HCCR.E023 OF 2021 - JUDGMENT
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
CRIMINAL CASE NO.E023 OF 2021
REPUBLIC - - - STATE COUNSEL
VERSUS
JOHN WAMBUA NGUTU - -ACCUSED
JUDGMENT
1. John Wambua Ngutu is charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code .
It is alleged that on 23 rd August, 2021 at Kyuasine village in Kibwezi Sub-County within Makueni County he murdered Cosmas Muthusi Kawinzi.
2. On 7 th October, 2021 he pleaded not guilty to the charge before Hon. Dulu J. The matter proceeded before the judge on 29 th January, 2022. He heard PW1, 2, 3, 4. I took over on 23 rd May, 2023. I heard PW5, PW6, PW7, PW8, PW9, PW10 and accused.
Case for the Prosecution :
3. PW1, PW2, PW3, PW4 were neighbours of both the accused and the deceased.
4. It was the testimony of PW1 Margaret Ndunda that on 23 rd August, 2021 she was in her house at 9:00 p.m. when the wife of John the accused arrived asking for a phone to make a call to her husband, as her phone did not have credit. She called him, and told him to call her on her own phone. She left.
5. About 10:00 p.m., PW1 received a phone call from John the accused. He told her he would not get his wife on phone; despite the fact that she was the one who had requested him to call her.
6. Since they were neighbours and the homes were not far PW1 in the company of her child took her phone to John’s wife – She told the court that when she approached John’s homestead, she saw Muthusi sitting near John’s kitchen. She gave the phone to Winnie wife of John while she stood outside. She spoke to Muthusi and told him to get up and go home as it was night.
7. Shortly thereafter, John arrived, did not talk to anyone but entered his house, came out with a stick with which he hit Muthusi on the thigh three times while telling him – you drunk my money with liquor and you have come to disturb my people; - she identified a stick in court which was marked as PMFI-1. She said John did not see her – she was given her phone and she left.
8. The following day the said Winnie went to the house to borrow a match box – she also told her that Muthusi was unwell. She went to check on Muthusi and found him being loaded into an ambulance.
9. On cross-examination she said she could not give details of the stick that John hit Muthusi on the thigh three times, she did not see any blood; that Muthusi was drunk and was not talking.
10. PW2, Mary Nduku Musyoki testified that at 5:00 a.m., her niece told her that she could hear iron sheets being removed from the house of Mutinda, her son. Mutinda was not present. When she went to check she found a person lying down in her son’s compound, she did not recognize the person; and she sent her son to call John the accused who was her neighbor. The child came back with Winifred the wife of John. She testified that the wife of John identified the person as Muthusi and said that John her husband had assaulted him.
Other neighbours were rang. Then Muthusi’s brother Ndone and his sister Mukulu came too, and an ambulance was called.
11. On cross-examination she said she did not hear the sound of iron sheets being removed; that some iron sheets had been removed from the windows, the window was open, she said Muthusi was lying on the ground; that she did not ask Winnie why John had not come nor did she ask the child she sent whether she had spoken to John. She said she knew John sold potatoes in the market. She said Muthusi was breathing with difficulty; she was not aware he suffered from asthma.
12. PW3, Muthua Kikoto was the Community Policing representative – he was called to the scene by one Felix Musyimi and went to the homestead of PW2 – Mary at 6:30 a.m. He saw Muthusi lying there helpless. He rang the siblings of Muthusi – and while they were there, the wife of John came and said that John her husband had assaulted Muthusi.
13. He said they tried to trace Muthusi’s foot prints to see where he had come from before lying there. He said they went to John’s house and found Muthusi’s hat there – that from John’s house to where Muthusi lay was not far. That Muthusi died on the way to hospital. He identified the hat as PMFI-2 .
14. On Cross-examination he said Muthusi looked like a person who had fallen down, that he did not know whether Muthusi had raided a house; he said Muthusi did not have shoes that night; He said he identified Muthusi’s foot prints; he conceded he was not an expert on foot prints . He said he found Muthusi in critical condition and he was not talking.
15. PW4, James Tana Salim was called by the wife of John from his house at 5:45 a.m. He accompanied her to the homestead of Mary, her son Mutinda’s homestead. Muthusi as lying there with blood stains on the thigh, - that Winfred told him that her husband John had beaten Muthusi.
16. On cross-examination he said he saw blood on Muthusi’s legs. That when he arrived with Winfred and Mary there were other people there. He said where Cosmas lay, the window iron sheets were loose.
17. PW5, Manthi Ndungi testified that he and Muthusi were given the job of selling potatoes by John on 23 rd August, 2021 – that Muthusi was his supervisor. That around 1:00 p.m., he took his sales of Ks.1800/= to Muthusi who told him he had a shortfall of Ksh.40/=.
PW5 did not agree with him and told him he would not continue with the work until John came back. He said when John came – Muthusi told him that PW5 was short Ksh.40/, John told Muthusi he (John) was short by Ksh.500/=. John had taken Muthusi’s phone for charging. Muthusi asked for the phone. John refused with the phone – John refused to give back the phone – a kind of scuffle ensued.
18. PW5 asked for his pay. John told him to ask Muthusi. It was about 6:00 p.m. PW5 was not satisfied with the answer, and asked how he could tell him to demand pay from Muthusi yet they were both employed by him. John told him that he and Muthusi were together in taking his money.PW5 left – leaving them scuffling over Muthusi’s phone.
19. The next morning, he PW5 met the village elder who showed him the photo of Muthusi lying down – he went to where Muthusi was and even accompanied him in the mbiulens (ambulance ) to hospital – they were told he was dead – and they went to Shahidii (CID) who asked him if he knew John. He said yes – he went to John to demand for his bucket, and that is how John was arrested.
