REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
Criminal Case No. 11 of 2020
Republic .................................................Prosecution
vs
Daniel Kyele Kingoo
Mary Kaveke John................................................................Accused Persons
Judgment
The accused persons Daniel Kyele Kingoo Mary Kaveke John are jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
The particulars of the offence are that on 12 April 2020, at Mbiini Village, Kasikeu Location, Mukaa Sub-location, within Makueni County, they jointly murdered Tony Musembi Matheka.
The prosecution case is that the second accused was the mother of the deceased, while the first accused was living with her in her home.
The prosecution further alleged that the deceased, Tony, had developed a habit of stealing from members of the public. Evidence was adduced that by the time of the alleged offence, he had previously been accused of theft on several occasions and that his mother had expressed frustration with his conduct.
PW1 - S.M. , a minor aged 12 years at the material time, testified that on 12 April 2020 he was at home with his mother, the second accused, the first accused, his brother Matthew, and his brother Tony, the deceased.
He testified that on that morning Tony was sleeping behind the toilet. Their mother called the first accused and together they took Tony into the house.
PW1 stated that he and Matthew were sent to harvest vegetables in the shamba. As they left, he saw the two accused enter the house with Tony. He testified that his mother assaulted Tony using a plastic cable, identified as PMFI-1, and a stick which she later ordered them to burn. He further stated that she used a panga and cut Tony on the right upper arm.
He identified a rope and a rusted chain which he stated were used to tie Tony to a tree. The rope and chain were marked as PMFI-2 and PMFI-3 respectively.
According to PW1, the first accused also assaulted Tony using the plastic cable. He further stated that the first accused instructed Matthew to bring pliers which were then used to hit Tony on the leg.
At about 6.00 p.m., PW1 and Matthew wre sent for milk. Upon returning, their mother informed them that Tony had run away. Tony did not return home that night.
The following morning, PW1 learnt that Tony had died.
During cross-examination, PW1 confirmed that he recorded a statement with the police in the presence of his sister Grace. He further acknowledged that Tony had developed a habit of stealing and that their mother was angry because of his behaviour. He stated, however, that his mother was cared for and provided food and support for them.
He stated that, in his view, his mother was punishing Tony and did not intend to injure him.
PW2 - Elizabeth Mutua , testified that the second accused was her sister-in-law and that Tony was her nephew.
She stated that on 12 April 2020 she heard screams and proceeded to the second accused's home. Upon arrival, she found Tony had been brought out of the house while tied with chains and a padlock.
She stated that a rope had been tied tightly around his lower abdomen several times.
According to PW2, the second accused asked for pliers and used them to pull Tony’s private parts and hit him on the legs. When PW2 questioned her actions, the second accused responded that she was annoyed because of Tony's behaviour.
PW2 stated that the first accused handed over the pliers and also took a cable which was used to by the 2 nd accused to hit Tony. She identified the second accused as her sister-in-law and stated that the first accused was living with her.
During cross-examination, PW2 stated that she did not personally see the first accused assault Tony. She confirmed that Tony had a reputation for stealing and had previously been accused of taking other people's property.
PW3, Monthe Muthiani told the court that her husband and the husband of the 2 nd accused were relatives. That she went to the home of Mary Kaveke on a date she could not recall to check on her Kshs. 2,000 which had been taken by her son Tony.
That, when she arrived, she found that Tony had been tied on the hands and legs and was naked. She said that the second accused was beating him. When she asked why, she was told that the second accused was tired of her son's behaviour.
She said saw the second accused take a Masai rungu and hit him with it. She observed injuries on Tony's buttocks and legs and saw blood stains on his body. She said that she could not tell whether both accused persons had assaulted Tony before she arrived.
She said she asked that Tony be untied so that he could show them where the money was. Tony was untied and led them to a tree in the shamba where he dug, but no money was recovered.
Thereafter, Tony was taken back home. She said that the first accused suggested that Tony be tied with a sisal rope around the abdomen. Tony was tied with the rope, which she identified as PMFI 2, and thereafter tied to a tree.
She stated that she was informed that Tony would work and repay the Kshs. 2,000. She said that Tony was not being assaulted because of her money.
Later, she heard that the police had collected Tony after he had died.
She said that it was the 1 st accused who was living with the 2 nd accused as his concubine who had brought a lot of problems with the children in the 2 nd accused’s home.
On cross-examination, she stated that Tony was tied so as to prevent him from stealing because he had a habit of stealing. sHe said that Tony was talking when she left. sHe stated that she saw blood on Tony's body and that perhaps the second accused beat him out of anger. sHe further stated that Tony was found at Kaumani the following day, although she did not personally go there.
PW4, Grace Mwende Matheka , testified that the second accused was her mother and that Tony Musembi Matheka was her brother.
She stated that before his death Tony lived at home, while she stayed at her grandmother's home, which was about thirty minutes away on foot. She said that life changed after the first accused came into their home.
She stated that the first accused told their mother not to pay school fees and, as a result, she stopped going to school. She also stated that Tony's school fees were not paid. The court noted that the witness took long pauses before answering questions.
She testified that her mother chased her away from home and she went to live with her grandmother. She stated that there was no shop business at home and that their mother provided food through her work as a house help. Tony also assisted through casual work.
She testified that there was bad blood between Tony and neighbours because of his habit of stealing and that their mother was unhappy with his conduct.
She stated that on 12th April 2020 she left her grandmother's home and went to her mother's home. When she arrived, the younger children, Matthew and Sila. Tony was not at home and she did not know where he was. she said she also met her mother.
She stated that she had last seen Tony on 11th April 2020 when she found him tied to a tree. She said that she untied the rope from his hand but they were also tied with chains and a padlock which she was unable to untie
She stated that when her mother came from charging her phone she ran away because they were not on good terms.
