Ruling under s 306 of the Criminal Procedure Code
1. The accused person is charged with murder contrary to section 203 as read with section 204 of the penal code. The particulars are that on 1/11/ 2021 at Kaluluini market, Ikangavia location, Kalamba Division in Nzaui sub-county within Makueni County he murdered Musyoka Ivula Kiindu.
2. Plea was taken on 23rd November 2021.He pleaded not guilty.
3. The prosecution called 11 witnesses. At the close of the case for the prosecution, there are two issues for determination under s. 306 of the CPC: whether there is a case established under section 306 (2) of the Criminal Procedure Code to warrant the accused person to be placed on his defence, or whether none has been established to warrant the court to act in accordance with s. 306(1) of the same Code.
4. P. W1 Erastus Musyimi Kyalaani testified he was at home on 1st November 2021 when he was woken up by noise and when. He went out, he found people saying that there was a person who had been killed. He saw a body on the ground, but did not go close to it. And he went back home.
5. Pw2 Juliana Koki Mutinda and PW5 Onesmus Sila Malyungi husband and wife were the proprietors of Bar and hotel Rift Valley View pub. Onesmus testified how he opened the bar at 2:00 PM on 31st October 2021. That Musyoka Ivula came at about 740PM and bought a bottle of chrome. Dominic Wambua came after Musyoka had left. He Dominic also bought a bottle of chrome. Mary Katile came about to 8:00 PM and Dominic ordered a bottle of Balozi for her. Musyoka came back about 9:50 PM. He just sat down and listened to music and did not order any alcohol. At about 10:40 PM, Onesmus told the customers to leave. Dominic and Mary left, then Musyoka left. That when he and his wife left Dominic and Mary were standing while Musyoka was slightly ahead and that they passed him as they went home.
6. Onesmus testified that around 3:00 AM his wife woke him up to tell him that she had received a call from one Janet Michael that there was a dead person on the road. That the assistant chief rang him about 5:00 AM and informed him about the same and he went there and found a crowd of people using torches. That there was a man lying down his trouser had been pulled down his coat was on the ground and he identified him as Musyoka Ivula, who had been in his pub that night. He said the body was near the AIC church. That Mary Katile was sleeping outside and no one woke her up.
7. On cross examination, he said that Mary Katile was sleeping outside the church. He said that the three were not very drunk. He said he did not know the accused person well. That the body was found about half a kilometer from where the pub was and near the home of PW1.
8. PW2 confirmed that they locked up at 10:40 PM. Among their last customers were Dominic Wambua , Mary Katile and Musyoka Ivula, that she and her husband went home.
9. About 3:23 AM she received a call from one Janet Michael who told her that there was a person who had been killed near the home of Mama Winnie. She woke up her husband, who rang the assistant chief, one Lazarus Mutaki. At 6:41 AM she left home for the market and that is where she found a crowd of people who were looking at a person who lay down on the ground dead. She noticed that his trouser had been pulled down, and his neck was swollen and bleeding.
10. On cross examination, she told the court that she did not see the accused and the deceased quarrel while they were in the bar. She said that the three customers left almost at the same time and that Musyoka left after Dominic and Mary. She said that the body of the deceased was found about half a kilometer from the club. She said she knew the accused that day , as a customer. That she was not called to an identification parade. She said she did not know what happened between the time the deceased left the pub and when he was found dead.
11. PW3 Christopher Musyoka Kyalaani and his wife, PW4. Veronica Ndanu Musyoka told the court that they were sleeping in their house on the first of November 2021 when about 1:00 AM they heard noise on the road. It was the voice of someone saying Nitakuua! He thought they were just drunkards that passing by. Then they heard the sound of something being hit. Ndi! Ndi!. They heard a voice saying Nipe kiatu yangu ama nitakua kabisa! That is when he took a panga and his phone torch and both went up to the path from where the sound was coming. They found a person on the ground with blood on his head. In the torchlight, he saw a cap and an open shoe. On raising the torch to look ahead, they saw a person standing but, in the darkness, they could not tell whether it was a man or a woman, because it was dark. When he asked Ni nani? the response came Ni Nini? What followed was a stone that was thrown at them. He ducked, but the stone hit his wife, who was behind him. They began to scream for help. They also called the assistant chief who came and rang the police.
