NO CASE OR CASE TO ANSWER
INFORMATION
1. The Accused Persons herein are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap.63 Laws of Kenya.
2. Particulars off the offence being that on the 27th October,2018, at Mukuru Kwa Reuben slums in Industrial area within Nairobi County, jointly murdered TONNY MULWA.
PROSECUTION CASE/EVIDENCE
PW 1 SILVESTER KENNEDY MULWA stated as follows:
He resided at Pipeline Estate in Nairobi. He does interio r design of houses that was decorating houses, he educated myself. He recall on 27/10/2018 he was residing at Mukuru Kwa Reuben in Nairobi.
On 27/10/2018 he went to Hurlingham with his deceased brother called Tony Mulwa. In their company there was a neighbor young man called Mwangangi Mathano; the latter was staying with the deceased in one house. They went to Hurlingham and did work of decoration in one house and we finished. They left Hurlingham at 10.00 p.m after they finished working. They arrived at Mukuru Kwa Reuben where they lived. They proceeded to their house. It was raining heavily and the place was muddy. They left the main road and entered the streets.
After remaining with 100 metres to reach house, they reached a corner where there was electricity street lights. The deceased led them followed by him and his other brother.
They saw four people ahead. They told them "simameni". One of them had a panga and another had a piece of timber. We stopped. They got hold of his deceased brother. He told the young man they were with to run to the neighbourhood to seek assistance, since they were armed. Those four people searched his pockets as if they wanted to rob him of his money. He concluded they were bad people. They called the people and returned to that scene. Within 2 minutes they returned to the scene with two people who were to rescue them. Upon arrival. At scene he found deceased had fallen down. He was bleeding from his eyes, nose, ears and mouth. His pair of trousers and shoes had been taken. He was breathing slowly. he took him to Shalom Hospital at a road that goes to Kitengela. The doctor told them he was dead. He left him there and went to his house. The deceased resisted being robbed.
This was his first time to see those four young men. They did not assist deceased as they ran away. On 28/10/2018 he went to Mukuru kwa Reuben Police Post and reported the incident. The Police Officer he met there told him people had been arrested. He asked him whether he will identify those four young men and whether he would identify the gumboots and clothes of the deceased. He answered in the positive. He identified the four young men as the ones who attacked us. He also identified the clothes and gumboots of my deceased brother. He saw pair of trousers of his brother MF1-1 and those were brother's gum boots. MF1-2. He now see the four young men in court (identified).
PW 2 MULWA KANGETHE
He stated that he reside in Kitui rural county. I do electric wiring in both in Nairobi and Kitui. The deceased was my son. On 6/11/2018 I identified body of deceased to the Pathologist at Shalom hospital. PW 3 Identified the post mortem report as MF1 - 3.
PW3 – NO. 49997 CPL. JOSEPH KITAKA
currently attached to DCIO, Makadara Sub – County stated that. He recalled on 28/11/2018 I was assigned with CPL Okello to investigate a case of murder which was committed in Kwa Reuben slums. On Same day we visited scene of crime in Kosovo area in Kwa Reuben slums. The body of deceased was not there at scene. We were led to the scene.Scene was at …… in the slums where there are mabati kiosks.
There were signs of struggle at the scene, where we were shown the site where the body was collected. We examined scene we returned to the office. They were led to the scene by arresting officer Lengai.
On 30/10/2018 he recorded statements from two witnesses namely Ken Mulwa and Sylvester Matemo. They told him that on night of 27/10/2018 they left their place of work within Lavington area.
These are the gumboots which I produce as exhibit. Pexh.2. and the jeans long trouser are produced as exhibit Pexh. 1.
The witness was informed that these exhibits were recovered from the house where the four accused were arrested.
On 30/10/2018 I visited Shalom Hospital Mortuary where I examined body of deceased. I found it had an injury on the head. There was blood oozing from the nose, mouth and the ears.
On 7/11/2018 he witnessed post-mortem examination of body of deceased. The said examination was also witnessed by Mulwa, Kangethe and another relative namely Mwanaza Kilonzo.
The Post-mortem examination report confirming I attended the post mortem examination which was conducted by Dr. Ndegwa. At the mortuary deceased was not dressed. I now see the said report Exhibit – 3.