She identified the sisal rope used to tie Tony's legs, the rusted chain used on his hands, the chain used to secure him to the tree, and the padlock. She testified that she attempted to remove the chain and padlock but was unsuccessful.
She did not return to the home later that day.
The following day she learned that Tony had been found dead at Kimenzo's Hotel. When she went there, she said she saw signs of dragging. She saw that his right hand appeared bluish and that the back of his trousers showed signs of having been dragged on the ground.
She stated that she did not see Tony on 12th April 2020 and did not know where he was. She further stated that she did not have a clear recollection of everything that had occurred.
On cross-examination, she stated that although she spent time at home, she slept at her grandmother's house. When her statement was read to her, she stated that she had not told the police that the body appeared to have been dragged.
She stated that when she found Tony at the tree, he was weak and not energetic. She did not know whether he later left the tree. She stated that Tony could have sustained injuries while running away as he was being beaten.
She testified that her mother used to compensate people for property or money stolen by Tony. She stated that she attempted to untie Tony at about 4.00 p.m. She did not know whether he was later untied and released. She could not remember the exact date on which she attempted to untie him.
She stated that Tony was beaten by their mother. She confirmed that she never reported the issue of Tony being tied to any authority.
PW5 - James Mwololo , testified that on 12 April 2020 at about 10.00 a.m., he was at home when he saw people digging in the farm of Mary Kaveke. He proceeded there and found Mutuku Mutua, Monthe Muthiani, Elizabeth Mutua, the first accused, the second accused and Tony.
He stated that they were digging while looking for money which they believed Tony had buried. No money was recovered and he subsequently left.
PW5 testified that he saw that Tony had been tied on the hands with a chain. He advised those present to remove the chain, but they responded that Tony would escape if untied. He said he asked the mother to untie the young man, but she stated that he would run away.
He identified the chain in court as the one that had been used.
PW5 further testified that on the following day at about 8.00 a.m., he received a call from one Stephen Kimenzo requesting him to go and see a person at a kiosk. Upon arrival, he found Tony lying behind the back door of Kimenzo's kiosk. The body was lying on its back facing upwards.
He immediately looked for the village elder, Josephine Mutua, and informed her of what he had seen. She was to contact the Assistant Chief.
on cross-examination, he told the court that the deceased had a reputation in the village for stealing. He confirmed that Elizabeth had claimed Tony had stolen her money. He also stated that members of the community would sometimes tie suspected thieves with ropes to prevent them from escaping.
He stated that he did not know what had caused Tony's death.
PW6 - Katunge Musyoka , testified that she was a village manager of Katangi Village.
She stated that she knew Tony and also knew the first accused. She further knew that the first accused was residing in the home of the second accused at the material time.
She testified that on 12 th April 2020 she received a telephone call from James Mwololo, who informed her that Tony was lying behind a shop and was not alive.
She proceeded to the shopping centre and found a gathering of people. She saw Tony lying near the back door of Kimenzu's hotel. She noted that blood was oozing from his right ear and that the front part of his trousers was stained with blood.
PW6 stated that she stood aside and telephoned the Assistant Chief, one Peter, who informed her that he had already received information regarding the incident and was on his way to the scene.
On cross-examination, she testified that she had previously received reports that Tony had been involved in theft. However, she did not know whether he had stolen anything on the day in question. She also stated that she did not know the circumstances under which he died.
I took over the matter on 11 th July 2023 and upon compliance with s. 200 of the Criminal Procedure Code the matter proceeded from where it had stopped .
PW7 - Dr. Pauline Kingoo , a Medical Officer, testified that she conducted the post-mortem examination on the body of the deceased on 16 April 2020 at Kilungu Sub-County Hospital at approximately 2.00 p.m.
She stated that the body was that of a male adult in his early twenties who appeared to be of good nutritional status. Rigor mortis was present.
Upon external examination, she observed:
• Bluish discolouration of both fingers and toenails;
• Multiple bruises on the chest, back, both hands and both legs;
• Bleeding from the nose, mouth and ears;
• Defensive injuries on the left forearm and left arm; and
• Two lacerations on the left forearm measuring approximately 6 cm by 2 cm.
Upon internal examination of the respiratory system, she found blunt-force trauma affecting both lungs, on the lateral aspects, accompanied by bleeding into the lungs.she concluded that the cause of death was blunt-force trauma to both lungs . she produced the postmortem report as P.Ex 7.
On cross-examination, PW7 confirmed that the bluish discolouration of the fingers and toenails indicated lack of oxygen; that bleeding from the nose, mouth and ears could also be associated with head injuries or suffocation. When asked whether anthrax could cause similar bleeding, she stated that it was possible. However, she explained that anthrax is usually a weapon of masses destruction, it was contagious anyone who came into contact with the infected person would get it. That the I.O, the mortuary attendant would have exhibited similar symptoms
Asked what she meant by blunt-force trauma to the lungs she said ni ile kuumizwa na kifaa gutu lungs zinapata majeraha . That it could be caused by other things but trauma was no. 1 on the list . That it was the injury that resulted in bleeding into the lung tissue, causing a person effectively to drown in their own blood. she stated that inhalation of carbon monoxide would not cause the type of bleeding observed in the lungs; she confirmed that no DNA samples were collected from the body because there was no suspicion of poisoning.
On 18 September 2024, the prosecution informed the court that although the Investigating Officer had not testified, the evidence already on record was sufficient and it therefore closed its case.
In a ruling delivered on 27 March 2025, the court found that the accused persons had a case to answer and placed them on their defence.
The defence hearing commenced on 3 December 2025.5
DW1, Daniel Kyele Kingoo denied the charge against him.
He stated that on 12th April 2020 he went to visit his friend Mary Kaveke John at about 7.30 a.m. Upon arrival, he found members of the family gathered in relation to Tony. He asked Mary, whom he referred to as Mama Tony, what the problem was and she told him that Monthe Muthiani was claiming that Tony had taken her Kshs. 2,000.