12. On cross examination PW3 said they heard the noise about 1:00 AM . that the path was around 30 meters from his house and that the person he saw was about 50 meters from where they were standing. That he was not able to identify the person.
13. PW 4 on cross examination told the court that she only heard the sound. Ndu! Ndu! of something being hit. That the deceased did not have a shirt on. That they did not hear any screams . She said it was normal for a person being attacked to scream or cry in pain.
14. PW6 Dr Ouma Khasoggo Julius produced the post mortem report on behalf of Dr. King’oo. The postmortem was conducted on the 10th of November 2021. The body had a stab wound in the lower eyelid of the left eye, stab wound right right angle of the mandible, ecchymosis involving the right eye, the whole of right cheekbone, bruises whole right temporal region, left temporal region, right side of neck, right wrist joint, left wrist joint.
15. Internally, there was right subdural hematoma involving the right temporal and parietal regions, approximately 300 mls of clotted blood, subdural bleed in the occipital region approximately 60 mls of clotted blood. Cause of death was intracranial hemorrhage following head injury due to blunt force trauma.
16. Pw 7. Janet Mbinya Muendo’s testimony was that she was sleeping on the night of first November 2021 when she heard screams saying that a person had been killed. She went to where the screams were. There were other people. She saw the body and a cap nearby. They rang the chief in vain, then she and her husband left to fetch the assistant chief. They informed the other traders in the market. She rang Julianna and informed her. she said that when the assistant chief came, he identified the deceased as Musyoka. She said she knew him as the person who used to make herbal medicine.
17. PW8 George Ngumbi Ivula testified that on the first of November 2021 he was run by the assistant chief Kivuva Mutaki to go to where he was. It was at night and he called one of his children to accompany him. When they got to where the assistant chief was, it was near their land. And when he looked, he saw his brother, Musyoka Ivula. He noticed that he did not have a shirt or a sweater and that he was dead. He noticed that he had been stabbed with a knife in the neck and the mouth and the eyes. He also said that he noticed that where he was lying, there was no blood. To him, his brother had been killed elsewhere and brought to that place. He said that he had not seen his brother for 2 days prior to that day. He said that his brother was healthy, although he liked to drink when he got money. He said when the postmortem was done, he saw that his brother had been hit on the back of the head with something like a flying object and he fell. In his view, the accused was a neighbour and a small child. He said there was no way the accused could have disagreed with the deceased. According to him, his brother had been killed elsewhere and ferried to that place that was near their shamba. He said he had information which he had gathered as to who had killed his brother. He pointed and accusing finger at Pw 5.That he is the person who struck the deceased, and gave others money to carry the body away from his place.
18. PW9 Jackson Nzuki Musyoka attended the postmortem ON 10th November 2021. He said the deceased was his father.
19. PW10 10 Susan Wanjira Ngugi was the government analyst who produce the report on behalf of Henry Kiptoo Sang. She testified that they received items, via an exhibit memo form from number 998044 , PC Jacob Siyonka from Emali Police Station. The items were in khaki envelopes and marked as follows;
A- Pair of long blue jeans trousers – for the suspect
B- Blue sweater- for the suspect
C- Bed sheets -for the suspect
D- Pair of open shoes -for the suspect
E- Pair of beige shoes -for the deceased
G- Blue cap -for the suspect
H- Blood swab in cotton wool -from suspect’s feet
I- Blood in vacutainer (from Musyoka Ivula) deceased
20. The witness told the court that they (Government Chemist) were required to examine the items for DNA relationship if any. The preliminary findings were that the long trouser A , the sweater B were moderately stained with blood of human origin, the open shoes D and cotton swabs H were very slightly, and lightly respectively, stained with blood of human origin. The bed sheets C, the beige shoes E, and the cap G were not stained with any blood.
21. Upon analysis, the DNA from A, B, D, and H matched the DNA from the blood sample obtained from the deceased.
22. PW11. Was number 62375 CPL Peter Mutua. He testified that on the first of November, 2021 he was informed by the DCIO that there was an incident at Kalamba Kiluluini market and a person had been killed that night. He was told to go and attend the scene of death. He proceeded there with his colleague, one Jacob. Upon arrival, they found a body of one Musyoka Ivula, who was from that village. And near the body there was a kofia or cap, another shoe not very far from the body. The body did not have a shirt. There was a coat between the legs of the deceased, He did not have shoes.
