https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11510

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MAKUENI** **HIGH COURT CRIMINAL APPEAL NO. E024 OF 2025** **BENEDETTA NDULE WAMBUA…………….……………….APPELLANT** **-VERSUS-** **REPUBLIC……………………………………………...……..RESPONDENT** ***(Being an Appeal against the Judgment delivered by Hon. Geno L. Okwengu (SRM) on 20th May, 2025 in Criminal Case No. E387 of 2023 at the Magistrate’s Court at Kilungu).*** ***JUDGMENT*** 1. The Appellant, Benedetta Ndule Wambua, was charged with the offence of conspiracy to murder contrary to section 224 of the Penal Code. The particulars of the offence were that on diverse dates between 7th April, 2023 and 14th June, 2023, in Kyale village, Kasikini Sub-Location in Kikoko Location in Kilungu sub-county, within Makueni County conspired jointly with others not before Court to kill Catherine Mbula Muthenya. 2. The Appellant pleaded not guilty to the charge and the matter proceeded to trial. After trial, she was convicted and placed on probation for 2 years and required to report to the probation officer once every month. 3. Dissatisfied with that decision, the Appellant herein, through the firm of Nzaku and Nzaku Advocates, lodged this Appeal vide Petition of Appeal dated 3rd June,2025 which presents four grounds as follows;- 4. ***THAT the Learned Magistrate erred in Law in failing to accord the Appellant with a right to a fair trial as provided by law under Article 25 (c) as read together with Article 50 (2) ((j) and (k) of the Constitution of Kenya, 2010 being the Supreme law of the land which rendered a serious miscarriage of justice.*** 5. ***THAT the Learned Magistrate erred in Law and in dismissing the discrepancies present in the charge sheet.*** 6. ***THAT the Learned Magistrate erred in Law in convicting the Appellant on the basis of suspicion and circumstantial evidence.*** 7. ***THAT the Learned Magistrate erred in Law by convicting the appellant based on hearsay evidence were none of the prosecution witnesses could specifically connect the Appellant to.*** 8. The Appellant prayed that the appeal be allowed, judgement be set aside and this court makes its own findings. **The Evidence in the trial Court** 1. The prosecution called four witnesses in support of its case.**PW1: Catherine Mbula Muthenya (Complainant)** testified that she works at an M-Pesa shop and resides in Talem. She stated that on 14th June, 2023 a neighbor named Mutuku sent one Elizabeth to fetch her. Upon meeting Mutuku, he revealed a plot orchestrated by the Appellant (Benedetta, her sister-in-law) alongside two young men to burn Catherine inside her brick house using a one-litre bottle of petrol. Mutuku explained he was promised Kshs. 10,000/- for the task and had already received Kshs.1,500/- upfront. Catherine reported the matter to the DCI on 15th June, 2023, leading to the Appellant’s arrest. 2. On cross-examination, Catherine confirmed she went to Mutuku’s home at 9:30 PM with Elizabeth and found him alone. While she confirmed that she did not bring the bottle of petrol to court, she maintained that it was in a clear plastic bottle containing a non-clear liquid, which she knew to be petrol. She mentioned a recorded phone conversation between Mutuku and the Appellant but did not have the same in court. Catherine denied having any romantic relationship with Mutuku, stated she had no personal dispute with the Appellant, and denied attempting to wrongfully acquire the father-in-law’s land inheritance. 3. **PW2: Elizabeth John,** testified that on 14th June, 2023, Mutuku sent her to get Catherine. At around 9:00 PM, she and Catherine met Mutuku, who recounted meeting the Appellant during the Easter period at Kavo’s place alongside two other men to plan burning Catherine’s house. She stated that Mutuku informed them that he was given Kshs. 1,500/- and promised Kshs. 10,000/- upon completion, but he decided he could not carry out the task. On 14th June, 2023 the Appellant called Mutuku to direct him to burn the house using petrol. To verify the claim, Mutuku called the Appellant back on Catherine’s phone between 9:00 PM and 10:00 PM. Elizabeth recognized the Appellant’s voice (having known her for 27 years) as they discussed spilling petrol on wood to burn the house. Catherine recorded the phone conversation before they reported the matter to the DCI. 4. Upon cross examination,Elizabeth admitted she did not personally see the Kshs. 1,500/- payment or the initial meeting at Kavo’s, and that she was relying on what Mutuku told them. She, however, recalled seeing the 1-liter plastic bottle of petrol at Mutuku’s house and identified it as petrol by its reddish color and distinct smell. She confirmed the phone call was made using Catherine’s phone and that Catherine recorded it, though no audio or call records were produced in court at that moment. She noted that while the deceased’s parcel had been divided, the land title remains in the name of Paul Wambua. 5. **PW3: John Mutuku,** testified that on 7th April, 2023, around 2:00 PM, he received a call from the Appellant asking to meet at night regarding a job. He met her alongside Wanza, Petronilla, and two unknown men, where the Appellant requested them to demolish a brick house on her mother's parcel at 2:00 AM, They agreed on the amount to be paid and left. However, he later backed out, telling the other men it was bad work. Months later, the Appellant once again called him, instructing him to burn wood placed at Catherine's place. When Mutuku warned that people were inside, the Appellant expressed no concern. 