INFORMATION
1. The Accused Person herein Nicholas Mwendwa Mutuku was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya.
Particulars of the offence being that on the night of 26 th September 2020 at Mihango Estate Kayole Subcounty within Nairobi the Accused murdered Kelvin Maundu .
The accused pleaded not guilty.
PROSECUTION EVIDENCE
The evidence was taken/recorded by Hon Ogembo J on/from 28/3/2022
2. PWI MARTIN MWENDA MUTUA. a resident at Mlolongo doing casual jobs stated that on 27/9/2020 at about 7:00 he was in his house in Kayole. He lived in in the same Plot with the accused person. It was a storey building and his room was on 3 rd floor while for the accused was on 2nd floor. It was a single room. He found Nicholas with 2 others, Kelvin Maundu and another Mzee he knew as ‘‘Fathe’'. He found Kelvin had burnt on the face and he was seated on the seat. Nicholas was sleeping on the mattress. ‘‘Fathe’e’ was also seated on a seat
3. Kelvin was burnt on the face and chest. When he saw him, he told him “bro:, nipeleke hospitali walikuwa wanataka kunimaliza.” He went back to his room he dressed and he went back to the deceased. Then all the 3 of them took him to Mama Lucy Kibaki Hospital and when they reached the Hospital, PW1 called his elder sister who came with his other sister and brother. The sister called Ngina came with his brother Denis. He said that he stayed with them for a short time and left, him with Ngina, Denis and another sister. ‘‘Fathe’' and Nicholas had left earlier.
4. On the same day at about 2:00pm, his cousin known as Jeff called and told him that Kelvin had passed away. PW1 went to Mama Lucy Hospital where he found them and they all went to Kayole Police Station and reported and they wrote their statements. Nicholas was the Accused person before Court that today. Kelvin had stayed with Nicholas the Mwendwa for about 1 month.
5. In cross examination he said that he had known the Accused Person and deceased for a long time but ‘‘Fathe’' was known to him for about 1 month. He had stayed in the flat for 4 years. He stated that both the Accused and the deceased were his Cousins. When he went to the Accused’s house the door was not locked. He did not know why deceased did not go to his house if he needed his help. As they took the deceased to the hospital he never spoke. He only gave him his sister's number when they reached to the hospital.
6. PW2 No. 235260 Inspector Daniel Musembi a Crimes Scenes Investigator testified that on 28/9/2020 at around 8:00am, while he was at Kayole Division, he accompanied PC Wachira to a scene at Mihango stage and thereafter to Mama Lucy Hospital. At the scene at Mihango he documented the same and photographed the following:-
Place of the incident, Room No. 16. Therein were 2 rooms. but one seemed to be unoccupied. There in was a charred piece of cloth. The room had signs occupation and was partly burnt chart.
7. He went to the Mortuary where he took 4 photographs of the general view of the body of the deceased wearing clothes. The closer view showed burns on the chest of the deceased. He produced a report dated 28/9/2020 which he had signed and 7 photographs
- Bundle of 7 photographs – MFI – P- 1 – Exh. P- 1
- Crime incident report – MFI – 2- Exh – 2
8. In Cross examination he said that at the house, there were no signs of a commotion. The incident was on 27 th and he visited the scene on 28 th , and there was possibility of tampering with the scene. There was smell of paraffin although they did not recover it. There were charred pieces of clothes but there was no other sign of burning. While one room had nothing, the other room had a carpet, cupboard and bed. There was no sign of struggle in the vacant room, save for the smell of paraffin. The partially burnt cloth was in the other room. He did not take a photo of the whole room.
9. PW3 Denis Muinde brother to the late Kevin Muinde stated that on 29/9/2020, he went to Mama Lucy Hospital where he identified the body of Kevin before Post Mortem. He saw the body had burn injuries on the chest and face.
10. In Cross-examination he stated that Martin (PW1) is his distant Cousin. He accompanied him to hospital when his brother was still alive. He did not speak to the deceased and Martin did not tell him what had happened. It was for Martin to tell the court what happened since the deceased did not talk to him but Martin had been together with the deceased for a long time and he only joined them at the hospital.
12. PW4 Stephen Tukei a Government Analyst at Government Chemist stated that he received 3 exhibits from No. 98830 PC Patrick Wachira on 2/10/2020.
A) a khaki evidence bag containing a blue and white striped shirt. - MFI -P-4.
A(ii), a khaki evidence bag containing a grey T-shirt-M П - Р -5
A(iii) A Khaki evidence bag containing a purple jacket with red and white spots-MI-P-
The Memo Form requested him to ascertain traces of fire accelerants in the exhibits listed. He did examination and found diesel a highly flammable petroleum products in the items. He produced the report signed and dated 23/7/2021.
Memo Form-Exh-3
Analyst report - Exh.4
13. In cross examination he stated that there were
burnt parts on the clothing’s. The jacket had no burnt part. A-3 had been removed from the deceased at the morgue and A-1 were remains of burnt shirt collected from the room. He said that Diesel is highly flammable petroleum product but Kerosene is more flammable .
14. PW5 Dr. Muendo Muthini, also produced a report of the following samples with the name of Kelvin Maundu
1. Blood sample
2. Stomach contents
3. Kidney and liver.
He was to examine and determine the presence
and toxicity of any chemically toxic substance.They did full toxicology screening and it showed negative results on all the exhibits. Although they worked as a team he was the one who signed the report on 3/8/2021. They worked on the samples as a team.
15. In Cross examination he said that: if one dies of carbon (IV) oxide inhalation, they do blood test. For this one it turned negative.
16. PW6 Jeremiah Abwire Okwaro a lorry driver from Kayole and also Care Taker of the Plot at Mihango testified that on 26/9/2020 at about 10:00pm, a young man called Maundu the deceased, was going outside the Plot which is near a stage. He was outside the Plot helping his wife at her vegetable kiosk. He said that he stayed on the ground floor of the Plot. He greeted Maundu and asked him where he was going as it was curfew time. He told him that Nicholas Mwendwa the accused person, also their tenant at the Plot, had asked him to go and buy him a beer. The deceased was staying in the house of Nicholas, door 16 on 2 nd floor. He said that later in the night, he heard them open the gate as they spoke in Kamba language. They climbed upstairs .
