Republic v Kiio alias Kawambala (Criminal Case E007 of 2022) [2026] KEHC 12315 (KLR) (30 July 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CRIMINAL CASE NO. E007 OF 2022** **REPUBLIC PROSECUTION** **-VERSUS-** **JOSEPH WAMBUA KIIO alias KAWAMBALA ACCUSED** **RULING** 1. The accused person, **JOSEPH WAMBUA KIIO** alias Kawambala, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap. 63, Laws of Kenya. The particulars of the offence are that on the 24th day of February, 2022 at Mbiuni Market within Mwala Sub-County, Machakos County, he murdered **JOHN KATUA KIIO** (“the deceased”). 2. The accused pleaded not guilty. The prosecution called six witnesses and closed its case. Learned counsel for the accused submitted that no prima facie case had been established and urged an acquittal under Section 306(1) of the Criminal Procedure Code; learned counsel for the State urged that a prima facie case has been established and that the accused be placed on his defence under Section 306(2). What falls for determination is whether the evidence discloses a case which the accused ought to be called upon to answer. **The Prosecution's Evidence** 1. **PW1, Josephine Syombua Mutunga**, testified that she runs a liquor business at Kenya Bar, Mbiuni. She stated that on 24th February, 2022 at about 9.00 p.m. the deceased was her customer and was later joined by one Kioko and thereafter by the accused person, whom she identified in court, and who sat behind the deceased. She testified that when she was closing the bar the deceased indicated he would leave in the company of the accused, that the two left together talking and referring to each other as brothers, and that the accused removed the deceased's mobile phone and matchbox from his pocket and handed them to the bar's watchman for safekeeping, the said items being later produced as MFI-1 and MFI-2. She left the two of them, together with the watchman, outside the bar as they had not yet departed. The following morning, 25th February, 2022, at about 7.00 a.m., she found a crowd at the scene and discovered that the deceased, her customer, was lying on the ground with his clothes ripped, and thereafter reported to the police. On cross-examination she confirmed that the deceased and the accused used to leave the bar together on other occasions as well, that she did not know whether they had quarrelled that night, and that she did not see how or where they parted ways after leaving the bar. 2. **PW2, Nicholas Mutune Nzomo**, testified that he is the caretaker/night-watchman at Kenya Bar. He confirmed that on the material night the accused, the deceased, PW1 and himself were together as the bar closed at around 10.45 p.m., that the deceased initially refused to leave, that the accused removed his jacket and handed the deceased's phone to the witness for safekeeping, and that the accused and the deceased then left together, still talking, with the accused attempting to persuade the deceased to go home. The witness slept inside the bar and learnt of the deceased's death the following morning when he saw a crowd gathered nearby. On cross-examination he stated that he did not know with whom or why the deceased's voice had been raised, that he did not witness any physical violence, and that the two men, who he understood to be brothers, would sometimes leave the bar together and sometimes separately. 3. **PW3, Daniel Kioko**, a cook who worked with the deceased, testified that he found the deceased at Kenya Bar on the night of 24th February, 2022 in the company of the accused, whom he described as the deceased's brother, and that they stood, walked about and sat together within the bar. He left the deceased alive at the bar to go home. The following morning he found the deceased's body on the ground surrounded by a small crowd, dressed in the same clothes he had worn the previous night. On cross-examination he confirmed that he did not witness any altercation and was not aware of who killed the deceased. 4. **PW4, Matilda Ndunge**, a businesswoman, testified that she was at Kenya Bar on the material night and was invited by the deceased, her neighbour, to join his table together with PW3. She stated that the accused was seated behind them, that she did not hear the deceased and the accused quarrel, and that when she left at about 11.00 p.m. the deceased remained at the bar. She learnt of his death the following morning through a phone call. On cross-examination she maintained that she had no evidence of who killed the deceased or how. 5. **PW5, Matei Mwendwa**, a businessman, testified that he was at Kenya Bar from about 8.00 p.m. on the material night, that the accused joined the group and they drank together, and that when he left, the deceased and the accused had been left together at the bar. He learnt of the deceased's death the following day. On cross-examination he confirmed that the deceased and the accused had not shared the same