[2018] KEHC 6735 (KLR)
The court found that although there was no direct eyewitness to the murder, the circumstantial evidence presented by the prosecution—including the fact that the deceased was last seen in the company of the accused persons, and that items belonging to the deceased were found in their possession or within their...
Source-derived case information.
- Citation
- [2018] KEHC 6735 (KLR)
- Parties
- Applicant: Republic; Defendant: Kalelu Kavusuki; Defendant: Kyambi Kalelu; Defendant: Muneeni Muthengi; Defendant: Mwangangi Mutemi
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 63 of 2015
- Procedural Posture
- Criminal Case / Ruling on Whether Accused Have a Case to Answer
- Outcome
- accused persons found to have a case to answer and called to defend themselves
- Judges
- LN Mutende
- Legal Topics
- Murder, Burden of Proof, Circumstantial Evidence, Last Seen Doctrine
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Kalelu Kavusuki
Defendant
Kyambi Kalelu
Defendant
Muneeni Muthengi
Defendant
Mwangangi Mutemi
Defendant
Procedural Posture
Criminal Case / Ruling on Whether Accused Have a Case to Answer
Legal Issues
- 1 Whether the prosecution has established a prima facie case against the accused persons to warrant their being put on their defence.
- 2 Whether the circumstantial evidence adduced is sufficient to require an explanation from the accused persons.
Ratio Decidendi
The court found that although there was no direct eyewitness to the murder, the circumstantial evidence presented by the prosecution—including the fact that the deceased was last seen in the company of the accused persons, and that items belonging to the deceased were found in their possession or within their homestead—was sufficient to establish a prima facie case. The court held that justice required an explanation from the accused persons as to what transpired leading to the death of the deceased. Consequently, the accused persons were called upon to give evidence in their defence pursuant to Section 306(2) of the Criminal Procedure Code.
Court Disposition
accused persons found to have a case to answer and called to defend themselves
Orders
- Each accused person is called upon to give evidence in their defence pursuant to Section 306(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL CASE NO. 63 OF 2015
REPUBLIC.................................................PROSECUTOR
VERSUS
KALELU KAVUSUKI.................................1ST ACCUSED
KYAMBI KALELU.....................................2ND ACCUSED
MUNEENI MUTHENGI............................3RD ACCUSED
MWANGANGI MUTEMI..........................4TH ACCUSED
R U L I N G
1. Kalelu Kavusuki, Kyambi Kalelu, Muneeni Muthengiand Mwangangi Mutemi,the 1st, 2nd, 3rd and 4th Accused persons respectively are jointly charged with the offence of Murdercontrary to Section 203as read with Section 204of the Penal Code (Cap. 63), Laws of Kenya.Particulars of the offence are that between the 31stday of October, 2016and 1stday of November, 2016at Kimango Locationin Mwingi Districtwithin Kitui Countythey murdered Julius Kilonzo Muthengi(Deceased).
2. The Deceased was found dead on the banks of River Mugoo a seasonal river. An autopsy done on his body established his death. The cause of death was stated to be haemorrhage due to multiple injuries that were sustained from blunt trauma. The body was decomposed at the time of examination.
3. Although there was no eye witness to how the Deceased met his death, there was evidence that the Deceased was last seen by his mother, PW1, Rosalia Kalundu Muthengigoing to the home of the 1st and 2nd Accused persons while in company of the 4th Accused. On the fateful night PW9 John Musyoki Kalelusaw the Deceased who was in company of the Accused persons inside their house. He left them in the house as he retired to bed in a different house within the homestead.
4. In the course of investigations the Deceased’s panga that he carried as he left home on the material date was recovered from the house. A Muslim hat he was wearing was also found in possession of one of the Accused person’s family member.
5. In the circumstances justice would require an explanation from the Accused persons as to what transpired that resulted into the death of the Deceased. I therefore call each one of them to give evidence in their defence pursuant to the provisions of Section 306(2)of the Criminal Procedure Code.
6. It is so ordered.
Dated, Signed and Deliveredat Kitui this 11thday of April,2018.
L. N. MUTENDE
JUDGE