20. On cross-examination he said he was given almost a sack of potatoes to sell – and his short was only Ksh.40/= and Muthusi’s was Ksh.500/=. He said John accused him and Muthusi of spending his money. He said John refused to pay. He did not see John beat Muthusi.
21. PW6, Prisca Sanga Musyoka was a form 2 student at the material time. On 24 th August, 2021 at 5:30 a.m., as she prepared to go to school, she heard the sound of iron sheets being pulled from her aunt’s house – she went to wake her aunt up ( Mary Musyoki ) and when they went to check they found Cosmas lying on the ground on the side of house in “ hali mahututi .” He could not speak; his clothes were bloodstained. She was sent to call the accused John who was their neighbor – it is the wife who responded by telling her that her husband was not around.
22. She (John’s wife) accompanied her home – where the she (wife of John) told her that if the man was Muthusi – it is her husband who had beaten him. She left for school – her aunt told her to pass by the home of the village elder and inform him which she did. When she came back home in the evening she heard that Muthusi had died.
23. On cross-examination, she said she heard the sound of someone removing iron sheets – but on going there they found Muthusi lying down. She said she could not tell whether he had fallen from the roof. That he could not have climbed in state he was in.
24. PW7, Mary Kawinzi attended the post-mortem of Muthusi who was her brother on 27 th August, 2021 she said the doctor said he bled from the brain. She said on cross-examination that she did not witness the whole post-mortem but she saw that he had injuries to the leg and head.
25. PW8, Dr. Josephine Mueni Maithya conducted the post-mortem on the body of 42 year old male – He had a hematoma on the mid and behind part of the head, bruises on left upper limb, right lower limb, Blackish spots on right lung, bleeding into the brain on the back part of the head – cause of death – severe injury due to assault.
26. On cross-examination she said that she could not confirm from the examination whether the injury was from a fall/hit by a blunt object. She said that asthma could cause such injuries to the lungs.
27. PW9, No.112404 PC. Stephen Wanjiru of DCI Kibwezi was the Investigating Officer. Report of suspected murder at Kyuasine was made on 24 th August, 2021 at 11:00 hours vide O.B. 21 – by one Manthi Ndungi, of one Cosmas Muthusi Kawinzi. That he had been assaulted the previous night by one John Wambua Ngutu. He proceeded to the scene. He established what was told by the prosecutions witnesses – about the goings on between deceased, and accused, and the sale of potatoes, and how deceased went to accused’s house at night to demand for his phone. That accused arrived on his motor bike, beat the deceased and chased him away. He reiterated how deceased was found the following morning by the school girl. He produced in court the “ rungu ” allegedly used by accused to hit the deceased, the deceased’s phone – and a hat said to have been recovered at the scene as Pexh-1 2,3,4 respectively.
28. On cross-examination he said that scene was not at the home of the accused person, but that the deceased was not found in that home. He said he visited Mary’s place but the deceased was not there as he had been taken to hospital, and the scene had been tampered with. That at the home of accused he recovered rungu, mobile phone both of which accused handed out to them. He said they arrested accused on 24 th August, 2021 and went with him to his house.
29. He said the rungu had blood stains. He said he did not take it to the government analysis because the accused handed over to them and said it was the one he had used. He said there was an inventory signed by the accused but was not certain that it had been produced. He said the hat was handed over to him by the brother of deceased one Samwel. He said Samwel was a witness. He said even Manthi Ndungi identified the hat.
30. Asked about the injuries on deceased he said they were on head and knees. He said he got the impression that deceased was struggling to get up. He said it was possible deceased could have fallen as he was drunk. He said deceased was escorted out of the home of accused by accused. That one Margaret Mbula and wife of accused saw him. That wife of accused Winfred Paul was not a witness.
31. He said he could not tell whether accused knocked deceased.
32. On re-examination he said the primary scene was Mary’s home, then that the scene was progressive from accused’s home, to Mary’s home, to Kibwezi Sub-county hospital.
33. PW10, Samwel Ndone Kawinzi brother to deceased was rung on 24 th August, 2021 and told about his brother was injured. He told the court what he was told by other people – about John beating his brother – he even said that one Beth told him that Muthusi asked her for water and told her that John beat him. He testified that wife of John allegedly told him.
34. On cross-examination he said he was rung by Mutua Kikoto who also took him to where Muthusi was and he found 8 other people; He said Mary was one of them and she is the one who told him she spoke to deceased. When it was put to him that she testified that deceased could not speak, he said he did not know. He confirmed that he did not recover anything from John’s house belonging to deceased.
The Defence :
35. In his sworn statement of defence the accused person acknowledged that he had assigned Muthusi and PW5 Manthi Ndungi some work to sell his potatoes – and they had disagreed on sales returns and his payment. He confirmed that he had Muthusi’s phone which he had taken for charging, a fat that was stated by PW5. He also accepted that on the material night he was called from wherever he was because Muthusi was at home disturbing his family.
36. He said he came home but John took off and he never contacted him. He denied assaulting Muthusi on the material night and any other time.
37. The defence closed.
38. Neither the defence nor the prosecution filed any submissions (as on 6 th June, 2026 at 22:00 hours).
Analysis and determination :
39. The issue for determination is whether the prosecution has proved the charge of murder against the accused person beyond a reasonable doubt to warrant a conviction.
40. Section 203 of the Penal Code as read with Section 206 lays down the ingredients of Murder – as was summarized in Roba Galma Wario –vs- Republic [2015] eKLR
“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional .”
