Judgment Hcccrim No 57of 2016 JL Final

REPUBLIC OF KENYA
HIGH COURT AT NAIROBI

CRIMINAL CASE NO. 57 OF 2016
CORAM: LESIIT, J (IN OPEN COURT)
REPUBLIC ……………….………………….….….…….PROSECUTOR
VERSUS
FREDRICK OLE LELIMAN …………………….…......1ST ACCUSED

STEPHEN CHEBURET MOROGO ………..…….……2ND ACCUSED
SILVIA WANJIKU WANJOHI ………….………......3RD ACCUSED
LEONARD MAINA MWANGI …………………………4TH ACCUSED
PETER NGUGI KAMAU alias Brown.……..……….5TH ACCUSED
JUDGMENT
THE INFORMATION
1. The five (5) accused persons have been charged with three
counts of MURDER of three (3) persons namely Willy Kimani
Kinuthia, an advocate & human rights crusader working with
1 HCCR. CASE NO. 57 OF 2016

International Justice Mission (IJM), hereinafter the 1st
deceased, one Josephat Mwenda Mwathi, who was a client of
1st deceased and previously a bodaboda rider in Mlolongo area,
hereinafter the 2nd deceased, and one Joseph Muiruri, who was
a taxi operator and who had been hired by IJM to ferry the 1st
and 2nd deceased to Mavoko law courts on the 23rd June 2016,
hereinafter the 3rd deceased.
2. The information that arraigned the five accused persons
before the High Court provided as follows:
“Murder contrary to section 203 as read with
section 204 of the Penal Code, Laws of Kenya.
The particulars of the three counts are as
follows:
Count 1
1. Fredrick Ole Leliman, 2. Stephen Cheburet

Morogo, 3. Silvia Wanjiku Wanjohi, 4.
Leonard Maina Mwangi and 5. Peter Ngugi
Kamau alias Brown:
On the night of 23rd and 24th June, 2016 at

Soweto Area in Mlolongo within Machakos
County jointly with others not before court
murdered WILLY KIMANI KINUTHIA.

Count 2

Leonard Maina Mwangi and 5, Peter Ngugi
Kamau alias Brown:

murdered JOSEPHAT MWENDA MWATHI.
Count 3

Leonard Maina Mwangi and 5, Peter Ngugi
Kamau alias Brown:

murdered JOSEPH THINKURI MUIRURI.
THE TAKE OVER OF THE TRIAL
3. It is important to mention that I took over this case on the

14th February, 2017 from Hon. Sitati, J (as she then was) who
had heard two witnesses, and commenced hearing from where
her honour had left off the case with the consent of all the
parties. In this case this court has made a record five
substantive rulings, one of which was on a novel area of law
which was cited with approval by the Court of Appeal (Joseph
Lentrix Waswa Vs. Republic) sitting in Kisumu, as it
considered a similar application, and out of which an appeal
was made to the Supreme Court.
THE ACCUSED
4. Getting back to the judgment, let me set out who are charged
in this matter. The 1st to 4th accused persons were all
Administration Police officers, the 1st and 4th accused stationed
at Mlolongo Police Station, and 2nd and 3rd accused stationed
at Syokimau Administration Police Camp. The 1st accused was
the leader of the Spiv Unit, where he worked with the 4th
accused, PW26, one PC Waweru and one PC Mwaniki. The 2nd
and 3rd accused persons performed general duties at
Syokimau Police post. On the week the incident took place,
the 2nd accused was the one in-charge of Duty at the Post. IP
Cheboi, not called as a witness was the officer in charge of the
Syokimau Police Post.
5. The 5th accused was a businessman in Waithaka dealing in
clothes, and a civilian who doubled up as a police informer,
and one who worked closely with the OCS Mlolongo, Chief
Inspector Lelei, in the latter’s previous postings before joining
Mlolongo Police Station in the same capacity.
COUNSELS IN THE CASE
6. The lead Prosecution Counsel in this matter was Mr. Nicholas

Mutuku learned counsel, who was assisted for the most part
by Ms. Mbula Rubia learned counsel. For the 1st and 2nd
accused was learned counsel Mr. Cliff Ombetta; for the 3rd
accused for the most part was learned counsel Mr. Katwa
Kigen; for the 4th accused was learned counsel Mr. Mochere,
and for the 5th accused was learned counsel Mrs. Nellius
Kinyori, and subsequently the defence of the 5th accused was
taken over by learned counsel Mr. Kevin Michuki, who came in
after the evidence of PW38. On the side of victims, we had
Senior Counsel Dr. Fred Ojiambo, while learned counsels Prof.
Ben Sihanya and Mr. Stephen Ongaro represented the Law
Society of Kenya and victims, and learned counsel Ms.
Muchemi held a watching brief for International Justice
Missions.
WITNESSES CALLED
7. In all, the prosecution called 46 witnesses, and an additional

number for the Trial-within-trial held to determine
admissibility of P. Exh. 90 that was a statement under inquiry
confession by the 5th accused, which he retracted at the trial.
The prosecution produced 117 exhibits. On the defence side,
in total 14 witnesses testified, inclusive of the accused
persons.

THE PROSECUTION CASE
8. PW41 CI Owino was based at the Flying Squad, at Nairobi area

on the 24th June 2016 when officers from IJM, PW13, PW1 and
PW7 visited the Station. He stated that upon receiving their
report, in consultation with his seniors, he was given the duty
to Head the Investigations into the Missing Person’s Report.
He stated that for purposes of speed and efficiency he formed
a syndicate of 3 teams.
9. One Team was led by IP Chemelil (PW36) assisted by CPL Ole
Sena (PW44). PW44 was an investigator in Cyper
Investigations with DCI with training in that area. The
mandate of the two officers was to do the call Data Analysis
and Cell Site Analysis. That involved analyzing data captured
at the various sites, and were to follow up with the Police
Integrity Command and Control Centre, IC3 that was capable
of analyzing Movements through data.
10. The Second syndicate was headed by CPL Mucheru (PW14)
and PC Serem (PW28). They were to handle Crime Scene
Management. They were to handle all the scenes right from
onset of investigations. They were to assist in directing what
should be done at every scene. PC Serem was from Crime
Scene Services and took photos and measurements of various
scenes.
11. The third syndicate was headed by PW41 and he worked with
officers including IP Makoma, PC Tanui. Their responsibility
was to ensure statements of persons who came into contact

with the deceased were recorded and analyzed for evidential
value.
12. The gist of the prosecution case is that the 1st accused had a
personal vendetta against the 2nd deceased who had reported
him to the Independent Police Oversight Agency (IPOA) and
was relentless in pursuit of the complaint. It is the prosecution
case that in order to intimidate the 2nd deceased, the 1st
accused had the 2nd deceased arrested and in two of those
occasions, had him charged before court. The cases registered
against him were two. These were Mavoko Criminal Case No.
226 of 2015, Case File P. Exh. 1a, and the charge sheet P. Exh
1b; and Mavoko Traffic Case No. 1650 of 2015, Case File P.
Exh. 2a, and the charge sheet P. Exh 2b, both before Mavoko
Principal Magistrates Court. In both cases the 1st accused was
a key witness. By the time the deceased persons died, these
two cases were still pending before Principle Magistrates’
Court, Mavoko.
13. The prosecution case is that on the 23rd day of June 2016 when
the 2nd deceased was set to attend his hearing in the traffic
case, the five accused persons connived to have the 2nd
deceased arrested. In the process of arresting him, the 1st and
3rd deceased who were in the company of the 2nd deceased at
the time were equally arrested. It is the case of the
prosecution that the three deceased were locked up at
Syokimau Administration Police Post, also known as Syokimau
Administration Chiefs Camp, (hereinafter the Post) at a time
when the 2nd accused was in charge, and the 3rd accused was
on duty as Cell Sentry and the Report Office personnel of the
Post. It is the prosecution’s case that the three arrested
persons were later removed from the Post and taken to an
open field in Soweto, in Mlolongo where they were murdered,
and that their bodies were ferried through Thika Superhighway
to Ol Donyo Sabuk in Kilimambogo area, Machakos County,
and their bodies disposed by dumping over a bridge into River
Athi.
14. The bodies were seen inside the river by PW23, a diver and
farmer along the banks of River Athi, in Kilimambogo. PW23
was bathing along the riverbank on the 29th June 2016 when
he saw human legs one hundred meters inside the river. A
report he made at Donyo Sabuk Police Station did not yield
any action from the police that day. The police went to the
scene the following day, 30th June 2016. On 30th June 2016,
the two bodies of the 1st and 3rd deceased were retrieved from
the River Athi, with the help of PW23 and his neighbor, David
Gatombi. The third body, of the 2nd deceased was recovered
from the same river on the 1st July 2016. Upon post mortem,
the pathologist opined that the deceased had succumbed to
injuries inflicted by blunt force trauma and strangulation.
15. The prosecution relied on a Note, P.Exh.7 thrown from a
container at the Post as proof that the three deceased had
been held at the Post on 23rd June, 2016. The prosecution also
relied on radio and phone data, as well as Number Plate
Recognition data, with which they demonstrated the

movement and involvement of the accused persons in the
murder of the deceased.
16. The prosecution relied on a Statement under Inquiry, P. exh.
90, recorded from the 5th accused by PW38 on 9th August
2016. In that Statement was a confession by the 5th accused
speaking of a syndicated conspiracy of the planning and
execution of the three deceased. The statement discusses how
the OCS Mlolongo, CIP Lelei introduced the 5th accused to the
1st accused as member of Spiv Team at Mlolongo. That in early
May 2016, while the 5th accused was at Mlolongo Police
Canteen, the 1st accused approached him and told him he
needed his assistance but did not disclose the nature of the
assistance required until end of May 2016.
17. He stated that the 1st accused called him on phone and they
planned to meet at Connections Bar, Mlolongo. That is when
he told him of a situation where he shot and injured a man on
a motor cycle, and that the man was pushing for him to be
sacked and jailed, with the help of IPOA. That is how the
murder was choreographed. The role the 5th accused was to
play was to track the 2nd deceased within Mavoko Law Court
on 23rd June 2016, where the 2nd deceased was attending the
hearing of the case against him. The Statement discloses the
entire coordination in executing the plot, the court
attendance; the kidnap at a railway crossing; their detention
at Syokimau Post; the disposal of the vehicle in which the
deceased were traveling in; the discarding of the cell phones
of the deceased; the drive to Soweto open field; the murders
and the drive to Athi River where the bodies were thrown over
the bridge into River Athi.
THE DEFENCE CASE
18. All five accused persons were placed on their defence, and
each of them gave their defences with some calling witnesses.
19. The 1st accused was DW13 in the defence case. In his sworn
defence he denied any involvement in the planning or
execution of the murder of the deceased, or in the disposal of
their bodies. He testified that between midnight on 22nd June
to 10am on 23rd June 2016, he was at his house at Valley View
Estate. He gave details of how he spent his day on 23rd June,
trying to help his sister-in-law, DW15, get a transfer, by
approaching his senior DW14, to escort him and his sister-in-
law to their boss at Uhuru Camp, to assist. The 1st accused
and his sister-in-law DW15 hooked up at few minutes to 11am
and together went to meet with DW14 at Uhuru Camp, where
they arrived at 11:27am. He testified that they remained there
together until 1:11pm when he returned to Mlolongo Police
Station. He then picked his wife, DW16 for lunch and between
13:54 to 15:54 hours they were at home at Valley View Estate.
He then left for Mlolongo Police Station and after meeting SSP
Matu, DW10, returned home at 2000hours.
20. The testimonies of DW14 and DW15 confirmed the visit to
Uhuru Camp on the morning of 23rd June 2016, and the time
they parted, as per the defence evidence of the 1st accused.
DW16 the wife of the 1st accused confirmed spending the
afternoon with him, first by picking her and proceeding to their
home for lunch at Valley View Estate.
21. The 1st accused stated that he was using the police
radiophone, P. Exh. 35, on the 23rd June 2016. He explained
that the Spiv Team radio phone, P. exh. 25 was not assigned
to him personally but could be used by any officer in the team.
He stated that he was using the radiophone P. Exh. 35 on the
22nd June but left it charging at the Police Station. That when
he did not find it, he took P.exh. 25 from the charger where it
was charging. He explained that he did use the police
radiophone, P. exh. 25 to call his radiophone, as he did not
know its number, but decided to use it instead. He stated that
he stayed with P. Exh 25 for three days, including the date of
his arrest on 1st July 2016 when it was seized by Flying Squad
from him. He stated that at the time of his arrest he was
carrying an official pistol, and that he had proceeded to Flying
Squad offices where he had been summoned, using his
personal vehicle KBX 479G. DW10 in cross examination
informed the court that he issued the 1st accused with the
police radio, P. Exh. 35 as he posted him to Mlolongo Police
Station after his transfer to Athi River Sub-Counter.
22. The 1st accused testified that he met Josphat Mwenda for the
first time on 10th April 2015 when he was called by the OCS,
CIP Moses Wambugu to go for Patrol. That while on patrol that
day, the OCS had received a message from village elders that
there was a place youth were meeting to play cards. That the
report said the youth became pick pocketers in the evenings.
That the OCS alerted him and the other police officers when
the youth started the card’s game, to go and apprehend them
at around 3pm. He testified that while there on that
assignment, the 2nd deceased defied his orders to drop his
knife, which he had lifted up as he advanced towards CPL Jane
Ngige intending to attack her. That it was at that time that he
shot him once on the right wrist joint. He testified that he later
took him to hospital for treatment. He said that the 2nd
deceased was charged for that incident. That at a later date
he was charged with traffic offences after he, the 1st accused,
and other officers found him riding a motor cycle with three
pillion riders, without a helmet, reflector jacket among other
offences, for which he was also charged.
23. DW12 was CIP Robert Sugut OCS Makindu Police Station. He
was called by the 1st accused and he produced the OBs for
Makindu Police Station and Kiboko Police Post covering 23rd
and 24th June 2016, as well as the Cell Registers for Makindu
Police Station and Kiboko Police Post. He stated that Kiboko
was a Police Post under Makindu Police Station. The OB. No.
17 of 24th June 2016 confirms that at 12:07 hours one prisoner
was collected by Senior Sgt Fredrick Leliman and CPL Richard
Nyakundi of Mlolongo Police Station.
24. The 2nd accused gave an unsworn defence. He was DW1. He
accounted for his movements on the 23rd June 2016. He said
that he left the Post for Athi River for personal work from 8am.
That he proceeded to meet with the 3rd accused at City
Cabanas from around 11am to 12:30pm, where they had gone
to see whether the 3rd accused could purchase a cooker. That
after they returned to the Post, he went to sleep as he was
bereaved. He testified that he did not see or hear of anything
unbecoming at the Post. He did not call any witness.
25. The 3rd accused gave an unsworn defence. She was DW2. She
repeated same evidence as the 2nd accused about their visit to
City Cabanas to check on a cooker. She stated that since she
was alone on duty at the Post, she left the Station in the hands
of PW18 between 11am to 12:30pm. That thereafter she
remained at the Station until 6pm. That she handed over the
keys to the cells and the armory to PW21 and left the Post just
after 6:30pm to her place of business. She said that she did
not see anything unusual at the Post, nor see anyone brought,
held or removed from cells that whole day. She called two
witnesses.
26. Her witness, DW3 testified that on 23rd June, 2016 he met
Sylvia outside the Post waiting for a motor cycle at 6.40 pm.
That he was driving motor vehicle KBJ 038C Mark II Toyota in
which he gave her a lift. He testified that he dropped the 3rd
accused off at Mlolongo at 7.10pm. DW4, Corporal Faith, was
the second witness called by the 3rd accused. She identified
the exit entry she made in the OB no. 4 of 23rd June 2016 at
1700 hours, after reporting off duty as day guard at Unitas
Bank, Mlolongo. She testified that the officer on duty at the
Report Office Desk at the Post that day was the 3rd accused.
She stated that when she went to the Report Office at 5 pm,
she did not find Sylvia at the Report desk where the OB was.
She stated that OB no. 5 of 23rd June 2016 has an entry by
the 3rd accused at 1800 hours, which was entered immediately
after hers. She said that when she looked at the OB, she did
not see any entry of persons having been taken to the Post,
nor was she informed of any one who had been brought in.
She testified that it was possible to see people in the cells from
the Report Office where the OB was kept, but that on that
evening she did not see any one in the cells.
27. DW5 Corporal Catherine Mutisya was sent by OCS Mlolongo
Police Station, one CIP Joakim Kangangi, to produce the
Occurrence book for the station that had been requested by
Cliff Ombetta. It covered the period including 24th June 2016.
28. The 4th accused gave a sworn defence and called six witnesses.
He was DW6. His defence was that he got permission to leave
the station for purposes of visiting his family from the evening
of 22nd June, 2016 and that he returned to his work Station at
Mlolongo Police Station on 27th June 2016. He identified P.
exhibit 111 as the Matching Orders, signed by the Ward
Commander of the Area which included the Post and Mlolongo
Police Station, IP Cheboi, as proof he was given permission to
be away.
29. The 4th accused gave details of how he spent the day of 23rd
June 2016, within Ruiru and Thika. He said that that morning
he was at Murera Farm, Ruiru, where his house was. He said
that after establishing that IP Gitonga. DW8, who was to take
him to his house construction site was on his way from Nairobi
to meet him, he left his house at 1:03pm. They met, visited
his site, then had lunch and parted at 3:30pm. He testified
that he left for Thika Town where he met DW9 Julius Muiru at
4:50pm. After parting with him at 6:10pm, he called the sister
of DW9 who is DW11, and met her in the same evening at
Thika Town.
30. DW7 was wife of the 4th accused. She confirmed that he went
home on the evening of 22nd June, 2016 and remained there
until 27th June 2016. That she left him home every morning as
she went to work, and every evening she met him at home
after her work. On the other hand, DW8 said he was with the
4th accused at Ruiru on the 23rd June 2016, from around 1pm
and that they parted at around 3pm. DW9 and DW11, the
siblings confirmed being with the 4th accused on 23rd June,
2016 at different times between 5pm and 6pm.
31. DW10 was Commissioner of Police, and was Sub-County Head
of the Administration Police Formation within Athi River, which
covered the Post and Mlolongo Police Station. DW10 confirmed
that the 4th accused was from the Administration Police
Formation attached to Mlolongo Police Station. This witness
confirmed that the Matching Order P. Exh. 111 was signed by
IP Cheboi as the senior officer in charge of Administration
Officers at the Post, and at Mlolongo Police Station, and was
therefore a genuine document. DW10 stated that prior to
issuing the Matching Order, IP Cheboi had called him over the
request by the 4th accused to be off work for five days from
22nd June 2016, and that he gave permission, empowering IP
Cheboi to issue and sign the Matching Order, P. exh. 111.
32. The 5th accused gave a sworn defence. He was DW17. In his
defence the 5th accused stated that he was a police informer
and also a businessman. He said that he knew PW26, PC
Kamau because the OCS Lelei gave Kamau his number. He
said that Lelei also gave him Kamau’s phone number and told
him that if he ever needed the OCS but he was not available,
he could call Kamau. This was happening on the second week
of June 2016.
33. He stated that on 23rd June 2016, he proceeded to Mlolongo
intending to sell jeans to Kamau. He reached there at 8:30
a.m. at the upper stage. That as he did not reach Kamau on
phone as his phone was off, he proceeded to the station where
he found him with Waingo, also a police officer and one
Kamenju a police officer.
34. The 5th accused stated that Kamau gave him an assignment
to track a ‘Kamwizi’, a thief who was going to Mavoko Law
Courts that morning. He was supposed to keep tracks of him
and to keep reporting back to Kamau. The 5th accused stated
that he kept track of the three deceased as required of him,
and that at around 11am or 12pm he saw the three deceased
persons leaving court hurriedly. He reported this to Kamau.
He said that he was picked up by one Brown at Mavoko Court.
That later that day while in a vehicle NZE at Mlolongo, near
the weighbridge, he saw the vehicle the deceased persons had
driven off in from Mavoko Law Court. He testified that he noted
that the deceased were not in the vehicle, rather it was one
Kamenju in the car.
35. The 5th accused stated that he was told to take that vehicle to
Limuru, and that he was also given a radiophone. That he took
the vehicle all the way to Limuru. He later received a call
requesting him to go to Mlolongo to receive a reward for the
work he had done.
36. He told court that Kamau told him to proceed to Kwa Muthee’s
bar, past Mulley’s Supermarket. He proceeded there and found
Kamau with Waingo, Kamenju and Brown. It was 6:30 pm or
so. That at the bar, Kamau gave him a car key and told me to
get money in an envelope inside the car described to him,
which he did. He got the money. That when he went back to
Muthee’s, he found Kamau and company had ordered meat.
37. That in half an hour or forty-five minutes a police man came
panting. That he told Kamau that those people he ‘dropped
there had called’. That upon getting the information from one
Mwaniki, Kamau, Waingo, Mwaniki and Brown left quickly.
That they did not get back. That at past 9 pm he was directed
to proceed to a certain area where he walked and found a
vehicle with hazard lights on as he had been informed. He
found Kamau with Kamenju, Brown, Waweru and Mwanikil.
They were standing but not together.
38. He testified that Kamau asked him to sit inside the car, which
he did. That he did not know where the thieves were, but that
he was told they would go to Thika. That there were two
vehicles and all of them were seven. He was told he would be
one of the drivers, and that he would travel with Kamenju and
Brown because they were the cigarette smokers. The other car
was carrying Kamau, Waweru, Waingo and Mwaniki. That
before they left the bushy place, Kamau’s vehicle went ahead
of theirs. The vehicle stopped near a tarmac road and he
stopped behind it; that it was where senior, the 1st accused
Leliman brought them money to purchase fuel. That he gave
Kamau the money because he was driving a station vehicle.
That they proceeded to Thika, drove past the Town to a place
he had never been before. That they left tarmac and joined a
stony road in a bushy place.That they stopped by the bridge,
opened the boots of the two vehicles and he saw the others
with him removing heavy gunny bags from the boot of the two
vehicles. That the gunny bags were thrown into the river below
over the bridge. He described the gunny bags as long and
heavy luggage. He testified that he was told to turn the
vehicle, and that they returned to Mlolongo the same way they
left, arriving there at 4am. He said that they went to where he
later learnt was the 1st accused bar where he bought them a
lot of roast meat and alcohol. That he drank until he passed
out, waking up many hours later, at 10am.
39. In cross examination by the State, the 5th accused told court
that on the morning of 23rd June 2016, Kamau called him at
6am, asking him to go to Mlolongo to meet him. That on
arriving there, Kamau gave him his airtel number
0723033635, saying his safaricom number was down, and
that he used his phone number 0727433431 to communicate
with Kamau. He was given an assignment by Kamau, and it
involved tracking the three deceased at Mavoko Law Courts.
That he and Kamau left Mlolongo Police Station in the company
of Kamenju and Waingo, both police officers. He testified that
Kamau was calling another person within the courts after
which he would call him, as they tracked the deceased within
the court precincts. In cross examination the 5th accused
admitted that as his phone data showed, he went to Mlolongo
between 22nd and 30th June 2016.
40. In cross examination by the counsel for the LSK and victims,
the 5th accused said that he was not denying that he was
involved in the murders of the deceased but that he was
saying that he was being used and that by that time he did
not know what was happening, and that he deeply regretted
what happened. He said that he was so relieved after releasing
the information to court as it has been such a heavy burden in
his heart.
41. In cross examination by the counsel for the 1st and 2nd
accused, the 5th accused testified that he and police came up
with a story which is what was reduced to the confession. He
said that he was promised by PW44 and PW45 to be made
state witness; and, a salary of Kshs. 30,000/= per month,
house rent and Kshs 200,000/= to move his wife’s business.
42. The 5th accused testified that on 8th November 2021 he came
to court for a session, that the 1st accused gave him 15, 000/=
as inducement that he does not mention the name of the 1st
accused in connection with the murders. The 5th accused said
that he ate lunch with 1000/= and surrendered 14, 000/= on
return to prison. The 5th accused called DW19, a
Superintendent of Prisons in Documentation Section Naivasha
Maximum Prison who receives and keeps cash from prisoners.
DW19 testified that the Entry of 8th November 2021 cash on
ADM. shows that 14,000/= was received from the 5th accused
on re-admission to prison from court that day.
43. Mr. Ombetta recalled the 1st accused who gave evidence
denying giving any such money to the 5th accused.
44. I have considered the entire evidence adduced in this case,
both by the prosecution and the defence; together with the
submissions of counsel for the State, the defence, and the
counsel for victims, the digest of cases cited, and the list and
bundle of authorities. Unfortunately, due to bereavement, Dr.
Fred Ojiambo, SC, counsel for victims was unable to file any
submissions in the case.
INGREDIENTS FOR THE OFFENCE OF MURDER
45. The accused persons are charged with three counts of Murder
contrary to section 203 of the Penal Code. Section 203
defines the offence of murder as:
”Any person who of malice aforethought
causes death of another person by an unlawful
act or omission is guilty of murder.”
46. The offence of murder constitutes four ingredients:

i. That the deceased died;
ii. That their death was unlawful;

iii. That at the time the accused committed the act
or made the omission which caused the death
of the deceased, the accused had formed the
necessary intention to cause the death or
grievous harm of the deceased;
iv. That the evidence on record establishes a

nexus between the death of the deceased and
the unlawful act or omission of the accused
that caused death.
47. There are five accused persons charged with this offence. The
prosecution has the burden to establish that the accused
persons acted in one common intention or joint concert to
commit this offence.
48. Malice aforethought is an integral ingredient for the offence of
Murder. It is a technical term associated with the state of mind
of the accused charged with the offence of murder, as at the
time the act or omission which caused death was executed.
The prosecution must prove that the act(s) or omission(s) of
the accused that caused death were actuated by malice. The
circumstances that constitute malice aforethought are set out
under Section 206 of the Penal Code as follows:

“Malice aforethought shall be deemed to be
established by evidence proving any one or
more of the following circumstances—
(a) An intention to cause the death of or to do

grievous harm to any person, whether that
person is the person actually killed or not,
(b) Knowledge that the act or omission causing

death will probably cause the death of or
grievous harm to some person, whether that
person is the person actually killed or not,
although such knowledge is accompanied by
indifference whether death or grievous bodily
harm is caused or not, or by a wish that it may
not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate

the flight or escape from custody of any
person who has committed or attempted to
commit a felony.”

