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PETER WILLY MUIA is charged with murder contrary to section 203 as read with s. 204 of the Penal Code. The particular are that on the 11th of September 2020 at YIMWAA village in Twandu Location within MAKINDU Subcounty of MAKUENI county unlawfully murdered KIMEU MUNG’OLOTI .
He pleaded not guilty on the 9th of December 2020 before Dulu J And when the tide was amended on the 22nd of April 2021.
PW1 was a minor at the time of giving evidence. Her testimony was that on the 11th of September 2020 she was in the farm and about 2:00 PM she heard people talking on the road. Then she heard a bang near the gate and when she went there, she found one Kamau was on the ground and another whose name she was told was Willy by some two girls was the assailant and was hitting him. Willy then escaped. She identified the person in the dock as Willy and she told the court that she heard Willy telling Kamau to give him his shoes.
She said when she saw Willy, he had box hairstyle and on cross examination she said that the fight was one meter from the gate and at the same time that she was 10metres away . She said that she identified Willy at the police station after she was shown a photograph of the suspect at the Makindu police station before she went in to identify him. On re Examination she said that she could confirm that the accused was the culprit.
Pw 2 Boniface NZUKU MWANZIA told the court that he was phoned by the ‘public’ and informed that Kimeu had been assaulted by Willy. He and others took him to the nearest hospital which was a dispensary on his motorbike and they were told the injuries were too serious and Kimeu’s uncle Kimotho Ndolo had a vehicle to hospital.
PW2 together with other young men went to look for Willy. When they met him, he was armed with a machete and he ran into a bush. PW2 and others went after him arrested him and took him to KAVETE police station. When there they were rung and told that the injured person had died.
On cross examination he said that the incident happened at KAVATINE village. The deceased was taken to YUNOA Dispensary. They went to look for Willy at his home but he was not there They then proceeded to MASALANI, met him on the way and it is then that he produced a panga and entered a bush.
PW3 Catherine KANINI MUNGOLOTI told the court that she was running a hotel at MIKUYUNI. On the 11th of September 2021 at 3:00 PM she received a phone call from KABATHA female employee of her brother who told her to meet her brother at MAKINDU because he had been beaten. Catherine told her to go and see the brother she went to look for transport she arrived at the hospital and she was told that her brother had been brought in as an emergency she went in but she did not see him. She was prevented from going inside. At 5:00 PM she was told to go at report to the police station She went to the police station and she was told that the people who had brought him had already booked a report at the station She said that at the police station the police showed her the culprit whom she knew.
PW4 DR. Nicolas MBUGUA from Makindu subcounty hospital produced the postmortem report on behalf of DR. MAKAU who had conducted the postmortem. It was conducted on 18th September 2020 at MAKINDU sub-county hospital. The body had a fracture on the left temporal region &cerebral hemorrhage, subdural hematoma and the left parietal region and the cause of death was traumatic head injury secondary to blunt trauma to the head.
PW5 Mary Musingi from KAVATINI. She said the deceased was her herdsman and had worked for her for about two weeks but she did not know the accused. On the 11th of September 2020 at about 1:00 PM she was having mass in her home and when they had just completed one MUTUNGA a neighbor phoned her that there had been a fight and Kimeu had fallen down and was not talking .He told her to go and take him to hospital and she rang the elder of the Nyumba kumi. She took a motorbike and on arrival found that he had been taken to the health center she went there and found that there was no doctor . The laboratory assistant called the ambulance. At that time Kimeu was not talking. She did not notice injuries but when they took him to hospital, she saw injuries on the back of the head which was swollen.
He was taken to MAKINDU. Upon some treatment it was decided that he be transferred to MAKUENI referral hospital. She left him with his siblings and went home but the following day she was phoned by the OCS of Kavete who told her that her worker had died. She was told to report at MAKINDU Police station to record a statement. On cross examination she said she did not know the accused
PW6 Steven JUMA KITHOME testified that the deceased was the child of his brother and that on 15th September 2020 he identified the body to the Doctor who conducted the postmortem. He noted that he had injuries on the back but on the head, he had serious injuries.