table, that he did not witness any scuffle or exchange between them, and that he did not know who killed the deceased or how. 6. **PW6, Dr. Kamotho Watenga**, a Consultant Government Pathologist, testified that he conducted the post-mortem examination on the body of the deceased on 1st March, 2022. He found external evidence of a lack of oxygen and sand on the face and anterior torso; a patterned bruise measuring 6 by 5 centimetres on the left shoulder together with multiple small bruises on the left elbow; congestion of both lungs; deep contusions on the anterior neck muscles; contusions on the head, including bilateral frontal contusions to the brain; and moderate contusions to the right leg and back. He formed the opinion that the cause of death was complications of soft tissue and musculoskeletal injuries secondary to blunt force trauma, and produced the post-mortem report as Exhibit 3. On cross-examination he conceded that no weapon was availed to him for examination, that he was not at the scene and could not say who, where or how the injuries were occasioned, and that, in his own words, both a fall and an assault could account for such injuries. 7. **The investigating officer, PC Philip Kamau**, also testified for the prosecution. According to the record, he confirmed that the accused was arrested the day following the incident and that at the time of arrest the accused's clothing bore what appeared to be blood stains and his hands bore what were said to be fresh bruises, though no medical documentation was produced to confirm the latter. He was unable to state with certainty whether the deceased died within the precincts of Kenya Bar or at the roadside where the body was found, and he conceded that the alleged blood stains on the accused's clothing were never subjected to forensic analysis to confirm that the blood was of human origin, still less that it belonged to the deceased. He further conceded that no witness had described to him what the accused was wearing on the night of the incident for comparison with the clothing recovered at arrest, and that Kenya Bar had no CCTV coverage. He testified that certain items were collected in the course of investigations with the assistance of the bar's watchman, and accepted, on cross-examination, that the chain of custody of those items had not been placed before the court in documentary form. 8. At the close of the prosecution's case, learned counsel for the accused submitted that no prima facie case had been made out, while learned counsel for the State maintained that the evidence, taken cumulatively, established a case fit to be answered by the accused. 9. Section 306 of the Criminal Procedure Code provides: ***“(1) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty. (2) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, or to call witnesses in his defence …”*** 1. In ***Ramanlal Trambaklal Bhatt v Republic [1957] EA 332***, the Court of Appeal for Eastern Africa held: ***“A mere scintilla of evidence can never be enough; nor can any amount of worthless, discredited evidence … a prima facie case is one on which a reasonable tribunal, properly directing its mind to the law and the evidence, could convict if no explanation is offered by the defence.”*** 1. In ***Republic v Abdi Ibrahim Owi [2013] eKLR***, the court held that a prima facie case means evidence sufficient to support a verdict of guilty unless it is rebutted. The court is not, at this stage, called upon to determine whether the prosecution has proved its case beyond reasonable doubt; it is concerned only with whether the evidence, taken at its highest, discloses a case calling for an answer. 2. The ingredients of murder were restated in ***Anthony Ndegwa Ngari v Republic [2014] eKLR*** as: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death; and (c) that the accused had malice aforethought within the meaning of Section 206 of the Penal Code. 3. Where the case rests on circumstantial evidence, ***Sawe v Republic [2003] KECA 182 (KLR)*** holds: ***“The inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on.”*** 1. The prosecution invokes the doctrine of last seen as in, ***Republic v Okumu (Criminal Case E005 of 2023) [2025] KEHC 11959 (KLR)*** which holds that the person last seen with a deceased bears a duty to explain how the deceased met his death, and that in the absence of a satisfactory explanation the court is justified in drawing an inference adverse to him. The doctrine does not dispense with the requirement that the prosecution first establish, prima facie, that the accused was indeed the last person with the deceased and that the intervening circumstances admit of no other reasonable explanation; it remains a doctrine of inference, and the burden of proof stays with the prosecution throughout (see Sections 111(2)(a) and 119 of the Evidence Act; ***Sawe v Republic (supra)***). **Analysis and Determination** 1. As to the first