https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10548

Republic v Kitindio (Criminal Case 7 of 2015) [2026] KEHC 10548 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEHC 10548 (KLR) Republic of Kenya In the High Court at Machakos Criminal Case 7 of 2015 NIO Adagi, J July 8, 2026 Between Republic Prosecutor and Muthengi Kitindio Accused Judgment 1.The accused person Kitindio Muthengi has been charged with two counts of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. 2.The particulars of Count I are that on 1st day of January 2015 at Kangonde village, Masinga Sub-county within Machakos County unlawfully murdered John Mutuku Muthini 3.The particulars of Count II are that on diverse dates between 2nd day of January 2015 and 5th day of January 2015 at Kangonde village Masinga Sub-County within Machakos County unlawfully murdered Geoffrey Mule Muli. 4.Later, the prosecution filed an Amended Information dated 16th March 2015 in which Count I was removed and Count II was retained. Thus, the Accused person is facing a charge of unlawfully murdering Geoffrey Mule Muli on diverse dates between 2nd day of January 2015 and 5th day of January 2015 at Kangonde village Masinga Sub-County within Machakos County. 5.The accused person pleaded not guilty to the charge of murder and the case was set down for hearing. The prosecution called 15 witnesses in proving its case while the accused person gave sworn evidence and did not call a witness. 6.Directions were given for filing of final written submissions on the case and both parties complied. Prosecution Case 7.PWI - Catherine Syomwe Munyithya testified that in September 2014 she was at home and went to collect firewood with Kamuli Kanyuthi. She saw Alex (pointing at the accused) with a boy called Kioko. The accused kept asking if she wanted friendship with him though she declined, she later agreed. On 23rd December 2014, she met with the accused who asked if she was friends with Mule and if she was, he will cut Mule with a panga. On 26th December 2014, accused came to their home and she declined to go with him. On 24th December 2014 she was told accused was sacked for stealing money from his employer. On 5th January 2015 she was told Kiluta's employee Mule had been killed. She saw Mule at the back of the home. She saw his legs. They had been eaten by dogs. She heard people saying that the workers of Nzeki's home killed Mule. 8.PW2 - John Mbetu Mulonzi testified that in March 2014 he hired John Mutuku to work on his farm. On 1st January 2015, he asked Mutuku if he was going for the holiday and he answered “no”. So, he sent him to his son's farm to work and he went to church. On his way back, he passed through the son's home and was told Mutuku did not arrive neither did he come back. In the evening his grandson came back with the cattle. Mutuku did not come back. He reported to the Chief and AP Kangonde Police Post. On 5th January 2015, Simon Munyithya told him Mutuku’s body was found by his son's wife in the farm. He went and found the body at the place where Mutuku grazed the cattle. He knew it was Mutuku from the clothes he wore. The body was decomposed with cuttings. It had been stabbed twice on the side of the chest and his neck had been cut and bead fallen off. He was also informed Mule had been killed. Mule's body was outside the home. It was cut into two the upper part of the body had been thrown into the bus and the legs were near there. The legs had been eaten by dogs or something. 9.PW3 - Nancy Mawia Munyithya testified that she knows the accused person as Alex. He was her daughter's friend PWI. She informed her husband she smelt a bad smell in Mbelu farm. She stated that it was a smell of someone who had died. She was told that Mutuku and Mule had been killed. She was told the person who had killed them was Alex (pointing to the accused). She stated that is how she knew him. In re-exam she confirmed she knew the accused as Alex as that is how he introduced himself to her and her daughter PWI. She came to learn in court the accused was called Muthengi Kitindio. 10.PW4 - Jackson Mwania Mulandi testified that he witnessed post mortem of deceased Mutua Muli. He identified the body which had started decomposing. 11.PW5 - Kevin Kyalo Mutisya testified that Geoffrey Muli the deceased was his cousin. He witnesses his post mortem with PW4 and others. He positively identified the body through the arm and complexion. 12.PW6 - Danson Mutya Kimani testified that he received a call and was informed that the deceased body (John Mutuku) was found near the bushes. He identified the body. It was cut in the neck, stabbed in the stomach and on the leg. The face was swollen but could be identified. 