MINUTES OF GROUP ELEVEN MEETING HELD ON WEDNESDAY 7TH FEBRUARY 2024 IN GROUP

DISCUSSION AREA AT 12:30PM

Members Present

1. Ochieng Joshua

2. Melody Nyawira Ngari

3. Valarie Rotich Chepkosgei

4. Simiyu Nekesa Debora

5. Titus

6. Faith Kuol.

7. Tonny Munyao Mwende

8. Britney Vusha Amugune

9. Doreen Omolo

10.Simon

AGENDA.

1.Preliminaries.

2. Drafting of the moot question.

3.Discussion of the moot question.

4.Compiling of the moot question.

5.Adjournment.

MIN 01/02/2024: Preliminaries.

The meeting begun with an opening prayer which was held by Melody and later the group leader
welcomed the members, appreciating them for their great cooperation.

MIN 02/02/ 2024: Drafting the moot question.

Each member gave their views on which question we should settle for. Majority were of the opinion we
do the mooting on a criminal case. Thereafter, different cases were outlined and we came up with a case
scenario, which we agreed to use it for our mooting question. Facts of the case

MIN 03/02/2024: Discussion of the moot question.

After coming up with the mot question, the members brought their mind together as we shared on the
arguments we considered as the amendments to the case. In due time new facts were generated and
included in the case for the effectiveness of the case.
MIN 04/02/2024: Compliment of the moot question.

After we finished discussing and amending the question, we compiled the question. All facts of the case
were noted down in a logical way to suit the case. The case compliment was done by Joshua, who
involved the other group members in going through it and getting to familiarize with the case question,
facts and flow of events in case. These gave each member better understanding of how to phrase their
arguments based on the given facts. We agreed to work on our research and everyone was to see how
best they would perform, either on the prosecution side or on the defense side.

MIN 05/02/2024: AOB

Members suggested that we be having virtual meetings henceforth, since we had to up our game. We all
agreed to have our virtual meetings, every day at 8:30PM. However, the physical group meetings were
still to be held.

MIN 06/02/2024: Adjournment.

Having discussed all the agendas and being on an agreement, the group leader adjourned the meeting.

Chairperson: Rotich Chepkosgei Vallerie Date 07/02/2024

Signature:

Secretary: Date 07/02/2024

Signature:
MINUTES OF GROUP ELEVEN MEETING HELD ON MONDAY 12TH FEBRUARY 2024 IN GROUP
DISCUSSION AREA AT 10:30AM

Members Present.

1. Ochieng Joshua

2. Melody Nyawira Ngari

3. Valarie Rotich Chepkosgei

4. Simiyu Nekesa Debora

5. Titus

6. Faith Kuol.

7. Tonny Munyao Mwende

8. Britney Vusha Amugune

9. Doreen Omolo

10.Simon

Agenda

1.Preliminaries

2. Preview of the moot question.

3. Division and allocation of work.

4. Individual work research.

5.Discussion of the research work

6. Compiling of individual work.

MIN 06/02/2024: Preliminaries

The meeting started with an opening prayer which was led by Faith, the group leader then went ahead
to welcome all members and congratulated them for their great cooperation.

MIN 07/02/2024: Preview of the moot question.

The members went through the question again, reviewing the case theory and each got the clear
understanding of it.

MIN 08/02/2024: Division and allocation of the work.

After the reviewing of the case theory, the members went ahead and divided themselves in to two
separate groups, which constituted to prosecution and defense sides. In this groups, work was allocated
to each member and they knew what was expected of them. Considering that we had five issues in
relation to the case facts, each member was allocated at most one issue to research and discuss on. The
prosecution side therefore constituted of the following members;

1. Simiyu Nekesa Debora

2. Melody Nyawira Ngari.
3. Ochieng Joshua
4. Britney Vusha Amugune
5. Doreen Omolo

The defense team therefore constituted of;

1. TITUS
2. Rotich Chepkosgei Vallerie
3. Tonny Munyao Mwende.
4. Faith Kuol
5. Simon

Having formed the two teams, each individual was allocated an issue to discuss on as follows;

Prosecution.

1. Simiyu Nekesa Debora -- Whether the act of the accused person resulted to causation of death.

2. Melody Nyawira Ngari. -- Whether there is evidence connecting to the act and omission of the
accused, to the death of the deceased.// Whether there is use of deadly weapon by the accused.

3. Ochieng Joshua. -- Whether the Mens Rea element of murder was present/ Malice aforethought

4. Britney Vusha Amugune -- Whether the three accused are joint offenders/ Conspiracy

5. Doreen Omolo -- Whether the offenders were of sound mind when the murder occurred.

Defense.

