veterinary Laboratories and was advised to make a police report.
54. He testified that he did not see those responsible for the fire. Makau further informed him that a young man had been killed. The burnt hay store contained approximately 7,000 bales valued at Kshs 1.7 million, and the total loss, including the structure and part of the farm, was estimated at about Kshs 2 million. He stated that his evidence related solely to the destruction of government property. He confirmed that he knew the accused, Kariuki, but only saw him on the road that day and not within the farm.
55. In cross-examination, he stated that although he usually receives reports from the police officers providing security at the farm, no such report was made to him on that day.
56. PW15, No. 60262 Sgt. John Kemboi, the Investigating Officer, testified that he was attached to the Machakos DCIO office where he performed investigative duties. On 4th April 2021, while on standby, he received instructions from DCIO Rhoda Kanyi to accompany Deputy DCIO CIP Wanjohi and other officers namely; IP Ndunda, PC Mokaya, and PC Lucas to the scene of a shooting incident at Vet Farm, Machakos.
57. They proceeded to the scene opposite the Governor’s Office and found the farm on fire and a man who had been fatally shot. Upon inquiry, members of the public informed them that the deceased, Felix Muendo, had been grazing cattle with others when they were confronted by a police officer from the AP Camp at Vet Farm. The officer allegedly demanded money to allow grazing and, following a disagreement, shot the deceased. It was further reported that the grazers had attempted to remove their cattle, but the officer resisted until payment was made.
58. The officer testified that the situation at the scene was tense, with members of the public becoming rowdy and attempting to prevent the removal of the body. The OCPD and DCIO later joined them, together with local leaders, and managed to calm the crowd. Crime scene personnel led by IP Ndunda documented the scene by taking photographs, after which the body was removed to Machakos Level 5 Mortuary.
59. He confirmed that a livestock feed store within the farm had been set on fire and completely destroyed. Investigations revealed that APC Victor Karugu Kariuki had been assigned to duty at the IEBC offices on that day but had later gone to the Vet Farm where the incident occurred. Upon returning to the station, they learned that Kariuki had already reported at the report office. The Deputy DCIO summoned the officer in charge of CIPU Machakos Sub-County, who produced the accused. After interrogation, Kariuki was placed in custody.
60. PW15 further testified that he and CIP Wanjohi proceeded to the CIPU offices, where they recovered a G3 rifle (Serial No. J66277) with a magazine containing 18 rounds of 7.62 mm ammunition. They also obtained the firearms movement register and the daily arms register from Vet Farm AP Camp. At the time of recovery, Kariuki had already returned the weapon to the armory.
61. The arms movement register showed that Kariuki had been issued with the rifle on 26th February 2021 and returned it on 4th April 2021 at 5:45 p.m., with two rounds missing. The daily register indicated that he had drawn the same rifle at 6:00 a.m. on the day of the incident. The duty roster confirmed that Kariuki and APC Zainabu had been assigned to the IEBC offices on that date.
62. A postmortem examination conducted on 8th April 2021 by Dr. Waithera established the cause of death as a chest injury resulting from a single gunshot. The firearm and ammunition were later forwarded for ballistic analysis under a memo dated 2nd August 2021.
63. PW15 produced in court the firearm (Prosecution Exhibit 1), 15 live rounds of ammunition (Prosecution Exhibit 8), test-fired cartridges (Prosecution Exhibit 9), the arms movement register (Prosecution Exhibit 2), the daily arms register (Prosecution Exhibit 3), the duty roster (Prosecution Exhibit 4), the IEBC attendance register (Prosecution Exhibit 5), the postmortem report (Prosecution Exhibit 6), and the scenes of crime certificate and photographs (Prosecution Exhibit 7).
64. He testified that neither the bullet head nor the spent cartridge responsible for the fatal shot was recovered, as the bullet exited the body and the scene had been disturbed.
65. He also noted a cut mark on the rifle, which the accused claimed resulted from the deceased attempting to cut him with a panga. In his assessment, the location of the cut was inconsistent with that explanation.
66. In cross-examination, he stated that the body was found within the Vet Farm, about 50 metres from the main road, possibly in tall grass. He reiterated that no cartridge was recovered and that his conclusion linking the firearm to the shooting was based on the fact that the rifle was assigned to the accused, who was present at the scene.
67. Upon conclusion of PW15’s evidence, the prosecution closed its case. The court reviewed the evidence and placed the accused on his defence.
B. Defence case
68. In his defence, the accused, DW1 APC Victor Karugu Kariuki, gave sworn testimony and called three witnesses. He stated that he joined the Administration Police in 2008 after training at Gilgil NYS camp. He was initially posted to Garissa and, in April 2020, transferred to Machakos and deployed as the officer in charge of the Vet Farm AP Post near the Governor’s office. He testified that he was trained in the use of firearms and was responsible for the armory, including issuing firearms.
69. On 4th April 2021, he received a call from a security guard, Mwendwa, informing him that cows had trespassed into the Vet Farm. At about 3:00 p.m., he dressed in uniform, took his G3 rifle (Serial No. A3J66277), and informed APC Zainabu of the situation. He also issued her with a firearm. According to him, they were both on duty, although it was a Sunday and they were initially in civilian clothing.
70. Upon arrival at the farm, he found several cattle and a young herder who appeared to be speaking on behalf of others. He informed them that the animals would be detained in accordance with procedure until their owners were identified and potentially charged with trespass. He testified that the herders initially left, but later returned in larger numbers, agitated and demanding the release of the cattle. When he declined, they became hostile, throwing stones and sticks. The two watchmen fled towards the road.
71. He stated that about 8, continued to confront him. He stated that as a policeman he could not run away as when you run away you put your life in more danger. That one of the herders was armed with a panga and attempted to cut him, resulting in injuries to his hand. He defended himself using the gun, which he said was struck during the attack, leaving visible cuts on it.
72. It was obvious that his life was in danger. He stepped back and fired a warning shot in the air, but the group did not retreat. At that point, the deceased allegedly grabbed the front part of the riffle and a struggle ensued. In the process the deceased picked up a stone with the left hand and hit him on his right hand. During the struggle the deceased fell, and the riffle discharged, hitting him on the right shoulder.
73. The deceased collapsed, and the other herders fled. He checked and realized the deceased had died. Fearing for his safety, he left the scene with Mwendwa and proceeded to Machakos Central Police Station, where he reported the incident and surrendered the firearm.
74. He maintained that the incident occurred within the Vet Farm, among the cattle, and that the herders were the aggressors. He added that the farm housed livestock and required protection from outside animals to prevent disease. He testified that the herders attacked him. He wanted to retreat but h
[...truncated]