6. Recognizing the danger, Mutuku alerted Catherine, who, together with Stephany, visited his house at 8.00pm to get more information on the issue. He recorded his statement with the DCI, provided the Appellant’s phone details, and identified her in court, explaining that her actions stemmed from a land dispute. 7. On cross-examination,Mutuku admitted having a prior personal dispute with Catherine regarding water and chicken, as well as a pending assault case in Court. He detailed the physical appearance of the two unknown men from the April meeting and stated they were all initially promised Kshs. 5,000/-, which was increased to Kshs. 7,000/-. Regarding the second incident on 14th June, 2023, he clarified that the Appellant instructed him to buy petrol to burn the house under construction. He also admitted that the house was under construction and no one was living in it, therefore that if it was brought down it would not hurt anyone as Catherine used to live in another house. He confirmed that no petrol was bought because the Appellant was arrested beforehand. He also confirmed that he was not paid any money. He admitted he did not possess Safaricom call logs or physical evidence linking his phone to the Appellant, as he had since changed his phone. 8. On re-examination, he stated that the accused called him on 8th April, 2023 questioning why he had failed to execute the demolition. He re-emphasized that he refused to carry out any of the tasks given and confirmed that the two houses (The one to be demolished and the one PW1 lived in) were 20 Meters apart and nothing was connecting the two houses. 9. **PW4: P.C. Jonathan Mumbi (Investigating Officer),** testified that on 15th June, 2023, the complainant reported a conspiracy to murder which was recorded under OB 8/15/6/2023, alleging the Appellant planned to harm her and her children. Following witness statements implicating the Appellant, he arrested her on 16th June, 2023. He testified that upon interrogation, the Appellant made a statement attributing her actions to anger over a land dispute. He stated that he applied for Safaricom communication logs, but Safaricom responded that the data could not be retrieved as it exceeded the 90-day limit. He stated that based on the recorded conversation on the complainant's phone and witness statements indicating a conspiracy between the Appellant and others to burn the complainant’s house, he charged the Appellant with conspiracy to murder. 10. On cross examination,P.C. Mumbi acknowledged that he requested call records for the period between 29th April, 2023, and 15th June, 2023, but failed to obtain them due to the 3-month time limitation. He conceded that the Appellant's written statement was not produced as an exhibit in court and that he did not investigate the details of the land dispute that allegedly provoked her. He confirmed that he visited the Appellant’s residence, noting it was 300 meters from the complainant’s, but did not visit the complainant's house. He also admitted he had no direct proof that petrol was purchased and was unable to trace the other accomplices who fled. 11. On re-examination, hereiterated that the initial payment promised to Mutuku was Kshs. 5,000/=, later increased to Kshs. 7,000/-. He clarified that John Mutuku (PW3) was a prosecution witness, not an accused person, and confirmed that from the Appellant’s residence, the complainant's house is visibly adjacent. 12. In his defense as **DW1, Benedetta Ndule Wambua**, the Appellant herein gave sworn testimony, denying all allegations, stating she is a retired businesswoman living in Lang'ata, Nairobi. She testified that she left her rural home on 3rd January, 2023, and only returned on 16th July, 2023, when she was arrested; thus, she was not present in the village during the alleged events. She denied knowing John Mutuku, contacting him, attending any meetings, buying petrol, or offering money. She asserted that the case was framed by her brothers (Stephen Malungu and Julius Wambua) using their wives to have her jailed so they could take over her inherited land share, as they opposed women inheriting property. She highlighted that they filed a succession case (Misc. Succession 043 of 2024) and produced a letter from the County Commissioner regarding the land dispute. 13. Upon cross –examination, she reiterated that she resides and works in Lang’ata and only visits home occasionally. She confirmed that Catherine built a house on the portion of land designated for her by their father, which upset her, but maintained she had no personal dispute with Catherine. She noted that John Mutuku was setting her up and pointed out that he was previously convicted and jailed in an unrelated assault case. She argued that her brothers orchestrated the setup to block the succession process and retain the land. 14. On re-examination, the Appellant stated that she has been actively pushing for the succession case to proceed and reiterated that while she shares a boundary with Catherine and is unhappy about the house encroachment, they are not enemies. 