https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7833

Republic v Mbondo (Criminal Case 75 of 2015) [2026] KEHC 7833 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7833 (KLR) Republic of Kenya In the High Court at Machakos Criminal Case 75 of 2015 RC Rutto, J June 4, 2026 Between Republic Prosecutor and Patrick Kioko Mbondo Accused Judgment 1.The Accused herein was charged with the offence of murder contrary to Section 203 as read with section 204 of the Penal Code. The particulars of the offence are that, on 31st August, 2015, at Muthetheni Location in Mwala sub-county within Machakos County, he murdered Joseph Mbondo Maseki. 2.The accused pleaded not guilty to the charge. 3.The prosecution called a total of 9 witnesses in support of its case. In Brief, they presented their case as follows; 4.PW1, Boniface Mutuku Mbondo testified that he is a resident of Gituti Sub-location, Katikomu Village and works in the jua kali sector. He stated that in August 2015, while working at Mlolongo where he also resides, he was given time off and returned home where he stayed for about three days. During that period, a person asked him to buy tea and upon his response that he had no money, questioned him about an alleged sale of family land. PW1 stated that he had no knowledge of such a sale. Upon returning home, he inquired from his mother, who informed him that his father was aware of the matter. He then consulted his uncle, Mwilu, his father’s stepbrother, who advised him to seek clarification directly from his father. 5.PW1 proceeded to his father’s workplace, found him on the farm and informed him about the alleged sale of land. His father expressed surprise and denied any knowledge of the transaction. They thereafter visited the home of the father’s employer, where it was suggested that PW1 consult the village elder, Philip Kalungu Mutiku of Mumani village. PW1 did so and the elder undertook investigations. The elder later informed PW1 that the land had allegedly been sold by PW1’s father in conjunction with PW1’s brother, Kioko, following communication between them. PW1 relayed this information to his father, who indicated that he would seek permission from his employer and return to address the matter. 6.The following day, PW1’s father returned, and a discussion was held involving PW1, his father, and their uncle Mwilu. It was agreed that the matter would be reported to the Assistant Chief the following day. PW1 and his father duly reported the issue and the Assistant Chief indicated he would summon the alleged purchaser to explain the transaction. PW1’s father then returned to work and requested more time, with a plan to revisit the Assistant Chief in September. At that time, PW1’s brother Kioko was in Nairobi, although PW1 had seen him briefly at home before he left again. 7.PW1 further testified that on 1st September, 2015, while at work in Munyili at about 8:00 a.m., he received a call from his cousin, Michael Muoki Mwilu, asking him to return home urgently. Upon doing so, he was informed that his father had been involved in an accident and had died. PW1 accompanied by Michael Muoki proceeded to the father’s workplace using a motorbike. While on the way, his brother Kioko called and stated that he had heard their father had been killed and that he was travelling from Nairobi so they could meet there. PW1 arrived at the scene between 9:00 a.m. and 10:00 a.m. and found a crowd gathered at the gate. He observed his father’s body lying down, covered with a net. The area Assistant Chief was present and instructed them to wait for the police. Officers from Masii Police Station arrived, took photographs and recorded their names and phone numbers. When the body was uncovered for photographing, PW1 observed two cuts on his father’s back though he did not examine them closely due to shock. The body was later taken to Machakos. 8.PW1 testified that on 3rd September, 2015, his mother, Michael Muoki, and himself attended the post-mortem and identified the body. He confirmed that the body had been taken to the mortuary on 1st September, 2015. On 2nd September, 2015, PW1 was summoned to Masii Police Station to record a statement. While on the way, his brother Kioko bought githeri, which PW1 did not eat, though Kioko did. Kioko appeared apprehensive about being arrested and expressed reluctance to visit the CID offices. Upon arrival at the station, Kioko was asked to wait outside while PW1 recorded his statement. However, when PW1 later went to call him, he was no longer there. PW1 was subsequently, informed by the police that Kioko was suspected to have knowledge about their father’s death. PW1 did not find Kioko at home thereafter, including during the post-mortem and funeral arrangements which proceeded in his absence. PW1 later recorded a further statement on 22nd September, 2015, confirming identification of the body. 9.PW1 stated that Kioko, the accused, is his younger brother. They are seven siblings, three boys and four girls, with the youngest brother, Kisilu, being about 9–10 years old at the time, and living at home. He further stated that their home is about one hour away from their father’s workplace by motorbike. PW1 testified that he did not see the accused again until about one week after the burial when he had been arrested at the police station, but they did not speak to him. He stated that he was not aware of any prior quarrel or disagreement between Kioko and their father, and that their relationship appeared cordial. He also testified that although their father used to drink, there was no information that he had been drinking on the day he died. He believed the death occurred on the night of 31st August, 2015, and confirmed that no one informed them who attacked their father. He also stated that Kioko did not contribute to funeral expenses. 