The accused persons ISDOR MUTHAMA MUSYOKI, JOYCE NTHAMBI, FIDELIS MUSYOKI are jointly charged with murder contrary to section 23 as read with section 24 of them Penal code,
The particulars are that on 2nd March 2020 at Kikima Shopping Center Mbooni West Sub County within Makueni County they unlawfully murdered Charles Musyoki Mwangangi.
The accused persons took plea Before the honourable ONG’UDI J On 30th March 2020 and each plea did not guilty
Upon her transfer the matter moved on 11th March 2021, to honourable DULU J.
He never got to hear any witness.
It landed into my docket on the 31st of May 2023 after the transfer of the Judge and proceeded to hearing on the 24th of October 2023.
PW1 Stanley Kimanthi KIATU told the court was sleeping in his house On the night of first and second March 2020 at Kikima .Between 1:00am 2:00am he heard one Joyce Musyoki, the sister to his wife enter the gate of the plot while screaming . She was shouting that they had been attacked by thugs and was asking for help. He went to the scene. they found the deceased outside the plot in the open space . He was lying down and there were signs of bleeding. He could not talk next to him there was another person who was bleeding from the head. They took him to MBOONI Level 4 hospital but the doctor said he was already dead and advised them to take him to the mortuary. Police officers from the station accompanied them to the scene . The watchman told the police that the person they had left there was a thief who had run away .
He told the court that they left the thief at the scene because the watchman said that the kind of injuries he had he could not run away, And that is the reason why they went to the police to come and arrest him. However when they came back the watchman told them that he had run away. He said he did not believe that the three accused persons killed the deceased but that he believed most likely was the person who he found lying on the ground.
PW2 Susan Wanjiru NGUGI, Analyst at the government chemist told the court that on 13th March 2020 a police officer number 74837 CPL Alfred Kimithi from DCI MBOONI submitted for analysis 6 blood swabs marked A1, A2 ,B1 ,B2, C1, D1, two wooden chairs marked E1, and E 2 , maroon plastic sandals marked G1 ,knife marked I, Blood in a vacutainer marked M As blood of the deceased , red t-shirt collected from the scene marked N as belonging to the first accused, Blood sample in a vacutainer marked Q, as blood of the third accused , blood sample in a vacutainer marked R as blood of the first accused .
That there was no relationship between the DNA profile from the deceased and the DNA profile from the T shirt and that the DNA profile she had was of an unknown male person who was not before the court .PW3, BENARD MAINGI MWANGANGI The brother to the deceased was requested by the DCIO to attend the post-mortem at Montezuma Funeral Home to identify the body of his brother for purposes of post-mortem .
PW4 EUNICE MWONGELI MUTISYA was an employee of the deceased She told the court that she came to work on the 2nd of March and learnt of the incident that had happened the previous night .
PW5 DR. MICHIEKA OKIOGA MICHIEKA Conducted a post-mortem on 5th of March at Montezuma Funeral Home.
Cause of death was severe haemorrhage from the injuries caused by sharp object trauma in the lower abdomen. He was asked to read the circumstances of the death as written in the post-mortem form. He read that “it was alleged the deceased met his death after being stabbed with a sharp object at the stomach by an assailant who had gained access to his dwelling house corridor through the rooftop (slab)”.
Upon the testimony of the doctor the prosecutor Mr Kazungu told the court that the IO had told him he was not ready to appear on that particular date on that basis the prosecutor closed his case.
Mrs Kayugira appearing for the family protested the proposed closure of the case without the evidence of the investigating officer. She told the court that the IO had been bonded twice and the prosecution had a duty to avail the witness. That the prosecution could have had summons issued warrants issued.
She told the court “The witness says he was not bonded, he is in a bus. He was in a court yesterday “. She submitted that no basis had been laid by the prosecution of the attempts to get the witness to attend the court and that the witness had declined to attend court.