All the foregoing witnesses were heard by Dulu J.
I took over the matter at PW7 when Festus MWOLOLO KITHOME testified that the deceased was his son. He said he did not know his son’s employer but only knew the employer’s sister and that on the 11th of September 2020 about 5:00 PM he was rang by the sister of the deceased, Catherine who told him that the deceased had been assaulted and was at MAKINDU Hospital. By 7:00 PM he was rang and told that the deceased had died. On 12th September 2020 he went to the mortuary and was shown the body of his son and he saw that the head was swollen the chest was swollen and he went to CID MAKINDU where a police officer accompanied him for the postmortem, he said the son was 20 years old.
PW8 number 235911 Chief Inspector FAITH CHESIRE was the in charge crime at MAKINDU at the material time. On the 16th September 2020 at 3:00 PM she conducted an IDENTIFICATION (ID) PARADE for Peter WILY MUIA who was the suspect in this case. She said 12 people participated and she had one witness who claimed to have seen the accused commit the offence and that PW I identified the suspect.
She testified that she read the accused person his rights by asking him whether he had any objection to the parade and whether he wanted a friend or a solicitor to appear. That he said he did not have any counsel and when asked whether his family could come, he said he was okay. She identified the accused in court and on cross examination she said that the ID parade took about 30 minutes, she stated that the form did not indicate the time the ID parade was conducted and that the time when the ID PARADE ended was also not indicated. That there was nothing on the form on the features of the participants. That in part E of the form the accused was not satisfied with the parade . According to her this was because the witness came from the same village with him, she said she was not aware that 20 minutes before the parade the accused person was photographed by DCIO officers
PW9 number 76760 CPL KENNEDY MURUNGA told the court that he was previously attached to DCI MAKINDU.
He testified that on 13th September 2020 about 0042 hours he and his colleagues PC Mohamed, PC driver, booked to enquires at JIMWA (sic) area vide murder report OB33/ 11/9 /2020. It was a reported that one Willy had assaulted one KIMEU who was rushed to hospital. They were taken to the scene ( he does not say by who) and the scene was photographed and he later recorded statements from eyewitnesses. He testified that the postmortem was conducted and the report filed. That the accused person was arrested by members of the public and taken to CPL KARISA at KAVETE police post. He was transferred to MAKINDU police station where he was booked for the charge of assault. That when he PW9 took over the matter, the accused was already at MAKINDU police station and was identified to him by CPL KARISA
On cross examination he said he recorded the statement of the eyewitness ,he said he was not present at the ID parade and did not know that she was shown a photo of the accused person before the ID parade.
He said he was not sure of the time of the accused person’s arrest but that he was arrested the same day and was taken to KAVETE police station at 1700 hours. He said that the distance between the scene of crime and where he was arrested was about 3 kilometers away . He also said that he arranged for the ID parade but did not know how many people were paraded .As to whether the accused was found with any weapon he said he only knew about the ropes that were used to tie the accused when the accused when he was arrested.
The prosecution closed its case.
In his defense the accused made a sworn statement where he told the court that before his arrest he was living in Nairobi and was doing business of buying and selling (chuma) iron/metal. He was reminded of the charge and he denied it. He said that on the 11th of September 2020 he was at his home in Yimwaa village that there was a customer by name WATUKA who came at around 1000am to him to buy his land and they agreed and decided he would come the following day 12/9/2020.
He said he then left to do hos chores and that while doing his chores in the shamba about 4:00 PM there was a path near his shamba and he heard boda bodas passing. When they saw him, they stopped and they attacked him when he asked why they told him utasemea huko mbele.
He was arrested and taken to MAKINDU police station and placed in the cells About 10:00 PM a police officer came to the cells and told him that he had killed a person and the following day he was forcefully taken out of their cells and photographs and later on an ID PARADE was conducted .He told the court that the key witness told the court she was shown a photograph just before the ID parade He said the incident happened at KAVATINI yet his village is YIMWAA. He denied killing the deceased.
