HIGH COURT CRIMINAL

CASE NO. 51 OF 2018

REPUBLIC……………………………………………………..PROSECUTOR
. VERSUS
JOSEPH KURIA IRUNGU……,………………………………1ST ACCUSED
JACQUELINE WANJIRU MARINE………………………….2ND ACCUSED
CASE SUMMARIES

 On or about 19th September, the deceased was murdered in her apartment at Lamuria
Gardens within Kilimani area, Nairobi County by the s aid accused persons contrary
to section 203 and 204 of the Penal Code.
 The information was read to each accused persons. However, they pleaded not guilty to
the charge before Justice Lesiit on 9th October 2018 and the case then proceeded to full
hearing.
 The first accused denied any knowledge of the deceased an maintained that he had never
met the deceased before her death
 The second accused person also denied knowledge of the deceased and that she had no
reason to want the deceased dead.
ISSUES

 Main issue- Whether the prosecution had discharged its burden of proof beyond
reasonable doubt that each of the accused persons murdered the deceased.
 Breakdown
1. Whether the deceased was murdered
2. Whether the burden of proof beyond reasonable doubt rests on the prosecution
3. Whether one or both the accused persons murdered the deceased.
Case analysis and Deteremination

 Whether the burden of proof rests on the prosecution

 Section 107, 108 and 109 of the Evidence Act.
 Article 50(2) of the Constitution of Kenya
 The burden remains on the prosecution thought the trial.
 Bakare v State (1985)
 “Absolute certainty is impossible in any human adventure including the administration of
criminal justice……..a high degree of cogency consistent with an equally high degree of
probability.”
Cont.

 The federal court in the dicta of United States vs Smith 267 F. 3d 1154(Citing re Winship)
stated
 “Reasonable doubt exists when you are not firmly convinced of the defendant’s guilt after
you weighed and considered all the evidence.
 The Court of Appeal in the dicta of Nyanjui v Republic(Appeal 96 of 2021) Citing the
decision of Lord Denning in Miller v Ministry of Pension (1947) averred that “the degree
need not reach certainty but it must carry a high degree of probability”
Cont.

 Whether the deceased was murdered

 Setion 203 and 204 of the Penal code
 Milton Kabulit z& 4 others v Republic (2015)
 The court provided four elements that must be proved on the charge of murder
1. Occurrence and Cause of death
2. Whether the death was lawful or unlawful
3. Proof of commission of the offence by the accused
4. Malice aforethought
Cont.

 Whether one or all of the accused persons committed the offence

 The prosecution’s case was that the 1st accused person committed the offense of murder
and that is conduct before, during, and after the murder implicates him.
1. The first accused stole an ID and used the same ID to access Lamuria Garden estate
where the deceased was murdered.
2. The accused person lied as to whether he knew the deceased person prior to her death and
this was disproved through evidence and the court concluded that this was an afterthought
and a ploy to mislead the court.
3. The accused person burnt some of the clothes that he was wearing on the material day to
destroy evidence that may implicate him in the murder.
Cont.

In the dicta of Tubere s/o Ochen [1945] 12 EACA 63, characteristics such as the nature of
the weapon used, the manner the weapon was used to inflict injuries, the parts of the body
targeted, the nature and gravity of injuries, and the conduct of the accused person during and
after the incident would be considered in determining whether an accused person had malice
aforethought
The court concluded that the first accused person had malice aforethought based on his
conduct before and after the incident, the severity and the nature of the injuries inflicted on
the deceased were also considered in concluding that the first accused had malice
aforethought.
Cont.

 The Doctrine of Last Seen Alive

 The court noted as was held in the case of Kimani v Republic (Criminal Appeal
41 of 2022, that the doctrine is based on circumstantial evidence where the
person last seen with the deceased person is responsible for their death unless
they can explain what happened. This is a negation of the principle of
presumption of innocence.
 No such explanation was provided by the first accused person as to the events
surrounding the death of the deceased person.
Conclusion

 This Judgement underscores the complexities of criminal proceedings an the

balance between the rights of the accused, interests of justice and public safety.