23. On interrogating those who were nearby, he was told that the previous night, the deceased was at the Rift Valley Bar with the accused and one Mary Katile . That the assistant chief had already arrested Mary Katile and he was directed to the home of the accused. He proceeded there . On the way near a certain church, they found a blue jumper that was bloodstained. It was identified as belonging to the accused. He took the jumper and proceeded to the home of the accused, who he found had locked himself inside his house. He knocked the door, identified himself and accused opened the door. He arrested the accused. He said he searched the house and found a blue pair of jeans, which was bloodstained, a bed sheet which was bloodstained, and they took both of them. He said he noticed that the accused’s feet were blood stained. He went back to the scene, took the body, took Mary Katile, and they proceeded to Emali police station from where they took the body to Kilome nursing home mortuary
24. He said he took the suspects to Makindu law Courts for an extension of time for investigations and for mental health assessment at Makueni referral Hospital, where they were both examined and found to be of sound mind. That he took the accused to Emali Modern where blood was taken from his feet, and a sample taken for forensics. That these and other items were taken to the government Chemist on 4th Nov 2021.
25. On 10th Nov 2021 he attended the postmortem.
26. He said the accused was a key suspect and he charged him with the offence. He produced the items as exhibits.
27. On cross examination he told the court that they had made an inventory of the items that were collected from the scene but that he had not produced it as evidence. Asked about the clothes he alleged belonged to the accused person , and whether they were subjected to DNA testing to confirm that they actually belonged to the accused, he testified that they took them to the government analyst but there was no request to test to confirm that they were his. Asked about the cotton swab of the accused’s feet, and blood sample he said he did not have evidence of the doctor who took the swab from the accused, that he only recorded it in his statement.
28. He said he was the one who recorded the statement of Mary Katile. He said that the exhibit memo showed that the cap belonged to the suspect, but that from the statement of Mary Katile she said that the cap was hers . That she told him that it was thrown to the scene from her head. he said that he did not know whether Mary Katile had testified. He said he did not know that the deceased had left with Mary Katile from the bar.
29. He said he got to the accused’s house around 9:00am.
30. That the shirt of the deceased was not recovered.
31. That the weapon was not recovered either
32. The prosecution closed its case. Is there a prima facie case?
33. What is a prima facie case?
Prima facie is Latin for "at first sight,” or “on the face of it.” Prima facie is used in court to indicate that there is sufficient or adequate evidence to support a claim. More simply put, a prima facie case means that the claim being presented to a court has merit, when taken at face value. A prima facie case is the establishment of a legally required rebuttable presumption. In other words, a prima facie case is a cause of action or defense that is sufficiently established by a party's evidence to justify a verdict in their favor, provided such evidence is not rebutted by the other party.
34. In Bhatt v Republic (1957) EA 332-334 & 335 the Court defined what constitutes a prima facie case at the close of the prosecution case.
“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution case, the case is merely one which on fully consideration might possibly be thought sufficient to sustain a conviction. This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is some evidence irrespective of its credibility or weight, sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence.”
35. The prosecution bears the obligation to establish a prima facie case. That on the face of it, that a death occurred, it was unlawfully caused by the accused with malice aforethought.
36. The prosecution herein has established that a man was found murdered sometime after leaving a drinking place. The last people to see him alive were PW2 and PW5. Their testimony is that he left the bar around the same time as the accused and one Mary Katile. That they passed him on the road as they went home. That later about two hours later they heard someone threatening to kill a person not far from their house. The person being threatened did not utter a word. The person being threatened was hit with something but that person made no sound . That they went there and found the body of the deceased , saw a suspect whom they could not identify whether man or woman. Then called for help.
37. The testimony of these witnesses gives some credence to the testimony of the brother to the deceased of the possibility that he may have been killed elsewhere and dropped where his body was found. These two told the court that the deceased was not drunk as such when he left the pub. How possible was it that a person would be stabbed severally and not make a sound? The prosecution had no explanation for this . neither did the prosecution do anything to remove the cloud of suspicion over these two witnesses. Other than the accused and Mary, they were the last ones to see the deceased alive. In addition, according to the prosecution, they are the only ones who saw and spoke with the suspected killer but they could not say whether it was a man or a woman, yet they heard the person speak. They knew the accused, they knew his voice, they did not state that it was the voice of the accused that responded-Ni nini? To their question, Ni nani?
