1. The Accused herein was charged with the offence of murder contrary to Section 203 as read with section 204 of the Penal Code. The particulars are that on the night of 14th and 15th January 2020 at Yumbani Village, Lia Itune Sub Location, Kivaani Location in Kangundo County within Machakos County, jointly with others not before court murdered Tabitha Mwikali Mutua.
2. The prosecution called a total of 13 witnesses in support of its case.
3. PW1, Lucia Mwende Mutinda, the deceased, granddaughter testified that on 15th January 2020, her mother, Rosemary Nduku Mulee, sent her to her uncle, Francis Ngui, to buy cake. Ngui’s wife gave her cake to deliver to her grandmother. At around 8.00am PW1 arrived at her grandmother’s house. She knocked on the door and called out through the window, but received no response. Her aunt, Anna, then instructed her brother, Musila, to break the window so that she could enter. Upon entry, she found her grandmother covered in three blankets. After uncovering the third blanket, she realized that her grandmother appeared dead. Her aunt Anna thereafter relayed the information to neighbouring households, who lived nearby.
4. In court, PW1 identified the blanket, used to cover the deceased which was marked as PMFI-1. She further testified that she was later summoned to record her statement at Kangundo Police Station.
5. On cross-examination, PW1 confirmed that she was the first person to enter the house that morningafter her brother broke the window. She stated that she knows the accused person, though they are not related, and that she did not see him in the house on that day.
6. PW2, Nicholas Musila, testified that on 14th January 2020, he was at home with Nicholas Mutuku and at some point, with the accused, Dominic Muthini, although Dominic did not stay long. He stated that he arrived home at about 8:00 p.m. The following morning, at around 7:00 a.m., PW2 went to see his aunt. While checking his phone, he noticed a text message from Dominic, sent at midnight, asking him to come to the gate. However, by the time he saw the message, he had no airtime to respond. At his aunt’s home, he assisted in removing goats. During this time his sister, PW1, arrived and called out to their grandmother, but received no response. His aunt then instructed him to break the window so that PW1 could enter the house and check on their grandmother. PW2 testified that he did not enter the house after breaking the window. Instead, he continued tending to the goats and telephoned his mother, Rosemary, to inform her that she was needed. He further testified that in July 2020, he was arrested by police officers from Kangundo Police Station and placed in the cells, where he found the accused. He stated that he was later taken to Nairobi, where his samples were collected, after which he was later released.
7. Upon cross-examination, PW2 stated that he did not notice any damage to the house when he broke the window and therefore did not know what had happened to his grandmother.
8. PW3, Anna Patrick Mwanzia, testified that the deceased was her mother-in-law. On 14th January 2020, at around 4:00 p.m., she saw the deceased collecting firewood near her house, but she did not speak to her, as she proceeded to her farm to collect produce. She explained that the deceased either lived with her grandchildren or alone during the school term, and at the material time, she was living alone in her house. PW3 stated that on 15th January 2020, after breakfast, she saw PW1 knocking on the deceased’s door and calling out, but there was no response. She also tried calling the deceased, without success. She then asked PW2 to breakthe bedroom window , as the door had been locked from inside. PW3 testified that PW1 entered through the window, called out the deceased, and when there was still no response, PW3 instructed PW1 to open the door from inside.
9. Upon entering the house, PW3 found the deceased covered with a blanket. After removing it, she saw the deceased lying with her eyes open. She instructed PW2 to call his mother. PW3 testified that she contacted Florence Kimeu (PW4) and her brother-in-law, Francis Ngui, (PW5) both of whom came and confirmed that the deceased was dead. Francis thereafter left to obtain a burial permit.
10. While waiting PW3 noticed that part of the bricks in the sitting room wall appeared to have been removed and replaced. On examining the body, she observed bruises and marks on the deceased’s neck suggestive of strangulation, and blood oozing from her private parts, with discharge visible on the blanket. PW3 identified the blanket in court.
11. She stated that Francis notified the Chief’s office and CID officers from Kangundo, who removed the deceased’s body to Kangundo Mortuary. PW3 later recorded her statement, and the deceased was buried. She stated that she knew the accused as the son of their neighbour. She added that the deceased’s house was situated between their homes, approximately 10 metres from her own house. She stated that she did not hear anything unusual that night and concluded that she did not know who killed the deceased.
12. PW4, Florence Katete Kimeu, testified that she resides in Kivaani, Kangundo, where she engages in farming. On 14th January 2020, she went to her mother-in-law’s house to obtain burning embers and found her alone. On 15th January 2020, after prepared her child for school and thereafter went back to sleep until about 7:00 a.m., when she heard the milk delivery boy calling out to the deceased. . When there was no response, he left the milk at Francis Ngui’s house. Shortly thereafter, PW1 arrived and began calling the deceased. PW1 then alerted Anna(PW3), who in turn called PW2 to break the window. Anna thereafter called PW4, and together they entered the house and confirmed that the deceased had died. PW4 testified that she sent PW1 to call Francis, and after confirming the death, Francis left to obtain a burial permit.
13. PW4 further stated that they noticed bricks on the upper rear side of the structure had been interfered with. When Francis returned, he contacted the police. PW4 testified that upon examining the deceased’s body, observed nail marks on her neck and blood on her private parts. She identified in court the grey, striped blanket (PMFI-1) covering the deceased, which was stained with blood. PW4 stated that she recorded her statement at Kangundo Police Station, while the deceased’s body was taken to Kangundo Mortuary. PW4 added that there was Kshs. 1,100/= found in the deceased’s pocket. She later learned that the accused whom she knew as a neighbour who frequently visited the homestead had been arrested. She stated that she did not hear anything unusual that night as it was drizzling.
14. On cross-examination, she confirmed that it was PW3 who directed PW2 to break the window before the police arrived. She further stated that the bricks they observed appeared to have been removed and replaced, and that the wall had not looked like that the previous day. She concluded that she did not know who removed the bricks and did not know who killed the deceased.