1. TITUS --

2. Rotich Chepkosgei Vallerie --

3. Tonny Munyao Mwende. --

4. Faith Kuol --

5. Simon --

MIN 09/02/2024: Individual work research.

After the allocation of work by the group leader, each member went on and proceeded on their
individual research of the issue allocated to them. The members made use of the constitution of Kenya
2010, the statutory legislations, the penal code, case laws and other relevant provisions that would back
up their arguments during the oral submissions. The members took ample time carry out their research
on in the legal field. Members came up with relevant arguments sufficient for both the prosecution side
and the defense side. Each member was certain that, as long as they gather their confidence and follow
all the rules of mooting, they will definitely emerge victorious.

MIN 10/02/2024: Discussion of the researched work.

After each member was certain that they had done their best in the individual research. The members
sat together and each person was to present the work they had researched on. Each member had
remarkably done their research. Few amendments were made in some of the work presented for it to
suit the arguments presented, both for the prosecution and the defense teams.

MIN 11/04/2024: Compiling of individual work.

After all the discussions, individual work research and amendments, the members on prosecution team
and on the defense side were to submit their work to Melody and Britney consecutively, who will later
do the typing and compiling of the work into one document as the written submission. The drafting of
the final documents of submission was to be done on or before 20th February,2024.

MIN 12/04/2024: Adjournment.

Having taken ample time to discuss all agendas that we had laid out and being on an agreement of
everything we discussed, the group leader proceeded to adjourn the meeting. Members left at their
own pleasure.

Chairperson: Rotich Chepkosgei Vallerie Date: 12/02/2024

Signature:

Secretary: Melody Nyawira Ngari Date: 12/02/2024

Signature:
BUNDLE ON BEHALF OF THE PROSECUTION.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KILIMANI

CRIMINAL CASE

REPUBLIC ( PROSECUTION)

RUTH MATAN0, KAMANDE, AND KANGETHE (1ST,2ND,& 3RD ACCUSED)

Lead Counsel on behalf of prosecution- Ochieng Joshua.

- Simiyu Nekesa Debora

- Melody Nyawira Ngari.

- Britney Vusha Amugune

- Doreen Omolo
MEMORANDUM FOR THE PROSECUTION

TABLE OF CONTENTS

STATEMENT OF RELEVANT FACTS……………………………………………………………………………………………3

ISSUES OF DETERMINATION………………………………………………………………………………........................5

STATEMENT OF JURISDICTION……………………………………………………………………………………………………6

SUMMARY ARGUMENTS…………………………………………………………………………………………………………….7

Issue 1…………………………………………………………………………………………………………………………………..7

Issue 2…………………………………………………………………………………………………………………………………..7

Issue 3…………………………………………………………………………………………………………………………………..7

Issue 4…………………………………………………………………………………………………………………………………..7

Issue 5………………………………………………………………………………………………………………………………….7

SUBSTANTIVE ARGUMENTS………………………………………………………………………………………………………8.

ISSUE 1: Whether the act of the accused person resulted to causation of death.

ISSUE 2: Whether there is evidence connecting to the act and omission of the accused, to the death of
the deceased.

ISSUES 3: Whether the Mens Rea element of murder was present/ Malice aforethought

ISSUE 4: Whether the three accused are joint offenders/ Conspiracy.

ISSUE 5: Whether there is use of deadly weapon by the accused.

ISSUE 6: Whether the offenders were of sound mind when the murder occurred.

PRAYERS....

LIST OF AUTHORITIES …
STATEMENT OF RELEVANT FACTS.

1. Mr. David Matano herein referred to as the [deceased] and Mrs. Ruth Matano [accused]
have been married for 20years. They are blessed with two kids namely James and John.
The deceased works with Safaricom company while Mrs. Ruth manages her own saloon in
Runda.

2. Mrs. Matano took a loan with Cooperative bank and concealed the information from her
husband. She had intended to use the money to expand her business. Unfortunately, as a
result of the demonstrations against the high cost of living, some rioters looted her saloon
shop which made her experience a huge loss. She had approached her husband for a loan
but he declined her request saying that he didn’t have money. The loan was due on the
10th of February 2023 and as result, Mrs. Ruth Matano had developed depression of
which she went to the hospital and was admitted for two days from 2nd to 3rd of February
2023. The doctor attributed this to extreme levels of stress.

3. Mrs. Matano has always known her husband to be a stingy man and didn’t believe that he
didn’t have money. She then planned to stage a robbery on her husband so as to obtain
money to service her loan. On the 6th of February 2023 she approached one Susan, her
friend from Campus in a Hotel Breeze in Karen, and told her of her plans and offered to
help but warned her that there should not be anything else apart from robbing the money
"no one should be hurt'' On the seventh of February 2023, Susan introduced Mrs. Matano
to Kamande a member of a gang named '' Ndugu Sita'' in a hotel in Langata and agreed on
the venue of the commission of the supposed offence. After the agreement Mrs. Matano
sent Sh. 20,000 through Mpesa as an advance payment. The remaining Sh. 30000 was to
be sent after the completion of the job. However, she did not tell them not to harm her
husband during the act or said operation.