He stated that Tony's mother was disciplining Tony and that he told her to stop beating him. He asked Tony whether he had taken Monthe’s money and Tony admitted that he had. He further asked Tony where the money was and Tony said that he had hidden it in a hole near a tree within the compound.
He stated that, together with Mama Tony, Tony, Monthe Mwololo, Mutuku and Elizabeth, he proceeded to the place where Tony said he had hidden the money. The family chairman, James Mwololo, dug at the spot identified by Tony but no money was recovered.
They then returned to Mama Tony's home. He testified that Tony's cousin, Mboi Mutua, came, took a rope and tied Tony to a tree. Mboi stated that Tony would not be allowed to live if he continued stealing from people.
He testified that there were about six family members present. At about 11.00 a.m., he left and returned to his home. He stated that he intended to come back later to learn the outcome.
He testified that on 13th April 2020 he went to his place of work, where he was painting at the home of Daniel Kiioo Musinga. At about 10.00 a.m., Mboi Mutua telephoned him and informed him that Tony had been found dead at Kamuani Market.
He proceeded there and found many people gathered. Later, the police, the assistant chief and members of the Nyumba Kumi also arrived. He stated that he narrated to them what had transpired on 12th April 2020.
He said that Mama Tony was not at Kamuani at that time because she was working. She was sent for and, upon arrival, and learning about her son she fainted.
He testified that the body was taken to Mutungu Mortuary and that he and Mary Kaveke were later taken to Salama Police Station to record statements. He stated that they remained there until about 6.00 p.m., after which they were locked up.
He further stated that he was assaulted by police officers during investigations. He alleged that he was handcuffed, stripped naked, tortured, and that sanitizer was put into his eyes.
He denied assaulting Tony and that he never touched Tony . He maintained that it was Mboi Mutua who tied Tony to the tree. He stated that Mboi Mutua was older than Tony.
On cross-examination, he stated that Tony had a history of stealing and that several complaints had previously been made against him, one of 40,000, another of 2000, and a third one. He said that Tony had admitted taking money from members of the community and that his mother had on previous occasions refunded the same.
He denied assaulting Tony or tying him to the tree.
He stated that he and Tony’s mother discussed Tony’s conduct. They concluded that it was possible that he had stolen from some whose things were ‘locked’- meaning protected through other powers. That they had decided to take him for prayers because what the was doing was not ok.
DW2, Mary Kaveke John, testified that Tony was her first-born son. She denied the charge. She stated that before 12th April 2020, Elizabeth Monthe Muthiani came to her house and informed her that Tony had taken Kshs. 2,000 belonging to a women's chama.
She stated that she questioned Tony about the allegation and that he denied taking the money and claimed that people had made a habit of falsely accusing him.
She testified that Mboi Mutuku Tony’s cousin, Mwololo Kabati the family chairperson, Elizabeth Mutua and Daniel Kyele came to her home. As the discussion continued, she disciplined Tony with a stick.
She stated that Daniel Kyele told her to stop beating Tony. Thereafter, Tony said that he had hidden the money in a hole in the shamba.
According to her, Tony led them to a tree and identified a spot where he had allegedly hidden the money. The area was dug but nothing was recovered.
She stated that Mboi Mutuku then said that Tony should be tied to a tree so that he would not continue stealing from people and that Mboi tied him there.
She further testified that Tony then accused Mboi as the person who sent him to steal from others. She said she asked Mboi -so you are the one who has been sending my son to steal so that he can get mobinjusticed? That Mboi told her that Tony did not deserve to live.
She stated that by that time it was about noon and the first accused had already left for work in the home of Musinga Kavilu. she said that Mwololo, the two Elizabeths and Mboi sat there talking in anger. She said she did not respond . After some time, they left telling her not to untie Tony as they would be coming to collect his feaces and throwing them away should he need to relieve himself.
Around 4 pm she sent his siblings for milk from the home of her employer Tom Muindi. The children stayed there till 5:00pm. She then left to collect her phone where it had ben charging after telling Tony that she was going and coming back. When she returned Tony was not there She searched for him calling out Tony! Tony! in vain. Mboi appeared from the shamba and told her to stop looking for him he had given her so much trouble. The siblings found her looking for their brother. They said he would come home. That night he did not come back home. they ate supper and slept
The following morning, she checked Tony’s house but he was not in. She saw Mwololo in his shamba asked about Tony he told her to let him be he would come home.
After breakfast she went with her two other sons to her place of work . While there she was rang by Mrs. Michael a member of her church whether she heard that Tony was being beaten at Kamuani Market. Before she could respond there was the sound of a motor/bike at her employer’s gate. It was her cousin Wambua who told her that she was required at home. She got on the motor/bike but they went past her home to the market. She said he told her that Tony was being beaten at Kamuani market . On arrival there was a crowd and the police. Upon alighting no one spoke to her but the DCIO, Mboi, Mwololo came to ask her- where will the body be taken?
She said she was shocked and she asked-body? whose body?
That the DCIO took her hand and they went to her cousin Kimenzu’s kiosk. There was a person covered with a blanket she identified as Tony’s. That the DCIO uncovered him from the legs and then she met the face of her Tony. She said she lost strength and collapsed screaming . A decision was made that the body be taken to Mutungu Mortuary. She and Daniel Kyele accompanied the body.
She stated that she was thereafter were taken to Salama Police Station A1 to Kitui Prison and she to Makueni Women’s remand from Salama Police station. They were later locked up after the DCIO told her she was lying when she said she did not know what happened to Tony after she went for her phone.
She denied assaulting Tony in the manner alleged by the prosecution and denied pressing his private parts with pliers.