41. Further in Nzuki –vs- Republic [1993] eKLR on the proof of the intentions the court had this to say;
For the purposes of the present appeal, murder is the unlawful killing of a human being with malice aforethought. “Malice aforethought” is a term of art and is either an express intention to kill, as could be inferred when a person threatens another and proceeds to produce a lethal weapon and uses it on his victim; or implied, where, by a voluntary act, a person intended to cause grievous bodily harm to his victim and the victim died as the result. See the case of Regina v Vickers, [1957] 2 QB 664 at page 670. An intention connotes a state of affairs which the person intending does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition. See the case of Conliffe v Goodman, [1950] 2 KB 237.
Before an act can be murder, it must be aimed at someone and in addition it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused:
(i) The intention to cause death;
(ii) The intention to cause grievious bodily harm;
(iii) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from these acts, and commits those acts deliberately and without lawful excuse the intention to expose a potential victim to that risk as the result of those acts.
It does not mater in such circumstances whether the accused desires those consequences to ensue or not and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed.
Without an intention of one of these three types, the mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into the crime of murder. See the case of Hyam v Director of Public Prosecutions, [1975] AC 55.
In an appeal such as the present one, any one of the intentions set out above is a necessary constituent of the offence of murder contrary to section 204 of the Penal Code and the burden of proving any such intention is throughout on the prosecution. No doubt, if the prosecution prove an act the natural consequence of which should be a certain result and no evidence or explanation is given, then the Court may, on a proper direction, find that the accused is guilty of doing the act with the necessary intent, but if on the totality of evidence there is room for more than one view as to the intent of the accused, the Court should direct itself that it is for the prosecution to prove the necessary intent to its satisfaction, and if, on a review of the whole evidence, it either thinks that that intent did not exist or it is left in doubt in respect thereof, the accused should be given the benefit of that doubt...
Death :
42. It is not in doubt that Cosmas Muthusi died. The cause of death was severe head injury hence it was unlawful death. Note however that the pathologist could not say with certainty whether it was from a fall or a blow. A witness thought he could have fallen. The I.O said he could have fallen because he was drunk. the only eye witness to anything John did was to hit the deceased three times with a stick on the thigh telling him to leave.
43. Did the accused cause the death?.
44. Throughout the case for the prosecution the running connecting thread among all the witnesses was that it was the wife of the accused, one Winfred Paul who told everyone that the deceased was assaulted by the accused – her own husband. This Winfred Paul did not testify.
45. even as the prosecution led this evidence, The prosecution was alive to the fact that the wife of the accused was not compellable as the circumstances of this case did not fall under Section 127(3) of the Evidence Act, Cap.80 Laws of Kenya.
127. Competency of parties and spouses.
(3) In criminal proceedings the wife or husband of the person charged shall be a competent and compellable witness for the prosecution or defence without the consent of such person, in any case where such person is charged—
(a) with the offence of bigamy; or
(b) with offences under the Sexual Offences Act (No. 3 of 2006);
(c) in respect of an act or omission affecting the person or property of the wife or husband of such person or the children of either of them, and not otherwise.
(4) In this section "husband" and "wife" mean respectively the husband and wife of a marriage, whether or not monogamous, which is by law binding during the lifetime of both parties unless dissolved according to law, and includes a marriage under native or tribal custom.
46. Every witness the prosecution led, who relied on what they were allegedly told by the wife of the accused, gave hearsay evidence. The prosecution was aware that the general rule against hearsay evidence as stated in Section 63 of the Evidence Act – all oral evidence must be direct from the person who says he/she heard. In Gatobu –vs- R [2026] KECA 1033 (KLR) the Court of Appeal had this to say in hearsay evidence .
The general rule against hearsay evidence, stated in section 63 of the Evidence Act , is that oral evidence in all cases must be direct evidence. The effect of section 63 is to exclude hearsay evidence in a trial . P. B. Carter , in Cases and Statutes on Evidence , Sweet & Maxwell, 1981, at p. 319 expresses the principle as follows:
“Assertions which are not made at the trial by the witness who is testifying are inadmissible as evidence of the truth of that which is asserted. Such assertions are hearsay and (except in certain non-adversarial proceedings) are generally excluded at common law. The underlying notion is that a witness should speak only of facts which he has perceived with one of his five senses. But it is to be emphasised that the hearsay rule is directed against, and only against, evidence of out-of-court assertions which are being tendered as evidence of their truth.
The exclusion of hearsay evidence applies both to spoken and to written evidence or assertions.
While there are many reasons why hearsay evidence is excluded in a trial, the principal one is that the reliability of hearsay evidence is doubtful, particularly because of lack of an opportunity to test its veracity by cross-examination .
47. This witness could not have been available to tell the court what exactly happened and to be cross-examined on her evidence.
48. This applies to the evidence of PW10 Samwel Ndone Kawinzi who claimed that one Beth told him that she had spoken to the deceased, and the deceased had told her that John had assaulted him. That too was hearsay evidence as the alleged Beth did not testify before court on the alleged statement – All the hearsay evidence that the prosecution led is inadmissible and cannot be used against the accused person.
49. The investigating officer tried on his part to introduce an alleged confession on the part of the accused through the back door, knowing too well that what he was telling the court was also inadmissible and could not be used against the accused.
50. He was led by the prosecution to tell the court that he did not take the blood stained rungu he recovered to the government analyst because the accused handed it over to him and told him he had used it. This was a complete failure of investigations and if truly the Investigating Officer had recovered a blood stained rungu he would have taken it to the government analyst for forensics. He stating that the accused handed it to him, and admitted to hitting the deceased with it was inadmissible as there was no evidence that he had informed the accused person of his right to remain silent and that anything he said about the case could be used against him in compliance ith the Constitution Article 49 rights, or that he had complied with the provisions of the Evidence Act on confessions.