17. Since they had arrears of Ksh.2000/=, at about 11:00AM, he went to their room and found the door open and there was a strong smell of kerosene; nobody Responded. He went up stairs to the house of Martin their other friend and he asked where Mwendwa was. Martin told him that Mwendwa had burnt Maundu and he had been taken to Mama Lucy Kibaki Hospital. In the evening Martin told him Mwendwa had passed away when he came back from hospital . DCI officers came shortly and inspected the house. They also took photographs. He entered the house with the officers and saw the broken stove and a burnt mattress. Also, Maundu’s clothes were burnt. They managed to trace Mwendwa as he was escaping, he had a bag and Muguka. They arrested him at Corner Mbaya in Kayole, about 10 minutes’ walk from the Plot. They took him to Matopeni Police Station. He said that Mwendwa is the one who had rented the house at Kshs.2,500/=. He produced an agreement he signed with him. He moved on 29.2.2020 when he paid 5000/= for rent and deposit.
- Tenancy agreement – PMFI-7.
18. He testified that he used to pay rent in the landlords account at Equity Bank.
2 receipts – PMFI-8(a)(b).
He said that Mwendwa and Maundu used to have commotions in their house and neighbours could calm them down. One mzee also stayed with them. That day, the 3 of them had been together. He identified Mwendwa as the accused in Court.
19. In Cross examination he stated that Nicholas Mwendwa had rented the house and the 3 of them stayed in there. Maundu had been with him for 1 month and Mzee for 2 weeks. It is Mwendwa who cut for Maundu the keys. He saw Mwendwa use the key. The driver could come back by 4:00pm. It was a single room. He stated that he did not hear any commotion and that he only knew about it when he went for rent. Martin did not say he heard commotion in the night. He said that the door was open and on peeping there was no one in the house. He saw kerosene on the floor . Martin, Mwendwa, Maundu and Mzee used to walk together.
20. He said that he did not witness the incident he was only involved in the arrest of the accused. His aunty is the one who informed them where the accused was. His aunty was reluctant to write a statement because they are relatives. They took him to the Police Station with his paper bag with clothes.
21. Mwendwa was the tenant who signed the agreement with him. He gave keys to only Mwendwa and not Maundu or mzee. When he went to ask for rent, the door was open but with a curtain. There was a strong kerosene smell . He did not enter. Martin told him that Mwendwa had burnt Maundu who had been taken to Mama Lucy. It is Martin who told him about Maundu’s death. He took the DCI Officers to the house. He saw them taking photographs. They arrested Mwendwa at Corner Mbaya as he was with a paper bag with clothes and shoes. It is him who took him to the police station as his aunt and Martin were reluctant. He never saw mzee again. His evidence is truthful. Also, his statement.
On 4/3/2025, this Court took over the matter; Section 200 CPC was read to the Accused person and he opted to proceed with the matter from where it stopped.
22. PW7 No. 98830 Corporal Patrick Wachira Muriuki who was duty on 27 th stated they received the report of deceased’s death from PW1and that they went to scene and then to Mama Lucy Hospital Mortuary. That they found that Kelvin Maundu had burnt wounds on the leg, on his face and chest. The deceased Maundu called Martin Mwendwa to take him to hospital and told him Mwendwa and Patrick wanted to finish him. Martin Mwendwa PW1 recorded his statement and the accused was arrested by the public that night who brought him to the station. He was interrogated and the caretaker gave out the tenant agreement where the accused rented room No. 16 on 2nd floor.
23. That they found the deceased’s clothes his short had been completely burnt. He produced the short as exhibit 4 the T-shirt which smelt petrol as exhibit 5 the jacket was produced as exhibit 6, the tenancy agreement produced as exhibit 7 the government analyst report as exhibit 8 and the accused mental assessment report dated 5/10/2020 was produced as exhibit 9. He stated that they found the deceased at Mama Lucy Kibaki Hospital Mortuary and that it smelt petrol. the jacket at Mama Lucy
26. He was cross examined and he stated that he did not know that the deceased and the accused were related. That the accused married ‘Fathe's daughter. He admitted that did not visit Masii and that he did not interrogate the neighbor. Further that he did not know whether Martin was among those who brought the accused to the station. That the deceased did tell PW1 that he was fixed by Martin and ‘Fathe’. That he visited the place, the house had 2 rooms. One had a sofa and mattress and there was water on the floor. That ‘Fathe’ came seeking for a place to sleep. That there was no report or claim of injuries when the accused was brought to the station,
28. When the deceased was found he was burnt and the accused was the one who rented the house and he was in the house. The house had things scattered all over the house. That Martin said that he took the deceased to hospital That the caretaker did not state that there was fire at the place.
29. Further, that clothes were taken to the Government Chemist and they were found to have diesel. The accused, the deceased and ‘Fathe’ worked and lived together and he did not know if they had problems and whether they were drinking. That the fire was at the deceased corner. Lastly, that he tried to look for ‘Fathe’ but the name and identity or phone numbers were not found, he also did not know or find his daughter.
30. Pw 8 Dr Charles.K. Muturi the pathologist from Mama Lucy Kibaki hospital referred to the Post Mortem Form dated 28/9/2020 with findings that the deceased died while being treated, he also had clothes on. That the deceased suffered 2nd degree burns on the left side of the face, on the skull and chest regions, the abdomen, right arm and there was swelling on the arteries.
The deceased lungs and brain were congested. The cause of death was skin burns open fire burns, toxicology was also pending.
31. He was cross examined and he said that he did not find any drug or medicine or alcohol on him. That he did not examine the nails to check defensive marks.
32. Parties filed written submission on case to answer.
On 24th November 24/11/2025 this court delivered Ruling on case to answer and stated that the prosecution had proved a prima facie case and the Accused was put on is Defense.
THE DEFENCE EVIDENCE
The Defense Witnesses submitted written Statements with their testimonies and Defense Counsel sought statements and judgment of Wamunyu Court where the deceased was found guilty of indecent assault and was alleged to have escaped from Prison. Wamunyu Magistrate Court S.O 28/2018.
33. DW1 Nicholas Mwendwa Mutuku in sworn statement testified that he went to School with Kevin Maundu.(Deceased) Kevin was hosted by Martin Mwendwa Mulwa (PW1) and he lived with ‘Fathe’ related through marriage to his daughter Caroline Mwikali Mbaika and they had a child.
He stated that on 27/9/2020 PW1 told him to help him to stay with Kevin 1 guest one Kevin as his sister was coming to his house. Kevin was to stay with him for 1 month; in 1 week he slept once or twice.
34 On Saturday, 26/9/2020 they left the house and they went to Wotefarm Club where they were drinking with Martin, Junior Martin’s sister, Junior is son of ‘Fathe’ brother to Caroline Mwikali Mbaika his girlfriend.