10.During cross-examination, PW1 stated that he had been informed the land had been sold for Kshs. 60,000/=, although it had no title and he did not know in whose name it was registered. He stated that he heard the money was received by Kioko, though he did not know if it was the full amount. He added that his mother appeared to have knowledge of the transaction and had accompanied Kioko, and that she informed him that she received Kshs. 1,000/= from the proceeds. PW1 admitted that he did not know the name of his father’s employer, whom he referred to as Nyamai Mutua, but stated that his father had worked there since youth. He reiterated that he was not aware of any dispute between the accused and their father, and did not know the accused whereabouts on 31st August, 2015, or for approximately two weeks, thereafter. He also confirmed that he had no information that his father had been drinking on the day he was attacked. 11.In re-examination, PW1 reiterated that he heard the land was sold for Kshs. 60,000/= and that the money was given to Kioko, though he did not know if it was the entire amount. He confirmed that the land had been inherited by their father and that apart from his mother receiving Kshs. 1,000/=, he did not know of anyone else who received the proceeds. He clarified that his mother initially told him that his father was aware of the sale, but only disclosed after the father’s death that she herself had knowledge of the transaction. PW1 maintained that he used to visit his father, that the accused knew where their father worked, and that he did not receive any information that his father had been drinking on the day of his death. He stated that although the accused was at home before the incident, he was not there at the time of the death, and that PW1 did not know how the accused related with their father prior to his death. He confirmed that the last time he saw the accused before the incident was at the father’s workplace, and that thereafter, he did not see him for about two weeks. Finally, he reiterated that the accused did not contribute to the funeral expenses. 12.PW2, Wayua Dorothy, testified that she is a resident of Katikomu and a casual laborer. She stated that the deceased, Joseph Mbondo, was her husband, and that the accused, Patrick Kioko Mbondo, is her son and her second born child. She testified that in July 2015, the accused informed her that he had sold a portion of land to one Joshua. She clarified that the land belonged to the deceased and not to the accused and that she had been cultivating it. According to PW2, the accused told her that he had already informed his father about the sale, although the deceased had not personally informed her of any such information. The accused did not disclose the purchase price to her but gave her Kshs. 1,000/=, stating that he had given the remainder of the money to his father. PW2 testified that she did not witness any payment being made to the deceased and that she received no further proceeds from the transaction. 13.PW2 testified that a few days after she received the Kshs. 1,000/=, the deceased returned home from his place of work and subsequently sought advice of elders regarding the matter of the land. She did not inform him about the sale of the land, and he did not indicate to her that he had consented to it or received any payment. The deceased stayed at home for about three days, during which time, he indicated that he would seek permission from his employer in order to return and further investigate the issue. During that period, their son Mutuku (PW1) was also at home, and together with the deceased, they reported the matter to the Assistant Chief. Thereafter, the deceased returned to his place of work, but did not come back home again. 14.PW2 testified that she later received information that the deceased had been killed, although she could not recall who informed her. At the time she was with PW1 who proceeded to the deceased’s place of work and confirmed his death. The deceased’s body was subsequently taken to the mortuary, and the family proceeded with the burial arrangements. PW2 testified that the accused did not attend the burial, did not send any contribution towards funeral expenses, and that she did not know his whereabouts at the time. She later learned that he had been found at Masii after the burial, although she did not know the circumstances. 15.PW2 further stated that she visited the mortuary and saw the deceased’s body, it had injuries. She stated that the deceased lived at his workplace and occasionally consumed alcohol. She also stated that while she and other family members visited him, she did not know whether the accused visited him. She also testified that at the time the accused was selling the land, he was not living at home, and she did not know where he resided except for when he came to inform her about the sale. She maintained that the accused had a cordial relationship with the deceased. 