Republic v Siiye [2025] KEHC 3051 (KLR)

Republic v Siiye (Criminal Case 54 of 2019) [2025] KEHC 3051 (KLR) (Crim) (18 March 2025) (Judgment)

Neutral citation: [2025] KEHC 3051 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case 54 of 2019

K Kimondo, J

March 18, 2025

Between

Republic

Prosecutor

and

Dorcas Akinyi Siiye

Accused

Judgment

1. Solomon Makau Kaali (hereafter the deceased) was a commerce student at Kenyatta University. He lived in Huruma, Nairobi, with his father, Francis Kaali Munywoki (PW1).

2. His father last saw him on Sunday, 2nd September 2018 heading out to church. His lifeless body was discovered days later in a thicket far away from Nairobi in a place known as Mutomo, Kitui County. From the post mortem report (exhibit 1) the cause of death was strangulation; with multiple injuries.

3. Back at a bar in Huruma, the accused was in possession of the deceased’s mobile phone and had tried to sell it to John Kimani Wainaina (PW2) who changed his mind because the price was a little too steep. The accused thus became the primary suspect in the murder.

4. The Republic brought information to the High Court charging her with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on 2nd September 2018 at Huruma in Starehe Sub-County within Nairobi County, she murdered the deceased.

5. She pleaded not guilty. The prosecution lined up eleven witnesses. When the accused was placed on her defence, she gave sworn evidence and called her daughter, Beverlyne Manyasi, as a witness.

6. As I have stated, PW1 was the father of the accused. The deceased did not return home that Sunday. However, when PW1 returned to the house the following day on Monday, someone had definitely entered their house.Under cross-examination, he saidthe food he left behind “had been eaten and utensils washed” and the door was locked. Only him and the deceased had keys to the residence. However, the allowance of Kshs 250 that he used to leave for him in a jar was intact.

7. After futile attempts to reach his son on phone, he made a report of a missing person at Huruma Police Station. He also searched local hospitals and the City Mortuary. When he visited Kenyatta University, he learnt that the deceased, who was meant to be in 4th year, had dropped out of college in 2nd year. He had not disclosed such information to PW1. He testified that the deceased “used to leave as if to go to college and come back in the evening. I would leave the house ahead of him”.

8. PW1 received a call from the Assistant Chief, Mutomo about the body. It had started to decompose and “the head was turning black”. There were marks on the neck. He identified the clothes worn by the deceased. He said that when the deceased left for church on 2nd September 2018, he was wearing black shoes, black trousers and a white T-shirt. At the mortuary, he saw the same trouser and T-shirt, but the shoes were brown.

9. On 28th September 2018, PW1 and his nephew, Julius Musyoka Mitau (PW4) identified the body for postmortem purposes at Mutomo Mortuary.

10. PW2 was John Kimani Wainaina. On 10th September 2018 at about 07:00 hours, the accused offered him the deceased’s cellphone at a price of Kshs 5,000. He did not pay immediately but inserted his sim card for line 0725092658. The following day, he returned the gadget to the accused as he could not raise the amount.

11. On 30th July 2019, he was arrested and booked at Pangani Police Station. He was shown his photo and that of the accused. He informed the police that he recognized the accused as the person who offered to sell him the mobile phone. In cross-examination, he said that he knew the accused for a long time as he used to sell her tea.

12. PW3 was Alex Mwangi Kimotho. He had employed the accused as a bar attendant at his Midnight Bar & Restaurant in Huruma until April 2019. One morning that month, he found the bar counter unattended and the accused missing. Some of his property including keg beer pumps, drugs and cash were missing. He reported the matter to Huruma Police Station. He denied that he owed the accused Kshs 50,000 or any such sums.

13. PW5 wasRebecca Ngei Musingi . On 8th September 2018, she and her sister,Ruth Nzembi Musingi (PW6) were collecting firewood in a bush when a foul smell led her to the body of the deceased. They could not identify the victim. They informed their sister-in-law, Elizabeth, who in turn informed the local chief. The police arrived and removed the body to the Mutomo Sub-County Mortuary.

