1. The accused person herein is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap. 63) Laws of Kenya.
2. Particulars are that on 24 th January 2022 at Mzuri “A” village, Kasemeni sub-location in Lunga Lunga sub-County within Kwale County he murdered Dzombo Kirunga.
3. The prosecution called seven witnesses to support the information laid against the accused person. PW 1, Dzalambi Dzombo is wife of the deceased. PW 2, Mwema Joseph Mulwa is the village elder of Kasemeni village at the time. PW 3, Chirunga Dzombo is a son of the deceased. PW 4, Mwangeka Mangale is a son of the deceased. PW 5, PC Mureithi Musavi is attached to Kwale County DCI headquarters as a scenes of crime officer. PW 6 Cpl Richard Bore was the investigating officer in the matter. PW 7, Dr. Aisha Ali of Coast General Teaching and Referral hospital produced the postmortem examination report prepared by her colleague Dr. Maneno.
4. The prosecution’s case against the accused person is that he had differences with the deceased whereby he was alleging that the deceased was a witch and that he had bewitched the accused person’s wife who had become possessed by demons. Further that the accused person would let his cattle into the deceased’s farm to graze on his crops. The cases were referred to the local administration and after the meeting the deceased was required to refund the accused person the costs of the meeting. The accused person was asked to get a purchaser of part of the deceased’s land so as to raise the money but he declined and instead resorted to cut the deceased with a panga.
5. There was no eye witness to the offence which took place in the night and it was only discovered in the morning. However, circumstances surrounding the offence pointed to the accused person as the culprit. It was alleged in evidence that while at the police station the accused conceded to some people of having cut the deceased. The investigating officer said that the accused person took them to his house where the alleged murder weapon, a panga was recovered as well as clothes suspected to belong to the accused person and which were soaked in blood stains.
6. The postmortem report showed that externally the body of the deceased had sharp cut wound on the right forearm with a compound fracture, cut wound below the right ear 20 cm long by 3 cm deep into the brain membrane, cut wound above the right ear 22 cm long by 5 cm deep, cut wound on the right parieto-temporal region 9 cm long by 7 cm deep with exposed brain matter. Internal examination of the head revealed exposed brain membrane and brain tissues.
7. As a result of the examination the doctor was of the opinion that the deceased died from cardiopulmonary arrest as a result of haemorrhagic shock as a result of cut wounds on the head and right face.
8. Learned counsels for both sided did not make submissions at this stage.
9. The issue for determination at this stage is whether the prosecution has made out a case to require the accused person to be called upon to offer a defence. At this point, the court is not required to make any definitive findings on the evidence tendered thus far as was held in Festo Wandera Mukando and another v Republic [1980] KEHC 3 (KLR) by Trevelyan and Chesoni, JJ that:
“…we once more draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the court and, in an extreme case, may require an appellate court to set aside an otherwise sound judgement. Where a submission of “no case” is rejected, the court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned.”
10. I have considered the evidence tendered by the prosecution in support of its case. I am satisfied that the prosecution has made out a case sufficient to call upon the accused person to offer a defence. I find that the accused person has a case to answer. He is put to his defence under section 306(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya.
11. Orders accordingly.
12. Delivered, dated and signed at Kwale in open court this 28 th day of May 2026.
ANDAYI W. F.
JUDGE
In the presence of:
The accused person present in court.
Mohammed Nabil for the accused person.
Orwa h/b for Vallerie for the State
Ummu Court Assistant.
ANDAYI W. F.
JUDGE
HC Cr. Case No. E006/2025 Page 4/case to answer
2. Particulars are that on 24 th January 2022 at Mzuri “A” village, Kasemeni sub-location in Lunga Lunga sub-County within Kwale County he murdered Dzombo Kirunga.
3. The prosecution called seven witnesses to support the information laid against the accused person. PW 1, Dzalambi Dzombo is wife of the deceased. PW 2, Mwema Joseph Mulwa is the village elder of Kasemeni village at the time. PW 3, Chirunga Dzombo is a son of the deceased. PW 4, Mwangeka Mangale is a son of the deceased. PW 5, PC Mureithi Musavi is attached to Kwale County DCI headquarters as a scenes of crime officer. PW 6 Cpl Richard Bore was the investigating officer in the matter. PW 7, Dr. Aisha Ali of Coast General Teaching and Referral hospital produced the postmortem examination report prepared by her colleague Dr. Maneno.
4. The prosecution’s case against the accused person is that he had differences with the deceased whereby he was alleging that the deceased was a witch and that he had bewitched the accused person’s wife who had become possessed by demons. Further that the accused person would let his cattle into the deceased’s farm to graze on his crops. The cases were referred to the local administration and after the meeting the deceased was required to refund the accused person the costs of the meeting. The accused person was asked to get a purchaser of part of the deceased’s land so as to raise the money but he declined and instead resorted to cut the deceased with a panga.
5. There was no eye witness to the offence which took place in the night and it was only discovered in the morning. However, circumstances surrounding the offence pointed to the accused person as the culprit. It was alleged in evidence that while at the police station the accused conceded to some people of having cut the deceased. The investigating officer said that the accused person took them to his house where the alleged murder weapon, a panga was recovered as well as clothes suspected to belong to the accused person and which were soaked in blood stains.
6. The postmortem report showed that externally the body of the deceased had sharp cut wound on the right forearm with a compound fracture, cut wound below the right ear 20 cm long by 3 cm deep into the brain membrane, cut wound above the right ear 22 cm long by 5 cm deep, cut wound on the right parieto-temporal region 9 cm long by 7 cm deep with exposed brain matter. Internal examination of the head revealed exposed brain membrane and brain tissues.
7. As a result of the examination the doctor was of the opinion that the deceased died from cardiopulmonary arrest as a result of haemorrhagic shock as a result of cut wounds on the head and right face.
8. Learned counsels for both sided did not make submissions at this stage.
9. The issue for determination at this stage is whether the prosecution has made out a case to require the accused person to be called upon to offer a defence. At this point, the court is not required to make any definitive findings on the evidence tendered thus far as was held in Festo Wandera Mukando and another v Republic [1980] KEHC 3 (KLR) by Trevelyan and Chesoni, JJ that:
“…we once more draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the court and, in an extreme case, may require an appellate court to set aside an otherwise sound judgement. Where a submission of “no case” is rejected, the court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned.”
10. I have considered the evidence tendered by the prosecution in support of its case. I am satisfied that the prosecution has made out a case sufficient to call upon the accused person to offer a defence. I find that the accused person has a case to answer. He is put to his defence under section 306(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya.
11. Orders accordingly.
12. Delivered, dated and signed at Kwale in open court this 28 th day of May 2026.
ANDAYI W. F.
JUDGE
In the presence of:
The accused person present in court.
Mohammed Nabil for the accused person.
Orwa h/b for Vallerie for the State
Ummu Court Assistant.
ANDAYI W. F.
JUDGE
HC Cr. Case No. E006/2025 Page 4/case to answer