35. On the way Wotefarm Club the accused person, Matin and Junior met Kevin and ‘Fathe’ and they went to Club Ndugu Wote. They went at 8.00am at Wote Farm Club where they were drinking. They stayed up to 11 am and they went for lunch at a hotel near the Club. They stayed there up to 10.00 pm – 11.00 pm. They then left each to their way. On they way, Junior and ‘Fathe’ went back Kevin said he went away and the accused person, Martin and his sister went to the Plot where they lived together at 11.00 pm. The gate was not locked any one could enter any time.
36. He went to 2 nd Floor Room 16 alone and Martin went to 3 rd floor with his sister. He did not lock the house as he expected ‘Fathe’ his ‘Fathe’ in law ‘Fathe’ to Caroline Mwikali Mbuka whom they have a child together. Martin requested him to house ‘Fathe’ as he would go to Kangundo and he agreed. He also expected Kelvin who was staying with him for one month and he came on and off. The house was double room 1 room he used to clip/sitting room and divided by curtain. I had sofaset and table and the tools for the other room where he did his work. ‘Fathe’ slept on the set and Kevin was on the mattress with the accused person. The next day he heard a knock at the door. It was ‘Fathe’ at the door and he said that Kelvin was severely injured.
He went out the ground floor he found Kelvin and Martin and this was 27/9/2020 at 7.00 am and he saw Kelvin was injured on the chest and face one side. Kelvin said to him “brother take me to hospital they wanted to finish me.”
The accused person Martin and ‘Father’ took Kelvin to a clinic nearby, where they were told to take him to Mama Lucy Hospital. They walked for10 metres then to Mama Lucy they took Public transport.
37. At Mama Lucy the accused person, Martin ‘Fathe’ and Kelvin arrived at 8.00am. They went to Emergency Section Hospital and they waited for the doctor. After 30 minutes the doctor and Martin called Kelvin’s relative Dennis Mwongela and Gladys Ngala who arrived at 9.00 am. Dennis Muinde (PW3) Mweyala. He pushed Kelvin with a wheel chair to the doctor, the doctor talked to him but he did not respond. He stayed out with Martin and ‘Fathe’ for 1 hour.
They went to Kayole with Kelvin and ‘Fathe’ and they left Mama Lucy at 2.00 pm. Later Martin was called by Dennis (PW3) and he told them Kelvin had died, this was after 2.00pm.
38. Martin went to his house and the accused person went to take soup at 7.00 pm. ‘Fathe’ went to his son Junior at 2.00 pm. They got the report of his death with ‘Fathe’. At that time, He saw 3 people Martin, Junior and Jeremiah Okwaro Ambrose (PW6) and a lady whose name he did not know. He was taken to Kayole Matopeni and he was accused of Kelvin’s death.
39. He told the court that he did not cause the death of Kelvin. PW6 gave him the house he was the caretaker PW6 lied he was the one who rented the house and he collected rent from him and not from Kelvin.
PW4 & PW5 were from the Government Chemist produced reports and found traces of diesel. He said he was not using diesel or paraffin.
The Post Mortem Report page 3 result to examination was “open fire skin burns and inhalational burns pending toxicology.”
PW5 stated in his report he did not find carbon monoxide. “No evidence of burns on the clothes”To the allegation he burnt Kelvin he said he did not burn him at all.
40. On cross examination he requested for photographs in the court and the photos were availed. He said Kelvin was his friend Martin was his cousin. Kelvin was Martin’s neighbour. He was in Kayole same Plot with Martin Mwendwa Mutua(PW1).He was on 2 nd floor and Martin on 3 rd floor.Kelvin asked him to live with him. They lived together for 3 weeks before his death.They went to drink and Martin, Junior ‘Fathe’ and the accused person and Martin sister they drunk from 7.00 am to 10.00 pm on a Saturday.He said that he lived with Kelvin and ‘Fathe’. They entered the Plot with Martin and his sister and he went to his house.Kelvin said he was going on alone and he did not know if he came to the house. He saw him the next day. He was sleeping with Kelvin on the mattress and ‘Fathe’ slept on the seat.
41. He was woken up by ‘Fathe’ and he found the room was normal and mattress had o burns except cigarette burns.
Nowhere else was burnt. The sets were not burnt and there was no smoke smell.
They left with ‘Fathe’ and found Kelvin and Martin and he was injured on the chest and face. He was dressed and was slightly burnt on the face and chest he was burnt.
Kelvin had T-Shirt blue in colour.-Bundle of photographs – Exhibit 2.The shirt that Kelvin had was burnt. The door to his house. The shirt he had on at the time. Kelvin told him that “those two wanted to kill him.”Kelvin those 2 wanted to finish him and said in Kikamba and he did not tell him who the 2 were.
42. PW1 stated that deceased said the accused and ‘Fathe’ wanted to kill him. He also told him that those 2 wanted to kill him. Martin PW1 they had not fought or quarreled.
PW6 did not have any grudge.
43 . Dw2 Christine Nduku Mutuku ; salonist said that Accused Person is his son, and she knew Kelvin as he was a neighbor to her sister-in-law. She told the court that Kelvin was charged with offence of rape at Wamunyu Court. The evidence of PWI Martin contrary on the Accused person. The evidence of Father/Fadhila is a father-in-law as her daughter and they have had a child and Fedhila and he was a good father to the child. She did not know where Fedhila was and that she went inside the house after the fire that day but she did not see any ‘mtungi’ deisel or paraffin and she did not see what burnt the house. She said that she saw sofaset and curtains that divided the house and they were not burnt.
The photographs showed – blood, mattress and curtains that were not burnt. The deceased was charged with offence of defilement and indecent assault in Criminal Case of S.O 28 of 2019 at Wamunyu Law Court and he was sentenced, but he escaped and did not serve sentence. He said that there were other people with grudge with deceased and could have caused the fire.
44. In cross examination he said that the Accused person is his 2 nd born son and he came to Nairobi in 2014 as an Artist. He said that he did not witness what happened on 26/27/9/2020 and he did not attend funeral of the deceased. He said that Martin Mwendwa Mutua (PW1) is cousin to Accused Person and they was no grudge and they did not have a problem. They all lived in one plot but Martin was scared to talk to her. She was not a witness to the case at Wamunyu Court and she did not attend Court and that she knew nothing about the matter.
45. Dw2 No. 1988064884 Sgt Jafeth Mutuku Makau stated that he is a Police Officer with Administration Police. He was called byPW6 Caretaker Jeremiah Okwaro Obima PW6 to go and collect the items that had not been burnt. He went to the scene he could not remember the date but it was in 2020 it was a 2 roomed house he found curtains, sufurias, and trousers which belonged to the accused person, there was a store & sofa set and it was not burnt. He stated Accused person is his son and he was with PW1 Martin Fedhal and Katiku took the suspect and he was given by Landlord/caretaker and he and his wife were present.