14. Corporal David Uga (PW7) received the report from PW5. The scene was in a bush near Ndili trading center. He went there with Corporal Shirembe and found people milling around. There was a jacket and shoes besides the body. The shirt was tied on the neck and the body had started decomposing. They removed the body to the mortuary. As there were no identification documents, it was marked as an unknown body.

15. On 10th September 2018, finger-prints were taken (exhibit 3) and submitted to the National Registration Bureau who matched it to that of the deceased. The report (exhibit 1) was produced by Mukari Jackson Kanake (PW10), the Deputy Director of the Bureau.

16. During the postmortem examination, the police discovered a bus ticket from the deceased’s trouser pocket showing he had paid fare from Nairobi to Ikutha on a bus operated by Mbukoni Service Limited (exhibit 5).

17. The post-mortem was conducted by Dr. Kiatu. His report (exhibit 2) was produced in evidence by his colleague Dr. Kitheka Kelvin (PW9) pursuant to section 77 of the Evidence Act. The cause of death was “strangulation with multiple injuries (broken finger and scalp laceration)”.

18. PW8 was Corporal Jonathan Limo. He is a Safaricom call data analyst. On 15th October 2018, he received a request from DCIO Starehe for subscriber details, incoming and outgoing call data for the period between 10/8/2018 to 18/10/2018 for IMEI No. 356820080046060.

19. From the call data records (exhibit 7) three people had used the IMEI for the period requested. They were the deceased, the accused and PW2. The witness also produced the certificate under section 65(8) and 106A & B of the Evidence Act (exhibit 8). PW2 had used the phone from 26/8/2018 to 1/9/2018 while the accused used it from 2/9/2018 to 4/9/2018.

20. Cpl Godfrey Muneeni (PW11) testified that the accused was arrested in Western Kenya on 7th August 2019. The police had also arrested another suspect known as Anne Mwikali alias Miwa on 13th August 2019 but she was released. The latter was identified or implicated by the accused and arrested at Mbuthia, in Huruma Estate. She was a commercial sex worker in the area. The accused had claimed that Miwa gave her the deceased’s phone for the purpose of sale.

21. The witness admitted in cross-examination that the only connection between the deceased and the accused was the mobile phone and call data. He said that the accused did not provide a satisfactorily account on how she got the phone or why she attempted to sell it to PW2. The last signal from the phone was traced to Kangemaand it has never been recovered.

22. Like I stated the accused (DW1) gave sworn testimony and called one witness. She admitted that on 2nd September 2018, she was employed by PW2 at the bar in Mbuthia, Huruma Estate. She denied knowing the deceased or killing him. Her material statement was as follows-On 2/9/2018 I was at the bar. It was a Sunday. I reported at 1:00 p.m. and worked until 2:00 a.m. There are lodgings outside and call girls would wait outside. One of them called Miwa brought a phone to me. She said she was selling it. I put in my sim card to test it. It was okay. I stayed with the phone for a few days. I later showed it to Kimani (PW2), who used to sell tea. He went with it but returned it the following day saying the price was high. I returned the phone to Miwa. That was all.I continued to work at the bar till May 2019. Miwa’s other name was Nzula Miwa. She had claimed that a client of hers had given her the phone. I did not know her “client”. I stopped working at the bar due to non-payment of dues. Life became difficult for me and I got angry. To recover some monies, I had paid for him in table–banking I carried away two Keg containers. I went to Western Kenya and left my child at Huruma.In August, 2019, I started receiving calls from a man. We agreed to meet. We met at the club and it turned out he was a police officer, he arrested me and took me to Butere Police. I was then transferred to Pangani Police. That is when I was informed fully about this charge.

23. DW1 led the police to Anne Nzula Miwa who was also arrested. The latter denied giving the accused the deceased’s phone. She remained at the police station for two weeks before she was released. The accused claimed that she was charged merely because she failed to raise a bribe demanded by the police.

24. DW2 was Beverlyne Manyasi, a daughter of the accused. She only saw the deceased’s phone in question on 2nd and 3rd September 2018. When she enquired, her mother told her that she was given the gadget by Miwa. DW2 met Miwa for the first time at Pangani Police Station following her arrest in 2019. DW2 said her mother carried away some things from “the bar as security or to pay herself” and that she was in financial distress when she relocated to Butere. In cross examination, she conceded that she was not present when Miwa gave the phone to DW1.

