1. The Accused herein was charged with the offence of murder contrary to Section 203 as read with section 204 of the Penal Code. The particulars of the offence are that, on 31st August 2015 at Muthetheni Location in Mwala sub -county within Machakos County he murdered Joseph Mbondo Maseki.
2. The accused pleaded not guilty to the charge.
3. The prosecution called a total of 9 witnesses in support of its case. In Briefly, they presented their case as follows;
4. PW1, Boniface Mutuku Mbondo testified that he is a resident of Gituti Sub-location, Katikomu Village and works in the jua kali sector. He stated that in August 2015, while working at Mlolongo where he also resides, he was given time off and returned home where he stayed for about three days. During that period, a person asked him to buy tea and upon his response that he had no money, questioned him about an alleged sale of family land. PW1 stated that he had no knowledge of such a sale. Upon returning home, he inquired from his mother, who informed him that his father was aware of the matter. He then consulted his uncle, Mwilu, his father’s stepbrother, who advised him to seek clarification directly from his father.
5. PW1 proceeded to his father’s workplace, found him on the farm and informed him about the alleged sale of land. His father expressed surprise and denied any knowledge of the transaction. They thereafter visited the home of the father’s employer, where it was suggested that PW1 consult the village elder, Philip Kalungu Mutiku of Mumani village. PW1 did so and the elder undertook investigations. The elder later informed PW1 that the land had allegedly been sold by PW1’s father in conjunction with PW1’s brother, Kioko, following communication between them. PW1 relayed this information to his father, who indicated that he would seek permission from his employer and return to address the matter.
6. The following day, PW1’s father returned, and a discussion was held involving PW1, his father and their uncle Mwilu. It was agreed that the matter would be report to the Assistant Chief the following day. PW1 and his father duly reported the issue and the Assistant Chief indicated he would summon the alleged purchaser to explain the transaction. PW1’s father then returned to work and requested more time, with a plan to revisit the Assistant Chief in September. At that time, PW1’s brother Kioko was in Nairobi, although PW1 had seen him briefly at home before he left again.
7. PW1 further testified that on 1st September 2015, while at work in Munyili at about 8:00 a.m., he received a call from his cousin, Michael Muoki Mwilu, asking him to return home urgently. Upon doing so, he was informed that his father had been involved in an accident and had died. PW1 accompanied by Michael Muoki proceeded to the father’s workplace using a motorbike. While on the way, his brother Kioko called and stated that he had heard their father had been killed and that he was travelling from Nairobi so they could meet there. PW1 arrived at the scene between 9:00 a.m. and 10:00 a.m. and found a crowd gathered at the gate. He observed his father’s body lying down, covered with a net. The area Assistant Chief was present and instructed them to wait for the police. Officers from Masii Police Station arrived, took photographs and recorded their names and phone numbers. When the body was uncovered for photographing, PW1 observed two cuts on his father’s back though he did not examine them closely due to shock. The body was later taken to Machakos.
8. PW1 testified that on 3rd September 2015, his mother, Michael Muoki and himself attended the post-mortem and identified the body. He confirmed that the body had been taken to the mortuary on 1st September 2015. On 2nd September 2015, PW1 was summoned to Masii Police Station to record a statement. While on the way, his brother Kioko bought githeri, which PW1 did not eat, though Kioko did. Kioko appeared apprehensive about being arrested and expressed reluctance to visit the CID offices. Upon arrival at the station, Kioko was asked to wait outside while PW1 recorded his statement. However, when PW1 later went to call him, he was no longer there. PW1 was subsequently, informed by the police that Kioko was suspected to have knowledge about their father’s death. PW1 did not find Kioko at home thereafter, including during the post-mortem and funeral arrangements which proceeded in his absence. PW1 later recorded a further statement on 22nd September 2015 confirming identification of the body.
9. PW1 stated that Kioko, the accused, is his younger brother. They are seven siblings, three boys and four girls, with the youngest brother, Kisilu, being about 9–10 years old at the time and living at home. He further stated that their home is about one hour away from their father’s workplace by motorbike. PW1 testified that he did not see the accused again until about one week after the burial when he had been arrested at the police station, but they did not speak to him. He stated that he was not aware of any prior quarrel or disagreement between Kioko and their father, and that their relationship appeared cordial. He also testified that although their father used to drink, but there was no information that he had been drinking on the day he died. He believed the death occurred on the night of 31st August 2015 and confirmed that no one informed them who attacked their father. He also stated that Kioko did not contribute to funeral expenses.
10. During cross-examination, PW1 stated that he had been informed the land had been sold for Kshs 60,000, although it had no title and he did not know in whose name it was registered. He stated that he heard the money was received by Kioko, though he did not know if it was the full amount. He added that his mother appeared to have knowledge of the transaction and had accompanied Kioko, and that she informed him she received Kshs 1,000 from the proceeds. PW1 admitted that he did not know the name of his father’s employer, whom he referred to as Nyamai Mutua, but stated that his father had worked there since youth. He reiterated that he was not aware of any dispute between the accused, and their father, and did not know the accused whereabouts on 31st August 2015 or for approximately two weeks, thereafter. He also confirmed that he had no information that his father had been drinking on the day he was attacked.
11. In re-examination, PW1 reiterated that he heard the land was sold for Kshs 60,000 and that the money was given to Kioko, though he did not know if it was the entire amount. He confirmed that the land had been inherited by their father and that apart from his mother receiving Kshs 1,000, he did not know of anyone else who received the proceeds. He clarified that his mother initially told him that his father was aware of the sale, but only disclosed after the father’s death that she herself had knowledge of the transaction. PW1 maintained that he used to visit his father, that the accused knew where their father worked, and that he did not receive any information that his father had been drinking on the day of his death. He stated that although the accused was at home before the incident, he was not there at the time of the death, and that PW1 did not know how the accused related with their father prior to his death. He confirmed that the last time he saw the accused before the incident was at the father’s workplace, and that thereafter he did not see him for about two weeks. Finally, he reiterated that the accused did not contribute to funeral expenses.
