Edward Nyarunda Ratemo v Republic

apprehended. The deceased was rushed to Moyale District Hospital, where he was pronounced dead on arrival. 4. PW2, P. C. Stanley Mwiti, PW3, P.C. Jillo Adi Jillo, and PW5, P.C Julius Kowon, were the responding ocers. It was their evidence that they heard gunshots from their various posts within the prison. When they got to the scene, they found the appellant lying under a vehicle. After cornering him, the appellant nally surrendered himself together with his rearm. The appellant was thereafter arrested. The deceased who was on the ground bleeding, was rushed to the hospital. 5. PW4, Chief Inspector Jared Chichaba, of Akala Police Station, testied that he was at the said station on 24th July, 2014, at 10. 15 p.m. when he heard a gunshot. He proceeded to Moyale G.K. Prison accompanied by other police ocers. He was informed that one prisons ocer had been shot and rushed to Moyale District Hospital. He went to the hospital where he learnt that the said ocer had succumbed to his injuries. The deceased had injuries on his head, chest and abdomen. He took a sketch plan of the scene and recovered ve cartridges of spent ammunition. He also recovered a G3 ammunition that was recovered from the appellant, as well as the arms movement register. 6. PW6, Richard Keith Mutisya, is a brother to the deceased. He stated that he identied his body at Embu hospital mortuary. PW8, Dr. Bill Khalumi, produced the deceased’s post mortem report. The deceased’s cause of death was determined as cardio-pulmonary arrest, secondary to severe brain injury and severe lung injury, caused by gun shot injuries. 7. PW7, Chief Inspector Alex Mundindi, from the Directorate of Criminal Investigations, testied that he received various exhibits for examination being, a G3 rie serial No. 011464, an MP5 submachine gun serial No. 823726, ammunitions, two magazines, ve spent cartridges and ve damaged ammunitions. It was his evidence that both rearms were in good condition and capable of being red. He stated that the magazine from the MP5 gun was damaged by a high velocity projection such as a bullet, and could not be used. It was his nding that the spent cartridges were all red from the G3 rie, having test red the rie, and bearing in mind that cartridges were uniquely identiable to a particular weapon. 8. PW9, PC Benson Mutua, of the Directorate of Criminal Investigations, was the investigating ocer. He testied that he took over exhibits in the case from PW4 which included a G3 rie with its magazine, ve spent cartridges, MP5 sub-machine gun with its magazine, a sketch plan of the scene and an arms movements register. He recorded witness statements and forwarded the exhibits for ballistic examination. During his investigations, he discovered that the appellant and the deceased were colleagues, and that the deceased was in charge of the prison guards, and further that the appellant shot the deceased. He stated that according to the arms register, the appellant was issued with a G3 rie serial number 93011464, together with a G3 magazine, on 24th July, 2014, from which the ve spent cartridges collected at the scene were red from. He testied that after concluding his investigations, he recommended that the appellant be charged with the murder of the deceased. 9. The appellant was placed on his defence. In his sworn statement, he told the court that he worked at Moyale G. K. Prison, and that on 24th July, 2014, at 6.50 p.m., he reported to the deceased for his night shift duty. PC Mwania issued him with a G3 rie. He joined PW1, PW2, PW3 and the deceased at the main gate. At about 9.00 p.m., the appellant stated that he heard a group of people making noise outside the gate. He stated that, at the time, there was increased cases of tribal clashes in Moyale. He decided to go and check what the commotion was, but the deceased advised him against it. At about 10.00 p.m., PW2 went to answer a phone call outside the gate. The appellant stated that he suddenly heard a gunshot. He panicked and stood up. PW1 also stood up. He then saw the deceased fall down from his seat. He, together with PW1 cocked their guns and red in the air. PW2 also came back and https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1694/eng@2026-09-25 2