13.PW 7 - Simon Munyithya Mbithi testified that the accused fell in love with his daughter PW1. He was informed by his wife PW3 that there was stench in the bush in someone’s land called Mbetu Mulonzi where the accused was staying after being chased by his employer. On 1/1/2025 he found the owner and went with him and found a body inside the bush. As villagers started the search inside the bush. They found the accused hiding in the bush. He had a black hat, black boot, a knife and a metal bar. He was able to identify the accused. 14.PW8 - Nzeki Kitavi testified that on 23/12/2014 he confronted the accused for stealing money from him and the accused gave it back to him. He also stole from his brother. He terminated his employment and told him to leave the compound. On 5/1/2015 he was informed that Geoffrey Mule was murdered. He went and confirmed. On 6/1/2015 they went on a search. They found footprints and orange peels. They were informed that the orange peels crossed the road towards Kanyonyo. They continued with the search in the bush and found Muthengi the accused by the stream. He had a black leather cap, black boots, kitchen knife and crowbar and black long trouser. The police were with them when they arrested him. He identified him. 15.PW9 - Titus Mutuku testified that on 5/1/2015 he went to the scene and found dogs eating a human body. They were eating the leg and there was no head. On 6/1/2015 they congregated and entered the bush and conducted a search. They found the person at Mbitu and he was taken away by police. He stated that he had a black trouser, black leather cap, black boots, a kitchen knife, a crowbar and had keys. In cross examination he stated that the arrested person was found wearing the deceased’s trouser and that all the items were found on the accused. 16.PW10 - No. 63439 Cpl John Ng'anga testified that he is the investigating officer in the matter. At the time of the incident, he was at Kikumini police post base. He was informed by the chief that a worked had been found murdered. together with PC Mohamed they proceeded to the scene They found the deceased murdered behind his house and body eaten by dogs halfway. The body was for Geofrey Mule. They were also informed that Mutuku Muthini had also been found murdered. They went to see the body and found the head and neck had been cut. The accused was arrested the following day by the public in a bush near Kanyonyo market. He had clothes of the deceased Georfrey Muli Mule armed with a knife and metal bar. 17.He recorded the statement of Patrick Mwanzia PW14 who informed him that on 19/12/2014 the accused went to the deceased Geofrey Mule Muli claiming deceased had been having an affair with his girlfriend PWI. he also interrogated PWI who told him that on 13/12/2014 the accused went to see her at home claiming she had an affair with the deceased and after his investigations he found it was true he would cut the deceased with a panga. He interrogated Simon Mutheithya PW7, PWI father who confirmed the accused loved his daughter PWI and on 1/1/2015 he met the accused who told him he had murdered the deceased. He thus produced the exhibits namely: black leather cap PExt. 1 pair of black boots PExt. 2 knife with wooden handle PExt. 3 iron bar PExt. 4 black trouser P Ext. 5 pair of green socks PExt. 6 Light green jacket PExt. 7 18.He also testified that the accused used to call himself Alex Mureithi but the ID Card indicated his name is Muthengi Kitindio. He thus recommended the charges of murder. In cross examination he stated there were no eye witnesses and that the accused was arrested with the knife and metal bar. Further the witnesses identified the clothes found on the accused belonged to the deceased. 19.PW11-Dr. Waithera Githendu testified that on 9/1/2015 she performed post mortem on Geofrey Muli Mule. Externally she observed: extensive decomposition with maggots two deep cut wounds on the head and neck head wound exposing decomposed brain matter 20.Internally she observed that all the systems were ok. Her finding was that the cause of death was head injury secondary to blunt force trauma and she produced the post mortem report PExt.8. 21.PW12 - Gideon Kitheka testified that on 2/1/2015 he went to the deceased’s farm and on 5/1/2015 but he found no one. He saw a group of dogs and he moved closer and saw them eating a human leg. The body was nearby the bush. He also witnessed the accused being arrested. He saw the accused with boots and cap that the deceased used to wear. He also saw the accused with black trouser belonging to the deceased. 22.PW13 - Joshua Kyalo Kitavi testified that he saw the deceased Geofrey Mule on 2/1/2015. On 5/1/2015 he went to the deceased’s farm and saw body parts. He knows the accused as Alex Mureithi. He saw him wearing boots and leather cap. He identified the black boots were his and he gave them, to the deceased. He also stated that on Sundays the deceased used to put on leather cap in the evening. The green jacket belonged to a guy who worked for the deceased. 