12. PW2, Wayua Dorothy, testified that she is a resident of Katikomu and a casual labouror. She stated that the deceased, Joseph Mbondo, was her husband, and that the accused, Patrick Kioko Mbondo, is her son and her second born child. She testified that in July 2015, the accused informed her that he had sold a portion of land to one Joshua. She clarified that the land belonged to the deceased and not to the accused and that she had been cultivating it. According to PW2, the accused told her that he had already informed his father about the sale, although the deceased had not personally informed her of any such information. The accused did not disclose the purchase price to her but gave her Kshs 1,000, stating that he had given the remainder of the money to his father. PW2 testified that she did not witness any payment being made to the deceased and that she received no further proceeds from the transaction.
13. PW2 testified that a few days after she received the Kshs 1,000, the deceased returned home from his place of work and subsequently sought advice o3f elders regarding the matter of the land. She did not inform him about the sale of the land, and he did not indicate to her that he had consented to it or received any payment. The deceased stayed at home for about three days, during which time he indicated that he would seek permission from his employer in order to return and further investigate the issue. During that period, their son Mutuku (PW1) was also at home, and together with the deceased, they reported the matter to the Assistant Chief. Thereafter, the deceased returned to his place of work, but did not come back home again.
14. PW2 testified that she later received information that the deceased had been killed, although she could not recall who informed her. At the time she was with PW1 who proceeded to the deceased’s place of work and confirmed his death. The deceased’s body was subsequently taken to the mortuary, and the family proceeded with the burial arrangements. PW2 testified that the accused did not attend the burial, did not send any contribution towards funeral expenses, and that she did not know his whereabouts at the time. She later learned that he had been found at Masii after the burial, although she did not know the circumstances.
15. PW2 further stated that she visited the mortuary and saw the deceased’s body, it had injuries. She stated that the deceased lived at his workplace and occasionally consumed alcohol. She also stated that while she and other family members visited him she did not know whether the accused visited him. She also testified that at the time the accused was selling the land, he was not living at home, and she did not know where he resided except for when he came to inform her about the sale. She maintained that the accused had a cordial relationship with the deceased.
16. During cross-examination, PW2 testified that she has seven children, all of whom were living at home in 2015. She reiterated that the deceased consumed alcohol but she had no dispute with him regarding drinking She confirmed that she only received Kshs 1,000 from the accused and did not know the total purchase price of the land. She also stated that the accused once asked her to sign certain documents, informing her that he had already reached an agreement with his father. However, she admitted she did not know the nature of documents she signed or whether they related to a sale. She further stated that the documents were retained with the buyer, identified as Joshua Wambua. She maintained she did not handle the proceeds of the alleged sale and did not know whether PW1 received any money.
17. In re-examination, PW2 reiterated that all her children were living home in 2015 and that she had no issue with the deceased’s drinking. She emphasized that she did not sell the land and that the accused informed her that he had already agreed with his father regarding the sale. She maintained that the land belonged to the deceased and she did not know the nature of documents she signed. She also stated that other individuals may have received money from the transaction and that PW1 had informed her that he had received money from the accused, although she clarified that PW1 did not personally collect the money.
18. PW3, Justus Ndesya Muli, testified that he was the Assistant Chief of Ngiluni Location in August 2015. He recalled that on 13th August 2015 at about 7:30 a.m., the deceased, Joseph Mbondo Maseki, visited him at his home in the company of Boniface Mutuku Mbondo (PW1). During that visit, the deceased informed him that he had received information that his son, Kioko Mbondo, (the accused) had sold a portion of his land without his knowledge to one Joshua Mutinda Wambua. PW3 stated that this was the first time he was learning of the alleged sale
19. The deceased explained that he had only been granted one day by his employer and would return to seek additional time to follow up on the matter. He indicated that upon his return, he would contact PW3 so that both the alleged buyer and the seller could be summoned to resolve the issue.
20. PW3 further stated that on 1st September 2015, he received a report that the deceased had been killed at his place of work. Subsequently, on 3rd September 2015, he was summoned by officers from the Criminal Investigations Department (CID) to Mwala Police Station, where he recorded a statement. He confirmed that prior to deceased’s death, he had not summoned Joshua Mutinda Wambua, the alleged buyer, as he was still awaiting the deceased’s return. He also stated that he knew PW1, and had known the accused, Kioko Mbondo, since he was a young man, and that he had not previously received any complaints about him. However, he did not know where the accused worked and did not visit the scene of the incident.
21. During cross-examination, PW3 stated that he had not received any documentation evidence relating to the alleged sale and that he knowledge was based solely on the report made by the deceased. He confirmed that he had not summoned either the alleged buyer or the seller, as he was awaiting the deceased’s return, although he had gathered information suggesting that the land had indeed been sold.
22. In re-examination, PW3 reiterated that the understanding was that the deceased would contact him upon his return so that he could summon both the seller and the buyer to address the matter.
23. PW4, Geoffrey Nyamai Mutua, testified that he is a businessman from Muthetheni Location in Mwala Sub-County. He stated that the deceased, Joseph Mbondo, was his employee and had worked at his home for many years. He explained that the deceased had initially been employed by his late father and that he continued employing him thereafter. PW4 testified that in early August 2015, the deceased requested permission to travel home to address a family dispute, informing him that his sons had sold part of his land without his consent. PW4 granted the request.
24. PW4 testified that on 1st September 2015 at about 8:30 a.m., he received a phone call from a village elder, Muinde, informing him that the deceased had been killed. He recalled that the deceased had earlier mentioned that the son who had sold the land had received partial payment and had thereafter disappeared. Upon receiving the news, PW4 travelled to Muthetheni. On arrival, he was informed that the deceased’s body had already removed.
