Republic v Njeru [2025] KEHC 9998 (KLR)

Republic v Njeru (Criminal Case 26 of 2019) [2025] KEHC 9998 (KLR) (10 July 2025) (Ruling)

Neutral citation: [2025] KEHC 9998 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Criminal Case 26 of 2019

EM Muriithi, J

July 10, 2025

Between

Republic

Prosecution

and

Edwin Murimi Njeru

Accused

Ruling

1. The accused is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that he “on the night of 19th November 2019 at Githure Secondary School in Kirinyaga East Sub-County, within Kirinyaga County unlawfully murdered Simon Njeru Mbogo.” The accused person pleaded not guilty to the charge and the matter proceeded to trial, the prosecution calling 6 witnesses to prove the charge.

2. The court has considered as required under section 306 of the Criminal Procedure Code whether there is the evidence that the accused person committed the offence. At this stage, the court is required to consider whether the prosecution evidence has established a prima facie case, which as held in Ramanlal T. Bhatt v. R (1957) EA 332, 335 is “one on which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”

3. The Court is under a duty, where it considers that there is not established a prima facie case, to acquit the accused. See Murimi v. R (1967) EA 542 and Wachira v. R (1975) EA 262. In such instance, the Court is required to give full reasons for the decision unlike where it finds that a prima facie case has been established as held in Kibera Karimi v. R (1979) KLR 36 (Trevelyan & Todd JJ), so as not to prejudice the fair trial of the case by giving the impression that the court has already made up its mind without hearing the defence. See also Festo Wandera Mukando v. R (1976 – 80) KLR 1626 and Antony Njue Njeru v R, Nairobi C.A. Cr. Appeal No. 77 of 2006 and the Kenya Judiciary Criminal Procedure Benchbook, 2018 at 99-100.

4. In this case, upon consideration of the prosecution evidence, the Court does not find, having regard to the ingredients of the offence of murder that the offence has ben established, and the Court will consequently give full reasons.

