1. The two accused persons were charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars were that on the night of 20th and 21st day of September 2020 at Mutula village Makueni Sub County within Makueni County jointly with others not before court murdered Francis Munguti Musa.
2. The charges were consolidated on 11/2/2021 before Dulu J. where the accused represented by Mr. Hassan pleaded not guilty.
3. The case for the prosecution was that on 20/9/2020 Victor Nzioka, PW1 was drinking with Dominic Mutinda, one Mutua and wife of Dominic, the 1st accused.
4. Then Dominic began to insult him telling him that he was lazy and dependent on his parents. He began boxing him – one Kyumwa assisted him. He ran away and went home.
5. At home, PW1 informed his brother one Thomas about the incident. At 9:00pm, the PW1, his brothers Thomas, Francis and Michael proceeded to home of Dominic to find out why Dominic had insulted and assaulted their brother. His brother Francis, now deceased led them.
6. PW1 said it is his brother Francis who woke up Dominic. He testified that Francis was 100 meters ahead of all of them.
7. It was the testimony of PW1 that when Francis woke up Dominic – “they attacked him”. He testified that his brother Francis called, and when he went there, he found him lying down in Mutinda’s compound. When he tried to lift him he too was hit with stones and he ran away. He testified that he saw Francis being attacked – that it was Dominic who led a group of 20 people and they attacked his brother with a panga.
8. It was his testimony that when they ran away they left Thomas his brother there – as he was being arrested. He said they phoned Francis but it is Dominic who picked the call and said that they would kill and burn him. He and Michael left, Thomas came home later.
9. He said he did not identify other attackers – there was moonlight. That he did not see A2, but stated that ‘it is my brother who saw him’.
10. On cross examination he said he did not tell the police there was moonlight and there was no electricity. He said that what he said in court and what he recorded with the police in his statement about the alleged phone call was different - that in his statement he said he heard Dominic say it at the scene that they would kill and burn Francis , yet in court he said they made a phone call to the phone of Francis and that Dominic picked the call and told them that that is what they were going to do.
He stated that the person who followed his deceased brother was one Thomas. He testified that he saw his brother being attacked. He denied that 1st accused raised alarm and members of the public intervened. He said they did not report about the attack to any one or anywhere that night, and they did not go to the scene the next day. They did not tell any neighbour about it either.
11. PW2 Thomas Mbondo Musa a brother to PW1 and the deceased testified that PW1 reported an assault on him by Dominic Mutinda on 20/9/2020. He saw that PW1 had injuries on the face and was bleeding. He decided to go find out why Dominic had assaulted his brother.
12. He was accompanied by PW1, the deceased Francis and one Michael. The journey on foot took them about an hour. They arrived there about 10:00pm.
13. He testified that there was moonlight, and he had a torch. Francis was ahead of him. He said he saw Dominic with many people – that Dominic first attacked him (PW2) with a panga cutting his nose and head. He said he saw Dominic attack Francis with a panga. Upon being cut he said he ran away leaving his companions behind. He met PW1 at home and entered his house and slept.
14. In the morning it was his mother Consolata Musa who woke him up to ask where Francis was. He said he told her he did not know as he had left him at the place where they had been attacked. He proceeded together with Victor to Kithungo police station and made a report with the police. He later went to Makueni hospital where his P3 was completed – he testified that the two accused persons attacked them because of the sale of a dog.
15. On cross examination he testified that when Victor told him he had been assaulted he did not tell him to report to the police or the chief or village elder. He said though there was a dispensary nearby they did not take their brother to hospital. Shown his P3 he told court it was dated 28/9/2020. Shown his statement, he confirmed that he had not told the police that on the material night there was moon light or he had a torch. He said it was not in his statement that he rang one Muendo that night and told him about the incident, he said his mother was away that night but she woke him up in the morning. He confirmed that they went to resolve the issue at night, and that if someone came to his home at night he would think it was an attacker. He testified further that Vaati (A2) held him that night and he told him to let go of him. He however confirmed that his was not his statement.
16. PW5 Consolata Achieng Musa testified that the deceased was her son. That on the night of 21/9/2020 – she was in church in Machakos. She received a call from Mutinda Martin who told her that her son had gone to his home and he would kill him and burn him. She pleaded with him to wait for the following day so they would resolve whatever the issue was. The caller told her to go to his place or he would kill her son. She said her phone went out of charge. In the morning she charged her phone, only for Mutinda to call and tell her that he had killed her son and left him at Mukuyuni. That he told her that he was with the police and that she should go to his home at Mukuyuni. She went to Mukuyuni. She saw the body of her son, she said it had cuts on head, hands. On cross examination he said Mutinda called him three times – including at 7:30 am and 9:00 am. She said she would not recall his number. She said Mutinda took deceased’s phone, that police took the phone from Mutinda that he arrived in the home of Mutinda at 9:00am.