He was the investigating officer. In the cause of his investigations he was handed over the jeans long trousers and gumboots, which I marked and kept them as exhibits.
During the time of recording statement Ken Mulwa and Sylvester Matemo told him they new the suspect physically; because they lived in the same slums.
The accuse were arrested in the night of 28/10/2018 pm by Police Officers from Kwa Reuben Police Post. Followed receipt of information from the informer. Accused were arrested in a mabati house within the slums.
The incident happened in the night of 27/10/2018 at 10.00 pm and the suspects were arrested on 28/10/2018 at a house which should be in the OB.The time of arresting is not in my diary.
Before that time the brother of deceased made the report. The accused had … arrested. He saw four accused identified in court.
Upon reaching Kwa Reuben slums at 10.00 pm, they were confronted by four men gang. The gang attacked the, with crude weapons namely rungus. The two witnesses managed to escape leaving their deceased brother (Tom Mulwa) being attacked by the gang. They ran and raised alarm. Members of public arrived to their rescue.
They then returned to scene of attack. They found him lying unconscious bleeding from mouth nose and ears. The two witnesses took a taxi and took deceased to hospital. They took him to Shalom Hospital with Athi River. There he was pronounced dead on arrival.
After that they returned home. An on 28/10/2018 Ken Mulwa reported the murder to Kwa Reuben Police Post.At that he was shown the four suspects who identified as the gang that attacked them. He was also shown jeans long trouser and gumboots which the deceased wore on date of attack.
PW4 DOCTOR PETER MURIUKI NDEGWA
He stated that he work with Ministry of Health based there in department of diagnostics and Forensics, which are in respect of court matters. He was a a pathologist and hold MBchB in medicine from University of Nairobi. He also hold a master of medicine in pathology from same University.
On 7/11/2018 at Shalom Athi River Community Hospital at about 9.30 am he Performed a Post Mortem Examination on body of Tony Mulwa Kangethe. The Body was identified by Mulwa Kangethe, father-of-deceased-and-Mwanza, CPL. Kithaka of Makadara DCIO was in attendance. He noted and document as follows: - The Body was of a male aged 20 years in soil and blood stained clothes. It was of good nutritious status. He was slender and tall of 170 cm. The Body was soiled and mud. There was an abrasion on right side of his socket 8 by 2 cm. Internal examination There was bruises on left side of the head 12 by 5 cm. On the right side of head there were bruises 9 by 4 cms. Inside the head there was massive sib-dural clothing and there was increased intercranial pressure due to clothing. Other systems were normal. Cause of death was severe cranial cerebral injuries due to blunt forced trauma. Report was in his writing which he signed on 7/11/2018 and stamped it . He produced it as exhibit P. exhibit 3.
PW5 CORPORAL VINCENT LONGEI
I work in Kajiado. In 2018, I was in Industrial Area, Mukuru Kwa Reuben Police Post. His duties included patrol. On 28/10/2018, he was on duty with Corporal Abdi 7 P.C Thuku patrolling Kosovo. While there they got information that someone had been attacked and at about 3 .30 am; on reaching the scene, they found a crowd of people and found that the person that the one who was beaten was taken to Shalom hospital.
At the scene, they tried to find out what happened and interrogated people who confirmed there were people who beat up the man and learnt that these people lived in a house called ‘Transformer’ in Kosovo. They were led by members of the public including the brother of the deceased, young man to the house and he pointed to the house. They were shown the house and inside found 4 men and they introduced themselves as Police Officers and were in uniform. They opened the door and Sylvester, deceased’s brother pointed to the 4 me as 2 were sitting and 2 were standing. The gumboots and I pair of blue jeans were identified as belonging to the deceased. They were produced as Exhibits in court. He identified the 4 Accused persons in Court as suspects they arrested. He did not investigate the matter.
SUBMISSIONS
The 1 st & 2 nd Accused persons filed Written Submissions
The 3 rd & 4 th Accused persons filed Written Submissions
The ODPP/Prosecution filed Written submissions.
