Introduction
1. The accused, Geoffrey Nyamati Matundura alias Geoffrey Miroga Mwita, is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.
2. The particulars of the charge are that on the 8th day of July 2021 at Kiamwasi Village, Kitutu Central Sub-County, Kisii County, the accused murdered Stella Mongina Gichana.
3. The accused pleaded not guilty, and the matter proceeded to full hearing. He was represented by Miss Gogi, Advocate.
4. The prosecution called ten (10) witnesses, while the accused gave unsworn testimony and called no witneness.
The Prosecution Case
5. The evidence of PW1 Jeremiah Gichana Mauya, the husband of the deceased, PW5 Purity Moraa Gichana, the daughter of the deceased, PW6 Edwin Mokaya Omase, a nephew to the deceased, and PW2 Carolyne Nyaboke, a domestic helper, established the circumstances under which the body of the deceased was discovered.
6. On 8th July 2021, PW2 went to the deceased’s home at about 9.00 a.m. and found both the gate and doors open. The deceased did not respond to calls. PW2 returned at noon and later in the evening. Upon entering the bedroom with PW5, they found the deceased lying lifeless in a pool of blood, with a stab wound on the neck. A blood-stained knife was found at the scene.
7. Police were notified and attended the scene. The body was removed to Kisii Teaching and Referral Hospital Mortuary.
8. PW4 Isaiah Ariamba Maria identified the body for post-mortem. Dr Naomi Ariga conducted the post-mortem and concluded that the cause of death was exsanguination due to a severed right external jugular vein caused by sharp force trauma, as per the post-mortem report produced as PEXH 2.
9. PW9 CIP George Ochieng, the investigating officer, visited the scene, recovered the knife (PEXH 1), recorded statements, and commenced investigations. He was informed that the deceased’s mobile phone and Kshs.70,000/= were missing.
10. PW9 wrote to Safaricom seeking communication data for the deceased’s phone number 0725835011.
11. PW7 Sgt. James Makobi, a police officer seconded to Safaricom as a liaison officer, analyzed the call data and produced a report (PEXH 3) together with a certificate of electronic evidence under sections 65(8), 106A and 106B of the Evidence Act (PEXH 5).
12. The call data revealed that the deceased’s handset bearing IMEI No. 351331872766140 was used as follows:
• From 7.7.21 at 07:19 hrs to 8.7.21 at 05:26 hrs communication with SIM 0725835011 registered to the deceased.
• From 13.7.21 at 13:26 hrs to 15.7.21 at 16:19 hrs communication with SIM 0757812449 registered to Naomi Oendo (PW8).
• From 18.7.21 to 19.7.21 with SIM 0759826810, whose subscriber details were not captured.
13. PW8 Naomi Oendo testified that she cohabited with with the accused as husband and wife before the incident . She stated that the accused inserted her SIM card into the phone in question. She was arrested after visiting the accused in custody but was later released when the accused stated that he had inserted her SIM card into the phone.
14. The deceased’s phone was never recovered. The accused was subsequently charged with the offence of murder.
The Defence Case
15. Upon being placed on his defence, the accused opted to give unsworn testimony.
16. He denied committing the offence. He stated that on 8.7.21, he was working as a porter at Daraja Mbili Market. He alleged that he was later arrested that night while drinking alcohol and detained at Nyatieko Police Station until 17.7.21.
17. He denied ownership or use of mobile number 0759826810, stating that it belonged to Maureen Ombongi, as shown by Mpesa records which he produced together with a certificate of electronic evidence (DEXH 1(a) and (b)). He stated that his mobile number was 0723236034.
18. He denied killing the deceased and stated that he had a good relationship with her family.
Submissions
19. Defence counsel submitted that the prosecution failed to prove its case beyond reasonable doubt. Reliance was placed on Mangi v Republic, Philip Nzaka Watu v Republic, Stephen Nguli Mulili v Republic, Rex v Kipkerring Arap Koske & Another [1949] EACA 135, Simoni Musoke v R [1958] EA 715, and Pon v Republic [2019] eKLR, on the law governing circumstantial evidence.
20. The prosecution did not file submissions and relied on the evidence on record .
Issues for Determination
21. The issues for determination are:
i. Whether the deceased died and the cause of death;
ii. Whether the accused caused the death of the deceased;
iii. Whether malice aforethought was proved.
Analysis and Determination
(i) Proof of Death
22. There is no dispute that Stella Mongina Gichana died. The post-mortem report (PEXH 2) confirmed that the cause of death was severe bleeding due to a severed jugular vein caused by sharp force trauma. This ingredient was proved beyond reasonable doubt.
(ii) Whether the Accused Caused the Death
23. There was no direct evidence linking the accused to the murder. The prosecution case rested entirely on circumstantial evidence, primarily call data records and association with PW8.
