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1. The Accused persons were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Chapter 63, Laws of Kenya. The Information stated that on 29th December 2014 at Kivae in Athi River Sub- County within Machakos County, they jointly murdered Jackson Maungu John (the deceased).
2. They pleaded not guilty to the charge and the prosecution called a total of eleven witnesses in a bit to prove their case.
3. PW1, Victor Mbinda Muinde, a Jua Kali artisan from Machakos Kiandani, testified that on 31st December 2014, while working on a fence at the farm of Mzee Ngelai (Plot No. 2334), he received information from one Muoki that Baba Marion (the deceased) had been killed on the same farm. He stated that he knew the deceased personally, as they came from the same area, and that his father was a friend of the deceased.
4. PW2, Daniel Muoki Morris, a technician from Machakos, testified that on 29th December 2014, he was requested by Mr. Mbinda (PW1) to assist him in fencing work alongside the deceased. While they were surveying the farm, he heard commotion from a group of people approaching them. Out of fear, they began to flee, but the deceased was obstructed by another fence and fell down. PW2 testified that the mob caught up with the deceased and assaulted him using rungus, pangas, and stones. He identified some of the assailants as the 1st, 2nd and 3rd accused persons, noting that the group consisted of about five people. He further testified that he knew the accused persons as they were from the same locality.
5. PW2 stated that he reported the incident at Mavoko Police Station, along with members of the deceased’s family. He later attended an identification parade where he identified the accused persons and recorded his statement with the police. He testified that he had known the deceased all his life, as they hailed from the same neighbourhood, and described the deceased as a family man with four children. Upon cross-examination, PW2 stated that he no longer resides in Kivae. He confirmed that the farm where they were working belonged to one Mr. Ngelai, and that they arrived there at around 6:00 p.m. to survey the land. He noted that the crime scene was approximately 500 metres from the nearest police post. According to him, the attackers were a mob of about 50 to 60 people who approached from different directions. He testified that he initially stood still but upon seeing the group, started running away. He stated that he recognized the 1st accused person and knew the others by appearance though not by name.
6. PW2 further testified that he could not clearly identify the specific weapons used, only that he saw the assailants’ hands moving as they struck the deceased. He estimated that he stood about 30 metres away from the scene and could see the accused persons assaulting the deceased at around 6:30 p.m. He added that no police officer came to the scene at that time and confirmed that he later identified the accused persons during an identification parade conducted at the police station.
7. PW3, David Ndolo Ngilai, testified that he works with Malili Ranch as a Committee Director. He stated that on 12th December 2014, he met Victor Muinde (PW1), whom he requested to fence his farm located at Lukenya, Plot No. 2334/3, Kenania. He explained that the arrangement was for the land to be surveyed first before they could agree on the fencing costs. PW3 further testified that he later learnt that Muinde had proceeded to the site and while visiting the farm, he was chased away by squatters and his companion was beaten to death. He stated that Muinde informed him that he had reported the incident to the police and that he was also required to record a statement, which he subsequently did.
8. Upon cross-examination, PW3 testified that he only knew that Muinde had gone to the farm and later informed him that they had been attacked by squatters and that his companion had been killed, though he did not know the identity of the deceased. He confirmed that he holds the original title deed to his property, Title No. 2334/3, and that there was no pending court case in relation to the said land. He stated that he was not aware of any group known as Kivae Residents Organisation, but he is a member of Lukenya Ranching and Farming Cooperative Limited. He further testified that his title deed has never been cancelled by the National Land Commission, and that the land is currently idle, with grass and trees. He added that he had built a house on the land, but squatters removed the roof, and continued to disturb him. PW3 concluded that he learned of the deceased’s death on 26th January 2015.
9. PW4, (No. 200811297), Inspector Dominic Mureithi Wanjohi testified that on 30th December 2014 at about 1300 hours, he received information from Victor Mbinda (PW1) that someone had been attacked at the Kivae area, although the victims’ condition was unclear. Acting on this report, PW4 proceeded to the scene, accompanied by officers, and after a search, they discovered a male body lying by a fence near Kisima Park. The body had multiple deep cuts and severed parts. PW4 testified that he immediately informed the OCS, Athi River, and secured the scene. At about 1800 hours, officers from Athi River Police Station arrived and took over the scene. He stated that he did not personally know the deceased but later recorded his statement regarding the incident.
10. Upon cross-examination, PW4 testified that he received the report from Victor at around 1300 hours. Although he was not aware how Victor obtained his contact, he noted that police officers always often share their numbers during barazas, making it accessible to the public. He confirmed that he proceeded to the scene immediately after the call and found the body near a fence at Kisima Park. He stated that he did not know who had killed the deceased and could not tell the exact time of death. He further testified that there were land problems in the Kivae area between persons holding title deeds and squatters, although he was unaware whether any titles had been cancelled.
11. PW5, Inspector Nobert Magoha, testified that he was attached to the Athi River Police Station, performing general police duties. He stated that on 30th December 2014, at about 1800 hours, while at the station, he received a call from the OCS, Chief Inspector Gitau, instructing him to visit a scene of a sudden death within the Daystar area. He was directed to meet Inspector Mureithi (PW4) at the scene. PW5 testified that he proceeded there in the company of a police driver and Constable Sabwa. Upon arrival at Daystar, he met Inspector Mureithi, who directed them to the scene of the alleged murder near Kisima Park where they found the body of an unidentified male with multiple deep cut wounds. He observed that the killing appeared to have occurred the previous day, as the blood had already dried and there was a slight odour. They photographed the scene, retrieved the body from the bush, and transported it to the Machakos Level Five Hospital Mortuary. Thereafter, he returned to the station and later recorded his statement.