On cross-examination, she said Tony was her first born son. That he was aged 19 at that time. That after Elizabeth Monthe’s complaint that he had taken her 2000, that there was more money but that Tony took only Ksh 2000. That she beat Tony on 12th April 2020. She stated that Mboi tied Tony afterfailing to recover the money he was alleged to have stolen. That Mboi tied him with a rope on both hands . That she beat Tony before he was tied to the tree outside his house.
She said that she found Tony missing at about 6:30pm. She told the court that there was no way she could have pressed her son’s private parts. She said that Tony would take casual jobs but he was interested in construction work although he did not agree to go to college.
She denied causing his death.
The defence then closed its case.
SUBMISSIONS FOR THE FIRST ACCUSED by Mr. Hassan
Counsel for the first accused began by summarising the evidence adduced by the prosecution witnesses and the defence presented by the first accused.
He submitted that the first accused testified on oath that, on 12 April 2020, he went to the home of the second accused and found that the deceased had allegedly stolen money from PW3. They took the deceased to the place where he had indicated that he had hidden the money and dug in search of it, but the money was never recovered. A rope was brought by Mboi Mutua. Thereafter, the first accused left. He stated that he was called the following morning and went to the market, where he saw the deceased. The second accused collapsed upon seeing the deceased. He was later arrested.
According to the submissions on behalf of the first accused, none of the prosecution witnesses linked the first accused to the murder. It was argued that no evidence was adduced connecting the first accused to the commission of the offence. The only allegation against him was that he was present at the scene and had a relationship with the second accused.
It was submitted that the 1 st accused was present throughout the day when the deceased took those present to where he claimed to have hidden the money. They dug in an attempt to recover it, but to no avail. He was present in the same manner as the other people who were there that day.
It was further submitted that the deceased was released in the late afternoon, and this was corroborated by the evidence of PW1, who testified that he did not find the deceased when they returned home after buying milk.
PW1 testified that their mother only disciplined them when they were in the wrong and that this was what had happened on the material day.
The doctor, PW7, testified that upon external examination of the body, there was cyanosis in both fingers and toenails, multiple bruises on the chest, back, hands and legs, and bleeding from the nose, mouth and ears. There were defensive injuries on the left forearm and left arm, including two lacerations on the left forearm measuring 6 cm by 2 cm. There was also blunt trauma to both lungs and bleeding into the lungs.
It was submitted that the medical evidence presented a different picture from that described by the prosecution witnesses. Counsel pointed out that the deceased had defensive wounds and lacerations on the left forearm, cyanosis was evident on the fingers and toenails, there was blunt trauma to both lungs with bleeding into the lungs, and there was bleeding from the ears, nose and mouth. It was further noted that there were no injuries to the genitourinary system.
Counsel submitted that the deceased was not found at the tree where it was alleged, he had been tied, but rather approximately two kilometres away from the place where he was allegedly assaulted. It was argued that the deceased's clothes were not produced in evidence to demonstrate the extent of bloodstaining or tearing that would support the theory that he had been dragged to the place where he was eventually discovered.
It was also submitted that no witness saw the lifeless body of the deceased at any point before it was discovered at the market the following day. Further, no witness saw any of the accused persons with the deceased on the night preceding the discovery of the body.
Counsel therefore argued that the prosecution had failed to prove the essential ingredients of the offence of murder or that the accused persons were responsible for the death of the deceased. It was submitted that the prosecution case rested entirely on circumstantial evidence.
The defence advanced the theory that, given the deceased's alleged tendency to steal, it was possible that after escaping from where he had been tied, he attempted to steal from the local market and was attacked. Alternatively, he might have encountered thieves during the night and been assaulted by them. Counsel argued that this would explain the injuries sustained by the deceased, including strangulation, suffocation and the cyanosis observed during the post-mortem examination.
It was submitted that there was not a single shred of evidence demonstrating that the fatal injuries were inflicted by the accused persons. In particular, there was no evidence linking the first accused to the infliction of any fatal injuries upon the deceased.
Counsel submitted that an accomplice is a particeps criminis participant in the commission of the actual crime charged and argued that the first accused was neither an accomplice nor an accessory to the offence of murder.
On the issue of circumstantial evidence, it was submitted that no nexus had been established between the first accused and the death of the deceased.
The court was referred to Abanga alias Onyango v Republic, Criminal Case No. 32 of 1990 , (UR) which sets out the principles applicable in determining whether circumstantial evidence is sufficient to sustain a conviction. Counsel submitted that where a case rests entirely upon circumstantial evidence, the evidence must satisfy the following three conditions:
1. The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.
2. The circumstances should be of a definite tendency, unerringly pointing towards the guilt of the accused.
3. The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that, within all human probability, the crime was committed by the accused and no one else.
The court was further referred to Sawe v Republic [2003] KLR 364 , where the Court of Appeal stated that , in order to justify an inference of guilt based on circumstantial evidence, the inculpatory facts must be compatible with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of guilt. Circumstantial evidence can only form the basis of a conviction where there are no other existing circumstances which weaken the chain of circumstances relied upon.
Counsel submitted that the burden of proving facts justifying the drawing of such an inference, to the exclusion of any other reasonable hypothesis of innocence, rests solely upon the prosecution. This burden always remains with the prosecution and never shifts to the accused person.
It was submitted that the deceased escaped and was later found the following morning, and that no witness identified the first accused as having inflicted any injuries upon him.
The court was referred to Republic v Martin Oluoch Okumu & 2 Others [2015] eKLR , where the court, in considering whether a prima facie case had been established, observed that in a murder case the prosecution must prove that the accused person intended to cause death or grievous harm, knew that his acts or omissions would probably cause death or grievous harm, either to the intended victim or another person, or intended to commit a felony .
Counsel urged the court to consider whether the accused persons possessed the intention necessary to commit the offence of murder. It was submitted that the first accused lacked the requisite mens rea and that the evidence of the witnesses did not correspond with the medical evidence tendered by the doctor.
