RULING ( S. 306 CPC)
The two accused persons JOHN KYENGO KYAMBI and JONATHAN MUTHOKA KYAMBI are charged with murder contrary to section 203 as read with section 204 of the Penal Code.
The particulars are that on 25th March 2023 at Mulenyo Village Kilili sub location Nzaui Sub county Makueni County they murdered Nicholas Kituku Kisiku.
The prosecution called 9 witnesses.
The case for the prosecution was that on 29th March 2023 the body of a man was found near GNCA church.
It was identified as the body of the deceased.
The police were called to the scene. They took the body to mortuary and the post-mortem was conducted by PW8 Dr Evelyn Kitungo.
The deceased had multiple body injuries: bruises on the left maxilla, left wrist, anterior abdominal wall, dry blood on both nostrils and oral cavity and peripheral cyanosis. There was a massive subdural hematoma in the brain and she formed the opinion that the cause of death was severe head injury caused by blunt force trauma secondary to physical assault.
PW9 is number 69584 Sergeant Martin Samburomo Iterie. He was the investigating officer. He told the court that on the 25th of March 2023 a report was made at Matiliku police station that the body of a person had been found at Kathaatu village, Kilili location. He and his colleagues went to the scene where the body was identified as that of Nicholas Kituku Kisiku.
He told the court that he learnt from the scene that the deceased was talking to a woman by the name Mumbua Tom Mutua the wife of Jonathan Mutua Kyambi the previous night on phone. That her husband overheard the conversation and he gathered that his wife and the man on the phone were planning to meet at GNCA.
That when his wife left he followed her, and found them in in the act of having sexual inter course. That it was at that moment that the husband to the said Mumbua hit the deceased on the head, that the deceased lost consciousness and later died.
PW9 told court that he did not have a single witness who had recorded a statement to that effect as having witnessed the alleged incident and that this is what he heard from people at the scene.
The investigating officer told the court that he had advised the ODPP that he did not have sufficient evidence to charge the suspects. The I.O also told the court that after putting all this evidence together he was of the opinion that the matter required the conduct of an inquest. Thereafter he was transferred and was only called to come and testify.
PW1 Peter Mutua Kasivo identified the body for post-mortem at Kilome Mortuary on 29th March 2023.
P W 2 John Mulwa Keli was on 25th March 2023 at 7:30am going on his way to Kwa Ngonzu village when he saw a crowd. He went there and saw a body lying there that appeared to have foam on the mouth and an injury on one leg. He saw the police come and take the body away. He on cross examination rejected his statement that the told the police that he had not identified the person as the deceased. He also told the court that his village was Mulata, the deceased came from Siaulwe and his body was found at Kwa Ngonzo which is far from his village.
PW3 Henry Musyoka Lavu testified that he was from Kilili village and on 25th March 2013 at 9:00am he met one Musili and some women who told him that they were from a scene where a man had been beaten and died near GNCA church.
The prosecution led this witness in giving his evidence on what he alleged the 2nd Accused Muthoka had told him. He alleged that he met the accused person on the 8th of May 2023 after the 2nd accused person had been released from police custody where he had been held as a suspect in this murder. Lavu alleged that the 2nd accused person confessed to him that he overheard a conversation of his wife on phone. He heard the word GNCA and proceeded GNCA where he waited for one and a half hours. He saw Kituku arrive then half an hour later he saw his wife arrive. They then began to have sexual intercourse. That he was armed with a stick and he hit the deceased on the head. That he asked the 2nd accused why he did not just arrest the deceased? He said the 2nd accused told him that he wanted to send the deceased to where women have no husbands. He said that this 2nd accused told him this when they were just the two of them.
On cross examination he said he did not know the village where this incident happened. He could not explain the fact that he alleged that the Assistant chief of Kathaatu was his Assistant Chief, yet he said his s/location was Kilili. He could not explain how the 2nd accused could confess something so grave to him yet they were not friends or age mates. The did not share anything in common.
PW4 JohnFred Muteti Muumbi, an uncle of the deceased and a pastor at GRCI received a call from the area assistant chief to go to the home of the first accused. He saw the body of the deceased on the roadside and saw his nephew. He attended the post-mortem. He said the body of his nephew was found in a different village, his village is YOA Village but the body was in Kwa Ngonzo Village.