51. The only evidence that the accused allegedly hit the deceased was that of PW1- she alleged that accused hit the deceased with a stick on the thigh; and told him to leave. She also said she told the deceased to leave the accused’s home she said that accused did not see her in his home yet, he is the one who had called her to take her phone to his wife so that he could communicate with him. and her phone was still with the accused’s wife. Why would she hide from John yet she had walked from her house after 10pm to take her phone to John’s wife at his request so that John could talk to his wife?
52. That hitting on the leg (thigh) was not the fatal injury – and no one saw the accused hit the deceased on the head. PW1 had gone to the home of accused with her child – this child did not testify – yet they were together;- to say whether or not she witnessed the accused hit the deceased that night.
53. The accused person denied the offence. He said he was away from home that night, and was only called home because Muthusi was there disturbing his family. His evidence is corroborated by PW1 who had to go to his home to give his wife her phone to call him. It is also evident that he told the truth when he said he did not sleep at home that night – because when the child was sent to call him in the morning only his wife was present and she told the child he was not at home. He said he spent the night at the market guarding his potatoes.
54. PW6, Prisca Sanga is the one who found Muthusi – after she heard that sound of iron sheets being removed from her aunties house – it was 5:30 a.m. – he was lying down next to the house –The incident at Accused’s house had happened around 1030pm. From 10:30 p.m. to 5:30 a.m. – the investigating Officer did not bother to investigate what could have happened. Where could Muthusi have been from at that time? What was he doing at that homestead of Mary? How far was that from his own home?
55. But more importantly was there any connecting evidence of his injuries at the home of the accused? If indeed the accused was assaulted in that home, and he bled – was any of his blood found in the home of the accused person – There was nothing other than circumstantial evidence that the deceased had been to accused’s house that night and therefore accused must have inflicted the fatal injuries. . However, the prosecution did not connect that visit to the home of the accused with the scene at the home of the PW2 on 24 th August, 2021 at 5:30 a.m.
56. The doctor said the injury could have been from a fall. The Investigating Officer also said that the deceased could have fallen because he was drunk.
57. There was no eyewitness, to the inflicting of the head injury and the prosecution relied mostly on circumstantial evidence. This was defined in Kipkering, Arap Koske and another (1949) 16 EACA . The court stated
Such evidence is sometimes compared to a chain with its links as a rope with several strands, each link or strand must be carefully tested and if in the end it does not lead to the irresistible conclusion of the accused’s guilt, the whole chain or rope must be rejected
58. Also, in Abanga Alias Onyango V Republic Cr Appeal No. 32 Of 1990 (UR) the Court of Appeal set out the applicable principles in determining whether the circumstantial evidence adduced in a case was sufficient to sustain a conviction. The court stated that
It is settled that when a case rests entirely on circumstantial evidence such evidence must satisfy three tests
i. The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established
ii. Those circumstances should be of a definite tendency unerringly pointing towards guilt of their accused
iii. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human possibility the crime was committed by the accused and none else’
59. There accused person gave a reasonable defence of where he was on the material night. He did not deny coming home to check on his family after he was told Muthusi was there disturbing them. PW1 confirmed that Muthusi was drunk that night to the extent that he was not talking. She did not witness the fatal blow. Muthusi was found in another home in a situation that suggested that he might have fallen down and hurt himself.
60. Has the prosecution proved their case beyond a reasonable doubt?
61. In Nyanjui v Republic [2023] KECA 1122 (KLR) w the court of appeal addressed the issue of proof beyond a reasonable doubt at length stating;
It is the duty of the prosecution to prove its case against an accused person beyond reasonable doubt and if there is a doubt it must be resolved in favour of the accused. This was the holding by the House of Lords in the leading Judgment in that area in the case of Woolmington v Director of Public Prosecutions [1935] AC 462 where the Court held that the burden of proof in criminal cases is always on the prosecution to prove the defendant’s guilt beyond a reasonable doubt. That position and the holding in Woolmington (supra) has been accepted and applied by our Courts for many years.
8.For instance, in the case of Moses Nato Raphael v Republic [2015] eKLR this Court referred to the speech by their Lordships in the said case and stated:' The principle of law to the effect that the burden of proof in criminal matters lies with the prosecution is now old hat. There are of course, a few instances where the law provides for the converse, and shifts this duty to the accused, but that is not the case here. This principle is well captured in the time honored English case of Woolmington v DPP (1935) AC 462 where the Court stated: 'Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject to the qualification involving the defence of insanity and to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether the offence was committed by him, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.'
9.Lord Denning in Miller v Ministry of Pensions [1947] 2 All ER 372 stated of what amounts to reasonable doubt: 'That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. if the evidence is so strong against a man as to leave only a remote possibility in his favour with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.'
10.This Court in the case of Simon Mwangi Wambui v Republic [2014] eKLR stated the duty of the prosecution in criminal cases on burden of proof following Woolmington (supra): 'We agree with counsel for the appellant that it is the duty of the prosecution to prove the guilt of an accused person and that if at the end of the whole case there is reasonable doubt created by the evidence given by either the prosecution or the defence as to the guilt of the accused then the prosecution has not made out the case and the accused is entitled to an acquittal. That is the principle that emerges from the House of Lords decision in Woolmington v DPP [1935] All E R 1 to which we were referred.'
62. In this case the prosecution failed in their duty and the order that begs is an acquittal.
63. The accused gets the benefit of doubt, the charge of murder is dismissed and the accused is acquitted accordingly. He is to be set at liberty unless otherwise legally held.