The court was urged to find that the first accused was inn
[...truncated]
IN THE HIGH COURT OF KENYA AT MAKUENI
Criminal Case No. 11 of 2020
Republic .................................................Prosecution
vs
Daniel Kyele Kingoo
Mary Kaveke John................................................................Accused Persons
Judgment
The accused persons Daniel Kyele Kingoo Mary Kaveke John are jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
The particulars of the offence are that on 12 April 2020, at Mbiini Village, Kasikeu Location, Mukaa Sub-location, within Makueni County, they jointly murdered Tony Musembi Matheka.
The prosecution case is that the second accused was the mother of the deceased, while the first accused was living with her in her home.
The prosecution further alleged that the deceased, Tony, had developed a habit of stealing from members of the public. Evidence was adduced that by the time of the alleged offence, he had previously been accused of theft on several occasions and that his mother had expressed frustration with his conduct.
PW1 - S.M. , a minor aged 12 years at the material time, testified that on 12 April 2020 he was at home with his mother, the second accused, the first accused, his brother Matthew, and his brother Tony, the deceased.
He testified that on that morning Tony was sleeping behind the toilet. Their mother called the first accused and together they took Tony into the house.
PW1 stated that he and Matthew were sent to harvest vegetables in the shamba. As they left, he saw the two accused enter the house with Tony. He testified that his mother assaulted Tony using a plastic cable, identified as PMFI-1, and a stick which she later ordered them to burn. He further stated that she used a panga and cut Tony on the right upper arm.
He identified a rope and a rusted chain which he stated were used to tie Tony to a tree. The rope and chain were marked as PMFI-2 and PMFI-3 respectively.
According to PW1, the first accused also assaulted Tony using the plastic cable. He further stated that the first accused instructed Matthew to bring pliers which were then used to hit Tony on the leg.
At about 6.00 p.m., PW1 and Matthew wre sent for milk. Upon returning, their mother informed them that Tony had run away. Tony did not return home that night.
The following morning, PW1 learnt that Tony had died.
During cross-examination, PW1 confirmed that he recorded a statement with the police in the presence of his sister Grace. He further acknowledged that Tony had developed a habit of stealing and that their mother was angry because of his behaviour. He stated, however, that his mother was cared for and provided food and support for them.
He stated that, in his view, his mother was punishing Tony and did not intend to injure him.
PW2 - Elizabeth Mutua , testified that the second accused was her sister-in-law and that Tony was her nephew.
She stated that on 12 April 2020 she heard screams and proceeded to the second accused's home. Upon arrival, she found Tony had been brought out of the house while tied with chains and a padlock.
She stated that a rope had been tied tightly around his lower abdomen several times.
According to PW2, the second accused asked for pliers and used them to pull Tony’s private parts and hit him on the legs. When PW2 questioned her actions, the second accused responded that she was annoyed because of Tony's behaviour.
PW2 stated that the first accused handed over the pliers and also took a cable which was used to by the 2 nd accused to hit Tony. She identified the second accused as her sister-in-law and stated that the first accused was living with her.
During cross-examination, PW2 stated that she did not personally see the first accused assault Tony. She confirmed that Tony had a reputation for stealing and had previously been accused of taking other people's property.
PW3, Monthe Muthiani told the court that her husband and the husband of the 2 nd accused were relatives. That she went to the home of Mary Kaveke on a date she could not recall to check on her Kshs. 2,000 which had been taken by her son Tony.
That, when she arrived, she found that Tony had been tied on the hands and legs and was naked. She said that the second accused was beating him. When she asked why, she was told that the second accused was tired of her son's behaviour.
She said saw the second accused take a Masai rungu and hit him with it. She observed injuries on Tony's buttocks and legs and saw blood stains on his body. She said that she could not tell whether both accused persons had assaulted Tony before she arrived.
She said she asked that Tony be untied so that he could show them where the money was. Tony was untied and led them to a tree in the shamba where he dug, but no money was recovered.
Thereafter, Tony was taken back home. She said that the first accused suggested that Tony be tied with a sisal rope around the abdomen. Tony was tied with the rope, which she identified as PMFI 2, and thereafter tied to a tree.
She stated that she was informed that Tony would work and repay the Kshs. 2,000. She said that Tony was not being assaulted because of her money.
Later, she heard that the police had collected Tony after he had died.
She said that it was the 1 st accused who was living with the 2 nd accused as his concubine who had brought a lot of problems with the children in the 2 nd accused’s home.
On cross-examination, she stated that Tony was tied so as to prevent him from stealing because he had a habit of stealing. sHe said that Tony was talking when she left. sHe stated that she saw blood on Tony's body and that perhaps the second accused beat him out of anger. sHe further stated that Tony was found at Kaumani the following day, although she did not personally go there.
PW4, Grace Mwende Matheka , testified that the second accused was her mother and that Tony Musembi Matheka was her brother.
She stated that before his death Tony lived at home, while she stayed at her grandmother's home, which was about thirty minutes away on foot. She said that life changed after the first accused came into their home.
She stated that the first accused told their mother not to pay school fees and, as a result, she stopped going to school. She also stated that Tony's school fees were not paid. The court noted that the witness took long pauses before answering questions.
She testified that her mother chased her away from home and she went to live with her grandmother. She stated that there was no shop business at home and that their mother provided food through her work as a house help. Tony also assisted through casual work.
She testified that there was bad blood between Tony and neighbours because of his habit of stealing and that their mother was unhappy with his conduct.
She stated that on 12th April 2020 she left her grandmother's home and went to her mother's home. When she arrived, the younger children, Matthew and Sila. Tony was not at home and she did not know where he was. she said she also met her mother.
She stated that she had last seen Tony on 11th April 2020 when she found him tied to a tree. She said that she untied the rope from his hand but they were also tied with chains and a padlock which she was unable to untie
She stated that when her mother came from charging her phone she ran away because they were not on good terms.