15. PW5, Francis Ngui, testified that he resides in Kivaani Location. On 14th January 2020, in the evening, he was at home engaged in his cake-baking business. He stated that he saw his mother collecting firewood near his house, which is approximately 20 metres from the deceased’s house. On 15th January 2020, at about 8:00 a.m., he received a call from his niece informing him that there was a problem at his mother’s house, as the deceased was not responding when called. PW5 went to the deceased’s house, where he found Florence (PW4), who informed him that the deceased was still unresponsive. He also called out to the deceased and found her lying facing upwards, as though she was sleeping. He stated that he went to the Assistant Chief to obtain a burial permit, and upon returning, he was shown an area of the house where bricks appeared to have been removed. He further observed footmarks, bruising on the deceased’s lower lip, blood, and marks on her neck.
16. PW5 testified that he reported the matter to the Assistant Chief and the local police post and later recorded his statement at Kangundo Police Station. The deceased’s body was taken to Kangundo Mortuary and later transferred to Machakos Funeral Home, for post-mortem examination.. He concluded by stating that he does not know who killed the deceased.
17. PW6, Rosemary Nduku Mutinda, testified that on 15th January 2020 at about 8:30 a.m., PW2 informed her that she was being called to her mother-in-law’s home. She went there with her daughter, Violet, and together confirmed that the deceased was dead. She noted that the deceased eyes were open and she was lying facing upwards with one hand placed on her stomach. PW6 observed nail marks on her neck and, noticed that part of the brick wall appeared to have been demolished and replaced. PW6 further testified that she contacted other family members, who confirmed that the wall did not ordinarily look that way, as the bricks were joined together with mud.
18. She testified that PW5 went to report the matter to the police, and later returned with officers from Kangundo, who conducted investigations, covered the deceased with the striped grey blanket she had been lying on. The deceased’s body was then transported to Kangundo Level 4 Mortuary, after which they proceeded to record their statements. She concluded by stating that she had not seen the deceased recently prior to that day and that she did not know what caused her death.
19. PW7, Daniel Mutindi Mutua, a farmer in Kangundo, testified that on 14th January 2020, he was in Nairobi when he received a call from his wife, Rosemary Nduku, informing him that his mother had died and that it was suspected someone had entered her house through the wall. He stated that he went to Kangundo Police Station, where his wife was recording a statement, and by that time, the deceased’s body had already been taken to Kangundo Level 4 Hospital Mortuary. PW7 further testified that his late mother lived in a three-roomed brick house, situated between two other houses, and that at the material time, she was living alone. When shown photographs of the house in court, PW7 confirmed that they depicted the deceased’s house, and the 15 photographs were marked as PMFI-2. He also testified that together with Boniface Kimeu, he identified the deceased’s body, and the post-mortem form was marked for identification as PMFI-3. He stated that he did not inquire from the doctor about the cause of death. PW7 testified that he knew the accused as a neighbour and although he used to see him, they had never had any disagreement.
20. PW8, Mutiso Mutuku, also testified as DW2. He stated that although he resides in Athi River, his rural home is in Kivaani, where he knew the deceased as a neighbour. That the accused is his youngest brother. PW8 explained that when he left for Athi River, he left the accused at home. In January 2020, he received information that the deceased had been killed. About three days later, he was informed that the accused was suspected of involvement in the death.
21. PW8 testified that in May 2020, he met the accused working in Athi River. He called him aside and inquired about the incident, but the accused denied any involvement in the deceased’s death. PW8 stated that he did not know when the accused had travelled to Athi River, but the accused informed him that he had been there for two weeks. PW8 advised him to return home so the matter could be resolved, and the accused agreed, prompting him to give him Kshs. 600/= for transport.
22. He further testified that after returning home, he went to see the Assistant Chief, as it had been alleged that he was harbouring the accused. PW8 informed the Assistant Chief where the accused had gone, and the following day, he learned that the accused had been arrested. He later recorded his statement at Kangundo Police Station.
23. Upon cross-examination, PW8 stated that he was not present when the deceased was killed. He stated that there was nothing unusual about the accused working or walking in Athi River, as he is an adult and free to move as he wishes. He further testified that he did not witness the accused killing the deceased, nor did anyone inform him that they had seen the accused commit the offence. He explained that it was only his mother who told him that the accused was being sought by the authorities. He added he did not inform anyone when he first encountered the accused in Athi River.
24. PW9, Dr. Kamotho Watenga, a Consultant Pathologist, testified that on 17th January 2020 at 2:30 p.m., he conducted a post-mortem examination on the deceased at Machakos Funeral Home. He stated that externally, the body exhibited early signs of decomposition, facial hyperpigmentation suggestive of lack of oxygen, bruising on the left side of the neck and chin, bruises on the right hand and left side of the face, and lacerations of the vulva located at the 12, 2, and 8 o’clock positions. Upon internal examination, he found bruising of the intercostal muscles but no rib fractures. He also observed blood within the vaginal canal and bruising at the 7 o’clock position, as well as a vaginal tear at the 6 o’clock position. The head showed bleeding on both sides and several bruises to the back of the scalp, although there were no skull fractures. He further testified that there were four distinct bruises and contusions on the neck consistent with manual strangulation. He concluded that the cause of death was asphyxia secondary to manual strangulation.
25. PW9 stated that he collected samples for DNA analysis, including vaginal swabs and fingernail clippings. He issued Death Certificate No. 0870172, signed and stamped the post-mortem report, which was produced it as PExh 3.
26. Upon cross-examination, PW9 explained that DNA samples were collected due to evidence of assault to enable the police to conduct comparative analysis. He testified that he did not know whether DNA testing was subsequently carried out and whether any report was produced. He added that mild decomposition typically occurs within 24 to 48 hours after death, and blood may still be present up to six days post-mortem. He clarified that bruises can only be sustained while a person is alive.
27. PW10, No. 92115 CPL Samuel Kamau, testified that he is attached to the DCI Headquarters Crime Scene Section. On 15/1/2020, he received a call from Kangundo DCI, Madam Regina Muthue, informing him of a murder in Kivaani Village. He proceeded to the scene, accompanied by an officer from the Kivaani Police Post. At the scene he documented 13 photographs. Photos Nos. 1–5 depicted the general surroundings; Nos. 6–9 showed close-up views of the deceased’s body; and Nos. 10–14 depicted the hole made on the roof through which the suspect was suspected to have entered. He stated that he sent the photographs to the DCI Forensic Lab for printing and produced them in court as PExh 2 (1)–14.