The Evidence 5. The Prosecution called 6 witnesses, the five key witnesses testifying as follows:Pw1 Jackson Maina Mwangi, the Deputy Principal at Githure Secondary School testified that:“On 19. 11. 2019 I was at home asleep at 2. 45 am when I heard the door knocked. I found it was the watchman of the school.I opened the door. He said there was a problem at school. That there were 3 people he had seen in school. That he saw they had no good intentions; that he attacked them. 2 ran away. He was able to hit the 3rd intruder. I turned out that the third intruder was the watchman of the sister school Githure Primary School.I thought the watchman was drunk, and that I should not go to the school at that late hour. I told him to report to the police.I did not fully understand his story and told him to report to police. If the police reached me I would go to the station.He left but did not come back to me.I went back to school.At about 6. 50 a.m I went to school.I found the primary school watchman near the kitchen. He was injured. The primary school watchman was unable to stand. He appeared unconscious. He had injuries.This was during KCSE period.A short while later the Askaris (police) who handle KISE matter arrived. The police went about their duties of KCSE.I explained to the police what had happened in the night according to the watchman. The police consulted their bosses, and I asked them whether we could take the injured watchman to hospital. He was groaning in pain. The police said we could take the injured to hospital. I was with the Accused Murimi, the Chairman of Primary School and Deputy Head teacher of Primary School. Just then the High School Principal arrived with the exam papers. He allowed me to take injured man to hospital in my car. I went with the Deputy Head, Chairman of committee to hospital with the injured watchman. This was about 8. 30 am.The injured man was like unconscious.My car is a saloon car. We put the injured man in the back seat.We left the accused at school as he was handling the secondary school as watchman. The injured man was still in a bad state. The hospital is in the neighbourhood – about 100-150 metres away. We went in my car. The injured had to be carried into my car. I did so with the Chairman of Primary School. We reached hospital and handed him over to the medical personnel. That then the Head teacher of Primary School arrived at hospital. I handed over the issue to him (Head teacher).I knew the injured man (Deceased). He was the Primary School Watchman. He had not stayed long as watchman – about 1 year. The school are neighbours and share field.Our watchman was not able to identify the assailants.The Accused was watching materials related to the KCSE exams. He was alone because the school is small – about 100 students. That is the Accused. I know him as the watchman of Secondary School. He had stayed about 8 months. The Accused had never reported to me before. He told me nothing had been stolen from school. He told me he went to report to police. He told me the police told him to report later at 6. 00 am.I later came to learn at about 1. 00 pm – 2. 00 pm that day that the deceased had died. I took no action as police had been present.On Cross-examination by Makworo“Accused was a watchman at Secondary School. Deceased was a watchman at Primary school. The incident was at Secondary School. Deceased came to Secondary School side… school has one watchman each. I did not see Accused report to work that day. I only saw Accused when he came to knock at my gate. I heard him say he is the watchman. I opened the gate. He appeared like a drunk and like he was in shock.I saw Accused. He was not dressed in watchman’s clothes. He did not have a Kabuti. He appeared like he had been involved in a fracas. He had blood in his clothes. It was night and I did not see too clearly. He was in the same clothes in the morning.I told him to report to the police. He said he went to Githure Police Post. The police said they found Accused at his post.I don’t know if I was the first to reach the deceased. The Chairman of the Primary School was there before me. Deceased could not talk.I don’t know if he was taken to another hospital but I heard he was. Deceased was at veranda of kitchen. The kitchen is not usually closed. The watchman’s food is placed in the kitchen.There was nothing else at the kitchen veranda. I can’t tell what injured the deceased. The blood at the veranda was not much.The deceased had blood and was swollen. The blood was not a lot. His clothes were dirty.The accused remained at school. He did not go home until 3. 00 pm that afternoon. The accused was not released by the police until 3. 00 pm when he was allowed to go home. I heard Accused was arrested about 7 pm. the same day.I don’t know why accused was arrested.The deceased was in a bad state. He couldn’t talk. I can’t tell what the accused did other than what he told me.PW2 CONSTABLE NO. 120072 JACKSON KISHE of Kerugoya Police Station general duties and previously at Githure Patrol Base, testified that:“On 19 November 2019 I was on duty manning National Examination at Githure Secondary School. I was informed by Deputy Principal of the School that there was a person found lying in the school grounds. We went to scene with Constable Mutwiri. It was near kitchen area. A person was lying on the ground outside. He had an injury on the head with blood oozing.I couldn’t tell if he was unconscious. We informed out in charge Corporal Njogu who came to the scene. The Deputy Principal rushed the victim to hospital. We continued manning the Examinations as in charge returned to his work. Later that day we were informed that the victim had passed on. A suspect, one Edwin Murimi, was said to be a watchman at the school.We were informed so by the in charge Patrol Base. PC Mutwiri and I went to Accused’s person’s house and arrested him on the same day. His house was at a place I can’t remember. He was washing clothes. We took Accused to Githure Patrol Base and in charge took over. I wrote a statement on 19. 11 2019. I am no the investigating officer. I arrested.On Cross-examination by Makworo:“We were the first Police Officers to get to the scene. The staff of the kitchen had been at scene before us. Nothing was recovered from the scene. When I went back to office I was not told of any report made by Accused at the Police Post. We did not recover anything from Accused. We did not search his house. I could not tell if victim was dead or alive. The in charge is the one who decided victim be taken to hospital. I cannot tell what caused death.PW3 David Nyaga Mungai testified that -“I recall 19. 11. 2019 at about 7. 