REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCRC NO. 21 OF 2020
REPUBLIC ……………………………………………………..PROSECUTOR
VERSUS
ROBERT MUTUA MWOLOLO ………………………..…….…..…ACCUSED
JUDGMENT
1) The accused person ROBERT MUTUA MWOLOLO is charged with murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged that on 7/10/2019 at Makongo area within Makueni Sub-County jointly with others not before court he murdered Dominic Mutuku Sakayo.
2) Accused took plea on 10/7/2020, and pleaded not guilty.
3) The matter was part heard before Dulu J who heard 9 witnesses.
4) PW1 Jackline Mutuli Paul told the court that Dominic Mutuku was her husband. He left home at Wote on 5/10/2019 at 9:00 a.m. to attend a burial in Machakos. It was a Saturday. They did not talk over the weekend. By Monday he had not come home. She tried to call him; his phone was not going through. She called her mother in-law – and they said she had left home already .– by Wednesday 9/10/2019 – she reported at Wote police station. Later that day between 3 – 400 pm the police came to her business and told her that her husband had been killed – she went with the officers to the mortuary Makueni Referral hospital, where she identified his body. He had an injury at the back of his head.
5) PW2 Julius Zakayo Mailu testified that the deceased was his son. He testified that his son came home – Kathiani for a burial – that he came home on Friday 4 th on 2019 , at the burial was on Monday 7 th . He said his son left after the burial on Monday at 5 pm. That he went to Machakos to meet his friend.
6) That he tried to find out whether he had arrived home by 1100 pm but he had not arrived. By Wednesday, he left for Wote . At Makongo he found a crowd a people – the driver of the matatu he was in stopped – they were told that there was a person there – he told the driver that he wanted to alight there – he alighted. When he went where there the person was he saw that it was his son, he was in the same clothes he had on the day he left home. He had a cut wound on the head. Police came, he told them that was his son.
7) They took the body away to the mortuary at Wote. He later recorded a statement.
8) PW3 Joseph Mwendwa Mwaniki , told the court that Dominic Mutuku was his friend. He was rang by the OCS Wote where he met the father of Dominic – after he had been rang by other friends and alerted that Dominic was missing. He was later requested to secure Dominic’s business at Wote as the wife and sister of Dominic were in a confused state.
9) PW4 Newson Kareviu Matihi told the court he was from Maragua – Murang’a – He told the court that on 7/10/2019 at 1100 pm – he was transporting bananas from Muranga to Makueni in his motor vehicle registration KCC 674F Toyota Hiace. After Kola, where there was a primary school, he saw a young woman screaming and shouting; and trying to stop him. He could not stop because he was not sure whether she was a cover for attackers. He drove to nearby police post and hooted. 2 police officers accompanied him back to the scene – where they found villagers – who told them that the young woman had been carried by a white motor /vehicle.
10) He dropped the police officers at the police post and proceeded on. He met the motor vehicle that had carried the woman ahead and the driver requested him to take her to Wote . He drove to another police post – where she booked her report. The police there did not have transport and requested him to take her to Wote.
11) He took her to the hospital, at Wote, at the gate, she told him that the phone she had was stolen and requested him to drop her at her boyfriend’s. He asked what had happened. She told him that she and others were passengers in a motor vehicle from Machakos hospital area, on the way they were ordered to surrender all their belongings, she was put in the boot the other passengers were told to lie down and were assaulted – she was scared and in pain.
12) On cross-examination he said he did not record in his statement that she told him that she was assaulted. He said he could not identify her, that she did not give him the description of anyone.
13) Pw5 John Mutiso Muthama told the court that Dominic was his friend. the record shows that he told the court that on 7/10/2019 at 7:30 am he and Dominic went to Syokimau club, Dominic bought him 6 jugs of Kenya Ken and a Guinness for himself. That most of the time Dominic was on phone – so they did not talk much – at 9:30 am , he said he wanted to go – and they parted at the hospital stage. On 10 th Dominic’s father and his (PW5’s) father went to his place to ask him whether he had seen Dominic. He told them they had been together and he had escorted him to the stage – they told him he had been killed.
14) Pw6 Dr. Stephen Musembi testified on behalf of Dr. Agnes Makau who had examined the body of the deceased for the postmortem report. The defence had no objection, and he proceeded to testify on her behalf. The postmortem was conducted on 12/10/19. He testified that the body had a deformity at the back of the head – bruises above the right ear, blood under the skin on the head, cracks at the back of the head, brain destroyed: cause of death was severe head injury secondary to severe blunt trauma the head.
15) On cross-examination he said he did not personally examine the seriousness of the injury – but confirmed that the assessment was clinical where injury was severe or moderate.
16) PW7 Joseph Biwott was Chief Clinical Officer Makueni County Referral Hospital. He produced the P3 for one Christine Mwikali Wambua – 29 years old at the time of the examination. She gave history of assault and robbery by unknown people on 7/10/2019 and sustained injuries. She had a deep cut wound on the forehead – she had a scar with stitch marks about 2 months old. Degree of injury was harm – signed P3 on 18/12/2019. Produce P3 as PEX2.
17) On cross-examination he said the hospital was fully digitized and her treatment notes were in the computer system but he had not been asked to print them. He said he examined her physically.
18) Pw8 No. 23453 IP John Masero was OC Crime Makueni police station at the material time. he testified that On 27/6/2020 he conducted an ID Parade of the accused at the request of the DCIO. He said he informed the accused about the parade, followed the ID Parade procedures and sought the accused persons consent. That the Accused accepted to go through it. That asked, the accused said he did not need any other person present. He said he put the accused with 9 others. There was only one witness Christine Mwikali. That the Accused chose to stand at the extreme left of the .
19) He said the witness came in – and moved from right to left – then asked the accused to say the word KOPLO – that when the accused uttered that word the witness broke down and began to cry saying that the accused was the one. He said the witness was weak, and they assisted her out. That the identification was by way of visual and voice.
