Nyaga alias Samow v Republic

decomposing body was later recovered at the same quarry three days later. The appellant was traced in Mbeere, Embu County over 700 kilometres away, in possession of the deceased’s motorcycle. 4. The prosecution called eleven witnesses to establish its case against the appellant. Hassan Salat Mohammed, Assistant Chief Wagadahan Sub-location, testied that he was a brother to the deceased and knew the appellant well as a stone dresser. That on 26th May 2023, he received a report from the wife of the deceased, Samia Shari, that the deceased had not returned home for 3 days and embarked on a mission to look for him together with others. They found the body of the deceased at the family quarry covered with stones and sand and some tree branches. They called the police and the body was retrieved and taken away. Under cross examination by advocate Bosire for the appellant, the witness said that the deceased worked at the quarry and the appellant was his fundi. He was not aware of any dierences between the two. He added that there were no Al- Shabaab (a proscribed group of terrorists/ militants) in the area at the time. 5. The wife of the deceased, Samia Shari, testied that she operated a shop in the area and was married to the deceased for 25 years. That on 22nd May 2023 at around 9.00 pm the appellant asked the deceased to accompany him to the quarry the following day, to take measurements of the cut stone he had dressed. The deceased said he was not available since himself and their son, Dinow Salat, were to go to their shamba that morning. The deceased and their son went to the shamba in a motorbike as planned. Later the two returned to the shop and the deceased withdrew Kshs.48,000/- from the Mpesa stating that he was going to pay some workers. The two left and that was the last time she saw her husband. She tried to call him via his phone in vain. Later at 1.00 pm the son came back alone and told her that his father left the shamba and never returned. She was initially not too worried, as the deceased had four wives, and could have visited any of them. When the deceased did not return, they mobilized people to look for him. She was in the search party that discovered the decomposed body at the quarry. The appellant was nowhere to be found and the motorcycle of the deceased was missing. 6. PW3, Dinow Salat, the son of the deceased, testied that on 23rd May 2023 his father withdrew Kshs.50,000/= at an Mpesa point and they proceeded to their shamba on board a motorcycle KMDA 683. While on the way, the appellant called the deceased to stop but the deceased did not stop. The appellant accompanied by one Ali Adan came to the shamba and the appellant spoke to his father though he did not hear the conversation. Adan Ali left with his motorcycle and the deceased and the appellant proceeded to the quarry. The deceased told the son to wait for him until 4.00 pm. He waited for his father until 8.00 pm but he did not return. The witness left for home and on the way found the appellant at Takaba Shopping Centre, who told him he had left his father at the quarry. The appellant said he would spend the night in town. Upon arriving home, he did not nd his father. He was in the search group that found the decomposed body of his father buried in a shallow grave at the quarry. On cross examination, the witness said the quarry belonged to the family and the appellant was the last person he had seen with his deceased father. He denied that his father was attacked by Al-Shabaab since none had been reported in the area. 7. PW4, was Ali Abdullahi, a police reservist and a boda boda operator. The deceased was his neighbour and knew him well. He said that on 23rd May 2023 he was hired by the appellant to take him to the shamba of the deceased. He was to be paid Kshs.400/= upon arrival at the shamba. At the shamba, he found PW3 and the deceased. The deceased removed a bundle of cash and paid him vide a Kshs.1000 note and asked for change. He left the deceased with the appellant and went back to town. He said he was told on the 26th May 2023 that Hassan had been killed. 8. PW5, Dr. Mohamed Rashid Abdi Mohamed, conducted a post mortem examination on the body of the deceased at Takaba hospital. The body was, swollen, decomposed and rotten with maggots coming https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1838/eng@2026-09-25 2