16.During cross-examination, PW2 testified that she has seven children, all of whom were living at home in 2015. She reiterated that the deceased consumed alcohol but she had no dispute with him regarding drinking. She confirmed that she only received Kshs. 1,000/= from the accused and did not know the total purchase price of the land. She also stated that the accused once asked her to sign certain documents, informing her that he had already reached an agreement with his father. However, she admitted she did not know the nature of documents she signed or whether they related to a sale. She further stated that the documents were retained with the buyer, identified as Joshua Wambua. She maintained she did not handle the proceeds of the alleged sale and did not know whether PW1 received any money. 17.In re-examination, PW2 reiterated that all her children were living home in 2015 and that she had no issue with the deceased’s drinking. She emphasized that she did not sell the land and that the accused informed her that he had already agreed with his father regarding the sale. She maintained that the land belonged to the deceased, and she did not know the nature of documents she signed. She also stated that other individuals may have received money from the transaction and that PW1 had informed her that he had received money from the accused, although she clarified that PW1 did not personally collect the money. 18.PW3, Justus Ndesya Muli, testified that he was the Assistant Chief of Ngiluni Location in August 2015. He recalled that on 13th August, 2015, at about 7:30 a.m., the deceased, Joseph Mbondo Maseki, visited him at his home in the company of Boniface Mutuku Mbondo (PW1). During that visit, the deceased informed him that he had received information that his son, Kioko Mbondo, (the accused) had sold a portion of his land without his knowledge to one Joshua Mutinda Wambua. PW3 stated that this was the first time he was learning of the alleged sale. 19.The deceased explained that he had only been granted one day by his employer and would return to seek additional time to follow up on the matter. He indicated that upon his return, he would contact PW3 so that both the alleged buyer and the seller could be summoned to resolve the issue. 20.PW3 further stated that on 1st September, 2015, he received a report that the deceased had been killed at his place of work. Subsequently, on 3rd September, 2015, he was summoned by officers from the Criminal Investigations Department (CID) to Mwala Police Station, where he recorded a statement. He confirmed that prior to deceased’s death, he had not summoned Joshua Mutinda Wambua, the alleged buyer, as he was still awaiting the deceased’s return. He also stated that he knew PW1, and had known the accused, Kioko Mbondo, since he was a young man, and that he had not previously received any complaints about him. However, he did not know where the accused worked and did not visit the scene of the incident. 21.During cross-examination, PW3 stated that he had not received any documentation evidence relating to the alleged sale and that the knowledge was based solely on the report made by the deceased. He confirmed that he had not summoned either the alleged buyer or the seller, as he was awaiting the deceased’s return, although he had gathered information suggesting that the land had indeed been sold. 22.In re-examination, PW3 reiterated that the understanding was that the deceased would contact him upon his return so that he could summon both the seller and the buyer to address the matter. 23.PW4, Geoffrey Nyamai Mutua, testified that he is a businessman from Muthetheni Location in Mwala Sub-County. He stated that the deceased, Joseph Mbondo, was his employee and had worked at his home for many years. He explained that the deceased had initially been employed by his late father and that he continued employing him thereafter. PW4 testified that in early August 2015, the deceased requested permission to travel home to address a family dispute, informing him that his sons had sold part of his land without his consent. PW4 granted the request. 24.PW4 testified that on 1st September, 2015, at about 8:30 a.m., he received a phone call from a village elder, Muinde, informing him that the deceased had been killed. He recalled that the deceased had earlier mentioned that the son who had sold the land had received partial payment and had thereafter disappeared. Upon receiving the news, PW4 travelled to Muthetheni. On arrival, he was informed that the deceased’s body had already removed. 25.PW4 further testified that he was shown the scene of the incident. He observed that the door to the deceased’s house had been broken and that the interior appeared ransacked with items scattered. He noted bloodstains outside the door, but none inside the house. He also observed that the compound which was fenced with temporary Euphorbia fence, appeared to have been trampled. He stated that the nearest neighbour was about 100 metres away, separated by a road, with another homestead in between. 26.PW4 testified that on 2nd September, 2015, he spoke to one of the deceased’s sons, and his brother regarding funeral arrangements, and later attended the burial. He subsequently recorded his statement at Masii Police Station on 20th September, 2015. He stated that he knew the deceased’s family members but did not know the accused. He described the deceased as a good person who occasionally consumed alcohol but was not a nuisance. He further stated that apart from the issue concerning the land, the deceased had never mentioned any other problems to him and he had never heard of any disputes involving him. During cross-examination, he maintained that he did not know the accused. 