4. On the 8th of February 2023 at 7:30 pm, Mrs. Ruth Matano telephoned her husband and
requested him to pick her up from her Saloon because her car had mechanical problems.
This was unusual because she usually took a taxi on such situations. She told her husband
to wait for her at a Junction near her workplace. She then telephoned Kamande and told
him that ''tuko fiti'', an action that was witnessed by Mary, a worker in the saloon.

5. The deceased arrived at Kona Mbaya junction at 7:30 pm and waited for around 20
minutes. He was ambushed by a group of masked persons who pointed a gun on him and
ordered him to transact a sum of 2 million shillings to an account an act that he did in
compliance. However, he had dialed 911 a police toll line that was received by Constable
Korir. Upon realizing that the deceased had made a call to the police one of the masked
men shot him on the chest and deserted the crime scene. However, a Nokia C32 belonging
to one of the men fell and remained at the crime scene.

6. Constable Korir arrived at the scene at 9:30 pm and found the deceased in a pull of blood.
 Some officers rushed him to Karen hospital for treatment. However, he was confirmed
dead by Doctor Maina, the lead doctor in Karen hospital and noted his time of death as
10:45 pm a few minutes after his arrival in the hospital. He was given a corpse tag N32
and admitted to the hospital mortuary after identification by the deceased wife, Ruth
Matano.

7. Mr. Korir and other officers retrieved a Nokia C32, from the crime scene and upon
investigation and help from Safaricom, it led them to one Kang'ethe, who agreed to
ownership of the phone. He further stated that he was one of the robbers. He further
revealed that they were sent by a lady called Ruth, whom he did not know. He also denied
taking the killer shot and disclosed Kamande’s whereabouts.

8. Kamande was arrested and upon interrogation, he completely refused to talk. However, a
search was carried in his house and his phone and a 3.2 level action pistol was retrieved.
Kamande’s cellphone was also analyzed and Ruth Matano’s number was found on his call
log.

9. Mrs. Matano was arrested and questioned on the same and said that he had called him
regarding supplies to her saloon and transferred Sh. 20000 to his account for the same but
denied knowing him in person.

10. The DCI retrieved a CCTV footage from hotel Breeze of Mrs. Matano and Susan. Susan
had offered the information willingly to the DCI. She was also arrested. Mary Achani, an
employee of Mrs. Matano also gave her statement on the incident of a phone call between
Mrs. Matano and the unknown person.

11. Forensic report by Dr Keagan, attached to the DCI, confirmed that a spot of blood that
was found on the pistol matched that of the deceased. He also confirmed that the bullet
that was stuck on the chest of the deceased matched those that was recovered on the pistol
gun retrieved. Kamande’s fingerprint were however not found on the retrieved gun.

12. An autopsy report done by a government pathologist Dr Duncan Oduor, stated that that the
deceased died out of thoracic trauma as a result of a gunshot involving the heart. However,
he noted that the bullet must have struck somewhere before hitting the deceased chest
explaining why the bullet stuck on the deceased chest.

13. The investigation report by the DCI led by Detective Tom Kaburi was handed over to the
Director of Public Prosecution for action to charge Ruth Matano, Kamande, Kang'ethe and
Susan at Kilimani High Court for the offence of murder of David Matano on the night of
8th February 2023 at Kona Mbaya junction, event whose genesis are from 6th of February
2023.

The court is to adjudicate on the following issues:

ISSUES OF DETERMINATION.

1.Whether the unlawful act or omission of the accused persons resulted to causation of death.

2. Whether there is evidence connecting to the act and omission of the accused, to the death of the
deceased.

3. Whether the Mens Rea element of murder was present/ Malice aforethought

4. Whether the three accused are joint offenders/ Conspiracy.

5. Whether there is use of deadly weapon by the accused.

6. Whether the offenders were of sound mind when the murder occurred.
STATEMENT OF JURISDICTION

The High court of Kenya is a court of unlimited original jurisdiction in criminal and civil matters
established under article 165 of the constitution of Kenya.

The prosecution would like to acknowledge the importance of the element of jurisdiction in any court of
law and that without it a court has no power.

“Jurisdiction” has been defined by the Black's Law Dictionary as “A. Court's power to decide a case or
issue a decree”

If a court lacks jurisdiction then , then all its proceedings are in vain and it is a trite law that a court must
down its tools with respect to the matter before it, the moment it holds the opinion that it lacks
jurisdiction as was established in the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya)
Ltd [1989] eKLR.