30 am I was taking milk to the market and on reaching market I was informed by a person at the area that a watchman at the School, Githure Secondary School, was attacked. I looked for a local leader and got Block Leader Jason Mbogo Murenga. With him we went to the school and entered Secondary School. We found that the Primary School watchman had been attacked and was lying at Secondary School. I knew the Primary School Watchman.I am the Chairman Board of Githure Primary Achool. He was Simon Mbogo Njeru. We had employed him as a Board of School.We found the Principal of Secondary School and Deputy Principal. Then the Deputy of Githure Primary came.One of the police officers manning the Exams came with another one.The victim was lying on the ground and was talking and was to be taken to hospital.I asked him what happened and he told me he was attacked by the watchman of the Secondary School. The others were around.The Secondary Watchman is Edwin Murimi.He is the Accused in the dock.I had known as an Employee of the Secondary School.I did not ask him why he was attacked.We took the car of the Deputy Principal and Deputy Head Master of Primary and took the victim to Nuclear Medial Clinic which neighbours the school.The head teacher pf primary came with a senior teacher of Primary and one board member. (Treasure Rose Mutema).The mother of victim and mother of Accused also came to the clinic.The doctor did first aid on victim; and told us to take victim to Kimbimbi Hospital. We looked for a vehicle, and the Accused’s mother and Dorcas Gatuyo took victim in the car to Kimbimbi.We remained behind. We then went home.Around 4. 00 pm Dorcas called me and informed me that the watchman died in the way to hospital.They went to the Police Station to look for a letter to take the body to the mortuary. This was at about 4. 00 pm.The matter was left to police. I wrote my statement later on not the same day.On Cross-examination by Makworo:“Deceased was a Primary School watchman. He was not also serving Secondary School. The watchman used to eat together. I don’t know if they ate together that day. Deceased was found at Secondary School side.The person who informed me told me the watchman was attacked. Shown his statement: it says the watchman was attacked by robbers. I did not follow up on the issue of robbers. That informant is not a witness in this case. The deceased spoke to me. The Principal and Deputy Principal had reached the scene before me. Principal did not mention he talked to deceased. Deputy Chairman spoke to deceased and deceased spoke back. We spoke to Deceased.I did not write in my statement that I spoke with Deceased.I was not asked whether we spoke. At the scene I found the victim on the ground bleeding. There was no other items there. I have no other evidence as to deceased’s death.Re-Examination by Maari:The informant told me he was attacked by robbers.The deceased told me he was attacked by the other watchman, the Accused.PW4 JUDY WAWIRA NJERU testified that -“On 19. 11. 2019 I was at work in Nanyuki and my uncle Bernard called me and he told me where Simon Mbogo deceased who is my brother had assaulted by robbers and had died. I asked him who was there and he told me my mother was called there and had taken deceased to hospital.The following day I came to Embu, my parents’ home. There they told me they needed to go to Police Station. I took my mother and father to Kianyaga Police Station. I also wrote a statement. They wrote statement.Deceased in my last born brother. I did not know Accused.I also went and identified the deceased’s body. His head had injuries. He had cuts on the head and on his shoulders there were swelling bruises.”On Cross-examination by Makworo:“Yes, I was called and told deceased was attacked by robbers. My uncle told me. He did not tell me who they were. I saw his body before the post mortem. I was unable to attend post mortem. I saw cuts on the head and bruises. I don’t know who did the act. I was told it was a workmate of deceased’s. I was told by my cousins.Re-examination – Nil.PW5 No. 69988 CPL JAPHET NYAGA attached to Kianyaga Police Station performing general duties testified that:“I recall 19. 11. 2019 at around 0720 hours. I was in charge at Githure Police Patrol Base under Kianyaga Police Station.There was a national examination going and 2 officers PC Mutwiri and PC Kise had been assigned to Exam coverage at Githure Secondary School. I received a call from PC Mutwiri informing me that after reporting to school they met Mr. Kamau the School Principal who asked them whether they had any report concerning the school. I went to the school and met the two officers, the Principal and Deputy Principal Mr. Mwangi.Deputy Principal informed the Principal that there was a person who was lying at the kitchen. We went to the scene and found a person lying outside the kitchen. The body had injuries a cut on the face, bruises on the hands and legs.Beside him I recorded 2 knives and a metal bar.One knife had blood. The exhibits were taken to Government Chemist and we are awaiting the report.The Deputy Principal and a Board Member took the deceased who was still alive. I spoke to him, the deceased, and he spoke back.He told me he was attacked by a workmate called Edwin Murimi Njeru. Edwin Murimi Njeru came there.We asked him, Edwin. And he said they were attacked by 3 people, amongst whom was the deceased.Edwin also worked as a watchman at the school. Simon, deceased, was taken to hospital. I took the report.We allowed Edwin to go home.The deceased was taken to Githure Hospital and then referred to Kimbimbi Sub District Hospital where he was pronounced dead.Whilst at Githure Police Post, I got a call from Head teacher at Githure Primary and told me the victim had died at hospital.I sent PC Mutwiri to find out where Murimi was and ordered his arrest. PC Mutwiri and PC Kise went to Ngariama and arrested the Accused.They brought him to Githure Police Station.Accused was booked, and we notified our boss OCS who sent Officers from Kianyaga to pick him. Accused was charged with murder.After that I wrote my statement. PC Mutwiri and Kise also wrote statements. The Deceased body was taken to Gakwegore Funeral Home. On 25. 11. 2029 I went for Post Mortem under Dr. Karomo with family members. Also present were other family members.I handed over the file to DCIO Kianyaga. Points to Edwin, Accused, but he can’t remember him.On Cross-examination by Makworo:I went to the scene. It had not been disturbed.I found 2 knives and a metal bar at the scene. PC Kise and Deputy Principal also saw the knife.Pc Kise is a witness.I am not aware that Principal said there was nothing at the scene.I don’t have the exhibits with me.I talked to deceased before he died at the scene. He told me he had been attacked by Edwin. It is in my statement. No that is not in my statement. No witness recorded what the Accused said.I talked to deceased. I don’t know if any of the other witness spoke to deceased.I have not produced the treatment documents for Githure Medical Centre. I am not aware Accused had reported the matter to Githure. The Head teacher told me he had seen accused that morning. The status of Accused when he was arrested was; he appeared injured. This is what is written. I did not see the injury on Accused.I did not find out when the accused was working. The deceased was working as a watchman at Githure Primary School. The Head teacher told me. Accused house was not searched. We charged accused because of the knives and metal bar. We are awaiting Government Chemist report to connect to accused.I spoke to deceased to confirm that accused spoke to accused.On Re-Examination by Maari:When I went to scene I talked to the deceased. He said he was attacked by the Accused person.”