17. PW4 Francis Kimayu the chief Iuani location was called by the village elder one Boniface Mathuva on 21/9/2020 morning and informed about the murder. He was told the body was near the home of one Martin. He informed the OCS Mukuyuni, informed the ACC and proceeded to the scene. He observed that there was a fire near the body and firewood. There was blood from the neck and toes- he phoned DCIO Makueni. At the scene there was a suspect by the name Martin who said there were two other suspects. Martin was arrested. They proceeded to the police station where they found PW1 and PW2. On cross examination he told the court that there was no electricity in the area, at the scene, that Martin was held by the crowd at the scene. He identified Martin as the 1st accused.
18. PW7 Mathias Katiku Mukithya the chief Ngai location was rang by a neighbour one Pius Mbithi Kala that one Liciano Musa had been killed. He said he accompanied Pius to the scene – the home of one Mutinda. The body was in the shamba. He said he saw a cut on the leg – he said police came with Mutinda – whom he did not know before.
19. PW3 Dr. Stephen Musembi testified on behalf of Dr. Lugogo who conducted the post mortem on 24/9/2020. The body had multiple injuries – bruises on forehead, cut wound rear right eye, blood oozing from both ears and nose, swollen upper lip, bruises and cuts on both upper limbs, cut on left lower limbs, bruises on sternal and perineal areas. Deep muscle contusion on neck – with knotted pattern of rope, right parietal occipital hematoma. Cause of death asphyxia secondary to strangulation blunt force trauma to the head causing base of skull fracture.
20. PW6 Stella Nthambi Muasya a registered clinical officer at Makueni referral hospital produced the P3 for Victor Nzioka and Thomas Mbondo Musa.The P3s were filled on 28/9/2020. The report was made on 21/9/2020 at 1300hrs – that each alleged to have been assaulted by people well known to them. For Victor the report indicated the brief history to be that he had been assaulted by a person who had killed his brother. That on 20/9/2020 at around 10:00 am sustained injuries on back and face had a healing scar on side of left cheek. On examination the clinical officer found only a healing scar at head and neck and said injuries were caused by blunt weapon. She indicated nature of offence to be “soft tissue injuries 20 to assault”.
21. For Thomas she recorded that he alleged to have been “assaulted by a person known to him on 20/9/2020 at 10:00 pm; that he was rescuing his elder brother who later died from severe injuries caused by the same person using a panga”. He had an obvious swelling on the nose bridge, healing scan on the skull. She recorded the patient had fracture injury on the nasal bone. On cross examination she told the court that there was no history of a fall, and though anything could have caused the injuries, there was no history of a fall.
22. PW8 No. 79063 CPL Derric Kiprono Crime Scene DCI Makueni county. He produced the report on behalf of Sgt Paul Kiilu who had since retired. The photos 13 of them were about the body – injuries – bruises all over the body and neck, a sharp panga, a blue stick. He said the body was far from the house.
23. PW9 Boniface Mutuku Mathuva village elder Mutula village, Iuani location he told the court that he had received a call from police that one Vaati Mwania was needed by the police, and they were to take him to the police should he show up. According to him, the said Vaati had disappeared for three months . On the night of 28/10/2020 he was fighting with his wife – that the community policing and nyumba kumi went there – and when they knocked on his door he ran off through the window and disappeared. That he came back with stones and began to stone them. He – PW8 said he was the first one to be stoned, and the chairman of nyumba kumi was also stoned. They were able to arrest him and take him to Mukuyuni police station.
On cross examination he said they arrested Vaati at midnight. He said he was injured but did not go to hospital. He said there was moonlight but there was no electricity. He said A2 knew they had come to arrest him.
24. PW10 No. 246865 PC Winfred Kyalo’s testimony hit some headwinds because the prosecution had not supplied the defence with the Government analyst’s report, a report from Safaricom for the phone of the deceased and the exhibit memo. The defence objected to this witness’s referral to the same and their production and the prosecution’s position was that they too were receiving these documents for the first time.
25. Parties argued the issue – and thereafter I determined the issue – allowing the prosecution to supply the documents, gave defence time to prepare to cross examine the witness.
26. PW10 told the court what they were told by the wife of the accused who was not a witness – that seven people among them the deceased attacked them. She and her mother in law raised alarm as the seven people were asking for Dominic. That people came and beat up the seven attackers, others ran away leaving the deceased. The body was removed from the scene – and they arrested the 1st accused, his mother and his wife. They then went to Kithungo police station where they found Thomas and Victor brothers to deceased who had booked reports of assault – they took them to Makueni to record statements. At the scene they recovered; sisal rope, black blood stained jacket, golf stick, blood stained panga, rungu, pair of shoes, one brown shoes, one cream shoe. The rope, panga, jacket, golf stick were sent to government chemist on 6/10/2020 for forensic examination .