38. Despite being witnesses for the prosecution, they carried a whiff of suspicion.
39. The prosecution turned to circumstantial evidence.
40. In Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, the Court of Appeal stated as follows on reliance on circumstantial evidence:
“However, it is a truism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -
“It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”
41. In the same case, the Court of Appeal set out the test to be applied in considering whether circumstantial evidence placed before a court can support a conviction. The court stated:
“Before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the Subject person, and to no other person, as the perpetrator of the offence. In Abanga alias Onyango v R Cr. App. No 32 of 1990, this court set out the conditions as follows:
“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:
(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Subject;
(iii) the circumstances taken cumulatively, should from 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 none else.”
42. The prosecution brought in DNA evidence in an effort to lace the accused at the scene. It was prosecution’s case that some DNA was found on clothes belonging to the accused which the police said they recovered them while having blood stains.
43. The prosecution did not produce evidence s to how they ascertained that the blue jumper and jeans trousers belonged to the accused. Simply stating that the jumper was identified as belonging to the accused and that jeans were found in his house was not enough to establish that indeed these belonged to the accused. This was more so after the I.O confirmed that a cap that was marked as belonging to the accused person belonged to Mary Katile, a person the prosecution did not call as a witness. Yet , in addition to her cap being found near the deceased, she was said to have been found sleeping around there.
44. There was the blood sample alleged to have been cotton swabbed from the feet of the accused person together with other blood sample. The I.O did not produce any evidence to support his claim that the accused’s feet were blood stained and that a medic of any sort collected samples of blood from the accused’s feet or from the accused at all. There was no evidence that he had was taken to any hospital for the collection of the samples.
45. The accused was arrested on 1st November 2021. The exhibits were taken to government chemist on 4th November 2021. The I.O did not tell the court when he obtained the blood samples from the accused
46. There was the bold sample from the deceased. The I.O told the court that he obtained blood from the deceased. However, the post mortem report clearly indicated that no samples were collected. So where and when did he obtain the blood of the deceased? Who gave him the samples? From which hospital by which medic?
47. Curiously the exhibit memo states that all the exhibits were found on 1st November 2021 at Kiluluini village by no. 62375 CPL Peter Mutua .If the blood from the deceased was collected on 1/11/2021 who did so?
48. Mary Katile was found sleeping near the church where the blood-stained blue jumper was found. Her cap was found next to the body. What did she know and why was she not called as a witness?
49. The prosecution’s case is set on circumstantial evidence, yet there appears to have been other evidence that would have explained the presence of the blood on the clothes that were found .
50. There was no inventory to confirm where the items were found. In this case it was necessary for the accused to account for what was allegedly found in his house because that was the only evidence against him. Other items were said to have been found elsewhere, and were not sufficiently linked to the accused person
51. The I.O said that he found when the assistant chief had already arrested Mary Katile. Witnesses said that she was sleeping outside the church and no one woke her up. There is no explanation as to how Mary stopped being a suspect and became a witness, and why even then she did not testify.
52. What all these demonstrate is that the was poorly investigated. The key evidence that could place accused at the scene was incredible. The DNA testimony is not credible to the extent that the I.O could not account for how he obtained the samples from the accused and the deceased presented for DNA.
53. It is instructive that the family of the deceased did not accept that the accused could have killed the deceased. They had their own suspicions which the I.O did not follow up.
54. There are gaps in this case. Uncalled witnesses, unaccounted for DNA samples, loose ends leading to other suspects, leading to the conclusion that none of the evidence unerringly points at the accused person as the one who committed this offence. This is not evidence that can sustain a conviction.
55. In the circumstances, I find that the charge has no legs to stand on , it is dismissed. I enter a finding of not guilty pursuant to s. 306(1) of the Criminal Procedure Code. The accused is acquitted and should be set at liberty unless otherwise legally held.
Dated signed and delivered virtually this 15th August 2025
Mumbua T Matheka
Judge
Chrispol Court Assistant
Mr. Hassan for accused
Accused present at Makueni Main Prison
Ms. Otulo for the state
.