24. The law on circumstantial evidence is settled. In Rex v Kipkerring Arap Koske & Another (supra), the court held that the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis.
25. In Simoni Musoke v R (supra), the court emphasized that there must be no co-existing circumstances which weaken or destroy the inference of guilt.
26. In the present case, although the call data showed that PW8’s SIM card was used in the deceased’s phone, there was no conclusive evidence that the accused used the phone at the material time. The subscriber details for 0759826810 were not captured. PW9 conceded that the accused was not found with the phone and that the phone was never recovered. Pw9 and accused said that the said number belonged to one Maureen Ombogi who is neither and accused person nor a witness herein. Pw9 ought to have gone further and investigated the said Maureen Ombogi to establish her role if any in the murder herein .
27. The defence raised an alibi, stating that the accused was elsewhere and later in police custody. In the case of Victor Mwendwa Mulinge vs. R [2014] eKLR the court of appeal held ‘’
It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see Karanja vs. R [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought. ‘’
28. This is a criminal matter and prosecution still bears the burden of proof even where a defence of alibi has been raised . did not dislodge this alibi by placing the accused at the scene of the murder at the material time.
29. Further, PW9 admitted that:
• No one witnessed the murder;
• The knife was not subjected to DNA analysis;
• The accused was not found in possession of the phone.
29. These gaps create reasonable doubt which must be resolved in favour of the accused.
(iii) Malice Aforethought
30. While the manner of the killing shows violence, malice aforethought can only be attributed to the person proved to have committed the act. Having found that the prosecution failed to prove that the accused caused the death, malice aforethought was not established against him.
Conclusion
31. I have carefully evaluated prosecutions case and defence case. The case entirely relies on circumstantial evidence . The evidence adduced by prosecution does not meet the legal threshold required to sustain a conviction for murder . The evidence on record is insufficient to prove their case against accused beyond reasonable doubt .
Disposition
33. Consequently, I find Godfrey Nyamati Matundura alias Godfrey Miroga Mwita is found not guilty of the offence of murder and is hereby acquitted under section 322(1) of the Criminal Procedure Code.
34. The accused shall be set at liberty forthwith unless otherwise lawfully held.
T. A ODERA
JUDGE
23.3.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS 23RD DAY OF MARCH 2026, IN THE PRESENCE OF ACCUSED , HIS COUNSEL MISS GOGI . MR KOIMA FOR THE STATE & COURT ASSISTANT -MR ONKUNDI
1. The accused, Geoffrey Nyamati Matundura alias Geoffrey Miroga Mwita, is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.
2. The particulars of the charge are that on the 8th day of July 2021 at Kiamwasi Village, Kitutu Central Sub-County, Kisii County, the accused murdered Stella Mongina Gichana.
3. The accused pleaded not guilty, and the matter proceeded to full hearing. He was represented by Miss Gogi, Advocate.
4. The prosecution called ten (10) witnesses, while the accused gave unsworn testimony and called no witneness.
The Prosecution Case
5. The evidence of PW1 Jeremiah Gichana Mauya, the husband of the deceased, PW5 Purity Moraa Gichana, the daughter of the deceased, PW6 Edwin Mokaya Omase, a nephew to the deceased, and PW2 Carolyne Nyaboke, a domestic helper, established the circumstances under which the body of the deceased was discovered.
6. On 8th July 2021, PW2 went to the deceased’s home at about 9.00 a.m. and found both the gate and doors open. The deceased did not respond to calls. PW2 returned at noon and later in the evening. Upon entering the bedroom with PW5, they found the deceased lying lifeless in a pool of blood, with a stab wound on the neck. A blood-stained knife was found at the scene.
7. Police were notified and attended the scene. The body was removed to Kisii Teaching and Referral Hospital Mortuary.
8. PW4 Isaiah Ariamba Maria identified the body for post-mortem. Dr Naomi Ariga conducted the post-mortem and concluded that the cause of death was exsanguination due to a severed right external jugular vein caused by sharp force trauma, as per the post-mortem report produced as PEXH 2.
9. PW9 CIP George Ochieng, the investigating officer, visited the scene, recovered the knife (PEXH 1), recorded statements, and commenced investigations. He was informed that the deceased’s mobile phone and Kshs.70,000/= were missing.
10. PW9 wrote to Safaricom seeking communication data for the deceased’s phone number 0725835011.
11. PW7 Sgt. James Makobi, a police officer seconded to Safaricom as a liaison officer, analyzed the call data and produced a report (PEXH 3) together with a certificate of electronic evidence under sections 65(8), 106A and 106B of the Evidence Act (PEXH 5).
12. The call data revealed that the deceased’s handset bearing IMEI No. 351331872766140 was used as follows:
• From 7.7.21 at 07:19 hrs to 8.7.21 at 05:26 hrs communication with SIM 0725835011 registered to the deceased.
