Editor’s note: The facts are as captured in the judgment of Justice Muga Apondi in the criminal case which is reported as Republic v Thomas Gilbert Cholmondeley  eKLR.
At 4:00 p.m., on 10th May 2006, Robert Njoya Mbugua, Peter Gichuhi Njuguna and Joseph Kamau Muthoni, all from Kiunguria Village in what is now Nakuru County, went into the Soysambu ranch to hunt. Little did they know what fate had in store for them.
Gichuhi had earlier met Njoya at around 10:00 a.m. with an interesting proposition. Njoya thought about it and picked Kamau at his home at around 4:00 p.m. The two later met Gichuhi at his home. Gichuhi was carrying a piece of metal while accompanied by a black dog and two brownish dogs. Njoya was also carrying a panga and was accompanied by two white dogs. Kamau was carrying a panga, a rungu and was also accompanied by a black male dog. Njoya was a stonemason and occasionally used to clear cactus at Soysambu at Kshs.700/- for a full lorry.
The Soysambu ranch is an expansive 56,000-acre tract of land in the Rift Valley, established by the Hugh Cholmondeley, the Third Baron Delamere, probably Kenya’s most well-known white settler. It is a large-scale operation, with over 5,000 head of beef cattle (as established during the court proceedings in 2006). There are also wild animals on the ranch which are continuously monitored by the Kenya Wildlife Service (KWS). It was here that Carl “Flash” Tundo, the General Manager of Lesiolo Grain Handlers Ltd and also a famous rally driver, was to meet Thomas Cholmondeley, the son of Hugh Cholmondeley, the Fifth Baron Delamere. Tundo had known Cholmondeley for the past 6 years or so. The meeting between Cholmondeley and Tundo had been scheduled for the previous day (9th May 2006). Unfortunately, Cholmondeley had beens delayed in Nairobi and rang to postpone the meeting to the 10th.
Tundo had partnered with one Stephen Scott to do various projects in the areas of bio-diesel and agroforestry and the two were looking for land to commence their operations. Cholmondeley approached Tundo and agreed to give the two partners a long-term lease of 15 years on a part of his land. In return, Scott and Tundo agreed to share 25% of the profit with Cholmondeley in relation to the bio-diesel project. With regards to the agro-forestry venture, Scott and Tundo agreed that the Delamere Farm would receive 50% of the profit, 10% would be shared with the local community and the two partners would keep the rest.
At about 4:30 p.m., Tundo went to pick Scott for their meeting with Cholmondeley. However, Scott was busy and did not attend. Tundo drove to Cholmondeley’s and arrived at around 4:50 p.m. Cholmondeley arrived 5 minutes later. Together, they drove to the proposed project site in Tundo’s Toyota RAV4. Tundo noticed that Cholmondeley was armed with a rifle and asked him the reason for carrying the same. Cholmondeley responded that they would have to walk around in the area which was inhabited by buffaloes. The two drove for a distance of about 5km. They disembarked and started walking. Cholmondeley loaded his rifle.
Gichuhi, Kamau and Njoya took about 20–30 minutes to reach Soysambu. They entered the farm through a fence with gaps in it and started the hunt, albeit with futile attempts to chase impalas into the snares they had set two days earlier. However, like Abraham and Isaac centuries before them, an impala was trapped in someone else’s snare, scarcely 10m from theirs. Njoya cut off the impala’s head with the panga and Gichuhi’s help, eviscerated the creature. They fed its head and the intestines (mara) to their dogs. They walked for about a kilometer, with Gichuhi leading the way with his iron bar. Njoya was close behind carrying the impala’s carcass and a panga. Kamau was last, carrying a panga, a rungu and the impala’s stomach (matumbo). This was a good day.
Cholmondeley and Tundo were viewing the site. Tundo liked the area but had reservations. It would be quite expensive to get water, electricity and materials to this site. Cholmondeley suggested that they view the proposed site for the bio-diesel project where the land was lower and water was more accessible. They drove for about a kilometer, parked the car and walked for about 500m. Tundo also liked the second site as well, were it not for the thick bush and lack of a view. Cholmondeley suggested yet another site with a better view. Tundo stopped to take a piss somewhere in the bush.