page 2 of 6

red a shot in the air, as well the guards on the watch tower. The appellant stated that he took cover to avoid being shot at. PW2 came to him and ordered him to surrender. He complied. PW1 told the other ocers that it was the appellant who had shot the deceased. He was handcued and escorted to Moyale Police Station. The appellant stated that he red ve rounds of ammunition in the air. He testied that he had no bad blood with the deceased. 10. At the end of the trial, the learned Judge (Chitembwe, J.) found that the prosecution had suciently established its case against the appellant. The appellant was consequently found guilty of the oence of murder and sentenced to serve twenty- ve (25) years in prison. 11. The appellant, dissatised with the decision of the trial court, lodged an appeal before us, against both his conviction and sentence. He advanced ve grounds of appeal in his amended grounds of appeal. He averred that the learned trial Judge erred in law and fact: by holding that the ingredients of the oence of murder, and particularly malice aforethought, was suciently established by the prosecution; by nding that the rearm allegedly recovered from the appellant was used in commission of the oence, without any evidence adduced to that eect; by failing to appreciate that the inconsistencies in the prosecution case went to the root of the case; by misapprehending the evidence on record and demonstrating open bias ; and lastly, by not giving consideration to the appellant’s defence which exonerated him from any wrong doing. 12. The appeal was heard by way of written submissions. He challenged the prosecution’s assertion that the deceased’s death was as a result of unlawful shooting occasioned by the appellant. He asserted that none of the prosecution witnesses saw him shoot the deceased. He urged that all the wardens on duty that night had G3 ries, save for the deceased. It was his submission that the evidence on record indicated that he was issued with 20 rounds of ammunition, while the deceased was issued with 30 rounds of ammunition, and that when their rearms were recovered after the incident, the deceased’s rearm had 21 rounds of ammunition while that in the appellant’s possession had 25. He maintained that according to PW1’s evidence, the appellant only red four shots, even though ve spent cartridges were allegedly recovered from the scene. He urged that no explanation was given as to why the deceased’s rearm had less ammunition. 13. The appellant further questioned why no other spent cartridges were recovered from the scene despite the fact that there was evidence on record that several other wardens red in the air that fateful night. The appellant submitted that the serial number contained in the ballistics report did not match that of the rie alleged to have been issued to him. He contended that there was inconsistent evidence on the number of ocers who were duty that night, and at the scene of crime. He faulted the learned Judge from misapprehending the evidence on record, particularly by nding that PW1’s rearm did not discharge any ammunition when he red into the air, and additionally, by nding that the deceased did not re any shots, which was contrary to the evidence on record. 14. The appellant further urged that his defence was not given proper consideration by the trial court. It was his submission that he only surrendered because he was asked to do so, and not because he had committed any oence. He submitted that the element of mens rea was not established by the prosecution, as no evidence was led to show that the death of the deceased was preconceived, or that there existed any bad blood between them. In the premises, he invited us to allow his appeal as prayed. 15. The appeal was opposed. Learned Prosecution Counsel, Ms. Nandwa, made submissions to the eect that the prosecution established its case against the appellant to the required standard of proof beyond any reasonable doubt. It was her submission that the death of the deceased was not in dispute, and that the prosecution proved that the appellant committed an unlawful act, which caused the death of the deceased. It was her submission that the evidence of PW1 and PW2 established that the appellant https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1694/eng@2026-09-25 3

page 3 of 6

sought permission from the deceased to go home for a meal, which request was declined. In response, the appellant became angry to the extent of striking a wall with his sts. She further urged that the evidence of PW1, an eye witness, clearly demonstrated that the appellant was the person who shot the deceased, and that the identication was that of recognition. 16. It was further submitted that PW4, the ocer in charge of the armory, testied that he issued the appellant with a G3 rie containing twenty (20) rounds of ammunition. Upon recovery of the appellant’s rearm, it was found to contain fteen (15) rounds of ammunition. Five (5) spent cartridges were also recovered at the scene, and according to the ballistic report, they were red from the appellant’s rearm, cartridges being uniquely identiable to a particular weapon. 17. Regarding malice aforethought, learned prosecution counsel submitted that the appellant, being a seasoned prison warden, knew how to handle rearms, and was well aware that shooting the deceased would cause him either to suer grievous harm or death. She urged that the issue of the commotion due to alleged tribal clashes was not raised by the appellant during cross- examination of the prosecution witnesses, and should be disregarded as an afterthought. Ms. Nandwa urged that the sentence awarded by the trial court was not harsh or excessive, and that the learned Judge took into consideration the time spent by the appellant in remand custody. She urged us to dismiss the appeal for lack of merit. 18. This is a rst appeal. The duty of the rst appellate court was stated by this Court in Gabriel Kamau Njoroge v Republic [1987] eKLR as follows: “As this court has constantly explained, it is the duty of the rst appellate court to remember that the parties to the court are entitled, as well as on the questions of facts as on questions of law, to demand a decision of the court of rst appeal, and that court cannot excuse itself from the task of weighing conicting evidence and drawing its own inferences and conclusions, though it should always bear in mind that it has neither seen or heard the witnesses and to make due allowance in this respect. (see Pandya v R [1957] EA 336, Ruwalla v R [1957] EA 570)”. 19. We have carefully considered the facts of this appeal, the submission made and the law. The issue that emerges for determination by this Court is whether the prosecution established the charge of murder contrary to section 203 of the Penal Code that was brought against the appellant to the required standard of proof beyond any reasonable doubt. 20. In order to establish the charge of murder, the prosecution is required to establish actus reus and mens rea. This Court in Mohammed Barisa Guyo v. Republic [2019] KECA 956 (KLR) held thus: “In order to establish a case for murder, the prosecution must not only prove that the act of killing (actus reus) was perpetrated by the accused, but also that he had the intention to kill the deceased (mens rea). This Court in the case of Joseph Kimani Njau v. Republic (2014) eKLR stated as follows: “In all Criminal cases both the actus reus and the mens rea are required for the oence charged; these must be proved by the prosecution beyond reasonable doubt. The trial court is under a duty to ensure that before any conviction is entered, both the actus reus and mens rea have been proved to the required standard.” 21. In the present appeal, the fact of the deceased’s death is not disputed. The post mortem report produced by PW8 Dr. Bill Khumi established that the deceased’s cause of death was cardio-pulmonary arrest secondary to severe brain and lung injuries caused by gunshots. What instrument was used to https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1694/eng@2026-09-25 4

