Musau & another v Republic

against them. On 28th April 2026, we consolidated these three appeals and designated Criminal Appeal No. E009 of 2024 as the lead le. Therefore, this judgment only relates to the three appellants before us, namely CPL. John Kimweli Musau, PC Linus Kipngetich Terer and PC Joseph Mureithi, who for ease of identication will henceforth be referred to as the 1st, 2nd and 3rd appellants respectively. 2. The appellants, together with their aforesaid co-accused persons were charged, tried, convicted and sentenced to serve 15 years imprisonment for the oence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The accusation against them was that on 3rd August 2025 at Gatirima village, Kiambogo Location, within Laikipia County, they jointly murdered Mary Chepkoriri Kiprotich alias Doctor. They all denied the charges and in the ensuing trial, the prosecution marshalled a total of 14 witnesses in support of its case. In a nutshell, PW1, PW2, PW3, PW4, PW5 and PW13 (who included neighbours and the deceased’s daughter (PW5) then aged 12 years) gave a detailed account of how they saw 4 GSU ocers in uniform brutally beating the deceased using clubs until she could not walk, then they tied her with a rope, and threw her into the lorry. It was alleged that the deceased was selling changaa. 3. PW6, a Clinical Ocer at Kinamba Health Centre attended the deceased who was brought to the facility by GSU ocers. The area Chief who had also accompanied the ocers told PW6 that the deceased had been beaten by the GSU ocers. Upon examining the deceased, PW6 noted that she was nose bleeding, she had bruises, and, she had no other physical injuries. 4. PW7, also a GSU ocer, who was the driver of the lorry that ferried the ocers to the deceased’s home and to the police station testied that together with Corporal Kimeli, Constable Terer and another ocer, they were requested to go and fetch water by their superior, but on their way, they were stopped by a Chief and an Assistant Chief who requested for assistance claiming that there was an alcohol seller who had become dicult. PW7 claimed that on arrival at the deceased’s home, he remained in the lorry, but the other four ocers alighted. After sometime, the ocers emerged from the deceased’s house carrying alcohol in a container. They climbed into the lorry, then he drove to Ngarua Police Station where they all alighted. He later learnt that the deceased had died. 5. PW14, the Investigating Ocer from Independent Police Oversight Authority (IPOA) recorded the witness statements. He concluded that the Chief, the Assistant Chief and the four ocers among them, the appellants before us were responsible for the death and were charged accordingly. According to PW11 who performed the postmortem, the cause of death was severe blunt brain injury (epidural hematoma and brain edema) associated with a severe blunt injury. 6. Upon being placed on their defence, the appellants elected to remain silent. In their submissions before the trial court, the appellants described the prosecution evidence as contradictory, insucient, and it did not prove guilt beyond reasonable doubt. However, the trial court found that the prosecution had proved beyond reasonable doubt that the appellants assaulted the deceased causing her death. The trial court highlighted the unwarranted use of force by the police ocers and absence of justication for the assault and convicted them. 7. Regarding sentence, the trial court considered the appellants’ mitigating factors, namely, that they were rst time oenders, their family responsibilities, health conditions, but nevertheless, it was persuaded that a custodial sentence was appropriate due to the gravity of the oense. The appellants are now before this Court in this rst appeal seeking to overturn the above ndings. 8. The 1st, 2nd and 3rd appellants’ counsel Mr. Odero led written submissions dated 26th November 2025 which he adopted. Basically, Mr. Odero’s submissions focused on insuciency and inconsistencies https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1887/eng@2026-09-25 2

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of the prosecution evidence, absence of prove beyond reasonable doubt, and failure to establish the ingredients of the oence of murder, namely, the actus reus and mens rea. 9. Regarding the insuciency and inconsistence of the evidence, Mr. Odero described the prosecution evidence as inconsistent and insucient to prove guilt beyond reasonable doubt. He cited Woollmington vs. DPP [1935] UKHL 1, a landmark case that established that the burden of proof is on the prosecution to prove the accused’s guilt beyond reasonable doubt. Counsel relied on the said decision to urge that the prosecution failed to satisfy the required standard of proof. It was his submission that key witnesses such as PW2 and PW4 did not see the accused persons assault the deceased, while PW1, PW3 and PW5 could not identify which accused persons were involved, it was counsel’s submission that the view of these three witnesses was obstructed by a maize plantation, therefore, they could not see who was assaulting the deceased. 