12. PW5 stated that the deceased was initially unknown to him but was later identified by relatives as Jackson Maundu. Upon cross-examination, he testified that he did not know when the first report about the incident was made, but that he personally received instructions on 30th December 2014, and immediately proceeded to the scene, arriving at about 1800 hours. He acknowledged that there were numerous land disputes within the Kivae area, and that the situation had been volatile at the time, though it had since calmed. He further testified that he knew one of the accused persons, Benedict Ndunda Nzomo, from a previous occasion when the latter had lodged a complaint that people were harassing them at Kivae. He stated that the accused had not mentioned any police officer in his complaint but had expressed frustration that police officers were not assisting with the land issues. PW5 confirmed that the scene of the murder was bushy and added that he was aware that Benedict Ndunda Nzomo had a pending robbery case before the Mavoko Court.
13. PW6, Vincent Nguyo John, a mechanic from Mumbuni, Machakos, testified that he knew Jackson Maundu John (the deceased). He recalled that on 7th January 2015, he went to the Machakos Level Five Mortuary in the company of his niece, Katunge, where they confirmed that one of the bodies there was that of their brother, the deceased. He testified that the body had visible injuries on the head and that one eye had been gouged out. Thereafter, they went home, and the burial was subsequently conducted. PW6 later recorded his statement with the police.
14. PW7, Alphonce Musembi, a resident of Mumbuni area in Kamoo Village, testified that he operates a motorcycle taxi business. He stated that on 29th December 2014, he had been engaged to assist in fencing a plot of land in the Kinanie area. Upon arrival at the site, a large group of people armed with pangas suddenly appeared and attacked them. He testified that the deceased, who was in his company, was unable to escape and was surrounded and assaulted by the mob. PW7 stated that he identified the 1st accused person as the one who gave orders to the crowd to kill the deceased. He further testified that the 2nd accused was armed with a panga, the 3rd accused carried a large stick, while the 4th and 5th accused were armed with stones. He told the court that he witnessed the accused persons physically attacking the deceased.
15. PW8, Stephen Muli Wathome, a motorcycle taxi operator from Mumbuni, testified that on 29th December 2014, he was called by Muoki (PW2) and requested to join him for a fencing job within the Athi River area of Kinanie. He testified that he met Muoki at Kimongo and was accompanied by Alphonce Musembi (PW7) and the deceased. They proceeded to the land to survey it and to determine the labour costs. Shortly thereafter, a group of about ten people arrived, armed with pangas, bows and arrows, and stones.
16. PW8 testified that from where they stood, they were able to identify some of the attackers. He stated that he saw the 3rd accused attack the deceased using a panga, while the 4th accused whom he identified in court had a walking stick which he used to strike the deceased. He also mentioned that there was a woman among the attackers who was not before court. He stated that he had known some of the attackers from his previous work at Kimongo area and clarified that he had no personal differences with them prior to the incident. He testified that they fled for their safety and went home afterwards. The following day, Muoki informed him that the deceased had died, and he subsequently recorded his statement with the police.
17. Upon cross-examination, PW8 testified that they reached the farm at about 6:00 p.m., accompanied by Alphonce Musembi (PW7), Maurice Muoki (PW2), and the deceased. He stated that they travelled by public service vehicle to Athi River, from where they took motorcycles to the farm. He denied the suggestion that they had travelled by a private car. He testified that shortly after arriving and beginning their survey, a crowd appeared and chased them away.
18. He stated that although darkness had begun to set in, he was still able to see the 4th accused in the dock attacking the deceased. He could not recall the specific clothing worn by the 4th accused, but confirmed that the 3rd accused was armed with a panga, though he could not remember his attire either. He estimated the number of attackers to be about ten in number. PW8 testified that he mentioned the names of some attackers in his statement to the police. He confirmed that an identification parade was conducted during which he identified the 3rd and 4th accused persons. However, he could not recall whether the officer conducting the parade gave them any warnings or instructions beforehand.
19. He further stated that he left the responsibility of reporting the incident to the police to Muoki (PW2). He clarified that although the deceased had chest problems, he was not intoxicated on the material day, contrary to the allegations. He testified that one of them had a torch, but he did not see anyone use it towards the direction of the attackers. In his view, it was not sufficiently dark to necessitate the use of a torch, although he could not confirm whether Musembi (PW7) had used one. PW8 stated that he had previously worked in the Kimongo area, but had not heard of any land disputes there, and that he did not own land in that area. He concluded by stating that he did not know the motive behind the killing of the deceased.
20. PW9, Dr. Waithera Githendu, a Consultant Pathologist at Machakos Level Five Hospital, testified that on 7th January 2015, she conducted a post-mortem examination on the body of the deceased after it had been identified by two relatives. She stated that upon examination, the deceased’s body had multiple cut wounds located on the scalp, shoulders, left knee, left leg, lower and upper limbs, as well as fractures of both the limbs, the 8th rib, and the upper spine. She opined that the cause of death was multiple penetrating deep cut injuries, consistent with the use of a sharp object, which also caused the noted fractures and wounds. PW9 produced the post-mortem report dated 7th January 2015, which was marked and produced as an exhibit.
21. During cross-examination, PW9 stated that the body was partially decomposed, particularly the skin. She explained that it was not possible to determine the specific factors that caused the decomposition, noting that decomposition can begin shortly after death depending on climatic conditions such as temperature and humidity. She added that, theoretically, the degree of decomposition could be consistent with the prevailing climate at the time. The injuries observed were consistent with those inflicted by a sharp weapon, such as a panga.
22. PW10, Chief Inspector (CIP) Lilian Otieno, testified that in 2015, she was serving as the Deputy DCIO at Athi River Police Station. On 26th March 2015, at about 4:30 p.m., she received a request from the investigating officer, IP Lilian Mutinda, to conduct an identification parade involving three murder suspects, Mulwa Nzioka, Benedict Ndunda Nzomo, and Kiilu Nduva Makite.
23. She testified that she began with the first suspect, Mulwa Nzioka, whom she briefed on the purpose of the parade. The suspect consented to the process and was informed of his right to have a relative or friend present during the parade, which he declined. She then assembled eight other individuals of similar physical appearance to which the suspect, raised no objection. PW10 testified that three witnesses were scheduled to participate in the identification exercise, starting with Daniel Muoki (PW2). The witnesses were kept separately in the office of the officer in charge of crime, while the suspects were held in the cells, approximately 50 metres apart, to prevent interaction.