She identified the sisal rope used to tie Tony's legs, the rusted chain used on his hands, the chain used to secure him to the tree, and the padlock. She testified that she attempted to remove the chain and padlock but was unsuccessful.
She did not return to the home later that day.
The following day she learned that Tony had been found dead at Kimenzo's Hotel. When she went there, she said she saw signs of dragging. She saw that his right hand appeared bluish and that the back of his trousers showed signs of having been dragged on the ground.
She stated that she did not see Tony on 12th April 2020 and did not know where he was. She further stated that she did not have a clear recollection of everything that had occurred.
On cross-examination, she stated that although she spent time at home, she slept at her grandmother's house. When her statement was read to her, she stated that she had not told the police that the body appeared to have been dragged.
She stated that when she found Tony at the tree, he was weak and not energetic. She did not know whether he later left the tree. She stated that Tony could have sustained injuries while running away as he was being beaten.
She testified that her mother used to compensate people for property or money stolen by Tony. She stated that she attempted to untie Tony at about 4.00 p.m. She did not know whether he was later untied and released. She could not remember the exact date on which she attempted to untie him.
She stated that Tony was beaten by their mother. She confirmed that she never reported the issue of Tony being tied to any authority.
PW5 - James Mwololo , testified that on 12 April 2020 at about 10.00 a.m., he was at home when he saw people digging in the farm of Mary Kaveke. He proceeded there and found Mutuku Mutua, Monthe Muthiani, Elizabeth Mutua, the first accused, the second accused and Tony.
He stated that they were digging while looking for money which they believed Tony had buried. No money was recovered and he subsequently left.
PW5 testified that he saw that Tony had been tied on the hands with a chain. He advised those present to remove the chain, but they responded that Tony would escape if untied. He said he asked the mother to untie the young man, but she stated that he would run away.
He identified the chain in court as the one that had been used.
PW5 further testified that on the following day at about 8.00 a.m., he received a call from one Stephen Kimenzo requesting him to go and see a person at a kiosk. Upon arrival, he found Tony lying behind the back door of Kimenzo's kiosk. The body was lying on its back facing upwards.
He immediately looked for the village elder, Josephine Mutua, and informed her of what he had seen. She was to contact the Assistant Chief.
on cross-examination, he told the court that the deceased had a reputation in the village for stealing. He confirmed that Elizabeth had claimed Tony had stolen her money. He also stated that members of the community would sometimes tie suspected thieves with ropes to prevent them from escaping.
He stated that he did not know what had caused Tony's death.
PW6 - Katunge Musyoka , testified that she was a village manager of Katangi Village.
She stated that she knew Tony and also knew the first accused. She further knew that the first accused was residing in the home of the second accused at the material time.
She testified that on 12 th April 2020 she received a telephone call from James Mwololo, who informed her that Tony was lying behind a shop and was not alive.
She proceeded to the shopping centre and found a gathering of people. She saw Tony lying near the back door of Kimenzu's hotel. She noted that blood was oozing from his right ear and that the front part of his trousers was stained with blood.
PW6 stated that she stood aside and telephoned the Assistant Chief, one Peter, who informed her that he had already received information regarding the incident and was on his way to the scene.
On cross-examination, she testified that she had previously received reports that Tony had been involved in theft. However, she did not know whether he had stolen anything on the day in question. She also stated that she did not know the circumstances under which he died.
I took over the matter on 11 th July 2023 and upon compliance with s. 200 of the Criminal Procedure Code the matter proceeded from where it had stopped .
PW7 - Dr. Pauline Kingoo , a Medical Officer, testified that she conducted the post-mortem examination on the body of the deceased on 16 April 2020 at Kilungu Sub-County Hospital at approximately 2.00 p.m.
She stated that the body was that of a male adult in his early twenties who appeared to be of good nutritional status. Rigor mortis was present.
Upon external examination, she observed:
• Bluish discolouration of both fingers and toenails;
• Multiple bruises on the chest, back, both hands and both legs;
• Bleeding from the nose, mouth and ears;
• Defensive injuries on the left forearm and left arm; and
• Two lacerations on the left forearm measuring approximately 6 cm by 2 cm.
Upon internal examination of the respiratory system, she found blunt-force trauma affecting both lungs, on the lateral aspects, accompanied by bleeding into the lungs.she concluded that the cause of death was blunt-force trauma to both lungs . she produced the postmortem report as P.Ex 7.
On cross-examination, PW7 confirmed that the bluish discolouration of the fingers and toenails indicated lack of oxygen; that bleeding from the nose, mouth and ears could also be associated with head injuries or suffocation. When asked whether anthrax could cause similar bleeding, she stated that it was possible. However, she explained that anthrax is usually a weapon of masses destruction, it was contagious anyone who came into contact with the infected person would get it. That the I.O, the mortuary attendant would have exhibited similar symptoms
Asked what she meant by blunt-force trauma to the lungs she said ni ile kuumizwa na kifaa gutu lungs zinapata majeraha . That it could be caused by other things but trauma was no. 1 on the list . That it was the injury that resulted in bleeding into the lung tissue, causing a person effectively to drown in their own blood. she stated that inhalation of carbon monoxide would not cause the type of bleeding observed in the lungs; she confirmed that no DNA samples were collected from the body because there was no suspicion of poisoning.
On 18 September 2024, the prosecution informed the court that although the Investigating Officer had not testified, the evidence already on record was sufficient and it therefore closed its case.
In a ruling delivered on 27 March 2025, the court found that the accused persons had a case to answer and placed them on their defence.
The defence hearing commenced on 3 December 2025.5
DW1, Daniel Kyele Kingoo denied the charge against him.
He stated that on 12th April 2020 he went to visit his friend Mary Kaveke John at about 7.30 a.m. Upon arrival, he found members of the family gathered in relation to Tony. He asked Mary, whom he referred to as Mama Tony, what the problem was and she told him that Monthe Muthiani was claiming that Tony had taken her Kshs. 2,000.