1. The accused person is charged with murder contrary to section 203 as read with section 204 of the penal code. The particulars are that on 1/11/ 2021 at Kaluluini market, Ikangavia location, Kalamba Division in Nzaui sub-county within Makueni County he murdered Musyoka Ivula Kiindu.
2. Plea was taken on 23rd November 2021.He pleaded not guilty.
3. The prosecution called 11 witnesses. At the close of the case for the prosecution, there are two issues for determination under s. 306 of the CPC: whether there is a case established under section 306 (2) of the Criminal Procedure Code to warrant the accused person to be placed on his defence, or whether none has been established to warrant the court to act in accordance with s. 306(1) of the same Code.
4. P. W1 Erastus Musyimi Kyalaani testified he was at home on 1st November 2021 when he was woken up by noise and when. He went out, he found people saying that there was a person who had been killed. He saw a body on the ground, but did not go close to it. And he went back home.
5. Pw2 Juliana Koki Mutinda and PW5 Onesmus Sila Malyungi husband and wife were the proprietors of Bar and hotel Rift Valley View pub. Onesmus testified how he opened the bar at 2:00 PM on 31st October 2021. That Musyoka Ivula came at about 740PM and bought a bottle of chrome. Dominic Wambua came after Musyoka had left. He Dominic also bought a bottle of chrome. Mary Katile came about to 8:00 PM and Dominic ordered a bottle of Balozi for her. Musyoka came back about 9:50 PM. He just sat down and listened to music and did not order any alcohol. At about 10:40 PM, Onesmus told the customers to leave. Dominic and Mary left, then Musyoka left. That when he and his wife left Dominic and Mary were standing while Musyoka was slightly ahead and that they passed him as they went home.
6. Onesmus testified that around 3:00 AM his wife woke him up to tell him that she had received a call from one Janet Michael that there was a dead person on the road. That the assistant chief rang him about 5:00 AM and informed him about the same and he went there and found a crowd of people using torches. That there was a man lying down his trouser had been pulled down his coat was on the ground and he identified him as Musyoka Ivula, who had been in his pub that night. He said the body was near the AIC church. That Mary Katile was sleeping outside and no one woke her up.
7. On cross examination, he said that Mary Katile was sleeping outside the church. He said that the three were not very drunk. He said he did not know the accused person well. That the body was found about half a kilometer from where the pub was and near the home of PW1.
8. PW2 confirmed that they locked up at 10:40 PM. Among their last customers were Dominic Wambua , Mary Katile and Musyoka Ivula, that she and her husband went home.
9. About 3:23 AM she received a call from one Janet Michael who told her that there was a person who had been killed near the home of Mama Winnie. She woke up her husband, who rang the assistant chief, one Lazarus Mutaki. At 6:41 AM she left home for the market and that is where she found a crowd of people who were looking at a person who lay down on the ground dead. She noticed that his trouser had been pulled down, and his neck was swollen and bleeding.
10. On cross examination, she told the court that she did not see the accused and the deceased quarrel while they were in the bar. She said that the three customers left almost at the same time and that Musyoka left after Dominic and Mary. She said that the body of the deceased was found about half a kilometer from the club. She said she knew the accused that day , as a customer. That she was not called to an identification parade. She said she did not know what happened between the time the deceased left the pub and when he was found dead.
11. PW3 Christopher Musyoka Kyalaani and his wife, PW4. Veronica Ndanu Musyoka told the court that they were sleeping in their house on the first of November 2021 when about 1:00 AM they heard noise on the road. It was the voice of someone saying Nitakuua! He thought they were just drunkards that passing by. Then they heard the sound of something being hit. Ndi! Ndi!. They heard a voice saying Nipe kiatu yangu ama nitakua kabisa! That is when he took a panga and his phone torch and both went up to the path from where the sound was coming. They found a person on the ground with blood on his head. In the torchlight, he saw a cap and an open shoe. On raising the torch to look ahead, they saw a person standing but, in the darkness, they could not tell whether it was a man or a woman, because it was dark. When he asked Ni nani? the response came Ni Nini? What followed was a stone that was thrown at them. He ducked, but the stone hit his wife, who was behind him. They began to scream for help. They also called the assistant chief who came and rang the police.