28. On cross-examination, he testified that he had been informed that the incident occurred the previous night, but was not certain of the exact time as he received the call on the morning of 15/1/2020. He explained that Photo 10 shows bricks that had been removed and an opening , although the opening is not clearly visible. He further clarified that the black spot visible in the photograph was revealed by reflection. He testified that at the scene, he was accompanied by the Investigating Officer CPL Susan Kebati, the DCCIO Madam Regina Muthue, and an officer from Kivaani, and that there were members of the public present within the compound.
29. PW11, Rosina Nzisa, the Assistant Chief at Kabaa Sub-location, testified that she received a call from a fellow Assistant Chief on 10/7/2020, who inquired whether she knew the family of “Ndunda,” a well-known family, and informed her that a murder suspect was hiding within the home. On 12/7/2020, DCI Officer Regina contacted her and provided the name of the accused person. She stated that on 15/7/2020, at about 4:30 a.m., a raid was conducted under the leadership of CPI Mugania, during which the accused was arrested while sleeping. His ID card, took him to Kabaa Police Post, and informed DCI Kangundo, who picked him up at 9:30 a.m.
30. On cross-examination, she testified that they found the accused sleeping with two other boys in the house, but only arrested Dominic, not the two other boys. She clarified that their role was limited to assisting in the arrest and that she had no knowledge of the offence with which the accused was charged with.
31. PW12, Sgt Susan Kibati, testified that she works with the DCI Headquarters on Counter Violent Extremism and previously worked at DCI Kangundo. She stated that on 15/1/2020, she was assigned to investigate the murder case and together with Inspector Kamau, CPR Murunga, and Retired CPR Katunga, proceeded to Itune Sub-location where the incident had been reported. Upon arrival at the deceased’s home, they found a crowd gathered. Inside the house they found the deceased’s body in the bedroom, covered by approximately three blankets. She observed bruises on the deceased neck, noted she was lying on her back, her dress had been pulled up to the waist level, and her thighs had bruises with blood present. Florence, (PW4) was called to confirm their observations. The family also provided information about events that had occurred that morning.
32. PW12 further testified that upon inspecting the house, she noticed bricks had been removed from the back wall of the sitting room, which appeared to have been used as an escape route. Foot slip marks on the wall supported this conclusion. Inspector Kamau took photographs, of the scene and the body was initially taken to Kangundo Hospital Mortuary before being transferred to Machakos Funeral Home. Witness statements were recorded, and information was received regarding a boy from a neighboring home who fled after the incident and was suspected to have been involved. She testified that on 15/7/2020, DCI Regina Muthue informed her that the accused had been arrested at Kabaa Sub-location. He was brought to Kangundo, where Nicholas Mutinda, the deceased grandson, was also arrested. PW12 explained that investigators suspected the perpetrator was familiar to the household, as the dogs did not bark as expected. On 16/7/2020, she took the accused and Nicholas to Kangundo Court and obtained orders to hold them in custody vide Kangundo Misc. App. No. 36 of 2020, produced as Exhibit 5. Based on court orders, DNA samples were taken from Dominic and Nicholas, produced as PExhibit 6(a) and PExhibit 6(b), respectively. Samples were also collected from the deceased’s nails (labelled as “a”), the first test tube as b(i), the second as b(ii), the blanket as (c), and swabs for Nicholas and Dominic as (d(i)) and (d(ii)). She testified that the Government Analyst’s report, dated 18/9/2020 and marked MFI 8, indicated that Dominic’s DNA was positively identified from the vaginal swab on the blankets. With the approval of the ODPP, the accused was arraigned in court. Nicholas was released as there was no evidence linking him to the crime.
33. PW13, Kipengetich Bernard, testified that he is a Government Analyst at the Government Chemist in Nairobi. He stated that on 17/7/2020, he received a request from CPL Susan Kibati accompanied by fingernail clippings of the deceased wrapped in white paper, a cotton swab from the deceased, a grey blanket, and buccal swabs from both Nicholas and Dominic. He further testified that these exhibits were submitted together with a police memo requesting examination for the presence of biological material. He testified that his analysis revealed that semen stains from Dominic were present only on the vaginal swab. He produced his report dated 18/9/2020 as PExhibit 8.
34. On cross-examination, he confirmed that he personally conducted the examination and prepared the report. He also stated that the longevity of a DNA sample depends on how it is preserved and handled.
35. At the close of the prosecution’s case, this court found that a prima facie case had been established. The accused was therefore placed on his defence. He opted to tender a sworn testimony and invited one witness.
36. DW1, Dominic Muthini Mutuku, testified that he is the accused and a qualified mason. He stated that on 14/1/2020, he was at a shamba digging a drainage and finished around 1:00 p.m. He then went home, had lunch, showered, and proceeded to Kivaani Market accompanied by his friend Nicholas Musila, with whom he had previously worked. At the market he gave Nicholas Kshs 500, left the miraa base, and went to Kwa Eunice Club. He stated that at about 8:30 p.m., he left Kivaani, reached home at around 9:20 p.m., had dinner, and went to sleep. On 15/1/2020, while at home, he heard Nicholas Musila calling his sister-in-law and informing him that the deceased had died. DW1 came out of the house to clarify, and Nicholas confirmed the news. He stated that his mother went to the scene, but he proceeded to work digging trenches. Later, his friend Mutinda called him and offered him work in Athi River, with a monthly salary of Kshs 7,000/=, and instructed him to report immediately. DW1 left for Athi River the same day. He testified that Mutiso Mutuku later told him about rumors in the village suggesting he had left to avoid arrest for murder. His brother later provided him with money to return home and resolve the issue. Upon returning, his parents questioning him about the deceased’s death, and he denied any involvement. He stated that the deceased’s relatives were hostile, so he went to his aunt’s home in Kabaa. DW1 was arrested on 15/7/2020 and returned to Kangundo by DCI Kangundo. He stated that he was escorted to Kangundo Level 4 Hospital, where DNA samples were taken against his wishes, and he protested the process. Samples were also taken from Nicholas, who was later released. He reiterated that he was not involved in the deceased’s death and described the deceased as a neighbour whom he regarded as a parent figure.