page 4 of 6

cause the death of the deceased is also not in doubt. The deceased sustained several gunshots to his body that cause his death. 22. According to the prosecution, the gunshots that cause the deceased’s death, were red from a G3 Rie which had been issued to the appellant. The appellant disputes this fact. PW1 testied that he was at his place of work on the material evening of 24th July, 2014. He was on duty at Moyale GK Prison with the appellant. Their supervisor was the deceased. The appellant was armed with G3 Rie which had earlier that day been issued to him. The G3 Rie had Serial No. 011464. According to PW1, the appellant was in a foul mood on that particular evening. He sought permission to be away from his guard duty from the deceased to enable go home and have a meal. The requested permission was denied. The appellant punched a wall. He thereafter red a shot from his Rie. It hit the deceased. The deceased fell down. The appellant red two more shots at the deceased before eeing from the scene. 23. When the shots were red, PW2, PW3 and PW5 rushed to the scene. These were colleagues of the appellant and the deceased at Moyale G.K. Prison. PW4, police ocer based at Akala police station heard the gunshots. He rushed to the scene. According to PW1, PW2, PW3 and PW5, the appellant was cornered and ordered to surrender. He surrendered together with his rie. The appellant was arrested and detained at the police station. The deceased was rushed to Hospital. He however succumbed to his injuries on arrival at the hospital. 24. The appellant challenged this version of events as narrated by the prosecution witnesses. It was his testimony in his defence that on the material night, while on duty, a gunshot was red which caused commotion. He speculated that they were under attack due the fact that at the material time there were tribal clashes prevalent in the area. Several gunshots were red in the air to scare away the supposed attackers. After everything had settled down, he was ordered to surrender and hand over his rie. The appellant denied fatally shooting the deceased. He maintained that the bullets red from his rie were not directed towards the deceased but in the air. He had no reason to shot the deceased. He had no grudge against him. 25. Our re-evaluation of the evidence adduced by the prosecution witnesses leads to the irresistible conclusion that it was the appellant who red the shots that killed the deceased. The appellant was seen by PW1 ring several shots at the deceased using his rie. PW1’s testimony is that of a direct eye witness. The appellant’s explanation that he red in the air and not at the deceased is debunked by evidence that was adduced by PW7, the ballastic expert, who established that the shots that fatally injured the deceased were red from the G3 Rie that the appellant had earlier been issued with. The G3 rie was Serial No. 011464. We are therefore convinced beyond reasonable doubt that it was the appellant who shot the deceased and caused him to suer the fatal injuries. Actus reus was established by the prosecution to the required standard of proof. 26. Section 206 of the Penal Code denes what constitute malice aforethought. It includes evidence proving an intention to cause the death of the deceased or do grievous harm to any person, whether that person is actually killed or not or the knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether the person is the person actually killed or not. 27. This Court in Joseph Kimani Njau v. Republic [2014] KECA held thus: “ In the case of Nzuku v. Republic [1993] KLR 71, this Court stated that malice aforethought is a form of art and emphasized that: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1694/eng@2026-09-25 5

page 5 of 6

Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused;i. the intention to cause death; ii. the intention to cause grievous bodily harm….” 28. In the present appeal, PW1 testied that on the material evening, the appellant was agitated and was in a foul mood. He asked the deceased for permission to go home to have a meal. When permission was denied, he shot at the deceased, not once, but three times. The last two shots were red at close range at the deceased when he was lying prone on the ground. The appellant shot the deceased at the vulnerable parts of his body, i.e his head and lungs. It was clear from the evidence adduced by the prosecution witnesses that the appellant shot the deceased with the intention to kill him, and if not, caused him grievous harm. The appellant, being a person trained to handle rearms, knew that when he shot the deceased, the likely consequences would be his death. We agree with the trial court that the prosecution proved, to the required standard of proof, malice aforethought and that the appellant had the requisite mens rea to kill the deceased. 29. The argument advanced by the appellant to the eect that his defence was not considered withers away when the strong, corroborative, inculpaltory and incriminating evidence adduced by the prosecution witnesses is taken into account. 30. It is clear from the foregoing that the appeal against conviction lacks merit. The custodial sentence meted on the appellant by the trial court was legal. We cannot interfere with the same. 31. The upshot of the above reasons is that the appeal lacks merit and is hereby dismissed. The conviction and sentence of the trial court is upheld. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER,2026. W. KARANJA ............................ JUDGE OF APPEAL L. KIMARU .......................... JUDGE OF APPEAL A.O. MUCHELULE ........................... JUDGE OF APPEAL I certify that this is a true copy of original. DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1694/eng@2026-09-25 6

page 6 of 6