25. Learned counsel for the defence filed final submissions with a lisit of authorities dated 5th November 2024. The Republic’s final submissions are dated 13th February 2025.

26. Section 203 of the Penal Code provides that any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

27. There are three key ingredients that must be present: first, the prosecution must prove beyond reasonable doubt the death of the deceased and the cause of that death; secondly, that the accused committed the unlawful act that led to the death; and, thirdly, that the accused was of malice aforethought.

28. The burden of proof that the accused murdered the deceased lay squarely with the Republic. Woolmington v DPP [1935] AC 462, Bhatt v Republic [1957] E.A. 332. The quality of evidence must rise to the standard of proof of beyond any reasonable doubt.

29. The key question then is whether the Republic proved that the accused, of malice aforethought, killed the deceased.

30. None of the eleven witnesses saw the accused attacking the deceased. The prosecution’s case is built purely on circumstantial evidence. In R v Kipkering arap Koske & another 16 EACA 135 (1949) the court held-“In order to justify the inference of guilt, the inculpatory fact must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt”

31. The only tangible connection between the deceased and the accused is the mobile phone and her attempt to sell it to PW2. The accused claimed that Miwa, one of the call girls who plied their trade outside the bar, gave her the gadget. Although she says she received it at the counter, no bar patron was called to verify it. The accused admitted that she inserted her sim card into the handset “to test it” on 2nd September 2018; and, that she stayed with it for a few days before trying to sell it to PW2.

32. The other incriminating evidence was her disappearance from the locus in quo in April 2019 without any notice to her employer. With regard to her employer’s claim that she stole some items from the bar, her answer is that she carted away two keg containers among other items because the business owed her money. She then relocated to Western Kenya.

33. I did not believe the accused on this line of defence. However, there is no concrete evidence that she or her accomplices participated in the murder. The areas of doubt are four-fold. Firstly, the murder is said to have occurred on 2nd September 2018. However, from the evidence of the deceased’s father (PW1), the deceased must have visited their house in Huruma the following day. Only the two of them had keys to it; and, it was clear the food he left behind “had been eaten and utensils washed” and the door locked.

34. Secondly, the deceased had long dropped out at Kenyatta University. When PW1 enquired at the college, he was shocked to learn that the deceased, who was meant to be in 4th year, had stopped studies in 2nd year. He said the deceased would pretend to be heading out to college and return in the evening. No one knows for sure where he was going or what he did with his time.

35. Thirdly, there is the bus ticket found in his trousers during the postmortem (exhibit 5). It showed that prior to discovery of his body, he boarded a vehicle or paid fare from Nairobi to Ikutha on a public bus operated by Mbukoni Service Limited. Beyond the ticket, there was no direct evidence that he is the one who travelled on that bus on that day. The point to be made is that he may have been alive well after 2nd September 2018.

36. Fourthly, his remains were found on 8th September 2018 lying in a thicket far away from Nairobi in a place known as Mutomo, Kitui County.

37. So much so that the accused may have had something to do with the death. But it remains only a strong suspicion. She may not have been candid about the matter. She may even have lied about getting the phone from Miwa. Like I stated, the last signal from that phone was traced to Kangema, Murangá Countyand has never been recovered. But it was for the state to prove the charge beyond reasonable doubt.

38. There is no reliable evidence connecting the accused to the actus reus or showing an intention to kill the deceased. The circumstantial evidence remains tenuous. The suspicions are based largely on mere possession of the deceased’s cell phone but unadorned with concrete evidence of committing the murder.

39. I have thus reached the conclusion that the entire corpus of circumstantial evidence does not irresistibly and exclusively point to the guilt of the accused. I cannot say with confidence that all the elements of the charge of murder have been laid out; or, at any rate that the accused, of malice aforethought killed the deceased.

40. I accordingly enter a finding of not guilty. The accused person is hereby acquitted.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF MARCH 2025. KANYI KIMONDOJUDGEJudgment read in open court in the presence of-Accused.Ms. P. Maina for the Republic instructed by the Office of the Director of Public Prosecutions.Ms. R. Ajiambo for the accused instructed by Ajiambo Luande & Company Advocates.Mr. E. Ombuna, Court Assistant.