49. As for the burden of proof, it is a principle of law entrenched
in the Constitution under Article 50 (2) (a) that an accused
person is presumed to be innocent until the contrary is proved.
That burden of proof lies with the prosecution, while the
standard of proof required is one beyond any reasonable
doubt. Under the Evidence Act, under Section 107 (1) provides
thus:
“Whoever desires any court to give judgment
as to any right or liability dependent on the
existence of facts which he asserts, must
prove those facts exist.”
50. As to what constitutes proof beyond reasonable doubt the case

of Miller v Minister of Pensions [1947] 2 ALL ER 372 ,
per Lord Denning:
“That degree is well settled. It needs not reach
certainty, but it must carry a high degree of
probability. Proof beyond a reasonable doubt
does not mean proof beyond the shadow of
doubt. The law would prevail to protect the
community if it admitted fanciful possibilities
to deflect the course of justice. If the evidence
is so strong against a man as to leave only a
remote possibility of his favour which can be
dismissed with the sentence of course it is
doubt but nothing short of that will suffice.”

ISSUES FOR DETERMINATION
51. The onus and evidential burden lies with the prosecution to
prove their case against the accused persons beyond any
reasonable doubt. Upon considering the evidence adduced by
both parties in this case and the submissions by counsel, I find
that the issues which are for determination are:
i) Whether this court is corum non judice, or put
simply, whether this court lacks jurisdiction to
conclude the trial on account of appointment
to a higher bench before the trial was
finalized;
ii) Whether the DNA analysis Report by the

government Chemist should be rejected for
non-compliance with Section 122A of the
Penal Code;
iii) Whether the retracted confession of the 5th

accused has any probative value, and if so, to
what effect;
iv) Whether the prosecution has proved motive;

v) Whether the prosecution has established that
the accused persons had formed the necessary
malice aforethought to commit murder;
vi) Whether the prosecution has established that

the accused persons acted with one common
intention or concert to commit the offence;
vii) Whether the circumstantial evidence adduced

was sufficient to lead to a conclusion that the
accused persons murdered the deceased
persons;
viii) Whether the alibi defence put forward by the

accused persons holds;
52. I will deal with the issues arising in this case in no specific
order, alongside the other matters presenting themselves for
consideration arising from the submissions of counsel and the
evidence. The prosecution has not adduced any eyewitness
account of the murders, as none of their witnesses saw the
offences being committed, except for the account in the
retracted confession of the 5th accused.
CORAM NON JUDICE

53. As to whether this court lacked jurisdiction to conclude the
trial because of appointment to a higher bench. The counsel
for the 5th accused, Mr. Michuki raised this issue after the close
of the entire case, as part of his final submissions. Mr. Michuki
submitted that this court lacks jurisdiction over the subject
matter based on the presiding judge’s appointment as Judge
of the Court of Appeal, pursuant to Gazette Notice No. 5233
Of 3rd June, 2021; and the swearing into office. He placed
reliance on the Court of Appeal decision of Karisa Chengo &
2 others v Rep [2015] eKLR in regard to the effect of
gazette notice and oath of office upon appointment as judge.
54. While acknowledging that the law was silent as to which court
could try murder charges, Mr. Michuki urged that murder is
only tried in High Court as a practice and custom, in exercise
of its original jurisdiction. He stated that the jurisdiction of
Court of Appeal is to hear appeals from courts below it, and
from any other tribunal as prescribed by an Act of Parliament.
He cited the Supreme Court Case of Republic v Karisa
Chengo & 2 others [2017] eKLR where the court held:
“The jurisdiction of the court of appeal, we

further note and as founded on Art 164(3) of
the court is ‘to hear appeals from (a) the High
Court, and (b) any other court or tribunal’ as
prescribed by an Act of Parliament. The result
of the above local and comparative analysis is
that a particular judge undertakes to perform

stewardship of the particular office in respect
of which he or she takes the oath, and not a
different office.”
55. Counsel urged that when I was appointed a judge of the Court
of Appeal on 3rd June, 2021, I started exercising the powers
inherent in that role as envisioned by the Constitution. He
urged further that I was previously a judge of the High Court
during the tenure of which I commenced hearing of the instant
case. He questioned whether I could concurrently exercise the
powers of both offices, and urged that it appeared readily
apparent that appointment to the office of the judge of Court
of Appeal automatically repealed the previous appointment as
a judge of the High Court by necessary implication. He cited R
(Morgan Grenfell& Co Ltd) v Special Commissioner of
Income Tax & Another [2003] IAC 563 on what
constitutes necessary implication to wit:
“A necessary implication is one which

necessarily follows from the express
provisions of the [Constitution] construed in
their context … a necessary implication is a
matter of express language and logic not
interpretation.”
56. Counsel also relied on Joel Nyambuto Omwenga & 2

others v IEBC & another [2014] eKLR for the proposition
that courts are, and can exercise only such powers as are

vested on them by the Constitution and Statutes and no other.
Counsel took a swipe at the actions of the Chief Justice to
confer jurisdiction administratively, which counsel urged was
and still is ultra vires the powers of the office. For that
proposition he cited the Supreme Court of Kenya case of
Republic v Karisa Chengo Supra, where the Supreme Court
observed:
“It is only after the appointments have taken

place, that the Chief Justice exercised his
general administrative powers over the
judiciary such power being … to tasks such as
the empaneling of judges within the courts to
which they belong.”
57. And answering his own question of which was the appropriate
time to raise the issue of jurisdiction, Mr. Michuki urged that
it was a fundamental issue in the proceedings and could be
raised at any point in the proceedings. Counsel cited The
Owners of Motor Vessel ‘Globe Your’ [1998] eKLR, for
the proposition that the issue of jurisdiction cannot be belated
but can be raised at submissions stage of the proceedings,
including on appeal.
58. On the issue of jurisdiction raised by Mr. Michuki for the 5th
accused, it was the submissions of Mr. Mutuku learned counsel
for the State that raising the issue in the final submissions was
in bad faith and an attempt to delay further the conclusion of
this matter and avoid culpability. Counsel urged that when the
court mentioned the case on 1st July 2021, almost a month
after taking the oath of office to the Court of Appeal, the
parties were informed of the letter given at the hand of the
Hon. the Chief Justice Martha Koome. In that letter, the Hon.
the Chief Justice gave directions that all those judges who had
been elevated from the High Court to the Court of Appeal, who
had partly heard cases advanced in nature pending before
them to finalize them. Counsel urged that it is at that time
the issues of jurisdiction ought to have been raised.
59. Mr. Mutuku urged that by not raising coram non judice at that
juncture, it is deemed that the matter proceeded by consent
of all parties, and the 5th accused effectively acquiesced his
right to raise that issue. As to reliance on the Supreme Court
decision of Republic vs. Karisa Chengo, Supra Mr. Mutuku
urged the court to distinguish it as it was not applicable. He
urged that the issue before the Supreme Court was whether a
bench constituted of judges of the High Court, Environment
and Land Court, and Employment and Labour Relations Court
had jurisdiction to sit in any and/or all of the three Courts.
60. Regarding this case, Mr. Mutuku urged that at the time of
elevation to the Court of Appeal bench, this court had heard
42 prosecution witnesses with two prosecution witnesses
remaining to close of the prosecution case. It was his
submission that this court’s ascension to the Court of Appeal
did not rob the court of the unlimited original jurisdiction to
conclude this matter.

61. Mr. Mutuku urged that this was not a new occurrence in
Kenya’s history in the administration of criminal justice. He
drew court’s attention to the 6th Announcement of the Judges
and Magistrates Vetting Board dated 15th January 2013 by
Sharad Rao Chairperson of the Board touching on
Determination Number five of the Board. [A post 2010
occurrence]. Counsel gave example of two judges appointed
to higher benches from the High Court in 2011 and 2012, who
sought for and obtained leave from the Chief Justice to be off
the Cause list of the higher courts in order to finalize their
pending matters in the High Court.
62. Regarding the submissions that the administrative actions of
the Hon. Chief Justice conferred jurisdiction, and that the
same was ultra vires the powers of her office, Mr. Mutuku
learned counsel submitted that the position was contrary.
Citing Section 16 (a), (c) and (e) of the High Court
(Organization and Administration) Act No. 27 of 2015,
counsel urged that the Chief Justice exercises discretion under
the Judicial Service Act No. 1 of 2011, which includes
exercise of general directions and control over the judiciary
under Section 5 (2) (c) of the Act. Counsel stated that the
directions to this court to conclude this matter was within the
law and in compliance with Article 159 (2) (a), (b), (c) and
(d) of the Constitution.
63. Learned counsel Mr. Mutuku urged that this matter is of huge
public interest, at an advanced stage with 46 witnesses having
testified and 117 exhibits produced. That all five accused
testified and called 14 witnesses and produced 34 exhibits.
That the matter has taken a period of five and a half years
since the accused took plea, and that therefore it is in the
interest of justice for this court to conclude the matter.
Counsel urged that in the interest of justice and timely
dispensation of the matter, the 5th accused stood to suffer no
prejudice.
64. Mr. Mutuku urged the court to invoke Section 42 of the
Interpretation and General Principles Act and find that
the law could not have intended to fetter the hands of a judge
to complete a matter in which he/she was seized just before
promotion to a higher court. He urged that the elevation of a
judicial officer to a higher bench could not truncate judicial
authority. He urged that this court had both the legal and
administrative mandate to continue with the matter up to its
logical conclusion, and as directed by the Hon. the Chief
Justice.
65. I have considered the submission of learned counsel, Mr.
Michuki and Mr. Mutuku, on the issue of coram non judice. The
arguments of Mr. Michuki are that after this court heard the
entire case, it ceased to have jurisdiction to write judgment on
grounds it had since taken oath to serve in a higher bench. He
quoted no legal provision to support that position. At the same
time, he acknowledged that there was no law that spelt out
which court had jurisdiction to hear murder cases, stating that
indeed, the jurisdiction of the High Court to hear such cases

was out of practice and custom, in exercise of its original
jurisdiction.
66. If I heard Mr. Michuki well, he was at a loss whether the law
supports the trial of murder cases by the High Court. In other
words, I did not have jurisdiction to hear the case in the first
place. He is not alone in that dilemma. The issue of the
jurisdiction of the High Court to hold murder trials was the
subject in Charles Henry Nyaoke v Cabinet Secretary,
Ministry of Interior and Co-ordination of National
Government & 4 others [2020] eKLR [High Court
Petition No. 7 of 2018]. [a bench of three judges in which I
was Presiding Judge]The Court observed:
87…. As regards criminal cases, the Criminal

Procedure Code sets out further jurisdiction of
the High Court, in the exercise of its original
jurisdiction, in criminal cases under Part II
titled “Powers of Courts.” It provides thus:
“4. Subject to this Code, an offence under the Penal

Code may be tried by the High Court or a
subordinate court by which offence is shown in the
fifth column of the first schedule to this Code to be
triable.
5(1). An offence under any law other than the Penal

Code shall where the court is not mentioned in that
behalf in that law, be tried by that court.

(2). Where no court is so mentioned, it may; subject
to this Code, be tried by the High Court, or by a
subordinate court by which the offence is shown in
the fifth column of the First Schedule to this code to
be triable.”
88. Under the fifth column of the First

Schedule of the Criminal Procedure Code, the
court which may try a person charged with
murder under Section 203 of the Penal Code is
not indicated.
91. We have carefully evaluated the rival

submissions made by the parties to this
petition in that regard. It was clear to us that
the parties herein are asking the court to
interpret Article 165(3)(c) of the Constitution
to determine the delineation of the jurisdiction
of the High Court in hearing and determining
criminal matters in exercise of its original
jurisdiction.
93. In the present petition, it is apparent to

this court that the assignment of jurisdiction
to the High Court to hear murder and treason
charges under the Penal Code under Section 4
and 5(2) of the Criminal Procedure Code may
appear to be arbitrary if the history and

context is not taken into consideration. For the
proper understanding why murder and
treason are currently the only charges that are
tried by the High Court in exercise of its
original jurisdiction, it is important for the
historical context to be set out…
105. Other than the statutory requirements

under the Criminal Procedure Code (the
majority of which have been repealed), it is
apparent that the trial of murder charges
before the High Court is a historical accident.”
67. The issue whether this court has jurisdiction to complete the
trial and write judgment calls for a holistic consideration of the
values and principles of the Constitution, as well as the
circumstances of the case and the parties, and public interest
if any. I do not ascribe to Mr. Michuki’s submission that it
appeared readily apparent that appointment to the office of
the judge of Court of Appeal automatically repealed the
previous appointment as a judge of the High Court by
necessary implication. To repeal means to revoke or rescind.
The definition of a repeal is the act of taking something back;
to reverse; abrogate; annul; invalidate; nullify; void; recant;
retract; take back; terminate, etcetera. In order to repeal an
appointment that had been gazetted, the same process would
have to be undertaken. It would have to be gazetted. It cannot
stand revoked by “necessary implication” as counsel
suggested or urged.
68. The Constitution 2010 did not provide transitional provisions
dictating or providing for what should happen to partly heard
matters before court where the presiding magistrate or judge
is elevated to a higher bench. It did not prescribe either
whether a judge elevated to a higher bench could finalize
pending matters. The Constitution is dead silent on this issue.
Does silence mean that the Constitution has ousted the
jurisdiction of a judge elevated to a higher bench to conclude
its cases upon elevation?
69. The principles applicable when interpreting the Articles of
the Constitution were succinctly stated by the court (E.
Mwita, J) in Jack Mukhongo & 12 Others -Vs- Attorney
General & 2 Others [2017] eKLR, where it was held that:
“[32.] This was reiterated in the case
of Institute of Social Accountability & Another
-vs- National Assembly & 4 Others, Petition
No. 71 of 2014 [2015] eKLR, where the court
stated:
‘The court is enjoined under Article 259 of the

Constitution to interpret the Constitution in a
manner that promotes its purpose value and
principles, advances the rule of law, human
rights and contributes to good governance. In
exercising its judicial authority, this court is
obliged under Article 259(2)(e) of the
Constitution to protect and promote the
purpose and principles of the Constitution.’
[33.] Where the constitutional validity of a

statute or statutory provision is challenged on
the grounds that it violates the Constitution, it
becomes imperative to ascertain the true
nature and character of the statute or
statutory provision concerned. In that regard
the court should ascertain the subject matter
of the statute, the area it is to operate, as well
as determine the purpose and intent of the
statute or statutory provision.
[34.] To do so, it is legitimate for the court to
take into account all factors such as the
history of the legislation, the purpose thereof,
the surrounding circumstances and the
conditions, the mischief which it intended to
suppress, the remedy for the disease which
the legislature intended to cure and the true
reason for the remedy, (BENGAL IMMUNITY
COMPANY LIMITED -VS- THE STATE OF BIHAR
[1954] SCR 73).”
70. The case of Joel Nyambuto Omwenga & 2 others v IEBC

& another [2014] eKLR cited by Mr. Michuki, learned
counsel for the 5th accused cannot apply to this case. This is
because the sole issue for determination in the cited case was
whether in the absence of an express provision of law allowing
a second appeal to the Court of Appeal from the High Court,
the Court of Appeal could rightfully, properly and lawfully hear
and determine the matter brought pursuant to Section 75(4)
of the Election’s Act. The Court of Appeal held it had no
jurisdiction because the Elections Act did not provide for a
second appeal on a point of law.
71. Likewise, In the Matter of an Application by the Owners
of Motor Vessel “Globe Your” (1998) eKLR cited by the
counsel for the 5th accused does not apply. The issue in that
case was whether the court had jurisdiction to entertain a
judicial review application filed outside the time expressly
provided for by the court.
72. I agree with Mr. Mutuku that the directions given by the Hon.
Chief Justice to the Judges appointed from the High Court to
the Court of Appeal, to complete their respective advanced
partly heard matters, was an administrative action that was
anchored in the law. Section 16 (a), (c) and (e) of the High
Court (Organization and Administration) Act No. 27 of
2015 provides:
“16. Role of the Chief Justice as the head of
Judiciary
The Chief Justice may issue practice directions and
written guidelines to judges and judicial
officers to—
(a) ensure the application of constitutional values
and principles;
(c) harmonize the judicial and administrative

functions of the Court;
(e) provide for any other matter affecting the

dignity, accessibility, effectiveness,
expeditious disposal of matters or the
functioning of the courts.” (emphasis mine)
73. Likewise, Section 5 of the Judicial Service Act is in tandem

with the High Court (Organization & Administration) Act.
It provides:
“5. Functions of the Chief Justice and the Deputy

Chief Justice
(1) The Chief Justice shall be the head of the

Judiciary and the President of the Supreme
Court and shall be the link between the
Judiciary and the other arms of Government.
(2) Despite the generality of subsection (1), the

Chief Justice shall—

(a) assign duties to the Deputy Chief Justice, the
President of the Court of Appeal, the Principal
Judge of the High Court and the Chief Registrar
of the Judiciary;
(b) ….
(c) exercise general direction and control over the