PW5 Miriam Mbithe Musyimi the assistant Chief Kathaatu sub location. She testified that she was told by Jonathan Muthoka Kyambi that there was a dead body near his home. She asked him how he knew and he told her that he was phoned by one Philomena Ngina Kisilu. She went with him to the scene and they saw the body of the person to be that of the deceased she rang the chief who came and rang the police. She identified the second accused as a person who told her about the dead person.
She testified that five people were arrested including the second accused and his wife, his brother PW2 and one Pauline Mueni Kitua.
On cross examination she told the court that Lavu was a suspect in a murder of his own brother. She said he was from Isololo village.
PW6 Titus Mutisya Mativo, told the court that he was are chief Kilili Location and had receive a call from Miriam about the body on 25th March 2023. He went the scene, called the ACC and the OCS. Police came and took away the body.
PW7 Fredrick Kasanga Kavolo from Mulata village saw the deceased the on 24th March 2023 about 7:30 pm in Kathaatu area. The next day about 8:00am he saw a crowd across the valley from his home. He went there and found that it was Nicholas who had been killed.
The prosecution relied on this evidence to exercise their decision to charge accused persons with the murder of the accused persons.
At the close of their case the question is whether it is sufficient to warrant the accused being put on the defence.
Neither the defence nor the prosecution wished to put in any written submissions. Mr. Mathuva for the accused persons submitted that this case should never have seen the light of day and should have been an inquest.
Section 306 of the Criminal Procedure Code provides guidance as to what the court ought to do at the close of the case for the prosecution. The section states inter alia:
(1) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.
(2) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.
The issue for determination is whether there is a prima facie case to warrant either both the accused or one of them to be put on the defence.
The prosecution is required to establish a prima facie case upon which the court could convict if the defence did not offer an explanation.
This prima facie case ought to establish the ingredients of the offence of murder: in this case there is a deceased person, the pathologist confirmed that death was not by natural causes, but as a result of injuries inflicted upon the deceased.
Were the accused persons implicated by the evidence?
I am concerned that the prosecution relied on the hearsay evidence of PW4, yet they did not have a confession obtained in accordance with the evidence Act.
The 1st accused person is not mentioned by any one as a suspect. Why was he arrested?
The prosecution did not produce any evidence to support the theory that the 2nd accused person ambushed his wife in the act with the deceased and killed him.
No phone data to confirm the alleged calls between the deceased and the wife of the 2nd accused person or to place him at the scene were the body of the deceased was found.
The Court in Bhatt v Republic (1957) EA 332-334 & 335 in defining a prima facie case stated.
“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution case, the case is merely one which on fully consideration might possibly be thought sufficient to sustain a conviction. This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is some evidence irrespective of its credibility or weight, sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence.”
The prosecution did not produce even a scintilla of evidence to connect the accused persons with the alleged offence.
In Erickson Chengoli Wanyonyi v Republic [2018] KECA 542 (KLR)the Court of Appeal had this to say;
[21] In light of the above, we find that there was really no circumstantial evidence adduced against the appellant that could lead to the inescapable conclusion that he was guilty of the murder of the deceased. All there was, was suspicion, but a court of law cannot act on mere suspicion no matter how strong. The appellant’s conviction was therefore not safe. Accordingly, we allow this appeal, set aside the appellant’s conviction and sentence. The appellant shall be forthwith set free unless otherwise lawfully held.
It is my considered view that in this case there was unfounded suspicion in the form of hearsay evidence, which the prosecution presented in court, but which did not amount to evidence that amounts to a prima facie case. The prosecution ought to have listened to the Investigation Officer in this one, or directed further action.
In the circumstances, I must find that the matter falls under s. 306(1) of the Criminal Procedure Code. I make a finding of not guilty, dismiss the charge of murder against each of the accused persons and acquit each accordingly.
Dated signed and delivered in open court this 13th March 2025
Mumbua T Matheka
Judge
In the presence of:
Ms Nelima Court Assistant
1st Accused
2nd Accused
Mr. Mathuva for accused persons
Mr. Kazungu for state