REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
CRIMINAL CASE NO.E009 OF 2023
REPUBLIC - - - - STATE COUNSEL
VERSUS
ERICK MUNYAO MAKUTHI - - - ACCUSED
JUDGMENT
1. Erick Munyao Makuthi was charged with Murder Contrary to Section 203 as read with Section 204 of the Penal Code . It was alleged that on 18 th May, 2023 at 2100 HRS at Muatineni Village Muani Location, Mukea Sub-County within Makueni County he murdered Margaret Mumbua Makuthi age 75 years old.
2. He entered plea of not guilty on 27 th June, 2023 and was represented by Mr. Judah Kioko.
3. The case for the prosecution is that the accused is one of the children of the deceased. He was living at home with his mother, and PW5 Cosmas Muuo. Cosmas is a nephew of the accused and a grandson of the deceased person. At the material time he was a student.
4. PW5 testified that on 18 th March, 2023 he had gone to graze the nzau ( the bull ). He came home about 9:00 p.m. and found his uncle Eric, the accused person arguing with the mother ( PW5’s grandmother (shosho) – in the mother’s house. That shosho had made githeri for supper and Eric was shouting “ umetuletea githeri tukule kwani tumekuwa nguruwe? ” (Are we pigs that you bring us githeri to eat?).
He said shosho did not respond. He said the accused chased him away –and he ran away to the home of a neighbor whose name he could not recall. Using the neighbour’s phone he rang his uncle James Kitili who lived in Mashuru and told him that his uncle Eric had chased him out of the home.
5. He testified that he came back later and found the accused who told him he was going to Sultan. He tried to open Shosho’s door, it was hard – so he went to his room and slept.
6. The next morning, he went to Shosho’s house and pushed the door harder. He saw blood, then he saw her body on that ground. He saw she had an injury on the head. He did not see a weapon and he went and reported to his uncle Onesmus Mwongela. They reported at Sultan Hamud Police Station.
7. He said there was a time when Erick had sold all his mother’s goats but could not recall whether the matter was reported to the police station.
8. He said that when he came home on the material night he found his grandma and uncle quarreling. That he ran to the neighbour’s in fear but did not tell them that there was trouble at home. That he used Mama Mutisya’s phone to call the uncle – that where he went, it took him 15 minutes to get there. He said it was at night and it was dark. He said he did not see his uncle hit his grandmother. He did not know what happened to her, and only found out in the morning.
9. PW1, Caroline Kanini Makuthi , a daughter of the deceased was doing her business in Emali. On 19 th May, 2023 she received a call from her brother Mwongela telling her that he had received a report from Cosmas her nephew that their mother had been killed. She said at the time of killing her mother was living with her brothers Mwongela and Munyao and the boy Cosmas. She said when she went home, she found that her mother had been killed and that her head was not there.
10. Her testimony was that it was the accused who had done it because he used to threaten he would kill her – that he would tell her he would hit her head until she died – she testified that accused told them he had killed their mother, that he even showed them a Jembe – that the Jembe was not blood stained. She testified that he had cleaned it.
On cross-examination she said that she got home when the incident had already happened. She said that accused had once sold their mother’s goats, was arrested and released.
11. PW2, Joseph Makuthi Mativo , the husband to Margaret Mumbua, (the deceased) and the father to the accused testified how his daughter Kanini had called him, On 19 th May, 2023 he was working away from home – He said there was no way he could not recall the 19 th May, 2023 at 7:00 a.m. – she told him “ you are there - and your wife has been killed by Munyao… .”He came home. He saw his wife lying on the floor head facing the door, he was met by her blood and her brains. He said he could see that she had been hit on the head. He said they met there with his daughter Kanini, Junior, Mwongela his son.
12. Junior ( Cosmas ) and Mwongela reported to the police who came for the body. About the accused – he said that the accused had brought fujo to home because of drinking illicit brew going by the name “ kapungulutu ” and “ eating ” his things including bhang and going to demand food from his mother – who told him that he was not her husband. He said his son the accused had threatened to kill even him.
13. His sorrow and grief were evident as he testified – the pain of losing a wife – and having to face his son as the alleged killer.