She submitted that before they came on record the prosecution had written to the family stating that they wanted to withdraw the case because of lack of evidence. She submitted that failure to secure the witnesses was clear intention to have the case abort prematurely She submitted further that the prosecution needed to show that they had tried to get the witness to appear in court.
In response Mr. Kazungu submitted that it was not the duty of the prosecution to bond witnesses that their duty was to inform and he had informed Mbooni West of the case on the 13th of November 2024 that the matter would come for hearing on the 13th of March 2025. That the letter was received by the DC I Mbooni West 2nd of December 2020 that they prosecution had given instructions that the DCIO bonds all the witnesses to appear on the 13th of March 2025.
He told the court that he followed up and ensured that the investigating officer who had been transferred received a copy his witness statement and the investigation diary so that he could prepare. That they had also marked today as a last adjournment. He submitted that he had not received any communication from the investigating officer. That he had not told him of any predicament even through his colleague who was in court. That the investigating officer was dismissive and simply stated or told him that he was not prepared to attend court without giving any explanation whatsoever.
He conceded that they had written a letter to the advocate acting for the family at the time Maanzo and Co advocates indicating that in their view the evidence was not sufficient to sustain the prosecution’s case. That the prosecution had the mandate to review the evidence and that they could not prosecute when they knew it was futile to do so.
Counsel for the accused person submitted that the prosecution’s case was built on quick sand and shoddy investigations and that was the reason for the unavailability of the investigating officer. He pointed out that the investigating officer was in close communication with Counsel for the family of the victim yet he was not even coming to court even if given a chance to come he informed the court that it was only proper for the court to have the case to be closed .
Mrs Kayugira submitted that whatever communication that Mr Kazungu had spoken about must have been between the investigating officer and Mbooni West DCI and not with CPL Kimithi.
After these submissions, the file was placed aside to give time for the investigating officer to log in. The court waited until 1740 hours. The witness did not log in or speak to Mr. Kazungu or his colleague officer who was in court.
Mr Kazungu told the court that he had sent the investigating officer texts He had not responded to the same .Mrs Kayugira submitted that she tried to call the number of the investigating officer but it was off. She urged the court to give the prosecution another date in the interests of justice. That the record would show that they had been given three hearing dates but had only used two. That the state had not been given a last adjournment and there was no need to mark it as such that; the court’s absence had inconvenienced the witnesses. That it was the duty of the investigating officer to bond witnesses and send signals through the formal channel so that the witness could be excused from work formally. That he had not received a formal leave or absence from work to attend this matter. That MR. Kazungu had given the number of the new investigating officer . That she had not seen any official bonding for the officer to be released from the station to attend court. That someone died , there is grief and the accused would still get their day in court.
In response Mr. Busiega opposed the application by Counsel for the victim submitting that the court had given the witness the whole day and the communication between the counsel for the victim and the witness was lost after the court had given the witness time to log into the system That the prosecutor and the colleagues in court tried everything but the witness refused to attend court that there was no plausible explanation As the court had been gracious waiting until 1749 Hrs for this five year matter yet the witness did not comply with court orders.
He urged the court not to reopen the case but to give directions on submissions.
Mr Kazungu submitted that his position had not changed and that as the DPP they wish to close their case given that they had done their part . It was his view that the investigating officer had decided not to testify in the case. It was his view that this matter needed to come to a close. He urged the court to determine the issue.
The only issue is whether this court should allow another date for this investigating officer to come and testify.
I have heard counsel for the victim, for the accused persons and the prosecutor.
The issue in contest appears to be the powers of the DPP regarding who they wish to call as witnesses and the power to withdraw the case against an accused person vis a vis the rights of the victim to be heard on these issues.
Article 157 of the Constitution provides :
6)The Director of Public Prosecutions shall exercise State powers of prosecution and may—
(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;
(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and
(c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).
(7) If the discontinuance of any proceedings under clause (6)(c) takes place after the close of the prosecution’s case, the defendant shall be acquitted.
(8) The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court
Hence, Mr. Kazungu was within his rights to make the application to withdraw the matter /discontinue the prosecution.