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out. His clothes were soiled and bloody. The body had an injury on the right side of the head and the face. The bones on the head and rear neck were fractured. The left arm was fractured above the elbow. The cause of death was severe injury to the head and neck caused by a blunt object. He produced the postmortem report before court. The Doctor said that he did a physical examination but did not open up the body. 9. PW6, No. 100123 PC Elphas Lagat attached at Takaba Police station testied that on 26th May 2023 himself and others, including PC Moris Musyoka visited the quarry upon receipt of the murder report. They retrieved the body from the shallow grave and took it to hospital where post mortem was conducted. He said he observed the decomposed body had injuries on the neck and right side of the jaw. 10. PW7, 80042 PC Phineas Mworia, from Kiritiri Police Station in Mbeere and PW11 No. 92707, PC Moris Musyoka, the investigating ocer from DCI Mandera arrested the appellant at Meka area in Mbeere, Embu County upon information from his wife and others in the area on 6th May 2023. The ocer was accompanied by a brother of the deceased, PW10, Rashid Salat Mohamed, who helped identify the appellant, who was well known to him as an employee of the deceased, and the stolen motorcycle of the deceased. The appellant was spotted seated next to the deceased’s motorcycle which had its number plates removed. They were led by the appellant to a deserted home where he was residing and recovered a bag and he was taken to the police station. The appellant was then picked by ocers from DCI Takaba. He identied the motorcycle recovered from the appellant. Under cross examination by advocate Chacha for the appellant, the witness said the motorcycle belonged to the deceased and that the same was identied by the relatives of the deceased. 11. PW 8 No. 236824 CIP Francis Kyeti testied that he was a forensic crime investigator at the DCI Forensic Laboratory. He produced photographs taken in the course of the investigations, of the stolen motorcycle, and other recovered items. He did not conduct any forensic examination on the weapons found at the quarry where the deceased was killed. 12. PW9 No. 112381 PC Moses Kingera, told the court that he visited the scene of murder on 26th May 2023 with PC Moris, IP Mose, PC Langat among others. They recovered one hammer, a spade and a chisel at the scene next to the shallow grave where the body of the deceased was exhumed from. He said the ground had visible blood stains, a torn shirt and another partly burnt. He produced a sketch plan of the scene. He observed the injuries on the right side of the head. They collected the body and took it to Takaba hospital. He said he went to Kiritiri Police Station in Mbeere, about a 1,000 Kms from Mandera, the scene of crime, with others where they arrested the appellant, took him to Takaba police station and charged him with the oence of murder. The investigating ocer Moris Musyoka recorded statements, preserved the exhibits recovered and produced them in court. He did an NTSA search of the motorcycle recovered from the appellant which conrmed that it was that of the deceased. He also investigated the mobile phone signals of the deceased and the appellant, together with their Mpesa statements. The Mpesa statement indicated that on 23rd May 2023, at 1.57 pm, the appellant received a sum of Kshs.5,500/= from the mobile phone of the deceased. The mobile phone of the deceased was however not recovered. He told the court that no DNA was conducted on the recovered items to link them to the appellant. He said that he had no direct evidence of the murder by the appellant other than what he gathered from the witnesses and the appellant was connected circumstantially. He opined that the appellant and the deceased may have diered over the amount of money due to the appellant for the work he had done. 13. The appellant, when placed on his defence, gave a sworn statement in which he admitted being at the quarry with the deceased on the material day with intention to measure the stones that he had dressed ostensibly for purposes of determining the amount that he was to be paid. He stated that they measured the dressed stones and the deceased paid him Kshs.5,500/= as he did not have enough money, with https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1838/eng@2026-09-25 3

