INTRODUCTION
1. The accused person Eunice Mwikali Kyalo was charged on 12 th June 2023 with the offence of Murder contrary to Section 203 as read with 204 of the Penal Code.
2. The particulars of the offence were that on the 21st February 2023 jointly with others not before the court at Mathare Bondeni area Starehe Sub-county, within Nairobi County Murdered PATRICK MULIUNGI MUINGI.
3. The accused person pleaded not guilty to the charge and the matter was set down for hearing which commenced on the 27 th January 2025.
4. The prosecution called a total of 10 witnesses in support of the murder information. However, the evidence was largely circumstantial as none of the witnesses alleged to have witnessed the accused stabbing the deceased.
SUMMARY OF THE PROSECUTION’S CASE
5. PW1 Antony Kisasi Mungui stated that he resided in Huruma Estate and worked as a casual labourer at construction sites in Nairobi. On 21st February 2023, he was at work at NYS Muthaiga and left duty at about 5.00 p.m., proceeding to Kosovo area in Mathare where he lived. He went to a club in Bondeni known as “Kwa Davie” where he found his younger brother, the deceased Patrick Muriungi, seated outside the bar in the company of two ladies. One of those ladies would later turn out to be the accused person.
6. He went on to state that he identified the ladies as Janet and Muli, whom he had known before. They greeted each other and he left for home at about 7.00 p.m., leaving the deceased appearing normal and not intoxicated.
7. PW1 testified that he and the deceased had been living together for about two weeks. The witness told the court that the deceased did not return home that night.
8. PW1 went to work the following morning and upon returning in the evening, he found that the deceased had still not returned. He went back to the place where he had last seen him to go and find out what may have happened to him. Pw1 met Janet, who asked him if he knew that the deceased had been injured.
9. According to the witness, Janet told him the deceased had been stabbed by a lady known as Mwikali. Pw1 told Janet that he had not heard about it.
10. Pw1 decided to go home and on his way, he met Maxwell Kondo and two other young men who informed him they had hone to see the deceased at Kenyatta National Hospital but they did not find him. PW1 told them that he would go to Kenyatta National Hospital the following day at 1.00 p.m to see him.
11. However, on the following day at about 9.00 a.m., PW1 received a call from a doctor at Kenyatta National Hospital asking him whether he knew Patrick Muriungi and requesting that someone be sent directly to the Kenytatta Nattional Hospital ICU unit to see him.
12. PW1 contacted Elizabeth Mwende Mutua, gave her the doctor’s number, and she proceeded to the hospital. She later called and informed PW1 that the doctors had confirmed Patrick had passed on.
13. That evening, PW1, Elizabeth Mwende, and Gladys Mwende met at Mathare Police Station and reported the matter.
14. Pw1 and the rest were advised to confirm from the hospital whether the deceased was dead or alive. PW1 stated that his brother Richard went to Kenyatta National Hospital and confirmed the death. The police then allowed the family to begin funeral arrangements.
15. PW1 testified that he never saw the deceased’s body.
16. He further stated that he knew Mwikali and identified her as the accused person in the dock.
17. During cross-examination by Mr. Polycarp Agoi counsel for the accused, PW1 stated that although he knew Mwikali, he got a description of her from Janet and he had never seen her with the deceased brother.
18. He went further to state that he did not attend any identification parade after Mwikali was arrested.
19. He admitted that he had never seen Mwikali with the deceased. He confirmed that he recorded a statement at the police station in which he stated that he left the deceased in the company of two women and two men.
20. He clarified that the waitress at the bar was Maureen, not Janet, and admitted that he never asked Maureen about the two men. PW1 admitted that his brother used to drink alcohol and that on the material night he only greeted him and left. He stated that Janet never recorded a statement.
21. He further admitted that in his police statement he recorded that the deceased was stabbed by two men. He told the court that what he recorded in his statement was the truth and that what he had been told was that Mwikali stabbed the deceased, but he would stand by the statement he gave to the police.
22. Pw1 admitted to the court that he had lied in his oral testimony and apologized to the court. He confirmed that he did not witness Mwikali stabbing the deceased and did not know the two men involved.
23. On re-examination, PW1 stated that Janet told him that his brother had been stabbed by Mwikali, which he acknowledged was hearsay.
24. Pw1 reiterated that he recorded a statement with the police and that according to that statement, Patrick and Mwikali were attacked by two men and the deceased was stabbed.
25. He clarified that his testimony in court regarding Mwikali stabbing the deceased was a slip of the tongue, that he did not witness the incident, and that the statement he gave to the police reflected the true position.
26. PW2 Maxwell Kondo Muingi testified that he lived in Mathare North Area 3 and worked as a casual labourer in a construction site.
27. On 21st February 2023 at about 7.30 p.m., while walking home, he passed through Bondeni where he met the deceased and his brother Patrick Muriungi, seated outside a club known as “Kwa Davo.” They sat and chatted until about 9.00 p.m. when PW2 decided to go home.
28. He gave the deceased Kshs. 20/= and left him in the company of Mwikali, whom he described as the deceased’s friend. He testified that at the time there were many other people present at the club.
29. He further testified that the deceased was sober and not drinking, although they smoked. He went home and slept.
30. On the following day at about 1.00 p.m. while at work, he was informed by Cyrus Nzomo Mutemi that his brother had been injured and was admitted at Kenyatta National Hospital after being stabbed the previous night.
31. PW2 continued working until about 6.00 p.m., after which he went to Kenyatta National Hospital with Cyrus Nzomo and Gideon Kahinga, arriving at about 8.00 p.m.
32. They were informed that the deceased had been taken to theatre. The following day PW2 did not visit the hospital as he was working but he later received a call from his wife informing him that the deceased had died and was at the morgue.
33. Pw2 identified Mwikali as the accused in court and stated that he only heard that the deceased was injured while in Mwikali’s company.
34. On cross-examination, PW2 stated that he learnt that the deceased was injured while walking home with Mwikali but could not explain the circumstances of the incident. He admitted that he did not know whether Mwikali stabbed the deceased and confirmed that Mwikali was the deceased’s girlfriend and that they had been friends for some time without any known disagreements.