6. PW6 confirmed the death of the Deceased and gave his opinion on from cause of death as the assault injuries the deceased had suffered on his body by a blunt object causing internal heamorrhage resulting to shock, and said that the body had no clothes when presented for postmortem.

Prosecution’s submissions 7. Section 203 of the Penal Code places the burden of the Prosecution to prove that:1. The death of the deceased occurred.2. The death was through unlawful acts or omission of the accused.3. The accused person had malice aforethought

8. They submit that the evidence tendered so far places the accused persons at the scene of the crime squarely and the death of the deceased was due to the wrongful act of the accused persons.

9. Section 206 of the Penal Code stipulates that Malice aforethought shall be deemed to be established by evidence proving:a)An Intention to cause the death or grievous harm.b)Knowledge that the act or omission causing death will probably cause death of or grievous harm to the same person,c)An intention to commit a felony.

Accused’s submissions 10. It is the accused Submissions that the prosecution has not made out a prima facie case to warrant the accused being put in his defense. There are many discrepancies and contradictions in the prosecution case Including; The weapon/items collected at the scene. The communication made by the deceased before he was taken to hospital. Non-Production of crucial exhibits.

11. It was urged that it therefore be moot to place the accused on his defer se in the hope that it will tie up the loose ends in the prosecution case. They urge the court to find in favour of the accused and proceed to acquit him pursuant to Section 306(1) of the criminal procedure code.

12. The accused cited Republic versus Martin Thiguku [2021] eKLR which reiterated that “for the offence of murder to be proved, the prosecution is under the obligation to establish the following key ingredients - a. Proof of death of the deceased, and the cause. b. Proof of an unlawful act or omission on the part of the accused resulting in the death of the deceased. c. Malice aforethought on the part of the accused”, and submitted that the Prosecution has failed to proof the above written ingredients against the accused and urged the court to find that the accused has no case to answer and proceed to acquit him accordingly.

Issue for determination 13. At this stage, the issue is whether the Prosecution has established by evidence a prima facie case to warrant the calling upon the accused to make his defence in accordance with section 306 of the Criminal Procedure Code.

Determination 14. The prosecution has the burden of proof against the accused person to present sufficient evidence to support each of the elements of the offence of murder. The ingredients of the offence of murder c/s 203 as read with 204 of the Penal Code, which is what the Prosecution is required to prove in a murder trial, have been well settled as -1)The death of the deceased occurred.2)The death was through unlawful acts or omission of the accused.3)The accused person had malice aforethought.See Republic v Nyambura and 4 Others (2001) KLR 355.