20) That he asked the accused person how the parade was, and the accused responded that it was ok – but that he was shocked by what had happened. The ID parade report was produced as PEX3.
21) On cross-examination this witness told the court that he was not aware of what had happened between the accused and the Investigating Officer. He said he was not aware that the accused’s shirt, shoes were changed.
22) He said the ID parade report form did not indicate the height of the accused person. He said the parade members were dressed in casual wear, some were in T-shirts, trousers, general casual wear. He told the court that the witness did not give him a description of what she would expect. He said he did not get a description of the suspect from the witness. He said he did change clothes of the suspect. He said that after the ID parade, any further statement would have been recorded by the Investigating Officer. He said the Investigating Officer was present.
23) He said though he told suspect he could call a relative or friend, he did not give him a phone to call because he did not ask, he said he gave him ample time to call. He said he looked for people of same height and physique as the accused person.
24) He said the witness told him that the people in the ID parade should say the word KOPLO. He said he did not see the word KOPLO in the statement of the witness. He said he did not indicate how the accused was dressed.
25) On re-examination, he said the suspect was in the cells, and the witness was in the CID Offices.
26) PW9 No. 79063 CPL Derick Kiprono was attached to the CCIO Office Makueni as a scenes of crime expert. He testified that his colleagues visited the scene along Machakos/ Makueni Road – where there was the body of an African Male adult dumped beside the road in a nearby thicket. He took 10 photographs. He produced the photos PEX5(a) – (j), and Certificate PEX4.
27) I took over the matter on 31/5/2023.
28) PW10 No. 114036 PC John Odhiambo the Investigating Officer in the matter. He told the court that on 9/10/2019 while at the station at Makueni he met a Kamba female Jackline Mutuli who made report of a missing person. On 10/10/2019 the OCS, C.I Francis Gichuki – received a phone call from a member of the public that the body of an unknown male had been found in a thicket within Makongo –area. Upon arrival they found that the body had been moved to Makueni County Referral Hospital. He (Pw10) noted that Zakayo Mailu was at the scene – the father of Dominic Mutuku Zakayo, who had been reported as the missing person.
29) He recorded statements of witnesses, at Mukuyuni police post he obtained details of Christine Mwikali who recorded her statements. She told him that on the material night she boarded the motor vehicle which had 3 occupants to Wote. Around Makongo area, the three occupants turned against her – that they intended to rob her and another she was threatened, they demanded the MPESA Pin Number and Ksh 600/= was transferred to mobile phone No. 0791921676 which was registered in the name of Robert Mutua Mwololo.
30) The witness produced the MPESA statement for mobile number 0718333616 . He got the statement for number 0791921679 . He said that the same received Ksh 3000/= from Dominic Zakayo at 2323 hours on 7/10/2019. He produced the statement for 0719921679 . He testified further that the number 0719921679 was registered under ID No. 20992304 registered in the name of Robert Mutua Mwololo, from Kathiani, Iveti Sub-location dated 6/6/2020.
31) He testified that he requested for an alternative number registered in the name of Robert Mutua Mwololo and he got no. 0701117676 – registered also on the same ID number. He said he traced Robert Mutua Mwololo, arrested him, conducted ID parade.
32) On cross-examination the witness told the court that the Accused was arrested on 24/6/2020. He said he did not know the date of the murder. He confirmed that when accused was arrested he gave a narrative about himself. He told them that he had earlier been robbed. He confirmed that he had followed up and confirmed that the accused had reported the matter. He said however that accused never gave him an OB number with respect to the report. Urged to be honest by counsel he said that there was a report but there was no case file; that the accused did not tell him what he was robbed of.
33) He testified further that the ID card report PM F18 – indicated that the ID card was issued on 25/9/2019 – he said this was before the murder. He said the ID card was issued upon loss of ID but there was no report of loss of ID. He said he did not follow up on the accused’s report in Machakos, that he did not know the outcome because the Investigating Officer in that case was transferred to an unknown station.
34) He said he did not include this information in his own statement but focused on the report made in Makueni. He said he did not know how the witness identified the accused person – but stated that he was informed that he was identified by way of voice.
35) Asked what voice/sound the accused made he said that he did not know. He said the ID parade officer did not tell him. It was requested that the Investigating Officer be stood for further cross-examination.
36) PW10 recalled for cross-examination. He said the ID Card was issued on 25/9/2019. He said that he could not tell whether this was a replacement ID. Shown the report marked Identification Report , he said that at the back it had a photo of the accused – which had a white patch on it. He said he was aware of the accused’s report at Machakos police station ; he said he investigated it and confirmed that there was a report at Machakos Police Station but that he could not access the OB no.– he said the accused’s report was not robbery but loss of ID, he said he was aware the defence had made numerous requests for the OB at MKS he produced in court – He said he was not aware that the previous Judge in this matter had order for the Investigating Officer to produce the said OB in court.
37) Asked about the registration records for the No. 0791921679 he denied having been supplied with the registration records; It was put to him that there was evidence that he had been supplied with the said records he told the court that they never reached him and they have gone to the liaison officer. Asked whether he investigated the handset involved in the robbery – he said had written to Safaricom but he never got compliance. Asked whether he had any idea whether the phone (handset) that belonged to the accused was used in the robbery, he said he was not aware whether or not the phone (handset) used in the robbery belonged to the accused person. Asked whether he was provided with the handset IMEI 861681041658990. He said he did not know that handset, that he was not provided with the handset Asked whether he knew the handset that was used in the robbery he said he did not know the handset that was used in the robbery – he said the only thing he knew was the subscriber. Asked whether he sought the information from Safaricom, he said yes.
38) It was put to him that he was provided with the simcard number and the IMEI of the phone that was used he said he was never provided with that IMEI,: that he relied on the Liaison Officer when reminded he was the Investigating Officer he said that he could not know until he was told.