35. He testified that the deceased drank alcohol and that on the material night he had taken some alcohol but was not drunk. He stated that he heard Mwikali took the deceased to her house and that they slept there.
36. Pw2 testified that he did not know why the deceased was not taken to hospital that night. He further stated that Mwikali later took the deceased to hospital together with his brother, and opined that her actions showed she did not intend to kill him. He went on to state that the incident occurred around midnight and suggested that intoxication may have delayed hospital attendance.
37. On re-examination, PW2 reiterated that he left the deceased in a good state in Mwikali’s company.
38. Pw3 was Elizabeth Mwende who testified that on 22 nd February 2023 she was at work when she received a call informing her that her brother- in -law was in Hospital. They went to Kenyatta National Hospital with the husband and found the deceased had been taken to Intensive Care Unit (ICU). The two were advised to return the following day. The following day on 23 rd February 2023 she testified that she met the accused in the company of her mother and she suggested they go to the hospital together.
39. According to Pw3 they went to the Hospital only to find that the deceased had died.
40. PW4 Gladys Mwende Vundi testified that she lived in Huruma Casanova area, and did casual labour.
41. On 23rd February 2023 in the morning, she received a call from her uncle informing her that Patrick Muriungi had been injured and was admitted at Kenyatta National Hospital. Later, the same day another uncle, Augustus Musya, informed her that the deceased had passed on. They went to the deceased’s house in Mathare where neighbors informed them that he had a girlfriend living nearby.
42. The girlfriend was identified as the accused Elizabeth Mwikali whom they were able to trace and she narrated that on the night of the incident at about 10.00 p.m., while walking home with the deceased, they met two men who questioned the deceased about her identity.
43. After the deceased confirmed to the men that she was his girlfriend, the two men assaulted the deceased prompting Mwikali to flee and hide.
44. Upon returning to the scene of attack she found the deceased injured and was on the ground. She stated that she called a street boy who assisted her in taking him home.
45. When the two got home the deceased complained of stomach pain and they slept until 5.00 a.m when she hired a motorcycle to take him to Blue House Clinic, from where they were referred to Kenyatta National Hospital. The accused told PW4 that she took the deceased to Kenyatta and left him there undergoing treatment.
46. PW4 testified that Mwikali informed her that she had the deceased’s phone and that she had removed his clothes and soaked them in water. Mwikali later brought the clothes, which were a white T-shirt bearing the inscription “Lakers,” a cap, and a phone. The clothes were blood-stained.
47. PW4, together with Augustus, reported the matter to Mathare Police Station and were issued with an OB number. They were advised to confirm the death of the deceased at Kenyatta National Hospital before the police could take action.
48. On 24th February 2023, they went to the hospital and viewed the body of the deceased then they returned to the police to inform them as directed.
49. Upon inquiry by the police whether they knew Mwikali, PW4 and Elizabeth went and brought Mwikali to the police station together with the clothes and phone.
50. PW4 further testified that she had previously seen Mwikali with the deceased and identified her as the accused in court. She later identified the body at Kenyatta National Hospital for post-mortem purposes.
51. During cross-examination, PW4 stated that she did not suspect foul play and that her knowledge in relation to the events leading to the deceased’s death was entirely based on Mwikali’s narration.
52. She testified that she believed Mwikali was truthful and confirmed that she was the deceased’s girlfriend and that there were no known disputes between them. She stated that she did not understand why Mwikali took the deceased home instead of the hospital and opined that Mwikali’s only fault was failing to take him to hospital promptly. She stated that she had no evidence that Mwikali stabbed the deceased.
53. PW5, Doris Kerubo, a clinical officer registered under number 8038, testified that she held a Diploma in Clinical Medicine and a BSc. in Health Systems Management and had worked with Médecins Sans Frontières (MSF) for six years.
54. She produced a medical report dated 24th March 2023 prepared at MSF Mathare relating to the patient Patrick Mulyungi, whom she received at the facility on 22nd February 2023 at 5.42 a.m.
55. The patient had a history of stab wounds on the upper back and left side of the abdomen, was actively bleeding, restless, and in pain. She testified that the patient went to the hospital accompanied by a lady friend who claimed the patient had fallen on a metallic object and was passing blood through the rectum.
56. PW5 recorded vital signs noting a heart rate of 65 beats per minute, unrecordable blood pressure due to blood loss, haemoglobin of 13.2, and blood sugar of 1.2.
57. She diagnosed a penetrating abdominal stab wound with perforation, hypotension, and hypoglycaemia. She administered emergency treatment including normal saline, morphine 10 mg, tetanus toxoid, 56% dextrose, and tranexamic acid, and referred the patient to Kenyatta National Hospital. She produced the medical report as an exhibit.
58. During cross-examination PW5 stated that her BSc. was not a medical qualification and that stabbing incidents were common in Mathare.
59. She admitted that she did not produce the referral form or triage form used in preparing the report and could not recall the appearance of the patient’s clothes.
60. She stated that the patient later died of sepsis which she acknowledged could have been prevented. On re-examination, she reiterated that the patient arrived at 5.42 a.m. was bleeding and that the lady accompanying him gave contradictory information. The witness stated that sepsis can develop within six hours of injury.
61. PW6 Dr. Edwin Walonga, testified as an expert witness in pathology. He stated that he is a Senior Lecturer in Pathology at Maseno University and holds an MBChB and a Masters degree in Medicine. He testified that he is registered as a specialist pathologist with the Kenya Medical Practitioners and Dentists Council and has practiced pathology for thirteen years. At the material time, he was a lecturer at the University of Nairobi. He conducted the post-mortem examination jointly with Dr. Linda Ochodo, a trainee pathologist, under his supervision.
62. He went on to state the post-mortem was conducted on 10th March 2023 at Kenyatta National Hospital on the body of an African male identified as Patrick Mulyungi by Antony Kisasi, the deceased’s brother and Gladys Mwende, his niece.
63. The body was that of a 38-year-old male of average build and good nutritional status. Post-mortem changes observed included rigor mortis affecting the lower limbs and posterior lividity. The body was severely pale, and the mucous membranes were nearly white, consistent with severe blood loss or anaemia.