27. She produced the exhibit memo for these exhibits.
28. According to her, the accused, his wife and their uncle A2 were attacked by people at night and the members of public who came to their rescue beat up the attackers. She claimed that the first accused took the phone of the deceased and called his mother. She testified that A1 was arrested in possession of a torch and the phone of the deceased which she claimed they sent to Safaricom for a report and that there was a report that the sim card belonged to the deceased.
29. On cross examination she testified that deceased met his death in the home of A1 at 1:00 am – that in that home karubu was sold so it was not abnormal for the PW1 and his brothers to go there at that hour. She said she did not provide an inventory for the rope, jacket, panga and other sticks allegedly collected from the scene.
30. She testified that the persons who saw the deceased being beaten was PW1 Victor, PW2 Thomas – that they fled the scene and left when their brother was being beaten.
31. PW10 Henry Kiptoo Sang from the Government chemist testified that they received at the government chemist two sets of exhibits – on 6/10/2020 – black jacket, sisal rope and blood sample of the deceased. On 16/10/2020 – they also received a panga, a golf stick blood sample of the mother of deceased, blood sample of the suspect Dominic Mutinda. They were all to be analysed for DNA. PW10 concluded that the DNA from the jacket, the sisal rope panga and golf stick marked the DNA from the deceased Francis Munguti Musa. However, it turned out from PW9 that the blood sample from the deceased was contaminated and she had to get a sample from the mother of the deceased – she told the court that she never obtained any other sample from the deceased.
32. It is on the foregoing evidence that the prosecution charged the accused persons with the offence of murder c/s 203 as read with s. 2014 of the Penal Code. The particulars were that on the night of 20th and 21st September 2020 at Mutula village Makueni Subcounty within Makueni County jointly with others not before the court they murdered Francis Munguti Musa.
33. At the close of the case for the prosecution is there any evidence sufficient to warrant the accused person’s being put on the defence?
34. The applicable law is section 306 which provides: Close of case for prosecution
(1) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.
(2) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.
(3) If the accused person says that he does not intend to give evidence or make an unsworn statement, or to adduce evidence, then the advocate for the prosecution may sum up the case against the accused person; but if the accused person says that he intends to give evidence or make an unsworn statement, or to adduce evidence, the court shall call upon him to enter upon his defence.
35. It is noteworthy that it is not easy to put a definition to what it is that is a prima facie that warrants an accused person to be put on his defence. We give explanations of what it is or what it is not. There are explanations It all depends on the facts as presented and whether or not the court could, if the accused person chose not to testify, convict. For murder cases it is that point where the Judge is of the view that as far as this evidence is concerned it is the accused who committed this offence and he needs to explain himself. These are the words of section 306(2), if it (the court) considers that there is evidence that the accused person or any one or more of several accused persons committed the offence,
36. So in this case, do I consider that there is evidence that the accused committed the offence?
37. The prosecution relies on the evidence of PW1, his brother PW2 and their mother PW5.
38. The I.O relied on what she was allegedly told by the wife of the accused as to what happened. That is hearsay and cannot be relied on.
39. PW1’s testimony about how he was able to identify the accused was discredited when he told the court it was a dark night and there was no moonlight. His evidence that they phoned the deceased’s phone that night and that he heard A1 speak on his brother’s phone was also discredited because he aslo contradicted it with his statement that he did not hear A1 speak on phone but at the scene. it was contradictory rendering it unbelievable. In addition, it was not supported by any data from the deceased’s phone to establish that there was a phone call to his phone at that time of the night.
40. He also told the court that the deceased also rang on his phone and when he went there he found him on the ground. No call data was produced to support this.
41. Further the PW1’s narration is that it was his brother who was ahead of him 100m and he was attacked first. He said he saw A1 lead about 20 people in the attack with a panga. However in the same breath he says he ran away and went back to try to rescue his brother but was pelted with stones.
42. These are not circumstances that avail an environment for positive identification when he states that there was no light.
43. PW1 said when he left PW2 was being arrested.
44. PW2 states that Francis was ahead. That he PW2 had a torch and there was moonlight. However, on cross examination it was evident he did not mention any torch or any moonlight. There was no light in which he could say he was able to identify the 1st accused. That is why his testimony is that he saw A1 and many people attack the deceased first and at the same time that Dominic attacked him first and he ran away. There is no evidence how he was able to identify his attacker as Dominic. They were not immediate neighbours. It took a whole hour for them to walk on foot to Dominic’s home so how was he able to identify Dominic.