12. On cross examination PW3 said they heard the noise about 1:00 AM . that the path was around 30 meters from his house and that the person he saw was about 50 meters from where they were standing. That he was not able to identify the person.
13. PW 4 on cross examination told the court that she only heard the sound. Ndu! Ndu! of something being hit. That the deceased did not have a shirt on. That they did not hear any screams . She said it was normal for a person being attacked to scream or cry in pain.
14. PW6 Dr Ouma Khasoggo Julius produced the post mortem report on behalf of Dr. King’oo. The postmortem was conducted on the 10th of November 2021. The body had a stab wound in the lower eyelid of the left eye, stab wound right right angle of the mandible, ecchymosis involving the right eye, the whole of right cheekbone, bruises whole right temporal region, left temporal region, right side of neck, right wrist joint, left wrist joint.
15. Internally, there was right subdural hematoma involving the right temporal and parietal regions, approximately 300 mls of clotted blood, subdural bleed in the occipital region approximately 60 mls of clotted blood. Cause of death was intracranial hemorrhage following head injury due to blunt force trauma.
16. Pw 7. Janet Mbinya Muendo’s testimony was that she was sleeping on the night of first November 2021 when she heard screams saying that a person had been killed. She went to where the screams were. There were other people. She saw the body and a cap nearby. They rang the chief in vain, then she and her husband left to fetch the assistant chief. They informed the other traders in the market. She rang Julianna and informed her. she said that when the assistant chief came, he identified the deceased as Musyoka. She said she knew him as the person who used to make herbal medicine.
17. PW8 George Ngumbi Ivula testified that on the first of November 2021 he was run by the assistant chief Kivuva Mutaki to go to where he was. It was at night and he called one of his children to accompany him. When they got to where the assistant chief was, it was near their land. And when he looked, he saw his brother, Musyoka Ivula. He noticed that he did not have a shirt or a sweater and that he was dead. He noticed that he had been stabbed with a knife in the neck and the mouth and the eyes. He also said that he noticed that where he was lying, there was no blood. To him, his brother had been killed elsewhere and brought to that place. He said that he had not seen his brother for 2 days prior to that day. He said that his brother was healthy, although he liked to drink when he got money. He said when the postmortem was done, he saw that his brother had been hit on the back of the head with something like a flying object and he fell. In his view, the accused was a neighbour and a small child. He said there was no way the accused could have disagreed with the deceased. According to him, his brother had been killed elsewhere and ferried to that place that was near their shamba. He said he had information which he had gathered as to who had killed his brother. He pointed and accusing finger at Pw 5.That he is the person who struck the deceased, and gave others money to carry the body away from his place.
18. PW9 Jackson Nzuki Musyoka attended the postmortem ON 10th November 2021. He said the deceased was his father.
19. PW10 10 Susan Wanjira Ngugi was the government analyst who produce the report on behalf of Henry Kiptoo Sang. She testified that they received items, via an exhibit memo form from number 998044 , PC Jacob Siyonka from Emali Police Station. The items were in khaki envelopes and marked as follows;
A- Pair of long blue jeans trousers – for the suspect
B- Blue sweater- for the suspect
C- Bed sheets -for the suspect
D- Pair of open shoes -for the suspect
E- Pair of beige shoes -for the deceased
G- Blue cap -for the suspect
H- Blood swab in cotton wool -from suspect’s feet
I- Blood in vacutainer (from Musyoka Ivula) deceased
20. The witness told the court that they (Government Chemist) were required to examine the items for DNA relationship if any. The preliminary findings were that the long trouser A , the sweater B were moderately stained with blood of human origin, the open shoes D and cotton swabs H were very slightly, and lightly respectively, stained with blood of human origin. The bed sheets C, the beige shoes E, and the cap G were not stained with any blood.
21. Upon analysis, the DNA from A, B, D, and H matched the DNA from the blood sample obtained from the deceased.
22. PW11. Was number 62375 CPL Peter Mutua. He testified that on the first of November, 2021 he was informed by the DCIO that there was an incident at Kalamba Kiluluini market and a person had been killed that night. He was told to go and attend the scene of death. He proceeded there with his colleague, one Jacob. Upon arrival, they found a body of one Musyoka Ivula, who was from that village. And near the body there was a kofia or cap, another shoe not very far from the body. The body did not have a shirt. There was a coat between the legs of the deceased, He did not have shoes.