39) Asked about the Report the accused person made – he said that the report was about loss of ID insisted that he did not have the OB report, and therefore could not only say the report was about the loss of the ID. He said he was not interested in the defence. It was put to him that the considered what the accused told him to be non-sense, he said he was concerned with the case of murder. He said even without the report from Safaricom he could not say that the investigation was incomplete – He said he did not investigate anything about accused persons job. he wondered what the accused’s job had to do with the murder; that anyone of any profession could commit an offence
40) Asked whether he investigated the number and the line the accused used – he said that the information he used was from Safaricom , that it is the number he used to track the accused – but he never got compliance from Safaricom on the issue of the IMEI – hence he never investigated the accused’s phone. Asked whether he was aware that Robert’s mobile phone no 0701 117676 was in service even at the time of the offence – he said he got records on 13/2/2025. Asked whether he confirmed that the accused’s no. was on all through he said yes. Asked how he arrested the accused he said through the assistance of Criminal Investigations Bureau Officers. Asked whether he called the accused he said no
41) He said the accused was trailed to MKS, Mwaani area, he said the accused was in a hideout, asked whether the accused’s house was the hideout, he said he could not have known where the accused was hiding. Asked when he arrested him he said 24/6/2020, and taken to Machakos police station where the accused had reported – he said no one knew the accused – and that is why he never bothered to find out more information from the station.
42) On re-examination, he said that he got the accused’s number from Safaricom and that there was a transaction between Christine Mwikali’s phone and that of the accused – that both the accused person’s s numbers were registered through the same ID Card . That the money was sent to 0791921679 – that the number was switched off – That they traced the accused using the ID Card of the person to who phone the money was sent this was Robert Mwololo ID card no. 20992304; he confirmed that the accused had reported loss of ID Card, not loss of phone. He was referred to OB4/24/9/2019 – Machakos, he said he was not aware of a robbery report. He had no objection to an order to the OCS Machakos to avail the OB Report.
43) The prosecution closed its case.
44) PW11 Christine Mwikali Wambua told the court that on a date she could not recall in 2019 – she was travelling in a motor vehicle ( gari ndogo) whose make she did not know – At about 8:00pm she had boarded the same at the stage near Machakos General Hospital. There were two male passengers inside when she boarded herself, another lady and a man. From her description the man they entered with sat at the front. She sat at the back four people: a man, another man and the lady. she sat in the middle of the two men. That the man seated next to her was the man who demanded for fare to be paid. He was the same one who ordered everyone to lala chini! Kila mtu chini!. This happened at the point where she was about to take money out of her hand bag to pay the fare.
45) She said that though the interior light of the m/vehicle was not on, the motor vehicle had light. She said she saw the man seated, that she saw him in that light that was outside , and the light of her phone. She said that he was seated next to her. She said she saw him 1 st when she entered the motor vehicle when it came to the stage as there was light; she asked him how much the fare was, that while they were in the car she looked at him and when he asked her for fare.
46) She testified that the man ordered them to send money to a number he gave them. She could not recall the number. She said that he took her phone – and sent 600/= to a number. She obtained an MPESA statement. She said after the money was sent, the men took out the man who was seated in front and they did not come back with him; then they took the woman who was seated next to her, left with her, they did not come back with her. They came back quickly and she heard the motor vehicle leave. She began to ask them where they were taking her, they hit her on the head, they threw her out of the motor vehicle where she fell, she pretended to be dead, - when she heard the sound of a motor vehicle leaving , she got up, and began to look for the tarmac road as she did not know where she was, she began to scream for help,- motor vehicle took her to the junction from where a motor vehicle that was ferrying bananas took her to Mukuyuni.
47) Later she was taken to hospital – was x-rayed and stitched. She said she obtained an OB at Mukuyuni police station.
48) She was later called and told that the person to whose phone money was sent had been arrested. She told the court that she could identify the person if she saw him.
49) She said the police officer also asked her whether if she heard his voice she could identify him. She said people were brought in – she was asked by the officer what the robber had said –she said she told him she heard them use the word “corporal”. That after accused person in the parade uttered “corporal” she was able to identify him as the one of the robbers – she said she was able to identify him because she saw him. She said she recorded her statement on 31/1/2019.
50) On cross-examination she told the court she said that it was 7/10/2019, she boarded the motor vehicle at 800 pm she said it was small motor vehicle – she said it was navy blue – not black. That windows were tinted and the front lights were not on; that the motor vehicle came with two passengers; those lights were on outside; and she was on facebook and her phone light was on – she said the men in the car the at the back was brown and the one at the front black. (counsel requested for the witness to appear physically in court) (she was stood down)
51) PW11 was recalled for cross-examination. Referred to her statement she was asked about the ID parade – she said the robbers called each other “corporal”. Asked whether she told the I.O about the use of that language , she said yes. Asked to point out in her statement where she said that she said ‘waliitana corporal. Sikuandikisha hayo kwa statement yangu.” asked whether before she went to the identity parade she had described the robbers to the police she said “ Najua vile anakaa. Sikuulizwa anakaa aje sikupeana description .” She said she did not see his trouser but he was in a jumper. She said he was seated in front of him.
1) She said when she entered the motor vehicle he moved to the middle, she said the light inside the motor vehicle was not on, she said she bent down to enter the motor vehicle; she said she peeped inside before boarding; that there were security lights outside. She said the police did not ask these questions – that she was not asked about lights, or descriptions –She said she identified accused by sauti na sura . Asked whether she saw the ID parade report, she said no. When she was informed that it said she identified him by voice only, she said – no – it was also by ‘ sura’
2) On Re-examination, she told the court that that the persons in the ID Parade were told to say the word corporal . She said she heard the word uttered severally while they were in the m/vehicle . That when she recorded her stamen she had not healed well. Her statement was produced by consent as DEX1.