14. On cross-examination he said when he arrived home he found the body but the police had not arrived.
15. No.666532 CPL. Philip Rotich who was at DCI Mukea at the material time testified that he reported on duty at 8:00 a.m. on 19 th May, 2023 and learnt of a murder incident report at Sultan Hamud Police Station within Mukea. Together with Crime officers they proceeded to Muatineni village, the home of Mzee Makuthi.He reiterated that the report had been made by the grandson of the deceased.
16. He said the accused person had been arrested. That he interrogated him, and he appeared to be in shock, scared, worried. He said the accused showed them a Jembe saying it was the one he had used to kill his mother.
He repeated what the grandson told him – that the accused threatened him and he ran away to one mzee Kitili’s home – that there was no sign of anyone in the home, and he went back home in fear. That while near his grandmother’s house the solar light was on. He saw that it being put off he saw his uncle the accused leave the door, close and leave. That he came home, knocked on his shosho’s door – was in fear. He went to sleep.
17. That in the morning when he went to the house he knocked – pushed the door it opened and he saw what he saw. He ran to Sultan Hamud and reported to his uncle Onesmus Mwongela. They both reported to the police. Body was taken to the mortuary – cause of death – injury caused by blunt trauma, hemorrhage.
On cross-examination, he told the court that the accused was arrested by members of the public and police at Sultan Hamud. He said he did not know where the accused was arrested for the arrest but that it was said he was found in a kibanda hiding.
18. He said there was a jembe he was given by the accused person. He said the jembe did not have blood on it, because death was caused by a single blow to the head. He said he did not record a confession because the accused was admitting entry scene of the facts. He said he linked the accused to the death through the boy who said that he saw the light at his grandmother’s being put off by the accused.
He said that it was the evidence of Cosmas that was being used to link the accused to the death.
19. PW4, Onesmus Mwongela Makuthi , son of the deceased, brother to accused, uncle to Cosmas, told the court on 19 th May, 2023 he was working in Sultan Hamud. His nephew Cosmas went there and told her Erick had killed their mother. He said it was at 6:30 a.m. when he was told this. He went and reported at Sultan Hamud Police Station.
He said accused had hit his mother on the head with a jembe. He said he did not know why Erick hit his mother with a jembe – he said he was not aware of any quarrel between them.
20. PW6, Dr. Emmanuel Musyoki Daudi conducted the post-mortem on the body of female around 70 years old – she had a depressed skull – fracture of the left parietal lobe – massive cerebral hemorrhage right side of the brain where the skull fracture.
21. In his defence accused made an unsworn statement of defence. He denied the charge. He told the court that on 18 th May, 2023 at 9:00 p.m. he was at Sultan Hamud town and not at home. He said he was arrested from his place of work by police officers who told him about the death of his mother. That he has not arrested by police/DCI. He said he was not arrested with any weapon.
22. His father wanted him to leave home and that is my they planted this case on him. He told the court that all the evidence before court was his.
23. He said his father hated him because when he wanted to construct – house his father demanded that he pays money to him. His father wanted him to leave home and that is why they planted this case on him.
He told the court that all the evidence before court was his. The defence closed. Neither party filed any submissions.
Analysis and Determination
24. I have carefully considered the evidence on record. The only issue for determination is whether the prosecution has proved the case against the accused beyond a reasonable doubt. The accused faces a murder of charge – whose ingredients are set out under Section 203 of the Penal Code, read together with Section 206 of the Penal Code .
25. The prosecution must establish that the accused person through an unlawful act – and with malice aforethought – caused the death of his mother Margaret Mumbua Makuthi. According to the prosecution witnesses the cause of death was severe head injury caused by a single blow on the head with a blunt object.
26. No one saw the accused person inflict this bow on his mother’s head on the material night. The prosecution is relying on circumstantial evidence .What we have is the testimony of PW6 Cosmas Muuo whose only testimony is that he found his grandmother (the deceased) and his uncle – the accused quarreling.
27. However, he says that he never heard his grandmother respond hence there was no altercation between the deceased and the accused person. The said Cosmas told the court that the accused person threatened him and chased him out of the homestead and that he went to the home of someone he would not recall but made a phone call from the phone of someone whose home he could recall – further that he told his uncle – the one he rang that night that the accused had chased him out of the homestead – but apparently there was no response/no action. None of these witnesses testified to confirm the testimony given by PW5 in view of the evidence of Investigation officer.