The Defense Raised issues with regard to pair of jeans found in Accused persons house and the Pathologist who observed that the deceased had blue jeans trousers. Secondly, that items recovered from the house were not listed in an Inventory and witnesses evidence had discrepancies and contradictions. There was no object weapon of attack or Government Analyst’s report on blood samples. There was failure for not conducting Identification parade.
The Prosecution on the other hand submitted that there was proof of death of deceased from Post mortem examination and report.PW testified that they were accosted with his brother the deceased but were overpowered. The area was well lit and could see identify assailants. The Suspects were identified and PW1 reported incident, was among the crowd with Police Officers on patrol who were led to accused persons house and were arrested same night but slightly later after the incident and clothes of deceased were recovered from the said house. The evidence of PW5 Arresting Officer corroborated PW1evidence. A prima facie case is established.
In the case of Ronald Nyaga Kiura –vs- Republic [2018] eKLR paragraph 22 is as follows: -
It is important to note that at the close of prosecution, what is required in law at stage is for the trial court to satisfy itself that prima facie has been made out against the accused person sufficient enough to put him on his defense pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebutted is offered by an accused person.
In the case of Anthony Njue Njeru vs Republic Court of Appeal No 77 of 2006; the Court determined the scope and content of case or no case to answer Ruling by the Court as follows;
[Is]Was there a prima facie case to warrant the Trial Court to call upon the appellant to defend himself? It is a cardinal principle of our law that the onus is on the prosecution to prove its case beyond reasonable doubt and a prima facie case is not made out if, at the close of prosecution the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction”.
The issue of what is a prima facie case in criminal trials was clearly explained in Ramanlal Trambaklal Bhatt vs R [1957] E.A. 332 at P. 334-335 where it was said:-
“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one:-
“Which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defense is made, but rather hopes the defense will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is:-“some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defense.”
DISPOSITION
1. Upon this Court’s consideration of the totality of the evidence adduced and on record, the Prosecution has proved a prima facie case that warrants the Accused person to be placed on his Defense.
2. Further Mention for Directions on 14/5/2026
HIGH COURT CRIMINAL CASE 57 OF 2018 RULING NHC 2
INFORMATION
1. The Accused Persons herein are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap.63 Laws of Kenya.
2. Particulars off the offence being that on the 27th October,2018, at Mukuru Kwa Reuben slums in Industrial area within Nairobi County, jointly murdered TONNY MULWA.
PROSECUTION CASE/EVIDENCE
PW 1 SILVESTER KENNEDY MULWA stated as follows:
He resided at Pipeline Estate in Nairobi. He does interio r design of houses that was decorating houses, he educated myself. He recall on 27/10/2018 he was residing at Mukuru Kwa Reuben in Nairobi.
On 27/10/2018 he went to Hurlingham with his deceased brother called Tony Mulwa. In their company there was a neighbor young man called Mwangangi Mathano; the latter was staying with the deceased in one house. They went to Hurlingham and did work of decoration in one house and we finished. They left Hurlingham at 10.00 p.m after they finished working. They arrived at Mukuru Kwa Reuben where they lived. They proceeded to their house. It was raining heavily and the place was muddy. They left the main road and entered the streets.
After remaining with 100 metres to reach house, they reached a corner where there was electricity street lights. The deceased led them followed by him and his other brother.
They saw four people ahead. They told them "simameni". One of them had a panga and another had a piece of timber. We stopped. They got hold of his deceased brother. He told the young man they were with to run to the neighbourhood to seek assistance, since they were armed. Those four people searched his pockets as if they wanted to rob him of his money. He concluded they were bad people. They called the people and returned to that scene. Within 2 minutes they returned to the scene with two people who were to rescue them. Upon arrival. At scene he found deceased had fallen down. He was bleeding from his eyes, nose, ears and mouth. His pair of trousers and shoes had been taken. He was breathing slowly. he took him to Shalom Hospital at a road that goes to Kitengela. The doctor told them he was dead. He left him there and went to his house. The deceased resisted being robbed.