Judgment read, signed and delivered virtually at Kabarnet this 12 Day of June 2026
Mumbua T. MATHEKA
JUDGE
In the presence of :
- Chrispol Court Assistant
- Accused present
- Musyoki for the State
- Hassan holding brief for Ong’on
[...truncated]
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
CRIMINAL CASE NO.E023 OF 2021
REPUBLIC - - - STATE COUNSEL
VERSUS
JOHN WAMBUA NGUTU - -ACCUSED
JUDGMENT
1. John Wambua Ngutu is charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code .
It is alleged that on 23 rd August, 2021 at Kyuasine village in Kibwezi Sub-County within Makueni County he murdered Cosmas Muthusi Kawinzi.
2. On 7 th October, 2021 he pleaded not guilty to the charge before Hon. Dulu J. The matter proceeded before the judge on 29 th January, 2022. He heard PW1, 2, 3, 4. I took over on 23 rd May, 2023. I heard PW5, PW6, PW7, PW8, PW9, PW10 and accused.
Case for the Prosecution :
3. PW1, PW2, PW3, PW4 were neighbours of both the accused and the deceased.
4. It was the testimony of PW1 Margaret Ndunda that on 23 rd August, 2021 she was in her house at 9:00 p.m. when the wife of John the accused arrived asking for a phone to make a call to her husband, as her phone did not have credit. She called him, and told him to call her on her own phone. She left.
5. About 10:00 p.m., PW1 received a phone call from John the accused. He told her he would not get his wife on phone; despite the fact that she was the one who had requested him to call her.
6. Since they were neighbours and the homes were not far PW1 in the company of her child took her phone to John’s wife – She told the court that when she approached John’s homestead, she saw Muthusi sitting near John’s kitchen. She gave the phone to Winnie wife of John while she stood outside. She spoke to Muthusi and told him to get up and go home as it was night.
7. Shortly thereafter, John arrived, did not talk to anyone but entered his house, came out with a stick with which he hit Muthusi on the thigh three times while telling him – you drunk my money with liquor and you have come to disturb my people; - she identified a stick in court which was marked as PMFI-1. She said John did not see her – she was given her phone and she left.
8. The following day the said Winnie went to the house to borrow a match box – she also told her that Muthusi was unwell. She went to check on Muthusi and found him being loaded into an ambulance.
9. On cross-examination she said she could not give details of the stick that John hit Muthusi on the thigh three times, she did not see any blood; that Muthusi was drunk and was not talking.
10. PW2, Mary Nduku Musyoki testified that at 5:00 a.m., her niece told her that she could hear iron sheets being removed from the house of Mutinda, her son. Mutinda was not present. When she went to check she found a person lying down in her son’s compound, she did not recognize the person; and she sent her son to call John the accused who was her neighbor. The child came back with Winifred the wife of John. She testified that the wife of John identified the person as Muthusi and said that John her husband had assaulted him.
Other neighbours were rang. Then Muthusi’s brother Ndone and his sister Mukulu came too, and an ambulance was called.
11. On cross-examination she said she did not hear the sound of iron sheets being removed; that some iron sheets had been removed from the windows, the window was open, she said Muthusi was lying on the ground; that she did not ask Winnie why John had not come nor did she ask the child she sent whether she had spoken to John. She said she knew John sold potatoes in the market. She said Muthusi was breathing with difficulty; she was not aware he suffered from asthma.
12. PW3, Muthua Kikoto was the Community Policing representative – he was called to the scene by one Felix Musyimi and went to the homestead of PW2 – Mary at 6:30 a.m. He saw Muthusi lying there helpless. He rang the siblings of Muthusi – and while they were there, the wife of John came and said that John her husband had assaulted Muthusi.
13. He said they tried to trace Muthusi’s foot prints to see where he had come from before lying there. He said they went to John’s house and found Muthusi’s hat there – that from John’s house to where Muthusi lay was not far. That Muthusi died on the way to hospital. He identified the hat as PMFI-2 .
14. On Cross-examination he said Muthusi looked like a person who had fallen down, that he did not know whether Muthusi had raided a house; he said Muthusi did not have shoes that night; He said he identified Muthusi’s foot prints; he conceded he was not an expert on foot prints . He said he found Muthusi in critical condition and he was not talking.
15. PW4, James Tana Salim was called by the wife of John from his house at 5:45 a.m. He accompanied her to the homestead of Mary, her son Mutinda’s homestead. Muthusi as lying there with blood stains on the thigh, - that Winfred told him that her husband John had beaten Muthusi.
16. On cross-examination he said he saw blood on Muthusi’s legs. That when he arrived with Winfred and Mary there were other people there. He said where Cosmas lay, the window iron sheets were loose.
17. PW5, Manthi Ndungi testified that he and Muthusi were given the job of selling potatoes by John on 23 rd August, 2021 – that Muthusi was his supervisor. That around 1:00 p.m., he took his sales of Ks.1800/= to Muthusi who told him he had a shortfall of Ksh.40/=.
PW5 did not agree with him and told him he would not continue with the work until John came back. He said when John came – Muthusi told him that PW5 was short Ksh.40/, John told Muthusi he (John) was short by Ksh.500/=. John had taken Muthusi’s phone for charging. Muthusi asked for the phone. John refused with the phone – John refused to give back the phone – a kind of scuffle ensued.
18. PW5 asked for his pay. John told him to ask Muthusi. It was about 6:00 p.m. PW5 was not satisfied with the answer, and asked how he could tell him to demand pay from Muthusi yet they were both employed by him. John told him that he and Muthusi were together in taking his money.PW5 left – leaving them scuffling over Muthusi’s phone.
19. The next morning, he PW5 met the village elder who showed him the photo of Muthusi lying down – he went to where Muthusi was and even accompanied him in the mbiulens (ambulance ) to hospital – they were told he was dead – and they went to Shahidii (CID) who asked him if he knew John. He said yes – he went to John to demand for his bucket, and that is how John was arrested.