28. The investigating officer on his part said that PW5 went to the home of one Kitili, knocked, no one responded and he went back home. That he hid behind a building and saw the accused person put off the solar light at his grandma’s and leave. This evidence was not given to court by the PW5 and hence there is no way of knowing who the PW5 is alleged to have seen that night. This is because that evidence was not given by the person who is said to have seen the accused, and hence it remained hearsay on the part of the investigating officer, hence not admissible as against the accused person.
29. The PW5 never saw the accused hit his grandma, never heard the accused threaten his grandma that night or any other day before that as and there is no evidence that he actually ran away to anyone’s homestead that night – his evidence on that and that of the investigating officer are contradictory and unreliable.
30. All the other witnesses gave hearsay evidence with respect to what is alleged to have happened that night. The accused was a suspect. He was suspected by his sister and the daughter to deceased who was not home when it happened. She based her suspicions allegations that the accused person used to threaten their mother, allegations that were not supported by any evidence; the accused’s father and husband to the deceased based his suspicion on the accused’s alleged conduct of taking illicit alcohol and bhang ; that the abuse of these substances had led the accused to commit the said offence, but again there was no evidence to support those allegations. The other brother Mwongela told the court that he was not aware of any quarrels between the accused and his mother.
31. That PW5 spoke of only one incident where accused complained about the food that was available to eat. The incident about the goats being sold was not reported/or testified to as one that was life threatening to the deceased from the accused. So clearly even this did not point to any motive for the accused to kill his mother.
32. The investigating officer did not conduct any evidence to connect the accused with the death. He testified that the accused person gave him a Jembe that he claimed he had used to kill his mother. He said he did not take it for forensics because there was no blood on it. Evidently this was a serious gap as DNA is not obtained only from blood. If indeed the Jembe had struck the deceased as alleged, he had an obligation as the investigation officer to present it for forensic investigations as DNA could have been from the hair, brain matter or anything picked from the contact with the deceased’s head. failure to have it examined to confirm that indeed it was the weapon that had caused the injury on the deceased left a gap in the case for the prosecution.
33. The accused told the court that he was arrested from his place of work. The prosecution did not establish where the accused was arrested from and who arrested him to confirm that he was hiding as alleged.– was he on the run or at his place of work? He says he was at his place of work. He was not hiding – The prosecution did not call the arresting officer or the persons alleged to have flushed the accused from his hiding place.
34. There was no investigation of the scene of crime. No crime scene personnel visited the scene and it is apparent that the police and the family drew quick conclusion that it was the accused who did it. He assumed that the accused had committed the offence – he drew conclusions of guilt from the demeanour of the accused person ( worry, sorrow) – but he did not have a confession. He said there was no confession because the accused did not admit all the facts.
35. in the end what is before court is a case of circumstantial evidence. The accused in his defence denied the offence told the court he was not at home at the material night. Circumstantial evidence must point to the guilt – of the accused person – and leave no room for any other conclusion.
36. Mere suspicion however strong cannot justify a conviction See R –v- Kipkering Arap Koske and Another [1949] EACA 135
“ To justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypotheses than that of his guilt .”
see also Joan Chebii Sawe –v- R Court of Appeal Nairobi CR. Appeal No.2/2002 . Suspicion however strong cannot be the basis of a conviction .
37. It is unfortunate that this family lost its matriarch. Their son, sibling was the key suspect but the evidence placed before me though circumstantial was insufficient to establish that the accused person killed his mother on the night of 18 th May, 2023 . The evidence cannot found a conviction on the standard of beyond a reasonable doubt.
38. In the circumstances the charge of murder against the accused person is dismissed. The accused person is acquitted and is to be set at liberty unless otherwise legally held.