Judiciary.”[emphasis mine]
74. I do not want to appear to read the Hon. Chief Justice’s mind
when she gave the directions in issue. However, the lack of
any express guiding provision in the Constitution on the issue
must have been an integral reason for the action and direction
given by her Ladyship the Hon. Chief Justice. That the
Constitution was silent, thus the Head of the Judiciary
exercised statutory powers in the two Statutes quoted above
to guide that process. There can be no vacuum. There can be
no occasion for a vacuum that the courts of law will fold hands
and say there is nothing they can do because the law is silent.
This is why courts intervention in judicial review under the
doctrine of ex debito justitiae has the force of law.
75. I believe that the issue of hearing and disposal of cases, which
is the co-function of courts in this country, is a matter affecting
the dignity, the accessibility, the effectiveness, the expeditious
disposal of matters and the functioning of the courts. It also
has a great bearing on the application by courts of
constitutional values and principles. Every successive Chief
Justice, especially since the promulgation of the Constitution
2010, has enhanced the operationalization of the values and
principles of the Constitution, good governance and the rule
of law by framing visions. These visions shared by way of
Transformation Frameworks guide the co-function actors and
all support system actors in the judiciary on best practices that
guarantee optimal, effectual, expeditious and responsive
functioning of the Judiciary, and that protect and guarantee
access to justice to all. Even before the promulgation of the
current Constitution, every Chief Justice through Practice
Directions, Rules and Policies guided the processes of the
judiciary in order to be effective and intentional in giving
responsive and seamless service to all her clients, and
enhance administration of law. To that extent and in that
regard, the impugned Directions by the Hon. the Chief Justice
Martha Koome were not unique, unusual or novel.
76. The other important point to bear in mind is that the
Constitution 2010 is lauded as the accused person’s friendly
law and has been acclaimed as treating an accused person as
its most favoured child. The many protective provisions speak
to that. Under Article 50 it provides for fair hearing which
includes the right to have the trial begin and conclude without
unreasonable delay; Article 159 (2) (b) which reiterates the
same principle and emphasis it in these terms: Justice shall
not be delayed; Justice to be delivered without undue regard
to procedural technicalities; and balanced to ensure adequate
time for preparation of defence.
77. The historical perspective that gave rise to these very
progressive reformative provisions in the Constitution need
not be explained. Any Kenyan who was alive during the ‘Nyayo
Era’ know how oppressive in some instances the application of
the law was, especially the area of arrests and detentions for
prolonged periods of time, even without formal charging in
court and without trials; and the delays in hearing and
conclusion of cases. That is why in addition the rights under
Article 50, Article 49 brought in far reaching reforms of ‘No
detention or holding in custody for petty offenders, no holding
after arrest or charging in court beyond 24 hours; right to bail
upon suspicion or arrest unless there are compelling reasons;
no delayed trials; expeditious disposal of cases etcetera, were
intentionally prescribed under the Constitution.
78. To put perspective to these principles, and in order to
underscore their importance, the judiciary has developed
several policies and other directions to bring into effect these
principles. These include Active Case Management, Court
Annexed Mediation among others. The idea is to ensure that
Courts understand its mandate to exercise judicial power to
the utmost as provided under the Constitution and the law in
order to give life to these values, protect and safeguard the
purpose and the principles of the Constitution. In the exercise
of these powers and duties, the court must give equal

treatment to all parties [including accused persons, victims
and the public] be fair and equitable to all.
79. Article 20 (3) (4) provide:
(3) In applying a provision of the Bill of Rights, a

court shall—
(a) develop the law to the extent that it does

not give effect to a right or fundamental
freedom; and
(b) adopt the interpretation that most
favours the enforcement of a right or
fundamental freedom.
(4) In interpreting the Bill of Rights, a court,

tribunal or other authority shall promote—
(a) the values that underlie an open and

democratic society based on human
dignity, equality, equity and freedom;
and
(b) the spirit, purport and objects of the Bill
of Rights
80. I am for promotion and preservation of equality and equity to

all, the accused first and foremost, and the victims, public
interest and dignity of the entire trial process. It is important
that Courts stir public confidence in hearing and determination
of cases across the board. That cannot be effected if Courts
can commence cases and then abandon them at will on
grounds of technicalities or excuses on grounds of coram non
judice.
81. In order to have a holistic perspective of the issue at hand, it
is important to take into account several facts about this case.
First, the accused persons were arraigned in court with these
charges in 2016, July. Secondly, the matter begun before
another Judge who heard two witnesses before recusing
herself due to perceived length of the case that made it
difficult to abandon her single judge station to attend to this
matter. Thirdly, the court has taken five years to hear the
case, hampered by many factors, the most challenging being
the COVID-19 pandemic that shut down courts for a
considerable period. Fourthly, the court heard a total of 46
witnesses for the prosecution; 7 witnesses in the trial-within-
trial; and 19 defence witnesses. That makes a total of 72
witnesses. Fifthly, there were 11 lawyers in this case for the
State, the defence and the victims. Sixthly, there are over 6,
700 hand written notes of proceedings in 10 files in the matter,
excluding the documentary exhibits and submissions of
counsel. Seventhly, this case had three witnesses under
Witness Protection. Eighthly, the case involved a public
interest(s) issue of grave importance. Ninthly, one of the
accused persons, the 5th accused in this case was also under
protection and was kept at Naivasha Maximum Prison when all
his co-accused were held at Kamiti Maximum Prison. Lastly,

there were 117 exhibits for the prosecution and 34 exhibits for
the defence.
82. Not to mention that if there is an interruption in the
conclusion of the matter and the case given to another judge
to handle, there are several implications. First, the costs factor
to the public coffers will be enormous, considering but not
limited to State Officers who will be engaged in handling the
matter. Second, the other important question to consider is
what will be the effect or impact of handing over this file to
another judge in the Criminal Division. If they will have to
proceed to write judgment, how long will it take the judge to
understand the numerous volumes of proceedings before
penning down a judgment? Third, what guarantee will there
be that witnesses will be found supposing the matter were
ordered tried afresh, seven years down the line? Fourth, what
trauma will the families and colleagues of the deceased
continue to suffer due to prolonged waiting for the final
determination of the case? Fifth, what of the accused persons
having to have the case start all over again, even the most
strong and patient of them all will have trauma by such a
move.
83. I believe that it will be against public interest and public policy;
and it will not serve efficacious disposal of this case to adjourn
it and hand it over for continuation by another judge. Such an
action does not settle well with the need to uphold the
purpose, values and principles of the Constitution, especially
those touching on the expeditious delivery of justice without
unreasonable delay. Including advancing the rule of law,
human rights and good governance, in exercise of its judicial
authority, as obligated under Article 259(2)(e) of the
Constitution. Constitutional values, principles, rule of law and
public interest will best be served by declining the invitation
by the counsel for the 5th accused to declare this court coram
non judice.
BODY IDENTIFICATION OF THE DECEASED AND POST

MORTEM EXAMINATION
84. The bodies of the deceased persons were identified to the

Pathologist, Dr. Oduor Johansen, PW19. PW15 stated that he
was the brother to Willy Kimani the 1st deceased herein. He
stated that on 27th June, 2016 he was requested to visit City
Mortuary with a view of identifying his younger brother’s body.
He stated that he was able to identify the 1st deceased body
by the fact that his body had the same clothes that he had last
seen him wearing on the morning of 23rd June, 2016. He
described the clothes as a brown jacket, stripped red shirt,
grey long trouser and black shoes. PW15 further stated that
he also identified him by the left thumb which had no nail
having lost it from a cut when the deceased was 10 years old.
PW15 stated that he could not see the 1st deceased facial
features because they were changed and swollen.
85. PW16 stated that she was the elder sister of Joseph Muiruri,
the 3rd deceased herein. She stated that he used to live in
Zimmerman and operated a taxi. She stated that she was
called by DCI on 2nd July, 2016 and asked to proceed to City
Mortuary in order to help in identification of the deceased
body. She stated that she observed that his head and his
physical appearance were not disturbed and she recognized
his body because it bore a deep cut on his chin which he
acquired when he was young. She stated that the mark was
clearly visible and so was his face.
86. PW17 stated that he was the elder brother to Josphat Mwenda
Mwathi, the 2nd deceased herein. He stated that on 2nd July,
2016 he was informed that his lost brother had been found
and asked to go to the City Mortuary to help in identification.
He stated that he was able to identify the 2nd deceased body
by a birth mark that they share which is a hole on the right
ear. He further stated that he also checked his right arm where
he had been shot and there was a hole.
87. PW19, the Chief Government Pathologist and the Head of
Forensic Medicine in the country stated that on 1st July 2016,
late in the afternoon, he was informed that there were bodies
at City Mortuary that required post mortem examination. He
decided that there was need for X-ray or CT scans to be
conducted on the bodies since there was need to establish
whether there were any fractures in the bodies, which might
be missed during post mortem. He asked for the bodies to
undergo CT Scans at KNH and the same were conducted by
DR. P Otieno.

88. PW19 stated that he conducted the post mortem on the body
of one Willy Kimani on 4th July, 2016. He stated that he
received the CT scan of the subject. The scan indicated that
the subject had a fracture on the skull on the left side
extending to the front side of skull into the left eye socket
bone. He also had a fracture on the right upper jaw and on the
left cheek bone. He also had multiple skull and facial bone
fractures.
89. On post mortem, PW19 stated that externally, the subject
body had features of decomposition including skin slipping off.
He stated that the body was distorted, swollen and was
darkening on the lower limbs, blood was oozing from mouth
and nose. He further stated that it had a laceration on right
side of the head which was 2cm long and abrasions on the
forehead. The left side of the head was deformed and there
was a contusion bruise on the back left of the head. He noted
a deformation on the right side frontal parietal region of the
head which he explained as being a bash inside the head
indicative of a fracture underlying it. He indicated that there
was a contusion on the back of the head which was about
120cm from the middle of the head, an abrasion on the right
side of head, an abrasion above the left eye and an abrasion
near the ear. He finally stated that there was an extensive
bruise on the anterior wall.
90. PW19 stated that internally, the subject’s body had signs of
bleeding on the muscles of the chest which were more on the
right side. He stated that the Lungs, Heart, Pancreas, Liver,
Intestines and the spleen were decomposing. The abdomen
had bruises on the internal right side, the stomach was empty
and bruises were noted on the testicles.
91. PW19 further stated that the head had hematoma of the scalp,
fractures on the left skull extending to the front, on the left
eye ball and bone surrounding it. He stated that on right
maxilla, upper jaw and on the cheek bone, there was a
fracture. PW19 stated that the subject’s brain had liquidified
because of its decomposition and mixing with blood. PW19
concluded that the cause of death of the 1st deceased was due
to a head injury due to blunt force trauma. He described the
bruising on the left forearm and left elbow as defensive
injuries. PW19 produced the CT scan in respect of the 1st
deceased as P. Exh. 29a, his post mortem report as P. Exh. 29
and the post mortem addendum as P. Exh. 29b.
92. PW19 explained that the abrasions and scars could have been
caused by a blunt object while the contusions on the right
temporal and cervicular region were caused by a blunt force
trauma which caused bleeding under the skin. He stated that
the defensive injuries were the ones he saw on the left
forearm. PW19 further explained that the Injury to the head
was very severe because of the extent of the fracture. He
stated that it could have been caused by a drop of a stone or
object on the head or a drop from height. He stated that in his
opinion, the immediate cause of death was the head injury due
to its severity.

93. PW19 stated that he conducted the post mortem of the 3rd
deceased on 4th July, 2016 and that his CT scan revealed no
fractures, no bullet holes and his cartilages were normal.
94. PW19 stated that externally, the 3rd deceased body revealed
features of decomposition including skin spillage, swelling and
darkening of the skin. He stated that there was blood oozing
from the nose and mouth. He further noted a bruise on the
left cheek below the ear and a complete ligature mark and
bruise around the neck.
95. PW19 stated that internally, the 3rd deceased body had a
bruising on the surface of the thyroid cartilage, the hyoid bone
was loose but not fractured and there was bleeding on the
chest. He stated that the Lungs, Heart, Intestines, Liver,
Kidneys and the spleen were all decomposing. PW19 further
stated that there was a bruising on the scalp on the left and
back side. He stated that the brain was deliquified owing to its
decomposition and mixing with blood. He further noted a
bruise on the spine at the neck region area, hematoma,
bruising of the left forearm from the wrist and on the left leg
above the ankle and above the left knee.
96. PW19 indicated that his conclusion was that the cause of death
of the 3rd deceased was ligature strangulation. He explained
that the head injury was inflicted before the rope was tied to
the neck. Therefore, the immediate cause of death was the
ligature strangulation. He produced the post mortem in
respect of the 3rd deceased as P. Exh. 30, his CT scan report
P. Exh30a and the Post mortem addendum as P. Exh. 30b.
97. PW19 stated that he conducted the autopsy on the 2nd
deceased body on same date as the other two. He stated that
the CT scan in respect of the 2nd deceased revealed no
fractures on the skeleton and no evidence of bullet entry was
seen.
98. PW19 stated that externally, the body was decomposing and
it had bruises on the left eye, swelling above the left ear. He
also noted an old scar on the inner aspect of the left forearm
and wrinkling of the foot which he explained as being a sign of
someone being removed from water.
99. PW19 stated that internally, the 2nd deceased body had
heamtoma on thyroid cartridge, bruises on the left chest
muscles with internal bleeding. He stated that the Lungs,
Heart, Pancreas, Liver, Kidneys and the Spleen were all
decomposing. PW19 noted bruises on the neck, left ankle and
left leg below the knee. He made the conclusion that the cause
of death of the 2nd deceased was injuries to the head, neck
and chest. He explained that the haematoma on thyroid
cartilage was indicative of pressure applied to the neck. He
further stated that the injury on the forearm was a healing
scar. PW19 produced the post mortem in respect of the 2nd
deceased as P. Exh. 31, his CT scan report as P. Exh. 31a and
the addendum to the post mortem as P. Exh. 31b.
100. PW19 further stated that he visited the scene where it was
alleged the trio were murdered with an aim of looking for any
biological exhibits but he did not collect anything. He stated
that all the injuries on the deceased person’s bodies were
inflicted when they were alive because one only bleeds when
they are alive. In answer to a question put to him, PW19
testified that with the level of decomposition, it was difficult to
see the ligature marks on the bodies.
101. The issue of cause of death or causation of death, raised by
Mr. Michuki, is a challenge, inter alia, as to whether the 5th
accused really knew how the deceased were murdered, as it
is clear he did not himself either stand by to watch the
deceased being murdered, or participate in terms of
strangling, hitting, assaulting or any such way cause injury to
them. The fact is, by the time they ferried the deceased to
River Athi, they were dead as a result of assault executed
against them that night. In any event, in addition, the
evidence of Dr. Johansen that due to decomposition, injuries
may not have been easy to note, it is clear the deceased were
battered by their tormentors. The 1st deceased had his body
damaged with severe injuries from the head, neck, chest,
abdomen and testicles. For the 2nd deceased, he had severe
injuries on the head, neck and chest. I note their necks also
had injuries noted by the pathologist, which may as well have
been as a result of strangulation. It’s the 3rd deceased who
had clear ligature strangulation marks, and whose death was
clearly as a result of ligature strangulation.
102. I find no material variation between the 5th accused
confession and the findings of the pathologist. With the risk
of repeating myself, the point is, whether strangled or
battered, the deceased could not have murdered themselves,
put themselves in gunny bags, transported themselves
100kms away and flung themselves into the river. They were
murdered.
103. I must mention here that the way to challenge the evidence
of an expert, which includes pathologist, is settled in cases
including those cited by counsel in this case. In REPUBLIC
vs. LANFEAR 1968 1 ALL ER 683 at Page 685 DIPLOCK, L.
J. gave the correct English position in regard to the doctor’s
evidence thus:
“… Our view is that the evidence of a doctor,
whether he be a police surgeon or anyone else,
should be accepted, unless the doctor himself
shows that it ought not to be, as the evidence
of a professional man giving independent
expert evidence with the sole desire of
assisting the court.
104. In Dhalay V. Republic [1997]KLR 514 the Court of Appeal

held:
“It is now trite law that while the courts must
give proper respect to the opinion of experts,
such opinions are not, as it were, binding on
the courts and the courts must accept them.
Such evidence must be considered along with
all other available evidence and if there is
proper and cogent basis for rejecting the

expert opinion, a court would be perfectly
entitled to do so.”
105. There was no challenge to the findings of the pathologist on

the post mortem examination of the deceased bodies. No
question was put to Dr. Oduor Johansen to explain his
findings, or expound on the basis of his findings. I appreciate
that Mr. Michuki was not present when the pathologist
testified. However, he had the right to re-call him for further
cross-examination when he came into the case, as he
exercised in respect of the Government Chemist, Dr. Kimani.
106. Having taken into consideration the findings by the pathologist
and the circumstances under which the bodies were found;
that the deceased were murdered, their bodies ferried for 100
kilometers, including on rough road, and the bodies flung over
a bridge into the river, which has rocks and such hard material
in it; their bodies were in water for eight days; that the bodies
were decomposed to a degree, which made it difficult to see
some injuries, like ligature marks. Considering the evidence of
the pathologist and the circumstances of the case, I find that
the expert opinion of the pathologist was proper and cogent,
and that there is no grounds not to accept his evidence. I am
satisfied that the prosecution case as to the cause of death
was clear, and confirms that the deceased were murdered.

Whether the DNA Analysis Report by the Government
Chemist should be rejected for non-compliance with Section
122A, 122B, 122C and 122D of the Penal Code
107. PW 32 Dr. Kimani who is a Government Analyst at Government

Chemist Laboratories testified. He told the court that on 13th
July 2016, at the Labs buccal swabs taken from Fredrick
Leliman, Stephen Cheburet, Silvia Muthoni and Leonard
Mwangi were received at their labs. He informed the court that
on 15th July 2016, 73 items were received from No. 7470 Cpl
Nicholas Ole Sena of SCU/1B DCI. PW32 stated that on the
29th August 2016 they received at their Labs, the buccal swab
of Peter Ngugi was taken. He testified that they were
supposed to determine presence of biological material in the
items. From analysis he carried out on all the items and swabs
he had received he formed the following opinions and
conclusions in his Report P. exh. 72, as follows:
1. The DNA profiles generated from Msafiri water
bottle Edh C(v) (PMFI) nails from cells exhibit
e, fur belt exhibit f (PMFI); cigarette butt exh
B(v) (PMFI), sewing thread exhibit (PMFI)
were from unknown male origin.
2. The DNA generated from partially used mango

fruit bottle Exh R(iv)d (PMFI) matched that
generated from the nails of Josphat Mwathi

Mwenda marked Exh. JMM with probability of
match of 2.4 x 10 raised to the power of 25.
3. The DNA profiles generated from the cigarette

butts exhibits B(ii) PMFI) B(iii) (PMFI) V(iv)
(PMFI) B(vi) (PMFI) and B(viii) (PMFI)
matched the DNA profiles generated from the
reference sample Peter Ngugi with a
probability of match of 2.82 x 10/29.
108. Mr. Michuki submitted that the right of the 5th accused was
violated because the samples taken from him were illegally
acquired evidence contrary to Article 50 (4) of the
constitution. Counsel challenged the admission of P. exh. 72,
the Government Chemists Report which included the results
of analysis of samples taken illegally from the 5th accused.
Counsel relied on the provisions of Section 122A, 122B 122C
and 122D of the Penal Code. Counsel urged that PW44 and
PW45, both officers below the rank of inspectors took the 5th
accused for DNA sampling, without an order of an inspector or
above, without consent of the 5th accused and without a court
order.
109. Counsel relied on Abiud Muchiri Alex and Another V.
Republic [2015] eKLR. Philomena Mwilu V. DPP & 3
others [2019] eKLR and Restus Murkomen V. Republic
[2019] eKLR and urged that in light of the foregoing, and the
investigators failure to comply with strict statutory
safeguards, the evidence in question was clearly illegally
obtained and that the court should invoke Article 50 (4) and
rid itself of the illegality.
110. On the issue of the illegally acquired evidence, Mr. Mutuku
submitted that instructions were given by PW41, CI Owino to
the investigating officers to escort the 5th accused for DNA
sampling at the Government Chemist. Counsel cited Section
122A (1) of the Penal Code and urged that CI Owino who was
of a rank above inspector exercised discretion by giving a
verbal order to PW45, which order was within the law.
111. Section 122A (1) and 122C (1) of the Penal Code gives
guidelines on how DNA evidence should be procured. They
read as follows: -
‘122A (1) A police officer of or above the rank
of inspector may by order in writing require a
person suspected of having committed a
serious offence to undergo a DNA sampling
procedure if there are reasonable grounds to
believe that the procedure might produce
evidence to confirm or disprove that the
suspect committed the alleged offence…
122C (1) Nothing in Section 122A shall be
construed as preventing a suspect from
undergoing a procedure by consent, without
any order having been made: Provided that
every such consent shall be recorded in

writing signed by the person giving the
consent.’
112. From the foregoing provisions, a DNA sampling can only be