He referred to photographs that were produced:-
Photograph 1 – blood stains
Photograph 2 – clothes/bag not burnt.
Photographs 3 – Partition not small part black not burnt .
When he visited the house; he did not see any sign of fire.
46. On cross examination; he said that Accused is his 3 rd born son and he was called by the Caretaker to collect the Accused’s belongings. His son made pictures and sold them. He lived with a lady, child and Father-in-law. He heard Kelvin lived with him. At the house he found a stove, curtain mattress and sufuria, the stove had no oil at all and there was no gas cooker. He did not know about the fire.He said that Martin (PW1) is cousin to Accused Person son of his younger sister. They have lived together for long and they were friends.
PROSECUTION SUBMISSIONS
PROOF OF DEATH OF THE DECEASED
47. The fact of the death is not in dispute.
PW3, the brother of the deceased testified that he identified the body of the deceased at Mama Lucy Hospital before the post-mortem was conducted. This evidence was corroborated by the post mortem report MFI P3, produced by government pathologist, PW7, which confirmed the death.
PROOF THAT THE DEATH WAS CAUSED BY AN UNLAWFUL ACT
48. The evidence overwhelmingly shows that the death
was a direct result of an unlawful act, a violent assault by burning. PWI testified that upon entering the house on the morning of 27th September, 2020, he found the deceased seated on a sofa with his face swollen and his upper body and chest region appearing burnt.
Crucially in his dying declaration, the deceased implicated his two housemates, the accused and one "‘Fathe’e," as the perpetrators. The doctrine of res gestae applies here, as the statement was made concurrently with the event.
49. This oral evidence is strongly corroborated by forensic evidence. The Government Chemist Report (Exhibit 4), confirmed that the deceased's clothing contained a highly flammable petroleum product. Furthermore, PW6 testified to recovering burnt clothes with a heavy smell of kerosene at the scene. The Toxicology report ruled out poisoning, solidifying that the burn injuries were the cause of death, not an accident, suicide or natural causes.
PROOF THAT THE ACCUSED WAS THE PERPETRATOR
50. The prosecution has placed the accused person squarely at the scene of the crime through direct and circumstantial evidence. PWI found the accused, sleeping on a mattress in the same room where the grievously injured deceased was seated. He was not a passer-by; he was a resident of the house and was present when the injuries were discovered.
PW2, the caretaker, testified that on the night of 26 th September 2020, at around 10:00pm, he saw the deceased leave the Plot The deceased told him that he had been called by “Mwenda” to go have bottle of beer. This places the accused and the deceased were together just hours before the injuries were sustained. The doctrine of last seen together places a heavy burden on the accused to explain how the deceased sustained his injuries, which he has failed to do.
The accused admits to being in the house all night, separate only by a curtain. He claims he heard no commotion and saw nothing. However, a person cannot be set on fire with a flammable liquid in a "tiny/small" room without a significant disturbance. His explanation that he was asleep throughout is not plausible and is contradicted by the severity of the injuries and the presence of the kerosene fumes.
PROOF OF MALICE AFORETHOUGHT
51. Malice aforethought, as defined under Section 206 of the Penal Code, is established where there is an intention to cause death or grievous harm. In the case of Republic v Tubere [1985] KLR. the court held that malice can be inferred from the nature of the weapon used and the part of the body targeted.
In this case, the weapon was an unknown container of a highly flammable petroleum product, kerosene or diesel, which was used to set the deceased's upper body on fire. Targeting the chest, neck and face with such an accelerant is an act so inherently dangerous that it demonstrates a clear intention to cause death or at the very least, grievous harm. The deceased's own words, "these two want to finish me," provide direct evidence of the assailant's murderous intent.
52. The accused in his sworn statement, and through the statements of his parents, has attempted to create a defence of innocence by suggesting; the house door was open so anyone could have entered, ‘Fathe’e is the real perpetrator, the witness Martin framed him and that there were no defensive injuries on him.
53. These defences are unavailing and an afterthought. The fact that the door was open does not negate the accused's presence and failure to assist the deceased or raise an alarm. As a lawful resident, he had a duty to protect the deceased or explain what happened under his watch.
54. The accused cannot simply shift blame to an absent third party while offering no credible account on his own. ‘Fathe’e's absence does not exonerate the accused, it merely points to a common design between the two.
55. The allegation that PWI framed the accused is baseless. PWI's testimony is consistent. corroborated by the caretaker and most importantly, supported by forensic evidence. There is no motive suggested for why PWI would want to frame a "cousin" and friend.
56. On the absence of defensive injuries, it is uncommon for victims of a sudden traumatic attack, such as being set on fire, to be incapacitated immediately and unable to defend themselves.
57. The prosecution has adduced credible, consistent and corroborated evidence whereas the accused's defence is a mere denial that does not rebut the circumstantial and direct evidence against him. We humbly submit that the prosecution has proven its case against the accused person beyond reasonable doubt.
They pray that the Court finds the Accused Person guilty of the murder of Kevin Maundu Muindi and convict him accordingly under Section 322 of the Criminal Procedure Code and section 203 & 204 of the Penal Code.
SUBMISSIONS BY THE ACCUSED PERSON
58. On 27 th February 2026 the Accused person filed submissions and stated that Section 33(a) of the Evidence Act , courts have consistently held the view that evidence of a dying declaration must be admitted with caution because firstly, the dying declaration is not subject to the test of cross-examination and secondly, circumstances leading to the death of the deceased such as acts of violence, may have occasioned him confusion and surprise so as to render his perception questionable. While it is not a rule of law that a dying declaration must be corroborated to found a conviction, nevertheless the trial court must proceed with caution and to get the necessary assurance that a conviction founded on a death declaration is indeed safe.
59. That both the Accused's mother and Father visited the house where the accused, the deceased and Prosecution witness ‘Fathe’la had spent the night. During their visit they confirmed they did not see anything which was burnt in the house.
60. That in the absence of any evidence of production of things which were burnt in the house he confirms that the case against the accused must fail since there is no evidence that the accused burnt or caused the burns on the deceased which lead to his death.
61. The Accused person in his testimony had confirmed that he had drunk with the deceased the whole day on the preceding evening and they had been together with Junior, ‘Fathe’la, Martin the sister and they had been on good terms with the deceased when they parted ways before reaching the house he went to sleep and he left the door for the house unlocked and went to sleep on the mattress which was on the floor and there was a curtain /sheet creating a barrier between where the accused slept on the floor and the sofa set.