20. On cross-examination he said he was given almost a sack of potatoes to sell – and his short was only Ksh.40/= and Muthusi’s was Ksh.500/=. He said John accused him and Muthusi of spending his money. He said John refused to pay. He did not see John beat Muthusi.
21. PW6, Prisca Sanga Musyoka was a form 2 student at the material time. On 24 th August, 2021 at 5:30 a.m., as she prepared to go to school, she heard the sound of iron sheets being pulled from her aunt’s house – she went to wake her aunt up ( Mary Musyoki ) and when they went to check they found Cosmas lying on the ground on the side of house in “ hali mahututi .” He could not speak; his clothes were bloodstained. She was sent to call the accused John who was their neighbor – it is the wife who responded by telling her that her husband was not around.
22. She (John’s wife) accompanied her home – where the she (wife of John) told her that if the man was Muthusi – it is her husband who had beaten him. She left for school – her aunt told her to pass by the home of the village elder and inform him which she did. When she came back home in the evening she heard that Muthusi had died.
23. On cross-examination, she said she heard the sound of someone removing iron sheets – but on going there they found Muthusi lying down. She said she could not tell whether he had fallen from the roof. That he could not have climbed in state he was in.
24. PW7, Mary Kawinzi attended the post-mortem of Muthusi who was her brother on 27 th August, 2021 she said the doctor said he bled from the brain. She said on cross-examination that she did not witness the whole post-mortem but she saw that he had injuries to the leg and head.
25. PW8, Dr. Josephine Mueni Maithya conducted the post-mortem on the body of 42 year old male – He had a hematoma on the mid and behind part of the head, bruises on left upper limb, right lower limb, Blackish spots on right lung, bleeding into the brain on the back part of the head – cause of death – severe injury due to assault.
26. On cross-examination she said that she could not confirm from the examination whether the injury was from a fall/hit by a blunt object. She said that asthma could cause such injuries to the lungs.
27. PW9, No.112404 PC. Stephen Wanjiru of DCI Kibwezi was the Investigating Officer. Report of suspected murder at Kyuasine was made on 24 th August, 2021 at 11:00 hours vide O.B. 21 – by one Manthi Ndungi, of one Cosmas Muthusi Kawinzi. That he had been assaulted the previous night by one John Wambua Ngutu. He proceeded to the scene. He established what was told by the prosecutions witnesses – about the goings on between deceased, and accused, and the sale of potatoes, and how deceased went to accused’s house at night to demand for his phone. That accused arrived on his motor bike, beat the deceased and chased him away. He reiterated how deceased was found the following morning by the school girl. He produced in court the “ rungu ” allegedly used by accused to hit the deceased, the deceased’s phone – and a hat said to have been recovered at the scene as Pexh-1 2,3,4 respectively.
28. On cross-examination he said that scene was not at the home of the accused person, but that the deceased was not found in that home. He said he visited Mary’s place but the deceased was not there as he had been taken to hospital, and the scene had been tampered with. That at the home of accused he recovered rungu, mobile phone both of which accused handed out to them. He said they arrested accused on 24 th August, 2021 and went with him to his house.
29. He said the rungu had blood stains. He said he did not take it to the government analysis because the accused handed over to them and said it was the one he had used. He said there was an inventory signed by the accused but was not certain that it had been produced. He said the hat was handed over to him by the brother of deceased one Samwel. He said Samwel was a witness. He said even Manthi Ndungi identified the hat.
30. Asked about the injuries on deceased he said they were on head and knees. He said he got the impression that deceased was struggling to get up. He said it was possible deceased could have fallen as he was drunk. He said deceased was escorted out of the home of accused by accused. That one Margaret Mbula and wife of accused saw him. That wife of accused Winfred Paul was not a witness.
31. He said he could not tell whether accused knocked deceased.
32. On re-examination he said the primary scene was Mary’s home, then that the scene was progressive from accused’s home, to Mary’s home, to Kibwezi Sub-county hospital.
33. PW10, Samwel Ndone Kawinzi brother to deceased was rung on 24 th August, 2021 and told about his brother was injured. He told the court what he was told by other people – about John beating his brother – he even said that one Beth told him that Muthusi asked her for water and told her that John beat him. He testified that wife of John allegedly told him.
34. On cross-examination he said he was rung by Mutua Kikoto who also took him to where Muthusi was and he found 8 other people; He said Mary was one of them and she is the one who told him she spoke to deceased. When it was put to him that she testified that deceased could not speak, he said he did not know. He confirmed that he did not recover anything from John’s house belonging to deceased.
The Defence :
35. In his sworn statement of defence the accused person acknowledged that he had assigned Muthusi and PW5 Manthi Ndungi some work to sell his potatoes – and they had disagreed on sales returns and his payment. He confirmed that he had Muthusi’s phone which he had taken for charging, a fat that was stated by PW5. He also accepted that on the material night he was called from wherever he was because Muthusi was at home disturbing his family.
36. He said he came home but John took off and he never contacted him. He denied assaulting Muthusi on the material night and any other time.
37. The defence closed.
38. Neither the defence nor the prosecution filed any submissions (as on 6 th June, 2026 at 22:00 hours).
Analysis and determination :
39. The issue for determination is whether the prosecution has proved the charge of murder against the accused person beyond a reasonable doubt to warrant a conviction.
40. Section 203 of the Penal Code as read with Section 206 lays down the ingredients of Murder – as was summarized in Roba Galma Wario –vs- Republic [2015] eKLR
“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional .”