15. **DW2: Aquillina Mbinya Wambua** an ECD teacher and sister to the Appellant, testified that she visited her mother in Kyale village over the Easter holiday, arriving on 6th April, 2023, and leaving on 9th April, 2023. During her stay, she neither witnessed nor heard of any meetings regarding a plot to harm anyone. She telephoned Benedetta during that time, who confirmed she was in Nairobi. She confirmed there was an ongoing family land dispute and noted that Catherine had built a structure on top of her mother's cooking area (jiko) before it even had a roof. 16. Upon cross-examination, she admitted she could not account for Benedetta’s exact whereabouts beyond what Benedetta told her over the phone. She stated she wanted justice and confirmed that Catherine had not moved into the new structure at the time, as it was roofless. 17. On re-examination, she reiterated that when she called Benedetta during her Easter visit, Benedetta informed her that she was in Nairobi. **Appellant’s Submissions** 1. The Appellant challenges her conviction for the offence of conspiracy to murder contrary to section 224 of the Penal Code, arguing on three main issues; violation of her right to a fair trial, conviction based on suspicion and circumstantial evidence, and reliance on hearsay evidence and abandoning the second grounds of discrepancies in the charge sheet. 2. On the first ground, the Appellant submitted that her constitutional right to a fair trial under Article 25(c), as read together with Article 50(2)(j) and (k) of the Constitution, was violated. It was argued that she was entitled to be informed in advance of the evidence the prosecution intended to rely upon and to have reasonable access to that evidence, as well as the right to adduce and challenge the evidence. The Appellant contended that the prosecution failed to supply her with the records or call logs relating to mobile phone number 0712835306, which was allegedly hers and from which calls were made to PW3's number, 0705300091. 3. It was her argument that the alleged petrol contained in a bottle and the sum of Kshs. 1,500 allegedly paid to PW3 were not supplied to her, thereby denying her an opportunity to effectively challenge that evidence. The Appellant further argued that although the prosecution alleged that a meeting had taken place between her, PW3 and five other people during which the conspiracy was allegedly hatched, none of the other persons who purportedly attended the meeting was called to testify, when she had put the prosecution on notice that she would rely on an alibi defence. 4. Consequently, she maintained that the proceedings leading to her conviction were unfair because the evidence relied upon by the trial court had not been availed to her in a manner that enabled her to challenge it effectively. 5. On the remaining grounds of appeal, the Appellant submitted that the trial court erred in convicting her on the basis of suspicion and hearsay evidence or circumstantial evidence. The Appellant challenged the trial court’s finding that the conspiracy had been hatched and executed via mobile communication, as allegedly confirmed by PW2 and PW3. 6. The Appellant also challenged the trial court’s finding that the Appellant's denial, without a cogent rebuttal of the specific calls and meetings, was unconvincing and that the offence was committed through an initial meeting, followed by telephone calls and payment for its execution. She disputed this reasoning, submitting that the alleged meeting was confirmed only by PW3, notwithstanding that five other persons were said to have attended it. None of those persons was called as a prosecution witness. Further, although the alleged telephone communications formed the basis of the conviction, the prosecution did not produce any call log records to substantiate the alleged communication between the Appellant and PW3. The Appellant therefore argued that there was no sufficient evidentiary basis upon which the trial court could properly connect her to the alleged conspiracy. 7. Finally, the Appellant contended that the trial court improperly shifted the burden of proof to her. It was submitted that this was contrary to the fundamental principle that an accused person is presumed innocent until proved guilty. The Appellant maintained that the prosecution bore the burden of proving the charge beyond reasonable doubt and that she was under no obligation to disprove the prosecution's case. On that basis, the Appellant urged the High Court to allow the appeal, set aside the judgment, make a proper finding in the matter, and grant any other order deemed fit, fair and just in the interests of justice. **Analysis and Determination** 1. This Court has carefully considered the grounds set out in the Petition of Appeal, the Record of Appeal, the evidence contained therein, together with the written submissions. Being a first appellate court, this Court is enjoined to re-evaluate and re-analyse the entire evidence that was placed before the trial Court and to arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and must therefore give due allowance for that disadvantage. This duty of a first appellate court was authoritatively stated by the Court of Appeal in ***Okeno v Republic [1972] EA 32,*** where the Court observed as follows:- ***“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic [1957] EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwal v R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.”