62. He urges the Court to find and hold that the fact that the deceased was not sleeping on t
[...truncated]
1. The Accused Person herein Nicholas Mwendwa Mutuku was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya.
Particulars of the offence being that on the night of 26 th September 2020 at Mihango Estate Kayole Subcounty within Nairobi the Accused murdered Kelvin Maundu .
The accused pleaded not guilty.
PROSECUTION EVIDENCE
The evidence was taken/recorded by Hon Ogembo J on/from 28/3/2022
2. PWI MARTIN MWENDA MUTUA. a resident at Mlolongo doing casual jobs stated that on 27/9/2020 at about 7:00 he was in his house in Kayole. He lived in in the same Plot with the accused person. It was a storey building and his room was on 3 rd floor while for the accused was on 2nd floor. It was a single room. He found Nicholas with 2 others, Kelvin Maundu and another Mzee he knew as ‘‘Fathe’'. He found Kelvin had burnt on the face and he was seated on the seat. Nicholas was sleeping on the mattress. ‘‘Fathe’e’ was also seated on a seat
3. Kelvin was burnt on the face and chest. When he saw him, he told him “bro:, nipeleke hospitali walikuwa wanataka kunimaliza.” He went back to his room he dressed and he went back to the deceased. Then all the 3 of them took him to Mama Lucy Kibaki Hospital and when they reached the Hospital, PW1 called his elder sister who came with his other sister and brother. The sister called Ngina came with his brother Denis. He said that he stayed with them for a short time and left, him with Ngina, Denis and another sister. ‘‘Fathe’' and Nicholas had left earlier.
4. On the same day at about 2:00pm, his cousin known as Jeff called and told him that Kelvin had passed away. PW1 went to Mama Lucy Hospital where he found them and they all went to Kayole Police Station and reported and they wrote their statements. Nicholas was the Accused person before Court that today. Kelvin had stayed with Nicholas the Mwendwa for about 1 month.
5. In cross examination he said that he had known the Accused Person and deceased for a long time but ‘‘Fathe’' was known to him for about 1 month. He had stayed in the flat for 4 years. He stated that both the Accused and the deceased were his Cousins. When he went to the Accused’s house the door was not locked. He did not know why deceased did not go to his house if he needed his help. As they took the deceased to the hospital he never spoke. He only gave him his sister's number when they reached to the hospital.
6. PW2 No. 235260 Inspector Daniel Musembi a Crimes Scenes Investigator testified that on 28/9/2020 at around 8:00am, while he was at Kayole Division, he accompanied PC Wachira to a scene at Mihango stage and thereafter to Mama Lucy Hospital. At the scene at Mihango he documented the same and photographed the following:-
Place of the incident, Room No. 16. Therein were 2 rooms. but one seemed to be unoccupied. There in was a charred piece of cloth. The room had signs occupation and was partly burnt chart.
7. He went to the Mortuary where he took 4 photographs of the general view of the body of the deceased wearing clothes. The closer view showed burns on the chest of the deceased. He produced a report dated 28/9/2020 which he had signed and 7 photographs
- Bundle of 7 photographs – MFI – P- 1 – Exh. P- 1
- Crime incident report – MFI – 2- Exh – 2
8. In Cross examination he said that at the house, there were no signs of a commotion. The incident was on 27 th and he visited the scene on 28 th , and there was possibility of tampering with the scene. There was smell of paraffin although they did not recover it. There were charred pieces of clothes but there was no other sign of burning. While one room had nothing, the other room had a carpet, cupboard and bed. There was no sign of struggle in the vacant room, save for the smell of paraffin. The partially burnt cloth was in the other room. He did not take a photo of the whole room.
9. PW3 Denis Muinde brother to the late Kevin Muinde stated that on 29/9/2020, he went to Mama Lucy Hospital where he identified the body of Kevin before Post Mortem. He saw the body had burn injuries on the chest and face.
10. In Cross-examination he stated that Martin (PW1) is his distant Cousin. He accompanied him to hospital when his brother was still alive. He did not speak to the deceased and Martin did not tell him what had happened. It was for Martin to tell the court what happened since the deceased did not talk to him but Martin had been together with the deceased for a long time and he only joined them at the hospital.
12. PW4 Stephen Tukei a Government Analyst at Government Chemist stated that he received 3 exhibits from No. 98830 PC Patrick Wachira on 2/10/2020.
A) a khaki evidence bag containing a blue and white striped shirt. - MFI -P-4.
A(ii), a khaki evidence bag containing a grey T-shirt-M П - Р -5
A(iii) A Khaki evidence bag containing a purple jacket with red and white spots-MI-P-
The Memo Form requested him to ascertain traces of fire accelerants in the exhibits listed. He did examination and found diesel a highly flammable petroleum products in the items. He produced the report signed and dated 23/7/2021.
Memo Form-Exh-3
Analyst report - Exh.4
13. In cross examination he stated that there were
burnt parts on the clothing’s. The jacket had no burnt part. A-3 had been removed from the deceased at the morgue and A-1 were remains of burnt shirt collected from the room. He said that Diesel is highly flammable petroleum product but Kerosene is more flammable .
14. PW5 Dr. Muendo Muthini, also produced a report of the following samples with the name of Kelvin Maundu
1. Blood sample
2. Stomach contents
3. Kidney and liver.
He was to examine and determine the presence
and toxicity of any chemically toxic substance.They did full toxicology screening and it showed negative results on all the exhibits. Although they worked as a team he was the one who signed the report on 3/8/2021. They worked on the samples as a team.
15. In Cross examination he said that: if one dies of carbon (IV) oxide inhalation, they do blood test. For this one it turned negative.
16. PW6 Jeremiah Abwire Okwaro a lorry driver from Kayole and also Care Taker of the Plot at Mihango testified that on 26/9/2020 at about 10:00pm, a young man called Maundu the deceased, was going outside the Plot which is near a stage. He was outside the Plot helping his wife at her vegetable kiosk. He said that he stayed on the ground floor of the Plot. He greeted Maundu and asked him where he was going as it was curfew time. He told him that Nicholas Mwendwa the accused person, also their tenant at the Plot, had asked him to go and buy him a beer. The deceased was staying in the house of Nicholas, door 16 on 2 nd floor. He said that later in the night, he heard them open the gate as they spoke in Kamba language. They climbed upstairs .