24. She stated that the first witness, Daniel Muoki, identified the suspect by touching him on the shoulder, after which the suspect remarked, “Niko sawa.” The suspect was then allowed to change position within the parade and opted to stand between the 2nd and 3rd members. The second witness, Alphonce Musembi (PW7), also positively identified the suspect by touching his shoulder, and the suspect again remarked, “Sawa.” The suspect then switched positions a second time, choosing to stand between the 6th and 7th members of the parade. The third witness, Stephen Muli Wathome (PW8), however, did not identify the suspect, and the suspect once again remarked, “Sawa.”
25. PW10 testified that at the conclusion of the exercise, she asked the suspect whether he was satisfied with the manner in which the parade had been conducted. The suspect responded that he was not satisfied, but did not provide any reasons for his dissatisfaction. Nevertheless, he signed the parade forms, which PW10 produced in evidence as Exhibit 2(a).
26. PW10 further testified that she conducted similar identification parades for the other suspects, namely Benedict Ndunda Nzomo, Kiilu Nduva Makite, John Nzomo Muindi, and Bernard Mwendwa. She produced, the corresponding identification parade forms as Exhibits 2B, 2C, 2D, and 2E, respectively. Upon cross-examination, she stated that the investigating officers had shown her the suspects beforehand which enabled her to source suitable members of the parade. She stated that the witnesses were kept at the office of the Officer Commanding Crime, located approximately 10 metres from the cells where the suspects were held. She ensured that the witnesses had no contact with the suspects or with each other after participating in the parade exercises.
27. PW10 confirmed that the office of the Officer Commanding Crime is a private one. She testified that she had briefed the witnesses prior to each parade but did not record this on the parade forms. She noted that the suspects were allowed to change positions after each round, and although she made comments during the exercise, the remarks section of the parade forms did not reflect them. She testified that the witnesses identified the suspects by touching them on the shoulder, but she did not record the specific part of the body touched, explaining that in her view, it was not necessary to indicate that detail.
28. PW11, Inspector Lydia Mutinda (No. 235716), testified that on 16th January 2015, she was informed by the Officer Commanding Station (OCS), Athi River, that a murder case had been reported, and she was assigned to investigate the matter.
29. She told the court that upon commencing investigations, she recorded statements from witnesses indicating that the deceased had been overpowered and killed by a crowd while undertaking fencing work at a plot of land. She further testified that, as part of her investigation, she organized identification parades for several suspects, during which the 1st, 2nd, and 3rd accused persons were identified by witnesses.
30. At this stage, the prosecution closed its case. Upon appreciating the prosecution evidence on record, Justice D. K. Kemei delivered a ruling in which he found that the accused persons had a case to answer and accordingly placed them on their defence. Each accused person elected to give sworn evidence in their respective defences. A total of 7 persons testified for the defence
31. It is noteworthy that from the record of proceedings, it was brought to the attention of the court on 25th July 2018 that the 4th accused person had passed away and this fact was duly noted and recorded by the court. The 1st accused is also recorded as having passed on.
32. DW1, Mulwa Nzioka, the 2nd accused person testified that he did not know the true identity of the deceased. He stated that on 28th December 2014, he was at his home in Kivae Village, within Athi River Sub-County. Earlier that day, he had attended to his farming and dairy activities, thereafter returned to his house at about 4:00 p.m., and later retired to bed at 9:00 p.m. He stated that he was in the company of his wife and daughter throughout. He testified that there were ongoing land disputes in the area, and that certain individuals were attempting to grab the land occupied by residents. According to him, these individuals offered residents Kshs. 100,000/= each as compensation to vacate the land, but he declined the offer. He further stated that, as a result, he was charged at the Mavoko Law Courts together with the 1st and 3rd accused persons in Mavoko PMC Criminal Case No. 1776 of 2015, where they were accused of forceful detainer and the complainant was Desire Land Company Limited. He produced a copy of the charge sheet in that case as Defence Exhibit 1 and testified that he was later acquitted of that charge.
33. DW1 further testified that an identification parade had been conducted by the police, but he was dissatisfied with the process and made his comments on the parade form. He maintained that he had been falsely implicated in the present case due to his vocal opposition to the alleged land grabbing and because he was perceived as one of the leaders of the villagers who resisted eviction.
34. Upon cross-examination, DW1 stated that he holds a title deed to the land, although he did not produce it in court. He admitted that there is an ongoing court case concerning the same land. He also stated that he was not aware of anyone who had died in the area in connection with the disputed land.
35. DW2, Kiilu Nduva, the 1st accused person testified that he did not know the deceased and denied any involvement in his death. He stated that on 29th December 2014, he was at his home, tending to his cows, and that he had witnesses, including one Ndunda, who could confirm his presence at home on that day. He testified that certain individuals were attempting to grab their land, and that there is an active High Court Case No. 560 of 2000 in Nairobi concerning the disputed property. He stated that he does not know his exact age but estimated it to be between 70 and 80 years. He maintained his innocence, reiterating that he did not kill anyone as alleged. He further testified that he does not possess formal ownership documents for the land he occupies, as it belonged to his late father, who had lived on for approximately ten years.
36. DW3, John Nzomo Muindi, the 5th accused person, testified that he had no knowledge of the alleged murder. He stated that on 29th December 2014, he was working with Consolana Stones Company as a driver, ferrying stones from Katangi to Bamburi. He left work at around 7:00 p.m. and returned home to join his wife and children. He testified that he believed his prosecution arose from land disputes in the Kivae area. He clarified that he does not personally hold title to any land, as the property in question belongs to the Kivae Residents Organisation.