41. Further in Nzuki –vs- Republic [1993] eKLR on the proof of the intentions the court had this to say;
For the purposes of the present appeal, murder is the unlawful killing of a human being with malice aforethought. “Malice aforethought” is a term of art and is either an express intention to kill, as could be inferred when a person threatens another and proceeds to produce a lethal weapon and uses it on his victim; or implied, where, by a voluntary act, a person intended to cause grievous bodily harm to his victim and the victim died as the result. See the case of Regina v Vickers, [1957] 2 QB 664 at page 670. An intention connotes a state of affairs which the person intending does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition. See the case of Conliffe v Goodman, [1950] 2 KB 237.
Before an act can be murder, it must be aimed at someone and in addition it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused:
(i) The intention to cause death;
(ii) The intention to cause grievious bodily harm;
(iii) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from these acts, and commits those acts deliberately and without lawful excuse the intention to expose a potential victim to that risk as the result of those acts.
It does not mater in such circumstances whether the accused desires those consequences to ensue or not and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed.
Without an intention of one of these three types, the mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into the crime of murder. See the case of Hyam v Director of Public Prosecutions, [1975] AC 55.
In an appeal such as the present one, any one of the intentions set out above is a necessary constituent of the offence of murder contrary to section 204 of the Penal Code and the burden of proving any such intention is throughout on the prosecution. No doubt, if the prosecution prove an act the natural consequence of which should be a certain result and no evidence or explanation is given, then the Court may, on a proper direction, find that the accused is guilty of doing the act with the necessary intent, but if on the totality of evidence there is room for more than one view as to the intent of the accused, the Court should direct itself that it is for the prosecution to prove the necessary intent to its satisfaction, and if, on a review of the whole evidence, it either thinks that that intent did not exist or it is left in doubt in respect thereof, the accused should be given the benefit of that doubt...
Death :
42. It is not in doubt that Cosmas Muthusi died. The cause of death was severe head injury hence it was unlawful death. Note however that the pathologist could not say with certainty whether it was from a fall or a blow. A witness thought he could have fallen. The I.O said he could have fallen because he was drunk. the only eye witness to anything John did was to hit the deceased three times with a stick on the thigh telling him to leave.
43. Did the accused cause the death?.
44. Throughout the case for the prosecution the running connecting thread among all the witnesses was that it was the wife of the accused, one Winfred Paul who told everyone that the deceased was assaulted by the accused – her own husband. This Winfred Paul did not testify.
45. even as the prosecution led this evidence, The prosecution was alive to the fact that the wife of the accused was not compellable as the circumstances of this case did not fall under Section 127(3) of the Evidence Act, Cap.80 Laws of Kenya.
127. Competency of parties and spouses.
(3) In criminal proceedings the wife or husband of the person charged shall be a competent and compellable witness for the prosecution or defence without the consent of such person, in any case where such person is charged—
(a) with the offence of bigamy; or
(b) with offences under the Sexual Offences Act (No. 3 of 2006);
(c) in respect of an act or omission affecting the person or property of the wife or husband of such person or the children of either of them, and not otherwise.
(4) In this section "husband" and "wife" mean respectively the husband and wife of a marriage, whether or not monogamous, which is by law binding during the lifetime of both parties unless dissolved according to law, and includes a marriage under native or tribal custom.
46. Every witness the prosecution led, who relied on what they were allegedly told by the wife of the accused, gave hearsay evidence. The prosecution was aware that the general rule against hearsay evidence as stated in Section 63 of the Evidence Act – all oral evidence must be direct from the person who says he/she heard. In Gatobu –vs- R [2026] KECA 1033 (KLR) the Court of Appeal had this to say in hearsay evidence .
The general rule against hearsay evidence, stated in section 63 of the Evidence Act , is that oral evidence in all cases must be direct evidence. The effect of section 63 is to exclude hearsay evidence in a trial . P. B. Carter , in Cases and Statutes on Evidence , Sweet & Maxwell, 1981, at p. 319 expresses the principle as follows:
“Assertions which are not made at the trial by the witness who is testifying are inadmissible as evidence of the truth of that which is asserted. Such assertions are hearsay and (except in certain non-adversarial proceedings) are generally excluded at common law. The underlying notion is that a witness should speak only of facts which he has perceived with one of his five senses. But it is to be emphasised that the hearsay rule is directed against, and only against, evidence of out-of-court assertions which are being tendered as evidence of their truth.
The exclusion of hearsay evidence applies both to spoken and to written evidence or assertions.
While there are many reasons why hearsay evidence is excluded in a trial, the principal one is that the reliability of hearsay evidence is doubtful, particularly because of lack of an opportunity to test its veracity by cross-examination .
47. This witness could not have been available to tell the court what exactly happened and to be cross-examined on her evidence.
48. This applies to the evidence of PW10 Samwel Ndone Kawinzi who claimed that one Beth told him that she had spoken to the deceased, and the deceased had told her that John had assaulted him. That too was hearsay evidence as the alleged Beth did not testify before court on the alleged statement – All the hearsay evidence that the prosecution led is inadmissible and cannot be used against the accused person.
49. The investigating officer tried on his part to introduce an alleged confession on the part of the accused through the back door, knowing too well that what he was telling the court was also inadmissible and could not be used against the accused.
50. He was led by the prosecution to tell the court that he did not take the blood stained rungu he recovered to the government analyst because the accused handed it over to him and told him he had used it. This was a complete failure of investigations and if truly the Investigating Officer had recovered a blood stained rungu he would have taken it to the government analyst for forensics. He stating that the accused handed it to him, and admitted to hitting the deceased with it was inadmissible as there was no evidence that he had informed the accused person of his right to remain silent and that anything he said about the case could be used against him in compliance ith the Constitution Article 49 rights, or that he had complied with the provisions of the Evidence Act on confessions.