15. Having considered the testimonies of the six prosecution witnesses, the question is whether the evidence tendered establishes a prima facie case against the accused, or in other words whether the accused has a case to answer for the offence of murder contrary to section 203 of the Penal Code.

The death of the deceased 16. The death of the deceased is not disputed. PW6 Dr. Karomo who performed the Post Mortem formed the opinion that the cause of was due to massive internal hemorrhage leading to shock following severe head injury with a blunt object.

Accused as the assailant 17. On whether it was the accused persons committed the unlawful act which caused the death of the deceased, the prosecution submits that the evidence tendered places the accused person at the scene of the crime and the death of the deceased was due to the wrongful act of the accused person.

18. However, it is inconceivable that the deceased in the severe condition that the witnesses said he was could have named the accused who was present there as one his attackers and yet the Investigating Officer PW5 released the accused to go home. The accused would have at that point have been arrested for the cognizable offence then of grievous harm before the deceased died. Even more inconceivable is that a trained police officer Investigating Officer would fail to record such determinant evidence of the alleged dying declaration in his statement as PW5 did.

19. PW3, Chairman Board of Githure Primary School was informed by an un-named person who did not testify “that a watchman at the School, Githure Secondary School, was attacked.” He too did not record the most important fact of alleged dying declaration and his explanation is implausible that“The person who informed me told me the watchman was attacked. Shown his statement: it says the watchman was attacked by robbers. I did not follow up on the issue of robbers. That informant is not a witness in this case. The deceased spoke to me. The Principal and Deputy Principal had reached the scene before me. Principal did not mention he talked to deceased. Deputy Chairman spoke to deceased and deceased spoke back. We spoke to Deceased.I did not write in my statement that I spoke with Deceased. I was not asked whether we spoke.”On re-examination, PW3’s evidence is self-contradictory as regards the attackers of the deceased:“The informant told me he was attacked by robbers.The deceased told me he was attacked by the other watchman, the Accused.”

20. Moreover, while PW3 alleged that the Principal and Deputy [principal] had spoken to the deceased, PW1 the Deputy Principal Secondary School and PW2, the first police officer on the scene did not testify that deceased talked; indeed PW1 the said the deceased could not talk.

21. The deceased’s sister PW4 said he was told by his Uncle Bernard who again was not presented as a witness that the deceased had been attacked by robbers and his Cousins told him that it was the deceased’s workmate. Is it the deceased’s workmate or robbers? Obviously, hearsay cannot corroborate the testimony of PW3 that the deceased told him it’s the accused who attacked him.

22. The knife and metal bar were not produced in evidence. No evidence of the forensic examination on the items recovered which were alleged taken to the Government Chemist for analysis was presented.

23. The testimony of PW2, the arresting officer who was among the first police officers at the scene does not place any recoverables on the accused and only says they were acting on order of the in-charge of Githure Police Patrol; Base who was not called as a witness:“We were the first Police Officers to get to the scene. The staff of the kitchen had been at scene before us. Nothing was recovered from the scene. When I went back to office I was not told of any report made by Accused at the Police Post. We did not recover anything from Accused. We did not search his house. I could not tell if victim was dead or alive. The in charge is the one who decided victim be taken to hospital. I cannot tell what caused death.”The kitchen workers were not presented as witnesses.

24. The Court would be entitled to assume in accordance with Bukenya v Uganda (1972) EA 549 that the evidence of the witnesses and allegedly the recovered items which were not presented while what was presented was barely adequate was adverse to the Prosecution’s case.

Purported dying declaration 25. PW3 testified that the deceased was in a position to talk and he said that he had been attacked by the Secondary School watchman, accused. The self-contradiction of his evidence as to what he was allegedly told by his unnamed informant and the deceased himself as to the attackers takes away any cogency on the dying declaration theory.

26. PW5 testified that the deceased was talking and he said that he was attacked by the accused and other people. The accused was arrested by his colleagues the same day after learning the deceased had since passed on. PW1- testified that he did not know the cause of the deceased death.