This was his first time to see those four young men. They did not assist deceased as they ran away. On 28/10/2018 he went to Mukuru kwa Reuben Police Post and reported the incident. The Police Officer he met there told him people had been arrested. He asked him whether he will identify those four young men and whether he would identify the gumboots and clothes of the deceased. He answered in the positive. He identified the four young men as the ones who attacked us. He also identified the clothes and gumboots of my deceased brother. He saw pair of trousers of his brother MF1-1 and those were brother's gum boots. MF1-2. He now see the four young men in court (identified).
PW 2 MULWA KANGETHE
He stated that he reside in Kitui rural county. I do electric wiring in both in Nairobi and Kitui. The deceased was my son. On 6/11/2018 I identified body of deceased to the Pathologist at Shalom hospital. PW 3 Identified the post mortem report as MF1 - 3.
PW3 – NO. 49997 CPL. JOSEPH KITAKA
currently attached to DCIO, Makadara Sub – County stated that. He recalled on 28/11/2018 I was assigned with CPL Okello to investigate a case of murder which was committed in Kwa Reuben slums. On Same day we visited scene of crime in Kosovo area in Kwa Reuben slums. The body of deceased was not there at scene. We were led to the scene.Scene was at …… in the slums where there are mabati kiosks.
There were signs of struggle at the scene, where we were shown the site where the body was collected. We examined scene we returned to the office. They were led to the scene by arresting officer Lengai.
On 30/10/2018 he recorded statements from two witnesses namely Ken Mulwa and Sylvester Matemo. They told him that on night of 27/10/2018 they left their place of work within Lavington area.
These are the gumboots which I produce as exhibit. Pexh.2. and the jeans long trouser are produced as exhibit Pexh. 1.
The witness was informed that these exhibits were recovered from the house where the four accused were arrested.
On 30/10/2018 I visited Shalom Hospital Mortuary where I examined body of deceased. I found it had an injury on the head. There was blood oozing from the nose, mouth and the ears.
On 7/11/2018 he witnessed post-mortem examination of body of deceased. The said examination was also witnessed by Mulwa, Kangethe and another relative namely Mwanaza Kilonzo.
The Post-mortem examination report confirming I attended the post mortem examination which was conducted by Dr. Ndegwa. At the mortuary deceased was not dressed. I now see the said report Exhibit – 3.
He was the investigating officer. In the cause of his investigations he was handed over the jeans long trousers and gumboots, which I marked and kept them as exhibits.
During the time of recording statement Ken Mulwa and Sylvester Matemo told him they new the suspect physically; because they lived in the same slums.
The accuse were arrested in the night of 28/10/2018 pm by Police Officers from Kwa Reuben Police Post. Followed receipt of information from the informer. Accused were arrested in a mabati house within the slums.
The incident happened in the night of 27/10/2018 at 10.00 pm and the suspects were arrested on 28/10/2018 at a house which should be in the OB.The time of arresting is not in my diary.
Before that time the brother of deceased made the report. The accused had … arrested. He saw four accused identified in court.
Upon reaching Kwa Reuben slums at 10.00 pm, they were confronted by four men gang. The gang attacked the, with crude weapons namely rungus. The two witnesses managed to escape leaving their deceased brother (Tom Mulwa) being attacked by the gang. They ran and raised alarm. Members of public arrived to their rescue.
They then returned to scene of attack. They found him lying unconscious bleeding from mouth nose and ears. The two witnesses took a taxi and took deceased to hospital. They took him to Shalom Hospital with Athi River. There he was pronounced dead on arrival.
After that they returned home. An on 28/10/2018 Ken Mulwa reported the murder to Kwa Reuben Police Post.At that he was shown the four suspects who identified as the gang that attacked them. He was also shown jeans long trouser and gumboots which the deceased wore on date of attack.
PW4 DOCTOR PETER MURIUKI NDEGWA
He stated that he work with Ministry of Health based there in department of diagnostics and Forensics, which are in respect of court matters. He was a a pathologist and hold MBchB in medicine from University of Nairobi. He also hold a master of medicine in pathology from same University.
