https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12341

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CRIMINAL CASE NO. 28 OF 2018** **REPUBLIC PROSECUTOR** **-VERSUS-** **JOHN MUSYIMI MAKAU 1ST ACCUSED** **ANTHONY MAKAU MUSYIMI 2ND ACCUSED** **MAURICE MUSYOKI MAKAU 3RD ACCUSED** **WAMBUA MASAKU 4TH ACCUSED** **RULING** 1. The accused persons are 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 consolidated information are that on the night of 18th and 19th September, 2018 at Ngonda area of Matungulu Sub-County within Machakos County, the accused persons jointly murdered **PETER NDUNDA MASYUKO** (“the deceased”). 2. The accused persons pleaded not guilty and the prosecution called twelve witnesses before closing its case. Learned counsel for the accused persons urged the court to find that no prima facie case had been established, while learned counsel for the State and learned counsel holding a watching brief for the family of the deceased urged the court to find that the accused persons have a case to answer. What falls for determination is whether the prosecution has established a prima facie case against the accused persons sufficient to require them to be placed on their defence. **The Prosecution's Evidence** 1. **PW1, Nathan Muema Masyuko**, a son of the deceased who works in Johannesburg, South Africa, testified that on 19th September, 2018 he received a call from his sister informing him of the events of the previous night. He travelled to the deceased’s home where he found a crowd and police officers, and upon being led to the deceased’s bedroom he found the deceased lying face down in a pool of blood. He testified that in the company of police officers a search was conducted at the homestead of the 2nd accused, being the home of the 1st accused, and that from a pit latrine therein were retrieved an electric fuse (PMFI 1), a jacket with what appeared to be blood stains (PMFI 2) and a black Infinix phone cover (PMFI 3), all of which he identified as belonging to the deceased. On cross-examination he conceded that the pit latrine is at a corner of the property adjacent to a road, that the items recovered were not unique to the deceased and that similar items are readily available in the open market, and that the items could have been dumped in the latrine by any person. 2. **PW2, Elizabeth Ndila**, a daughter-in-law of the deceased, testified that on the material morning she was making breakfast when she heard screams and saw people running towards the deceased’s house. She confirmed that the 1st accused had worked for the deceased. On cross-examination she confirmed that she did not see who killed the deceased. She also states that the 4 accused was the brother to the 1st and 3 accused persons. 3. **PW4, Francis Mumo Mulinge**, the area Chief, Tala Location, testified that upon receiving a distress call on the material morning he proceeded to the scene where he found the deceased lying on his stomach in a pool of blood, and he summoned the OCS Tala Police Station. While outside, they observed as a young man, later identified as the 1st accused, came straight to the metre box and then to an outside bathroom from which he released a medium-sized fierce dog. The young man was arrested on suspicion of prior knowledge of the incident. The witness accompanied the police to the home of the 2nd accused where the 2nd and 3rd accused persons were found roofing the main house, and a search of the pit latrine yielded the items already referred to above. On cross-examination he confirmed that the pit latrine was at a corner of the compound adjacent to a public access road and that the recovered items could be found anywhere in the market. 4. **PW5, Faith Mwende**, testified that she had known the 1st accused since 2016 and that on 31st August, 2018 the 1st accused took her to the deceased’s homestead and introduced her to the deceased as his ‘future wife’. She stayed at the homestead until 10th September, 2018. She also testifies that the 4 accused person used to work with the 1 accused. On cross-examination she stated that during her entire stay she never saw the 2nd accused and restates that the 4 accused used to go to the deceased’s house to work there. 5. **PW6, Dr. Munene Franklin**, conducted the post-mortem examination on the body of the deceased and formed the opinion that the cause of death was severe head injury occasioned by both blunt and sharp force trauma. He testified that the injuries were consistent with a brutal attack and were more of defensive wounds, and on cross-examination he ruled out an affray or fight. 6. **PW7, No. 239613 IP Joseph Muriuki**, then stationed at Tala Police Station, and **PW9, No. 233625 CI Samuel Nguyo**, the then OCS Tala Police Station, testified in similar terms as to the events at the scene. They observed the 1st accused leave the area where members of the public had congregated, proceed to the outside bathroom and release a dog that had been locked therein, and thereafter climb onto a bucket and tinker with the metre box. He was arrested because he could offer no satisfactory explanation as to how he knew that the dog was locked in the bathroom rather than in its usual kennel, and indeed he had to be rescued from an irate crowd. They further testified as to the search conducted at the home of the 2nd accused and the recovery of the items from the pit latrine. On cross-examination PW7 conceded that the 2nd accused was arrested because he could not explain where the items recovered from the pit latrine emanated from, and PW9 confirmed that the 2nd accused was not placed at the scene of the crime at any material time and was in fact found atop his house building his roof. 7. **PW10, Jonathan Limo**, a Data Liaison Officer with Safaricom PLC, produced call data records pursuant to a request from DCI Matungulu dated 20th September, 2018. He testified that telephone number 0711 516521, registered to John Musyimi (the 1st accused), had no call data records on 18th September, 2018; the handset was last active on 17th September, 2018 at 1648 hours, when its last call was initiated in the area of Muvea Farm, and it was switched on again on 19th September, 2018 at 1507 hours along Kangundo Road. There were no calls between that number and the number registered to the deceased. On cross-examination he clarified that the records do not indicate an exact, specific location of the handset. 