ON CROSS EXAMINATION he was asked to look at the CHARGESHEET said that the incident happened at YIMWAA village. He said if it had happened in that village there would have been witnesses from that village. Only PW1 came to the police station to identify him He did not know the deceased
The defence closed its case.
Counsel stated that he would file submissions.
I have not seen any submissions either on the file or on CTS.
The issue is whether the prosecution has proved the charge beyond a reasonable doubt.
The prosecution called 9 witnesses to prove the alleged offence against the accused person. He gave a sworn statement of defence and did not call any witnesses.
It is the duty of the prosecution to establish each of the ingredients of murder. In Republic vs Andrew Omwenga [2009] eKLR the court held that
“For the offence of murder to be proved, the prosecution must prove beyond reasonable doubt the following three ingredients:
(i) The death of the deceased and the cause of that death,
(ii) That the accused committed the unlawful act or omission which caused the death, and
(iii) That the accused had malice aforethought.”
Death of the deceased and the cause of that death
The death of the deceased and the cause of death are not in dispute.
The Doctor, PW4 testified that the fatal injury was, the cause of death was blunt force trauma inflicted by a blunt object, leading to fractured the skull.
PW1 stated “ The one who was hit with a stick was Kamau… A piece of stick used to hit was reasonably big and was well shaped… I saw somebody being hit” .
Evidently the PW1 said she heard a bang, went where the bang was , saw two people: a person had fallen and another was hitting him. She did not say she saw him being hit with a stick, she said, ‘the one who was hit with a stick’. The question is why if she saw the hitting with the stick, she did not say that directly. It sounds like she heard that a person was hit with a stick and that is what she was reporting.
Hence though the deceased’s death was caused by blunt trauma to the head, there is no certainty from the evidence of PW1 that she saw him being hit with the stick . In any event when the accused person was arrested according to PW2 soon after this incident he was armed with a machete and not a stick. The said stick was not recovered.
There are two girls who were at the scene. Who, according to PW1 witnessed the incident, they are the ones who knew the accused and the deceased by name. They are the ones who told her the name of the accused. The Investigations and the Prosecution did not bring these crucial witnesses to this case and the court is allowed to presume that their evidence would not have agreed with that of PW1.
The I.O did not say who took him to the scene neither were photos of the scene produced.
In Bukenya & Others v Uganda [1972] EA 549 the court held:
“The prosecution must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent. Where the prosecution fails to call a witness and it is shown that the witness was available and would have been material, the court is entitled to draw an inference that the evidence, if produced, would have been adverse to the prosecution.”
The Prosecution was able to avail PW1. There was no explanation why these two girls could not be availed .
Who caused the injury on the deceased?
It is the prosecution’s case that it was the accused as identified by PW1.
Her testimony raises concerns on whether it is reliable identification evidence to support a conviction.
The testimony of PW1 is that the person she saw had a box hair style with dyed hair. That the person escaped from the scene and she identified him later in an ID parade. She told the court that she was shown the photo of the accused BEFORE she went to identify him. If indeed she knew the identity of this person, why was it necessary to show her the photo of the person she was to identify from her memory?
The accused person in his defence told the court that while in Police Custody , he was removed from the cells and his photo was taken. Soon thereafter , the PW1 came to the ID parade and identified him. He stated in the ID parade forms that he was not satisfied with the ID parade.
The accused person confirmed that he was in the village during that time but denies being at the scene or having any confrontation with the deceased. As the sole identifying witness and in the light of the accused’s defence, this court must treat the PW1’s testimony with caution.
It was in Republic v Ismail Hussein Ibrahim [2018] eKLR, where it was held that:
"Where the sole witness is of doubtful credibility or gave inconsistent evidence, such evidence must be treated with caution and cannot solely sustain a conviction."
In this case the sole identifying witness is PW1.
The prosecution did not set a basis for how she knew the accused, for how long and in what circumstances. This is because she did not know his name, she said the incident took about a minute, she was about 10m away, she was told his name by other people, and was shown his photo just before the ID parade.