37. On cross-examination, DW1 stated that he left home on 16/1/2020 and went to Athi River. He did not see the deceased’s body, although her home was approximately 300 metres away. He testified that he had no grudge against her and often visited her compound, as she was a friend. He was away from home for six months. He stated that his brother told him people at home suspected him of involvement in the deceased’s death. His brother provided him with fare to return, but it was his father who advised him to go to his aunt’s home in Kabaa to allow tensions to cool down. He further testified that his DNA profile matched that of the deceased.
38. DW2, Mutiso Mutuku, also testified as PW8. His evidence mirrored that of PW8
39. On cross-examination, he stated that in 2020, the accused used to work at home and had been digging trenches. After receiving the call from his mother, he did not communicate with the accused, and was informed that the accused had left home out of fear. He eventually met him in May, when he instructed him to return home. DW2 testified that he did not know when the accused went to Athi River, as he had only provided him with fare to go to Kangundo, and later learned that he had gone to Kabaa; though he did not know the reason for this. There was no re-examination.
40. That marked the close of the defence. Learned counsels herein filed and exchanged written submissions. The accused submissions are dated 26th June 2025 while the Prosecution’s submissions are dated 19th September 2025.
Accused’s submissions
41. The accused person submitted one issue for determination; whether the prosecution proved its case beyond a reasonable doubt. He made reference to the case of Anthony Ndegwa Ngari v. Republic [2014] eKLR in submitting that there is no direct evidence linking him to the murder of the deceased.
42. In determining whether the prosecution evidence meets the threshold of proving its case beyond a reasonable doubt, the accused submitted that there was no eyewitness to the incident leading to the deceased’s death and that there is no direct evidence connecting the accused to the murder. The accused relied on Neema Mwandoro Ndurya v. R [2008] eKLR and Teper v. R [1952] in support of his submission that the presence of spermatozoa in the deceased can be explained by consensual intercourse between the accused and the deceased.
43. On the issue of malice aforethought, the accused submitted that no such malice existed, as there was no animosity between him and the deceased, and no witness testified to any ill-will. While relying on Republic v. Paul Baki Gero [2020] eKLR, the accused submitted that the prosecution has failed to prove its case beyond a reasonable doubt and prayed for his acquittal accordingly.
Prosecution’s submissions
44. While referring to Anthony Ndegwa Ngari v. Republic [2014] KECA 424 (KLR), the prosecution outlined the law on murder. In its analysis, the prosecution submitted that the fact of the deceased’s death is not in dispute. In addition to the testimony of prosecution witnesses regarding the deceased’s death, the pathologist confirmed the cause of death and produced a post-mortem report (Exhibit 3), which revealed that the deceased died as a result of asphyxia secondary to manual strangulation. The prosecution further referred to Bonya Tutu Ipu v. R [2015] KECA 335 (KLR), noting that the pathologist observed a fracture of the hyoid bone, indicative of manual strangulation, an act covered under Section 206(a) of the Penal Code.
45. The prosecution submitted that the unlawful death was linked to the accused through DNA evidence, as seminal stains found in the deceased’s vaginal swabs matched the DNA profile of the accused’s buccal swab. They further submitted that this evidence corroborates the observations of the pathologist and prosecution witnesses, who noted that the deceased was bleeding from her vagina due to bruising and laceration of the vaginal introitus, indicating that she was sexually assaulted on the material night. The prosecution contended that the accused’s claim that he and the deceased were friends and had engaged in consensual sexual intercourse is unsupported by any evidence presented in court and constitutes statements from the bar, which should be disregarded. They emphasized that the deceased was an elderly woman, aged 94 years.
46. The prosecution further submitted that the accused’s conduct after the death of the deceased demonstrates consciousness of guilt. Both prosecution and defence evidence indicated that the accused, a neighbour of the deceased, left his home shortly after news of her death began spreading. His whereabouts remained unknown until May 2020, when DW2 spotted him in Athi River and provided him fare to return home. The accused did not go directly to his home in Kivaani but instead detoured to a relative’s home in Kabaa, where he remained until his arrest on 15/7/2020.
47. In conclusion, the prosecution submitted that although there was no eyewitness to the murder, the circumstantial evidence strongly links the accused to the deceased’s death. The prosecution urged the court to consider Republic v. Muthini [2025] KEHC 7576 (KLR), in which the court considered a murder case in the absence of an eyewitness.
Analysis and Determination
48. I have considered the evidence tendered by both prosecution and defence as well as the rival submissions. It is the duty of the prosecution to prove the guilt of the accused and which must be beyond reasonable doubt.
49. It is trite law that in criminal trials the burden of proof is always on the prosecution to discharge. A trial court is therefore enjoined by law to determine whether at the conclusion of the prosecution’s case there exists a case discharging that burden of proof.
50. The offence of murder is provided for under section 203 of the Penal Code which stipulates thus:
“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
51. The standard of proof required is that of beyond reasonable doubt. In the case of Joseph Kimani Njau v Republic [2014] eKLR, the Court of Appeal stated that-
“In all criminal trials, both the actus reus and the men's rea are required for the offence charged; they must be proved by the prosecution beyond a reasonable doubt. The trial court is obliged to ensure that before any conviction is entered, both actus reus and mens rea have been proven to the required standard.”
52. In Anthony Ndegwa Ngari v Republic [2014] eKLR, the Court of Appeal identified that three crucial ingredients of the offence of murder that have to be proved for a conviction to be entered are as follows: -
For the offence of murder, there are three elements that the prosecution must prove beyond a reasonable doubt to secure a conviction. They are;
(a)the death of the deceased and the cause of that death
(b)that the accused committed the unlawful act which caused the death of the deceased and
(c)that the accused had the malice aforethought.
53. I will consider these elements of the offence to determine whether the prosecution has proved the charge against the accused beyond a reasonable doubt.
(a) The death of the deceased and the cause of that death
54. In the instant case, there is no contest regarding the death of the deceased, Tabitha Mwikali Mutua. PW1, PW2, PW3, PW4, PW5 and PW6 all testified to having found her lifeless body in her bedroom on the morning of 15th January 2020. PW9, Dr. Kamotho Watenga, a consultant pathologist, conducted the post-mortem examination and confirmed the death. His detailed findings were that the deceased had multiple bruises on the neck, lacerations and tears to the vaginal area, bruising to t
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2. The prosecution called a total of 13 witnesses in support of its case.