The conditions for withdrawal/discontinuance are set out herein above.
The Victim Protection Act Cap. 79A at section 9 provides for the Rights of the victim during the trial process
(1) A victim has a right to—
(a) be present at their trial either in person or through a representative of their choice;
(b) have the trial begin and conclude without unreasonable delay;
(c) give their views in any plea bargaining;
(d) have any dispute that can be resolved by the application of law decided in a fair hearing before a competent authority or, where appropriate, another independent and impartial tribunal or body established by law;
(e) be informed in advance of the evidence the prosecution and defence intends to rely on, and to have reasonable access to that evidence;
(f) have the assistance of an interpreter provided by the State where the victim cannot understand the language used at the trial; and
(g) be informed of the charge which the offender is facing in sufficient details.
(2) Where the personal interests of a victim have been affected, the Court shall—
(a) permit the victim's views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court; and
(b) ensure that the victim's views and concerns are presented in a manner which is not—
(i) prejudicial to the rights of the accused; or
(ii) inconsistent with a fair and impartial trial.
(3) The victim's views and concerns referred to in subsection (2) may be presented by the legal representative acting on their behalf.
The sole reason for all this is an investigation officer who despite having been the initial investigation officer had conditions; who chooses when to come to court, who decides who to communicate with and who ignores the court, and court orders, who decides that he must be bonded in his own way, that he must get leave from work, who requires that the prosecutor demonstrates that he personally bonded him etc etc. It is noteworthy that he refused to speak to the prosecutor or his colleague to explain where he was and when the court gave him time to appear, he refused to log in and switched of his phone.
I will not engage.
The counsel for the victim has urged the court to allow this witness to testify so that the victim can have his day in court.
The rights of the victim during trial include the consideration of the views as presented by the victim’s legal representative. The feelings that justice has been done must be protected.
The accused persons will through their counsel get the opportunity to cross examine the witness.
It is in this respect that I allow the objection against the closure of the case for the prosecution/application to withdraw the case and re -open the case for the prosecution to call this investigating officer to testify
Dated, signed and delivered virtually this 23rd May 2025
Mumbua T Matheka
Judge
The particulars are that on 2nd March 2020 at Kikima Shopping Center Mbooni West Sub County within Makueni County they unlawfully murdered Charles Musyoki Mwangangi.
The accused persons took plea Before the honourable ONG’UDI J On 30th March 2020 and each plea did not guilty
Upon her transfer the matter moved on 11th March 2021, to honourable DULU J.
He never got to hear any witness.
It landed into my docket on the 31st of May 2023 after the transfer of the Judge and proceeded to hearing on the 24th of October 2023.
PW1 Stanley Kimanthi KIATU told the court was sleeping in his house On the night of first and second March 2020 at Kikima .Between 1:00am 2:00am he heard one Joyce Musyoki, the sister to his wife enter the gate of the plot while screaming . She was shouting that they had been attacked by thugs and was asking for help. He went to the scene. they found the deceased outside the plot in the open space . He was lying down and there were signs of bleeding. He could not talk next to him there was another person who was bleeding from the head. They took him to MBOONI Level 4 hospital but the doctor said he was already dead and advised them to take him to the mortuary. Police officers from the station accompanied them to the scene . The watchman told the police that the person they had left there was a thief who had run away .
He told the court that they left the thief at the scene because the watchman said that the kind of injuries he had he could not run away, And that is the reason why they went to the police to come and arrest him. However when they came back the watchman told them that he had run away. He said he did not believe that the three accused persons killed the deceased but that he believed most likely was the person who he found lying on the ground.
PW2 Susan Wanjiru NGUGI, Analyst at the government chemist told the court that on 13th March 2020 a police officer number 74837 CPL Alfred Kimithi from DCI MBOONI submitted for analysis 6 blood swabs marked A1, A2 ,B1 ,B2, C1, D1, two wooden chairs marked E1, and E 2 , maroon plastic sandals marked G1 ,knife marked I, Blood in a vacutainer marked M As blood of the deceased , red t-shirt collected from the scene marked N as belonging to the first accused, Blood sample in a vacutainer marked Q, as blood of the third accused , blood sample in a vacutainer marked R as blood of the first accused .