17. Since they had arrears of Ksh.2000/=, at about 11:00AM, he went to their room and found the door open and there was a strong smell of kerosene; nobody Responded. He went up stairs to the house of Martin their other friend and he asked where Mwendwa was. Martin told him that Mwendwa had burnt Maundu and he had been taken to Mama Lucy Kibaki Hospital. In the evening Martin told him Mwendwa had passed away when he came back from hospital . DCI officers came shortly and inspected the house. They also took photographs. He entered the house with the officers and saw the broken stove and a burnt mattress. Also, Maundu’s clothes were burnt. They managed to trace Mwendwa as he was escaping, he had a bag and Muguka. They arrested him at Corner Mbaya in Kayole, about 10 minutes’ walk from the Plot. They took him to Matopeni Police Station. He said that Mwendwa is the one who had rented the house at Kshs.2,500/=. He produced an agreement he signed with him. He moved on 29.2.2020 when he paid 5000/= for rent and deposit.
- Tenancy agreement – PMFI-7.
18. He testified that he used to pay rent in the landlords account at Equity Bank.
2 receipts – PMFI-8(a)(b).
He said that Mwendwa and Maundu used to have commotions in their house and neighbours could calm them down. One mzee also stayed with them. That day, the 3 of them had been together. He identified Mwendwa as the accused in Court.
19. In Cross examination he stated that Nicholas Mwendwa had rented the house and the 3 of them stayed in there. Maundu had been with him for 1 month and Mzee for 2 weeks. It is Mwendwa who cut for Maundu the keys. He saw Mwendwa use the key. The driver could come back by 4:00pm. It was a single room. He stated that he did not hear any commotion and that he only knew about it when he went for rent. Martin did not say he heard commotion in the night. He said that the door was open and on peeping there was no one in the house. He saw kerosene on the floor . Martin, Mwendwa, Maundu and Mzee used to walk together.
20. He said that he did not witness the incident he was only involved in the arrest of the accused. His aunty is the one who informed them where the accused was. His aunty was reluctant to write a statement because they are relatives. They took him to the Police Station with his paper bag with clothes.
21. Mwendwa was the tenant who signed the agreement with him. He gave keys to only Mwendwa and not Maundu or mzee. When he went to ask for rent, the door was open but with a curtain. There was a strong kerosene smell . He did not enter. Martin told him that Mwendwa had burnt Maundu who had been taken to Mama Lucy. It is Martin who told him about Maundu’s death. He took the DCI Officers to the house. He saw them taking photographs. They arrested Mwendwa at Corner Mbaya as he was with a paper bag with clothes and shoes. It is him who took him to the police station as his aunt and Martin were reluctant. He never saw mzee again. His evidence is truthful. Also, his statement.
On 4/3/2025, this Court took over the matter; Section 200 CPC was read to the Accused person and he opted to proceed with the matter from where it stopped.
22. PW7 No. 98830 Corporal Patrick Wachira Muriuki who was duty on 27 th stated they received the report of deceased’s death from PW1and that they went to scene and then to Mama Lucy Hospital Mortuary. That they found that Kelvin Maundu had burnt wounds on the leg, on his face and chest. The deceased Maundu called Martin Mwendwa to take him to hospital and told him Mwendwa and Patrick wanted to finish him. Martin Mwendwa PW1 recorded his statement and the accused was arrested by the public that night who brought him to the station. He was interrogated and the caretaker gave out the tenant agreement where the accused rented room No. 16 on 2nd floor.
23. That they found the deceased’s clothes his short had been completely burnt. He produced the short as exhibit 4 the T-shirt which smelt petrol as exhibit 5 the jacket was produced as exhibit 6, the tenancy agreement produced as exhibit 7 the government analyst report as exhibit 8 and the accused mental assessment report dated 5/10/2020 was produced as exhibit 9. He stated that they found the deceased at Mama Lucy Kibaki Hospital Mortuary and that it smelt petrol. the jacket at Mama Lucy
26. He was cross examined and he stated that he did not know that the deceased and the accused were related. That the accused married ‘Fathe's daughter. He admitted that did not visit Masii and that he did not interrogate the neighbor. Further that he did not know whether Martin was among those who brought the accused to the station. That the deceased did tell PW1 that he was fixed by Martin and ‘Fathe’. That he visited the place, the house had 2 rooms. One had a sofa and mattress and there was water on the floor. That ‘Fathe’ came seeking for a place to sleep. That there was no report or claim of injuries when the accused was brought to the station,
28. When the deceased was found he was burnt and the accused was the one who rented the house and he was in the house. The house had things scattered all over the house. That Martin said that he took the deceased to hospital That the caretaker did not state that there was fire at the place.
29. Further, that clothes were taken to the Government Chemist and they were found to have diesel. The accused, the deceased and ‘Fathe’ worked and lived together and he did not know if they had problems and whether they were drinking. That the fire was at the deceased corner. Lastly, that he tried to look for ‘Fathe’ but the name and identity or phone numbers were not found, he also did not know or find his daughter.
30. Pw 8 Dr Charles.K. Muturi the pathologist from Mama Lucy Kibaki hospital referred to the Post Mortem Form dated 28/9/2020 with findings that the deceased died while being treated, he also had clothes on. That the deceased suffered 2nd degree burns on the left side of the face, on the skull and chest regions, the abdomen, right arm and there was swelling on the arteries.
The deceased lungs and brain were congested. The cause of death was skin burns open fire burns, toxicology was also pending.
31. He was cross examined and he said that he did not find any drug or medicine or alcohol on him. That he did not examine the nails to check defensive marks.
32. Parties filed written submission on case to answer.
On 24th November 24/11/2025 this court delivered Ruling on case to answer and stated that the prosecution had proved a prima facie case and the Accused was put on is Defense.
THE DEFENCE EVIDENCE
The Defense Witnesses submitted written Statements with their testimonies and Defense Counsel sought statements and judgment of Wamunyu Court where the deceased was found guilty of indecent assault and was alleged to have escaped from Prison. Wamunyu Magistrate Court S.O 28/2018.
33. DW1 Nicholas Mwendwa Mutuku in sworn statement testified that he went to School with Kevin Maundu.(Deceased) Kevin was hosted by Martin Mwendwa Mulwa (PW1) and he lived with ‘Fathe’ related through marriage to his daughter Caroline Mwikali Mbaika and they had a child.
He stated that on 27/9/2020 PW1 told him to help him to stay with Kevin 1 guest one Kevin as his sister was coming to his house. Kevin was to stay with him for 1 month; in 1 week he slept once or twice.
34 On Saturday, 26/9/2020 they left the house and they went to Wotefarm Club where they were drinking with Martin, Junior Martin’s sister, Junior is son of ‘Fathe’ brother to Caroline Mwikali Mbaika his girlfriend.