*** 1. Equally in ***Kiilu & Another vs. Republic [2005]1 KLR 174,*** the Court of Appeal reiterated that duty in the following words:- ***“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”*** 1. In light of the foregoing, the main issue for determination is whether the prosecution established the offence of conspiracy to murder contrary to section 224 of the Penal Code to the required standard of proof, which is beyond any reasonable doubt 2. Section 224 of the Penal Code provides for conspiracy to murder as follows: ***“Any person who conspires with any other person to kill any person, whether that person is in Kenya or elsewhere, is guilty of a felony and is liable to imprisonment for fourteen years.”*** 1. The term conspiracy is defined in the Black's Law Dictionary 9th Edition, as an agreement between two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective and actions or conduct that furthers the agreement. 2. D.S Majanja J, in the case of[***Moses Kathiari Rukunga v Republic [2018] KEHC 6451 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/6451/eng%402018-05-30)***,*** define what conspiracy to murder entail and stated that;- ***“ In Archibold Criminal Pleading, Evidence and Practice, Sweet & Maxwell 2003 (page 2689, para 33-2) the definition of a conspiracy is from the Criminal Law Act 1977 of England which is defined as a situation where a person agrees with another person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions either will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement or would do so but for the existence of facts which render the commission of the offence or any of the offences impossible. The essential ingredient to thus prove the offence of conspiracy to commit a felony is that two or more people agree to put into effect a scheme whose ultimate aim would be the commission of a criminal offence. It will not matter that the criminal offence proposed to be done may be impossible to be undertaken. Proof of the existence of a conspiracy is generally a, “matter of inference, deduced from certain criminal acts of the parties accused, done in the pursuance of an apparent criminal purpose common between them,” R v Brisac [1803] 4 East 164, 71 (as quoted at page 2692 Archibold para 33 – 11 (supra) (see Njenga and 2 Others v Republic NKU HCCRA No. 163 of 2003 [2005] eKLR).”*** 1. As stated in the above case, for an offence of conspiracy to be established, the prosecution must establish that two or more persons entered into an agreement, with a common intention and purpose, to pursue a course of conduct aimed at committing a criminal offence, in this case murder. This agreement may be proved by inference from the conduct and acts of the parties in furtherance of the common criminal purpose, and it is immaterial that the intended offence was ultimately impossible to commit. 2. Applying these principles to the evidence on record, PW3 in his testimony testified that on 7th April, 2023 at around 2.00PM, he was called by the Appellant to go meet her that night and upon arrival he met his neighbor Wanja, Petronilla and two other men he did not know and the Appellant told them as follows;- ***“ She(The appellant) explained that there was a house of bricks at her mothers and it was build on her parcel and that team I found should bring it down, She said that she wanted that done at 2.00 am. We agreed on the money and we left.”*** 1. From this testimony, it’s clear that the purpose of the meeting of 7th April, 2026, was to plan on demolishing a brick house which PW1 had constructed and not to conspire to murder the Complainant (PW1). Indeed, PW3 expressly confirmed in cross-examination that the house in question was still under construction and that no one was residing therein. He further stated that the Complainant lived in another house. 2. This evidence was corroborated by DW2, who testified that the structure alleged to have been targeted was incomplete and did not have a roof. PW1 herself was not residing in the said house at the material time. In these circumstances, the alleged burning or demolition of the incomplete and unoccupied structure could not, on the evidence before the Court, have resulted in the murder of the Complainant. At its highest, the evidence could potentially point to an intention to destroy property, but it did not establish the essential element of a common intention to kill the Complainant (PW1). 3. As regard instructions given on 14th June, 2023, PW3, at first alleged that the instructions were to burn wood that had been placed at Catherine House. However, on cross examination, he stated that he was instructed to buy petrol and burn the same brick house which now had a roof but that the petrol was not bought and the same assignment not carried out since the Appellant was arrested on the same day. In the same breath, he confirmed that Catherine was not living in the house yet as it was still under construction. 4. Although PW3 testified that the Appellant instructed him to burn the brick house that was still under construction, his evidence, considered alongside that of PW1 and DW2, did not demonstrate how the burning of an incomplete structure in which the Complainant was not residing in was intended to cause her death. 