Called “the Rifleman’s Rifle”, the Winchester Model 70 is a bolt-action rifle with a telescopic sight. Cholmondeley’s rifle used the .30-06 calibre and was capable of holding five bullets. It is a powerful, deadly and accurate weapon. With the right rifle in the hands of a skilled shooter, a target of anywhere between 500-700m can be shot. Tundo was 15-20m away when he emerged to find Cholmondeley on one knee aiming his rifle and firing three to four times in quick succession. When Tundo heard the shooting, he thought it was one of the buffaloes Cholmondeley had warned him about. His instinct was to run towards the car. However, he had heard noises of human beings talking and dogs barking, around 15-20m away.
The three men heard the sound of the first gunshot. Njoya dropped the impala’s carcass while Kamau dropped the matumbo. The three men started running. Gichuhi heard another three gunshots from the same direction behind them. Kamau says that they were five. Gichuhi and Kamau ran towards the left while Njoya ran straight on.
Tundo had run for about 100m when he heard Cholmondeley shouting for him to get the car as he had hit somebody by mistake. Tundo drove to the scene and found Cholmondeley tying a handkerchief on Njoya, who was bleeding from the left buttock. Cholmondeley’s Kencell mobile phone was not working. Tundo gave him his Safaricom line to call Jeff Mito, the security manager at the Soysambu Ranch. Cholmondeley asked Mito to bring the police to the scene as he had shot somebody by mistake. Thereafter Cholmondeley told Tundo that they had to take the man to the hospital. They picked Njoya up and put him in the car. Cholmondeley also picked the carcasses of two dogs, the impala, a panga and the rifle. The time was around 6:00 p.m.
At the time, Jeffrey Mito, the Security Manager of Soysambu Ranch, was with Senior Sergeant Patrick Khamati Mukolwe and Police Constable Joseph Obao, two officers attached to Elementaita police post, discussing various incidences of insecurity on the farm ranging from poaching, theft of water pipes and cutting down of indigenous trees. Mito received Cholmondeley’s call and drove in his white Peugeot Partner accompanied by the police officers. On the way, they met Cholmondeley and Tundo who transferred Njoya into Mito’s car. Cholmondeley gave him a credit card and instructed Mito to rush Njoya to Pine Breeze Hospital, Nakuru. Mito was accompanied by Sgt. Mukolwe as PC Obao remained behind with Cholmondeley and Tundo. On the way to the hospital, the injured person introduced himself as Robert Njoya.
Gichuhi and Kamau had narrowly escaped and were soon asking among themselves of Njoya’s whereabouts. Gichuhi stated that he saw Njoya escaping right ahead. They later agreed to leave the forest in fear. After waiting for Njoya at the fence for ten minutes, Kamau told Gichuhi he wanted to go and wear another pair of shoes since he had lost his sandals as they escaped.
They later went to Njoya’s home where they met his wife, Serah Waithera Njoya, who was preparing supper. She told them her husband had not yet come back home. They told Waithera of what transpired at Soysambu and advised her to find out from the police whether her husband had been arrested. While they were leaving, Kamau saw one of Njoya’s dogs which had returned home. Gichuhi and Kamau waited for Njoya until 7:30 p.m. but he never showed up.
Francis Thuku Kuria, a clinical officer attached to the Provincial General Hospital in Nakuru, was on his side hustle at the Pine Breeze Hospital. He was approached by Mito and Sgt. Mukolwe who informed him that there was a patient in critical condition inside the Peugeot Partner. Kuria observed that Njoya was dressed only in his briefs on and a dark jacket, with a piece of cloth tied on the upper part of the thigh. The patient was gasping for air and had been injured in the pelvis. With the assistance of the nurses, Kuria placed the patient on a stretcher and took him to a room inside, where he tried to resuscitate him by cardiac message. By this time, the patient had stopped bleeding and Kuria concluded that the patient had already died. He informed Mito and Sgt. Mukolwe, who took Njoya’s body of the deceased to Nakuru Municipal Mortuary. Mito called Cholmondeley with the news.