37. He further testified that the identification parade conducted by the police was improperly carried out, as the witnesses who picked him out had already seen him beforehand. He stated that he objected to the manner in which the parade was conducted, as he had requested the presence of an independent observer, but his request was denied. He expressed his dissatisfaction with the entire process. DW3 stated that he relied on the evidence of his co-accused, Benedict Nzomo Ndunda, the 3rd accused person, in support of his defence. He produced a gate pass, marked as Defence Exhibit 2, showing that he was on duty on the material day. Upon cross-examination, he confirmed that Defence Exhibit 2 was neither dated nor stamped. He also referred to Defence Exhibit 3, comprising documents in which he had been sued, to demonstrate his involvement in the ongoing land dispute.
38. DW4, Bernard Muendo Musyoka, testified that on 29th December 2014, he left his home to join his son, Sebastian, at Athi River following a domestic dispute with his wife. He stated that he arrived at Athi River at around 1:00 p.m., met other relatives and stayed with them until 9:00 p.m., after which he returned to his home in Kivai the following day. He testified that he did not receive any report of a death having occurred in the area on that day. He further testified that his co-accused persons were his neighbours, and that he had lived on the disputed land for over 20 years, as the land belonged to the Kivai Residents Association. He told the court that some wealthy individuals had shown interest in the land and sought to evict them, leading to frequent conflicts.
39. DW4 testified that he was dissatisfied with the identification parade, stating that he was forced to participate in it. He narrated that he was arrested at night, during which his house was demolished and his property stolen. He further testified that he was the Vice Secretary of the Kivai Residents Association and believed he was targeted for arrest because of his leadership position. He stated that the wealthy individuals offered residents Kshs. 100,000 as an inducement to vacate the land, but he refused to accept the offer, and believed that this case was a consequence of his resistance. Upon cross-examination, he confirmed that the Association did not have a title to the land and that its members had occupied it as squatters for about 20 years, during which frequent disputes had occurred.
40. DW5, Benedict Ndunda Nzomo, the 3rd accused person, testified that on 29th December 2014, he woke up at his home in Kivai and later proceeded to Mavoko Law Courts for a hearing in a robbery with violence case in which he was an accused person. However, the hearing did not proceed as it was adjourned. He corroborated DW4’s testimony regarding the land dispute, stating that he served as the Coordinator of the Kivai Residents Association. He testified that the Association had been engaged in a long-standing struggle against unlawful evictions by individuals claiming ownership of the land.
41. DW5 produced Defence Exhibit 4, a letter dated 4th February 2015 written by the Chairperson of the Land Commission to the Machakos Land Registrar, directing that certain land files be made available to them.
42. DW6, Anne Mwikali Maingi, testified that the 5th accused person, John Nzomo Muindi, is her husband. She stated that on 29th December 2014, he left for work at around 7:00 a.m. and returned home at approximately 8:00 p.m. She testified that she was not aware of any incident involving the farm invasion or any killing that occurred on that day.
43. DW7, Sebastian Musyoki Mwendo, testified that he knows the 6th accused person and confirmed that on 29th December 2014, the 6th accused was at work. He stated that he only saw him in the afternoon when he returned from work and did not see him in the morning.
44. The defence closed its case and parties were directed to file their written submissions. According to the court record only the accused persons filed submissions dated 12th October 2022.
Accused persons submissions
45. The accused submitted that the main issue for determination is whether the prosecution proved beyond reasonable doubt that the accused persons committed the offence of murder. They contended that the prosecution failed to discharge this burden, as required under the law and as reaffirmed in Republic v Derrick Waswa Kuloba [2005] eKLR, where the court emphasized that the burden of proof in criminal cases rests solely on the prosecution. While making reference to section 203 of the Penal Code, the accused outlined the three essential ingredients of the offence of murder: proof of the fact and cause of death, proof that the death resulted from an unlawful act or omission by the accused, and proof that the act or omission was committed with malice aforethought. While they did not dispute the fact of death, they questioned the alleged date of death in view of the decomposition observed in the deceased’s body. They highlighted inconsistencies between the prosecution’s claim that the deceased was killed on 29th December 2014 and the postmortem report which indicated that the body was already decomposed when recovered the following day. According to them, this suggested that the death may have occurred several days earlier, which was inconsistent with the prosecution’s timelines and version of events.
46. Regarding whether it was the accused who caused the death, the defence emphasized that no murder weapon was recovered or produced in evidence. They argued that the only evidence linking them to the offence was the purported visual identification by PW2, PW7 and PW8, which they described as unreliable and inconsistent. The accused relied on the case of Wamunga v Republic [1989] KLR 426 to submit that evidence of identification must be carefully scrutinized and can only be relied upon when the circumstances are favourable and free from the possibility of error.
47. They highlighted contradictions in the witnesses’ testimonies including differences regarding the mode of travel to the scene, the source and sufficiency of light, and the distance from which the witnesses allegedly identified the accused persons. They contended that it was practically impossible to identify persons from 20 to 30 meters away in darkness while fearing for one’s life.
48. While citing Ndungu Kimanyi v Republic [1979] KLR 283, they submitted that the credibility of the prosecution witnesses was questionable and that their inconsistencies rendered their evidence unsafe for reliance. They further relied on Joseph Muchangi Nyaga & Another v Republic [2013] eKLR, where the court held that evidence of visual identification, especially under difficult circumstances, must be watertight. They also cited R v Turnbull & Others [1976] 3 All ER 549, where Lord Widgery CJ set out the guidelines for testing the reliability of identification evidence.
49. The accused urged the court to find that the circumstances under which they were allegedly identified were poor, and the purported visual identification was unreliable, inconclusive unworthy of reliance.
50. On the issue of the identification parade, the accused relied on David Mwita Wanja & 2 Others v Republic [2007] eKLR to emphasize the importance of conducting identification parades with scrupulous fairness in accordance with the Police Standing Orders. They argued that the parades in this case were improperly conducted, as the witnesses had not provided prior descriptions of the suspects and that the accused were mistreated during the process. They claimed that the police restrained them from changing positions and poured water on them during the parade. The accused maintained that they were dissatisfied with the process, a fact reflected in the parade forms.