25. PW4 further testified that he was shown the scene of the incident. He observed that the door to the deceased’s house had been broken and that the interior appeared ransacked with items scattered. He noted bloodstains outside the door, but none inside the house. He also observed that the compound which was fenced with temporary Euphorbia fence, appeared to have been trampled. He stated that the nearest neighbour was about 100 metres away, separated by a road, with another homestead in between.
26. PW4 testified that on 2nd September 2015, he spoke to one of the deceased’s sons, and his brother regarding funeral arrangements, and later attended the burial. He subsequently recorded his statement at Masii Police Station on 20th September 2015. He stated that he knew the deceased’s family members but did not know the accused. He described the deceased as a good person who occasionally consumed alcohol but was not a nuisance. He further stated that apart from the issue concerning the land, the deceased had never mentioned any other problems to him and he had never heard of any disputes involving him. During cross-examination, he maintained that he did not know the accused.
27. PW5, Isaac Nthei Muthini, testified that he is from Muthetheni Location and that at the material time he was serving as the area Chief. He stated that on 1st September 2015 at about 9:20 a.m., while on his way to work, he was informed by the Assistant Chief, Raphael Mutua, of an incident that had occurred within his jurisdiction. Upon receiving the information, he proceeded to the scene and found the body of an adult male lying outside. He testified that police officers were already present. The body was covered with a mosquito net, and he observed a cut injury at the back of the neck. Shortly thereafter, the Officer Commanding Station (OCS) arrived at the scene.
28. PW5 stated that he did not know the deceased and had no knowledge of how he died. He confirmed that the police conducted their investigations at the scene. He further stated that he recorded his statement on 4th September 2015. PW5 testified that he did not know the accused, Patrick Kioko Mbondo and that the first time he saw him was when the deceased body was being loaded into the vehicle.
29. PW6, Antony Ngunga Makoli, testified he is a village elder from Muthetheni Location, Nthiani Sub-location. He stated that on 1st September 2015 at about 9:20 a.m., while at home, he received a call from one David Muinde, who informed him that a worker at a neighboring home had been killed. Upon receiving this information, he contacted the Assistant Chief, who confirmed the incident and instructed them to meet at the scene. PW6 proceeded there and found the Assistant Chief already present together with many members of the public gathered outside. He observed body of the deceased lying in one of the houses, covered with a mosquito net and noted cut injuries on the head.
30. He testified that he knew the deceased as a worker at that homestead, which was located approximately a 15minute walk from his residence. He further stated that police officers later arrived, conducted investigations and removed the body. On 3rd September 2015, he was summoned to Masii Police Station, where he recorded his statement. PW6 also testified that although many people were present at the scene, he did not know the accused, Patrick Kioko Mbondo and could not recall seeing him at the scene on that day.
31. PW7, Raphael Mumo Mutua, testified that he is the Chief of Muthetheni Location within Mwala Sub-County, and had previously served as the Assistant Chief of Ndalani Sub-location. He stated that on 1st September 2015 at about 7:30 a.m., while on his way to the Chief’s Office in Muthetheni, he received a call from one Mr. Wambua Ndambuki, who informed him that a worker at the home of Mr. Mutua Kitemo’s son had been found dead within the compound. He immediately proceeded to the scene. While on the way, he received a second call from Mr. Anthony Nganga, a village elder, whom he directed to meet him there. Upon arrival at the gate, he found more than 30 members of the community gathered there. He was informed that the worker had been found lying dead with cuts on the head. This information was relayed to him by one Mr. Mutua. PW7 requested that the gate be opened and entered the compound instructing members of the public not to interference with the scene. On approaching the body, he observed three cut wounds to the head.
PW7 testified that he then attempted to contact the area Chief, upon being unsuccessful, informed the officer in charge of Muthetheni Police Post. He later reached the Chief, who confirmed he was on his way. PW7 remained at the scene managing the crowd until the police and the Chief arrived after which the body was taken to Machakos Level 5 Mortuary. He testified that no information was available to him at the time as to who had committed the act or the motive behind it. He further stated that he spoke to a neighbour, Mr. Mutua, who indicated that he had heard some noise during the night but assumed it was caused by a drunken person.
32. During cross-examination, PW7 stated that he did not know the deceased prior to the incident and was not familiar with his family. He also confirmed that he did not know the accused before the incident, although he recalled that the accused came to the scene on that day while he (PW7) was present. He further stated that he had no information as to whether the deceased consumed alcohol and noted that the deceased had been working at the homestead for several months. He added that inquiries among locals revealed that the deceased was from Kiteta in Makueni, a neighbouring location approximately 10 kilo-metres away.
33. PW8, Dr. Waithera Githendu testified that she is a pathologist at Machakos Level 5 Hospital, holding a Bachelor of Medicine and Surgery degree in 2007 and a Master’s degree in Pathology in 2013 from the University of Nairobi. She stated that on 3rd September 2015, she conducted a post-mortem examination on the body of Joseph Mbondo at Machakos Level 5 Hospital.
34. According to the history provided, the deceased had been found by a neighbour next to his house with deep cut wounds on the head and was already dead when neighbors found him. Upon examination, PW8 observed that the deceased’s clothes were soaked in blood. A detailed external and internal examination revealed multiple deep cut wounds on both sides of the head as well as injuries at the back of the neck and on the lower jawbone. Internally, the head injuries were severe, involving skull fractured that affected the brain. She noted that the rest of the body was unremarkable. PW8 formed the opinion that the cause of death was head injury resulting from deep cut wounds. She confirmed that she signed and stamped the post-mortem report on the same day and produced it in court as Prosecution Exhibit 1.
35. In cross-examination, PW8 stated that she personally conducted the post-mortem examination and that the body was identified to her by the deceased’s wife, Dorcas Wayua Mbondo and his daughter, Mwoki Mwilu. She explained that, ordinarily, the deceased’s clothing is taken by the police for forensic purposes such as DNA analysis but noted that this detail had been omitted from the post-mortem form due to an oversight and she could not recall whether the clothes were actually taken. She further explained that the nature of the injuries, sustained were consistent with a sharp force trauma, likely inflicted using a sharp object such as a panga.