On this, the prosecution respectfully submits that on the basis of the case beforehand that the court is
of competent jurisdiction to hear and determine this case as stipulated in the criminal procedure code :

Offences under Penal Code (Cap. 63).

SUMMARY ARGUMENTS.

Issue 1: Whether the unlawful act or omission of the accused persons resulted to causation of death.

Issue 2: Whether there is evidence connecting to the act and omission of the accused, to the death of
the deceased.

Issue 3: Whether there is use of deadly weapon by the accused

Issue 4: Whether the Mens Rea element of murder was present/ Malice aforethought

Issue 5: Whether the three accused are joint offenders/ Conspiracy

Issue 6: Whether the offenders were of sound mind when the murder occurred.
SUBSTANTIVE ARGUMENTS
ISSUE 1: Whether the unlawful act or omission of the accused persons
resulted to causation of death.
According to section 203 of the penal code provides that any person who of malice aforethought
causes death of another person by unlawful act or omission is guilty of murder. Section 204 of the
penal code provides punishment for murder.

 Whether the acts of the accused person caused the death of the accused.

The prosecution alleges that the actions of the accused caused the death of the deceased.

The prosecution shall proceed and discuss this in two limbs

 Is there a link between the accused acts and the death of the deceased.

The first accused person Ruth Matano acts are based on circumstantial evidence and in the case of R vs
Taylor weavor Donovan the court said that circumstantial evidence is often said to be the best evidence
in surrounding circumstances.

According to the CCTV footage the prosecution can deduce the evidence. Where it clearly shows Ruth
Matano, Susan and Kamende having a conversation at Hotel Breeze.

Evidence adduced meets the requirements of section 78 of the Evidence Acts which states that
Electronic evidence can be defined to mean data(comprising the output of analogue devices or data in
digital form) that is manipulated, stored or communicated by manufactured devices, computer or
computer system or transmitted over communication system that has potential to make factual
account of either party more probable or less probable than it would be without evidence.

It’s also positive that Mrs Matano phone call before the commission was done links her to the crime as
was stated in the case of Geoffrey Nguku vs Republic (1982-88) it was stated that evidences constituting
a chain of events lead up the commission of the offense.

 Second limb is to for the prosecution to discuss whether accused person did commit the Actus
Reus elements.

This element will mainly focus on the second accused person(Kamende) and third accused person
(Kangethe). Where by the two accused person portrayed all the elements of Robbery with violence and
they include

 Use of actual force to obtain something. Clearly indicated in the evidence where the robbers
pointed Mr Matono the guns and forced him to transfer the money to the unknown account.
Case can also be referred to silas Nichami alias Anyole and another vs Republic
 Armed with dangerous weapon. Using the deadly weapon doctrine we learn that anything can
be used as a dangerous weapon and the outcome is it's effect to the victim. Since the robbers
were armed with gun and later during the investigations a pistol was retrieved, as was in the
 case of Daniel Morara Mose vs Republic where the accused was armed with a knife when
attacking the victim.
 In company of one or more than one person.

Since it was called the Ndugu gang this shows that they were in a group of people. Can be related to the
case of Charles Mwai Kimani vs Republic accused persons jointly with others robbed Paul mwicigi
Macharia.

The fourth accused person carried out the instructions of committing the offense by procuring the
robbers as it was evidenced in the CCTV footage. The fourth accused person is guilty of murder
According to section 20.b of the penal code. Case to emphasize on this point is the case of Milton
Kabulit James Kabulit vs Republic the accused person carried out the instructions which constituted to

ISSUE 2: Whether there is evidence connecting to the act and

omission of the accused, to the death of the deceased.

The evidence connecting to caused, basically means a correlation which in legal terms we refer
to it as circumstantial evidence.

Generally, the rules on the law of evidence entail establishing the required burden of proof,
guidance on treatment of records and digital evidence, making provisions on admissibility and
presentation of various forms of evidence such as on character, confessions, opinions,
documents, among others.
In the case at hand the prosecution has proven certain fats that they would like to use to
deduce the circumstantial evidence. The proven fats therefore include;
 The CCTV footage in Hotel Breeze, which proves that Mrs. Matano and Susan were
there on the 6th of February 2023.
 Following the DCI interrogation with Susan the caused, she willingly discloses on what

was the agenda of her meeting with Mrs. Matano at Karen, Hotel Breeze. In line with
the provisions of section 25A (1) of the evidence Act. The prosecution therefore finds
her statement believable and reliable in the sense that she willingly agreed to provide
information to the DI and to give testimonial against her campus friend, in normal
circumstances people of friendship of their caliber would try at all costs to hide their
friends faults but she didn’t.