64. Externally, the deceased had swelling and oedema around the left eye, an abrasion on the right shoulder measuring 4 by 3 centimetres, an abrasion on the right chest over the clavicle measuring 5 by 1 centimetres, a laceration on the back measuring 2 by 1 centimetres, and bruises on the right leg measuring 8 by 4 centimetres and 13 by 11 centimetres.
65. The witness further stated that there was evidence of medical intervention, including an anterior abdominal surgical incision measuring approximately 28 by 16 centi-metres, left open and covered with a clear polythene film.
66. Internally, PW6 observed extensive haemorrhage within the abdominal cavity, particularly involving the mesentery, which he explained carries blood vessels supplying the intestines. The entire length of the small intestines, including the ileum, and the large intestines (colon) had undergone gangrenous changes due to compromised blood supply.
67. There was evidence of surgical repair, including a 7-centimetre repair of the small intestine located about 90 centimetres from the jejunum, and a 3-centimetre repair of the large intestine located about 78 centimetres from the ileocecal junction. The brain showed signs of increased intracranial pressure. The lungs were heavier than expected, suggesting infection or fluid accumulation.
68. PW6 testified that he and Dr. Ochodo formed the opinion that the cause of death was sepsis secondary to gangrene of the intestines, resulting from blunt force trauma to the abdomen and head.
69. He explained that an earlier reference to sharp force trauma was corrected after review, as the injuries observed were inconsistent with sharp force trauma. He clarified that blunt force trauma causes irregular lacerations with bridging tissue and affects a wider area, whereas sharp force injuries would produce clean edges and identifiable wound tracts, which were absent in this case.
70. The correction was made in consultation with Dr. Ochodo. The post-mortem report was issued on 4th April 2023 and produced in court as Prosecution Exhibit 2.
71. PW6 explained that intestinal gangrene allows bacteria from the gut to enter the bloodstream, resulting in sepsis, which he defined as a systemic bloodstream infection. He stated that sepsis is a broad condition that may arise where body defenses are compromised, particularly following severe intestinal injury and major surgery. He ruled out pre-existing disease as a cause and noted that although intravenous devices can cause sepsis, such infections usually take several days to develop, whereas gut-related sepsis can occur within a short time. He stated that patients with large intestine injuries are especially vulnerable due to high bacterial load in the large intestine. He further explained that open wounds can act as portals for infection if contaminated, especially where medical intervention is delayed.
72. During cross-examination, PW6 stated that the injuries sustained were potentially survivable with timely and proper medical intervention but that abdominal injuries affecting blood supply carry a high mortality rate. He confirmed that abrasions and bruises could result from a fight or multiple impacts and that some injuries could be consistent with a fall, but emphasized that a fall alone would not explain the injuries to the left eye, back, and the severity of the abdominal injuries.
73. He stated that sepsis is preventable in some cases but requires urgent treatment, ideally within twenty-four hours. He confirmed that the delay between death on 23rd February 2023 and the post-mortem on 10th March 2023 did not affect his findings due to proper body preservation.
74. PW6 stated that the causes of death were sepsis and blunt force trauma, either of which could independently cause death, but that sepsis was the immediate cause in this case. He explained that the blunt force trauma led to intestinal injury, which caused gangrene and subsequently sepsis. He stated that although he could not state with certainty that medical intervention would have saved the deceased, prompt surgical treatment would have significantly improved the chances of survival.
75. PW7, No. 236466 CI Benson Moen, testified that he is the Officer Commanding Station (OCS) at Kayole Police Station, where he had served for eight months at the time of testimony.
76. He was previously stationed at Mathare Police Station as the O/C Petty Crime, a position he held for over one year. He recalled that on 24th February 2023 at about 1600 hours, while at Mathare Police Station, three women Gladys Mwende Fundi, Agnes Fundi, and Elizabeth Mwende reported that their uncle, Patrick Mulyungi Mwingi, had died at Kenyatta National Hospital while undergoing treatment after allegedly being stabbed with a knife at Mathare Bondeni area.
77. PW7 stated that the three women informed him that they had received information from Eunice Mwikali, a female friend of the deceased, who told them that on the night of 21st February 2023, she together with the deceased were walking home from a drinking spree when they were attacked by young boys who stabbed the deceased.
78. Eunice allegedly struggled and escaped unharmed. After a short time, she returned to the scene and found the deceased lying down. She sought help from other young men nearby, who assisted her in carrying the injured deceased to her house.
79. Eunice stayed with the deceased overnight and in the morning sought the services of a motorcycle rider, who took them to MSF Clinic, from where they were referred to Kenyatta National Hospital, where the deceased was admitted to the ICU. Eunice then left the patient at the hospital, returned home and went back three days later, only to find that the deceased had died.
80. PW7 testified that the three women asked Eunice whether she had reported the incident to police and also demanded the deceased’s clothes that he wore the night of the incident.
81. Eunice initially claimed that she had thrown the clothes into a river. Upon further pressure, she admitted that the clothes were hidden under her bed, retrieved them, and handed them over.
82. PW7 stated that this raised suspicion. After receiving this information, he asked whether Eunice was present at the station and was informed that she was outside. He summoned her to his office and questioned her. Eunice confirmed that they had been drinking chang’aa, left together, and were accosted on the way. She stated that she did not know the boys, that nothing was stolen, and that she had an on-and-off relationship with the deceased. She could not give a tangible explanation as to why she hid the clothes or lied about disposing them of.
83. PW7 testified that those responses raised serious doubts about Eunice Mwikali’s innocence, especially since she was the last person seen with the deceased and had failed to report the incident.
84. He arrested her and took possession of the exhibits, namely a white T-shirt, a white vest, and a cap, all of which were blood-stained. He forwarded the matter to DCI Starehe for further investigations. He noted that Eunice gave no description or names of the attackers, only stating that the incident occurred at Mathare Bondeni.
85. Under cross-examination, PW7 told the court that the information from the three women was hearsay, and that his interrogation of Eunice was meant to verify their account.
86. Eunice confirmed being attacked by boys armed with knives. PW7 stated that apart from Eunice and the deceased the only other people at the scene were the boys who assisted her carry the deceased. He confirmed that this was his first encounter with Eunice.
87. He stated that the reasons for arrest were the failure to report, hiding of clothes, and conflicting statements. He admitted that in his statement he did not record that Eunice knew the attackers and did not contain descriptions of the attackers.