• From 13.7.21 at 13:26 hrs to 15.7.21 at 16:19 hrs communication with SIM 0757812449 registered to Naomi Oendo (PW8).
• From 18.7.21 to 19.7.21 with SIM 0759826810, whose subscriber details were not captured.
13. PW8 Naomi Oendo testified that she cohabited with with the accused as husband and wife before the incident . She stated that the accused inserted her SIM card into the phone in question. She was arrested after visiting the accused in custody but was later released when the accused stated that he had inserted her SIM card into the phone.
14. The deceased’s phone was never recovered. The accused was subsequently charged with the offence of murder.
The Defence Case
15. Upon being placed on his defence, the accused opted to give unsworn testimony.
16. He denied committing the offence. He stated that on 8.7.21, he was working as a porter at Daraja Mbili Market. He alleged that he was later arrested that night while drinking alcohol and detained at Nyatieko Police Station until 17.7.21.
17. He denied ownership or use of mobile number 0759826810, stating that it belonged to Maureen Ombongi, as shown by Mpesa records which he produced together with a certificate of electronic evidence (DEXH 1(a) and (b)). He stated that his mobile number was 0723236034.
18. He denied killing the deceased and stated that he had a good relationship with her family.
Submissions
19. Defence counsel submitted that the prosecution failed to prove its case beyond reasonable doubt. Reliance was placed on Mangi v Republic, Philip Nzaka Watu v Republic, Stephen Nguli Mulili v Republic, Rex v Kipkerring Arap Koske & Another [1949] EACA 135, Simoni Musoke v R [1958] EA 715, and Pon v Republic [2019] eKLR, on the law governing circumstantial evidence.
20. The prosecution did not file submissions and relied on the evidence on record .
Issues for Determination
21. The issues for determination are:
i. Whether the deceased died and the cause of death;
ii. Whether the accused caused the death of the deceased;
iii. Whether malice aforethought was proved.
Analysis and Determination
(i) Proof of Death
22. There is no dispute that Stella Mongina Gichana died. The post-mortem report (PEXH 2) confirmed that the cause of death was severe bleeding due to a severed jugular vein caused by sharp force trauma. This ingredient was proved beyond reasonable doubt.
(ii) Whether the Accused Caused the Death
23. There was no direct evidence linking the accused to the murder. The prosecution case rested entirely on circumstantial evidence, primarily call data records and association with PW8.
24. The law on circumstantial evidence is settled. In Rex v Kipkerring Arap Koske & Another (supra), the court held that the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis.
25. In Simoni Musoke v R (supra), the court emphasized that there must be no co-existing circumstances which weaken or destroy the inference of guilt.
26. In the present case, although the call data showed that PW8’s SIM card was used in the deceased’s phone, there was no conclusive evidence that the accused used the phone at the material time. The subscriber details for 0759826810 were not captured. PW9 conceded that the accused was not found with the phone and that the phone was never recovered. Pw9 and accused said that the said number belonged to one Maureen Ombogi who is neither and accused person nor a witness herein. Pw9 ought to have gone further and investigated the said Maureen Ombogi to establish her role if any in the murder herein .
27. The defence raised an alibi, stating that the accused was elsewhere and later in police custody. In the case of Victor Mwendwa Mulinge vs. R [2014] eKLR the court of appeal held ‘’
It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see Karanja vs. R [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought. ‘’
28. This is a criminal matter and prosecution still bears the burden of proof even where a defence of alibi has been raised . did not dislodge this alibi by placing the accused at the scene of the murder at the material time.
29. Further, PW9 admitted that:
• No one witnessed the murder;
• The knife was not subjected to DNA analysis;
• The accused was not found in possession of the phone.
29. These gaps create reasonable doubt which must be resolved in favour of the accused.
(iii) Malice Aforethought
30. While the manner of the killing shows violence, malice aforethought can only be attributed to the person proved to have committed the act. Having found that the prosecution failed to prove that the accused caused the death, malice aforethought was not established against him.
Conclusion
31. I have carefully evaluated prosecutions case and defence case. The case entirely relies on circumstantial evidence . The evidence adduced by prosecution does not meet the legal threshold required to sustain a conviction for murder . The evidence on record is insufficient to prove their case against accused beyond reasonable doubt .
Disposition
33. Consequently, I find Godfrey Nyamati Matundura alias Godfrey Miroga Mwita is found not guilty of the offence of murder and is hereby acquitted under section 322(1) of the Criminal Procedure Code.
34. The accused shall be set at liberty forthwith unless otherwise lawfully held.
T. A ODERA
JUDGE
23.3.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS 23RD DAY OF MARCH 2026, IN THE PRESENCE OF ACCUSED , HIS COUNSEL MISS GOGI . MR KOIMA FOR THE STATE & COURT ASSISTANT -MR ONKUNDI