procured if a police officer from the rank of an inspector orders
for it or a court gives an order that the sample be procured
from a suspect or the suspect himself consents to the giving
of the samples. There is no doubt that PW 44 and PW45 were
at the time the samples were taken from the 5th accused of
ranks below that of Inspector empowered to take specimens
in accordance with section 122A of the Penal Code. There
evidence was that they escorted the 5th accused on
instructions from CIP Owino but produced no written order
authorizing the extraction of the samples from the 5th accused
as the law requires. Additionally, the evidence adduced by the
prosecution is clear that no consent was obtained from the 5th
accused in writing authorizing the extraction of the samples as
required by the law.
113. That said, I find the objection raised by the 5th accused in this
regard an academic exercise. This is because, in his sworn
defence, the 5th accused placed himself at the scene of the
locus in quo where the exhibits for which DNA samples was
required were recovered. The 5th accused admitted that he
was at the Soweto open fields at the time the deceased were
murdered. He gave graphic detail how he sat in the car
smoking, and how he threw the cigarette butts to the ground
outside the car, by opening the window slightly in order to do
so. Having admitted that he was at the scene on the material
time, that he discarded several cigarette butts there from
where the police recovered them. That alone is an admission,
and considering it against other evidence, establishes without
a doubt that he was at the scene of murder at the material
time. Even without the samples taken from him, I find that
there was sufficient evidence with which to find that the 5th
accused was at the locus in quo at Soweto open fields at the
time the deceased were murdered.
HISTORICAL BACKGROUND
114. In this background I will discuss how it all begun. The issue
that degenerated to become this case begun with an
encounter between the 2nd deceased and the 1st accused.
Regarding that, Mr. Ombetta for the 1st and 2nd accused urged
that the evidence regarding the second arrest of the 2nd
deceased was contradictory. Counsel took issue with the
alleged arrests urging it was not clear whether he was arrested
near Mulley’s Supermarket or outside his house. Secondly,
learned counsel Mr. Ombetta urged that PW44, one of the key
investigators of this case agreed in his evidence that a police
officer could arrest a person as many times as he is suspected
to have committed an offence. I will consider the evidence
adduced by the witnesses to determine these issues.
115. The very first encounter between the 1st accused and the 2nd
deceased was on the 10th April 2015. The 1st accused and other
officers were on duty near Mulley’s supermarket within
Mlolongo Police Station area, while the 2nd deceased was
engaged in his employment as a boda boda rider. It was during
evening hours. PW4 the wife of the 2nd deceased provided the
information concerning this encounter as she was informed by
her husband. PW35, the IPOA investigator recorded a
statement from the 2nd deceased on 27th July 2015 outlining
his complaint against the 1st accused on the basis of the first
encounter. PW5 and PW1 also received the information
concerning this encounter from the 2nd deceased, as will be
demonstrated. PW5 received it during interview held between
1st and 6th January 2016. PW1 handled the defence of the 2nd
deceased in court for the two cases against him and got first-
hand information as his testimony will disclose.
116. Before delving into the relationship between the 1st accused
and the 2nd deceased, let me mention that the 1st accused
admitted that he shot the 2nd deceased, but maintained that it
was in defence of his colleague police woman, and explained
that the bullet hit the 2nd deceased on the right wrist. I will
come back to this when considering the doctors finding as per
the P3 Form, P. Exh. 76 to confirm the actual position. The 1st
accused contended that the 2nd deceased was about to attack
his colleague CPL Jane Ngige with a knife and after warning
him three times to put the knife down, he shot him.
117. PW4 the wife to the 2nd deceased herein testified that she met
her husband in 2012 and that they started living together in
Mlolongo. She stated that the 2nd deceased was a boda boda
rider employed by one Patrick Kituma, whilst she was not
employed until when the 2nd deceased was shot in his arm on
10th April, 2015 and could no longer perform any duties. She
later got a job at an Mpesa Agent and doubled up as a boutique
salesperson employed by one Sylvia Wanjiku Wanjohi, the 3rd
accused herein.
118. PW4 stated that the 2nd deceased was arrested on 10th April,
2015 at Syokimau by officers from Mlolongo Police Station.
Having learnt of the arrest from her husband’s brother, she
went to the police station on the morning of 11th April 2015.
She stated that she noticed her husband had injuries on the
left lower arm, with bullet injuries that had passed through the
arm, hit his left front chest and exited on the back of the chest.
Upon enquiring from him what had transpired, the 2nd
deceased explained that he was shot in the process of asking
the officer who eventually arrested him, who he was. He
further explained to her that the said police officer took him to
Athi River Mavoko hospital and paid the bill for the treatment.
He said that the medical personnel at the hospital declined to
treat him and refereed them to Machakos General Hospital.
That instead of the police officers taking him to Machakos
General Hospital, they took him to Shalom Hospital in
Kitengela where he received first aid.
119. PW4 further stated that the 2nd deceased explained that after
treatment, he was taken to the cells where he was implicated
with gambling, resisting arrest and possession of cannabis.
PW4 stated that upon paying cash bail for the 2nd deceased for
his release in the cannabis case, he went to Kenyatta National
Hospital where treatment was commenced, and that it took
months of hospital visits. That by the time he died, the 2nd
deceased was still receiving treatment and could no longer
work.
120. PW4 spoke of the 2nd deceased’s second encounter with the 1st
accused. She testified that before he could recover from his
injuries the 2nd deceased was arrested again on 13th December
2015, by police officers from Mlolongo Police Station, led by
the 1st accused. PW4 stated that she was called by the 2nd
deceased at around 8pm on that date. That he told her that
police officers arrested him outside the toilet at their residence
that morning; that he was blindfolded, and that one Fredrick
Leliman, the 1st accused in this case, produced a gun and told
him to run if he was man enough.
121. PW4 stated that she opted not to see the 2nd deceased at the
police station but to wait to see him the next day in court.
That the next day he was charged at Mavoko Law Courts with
traffic offences of not wearing a helmet, not wearing a
reflector, failure to have a driving license, and carrying excess
passengers. PW4 explained that they could not raise the cash
bail that day and that the 2nd deceased stayed in prison for
almost a week until IJM paid the cash bail for him. She stated
that upon coming from remand, the 2nd deceased shifted from
their home and started living with one Patrick Gituma who was
his employer. She stated that IJM later shifted them from
Mlolomgo and that each time he went to court for the hearing
of the two cases, he was escorted by one Willy of IJM, the 1st
deceased herein, and picked in a taxi hired by IJM.
122. PW35 was an investigator with IPOA. He testified that the 2nd
deceased made a complaint with IPOA on the 25th July 2015
through an official IPOA Complaint Form Ref. No.
IPOA/CMU/869/2015. The Form was P. Exh. 74. The complaint
was handed over to him to deal and he opened a Complaint
File No.041/INV/Machakos/C/869. He testified that on 27th
July, 2015, he invited the 2nd deceased to his office where he
made a statement which PW35 reduced in writing, signed on
every page by the 2nd deceased. In brief, the statement was
to the effect that the 2nd deceased was shot by a policeman
who was in company of a policewoman. That the policeman
told the policewoman that he has shot the 2nd deceased by
mistake. That the policewoman told him to tramp up charges
against the 2nd deceased to justify the shooting. That the
policewoman gave him First Aid, after which he was taken with
vehicle registration number KBX 429G to Shalom Hospital.
That after he was X-rayed at the hospital, he was locked up in
the cells at Mlolongo Police Station, from Friday to Monday,
with charges of being in possession of bhang and gambling in
public. PW35 testified that he saw an injury on right upper arm
of the 2nd deceased, but that he did not have a P3 Form at the
time; and that he wrote in his statement that officers from
Mlolongo refused to issue him with the form.
123. PW35 testified that he personally went to see the OCS
Mlolongo Police Station and told him that a P3 Form should be
issued to the 2nd deceased. That it was issued on the 10th
September 2015, and completed by one Maureen Mutheu, a
Medical Officer on 14th September 2015. The P3 Form was P.
Exh. 76. The P3 indicates that the 2nd deceased had four scars
of bullet injuries, an entry and exit wound on right upper arm,
and two bullet wound scars, an entry wound on lateral chest
below the armpit, and an exit bullet wound on the posterior
chest.
124. The P3 Form shows that the 2nd deceased was shot on the right
upper arm and the upper chest. The 1st accused evidence that
he hit him on the right wrist is not supported by the doctor’s
finding. PW4 also made a mistake when she said that the 2nd
deceased had injuries on the left lower hand.
125. PW35 testified that on 14th March 2016 the 2nd deceased went
to see him accompanied by the 1st deceased, who left them
alone. He said that the 2nd deceased appeared to be in fear
and told him that he had more information concerning further
encounters with the police. Briefly, the 2nd deceased lamented
about an incident that had taken place on 13th December 2015
in which the 1st accused, the OCS Mlolongo CI Wambugu and
a policewoman one Emily took him from his home, blindfolded
him and threatened to kill him if he cooperated with IPOA.
That the same police officers were the ones present during the
shooting incident. PW35 said that he recorded the statement
of the 2nd deceased as part of his investigations, P. Exh. 77.
PW35 testified that after receiving that report, he summoned
and recorded statements from the 1st accused, one CPL Jane
Ngige, one PC Philip Otuoma and one PC Benson Mwaniki, on
the 16th March 2016. He stated that he informed the three that
he was investigating offence of assault, illegal wounding,
misuse of firearm and threat to kill.
126. PW35 confirmed he received on 7th April 2016, a letter, P. Exh.
6 from Witness Protection Agency [WPA] dated 1st April 2016,
seeking to know whether the 2nd deceased was their witness.
He said that he learnt from IJM that they had approached WPA
to assist with the 2nd deceased case. He said that he wrote
back to them a letter dated 11th May 2016, signed by the CEO,
Elema Halakhe, P. Exh. 78. In the letter he confirmed that the
2nd deceased was a witness of serious assault, annexing his
statements to the said letter. He said that he learnt later that
the 2nd deceased died that same year.
127. The information given to PW4 and PW35 by the 2nd deceased
was also given by him to officers of IJM. One such person who
spoke with the 2nd deceased was PW5 an Aftercare Specialist
and Psychosocial Support Officer with IJM. PW5 testified that
her role was to offer psychosocial support to adults who had
suffered illegal detention and abuse at the hands of police. In
regards to Mwenda, the 2nd deceased herein PW5 testified that
she interviewed him between 1st and 6th January 2016 for a
case of unlawful detention at first, where he had been abused
by police via tramped up charges the year before. The 2nd
deceased told her that the first incident was where he was shot
by a policeman called Leliman, 1st accused herein, and instead
of taking him to hospital, they took him into the police cells
and thereafter charged him in court.

128. PW5 further stated that the 2nd deceased explained to her that
around December 2015 he was blindfolded from his house by
the 1st accused and the late OCS Mlolongo Police Station CI
Wambugu, and driven to an unknown area and asked to run if
he was a total man. Upon declining and saying he would rather
be arrested, the 2nd deceased was taken to the police station
and later charged with traffic offences.
129. PW5 stated that after the second arrest, IJM relocated the 2nd
deceased and his wife, PW4 from Mlolongo where they resided
to a safe place, on 14th January 2016. PW5 explained that the
decision to relocate the two was informed by the fact that the
cases the 2nd deceased was facing involved police officers, and
his wife Rebecca was still working as an Mpesa Agent for one
of the Administration Police officers. PW5 stated that the 2nd
deceased was a boda boda rider before his encounter with the
1st accused and the other officers from Mlolongo, but that
during the rescue, he was not working because his hand had
not healed from the bullet injury.
130. The other officer from IJM that the 2nd deceased spoke to was
PW1, Mr. Edward Mbaya an advocate of the High Court
working at IJM. PW1 explained that IJM is a Multi-National
Organization that assists victims of police brutality, physical
assault and defilement get justice. PW1 stated that IJM offered
these services pro-bono, and that they also defended persons
charged in court that they believe are innocent. PW1 gave a
brief procedure of how they assess the cases that they take
up. He stated that they involve an investigator who
investigates if the reportee is telling the truth and ensure that
the case is in line with the organization values.
131. PW1 stated that, Mr. Willie Kimani, the 1st deceased, brought
the case of Josephat Mwenda, 2nd deceased to the
organizations’ attention. He stated that this was in April 2015
and it was in connection with a Criminal Case No. 226/2015,
P. Exh. 1a and 1b before the Principal Magistrates’ Court in
Mavoko. The case referred to involved the 2nd deceased who
had been shot accidentally by the 1st accused person using his
private firearm, in the process of being arrested and later
charged with being in possession of narcotics.
132. PW1 as the lead advocate assessed the case and gave
recommendations that it could succeed, and that it had also
met the organizations ideals of defending victims of injustice.
He stated that he took over the case as the lead advocate and
he applied for typed proceedings of the criminal case
No.226/2015 on 29th June, 2015 and was issued with the
same, where he found that the 2nd deceased had been charged
with gambling in a field and being in possession of cannabis
sativa.
133. PW1 stated that on 27th December, 2015 the 2nd deceased
gave a statement with IJM, recorded by the 1st deceased, in
which he claimed that the now deceased OCS of Mlolongo had
threatened him and warned him to withdraw the shooting
complaint against the 1st accused with IPOA failure to which
the 1st accused would kill him. That the very next day, he [2nd
deceased] was charged with traffic offences in Traffic Case
No.1650 of 2015. He said that he looked at the merits of the
case and recommended that the evidence seemed fabricated
against 2nd deceased and that IJM should represent him. He
said that the case was allocated to him to defend; and that he
made an oral application seeking to be supplied with the typed
proceedings of the traffic case no. 1650 of 2015, P. Exh. 2a.
134. PW1 stated that Criminal case no. 226 of 2015 proceeded on
16th February, 2016 which was the first date given for the
hearing of the criminal case. It proceeded before Hon.
Mummasaba in Chambers. PW1 stated that the 1st accused
herein testified and in cross examination which PW1 personally
conducted, the 1st accused admitted shooting the 2nd deceased
using his private firearm while on police operation. That he
confirmed taking the 2nd deceased to a private hospital with
his private vehicle. PW1 stated that the admissions are at page
14 of the proceedings of that day. He testified that the case
was adjourned to 24th April, 2016. That as they left court on
1st floor after the matter was adjourned, himself and the 3
accused persons in the case, including the 2nd deceased were
accosted by police officers who shoved them down the stairs.
He said that the police informed him that they wanted to take
the 3 accused persons so that they could help them in
investigation of a crime that had been committed in Meru.
135. PW1 stated that he insisted that any questions to his clients
should be put to them in his presence. That as the officers
escorted them to their vehicle outside Mavoko Court, they met
the 1st accused at the entrance of the court building and the
1st accused nodded at the police officers that had arrested
them, who nodded back. PW1 stated that they were taken to
Athi River CID offices where they were kept waiting for about
45 minutes, after which Mr. Muthee, one of the police officers
returned the identification cards of all the accused persons and
let them all go.
136. PW1 stated that on 29th February, 2016 they went back to
court in connection with the traffic case 1650 of 2015 and that
he informed the court of the happenings of 16th February,
2016. He further stated that he had also written a letter to the
Inspector General of Police concerning the intimidation they
had received on the said date. The letter was dated 24th
February, 2016 and copied to the Principal Magistrate. PW1
asserted that they were yet to get a response to the letter.
137. PW13 was the Director of Case Work at IJM where he oversaw
the day-to-day operations of the Case Work Department,
including Legal Department, Investigation and After-Care
Department. PW13 narrated the historical aspect of the 2nd
deceased’s complaint and the steps that IJM took to help him
out.
138. PW13 stated that in the course of the hearings of the two
cases against the 2nd deceased, he drafted letters to the
Inspector General of Police and the IPOA, after PW1 and the
2nd deceased were arrested after a court session on 16th
February 2016. He produced the letter dated 24th February,
2016 addressed to the IG as P. Exh. 3, in which he was asking
for the suspension of the 1st accused in order to pave way for
independent investigations into the allegations the 2nd
deceased herein had made against him. He also produced a
letter dated 24th February, 2016 addressed to the Witness
Protection Agency (WPA) as P. Exh. 4, whereby he was
requesting the Agency to admit the 2nd deceased into their
program.
139. PW13 stated that he received a letter from WPA dated 1st
March 2016, P. Exh. 5, which made reference to his letter of
24th February, 2016. He further stated that he received a letter
P. Exh. 6 dated 1st April, 2016 in which he was copied and the
main addressee was CEO IPOA, from WPA, asking IPOA to
confirm whether the 2nd deceased was fit for witness
protection.
140. The evidence of the account of the statement by the 2nd
deceased as told to these witnesses who heard first hand from
him about his encounters with the 1st accused and other police
officers from Mlolongo Police Station, some who reduced his
statement to writing, is a demonstration of the 2nd deceased
ordeal under the hand of the 1st accused. In addition, the
statement as told to each of these witnesses was consistent in
content and detail. The ordeal the 2nd deceased suffered under
the 1st accused was fully established by the two cases he was
charged with following each arrest. In any event, that the 2nd
deceased was arrested twice is beyond doubt. The 1st accused
testified as a key witness in the criminal charge, and was listed
as a key witness in the traffic case.

141. I find no contradiction in the accounts of the statement by the
2nd deceased, as narrated by the various witnesses. I find that
the prosecution has established beyond any doubt that the 2nd
deceased was harassed by the 1st accused, his boss then the
OCS Mlolongo, CI Wambugu, and other police officers,
arresting him just outside his house, in the second instant,
and charging him for offences he could not have committed
as, all the witnesses, PW1, 4, 5, among others are all in
agreement that he could no longer ride a motor cycle or do
any work at the time. I must end by saying that the 2nd
deceased deserved action from IPOA and protection from
WPA, whose wheels painfully ground too slowly, which proved
fatal to the deceased.
Whether the prosecution has proved motive;
142. It is appropriate at this juncture to consider whether the

prosecution proved motive. The prosecution has set out facts
to answer the issue whether there was any motive for the
murder of the deceased persons in this case. The accused
persons denied any involvement with the murder of the
deceased persons. Mr. Ombetta for the 1st and 2nd accused
urged that the 2nd accused did not know any of the deceased
persons, never met them and could not have had any ill motive
to harm any of them. As for the 1st accused learned counsel
urged that there was no evidence, direct or otherwise to prove
that the 1st accused had a motive to commit the murders. Mr.
Ombetta urged that P. exh. 24, the investigation diary entry
of 27th June 2016, shows that the 1st accused was stated to be
a suspect; yet at the time, no statement, no confession and
no data had been obtained. Learned counsel urged that the
IJM and the investigating team operated on suspicion without
any evidence.
143. Discussing motive, the Court of Appeal in Choge V. Republic
(1985) KLR1 , held as follows:-
“Under section 9(3) of the Penal Code (cap 63)

, the prosecution is not required to prove
motive unless the provision creating the
offence so states, but evidence of motive is
admissible provided it is relevant to the facts
in issue. Evidence of motive and opportunity
may not of itself be corroboration but it may,
when taken with other circumstances,
constitute such circumstantial evidence as to
furnish some corroboration sufficient to
establish the required degree of culpability.
The evidence of the ill-feeling between the
deceased and the 1stappellant would have
been a corroborative factor if the other
evidence had been satisfactory which it was
not."
144. The prosecution has adduced evidence to show that the 2nd
deceased made complaints against the 1st accused over a
shooting incident on 10th April 2015, in which he shot the 2nd
deceased. The 2nd deceased made a second complaint against
the 1st accused for an unwarranted arrest and threat to kill
made against the 2nd deceased on 13th December 2015, at the
same time when additional charges were preferred against
him. Although he denies threat to kill the 2nd deceased, the 1st
accused does not deny the two incidents took place, and that
they culminated with the two cases filed against the 2nd
deceased at Mavoko Law Courts.
145. Indeed, in the Criminal Case whose proceedings were P. Exh
1b, the 1st accused in cross examination by PW1 admitted
shooting the 2nd deceased using his private firearm while on
official duty. He also admitted driving the 2nd deceased to a
private hospital, using his private vehicle; and admitted that
he locked him up in police cells a whole weekend even though
he was suffering severe bullet injuries inflicted by him. In
addition, no police action was taken regarding the shooting
incident, no spent cartridges collected as exhibits from the
locus in quo, no P3 Form issued to the victim and no police file
opened for the investigations.
146. Not to mention the other ills of taking the victim to a private
facility, instead of a Main hospital for specialized treatment,
despite recommendation by the private doctors who saw the
2nd deceased at Athi River. Considering the seriousness of the
injury, where a bullet(s) hit the victim piercing through his
upper arm, and secondly and significantly, piercing through
the chest from the lateral to the posterior region. These were
serious injuries. Indeed the evidence of PW1, PW4 and PW5
were clear that the 2nd deceased had not recovered from those
injuries, and could no longer perform any work one year after
the shooting.
147. Bearing these facts in mind, bearing in mind also that IJM had
taken over the cases against the 2nd deceased and were
defending him in court, when the 1st accused and his
colleagues were summoned by IPOA to give statements on
16th March 2016, it must have dawned on the 1st accused how
serious the matter had become. I find that these facts cogently
and firmly establish that the 1st accused had developed a
personal vendetta against the 2nd deceased. I find that these
facts establish that the 1st accused had a reason to silence the
2nd deceased. His job was on the line and actions towards
realization of that fact were underway through IPOA.
148. In regard to Mr. Ombetta’s submissions that there was
suspicion against his client even before any investigations had
been carried out, and before the bodies of the deceased had
been found. He urged that the investigations were carried out
to justify the arrest of the 1st accused. Counsel pointed fingers
against PW5 of IJM as one who instigated that suspicion. That
is not an accurate diagnosis. The evidence before the court
shows clearly that the 2nd deceased had filed a complaint
against the 1st accused with IPOA, and that this Agency did
not take up the investigations immediately. When nothing
seemed to happen is when the 2nd deceased approached IJM
for help. And this Agency (IJM) acted more swiftly, even taking
the 2nd deceased out of his environment and offered him
protection and legal and psychosocial support for six months
before he was murdered. IJM had a clearer picture of the 2nd
deceased dilemma, and had a lot of first-hand information
regarding the experiences of the 2nd deceased at the hands of
the police, and from that stand point, whatever PW5 said
about the case, was reasonable.
149. In regard to motive, I find that the threat to loss of
employment was serious enough to have caused the 1st
accused anxiety, and must have driven him to plan the attack
on the 2nd deceased. Of all the accused persons in this case,
the 1st accused is the only person charged in this case who
had a motive to harm the 2nd deceased. The harm to the 1st
and 3rd deceased was collateral damage, just because they
happened to have been there when the 2nd deceased was
kidnapped. I find that even though it is not a requirement for
it to be proved, the prosecution proved motive as against the
1st accused.
Whether the retracted confession of the 5th accused has
any probative value, and if so, to what effect.
150. Before I consider this issue of the probative value of the

Statement under Inquiry taken from the 5th accused, it is
expedient to give a summary of the statement.
Summary of the Confession Statement by 5th Accused

produced as P. Exh. 90.

151. In his confession, the 5th accused gave his phone number
contacts as 0727433431 and 0795845584. He stated that he
resided within Waithaka. He stated that he was a police
informer, and that he was recruited by OCS Lelei (PW20) in
April 2011, who was at the time based in Kabete. 5th accused
stated that sometime in April 2016, he went to Mlolongo Police
Station to meet PW20 after he learnt that he had been
transferred to Mlolongo. He stated that PW20 introduced him
to three police officers in the Spiv Team. He stated that he
visited Mlolongo Police Station on several occasions after that
and became acquainted with 1st accused. That sometime in
early May 2016, 1st accused approached him and informed him
that a thug that he had shot and injured, wanted him to lose
his job. That in the last week of May 2016, he stated that 1st
accused called him on phone, and that they met at
Connections Bar in Mlolongo, where the 1st accused told him
that there was someone who had reported him to IPOA and
that his court case was coming up on 23rd June 2016, and that
they must act on that day. He stated that on 22nd June 2016,
he met 1st accused at the police canteen at Mlolongo Police
Station where the 1st accused told him that he wanted him to
follow the subject person after his court case, and update him
[1st accused] on all his movements. That 1st accused gave
him a mobile phone to use, but he could not recall the phone
number.
152. That on the material day of 23rd June 2016 he left his house
at about 5.30 am, and arrived at Mlolongo at about 7.30 am.
On his way to Mlolongo Police Station, he met 1st accused who
was driving a white Nissan Wingroad registration number KBF.
That the 1st accused introduced the lady as the person who
would assist him identify the subject person. He stated that 1st
accused dropped them at a bus stop at Mlolongo where they
would board a matatu that would take them to Mavoko Law
Courts. That at Mavoko Law Courts at about 9.00 am, the lady
identified the subject person to him from a distance of about
five to six meters. He stated that she told him “Kamutu yako
ndiyo hiyo”. The lady then left immediately. The 5th accused
narrated how he communicated with the 1st accused the arrival
of the 2nd deceased to court his movements up until about
11.00 am when the 2nd deceased came out of the court room.
5th accused stated that he called 1st accused and informed
him that the subject person had left the court room, but was
accompanied by another man, and had entered a vehicle that
was parked in the court premises and sat at the rear
passenger seat.
153. The 5th accused stated that he went outside the court premises
to where 1st accused had parked his vehicle, and entered the
rear passenger seat, while the 1staccused was the driver and
Sgt. Mwangi sat at the co-driver’s seat. He stated that he knew
Sgt. Mwangi because he worked with 1st accused and that 1st
accused had told him that Sgt. Mwangi was part of the
operation plans. They waited a few minutes after which the
vehicle where the subject person had entered drove past
them, with three occupants. That they followed the vehicle and
caught up with it at the railway crossing. He stated that Sgt.
Mwangi drew his police pocket phone and beckoned them to
stop. Sgt. Mwangi told the three occupants that they were
under arrest. The three occupants alighted from their vehicle
and entered 1st accused car. The 5th accused stated that he
took over their vehicle and drove it to Kwambira, where he
abandoned it. He stated that the three deceased persons were
taken to Syokimau AP Post. That after he dumped the vehicle
he called the 1st accused who told him to find them at
Mlolongo. The 5th accused stated that he linked up with 1st
accused and Sgt. Mwangi at Connections Bar in Mlolongo. At
about 7.00 pm 1st accused received a phone call from someone
at Syokimau AP Post who informed him that one of the victims
had contacted his wife. That the 1st accused called an officer
known as Kamenju and asked him to make his way to
Syokimau Police Post, where he, [5th accused] 1st accused
and Sgt. Mwangi also proceeded and found Kamenju already
at the Post waiting for them.
154. The 5th accused stated that 1st accused went inside a room,
took the keys to the cells, opened the cell and ordered the
three victims to enter his vehicle (Wingroad). That Sgt.
Mwangi hand cuffed them while they were in the boot of the
car. That he and Sgt. Mwangi entered the vehicle of the 1st
accused and the 1st accused drove, with Kamenju following
behind them closely in his car a Toyota NZE registration
number KBU. The 5th accused stated that they drove to an
area a few meters away from the highway, where they
discussed whether or not to kill the three victims for close to
three hours.
155. That at about 9.00 pm, a police officer who was driving a
probox passed by and asked them to identify themselves. He
stated that Kamenju, who also had a police pocket phone, told
the officer that they were police officers on duty. The 5th
accused stated that at about 10.00 pm, the 2nd deceased
person was killed. He stated that he was strangled to death
using a rope and a nylon paper. His body was put in a sack
and put in the boot of the Toyota NZE. At this time, the police
officer who had earlier asked them to identify themselves
passed by again on his way home. He was driving a probox
and he waved at them as he drove by.
156. The 5th accused stated that at about 11.00pm, the second
victim was removed from the boot of the Wingroad and taken
to a different ground, not the same place the 2nd deceased was
killed. He stated that the second victim was killed in the same
style as the 2nd deceased. His body was put in two sacks, as
he was tall and could not fit into one sack. The two sacks were
joined at the hip with a rope. His body was also put in the
Toyota NZE. The third victim was also killed in the same style
as the other two. His body was put in a sack and placed in the
boot of the Wingroad. The body of the 1st Victim (2nd deceased)
was transferred from the Toyota NZE to the Wingroad. The 5th
accused stated that his role in this was to look out and remove
the victims from the Wingroad, hand them over to Sgt.