Tundo by this time had gone home. On arrival, he told his mother, Lynn, of the events that had transpired on Soysambu Ranch, namely, that Cholmondeley had shot somebody and that they had moved the victim from the scene to the hospital. She called her husband, Frank, who reached their home in about 45 minutes. Tundo told him that Tom Cholmondeley had shot somebody. Frank immediately called Cholmondeley, who answered that he was already on the scene. Father and son went to the scene in Frank’s Nissan Pick-up and arrived at around 7:00 p.m. On the way, Tundo told his father that Cholmondeley had shot something like a buffalo and so he ran away thinking it was a buffalo.
At the scene were Cholmondeley, PC Obao and Stephen Koigi Kahuria, the estate manager in Soysambu Estate. Also present was Joseph Martin Nyongesa, an assistant warden with KWS at Nakuru National Park who had been called by Cholmondeley to help the injured man and to identify the animal hunted by the men. Nyongesa was accompanied by his KWS staff, Corporals Nyange and Momanyi. Cholmondeley had told Nyongesa that “…nimechapa mmoja matako… (I shot him in the buttocks)”. Cholmondeley also told PC Obao that he saw six people carrying an impala. There was a confrontation and the poachers let their dogs on him, thus forcing him to shoot. Mito and Sgt. Mukolwe had also arrived at around 8.30 p.m.
The animals were identified as two dead dogs and a male impala without intestines and a head. PC Obao saw a slim panga. Meanwhile, Sgt. Mukolwe recovered a bow and four arrows.
Chief Inspector Lawrence Riungu, the Officer Commanding Station (OCS) Gilgil Police Station, received a phone call from Cholmondeley at around 7:20 p.m. Cholmondeley told him that they (Tundo and he) were on the farm when they were accosted by five poachers armed with bows and arrows who were carrying an impala. When he challenged the poachers to stop, they set their dogs on him. He fired at the dogs and realized that he had also hit a human being, who had not died. The police officer advised Cholmondeley to take the victim to hospital.
Chief Inspector Riungu arrived on the scene an hour later accompanied by two police officers, PC Watasumu and PC Irimu, where they met the Sgt. Mukolwe, PC Obao, Carl and Frank Tundo, Jeff Mito and Cholmondeley. PC Obao handed over the rifle which had two rounds of ammunition to Chief Inspector Riungu, who also received eleven rounds of ammunition from Koigi.
Also present was Inspector Sambu Wafula, the officer-in-charge of Scene of Crime, Nakuru. He had been called by Chief Inspector Riungu who informed him to proceed to Soysambu Farm. Inspector Sambu photographed the two dogs, the impala and the panga. Sambu later proceeded to the Nakuru Municipal Mortuary where Sgt. Mukolwe identified the body of the deceased.
Chief Inspector Riungu had by this time called Senior Superintendent Simon Mureithi Kiragu, the Officer Commanding Police Division (OCPD) Naivasha, who in turn called Chief Inspector Kiberenge Soronei, Divisional Criminal Investigation Officer (DCIO), Naivasha. They arrived at the scene at around 10:30 p.m. The Provincial Criminal Investigation Officer (PCIO), Morris Amwata and the Provincial Police Officer (PPO) Rift Valley, Everest Wasike, were also in tow. Riungu had already taken over the scene. He showed them the two dogs, the impala, the bow and arrows and the rifle.
At around 1:00 a.m., Kiragu instructed Riungu to take Cholmondeley and Tundo and the evidence so far collected to the Nakuru Police Station. On arrival at Nakuru Central Police Station, Chief Inspector Riungu placed both Thomas Cholmondeley and Carl Tundo in custody.
The next day, 11th May 2016, was quite eventful. Senior Superintendent (SSP) Geoffrey Mwangi and Inspector Francis Irungu of the Nakuru Provincial CID Headquarters were asked to take over the case. The two arrived at the scene, which had been cordoned by Inspector the previous night. SSP Mwangi directed the scene of crime personnel to take more photographs and Inspector Irungu to prepare a sketch plan. He was shown the scenes where the two dogs had been shot and where the deceased had fallen. He saw two caps, a pair of sandals and the impala’s intestines. SSP Mwangi later went to the police station to retrieve Cholmondeley and Tundo and brought them to the crime scene to recollect their movements. The police could not find the spent cartridges but instead found a hat.
