1. James Mbugua Gathogo is charged with two counts of murder contrary to section 203 as read with section 204 of the Penal Code.
2. The particulars of the offence in count one are that on the 27th day of April 2020, at Karagoini sub-location within Nyandarua County, he murdered Margaret Wairimu Kiago.
3. In count two, the particulars are that on the 27th day of April 2020, at Karagoini sub-location within Nyandarua County, he murdered James Maina Mbogo.
4. The mother and child, who were the two deceased persons, had their burnt bodies discovered in their burnt house. The accused was charged with the murder of the two.
5. In his defence, the accused claimed that the OCS had called him and informed him about the two deaths by fire, but he did not visit the scene that day. He denied any responsibility for the deaths of the deceased.
6. The issues to be determined are:
a) Whether the prosecution established the cause of the deaths;
b) Whether the accused was in any way connected with the two deaths; and
c) Whether the offence of murder was established against the accused.
7. From the evidence that is on record, there are two possible explanations for the deaths. The easiest explanation is that the deaths were caused by an accidental fire. The second explanation is that the accused was possibly the author of the two deaths.
8. The absence of post-mortem reports that scientifically determine the cause of death leaves the court to speculate. This represents a significant failure by the prosecution counsel to call a witness to produce these crucial documents. The case has been pending since May 26, 2020. On November 25, 2025, the prosecution requested a witness summons for Dr. John Omido. When the case was heard on January 19, 2026, the prosecution informed the court that Dr. Omido could not attend, but did not provide a reason. This is unacceptable. Without any explanation, the court might interpret this as an attempt to deliberately obstruct the hearing.
9. Anne Wanjiru Mbogo (PW2) and Mary Wambui Mbogo (PW3) testified that on 26th April 2020, the accused was at the deceased's home, a fact the accused did not deny. He stated that he left the home around 5:30 p.m.
10. The prosecution did not present any evidence regarding the cause of the deaths. Could it have been an accidental fire, or is there a possibility that they were killed first and the scene was staged to resemble an accidental fire?
11. In his defence, the accused stated that the OCS contacted him while he was in Nyahururu on April 26, 2020, and told him that his wife and child had died in a fire at their home. He did not go to the police station that day but did so the next day, which raised suspicion about him. The Court of Appeal in the case of Sawe vs Republic [2003] KLR 354, held as follows:
Suspicion, however strong, cannot provide the basis of inferring guilt, which must be proved by evidence beyond a reasonable doubt.
12. The accused cannot be convicted on suspicion.
13. This case clearly reflects a poor investigation and incompetent prosecution. It's no surprise it took so long in court, and even then, some key witnesses were not called. This was a breach of Article 50 (2) (e) of the Constitution of Kenya Provides:
Every accused person has the right to a fair trial, which includes the right—
(e) to have the trial begin and conclude without unreasonable delay;
14. On January 19, 2026, when the court refused the prosecution's request for another adjournment, it acknowledged the breach of this provision. This situation requires the ODPP to discipline the prosecution team for failing to meet their professional standards.
15. The available evidence is insufficient to convict the accused of the crime. Therefore, he is acquitted of murder.
Delivered and signed at Nyandarua, this 23rd day of April 2026
2. The particulars of the offence in count one are that on the 27th day of April 2020, at Karagoini sub-location within Nyandarua County, he murdered Margaret Wairimu Kiago.
3. In count two, the particulars are that on the 27th day of April 2020, at Karagoini sub-location within Nyandarua County, he murdered James Maina Mbogo.
4. The mother and child, who were the two deceased persons, had their burnt bodies discovered in their burnt house. The accused was charged with the murder of the two.
5. In his defence, the accused claimed that the OCS had called him and informed him about the two deaths by fire, but he did not visit the scene that day. He denied any responsibility for the deaths of the deceased.
6. The issues to be determined are:
a) Whether the prosecution established the cause of the deaths;
b) Whether the accused was in any way connected with the two deaths; and
c) Whether the offence of murder was established against the accused.
7. From the evidence that is on record, there are two possible explanations for the deaths. The easiest explanation is that the deaths were caused by an accidental fire. The second explanation is that the accused was possibly the author of the two deaths.
8. The absence of post-mortem reports that scientifically determine the cause of death leaves the court to speculate. This represents a significant failure by the prosecution counsel to call a witness to produce these crucial documents. The case has been pending since May 26, 2020. On November 25, 2025, the prosecution requested a witness summons for Dr. John Omido. When the case was heard on January 19, 2026, the prosecution informed the court that Dr. Omido could not attend, but did not provide a reason. This is unacceptable. Without any explanation, the court might interpret this as an attempt to deliberately obstruct the hearing.
9. Anne Wanjiru Mbogo (PW2) and Mary Wambui Mbogo (PW3) testified that on 26th April 2020, the accused was at the deceased's home, a fact the accused did not deny. He stated that he left the home around 5:30 p.m.
10. The prosecution did not present any evidence regarding the cause of the deaths. Could it have been an accidental fire, or is there a possibility that they were killed first and the scene was staged to resemble an accidental fire?
11. In his defence, the accused stated that the OCS contacted him while he was in Nyahururu on April 26, 2020, and told him that his wife and child had died in a fire at their home. He did not go to the police station that day but did so the next day, which raised suspicion about him. The Court of Appeal in the case of Sawe vs Republic [2003] KLR 354, held as follows:
Suspicion, however strong, cannot provide the basis of inferring guilt, which must be proved by evidence beyond a reasonable doubt.
12. The accused cannot be convicted on suspicion.
13. This case clearly reflects a poor investigation and incompetent prosecution. It's no surprise it took so long in court, and even then, some key witnesses were not called. This was a breach of Article 50 (2) (e) of the Constitution of Kenya Provides:
Every accused person has the right to a fair trial, which includes the right—
(e) to have the trial begin and conclude without unreasonable delay;
14. On January 19, 2026, when the court refused the prosecution's request for another adjournment, it acknowledged the breach of this provision. This situation requires the ODPP to discipline the prosecution team for failing to meet their professional standards.
15. The available evidence is insufficient to convict the accused of the crime. Therefore, he is acquitted of murder.
Delivered and signed at Nyandarua, this 23rd day of April 2026