35. On the way Wotefarm Club the accused person, Matin and Junior met Kevin and ‘Fathe’ and they went to Club Ndugu Wote. They went at 8.00am at Wote Farm Club where they were drinking. They stayed up to 11 am and they went for lunch at a hotel near the Club. They stayed there up to 10.00 pm – 11.00 pm. They then left each to their way. On they way, Junior and ‘Fathe’ went back Kevin said he went away and the accused person, Martin and his sister went to the Plot where they lived together at 11.00 pm. The gate was not locked any one could enter any time.
36. He went to 2 nd Floor Room 16 alone and Martin went to 3 rd floor with his sister. He did not lock the house as he expected ‘Fathe’ his ‘Fathe’ in law ‘Fathe’ to Caroline Mwikali Mbuka whom they have a child together. Martin requested him to house ‘Fathe’ as he would go to Kangundo and he agreed. He also expected Kelvin who was staying with him for one month and he came on and off. The house was double room 1 room he used to clip/sitting room and divided by curtain. I had sofaset and table and the tools for the other room where he did his work. ‘Fathe’ slept on the set and Kevin was on the mattress with the accused person. The next day he heard a knock at the door. It was ‘Fathe’ at the door and he said that Kelvin was severely injured.
He went out the ground floor he found Kelvin and Martin and this was 27/9/2020 at 7.00 am and he saw Kelvin was injured on the chest and face one side. Kelvin said to him “brother take me to hospital they wanted to finish me.”
The accused person Martin and ‘Father’ took Kelvin to a clinic nearby, where they were told to take him to Mama Lucy Hospital. They walked for10 metres then to Mama Lucy they took Public transport.
37. At Mama Lucy the accused person, Martin ‘Fathe’ and Kelvin arrived at 8.00am. They went to Emergency Section Hospital and they waited for the doctor. After 30 minutes the doctor and Martin called Kelvin’s relative Dennis Mwongela and Gladys Ngala who arrived at 9.00 am. Dennis Muinde (PW3) Mweyala. He pushed Kelvin with a wheel chair to the doctor, the doctor talked to him but he did not respond. He stayed out with Martin and ‘Fathe’ for 1 hour.
They went to Kayole with Kelvin and ‘Fathe’ and they left Mama Lucy at 2.00 pm. Later Martin was called by Dennis (PW3) and he told them Kelvin had died, this was after 2.00pm.
38. Martin went to his house and the accused person went to take soup at 7.00 pm. ‘Fathe’ went to his son Junior at 2.00 pm. They got the report of his death with ‘Fathe’. At that time, He saw 3 people Martin, Junior and Jeremiah Okwaro Ambrose (PW6) and a lady whose name he did not know. He was taken to Kayole Matopeni and he was accused of Kelvin’s death.
39. He told the court that he did not cause the death of Kelvin. PW6 gave him the house he was the caretaker PW6 lied he was the one who rented the house and he collected rent from him and not from Kelvin.
PW4 & PW5 were from the Government Chemist produced reports and found traces of diesel. He said he was not using diesel or paraffin.
The Post Mortem Report page 3 result to examination was “open fire skin burns and inhalational burns pending toxicology.”
PW5 stated in his report he did not find carbon monoxide. “No evidence of burns on the clothes”To the allegation he burnt Kelvin he said he did not burn him at all.
40. On cross examination he requested for photographs in the court and the photos were availed. He said Kelvin was his friend Martin was his cousin. Kelvin was Martin’s neighbour. He was in Kayole same Plot with Martin Mwendwa Mutua(PW1).He was on 2 nd floor and Martin on 3 rd floor.Kelvin asked him to live with him. They lived together for 3 weeks before his death.They went to drink and Martin, Junior ‘Fathe’ and the accused person and Martin sister they drunk from 7.00 am to 10.00 pm on a Saturday.He said that he lived with Kelvin and ‘Fathe’. They entered the Plot with Martin and his sister and he went to his house.Kelvin said he was going on alone and he did not know if he came to the house. He saw him the next day. He was sleeping with Kelvin on the mattress and ‘Fathe’ slept on the seat.
41. He was woken up by ‘Fathe’ and he found the room was normal and mattress had o burns except cigarette burns.
Nowhere else was burnt. The sets were not burnt and there was no smoke smell.
They left with ‘Fathe’ and found Kelvin and Martin and he was injured on the chest and face. He was dressed and was slightly burnt on the face and chest he was burnt.
Kelvin had T-Shirt blue in colour.-Bundle of photographs – Exhibit 2.The shirt that Kelvin had was burnt. The door to his house. The shirt he had on at the time. Kelvin told him that “those two wanted to kill him.”Kelvin those 2 wanted to finish him and said in Kikamba and he did not tell him who the 2 were.
42. PW1 stated that deceased said the accused and ‘Fathe’ wanted to kill him. He also told him that those 2 wanted to kill him. Martin PW1 they had not fought or quarreled.
PW6 did not have any grudge.
43 . Dw2 Christine Nduku Mutuku ; salonist said that Accused Person is his son, and she knew Kelvin as he was a neighbor to her sister-in-law. She told the court that Kelvin was charged with offence of rape at Wamunyu Court. The evidence of PWI Martin contrary on the Accused person. The evidence of Father/Fadhila is a father-in-law as her daughter and they have had a child and Fedhila and he was a good father to the child. She did not know where Fedhila was and that she went inside the house after the fire that day but she did not see any ‘mtungi’ deisel or paraffin and she did not see what burnt the house. She said that she saw sofaset and curtains that divided the house and they were not burnt.
The photographs showed – blood, mattress and curtains that were not burnt. The deceased was charged with offence of defilement and indecent assault in Criminal Case of S.O 28 of 2019 at Wamunyu Law Court and he was sentenced, but he escaped and did not serve sentence. He said that there were other people with grudge with deceased and could have caused the fire.
44. In cross examination he said that the Accused person is his 2 nd born son and he came to Nairobi in 2014 as an Artist. He said that he did not witness what happened on 26/27/9/2020 and he did not attend funeral of the deceased. He said that Martin Mwendwa Mutua (PW1) is cousin to Accused Person and they was no grudge and they did not have a problem. They all lived in one plot but Martin was scared to talk to her. She was not a witness to the case at Wamunyu Court and she did not attend Court and that she knew nothing about the matter.
45. Dw2 No. 1988064884 Sgt Jafeth Mutuku Makau stated that he is a Police Officer with Administration Police. He was called byPW6 Caretaker Jeremiah Okwaro Obima PW6 to go and collect the items that had not been burnt. He went to the scene he could not remember the date but it was in 2020 it was a 2 roomed house he found curtains, sufurias, and trousers which belonged to the accused person, there was a store & sofa set and it was not burnt. He stated Accused person is his son and he was with PW1 Martin Fedhal and Katiku took the suspect and he was given by Landlord/caretaker and he and his wife were present.