88. The witness described Mathare as a general residential area where crimes may occur and stated that the offence appeared planned hence the referral to the DCI.
89. On re-examination, PW7 emphasized that he was the arresting officer, not the investigator. He forwarded the case to Homicide DCI because Eunice was the last person with the deceased and had given conflicting information.
90. PW8 Sergeant Titus Munialo, testified that he was informed of the deceased Patrick Muliungi Mwingi being attacked on 21/2/2023 while walking home. He went to Mathare Police Station and found the accused, Eunice Mwikali. He was informed by IP Moenga that she was involved in the murder. Upon searching her house, he recovered the deceased’s blood-stained items: a white T-shirt, white vest, and greyish cap. He transferred the accused to Starehe DCI office, booked her in Pangani, and produced her in Makadara Court (Misc Cr. Appl. No. E192/2023) seeking for 14 days to complete investigations.
91. He stated that from the deceased’s relatives, he established that on the night of 21/2/2023, the deceased was at Kwa David chang’aa den with the accused.
92. Maxwell Kondo, the deceased’s brother, confirmed he left the deceased in Eunice’s company. On 23/2/2023, the relatives informed the police that Patrick had died at Kenyatta National Hospital.
93. Upon interrogation, Eunice stated that she was the deceased’s girlfriend, and on the night in question, while walking to her house around 11:00 p.m., they were accosted by two men who stabbed Patrick. She claimed she was assisted by a passerby to carry him home, stayed overnight, and took him to MSF Hospital the following morning.
94. PW8 interviewed Amos Mbugua, a neighbor to the accused, who confirmed he opened the gate for Eunice and Patrick. He heard the deceased screaming of stomach pain during the night asking Eunice to get help but she only took him to the hospital the next morning. According to the witness, MSF the medical staff were told by Eunice that the deceased had fallen on a metallic object, which contradicted her statement to the police.
95. The deceased’s relatives stated that Eunice initially refused to hand over his clothes, which she later retrieved from under her bed.
96. PW8 collected the exhibits from Mathare Police Station and prepared an exhibit memo dated 10/3/2023. He escorted the accused to the Government Chemist, where buccal swabs were taken, and the items were submitted for DNA analysis. He arrested the accused due to conflicting statements her being the last person to have been with the deceased and her refusal to hand over the deceased’s belongings. The matter was handed over to DCI for further investigations.
97. PW9 Amos Mbugua, testified that he is a casual labourer residing in Mathare, where he has lived since the year 2000. He stated that on 21st February 2023 at about 12:30 hours, Eunice Mwikali came home with a male friend, whom he later learned was the deceased. As their neighbor, he opened the gate for them. He observed that they were holding each other around the shoulders as they entered the compound and did not notice any injuries. They went inside and slept.
98. PW9 testified that at about midnight, he heard the man screaming inside the house, complaining of severe stomach pain. He called Eunice and advised her to take the man to hospital. He stated that the deceased continued screaming about stomach pain. Eunice eventually left with him between 3:00 and 4:00 a.m., but initially complained that she could not find a motorcycle.
99. PW9 told her to look for one since it was their matter. When PW9 woke up at 6:00 a.m., they were no longer in the house. Later on police summoned neighbors and PW9 was taken to Pangani CID, where he was informed that the man had died.
100. Upon cross-examination PW9 stated that the area known as “Kwa Devo” is near the market and police station. He confirmed that the night in question there was no electricity, the lights were off, and there was no lighting at the gate, meaning he did not observe them closely. He did not hear any scuffle, did not know the deceased previously, and did not leave his house that night.
101. He reiterated that Mathare is crime-prone and that stabbings are common, and that people often remain indoors at night. He did not know whether police searched Eunice’s house.
102. On re-examination, PW9 stated that although Mathare experiences many night incidents, he did not hear any chasing or struggle that night. When he heard the deceased cry again during the night, he urged Eunice to take him to hospital.
103. PW10, Henry Kiptoo Sanda, testified that he is a Government Analyst based at the Government Chemist Nairobi, holding a Bachelor of Science in Chemistry from Moi University, obtained in 1997, with over 20 years’ experience as a DNA analyst. His duties involve analysis of human body fluids and DNA profiling. He produced a DNA analysis report in this case.
104. PW10 stated that on 5th April 2023, the Government Chemist received exhibits brought by No. 59105 Sgt. Titus Munialo of DCI Starehe, including: a blood sample marked “A” from the deceased Patrick Muliungi Muningi, finger nail clippings, a white T-shirt (C1), a white vest (C2), and a grey cap (C3). On the same date, a buccal swab was taken from Eunice Mwikali Kyalo, the accused. The request memo, dated 10th March 2023, required DNA analysis to determine origin and relationships. PW10 testified that analysis established that the T-shirt, vest, and cap were stained with blood of human origin.
105. However, he was unable to generate DNA profiles from those items because the blood was moldy and decomposed, rendering DNA extraction unsuccessful. DNA profiles from the deceased and the accused were successfully generated and tabulated in the report. The report was produced as Prosecution Exhibit 7.
106. On cross-examination, PW10 stated that the envelopes and not the exhibits themselves, were marked and that the memo did not indicate who collected the blood sample or fingernail clippings.
107. He clarified that the determination of human blood was done using other scientific methods, and that the laboratory working file contained the supporting test results.
SUMMARY OF THE DEFENCE CASE
108. The accused t estified in her defense. She stated that she comes from Machakos County, Katulani Sub location. On 21/2/2023 she was with Patrick Mulyungi from a drinking spree at Kwa Davo bar within Mathare.
109. She went on to state that the deceased was in company of his friends and they were drinking chang’aa upto about 11: 30 pm.
110. S he testified that on their way home, Patrick (deceased) said that he wanted to relieve himself in the washroom and that was when some two boys came and started asking the accused what was their relation with Patrick. She told them he was her boyfriend. They went on to ask the deceased about their relationship and he stated that the accused was his wife. An altercation arose between the deceased and the two boys.