On 7/11/2018 at Shalom Athi River Community Hospital at about 9.30 am he Performed a Post Mortem Examination on body of Tony Mulwa Kangethe. The Body was identified by Mulwa Kangethe, father-of-deceased-and-Mwanza, CPL. Kithaka of Makadara DCIO was in attendance. He noted and document as follows: - The Body was of a male aged 20 years in soil and blood stained clothes. It was of good nutritious status. He was slender and tall of 170 cm. The Body was soiled and mud. There was an abrasion on right side of his socket 8 by 2 cm. Internal examination There was bruises on left side of the head 12 by 5 cm. On the right side of head there were bruises 9 by 4 cms. Inside the head there was massive sib-dural clothing and there was increased intercranial pressure due to clothing. Other systems were normal. Cause of death was severe cranial cerebral injuries due to blunt forced trauma. Report was in his writing which he signed on 7/11/2018 and stamped it . He produced it as exhibit P. exhibit 3.
PW5 CORPORAL VINCENT LONGEI
I work in Kajiado. In 2018, I was in Industrial Area, Mukuru Kwa Reuben Police Post. His duties included patrol. On 28/10/2018, he was on duty with Corporal Abdi 7 P.C Thuku patrolling Kosovo. While there they got information that someone had been attacked and at about 3 .30 am; on reaching the scene, they found a crowd of people and found that the person that the one who was beaten was taken to Shalom hospital.
At the scene, they tried to find out what happened and interrogated people who confirmed there were people who beat up the man and learnt that these people lived in a house called ‘Transformer’ in Kosovo. They were led by members of the public including the brother of the deceased, young man to the house and he pointed to the house. They were shown the house and inside found 4 men and they introduced themselves as Police Officers and were in uniform. They opened the door and Sylvester, deceased’s brother pointed to the 4 me as 2 were sitting and 2 were standing. The gumboots and I pair of blue jeans were identified as belonging to the deceased. They were produced as Exhibits in court. He identified the 4 Accused persons in Court as suspects they arrested. He did not investigate the matter.
SUBMISSIONS
The 1 st & 2 nd Accused persons filed Written Submissions
The 3 rd & 4 th Accused persons filed Written Submissions
The ODPP/Prosecution filed Written submissions.
The Defense Raised issues with regard to pair of jeans found in Accused persons house and the Pathologist who observed that the deceased had blue jeans trousers. Secondly, that items recovered from the house were not listed in an Inventory and witnesses evidence had discrepancies and contradictions. There was no object weapon of attack or Government Analyst’s report on blood samples. There was failure for not conducting Identification parade.
The Prosecution on the other hand submitted that there was proof of death of deceased from Post mortem examination and report.PW testified that they were accosted with his brother the deceased but were overpowered. The area was well lit and could see identify assailants. The Suspects were identified and PW1 reported incident, was among the crowd with Police Officers on patrol who were led to accused persons house and were arrested same night but slightly later after the incident and clothes of deceased were recovered from the said house. The evidence of PW5 Arresting Officer corroborated PW1evidence. A prima facie case is established.
In the case of Ronald Nyaga Kiura –vs- Republic [2018] eKLR paragraph 22 is as follows: -
It is important to note that at the close of prosecution, what is required in law at stage is for the trial court to satisfy itself that prima facie has been made out against the accused person sufficient enough to put him on his defense pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebutted is offered by an accused person.
In the case of Anthony Njue Njeru vs Republic Court of Appeal No 77 of 2006; the Court determined the scope and content of case or no case to answer Ruling by the Court as follows;
[Is]Was there a prima facie case to warrant the Trial Court to call upon the appellant to defend himself? It is a cardinal principle of our law that the onus is on the prosecution to prove its case beyond reasonable doubt and a prima facie case is not made out if, at the close of prosecution the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction”.
The issue of what is a prima facie case in criminal trials was clearly explained in Ramanlal Trambaklal Bhatt vs R [1957] E.A. 332 at P. 334-335 where it was said:-
“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one:-
“Which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defense is made, but rather hopes the defense will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is:-“some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defense.”
DISPOSITION
1. Upon this Court’s consideration of the totality of the evidence adduced and on record, the Prosecution has proved a prima facie case that warrants the Accused person to be placed on his Defense.
2. Further Mention for Directions on 14/5/2026
HIGH COURT CRIMINAL CASE 57 OF 2018 RULING NHC 2