3. PW1, Lucia Mwende Mutinda, the deceased, granddaughter testified that on 15th January 2020, her mother, Rosemary Nduku Mulee, sent her to her uncle, Francis Ngui, to buy cake. Ngui’s wife gave her cake to deliver to her grandmother. At around 8.00am PW1 arrived at her grandmother’s house. She knocked on the door and called out through the window, but received no response. Her aunt, Anna, then instructed her brother, Musila, to break the window so that she could enter. Upon entry, she found her grandmother covered in three blankets. After uncovering the third blanket, she realized that her grandmother appeared dead. Her aunt Anna thereafter relayed the information to neighbouring households, who lived nearby.
4. In court, PW1 identified the blanket, used to cover the deceased which was marked as PMFI-1. She further testified that she was later summoned to record her statement at Kangundo Police Station.
5. On cross-examination, PW1 confirmed that she was the first person to enter the house that morningafter her brother broke the window. She stated that she knows the accused person, though they are not related, and that she did not see him in the house on that day.
6. PW2, Nicholas Musila, testified that on 14th January 2020, he was at home with Nicholas Mutuku and at some point, with the accused, Dominic Muthini, although Dominic did not stay long. He stated that he arrived home at about 8:00 p.m. The following morning, at around 7:00 a.m., PW2 went to see his aunt. While checking his phone, he noticed a text message from Dominic, sent at midnight, asking him to come to the gate. However, by the time he saw the message, he had no airtime to respond. At his aunt’s home, he assisted in removing goats. During this time his sister, PW1, arrived and called out to their grandmother, but received no response. His aunt then instructed him to break the window so that PW1 could enter the house and check on their grandmother. PW2 testified that he did not enter the house after breaking the window. Instead, he continued tending to the goats and telephoned his mother, Rosemary, to inform her that she was needed. He further testified that in July 2020, he was arrested by police officers from Kangundo Police Station and placed in the cells, where he found the accused. He stated that he was later taken to Nairobi, where his samples were collected, after which he was later released.
7. Upon cross-examination, PW2 stated that he did not notice any damage to the house when he broke the window and therefore did not know what had happened to his grandmother.
8. PW3, Anna Patrick Mwanzia, testified that the deceased was her mother-in-law. On 14th January 2020, at around 4:00 p.m., she saw the deceased collecting firewood near her house, but she did not speak to her, as she proceeded to her farm to collect produce. She explained that the deceased either lived with her grandchildren or alone during the school term, and at the material time, she was living alone in her house. PW3 stated that on 15th January 2020, after breakfast, she saw PW1 knocking on the deceased’s door and calling out, but there was no response. She also tried calling the deceased, without success. She then asked PW2 to breakthe bedroom window , as the door had been locked from inside. PW3 testified that PW1 entered through the window, called out the deceased, and when there was still no response, PW3 instructed PW1 to open the door from inside.
9. Upon entering the house, PW3 found the deceased covered with a blanket. After removing it, she saw the deceased lying with her eyes open. She instructed PW2 to call his mother. PW3 testified that she contacted Florence Kimeu (PW4) and her brother-in-law, Francis Ngui, (PW5) both of whom came and confirmed that the deceased was dead. Francis thereafter left to obtain a burial permit.
10. While waiting PW3 noticed that part of the bricks in the sitting room wall appeared to have been removed and replaced. On examining the body, she observed bruises and marks on the deceased’s neck suggestive of strangulation, and blood oozing from her private parts, with discharge visible on the blanket. PW3 identified the blanket in court.
11. She stated that Francis notified the Chief’s office and CID officers from Kangundo, who removed the deceased’s body to Kangundo Mortuary. PW3 later recorded her statement, and the deceased was buried. She stated that she knew the accused as the son of their neighbour. She added that the deceased’s house was situated between their homes, approximately 10 metres from her own house. She stated that she did not hear anything unusual that night and concluded that she did not know who killed the deceased.
12. PW4, Florence Katete Kimeu, testified that she resides in Kivaani, Kangundo, where she engages in farming. On 14th January 2020, she went to her mother-in-law’s house to obtain burning embers and found her alone. On 15th January 2020, after prepared her child for school and thereafter went back to sleep until about 7:00 a.m., when she heard the milk delivery boy calling out to the deceased. . When there was no response, he left the milk at Francis Ngui’s house. Shortly thereafter, PW1 arrived and began calling the deceased. PW1 then alerted Anna(PW3), who in turn called PW2 to break the window. Anna thereafter called PW4, and together they entered the house and confirmed that the deceased had died. PW4 testified that she sent PW1 to call Francis, and after confirming the death, Francis left to obtain a burial permit.
13. PW4 further stated that they noticed bricks on the upper rear side of the structure had been interfered with. When Francis returned, he contacted the police. PW4 testified that upon examining the deceased’s body, observed nail marks on her neck and blood on her private parts. She identified in court the grey, striped blanket (PMFI-1) covering the deceased, which was stained with blood. PW4 stated that she recorded her statement at Kangundo Police Station, while the deceased’s body was taken to Kangundo Mortuary. PW4 added that there was Kshs. 1,100/= found in the deceased’s pocket. She later learned that the accused whom she knew as a neighbour who frequently visited the homestead had been arrested. She stated that she did not hear anything unusual that night as it was drizzling.
14. On cross-examination, she confirmed that it was PW3 who directed PW2 to break the window before the police arrived. She further stated that the bricks they observed appeared to have been removed and replaced, and that the wall had not looked like that the previous day. She concluded that she did not know who removed the bricks and did not know who killed the deceased.
15. PW5, Francis Ngui, testified that he resides in Kivaani Location. On 14th January 2020, in the evening, he was at home engaged in his cake-baking business. He stated that he saw his mother collecting firewood near his house, which is approximately 20 metres from the deceased’s house. On 15th January 2020, at about 8:00 a.m., he received a call from his niece informing him that there was a problem at his mother’s house, as the deceased was not responding when called. PW5 went to the deceased’s house, where he found Florence (PW4), who informed him that the deceased was still unresponsive. He also called out to the deceased and found her lying facing upwards, as though she was sleeping. He stated that he went to the Assistant Chief to obtain a burial permit, and upon returning, he was shown an area of the house where bricks appeared to have been removed. He further observed footmarks, bruising on the deceased’s lower lip, blood, and marks on her neck.