Mwangi, who in turn escorted the victims to where 1st accused
and Kamenju were, to be murdered.
157. The 5th accused stated that after all the victims had died, he
drove the Wingroad which had two bodies, accompanied by
the 1st accused. That Kamenju drove his Toyota NZE which
had one body and was accompanied by Sgt. Mwangi. He stated
that they drove to Mombasa Nairobi Highway towards
Cabanas, and joined the Northern By Pass, drove through
Ruiru, Thika Makongeni area up to Ol Donyo Sabuk where they
stopped by a bridge. The body that was in the Toyota NZE was
removed by Sgt. Mwangi and Kamenju and thrown into the
river. The two remaining bodies were removed from the
Wingroad by the 1st accused and Sgt. Mwangi and also thrown
into the river. They all drove back using the same route and
arrived at Mlolongo at about 4.00 am. The 5th accused stated
that they all went to a pub near an Asian Restaurant where
they got supper. That the 1st accused left at about 4.30 am,
while Sgt. Mwangi left a few minutes later. That Kamenju left
much later at about 6.00 am. For him, the 5th accused stated
that he slept at the bar as he had too much to drink.
158. Mr. Michuki urged court to consider that the 5th accused was
arrested on 8th August 2016 at 8pm, but was not booked in a
police station until the next day. Mr. Michuki urged that the 5th
accused was taken to Flying Squad offices, then to DCI
Headquarters where the statement was recorded. He
complains about use of different letters to identify him at
Thindigua Police Station where he was held and in court
allegedly for his security. He submitted that the prosecution
must have intended to use him as a witness. He relies on
Criminal Case No. 64 of 2016, the case in which the 5th
accused was first charged before being joined in current file;
and Misc. Criminal Application No. 2627 of 2016, where
the prosecution informed court that they were engaging
witness protection for 5th accused security. He buttressed his
argument with Section 3 (e) of the Witness Protection Act
and urged that only witnesses in a criminal proceeding or
before a court, commission or tribunal outside Kenya were
liable for WPA protection. He urged court to find it will be
dangerous to rely on the retracted confession.
159. The answer I have on this is that it is true the prosecution
appear to have toyed with the idea of making the 5th accused
a prosecution witness, but they changed their mind, which was
also their right. That does not affect the confession by the 5th
accused. If not for anything, the fact that he was unapologetic
for making the confessions, and because he stood by what he
said even in his closing remarks in his sworn defence before
court.
160. Mr. Michuki for the 5th accused urged the court to reconsider
the admission of the retracted confession of the 5th accused
admitted as P. Exhibit 90. For that proposition, counsel cited
Kinyori s/o Karuditu V. Reginam [1956] 23 EACA 480;
Kanini Muli V. Rep [2014] eKLR; and Regina V. Mushtag
[2005] UKHL 25. Counsel urged that the court must warn
itself against acting on a repudiated confession citing
Tuwamoi V. Uganda [1967] EA 84; Pyralal Melaram
Bassan and another V. Reginam [1961] EA 521; and Rex
V. Mutwewa s/o Maingi [1935]2 EACA 66.
161. Mr. Muchuki urged the court to weigh the confession and
satisfy itself whether it can rely on it given the retraction by
the 5th accused and for that proposition cited Rex V.
Kaperere s/s Mwaya [1948] 15 EACA 36.
162. On the administration of the test aforementioned, Mr. Michuki
submitted that the confession by the 5th accused was at great
odds with the oral evidence the 5th accused gave before the
court in very material ways. He identified the variance as
including the cause of death of the deceased. Counsel urged
that as per the confession, P.Exh.90 the cause of death was
strangulation with a rope and nylon paper. That the post
mortem findings as per the respective reports P. Exh.29 and
P. Exh.30 and P. Exh.31 was head injury in respect of the 1st
deceased; ligature strangulation and head injury due to blunt
force trauma in respect of the 3rd deceased; and head, neck
and chest injuries due to blunt force trauma in respect of the
2nd deceased.
163. Mr. Michuki urged the court to consider the findings of the
radiological report Pexh.30A, in which he did not find injuries
to the hyoid bone consistent with ligature strangulation; and
compare against the findings of the pathologist in his report
P.exh 30 in the case of the 3rd deceased. Mr. Michuki
concluded by saying that the apparent cause of death set out

in the confession, which was similar for all the deceased does
not tally with the causes of death established by the evidence.
164. The other comparison Mr. Michuki made was the phone data
of the 5th accused. Counsel urged that the retracted
confession alleged that the 5th accused was given a cell phone
No. 0786 526 465 for purposes of communication for planning
and execution of the murders. Counsel urged that the phone
data contradicted what was stated in the retracted confession
in terms of time and place. That going by the data of both
phones, the phone data for No. 0786 526 465, P.Exh102c and
call data for No. 0727433431 belonging to the 5th accused P.
Exh.105b, the two phones were in communication, which
makes it illogical that the 5th accused could have been calling
himself. Counsel urged that it was clear the 5th accused did
not have the other phone as is alleged in his retracted
confession.
165. Concerning his movements on 23rd June 2016, Mr. Michuki
urged that he compared the phone data against the confession
and concluded that the timings as per the confession differed
with timings as per the data, and in some instances, the
location of the 5th accused in both documents did not tally. He
relied on the Court of Appeal case of Anupchadnd Meghji
Rupa Shah & Another V. Republic [1984] KLR which set
guidelines to aid the court determine the value of a retracted
confession.
166. Mr. Michuki submitted that the retracted confessions fails the
test laid out in Kapepere case, Supra, as nothing outside of
it shows that it was true since it was uncorroborated by the
facts, and secondly the statement contained therein was not
based on fact as they could neither be ascertained nor proved.
For that proposition he relied on Rex V. Robert Sinoya &
another [1939] 6EACA 155.
167. Mr. Mutuku, in response to disparity on the cause of death of
the deceased as per the post mortem reports P. Exhs.29, P.
Exhs.30 and P. Exhs.31 vis a vis what was stated in the 5th
accused confession P. Exh.90. Mr. Mutuku drew the courts
attention to the role of the 5th accused at the Soweto scene
where the deceased persons were murdered as per his
retracted confession where he sated as follows:
‘While at the execution scene my duty was to
guard them and remove them before handing
over the victims to Sergent Mwangi, Sergent.
Mwangi then escorted the victim to the killing
area where Senior Sgt Leliman and Kamenju
were waiting. Senior Sgt Leliman and Kamenju
would then put the bodies in the sack before
bringing the body back and placing them in the
boot.’
168. Mr. Mutuku urged that it was clear from his confession that
the 5th accused was present at the Soweto murder scene, but
not at the actual point where the deceased were murdered at
the time they were murdered; and urged that therefore the
5th accused description of the method used to cause death
was not as detailed since he was not together with the 1st
accused and Kamenju at the killing area. He urged that in his
statement on oath in court, the 5th accused testified that he
remained in the car while at Soweto before he was ordered to
drive to Ol Donyo Sabuk where the bodies were disposed of.
169. Counsel urged the court to consider the testimony of the
pathologist, Dr. Oduor PW19 who said that post mortem
injuries could not be ruled out. In that regard, Mr. Mutuku
urged the court to consider that the bodies of the deceased
were stashed in gunny bags; placed in the vehicle boots and
transported close to 100km, before they were tossed over a
bridge into River Athi, where they remained until 30th June
and 1st July 2016.
170. Regarding discrepancies between the retracted confession
P.Exh.90, and call data for No. 0727433431 belonging to the
5th accused, communicating with No. 0786 526465, Mr.
Mutuku submitted that PW22, PW44 and PW45 in their
evidence demonstrated that at no given time did the 5th
accused possess the No. 0786526465. He submitted that 5th
accused was in possession of No. 0786307473 while at
Mavoko Law Court, which he used to communicate with
number 0786526465, which line was in possession of the 1st
accused. Further, that the 5th accused number No.
0727433431 was in constant communication with No.
0786526465 at the time the bodies were being transported to
Ol Donyo Sabuk. He urged that that meant that the two lines
were in different vehicles as clearly tabulated.
171. Concerning the 5th accused submission that there were
discrepancies between the time on his confession statement
and the time on his phone data P.Exh.10, Mr. Mutuku
submitted that the alleged discrepancies are immaterial
because the 5th accused does not deny being in the specific
locations mentioned both in his confession and his testimony
on oath in court. Further that the phone data confirms that he
was indeed at these locations.
172. Regarding the circumstances surrounding the arrest,
recording of the confession statement, detention up until his
arraignment before the court was indicative of physical,
mental and psychological torture and that for that reason the
confession should not be relied on. Learned counsel Mr.
Mutuku submitted that through the testimony of PW38, PW44
and PW45, the confession statement was recorded voluntarily
by the 5th accused person and its compliance with the
Evidence (Out Of Court Confession) Rules 2009. He urged that
the court’s ruling delivered on 9th May, 2019 should not be
reviewed.
173. Mr. Ombetta for the 1st and 2nd accused also made submissions
regarding the confession P. Exh. 90. He urged that the 5th
accused in his defence in court said that his confession was a
result of inducement and or incentive, that he would be paid
Kshs. 30,000/= per month, and that his wife would be given
Kshs. 200,000/= to relocate of her business. Counsel urged
that the 5th accused was treated well while in custody because
he agreed to implicate the 1st accused. He urged the court to
note that the 5th accused in his defence in oral evidence said
that he saw the 1st accused once giving petrol money at
Soweto open field area at 10.15pm on the 23rd June 2016.
That he saw him again on 24th at his bar. Mr. Ombetta urged
the court to find that the 1st accused has shown that he was
home at 10:15pm on 23rd June 2016.
174. Mr. Kigen for the 3rd accused urged that the evidence adduced
by the prosecution in the retracted confession of the 5th
accused did not implicate the 3rd accused in any way.
175. Mr. Mochere for the 4th accused urged that the retracted
statement of the 5th accused places the 4th accused in Mavoko
law court, in the isolated area at Soweto and at Ol Donyo
Sabuk and in every action of the commission of the offence.
He urged that the statement came late in the day after arrest
of 4th accused, which was deliberately written to book the 4th
accused into the offence by conjoining him with the 1st accused
who he deputized at work. He urged that the confession fails
to fix 4th accused as he gave account of where he was in his
statement produced in court, taken from him on 4th July 2016.
Counsel urged that his mobile data P.Exh. 98B placed him
away from scenes of murder.
176. I have considered the rival submissions of defence counsels
and the State. The 5th accused had earlier at the trial moved
this Court by way of a Notice of Motion dated 7th August, 2019
seeking the court to review its earlier ruling admitting the
retracted confession of the 5th accused, in this court’s ruling

of 16th May, 2019. Secondly, he sought the court to issue any
order it deemed necessary.
177. At the time Mr. Michuki’s grounds for the application were that
confessions were generally inadmissible in this jurisdiction;
that the court erred in finding that the provisions of Section
26 of the Evidence Act applied to the question of admissibility
of the statement of confession; that Out of Court Confessions
and all ancillary provisions of law were outlawed and repealed,
respectively, by Section 99 of the Criminal Law Amendment
Act,2003 and that the Evidence (Out of Court Confessions)
Rules, 2009 have no force in law.
178. This court considered the issue of admissibility or otherwise of
the statement by the 5th accused and made a ruling on it, after
testing whether the statement was recorded in compliance to
the relevant provisions of the Evidence Act and the Evidence
(Out of Court Confessions) Rules, 2009 through A Trial within
Trial’ and also whether he made it voluntarily. This court
dismissed the application for reason that although it was
clothed as an application for review, it was for all purposes an
appeal against the ruling of the court. The applicant was
urging the court to find that it erred in interpretation of the
relevant law, effectively urging the court to sit on appeal on
its own decision.
179. This court cannot review or re-consider the admissibility of
the statement. What the court can do is consider the entire
evidence and weigh it for two things; one, whether there is
independent evidence which would lead to a conclusion that
what the 5th accused stated in his retracted statement must
be true; and two consider whether there is evidence of some
material particular which implicates the 5th accused and
establishes that he is guilty of the offence.
180. Before I consider the probative value of the retracted
confession, I wish to draw a distinction between a repudiated
and a retracted confession. In Ogero Omurwa -Vs- Republic
[1979] eKLR the Court of Appeal discussed in detail whether
there was any real distinction between a retracted and a
repudiated statement. The court quoted in extenso and with
approval the observations made by the Court of Appeal of
Eastern African in that regard, in its decision in Tuwamoi -
Vs- Uganda [1967] EA 84 as follows:
“We now come to the distinction that has been
made over the years between a statement
“retracted” and a statement “repudiated”. The
basic difference is, of course, that a retracted
statement occurs when the accused person
admits that he made the statement recorded
but now seeks to recant, to take back what he
said, generally on the ground that he had been
forced or induced to make the statement, in
other words, that the statement was not a
voluntary one. On the other hand a repudiated
statement is one which the accused person
avers he never made.”

181. A repudiated statement is one which the accused denies
making. A retracted confession is a statement made by an
accused person before the trial begins, by which he admits to
have committed the offence, but which he disowns at the trial.
A confession is said to be retracted only where the accused
admits that he made the confession and then denies the truth,
either in part or whole, to what is stated therein. The
statement of the 5th accused, P.Exh.90 falls under this
category, that the 5th accused admitted he made the
statement with the police but denies portions of what is stated
therein, and has gone further through his sworn defence
varied portions of the confession.
182. The correct test to apply in order to determine the probative
value of a retracted confession was discussed by the court of
Appeal in the case of Vijay Kumar Megji Shah V. Republic
[1984] eKLR where the Court of Appeal stated:
“The learned judge was obviously satisfied
that the confessions were the truth of what
occurred that night but he did not act on them
alone. He accepted them with caution,
realizing they were both retracted and
repudiated, and he was careful to look for
corroboration of each one, this was, no doubt,
in accordance with the principles set out in
Tuwamoi v Uganda, [1967] EA 84, 92 (CA-U).
He set out 10 matters of independent
admissible evidence which he accepted as true
and called them corroboration. The correct
definition of corroboration is that it is some
independent evidence of some material fact
which implicates the accused person and
tends to confirm that he is guilty of the
offence.
Clybes [1960], 44 Cr App R 158, 161 (C Cr A).
There were, with respect, 3 times in the list
which could be termed independent evidence
of material facts which implicated Anupchand
and Vijay and they were the presence of the
Colt Lancer (Anupchand had hired) at the
scene, the false report to IP Masaa that it had
been wrested from Anupchand that night with
which Vijay associated himself and Moumbi
Juma’s evidence of their hiring him and his
taxi at the Serena Hotel, Shanzu, a kilometer
away from the scene at 10.15 pm the same
night to take them home….
‘A substantially truthful confession may
contain mistakes but in an appropriate case a
judge may rely on it despite its mistakes. If a
material element in it is demonstrably untrue
and it must have been known to its author its
value is destroyed and it cannot be relied on.’”

183. In Sango Mohamed Sango & Another –Vs- Republic
[2015] eKLR the Court of Appeal dismissed a contention
that the Evidence Act as amended prohibits an Accused
person from making a voluntary confession to a private
citizen. However, the court exhorted that before such a
confession was admitted or acted upon, the court must assure
itself that the statement was made voluntarily. The court
proceeded to state:-
“The real issue in the appellants’ alleged

confessions is whether they should, in the
circumstances of this appeal, have been
admitted, because the trial court must be
convinced first about the voluntary nature of
the confession and secondly that the
confession has the ring of truth.
184. And in the case of Republic V. Elizabeth Waithera Mary &

Another (2011) eKLR where the court held as follows.
“The legal position of a retracted or repudiated
confession is that a trial court should accept
any confession which has been retracted or
repudiated with caution and must before
finding conviction or such confession be fully
satisfied in all the circumstances of the case
that the confession is true. That is the
standard of proof.”

185. In another case of Komora–Vs- Republic (1983)KLR 583,
the Court of Appeal held:
“There is no rule of law or practice that
requires corroboration of a retracted
confession before it can be acted upon, but it
is improper to act upon it in the absence of
corroboration in material particulars; unless
the court is satisfied of its truth after a full
consideration of the material facts and
surrounding circumstances.”
186.In a later Court of Appeal case Thiongo V. Republic

(2004)1EA333, the court held that:
“There is no rule of law that a court cannot act

on a retracted and/or repudiated confession
unless it is corroborated in material
particulars. What exists is a rule of prudence
that a court should be cautious to act on such
a confession unless it is corroborated in
material particulars (Tuwamoi -Vs- Uganda
[1967] EA 84 (adopted)) in the current case,
the retracted confession was amply
corroborated.”
186. The above are the guiding principles of testing a retracted

confession in order to determine its value. The first step to
take is to determine whether the retracted confession is the
truth of what happened. The Statement under Inquiry made
by the 5th accused is a clear admission of his guilt, and he
stated as much on oath as he sought to qualify his confession
with oral evidence, that he was not denying that he was
involved in the murders of the deceased persons, but wanted
to show that his role was not as stated in the confession.
187. In the retracted confession 5th accused goes into detail and
describes how the plot to kill the 2nd deceased person was
hatched and planned days to the material day of the murder,
naming the perpetrator as the 1st accused; giving the reason
for the 1st accused desire to do so as the threat to his job due
to a report of misuse of firearm and unlawful wounding that
the 2nd deceased had filed against him with IPOA, which
Agency was on his back; he gives names of the others involved
by what appears to be nicknames, but describes some by
name like Kamau and Sgt. Mwangi of Spiv Team; he then went
into great details of the trail on the deceased persons on 23rd
June 2016, from Mavoko Law Courts where they attended a
trial against the 2nd deceased, rail crossing behind Mavoko
where the three were kidnapped and their vehicle given to the
5th accused who disposed it in Kamirithu; their holding at the
Post; their removal to Soweto open field where they were
murdered; the journey by road in two vehicles to Kilimabogo,
Ol Donyo Sabuk where their bodies were hurled into the River
Athi, and the celebration sponsored by the 1st accused and his
wife DW16 for the completion of the assignment.

188. I have considered the evidence adduced by the witnesses in
this case, the forensic and other evidence to find out if there
is any convergence with the retracted confession of the 5th
accused. The 5th accused testified that he was introduced to
the 1st accused by the OCS, CI Lelei, PW20, in April 2016.
PW20 admitted that the 5th accused went to greet him at the
Mlolongo Police Station around the alleged time soon after he
was transferred there, having worked with him as his informer
previously in a different station. That explains how the 5th
accused visited the Mlolongo Police Station in the first place,
making the evidence he got to know the 1st accused among
others at that Police Station not remote at all.
189. Before I state what I need to state here, it should be noted
that P. Exh. 90 was recorded on 9th August, 2016. While the
trajectory evidence on phone, vehicle plate identification and
police radio phone data had not been availed. The data was
availed as from 14th October 2016. This then means that
timings and sites in the retracted confession P. Exh. 90 was
from the 5th accused own knowledge and memory. The
variation I noted between the 5th accused retracted confession
and the data of his phone, P.Exh, 105B was minimal being a
difference of few minutes, and did not materially affect the
statement.
190. I sought for corroboration in the evidence of witnesses and
other forensic evidence as part, not only of testing the
retracted confession, but also as part of exercising caution and
careful consideration of the same. The statement shows the
movements made by the perpetrators of these murders from
the kidnap outside Mavoko Law Courts precincts at round
11am, to the journey to the Post, to the removal of the
deceased persons just after 7pm; the journey to Soweto open
field and eventual trip to Ol Donyo Sabuk, in Kilimabogo where
the bodies were disposed of.
191. These movements are captured in the data of the 5th accused
phone, P. Exh. 105B; and to give detailed summary it proved
thus: 5th accused line 0727433431 on 23rd June 2016 was at
Mlolongo Police Station at 0917 hours; was at Essar Athi River
from 9.43 am to 11.45am; at Athi River at 12.02pm; at
Kamirithu from 2.04pm to 2.43 pm; at Center Mombasa Road
at 1838 hours; at Mastermind from 2117 hour to 2124 hours;
on Thika Road on the way to Thika Town at 0047 hours on 24th
June 2016, the same night; at Kilimambogo at 1.23am to 1.27
am; at Mlolongo from 6.02 am to 2.53pm.
192. PW36 testified that the police pocket phone IMEI
No.864106020019873, P. Exh. 25 on 23rd June 2016, the said
pocket phone was captured in various sites of interest as per
its Data P. Exh. 79. It was located at Mavoko Law Courts
between 1200-1220 hours; at Syokimau AP Post between
1220-1240 hours; at Mombasa Road between 1340 to 1440
hours; at Mlolongo Police Station between 1520 to 1540hours;
between 1840 to 1900 hours it was at Syokimau AP Post;
then between 1900 to 1920 hours it was captured along
Mombasa Road; at 1940 hours it was at the isolated area in
Soweto where it was stationery for five hours; at about
midnight, the pocket phone was sighted at the Southern By
Pass on the way to Thika Road. PW36 stated that the radio in
question was recovered from the 1st Accused when he was
arrested on 1st July 2016. That trajectory of P. Exh. 25,
produced as P. Exh. 79 is in tandem with the retracted
confession in every aspect. It shows that the 1st accused was
present in those site as shown herein above, as the 5th accused
stated in the retracted confession.
193. The other evidence which speaks to what is contained in the
confession of the 5th accused is the evidence of PW10, PW11
and PW12, residents of Soweto isolated area. From their
evidence, they confirm sighting one, then later two vehicles
parked within the vast isolated area. There evidence confirms
that the persons they saw standing around the vehicles were
four. They saw one with a police phone and one smoking a
cigarette. That they remained in that area from around 7pm
up to past 11pm that night. That they identified themselves as
police officers. All these details are in tandem with the 5th
accused confession.
194. The retrieval of the bodies of the deceased on 30th June and
1st July 2016, from the River Athi 7 days after the murder in
respect of the 1st and 3rd deceased, and 8 days in respect of
the 2nd deceased, all confirms the retracted confession of the
5th accused that he was telling the truth concerning the entire
process. The post mortem findings confirm what the 5th
accused said that the deceased were murdered.

195. The evidence on the data that is P.exh 79 which was for the
radio phone P. exh 25, the evidence on the Note, the evidence
of PW10, 11 and 12 the evidence of PW20 and the evidence of
the retrieval of the bodies of the deceased from River Athi
comprises of independent evidence. That evidence was
consistent with the retracted confession of the 5th accused and
confirms that what was stated in the confession was the truth.
196. Furthermore, the Note P. exh. 7, collected outside the
Container used as a cell at the Post, bearing the handwritings
of the 1st deceased, are proof beyond any reasonable doubt
that the 1st deceased had been taken to that Post on 23rd
June 2016 afternoon as the 5th accused stated. The other
evidence was the vehicle KBX 126C, which ferried the
deceased to the Mavoko Law Courts, which was recovered in
Kamirithu, just as described by the 5th accused. The 5th
accused DNA from cigarette butts recovered at the Soweto
open field, where the murders took place.
197. I have carefully considered the retracted confession, and the
other evidence, as well as cautioned myself of the danger of
relying on the retracted confession of the 5th accused, P. Exh.
90. Having considered all the circumstances of this case, and
bearing in mind the independent evidence as enumerated
herein above, which I found to be consistent with the retracted
confession of the 5th accused I am satisfied that what the 5th
accused stated in his retracted evidence was the truth and
details what happened in this case.