111. The accused stated that she briefly left when the quarrel started and after 5 minutes she came back and found the deceased where she had left him. They walked together to the accused’s home and at the gate they found Amos Mbugua outside the
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1. The accused person Eunice Mwikali Kyalo was charged on 12 th June 2023 with the offence of Murder contrary to Section 203 as read with 204 of the Penal Code.
2. The particulars of the offence were that on the 21st February 2023 jointly with others not before the court at Mathare Bondeni area Starehe Sub-county, within Nairobi County Murdered PATRICK MULIUNGI MUINGI.
3. The accused person pleaded not guilty to the charge and the matter was set down for hearing which commenced on the 27 th January 2025.
4. The prosecution called a total of 10 witnesses in support of the murder information. However, the evidence was largely circumstantial as none of the witnesses alleged to have witnessed the accused stabbing the deceased.
SUMMARY OF THE PROSECUTION’S CASE
5. PW1 Antony Kisasi Mungui stated that he resided in Huruma Estate and worked as a casual labourer at construction sites in Nairobi. On 21st February 2023, he was at work at NYS Muthaiga and left duty at about 5.00 p.m., proceeding to Kosovo area in Mathare where he lived. He went to a club in Bondeni known as “Kwa Davie” where he found his younger brother, the deceased Patrick Muriungi, seated outside the bar in the company of two ladies. One of those ladies would later turn out to be the accused person.
6. He went on to state that he identified the ladies as Janet and Muli, whom he had known before. They greeted each other and he left for home at about 7.00 p.m., leaving the deceased appearing normal and not intoxicated.
7. PW1 testified that he and the deceased had been living together for about two weeks. The witness told the court that the deceased did not return home that night.
8. PW1 went to work the following morning and upon returning in the evening, he found that the deceased had still not returned. He went back to the place where he had last seen him to go and find out what may have happened to him. Pw1 met Janet, who asked him if he knew that the deceased had been injured.
9. According to the witness, Janet told him the deceased had been stabbed by a lady known as Mwikali. Pw1 told Janet that he had not heard about it.
10. Pw1 decided to go home and on his way, he met Maxwell Kondo and two other young men who informed him they had hone to see the deceased at Kenyatta National Hospital but they did not find him. PW1 told them that he would go to Kenyatta National Hospital the following day at 1.00 p.m to see him.
11. However, on the following day at about 9.00 a.m., PW1 received a call from a doctor at Kenyatta National Hospital asking him whether he knew Patrick Muriungi and requesting that someone be sent directly to the Kenytatta Nattional Hospital ICU unit to see him.
12. PW1 contacted Elizabeth Mwende Mutua, gave her the doctor’s number, and she proceeded to the hospital. She later called and informed PW1 that the doctors had confirmed Patrick had passed on.
13. That evening, PW1, Elizabeth Mwende, and Gladys Mwende met at Mathare Police Station and reported the matter.
14. Pw1 and the rest were advised to confirm from the hospital whether the deceased was dead or alive. PW1 stated that his brother Richard went to Kenyatta National Hospital and confirmed the death. The police then allowed the family to begin funeral arrangements.
15. PW1 testified that he never saw the deceased’s body.
16. He further stated that he knew Mwikali and identified her as the accused person in the dock.
17. During cross-examination by Mr. Polycarp Agoi counsel for the accused, PW1 stated that although he knew Mwikali, he got a description of her from Janet and he had never seen her with the deceased brother.
18. He went further to state that he did not attend any identification parade after Mwikali was arrested.
19. He admitted that he had never seen Mwikali with the deceased. He confirmed that he recorded a statement at the police station in which he stated that he left the deceased in the company of two women and two men.
20. He clarified that the waitress at the bar was Maureen, not Janet, and admitted that he never asked Maureen about the two men. PW1 admitted that his brother used to drink alcohol and that on the material night he only greeted him and left. He stated that Janet never recorded a statement.
21. He further admitted that in his police statement he recorded that the deceased was stabbed by two men. He told the court that what he recorded in his statement was the truth and that what he had been told was that Mwikali stabbed the deceased, but he would stand by the statement he gave to the police.
22. Pw1 admitted to the court that he had lied in his oral testimony and apologized to the court. He confirmed that he did not witness Mwikali stabbing the deceased and did not know the two men involved.
23. On re-examination, PW1 stated that Janet told him that his brother had been stabbed by Mwikali, which he acknowledged was hearsay.
24. Pw1 reiterated that he recorded a statement with the police and that according to that statement, Patrick and Mwikali were attacked by two men and the deceased was stabbed.
25. He clarified that his testimony in court regarding Mwikali stabbing the deceased was a slip of the tongue, that he did not witness the incident, and that the statement he gave to the police reflected the true position.
26. PW2 Maxwell Kondo Muingi testified that he lived in Mathare North Area 3 and worked as a casual labourer in a construction site.
27. On 21st February 2023 at about 7.30 p.m., while walking home, he passed through Bondeni where he met the deceased and his brother Patrick Muriungi, seated outside a club known as “Kwa Davo.” They sat and chatted until about 9.00 p.m. when PW2 decided to go home.
28. He gave the deceased Kshs. 20/= and left him in the company of Mwikali, whom he described as the deceased’s friend. He testified that at the time there were many other people present at the club.
29. He further testified that the deceased was sober and not drinking, although they smoked. He went home and slept.
30. On the following day at about 1.00 p.m. while at work, he was informed by Cyrus Nzomo Mutemi that his brother had been injured and was admitted at Kenyatta National Hospital after being stabbed the previous night.
31. PW2 continued working until about 6.00 p.m., after which he went to Kenyatta National Hospital with Cyrus Nzomo and Gideon Kahinga, arriving at about 8.00 p.m.
32. They were informed that the deceased had been taken to theatre. The following day PW2 did not visit the hospital as he was working but he later received a call from his wife informing him that the deceased had died and was at the morgue.
33. Pw2 identified Mwikali as the accused in court and stated that he only heard that the deceased was injured while in Mwikali’s company.
34. On cross-examination, PW2 stated that he learnt that the deceased was injured while walking home with Mwikali but could not explain the circumstances of the incident. He admitted that he did not know whether Mwikali stabbed the deceased and confirmed that Mwikali was the deceased’s girlfriend and that they had been friends for some time without any known disagreements.