27.PW5, Isaac Nthei Muthini, testified that he is from Muthetheni Location and that at the material time, he was serving as the area Chief. He stated that on 1st September, 2015, at about 9:20 a.m., while on his way to work, he was informed by the Assistant Chief, Raphael Mutua, of an incident that had occurred within his jurisdiction. Upon receiving the information, he proceeded to the scene and found the body of an adult male lying outside. He testified that police officers were already present. The body was covered with a mosquito net, and he observed a cut injury at the back of the neck. Shortly thereafter, the Officer Commanding Station (OCS) arrived at the scene. 28.PW5 stated that he did not know the deceased and had no knowledge of how he died. He confirmed that the police conducted their investigations at the scene. He further stated that he recorded his statement on 4th September, 2015. PW5 testified that he did not know the accused, Patrick Kioko Mbondo, and that the first time he saw him was when the deceased’s body was being loaded into the vehicle. 29.PW6, Antony Ngunga Makoli, testified he is a village elder from Muthetheni Location, Nthiani Sub-location. He stated that on 1st September, 2015, at about 9:20 a.m., while at home, he received a call from one David Muinde, who informed him that a worker at a neighboring home had been killed. Upon receiving this information, he contacted the Assistant Chief, who confirmed the incident and instructed them to meet at the scene. PW6 proceeded there and found the Assistant Chief already present together with many members of the public gathered outside. He observed body of the deceased lying in one of the houses, covered with a mosquito net and noted cut injuries on the head. 30.He testified that he knew the deceased as a worker at that homestead, which was located approximately, a 15minute walk from his residence. He further stated that police officers later arrived, conducted investigations and removed the body. On 3rd September, 2015, he was summoned to Masii Police Station, where he recorded his statement. PW6 also testified that although many people were present at the scene, he did not know the accused, Patrick Kioko Mbondo, and could not recall seeing him at the scene on that day. 31.PW7, Raphael Mumo Mutua, testified that he is the Chief of Muthetheni Location within Mwala Sub-County, and had previously served as the Assistant Chief of Ndalani Sub-location. He stated that on 1st September, 2015, at about 7:30 a.m., while on his way to the Chief’s Office in Muthetheni, he received a call from one Mr. Wambua Ndambuki, who informed him that a worker at the home of Mr. Mutua Kitemo’s son had been found dead within the compound. He immediately proceeded to the scene. While on the way, he received a second call from Mr. Anthony Nganga, a village elder, whom he directed to meet him there. Upon arrival at the gate, he found more than 30 members of the community gathered there. He was informed that the worker had been found lying dead with cuts on the head. This information was relayed to him by one Mr. Mutua. PW7 requested that the gate be opened and entered the compound instructing members of the public not to interference with the scene. On approaching the body, he observed three cut wounds to the head.PW7 testified that he then attempted to contact the area Chief, upon being unsuccessful, informed the officer in charge of Muthetheni Police Post. He later reached the Chief, who confirmed he was on his way. PW7 remained at the scene managing the crowd until the police and the Chief arrived, after which the body was taken to Machakos Level 5 Mortuary. He testified that no information was available to him at the time as to who had committed the act or the motive behind it. He further stated that he spoke to a neighbour, Mr. Mutua, who indicated that he had heard some noise during the night but assumed it was caused by a drunken person. 32.During cross-examination, PW7 stated that he did not know the deceased prior to the incident and was not familiar with his family. He also confirmed that he did not know the accused before the incident, although he recalled that the accused came to the scene on that day while he (PW7) was present. He further stated that he had no information as to whether the deceased consumed alcohol and noted that the deceased had been working at the homestead for several months. He added that inquiries among locals revealed that the deceased was from Kiteta in Makueni, a neighbouring location approximately 10 kilo-metres away. 33.PW8, Dr. Waithera Githendu testified that she is a pathologist at Machakos Level 5 Hospital, holding a Bachelor of Medicine and Surgery degree in 2007 and a Master’s degree in Pathology in 2013 from the University of Nairobi. She stated that on 3rd September, 2015, she conducted a post-mortem examination on the body of Joseph Mbondo at Machakos Level 5 Hospital. 34.According to the history provided, the deceased had been found by a neighbour, next to his house with deep cut wounds on the head and was already dead when neighbors found him. Upon examination, PW8 observed that the deceased’s clothes were soaked in blood. A detailed external and internal examination revealed multiple deep cut wounds on both sides of the head as well as injuries at the back of the neck and on the lower jawbone. Internally, the head injuries were severe, involving skull fractured that affected the brain. She noted that the rest of the body was unremarkable. PW8 formed the opinion that the cause of death was head injury resulting from deep cut wounds. She confirmed that she signed and stamped the post-mortem report on the same day and produced it in court as Prosecution Exhibit 1. 