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promise that he would pay him the balance the following day. He claimed that while there, they were attacked by Al-Shabaab militants who ordered him to leave Mandera and never return. He asserted that the deceased was struck on the head by one of the attackers and that he ed the scene out of fear for his life. He claimed that the militants took him to a tent and burnt his clothes. He stated that he picked the motorcycle of the deceased and left for Embu, his home county. He alleged that the deceased had bought the motorcycle for him. He did not tell anyone of the incident. He alleged that he was arrested while on his way to make the report. He denied killing his employer contending that they were good friends. He maintained that his departure from Mandera was compelled by the threats issued by the militants and that his intention was to save his own life. 14. The learned trial judge carefully considered this defence but found it implausible. The court noted that the appellant’s account was unsupported by any independent evidence. None of the prosecution witnesses, including those who joined in the search for the deceased, mentioned the presence of AlShabaab militants in the area on the material day. The judge observed that the appellant’s narrative was inconsistent with the testimony of all who placed him as the last person seen with the deceased. The court further held that the appellant’s conduct after the incident undermined his defence. He ed Mandera immediately, covering a distance of over 1000 kilometres to Mbeere, and was found in possession of the deceased’s motorcycle. The judge reasoned that if indeed the appellant had been attacked and chased away by the Al-Shabaab, he would have reported the matter to the police or informed the deceased’s family, especially given his long relationship with the family of the deceased and other people in the area. His failure to do so, coupled with his ight, was treated as evidence of consciousness of guilt. 15. The trial court also rejected the appellant’s reliance on the alleged threats by the Al-Shabaab, holding that it was speculative and contradicted by the general notoriety that Al-Shabaab militants typically targeted non-locals rather than locals. The judge invoked judicial notice to conclude that the appellant’s account was improbable. In the end, the court found that the circumstantial evidence presented by the prosecution formed a complete chain pointing irresistibly to the appellant’s guilt. The deceased was last seen alive with the appellant; his body was later recovered at the quarry with injuries consistent with assault; the appellant ed immediately thereafter and was found with the deceased’s motorcycle. The court held that these facts, taken cumulatively, excluded any reasonable hypothesis other than that the appellant was responsible for the death. Accordingly, the trial court dismissed the appellant’s defence as a fabrication, convicted him of murder under Section 203 of the Penal Code, and sentenced him to thirty (30) years imprisonment. 16. Being dissatised with the judgment of the High Court and the sentence, the appellant lodged a memorandum of appeal dated 18th August 2025. In that memorandum, he raised several grounds which, when condensed, revolve around one central issue: whether the learned trial judge erred in convicting him on the basis of circumstantial evidence when the chain of evidence did not point logically and irresistibly to his guilt. The appellant further faulted the trial court for misapplying the doctrine of last seen, for improperly taking judicial notice of matters not of general notoriety, and for failing to accord him the benet of doubt in light of contradictions and inconsistencies in the prosecution’s evidence. 17. The appellant, in arguing the appeal relied on written submissions dated 13th October 2025 led by R. W. Kuria & Co. Advocates to submit that the prosecution’s case was founded on mere suspicion and weak circumstantial evidence. He contended that the doctrine of last seen was misapplied, noting that the appellant had testied to leaving the deceased in the company of Al-Shabaab attackers. He further argued that the trial court erred in taking judicial notice that Al-Shabaab only targeted non‑locals, thereby dismissing his defence without any evidentiary foundation. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1838/eng@2026-09-25 4