35. He testified that the deceased drank alcohol and that on the material night he had taken some alcohol but was not drunk. He stated that he heard Mwikali took the deceased to her house and that they slept there.
36. Pw2 testified that he did not know why the deceased was not taken to hospital that night. He further stated that Mwikali later took the deceased to hospital together with his brother, and opined that her actions showed she did not intend to kill him. He went on to state that the incident occurred around midnight and suggested that intoxication may have delayed hospital attendance.
37. On re-examination, PW2 reiterated that he left the deceased in a good state in Mwikali’s company.
38. Pw3 was Elizabeth Mwende who testified that on 22 nd February 2023 she was at work when she received a call informing her that her brother- in -law was in Hospital. They went to Kenyatta National Hospital with the husband and found the deceased had been taken to Intensive Care Unit (ICU). The two were advised to return the following day. The following day on 23 rd February 2023 she testified that she met the accused in the company of her mother and she suggested they go to the hospital together.
39. According to Pw3 they went to the Hospital only to find that the deceased had died.
40. PW4 Gladys Mwende Vundi testified that she lived in Huruma Casanova area, and did casual labour.
41. On 23rd February 2023 in the morning, she received a call from her uncle informing her that Patrick Muriungi had been injured and was admitted at Kenyatta National Hospital. Later, the same day another uncle, Augustus Musya, informed her that the deceased had passed on. They went to the deceased’s house in Mathare where neighbors informed them that he had a girlfriend living nearby.
42. The girlfriend was identified as the accused Elizabeth Mwikali whom they were able to trace and she narrated that on the night of the incident at about 10.00 p.m., while walking home with the deceased, they met two men who questioned the deceased about her identity.
43. After the deceased confirmed to the men that she was his girlfriend, the two men assaulted the deceased prompting Mwikali to flee and hide.
44. Upon returning to the scene of attack she found the deceased injured and was on the ground. She stated that she called a street boy who assisted her in taking him home.
45. When the two got home the deceased complained of stomach pain and they slept until 5.00 a.m when she hired a motorcycle to take him to Blue House Clinic, from where they were referred to Kenyatta National Hospital. The accused told PW4 that she took the deceased to Kenyatta and left him there undergoing treatment.
46. PW4 testified that Mwikali informed her that she had the deceased’s phone and that she had removed his clothes and soaked them in water. Mwikali later brought the clothes, which were a white T-shirt bearing the inscription “Lakers,” a cap, and a phone. The clothes were blood-stained.
47. PW4, together with Augustus, reported the matter to Mathare Police Station and were issued with an OB number. They were advised to confirm the death of the deceased at Kenyatta National Hospital before the police could take action.
48. On 24th February 2023, they went to the hospital and viewed the body of the deceased then they returned to the police to inform them as directed.
49. Upon inquiry by the police whether they knew Mwikali, PW4 and Elizabeth went and brought Mwikali to the police station together with the clothes and phone.
50. PW4 further testified that she had previously seen Mwikali with the deceased and identified her as the accused in court. She later identified the body at Kenyatta National Hospital for post-mortem purposes.
51. During cross-examination, PW4 stated that she did not suspect foul play and that her knowledge in relation to the events leading to the deceased’s death was entirely based on Mwikali’s narration.
52. She testified that she believed Mwikali was truthful and confirmed that she was the deceased’s girlfriend and that there were no known disputes between them. She stated that she did not understand why Mwikali took the deceased home instead of the hospital and opined that Mwikali’s only fault was failing to take him to hospital promptly. She stated that she had no evidence that Mwikali stabbed the deceased.
53. PW5, Doris Kerubo, a clinical officer registered under number 8038, testified that she held a Diploma in Clinical Medicine and a BSc. in Health Systems Management and had worked with Médecins Sans Frontières (MSF) for six years.
54. She produced a medical report dated 24th March 2023 prepared at MSF Mathare relating to the patient Patrick Mulyungi, whom she received at the facility on 22nd February 2023 at 5.42 a.m.
55. The patient had a history of stab wounds on the upper back and left side of the abdomen, was actively bleeding, restless, and in pain. She testified that the patient went to the hospital accompanied by a lady friend who claimed the patient had fallen on a metallic object and was passing blood through the rectum.
56. PW5 recorded vital signs noting a heart rate of 65 beats per minute, unrecordable blood pressure due to blood loss, haemoglobin of 13.2, and blood sugar of 1.2.
57. She diagnosed a penetrating abdominal stab wound with perforation, hypotension, and hypoglycaemia. She administered emergency treatment including normal saline, morphine 10 mg, tetanus toxoid, 56% dextrose, and tranexamic acid, and referred the patient to Kenyatta National Hospital. She produced the medical report as an exhibit.
58. During cross-examination PW5 stated that her BSc. was not a medical qualification and that stabbing incidents were common in Mathare.
59. She admitted that she did not produce the referral form or triage form used in preparing the report and could not recall the appearance of the patient’s clothes.
60. She stated that the patient later died of sepsis which she acknowledged could have been prevented. On re-examination, she reiterated that the patient arrived at 5.42 a.m. was bleeding and that the lady accompanying him gave contradictory information. The witness stated that sepsis can develop within six hours of injury.
61. PW6 Dr. Edwin Walonga, testified as an expert witness in pathology. He stated that he is a Senior Lecturer in Pathology at Maseno University and holds an MBChB and a Masters degree in Medicine. He testified that he is registered as a specialist pathologist with the Kenya Medical Practitioners and Dentists Council and has practiced pathology for thirteen years. At the material time, he was a lecturer at the University of Nairobi. He conducted the post-mortem examination jointly with Dr. Linda Ochodo, a trainee pathologist, under his supervision.
62. He went on to state the post-mortem was conducted on 10th March 2023 at Kenyatta National Hospital on the body of an African male identified as Patrick Mulyungi by Antony Kisasi, the deceased’s brother and Gladys Mwende, his niece.
63. The body was that of a 38-year-old male of average build and good nutritional status. Post-mortem changes observed included rigor mortis affecting the lower limbs and posterior lividity. The body was severely pale, and the mucous membranes were nearly white, consistent with severe blood loss or anaemia.