10. Mr. Odero singled out the medical evidence tendered by PW6 and PW11 and argued that the injuries inicted on the deceased were not consistent with assault and contended that they could have been caused by other factors such as a fall. He also submitted that the prosecution failed to establish a direct link between the alleged assault and the cause of death nor was the age of the trauma established. Further, there was no evidence that a fatal injury was caused during the incident. Counsel faulted the trial court for ignoring the alternative explanations for the injuries. 11. Mr. Odero maintained that the 1st and 2nd appellants’ conviction was based on the doctrine of common intention. Citing Eunice Musenya Ndui vs. Republic [2011] KECA 401 (KLR), he argued that the trial judge failed to consider all the elements of common intention, particularly because their purpose was to eect a lawful arrest, not to commit a crime. He stressed that malice aforethought was not proved and urged this Court to re-evaluate the evidence afresh and draw its own conclusions. In summation, Mr. Odero maintained that the 1st and 2nd appellants’ conviction was premised on weak, insucient an inconsistent evidence which provided no clear link between the their actions and the deceased’s death. Counsel urged this Court to quash their conviction and sentences due to what he termed as deciencies in the prosecution case. 12. On behalf of the 3rd appellant, learned counsel Mr. Wahome Gikonyo led submissions dated 2nd December 2025 essentially urging four grounds, namely; (a) lack of evidence linking the 3rd appellant with the deceased’s attack; (b) the charge of murder was not proved beyond reasonable doubt, and, (c) actus reus and malice aforethought were not proved against the 3rd appellant. The substance of his submissions was that there was no evidence linking the 3rd appellant with the attack, that none of the prosecution witnesses directly linked the 3rd appellant with the injuries sustained by the deceased, and that PW7 (the driver) never mentioned the 3rd appellant as being present during the attack or in the vehicle. He argued that the trial court erred in nding that PW7 identied him by name. 13. It was also his submission that the charge of murder was not proved to the required standard. Further, the medical evidence indicated that the injuries were consistent with a fall, not an attack and absence of the defensive injuries and doctor’s testimony created reasonable doubt which he urged this Court to resolve it in favour of the 3rd appellant. In addition, counsel maintained that the prosecution failed to prove both the actus reus and the mens rea required to sustain a conviction in a murder trial. According to Mr. Gikonyo, the prosecution evidence suggested that the deceased may have died from a fall, not from an intentional attack by the appellant. Counsel cited Joseph Kimani vs. Republic [2014] https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1887/eng@2026-09-25 3

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eKLR in support of the proposition that absence of motive or intent can weaken the prosecution case, potentially reducing murder to manslaughter. He also cited Nzuki vs. Republic [1993] KLR 171 to clarify the legal test for malice aforethought and the importance of intent. Counsel also cited Isaak Kimanthi Kanuachobi vs. Republic to urge that express, implied and constructive malice should be applied in manslaughter instead of murder. He urged this Court to quash the conviction and set the sentence aside urging that the evidence against the 3rd appellant was insucient. He maintained that any doubt should be resolved in favour of the 3rd appellant. 14. The respondent’s counsel Mr. Omutelema maintained that the prosecution proved the deceased’s death through medical evidence, that there is direct evidence from multiple witnesses (including the deceased’s daughter) who placed the appellants at the scene and described how the appellants assaulted the deceased using clubs/jembe handles. Counsel submitted that the evidence was consistent and credible, basically showing that the appellants used excessive force leading to the deceased’s death. Further, he submitted that malice aforethought was established by the nature of the assault and the failure to seek medical help for the victim. Regarding sentence, counsel argued that it was justied and it is not excessive considering the circumstances and the vulnerability of the victim. In conclusion, Mr. Omutelema maintained that the prosecution discharged the burden of proof and urged this Court to dismiss the appeal and uphold the conviction and sentence. 