That there was no relationship between the DNA profile from the deceased and the DNA profile from the T shirt and that the DNA profile she had was of an unknown male person who was not before the court .PW3, BENARD MAINGI MWANGANGI The brother to the deceased was requested by the DCIO to attend the post-mortem at Montezuma Funeral Home to identify the body of his brother for purposes of post-mortem .
PW4 EUNICE MWONGELI MUTISYA was an employee of the deceased She told the court that she came to work on the 2nd of March and learnt of the incident that had happened the previous night .
PW5 DR. MICHIEKA OKIOGA MICHIEKA Conducted a post-mortem on 5th of March at Montezuma Funeral Home.
Cause of death was severe haemorrhage from the injuries caused by sharp object trauma in the lower abdomen. He was asked to read the circumstances of the death as written in the post-mortem form. He read that “it was alleged the deceased met his death after being stabbed with a sharp object at the stomach by an assailant who had gained access to his dwelling house corridor through the rooftop (slab)”.
Upon the testimony of the doctor the prosecutor Mr Kazungu told the court that the IO had told him he was not ready to appear on that particular date on that basis the prosecutor closed his case.
Mrs Kayugira appearing for the family protested the proposed closure of the case without the evidence of the investigating officer. She told the court that the IO had been bonded twice and the prosecution had a duty to avail the witness. That the prosecution could have had summons issued warrants issued.
She told the court “The witness says he was not bonded, he is in a bus. He was in a court yesterday “. She submitted that no basis had been laid by the prosecution of the attempts to get the witness to attend the court and that the witness had declined to attend court.
She submitted that before they came on record the prosecution had written to the family stating that they wanted to withdraw the case because of lack of evidence. She submitted that failure to secure the witnesses was clear intention to have the case abort prematurely She submitted further that the prosecution needed to show that they had tried to get the witness to appear in court.
In response Mr. Kazungu submitted that it was not the duty of the prosecution to bond witnesses that their duty was to inform and he had informed Mbooni West of the case on the 13th of November 2024 that the matter would come for hearing on the 13th of March 2025. That the letter was received by the DC I Mbooni West 2nd of December 2020 that they prosecution had given instructions that the DCIO bonds all the witnesses to appear on the 13th of March 2025.
He told the court that he followed up and ensured that the investigating officer who had been transferred received a copy his witness statement and the investigation diary so that he could prepare. That they had also marked today as a last adjournment. He submitted that he had not received any communication from the investigating officer. That he had not told him of any predicament even through his colleague who was in court. That the investigating officer was dismissive and simply stated or told him that he was not prepared to attend court without giving any explanation whatsoever.
He conceded that they had written a letter to the advocate acting for the family at the time Maanzo and Co advocates indicating that in their view the evidence was not sufficient to sustain the prosecution’s case. That the prosecution had the mandate to review the evidence and that they could not prosecute when they knew it was futile to do so.
Counsel for the accused person submitted that the prosecution’s case was built on quick sand and shoddy investigations and that was the reason for the unavailability of the investigating officer. He pointed out that the investigating officer was in close communication with Counsel for the family of the victim yet he was not even coming to court even if given a chance to come he informed the court that it was only proper for the court to have the case to be closed .
Mrs Kayugira submitted that whatever communication that Mr Kazungu had spoken about must have been between the investigating officer and Mbooni West DCI and not with CPL Kimithi.
After these submissions, the file was placed aside to give time for the investigating officer to log in. The court waited until 1740 hours. The witness did not log in or speak to Mr. Kazungu or his colleague officer who was in court.