Judgment read, signed and delivered virtually at Kabarnet this 12 th June 2026
Mumbua . T. MATHEKA
JUDGE
In the presence of :
- Chrispol Court Assistant
- Accused
- Musyoki for the State
- Judah Kioko for the Accused
Judgment HCCRC E009 2023 Page 2 of 2
IN THE HIGH COURT OF KENYA AT MAKUENI
CRIMINAL CASE NO.E009 OF 2023
REPUBLIC - - - - STATE COUNSEL
VERSUS
ERICK MUNYAO MAKUTHI - - - ACCUSED
JUDGMENT
1. Erick Munyao Makuthi was charged with Murder Contrary to Section 203 as read with Section 204 of the Penal Code . It was alleged that on 18 th May, 2023 at 2100 HRS at Muatineni Village Muani Location, Mukea Sub-County within Makueni County he murdered Margaret Mumbua Makuthi age 75 years old.
2. He entered plea of not guilty on 27 th June, 2023 and was represented by Mr. Judah Kioko.
3. The case for the prosecution is that the accused is one of the children of the deceased. He was living at home with his mother, and PW5 Cosmas Muuo. Cosmas is a nephew of the accused and a grandson of the deceased person. At the material time he was a student.
4. PW5 testified that on 18 th March, 2023 he had gone to graze the nzau ( the bull ). He came home about 9:00 p.m. and found his uncle Eric, the accused person arguing with the mother ( PW5’s grandmother (shosho) – in the mother’s house. That shosho had made githeri for supper and Eric was shouting “ umetuletea githeri tukule kwani tumekuwa nguruwe? ” (Are we pigs that you bring us githeri to eat?).
He said shosho did not respond. He said the accused chased him away –and he ran away to the home of a neighbor whose name he could not recall. Using the neighbour’s phone he rang his uncle James Kitili who lived in Mashuru and told him that his uncle Eric had chased him out of the home.
5. He testified that he came back later and found the accused who told him he was going to Sultan. He tried to open Shosho’s door, it was hard – so he went to his room and slept.
6. The next morning, he went to Shosho’s house and pushed the door harder. He saw blood, then he saw her body on that ground. He saw she had an injury on the head. He did not see a weapon and he went and reported to his uncle Onesmus Mwongela. They reported at Sultan Hamud Police Station.
7. He said there was a time when Erick had sold all his mother’s goats but could not recall whether the matter was reported to the police station.
8. He said that when he came home on the material night he found his grandma and uncle quarreling. That he ran to the neighbour’s in fear but did not tell them that there was trouble at home. That he used Mama Mutisya’s phone to call the uncle – that where he went, it took him 15 minutes to get there. He said it was at night and it was dark. He said he did not see his uncle hit his grandmother. He did not know what happened to her, and only found out in the morning.
9. PW1, Caroline Kanini Makuthi , a daughter of the deceased was doing her business in Emali. On 19 th May, 2023 she received a call from her brother Mwongela telling her that he had received a report from Cosmas her nephew that their mother had been killed. She said at the time of killing her mother was living with her brothers Mwongela and Munyao and the boy Cosmas. She said when she went home, she found that her mother had been killed and that her head was not there.
10. Her testimony was that it was the accused who had done it because he used to threaten he would kill her – that he would tell her he would hit her head until she died – she testified that accused told them he had killed their mother, that he even showed them a Jembe – that the Jembe was not blood stained. She testified that he had cleaned it.
On cross-examination she said that she got home when the incident had already happened. She said that accused had once sold their mother’s goats, was arrested and released.
11. PW2, Joseph Makuthi Mativo , the husband to Margaret Mumbua, (the deceased) and the father to the accused testified how his daughter Kanini had called him, On 19 th May, 2023 he was working away from home – He said there was no way he could not recall the 19 th May, 2023 at 7:00 a.m. – she told him “ you are there - and your wife has been killed by Munyao… .”He came home. He saw his wife lying on the floor head facing the door, he was met by her blood and her brains. He said he could see that she had been hit on the head. He said they met there with his daughter Kanini, Junior, Mwongela his son.
12. Junior ( Cosmas ) and Mwongela reported to the police who came for the body. About the accused – he said that the accused had brought fujo to home because of drinking illicit brew going by the name “ kapungulutu ” and “ eating ” his things including bhang and going to demand food from his mother – who told him that he was not her husband. He said his son the accused had threatened to kill even him.
13. His sorrow and grief were evident as he testified – the pain of losing a wife – and having to face his son as the alleged killer.