35.In cross-examination, PW8 stated that she personally conducted the post-mortem examination and that the body was identified to her by the deceased’s wife, Dorcas Wayua Mbondo and his daughter, Mwoki Mwilu. She explained that, ordinarily, the deceased’s clothing is taken by the police for forensic purposes such as DNA analysis but noted that this detail had been omitted from the post-mortem form due to an oversight and she could not recall whether the clothes were actually taken. She further explained that the nature of the injuries, sustained were consistent with a sharp force trauma, likely inflicted using a sharp object such as a panga. 36.PW9, No. 79681 Corporal Mohamed Hamisi testified that he is attached to the Directorate of Criminal Investigations (DCI) Msambweni and was previously stationed at DCI Mwala, based at Masii Police Station, where he participated in the investigations of this case. He stated that on 1st September, 2015, while at work, they received a report of the murder of one Joseph Maseki, aged about 50 years at Muthetheni Area. He proceeded to the scene together with the then DCIO and the Officer Commanding Station (OCS). 37.Upon arrival, PW9 testified that they found the body of the deceased in his house, lying in a pool of blood with visible injuries to the neck and head. The injuries appeared to be deep cut wounds inflicted by a sharp object. The officers took photographs and arranged for the body to be moved to Machakos Level 5 Hospital Mortuary for preservation and post-mortem examination. PW9 stated that he could not recall whether he personally attended the post-mortem. 38.PW9 further testified that investigations were conducted jointly with the DCIO during which statements were recorded statements from witnesses. Family members of the deceased including his two sons, Mutuku Mbondo (PW1) and Kioko Mbondo (the accused), were summoned to the DCI offices at Mwala on 2nd September, 2015. PW9 recorded a statement from PW1 Mutuku Mbondo while the accused, Kioko Mbondo, was asked to wait outside. However, before his statement could be taken the accused disappeared. From that day, the accused could not be traced and did not attend his father’s funeral. This conduct raised suspicion among family members, who began to suspect his involvement in the death of the deceased. 39.PW9 stated that on 15th September, 2015, approximately two weeks after the incident, the accused was arrested by members of the public at Masii, where he was allegedly hiding in a hotel. He was handed over to the police. Upon search, he was found with two bus tickets. one of the tickets indicated travel from Nairobi to Muthetheni on 31st August, 2015, paying a fare of Kshs. 300/=, although it did not bear the accused’s name. He testified that the ticket bore details suggesting it was for travel from Nairobi to Muthetheni and was associated with Kako Joy bus service, including a registration number. He stated that they did not independently verify its origin with the bus company and the bus ticket was not produced as evidence in court. 40.PW9 testified that investigations also revealed a dispute over land between the deceased and the accused. According to the information gathered, the accused had demanded a portion of land from the deceased to sell, which the deceased had refused, allegedly leading to a strained relationship. PW9 admitted that he did not deeply investigate the land issue and that at the time, the land had not actually been sold. 41.PW9 further stated that their suspicion against the accused was based on several factors including his disappearance from the police station before recording a statement, his failure to attend his father’s funeral, his alleged hiding in a hotel, and his possession of the bus ticket showing he had travelled to Muthetheni a day before the incident. He also stated that, from witness statements, the accused was placed at the scene of the incident. He stated that a confessionary statement existed (marked PMFI-3) which had been recorded by the OCS, CIP Dickson Walukano. He stated that he did not record it himself and did not know the current whereabouts of the officer who did it. He also stated that he could not recognize the accused in court. 42.In cross-examination, PW9 confirmed that the accused was present at the scene on 1st September, 2015, and that he reported to the police station on 2nd September, 2015, together with his brother, Mutuku Mbondo(PW1). 43.He testified that the accused was asked to wait but was not instructed to return on another date. After recording PW1’s statement, PW9 did not see the accused again that day. He also admitted that he was not present at the time of the accused’s arrest and that no independent inquiries were made at the place of arrest to confirm his alleged stay in the hotel. 44.PW9 further testified that when they visited the scene, members of the public were already present and the gate to the compound was open. The deceased was found in a semi-permanent one-bedroom house, lying in a pool of blood and fully clothed. The body was removed together with the clothes although they were not subjected to DNA analysis. He stated that no forensic examination was carried out at the scene and no murder weapon was recovered. He further admitted that investigations did not establish whether the deceased had been drinking prior to the incident. 