51. They further submitted that the witnesses had already s
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1. The Accused persons were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Chapter 63, Laws of Kenya. The Information stated that on 29th December 2014 at Kivae in Athi River Sub- County within Machakos County, they jointly murdered Jackson Maungu John (the deceased).
2. They pleaded not guilty to the charge and the prosecution called a total of eleven witnesses in a bit to prove their case.
3. PW1, Victor Mbinda Muinde, a Jua Kali artisan from Machakos Kiandani, testified that on 31st December 2014, while working on a fence at the farm of Mzee Ngelai (Plot No. 2334), he received information from one Muoki that Baba Marion (the deceased) had been killed on the same farm. He stated that he knew the deceased personally, as they came from the same area, and that his father was a friend of the deceased.
4. PW2, Daniel Muoki Morris, a technician from Machakos, testified that on 29th December 2014, he was requested by Mr. Mbinda (PW1) to assist him in fencing work alongside the deceased. While they were surveying the farm, he heard commotion from a group of people approaching them. Out of fear, they began to flee, but the deceased was obstructed by another fence and fell down. PW2 testified that the mob caught up with the deceased and assaulted him using rungus, pangas, and stones. He identified some of the assailants as the 1st, 2nd and 3rd accused persons, noting that the group consisted of about five people. He further testified that he knew the accused persons as they were from the same locality.
5. PW2 stated that he reported the incident at Mavoko Police Station, along with members of the deceased’s family. He later attended an identification parade where he identified the accused persons and recorded his statement with the police. He testified that he had known the deceased all his life, as they hailed from the same neighbourhood, and described the deceased as a family man with four children. Upon cross-examination, PW2 stated that he no longer resides in Kivae. He confirmed that the farm where they were working belonged to one Mr. Ngelai, and that they arrived there at around 6:00 p.m. to survey the land. He noted that the crime scene was approximately 500 metres from the nearest police post. According to him, the attackers were a mob of about 50 to 60 people who approached from different directions. He testified that he initially stood still but upon seeing the group, started running away. He stated that he recognized the 1st accused person and knew the others by appearance though not by name.
6. PW2 further testified that he could not clearly identify the specific weapons used, only that he saw the assailants’ hands moving as they struck the deceased. He estimated that he stood about 30 metres away from the scene and could see the accused persons assaulting the deceased at around 6:30 p.m. He added that no police officer came to the scene at that time and confirmed that he later identified the accused persons during an identification parade conducted at the police station.
7. PW3, David Ndolo Ngilai, testified that he works with Malili Ranch as a Committee Director. He stated that on 12th December 2014, he met Victor Muinde (PW1), whom he requested to fence his farm located at Lukenya, Plot No. 2334/3, Kenania. He explained that the arrangement was for the land to be surveyed first before they could agree on the fencing costs. PW3 further testified that he later learnt that Muinde had proceeded to the site and while visiting the farm, he was chased away by squatters and his companion was beaten to death. He stated that Muinde informed him that he had reported the incident to the police and that he was also required to record a statement, which he subsequently did.
8. Upon cross-examination, PW3 testified that he only knew that Muinde had gone to the farm and later informed him that they had been attacked by squatters and that his companion had been killed, though he did not know the identity of the deceased. He confirmed that he holds the original title deed to his property, Title No. 2334/3, and that there was no pending court case in relation to the said land. He stated that he was not aware of any group known as Kivae Residents Organisation, but he is a member of Lukenya Ranching and Farming Cooperative Limited. He further testified that his title deed has never been cancelled by the National Land Commission, and that the land is currently idle, with grass and trees. He added that he had built a house on the land, but squatters removed the roof, and continued to disturb him. PW3 concluded that he learned of the deceased’s death on 26th January 2015.
9. PW4, (No. 200811297), Inspector Dominic Mureithi Wanjohi testified that on 30th December 2014 at about 1300 hours, he received information from Victor Mbinda (PW1) that someone had been attacked at the Kivae area, although the victims’ condition was unclear. Acting on this report, PW4 proceeded to the scene, accompanied by officers, and after a search, they discovered a male body lying by a fence near Kisima Park. The body had multiple deep cuts and severed parts. PW4 testified that he immediately informed the OCS, Athi River, and secured the scene. At about 1800 hours, officers from Athi River Police Station arrived and took over the scene. He stated that he did not personally know the deceased but later recorded his statement regarding the incident.
10. Upon cross-examination, PW4 testified that he received the report from Victor at around 1300 hours. Although he was not aware how Victor obtained his contact, he noted that police officers always often share their numbers during barazas, making it accessible to the public. He confirmed that he proceeded to the scene immediately after the call and found the body near a fence at Kisima Park. He stated that he did not know who had killed the deceased and could not tell the exact time of death. He further testified that there were land problems in the Kivae area between persons holding title deeds and squatters, although he was unaware whether any titles had been cancelled.
11. PW5, Inspector Nobert Magoha, testified that he was attached to the Athi River Police Station, performing general police duties. He stated that on 30th December 2014, at about 1800 hours, while at the station, he received a call from the OCS, Chief Inspector Gitau, instructing him to visit a scene of a sudden death within the Daystar area. He was directed to meet Inspector Mureithi (PW4) at the scene. PW5 testified that he proceeded there in the company of a police driver and Constable Sabwa. Upon arrival at Daystar, he met Inspector Mureithi, who directed them to the scene of the alleged murder near Kisima Park where they found the body of an unidentified male with multiple deep cut wounds. He observed that the killing appeared to have occurred the previous day, as the blood had already dried and there was a slight odour. They photographed the scene, retrieved the body from the bush, and transported it to the Machakos Level Five Hospital Mortuary. Thereafter, he returned to the station and later recorded his statement.