ingredient, I am satisfied that the fact and cause of death are established on a prima facie basis. PW1 through PW5 place the deceased alive and in good health at Kenya Bar on the night of 24th February, 2022, and PW6, the Government Pathologist, found on post-mortem examination extensive contusions to the neck, head, brain, torso, shoulder, elbow, leg and back, together with pulmonary congestion, and formed the opinion that death resulted from complications of soft tissue and musculoskeletal injuries secondary to blunt force trauma. This evidence, if believed and left unexplained, is sufficient to sustain a finding that the deceased died and that his death was occasioned by an unlawful act rather than by natural causes. ***Whether the accused committed the unlawful act*** 1. There is no direct eyewitness account of how the deceased sustained his injuries or of who inflicted them; no weapon was recovered, and PW6 conceded that the injuries he observed could equally have resulted from a fall as from an assault. The prosecution's case on this ingredient rests substantially on the doctrine of last seen. 2. PW1 and PW2 testified that the accused and the deceased left the bar together, talking, referring to each other as brothers, with the deceased at first reluctant to leave and the accused attempting to persuade him to go home. PW5 confirmed that when he left the bar earlier that evening, the deceased and the accused remained together. No witness places any third party in the company of the deceased after he left the bar with the accused, and no witness saw the deceased alive again. The deceased's body was found the following morning at or near the same locality, his clothes ripped, having apparently never reached home. On this record, the accused was the last person shown to have been with the deceased before his death, and no evidence points to the intervention of any other person in that interval. This is precisely the circumstance which the doctrine of last seen contemplates: having been so placed with the deceased shortly before his death, the accused bears an evidential burden to explain the circumstances in which they parted, or how the deceased met his death. 3. The accused's act of removing the deceased's mobile phone and matchbox and handing them to the watchman, rather than leaving the items with the deceased himself, demonstrates that he had assumed some measure of control over the deceased's person and possessions shortly before his death. While this conduct is capable of an innocent explanation, such as safekeeping, it is equally a circumstance calling for the accused's own account. 4. That, however, is not the test at this stage. The question under Section 306(1) is whether there is some evidence, not amounting to mere suspicion, upon which a reasonable tribunal could convict if no explanation is forthcoming from the accused (***Bhatt v Republic (supra)***). The evidence that the accused was the last person seen in the company of a man who was, within hours, found dead of violent injury a short distance away, coupled with his conduct in taking charge of the deceased's phone and matchbox shortly before his death, is not mere suspicion. It is evidence from which an inference adverse to the accused is capable of being drawn absent explanation, and it is the kind of circumstance the doctrine of last seen contemplates the accused should be called upon to address (***Sawe v Republic (supra)***; ***Republic v Okumu (supra)***). 5. The nature and extent of the injuries described by PW6, in particular the contusions to the neck and the bilateral frontal contusions to the brain, are capable of supporting an inference of intention to cause death or grievous harm within the meaning of Section 206 of the Penal Code, should the second ingredient be established. **Disposition** 1. Mindful that the threshold at this stage is not proof beyond reasonable doubt but only whether a reasonable tribunal could convict absent explanation (***Bhatt v Republic (supra)***; ***Republic v Abdi Ibrahim Owi (supra)***), I find that the prosecution has established a prima facie case against the accused on the strength of the doctrine of last seen and the surrounding circumstances set out above. 2. Accordingly, pursuant to Section 306(2) of the Criminal Procedure Code, the accused person, **JOSEPH WAMBUA KIIO** alias Kawambala, is hereby placed on his defence. In accordance with **Section 306(2) of the Criminal Procedure Code**, the accused is informed of his right to give evidence on oath, in which event he will be liable to cross-examination, or to make an unsworn statement, or to remain silent, and of his right to call witnesses in his defence. **Ruling Signed, Dated and Delivered Virtually at Machakos this 30th day of July 2026.** **E. N. MAINA** **JUDGE** **In the presence of:** Mr. Masila for the State Mr. Kololo for the Accused The accused person Miriam - Court Assistant/Interpreter