15. The germane question in this appeal is whether the oence of murder was proved to the required standard. Section 203 of the Penal Code provides as follows: “Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” An appraisal of this section shows that to succeed in a murder case, the prosecution must prove the following ingredients: (a) the death of the deceased; (b) that the death was caused by an unlawful act or omission on the part of the accused person(s); (c) that in causing the death of the deceased, the accused had malice aforethought. (See this Court’s decision in Titus Ngamau Musila Katitu vs. Republic [2020] eKLR). It is common ground that the death is not disputed, therefore, the rst pre-requisite is not in issue. We will focus on the remaining ingredients. 16. 17. First, we will address the question whether malice aforethought was proved to the required standard. Malice aforethought refers to an intentionally harmful act that typically leads to someone's death. Malice aforethought is a critical element of the crime that distinguishes the oence of murder from other types of homicide cases, such as manslaughter. As was held by this Court in Odio vs. Republic (Criminal Appeal 228 of 2019) [2024] KECA 1544 (KLR)), malice aforethought shows the following: (a) the killer's state of mind at the time of the murder; (b) the killer thought about the murder before committing it; and, (c) the killer took specic steps to facilitate the murder. This Court in Odio vs. Republic (supra) stated that malice aforethought may be express or implied. Express malice aforethought refers to when a deliberate intention is manifested to take away the life of a person unlawfully. Implied malice aforethought applies when no considerable provocation appears or when the circumstances attending the killing show a reckless and wicked heart. To be convicted of murder, malice aforethought must be proved. Malice aforethought cannot be imputed to an accused person based solely on their participation in a crime. If it is shown that the killing resulted from an intentional act with express or implied malice aforethought, no other mental state need be shown to establish malice aforethought. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1887/eng@2026-09-25 4

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18. As was held by this Court in Nzuki vs. Republic [1993] eKLR, malice aforethought as: “…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. See the case of Regina v Vickers, [1957] 2 QB 664 at page 670. An intention connotes a state of aairs which the person intending does more than merely contemplate: it connotes a state of aairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition. See the case of Conlie v Goodman, [1950] 2 KB 237.” 19. The starting point for dening malice aforethought is Section 206 of the Penal Code which provides: “ 206. 20. 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 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 Nzuki vs. Republic (supra), this Court stated: “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; iii. Where the 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. Without an intention of one of these three types, the mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1887/eng@2026-09-25 5

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is not by itself enough to convert a homicide into the crime of murder. See the case of Hyam v Director of Public Prosecutions, [1975] AC 55.” 21. This Court in Odio vs. Republic (supra) was emphatic that because a court cannot directly read an accused person's mind, courts routinely rule that malice aforethought (or criminal intent) can be conclusively inferred from the objective medical evidence, specically the nature, location, severity, and multiplicity of the injuries inicted on the deceased. The East African Court of Appeal in Rex vs. Tubere s/o Ochen [1945] 12 EACA, a landmark decision, explicitly laid down a four-factor checklist for courts to deduce malice aforethought from a deceased’s body: (a) the nature of the injuries: violent, devastating, or deep wounds speak directly to the assailant’s frame of mind; (b) the part of the body targeted: intentionally striking highly vulnerable, vital organs (such as the brain, neck or heart) demonstrates a clear expectation of a fatal outcome; (c) the weapon used: deploying an inherently lethal instrument (e.g., a rearm, heavy machete or iron bar) to cause those injuries signals malicious intent; (d) the manner of iniction: repeated, persistent actions, as opposed to a single, accidental blow, indicate a determined will to kill. This Court in Musimbi vs. Republic [2023] KECA 287 was categorical that death by ligature strangulation or manual asphyxiation serves as absolute proof of malice aforethought. Strangulation requires sustained, continuous physical pressure over minutes, showcasing a "pure intention” to end the deceased's life. 22. As decided cases suggest, malice aforethought can be inferred