3) Pw12 Ambrose Munyoki, from Safaricom PLC as a Data Analyst, under the law enforcement Department. He testified that on 1/7/2020 they received an order from Makueni Court for MPESA statements for No. 0718333616; from 15/9 to 20/10/2019 call data for 0701117676 from 1/9/2019 to 1/1/2020. Phone No. 0718333616 – was registered under the name Christine Mwikali Wambua MPESA statement – PEX 9. He explained the name on the statement read Serfina Osumo, but that this was a recycled number issued to Christine Mwikali. That Osumo had used the phone up to September 2015 that it stayed dormant till 2016 and was recycled to Christine Mwikali.
4) -That number 0701117676 was registered in name of Robert Mwololo ID Card 20992304 – he produced it as PEX11. He said the matching IMEI was 861681041658990 He told the court he did not know the purpose for the report.
5) He said the sum of Ksh.600/= was transferred from Christine’s number to the no 0791921679 on 7/10/2019 at 2325.
6) On cross-examination he told the court that IMEI No. was the identification of the phone. He said though he had the IMEI number he could not identify the phone itself. Asked whether he could tell when the receiving number was registered, he said he did not have that information in court, he was requested for the information , he obtained the information and he sent the information to the Investigating Officer – He said the report he made included the information – name of subscriber, ID Card used, Date of Registration. He said that the documents with the information were with the I.O. He said from the documents he had sent the I.O he would have been able to tell the court when the number that received the money was registered.
7) He would not recall whether by that time Safaricom was demanding photos of those registering lines – he said there was such a department, but he did not belong to that department – that was Department of Registration while he came from Department of Data Extraction.
Defence Case
8) In his defence the accused person testified on Oath. He said at the material time he worked as a plant operator. On 24/9/2019, he came from work late – was dropped at Mlolongo by the Company Lorry, he boarded another lorry which dropped him at the Machakos junction – where he stopped a motor vehicle – a Premio – it had 3 men inside, he asked whether they were going to Machakos – he boarded the motor vehicle – it was between 11 – 1200 am. He paid the usual 100/= fare – then the man he sat next to told him to produce all the money he had. They took his phone he had 1300/= he gave it to that person. The person did not take it, ordered him to place it on the seat – he was by this time hit with a metal bar. He was about to be hit again; he said the rest of the money was in the phone.
9) They demand more money after ordering him to be down on the floor. They passed the place where he was to alight – then they diverted – towards Mutituni, then Mumbuni – they dropped him at a forest, - they took his phone, but returned his bag, keys for the machine – He walked to Mumbuni– he met one boda boda person who ran away when he saw he was bleeding. He was later picked by a boda boda who recognized him – and took him to Machakos police station where he booked his report vide OB4/24/9/2019.
10) The police sent him to hospital, told him to return – he went to hospital but did not return. He went to work in Lodwar – November, December, came back in January – stayed home till April/ when his cousin called him and when he went, he found the CID motor vehicle, he was arrested. He said the police used his cousin to track him. About the ID parade he said he was forced to change clothes with another person; together with the shoes he said the witness did not identify him, that he was kept in custody for 24 days.
11) The woman went round 3x and did not ID any one – then she was asked what the people who robbed them were saying – she said they were saying the word corporal. He said they were each told to say corporal – and he was the 1 st one to say – then she went round then touched him. He said he lost money, phone, watch with ID, Nokia 3.1 No. was 0701117676. He said he went and replaced his line. He said the line used in the case No. 079192679 was not his. He said it was said to have been registered with his ID Card. He said he obtained a new ID Card.
12) He said that he bought a new phone that the money from his Mpesa No. was sent to an unregistered number – on 24/9/19 at 1259 am. – Ksh 2100 sent to 0737787102 – from 0701117676. He produced as evidence - the OB extract, ID report, Safaricom report. He said he did not know the deceased.
13) On cross-examination he reiterated what had happened to him – and that those who robbed him dropped him in the forest road going to Kathiani after 1:00 am. He said the number 079192679 though registered in his name was not his number.
14) DW2 was Rael Muthio Mwololo – testified that accused was her husband – she said that he was working in Nairobi – on 7/10/2019 - and he was commuting. That on that day he arrived around 4:00 am full of blood on the head and explained to her what had happened. The defence closed.
Submissions
15) The only submissions were filed by the defence – through Mar Ogude.
Relying on Sawe v R and Abanga alias Onyango v R.
16) Counsel submitted that this case was based on both circumstantial evidence and suspicion – both of which required that prosecution establish certain parameters to sustain a conviction.
17) It was submitted that none of the witnesses placed the accused at the scene of murder. That PW1,PW2, PW3 did not know who killed the deceased, PW4 (the good Samaritan) and Pw5 the alleged victim did not give any description of the attackers – hence no evidence of any direct connection between the accused person and the killing.
18) That the case pivoted on the single witness – PW11 – that the key identification feature was the word Koplo/Corporal – which she claimed was used by the thugs who robbed her that night. However, it turned out that word was not in her statement to the police. That there was no description of the suspect by the witness in her statement/to the Investigating Officer to justify the ID parade – and that the witness confirmed being prompted while going through the parade to think of anything the thieves said.
19) I have carefully considered the submissions vis a vis the evidence on record.
20) The case for the prosecution turns on whether the accused person was positively identified by the PW5, whether the MPESA statement is proof beyond doubt that the accused person was among those who robbed the Pw5, and killed the deceased. Whether the prosecution established that the deceased and Pw11 were in the same motor vehicle on the material night.
21) On the issue of identification – this how settled that courts must scrutinize evidence of identification – to ensure that it was safe and sufficient in the circumstances of the case – The presence of a description of the attackers as soon as possible after the event ensures a credible ID parade. In this case – the attack happened on the night of 7/10/2019 – the ID parade was in 27/6/2020 the witness told the court she was never asked to give any description of the attackers or even about what they said during the attack.
22) Almost 8 months later – that ID parade can only be described as a charade. The ID parade officer indicated that the witness identified the accused by voice, by uttering the word ‘Koplo’ and by the face.