14. On cross-examination he said when he arrived home he found the body but the police had not arrived.
15. No.666532 CPL. Philip Rotich who was at DCI Mukea at the material time testified that he reported on duty at 8:00 a.m. on 19 th May, 2023 and learnt of a murder incident report at Sultan Hamud Police Station within Mukea. Together with Crime officers they proceeded to Muatineni village, the home of Mzee Makuthi.He reiterated that the report had been made by the grandson of the deceased.
16. He said the accused person had been arrested. That he interrogated him, and he appeared to be in shock, scared, worried. He said the accused showed them a Jembe saying it was the one he had used to kill his mother.
He repeated what the grandson told him – that the accused threatened him and he ran away to one mzee Kitili’s home – that there was no sign of anyone in the home, and he went back home in fear. That while near his grandmother’s house the solar light was on. He saw that it being put off he saw his uncle the accused leave the door, close and leave. That he came home, knocked on his shosho’s door – was in fear. He went to sleep.
17. That in the morning when he went to the house he knocked – pushed the door it opened and he saw what he saw. He ran to Sultan Hamud and reported to his uncle Onesmus Mwongela. They both reported to the police. Body was taken to the mortuary – cause of death – injury caused by blunt trauma, hemorrhage.
On cross-examination, he told the court that the accused was arrested by members of the public and police at Sultan Hamud. He said he did not know where the accused was arrested for the arrest but that it was said he was found in a kibanda hiding.
18. He said there was a jembe he was given by the accused person. He said the jembe did not have blood on it, because death was caused by a single blow to the head. He said he did not record a confession because the accused was admitting entry scene of the facts. He said he linked the accused to the death through the boy who said that he saw the light at his grandmother’s being put off by the accused.
He said that it was the evidence of Cosmas that was being used to link the accused to the death.
19. PW4, Onesmus Mwongela Makuthi , son of the deceased, brother to accused, uncle to Cosmas, told the court on 19 th May, 2023 he was working in Sultan Hamud. His nephew Cosmas went there and told her Erick had killed their mother. He said it was at 6:30 a.m. when he was told this. He went and reported at Sultan Hamud Police Station.
He said accused had hit his mother on the head with a jembe. He said he did not know why Erick hit his mother with a jembe – he said he was not aware of any quarrel between them.
20. PW6, Dr. Emmanuel Musyoki Daudi conducted the post-mortem on the body of female around 70 years old – she had a depressed skull – fracture of the left parietal lobe – massive cerebral hemorrhage right side of the brain where the skull fracture.
21. In his defence accused made an unsworn statement of defence. He denied the charge. He told the court that on 18 th May, 2023 at 9:00 p.m. he was at Sultan Hamud town and not at home. He said he was arrested from his place of work by police officers who told him about the death of his mother. That he has not arrested by police/DCI. He said he was not arrested with any weapon.
22. His father wanted him to leave home and that is my they planted this case on him. He told the court that all the evidence before court was his.
23. He said his father hated him because when he wanted to construct – house his father demanded that he pays money to him. His father wanted him to leave home and that is why they planted this case on him.
He told the court that all the evidence before court was his. The defence closed. Neither party filed any submissions.
Analysis and Determination
24. I have carefully considered the evidence on record. The only issue for determination is whether the prosecution has proved the case against the accused beyond a reasonable doubt. The accused faces a murder of charge – whose ingredients are set out under Section 203 of the Penal Code, read together with Section 206 of the Penal Code .
25. The prosecution must establish that the accused person through an unlawful act – and with malice aforethought – caused the death of his mother Margaret Mumbua Makuthi. According to the prosecution witnesses the cause of death was severe head injury caused by a single blow on the head with a blunt object.
26. No one saw the accused person inflict this bow on his mother’s head on the material night. The prosecution is relying on circumstantial evidence .What we have is the testimony of PW6 Cosmas Muuo whose only testimony is that he found his grandmother (the deceased) and his uncle – the accused quarreling.
27. However, he says that he never heard his grandmother respond hence there was no altercation between the deceased and the accused person. The said Cosmas told the court that the accused person threatened him and chased him out of the homestead and that he went to the home of someone he would not recall but made a phone call from the phone of someone whose home he could recall – further that he told his uncle – the one he rang that night that the accused had chased him out of the homestead – but apparently there was no response/no action. None of these witnesses testified to confirm the testimony given by PW5 in view of the evidence of Investigation officer.