23.PW14 - Patrick Mwanza Kithome testified that he knew the deceased (Mule) and the accused person. He knew the accused person as Alex and he worked for the deceased in the same compound. He identified the grey jacket as it belonged to him. He lad left it in the house where he stayed. He saw blood on the jacket. The hat, shoes and trouser belonged to the deceased Mule. He confirmed that he bough the grey jacket. The police told him the items were recovered from the accused. 24.PW15 - Leornard Muli Mulei testified that he identified the body for the post mortem which had been eaten by dogs in one part. He knew the body as John Mutuku Mutheu. The prosecution’s case was then closed. 25.At the close of the prosecution’s, this court later held that a prima facie case had been made out against the accused person who was subsequently placed on his defence. He opted to tender a sworn testimony but did not call a witness. Defence Case 26.DW1 Kitindio Muthengi – Accused testified that before arrest, he was a farmer and a driver. He has a wife and 3 children. He went to Kangonde village to work as a shamba boy. In November 2014 money got lost in the home of his employer and he was chased away on 18/12/2014. He then rented a single room No.4 at Kanyonyo market at a monthly rent of Kshs.1,800/= and started life and at this point the accused raised a defence of Alibi leading to Mr. Jamsumba, Prosecution counsel requesting the court to grant the prosecution time to conduct further investigations on the accused’s defence of alibi. The accused was then stood down and the prosecution granted time for the further investigations, however this was never done prompting the accused to be recalled for re-examination. He was arrested on 5/1/2015 and he didn't know why he was arrested. He also stated that he doesn't know the two deceased persons. He further stated that the items produced by prosecution were not on him, he found them at Kikumeni police station after he was arrested. He didn’t know the owners of the clothes. He was arrested on 2/1/2015 between Kanyonyo and Kangonde on the road while walking. He had a phone whose number he stated to the court but which phone got lost on the day he was arrested. He also stated that he was not hiding. He also raised a defence of alibi stating that on the date of the incident he was at his home. 27.The accused denies committing the offence and stated that he had no reason to kill anyone. He has been in jail for 11 years for an offence he did not commit and had lost contact with the witness he intended to call. He wished to go back to his family Analysis 28.I have considered the evidence on record as well as the parties’ submissions. The offence of Murder is created by Section 203 of the Penal Code that defines it thus:“Any person who of malice aforethought causes death of another person by unlawful act or omission is guilty of murder” 29.In R v Omwenga Mueche Omwenge [2009] KEHC 1573 (KLR) the court stated that:“There are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in order to secure a conviction.They are :a.The death of the deceased and the cause of the death;b.That the accused caused the death of the deceased; andc.That the accused had the malice aforethought.” 30.In R V David Ruo Nyambura & 4 Others [2001] KEHC 826 (KLR) it was held that:“It is our cardinal principle of law that in a criminal case the legal onus is always on the prosecution to prove the guilt of an accused person, and the standard of proof is proof beyond reasonable doubt. The burden of proof therefore lies on the prosecution throughout to prove the guilt of an accused person” 31.On the question of the death of the deceased, PW11 - Dr. Waithera Githendu testified that on 9/1/2015 she performed post mortem on Geofrey Muli Mule (the deceased herein). Her finding was that the cause of death was head injury secondary to blunt force trauma and she produced the post mortem report PExt.8. This was evidence of the death and the cause of the death. 32.As to whether the accused was the perpetrator of the unlawful act that caused the death. The prosecution’s witnesses PW1, PW2, PW3, PW4, PW4, PW5, PW6, PW7, PW8, PW9, PW12, PW13, PW14 and PW15 were civilian witnesses. None of them witnessed the accused person commit the offence of murder of the deceased. They all confirmed that when the found the body of Geoffrey Mule Muli, he was already dead. 33.Some of the witnesses seemed not to be aware that the Information had been amended and the accused was only charged with allegedly murdering Geoffrey Mule Muli And Not John Mutuku Muli. 34.This court has also noted that the prosecution’s submissions refer to two Counts of murder of Geoffrey Mule Muli And John Mutuku MuLI whereas Count I involving John Mutuku Muthini was dropped. 