45.In re-examination, PW9 clarified that the body was found inside a mud house which he described as a temporary structure. He also explained that the bus ticket indicated the point of departure and destination of travel, namely Nairobi to Mithetheni. 46.At the close of the prosecution’s case, this Court found that a prima facie case had been established against the accused, and he was accordingly placed on his defence. He elected to give sworn testimony. Defence Case 47.DW1, Patrick Kioko Mbondo, testified that he has been in custody since 2015 when this case commenced. He stated that he previously resided in Nairobi, where he engaged in sale of meat and that his rural home is in Ndiluni Sub-location, Mbooni East, Makueni County. He confirmed that he is aware of the charge facing him, namely that he allegedly murdered his father, Joseph Mbondo Maseki. 48.He testified that between 1st and 5th August, he was called by his brother, Boniface Mutuku Mbondo (PW1) to return home to discuss certain family issues. Upon his arrival, he met PW1, their mother Dorothy Wayua Mbondo (PW2) and their cousin Michael Mwoki Mwilu. During that meeting, the issue of sale of family land was discussed but no agreement was reached. He stated that he inquired whether their father was aware of the discussions, as he had not been present and thereafter, he returned to Nairobi. 49.DW1 further testified that on 1st September, 2015, at about 1:00 a.m., he received a call from his cousin, Michael Mwoki Mwilu, informing him that his father had been attacked by unknown persons and injured. He advised Michael to take him to hospital, as he was closer. He then travelled from Nairobi to Machakos and proceed to Muthetheni, where his father worked as a domestic worker in the home of one Nyamai Mutua. Upon arrival at around 12:30 p.m. to 1:00 p.m., he found police officers, members of the public, his brother Boniface (PW1), and Michael Mwoki Mwilu at the scene. He stated that the police asked for his nickname “Kathuri,” and recorded his phone number. He found his father lying on the ground, already dead. He testified that the body was taken to Masii Police Station and later to Machakos Level 5 Hospital Mortuary. 50.He further testified that on 2nd September, 2015, he and his brother were summoned to Masii Police Station by Sergeant Mathenge. Upon arrival, his brother was asked to record a statement first while he waited outside. He stated that while he was waiting, he heard his brother being questioned aggressively about having killed their father over land and also heard him screaming as he was allegedly being beaten. Fearing for his safety, he ran away to the nearest market and later returned to Nairobi. He stated that Sergeant Mathenge later contacted him and assured him of his safety, and asked him to return on 15th September, 2015. On that date, while on his way to the police station in Masii, he met CPL Karisa, who arrested him at about 1:00 p.m., after which he was placed in custody and subsequently recorded his statement. 51.DW1 denied any involvement in his father’s death. He also denied being found with any bus ticket, stating that he only saw the alleged tickets in court. He also denied staying at any hotel in Masii and testified that no witness testified to that effect. He maintained that he had gone to Masii voluntarily but was arrested at the stage, a few metres from the police station. He contended that, according to the testimony of PW9 the land in question had not been sold and that his arrest was linked to his opposition to the sale. He further testified that while in custody, he received information that Michael Mwoki Mwilu sold the land to the Assistant Chief, PW3, Justus Muli, a transaction he stated he did not support. 52.DW1 testified that he did not call any witnesses in his defence, stating that those involved were family members and beneficiaries of the disputed land. He also stated that his family had neither assisted him in securing bond nor visited him in prison. He maintained that on the night of 31st August, 2015, and the morning of 1st September, 2015, he was not at the scene and was not involved in the murder. He also suggested that Michael Mwoki Mwilu may have been as implicated as he was the one who informed both him and PW1 of their father’s death, but did not testify in court despite recording a statement. 53.During cross-examination, DW1 stated that he converted to Islam while in custody and adopted the name Salim. He reiterated that he lived and worked in Burma, Nairobi, though he had no documentary proof of his employment. He stated that he had not been summoned by the Assistant Chief regarding the land issue and only met the Chief on 2nd September, 2015. He further stated that his mother did not work and that he used to support her financially. 54.He confirmed that he and his brother reported to the police station on 2nd September, 2015, as instructed by Sergeant Mathenge but that he fled after hearing his brother being beaten. He stated that he did not attend his father’s funeral due to fear for his safety. He stated that he was arrested at Masii stage on 15thSeptember, 2015, and denied any knowledge of staying at a hotel or being in possession of any receipts. When shown a receipt dated 31st August, 2015, he denied ownership. He further testified that although he travelled on 1st September, 2015, he had no evidence to prove it. He stated that after fleeing, his phone remained on as he travelled back to Nairobi. 