8. **PW11, Tabitha Wandia Maitu**, a domestic worker who had worked for the deceased for two and a half years, testified that the 1st accused had been brought into the deceased’s home to assist with household chores and that the two initially enjoyed a cordial relationship. The relationship soured when the 1st accused brought a woman to live with him within the deceased’s homestead without the deceased’s consent, following which the deceased relieved the 1st accused of his duties and asked him to leave. She testified that the 1st accused was not happy about this, that he collected his belongings in the evening and did not want people to know he was leaving, and that he had on an earlier occasion taken and crashed the deceased’s motor vehicle without permission, which infuriated the deceased. On the night of 18th September, 2018 she had supper with the deceased and retired to her quarters; on the following morning she found the deceased’s bedroom door locked, and upon eventually gaining access with the assistance of a neighbour she found the deceased lying face down in a pool of blood with a cut on the neck. She confirmed that she did not see the 1st accused at the homestead on the material night, that the homestead was surrounded by a Kei-apple fence with a concrete wall at the gate such that people could not simply enter, and, on cross-examination, that she did not know the 2nd accused save for having seen him when he was given casual work by the deceased. 9. **PW12, No. 77258 CPL Peter Orwa**, the investigating officer, narrated the course of the investigations from the report received on 19th September, 2018. He testified that the door to the deceased’s house had been forced open and that the deceased’s body bore deep cuts and lay in a pool of blood; that no murder weapon was recovered despite a search within and outside the compound; and that the search was extended to the home of the 2nd accused, situated across the road approximately 100 metres away, where, upon a torch being shone into the pit latrine, a shiny item was observed, whereupon the latrine was demolished and the electricity fuse, the long coat and the black Infinix phone cover were retrieved and identified by PW1. He produced the inventory (Exhibit P.5) signed by the OCS and the accused persons. He testified that the 2nd and 3rd accused persons were arrested after the items were recovered because they could not clarify how the items found their way into their homestead, and that the 4th accused was suspected of having assisted the 1st accused, being the person who, according to Faith Mwende, helped the 1st accused cart away his belongings from the deceased’s home following the termination of his employment, and was said to be a frequent visitor. He conceded that the items recovered from the pit latrine were not subjected to any forensic examination; that the items bore no peculiar marks and could be found elsewhere, that it was not for him to say the items belonged to the deceased and that he could not, of his own evidence, state what connects the 4th accused to the crime, though he maintained that his evidence was only a piece of the evidence adduced in the case. **The Submissions** 1. For the State and the family of the deceased, it was submitted that a death occurred and that it was unlawful and pre-meditated in the manner of its execution; that items belonging to the deceased were retrieved from the pit latrine in the home of the 2nd accused, who is the father of the 1st accused, and that no explanation was offered as to how the items came to be there; and that the conduct of the 1st accused at the scene – going straight to the outside bathroom and releasing a dog that had been locked therein on the night of the murder – betrayed prior knowledge of the incident. Reliance was placed on ***Republic v Winnie Chepngeno Ngetich & 2 Others, Kericho HC Criminal Case No. E011 of 2022 [2025] KEHC 1876 (KLR)***, and the court was urged to find that the evidence, though largely circumstantial, was sufficient to establish a prima facie case and to place the accused persons on their defence. 2. For the 2nd accused it was submitted that the only evidence against him is the recovery of the items from a pit latrine located at a corner of his unfenced and ungated homestead adjacent to a public access road, that no witness placed him at the scene of the crime, that he had a cordial relationship with the deceased, that the items were never subjected to forensic examination and were, on the prosecution’s own evidence, ordinary items readily available in the open market, with material discrepancies in the description of the jacket as either brown or grey and that the investigating officer candidly admitted that the 2nd accused was arrested and charged only because he could not explain how the items found their way into the pit latrine, which amounts to an impermissible shifting of the burden of proof contrary to Article 50(2)(a) of the Constitution. Counsel relied on, inter alia, ***Sawe v Republic [2003] KECA 182 (KLR)*** and ***Ahamad Abolfathi Mohammed & Another v Republic, Criminal Appeal 135 of 2016; [2018] KECA 743 (KLR)***, and urged the court to find that no prima facie case has been established against the 2nd accused and to acquit him under Section 306(1) of the Criminal Procedure Code. **Amalysis & Determination** 1. Section 306(1) of the Criminal Procedure Code provides: *“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.”