 Statement of Mary Achani, an employee of Mrs. Matano on the incident of a phone call
 between Mrs. Matano and the unknown person, where Mrs. Matano said, ''tuko fiti''. The
caused words were meant to give the unknown person the go ahead so as to be on set for
the commissioning of the rime.
 Kang’ethe upon being arrested and interrogated by the DCI, he disclosed that they had
been sent by a lady named Ruth,whom he did not know. Mrs. Ruth Matano during her
interrogation claimed not to know Kang’ethe in person. That only meant that,
Kang’ethe was linked to Mrs. Matano indirectly through Kamande who was the direct
contact assigned the job of robbery.
 Forensic report by Dr Keagan, attached to the DCI, confirmed that a spot of blood that
was found on the pistol matched that of the deceased. He also confirmed that the bullet
that was stuck on the chest of the deceased matched those that was recovered on the
pistol gun retrieved. Fingerprint on the pistol, however didn’t led to Mrs. Matano, but
was suspected to be Kamande’s following to the turn of events.
 An autopsy report done by a government pathologist Dr Duncan Oduor, stated that that
the deceased died out of thoracic trauma as a result of a gunshot involving the heart.
However, he noted that the bullet must have struck somewhere before hitting the
deceased chest explaining why the bullet stuck on the deceased chest

Under Chapter 80 of the Evidence act section 119, states that the court may presume the existence of
any facts which it thinks likely to have happened, regard being had to the common course of natural
events, human conduct and public and private businesses, in relation to their facts of the particular case

In TOPER V. REPUBLI. (1952):-It was stated that, “Circumstantial evidence must always be narrowly
examined, if only because evidence of this kind may be fabricated to cast suspicion on another. It is
also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be
sure that there are no other co -existing circumstances which would weaken or destroy the influence.”
In relation to our ase

.
ISSUE 3: Whether there is use of deadly weapon by the accused
ISSUE 4: Whether the Mens Rea element of murder was present/
Malice aforethought

The prosecution on this case stands on its grounds that the various if not all the elements of mens rea
were present in the fact of this case. It is the duty of the prosecution that all times to prove that the
accused had the mens rea which " a guilt mind" or " the man endangering state of mind" during the
commission of the crime.The prosecution will then proceed to demonstrate intent by the accused
persons by advancing their arguements using various issues.

The accused persons acted acted contrary to section 203 of the penal code. In the case of REPUBLIC v
ANDREW MUECHE OMWENGA [2009] eKLR, the court held that it is clear from the defination that, It is
clear from this definition that for an accused person to be convicted of murder, it must be proved that
he caused the death of the deceased with malice aforethought by an unlawful act or omission. There are
therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in
order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b)
that the accused committed the unlawful act which caused the death of the deceased and (c) that the
Accused had the malice aforethought.Section 203 of the penal code profiles malice aforethought as an
ingredient of murder.

a. Whether the accussed had malice aforethought?

In the case of republic v . Juma Kituko Mwambengu, the element of malice aforethought was defined
under section 203 of the penal code as

a). An intention to cause death or to do grievous harm to any person whether such person is the person
actually killed or not.

(b). Knowledge that the act or omission causing death will cause the death of or grievous harm to some
person, whether such person is the person 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 be caused.

(c). An intent to commit a felony.

(d). An intention to facilitate the escape from custody of a person who has committed a felony.

It should be noted that if any of the elements of malice aforethought or more as therein stated above is
proven one will be guilty of the offence of murder as stated in section 203 of the penal code.This was
mentioned in the case of Republic v. Henry Kaithia [ CRIMINAL CASE (MURDER) NO. E020 OF 2021]
that The offence of murder is complete when, “malice aforethought” is established if, pursuant to
section 206 of the Penal Code evidence proves 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.”

With this in mind then the prosecution then proceeds to analyse the following elements of malice
aforrethought to to prove that the accussed and the co accussed are guilty of the offence of murder as
read in section 203 vis a vis section 204 of the penal code.