35.The witnesses testified that the body of Geoffrey Mule Muli when it was found, had been eaten by dogs. No one saw the accused person murder the deceased before he was eaten by dogs. PW2 testified that the body of the deceased had been cut into two. The upper part had been thrown into the bush and the legs had been partly eaten by the dogs. No body knows how or who murdered the deceased. 36.To be guilty of murder, the accused must have acted of malice aforethought which is defined in section 206 of the Penal Code as follows:“an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not” 37.The prosecution submits that it is evident that the accused persons had malice aforethought because he had indicated that he would cut the deceased with a panga and he had suspicion of the deceased having a love affair with his lover PWI. On the other hand, the accused’s counsel submits that it has not been established that the accused person had any malice aforethought to commit the offence of murder. 38.This court is of the view that the prosecution having failed to prove beyond reasonable doubt that the accused was the perpetrator of the unlawful act that caused the death of Geoffrey Mule Muli, the accused cannot be said to have had malice aforethought in the circumstances of this case. 39.From the proceedings, upon the accused raising the defence of alibi on 18/11/2025, Mr. Jamsumba, Prosecution counsel requested the court to grant the prosecution time to conduct further investigations on the accused’s defence of alibi. The accused was then stood down and the prosecution granted time for the further investigations. The case was given a further hearing date of 4/12/2025 but the hearing could not proceed and another mention dated was fixed for 3/2/2026 and on this date a date for cross-examination of the accused was fixed being 19/2/2026 again on this date, parties agreed to take out the matter from the hearing list and agreed to have it heard on 3/3/2026. So, from 18/11/2025 to 3/3/2026, a period of about 5 months, this was ample time for the prosecution to have conducted the further investigations on the alibi raised by the accused, however this was never done prompting the accused to be recalled for re-examination. 40.The prosecution submitted that the defence of alibi is to be raised early in the case so as to allow the state and investigating officer an opportunity to investigate the allegation and also it should be raised early in the trial to the witnesses. That the accused person did not raise the defence of alibi early and it should be treated as an afterthought. This court disagrees with these submissions because as explained above, the Investigating Officer through the State was granted enough time and of course with guidance from the evidence on record adduced by the accused person to have assisted in the further investigations. I find that the accused’s defence of alibi to be firm and unchallenged. I am convinced that the accused was not at the scene when alleged offence happened. In Republic v SSM [2020] eKLR the court adopted with approval the ruling of the Court of Appeal in Victor Mwendwa Mulinge v Republic [2024] where the court held as follows as regards the defence of alibi:“it is trite law that the burden of proving falsity, if at all, an accused’s defence of alibi lies on the prosecution” 41.In Adedeji v The State [1971]1ALL N.L.R 75 it was held that:“Failure by the police to investigate and check the reliability of alibi would raise reasonable doubt in the mind of the tribunal and lead to quashing of a conviction.” 42.Further Section 212 of the Criminal Procedure Code provides that:“If the accused person adduces evidence in his defence introducing a new matter which the prosecutor could not by the exercise of reasonable diligence have foreseen, the court may allow the prosecutor to adduce evidence in reply to rebut that matter” 43.This court holds that the accused in his defence has exonerated himself from committing the offence of murder herein. I notice that the accused person has been in remand custody from 5th January 2015 to date which is almost 11 years and 6 months which is very unfortunate. Determination 44.In the result, it is my finding that the prosecution has not proved its case against the accused herein beyond any reasonable doubt. I find the accused herein not guilty of the charge of murder and is acquitted forthwith. He shall be set at liberty unless otherwise lawfully held.This file is closed.Orders accordingly. JUDGEMENT DATED & SIGNED AT MACHAKOS THIS 8TH JULY 2026NOEL I. ADAGIJUDGEDELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 8TH JULY 2026