He referred to photographs that were produced:-
Photograph 1 – blood stains
Photograph 2 – clothes/bag not burnt.
Photographs 3 – Partition not small part black not burnt .
When he visited the house; he did not see any sign of fire.
46. On cross examination; he said that Accused is his 3 rd born son and he was called by the Caretaker to collect the Accused’s belongings. His son made pictures and sold them. He lived with a lady, child and Father-in-law. He heard Kelvin lived with him. At the house he found a stove, curtain mattress and sufuria, the stove had no oil at all and there was no gas cooker. He did not know about the fire.He said that Martin (PW1) is cousin to Accused Person son of his younger sister. They have lived together for long and they were friends.
PROSECUTION SUBMISSIONS
PROOF OF DEATH OF THE DECEASED
47. The fact of the death is not in dispute.
PW3, the brother of the deceased testified that he identified the body of the deceased at Mama Lucy Hospital before the post-mortem was conducted. This evidence was corroborated by the post mortem report MFI P3, produced by government pathologist, PW7, which confirmed the death.
PROOF THAT THE DEATH WAS CAUSED BY AN UNLAWFUL ACT
48. The evidence overwhelmingly shows that the death
was a direct result of an unlawful act, a violent assault by burning. PWI testified that upon entering the house on the morning of 27th September, 2020, he found the deceased seated on a sofa with his face swollen and his upper body and chest region appearing burnt.
Crucially in his dying declaration, the deceased implicated his two housemates, the accused and one "‘Fathe’e," as the perpetrators. The doctrine of res gestae applies here, as the statement was made concurrently with the event.
49. This oral evidence is strongly corroborated by forensic evidence. The Government Chemist Report (Exhibit 4), confirmed that the deceased's clothing contained a highly flammable petroleum product. Furthermore, PW6 testified to recovering burnt clothes with a heavy smell of kerosene at the scene. The Toxicology report ruled out poisoning, solidifying that the burn injuries were the cause of death, not an accident, suicide or natural causes.
PROOF THAT THE ACCUSED WAS THE PERPETRATOR
50. The prosecution has placed the accused person squarely at the scene of the crime through direct and circumstantial evidence. PWI found the accused, sleeping on a mattress in the same room where the grievously injured deceased was seated. He was not a passer-by; he was a resident of the house and was present when the injuries were discovered.
PW2, the caretaker, testified that on the night of 26 th September 2020, at around 10:00pm, he saw the deceased leave the Plot The deceased told him that he had been called by “Mwenda” to go have bottle of beer. This places the accused and the deceased were together just hours before the injuries were sustained. The doctrine of last seen together places a heavy burden on the accused to explain how the deceased sustained his injuries, which he has failed to do.
The accused admits to being in the house all night, separate only by a curtain. He claims he heard no commotion and saw nothing. However, a person cannot be set on fire with a flammable liquid in a "tiny/small" room without a significant disturbance. His explanation that he was asleep throughout is not plausible and is contradicted by the severity of the injuries and the presence of the kerosene fumes.
PROOF OF MALICE AFORETHOUGHT
51. Malice aforethought, as defined under Section 206 of the Penal Code, is established where there is an intention to cause death or grievous harm. In the case of Republic v Tubere [1985] KLR. the court held that malice can be inferred from the nature of the weapon used and the part of the body targeted.
In this case, the weapon was an unknown container of a highly flammable petroleum product, kerosene or diesel, which was used to set the deceased's upper body on fire. Targeting the chest, neck and face with such an accelerant is an act so inherently dangerous that it demonstrates a clear intention to cause death or at the very least, grievous harm. The deceased's own words, "these two want to finish me," provide direct evidence of the assailant's murderous intent.
52. The accused in his sworn statement, and through the statements of his parents, has attempted to create a defence of innocence by suggesting; the house door was open so anyone could have entered, ‘Fathe’e is the real perpetrator, the witness Martin framed him and that there were no defensive injuries on him.
53. These defences are unavailing and an afterthought. The fact that the door was open does not negate the accused's presence and failure to assist the deceased or raise an alarm. As a lawful resident, he had a duty to protect the deceased or explain what happened under his watch.
54. The accused cannot simply shift blame to an absent third party while offering no credible account on his own. ‘Fathe’e's absence does not exonerate the accused, it merely points to a common design between the two.
55. The allegation that PWI framed the accused is baseless. PWI's testimony is consistent. corroborated by the caretaker and most importantly, supported by forensic evidence. There is no motive suggested for why PWI would want to frame a "cousin" and friend.
56. On the absence of defensive injuries, it is uncommon for victims of a sudden traumatic attack, such as being set on fire, to be incapacitated immediately and unable to defend themselves.
57. The prosecution has adduced credible, consistent and corroborated evidence whereas the accused's defence is a mere denial that does not rebut the circumstantial and direct evidence against him. We humbly submit that the prosecution has proven its case against the accused person beyond reasonable doubt.
They pray that the Court finds the Accused Person guilty of the murder of Kevin Maundu Muindi and convict him accordingly under Section 322 of the Criminal Procedure Code and section 203 & 204 of the Penal Code.
SUBMISSIONS BY THE ACCUSED PERSON
58. On 27 th February 2026 the Accused person filed submissions and stated that Section 33(a) of the Evidence Act , courts have consistently held the view that evidence of a dying declaration must be admitted with caution because firstly, the dying declaration is not subject to the test of cross-examination and secondly, circumstances leading to the death of the deceased such as acts of violence, may have occasioned him confusion and surprise so as to render his perception questionable. While it is not a rule of law that a dying declaration must be corroborated to found a conviction, nevertheless the trial court must proceed with caution and to get the necessary assurance that a conviction founded on a death declaration is indeed safe.
59. That both the Accused's mother and Father visited the house where the accused, the deceased and Prosecution witness ‘Fathe’la had spent the night. During their visit they confirmed they did not see anything which was burnt in the house.
60. That in the absence of any evidence of production of things which were burnt in the house he confirms that the case against the accused must fail since there is no evidence that the accused burnt or caused the burns on the deceased which lead to his death.
61. The Accused person in his testimony had confirmed that he had drunk with the deceased the whole day on the preceding evening and they had been together with Junior, ‘Fathe’la, Martin the sister and they had been on good terms with the deceased when they parted ways before reaching the house he went to sleep and he left the door for the house unlocked and went to sleep on the mattress which was on the floor and there was a curtain /sheet creating a barrier between where the accused slept on the floor and the sofa set.
62. He urges the Court to find and hold that the fact that the deceased was not sleeping on t
[...truncated]