23) The witness told the court that when she recorded her statement she was not asked about any description and she did not record that the word KOPLO/Corporal was uttered during the rob
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IN THE HIGH COURT OF KENYA AT MAKUENI
HCCRC NO. 21 OF 2020
REPUBLIC ……………………………………………………..PROSECUTOR
VERSUS
ROBERT MUTUA MWOLOLO ………………………..…….…..…ACCUSED
JUDGMENT
1) The accused person ROBERT MUTUA MWOLOLO is charged with murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged that on 7/10/2019 at Makongo area within Makueni Sub-County jointly with others not before court he murdered Dominic Mutuku Sakayo.
2) Accused took plea on 10/7/2020, and pleaded not guilty.
3) The matter was part heard before Dulu J who heard 9 witnesses.
4) PW1 Jackline Mutuli Paul told the court that Dominic Mutuku was her husband. He left home at Wote on 5/10/2019 at 9:00 a.m. to attend a burial in Machakos. It was a Saturday. They did not talk over the weekend. By Monday he had not come home. She tried to call him; his phone was not going through. She called her mother in-law – and they said she had left home already .– by Wednesday 9/10/2019 – she reported at Wote police station. Later that day between 3 – 400 pm the police came to her business and told her that her husband had been killed – she went with the officers to the mortuary Makueni Referral hospital, where she identified his body. He had an injury at the back of his head.
5) PW2 Julius Zakayo Mailu testified that the deceased was his son. He testified that his son came home – Kathiani for a burial – that he came home on Friday 4 th on 2019 , at the burial was on Monday 7 th . He said his son left after the burial on Monday at 5 pm. That he went to Machakos to meet his friend.
6) That he tried to find out whether he had arrived home by 1100 pm but he had not arrived. By Wednesday, he left for Wote . At Makongo he found a crowd a people – the driver of the matatu he was in stopped – they were told that there was a person there – he told the driver that he wanted to alight there – he alighted. When he went where there the person was he saw that it was his son, he was in the same clothes he had on the day he left home. He had a cut wound on the head. Police came, he told them that was his son.
7) They took the body away to the mortuary at Wote. He later recorded a statement.
8) PW3 Joseph Mwendwa Mwaniki , told the court that Dominic Mutuku was his friend. He was rang by the OCS Wote where he met the father of Dominic – after he had been rang by other friends and alerted that Dominic was missing. He was later requested to secure Dominic’s business at Wote as the wife and sister of Dominic were in a confused state.
9) PW4 Newson Kareviu Matihi told the court he was from Maragua – Murang’a – He told the court that on 7/10/2019 at 1100 pm – he was transporting bananas from Muranga to Makueni in his motor vehicle registration KCC 674F Toyota Hiace. After Kola, where there was a primary school, he saw a young woman screaming and shouting; and trying to stop him. He could not stop because he was not sure whether she was a cover for attackers. He drove to nearby police post and hooted. 2 police officers accompanied him back to the scene – where they found villagers – who told them that the young woman had been carried by a white motor /vehicle.
10) He dropped the police officers at the police post and proceeded on. He met the motor vehicle that had carried the woman ahead and the driver requested him to take her to Wote . He drove to another police post – where she booked her report. The police there did not have transport and requested him to take her to Wote.
11) He took her to the hospital, at Wote, at the gate, she told him that the phone she had was stolen and requested him to drop her at her boyfriend’s. He asked what had happened. She told him that she and others were passengers in a motor vehicle from Machakos hospital area, on the way they were ordered to surrender all their belongings, she was put in the boot the other passengers were told to lie down and were assaulted – she was scared and in pain.
12) On cross-examination he said he did not record in his statement that she told him that she was assaulted. He said he could not identify her, that she did not give him the description of anyone.
13) Pw5 John Mutiso Muthama told the court that Dominic was his friend. the record shows that he told the court that on 7/10/2019 at 7:30 am he and Dominic went to Syokimau club, Dominic bought him 6 jugs of Kenya Ken and a Guinness for himself. That most of the time Dominic was on phone – so they did not talk much – at 9:30 am , he said he wanted to go – and they parted at the hospital stage. On 10 th Dominic’s father and his (PW5’s) father went to his place to ask him whether he had seen Dominic. He told them they had been together and he had escorted him to the stage – they told him he had been killed.
14) Pw6 Dr. Stephen Musembi testified on behalf of Dr. Agnes Makau who had examined the body of the deceased for the postmortem report. The defence had no objection, and he proceeded to testify on her behalf. The postmortem was conducted on 12/10/19. He testified that the body had a deformity at the back of the head – bruises above the right ear, blood under the skin on the head, cracks at the back of the head, brain destroyed: cause of death was severe head injury secondary to severe blunt trauma the head.
15) On cross-examination he said he did not personally examine the seriousness of the injury – but confirmed that the assessment was clinical where injury was severe or moderate.
16) PW7 Joseph Biwott was Chief Clinical Officer Makueni County Referral Hospital. He produced the P3 for one Christine Mwikali Wambua – 29 years old at the time of the examination. She gave history of assault and robbery by unknown people on 7/10/2019 and sustained injuries. She had a deep cut wound on the forehead – she had a scar with stitch marks about 2 months old. Degree of injury was harm – signed P3 on 18/12/2019. Produce P3 as PEX2.
17) On cross-examination he said the hospital was fully digitized and her treatment notes were in the computer system but he had not been asked to print them. He said he examined her physically.
18) Pw8 No. 23453 IP John Masero was OC Crime Makueni police station at the material time. he testified that On 27/6/2020 he conducted an ID Parade of the accused at the request of the DCIO. He said he informed the accused about the parade, followed the ID Parade procedures and sought the accused persons consent. That the Accused accepted to go through it. That asked, the accused said he did not need any other person present. He said he put the accused with 9 others. There was only one witness Christine Mwikali. That the Accused chose to stand at the extreme left of the .
19) He said the witness came in – and moved from right to left – then asked the accused to say the word KOPLO – that when the accused uttered that word the witness broke down and began to cry saying that the accused was the one. He said the witness was weak, and they assisted her out. That the identification was by way of visual and voice.