198. The retracted confession by the 5th accused stated clearly the
plot and plan to murder, the different roles played by the
various actors to ensure seamless execution of their plan and
murder of the deceased, and the disposal of the bodies of the
deceased, 100 kilometers or more from the scene of murder.
I am satisfied, taking all the evidence and the surrounding
circumstances of the case into consideration, that there is
reason to believe the retracted confession by the 5th accused
is the truth of how the deceased met their death on the
material day.
199. I must at this juncture set out the 5th accused sworn statement
in his defence in court. The difference between the sworn
defence and the retracted confession. In his sworn defence the
5th accused maintains the structure of his story in the retracted
confession but drops some names and brings in new names
into the conspiracy of the murders and the execution of the
deceased persons; as well as varies the role he played in the
murders. He stated that when he realized that PW20, CI Lelei
was at Mlolongo Police Station, he started going there to sell
jeans, which is what he did for a living. That he did so on the
22nd June 2016. That on the 23rd June 2016 very early in the
morning he received a call from PW26, PC Wilson Kamau
asking him to report to Mlolongo Police Station that morning,
which he did and was there by 8:30am. He said that he found
PW26 with ‘Waingo’, and ‘Kamenju’ both Police Officers. That
PW26 told him that there was a ‘Kamwizi’ a thief, that he was
due to go to court for his trial that same day, that he wanted
to eliminate him and that his role was to keep track of the man
and keep reporting to Kamau.
200. That at the same time PW26 gave him a phone number to use
while calling him saying his had gone off. Of that number he
could only re-call 0786. He also changed the story saying it
was PW26 who called him to describe how the man he was to
track was dressed. The other variation he makes in his sworn
defence is that the Toyota NZE was with one ‘Brown’, and not
Kamenju as he had stated in his confession. Kamenju was also
there and that he was the one who handed over to him the
vehicle that the deceased left the court in. He varies his story
saying he was directed by PW26 to take the vehicle of the
deceased persons, and a small walkie talkie to a police officer
at Kamirithu in Limuru. He also changes his involvement,
saying he was left at a bar when PW26, Kamenju, Waingo and
Brown went away with one Mwaniki, a police officer to the Post
where the deceased were held. He said that Waingo found him
at the bar at 9pm and told him where to go to find PW26. That
was the Soweto area. He gives the names of those he met at
Soweto open field as PW26, Kamenju and Brown who were
standing together, while a distance away stood Mwaniki and
Waweru. Waingo joined them at 10pm.
201. He gives the role he played as that of sitting inside the vehicle
and driving one of the two vehicles. He also said that before
they drove to Thika from that scene, the 1st accused brought
money to PW26 to fuel the vehicle he, PW26, was driving as it
was a station vehicle. The other detail he added was that after
their return from Thika and the bridge at Ol Donyo Sabuk
where they dumped the bodies, Leliman came to the bar
where he, Kamenju and Brown were waiting for the others,
and brought them five kilos of roast meat and five bottles of
beer each to enjoy. He said that the bar belonged to the 1st
accused, and that the wife of the 1st accused was the cashier.
202. The name that was dropped in the 5th accused sworn defence
was Sgt. Mwangi the 4th accused in the case. The confession
had mentioned PW26, however, in his sworn defence, the 5th
accused said that PW26 was the mastermind of the execution
of the deceased, and that he was the one who approached him
for his assistance in the plot to murder the deceased. The 5th
accused added new names, one Brown, one Waingo, and one
Mwaniki. He also decanted the role of the 1st accused from
being the master mind and planner of the murders to being a
facilitator and an entertainer.
203. Regarding Sgt Mwangi since he dropped him from the his
sworn defence, the evidence in the retracted confession
against him is of no value at all. In regard to Mr. Brown, it is
very clear who Mr. Brown was in the evidence of the
prosecution. The evidence of PW44 of how he traced the 5th
accused through social media shows clearly that the
description of the 5th accused through the true caller was given
as Brown. Then the evidence of PW22 shows that the 5th
accused was referred to as Mr. Brown by the 1st accuses, and
that the 1st accused introduced him in that name.

204. Having considered the confession and the sworn defence, I
find that the structure and main features of the information
the 5th accused gave in both remained intact, and therefore it
does not make any material difference or create any doubt as
to the fact the incidents discussed in the two statements took
place. The implication of PW26 as the master mind of the
murders does not make sense. While it is very clear why the
1st accused was the one who had the motive to cause harm to
the 2nd deceased. There is nothing to show any ill will that
PW26 could have had against the 2nd deceased. So, replacing
the 1st accused with PW6 as the perpetrator of this offense is
illogical and really unreasonable
205. Both the retracted statement P. Exh. 90 and the sworn
defence qualify as confessions. This is because based on the
confessions, without other evidence, there is sufficient
evidence to sustain a conviction against the 5th accused. See
Republic V. Ahmad Abolfathi Mohammed & another
[2019] eKLR.
206. As to the probative value of the confession P. Exh. 90 on the
co-accused, there is overwhelming evidence from the
technology derived from the phone data of each of the accused
persons that implicates them with the offence. That evidence
is sufficient in itself without even relying on the retracted
confession of the 5th accused. considering retracted confession
of the 5th accused. In that regard, the retracted confession of
the 5th accused will only be used against as against him.

LOCI IN QUO
207. The prosecution built up its case around five scenes, the loci
in quo that featured prominently in the evidence of the
witnesses in the case. In addition to these scenes, it emerged
that there were underlying factors that formed, in an integral
way the background events that were the catalyst to the
sequence of the events of 23rd June 2016, leading up to the
murder of the deceased. I have, herein above dealt with some
of the underlying factors. I will deal with the issues identified
for consideration [as above], as well as cluster the various loci
in quo in as much of a chronological order as will be practical,
to determine whether the prosecution has discharged its
burden to prove its case against the accused persons, beyond
any reasonable doubt.
MAVOKO LAW COURTS ON 23RD JUNE 2016
208. In regard to this scene all I need to point out here is the fact
that PW1 and the members who had accompanied him to the
court on the 23rd June 2016 had noticed that they, that is PW1,
the 1st and 2nd deceased and a colleague, were being
monitored and followed around the court precincts. The
evidence of PW1 establishes that they alerted the 1st deceased
that there were persons monitoring them at the court, but the
1st deceased insisted on PW1 leaving the court ahead of them
(the deceased persons). PW1 left the court precincts that
morning leaving behind the three deceased persons. PW1 did

not know what happened to his colleague until midnight that
night, when he switched on his phone that had been charging,
to find messages to the effect the three deceased were
missing.
KAMIRITHU
209. This is the site where the 5th accused, as per his retraced
confession and the sworn defence, he took the vehicle KBX
126C. That is the vehicle that took the deceased persons from
their respective homes to Mavoko Law Courts on the 23rd June
2016.
SYOKIMAU ADMINISTRATION POLICE POST
210. The prosecution case is that the three deceased were held at
this Post between midday of 23rd June 2016 and 1859 hours
when they were removed from there and taken to Soweto
open field. PW2 and PW3 were witnesses under the Witness
Protection Agency. They were cousins who worked at a
construction site in Mlolongo area. They gave similar and
corroborative evidence. They stated that on 23rd June, 2016
at about 1600hours they were coming from work together,
with PW2 riding a motorcycle and PW3 as his pillion passenger.
On getting to the Chiefs Camp at Syokimau, they both heard
the voice of someone calling them in a low tone, which
sounded more like whistling. They stated that the person was
beckoning them and appeared as if he was hanging on one

hand on a window grill inside a container. None of them could
fully see him.
211. They stated that PW2 stopped the motor cycle, and that the
person hanging on the grills inside the container threw an
object towards them. They stated that it was a piece of tissue
paper inserted in a socket holder. PW3 disembarked and
picked up the paper. They stated that as the person who had
thrown the paper disembarked from where he was hanging,
he said “piga hiyo number mwambie aje sa hii hii” “call
that number and tell her to come here right away”
212. PW2 and PW3 stated that they rode to the nearby market
known as twin market where they read what was written on
the paper (the note):
“tafadhali pigia ……. (Rebeca) Mmwambie
aambie Rose Willie, Mwenda wameshikwa
wako Syokimau kwa Chief Camp wako
hatarini”.
“please call ……….(Rebecca) tell her to tell

Rose Willie, Mwenda have been arrested and
are at Syokimau Chiefs Camp they are in
danger”.
213. These two witnesses identified the piece of tissue paper with
the inscribed words as P. Exh.7, as well as the socket holder
as P. Exh.8. PW2 demonstrated how the tissue paper note was
folded and inserted inside the hollow part of the socket holder
when they picked it from the ground where it had fallen. PW2
explained efforts he made to reach the subscriber of the phone
number on the note, by sending to it “please call me”
messages from around 4:30pm. When he failed to get a quick
response, he bought Ksh.20 airtime and called the number.
214. PW2 said the recipient agreed that she was Rebecca and he
passed on the message and she replied that she would
confirm. PW2 stated that the said Rebecca called back and said
that he was a conman and that he should tell the writer of the
message that the method adopted would not succeed. PW2
and PW3 thereafter decided to go about their activities and
threw the note along a footpath leading to PW2’s home.
However, when PW2 switched on his phone after charging it
that night, he noted that several calls had been made to him
that night. He said that he decided to retrieve the note from
along the path where he had thrown it the following morning,
and eventually handed it over to IPOA and the police officers
who were accompanied by PW7 of IJM. PW2 accompanied
investigators to Syokimau Police Post on 24th June morning
where he identified the socket P. Exh. 8 at the same position
where he had thrown it on the evening of 23rd.
215. PW6 stated that having recovered the tissue paper note from
PW2 on 24th June 2016, he embarked on trying to establish
the author of the note. He sought for the known handwritings
of the three (3) missing persons from IJM. He stated that the
handwritings were forwarded by a letter dated 27th June,
2016, P. Exh. 11, signed off by PW13, and addressed to the
Chief Executive Officer, IPOA. They were the known
handwritings of the three deceased.
216. PW6 stated that the known handwritten notes of Willy Kimani
were contained in a Book of Resolution Insurance, P. Exh. 12,
whereas those of Josphat Mwenda were in IJM receipts issued
to Josphat Mwenda for ksh.3000/= and dated 12th June, 2016,
P. Exh. 13. The other document was a note book marked No.3,
P. Exh. 14, which was indicated to be that of Joseph Muiruri,
but that upon scrutinizing it, he saw written at the owner’s
description page the name of Willy Kimani,.
217. PW6 stated that he informed PW13 via phone of the missing
known writings of Joseph Muiruri, who in turn forwarded to
IPOA offices more documents on 28th June, 2016 vide letter of
even date. They were described as three taxi and cab service
receipts that comprised three original receipts and a copy of
each. He produced the receipt dated 1st June, 2016 bearing
number 219 as P.Exh.16 and its copy as P.Exh. 16A; and, the
receipt dated 9th June, 2016 bearing number 220 as
P.Exh.16C.
218. PW6 further stated that he prepared an exhibit memo form
dated 28th June, 2016, P.Exh17 addressed to the Document
Examiner CID Headquarters and he desired him to ascertain
whether the writings on P. Exh7 was made by the same author
as compared with the known handwritings that had been
forwarded. PW6 later received a report from the Document
Examiner, one MR. John Mwindeni, PW8.

219. PW6 further stated that when the DCI took over the matter,
he handed over the documents to PW44, and they both signed
the Movement of Evidence Hand over Notes P.Exh. 19, dated
8th November, 2016. PW6 stated that before the 24th June,
2016, he did not know any of the deceased in this case, and
had not met the 2nd deceased at their IPOA offices.
220. PW8 stated that he is a Forensic Document examiner and that
he has worked as such for the last 16 years and also doubled
up as the Head of Document Examination at the DCI
headquarters. He stated that on 28th June, 2016 he received
P.Exh.7 marked d1, the questioned document and three
known handwritings of Willy Kimani, Josphat Mwenda and
Joseph Muiruri. A memo accompanied the documents from
IPOA signed off by PW6. He stated that he was asked to
compare the questioned document with the known
handwritings of the deceased persons.
221. PW8 stated that he reduced the forensic examination into a
report dated 30th June, 2016 which established that the
questioned document, P. Exh.7 (D1) was authored by one
Willy Kimani, as his handwriting matched that of the exhibits
marked A(1),(11) and A2. PW8 said that he concluded that
that the author of the questioned document was Willy Kimani.
He produced his report as P.Exh.18 and the exhibit memo as
P.Exh.17.
222. PW8 further stated that on 9th November 2016, he received
the document marked D1 P.Exh.7, which was the document in
question and a document marked J1 P.EXH 20 being a
personal diary from Resolution Insurance together with an
exhibit memo, P. Exh. 21 from PW44. It was desired that he
ascertain whether the same author made the handwriting in
the questioned document with the known handwritings
document marked j1. PW8 stated that he compared the
handwritings and formed the opinion that the writings were
made by the same author/hand. He prepared a report dated
9th November, 2016 which he produce as P.Exh. 22 and the
exhibit memo form of even date as P.Exh 21.
223. On cross-examination, PW8 stated that although his report
dated 9th November, 2016 had narrowed down on one
specimen handwriting, he would still arrive at the same finding
even if he was supplied with several other specimens. He
stated that fear and apprehension cannot affect the
handwriting of a human being. He further stated that he did
not print the prints from the machines he used in comparing
the handwritings; neither did he prepare a certificate to certify
that the machines used were in order.
224. PW8 further stated that it is not possible in document
examination to determine the specific age of a document and
neither can he determine the circumstances under which the
document was stored. He explained that he arrived at his
finding considering there were similarities in the documents in
terms of the pen pressure patterns and baseline alignment. He
stated that he could not carry the infrared machine he used to
compare the handwritings to court. He said that he wrote his

final report based on the observations that he personally
made.
225. Apart from this evidence is the evidence of investigating
officers who visited the Post on the 24th June 2916. PW 14
No.44325 CPL Joseph Mucheru attached at the Directorate of
Criminal investigations Headquarters, Nairobi took the witness
stand to testify. He told the court that his duties were to
conduct investigations upon instructions by the Officer in
Charge, Investigations Branch. On 25th June 2016, he was
instructed to join CIP Owino and IP Chemilil and conduct
investigations relating to the disappearance of three Kenyans
whose names he later came to learn were Willy Kimani,
Josphat Mwenda and Joseph Muiruri. That their team
investigated Syokimau AP Post where the deceased persons
were said to have been detained.
226. PW14 confirmed that after carrying out measurements at the
Post cells it was possible for someone to throw something out
of the container through the grills, and that it could fall at the
point where PW1 and PW 2 collected socket. He also informed
the court that, the grill level was 7.2 feet high and that
someone had to hang on the grills to throw something through
it. He also said that the spaces between the grills were 3 inches
by 3 inches, the other 4 inches and the last one 2.5 inches.
The width was 1.5 inches. He confirmed that a socket box
could go through the grills. On the issue of whether a person
could hear a hissing sound, he confirmed that it was possible.
He also established that the container was 40 feet length and
9.6 in height. From his evaluation, he said it was possible for
a human being to throw a socket that distance. The testimony
of PW14 confirmed that of PW2 and PW 3 concerning the
possibility of a person throwing an object of the size of the
socket in which the Note was, P.Exh. 8 and 7 respectively. The
evidence of PW14 also confirmed that a person inside the
container where the note was thrown from had to hold onto
the grills inside the container for reason of its height as he
explained, further confirming that what PW2 and PW3 said
they saw was a reality.
227. PW29 was in same investigation team as PW14. He states that
he took photos at the Post, P.Exh.27. Both PW14 and PW29
testified that there was an opening between the report office
and the cell, and that a person seated at the chair in the report
office sat at par with the opening and could clearly see inside
the cell. PW29 confirmed this, as did many other witnesses,
including CPL Faith called as a witness by the 3rd accused.
228. The 2nd and 3rd accused, who were the officer in charge of duty
and the officer manning report office and the cells sentry,
respectively, deny receiving any persons to that Post on that
material day. The 2nd accused in his unsworn defence
reiterated that the Post had no cell, only a report office and a
store. He said that he was at the Post from 1230hours to
1800hours when he left for Mlolongo Police Station until
2000hours when he returned to the Post. The 3rd accused on
her part emphasized not being at the Post between 1100hours
and 1230hours, and afterwards from 1800hours. However,
from the evidence of the Crime Scene officers I find that if the
prosecution establishes that the three deceased persons were
taken to the cells at on the 23rd June 2016, the 3rd accused,
who was on duty as Cells Sentry and Report Office Personnel
saw them and therefore knew of their presence at the Post.
229. Mr. Kigen for the 3rd accused and Mr. Mochere for the 4th
accused took issue with the Note, P.Exh.7, urging that PW2
testified that he threw it away when PW4 disbelieved his
message. That since it had rained that night and it was muddy,
the Note in court had no signs of mud or wetness, and that it
looked neat and so could not have been the one PW2 threw.
Mr. Kigen suggested that PW6 must have coached PW2 and
PW3 on what to tell the court as the statement he took from
them was not availed, and urged the court to disbelieve their
evidence. Mr. Kigen urged that PW2 also took the Note from
the two witnesses and declined to hand it over to PC Juma of
Flying Squad.
230. The Note P.Exh.7 was before court. It was laminated to
preserve it, according to PW44 and PW45. There was nothing
neat about this exhibit, it was tattered and was only holding
together as a result of the lamination. On the other hand, PW6
was an investigator with IPOA, and had been directed by his
boss, Mr. Arodi, to proceed to the Post on 24th morning to
confirm whether any persons had been held there the day
before. IPOA had been investigating the complaints by the 2nd
deceased against the 1st accused since July 2015.

231. PW6 received the Note, P.Exh.7 from PW2 in that capacity. He
is the one who sourced known writings from IJM, against which
the document examiner based his results. He received P. Exhs.
12, 13, 14 and 16, the known writings of the three deceased,
from PW13 of IJM through letters P. Exhs. 11 and 15. He
forwarded the exhibits to the Document Examiner vide Exhibit
Memo, P.Exh. 17, and received the Report from them, as
P.Exh.18. The investigations were eventually taken over by
Flying Squad, to whom he handed in the Note.
232. There is nothing sinister in the involvement of PW6 into the
case. He was an investigator in the case before his
complainant was murdered. There is nothing to show that PW2
and PW3 were coached by this witness. I am satisfied, first
that PW2 and PW3 were credible witnesses. They did not know
the accused before. They had no reason to implicate the
accused persons with this case. Second, I find PW6 a credible
witness and his role in the matter was purely official and
professionally handled.
233. I find that the evidence adduced in regard to the Note, P. exh.
7 establishes without a doubt that it was in the hand of the 1st
deceased. It was thrown out of the container used as a cell at
the Post at 4pm on 23rd June 2016, within hours of the kidnap
of the three deceased. The message in the Note was an urgent
call for rescue from the hands of those who placed them at the
cells at the Post. I find that the prosecution placed the three
deceased at the cells at the post on the same afternoon they

were kidnapped while leaving Mavoko Law Courts, where they
had gone for the trial against the 2nd deceased.
SOWETO OPEN FIELD

234. PW10 was a daughter to the registered owner of the vast 90-
acre piece of land situated along Mombasa Road opposite
Matermind Cell Site. She stated that the place where the land
is situate is popularly known as Soweto and is situated on the
right side facing Mombasa direction, along Mombasa Road
near the Nation Newspaper facilities.
235. PW10 stated that on 23rd June, 2016 at around 7:30pm she
decided to escort her visitors from her home to the road. On
her way back, she said that she noticed a stationery vehicle
which had stopped on the road near the entrance to theirland,
and had its full lights on. She further stated that the vehicle
had its hazard lights on and from a distance she was able to
make out three (3) heads of people standing outside the
vehicle but could not hear their conversation.
236. She stated that she called her brother Alex (PW11) and asked
him to be accompanied by one PC Ntambo (PW12) their
tenant, who was a police officer based at the Weigh Bridge, to
go and check out the vehicle. The two left and PW11 on his
return informed PW10 that the people with the vehicle
identified themselves as police officers on duty checking out
some thieves who usually went to that area.
237. PW12 stated that he was a Police officer attached to Athi River
Weigh Bridge, Mlolongo and was a tenant at the home of
PW10. He testified that on 23rd June, 2016 he was on a 24
hour shift at the Nairobi/Mombasa Road controlling tracks at
Mlolongo area. He stated that at 8pm he realized he had
forgotten his torch light at home and decided to go home for
it as he took his dinner.
238. PW12 stated that as he entered into the road leading to his
home, he saw a saloon vehicle parked on the side and three
(3) men standing outside the vehicle in deep discussion. PW12
greeted them and one answered “POA”. PW12 stated that the
vehicle was silver in colour bearing registration number KBU
though he could not recall the last digits. He stated that the
vehicle had its hazard lights on and it was parked about 50
meters from the road.
239. PW12 further stated that he was able to note that one man
who was in front of the other two was a black man wearing a
black jacket and holding a police pocket phone approximately
5ft 6 inch in height. Next to him was a slightly taller man,
brown in complexion, dressed in a shirt and jeans trouser who
was smoking a cigarette. PW12 stated that the third man had
wrapped himself in a Maasai checked kikoi & was
approximately 5ft 8inch tall. PW12 stated that he did not
recognize any of them and apart from the greetings, he held
no further discussion with them.
240. PW12 confirmed the evidence of PW10 that on his way back
after having dinner, PW10 approached him and asked him if
he had seen a strange vehicle on his way home. That when he
replied in the affirmative, PW10 requested that three of her
relatives accompany him in his vehicle so that they could all
find out what the occupants of the strange vehicle were up to.
PW11 was amongst the relatives who accompanied PW12.
241. PW12 stated that on getting to where the strange vehicle had
been parked, he alighted with his rifle and proceeded to ask
the three men to identify themselves since they were making
the residents afraid. PW12 stated that the short man who had
the police pocket phone replied by stating that they were
police officers on duty. He went further to explain that they
had information of an impending robbery that was to take
place at Lamu building, which houses the furniture vendors.
PW12 stated that with the people having identified themselves
as police officers, he asked PW11 and his two relatives to
alight and head back home. PW11 and the two other relatives
alighted from PW12’s vehicle to head home, but that they
noted that a second vehicle had arrived and parked right
behind the first one.
242. PW12 stated that at around 11pm, he went back to his house
and this time round he found two cars parked where the initial
car was. He stated that he did not bother to note the
registration numbers since he had already learnt that they
were police officers on patrol. He stated that the second car
was a white saloon car. He further stated that there was an
additional man who had joined the initial three. PW12 stated
that on 24th June, 2016 at 7am as he made his way to work,
he did not find the vehicles there.