He stated that Tony's mother was disciplining Tony and that he told her to stop beating him. He asked Tony whether he had taken Monthe’s money and Tony admitted that he had. He further asked Tony where the money was and Tony said that he had hidden it in a hole near a tree within the compound.
He stated that, together with Mama Tony, Tony, Monthe Mwololo, Mutuku and Elizabeth, he proceeded to the place where Tony said he had hidden the money. The family chairman, James Mwololo, dug at the spot identified by Tony but no money was recovered.
They then returned to Mama Tony's home. He testified that Tony's cousin, Mboi Mutua, came, took a rope and tied Tony to a tree. Mboi stated that Tony would not be allowed to live if he continued stealing from people.
He testified that there were about six family members present. At about 11.00 a.m., he left and returned to his home. He stated that he intended to come back later to learn the outcome.
He testified that on 13th April 2020 he went to his place of work, where he was painting at the home of Daniel Kiioo Musinga. At about 10.00 a.m., Mboi Mutua telephoned him and informed him that Tony had been found dead at Kamuani Market.
He proceeded there and found many people gathered. Later, the police, the assistant chief and members of the Nyumba Kumi also arrived. He stated that he narrated to them what had transpired on 12th April 2020.
He said that Mama Tony was not at Kamuani at that time because she was working. She was sent for and, upon arrival, and learning about her son she fainted.
He testified that the body was taken to Mutungu Mortuary and that he and Mary Kaveke were later taken to Salama Police Station to record statements. He stated that they remained there until about 6.00 p.m., after which they were locked up.
He further stated that he was assaulted by police officers during investigations. He alleged that he was handcuffed, stripped naked, tortured, and that sanitizer was put into his eyes.
He denied assaulting Tony and that he never touched Tony . He maintained that it was Mboi Mutua who tied Tony to the tree. He stated that Mboi Mutua was older than Tony.
On cross-examination, he stated that Tony had a history of stealing and that several complaints had previously been made against him, one of 40,000, another of 2000, and a third one. He said that Tony had admitted taking money from members of the community and that his mother had on previous occasions refunded the same.
He denied assaulting Tony or tying him to the tree.
He stated that he and Tony’s mother discussed Tony’s conduct. They concluded that it was possible that he had stolen from some whose things were ‘locked’- meaning protected through other powers. That they had decided to take him for prayers because what the was doing was not ok.
DW2, Mary Kaveke John, testified that Tony was her first-born son. She denied the charge. She stated that before 12th April 2020, Elizabeth Monthe Muthiani came to her house and informed her that Tony had taken Kshs. 2,000 belonging to a women's chama.
She stated that she questioned Tony about the allegation and that he denied taking the money and claimed that people had made a habit of falsely accusing him.
She testified that Mboi Mutuku Tony’s cousin, Mwololo Kabati the family chairperson, Elizabeth Mutua and Daniel Kyele came to her home. As the discussion continued, she disciplined Tony with a stick.
She stated that Daniel Kyele told her to stop beating Tony. Thereafter, Tony said that he had hidden the money in a hole in the shamba.
According to her, Tony led them to a tree and identified a spot where he had allegedly hidden the money. The area was dug but nothing was recovered.
She stated that Mboi Mutuku then said that Tony should be tied to a tree so that he would not continue stealing from people and that Mboi tied him there.
She further testified that Tony then accused Mboi as the person who sent him to steal from others. She said she asked Mboi -so you are the one who has been sending my son to steal so that he can get mobinjusticed? That Mboi told her that Tony did not deserve to live.
She stated that by that time it was about noon and the first accused had already left for work in the home of Musinga Kavilu. she said that Mwololo, the two Elizabeths and Mboi sat there talking in anger. She said she did not respond . After some time, they left telling her not to untie Tony as they would be coming to collect his feaces and throwing them away should he need to relieve himself.
Around 4 pm she sent his siblings for milk from the home of her employer Tom Muindi. The children stayed there till 5:00pm. She then left to collect her phone where it had ben charging after telling Tony that she was going and coming back. When she returned Tony was not there She searched for him calling out Tony! Tony! in vain. Mboi appeared from the shamba and told her to stop looking for him he had given her so much trouble. The siblings found her looking for their brother. They said he would come home. That night he did not come back home. they ate supper and slept
The following morning, she checked Tony’s house but he was not in. She saw Mwololo in his shamba asked about Tony he told her to let him be he would come home.
After breakfast she went with her two other sons to her place of work . While there she was rang by Mrs. Michael a member of her church whether she heard that Tony was being beaten at Kamuani Market. Before she could respond there was the sound of a motor/bike at her employer’s gate. It was her cousin Wambua who told her that she was required at home. She got on the motor/bike but they went past her home to the market. She said he told her that Tony was being beaten at Kamuani market . On arrival there was a crowd and the police. Upon alighting no one spoke to her but the DCIO, Mboi, Mwololo came to ask her- where will the body be taken?
She said she was shocked and she asked-body? whose body?
That the DCIO took her hand and they went to her cousin Kimenzu’s kiosk. There was a person covered with a blanket she identified as Tony’s. That the DCIO uncovered him from the legs and then she met the face of her Tony. She said she lost strength and collapsed screaming . A decision was made that the body be taken to Mutungu Mortuary. She and Daniel Kyele accompanied the body.
She stated that she was thereafter were taken to Salama Police Station A1 to Kitui Prison and she to Makueni Women’s remand from Salama Police station. They were later locked up after the DCIO told her she was lying when she said she did not know what happened to Tony after she went for her phone.
She denied assaulting Tony in the manner alleged by the prosecution and denied pressing his private parts with pliers.