55.He also testified that his wife, Dorothy Wachira, left him following his arrest. He stated that between 1st and 15th September, 2015, he was with her and that she did not attend the funeral nor take their children there due to rumours that he had killed his father. He denied ever confessing to the offence and when referred to a statement allegedly made by CPL Moses Mathenge, he stated that he did not agree with it and did not write any such statement. 56.In re-examination, DW1 reiterated that he had no documentary proof of his work at Burma Market, as he had been in custody since his arrest and had not had an opportunity to get his belongings. He maintained that he travelled to Masii on 2nd September, 2015, he was in Makueni when he was called by officers from DCI Masii, upon being called by the police and that he was arrested while on his way to the station. He emphasized that no receipt was recovered from him and that the alleged bus ticket did not bear his name. He further noted that CPL Wilson Karimi and CPL Mathenge recorded statements but did not testify and reiterated that he never made any confession or statement implicating himself in the offence. 57.That marked the close of the defence. Parties were directed to file submissions. As at the time of writing of this judgment, only the accused’s person submissions dated 26th February, 2026, had been filed. Accused’s submissions 58.The accused, submits that the central issue for determination is whether the prosecution proved its case beyond reasonable doubt so as to warrant a conviction. He outlines the essential ingredients of the offence of murder, namely: proof of the fact and cause of death; proof that the death was caused by an unlawful act or omission attributable to the accused (actus reus); and proof of malice aforethought (mens rea) as defined under section 206 of the Penal Code. He relies on the case of Republic v Pius Kikungu John [2019] eKLR in support of these principles. 59.On the first ingredient, the accused concedes that the fact and cause of death were proved through the evidence of PW8, the pathologist, whose findings were corroborated by other witnesses He notes that this evidence was corroborated by PW3 and PW5 who observed cut injuries on the deceased’s head and thus this element is not in dispute. 60.On the second ingredient, however, he contends that the prosecution failed to prove that he caused the death of the deceased. He argues that there is no direct evidence linking him to the offence and that the prosecution’s case rests entirely on circumstantial evidence and suspicion. He argues that such evidence can only sustain a conviction if it forms a complete and unbroken chain pointing exclusively to the guilt of the accused and excluding any other reasonable hypothesis. In this regard, he relies on the principles set out in Joan Chebii Sawe v Republic [2003] eKLR, as cited with approval in Republic v Pius Kikungu John [2019] eKLR. 61.The accused identifies the prosecution’s key linking factors as the land dispute, his disappearance from Masii Police Station, his failure to attend the funeral and the alleged recovery of bus tickets. On the land issue, he notes that PW1, PW2, PW3 and PW4 confirmed the existence of a dispute over land allegedly sold without the deceased’s consent. However, he points out that his own evidence and that of PW9 casts doubt on whether any sale had actually occurred. He maintains that this weakens the alleged motive. 62.Regarding his disappearance from Masii Police Station on 2nd September, 2015, the accused admits leaving but explains that he did so out of fear after allegedly hearing his brother being beaten by police. He states that he later returned voluntarily, only to be arrested. 63.On the issue of the bus ticket, the accused challenges its evidential value arguing that it was not in his name, was not authenticated, and was not produced as an exhibit. 64.The accused also disputes the claim that he was found hiding in a hotel room, noting that no evidence, such as a receipt, was presented to support the assertion. 65.The accused therefore submits that there is no evidence placing him at the scene of the crime and no forensic evidence linking him to the offence. He further notes that the prosecution witness described his relationship with the deceased cordial, thereby weakening the element of malice aforethought. 66.The accused also challenges the adequacy of the investigations pointing to the failure by the prosecution to call key witnesses and to conduct forensic analysis. He relies on Joseph Ndungu Kimanyi v Republic [1979] KECA 5 for the principle that a court should only rely on credible and trustworthy witnesses. He lists several crucial witnesses who were not called. He argues that these omissions create gaps in the prosecution’s case and raise reasonable doubt. 67.He further submits that the investigations were poorly conducted, citing inconsistencies and gaps such as failure to verify the bus ticket, failure to investigate the alleged hotel stay, and failure to conduct forensic analysis. He argues that these shortcomings create significant doubt as to his guilt, which should be resolved in his favour. In support of this position, he relies on Republic v Morris Karani Alando, where the court held that failure to call key witnesses may lead to an inference that their evidence would have been adverse to the prosecution. 