Mr Kazungu told the court that he had sent the investigating officer texts He had not responded to the same .Mrs Kayugira submitted that she tried to call the number of the investigating officer but it was off. She urged the court to give the prosecution another date in the interests of justice. That the record would show that they had been given three hearing dates but had only used two. That the state had not been given a last adjournment and there was no need to mark it as such that; the court’s absence had inconvenienced the witnesses. That it was the duty of the investigating officer to bond witnesses and send signals through the formal channel so that the witness could be excused from work formally. That he had not received a formal leave or absence from work to attend this matter. That MR. Kazungu had given the number of the new investigating officer . That she had not seen any official bonding for the officer to be released from the station to attend court. That someone died , there is grief and the accused would still get their day in court.
In response Mr. Busiega opposed the application by Counsel for the victim submitting that the court had given the witness the whole day and the communication between the counsel for the victim and the witness was lost after the court had given the witness time to log into the system That the prosecutor and the colleagues in court tried everything but the witness refused to attend court that there was no plausible explanation As the court had been gracious waiting until 1749 Hrs for this five year matter yet the witness did not comply with court orders.
He urged the court not to reopen the case but to give directions on submissions.
Mr Kazungu submitted that his position had not changed and that as the DPP they wish to close their case given that they had done their part . It was his view that the investigating officer had decided not to testify in the case. It was his view that this matter needed to come to a close. He urged the court to determine the issue.
The only issue is whether this court should allow another date for this investigating officer to come and testify.
I have heard counsel for the victim, for the accused persons and the prosecutor.
The issue in contest appears to be the powers of the DPP regarding who they wish to call as witnesses and the power to withdraw the case against an accused person vis a vis the rights of the victim to be heard on these issues.
Article 157 of the Constitution provides :
6)The Director of Public Prosecutions shall exercise State powers of prosecution and may—
(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;
(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and
(c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).
(7) If the discontinuance of any proceedings under clause (6)(c) takes place after the close of the prosecution’s case, the defendant shall be acquitted.
(8) The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court
Hence, Mr. Kazungu was within his rights to make the application to withdraw the matter /discontinue the prosecution.
The conditions for withdrawal/discontinuance are set out herein above.
The Victim Protection Act Cap. 79A at section 9 provides for the Rights of the victim during the trial process
(1) A victim has a right to—
(a) be present at their trial either in person or through a representative of their choice;
(b) have the trial begin and conclude without unreasonable delay;
(c) give their views in any plea bargaining;
(d) have any dispute that can be resolved by the application of law decided in a fair hearing before a competent authority or, where appropriate, another independent and impartial tribunal or body established by law;
(e) be informed in advance of the evidence the prosecution and defence intends to rely on, and to have reasonable access to that evidence;
(f) have the assistance of an interpreter provided by the State where the victim cannot understand the language used at the trial; and
(g) be informed of the charge which the offender is facing in sufficient details.
(2) Where the personal interests of a victim have been affected, the Court shall—
(a) permit the victim's views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court; and
(b) ensure that the victim's views and concerns are presented in a manner which is not—
(i) prejudicial to the rights of the accused; or
(ii) inconsistent with a fair and impartial trial.
(3) The victim's views and concerns referred to in subsection (2) may be presented by the legal representative acting on their behalf.
The sole reason for all this is an investigation officer who despite having been the initial investigation officer had conditions; who chooses when to come to court, who decides who to communicate with and who ignores the court, and court orders, who decides that he must be bonded in his own way, that he must get leave from work, who requires that the prosecutor demonstrates that he personally bonded him etc etc. It is noteworthy that he refused to speak to the prosecutor or his colleague to explain where he was and when the court gave him time to appear, he refused to log in and switched of his phone.
I will not engage.
The counsel for the victim has urged the court to allow this witness to testify so that the victim can have his day in court.
The rights of the victim during trial include the consideration of the views as presented by the victim’s legal representative. The feelings that justice has been done must be protected.
The accused persons will through their counsel get the opportunity to cross examine the witness.
It is in this respect that I allow the objection against the closure of the case for the prosecution/application to withdraw the case and re -open the case for the prosecution to call this investigating officer to testify
Dated, signed and delivered virtually this 23rd May 2025
Mumbua T Matheka
Judge