On cross-examination, she said Tony was her first born son. That he was aged 19 at that time. That after Elizabeth Monthe’s complaint that he had taken her 2000, that there was more money but that Tony took only Ksh 2000. That she beat Tony on 12th April 2020. She stated that Mboi tied Tony afterfailing to recover the money he was alleged to have stolen. That Mboi tied him with a rope on both hands . That she beat Tony before he was tied to the tree outside his house.
She said that she found Tony missing at about 6:30pm. She told the court that there was no way she could have pressed her son’s private parts. She said that Tony would take casual jobs but he was interested in construction work although he did not agree to go to college.
She denied causing his death.
The defence then closed its case.
SUBMISSIONS FOR THE FIRST ACCUSED by Mr. Hassan
Counsel for the first accused began by summarising the evidence adduced by the prosecution witnesses and the defence presented by the first accused.
He submitted that the first accused testified on oath that, on 12 April 2020, he went to the home of the second accused and found that the deceased had allegedly stolen money from PW3. They took the deceased to the place where he had indicated that he had hidden the money and dug in search of it, but the money was never recovered. A rope was brought by Mboi Mutua. Thereafter, the first accused left. He stated that he was called the following morning and went to the market, where he saw the deceased. The second accused collapsed upon seeing the deceased. He was later arrested.
According to the submissions on behalf of the first accused, none of the prosecution witnesses linked the first accused to the murder. It was argued that no evidence was adduced connecting the first accused to the commission of the offence. The only allegation against him was that he was present at the scene and had a relationship with the second accused.
It was submitted that the 1 st accused was present throughout the day when the deceased took those present to where he claimed to have hidden the money. They dug in an attempt to recover it, but to no avail. He was present in the same manner as the other people who were there that day.
It was further submitted that the deceased was released in the late afternoon, and this was corroborated by the evidence of PW1, who testified that he did not find the deceased when they returned home after buying milk.
PW1 testified that their mother only disciplined them when they were in the wrong and that this was what had happened on the material day.
The doctor, PW7, testified that upon external examination of the body, there was cyanosis in both fingers and toenails, multiple bruises on the chest, back, hands and legs, and bleeding from the nose, mouth and ears. There were defensive injuries on the left forearm and left arm, including two lacerations on the left forearm measuring 6 cm by 2 cm. There was also blunt trauma to both lungs and bleeding into the lungs.
It was submitted that the medical evidence presented a different picture from that described by the prosecution witnesses. Counsel pointed out that the deceased had defensive wounds and lacerations on the left forearm, cyanosis was evident on the fingers and toenails, there was blunt trauma to both lungs with bleeding into the lungs, and there was bleeding from the ears, nose and mouth. It was further noted that there were no injuries to the genitourinary system.
Counsel submitted that the deceased was not found at the tree where it was alleged, he had been tied, but rather approximately two kilometres away from the place where he was allegedly assaulted. It was argued that the deceased's clothes were not produced in evidence to demonstrate the extent of bloodstaining or tearing that would support the theory that he had been dragged to the place where he was eventually discovered.
It was also submitted that no witness saw the lifeless body of the deceased at any point before it was discovered at the market the following day. Further, no witness saw any of the accused persons with the deceased on the night preceding the discovery of the body.
Counsel therefore argued that the prosecution had failed to prove the essential ingredients of the offence of murder or that the accused persons were responsible for the death of the deceased. It was submitted that the prosecution case rested entirely on circumstantial evidence.
The defence advanced the theory that, given the deceased's alleged tendency to steal, it was possible that after escaping from where he had been tied, he attempted to steal from the local market and was attacked. Alternatively, he might have encountered thieves during the night and been assaulted by them. Counsel argued that this would explain the injuries sustained by the deceased, including strangulation, suffocation and the cyanosis observed during the post-mortem examination.
It was submitted that there was not a single shred of evidence demonstrating that the fatal injuries were inflicted by the accused persons. In particular, there was no evidence linking the first accused to the infliction of any fatal injuries upon the deceased.
Counsel submitted that an accomplice is a particeps criminis participant in the commission of the actual crime charged and argued that the first accused was neither an accomplice nor an accessory to the offence of murder.
On the issue of circumstantial evidence, it was submitted that no nexus had been established between the first accused and the death of the deceased.
The court was referred to Abanga alias Onyango v Republic, Criminal Case No. 32 of 1990 , (UR) which sets out the principles applicable in determining whether circumstantial evidence is sufficient to sustain a conviction. Counsel submitted that where a case rests entirely upon circumstantial evidence, the evidence must satisfy the following three conditions:
1. The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.
2. The circumstances should be of a definite tendency, unerringly pointing towards the guilt of the accused.
3. The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that, within all human probability, the crime was committed by the accused and no one else.
The court was further referred to Sawe v Republic [2003] KLR 364 , where the Court of Appeal stated that , in order to justify an inference of guilt based on circumstantial evidence, the inculpatory facts must be compatible with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of guilt. Circumstantial evidence can only form the basis of a conviction where there are no other existing circumstances which weaken the chain of circumstances relied upon.
Counsel submitted that the burden of proving facts justifying the drawing of such an inference, to the exclusion of any other reasonable hypothesis of innocence, rests solely upon the prosecution. This burden always remains with the prosecution and never shifts to the accused person.
It was submitted that the deceased escaped and was later found the following morning, and that no witness identified the first accused as having inflicted any injuries upon him.
The court was referred to Republic v Martin Oluoch Okumu & 2 Others [2015] eKLR , where the court, in considering whether a prima facie case had been established, observed that in a murder case the prosecution must prove that the accused person intended to cause death or grievous harm, knew that his acts or omissions would probably cause death or grievous harm, either to the intended victim or another person, or intended to commit a felony .
Counsel urged the court to consider whether the accused persons possessed the intention necessary to commit the offence of murder. It was submitted that the first accused lacked the requisite mens rea and that the evidence of the witnesses did not correspond with the medical evidence tendered by the doctor.
The court was urged to find that the first accused was inn
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