* 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 adopted the definition of ‘prima facie’ in Black’s Law Dictionary, 8th Edition, as sufficient to establish a fact or raise a presumption unless disproved or rebutted. At this stage the court is not concerned with whether the evidence has proved the charge beyond reasonable doubt; it is only concerned with whether the evidence discloses a case that calls for an answer from the accused. 2. The ingredients of the offence of murder were restated by the Court of Appeal 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 of the deceased; (c) that the accused had malice aforethought. 1. Since the prosecution’s case rests substantially on circumstantial evidence, ***Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990*** holds that such evidence must satisfy three tests: **“The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;** **those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; and** **the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”** 1. In ***Sawe v Republic (supra)*** , the Court of Appeal added that 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, and that there must be no co-existing circumstances weakening the chain of circumstances relied upon. 2. Where property shown to belong to a deceased person is found, unexplained, in the possession of an accused person shortly after the crime, the doctrine of recent possession casts upon that accused an evidential burden to account for it. In ***Malingi v Republic [1989] KLR 225***, the Court of Appeal held: **“By the application of the doctrine the burden shifts from the prosecution to the accused to explain his possession of the item complained about. He can only be asked to explain his possession after the prosecution has proved certain basic facts … that there are no co-existing circumstances which point to any other person as having been in possession of the item.”** 1. The doctrine is a presumption of fact arising under *Section 119 of the Evidence Act*, and the burden it casts on an accused to account for a fact especially within his own knowledge reflects *Section 111 of the Evidence Act*. Where the item in question is bound up with the very act charged, unexplained possession is capable of supporting an inference relevant to the graver offence, and not merely to an offence against property (see ***Andrea Obonyo & Others v R [1962] EA 542***). 2. Applying the above principles to the evidence on record, the first and second ingredients of the fact and cause of death are not in contest. The evidence of PW11 who discovered the body, of PW1, PW4, PW7, PW9 and PW12 who attended the scene, and of PW6 who conducted the post-mortem examination, established that the deceased died on the night of 18th and 19th September, 2018 of severe head injuries occasioned by both blunt and sharp force trauma. PW6 ruled out an affray, and the injuries, which he described as consistent with defensive wounds, together with the fact that the deceased was attacked in his bedroom at night after the door was forced open and the family dog locked away, lead to the irresistible inference at this stage that the death was both unlawful and attended by malice aforethought within the meaning of Section 206 of the Penal Code. What remains is the third and critical question: whether there is prima facie evidence connecting the accused persons to the unlawful act. 3. As against the accused persons collectively, the prosecution’s case, though substantially circumstantial, discloses the following. The 1st accused, without prompting, went straight to the outside bathroom on the morning after the killing and released a fierce dog that had been locked therein on the night of the murder, and thereafter tinkered with the metre box; no innocent explanation was offered as to how he knew where the dog had been confined, and his mobile telephone was switched off for the entirety of the material night, only coming back on air the following afternoon along Kangundo Road. Items identified by PW1 as belonging to the deceased being an electric fuse, a coat bearing what appeared to be blood stains, and a phone cover , were found concealed in a pit latrine within the homestead of the 2nd accused, the father of the 1st accused, in which homestead the 3rd accused also resided; how these items came to be concealed there is a fact especially within the knowledge of the 2nd and 3rd accused, and no explanation has been offered by either of them. The 4th accused, for his part, was, on the evidence of PW12 relaying the account of Faith Mwende, the person who assisted the 1st accused to cart away his belongings from the deceased’s home following the termination of his employment, and was said to be a frequent visitor to the deceased’s homestead; a satisfactory account needs to be offered as to the nature of his involvement in these events either. 4. In the upshot, having examined the evidence as a whole, I am satisfied that, pursuant to Section 306(2) of the Criminal Procedure Code, the prosecution has made out a case sufficient to place the accused persons on their defence. **Disposition** 1. Pursuant to Section 306(2) of the Criminal Procedure Code, the 1st, 2nd, 3rd and 4th accused persons are hereby placed on their defence. Each is informed, in accordance of his right to give evidence on oath, in which case he shall 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. 2. The defence hearing shall proceed on a date to be fixed at the delivery of this ruling. 3. It is so ordered. **Ruling** **Dated, Signed and delivered virtually this 30th day of July 2026.** **E.N.MAINA** **JUDGE** **In the presence of:** **Mr. Masila for the State** **Mr. Langalanga for 1st & 3rd Accused persons** **Mr. Kilonzi for 2nd accused person** **Ms Kinyatta for Family of victim** **All 4 accused persons** **Miriam – court Assistant/Interpreter**