1. 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;

i. The prosecution will like submit the evidence in the third paragraph of the Fact sheet that Mrs
 Ruth matano hated her husband for his stingy nature and this in no doubt proven when she
approaches for a loan that she intended to secretly use to service her loan that was due.The
answer by the husband was no, he didnt have money.This would normally make a person feel
angry and stressed which will eventually develop into hate.It is also confirmed through the
hospital report( exhibit No 10) by Karen Hospital that the first accussed was admitted for two
days in the facility due to extreme stress levels.How did this experience impact the attitude of
mrs Ruth , the first accused towards her husband.?

ii. The second question therefore that the court should ask is , how did this kind of hate made Mrs
matano to plan a deadly robbery on her husband disregarding his safety?On this the
prosecution will rely on the exhibit No 11 ,which is the notice of due debt payment by
Cooperative Bank . Mrs Matano had a loan due on the 10th of February 2023 ,implying that
refusal by Her husband will automatically make her default on the loan.

iii. Mrs Ruth Matano therefore devised a devious means to get money from her husband by hiring
the second , third accused with the help of the fourth accused Mrs Susan.

iv. The accussed secured the services of Mr kamande and Kang'ethe and others not before the
court to rob Mr Matano David by forcing him to transfer money to an account that is traced
back to Mrs Matano Ruth as per the exhibit no 7.

v. It is also evident as per PW Dr Keagan , a forensic aanlyst that that the bullets which were
recoverd from the 3.2 level action pistol from the second accused house was the murder
weapon as it contained a spot of blood which matches the deceased DNA ( exhibit No 9). This
clearly places the second accused Mr Kamande at the scene of murder.

vi. The bullet that got stuck in Mr Matanos Chest also matched the bullets which were recovered
from exhibit no 4 .This further shows that the first accused having been found in possesion of
the gun under his roof , was and indeed participated in the planned robbery that claimed the
life of an innocent man who was innocently waiting for his wife not knowing that his wife had
turned Judas.

vii. The third accused admitted that the phone collected as exhibit no 1(nokia C32) from the
murder scene was his and this therefore infere that he was part of the gang that claimed the
deceased life something that he doesnt dispute from his interogations by the investigative
officers and goes ahead to assert that he didnt take the killer short.In the case of Republic v
Mark Lloyd Steveson [2016] eKLR in the high court of kenya section 25A (1) of the evidence act
that states:

(1) A confession or any admission of a fact tending to the proof of guilt made by an accused person is
not admissible and shall not be proved as against such person unless it is made in court before a judge, a
magistrate or before a police officer (other than the investigating officer), being an officer not below the
rank of Inspector of Police, and a third party of the person’s choice.
The US Federal Law defines a confession thus: the term “confession” means any confession of guilt of
any criminal offense or any self-incriminating statement made or given orally or in writing. (18 U.S. Code
§ 3501)

One of the aspects of these definitions of a confession that is not self-evident is that confessions usually
refer to statements or conduct made after the commission of a crime linking the person making the
statement with the crime. The distinction is crucial because it leaves out of the definition of a confession
a statement that is made in the course of conduct that is itself the commission of a crime or that refers
to previous statement which was offered not as an admission of guilt but in the course of conduct that
becomes subject of the criminal investigation itself. Hence, a person who is, for example, charged with
hate speech heard by an Investigating Officer among others cannot offer, in an effort to exclude the
evidence itself, the defence that the utterance which is the subject of the charge amounts to a
confession.

Taking all these factors into consideration the prosecution is persuaded that the third accused made his
confession to a police officer as per the provisions of section 25A (1) of the evidence act and his
confession can be relied upon to convict him of the offence charged.

Vii) It is not in dispute that Mr David Matano died and was confirmred dead by Dr Maina and
subsequently identified by the Wife Mrs Ruth Matano and was given corpse tag No N32.

(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;

The prosecution in this case will draw the attention of the court to the following actions of the accused
that infere their knowledge and omissions that culminated into to the death of the accused ,

1. The first accused Mrs Ruth Matano knew that the the people who she was hiring for her
unlawful act of obtaining money from her husband were robbers and a such it was foreseeable
that they would use violene to obtain their desired goal, which in this case was money.This is
brought to light by exhibit No 5 that is the CCTV footage of mrs Ruth and Susan who
confessed that it was that day in the hotel as shown in the footage that they hatched their
plan.The prosecution therefore finds her stament believable in the sense that she submisively
agreed to provide information to the police and to give information against her long time
friend , in normal circumstances people of friendship of their calibar would try to hide their
friends fauts at all costs.By this the prosecution is pursuaded that her statement are true and in
line with the provisions of section 25A (1) of the evidence Act and are therefore reliable.

2. The second and the third accussed ambushed the deceased when masked and heavily armed
and one of the weapon they were armed with was a 3.2 level action pistol( exhibit No 2) a
 weapon that is deadly and the second accused reckless use of it could only point a guity mind
and disregard for human life as the deceased was unarmed and complied to their demand and
transfered a sum of 2000000 shillings as shown from the bank trabsaction message( exhibit No
7) from Mr Matanos Bank account.Therefore the second and third accused had no justifiable
reason in law to cause the death of the deceassed hence they committed an unlawful act as per
section 203 of the penal code and with malice aforethought as stipulated in section 206 of the
penal code.