Cholmondeley told SSP Mwangi that they met a group of poachers carrying an impala while accompanied by eight dogs. The poachers aimed arrows at him and told him “…huwezi fanya kitu… (You can’t do anything)” whereupon Cholmondeley shot two of their dogs which the poachers had set on them. He only realized that he had shot somebody when he saw the deceased fall down and started shouting, “…..matako ……matako (my buttocks)” Cholmondeley tied his handkerchief to Njoya’s wound on the left buttock and also explained to him how he had handed over the deceased to Jeff Mito and Sgt. Mukolwe to take him to Pine Breeze Hospital, Nakuru where Njoya had died. Cholmondeley also removed the two carcasses and the panga to another point where he hid them. Mwangi concluded that the scene had already been tampered with.
Mwangi directed that both suspects be returned to custody. From there, Mwangi went to Gilgil Police Station and collected the Winchester Rifle, the sheath, 13 rounds of ammunitions, the bow and four arrows and bows. Chief Inspector Riungu directed PC Elnathan Watachum to hand over and book the exhibits that he brought from Soysambu Farm. These were the rifle, the panga, the bow and four arrows and rounds of ammunition in a box, which was booked in the Occurrence Book as No. 40 of 11th May 2006.
On 12th May 2006, Inspector Irungu went to Kiunguria Village accompanied by the PPO and other police officers. They spoke to Waithera who informed them that Njoya had been accompanied by Gichuhi and Kamau. The police were unable to trace both of them. On 14th May 2006, Inspector Irungu went back to Gichuhi’s and Kamau’s homes but he never found them. He left word that they should report to the nearest police station.
Mwangi took statements from both Cholmondeley on 12th May 2006. However, the two remained in custody that night. After being interrogated by CID officers, Tundo was released on Sunday, 14th May 2006.
By this time, Gichuhi and Kamau had been informed of Njoya’s death. Kamau had escaped to Ngarusha Menengai, about 100km away, as he was afraid. However, his mother, Gichuhi, Njoya’s brother and an advocate, Ken Kiruba, reassured Kamau and advised him to go back and record a statement with the police, which they both (Gichuhi and Kamau) did on 14th May 2006 at SSP Mwangi’s office at around 6:00 p.m. On 15th May 2006, Gichuhi and Kamau went back to the scene while accompanied by police officers and explained to Inspector Irungu how they had accessed the farm and where they had set the snares.
Serah Waithera Njoya had waited for her husband the whole night of 10th May 2006. She went to the Elementaita Police Post to enquire of her husband’s whereabouts; specifically, whether they had her husband in custody. The police officers informed her that Njoya had been shot in the Delamere Farm and had died on the way to the hospital, and that his body was lying at Nakuru Municipal Mortuary. Waithera informed her brothers–in-law, Philip Gatu Mbugua and James Kiarie Warie, who later accompanied her to the mortuary to identify the body on 13th May 2006 before the postmortem was carried out.
At 1:50 p.m. on 13th May 2006 , an autopsy was conducted at the Nakuru Municipal Mortuary on the body of Robert Njoya Mbugua by Dr. Albert Gachau (a pathologist attached to the Provincial General Hospital, Nakuru), assisted by Dr. Andrew Gachie (representing Cholmondeley) and a mortician, Titus Kuthia. Njoya’s pelvic girdle, the sacrum close to the sacrum iliac joint and the right ilium were all fractured as the bullet fragments caved in the cavity of the pelvis. They found an entrance wound though they never found any exit wound. The two pathologists were able to form the opinion that the resultant injuries were caused by a single bullet that penetrated into the pelvic and listed the official cause of death was due to haemorrhage occasioned by laceration of the left iliac vessels following a single penetrating gunshot wound into the pelvis. Both pathologists signed and dated the postmortem form on 13th May 2006 in the presence of the investigating officers.