from the peculiar circumstances of the case. As was stated by this Court in Odio vs. Republic (supra), when a court is asked to infer malice aforethought in cases of this nature, the court weighs the ndings using a two-step judicial inquiry: (a) the Objective Inquiry (Post-Mortem): The court analyzes the pathologist's report to isolate the exact cause of death, the force required to break a bone or sever tissue and the number of distinct impact sites. (b) The Subjective Inference: The court asks: could a person inict these precise injuries without realizing that death would be the natural and probable consequence? If the answer is no, malice aforethought is legally established. (See the High Court decision in Republic vs. Koskei alias Nicholas Korir [2025] KEHC 2686 (KLR)). 23. Earlier in this judgment, we highlighted the evidence relating to the ndings by the pathologist. It was his evidence that the cause of death was as a result of blunt injuries to the head. As the unrebutted evidence shows, the beatings inicted on the deceased were not only severe but incessant lasting a long duration, from the maize plantation, to her house to the extent that she could not walk. The injuries as disclosed by the pathologist attest to not only the brutality unleashed upon the deceased, but also a conscious intention to kill and an impermissible reckless way of eecting what would have been otherwise a lawful arrest. Excessive force during an arrest violates the constitution, statutory frameworks and police standing orders, meaning the ocers are held personally, criminally, and civilly accountable for the consequences. The legal boundaries for using force during an arrest are strictly dened, shifting the burden of proof to the police to justify any violence used. In this case, there was no attempt by the ocers to justify the brutal force unleashed on the deceased. Accordingly, we nd that malice aforethought and an intention to kill was clearly established in this case against the GSU ocers. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1887/eng@2026-09-25 6

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24. Next, is the ultimate question in this case, which is whether it was established beyond reasonable doubt that the appellants before us are the ones who caused the deceased’s death leaving no doubt there is no possibility that the death was caused by other persons. PW1, PW2, PW3, PW4, PW5 and PW13 who were eye witnesses, only talked of persons in uniform who violently beat the deceased. They identied the Chief and his Assistant as persons who brought them to the deceased’s home. This was corroborated by PW7, the GSU driver whose evidence was that he was directed by his superior to go and fetch water with the lorry. In his evidence in chief, he testied that he was accompanied by 4 ocers and specically named the deceased, the 1st and 2nd appellants, and “another ocer.” This evidence clearly puts the 1st and 2nd appellants at the scene. The question is whether the 3rd appellant was properly placed at the scene. However, during cross-examination by Mr. Chege, PW7 is recorded as having stated “I had 6 people, inspector corporal, 2 ocers, Chief and Assistant.” Then the learned judge in the proceedings wrote what appears to be an observation he made. He wrote: “Witness identies all accused persons in court who were at the scene.” This observation by the trial judge who had the unique benet of hearing and observing the witnesses is quite telling. The principle that a trial court’s factual ndings and proceedings are presumed to be correct is a bedrock rule of appellate review. Higher Courts explicitly enforce this presumption to maintain judicial eciency and respect the trial court's unique proximity to the evidence. We have no reason to doubt the trial courts records which clearly show that PW7 during cross examination conrmed that the three appellants were at the scene. This resonates well with the evidence by the other witnesses that there were 4 ocers at the scene who were attacking the deceased. It is also important to mention that PW7 was not a stranger. He was also a GSU ocer, therefore, the appellants who were his workmates were known to him. Therefore, the question of mistaken identity does not arise. This telling observation by the trial judge clears the doubts raised by Mr. Gikonyo who suggested that PW7 did not mention the 3rd appellant. In our view, the learned judge left no doubt that all the appellants were identied in court by this witness during cross examination. 