12. PW5 stated that the deceased was initially unknown to him but was later identified by relatives as Jackson Maundu. Upon cross-examination, he testified that he did not know when the first report about the incident was made, but that he personally received instructions on 30th December 2014, and immediately proceeded to the scene, arriving at about 1800 hours. He acknowledged that there were numerous land disputes within the Kivae area, and that the situation had been volatile at the time, though it had since calmed. He further testified that he knew one of the accused persons, Benedict Ndunda Nzomo, from a previous occasion when the latter had lodged a complaint that people were harassing them at Kivae. He stated that the accused had not mentioned any police officer in his complaint but had expressed frustration that police officers were not assisting with the land issues. PW5 confirmed that the scene of the murder was bushy and added that he was aware that Benedict Ndunda Nzomo had a pending robbery case before the Mavoko Court.
13. PW6, Vincent Nguyo John, a mechanic from Mumbuni, Machakos, testified that he knew Jackson Maundu John (the deceased). He recalled that on 7th January 2015, he went to the Machakos Level Five Mortuary in the company of his niece, Katunge, where they confirmed that one of the bodies there was that of their brother, the deceased. He testified that the body had visible injuries on the head and that one eye had been gouged out. Thereafter, they went home, and the burial was subsequently conducted. PW6 later recorded his statement with the police.
14. PW7, Alphonce Musembi, a resident of Mumbuni area in Kamoo Village, testified that he operates a motorcycle taxi business. He stated that on 29th December 2014, he had been engaged to assist in fencing a plot of land in the Kinanie area. Upon arrival at the site, a large group of people armed with pangas suddenly appeared and attacked them. He testified that the deceased, who was in his company, was unable to escape and was surrounded and assaulted by the mob. PW7 stated that he identified the 1st accused person as the one who gave orders to the crowd to kill the deceased. He further testified that the 2nd accused was armed with a panga, the 3rd accused carried a large stick, while the 4th and 5th accused were armed with stones. He told the court that he witnessed the accused persons physically attacking the deceased.
15. PW8, Stephen Muli Wathome, a motorcycle taxi operator from Mumbuni, testified that on 29th December 2014, he was called by Muoki (PW2) and requested to join him for a fencing job within the Athi River area of Kinanie. He testified that he met Muoki at Kimongo and was accompanied by Alphonce Musembi (PW7) and the deceased. They proceeded to the land to survey it and to determine the labour costs. Shortly thereafter, a group of about ten people arrived, armed with pangas, bows and arrows, and stones.
16. PW8 testified that from where they stood, they were able to identify some of the attackers. He stated that he saw the 3rd accused attack the deceased using a panga, while the 4th accused whom he identified in court had a walking stick which he used to strike the deceased. He also mentioned that there was a woman among the attackers who was not before court. He stated that he had known some of the attackers from his previous work at Kimongo area and clarified that he had no personal differences with them prior to the incident. He testified that they fled for their safety and went home afterwards. The following day, Muoki informed him that the deceased had died, and he subsequently recorded his statement with the police.
17. Upon cross-examination, PW8 testified that they reached the farm at about 6:00 p.m., accompanied by Alphonce Musembi (PW7), Maurice Muoki (PW2), and the deceased. He stated that they travelled by public service vehicle to Athi River, from where they took motorcycles to the farm. He denied the suggestion that they had travelled by a private car. He testified that shortly after arriving and beginning their survey, a crowd appeared and chased them away.
18. He stated that although darkness had begun to set in, he was still able to see the 4th accused in the dock attacking the deceased. He could not recall the specific clothing worn by the 4th accused, but confirmed that the 3rd accused was armed with a panga, though he could not remember his attire either. He estimated the number of attackers to be about ten in number. PW8 testified that he mentioned the names of some attackers in his statement to the police. He confirmed that an identification parade was conducted during which he identified the 3rd and 4th accused persons. However, he could not recall whether the officer conducting the parade gave them any warnings or instructions beforehand.
19. He further stated that he left the responsibility of reporting the incident to the police to Muoki (PW2). He clarified that although the deceased had chest problems, he was not intoxicated on the material day, contrary to the allegations. He testified that one of them had a torch, but he did not see anyone use it towards the direction of the attackers. In his view, it was not sufficiently dark to necessitate the use of a torch, although he could not confirm whether Musembi (PW7) had used one. PW8 stated that he had previously worked in the Kimongo area, but had not heard of any land disputes there, and that he did not own land in that area. He concluded by stating that he did not know the motive behind the killing of the deceased.
20. PW9, Dr. Waithera Githendu, a Consultant Pathologist at Machakos Level Five Hospital, testified that on 7th January 2015, she conducted a post-mortem examination on the body of the deceased after it had been identified by two relatives. She stated that upon examination, the deceased’s body had multiple cut wounds located on the scalp, shoulders, left knee, left leg, lower and upper limbs, as well as fractures of both the limbs, the 8th rib, and the upper spine. She opined that the cause of death was multiple penetrating deep cut injuries, consistent with the use of a sharp object, which also caused the noted fractures and wounds. PW9 produced the post-mortem report dated 7th January 2015, which was marked and produced as an exhibit.
21. During cross-examination, PW9 stated that the body was partially decomposed, particularly the skin. She explained that it was not possible to determine the specific factors that caused the decomposition, noting that decomposition can begin shortly after death depending on climatic conditions such as temperature and humidity. She added that, theoretically, the degree of decomposition could be consistent with the prevailing climate at the time. The injuries observed were consistent with those inflicted by a sharp weapon, such as a panga.
22. PW10, Chief Inspector (CIP) Lilian Otieno, testified that in 2015, she was serving as the Deputy DCIO at Athi River Police Station. On 26th March 2015, at about 4:30 p.m., she received a request from the investigating officer, IP Lilian Mutinda, to conduct an identification parade involving three murder suspects, Mulwa Nzioka, Benedict Ndunda Nzomo, and Kiilu Nduva Makite.
23. She testified that she began with the first suspect, Mulwa Nzioka, whom she briefed on the purpose of the parade. The suspect consented to the process and was informed of his right to have a relative or friend present during the parade, which he declined. She then assembled eight other individuals of similar physical appearance to which the suspect, raised no objection. PW10 testified that three witnesses were scheduled to participate in the identification exercise, starting with Daniel Muoki (PW2). The witnesses were kept separately in the office of the officer in charge of crime, while the suspects were held in the cells, approximately 50 metres apart, to prevent interaction.