23. On interrogating those who were nearby, he was told that the previous night, the deceased was at the Rift Valley Bar with the accused and one Mary Katile . That the assistant chief had already arrested Mary Katile and he was directed to the home of the accused. He proceeded there . On the way near a certain church, they found a blue jumper that was bloodstained. It was identified as belonging to the accused. He took the jumper and proceeded to the home of the accused, who he found had locked himself inside his house. He knocked the door, identified himself and accused opened the door. He arrested the accused. He said he searched the house and found a blue pair of jeans, which was bloodstained, a bed sheet which was bloodstained, and they took both of them. He said he noticed that the accused’s feet were blood stained. He went back to the scene, took the body, took Mary Katile, and they proceeded to Emali police station from where they took the body to Kilome nursing home mortuary
24. He said he took the suspects to Makindu law Courts for an extension of time for investigations and for mental health assessment at Makueni referral Hospital, where they were both examined and found to be of sound mind. That he took the accused to Emali Modern where blood was taken from his feet, and a sample taken for forensics. That these and other items were taken to the government Chemist on 4th Nov 2021.
25. On 10th Nov 2021 he attended the postmortem.
26. He said the accused was a key suspect and he charged him with the offence. He produced the items as exhibits.
27. On cross examination he told the court that they had made an inventory of the items that were collected from the scene but that he had not produced it as evidence. Asked about the clothes he alleged belonged to the accused person , and whether they were subjected to DNA testing to confirm that they actually belonged to the accused, he testified that they took them to the government analyst but there was no request to test to confirm that they were his. Asked about the cotton swab of the accused’s feet, and blood sample he said he did not have evidence of the doctor who took the swab from the accused, that he only recorded it in his statement.
28. He said he was the one who recorded the statement of Mary Katile. He said that the exhibit memo showed that the cap belonged to the suspect, but that from the statement of Mary Katile she said that the cap was hers . That she told him that it was thrown to the scene from her head. he said that he did not know whether Mary Katile had testified. He said he did not know that the deceased had left with Mary Katile from the bar.
29. He said he got to the accused’s house around 9:00am.
30. That the shirt of the deceased was not recovered.
31. That the weapon was not recovered either
32. The prosecution closed its case. Is there a prima facie case?
33. What is a prima facie case?
Prima facie is Latin for "at first sight,” or “on the face of it.” Prima facie is used in court to indicate that there is sufficient or adequate evidence to support a claim. More simply put, a prima facie case means that the claim being presented to a court has merit, when taken at face value. A prima facie case is the establishment of a legally required rebuttable presumption. In other words, a prima facie case is a cause of action or defense that is sufficiently established by a party's evidence to justify a verdict in their favor, provided such evidence is not rebutted by the other party.
34. In Bhatt v Republic (1957) EA 332-334 & 335 the Court defined what constitutes a prima facie case at the close of the prosecution case.
“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution case, the case is merely one which on fully consideration might possibly be thought sufficient to sustain a conviction. This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is some evidence irrespective of its credibility or weight, sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence.”
35. The prosecution bears the obligation to establish a prima facie case. That on the face of it, that a death occurred, it was unlawfully caused by the accused with malice aforethought.
36. The prosecution herein has established that a man was found murdered sometime after leaving a drinking place. The last people to see him alive were PW2 and PW5. Their testimony is that he left the bar around the same time as the accused and one Mary Katile. That they passed him on the road as they went home. That later about two hours later they heard someone threatening to kill a person not far from their house. The person being threatened did not utter a word. The person being threatened was hit with something but that person made no sound . That they went there and found the body of the deceased , saw a suspect whom they could not identify whether man or woman. Then called for help.
37. The testimony of these witnesses gives some credence to the testimony of the brother to the deceased of the possibility that he may have been killed elsewhere and dropped where his body was found. These two told the court that the deceased was not drunk as such when he left the pub. How possible was it that a person would be stabbed severally and not make a sound? The prosecution had no explanation for this . neither did the prosecution do anything to remove the cloud of suspicion over these two witnesses. Other than the accused and Mary, they were the last ones to see the deceased alive. In addition, according to the prosecution, they are the only ones who saw and spoke with the suspected killer but they could not say whether it was a man or a woman, yet they heard the person speak. They knew the accused, they knew his voice, they did not state that it was the voice of the accused that responded-Ni nini? To their question, Ni nani?