36. PW9, No. 79681 Corporal Mohamed Hamisi testified that he is attached to the Directorate of Criminal Investigations (DCI) Msambweni and was previously stationed at DCI Mwala, based at Masii Police Station, where he participated in the investigations of this case. He stated that on 1st September 2015, while at work, they received a report of the murder of one Joseph Maseki, aged about 50 years at Muthetheni Area. He proceeded to the scene together with the then DCIO and the Officer Commanding Station (OCS).
37. Upon arrival, PW9 testified that they found the body of the deceased in his house, lying in a pool of blood with visible injuries to the neck and head. The injuries appeared to be deep cut wounds inflicted by a sharp object. The officers took photographs and arranged for the body to be moved to Machakos Level 5 Hospital Mortuary for preservation and post-mortem examination. PW9 stated that he could not recall whether he personally attended the post-mortem.
38. PW9 further testified that investigations were conducted jointly with the DCIO during which statements were recorded statements from witnesses. Family members of the deceased including his two sons, Mutuku Mbondo (PW1) and Kioko Mbondo (the accused), were summoned to the DCI offices at Mwala on 2nd September 2015. PW9 recorded a statement from PW1 Mutuku Mbondo while, the accused, Kioko Mbondo was asked to wait outside. However, before his statement could be taken the accused disappeared. From that day, the accused could not be traced and did not attend his father’s funeral. This conduct raised suspicion among family members, who began to suspect his involvement in the death of the deceased.
39. PW9 stated that on 15th September 2015, approximately two weeks after the incident, the accused was arrested by members of the public at Masii, where he was allegedly hiding in a hotel. He was handed over to the police. Upon search, he was found with two bus tickets. one of the tickets indicated travel from Nairobi to Muthetheni on 31st August 2015, paying a fare of Kshs 300 although it did not bear the accused’s name. He testified that the ticket bore details suggesting it was for travel from Nairobi to Muthetheni and was associated with Kako Joy bus service, including a registration number. He stated that they did not independently verify its origin with the bus company and the bus ticket was not produced as evidence in court.
40. PW9 testified that investigations also revealed a dispute over land between the deceased and the accused. According to the information gathered, the accused had demanded a portion of land from the deceased to sell, which the deceased had refused, allegedly leading to a strained relationship. PW9 admitted that he did not deeply investigate the land issue and that at the time, the land had not actually been sold.
41. PW9 further stated that their suspicion against the accused was based on several factors including his disappearance from the police station before recording a statement, his failure to attend his father’s funeral, his alleged hiding in a hotel and his possession of the bus ticket showing he had travelled to Muthetheni a day before the incident. He also stated that, from witness statements, the accused was placed at the scene of the incident. He stated that a confessionary statement existed (marked PMFI-3) which had been recorded by the OCS, CIP Dickson Walukano. He stated that he did not record it himself and did not know the current whereabouts of the officer who did it. He also stated that he could not recognize the accused in court.
42. In cross-examination, PW9 confirmed that the accused was present at the scene on 1st September 2015 and that he reported to the police station on 2nd September 2015 together with his brother, Mutuku Mbondo(PW1).
43. He testified that the accused was asked to wait but was not instructed to return on another date. After recording PW1’s statement, PW9 did not see the accused again that day. He also admitted that he was not present at the time of the accused’s arrest and that no independent inquiries were made at the place of arrest to confirm his alleged stay in the hotel.
44. PW9 further testified that when they visited the scene, members of the public were already present and the gate to the compound was open. The deceased was found in a semi-permanent one-bedroom house, lying in a pool of blood and fully clothed. The body was removed together with the clothes although they were not subjected to DNA analysis. He stated that no forensic examination was carried out at the scene and no murder weapon was recovered. He further admitted that investigations did not establish whether the deceased had been drinking prior to the incident.
45. In re-examination, PW9 clarified that the body was found inside a mud house which he described as a temporary structure. He also explained that the bus ticket indicated the point of departure and destination of travel, namely Nairobi to Mithetheni.
46. At the close of the prosecution’s case, this court found that a prima facie case had been established against the accused, and he was accordingly placed on his defence. He elected to give sworn testimony.
Defence Case
47. DW1, Patrick Kioko Mbondo, testified that he has been in custody since 2015 when this case commenced. He stated that he previously resided in Nairobi, where he engaged in sale of meat and that his rural home is in Ndiluni Sub-location, Mbooni East, Makueni County. He confirmed that he is aware of the charge facing him, namely that he allegedly murdered his father, Joseph Mbondo Maseki.
48. He testified that between 1st and 5th August, he was called by his brother, Boniface Mutuku Mbondo (PW1) to return home to discuss certain family issues. Upon his arrival, he met PW1, their mother Dorothy Wayua Mbondo (PW2) and their cousin Michael Mwoki Mwilu. During that meeting, the issue of sale of family land was discussed but no agreement was reached. He stated that he inquired whether their father was aware of the discussions, as he had not been present and thereafter, he returned to Nairobi.
49. DW1 further testified that on 1st September 2015 at about 1:00 a.m., he received a call from his cousin, Michael Mwoki Mwilu informing him that his father had been attacked by unknown persons and injured. He advised Michael to take him to hospital, as he was closer. He then travelled from Nairobi to Machakos and proceed to Muthetheni, where his father worked as a domestic worker in the home of one Nyamai Mutua. Upon arrival at around 12:30 p.m. to 1:00 p.m., he found police officers, members of the public, his brother Boniface (PW1), and Michael Mwoki Mwilu at the scene. He stated that the police asked for his nickname “Kathuri,” and recorded his phone number. He found his father lying on the ground, already dead. He testified that the body was taken to Masii Police Station and later to Machakos Level 5 Hospital Mortuary.