PW2 told the court that he was rang by ‘public’ and told that Kimeu had been assaulted by Willy. He organized a search for Willy. They met him walking home and arrested him.
A question arose as to where the incident happened. Was it Yimua or Kavatini?
PW2 said it was at Kavatini. PW5 who said the deceased was her employee said it was at Kavatini. She did not know the accused. The I.O PW9 said the accused was arrested at Yimua ( Imwa) .He was not sure how far that was from the scene of crime but stated it was about 3KM. he said he did not know the time the accused was arrested but that he was taken to the Kavete Police Post at 1700hrs. He could tell how much time had lapsed between the time the offence was committed and the time of arrest,
Pw1 and PW2 spoke about Mikuyuni
It is noteworthy that the ‘public’ that told PW2 that the one Willy had beaten Kimeu was not identified. Who is public? If a call was made to PW2 it was made by a specific person. The I.O ought to have endeavored to identify this caller so that he or she would state what they knew about the said beating. If they had witnessed it, they had crucial evidence that would have assisted their case. By not availing this witness they again fell into the ambit of the holding in the Bukenya case above.
The accused person told the court where he was found by the group of boda- boda riders, at his shamba about 4 pm. He was working and that is why he had a panga. This evidence challenges the evidence given by PW2 that they met him going home. When he was arrested the PW1 was not present to identify him. It is not clear when the ‘two girls’ told her that the name of the accused was Willy, whether it was before or after the arrest.
The identification of the accused as the person PW1 saw is central in this matter and the fact that the accused states he was not in that area that day and was arrested while at his shamba, and nothing else connects him to the offence brings a shadow of doubt in the case for the prosecution. I am fortified in this finding by what the Court of Appeal stated on the issue in Odonde v Republic [2025] KECA 201 (KLR)
In criminal cases the identification of a suspect is always a pivotal question and whenever it arises, the trial court has to satisfy itself that the identification evidence is free from any probable error before convicting. The evidence must be such that threshold set by the rules and decisional law has been met…Indeed, identification evidence is so crucial that this Court has always treated the manner in which the trial court dealt with it as a matter of law.
The case of PW1 in this case is similar to that of PW1 In that case and the Court had this to say
In the present case, PW1 was the most crucial witness and the only identifying witness. She testified that she did not know the appellant prior to the incident. She saw him for the first time on that day. There is no doubt that she had a clear view of the appellant as it was in broad daylight; and she testified that she had ample time to see him. However, the identification evidence in this case raises two concerns. The first one is that since the identifying witness in this case stated that she did not know the appellant before, it would have been prudent to conduct a properly arranged identification parade. This was not done in this case. As a result, it is difficult to determine exactly how and when the witness identified the appellant as the perpetrator of the crime.
Similarly in this case the evidence of identification was doubtful as it had loopholes including the admission by the PW1 that she was shown a photo pf the suspect before the ID parade. The Court of Appeal had this to say
A lack of a properly-arranged identification parade can significantly weaken the evidence against a suspect as is the case here. As this Court stated in In John Mwangi Kamau v Republic [2014] eKLR, “identification parades are meant to test the correctness of a witness’s identification of a suspect.” … The importance of conducting identification parades with scrupulous fairness, adhering to prescribed procedures outlined in police standing orders and relevant statutes cannot be overemphasized.
The upshot was that the Court of Appeal set aside the conviction stating;
As aforesaid, in the present case, there was no proper identification parade. This weakens the prosecution case considerably…The upshot is that we find the identification evidence in this case too weak that it raises reasonable doubt as to the guilt of the appellant. The conviction was, therefore, not safe.
In the present case, a person died, an unlawful death. The accused was charged but having considered the evidence on record, the defence by the accused and the authority above, I find that the ere is doubt in the evidence on identification. The accused gets the benefit of doubt, the charge is dismissed and the accused is acquitted accordingly.
He is to be set at liberty unless otherwise legally held.
Dated signed and delivered virtually this 22nd September 2025.