243. The evidence of the witnesses, PW10, PW11 and PW12 confirm
seeing, first one vehicle which had three people standing
outside it, then later a second vehicle joined the first one at
Soweto open field between 7:30pm and 11pm. It was a place
without light and none of them was able to see the men
enough to identify them. PW10 described one as having a
police phone, similar to P.Exh.25 who was dark and tall, 5foot
6inches; and next to him stood another who was a slightly
taller man, brown in complexion, was smoking a cigarette, and
wore a shirt and jeans trousers. He described a third man who
he said was (his height) 5 ft 8 inches and wrapped himself
with a maasai shuka, similar to P.Exh26. He also described the
vehicle they had as a silver registration no. KBU. He could not
re-call the last numbers. He could not identify any of them.
244. The evidence of PW10, PW11 and PW12 confirmed the
presence of two vehicles at the Soweto area between 7:30pm
and 11pm on 23rd June, 2016. One of the vehicles had
registration No KBU. The witnesses did not master the rest of
the numbers. The second thing established by these witnesses
is that one of the men with the vehicles was smoking, and that
another one had a police radiophone. The men told PW12 who
had questioned them about their presence at that place that
they were police officers on duty.
OL DONYO SABUK, KILIMAMBOGO
245. There is no argument about this site. This is where the bodies
of the deceased were flung into River Athi, past midnight on
23rd – 24th June 2016. The bodies were retrieved from the
same river, on the 30th June 2016 and 1st July 2016.
TECHNOLOGICAL EVIDENCE
246. As stated at the beginning of this judgment, there was no

eyewitness account of the murders of the three deceased. The
prosecution has relied on circumstantial evidence, forensic
evidence and the retracted confession made by the 5th
accused. These evidence that the prosecution has relied upon
includes technical evidence made up of phone data processed
and produced by PW42 from Safaricom, and PW43 from Airtel.
There were various Call Sites captured in the Data, involving
various mobile phones. The information required of the
Safaricom and Airtel service providers was Handset history,
Cell Data, Subscriber Registration and Geographical location
from 20th June to 26th June 2016.
247. That means the information provided by PW42 and PW43 from
the phone service providers, to PW44 and PW45 and their
colleague investigators was capable of providing the history of
the handset in question, showing when bought and which sim
cards had been paired with it. With the Cell Data, one could
see the phones calls made or received through the number,
as well as the time and duration of the call. It also gave detail
of sms’s sent or received through that line. Subscriber details
gave details of the person registered as owner of the line, and
if registered more than once, the details and the date of each
registered owner. The geographical location gave detail of the
actual location of the Cell Phone number or handset, and that
trajectory of that record could show the movement of both the
handset and the Cell phone number. The only time it could
not be possible to be tracked is if the phone were turned off.
This was the evidence of PW42 and PW43.
248. In addition, the prosecution relied on technological trajectories
of data from IC3, processed and produced by PW37. The
prosecution relied on technological evidence sourced from IC3,
the Centre that receives all the 999 and 112 Emergency
Numbers from across the country. The IC3 is under the
National Police Service. The prosecution also obtained CCTV
Surveillance for Traffic Management used to monitor the
roads. The prosecution also relied on IC3 Intelligence Video
Surveillance i.e. ICS; and the Automatic Number Plate
Recognition System – ANPR. They also relied on the 4G ELT
Enterprise Long Term Evolution and the IC3 Computer Aided
Dispatcher i.e. CAD; the Geographic Inform System Maps,
which assists in identifying location of the caller and the
resources available, through GPS Police Management function.
The prosecution also relied on AMPR System (Number Plate) a
system used to truck cars reported lost, or during an
investigation to determine how a subject vehicle moved in the
city.
249. As stated earlier PW44 Inspector Ole Sena and PW45 Chief
Inspector Clement Mwangi were part of a team of investigating
officers of this case. The two are the ones who ultimately

compiled the investigation file. Their evidence as well as their
witness statements were largely similar.
250. PW44 stated that on 19th July 2016, he wrote to Safaricom for
the signature of Chief Inspector Owino (PW28 ), requesting to
be provided with all numbers that were captured by following
Cell Site Masts between 0900hrs of the 23rd June, 2016 and
0600hours of 24th June 2016:
a. Syokimau No. 14523
b. Essar Athi River 15596
c. Kamiritu No. 54275
d. Mastermind Mombasa Road No. 14561
e. Kilimambogo No. 14075.
251. PW44 stated that from the information availed to him, the
number 0727 433431 was traceable at all the five sites that
were of interest. PW44 stated that he first searched the
subscriber number in all the social media platforms. Upon
searching in “True Caller” the name recorded against that
number was only one name “Brown”. He further searched on
“Face book” and found a picture and a name Peter Ngugi. The
picture was produced as P. Exh. 108. It is the very image of
the 5th accused. PW44 testified that on facebook he found
friends of Peter Ngugi, some of them were Police Officers at
Mlolongo Police Station. One such officer was Wilson Kamau
who testified in court as PW26.
252. PW44 testified that on 4th August 2016 he wrote to Safaricom
requesting subscriber details for number 0727433431. The
details showed that the number belonged to one Peter Ngugi,
the 5th accused herein. This was the same man recognized by
the Face book picture.
253. On 4th August 2021, PW44 wrote a letter to Airtel Kenya
requesting for data of the subscriber details of four numbers
from Airtel.
f. 0731448728
g. 0732528782
h. 0786526465
i. 0786307473
254. He said that according to the Data, the number 0786526465

was captured at Athi River, Mastermind, Kilimambogo,
Syokimau and along Thika Road. The number was in constant
communication with 0727433431 whose registered owner has
been established to be the 5th accused person. That the No.
0786 526 465 was used in IMEA numbers 354590075559000
and 357185051061100. The latter IMEA belonged to PW22,
CPL. RICHARD NYAKUNDI of Mlolongo Police Station.
255. CPL Nyakundi, PW22 testified that on 23rd June 2016, at
around 0900hours, while at Mavoko Law courts, he was
approached by one Mr. Brown. He testified that the 1st Accused
introduced Mr. Brown to him at Mlolongo Police Station
Canteen on two occasions in the month of June 2016, saying
that he was an Administration Police Officer. He said that when
Mr. Brown requested for his phone so that he could make a
phone call, being an acquaintance and being in a hurry, he
removed his sim card number 0734 426 104 from one of his
handsets, P.Exh 38, and handed the handset to Mr. Brown. He
said that his mobile phone handset was a Samsung make IMEA
number. 367186/05/106110/7.
256. Through the IMEA handset, PW44 established from the data
that the number inserted when PW22 gave it to Mr. Brown was
no +254786307473. That number was used in the handset to
communicate 15 times. Ten of the 15 entries were sms’s while
the remaining 5 were voice calls. Of importance is that the
number was in constant communication with the number of
the 5th accused and also another number, 0786 526 645
registered in the name of Moses Kariithi, PW39. PW39 denied
ever having such a line. He gave his phone numbers
0726850335 and 0733236232 he testified that in January
2016 he lost his Identity Card and that he reported the loss to
Mlolongo Police Station.
257. The two numbers, Subscriber No. 0786526465 was registered
in the names of Moses Kariithi, PW39; while subscriber No.
0786 307 473 was registered under the name of Charles
Nyaberi; on the same day, 22nd June 2016, at 1809hrs and
1800hrs respectively, at the same retailer shop by the same
agent No. 0737142957, within Mlolongo area.
258. From the findings of analysis, the 5th accused inserted sim card
for number +254786307473, and that that line was in
constant communication with the number of the 5th accused
0727433431 and number, 0786 526 645. This was while the
5th accused was at Mavoko Law Courts until the three
deceased were kidnapped and taken to the Post, while the 5th
accused drove KBX 126C to Kamirithu. That means, the 5th
accused continued using his personal line, and therefore the
two other lines were used by others who were part of the team
that executed the murder of the deceased. These two persons
are not mysterious, they must be among those whose names
the 5th accused has given in his confession and his sworn
evidence, without singling out or mentioning their names in
connection thereof.
259. The other line analyzed by PW44, No. 0716 876 388 was
registered under Birds Eye Auto Track limited, another number
traced in some of the sites. PW44 stated that this number
(0716 876 388) was fitted in vehicle no. KBX 126C for
purposes of tracking it. That vehicle was the one used by the
three deceased persons to make their way to Mavoko Law
Courts. The trajectory of the phone signal data, P.Exh.94B
shows that on 23rd June 2016 the vehicle was at Thogoto at
05:47hrs, then at Multimedia University along Ngong road at
around 07:03am and thereafter got to Athi River at around
0846hrs. The signal at Essar Athi River captures Mavoko Law
Courts, where the Vehicle was captured stationery at that
point from 0846hrs up to around 1200hrs. It was captured at
around 1215hours leaving the Mavoko law court precincts. The
data shows that the deceased were intercepted at a railway
crossing and their vehicle driven to Kamirithu. PW44 testified
that the vehicle was captured at Kamirithu in Limuru on the
night of 23rd June 2016.
260. PW1 and PW4 confirmed the evidence that this same vehicle
collected the 1st deceased at Thogoto before picking the 2nd
deceased at his new home after which they proceeded to Athi
River for the trial.
261. According to PW44, the line of Josephat Muiruri, 3rd deceased
No. 0710975734 and that of Willy Kimani 1st deceased No.
0720009198 lost signals while at Essar Athi River at around
1141hrs. The data for the two numbers were P.Exh.96B and
P.Exh.96D respectively. The Essar Athi River mast was near
Mavoko Law Courts. This confirms that indeed the three
deceased were at Mavoko Law Courts on the said date and
time.
262. The technical evidence of the data of the 1st and 3rd deceased
establishes that the three deceased left their homes on the
early morning of 23rd June 2016, for Mavoko Law Courts where
they reached by 0800hours where they remained up to few
minutes to midday.
263. The movement regarding this vehicle and the phones of the
deceased was also part of the 5th accused’s retracted
confession and his oral evidence in court. The 5th accused
admitted both in his oral evidence and his confession that he
was given the role to drive the vehicle no. KBX 126C from Athi
River to Kamirithu, after the deceased persons disembarked
from it, which he said he did. The 5th accused stated that he
was left with four phones belonging to the deceased, and that
he switched them off and disposed of them one at a time as
he drove to Kamirithu.
Phone Data for the 1st and 4th Accused
264. PW44 testified that the phone data of Fredrick Leliman the 1st
accused herein, No. 0722 939 198, and of Leonard Mwangi
Maina, the 4th accused herein were not spotted along the
scenes of interest at the timings in question.
265. The 4th accused’s data, P. Exh.98B shows that he was away
from the geographical location of Mlolongo. Indeed the 4th
accused gave an elaborate defence of his movements on the
22nd and 23rd June 2016, backed up by four witnesses. He was
DW6. He said he was on a five-day leave effective 23rd June
2016, supported by the Matching Order, P.Exh.111. The 1st
accused (DW13) supported that evidence. He called his wife
DW7 who told court that her husband came home on the
evening of 22nd June 2016, spent that night and the following
nights until he went back to work five days later. The 4th
accused called DW8, his colleague with whom he had kuku
bahati lunch and also visited a construction site with him
within Ruiru. DW9 and DW11 who were siblings confirmed the
4th accused testimony that he met each of them separately in
the evening of 23rd June, at Thika Township. The phone data
of the 4th accused supported his movements as per his
defence, and testimony of his witnesses
266. The phone data of the 1st accused, P.EXH.98D showed that the
first part of the day he was enroute from Mlolongo. However,
at around 13:00hrs, the data spots him at Mlolongo Police
Station. At around 1351hours to 1554hours the phone was at
Mlolongo Valley where he was resident. At 1635hrs it is
captured at Mlolongo; at around 1723hrs at Centre Mombasa
Road up to around 1839hrs. That at 1855hrs, the 1st accused
phone is captured at Mlolongo Police station. At 2126hours his
phone is captured at Mlolongo Gwata area. At around 21:50hrs
at Mlolongo Police station; and at Mlolongo Valley at around
2201hrs.
267. The phone data of the 1st accused and the 4th accused places
them away from the relevant sites where the conspirators
swung into action to take the appropriate actions which
culminated with the murder of the deceased persons. In
addition, as shown on the part of the 4th accused, he put
forward alibi defence and called witnesses who corroborated
his defence, effectively shaking the veracity of the evidence of
the 5th accused confession against him, which was the only
other evidence against him. As for the 1st accused, there was
other evidence against him as shown in this judgment.
Phone Data of the 2nd and 3rd Accused
268. Mr. Ombetta for the 2nd accused submitted that the phone data
of the 2nd accused supported his defence of the times he was
not at the Post, which is the times the deceased were brought
and later taken away from the Post. Mr. Kigen for the 3rd
accused submitted that the 3rd accused played no role, was
not mentioned in the confession by the 5th accused and that
all that her phone data established was that she was in the
locations claimed, but that that did not connect her to the
offences. He also urged that PW18 in his evidence confirmed
that the 3rd accused left the Post at 1830hours. Mr. Kigen
urged in the alternative that the court should consider the
Police pecking order and find that the 3rd accused being a
junior officer had to obey orders.
269. PW44 presented the phone data for line No. 0720 388 784
registered under Stephen Cheburet Morogo the 2nd accused
herein. He testified that the phone data for the 2nd accused, P.
Exh.100B shows that on 23rd June, 2016 at 0619hours, he was
at Syokimau Kiungani which is within the AP Post. At around
0842hrs his phone was at Mlolongo Police station. This is also
around the same time that 5th accused arrived there from
Waithaka.
270. At 0924hrs, the signal locates 2nd accused phone was around
Essar Athi River which covers Mavoko Law Courts. PW44 said
that that was also the same time that 5th accused arrived at
the Law Courts Premises. At around 10:40hrs to 10:48hrs the
2nd accused phone is located at Athi River Trans-view which is
where the railway line, the site of the kidnapping is located.
At 11:13hrs to 12:01hrs, signal is along Mombasa Road
whereas at 12:10hrs it is at Caltex depot. At 12:12hrs, signal
is back at Syokimau AP Post and it remains there up to
1849hrs without leaving. The time of 1212hours is crucial
because it was around the same time that the deceased
persons were transported to the Syiokimau Police Post, and
placed in the cells, and kept until evening. Between 1830hours
and 1900hours the deceased were taken from the Post to the
Soweto open field, the murder scene.
271. PW44 stated that at around 1851hrs the 2nd accused phone
signal was recorded at Caltex Depot and 9 minutes later at
Mastermind Mombasa road. At around 1906hrs, PW44 testified
that the 2nd accused’s phone was captured at Mlolongo Police
station where he stayed up to around 2002hrs before going
back to Mastermind, the Soweto open field area. At around
2220hrs the 2nd accused phone went off since no further data
was collected.
272. PW44 testified that No. 0719 644 520 was registered under
Sylvia Wanjohi who is the 3rd accused herein. Her phone data
P.Exh.97B shows that on 22nd June 2016, she was at Mlolongo
until 2005hours when she returned to the Syokimau A.P camp.
PW44 testified that on 23rd June 2016, the phone data reveals
that the 3rd accused was within Syokimau Camp as from
1009hrs to 2231hrs. Between 2231hrs on 23rd June and the
morning of 24th June 2016, there was no data generated from
her phone which meant that the phone was switched off. PW44
stated that it meant that the 3rd accused was stationed at the
camp throughout the day of 23rd June 2016, and never left the
station between 1009hours and 2031hours.
273. Given the circumstantial evidence adduced against the 2nd and
3rd accused, what was required of them in law is an
explanation to rebut the statutory presumption created by
virtue of the fact their phone data placed them in all the loci
in quo as described in respect of the 2nd accused, and in the
Post at all the relevant time in respect of the 3rd accused. The
2nd and 3rd accused do not deny that the phone numbers were
theirs. That means that what happened at the Post, in respect
of the 3rd accused, and what happened in the loci in quo in
respect of the 2nd accused was within their knowledge, and
that it was in their best interest to offer a reasonable and
plausible explanation in that regard. Under Section 111(1) of
the Evidence Act, the 2nd and 3rd accused have a statutory
burden to give an explanation to rebut the statutory
presumption created by the circumstantial evidence that they
were involved in the murders.
274. The Supreme Court in Republic v Ahmad Abolfathi
Mohammed & another [2019] eKLR, Petition 39 of 2018
held that:
“In the above context, it is our view that,

while confessions under Section 25A are often
made to the Police during investigations, as
counsel for the respondents argued, Section
111(1) deals with the burden of proof and
only comes into play in the trial when the
prosecution has proved, to the required
standard of beyond reasonable doubt, that the
accused person committed an offence and
part of the prosecution case comprises of a
situation only “within the knowledge” of the

accused person so that if he does not offer an
explanation, he risks conviction.’
275. The data on the phone of the 2nd accused (DW1), P.Exh.100B,
contradicts his testimony of where he spent the day. The 2nd
accused did not deny having his phone and using it on the 23rd
June, 2016. His testimony was that he left the Post at
0600hours for Athi River for personal matters, which he
completed doing at 0950hours. He then testified that he
proceeded to City Cabanas, an area covered by Caltex
Mombasa Road Mast, where he met with the 2nd accused for
purposes of viewing a cooker at Ramtons Supermarket. He
said that they returned to the Post and that he was there from
midday to 1800hours.
276. The 3rd accused in her unsworn defence told the court that she
went with the 2nd accused to City Cabanas on 23rd June. She
stated that she spoke with PW18 to hold fort. She then said
that she left for Cabanas at 1100hours and reached there at
1130hours. She said she returned to the Post at 1230hours.
She then said that she left the station at 1830hours having
given the keys to the cells and armory to PW21. She said that
she was given a lift from the Post at 1830pm to Mlolongo
where she stayed until 2000hours. Her witness DW3 in his
evidence said that he picked the 3rd accused at the Post at
1840hours, and dropped her at Mlolongo at 1910hours.
277. The 3rd accused called DW4, CPL Faith Mutiso who told the
court that when she entered in OB at the Post that she had
signed out of day duty at 1700hours, she did not find the 3rd
accused at the report office.
278. I considered the unsworn testimony of the 3rd accused. Her
evidence was that she was on duty at the Post between
0600hours and 1800hours. PW18, the one the 3rd accused
claimed she left at the Post to hold her fort between 1100hours
and 1230hours denied ever receiving such a request. PW18
testified that he was the Duty Officer at Mlolongo Police
Station, and that he was leaving the Post for duty at around
1230hours when he met the 2nd accused returning to the Post.
The 2nd accused admitted in his evidence that he met with
PW18 leaving the Post as he returned at 1230hours.
279. The evidence of PW21 was that he found the 2nd and 3rd
accused at the Post chatting away at 1830hours when he
returned there from a one day’s leave. He testified that the 3rd
accused gave him the keys to the cells and armory between
1900hours and 1930hours. That evidence is consistent with
the 3rd accused phone data. The evidence of DW3 that he
picked the 3rd accused outside the Post at 1840hours is also
not correct in terms of time. For DW4, her evidence
contradicts the evidence of the 3rd accused, saying the 3rd
accused was not at the station at 1700hours.
280. The prosecution has shown that the 2nd accused was present
at all the loci in quo except for Kilimambogo, that is, at Mavoko
Law Courts where the three deceased attended a court
session. That he was at the Railway line where the three were
kidnapped at the time it happened. That he arrived at
Syokimau Police Post at the time when the three deceased
were placed in the cells there. And that the 2nd accused was
at Soweto open field where the deceased were murdered at
the time that the murder was committed.
281. For the 3rd accused, the prosecution has established that she
was on duty as report office personnel and cells sentry when
the three deceased were taken to the Post. She had the
responsibility over the key to the cells. Therefore, she must
have opened the door for the deceased to be placed in the
cells. She remained in the Post from 1009hours to 2000hours,
which period covered the time the deceased were taken to the
Post to the time that they were removed from there. I am
satisfied that the phone data of the 2nd and 3rd accused was
the true record of their movement and or location on the whole
of the 23rd June 2016. That data clearly shows that the two
played a part in the murder of the deceased.
Whether the prosecution has established that the accused
persons were principle offenders, acted with one common
intention or concert to commit the offence; Whether the
circumstantial evidence adduced was sufficient to lead to a
conclusion that the accused persons murdered the deceased
persons;
282. I will begin by quoting a persuasive treatise on what common
intention means. Samuel March Philips, A Treatise on the
Law of Evidence (1820) 4th ed. P96-100 opines:
‘It is an established rule that where several
persons are proved to have combined together
for the same illegal purpose, any act done by
one of the party in pursuance of the original
concerted plan and with the reference to the
common object is in the contemplation of law
……..the act of the whole party and therefore
the proof of such act will be evidence against
any of the other who were engaged in the
same general conspiracy. Without regard to
the question where the prisoner is proved to
have been concerned in the particular
transaction……. the same rule subject to the
same limitations must apply to the declaration
of conspirators…… Any declarations made by
one of the parties in pursuance of the common
object of the conspiracy are evidence against
the rest of the party who are as much
responsible for all that has been said or done
by their associates in carrying into effect
concerted plan as if it had been pronounced by
their own voice or executed by their own
hand…….What the other may have said not in
furtherance of the plot but as a mere relation
of some past transaction as to the share which
some of the others have had in the execution
of the common design cannot, it is conceived,
be admitted in evidence to affect other
persons…….’
283. The offence raises public interest concerns pursuant to Section
4 of the Law Society of Kenya Act No. 21 of 2014. According
to the 1st and 2nd Interested Parties in explaining
circumstances surrounding motive, threat, the kidnapping,
detention and the eventual syndicated conspiracy argue that
all the accused were accomplices in the offence. The
Interested Parties relied on the Court of Appeal decision.
Waringa V. Republic [1984] KLR where the court upheld R V.
Taibali Mohamedbhai [1943]10 EACA 60 to lay the criteria for
accepting accomplice evidence as follows:
‘What is required is that there should be
independent testimony corroborative of the
evidence of the accomplice in some material
particular implicating the accused or tending
to connect him with the crime with which he is
charged. The principle is that if an accomplice
is so corroborated not only may that part of his
evidence which is collaborated be relied on but
also that part which is not corroborated.’
284. Mr. Kigen submitted that due to the pecking order and that
due to the junior rank of the 3rd accused she had no choice but
to obey. Mr. Kigen submitted that the 3rd accused Data shows
that she did not communicate with co-accused or deceased,
and was not at any of the sites which was the scene of murder.