64. Externally, the deceased had swelling and oedema around the left eye, an abrasion on the right shoulder measuring 4 by 3 centimetres, an abrasion on the right chest over the clavicle measuring 5 by 1 centimetres, a laceration on the back measuring 2 by 1 centimetres, and bruises on the right leg measuring 8 by 4 centimetres and 13 by 11 centimetres.
65. The witness further stated that there was evidence of medical intervention, including an anterior abdominal surgical incision measuring approximately 28 by 16 centi-metres, left open and covered with a clear polythene film.
66. Internally, PW6 observed extensive haemorrhage within the abdominal cavity, particularly involving the mesentery, which he explained carries blood vessels supplying the intestines. The entire length of the small intestines, including the ileum, and the large intestines (colon) had undergone gangrenous changes due to compromised blood supply.
67. There was evidence of surgical repair, including a 7-centimetre repair of the small intestine located about 90 centimetres from the jejunum, and a 3-centimetre repair of the large intestine located about 78 centimetres from the ileocecal junction. The brain showed signs of increased intracranial pressure. The lungs were heavier than expected, suggesting infection or fluid accumulation.
68. PW6 testified that he and Dr. Ochodo formed the opinion that the cause of death was sepsis secondary to gangrene of the intestines, resulting from blunt force trauma to the abdomen and head.
69. He explained that an earlier reference to sharp force trauma was corrected after review, as the injuries observed were inconsistent with sharp force trauma. He clarified that blunt force trauma causes irregular lacerations with bridging tissue and affects a wider area, whereas sharp force injuries would produce clean edges and identifiable wound tracts, which were absent in this case.
70. The correction was made in consultation with Dr. Ochodo. The post-mortem report was issued on 4th April 2023 and produced in court as Prosecution Exhibit 2.
71. PW6 explained that intestinal gangrene allows bacteria from the gut to enter the bloodstream, resulting in sepsis, which he defined as a systemic bloodstream infection. He stated that sepsis is a broad condition that may arise where body defenses are compromised, particularly following severe intestinal injury and major surgery. He ruled out pre-existing disease as a cause and noted that although intravenous devices can cause sepsis, such infections usually take several days to develop, whereas gut-related sepsis can occur within a short time. He stated that patients with large intestine injuries are especially vulnerable due to high bacterial load in the large intestine. He further explained that open wounds can act as portals for infection if contaminated, especially where medical intervention is delayed.
72. During cross-examination, PW6 stated that the injuries sustained were potentially survivable with timely and proper medical intervention but that abdominal injuries affecting blood supply carry a high mortality rate. He confirmed that abrasions and bruises could result from a fight or multiple impacts and that some injuries could be consistent with a fall, but emphasized that a fall alone would not explain the injuries to the left eye, back, and the severity of the abdominal injuries.
73. He stated that sepsis is preventable in some cases but requires urgent treatment, ideally within twenty-four hours. He confirmed that the delay between death on 23rd February 2023 and the post-mortem on 10th March 2023 did not affect his findings due to proper body preservation.
74. PW6 stated that the causes of death were sepsis and blunt force trauma, either of which could independently cause death, but that sepsis was the immediate cause in this case. He explained that the blunt force trauma led to intestinal injury, which caused gangrene and subsequently sepsis. He stated that although he could not state with certainty that medical intervention would have saved the deceased, prompt surgical treatment would have significantly improved the chances of survival.
75. PW7, No. 236466 CI Benson Moen, testified that he is the Officer Commanding Station (OCS) at Kayole Police Station, where he had served for eight months at the time of testimony.
76. He was previously stationed at Mathare Police Station as the O/C Petty Crime, a position he held for over one year. He recalled that on 24th February 2023 at about 1600 hours, while at Mathare Police Station, three women Gladys Mwende Fundi, Agnes Fundi, and Elizabeth Mwende reported that their uncle, Patrick Mulyungi Mwingi, had died at Kenyatta National Hospital while undergoing treatment after allegedly being stabbed with a knife at Mathare Bondeni area.
77. PW7 stated that the three women informed him that they had received information from Eunice Mwikali, a female friend of the deceased, who told them that on the night of 21st February 2023, she together with the deceased were walking home from a drinking spree when they were attacked by young boys who stabbed the deceased.
78. Eunice allegedly struggled and escaped unharmed. After a short time, she returned to the scene and found the deceased lying down. She sought help from other young men nearby, who assisted her in carrying the injured deceased to her house.
79. Eunice stayed with the deceased overnight and in the morning sought the services of a motorcycle rider, who took them to MSF Clinic, from where they were referred to Kenyatta National Hospital, where the deceased was admitted to the ICU. Eunice then left the patient at the hospital, returned home and went back three days later, only to find that the deceased had died.
80. PW7 testified that the three women asked Eunice whether she had reported the incident to police and also demanded the deceased’s clothes that he wore the night of the incident.
81. Eunice initially claimed that she had thrown the clothes into a river. Upon further pressure, she admitted that the clothes were hidden under her bed, retrieved them, and handed them over.
82. PW7 stated that this raised suspicion. After receiving this information, he asked whether Eunice was present at the station and was informed that she was outside. He summoned her to his office and questioned her. Eunice confirmed that they had been drinking chang’aa, left together, and were accosted on the way. She stated that she did not know the boys, that nothing was stolen, and that she had an on-and-off relationship with the deceased. She could not give a tangible explanation as to why she hid the clothes or lied about disposing them of.
83. PW7 testified that those responses raised serious doubts about Eunice Mwikali’s innocence, especially since she was the last person seen with the deceased and had failed to report the incident.
84. He arrested her and took possession of the exhibits, namely a white T-shirt, a white vest, and a cap, all of which were blood-stained. He forwarded the matter to DCI Starehe for further investigations. He noted that Eunice gave no description or names of the attackers, only stating that the incident occurred at Mathare Bondeni.
85. Under cross-examination, PW7 told the court that the information from the three women was hearsay, and that his interrogation of Eunice was meant to verify their account.
86. Eunice confirmed being attacked by boys armed with knives. PW7 stated that apart from Eunice and the deceased the only other people at the scene were the boys who assisted her carry the deceased. He confirmed that this was his first encounter with Eunice.
87. He stated that the reasons for arrest were the failure to report, hiding of clothes, and conflicting statements. He admitted that in his statement he did not record that Eunice knew the attackers and did not contain descriptions of the attackers.