45. He also said he saw A2 and that A2 held him but again the evidence of identification was not given, given it was at night and there was no light source.
46. So, what evidence places the accused persons at the scene of the attack on the deceased? PW1 testified he saw the 1st accused in the moonlight – but it turns out there was no light in which he would have seen the 1st accused. He said he never saw the 2nd accused. His evidence is unreliable because he says he was being attacked and he left when the deceased was being beaten. His brother Thomas also ran away- scene of their testimony is reliable as identification witness due to the alleged circumstance of the offence.
47. The mother of the PW1, the PW2 and the deceased testified on how she received phone calls from the 1st accused that he would kill, and that he had killed her son. However, the only evidence that would have confirmed this is the call data but the prosecution did not produce that evidence.
48. Michael, the only other eye witness was not called to testify. Why?
49. When the prosecution does not call such crucial evidence the court is at liberty to draw the adverse conclusion that the evidence would not have supported the for the prosecution.
50. No explanation was given as to why the prosecution did not call this witness or bring the call data from Safaricom.
51. The investigating officer said she had information that it is the people who came to the home of the accused after his wife and mother raised alarm when people attacked their home at night. Even with that information the I.O did not carry out any investigations within the village to find out who could have responded to that alarm and what actually happened. From the information she had, it is the people who responded who attacked the attackers. She did not have any information that the accused actually went after the people who attacked his home.
52. From the investigations the 1st accused was arrested and charged because people who included PW1 and PW2 and the deceased went to his home at night, an alarm was raised and people responded with violence against people believed to be attacking the home of the 1st accused.
53. Even the alleged earlier fight between the PW1 and the 1st accused was not established. It was supposed to be the reason for the whole saga. However, the alleged eye witness named as Kyumwa never testified. PW1 had not reported the alleged assault by 1st accused to the police or Nyumba kumi or village elder.
54. The prosecution has established that the deceased died. He was strangled. He died from asphyxia caused by strangulation, and also had a blunt force trauma causing bleeding in the brain and fracture at base of skull.
55. The investigation collected evidence from the scene but none of that evidence connected the accused persons to the killing of the deceased despite the fact that it is alleged to have occurred in that home, nothing was found to connect the accused persons with the scene itself.
56. The picture created by these three is that the 1st accused was in a frenzy cutting them left right and all over – but it is noteworthy that none of them gave a blood sample for DNA to place them within reach of the said panga – and none of their blood was found on the 1st accused who is the one they said cut them while leading other people to cut them. However it is noteworthy that not a single person in the neighbour hood heard the commotion – but the uncanny thing is that the two brothers and Michael ran away leaving their brother allegedly being beaten by more than 20 people – but did not report to anyone, did not go to any police station, or report to a village elder or anyone at all that their brother was being beaten – How believable is that that each of them went to house and slept until morning? Their mother says she was rang while in church that her son was being killed but did not tell anyone at the church gathering, did not seek any help – and only slept till morning when she went to the scene. The chief, the village elder were not aware of any fight in their area of jurisdiction.
57. What emerges from the evidence after the scene was visited was that there was a situation akin to a mob descending upon the deceased and his brothers who were in that home from their own evidence on a fact finding mission why their brother had ben insulted and assaulted by the 1st accused. No one has the right to take the law unto their own hands. The brothers ought to have reported the alleged insults and assault to law enforcement. Nyumba Kumi, assistant chief, police. The villagers were also obligated arrest the attackers and upon immobilizing then to report, to law enforcement. This incident would have been prevented.
58. The investigating officer’s evidence was that it’s the deceased and others who attacked the accused’s home – and when they arrived members of the public rescued them – That is the accused and his wife it would appear that this is what happened – that the PW1 and his brothers went to the home of the A1 to fight but unfortunately things took this unfortunate turn.
59. In the circumstances, I find that what the prosecution have placed before me is the circumstantial evidence that because the deceased died within the homestead of the 1st accused then he must be the one who killed him or participated in his killing. However, they have not presented any evidence to point all fingers to the accused persons.
60. In the circumstances, guided by Sawe v R and Bhatt v R I must arrive at the conclusion predicated under s. 306 (1) of the CPC
61. When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.
62. The charge against the accused persons is dismissed and a I record a finding of not guilty against each of them, and acquit each of them under s. 306(1) of the CPC.
63. Orders accordingly
Dated, Signed and Delivered, this 19th day of November 2024
Mumbua T Matheka
Judge
Court Assistants: Ms Nelima/Ms Elizabeth
Accused 1
Accused 2
Mr. Hassan for Accused
Ms. Nyakibia/Mr. Kazungu for state