24. She stated that the first witness, Daniel Muoki, identified the suspect by touching him on the shoulder, after which the suspect remarked, “Niko sawa.” The suspect was then allowed to change position within the parade and opted to stand between the 2nd and 3rd members. The second witness, Alphonce Musembi (PW7), also positively identified the suspect by touching his shoulder, and the suspect again remarked, “Sawa.” The suspect then switched positions a second time, choosing to stand between the 6th and 7th members of the parade. The third witness, Stephen Muli Wathome (PW8), however, did not identify the suspect, and the suspect once again remarked, “Sawa.”
25. PW10 testified that at the conclusion of the exercise, she asked the suspect whether he was satisfied with the manner in which the parade had been conducted. The suspect responded that he was not satisfied, but did not provide any reasons for his dissatisfaction. Nevertheless, he signed the parade forms, which PW10 produced in evidence as Exhibit 2(a).
26. PW10 further testified that she conducted similar identification parades for the other suspects, namely Benedict Ndunda Nzomo, Kiilu Nduva Makite, John Nzomo Muindi, and Bernard Mwendwa. She produced, the corresponding identification parade forms as Exhibits 2B, 2C, 2D, and 2E, respectively. Upon cross-examination, she stated that the investigating officers had shown her the suspects beforehand which enabled her to source suitable members of the parade. She stated that the witnesses were kept at the office of the Officer Commanding Crime, located approximately 10 metres from the cells where the suspects were held. She ensured that the witnesses had no contact with the suspects or with each other after participating in the parade exercises.
27. PW10 confirmed that the office of the Officer Commanding Crime is a private one. She testified that she had briefed the witnesses prior to each parade but did not record this on the parade forms. She noted that the suspects were allowed to change positions after each round, and although she made comments during the exercise, the remarks section of the parade forms did not reflect them. She testified that the witnesses identified the suspects by touching them on the shoulder, but she did not record the specific part of the body touched, explaining that in her view, it was not necessary to indicate that detail.
28. PW11, Inspector Lydia Mutinda (No. 235716), testified that on 16th January 2015, she was informed by the Officer Commanding Station (OCS), Athi River, that a murder case had been reported, and she was assigned to investigate the matter.
29. She told the court that upon commencing investigations, she recorded statements from witnesses indicating that the deceased had been overpowered and killed by a crowd while undertaking fencing work at a plot of land. She further testified that, as part of her investigation, she organized identification parades for several suspects, during which the 1st, 2nd, and 3rd accused persons were identified by witnesses.
30. At this stage, the prosecution closed its case. Upon appreciating the prosecution evidence on record, Justice D. K. Kemei delivered a ruling in which he found that the accused persons had a case to answer and accordingly placed them on their defence. Each accused person elected to give sworn evidence in their respective defences. A total of 7 persons testified for the defence
31. It is noteworthy that from the record of proceedings, it was brought to the attention of the court on 25th July 2018 that the 4th accused person had passed away and this fact was duly noted and recorded by the court. The 1st accused is also recorded as having passed on.
32. DW1, Mulwa Nzioka, the 2nd accused person testified that he did not know the true identity of the deceased. He stated that on 28th December 2014, he was at his home in Kivae Village, within Athi River Sub-County. Earlier that day, he had attended to his farming and dairy activities, thereafter returned to his house at about 4:00 p.m., and later retired to bed at 9:00 p.m. He stated that he was in the company of his wife and daughter throughout. He testified that there were ongoing land disputes in the area, and that certain individuals were attempting to grab the land occupied by residents. According to him, these individuals offered residents Kshs. 100,000/= each as compensation to vacate the land, but he declined the offer. He further stated that, as a result, he was charged at the Mavoko Law Courts together with the 1st and 3rd accused persons in Mavoko PMC Criminal Case No. 1776 of 2015, where they were accused of forceful detainer and the complainant was Desire Land Company Limited. He produced a copy of the charge sheet in that case as Defence Exhibit 1 and testified that he was later acquitted of that charge.
33. DW1 further testified that an identification parade had been conducted by the police, but he was dissatisfied with the process and made his comments on the parade form. He maintained that he had been falsely implicated in the present case due to his vocal opposition to the alleged land grabbing and because he was perceived as one of the leaders of the villagers who resisted eviction.
34. Upon cross-examination, DW1 stated that he holds a title deed to the land, although he did not produce it in court. He admitted that there is an ongoing court case concerning the same land. He also stated that he was not aware of anyone who had died in the area in connection with the disputed land.
35. DW2, Kiilu Nduva, the 1st accused person testified that he did not know the deceased and denied any involvement in his death. He stated that on 29th December 2014, he was at his home, tending to his cows, and that he had witnesses, including one Ndunda, who could confirm his presence at home on that day. He testified that certain individuals were attempting to grab their land, and that there is an active High Court Case No. 560 of 2000 in Nairobi concerning the disputed property. He stated that he does not know his exact age but estimated it to be between 70 and 80 years. He maintained his innocence, reiterating that he did not kill anyone as alleged. He further testified that he does not possess formal ownership documents for the land he occupies, as it belonged to his late father, who had lived on for approximately ten years.
36. DW3, John Nzomo Muindi, the 5th accused person, testified that he had no knowledge of the alleged murder. He stated that on 29th December 2014, he was working with Consolana Stones Company as a driver, ferrying stones from Katangi to Bamburi. He left work at around 7:00 p.m. and returned home to join his wife and children. He testified that he believed his prosecution arose from land disputes in the Kivae area. He clarified that he does not personally hold title to any land, as the property in question belongs to the Kivae Residents Organisation.