III) The first accused when asked accused when asked whether she knew the the third accused she
denied but only admitted that they contracted a business for supply of saloon equipments and
transacted a sum of sh20000 for the same. However she has not supported this by provision of any
contract agreement memorandum and does specify whether it was oral or written.

iv)The first accused through the evidence / exhibit no 7 .It is clear that the proceeds of the robbery of
total sum of 2000000 was traced to Mrs Ruth matanos secret account, this therefore infer that she had
a relationship with the third and second accused. The question that the court should ask itself is the
motive behind her denial of knowing the second and third accused while she knew them well. This can
only point out to nothing but a guilty mind.

Can the accused persons be charged with robbery with violence?

Section 295 of the penal code vis a vis section 296 of the penal code describes robbery as Any person
who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or
threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or
to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.’
The Court of Appeal in Paul Katana Njuguna vs. Republic [2016] eKLR held that:

“Although the side note describes section 295 as definition of robbery, it is evident that the section goes
beyond mere definition and creates a felony termed robbery by setting out clearly the elements of
that felony.

ISSUE 5: Whether the three accused are joint offenders/ Conspiracy .

The Constitution submits that; the first accused,2nd accused,3rd

accused and the 4th accused are liable for the offence of joint
offenders with common law. As per the knowledge of common
law a crime may be committed in complete isolation or by more
than one person , or by several persons are involved but they
play different roles.The prosecution shall proceed to determine
beyond reasonable doubt that the above accused persons are
joint offenders with common intention. The prosecution shall
canvass on the issue at hand In 3 limbs:
1) Whether the accused persons were all principal offenders
As provided for under section 20 of the penal code ,these
are the primary participants in the commission of a crime ,
they include persons who does the prohibited acts , the
people who do anything or ommit to do an act for the
purpose of enabling or assisting another person commit an
offence , the person who aids and abets another in
committing an offence and finally , the person who
counsels or procures another to commit the offence ,
 As per the facts of the case from the fact sheet , Mrs
Ruth Matano, the first accused is the principal
offenders because she duped her husband by
requesting him to pick her up at the at the salon
because her vehicle had mechanical problems which
was clearly unsual , by doing so Mrs Matano set the
motion for the offence of murder and robbery to take
place.
 The 4th accused Ms Susan is also a principal offender
because she procured Mr Kamande to help with the
offence of robbery which led to the death of the
deceased
 In light of the following issues, the penal code treats
all principal offenders who will be charged jointly
with the persons who carried out the offence equally ie
all principal offenders are treated equally and are
liable to the same punishment . In George Walters
and five others vs The Republic the judge held that
an offence is not only committed by the act orll22w
pool pp pop d omission of an offender but also by the
person who aids and , counsels or procures the
commission of an offence ,in the Case of Lishungulu
and others vs The Republic The second appelant was
a widow of the deceased , she did not actually the
deceased but was the master mind and she was the one
who actually procured the killers, the third appelant
was her daughter who facilitated the kilings both were
held liable and convicted as such of murder.
B) Joint offenders with common intention
As per the facts of the law, the provisions of section
21 of the penal code envisages two or more people
forming a common intention to commit a crime
together and the offence is actually committed
whether by one or more of them. Hence the law treats
all involved as joint offenders and each of them
deemed to have committed the same offence.
Examples of case laws to illustrate this principle
include
The case of Maina s/o Kimani vs a
The accused was convinced of being in an unlawful
possession of a firearm, he did not have it in person
but it was carried by a man who accompanied him and
fired it. The accused admitted that he was in company
 of the armed man and that he knew him to be carrying
a pistol, , it was held in joint possession of the pistol in
terms of governing common intention
Similarly in the case of Karani and three others v
the republic
The first & second appelant instigated the hiring of
killers, both of them jointly planned the murdee,
collected and transported to the scene the weapons that
were to be used for killing, they were both to have
common intention with the actual killer to kill the
deceased.
Other cited cases include The case of Shiundu S/O
Mbakaya & another and Lekishan Ole Sankale
alias Lakamondo Ole Sankale and 3 OTHERS vs
Republic.
Both this cases were found to have common intention.

 The issue of common intention may be canvased in 3

limbs
A.The common intention may be formed at the very
beginning hence there may be a premeditated joint
plan. As per the facts of the case from the fact sheet,
the prosecution submits that From the evidence
adduced in court including retracted messages and call
history between the IST accused Mrs Matano and the
2nd accused Mr Kamande , and Susan who happens to
be the fourth accused, this clearly shows that they all
conspired from the very beginning to commit the
offence of robbery which resulted to the death of the
 deceased. Thus as per the evidence present in court, it
shows beyond reasonable onus that there was indeed a
spontaneous joint plan from the very beginning. This
claim can be supported by the case of Rex s/o Oketch
and others (,1947) whereby the court held that the
two didn’t dissociate themselves with the actions of
the man who fired the pistol, in fact it was then
speaking forcibly while the gun holder remained silent
B.Proof of common intention, common intention may be
proved from direct evidence or inferred from the
circumstances.