50. He further testified that on 2nd September 2015, he and his brother were summoned to Masii Police Station by Sergeant Mathenge. Upon arrival, his brother was asked to record a statement first while he waited outside. He stated that while he was waiting, he heard his brother being questioned aggressively about having killed their father over land
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2. The accused pleaded not guilty to the charge.
3. The prosecution called a total of 9 witnesses in support of its case. In Briefly, they presented their case as follows;
4. PW1, Boniface Mutuku Mbondo testified that he is a resident of Gituti Sub-location, Katikomu Village and works in the jua kali sector. He stated that in August 2015, while working at Mlolongo where he also resides, he was given time off and returned home where he stayed for about three days. During that period, a person asked him to buy tea and upon his response that he had no money, questioned him about an alleged sale of family land. PW1 stated that he had no knowledge of such a sale. Upon returning home, he inquired from his mother, who informed him that his father was aware of the matter. He then consulted his uncle, Mwilu, his father’s stepbrother, who advised him to seek clarification directly from his father.
5. PW1 proceeded to his father’s workplace, found him on the farm and informed him about the alleged sale of land. His father expressed surprise and denied any knowledge of the transaction. They thereafter visited the home of the father’s employer, where it was suggested that PW1 consult the village elder, Philip Kalungu Mutiku of Mumani village. PW1 did so and the elder undertook investigations. The elder later informed PW1 that the land had allegedly been sold by PW1’s father in conjunction with PW1’s brother, Kioko, following communication between them. PW1 relayed this information to his father, who indicated that he would seek permission from his employer and return to address the matter.
6. The following day, PW1’s father returned, and a discussion was held involving PW1, his father and their uncle Mwilu. It was agreed that the matter would be report to the Assistant Chief the following day. PW1 and his father duly reported the issue and the Assistant Chief indicated he would summon the alleged purchaser to explain the transaction. PW1’s father then returned to work and requested more time, with a plan to revisit the Assistant Chief in September. At that time, PW1’s brother Kioko was in Nairobi, although PW1 had seen him briefly at home before he left again.
7. PW1 further testified that on 1st September 2015, while at work in Munyili at about 8:00 a.m., he received a call from his cousin, Michael Muoki Mwilu, asking him to return home urgently. Upon doing so, he was informed that his father had been involved in an accident and had died. PW1 accompanied by Michael Muoki proceeded to the father’s workplace using a motorbike. While on the way, his brother Kioko called and stated that he had heard their father had been killed and that he was travelling from Nairobi so they could meet there. PW1 arrived at the scene between 9:00 a.m. and 10:00 a.m. and found a crowd gathered at the gate. He observed his father’s body lying down, covered with a net. The area Assistant Chief was present and instructed them to wait for the police. Officers from Masii Police Station arrived, took photographs and recorded their names and phone numbers. When the body was uncovered for photographing, PW1 observed two cuts on his father’s back though he did not examine them closely due to shock. The body was later taken to Machakos.
8. PW1 testified that on 3rd September 2015, his mother, Michael Muoki and himself attended the post-mortem and identified the body. He confirmed that the body had been taken to the mortuary on 1st September 2015. On 2nd September 2015, PW1 was summoned to Masii Police Station to record a statement. While on the way, his brother Kioko bought githeri, which PW1 did not eat, though Kioko did. Kioko appeared apprehensive about being arrested and expressed reluctance to visit the CID offices. Upon arrival at the station, Kioko was asked to wait outside while PW1 recorded his statement. However, when PW1 later went to call him, he was no longer there. PW1 was subsequently, informed by the police that Kioko was suspected to have knowledge about their father’s death. PW1 did not find Kioko at home thereafter, including during the post-mortem and funeral arrangements which proceeded in his absence. PW1 later recorded a further statement on 22nd September 2015 confirming identification of the body.
9. PW1 stated that Kioko, the accused, is his younger brother. They are seven siblings, three boys and four girls, with the youngest brother, Kisilu, being about 9–10 years old at the time and living at home. He further stated that their home is about one hour away from their father’s workplace by motorbike. PW1 testified that he did not see the accused again until about one week after the burial when he had been arrested at the police station, but they did not speak to him. He stated that he was not aware of any prior quarrel or disagreement between Kioko and their father, and that their relationship appeared cordial. He also testified that although their father used to drink, but there was no information that he had been drinking on the day he died. He believed the death occurred on the night of 31st August 2015 and confirmed that no one informed them who attacked their father. He also stated that Kioko did not contribute to funeral expenses.
10. During cross-examination, PW1 stated that he had been informed the land had been sold for Kshs 60,000, although it had no title and he did not know in whose name it was registered. He stated that he heard the money was received by Kioko, though he did not know if it was the full amount. He added that his mother appeared to have knowledge of the transaction and had accompanied Kioko, and that she informed him she received Kshs 1,000 from the proceeds. PW1 admitted that he did not know the name of his father’s employer, whom he referred to as Nyamai Mutua, but stated that his father had worked there since youth. He reiterated that he was not aware of any dispute between the accused, and their father, and did not know the accused whereabouts on 31st August 2015 or for approximately two weeks, thereafter. He also confirmed that he had no information that his father had been drinking on the day he was attacked.
11. In re-examination, PW1 reiterated that he heard the land was sold for Kshs 60,000 and that the money was given to Kioko, though he did not know if it was the entire amount. He confirmed that the land had been inherited by their father and that apart from his mother receiving Kshs 1,000, he did not know of anyone else who received the proceeds. He clarified that his mother initially told him that his father was aware of the sale, but only disclosed after the father’s death that she herself had knowledge of the transaction. PW1 maintained that he used to visit his father, that the accused knew where their father worked, and that he did not receive any information that his father had been drinking on the day of his death. He stated that although the accused was at home before the incident, he was not there at the time of the death, and that PW1 did not know how the accused related with their father prior to his death. He confirmed that the last time he saw the accused before the incident was at the father’s workplace, and that thereafter he did not see him for about two weeks. Finally, he reiterated that the accused did not contribute to funeral expenses.