5. The prosecution, in this case, was required to prove not merely an intention to burn or demolish property, but an agreement and common intention directed at the unlawful killing of PW1. The circumstances surrounding the alleged structure, therefore, cast considerable doubt on the prosecution's assertion that the acts complained of were pursuant to a conspiracy to murder. 6. A Further look at the record. Shows that the alleged agreement was not corroborated by any independent evidence. For instance, none of the other persons alleged to have attended the meeting was called to testify. The alleged telephone communications between the Appellant and PW3, which were relied upon as evidence of the continuation of the alleged conspiracy, were not supported by call data or other objective evidence. Infact, the Appellant denied ever owning or using the mobile number **0712835306**, which was alleged to have been used to communicate with PW3. No evidence was tendered to establish that the said Safaricom line was registered to or used by the Appellant. More importantly, no call logs were produced in evidence to demonstrate that she communicated with PW3 in relation to the alleged offence. On the contrary, the Investigating Officer confirmed that the requested Safaricom communication records could not be retrieved. 7. With regard to the alleged phone call recording, which was allegedly recorded when PW3 spoke to the Appellant, the recording itself was not tendered before the trial Court. Consequently, there was no objective evidence before the Court to affirm that it was indeed the Appellant who spoke to PW3 or that she gave any instructions to burn the house, much less instructions intended to cause the death of PW1. The prosecution case in this regard therefore remained dependent principally upon the oral accounts of the witnesses, which were incoherent. 8. In addition, the prosecution's case concerning the alleged payment of Kshs. 1,500/- and the procurement of petrol was similarly unsupported by independent evidence. While PW1 and PW2 alleged that PW3 was paid upfront an amount of Kshs 1500/- and that PW3 bought petrol which was in a clear bottle, PW3 confirmed that no petrol was ultimately purchased and that he was never paid any money, which account is contrary to PW1 and PW2 testimony. Taken together, the alleged acts leading to alleged conspiracy to murder the complainant remained substantially dependent on the account given by PW3, whose evidence also disclosed that he had previously had a personal dispute with PW1 and had a pending assault case in relation to her. 9. In the circumstances and although the evidence may have raised suspicion that the Appellant was involved in a dispute concerning property, upon which the Complainant's house was being constructed, suspicion, however strong, cannot take the place of proof. See the case of[***PARVIN SINGH DHALAY vs REPUBLIC [1997] KECA 379 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/1997/379/eng%401997-11-21)***,*** where the Court of Appeal held that;- ***“For our part we suspect this appellant most likely had something to do with the death of his wife. But suspicion alone, however strong it may be, cannot take the place of solid and affirmative proof required on the part of the prosecution”*** 1. The prosecution, in this case was required to establish beyond reasonable doubt the existence of an agreement between the Appellant and at least one other person, a common intention to pursue a course of conduct aimed at murdering the Complainant, and conduct in furtherance of that common criminal purpose. 2. The evidence tendered regarding the incomplete and unoccupied house, the absence of evidence that the Complainant was residing therein, the failure to produce the alleged call logs, the failure to establish that the mobile number 0712835306 belonged to or was used by the Appellant, and the failure to tender the alleged recording of the telephone conversation, taken cumulatively, left substantial gaps in the prosecution case. 3. It is on that basis, that this Court finds that the prosecution failed to prove beyond reasonable doubt the essential ingredients of the offence of conspiracy to murder. The evidence on record did not establish the existence of an agreement between the Appellant and any other person to murder PW1, nor did it demonstrate a common intention to cause her death. The alleged burning or demolition of the incomplete and unoccupied structure could not, in the circumstances of this case, reasonably be construed as an act in furtherance of a conspiracy to murder. Further, there was no independent or objective evidence linking the Appellant to the alleged telephone communications, and the alleged recording upon which the prosecution placed reliance was not produced in evidence. The prosecution therefore failed to bridge the evidentiary gaps in its case, and the conviction was consequently unsafe. 4. Accordingly, this Court finds merit in the Appeal. The Appeal is hereby allowed. The conviction of the Appellant for the offence of conspiracy to murder contrary to section 224 of the Penal Code is quashed, and the sentence imposed by the trial Court is set aside. The Appellant, Benedetta Ndule Wambua, shall be released forthwith unless otherwise lawfully held. **DATED, SIGNED AND DELIVERED AT NAIROBI, THIS 24TH DAY OF JULY, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM** **KENNEDY KANDET** **JUDGE** **IN THE PRESENCE OF:** **MUREITHI HB FOR NZAKU FOR THE APPELLANT** **MS MUSANGO FOR THE STATE** **COURT ASSISTANT: JAEL NOSIM**