16. PW5 testified that he reported the matter to the Assistant Chief and the local police post and later recorded his statement at Kangundo Police Station. The deceased’s body was taken to Kangundo Mortuary and later transferred to Machakos Funeral Home, for post-mortem examination.. He concluded by stating that he does not know who killed the deceased.
17. PW6, Rosemary Nduku Mutinda, testified that on 15th January 2020 at about 8:30 a.m., PW2 informed her that she was being called to her mother-in-law’s home. She went there with her daughter, Violet, and together confirmed that the deceased was dead. She noted that the deceased eyes were open and she was lying facing upwards with one hand placed on her stomach. PW6 observed nail marks on her neck and, noticed that part of the brick wall appeared to have been demolished and replaced. PW6 further testified that she contacted other family members, who confirmed that the wall did not ordinarily look that way, as the bricks were joined together with mud.
18. She testified that PW5 went to report the matter to the police, and later returned with officers from Kangundo, who conducted investigations, covered the deceased with the striped grey blanket she had been lying on. The deceased’s body was then transported to Kangundo Level 4 Mortuary, after which they proceeded to record their statements. She concluded by stating that she had not seen the deceased recently prior to that day and that she did not know what caused her death.
19. PW7, Daniel Mutindi Mutua, a farmer in Kangundo, testified that on 14th January 2020, he was in Nairobi when he received a call from his wife, Rosemary Nduku, informing him that his mother had died and that it was suspected someone had entered her house through the wall. He stated that he went to Kangundo Police Station, where his wife was recording a statement, and by that time, the deceased’s body had already been taken to Kangundo Level 4 Hospital Mortuary. PW7 further testified that his late mother lived in a three-roomed brick house, situated between two other houses, and that at the material time, she was living alone. When shown photographs of the house in court, PW7 confirmed that they depicted the deceased’s house, and the 15 photographs were marked as PMFI-2. He also testified that together with Boniface Kimeu, he identified the deceased’s body, and the post-mortem form was marked for identification as PMFI-3. He stated that he did not inquire from the doctor about the cause of death. PW7 testified that he knew the accused as a neighbour and although he used to see him, they had never had any disagreement.
20. PW8, Mutiso Mutuku, also testified as DW2. He stated that although he resides in Athi River, his rural home is in Kivaani, where he knew the deceased as a neighbour. That the accused is his youngest brother. PW8 explained that when he left for Athi River, he left the accused at home. In January 2020, he received information that the deceased had been killed. About three days later, he was informed that the accused was suspected of involvement in the death.
21. PW8 testified that in May 2020, he met the accused working in Athi River. He called him aside and inquired about the incident, but the accused denied any involvement in the deceased’s death. PW8 stated that he did not know when the accused had travelled to Athi River, but the accused informed him that he had been there for two weeks. PW8 advised him to return home so the matter could be resolved, and the accused agreed, prompting him to give him Kshs. 600/= for transport.
22. He further testified that after returning home, he went to see the Assistant Chief, as it had been alleged that he was harbouring the accused. PW8 informed the Assistant Chief where the accused had gone, and the following day, he learned that the accused had been arrested. He later recorded his statement at Kangundo Police Station.
23. Upon cross-examination, PW8 stated that he was not present when the deceased was killed. He stated that there was nothing unusual about the accused working or walking in Athi River, as he is an adult and free to move as he wishes. He further testified that he did not witness the accused killing the deceased, nor did anyone inform him that they had seen the accused commit the offence. He explained that it was only his mother who told him that the accused was being sought by the authorities. He added he did not inform anyone when he first encountered the accused in Athi River.
24. PW9, Dr. Kamotho Watenga, a Consultant Pathologist, testified that on 17th January 2020 at 2:30 p.m., he conducted a post-mortem examination on the deceased at Machakos Funeral Home. He stated that externally, the body exhibited early signs of decomposition, facial hyperpigmentation suggestive of lack of oxygen, bruising on the left side of the neck and chin, bruises on the right hand and left side of the face, and lacerations of the vulva located at the 12, 2, and 8 o’clock positions. Upon internal examination, he found bruising of the intercostal muscles but no rib fractures. He also observed blood within the vaginal canal and bruising at the 7 o’clock position, as well as a vaginal tear at the 6 o’clock position. The head showed bleeding on both sides and several bruises to the back of the scalp, although there were no skull fractures. He further testified that there were four distinct bruises and contusions on the neck consistent with manual strangulation. He concluded that the cause of death was asphyxia secondary to manual strangulation.
25. PW9 stated that he collected samples for DNA analysis, including vaginal swabs and fingernail clippings. He issued Death Certificate No. 0870172, signed and stamped the post-mortem report, which was produced it as PExh 3.
26. Upon cross-examination, PW9 explained that DNA samples were collected due to evidence of assault to enable the police to conduct comparative analysis. He testified that he did not know whether DNA testing was subsequently carried out and whether any report was produced. He added that mild decomposition typically occurs within 24 to 48 hours after death, and blood may still be present up to six days post-mortem. He clarified that bruises can only be sustained while a person is alive.
27. PW10, No. 92115 CPL Samuel Kamau, testified that he is attached to the DCI Headquarters Crime Scene Section. On 15/1/2020, he received a call from Kangundo DCI, Madam Regina Muthue, informing him of a murder in Kivaani Village. He proceeded to the scene, accompanied by an officer from the Kivaani Police Post. At the scene he documented 13 photographs. Photos Nos. 1–5 depicted the general surroundings; Nos. 6–9 showed close-up views of the deceased’s body; and Nos. 10–14 depicted the hole made on the roof through which the suspect was suspected to have entered. He stated that he sent the photographs to the DCI Forensic Lab for printing and produced them in court as PExh 2 (1)–14.