27. On dying declarations are a basis for conviction, the Court must exercise great caution as counselled in Okethi Olale v. R [1965] EA 555, 558-9, as follows:“In this respect we would quote the following passage from the judgment of the court in Jasunga Akumu v. R. (2) ((1954). 21 E.A.C.A. at p. 334)): "The question of the caution to be exercised in the reception of dying declarations and the necessity for their corroboration has been considered by this Court in numerous cases, and a passage from FIELD ON EVIDENCE (7th Edn.) has repeatedly been cited with approval:'The caution with which this kind of testimony should be received has often been commented upon. The test of cross-examination may be wholly wanting; and the particulars of the violence may have occurred under circumstances of confusion and surprise ca1cu1ated to prevent their being accurately observed.... The deceased may have stated his inferences from facts concerning which he may have omitted important particulars, from not having his attention called to them.' (Ramazani bin Mirandu (3); R. v. Okulu Eloku (4); R. v. Muyovya bin Msuma (5)).Particular caution must be exercised when an attack takes place. in darkness when identification of the assailant is, usually, more difficult than in daylight (R. v. Ramazani bin Mirandu (3); R. v. Muyovya bin Msuma (5)). The fact that the deceased told different persons that the appellant was the assailant is evidence of the consistency of his belief that such was the case: it is no guarantee of accuracy (ibid.), It is not a rule of law that, in order to support a conviction, there must be I corroboration of a dying declaration (R. v. Eligu Odel (6); Re Guruswami (7)) and there may be circumstances which go to show that the deceased could not have been mistaken in his identification of the accused. (See, for instance the case or the second accused in R. v, Eligu Odel (6) and R. v. Epongu Ewunyu (8)). But it is, generally speaking, very unsafe to base a conviction solely on the dying declaration of a deceased person, made in the absence of the accused and not subject to cross-examination, unless there is satisfactory corroboration.See also Dala Mkwayi v. R (1956) EA at. 613. ”

28. There was no corroboration for the purported dying declaration alleged by PW3 and PW5. The evidence/ witnesses did not connect the death of the deceased with the accused. The allegation of a dying declaration is clearly refuted by the evidence of PW1 who took the deceased to hospital in his car was categorical that “The deceased was in a bad state. He couldn’t talk. I can’t tell what the accused did other than what he told me.”

29. The statement of PW1 that the accused had told him of an attack on him where he had hit one of the attackers was not processed as an admission or confession and it would be prejudicial to require the accused to lead evidence against himself as to what transpired on the incident.

30. Moreover, even if the testimony of PW1 is taken against the accused it only shows that there was a fight between the accused and the deceased with other attackers as alleged and that cannot be a basis for a murder charge but probably a manslaughter charge. Accused had malice aforethought 31. PW3 on cross-examination stated that the accused and the deceased ate together. He did not know whether they ate together that day of his fatal injury. PW5 testified that before they took the deceased to Hospital, they recovered two knives and some metal bar which had been used to inflict the injuries to the deceased.

32. There is no evidence of bad blood between the accused and the deceased.

33. The weapons, which were allegedly recovered but not produced, are not unusual for persons who like the accused and the deceased worked as watchmen at the School, and there was, in any event no evidence that the metal and or the knives belonged to the accused. There was simply a case of lack of evidence to show that the accused with malice aforethought as defined in section 206 of the Penal Code, assaulted the deceased leading to his death.

34. To require the accused to testify by a finding of case to answer would be to require the accused to supply information as to what had transpired leading to his alleged killing of the deceased, and this would be tantamount to requiring him to prove his innocence, by, say, showing that he was acting on provocation or in self-defence.

35. The Court does not find that sufficient evidence as to the accused’s involvement in the offence of murder c/s 203 and 204 of the Penal Code has been established to warrant the placing of the accused on his defence.

ORDERS 36. Accordingly, for the reasons set out above, in accordance with section 306 (1) of the Criminal Procedure Code, having found that there is no evidence that the accused committed the offence, the Court shall record a finding of not guilty, and acquit the accused of murder contrary to section 203 as read with 204 of the Penal Code.

37. The Court, therefore, directs that the accused shall be released from custody unless he is otherwise lawfully held.

Order accordingly.

DATED AND DELIVERED THIS 10TH DAY OF JULY 2025. EDWARD M. MURIITHIJUDGEAppearanceMr. Mamba for the DPP.Ms. Otieno for Mrs Makworo for the Accused.