Mumbua T Matheka
Judge
CA Chrispol
Accused present in open court
Mr. . Kazungu for state
Mr. Hassan for accused
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PETER WILLY MUIA is charged with murder contrary to section 203 as read with s. 204 of the Penal Code. The particular are that on the 11th of September 2020 at YIMWAA village in Twandu Location within MAKINDU Subcounty of MAKUENI county unlawfully murdered KIMEU MUNG’OLOTI .
He pleaded not guilty on the 9th of December 2020 before Dulu J And when the tide was amended on the 22nd of April 2021.
PW1 was a minor at the time of giving evidence. Her testimony was that on the 11th of September 2020 she was in the farm and about 2:00 PM she heard people talking on the road. Then she heard a bang near the gate and when she went there, she found one Kamau was on the ground and another whose name she was told was Willy by some two girls was the assailant and was hitting him. Willy then escaped. She identified the person in the dock as Willy and she told the court that she heard Willy telling Kamau to give him his shoes.
She said when she saw Willy, he had box hairstyle and on cross examination she said that the fight was one meter from the gate and at the same time that she was 10metres away . She said that she identified Willy at the police station after she was shown a photograph of the suspect at the Makindu police station before she went in to identify him. On re Examination she said that she could confirm that the accused was the culprit.
Pw 2 Boniface NZUKU MWANZIA told the court that he was phoned by the ‘public’ and informed that Kimeu had been assaulted by Willy. He and others took him to the nearest hospital which was a dispensary on his motorbike and they were told the injuries were too serious and Kimeu’s uncle Kimotho Ndolo had a vehicle to hospital.
PW2 together with other young men went to look for Willy. When they met him, he was armed with a machete and he ran into a bush. PW2 and others went after him arrested him and took him to KAVETE police station. When there they were rung and told that the injured person had died.
On cross examination he said that the incident happened at KAVATINE village. The deceased was taken to YUNOA Dispensary. They went to look for Willy at his home but he was not there They then proceeded to MASALANI, met him on the way and it is then that he produced a panga and entered a bush.
PW3 Catherine KANINI MUNGOLOTI told the court that she was running a hotel at MIKUYUNI. On the 11th of September 2021 at 3:00 PM she received a phone call from KABATHA female employee of her brother who told her to meet her brother at MAKINDU because he had been beaten. Catherine told her to go and see the brother she went to look for transport she arrived at the hospital and she was told that her brother had been brought in as an emergency she went in but she did not see him. She was prevented from going inside. At 5:00 PM she was told to go at report to the police station She went to the police station and she was told that the people who had brought him had already booked a report at the station She said that at the police station the police showed her the culprit whom she knew.
PW4 DR. Nicolas MBUGUA from Makindu subcounty hospital produced the postmortem report on behalf of DR. MAKAU who had conducted the postmortem. It was conducted on 18th September 2020 at MAKINDU sub-county hospital. The body had a fracture on the left temporal region &cerebral hemorrhage, subdural hematoma and the left parietal region and the cause of death was traumatic head injury secondary to blunt trauma to the head.
PW5 Mary Musingi from KAVATINI. She said the deceased was her herdsman and had worked for her for about two weeks but she did not know the accused. On the 11th of September 2020 at about 1:00 PM she was having mass in her home and when they had just completed one MUTUNGA a neighbor phoned her that there had been a fight and Kimeu had fallen down and was not talking .He told her to go and take him to hospital and she rang the elder of the Nyumba kumi. She took a motorbike and on arrival found that he had been taken to the health center she went there and found that there was no doctor . The laboratory assistant called the ambulance. At that time Kimeu was not talking. She did not notice injuries but when they took him to hospital, she saw injuries on the back of the head which was swollen.
He was taken to MAKINDU. Upon some treatment it was decided that he be transferred to MAKUENI referral hospital. She left him with his siblings and went home but the following day she was phoned by the OCS of Kavete who told her that her worker had died. She was told to report at MAKINDU Police station to record a statement. On cross examination she said she did not know the accused
PW6 Steven JUMA KITHOME testified that the deceased was the child of his brother and that on 15th September 2020 he identified the body to the Doctor who conducted the postmortem. He noted that he had injuries on the back but on the head, he had serious injuries.