28. On cross-examination, he testified that he had been informed that the incident occurred the previous night, but was not certain of the exact time as he received the call on the morning of 15/1/2020. He explained that Photo 10 shows bricks that had been removed and an opening , although the opening is not clearly visible. He further clarified that the black spot visible in the photograph was revealed by reflection. He testified that at the scene, he was accompanied by the Investigating Officer CPL Susan Kebati, the DCCIO Madam Regina Muthue, and an officer from Kivaani, and that there were members of the public present within the compound.
29. PW11, Rosina Nzisa, the Assistant Chief at Kabaa Sub-location, testified that she received a call from a fellow Assistant Chief on 10/7/2020, who inquired whether she knew the family of “Ndunda,” a well-known family, and informed her that a murder suspect was hiding within the home. On 12/7/2020, DCI Officer Regina contacted her and provided the name of the accused person. She stated that on 15/7/2020, at about 4:30 a.m., a raid was conducted under the leadership of CPI Mugania, during which the accused was arrested while sleeping. His ID card, took him to Kabaa Police Post, and informed DCI Kangundo, who picked him up at 9:30 a.m.
30. On cross-examination, she testified that they found the accused sleeping with two other boys in the house, but only arrested Dominic, not the two other boys. She clarified that their role was limited to assisting in the arrest and that she had no knowledge of the offence with which the accused was charged with.
31. PW12, Sgt Susan Kibati, testified that she works with the DCI Headquarters on Counter Violent Extremism and previously worked at DCI Kangundo. She stated that on 15/1/2020, she was assigned to investigate the murder case and together with Inspector Kamau, CPR Murunga, and Retired CPR Katunga, proceeded to Itune Sub-location where the incident had been reported. Upon arrival at the deceased’s home, they found a crowd gathered. Inside the house they found the deceased’s body in the bedroom, covered by approximately three blankets. She observed bruises on the deceased neck, noted she was lying on her back, her dress had been pulled up to the waist level, and her thighs had bruises with blood present. Florence, (PW4) was called to confirm their observations. The family also provided information about events that had occurred that morning.
32. PW12 further testified that upon inspecting the house, she noticed bricks had been removed from the back wall of the sitting room, which appeared to have been used as an escape route. Foot slip marks on the wall supported this conclusion. Inspector Kamau took photographs, of the scene and the body was initially taken to Kangundo Hospital Mortuary before being transferred to Machakos Funeral Home. Witness statements were recorded, and information was received regarding a boy from a neighboring home who fled after the incident and was suspected to have been involved. She testified that on 15/7/2020, DCI Regina Muthue informed her that the accused had been arrested at Kabaa Sub-location. He was brought to Kangundo, where Nicholas Mutinda, the deceased grandson, was also arrested. PW12 explained that investigators suspected the perpetrator was familiar to the household, as the dogs did not bark as expected. On 16/7/2020, she took the accused and Nicholas to Kangundo Court and obtained orders to hold them in custody vide Kangundo Misc. App. No. 36 of 2020, produced as Exhibit 5. Based on court orders, DNA samples were taken from Dominic and Nicholas, produced as PExhibit 6(a) and PExhibit 6(b), respectively. Samples were also collected from the deceased’s nails (labelled as “a”), the first test tube as b(i), the second as b(ii), the blanket as (c), and swabs for Nicholas and Dominic as (d(i)) and (d(ii)). She testified that the Government Analyst’s report, dated 18/9/2020 and marked MFI 8, indicated that Dominic’s DNA was positively identified from the vaginal swab on the blankets. With the approval of the ODPP, the accused was arraigned in court. Nicholas was released as there was no evidence linking him to the crime.
33. PW13, Kipengetich Bernard, testified that he is a Government Analyst at the Government Chemist in Nairobi. He stated that on 17/7/2020, he received a request from CPL Susan Kibati accompanied by fingernail clippings of the deceased wrapped in white paper, a cotton swab from the deceased, a grey blanket, and buccal swabs from both Nicholas and Dominic. He further testified that these exhibits were submitted together with a police memo requesting examination for the presence of biological material. He testified that his analysis revealed that semen stains from Dominic were present only on the vaginal swab. He produced his report dated 18/9/2020 as PExhibit 8.
34. On cross-examination, he confirmed that he personally conducted the examination and prepared the report. He also stated that the longevity of a DNA sample depends on how it is preserved and handled.
35. At the close of the prosecution’s case, this court found that a prima facie case had been established. The accused was therefore placed on his defence. He opted to tender a sworn testimony and invited one witness.
36. DW1, Dominic Muthini Mutuku, testified that he is the accused and a qualified mason. He stated that on 14/1/2020, he was at a shamba digging a drainage and finished around 1:00 p.m. He then went home, had lunch, showered, and proceeded to Kivaani Market accompanied by his friend Nicholas Musila, with whom he had previously worked. At the market he gave Nicholas Kshs 500, left the miraa base, and went to Kwa Eunice Club. He stated that at about 8:30 p.m., he left Kivaani, reached home at around 9:20 p.m., had dinner, and went to sleep. On 15/1/2020, while at home, he heard Nicholas Musila calling his sister-in-law and informing him that the deceased had died. DW1 came out of the house to clarify, and Nicholas confirmed the news. He stated that his mother went to the scene, but he proceeded to work digging trenches. Later, his friend Mutinda called him and offered him work in Athi River, with a monthly salary of Kshs 7,000/=, and instructed him to report immediately. DW1 left for Athi River the same day. He testified that Mutiso Mutuku later told him about rumors in the village suggesting he had left to avoid arrest for murder. His brother later provided him with money to return home and resolve the issue. Upon returning, his parents questioning him about the deceased’s death, and he denied any involvement. He stated that the deceased’s relatives were hostile, so he went to his aunt’s home in Kabaa. DW1 was arrested on 15/7/2020 and returned to Kangundo by DCI Kangundo. He stated that he was escorted to Kangundo Level 4 Hospital, where DNA samples were taken against his wishes, and he protested the process. Samples were also taken from Nicholas, who was later released. He reiterated that he was not involved in the deceased’s death and described the deceased as a neighbour whom he regarded as a parent figure.