12. PW2, Wayua Dorothy, testified that she is a resident of Katikomu and a casual labouror. She stated that the deceased, Joseph Mbondo, was her husband, and that the accused, Patrick Kioko Mbondo, is her son and her second born child. She testified that in July 2015, the accused informed her that he had sold a portion of land to one Joshua. She clarified that the land belonged to the deceased and not to the accused and that she had been cultivating it. According to PW2, the accused told her that he had already informed his father about the sale, although the deceased had not personally informed her of any such information. The accused did not disclose the purchase price to her but gave her Kshs 1,000, stating that he had given the remainder of the money to his father. PW2 testified that she did not witness any payment being made to the deceased and that she received no further proceeds from the transaction.
13. PW2 testified that a few days after she received the Kshs 1,000, the deceased returned home from his place of work and subsequently sought advice o3f elders regarding the matter of the land. She did not inform him about the sale of the land, and he did not indicate to her that he had consented to it or received any payment. The deceased stayed at home for about three days, during which time he indicated that he would seek permission from his employer in order to return and further investigate the issue. During that period, their son Mutuku (PW1) was also at home, and together with the deceased, they reported the matter to the Assistant Chief. Thereafter, the deceased returned to his place of work, but did not come back home again.
14. PW2 testified that she later received information that the deceased had been killed, although she could not recall who informed her. At the time she was with PW1 who proceeded to the deceased’s place of work and confirmed his death. The deceased’s body was subsequently taken to the mortuary, and the family proceeded with the burial arrangements. PW2 testified that the accused did not attend the burial, did not send any contribution towards funeral expenses, and that she did not know his whereabouts at the time. She later learned that he had been found at Masii after the burial, although she did not know the circumstances.
15. PW2 further stated that she visited the mortuary and saw the deceased’s body, it had injuries. She stated that the deceased lived at his workplace and occasionally consumed alcohol. She also stated that while she and other family members visited him she did not know whether the accused visited him. She also testified that at the time the accused was selling the land, he was not living at home, and she did not know where he resided except for when he came to inform her about the sale. She maintained that the accused had a cordial relationship with the deceased.
16. During cross-examination, PW2 testified that she has seven children, all of whom were living at home in 2015. She reiterated that the deceased consumed alcohol but she had no dispute with him regarding drinking She confirmed that she only received Kshs 1,000 from the accused and did not know the total purchase price of the land. She also stated that the accused once asked her to sign certain documents, informing her that he had already reached an agreement with his father. However, she admitted she did not know the nature of documents she signed or whether they related to a sale. She further stated that the documents were retained with the buyer, identified as Joshua Wambua. She maintained she did not handle the proceeds of the alleged sale and did not know whether PW1 received any money.
17. In re-examination, PW2 reiterated that all her children were living home in 2015 and that she had no issue with the deceased’s drinking. She emphasized that she did not sell the land and that the accused informed her that he had already agreed with his father regarding the sale. She maintained that the land belonged to the deceased and she did not know the nature of documents she signed. She also stated that other individuals may have received money from the transaction and that PW1 had informed her that he had received money from the accused, although she clarified that PW1 did not personally collect the money.
18. PW3, Justus Ndesya Muli, testified that he was the Assistant Chief of Ngiluni Location in August 2015. He recalled that on 13th August 2015 at about 7:30 a.m., the deceased, Joseph Mbondo Maseki, visited him at his home in the company of Boniface Mutuku Mbondo (PW1). During that visit, the deceased informed him that he had received information that his son, Kioko Mbondo, (the accused) had sold a portion of his land without his knowledge to one Joshua Mutinda Wambua. PW3 stated that this was the first time he was learning of the alleged sale
19. The deceased explained that he had only been granted one day by his employer and would return to seek additional time to follow up on the matter. He indicated that upon his return, he would contact PW3 so that both the alleged buyer and the seller could be summoned to resolve the issue.
20. PW3 further stated that on 1st September 2015, he received a report that the deceased had been killed at his place of work. Subsequently, on 3rd September 2015, he was summoned by officers from the Criminal Investigations Department (CID) to Mwala Police Station, where he recorded a statement. He confirmed that prior to deceased’s death, he had not summoned Joshua Mutinda Wambua, the alleged buyer, as he was still awaiting the deceased’s return. He also stated that he knew PW1, and had known the accused, Kioko Mbondo, since he was a young man, and that he had not previously received any complaints about him. However, he did not know where the accused worked and did not visit the scene of the incident.
21. During cross-examination, PW3 stated that he had not received any documentation evidence relating to the alleged sale and that he knowledge was based solely on the report made by the deceased. He confirmed that he had not summoned either the alleged buyer or the seller, as he was awaiting the deceased’s return, although he had gathered information suggesting that the land had indeed been sold.
22. In re-examination, PW3 reiterated that the understanding was that the deceased would contact him upon his return so that he could summon both the seller and the buyer to address the matter.
23. PW4, Geoffrey Nyamai Mutua, testified that he is a businessman from Muthetheni Location in Mwala Sub-County. He stated that the deceased, Joseph Mbondo, was his employee and had worked at his home for many years. He explained that the deceased had initially been employed by his late father and that he continued employing him thereafter. PW4 testified that in early August 2015, the deceased requested permission to travel home to address a family dispute, informing him that his sons had sold part of his land without his consent. PW4 granted the request.
24. PW4 testified that on 1st September 2015 at about 8:30 a.m., he received a phone call from a village elder, Muinde, informing him that the deceased had been killed. He recalled that the deceased had earlier mentioned that the son who had sold the land had received partial payment and had thereafter disappeared. Upon receiving the news, PW4 travelled to Muthetheni. On arrival, he was informed that the deceased’s body had already removed.
25. PW4 further testified that he was shown the scene of the incident. He observed that the door to the deceased’s house had been broken and that the interior appeared ransacked with items scattered. He noted bloodstains outside the door, but none inside the house. He also observed that the compound which was fenced with temporary Euphorbia fence, appeared to have been trampled. He stated that the nearest neighbour was about 100 metres away, separated by a road, with another homestead in between.