20) That he asked the accused person how the parade was, and the accused responded that it was ok – but that he was shocked by what had happened. The ID parade report was produced as PEX3.
21) On cross-examination this witness told the court that he was not aware of what had happened between the accused and the Investigating Officer. He said he was not aware that the accused’s shirt, shoes were changed.
22) He said the ID parade report form did not indicate the height of the accused person. He said the parade members were dressed in casual wear, some were in T-shirts, trousers, general casual wear. He told the court that the witness did not give him a description of what she would expect. He said he did not get a description of the suspect from the witness. He said he did change clothes of the suspect. He said that after the ID parade, any further statement would have been recorded by the Investigating Officer. He said the Investigating Officer was present.
23) He said though he told suspect he could call a relative or friend, he did not give him a phone to call because he did not ask, he said he gave him ample time to call. He said he looked for people of same height and physique as the accused person.
24) He said the witness told him that the people in the ID parade should say the word KOPLO. He said he did not see the word KOPLO in the statement of the witness. He said he did not indicate how the accused was dressed.
25) On re-examination, he said the suspect was in the cells, and the witness was in the CID Offices.
26) PW9 No. 79063 CPL Derick Kiprono was attached to the CCIO Office Makueni as a scenes of crime expert. He testified that his colleagues visited the scene along Machakos/ Makueni Road – where there was the body of an African Male adult dumped beside the road in a nearby thicket. He took 10 photographs. He produced the photos PEX5(a) – (j), and Certificate PEX4.
27) I took over the matter on 31/5/2023.
28) PW10 No. 114036 PC John Odhiambo the Investigating Officer in the matter. He told the court that on 9/10/2019 while at the station at Makueni he met a Kamba female Jackline Mutuli who made report of a missing person. On 10/10/2019 the OCS, C.I Francis Gichuki – received a phone call from a member of the public that the body of an unknown male had been found in a thicket within Makongo –area. Upon arrival they found that the body had been moved to Makueni County Referral Hospital. He (Pw10) noted that Zakayo Mailu was at the scene – the father of Dominic Mutuku Zakayo, who had been reported as the missing person.
29) He recorded statements of witnesses, at Mukuyuni police post he obtained details of Christine Mwikali who recorded her statements. She told him that on the material night she boarded the motor vehicle which had 3 occupants to Wote. Around Makongo area, the three occupants turned against her – that they intended to rob her and another she was threatened, they demanded the MPESA Pin Number and Ksh 600/= was transferred to mobile phone No. 0791921676 which was registered in the name of Robert Mutua Mwololo.
30) The witness produced the MPESA statement for mobile number 0718333616 . He got the statement for number 0791921679 . He said that the same received Ksh 3000/= from Dominic Zakayo at 2323 hours on 7/10/2019. He produced the statement for 0719921679 . He testified further that the number 0719921679 was registered under ID No. 20992304 registered in the name of Robert Mutua Mwololo, from Kathiani, Iveti Sub-location dated 6/6/2020.
31) He testified that he requested for an alternative number registered in the name of Robert Mutua Mwololo and he got no. 0701117676 – registered also on the same ID number. He said he traced Robert Mutua Mwololo, arrested him, conducted ID parade.
32) On cross-examination the witness told the court that the Accused was arrested on 24/6/2020. He said he did not know the date of the murder. He confirmed that when accused was arrested he gave a narrative about himself. He told them that he had earlier been robbed. He confirmed that he had followed up and confirmed that the accused had reported the matter. He said however that accused never gave him an OB number with respect to the report. Urged to be honest by counsel he said that there was a report but there was no case file; that the accused did not tell him what he was robbed of.
33) He testified further that the ID card report PM F18 – indicated that the ID card was issued on 25/9/2019 – he said this was before the murder. He said the ID card was issued upon loss of ID but there was no report of loss of ID. He said he did not follow up on the accused’s report in Machakos, that he did not know the outcome because the Investigating Officer in that case was transferred to an unknown station.
34) He said he did not include this information in his own statement but focused on the report made in Makueni. He said he did not know how the witness identified the accused person – but stated that he was informed that he was identified by way of voice.
35) Asked what voice/sound the accused made he said that he did not know. He said the ID parade officer did not tell him. It was requested that the Investigating Officer be stood for further cross-examination.
36) PW10 recalled for cross-examination. He said the ID Card was issued on 25/9/2019. He said that he could not tell whether this was a replacement ID. Shown the report marked Identification Report , he said that at the back it had a photo of the accused – which had a white patch on it. He said he was aware of the accused’s report at Machakos police station ; he said he investigated it and confirmed that there was a report at Machakos Police Station but that he could not access the OB no.– he said the accused’s report was not robbery but loss of ID, he said he was aware the defence had made numerous requests for the OB at MKS he produced in court – He said he was not aware that the previous Judge in this matter had order for the Investigating Officer to produce the said OB in court.
37) Asked about the registration records for the No. 0791921679 he denied having been supplied with the registration records; It was put to him that there was evidence that he had been supplied with the said records he told the court that they never reached him and they have gone to the liaison officer. Asked whether he investigated the handset involved in the robbery – he said had written to Safaricom but he never got compliance. Asked whether he had any idea whether the phone (handset) that belonged to the accused was used in the robbery, he said he was not aware whether or not the phone (handset) used in the robbery belonged to the accused person. Asked whether he was provided with the handset IMEI 861681041658990. He said he did not know that handset, that he was not provided with the handset Asked whether he knew the handset that was used in the robbery he said he did not know the handset that was used in the robbery – he said the only thing he knew was the subscriber. Asked whether he sought the information from Safaricom, he said yes.
38) It was put to him that he was provided with the simcard number and the IMEI of the phone that was used he said he was never provided with that IMEI,: that he relied on the Liaison Officer when reminded he was the Investigating Officer he said that he could not know until he was told.