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18. Counsel also highlighted contradictions in the testimony of the deceased’s family regarding alleged Mpesa deposits which were not corroborated. Additionally, the investigating ocer failed to link the appellant to any murder weapon through forensic analysis. In support of these arguments, reliance was placed on Sawe vs Republic (2003) KLR 364 and Musili Tulovi vs Republic (2014) eKLR, authorities underscoring that suspicion, however strong, cannot sustain a conviction. 19. On the other hand, the respondent relying on submissions led by Bonny S. Okemwa, DDPP, submitted that the prosecution proved its case beyond reasonable doubt. It was submitted that the deceased’s death and cause thereof were established through post‑mortem evidence; that the appellant was the last person seen with the deceased, and his ight to Mbeere with the deceased’s motorcycle was incriminating conduct; that the doctrine of last seen, coupled with circumstantial evidence, formed a complete chain pointing to his guilt; that malice aforethought was inferred from the nature of injuries and the appellant’s conduct after the oence. Reliance was placed on Republic vs Kipkering Arap Koske (1949) EACA 135 and Tubere s/o Ochen vs Republic (1945) EACA 63. 20. Having considered the record of appeal, the submissions of both counsel, the judgment of the High Court, the applicable law and the duty of the court as above stated, the issues that arise for our determination are whether the death of the deceased and its cause were proved beyond reasonable doubt; whether the conviction, being founded substantially on circumstantial evidence, met the strict legal threshold required to sustain a conviction; whether the trial court properly applied the doctrine of last seen in drawing an inference of guilt; whether the invocation of judicial notice was correct in law; whether contradictions and inconsistencies in the prosecution evidence entitled the appellant to the benet of doubt; and nally, whether the sentence imposed was lawful and proportionate in light of the principles laid down in Francis Karioko Muruatetu vs Republic [2017] eKLR. 21. We have carefully re-evaluated the record of proceedings before the High Court. Section 203 of the Penal Code, Chapter 63 of the Laws of Kenya, pursuant to which the appellant was charged, provides that any person who, of malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder. Thus, the ingredients that the prosecution needed to show are: the fact of death; that the death was caused by the accused by an unlawful act; and malice aforethought on the part of the accused person. 22. Upon our own independent assessment, we nd that the evidence of the medical ocer, conclusively established the fact and cause of death, namely severe head and neck injuries caused by a blunt object. The totality of the prosecution evidence was to the eect that the appellant was an employee of the deceased and on the material day he had followed the deceased person to his shamba from where the two proceeded to the quarry where they both worked with a view of getting measurements of the cut stone so as to establish the wages payable to the appellant by the deceased; that the appellant was the last person seen with the deceased alive at the shamba; that the decomposed body of the deceased was recovered three days later buried in a shallow grave at the quarry; that no reports of an Al-Shabaab attack had been reported in the area on the day the deceased was reported missing having failed to get back home from his work place as was alleged by the appellant in his defence; that the appellant was later found 1000 kms away in Embu in possession of a motorbike, with number plates removed, belonging to the deceased. 23. It is clear that in the present matter, the appellant was convicted on the basis of circumstantial evidence. The law is settled that such evidence must form a chain so complete that it excludes any reasonable https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1838/eng@2026-09-25 5

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hypothesis other than the guilt of the accused. In Republic vs Kipkering Arap Koske & Another (1949) 16 EACA 135, the Court held: “ As said in Wills on “Circumstantial Evidence” 6th edition p.311, “-in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.” The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused.” 24. The contradictions in the testimony of prosecution witnesses regarding Mpesa deposits, are minor peripheral issues that do not go to the root of the prosecution case. The investigating ocer’s failure to conduct forensic analysis of the alleged murder weapons provided a weak link to the cause of death but this was ameliorated by the strength of circumstantial evidence adduced that pointed to the appellant as the perpetrator of the oence. It was held in Ondeng vs R (2014) KECA 523 that minor contradictions do not necessarily weaken the prosecution case unless they go to the root of the charge. In this case, the contradictions were peripheral and did not displace the core circumstantial evidence. 25. Furthermore, though the prosecution did not establish the approximate time of death, did not link any murder weapon to the appellant, nor establish any Mpesa deposits or withdrawals from the deceased’s phone, these gaps do not weaken the chain of evidence linking the appellant to the crime, given the appellant’s ight and possession of the deceased’s property without reporting the matter to the police or the deceased’s family. 26. In Moses Jua vs The State (2007) LPELR-CA/IL/42/2006, quoted with approval by the Court of Appeal in Chiragu & Another vs Republic (Criminal Appeal 104 of 2018) [2021] KECA 342 (KLR), the Court stated: “ Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, the court is justied in drawing the inference that the accused killed the deceased.” 27. In line with the foregoing, once the appellant was shown to be the last person with the deceased, the evidential burden shifted to him to provide a credible explanation. His failure to do so entitles the court to draw the inference that he was responsible for the death of the deceased. We further hold that as he did not give a plausible explanation as to why he was in possession of the deceased’s motor bike only served to strengthen the prosecution case. 28. On whether the appellant had malice aforethought when he committed the unlawful act complained of herein, it is the law that what needs to be proved by the Prosecution is any of the circumstances set out in Section 206 of the Penal Code. That provision states thus: 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; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1838/eng@2026-09-25 6