26. PW4 testified that on 2nd September 2015, he spoke to one of the deceased’s sons, and his brother regarding funeral arrangements, and later attended the burial. He subsequently recorded his statement at Masii Police Station on 20th September 2015. He stated that he knew the deceased’s family members but did not know the accused. He described the deceased as a good person who occasionally consumed alcohol but was not a nuisance. He further stated that apart from the issue concerning the land, the deceased had never mentioned any other problems to him and he had never heard of any disputes involving him. During cross-examination, he maintained that he did not know the accused.
27. PW5, Isaac Nthei Muthini, testified that he is from Muthetheni Location and that at the material time he was serving as the area Chief. He stated that on 1st September 2015 at about 9:20 a.m., while on his way to work, he was informed by the Assistant Chief, Raphael Mutua, of an incident that had occurred within his jurisdiction. Upon receiving the information, he proceeded to the scene and found the body of an adult male lying outside. He testified that police officers were already present. The body was covered with a mosquito net, and he observed a cut injury at the back of the neck. Shortly thereafter, the Officer Commanding Station (OCS) arrived at the scene.
28. PW5 stated that he did not know the deceased and had no knowledge of how he died. He confirmed that the police conducted their investigations at the scene. He further stated that he recorded his statement on 4th September 2015. PW5 testified that he did not know the accused, Patrick Kioko Mbondo and that the first time he saw him was when the deceased body was being loaded into the vehicle.
29. PW6, Antony Ngunga Makoli, testified he is a village elder from Muthetheni Location, Nthiani Sub-location. He stated that on 1st September 2015 at about 9:20 a.m., while at home, he received a call from one David Muinde, who informed him that a worker at a neighboring home had been killed. Upon receiving this information, he contacted the Assistant Chief, who confirmed the incident and instructed them to meet at the scene. PW6 proceeded there and found the Assistant Chief already present together with many members of the public gathered outside. He observed body of the deceased lying in one of the houses, covered with a mosquito net and noted cut injuries on the head.
30. He testified that he knew the deceased as a worker at that homestead, which was located approximately a 15minute walk from his residence. He further stated that police officers later arrived, conducted investigations and removed the body. On 3rd September 2015, he was summoned to Masii Police Station, where he recorded his statement. PW6 also testified that although many people were present at the scene, he did not know the accused, Patrick Kioko Mbondo and could not recall seeing him at the scene on that day.
31. PW7, Raphael Mumo Mutua, testified that he is the Chief of Muthetheni Location within Mwala Sub-County, and had previously served as the Assistant Chief of Ndalani Sub-location. He stated that on 1st September 2015 at about 7:30 a.m., while on his way to the Chief’s Office in Muthetheni, he received a call from one Mr. Wambua Ndambuki, who informed him that a worker at the home of Mr. Mutua Kitemo’s son had been found dead within the compound. He immediately proceeded to the scene. While on the way, he received a second call from Mr. Anthony Nganga, a village elder, whom he directed to meet him there. Upon arrival at the gate, he found more than 30 members of the community gathered there. He was informed that the worker had been found lying dead with cuts on the head. This information was relayed to him by one Mr. Mutua. PW7 requested that the gate be opened and entered the compound instructing members of the public not to interference with the scene. On approaching the body, he observed three cut wounds to the head.
PW7 testified that he then attempted to contact the area Chief, upon being unsuccessful, informed the officer in charge of Muthetheni Police Post. He later reached the Chief, who confirmed he was on his way. PW7 remained at the scene managing the crowd until the police and the Chief arrived after which the body was taken to Machakos Level 5 Mortuary. He testified that no information was available to him at the time as to who had committed the act or the motive behind it. He further stated that he spoke to a neighbour, Mr. Mutua, who indicated that he had heard some noise during the night but assumed it was caused by a drunken person.
32. During cross-examination, PW7 stated that he did not know the deceased prior to the incident and was not familiar with his family. He also confirmed that he did not know the accused before the incident, although he recalled that the accused came to the scene on that day while he (PW7) was present. He further stated that he had no information as to whether the deceased consumed alcohol and noted that the deceased had been working at the homestead for several months. He added that inquiries among locals revealed that the deceased was from Kiteta in Makueni, a neighbouring location approximately 10 kilo-metres away.
33. PW8, Dr. Waithera Githendu testified that she is a pathologist at Machakos Level 5 Hospital, holding a Bachelor of Medicine and Surgery degree in 2007 and a Master’s degree in Pathology in 2013 from the University of Nairobi. She stated that on 3rd September 2015, she conducted a post-mortem examination on the body of Joseph Mbondo at Machakos Level 5 Hospital.
34. According to the history provided, the deceased had been found by a neighbour next to his house with deep cut wounds on the head and was already dead when neighbors found him. Upon examination, PW8 observed that the deceased’s clothes were soaked in blood. A detailed external and internal examination revealed multiple deep cut wounds on both sides of the head as well as injuries at the back of the neck and on the lower jawbone. Internally, the head injuries were severe, involving skull fractured that affected the brain. She noted that the rest of the body was unremarkable. PW8 formed the opinion that the cause of death was head injury resulting from deep cut wounds. She confirmed that she signed and stamped the post-mortem report on the same day and produced it in court as Prosecution Exhibit 1.
35. In cross-examination, PW8 stated that she personally conducted the post-mortem examination and that the body was identified to her by the deceased’s wife, Dorcas Wayua Mbondo and his daughter, Mwoki Mwilu. She explained that, ordinarily, the deceased’s clothing is taken by the police for forensic purposes such as DNA analysis but noted that this detail had been omitted from the post-mortem form due to an oversight and she could not recall whether the clothes were actually taken. She further explained that the nature of the injuries, sustained were consistent with a sharp force trauma, likely inflicted using a sharp object such as a panga.