39) Asked about the Report the accused person made – he said that the report was about loss of ID insisted that he did not have the OB report, and therefore could not only say the report was about the loss of the ID. He said he was not interested in the defence. It was put to him that the considered what the accused told him to be non-sense, he said he was concerned with the case of murder. He said even without the report from Safaricom he could not say that the investigation was incomplete – He said he did not investigate anything about accused persons job. he wondered what the accused’s job had to do with the murder; that anyone of any profession could commit an offence
40) Asked whether he investigated the number and the line the accused used – he said that the information he used was from Safaricom , that it is the number he used to track the accused – but he never got compliance from Safaricom on the issue of the IMEI – hence he never investigated the accused’s phone. Asked whether he was aware that Robert’s mobile phone no 0701 117676 was in service even at the time of the offence – he said he got records on 13/2/2025. Asked whether he confirmed that the accused’s no. was on all through he said yes. Asked how he arrested the accused he said through the assistance of Criminal Investigations Bureau Officers. Asked whether he called the accused he said no
41) He said the accused was trailed to MKS, Mwaani area, he said the accused was in a hideout, asked whether the accused’s house was the hideout, he said he could not have known where the accused was hiding. Asked when he arrested him he said 24/6/2020, and taken to Machakos police station where the accused had reported – he said no one knew the accused – and that is why he never bothered to find out more information from the station.
42) On re-examination, he said that he got the accused’s number from Safaricom and that there was a transaction between Christine Mwikali’s phone and that of the accused – that both the accused person’s s numbers were registered through the same ID Card . That the money was sent to 0791921679 – that the number was switched off – That they traced the accused using the ID Card of the person to who phone the money was sent this was Robert Mwololo ID card no. 20992304; he confirmed that the accused had reported loss of ID Card, not loss of phone. He was referred to OB4/24/9/2019 – Machakos, he said he was not aware of a robbery report. He had no objection to an order to the OCS Machakos to avail the OB Report.
43) The prosecution closed its case.
44) PW11 Christine Mwikali Wambua told the court that on a date she could not recall in 2019 – she was travelling in a motor vehicle ( gari ndogo) whose make she did not know – At about 8:00pm she had boarded the same at the stage near Machakos General Hospital. There were two male passengers inside when she boarded herself, another lady and a man. From her description the man they entered with sat at the front. She sat at the back four people: a man, another man and the lady. she sat in the middle of the two men. That the man seated next to her was the man who demanded for fare to be paid. He was the same one who ordered everyone to lala chini! Kila mtu chini!. This happened at the point where she was about to take money out of her hand bag to pay the fare.
45) She said that though the interior light of the m/vehicle was not on, the motor vehicle had light. She said she saw the man seated, that she saw him in that light that was outside , and the light of her phone. She said that he was seated next to her. She said she saw him 1 st when she entered the motor vehicle when it came to the stage as there was light; she asked him how much the fare was, that while they were in the car she looked at him and when he asked her for fare.
46) She testified that the man ordered them to send money to a number he gave them. She could not recall the number. She said that he took her phone – and sent 600/= to a number. She obtained an MPESA statement. She said after the money was sent, the men took out the man who was seated in front and they did not come back with him; then they took the woman who was seated next to her, left with her, they did not come back with her. They came back quickly and she heard the motor vehicle leave. She began to ask them where they were taking her, they hit her on the head, they threw her out of the motor vehicle where she fell, she pretended to be dead, - when she heard the sound of a motor vehicle leaving , she got up, and began to look for the tarmac road as she did not know where she was, she began to scream for help,- motor vehicle took her to the junction from where a motor vehicle that was ferrying bananas took her to Mukuyuni.
47) Later she was taken to hospital – was x-rayed and stitched. She said she obtained an OB at Mukuyuni police station.
48) She was later called and told that the person to whose phone money was sent had been arrested. She told the court that she could identify the person if she saw him.
49) She said the police officer also asked her whether if she heard his voice she could identify him. She said people were brought in – she was asked by the officer what the robber had said –she said she told him she heard them use the word “corporal”. That after accused person in the parade uttered “corporal” she was able to identify him as the one of the robbers – she said she was able to identify him because she saw him. She said she recorded her statement on 31/1/2019.
50) On cross-examination she told the court she said that it was 7/10/2019, she boarded the motor vehicle at 800 pm she said it was small motor vehicle – she said it was navy blue – not black. That windows were tinted and the front lights were not on; that the motor vehicle came with two passengers; those lights were on outside; and she was on facebook and her phone light was on – she said the men in the car the at the back was brown and the one at the front black. (counsel requested for the witness to appear physically in court) (she was stood down)
51) PW11 was recalled for cross-examination. Referred to her statement she was asked about the ID parade – she said the robbers called each other “corporal”. Asked whether she told the I.O about the use of that language , she said yes. Asked to point out in her statement where she said that she said ‘waliitana corporal. Sikuandikisha hayo kwa statement yangu.” asked whether before she went to the identity parade she had described the robbers to the police she said “ Najua vile anakaa. Sikuulizwa anakaa aje sikupeana description .” She said she did not see his trouser but he was in a jumper. She said he was seated in front of him.
1) She said when she entered the motor vehicle he moved to the middle, she said the light inside the motor vehicle was not on, she said she bent down to enter the motor vehicle; she said she peeped inside before boarding; that there were security lights outside. She said the police did not ask these questions – that she was not asked about lights, or descriptions –She said she identified accused by sauti na sura . Asked whether she saw the ID parade report, she said no. When she was informed that it said she identified him by voice only, she said – no – it was also by ‘ sura’
2) On Re-examination, she told the court that that the persons in the ID Parade were told to say the word corporal . She said she heard the word uttered severally while they were in the m/vehicle . That when she recorded her stamen she had not healed well. Her statement was produced by consent as DEX1.