All the foregoing witnesses were heard by Dulu J.
I took over the matter at PW7 when Festus MWOLOLO KITHOME testified that the deceased was his son. He said he did not know his son’s employer but only knew the employer’s sister and that on the 11th of September 2020 about 5:00 PM he was rang by the sister of the deceased, Catherine who told him that the deceased had been assaulted and was at MAKINDU Hospital. By 7:00 PM he was rang and told that the deceased had died. On 12th September 2020 he went to the mortuary and was shown the body of his son and he saw that the head was swollen the chest was swollen and he went to CID MAKINDU where a police officer accompanied him for the postmortem, he said the son was 20 years old.
PW8 number 235911 Chief Inspector FAITH CHESIRE was the in charge crime at MAKINDU at the material time. On the 16th September 2020 at 3:00 PM she conducted an IDENTIFICATION (ID) PARADE for Peter WILY MUIA who was the suspect in this case. She said 12 people participated and she had one witness who claimed to have seen the accused commit the offence and that PW I identified the suspect.
She testified that she read the accused person his rights by asking him whether he had any objection to the parade and whether he wanted a friend or a solicitor to appear. That he said he did not have any counsel and when asked whether his family could come, he said he was okay. She identified the accused in court and on cross examination she said that the ID parade took about 30 minutes, she stated that the form did not indicate the time the ID parade was conducted and that the time when the ID PARADE ended was also not indicated. That there was nothing on the form on the features of the participants. That in part E of the form the accused was not satisfied with the parade . According to her this was because the witness came from the same village with him, she said she was not aware that 20 minutes before the parade the accused person was photographed by DCIO officers
PW9 number 76760 CPL KENNEDY MURUNGA told the court that he was previously attached to DCI MAKINDU.
He testified that on 13th September 2020 about 0042 hours he and his colleagues PC Mohamed, PC driver, booked to enquires at JIMWA (sic) area vide murder report OB33/ 11/9 /2020. It was a reported that one Willy had assaulted one KIMEU who was rushed to hospital. They were taken to the scene ( he does not say by who) and the scene was photographed and he later recorded statements from eyewitnesses. He testified that the postmortem was conducted and the report filed. That the accused person was arrested by members of the public and taken to CPL KARISA at KAVETE police post. He was transferred to MAKINDU police station where he was booked for the charge of assault. That when he PW9 took over the matter, the accused was already at MAKINDU police station and was identified to him by CPL KARISA
On cross examination he said he recorded the statement of the eyewitness ,he said he was not present at the ID parade and did not know that she was shown a photo of the accused person before the ID parade.
He said he was not sure of the time of the accused person’s arrest but that he was arrested the same day and was taken to KAVETE police station at 1700 hours. He said that the distance between the scene of crime and where he was arrested was about 3 kilometers away . He also said that he arranged for the ID parade but did not know how many people were paraded .As to whether the accused was found with any weapon he said he only knew about the ropes that were used to tie the accused when the accused when he was arrested.
The prosecution closed its case.
In his defense the accused made a sworn statement where he told the court that before his arrest he was living in Nairobi and was doing business of buying and selling (chuma) iron/metal. He was reminded of the charge and he denied it. He said that on the 11th of September 2020 he was at his home in Yimwaa village that there was a customer by name WATUKA who came at around 1000am to him to buy his land and they agreed and decided he would come the following day 12/9/2020.
He said he then left to do hos chores and that while doing his chores in the shamba about 4:00 PM there was a path near his shamba and he heard boda bodas passing. When they saw him, they stopped and they attacked him when he asked why they told him utasemea huko mbele.
He was arrested and taken to MAKINDU police station and placed in the cells About 10:00 PM a police officer came to the cells and told him that he had killed a person and the following day he was forcefully taken out of their cells and photographs and later on an ID PARADE was conducted .He told the court that the key witness told the court she was shown a photograph just before the ID parade He said the incident happened at KAVATINI yet his village is YIMWAA. He denied killing the deceased.