36. PW9, No. 79681 Corporal Mohamed Hamisi testified that he is attached to the Directorate of Criminal Investigations (DCI) Msambweni and was previously stationed at DCI Mwala, based at Masii Police Station, where he participated in the investigations of this case. He stated that on 1st September 2015, while at work, they received a report of the murder of one Joseph Maseki, aged about 50 years at Muthetheni Area. He proceeded to the scene together with the then DCIO and the Officer Commanding Station (OCS).
37. Upon arrival, PW9 testified that they found the body of the deceased in his house, lying in a pool of blood with visible injuries to the neck and head. The injuries appeared to be deep cut wounds inflicted by a sharp object. The officers took photographs and arranged for the body to be moved to Machakos Level 5 Hospital Mortuary for preservation and post-mortem examination. PW9 stated that he could not recall whether he personally attended the post-mortem.
38. PW9 further testified that investigations were conducted jointly with the DCIO during which statements were recorded statements from witnesses. Family members of the deceased including his two sons, Mutuku Mbondo (PW1) and Kioko Mbondo (the accused), were summoned to the DCI offices at Mwala on 2nd September 2015. PW9 recorded a statement from PW1 Mutuku Mbondo while, the accused, Kioko Mbondo was asked to wait outside. However, before his statement could be taken the accused disappeared. From that day, the accused could not be traced and did not attend his father’s funeral. This conduct raised suspicion among family members, who began to suspect his involvement in the death of the deceased.
39. PW9 stated that on 15th September 2015, approximately two weeks after the incident, the accused was arrested by members of the public at Masii, where he was allegedly hiding in a hotel. He was handed over to the police. Upon search, he was found with two bus tickets. one of the tickets indicated travel from Nairobi to Muthetheni on 31st August 2015, paying a fare of Kshs 300 although it did not bear the accused’s name. He testified that the ticket bore details suggesting it was for travel from Nairobi to Muthetheni and was associated with Kako Joy bus service, including a registration number. He stated that they did not independently verify its origin with the bus company and the bus ticket was not produced as evidence in court.
40. PW9 testified that investigations also revealed a dispute over land between the deceased and the accused. According to the information gathered, the accused had demanded a portion of land from the deceased to sell, which the deceased had refused, allegedly leading to a strained relationship. PW9 admitted that he did not deeply investigate the land issue and that at the time, the land had not actually been sold.
41. PW9 further stated that their suspicion against the accused was based on several factors including his disappearance from the police station before recording a statement, his failure to attend his father’s funeral, his alleged hiding in a hotel and his possession of the bus ticket showing he had travelled to Muthetheni a day before the incident. He also stated that, from witness statements, the accused was placed at the scene of the incident. He stated that a confessionary statement existed (marked PMFI-3) which had been recorded by the OCS, CIP Dickson Walukano. He stated that he did not record it himself and did not know the current whereabouts of the officer who did it. He also stated that he could not recognize the accused in court.
42. In cross-examination, PW9 confirmed that the accused was present at the scene on 1st September 2015 and that he reported to the police station on 2nd September 2015 together with his brother, Mutuku Mbondo(PW1).
43. He testified that the accused was asked to wait but was not instructed to return on another date. After recording PW1’s statement, PW9 did not see the accused again that day. He also admitted that he was not present at the time of the accused’s arrest and that no independent inquiries were made at the place of arrest to confirm his alleged stay in the hotel.
44. PW9 further testified that when they visited the scene, members of the public were already present and the gate to the compound was open. The deceased was found in a semi-permanent one-bedroom house, lying in a pool of blood and fully clothed. The body was removed together with the clothes although they were not subjected to DNA analysis. He stated that no forensic examination was carried out at the scene and no murder weapon was recovered. He further admitted that investigations did not establish whether the deceased had been drinking prior to the incident.
45. In re-examination, PW9 clarified that the body was found inside a mud house which he described as a temporary structure. He also explained that the bus ticket indicated the point of departure and destination of travel, namely Nairobi to Mithetheni.
46. At the close of the prosecution’s case, this court found that a prima facie case had been established against the accused, and he was accordingly placed on his defence. He elected to give sworn testimony.
Defence Case
47. DW1, Patrick Kioko Mbondo, testified that he has been in custody since 2015 when this case commenced. He stated that he previously resided in Nairobi, where he engaged in sale of meat and that his rural home is in Ndiluni Sub-location, Mbooni East, Makueni County. He confirmed that he is aware of the charge facing him, namely that he allegedly murdered his father, Joseph Mbondo Maseki.
48. He testified that between 1st and 5th August, he was called by his brother, Boniface Mutuku Mbondo (PW1) to return home to discuss certain family issues. Upon his arrival, he met PW1, their mother Dorothy Wayua Mbondo (PW2) and their cousin Michael Mwoki Mwilu. During that meeting, the issue of sale of family land was discussed but no agreement was reached. He stated that he inquired whether their father was aware of the discussions, as he had not been present and thereafter, he returned to Nairobi.
49. DW1 further testified that on 1st September 2015 at about 1:00 a.m., he received a call from his cousin, Michael Mwoki Mwilu informing him that his father had been attacked by unknown persons and injured. He advised Michael to take him to hospital, as he was closer. He then travelled from Nairobi to Machakos and proceed to Muthetheni, where his father worked as a domestic worker in the home of one Nyamai Mutua. Upon arrival at around 12:30 p.m. to 1:00 p.m., he found police officers, members of the public, his brother Boniface (PW1), and Michael Mwoki Mwilu at the scene. He stated that the police asked for his nickname “Kathuri,” and recorded his phone number. He found his father lying on the ground, already dead. He testified that the body was taken to Masii Police Station and later to Machakos Level 5 Hospital Mortuary.
50. He further testified that on 2nd September 2015, he and his brother were summoned to Masii Police Station by Sergeant Mathenge. Upon arrival, his brother was asked to record a statement first while he waited outside. He stated that while he was waiting, he heard his brother being questioned aggressively about having killed their father over land
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