25. The primary purpose of cross-examination is to elicit facts that support the case of the party cross examining or weaken the opponent's case, while simultaneously testing the truthfulness, accuracy and reliability of the witness's testimony. It is considered a fundamental component of a fair trial and the constitutional right to challenge evidence. Asking a question that damages your own case is one of the biggest risks in cross- examination. In legal practice, cross-examination is often driven by the golden rule: "Never ask a question unless you already know the answer." When a cross-examiner asks an open, reckless, or unplanned question, they risk giving the witness a platform to repair their credibility, introduce damaging new evidence or close a fatal gap in the opponent's case. We say no more. 26. Notably, all the appellants before us elected to remain silent upon being put to their defence. Under Article 50 (2) (i) of the Constitution, an accused cannot be compelled to testify and no automatic inference of guilt can be drawn solely from their silence. However, appellate courts emphasize that silence is not a legal shield against a robust prosecution case, if the state's evidence is strong enough to logically demand an explanation, an accused who chooses not to oer a defence leaves that evidence completely intact. This Court in Phillip Nzaka Watu vs. Republic [2016] eKLR, a seminal Court of Appeal case that directly addresses the consequence of remaining silent in the face of incriminating factual evidence, was categorical that an accused person's right to remain silent is absolute and guaranteed by the Constitution. However, the Court claried that silence does not mean that the evidence presented against the accused disappears. If the prosecution has built a case that logically points to guilt, electing to remain silent leaves that circumstantial or direct proof standing as uncontroverted truth. 27. This Court in Kahindi vs. Republic (Criminal Appeal 33 of 2018) [2022] KECA 493 re-evaluated the intersection of constitutional rights and evidentiary weights. It explicitly stated that exercising the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1887/eng@2026-09-25 7

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right to remain silent under Article 50 (2) (i) "does not absolve the prosecution from its burden of proof." However, the Court emphasized that if the trial court has already correctly found a "case to answer" (prima facie case), the choice to oer no defence means the accused leaves the state's allegations to stand with no alternative narrative to create reasonable doubt. 28. In John Wakabiu Cini vs. Republic [2016] eKLR, the Court explored the tactical risk an accused assumes when refusing to testify. The Court observed that it is immaterial whether an accused chooses to remain silent when called upon to defend themselves under the Criminal Procedure Code. However, the critical caveat is that the court cannot ll gaps for the defence. If the state's evidence is independently sound, the logical consequence of the accused remaining silent is that the prosecution’s facts cross the threshold of proof beyond reasonable doubt. The appellants are GSU ocers. There is uncontroverted evidence by PW7, the GSU lorry driver that on their way to fetch water, they were stopped by a Chief and his assistant who asked for their assistance in apprehending a changaa seller who the chief described as dicult. There is uncontroverted evidence that the Chief and his assistant led them to the deceased’s home, that the ocers beat the deceased with rungus/jembe handles until she could not stand, that they tied her with a rope and bundled her into the lorry together with the changaa, and that the GSU ocers took the deceased to the police station and thereafter to the hospital. The Clinical Ocer testied that the deceased was nose bleeding and had bruises while the postmortem report disclosed blunt brain injuries which caused her death. On the face of all these allegations, and in absence of evidence to the contrary justifying the use of force to arrest the deceased, or asserting that the force used was not excessive but reasonable in the circumstances, the trial court was justied in nding that the death was unlawfully caused by the appellants. We nd no reason to interfere with the trial court’s nding on conviction. 29. Regarding sentence, we note that the learned judge considered the appellant’s mitigation and the nature and circumstances of the oence and sentenced them to serve 15 years imprisonment. In our view, this was an extremely lenient sentence taking into account the nature of the oence and the brutal manner in which the oence was committed leading to an unwarranted loss of life. The upshot of the foregoing is that this appeal fails both on conviction and sentence. Accordingly, we dismiss this appeal for being devoid of merit DATED AND DELIVERED AT NAKURU THIS 25TH DAY OF SEPTEMBER, 2026. J. MATIVO ................................ JUDGE OF APPEAL MURUNGI B. KAIRARIA ................................ JUDGE OF APPEAL AHMED ISSACK ................................ JUDGE OF APPEAL I conrm that this is a true copy of the original Signed. DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1887/eng@2026-09-25 8

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