37. He further testified that the identification parade conducted by the police was improperly carried out, as the witnesses who picked him out had already seen him beforehand. He stated that he objected to the manner in which the parade was conducted, as he had requested the presence of an independent observer, but his request was denied. He expressed his dissatisfaction with the entire process. DW3 stated that he relied on the evidence of his co-accused, Benedict Nzomo Ndunda, the 3rd accused person, in support of his defence. He produced a gate pass, marked as Defence Exhibit 2, showing that he was on duty on the material day. Upon cross-examination, he confirmed that Defence Exhibit 2 was neither dated nor stamped. He also referred to Defence Exhibit 3, comprising documents in which he had been sued, to demonstrate his involvement in the ongoing land dispute.
38. DW4, Bernard Muendo Musyoka, testified that on 29th December 2014, he left his home to join his son, Sebastian, at Athi River following a domestic dispute with his wife. He stated that he arrived at Athi River at around 1:00 p.m., met other relatives and stayed with them until 9:00 p.m., after which he returned to his home in Kivai the following day. He testified that he did not receive any report of a death having occurred in the area on that day. He further testified that his co-accused persons were his neighbours, and that he had lived on the disputed land for over 20 years, as the land belonged to the Kivai Residents Association. He told the court that some wealthy individuals had shown interest in the land and sought to evict them, leading to frequent conflicts.
39. DW4 testified that he was dissatisfied with the identification parade, stating that he was forced to participate in it. He narrated that he was arrested at night, during which his house was demolished and his property stolen. He further testified that he was the Vice Secretary of the Kivai Residents Association and believed he was targeted for arrest because of his leadership position. He stated that the wealthy individuals offered residents Kshs. 100,000 as an inducement to vacate the land, but he refused to accept the offer, and believed that this case was a consequence of his resistance. Upon cross-examination, he confirmed that the Association did not have a title to the land and that its members had occupied it as squatters for about 20 years, during which frequent disputes had occurred.
40. DW5, Benedict Ndunda Nzomo, the 3rd accused person, testified that on 29th December 2014, he woke up at his home in Kivai and later proceeded to Mavoko Law Courts for a hearing in a robbery with violence case in which he was an accused person. However, the hearing did not proceed as it was adjourned. He corroborated DW4’s testimony regarding the land dispute, stating that he served as the Coordinator of the Kivai Residents Association. He testified that the Association had been engaged in a long-standing struggle against unlawful evictions by individuals claiming ownership of the land.
41. DW5 produced Defence Exhibit 4, a letter dated 4th February 2015 written by the Chairperson of the Land Commission to the Machakos Land Registrar, directing that certain land files be made available to them.
42. DW6, Anne Mwikali Maingi, testified that the 5th accused person, John Nzomo Muindi, is her husband. She stated that on 29th December 2014, he left for work at around 7:00 a.m. and returned home at approximately 8:00 p.m. She testified that she was not aware of any incident involving the farm invasion or any killing that occurred on that day.
43. DW7, Sebastian Musyoki Mwendo, testified that he knows the 6th accused person and confirmed that on 29th December 2014, the 6th accused was at work. He stated that he only saw him in the afternoon when he returned from work and did not see him in the morning.
44. The defence closed its case and parties were directed to file their written submissions. According to the court record only the accused persons filed submissions dated 12th October 2022.
Accused persons submissions
45. The accused submitted that the main issue for determination is whether the prosecution proved beyond reasonable doubt that the accused persons committed the offence of murder. They contended that the prosecution failed to discharge this burden, as required under the law and as reaffirmed in Republic v Derrick Waswa Kuloba [2005] eKLR, where the court emphasized that the burden of proof in criminal cases rests solely on the prosecution. While making reference to section 203 of the Penal Code, the accused outlined the three essential ingredients of the offence of murder: proof of the fact and cause of death, proof that the death resulted from an unlawful act or omission by the accused, and proof that the act or omission was committed with malice aforethought. While they did not dispute the fact of death, they questioned the alleged date of death in view of the decomposition observed in the deceased’s body. They highlighted inconsistencies between the prosecution’s claim that the deceased was killed on 29th December 2014 and the postmortem report which indicated that the body was already decomposed when recovered the following day. According to them, this suggested that the death may have occurred several days earlier, which was inconsistent with the prosecution’s timelines and version of events.
46. Regarding whether it was the accused who caused the death, the defence emphasized that no murder weapon was recovered or produced in evidence. They argued that the only evidence linking them to the offence was the purported visual identification by PW2, PW7 and PW8, which they described as unreliable and inconsistent. The accused relied on the case of Wamunga v Republic [1989] KLR 426 to submit that evidence of identification must be carefully scrutinized and can only be relied upon when the circumstances are favourable and free from the possibility of error.
47. They highlighted contradictions in the witnesses’ testimonies including differences regarding the mode of travel to the scene, the source and sufficiency of light, and the distance from which the witnesses allegedly identified the accused persons. They contended that it was practically impossible to identify persons from 20 to 30 meters away in darkness while fearing for one’s life.
48. While citing Ndungu Kimanyi v Republic [1979] KLR 283, they submitted that the credibility of the prosecution witnesses was questionable and that their inconsistencies rendered their evidence unsafe for reliance. They further relied on Joseph Muchangi Nyaga & Another v Republic [2013] eKLR, where the court held that evidence of visual identification, especially under difficult circumstances, must be watertight. They also cited R v Turnbull & Others [1976] 3 All ER 549, where Lord Widgery CJ set out the guidelines for testing the reliability of identification evidence.
49. The accused urged the court to find that the circumstances under which they were allegedly identified were poor, and the purported visual identification was unreliable, inconclusive unworthy of reliance.
50. On the issue of the identification parade, the accused relied on David Mwita Wanja & 2 Others v Republic [2007] eKLR to emphasize the importance of conducting identification parades with scrupulous fairness in accordance with the Police Standing Orders. They argued that the parades in this case were improperly conducted, as the witnesses had not provided prior descriptions of the suspects and that the accused were mistreated during the process. They claimed that the police restrained them from changing positions and poured water on them during the parade. The accused maintained that they were dissatisfied with the process, a fact reflected in the parade forms.
51. They further submitted that the witnesses had already s
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