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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 indierence 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 ight or escape from custody of any person who has committed or attempted to commit a felony. In the case of Nzuki vs Republic [1993] KLR 171 this Court had occasion to interpret the above provision and it held that: “ ...murder is the unlawful killing of a human being with malice aforethought. 'malice aforethought' is a term of art and is either an express intention to kill, as could be inferred when a person threatens another and proceeds to produce a lethal weapon and uses it on his victim; or implied, where, by a voluntary act, a person intended to cause grievous bodily harm to his victim and the victim died as the result...Before an act can be murder, it must be aimed at someone and in addition it must be an act committed with 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; iii. Where accused knows that there is a serious risk that death or grievous bodily harm will ensue from these acts, and commits those acts deliberately and without lawful excuse the intention to expose a potential victim to that risk as the result of those acts. It does not matter in such circumstances whether the accused desires those consequences to ensue or not and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed." Consequently, in the case of Daniel Muthee vs Republic; Criminal Appeal No. 218 of 2005 (2007) KECA 419 (KLR), it was held that: “ When the appellant set upon the deceased and cut her with a panga several times and then proceeded to cut the young Allan in similar manner, he must have known that the act of cutting the deceased persons on the head with a sharp instrument would cause death or grievous harm to the victims. We are therefore satised that malice aforethought was established in terms of Section 206(b) of the Penal Code.” 29. Based on the statute law and the authorities cited above, we are supremely satised that the superior court inference of malice aforethought from the severity of injury inicted on the deceased was sound. The severe blow to a vital part of the body with a blunt object, as described by the doctor, point to an intention to cause death or grievous bodily harm within the meaning of Section 206 (a) and (b) of the Penal Code. We therefore concur that the ingredients of murder were proved to the requisite standard, and the appellant’s challenge on this ground is without merit. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1838/eng@2026-09-25 7

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30. The trial court did mention that it had taken judicial notice that it is public knowledge that Al-Shabaab militants target the non-indigenous and not the indigenous residents of the area. Section 60 (1) (o) of the Evidence Act does permit a court to take judicial notice of all matters of general or local notoriety. In Gupta vs Continental Builders Ltd (1976–80) 1 KLR 809, Madan, JA stated: “ The party who asks that judicial notice be taken of a fact has the burden of convincing the judge that the matter is so notorious as not to be the subject of dispute among reasonable men, or that the matter is capable of immediate accurate demonstration by resort to readily accessible sources of indisputable accuracy.” The trial court’s remark was speculative and amounted to an unnecessary utterance. We consider it extraneous but it is not sucient to oset the conviction, which rests on other circumstantial evidence. This Court therefore upholds the verdict of guilt reached by the superior court below. 31. On sentence, Section 204 of the Penal Code prescribes the death penalty for murder. Following the Supreme Court decision in Francis Karioko Muruatetu vs Republic [2017] eKLR, the death sentence is not mandatory and the courts have discretion to be exercised judiciously taking into account the peculiar circumstances of the case to determine appropriate sentence. In this regard the trial court relied on the Court of Appeal decision in Bernard Kimani Gacheru vs Republic [2002] eKLR as follows: “ It is now settled law, following several authorities by this Court and the High Court, that sentence is a matter of discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sucient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist”. 32. In the ruling on sentence dated 20th March 2025 the trial court before imposing the 30 years sentence stated: “ I have considered the circumstances under which the oence was committed, negative presentence report and mitigation on record. Accused abused his employer’s trust. He cut o his source of income. He deserves a deterrent sentence. Accordingly, accused is sentenced to serve 30 years imprisonment less 1 year and 9 months being the period he spent in remand custody ROA 14 days”. Upon considering this ruling by the judge, this Court nds no reason to interfere with the sentence imposed by the trial court, and conrms the sentence imposed. 33. Accordingly, the appeal on conviction and sentence is dismissed in its entirety. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. F. TUIYOTT …………..……..….……… JUDGE OF APPEAL NDUMA NDERI https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1838/eng@2026-09-25 8

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………………..…….……… JUDGE OF APPEAL MUNYAO SILA ……………..………….…… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1838/eng@2026-09-25 9

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