Subsequently, the prosecution formed the opinion that

the two accused person Mr Kamande and Mr
Kangethe , had common intention which was inferred
from the circumstances upon which after Mr Kamande
killed the deceased with a fatal gunshot wound upon
realizing , that the deceased in a desparate attempt had
dialed 911 ( the police) after which they both seemed
to have fled the scene of the crime. The shooting of
the deceased might have been necessary for the
common purpose of the 2 accused persons to escape
the punishment of the law had they been caught. This
inference can also be drawn from section 10 of the
evidence act which states that anything said or done
or written by any of the persons deemed to have
common intention is relevant evidence of such
common intention. This can also be shown in the case
of Rex vs Tabulayenka s/o of Kirya and 3 others.
The court stated that it was not necessary that there
should have been any consorted agreement between
the arrested persons prior to the attack on the so
called thief
Furthermore, In the case of Rex Otieno s/o of Oketch
the common intent of the appellant to kill the
policeman was inferred from the association of the
appellants , their discussion and the act of them
Immediately after the discussion firing a shot at each
policeman. The shooting was said to be necessary For
the common purpose of the appellants which was to
get away with their loot.

ISSUE 6: Whether the offenders were of sound mind when

the murder occurred
PRAYERS.
 HEAVY BUNCH OF EXIHIBITS BY THE PROSECUTION
1. Exhibit No 1 . Nokia C32.
2. Exhibit No 2. 3.2 Level action Gun.
3. Exhibit No 3. The accused Phone
4. Exhibit No. 4 Retrieved bullet Serial No .S265
5. Exhibit No 5. The CCTV footage.
6. Exhibit No 6. The post moterm report
7. Exhibit No 7. Bank transaction message
8. Exhibit No 8. Mpesa message to Kangethe
9. Exhibit No 9. DNA report.
10. Exhibit No 10 . Karen Hospital report on Mrs Ruth
Matano's health.
11. Exhibit No. Notice of due debt by the Cooperative
Bank.
12. Exhibit No 12 . Report on the time of death and
identification by Dr Maina at Karen Hospital.
13. Exhibit No.13 Forensic analyst Report.
14. Exhibit NO 14. The pathologist Report by Dr Duncan
Oduor.
 TEAM OF PROSECUTION WITNESES
PW1: Mrs Susan , a friend of the first accused
PW2: Miss Mary Achani an employee of Mrs Ruth
PW3: Constable Korir , first officer at the crime scene.
PW4: Dr Maina confirmed the death of Mr David Matano.
PW5: Dr Keagan Forensic analyst attached to the DCI
PW6: Dr Duncan Oduor ( pathologist)
PW7: Tom Kaburi: Detective.

The prosecution also relied on the willingful confession by the

following persons as evidence adduced;
1. Confession by Mr Kangethe the 3rd accused
2. Confession of Mrs Susan, a friend to the first accused .
The prosecution would like to submit that the confessions were
done in line with the provisions of section 25A (1) of the
evidence act and was carried out before a police officer as per
the requirement of this section , under no duress whatsoever
and are therefore taken to be true facts by the prosecution
unless declared otherwise with this court.
On whether the police had the authority to get the
confessions , the prosecution will rely on the provisions os
section 51 (i)(j)(k) of the national police service Act of No 11a
of 2011.

LIST OF AUTHOTRITIES BY THE PROSECUTION

STATUTES
The constituton of Kenya 2010
The Penal code Cap 63
Evidence Act Cap 80
National Police service Act no 11a of 2011
Criminal procedure code cap 75
http://kenyalaw.org/caselaw/cases/view
Section 2o.b, 203 , 204 and 296(2) of the penal code
Evidence Act section 78

LIST OF CASE LAWS.

Republic v Andrew Mweche Omwenga ( 2009) eKLR
Republic v Juma Kituko Mwambengu
Republic v Henry Kaithia Criminal case ( murder ) no E020 of
2021
Republic v Mark Lloyd Steveson (2016) eKLR
Paul Katana Njuguna V Republic ( 2016) eKLR
Republic vs Michael MucheruGaturo
R vs Taylor weaver and Donovan(1928)
Geoffrey Nguku vs Republic (1982-88)
Silas Nachami alias Anyole and another vs Republic
Daniel Morara Mose vs Republic
Charles Mwai Kimani vs Republic (2022)eKLR
Milton Kabulit and James Kabulit vs Republic criminal appeal
No.340 of 2012