37. On cross-examination, DW1 stated that he left home on 16/1/2020 and went to Athi River. He did not see the deceased’s body, although her home was approximately 300 metres away. He testified that he had no grudge against her and often visited her compound, as she was a friend. He was away from home for six months. He stated that his brother told him people at home suspected him of involvement in the deceased’s death. His brother provided him with fare to return, but it was his father who advised him to go to his aunt’s home in Kabaa to allow tensions to cool down. He further testified that his DNA profile matched that of the deceased.
38. DW2, Mutiso Mutuku, also testified as PW8. His evidence mirrored that of PW8
39. On cross-examination, he stated that in 2020, the accused used to work at home and had been digging trenches. After receiving the call from his mother, he did not communicate with the accused, and was informed that the accused had left home out of fear. He eventually met him in May, when he instructed him to return home. DW2 testified that he did not know when the accused went to Athi River, as he had only provided him with fare to go to Kangundo, and later learned that he had gone to Kabaa; though he did not know the reason for this. There was no re-examination.
40. That marked the close of the defence. Learned counsels herein filed and exchanged written submissions. The accused submissions are dated 26th June 2025 while the Prosecution’s submissions are dated 19th September 2025.
Accused’s submissions
41. The accused person submitted one issue for determination; whether the prosecution proved its case beyond a reasonable doubt. He made reference to the case of Anthony Ndegwa Ngari v. Republic [2014] eKLR in submitting that there is no direct evidence linking him to the murder of the deceased.
42. In determining whether the prosecution evidence meets the threshold of proving its case beyond a reasonable doubt, the accused submitted that there was no eyewitness to the incident leading to the deceased’s death and that there is no direct evidence connecting the accused to the murder. The accused relied on Neema Mwandoro Ndurya v. R [2008] eKLR and Teper v. R [1952] in support of his submission that the presence of spermatozoa in the deceased can be explained by consensual intercourse between the accused and the deceased.
43. On the issue of malice aforethought, the accused submitted that no such malice existed, as there was no animosity between him and the deceased, and no witness testified to any ill-will. While relying on Republic v. Paul Baki Gero [2020] eKLR, the accused submitted that the prosecution has failed to prove its case beyond a reasonable doubt and prayed for his acquittal accordingly.
Prosecution’s submissions
44. While referring to Anthony Ndegwa Ngari v. Republic [2014] KECA 424 (KLR), the prosecution outlined the law on murder. In its analysis, the prosecution submitted that the fact of the deceased’s death is not in dispute. In addition to the testimony of prosecution witnesses regarding the deceased’s death, the pathologist confirmed the cause of death and produced a post-mortem report (Exhibit 3), which revealed that the deceased died as a result of asphyxia secondary to manual strangulation. The prosecution further referred to Bonya Tutu Ipu v. R [2015] KECA 335 (KLR), noting that the pathologist observed a fracture of the hyoid bone, indicative of manual strangulation, an act covered under Section 206(a) of the Penal Code.
45. The prosecution submitted that the unlawful death was linked to the accused through DNA evidence, as seminal stains found in the deceased’s vaginal swabs matched the DNA profile of the accused’s buccal swab. They further submitted that this evidence corroborates the observations of the pathologist and prosecution witnesses, who noted that the deceased was bleeding from her vagina due to bruising and laceration of the vaginal introitus, indicating that she was sexually assaulted on the material night. The prosecution contended that the accused’s claim that he and the deceased were friends and had engaged in consensual sexual intercourse is unsupported by any evidence presented in court and constitutes statements from the bar, which should be disregarded. They emphasized that the deceased was an elderly woman, aged 94 years.
46. The prosecution further submitted that the accused’s conduct after the death of the deceased demonstrates consciousness of guilt. Both prosecution and defence evidence indicated that the accused, a neighbour of the deceased, left his home shortly after news of her death began spreading. His whereabouts remained unknown until May 2020, when DW2 spotted him in Athi River and provided him fare to return home. The accused did not go directly to his home in Kivaani but instead detoured to a relative’s home in Kabaa, where he remained until his arrest on 15/7/2020.
47. In conclusion, the prosecution submitted that although there was no eyewitness to the murder, the circumstantial evidence strongly links the accused to the deceased’s death. The prosecution urged the court to consider Republic v. Muthini [2025] KEHC 7576 (KLR), in which the court considered a murder case in the absence of an eyewitness.
Analysis and Determination
48. I have considered the evidence tendered by both prosecution and defence as well as the rival submissions. It is the duty of the prosecution to prove the guilt of the accused and which must be beyond reasonable doubt.
49. It is trite law that in criminal trials the burden of proof is always on the prosecution to discharge. A trial court is therefore enjoined by law to determine whether at the conclusion of the prosecution’s case there exists a case discharging that burden of proof.
50. The offence of murder is provided for under section 203 of the Penal Code which stipulates thus:
“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
51. The standard of proof required is that of beyond reasonable doubt. In the case of Joseph Kimani Njau v Republic [2014] eKLR, the Court of Appeal stated that-
“In all criminal trials, both the actus reus and the men's rea are required for the offence charged; they must be proved by the prosecution beyond a reasonable doubt. The trial court is obliged to ensure that before any conviction is entered, both actus reus and mens rea have been proven to the required standard.”
52. In Anthony Ndegwa Ngari v Republic [2014] eKLR, the Court of Appeal identified that three crucial ingredients of the offence of murder that have to be proved for a conviction to be entered are as follows: -
For the offence of murder, there are three elements that the prosecution must prove beyond a reasonable doubt to secure a conviction. They are;
(a)the death of the deceased and the cause of that death
(b)that the accused committed the unlawful act which caused the death of the deceased and
(c)that the accused had the malice aforethought.
53. I will consider these elements of the offence to determine whether the prosecution has proved the charge against the accused beyond a reasonable doubt.
(a) The death of the deceased and the cause of that death
54. In the instant case, there is no contest regarding the death of the deceased, Tabitha Mwikali Mutua. PW1, PW2, PW3, PW4, PW5 and PW6 all testified to having found her lifeless body in her bedroom on the morning of 15th January 2020. PW9, Dr. Kamotho Watenga, a consultant pathologist, conducted the post-mortem examination and confirmed the death. His detailed findings were that the deceased had multiple bruises on the neck, lacerations and tears to the vaginal area, bruising to t
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