28. The investigating officer on his part said that PW5 went to the home of one Kitili, knocked, no one responded and he went back home. That he hid behind a building and saw the accused person put off the solar light at his grandma’s and leave. This evidence was not given to court by the PW5 and hence there is no way of knowing who the PW5 is alleged to have seen that night. This is because that evidence was not given by the person who is said to have seen the accused, and hence it remained hearsay on the part of the investigating officer, hence not admissible as against the accused person.
29. The PW5 never saw the accused hit his grandma, never heard the accused threaten his grandma that night or any other day before that as and there is no evidence that he actually ran away to anyone’s homestead that night – his evidence on that and that of the investigating officer are contradictory and unreliable.
30. All the other witnesses gave hearsay evidence with respect to what is alleged to have happened that night. The accused was a suspect. He was suspected by his sister and the daughter to deceased who was not home when it happened. She based her suspicions allegations that the accused person used to threaten their mother, allegations that were not supported by any evidence; the accused’s father and husband to the deceased based his suspicion on the accused’s alleged conduct of taking illicit alcohol and bhang ; that the abuse of these substances had led the accused to commit the said offence, but again there was no evidence to support those allegations. The other brother Mwongela told the court that he was not aware of any quarrels between the accused and his mother.
31. That PW5 spoke of only one incident where accused complained about the food that was available to eat. The incident about the goats being sold was not reported/or testified to as one that was life threatening to the deceased from the accused. So clearly even this did not point to any motive for the accused to kill his mother.
32. The investigating officer did not conduct any evidence to connect the accused with the death. He testified that the accused person gave him a Jembe that he claimed he had used to kill his mother. He said he did not take it for forensics because there was no blood on it. Evidently this was a serious gap as DNA is not obtained only from blood. If indeed the Jembe had struck the deceased as alleged, he had an obligation as the investigation officer to present it for forensic investigations as DNA could have been from the hair, brain matter or anything picked from the contact with the deceased’s head. failure to have it examined to confirm that indeed it was the weapon that had caused the injury on the deceased left a gap in the case for the prosecution.
33. The accused told the court that he was arrested from his place of work. The prosecution did not establish where the accused was arrested from and who arrested him to confirm that he was hiding as alleged.– was he on the run or at his place of work? He says he was at his place of work. He was not hiding – The prosecution did not call the arresting officer or the persons alleged to have flushed the accused from his hiding place.
34. There was no investigation of the scene of crime. No crime scene personnel visited the scene and it is apparent that the police and the family drew quick conclusion that it was the accused who did it. He assumed that the accused had committed the offence – he drew conclusions of guilt from the demeanour of the accused person ( worry, sorrow) – but he did not have a confession. He said there was no confession because the accused did not admit all the facts.
35. in the end what is before court is a case of circumstantial evidence. The accused in his defence denied the offence told the court he was not at home at the material night. Circumstantial evidence must point to the guilt – of the accused person – and leave no room for any other conclusion.
36. Mere suspicion however strong cannot justify a conviction See R –v- Kipkering Arap Koske and Another [1949] EACA 135
“ To justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypotheses than that of his guilt .”
see also Joan Chebii Sawe –v- R Court of Appeal Nairobi CR. Appeal No.2/2002 . Suspicion however strong cannot be the basis of a conviction .
37. It is unfortunate that this family lost its matriarch. Their son, sibling was the key suspect but the evidence placed before me though circumstantial was insufficient to establish that the accused person killed his mother on the night of 18 th May, 2023 . The evidence cannot found a conviction on the standard of beyond a reasonable doubt.
38. In the circumstances the charge of murder against the accused person is dismissed. The accused person is acquitted and is to be set at liberty unless otherwise legally held.
Judgment read, signed and delivered virtually at Kabarnet this 12 th June 2026
Mumbua . T. MATHEKA
JUDGE
In the presence of :
- Chrispol Court Assistant
- Accused
- Musyoki for the State
- Judah Kioko for the Accused
Judgment HCCRC E009 2023 Page 2 of 2