51. The only evidence that the accused allegedly hit the deceased was that of PW1- she alleged that accused hit the deceased with a stick on the thigh; and told him to leave. She also said she told the deceased to leave the accused’s home she said that accused did not see her in his home yet, he is the one who had called her to take her phone to his wife so that he could communicate with him. and her phone was still with the accused’s wife. Why would she hide from John yet she had walked from her house after 10pm to take her phone to John’s wife at his request so that John could talk to his wife?
52. That hitting on the leg (thigh) was not the fatal injury – and no one saw the accused hit the deceased on the head. PW1 had gone to the home of accused with her child – this child did not testify – yet they were together;- to say whether or not she witnessed the accused hit the deceased that night.
53. The accused person denied the offence. He said he was away from home that night, and was only called home because Muthusi was there disturbing his family. His evidence is corroborated by PW1 who had to go to his home to give his wife her phone to call him. It is also evident that he told the truth when he said he did not sleep at home that night – because when the child was sent to call him in the morning only his wife was present and she told the child he was not at home. He said he spent the night at the market guarding his potatoes.
54. PW6, Prisca Sanga is the one who found Muthusi – after she heard that sound of iron sheets being removed from her aunties house – it was 5:30 a.m. – he was lying down next to the house –The incident at Accused’s house had happened around 1030pm. From 10:30 p.m. to 5:30 a.m. – the investigating Officer did not bother to investigate what could have happened. Where could Muthusi have been from at that time? What was he doing at that homestead of Mary? How far was that from his own home?
55. But more importantly was there any connecting evidence of his injuries at the home of the accused? If indeed the accused was assaulted in that home, and he bled – was any of his blood found in the home of the accused person – There was nothing other than circumstantial evidence that the deceased had been to accused’s house that night and therefore accused must have inflicted the fatal injuries. . However, the prosecution did not connect that visit to the home of the accused with the scene at the home of the PW2 on 24 th August, 2021 at 5:30 a.m.
56. The doctor said the injury could have been from a fall. The Investigating Officer also said that the deceased could have fallen because he was drunk.
57. There was no eyewitness, to the inflicting of the head injury and the prosecution relied mostly on circumstantial evidence. This was defined in Kipkering, Arap Koske and another (1949) 16 EACA . The court stated
Such evidence is sometimes compared to a chain with its links as a rope with several strands, each link or strand must be carefully tested and if in the end it does not lead to the irresistible conclusion of the accused’s guilt, the whole chain or rope must be rejected
58. Also, in Abanga Alias Onyango V Republic Cr Appeal No. 32 Of 1990 (UR) the Court of Appeal set out the applicable principles in determining whether the circumstantial evidence adduced in a case was sufficient to sustain a conviction. The court stated that
It is settled that when a case rests entirely on circumstantial evidence such evidence must satisfy three tests
i. The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established
ii. Those circumstances should be of a definite tendency unerringly pointing towards guilt of their accused
iii. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human possibility the crime was committed by the accused and none else’
59. There accused person gave a reasonable defence of where he was on the material night. He did not deny coming home to check on his family after he was told Muthusi was there disturbing them. PW1 confirmed that Muthusi was drunk that night to the extent that he was not talking. She did not witness the fatal blow. Muthusi was found in another home in a situation that suggested that he might have fallen down and hurt himself.
60. Has the prosecution proved their case beyond a reasonable doubt?
61. In Nyanjui v Republic [2023] KECA 1122 (KLR) w the court of appeal addressed the issue of proof beyond a reasonable doubt at length stating;
It is the duty of the prosecution to prove its case against an accused person beyond reasonable doubt and if there is a doubt it must be resolved in favour of the accused. This was the holding by the House of Lords in the leading Judgment in that area in the case of Woolmington v Director of Public Prosecutions [1935] AC 462 where the Court held that the burden of proof in criminal cases is always on the prosecution to prove the defendant’s guilt beyond a reasonable doubt. That position and the holding in Woolmington (supra) has been accepted and applied by our Courts for many years.
8.For instance, in the case of Moses Nato Raphael v Republic [2015] eKLR this Court referred to the speech by their Lordships in the said case and stated:' The principle of law to the effect that the burden of proof in criminal matters lies with the prosecution is now old hat. There are of course, a few instances where the law provides for the converse, and shifts this duty to the accused, but that is not the case here. This principle is well captured in the time honored English case of Woolmington v DPP (1935) AC 462 where the Court stated: 'Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject to the qualification involving the defence of insanity and to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether the offence was committed by him, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.'
9.Lord Denning in Miller v Ministry of Pensions [1947] 2 All ER 372 stated of what amounts to reasonable doubt: 'That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. if the evidence is so strong against a man as to leave only a remote possibility in his favour with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.'
10.This Court in the case of Simon Mwangi Wambui v Republic [2014] eKLR stated the duty of the prosecution in criminal cases on burden of proof following Woolmington (supra): 'We agree with counsel for the appellant that it is the duty of the prosecution to prove the guilt of an accused person and that if at the end of the whole case there is reasonable doubt created by the evidence given by either the prosecution or the defence as to the guilt of the accused then the prosecution has not made out the case and the accused is entitled to an acquittal. That is the principle that emerges from the House of Lords decision in Woolmington v DPP [1935] All E R 1 to which we were referred.'
62. In this case the prosecution failed in their duty and the order that begs is an acquittal.
63. The accused gets the benefit of doubt, the charge of murder is dismissed and the accused is acquitted accordingly. He is to be set at liberty unless otherwise legally held.
Judgment read, signed and delivered virtually at Kabarnet this 12 Day of June 2026
Mumbua T. MATHEKA
JUDGE
In the presence of :
- Chrispol Court Assistant
- Accused present
- Musyoki for the State
- Hassan holding brief for Ong’on
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