38. Despite being witnesses for the prosecution, they carried a whiff of suspicion.
39. The prosecution turned to circumstantial evidence.
40. In Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, the Court of Appeal stated as follows on reliance on circumstantial evidence:
“However, it is a truism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -
“It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”
41. In the same case, the Court of Appeal set out the test to be applied in considering whether circumstantial evidence placed before a court can support a conviction. The court stated:
“Before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the Subject person, and to no other person, as the perpetrator of the offence. In Abanga alias Onyango v R Cr. App. No 32 of 1990, this court set out the conditions as follows:
“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:
(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Subject;
(iii) the circumstances taken cumulatively, should from 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 none else.”
42. The prosecution brought in DNA evidence in an effort to lace the accused at the scene. It was prosecution’s case that some DNA was found on clothes belonging to the accused which the police said they recovered them while having blood stains.
43. The prosecution did not produce evidence s to how they ascertained that the blue jumper and jeans trousers belonged to the accused. Simply stating that the jumper was identified as belonging to the accused and that jeans were found in his house was not enough to establish that indeed these belonged to the accused. This was more so after the I.O confirmed that a cap that was marked as belonging to the accused person belonged to Mary Katile, a person the prosecution did not call as a witness. Yet , in addition to her cap being found near the deceased, she was said to have been found sleeping around there.
44. There was the blood sample alleged to have been cotton swabbed from the feet of the accused person together with other blood sample. The I.O did not produce any evidence to support his claim that the accused’s feet were blood stained and that a medic of any sort collected samples of blood from the accused’s feet or from the accused at all. There was no evidence that he had was taken to any hospital for the collection of the samples.
45. The accused was arrested on 1st November 2021. The exhibits were taken to government chemist on 4th November 2021. The I.O did not tell the court when he obtained the blood samples from the accused
46. There was the bold sample from the deceased. The I.O told the court that he obtained blood from the deceased. However, the post mortem report clearly indicated that no samples were collected. So where and when did he obtain the blood of the deceased? Who gave him the samples? From which hospital by which medic?
47. Curiously the exhibit memo states that all the exhibits were found on 1st November 2021 at Kiluluini village by no. 62375 CPL Peter Mutua .If the blood from the deceased was collected on 1/11/2021 who did so?
48. Mary Katile was found sleeping near the church where the blood-stained blue jumper was found. Her cap was found next to the body. What did she know and why was she not called as a witness?
49. The prosecution’s case is set on circumstantial evidence, yet there appears to have been other evidence that would have explained the presence of the blood on the clothes that were found .
50. There was no inventory to confirm where the items were found. In this case it was necessary for the accused to account for what was allegedly found in his house because that was the only evidence against him. Other items were said to have been found elsewhere, and were not sufficiently linked to the accused person
51. The I.O said that he found when the assistant chief had already arrested Mary Katile. Witnesses said that she was sleeping outside the church and no one woke her up. There is no explanation as to how Mary stopped being a suspect and became a witness, and why even then she did not testify.
52. What all these demonstrate is that the was poorly investigated. The key evidence that could place accused at the scene was incredible. The DNA testimony is not credible to the extent that the I.O could not account for how he obtained the samples from the accused and the deceased presented for DNA.
53. It is instructive that the family of the deceased did not accept that the accused could have killed the deceased. They had their own suspicions which the I.O did not follow up.
54. There are gaps in this case. Uncalled witnesses, unaccounted for DNA samples, loose ends leading to other suspects, leading to the conclusion that none of the evidence unerringly points at the accused person as the one who committed this offence. This is not evidence that can sustain a conviction.
55. In the circumstances, I find that the charge has no legs to stand on , it is dismissed. I enter a finding of not guilty pursuant to s. 306(1) of the Criminal Procedure Code. The accused is acquitted and should be set at liberty unless otherwise legally held.
Dated signed and delivered virtually this 15th August 2025
Mumbua T Matheka
Judge
Chrispol Court Assistant
Mr. Hassan for accused
Accused present at Makueni Main Prison
Ms. Otulo for the state
.