Superintendent Julius Kikwai Ole Sunkuli, the officer-in-charge of operations at CID Headquarters, Nakuru recorded a charge and caution statement from Tom Cholmondeley on 14th May 2006, at 4:20 p.m. A cautionary statement is so called as the police officer cautions the suspect that they are not obliged to say anything, and if they choose to do so, the statement would be reduced to writing and produced in court as evidence. The caution and the certificate at the end which bears his signature should be in a language in which the accused is well conversant. Having understood the charge and caution, Cholmondeley denied the charge of murder and later on signed the statement. Sunkuli also countersigned and certified that Cholmondeley had not been forced nor intimidated to make that statement.
Dr. Joseph Waigi Njau, a psychiatrist based at the Provincial General Hospital, Nakuru, examined Cholmondeley on 15th May 2006 and found him to be mentally sound to plead to the present charges and face trial.On 17th May 2006, SSP Benjamin Mwaliko, while accompanied by Inspector Riungu and Corporal Asiyo, recorded a statement from Cholmondeley and a video recording of Cholmondeley at the scene. Cholmondeley was in the presence of his advocate, John Kagucia.
Gideon Muoki Mutua, a Deputy Commissioner of Police, was instructed by the Director of CID to proceed to Nakuru and assist in the investigation of the shooting. At around 5.30 pm, Mutua proceeded to the scene accompanied by SSP Mwangi and Inspector Sambu. On the next day (24th May 2006), Mutua returned to the scene while accompanied by 8 police officers and he gave them specific instructions on how the search for the cartridges was to be carried out. PC Jackson Ouma (PW15) recovered the first cartridge at 11:30 a.m. Sergeant Mukolwe recovered the second cartridge which was about three metres away from the first one at 11:40 a.m. At 12:10 p.m., Sergeant Mukolwe recovered a live bullet while at 12:45 pm Inspector Godfrey Wachira, the Deputy OCPD Gilgil Police Station, recovered the last cartridge. Inspector Sambu stuck labels on each of the exhibits and photographed the recovered items before separately packing them in different envelopes.
As of 10th May 2006, Cholmondeley had ten licensed firearms, including the Winchester Rifle Serial Number 117808. Its licence had been renewed on 26th April 2006 and was set to expire on 26th July 2006.
On 18th May 2006, the firearms examiner, Superintendent Johnstone Musyoki Mwongela received from Inspector Sambu the Winchester Rifle, 13 rounds of ammunition and fragments of bullets to conduct the ballistics examination. He used three rounds of ammunition during his analysis to find out whether the said rifle was capable of firing ammunitions.
On 26th May 2006, he received the three recovered cartridges and one live round of ammunition from Inspector Sambu to ascertain whether they had been fired from the Winchester rifle. He microscopically examined and compared in conjunction with three test cartridge cases that were fired from the Winchester rifle and found sufficient matching firing pin markings and sufficient matching breech face markings to enable him form the opinion that the three recovered cartridge cases had been fired from the Winchester rifle. Firing pin markings and breech face markings are unique to each firearm and cannot be transferred to any other firearm.
Paul Waweru Kangethe, an officer working with the Government Chemist, Nairobi conducted a chemical analysis of cotton swabs from the rifle’s barrel and Cholmondeley’s hat on 19th May 2006. He found out that there was no gunpowder detected from the same. However, he detected traces of zinc at the end of the sleeves of Cholmondeley’s shirt. He also found that there were 3 traces of zinc and lead detected on the holes on Njoya’s t-shirt.
John Kimani Mungai, an analyst based at the Government Chemist received exhibits from the police on 19th May 2006. These include soil samples, bloodstained clothes belonging to both Cholmondeley and Njoya, blood samples of both Cholmondeley and Njoya and the bloodstained panga, among others. After examining the above items, the analyst came to the conclusion that the blood of the deceased was found on Cholmondeley’s clothes of the suspect but could not identify the source of blood from the panga and arrows.
On conclusion of his investigations, SSP Mwangi forwarded the file to the Attorney General. Cholmondeley was arraigned in court on 24th May 2006 and charged with the murder of Robert Njoya Mbugua on 10th May 2006 at Soysambu Farm.