ON CROSS EXAMINATION he was asked to look at the CHARGESHEET said that the incident happened at YIMWAA village. He said if it had happened in that village there would have been witnesses from that village. Only PW1 came to the police station to identify him He did not know the deceased
The defence closed its case.
Counsel stated that he would file submissions.
I have not seen any submissions either on the file or on CTS.
The issue is whether the prosecution has proved the charge beyond a reasonable doubt.
The prosecution called 9 witnesses to prove the alleged offence against the accused person. He gave a sworn statement of defence and did not call any witnesses.
It is the duty of the prosecution to establish each of the ingredients of murder. In Republic vs Andrew Omwenga [2009] eKLR the court held that
“For the offence of murder to be proved, the prosecution must prove beyond reasonable doubt the following three ingredients:
(i) The death of the deceased and the cause of that death,
(ii) That the accused committed the unlawful act or omission which caused the death, and
(iii) That the accused had malice aforethought.”
Death of the deceased and the cause of that death
The death of the deceased and the cause of death are not in dispute.
The Doctor, PW4 testified that the fatal injury was, the cause of death was blunt force trauma inflicted by a blunt object, leading to fractured the skull.
PW1 stated “ The one who was hit with a stick was Kamau… A piece of stick used to hit was reasonably big and was well shaped… I saw somebody being hit” .
Evidently the PW1 said she heard a bang, went where the bang was , saw two people: a person had fallen and another was hitting him. She did not say she saw him being hit with a stick, she said, ‘the one who was hit with a stick’. The question is why if she saw the hitting with the stick, she did not say that directly. It sounds like she heard that a person was hit with a stick and that is what she was reporting.
Hence though the deceased’s death was caused by blunt trauma to the head, there is no certainty from the evidence of PW1 that she saw him being hit with the stick . In any event when the accused person was arrested according to PW2 soon after this incident he was armed with a machete and not a stick. The said stick was not recovered.
There are two girls who were at the scene. Who, according to PW1 witnessed the incident, they are the ones who knew the accused and the deceased by name. They are the ones who told her the name of the accused. The Investigations and the Prosecution did not bring these crucial witnesses to this case and the court is allowed to presume that their evidence would not have agreed with that of PW1.
The I.O did not say who took him to the scene neither were photos of the scene produced.
In Bukenya & Others v Uganda [1972] EA 549 the court held:
“The prosecution must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent. Where the prosecution fails to call a witness and it is shown that the witness was available and would have been material, the court is entitled to draw an inference that the evidence, if produced, would have been adverse to the prosecution.”
The Prosecution was able to avail PW1. There was no explanation why these two girls could not be availed .
Who caused the injury on the deceased?
It is the prosecution’s case that it was the accused as identified by PW1.
Her testimony raises concerns on whether it is reliable identification evidence to support a conviction.
The testimony of PW1 is that the person she saw had a box hair style with dyed hair. That the person escaped from the scene and she identified him later in an ID parade. She told the court that she was shown the photo of the accused BEFORE she went to identify him. If indeed she knew the identity of this person, why was it necessary to show her the photo of the person she was to identify from her memory?
The accused person in his defence told the court that while in Police Custody , he was removed from the cells and his photo was taken. Soon thereafter , the PW1 came to the ID parade and identified him. He stated in the ID parade forms that he was not satisfied with the ID parade.
The accused person confirmed that he was in the village during that time but denies being at the scene or having any confrontation with the deceased. As the sole identifying witness and in the light of the accused’s defence, this court must treat the PW1’s testimony with caution.
It was in Republic v Ismail Hussein Ibrahim [2018] eKLR, where it was held that:
"Where the sole witness is of doubtful credibility or gave inconsistent evidence, such evidence must be treated with caution and cannot solely sustain a conviction."
In this case the sole identifying witness is PW1.
The prosecution did not set a basis for how she knew the accused, for how long and in what circumstances. This is because she did not know his name, she said the incident took about a minute, she was about 10m away, she was told his name by other people, and was shown his photo just before the ID parade.