88. The witness described Mathare as a general residential area where crimes may occur and stated that the offence appeared planned hence the referral to the DCI.
89. On re-examination, PW7 emphasized that he was the arresting officer, not the investigator. He forwarded the case to Homicide DCI because Eunice was the last person with the deceased and had given conflicting information.
90. PW8 Sergeant Titus Munialo, testified that he was informed of the deceased Patrick Muliungi Mwingi being attacked on 21/2/2023 while walking home. He went to Mathare Police Station and found the accused, Eunice Mwikali. He was informed by IP Moenga that she was involved in the murder. Upon searching her house, he recovered the deceased’s blood-stained items: a white T-shirt, white vest, and greyish cap. He transferred the accused to Starehe DCI office, booked her in Pangani, and produced her in Makadara Court (Misc Cr. Appl. No. E192/2023) seeking for 14 days to complete investigations.
91. He stated that from the deceased’s relatives, he established that on the night of 21/2/2023, the deceased was at Kwa David chang’aa den with the accused.
92. Maxwell Kondo, the deceased’s brother, confirmed he left the deceased in Eunice’s company. On 23/2/2023, the relatives informed the police that Patrick had died at Kenyatta National Hospital.
93. Upon interrogation, Eunice stated that she was the deceased’s girlfriend, and on the night in question, while walking to her house around 11:00 p.m., they were accosted by two men who stabbed Patrick. She claimed she was assisted by a passerby to carry him home, stayed overnight, and took him to MSF Hospital the following morning.
94. PW8 interviewed Amos Mbugua, a neighbor to the accused, who confirmed he opened the gate for Eunice and Patrick. He heard the deceased screaming of stomach pain during the night asking Eunice to get help but she only took him to the hospital the next morning. According to the witness, MSF the medical staff were told by Eunice that the deceased had fallen on a metallic object, which contradicted her statement to the police.
95. The deceased’s relatives stated that Eunice initially refused to hand over his clothes, which she later retrieved from under her bed.
96. PW8 collected the exhibits from Mathare Police Station and prepared an exhibit memo dated 10/3/2023. He escorted the accused to the Government Chemist, where buccal swabs were taken, and the items were submitted for DNA analysis. He arrested the accused due to conflicting statements her being the last person to have been with the deceased and her refusal to hand over the deceased’s belongings. The matter was handed over to DCI for further investigations.
97. PW9 Amos Mbugua, testified that he is a casual labourer residing in Mathare, where he has lived since the year 2000. He stated that on 21st February 2023 at about 12:30 hours, Eunice Mwikali came home with a male friend, whom he later learned was the deceased. As their neighbor, he opened the gate for them. He observed that they were holding each other around the shoulders as they entered the compound and did not notice any injuries. They went inside and slept.
98. PW9 testified that at about midnight, he heard the man screaming inside the house, complaining of severe stomach pain. He called Eunice and advised her to take the man to hospital. He stated that the deceased continued screaming about stomach pain. Eunice eventually left with him between 3:00 and 4:00 a.m., but initially complained that she could not find a motorcycle.
99. PW9 told her to look for one since it was their matter. When PW9 woke up at 6:00 a.m., they were no longer in the house. Later on police summoned neighbors and PW9 was taken to Pangani CID, where he was informed that the man had died.
100. Upon cross-examination PW9 stated that the area known as “Kwa Devo” is near the market and police station. He confirmed that the night in question there was no electricity, the lights were off, and there was no lighting at the gate, meaning he did not observe them closely. He did not hear any scuffle, did not know the deceased previously, and did not leave his house that night.
101. He reiterated that Mathare is crime-prone and that stabbings are common, and that people often remain indoors at night. He did not know whether police searched Eunice’s house.
102. On re-examination, PW9 stated that although Mathare experiences many night incidents, he did not hear any chasing or struggle that night. When he heard the deceased cry again during the night, he urged Eunice to take him to hospital.
103. PW10, Henry Kiptoo Sanda, testified that he is a Government Analyst based at the Government Chemist Nairobi, holding a Bachelor of Science in Chemistry from Moi University, obtained in 1997, with over 20 years’ experience as a DNA analyst. His duties involve analysis of human body fluids and DNA profiling. He produced a DNA analysis report in this case.
104. PW10 stated that on 5th April 2023, the Government Chemist received exhibits brought by No. 59105 Sgt. Titus Munialo of DCI Starehe, including: a blood sample marked “A” from the deceased Patrick Muliungi Muningi, finger nail clippings, a white T-shirt (C1), a white vest (C2), and a grey cap (C3). On the same date, a buccal swab was taken from Eunice Mwikali Kyalo, the accused. The request memo, dated 10th March 2023, required DNA analysis to determine origin and relationships. PW10 testified that analysis established that the T-shirt, vest, and cap were stained with blood of human origin.
105. However, he was unable to generate DNA profiles from those items because the blood was moldy and decomposed, rendering DNA extraction unsuccessful. DNA profiles from the deceased and the accused were successfully generated and tabulated in the report. The report was produced as Prosecution Exhibit 7.
106. On cross-examination, PW10 stated that the envelopes and not the exhibits themselves, were marked and that the memo did not indicate who collected the blood sample or fingernail clippings.
107. He clarified that the determination of human blood was done using other scientific methods, and that the laboratory working file contained the supporting test results.
SUMMARY OF THE DEFENCE CASE
108. The accused t estified in her defense. She stated that she comes from Machakos County, Katulani Sub location. On 21/2/2023 she was with Patrick Mulyungi from a drinking spree at Kwa Davo bar within Mathare.
109. She went on to state that the deceased was in company of his friends and they were drinking chang’aa upto about 11: 30 pm.
110. S he testified that on their way home, Patrick (deceased) said that he wanted to relieve himself in the washroom and that was when some two boys came and started asking the accused what was their relation with Patrick. She told them he was her boyfriend. They went on to ask the deceased about their relationship and he stated that the accused was his wife. An altercation arose between the deceased and the two boys.
111. The accused stated that she briefly left when the quarrel started and after 5 minutes she came back and found the deceased where she had left him. They walked together to the accused’s home and at the gate they found Amos Mbugua outside the
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