Counsel relied on the case of Republic v Ismail Hussein
Ibrahim [2018] eKLR proposition that:
‘malice afterthought describes the measures

or the mental element required for a
conviction for the offence of murder. The term
imports a notion of culpability or moral
became worthiness on the part of the
offender. If malice aforethought is lacking the
unlawful homicide will not be murder but
manslaughter.’
285. Counsel urged that malice aforethought as prescribed in

Section 206 of the Penal Code all together is also incoherent’.
He urged that the second ingredient of murder, actus reus was
also not proved. That there was no evidence adduced to show
that the 3rd accused had anything to do with the murder of the
deceased. Counsel relied on the case of Republic v. Ibrahim
Odhiambo [2014] eKLR. Counsel also relied on the case of
Republic V. Esther Ndolo Mwendwa [2004] eKLR which
held:
‘Although the doctor confirmed that the cause

of death of the deceased was due to
strangulation, the fact that the accused was
left with the deceased and the deceased was
found dead in bed is not sufficient to found a
conviction. There is no evidence that it was the

accused who strangled the deceased. The
burden was on the prosecution to prove the
accused guilty beyond any reasonable doubt
has not been discharged.”
286. The prosecution proved that the 3rd accused was at the Post
between 1009am to 1900hours, that due to the opening
between the Cells and the Report Office at the Post, the 3rd
accused must have seen the deceased in the Cells. It was
established that she was the sole officer on duty at the Post.
Thus she was responsible for the key to the cells, and had
custody of them.
287. The submissions by Mr. Ombettta and Mr. Kigen for the 2nd
and 3rd accused respectively, that the phone data of their
clients were in line with their defence is not accurate. Their
defence was in direct contradiction with their phone Data as
shown here. The alibi defence the two put forth as their
defence was totally displaced, as 2nd accused phone data
captured him at all the loci in quo where the crime sites were
located, at the very relevant times the events in question took
place. The only place the 2nd accused was not located is the
journey from Soweto open fields to Kilimambogo areas. That
means that the 2nd accused was involved in the entire
execution phase of the murder of the deceased from the time
he proceeded to Mavoko Law Courts, all the way to the time
he proceeded to Soweto open fields, and remained there until
8pm when he switched his phone off.

288. For the 3rd accused she was at the Syokimau Post Post
continuously the entire day from 10:09am to past 07:00pm.
which are the times the deceased were placed in cells and later
collected for the murder site.
289. Chapter V of the Penal Code is titled “Parties to Offences”
Section 20 deals with Principal Offenders and provides:
“ (1) When an offence is committed, each of the
following persons is deemed to have taken
part in committing the offence and to be guilty
of the offence, and may be charged with
actually committing it, that is to say—
(a) every person who actually does the act or

makes the omission which constitutes
the offence;
(b) every person who does or omits to do any

act for the purpose of enabling or aiding
another person to commit the offence;
(c) every person who aids or abets another

person in committing the offence;
(d) any person who counsels or procures any

other person to commit the offence, and
in the last-mentioned case he may be
charged either with committing the
offence or with counselling or procuring
its commission.”
290. In my considered view, given the fact that the 3rd accused was
the police officer manning the OB desk and also had the keys
to the cells, where there was no entry in the Occurrence Book
or in the Cells entry made to indicate that the deceased
persons were held at the station, she was a principal offender.
There is no way the deceased could have entered the cells
without her releasing the key to open it. She could not feign
ignorance of the fact the deceased persons were in the cells
as from the evidence of PW14 and PW39, her desk in the
report office was at par with the opening between the report
office and the cells. She was on duty continuously between
1009am and 1930hours, and present at the Post all that time
as per her phone data. Being a police officer, the 3rd accused
knew the importance of keeping proper and up to date records
at the Post. It ought to have occurred to her that there was an
illegal and wrongful intention to secretly detain the deceased
at the Post the moment no entry was made in the OB. The 3rd
accused is a principal offender within the meaning of Section
20(1) (b) & (c) of the Penal Code, and her position is similar
to the persons who committed murder against the three
deceased.
291. If the 3rd accused had dissociated herself from the other co-
accused by some action, in order to show that she was not
with them in the offence, then her role could have turned out
to be different. However, she did not dissociate herself from
the others, what she did was to deny knowledge of the
incident. That does not exonerate her of these offences.
292. I have considered that an accused person has the right to
refuse to give self-incriminating evidence as set out in Article
50(2) (l) of the Constitution. As a general rule, the burden of
proof in criminal cases rests with the prosecution and this is
also as provided for under Section 107 of the Evidence Act
which states that “whoever desires any court to give judgment
as to any legal right or liability dependent on the existence of
facts which he asserts must prove that those facts exist.” It
then follows that if an accused person chooses to hide some
facts in order to protect others in court or at large, such an
accused cannot be compelled to give such facts since the
burden lies with the prosecution to bring out such facts. The
burden only shifts to the accused person under circumstances
bringing into operation the provisions of Section 111(1) and
Section 119 of the Evidence Act.
293. In this case the burden shifted to the 3rd accused to explain
how the deceased were held at the Post while she was on duty,
without any entry in the OB; how they were placed in cells and
later removed while she had custody of the keys to the cells.
Instead of explaining these facts, the 3rd accused decided to
deny and also mislead, feigning ignorance that the deceased
were never there, as well as trying to escape culpability by
implicating PW18 and PW21 as ones with the keys at the time

the deceased were taken to and removed from the Post,
respectively.
294. Even where the role played by the 3rd accused was that of
aiding and abetting, except for change of terminology, at the
end of the day, she is still a principle offender under Section
20 (1) (c) of the Penal Code.
295. In John Ouma Awino & Another v Republic (2014) eKLR,
Criminal Appeal No. 124 of 2014, at paragraph 35, the
Court of Appeal at Nairobi, explained what aiding and abetting
means as follows:
“Aiding and abetting generally means
somehow to assist in the commission of a
crime or to be an accomplice. The elements of
the offence have been variously expressed in
different jurisdictions of the world, but they
encompass proof that the person knew that
his acts would assist the commission of the
crime by the perpetrator or that he was aware
of the substantial likelihood that his acts
would assist the commission of a crime by the
perpetrator. It is not necessary that the aider
and abettor had knowledge of the precise
crime that was intended and which was
actually committed, as long as he was aware
that one of a number of crimes would

probably be committed, including the one
actually committed.”
296. As for Mr Kigen’s submission in regard to the Pecking Order,

to obey orders to commit an offence is not a defence, certainly
not to murder. It cannot be a defence available to the 3rd
accused in the circumstances of this case. Her role was critical
as it was possible for her to thwart the bad intentions of her
co-accused just by entering in the OB the placing of the
deceased in the cell. And it was her responsibility to enter the
OB if the ones who were expected to do so failed, as she was
the one manning the Post at the time.
297. For the 2nd accused and the 5th accused, they were principle
offenders, by virtue of Section 20 (1) (a) which provides that
‘every person who actually does the act or makes the omission
which constitutes the offence.’ The two of them took an active
role in the kidnapping of the deceased, concealing their
missing vehicle, detaining them without disclosure, ferrying
them to the murder scene and ferrying them around for each
of these purposes.
298. The 5th accused in his statement stated that when they drove
the deceased to Soweto open field, the co-conspirators argued
for three hours whether to kill the deceased or not before they
finally took their lives. The fact they argued, then resolved to
continue with their planned intention to take life, does not
reduce their actions to anything less than murder. They had a

common intention within the meaning of Section 21 of the
Penal Code which provides as follows:
“When two or more persons form a common
intention to prosecute an unlawful purpose in
conjunction with one another, and in the
prosecution of such purpose an offence is
committed of such a nature that its
commission was a probable consequence of
the prosecution of such purpose, each of them
is deemed to have committed the offence.”
299. For the 2nd, 3rd, and 5th accused, I am satisfied beyond any
reasonable doubt that the prosecution has established that the
accused persons were principle offenders, acted with one
common intention to commit the offences charged as
explained herein above. The evidence adduced by the
prosecution against these three accused, which was largely
circumstantial evidence was sufficient to lead to a conclusion
that the accused persons murdered the deceased persons.
300. As to the alibi defence the 2nd and 3rd accused put forward, I
am satisfied that it has not shaken the prosecution evidence
against them.
TRAJECTORY
301. PW37 was an officer based at the Integrated Communication
and Command and Control House (IC3), Inspector General’s
Office Jogoo House, Nairobi. He testified that IC3 is a Centre
where all the 999 and 112 Emergency Numbers are received.
PW37 testified that the radio, P.Exh.25 was designed to give
a location of its whereabouts.
302. PW37 stated that on 27th June 2016, he was assigned a
request through his boss to query the system. The request
was through letter requesting for information on some vehicles
and they wanted to be assisted with footage on vehicle
Movements of vehicle registration numbers KAT 369G; KBX
429G; KBX 126C; KBB 761T and KAT 369. He was also
requested to avail:
i. 1). the Printed movement data of all radio
gadgets within Mlolongo and Athi River at an
interval of 20 minutes starting from 23rd June
2016 at 1200hours to 15th July 2016 at 0900
hours.
ii. 2). Video clips of Ole Sereni Junction entering

towards Southern Bypass and that of T-Mall
Junction from Langata Road for same period.
20th June 2016 at 12.39 hours to 23rd June
2016 at 1313 hours.”
303. I have already dealt with the evidence regarding the vehicle
Reg No. KBX 126C when dealing with retracted confession and
the sworn of the 5th accused. The data produced by PW37 of
this vehicle tarries with retracted confession and the sworn
defence.
304. PW37 testified that the investigating officers were concerned
to know whether any police radio phone registered activity
within Mavoko Law Courts particularly in the hours of 1200
hours on 23rd June 2016. One radio fitted that description and
that was radio with ISDA No.35903304, which is P.Exh.25.
305. PW37 stated that on further query of the serial number, it
indicated that the Radio Phone was captured at Syokimau
Police Post at 1220hours to 1240hours. The radio phone was
captured at Mlolongo Police Station between 15.20 hours and
15.40 hours. The radiophone was later captured again
between 1840hrs and 1900hrs at Syokimau Police Post. The
radio was captured at an isolated field, MasterMind area called
Soweto, between 1940hrs and 2000hrs. At around midnight
the radio was captured on the Eastern Bypass traveling
towards Kangundo Road. It was again captured at Thika Super
Highway at 00.40 hours and 01.00 hours on 24th June 2016
(same night). Finally, on 24th June 2016, the radio was
captured at Valley View Estate, between 2220hours and 2240
hours.
306. That radiophone, P.Exh.25 according to PW20, OCS Mlolongo,
was IMEA No. 864106020019873 and was issued to in-charge
Spiv, Snr. Sgt. Leliman (1st accused). PW20 testified that
every radio has its own charger and that every office had a
charger. PW20 testified that he issued the 1st accused with
the radio P.Exh.25 which he received together with its charger.
307. The 1st accused stated that upon deployment from Athi River
Sub-County Headquarters to Mlolongo Police Station following
his transfer from Turkana to the region, his boss, DW10
Commissioner of Police, issued him with a firearm, bulletproof
jacket and a radiophone. The 1st accused gave its number as
Police No. 55903101 and the IMEI No. 86410602031076,
P.exh 35. The 1st accused stated that it was that radiophone
that he and his Spiv team used for their work.
308. He explained that he could not have given this radio phone to
anyone else except Sgt. Mwangi as the other officers were
from regular police. That since the 4th accused was proceeding
on short leave, he went home with the radio. That on 23rd June
2016 it was at home. That on 24th June 2016 he left the radio
charging at Mlolongo Police Station, Crime office, when upon
switching it on in the morning of 24th June, he realized it had
no charge.
309. Mr. Ombetta submitted that the police should have
investigated the alibi defence of the accused, given it was put
forward early enough, For that proposition he relied on the
Nigerian case of Adedeji V. the State [1971] IAK nlr75
where it was held
‘failure by the police to investigate and check the reliability of alibi
would raise reasonable doubt in the mind of the tribunal and
lead to quashing of a conviction”.
310. Counsel also relied on Wangombe VR [1980] KLR 149 for
the proposition a prisoner who puts forward an alibi as an
answer to a charge does not thereby assume any burden of
proving that answer; it is misdirection to refer any burden as

resting on the prisoner in such a case. For the burden of
proving his guilt remains throughout on the prosecution.
311. The prosecution established that on 1st July 2016 when the 1st
accused was arrested, he had the radio, P.Exh.25. The 1st
accused acknowledged this in his defence evidence. As shown
above in the evidence of PW37, this radio phone was captured
in all the sites at the various stages in the sequel of the
commission of the murders. It was at the Post at Syokimau
Police Post at 1220hours to 1240hours when the deceased
persons were delivered there and placed in cell. It was
captured again between 1840hrs and 1900hrs at Syokimau
Police Post, the time the deceased persons were removed from
the cells for Soweto open field.
312. The radio was captured between 1940hrs and 2000hrs at the
Soweto open field where the murders took place. At around
midnight the radio was captured on the Eastern Bypass
traveling towards Kangundo Road. The radio phone was
captured at Thika Super Highway at 00.40hours, which is the
time of the return trip from Ol Donyo Sabuk. PW37 testified
that the phone radio signals could be tracked within Nairobi
area, and towards Thika, the signal tracking ends around Juja,
which explains lack of tracking beyond Juja area both for the
trip towards and trip from Kilimambogo.
313. Under Section 111(1) of the Evidence Act, the 1st accused
had to discharge a rebuttable presumption by offering a
reasonable explanation about police radio phone P.Exh 25,

which was tracked in all the loci in quo, and nine days later
was found with him.
314. I have considered the sworn testimony of the 1st accused. The
1st accused stated that upon deployment from Athi River Sub-
County Headquarters to Mlolongo Police Station following his
transfer from Turkana to the region, his boss, DW10
Commissioner of Police, issued him with a firearm, bulletproof
jacket and a radiophone. The 1st accused gave its number as
Police No. 55903101 and the IMEI No. 86410602031076,
P.exh 35. The 1st accused stated that it was that radiophone
that he and his Spiv team used for their work.
315. He explained that he could not have given this radio phone to
anyone else except Sgt. Mwangi as the other officers were
from regular police. That since the 4th accused was proceeding
on short leave, he went home with the radio. That on 23rd June
2016 it was at home. That on 24th June 2016 he left the radio
charging at Mlolongo Police Station, Crime office, when upon
switching it on in the morning of 24th June, he realized it had
no charge.
316. The 1st accused was arrested on the 1st July 2016, carrying the
radiophone P. Exh. 25. When asked how come he had it, yet
his evidence was it was never used by his team, or ever issued
to them, he said that he left his radio P.Exh.35 charging in the
office on the morning of 24th June 2016. That he proceeded
to Makindu Police Station but on his return, he could not find
it, so he grabbed the one he found charging, which happened
to be P. Exh.25.
317. What 1st accused needed to give was a plausible and
reasonable explanation how he came to be found with
P.Exh.25, which had been to all five loci in quo of this case,
and yet he insisted the radiophone was not the one that had
been issued to his team. His explanation is incredible for
reasons; One, PW34 County Communications Officer,
Machakos testified that on 26th April 2016 he issued new
pocket phones to Athi River Division which was to start using
the new system of radios covering Nairobi area. PW34 testified
that he indicated who should receive which specific radios. In
Mlolongo, he said the specific pocket phones that the OCS, his
Deputy, his Spiv Team, the CID Section and Syokimau Police
Post, were to be issued with as per his register P. Exh 73A;
Two, PW20, the OCS Mlolongo confirmed that the 1st accused
received the radio allocated to Spiv team, P. Exh.25; Three,
the radio. P.Exh. 36 had no data, and PW37 testified that the
reason for no data was because it was never used at any one
time.
318. Indeed, when PW44, PW45 and their team recovered it, it was
in the house of the 4th accused. The radio was neatly packed
in its box, complete with its wrappings and the nylon film used
to protect the screen when new. It is therefore, not true what
the 1st accused said that he and his Spiv Team used that
gadget for their work; Four, after being in each of the five sites
or loci in quo of the murders, the radio P. Exh 25 was captured
at Valley View Estate, between 2220hours and 2240 hours on
the night of 23rd and 24th June 2016. Valley View Estate is
where the 1st accused house was, where he lived with his
family at the time; Five, the 1st accused was carrying the radio,
P. Exh. 25 on the 1st July, 2016 when he was arrested at Flying
Squad Offices where he had been summoned. Lastly, since the
1st accused said that he was the one who had the radio phone,
P. Exh. 36 on the morning of 24th June 2016 when he left it
charging in the office, how did it get to the house of the 4th
accused, in its box wrapped as new, complete with the
protective film on the screen? Yet the 4th accused was away
between night of 22nd June 2016 to 27th June 2016. How did it
get to 4th accused house?
319. The evidence of the police radiophone trajectory detailing the
movement of the radiophone P.Exh.25, on the 23rd June 2016,
and the evidence of its recovery from the 1st accused nine days
later, all show that the 1st accused as in-charge Spiv, and in
line with accountability protocol of accountable gadgets like
police radio phones, had custody of the radiophone, and had
used it exclusively at all the five loci in quo at the time the
offences were committed. The prosecution proved that the
radio issued to the 1st accused by DW10 was never put to use.
I find that as the radio indicated, the 1st accused was at the
Mlolongo Police Station on the 23rd June, 2016. He proceeded
to Mavoko Law Courts, them to Syokimau Police Post, to
Soweto later that evening where the deceased were all
murdered and to Kilimambogo through Thika Superhighway to
dump the bodies of the three deceased persons; before

returning to fete his co-accused at his bar in Mlolongo, for
work well done.
320. I considered the 1st accused defence, the evidence of his
witnesses. I find that the prosecution has established that it is
the 1st accused who had the motive to harm the 2nd deceased
in this case, because as a result of the complaint he made
against him at IPOA, his job was on the line. The 1st accused
may have gone to Uhuru Camp to help his sister-in-law that
morning up to 12:30pm. However, from then on, the evidence
is overwhelming that he personally attended to ensure that
the deceased were captured, detained to await night fall,
murdered and their bodies flung into the river to make it
difficult to ever recover them. His explanation about the police
radio phone P. Exh. 25, just as his alibi defence, is
unreasonable, incredible and not plausible. I reject it in total.
321. I have carefully considered the entire evidence adduced in this
case by both sides. I have considered the submissions by
counsel and the authorities relied upon. Having done so, I find
that the circumstantial evidence on each of the trajectory
evidence against each of the accused and phone data
established against the 1st, 2nd, 3rd, and 5th accused justify the
drawing of an inference of guilt to the exclusion of any other
reasonable hypothesis except that of guilt. Indeed, the
principles set out by the Court of Appeal in Abanga Alias
Onyango vs Republic Criminal Appeal No. 32 of 1990 (UR)
is that when a case rests entirely on Circumstantial Evidence
such evidence must satisfy three tests. First, the
circumstances from which an inference of guilt is sought to be
drawn must cogently and firmly established. Secondly, those
circumstances should of a definite tendency an unerringly
pointing towards the guilt of the accused. Finally, the
circumstances taken cumulatively should form a chain so
complete that there is no escape from the conclusion that
within all human probability the crime was committed by the
accused and none else I considered whether there were co-
existing circumstances weakening the chain of circumstances
relied upon and found none. I am satisfied that there is no
other reasonable hypothesis that can be made on the basis of
the evidence before me except that of guilt.
322. In the result, I find that the 4th accused alibi defence shock
the veracity of the evidence of the prosecution against him,
being that of the 5th accused alone. I give him the benefit of
doubt and acquit him in all three counts under Section 322 of
the Criminal Procedure Code.
323. I am satisfied that the prosecution has proved the case against
the 1st, 2nd, 3rd and 5th accused beyond any reasonable doubt.
I find the 1st, 2nd, 3rd, and 5th accused guilty of the three counts
of murder contrary to section 203 of the Penal Code.
Accordingly, I reject their defences, find them guilty as
charged and convict them accordingly under Section 322 of
the Criminal Procedure Code.

324. The 1st, 2nd, 3rd and 5th accused are informed of their right of
appeal within 14 days of today.
DATED AT NAIROBI THIS 22ND DAY OF JULY 2022
JESSIE LESIIT
……………………
JUDGE
In the presence of:
For the State………………………Mr. Nicholas Mutuku/Ms. Mbula Rubi
For the 1st and 2nd Accused…. Mr. Cliffe Ombetta
For the 3rd Accused…………..Mr. Katwa Kigen/Ms. Nicholas
For the 4th Accused……………. Mr. James Muchere
For the 5th Accused……………..Mr. Kevin Michuki
For the Victims………………….. Ms. Janise Muchemi (h/b for Dr. Fred
Ojiambo
For the LSK…… Mr. Erick Karuri (LSK President)/Prof. Ben

Sihanya/Mr. Stephen Ongaro
For the IJM………Ms. Janise Muchemi
Accused…………………… All present
Kenneth Kinyua …………………………..Court Assistance.
Court
I wish to register my gratitude to the learned Prosecution Counsel,

learned Counsels for the Defence and learned Counsels for the
Victims and Interested Parties. Thank you for the great support,
your industry and contribution to jurisprudence and for giving me
an opportunity to complete this case.
That also applies to the Accused persons.
I wish to end with a little story.
A man told his son that he wanted to teach him a new trade so he
asked him to follow him.
They went to the neighbours farm and stood next to a tree. The
father told the son to look around as he climbed up to pluck some
mangoes. He told him that his role was to look around, and if he
saw anyone, anyone at all, to start running home and his father
would follow to avoid arrest.
So, the old man climbed the tree. After five or so minutes, the
father saw his son running, so he climbed down and followed him.
After running for some time and seeing no one following them the
father stopped his son and asked him why he ran, telling him that
he did not follow his instructions.
The son said, ‘No but I did follow instructions, I looked up and saw
God looking down on us and so I ran.’
DATED AT NAIROBI THIS 22ND DAY OF JULY 2022
JESSIE LESIIT
………………………
JUDGE

Judgment Hcccrim No 57of 2016 JL Final

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REPUBLIC OF KENYA

HIGH COURT AT NAIROBI

CORAM: LESIIT, J (IN OPEN COURT)

FREDRICK OLE LELIMAN …………………….…......1ST ACCUSED

1 HCCR. CASE NO. 57 OF 2016

1. Fredrick Ole Leliman, 2. Stephen Cheburet

On the night of 23rd and 24th June, 2016 at

2 HCCR. CASE NO. 57 OF 2016

1. Fredrick Ole Leliman, 2. Stephen Cheburet

On the night of 23rd and 24th June, 2016 at

1. Fredrick Ole Leliman, 2. Stephen Cheburet

On the night of 23rd and 24th June, 2016 at

THE TAKE OVER OF THE TRIAL

3. It is important to mention that I took over this case on the

6. The lead Prosecution Counsel in this matter was Mr. Nicholas

7. In all, the prosecution called 46 witnesses, and an additional

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8. PW41 CI Owino was based at the Flying Squad, at Nairobi area

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THE DEFENCE CASE

INGREDIENTS FOR THE OFFENCE OF MURDER

46. The offence of murder constitutes four ingredients:

ii. That their death was unlawful;

iv. That the evidence on record establishes a

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(a) An intention to cause the death of or to do

(b) Knowledge that the act or omission causing

(c) an intent to commit a felony;

(d) an intention by the act or omission to facilitate

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50. As to what constitutes proof beyond reasonable doubt the case

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ii) Whether the DNA analysis Report by the

iii) Whether the retracted confession of the 5th

iv) Whether the prosecution has proved motive;

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vi) Whether the prosecution has established that

vii) Whether the circumstantial evidence adduced

viii) Whether the alibi defence put forward by the

CORAM NON JUDICE

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“The jurisdiction of the court of appeal, we

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“A necessary implication is one which

56. Counsel also relied on Joel Nyambuto Omwenga & 2

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“It is only after the appointments have taken

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87…. As regards criminal cases, the Criminal

“4. Subject to this Code, an offence under the Penal

5(1). An offence under any law other than the Penal

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88. Under the fifth column of the First

91. We have carefully evaluated the rival

93. In the present petition, it is apparent to

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105. Other than the statutory requirements