PW2 told the court that he was rang by ‘public’ and told that Kimeu had been assaulted by Willy. He organized a search for Willy. They met him walking home and arrested him.
A question arose as to where the incident happened. Was it Yimua or Kavatini?
PW2 said it was at Kavatini. PW5 who said the deceased was her employee said it was at Kavatini. She did not know the accused. The I.O PW9 said the accused was arrested at Yimua ( Imwa) .He was not sure how far that was from the scene of crime but stated it was about 3KM. he said he did not know the time the accused was arrested but that he was taken to the Kavete Police Post at 1700hrs. He could tell how much time had lapsed between the time the offence was committed and the time of arrest,
Pw1 and PW2 spoke about Mikuyuni
It is noteworthy that the ‘public’ that told PW2 that the one Willy had beaten Kimeu was not identified. Who is public? If a call was made to PW2 it was made by a specific person. The I.O ought to have endeavored to identify this caller so that he or she would state what they knew about the said beating. If they had witnessed it, they had crucial evidence that would have assisted their case. By not availing this witness they again fell into the ambit of the holding in the Bukenya case above.
The accused person told the court where he was found by the group of boda- boda riders, at his shamba about 4 pm. He was working and that is why he had a panga. This evidence challenges the evidence given by PW2 that they met him going home. When he was arrested the PW1 was not present to identify him. It is not clear when the ‘two girls’ told her that the name of the accused was Willy, whether it was before or after the arrest.
The identification of the accused as the person PW1 saw is central in this matter and the fact that the accused states he was not in that area that day and was arrested while at his shamba, and nothing else connects him to the offence brings a shadow of doubt in the case for the prosecution. I am fortified in this finding by what the Court of Appeal stated on the issue in Odonde v Republic [2025] KECA 201 (KLR)
In criminal cases the identification of a suspect is always a pivotal question and whenever it arises, the trial court has to satisfy itself that the identification evidence is free from any probable error before convicting. The evidence must be such that threshold set by the rules and decisional law has been met…Indeed, identification evidence is so crucial that this Court has always treated the manner in which the trial court dealt with it as a matter of law.
The case of PW1 in this case is similar to that of PW1 In that case and the Court had this to say
In the present case, PW1 was the most crucial witness and the only identifying witness. She testified that she did not know the appellant prior to the incident. She saw him for the first time on that day. There is no doubt that she had a clear view of the appellant as it was in broad daylight; and she testified that she had ample time to see him. However, the identification evidence in this case raises two concerns. The first one is that since the identifying witness in this case stated that she did not know the appellant before, it would have been prudent to conduct a properly arranged identification parade. This was not done in this case. As a result, it is difficult to determine exactly how and when the witness identified the appellant as the perpetrator of the crime.
Similarly in this case the evidence of identification was doubtful as it had loopholes including the admission by the PW1 that she was shown a photo pf the suspect before the ID parade. The Court of Appeal had this to say
A lack of a properly-arranged identification parade can significantly weaken the evidence against a suspect as is the case here. As this Court stated in In John Mwangi Kamau v Republic [2014] eKLR, “identification parades are meant to test the correctness of a witness’s identification of a suspect.” … The importance of conducting identification parades with scrupulous fairness, adhering to prescribed procedures outlined in police standing orders and relevant statutes cannot be overemphasized.
The upshot was that the Court of Appeal set aside the conviction stating;
As aforesaid, in the present case, there was no proper identification parade. This weakens the prosecution case considerably…The upshot is that we find the identification evidence in this case too weak that it raises reasonable doubt as to the guilt of the appellant. The conviction was, therefore, not safe.
In the present case, a person died, an unlawful death. The accused was charged but having considered the evidence on record, the defence by the accused and the authority above, I find that the ere is doubt in the evidence on identification. The accused gets the benefit of doubt, the charge is dismissed and the accused is acquitted accordingly.
He is to be set at liberty unless otherwise legally held.
Dated signed and delivered virtually this 22nd September 2025.
Mumbua T Matheka
Judge
CA Chrispol
Accused present in open court
Mr. . Kazungu for state
Mr. Hassan for accused
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