3) Pw12 Ambrose Munyoki, from Safaricom PLC as a Data Analyst, under the law enforcement Department. He testified that on 1/7/2020 they received an order from Makueni Court for MPESA statements for No. 0718333616; from 15/9 to 20/10/2019 call data for 0701117676 from 1/9/2019 to 1/1/2020. Phone No. 0718333616 – was registered under the name Christine Mwikali Wambua MPESA statement – PEX 9. He explained the name on the statement read Serfina Osumo, but that this was a recycled number issued to Christine Mwikali. That Osumo had used the phone up to September 2015 that it stayed dormant till 2016 and was recycled to Christine Mwikali.
4) -That number 0701117676 was registered in name of Robert Mwololo ID Card 20992304 – he produced it as PEX11. He said the matching IMEI was 861681041658990 He told the court he did not know the purpose for the report.
5) He said the sum of Ksh.600/= was transferred from Christine’s number to the no 0791921679 on 7/10/2019 at 2325.
6) On cross-examination he told the court that IMEI No. was the identification of the phone. He said though he had the IMEI number he could not identify the phone itself. Asked whether he could tell when the receiving number was registered, he said he did not have that information in court, he was requested for the information , he obtained the information and he sent the information to the Investigating Officer – He said the report he made included the information – name of subscriber, ID Card used, Date of Registration. He said that the documents with the information were with the I.O. He said from the documents he had sent the I.O he would have been able to tell the court when the number that received the money was registered.
7) He would not recall whether by that time Safaricom was demanding photos of those registering lines – he said there was such a department, but he did not belong to that department – that was Department of Registration while he came from Department of Data Extraction.
Defence Case
8) In his defence the accused person testified on Oath. He said at the material time he worked as a plant operator. On 24/9/2019, he came from work late – was dropped at Mlolongo by the Company Lorry, he boarded another lorry which dropped him at the Machakos junction – where he stopped a motor vehicle – a Premio – it had 3 men inside, he asked whether they were going to Machakos – he boarded the motor vehicle – it was between 11 – 1200 am. He paid the usual 100/= fare – then the man he sat next to told him to produce all the money he had. They took his phone he had 1300/= he gave it to that person. The person did not take it, ordered him to place it on the seat – he was by this time hit with a metal bar. He was about to be hit again; he said the rest of the money was in the phone.
9) They demand more money after ordering him to be down on the floor. They passed the place where he was to alight – then they diverted – towards Mutituni, then Mumbuni – they dropped him at a forest, - they took his phone, but returned his bag, keys for the machine – He walked to Mumbuni– he met one boda boda person who ran away when he saw he was bleeding. He was later picked by a boda boda who recognized him – and took him to Machakos police station where he booked his report vide OB4/24/9/2019.
10) The police sent him to hospital, told him to return – he went to hospital but did not return. He went to work in Lodwar – November, December, came back in January – stayed home till April/ when his cousin called him and when he went, he found the CID motor vehicle, he was arrested. He said the police used his cousin to track him. About the ID parade he said he was forced to change clothes with another person; together with the shoes he said the witness did not identify him, that he was kept in custody for 24 days.
11) The woman went round 3x and did not ID any one – then she was asked what the people who robbed them were saying – she said they were saying the word corporal. He said they were each told to say corporal – and he was the 1 st one to say – then she went round then touched him. He said he lost money, phone, watch with ID, Nokia 3.1 No. was 0701117676. He said he went and replaced his line. He said the line used in the case No. 079192679 was not his. He said it was said to have been registered with his ID Card. He said he obtained a new ID Card.
12) He said that he bought a new phone that the money from his Mpesa No. was sent to an unregistered number – on 24/9/19 at 1259 am. – Ksh 2100 sent to 0737787102 – from 0701117676. He produced as evidence - the OB extract, ID report, Safaricom report. He said he did not know the deceased.
13) On cross-examination he reiterated what had happened to him – and that those who robbed him dropped him in the forest road going to Kathiani after 1:00 am. He said the number 079192679 though registered in his name was not his number.
14) DW2 was Rael Muthio Mwololo – testified that accused was her husband – she said that he was working in Nairobi – on 7/10/2019 - and he was commuting. That on that day he arrived around 4:00 am full of blood on the head and explained to her what had happened. The defence closed.
Submissions
15) The only submissions were filed by the defence – through Mar Ogude.
Relying on Sawe v R and Abanga alias Onyango v R.
16) Counsel submitted that this case was based on both circumstantial evidence and suspicion – both of which required that prosecution establish certain parameters to sustain a conviction.
17) It was submitted that none of the witnesses placed the accused at the scene of murder. That PW1,PW2, PW3 did not know who killed the deceased, PW4 (the good Samaritan) and Pw5 the alleged victim did not give any description of the attackers – hence no evidence of any direct connection between the accused person and the killing.
18) That the case pivoted on the single witness – PW11 – that the key identification feature was the word Koplo/Corporal – which she claimed was used by the thugs who robbed her that night. However, it turned out that word was not in her statement to the police. That there was no description of the suspect by the witness in her statement/to the Investigating Officer to justify the ID parade – and that the witness confirmed being prompted while going through the parade to think of anything the thieves said.
19) I have carefully considered the submissions vis a vis the evidence on record.
20) The case for the prosecution turns on whether the accused person was positively identified by the PW5, whether the MPESA statement is proof beyond doubt that the accused person was among those who robbed the Pw5, and killed the deceased. Whether the prosecution established that the deceased and Pw11 were in the same motor vehicle on the material night.
21) On the issue of identification – this how settled that courts must scrutinize evidence of identification – to ensure that it was safe and sufficient in the circumstances of the case – The presence of a description of the attackers as soon as possible after the event ensures a credible ID parade. In this case – the attack happened on the night of 7/10/2019 – the ID parade was in 27/6/2020 the witness told the court she was never asked to give any description of the attackers or even about what they said during the attack.
22) Almost 8 months later – that ID parade can only be described as a charade. The ID parade officer indicated that the witness identified the accused by voice, by uttering the word ‘Koplo’ and by the face.
23) The witness told the court that when she recorded her statement she was not asked about any description and she did not record that the word KOPLO/Corporal was uttered during the rob
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