68.He also notes that the case has experienced significant delays, having taken over 10 years to proceed, with repeated adjournments and even the need to issue summons to compel attendance of witnesses such as PW1 and PW2, further illustrating the weaknesses in the prosecution’s case. 69.In conclusion, the accused submits that the prosecution has failed to prove its case beyond reasonable doubt, particularly on the elements of actus reus and mens rea. He maintains that the case against him is based on suspicion and weak circumstantial evidence that does not meet the legal threshold for conviction. He therefore urges the court to find that the prosecution has not established that he committed the offence and prays that he be acquitted. Analysis and Determination 70.I have carefully considered the evidence tendered by both prosecution and defence as well as the submissions filed by the accused. It is trite that in criminal proceedings, the burden rests upon the prosecution to prove the guilt of the accused and that such proof must meet the threshold of beyond reasonable doubt. 71.The accused is charged with the offence of murder contrary to Section 203 of the Penal Code, which section provides that:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 72.The applicable standard of proof required is well settled. In the case of Joseph Kimani Njau v Republic [2014] eKLR, the Court of Appeal stated that:-“In all criminal trials, both the actus reus and the men's rea are required for the offence charged; they must be proved by the prosecution beyond a reasonable doubt. The trial court is obliged to ensure that before any conviction is entered, both actus reus and mens rea have been proven to the required standard.” 73.Similarly, in Anthony Ndegwa Ngari v Republic [2014] eKLR, the Court of Appeal identified that three crucial ingredients of the offence of murder that have to be proved for a conviction to be entered are as follows:-For the offence of murder, there are three elements that the prosecution must prove beyond a reasonable doubt to secure a conviction. They are;(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 and (c)that the accused had the malice aforethought. 74.Guided by the foregoing principles, this Court will determine whether the prosecution discharged its burden of proof by establishing each of these elements beyond reasonable doubt. 75.As regards the proof and cause of death, the same is not in dispute. The evidence of PW8, Dr. Waithera Githendu, who conducted the post-mortem examination on 3rd September, 2015, at Machakos Level 5 Hospital, conclusively established that the deceased, Joseph Mbondo Maseki, died as a result of severe head injuries caused by multiple deep cut wounds. The doctor observed multiple deep cut wounds on the head, neck and jaw, with fractures to the skull and injury to the brain. She formed the opinion that the cause of death was head injury resulting from sharp force trauma likely inflicted using a sharp object such as a panga. This medical evidence was corroborated with the testimonies of PW5, PW6 and PW7, who all observed cut injuries on the deceased’s head. Accordingly, this Court is satisfied that the first ingredient has been proven beyond reasonable doubt. 76.The second issue for determination is whether the death of the deceased resulted from an unlawful act or omission attributable to the accused. There is no doubt from the nature and severity of the injury’s points to a deliberate and unlawful act. However, the critical question, is whether the prosecution established by credible evidence, that it was the accused who committed that unlawful act. 77.It is evident that the prosecution’s case rests entirely on circumstantial as no witness testified to have seeing the accused at the scene at the material time or to having witness the commission of the offence. The law on circumstantial evidence is well settled. In the case of Abanga alias Onyango v Republic, Cr. App No. 32 of 1990 set out the conditions as follows:-“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(iii)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.” 78.In the present case, the prosecution relied on several strands of circumstantial evidence. First, there was the alleged land dispute between the accused and the deceased. While PW1, PW2, PW3 and PW4 all testified that there had been concerns about the sale of family land, the evidence on this issue was inconsistent and inconclusive. Whereas PW2 stated that the accused informed her that he had sold the land and even gave her Kshs. 1,000/=, PW3 testified that he had been told but had not verified it. Significantly, PW9 conceded that there was no conclusive evidence that the land had in fact been sold and that no thorough investigations had been undertaken on the matter. This renders the alleged motive speculative. While motive may strengthen a case, it is not sufficient on its own to found a conviction, particularly where it is not firmly established. 79.Secondly, the prosecution relied on the conduct of the accused, particularly his disappearance from the police station on 2nd September, 2015, and his failure to attend his father’s funeral. Although such conduct may raise suspicion, it must be evaluated cautiously. As was held in the case of Sawe v Republic [2003] KLR 354, held as follows:-“Suspicion, however strong, cannot provide the basis for inferring guilt, which must be proved by evidence beyond reasonable doubt.” 80.The accused explained that he fled out of fear after allegedly hearing his brother being beaten by police officers and fearing for his own safety. This explanation was not effectively rebutted. In those circumstances, the accused’s conduct, though questionable, does not irresistibly point to guilt. 81.Thirdly, the prosecution relied on the alleged recovery of a bus ticket said to indicate that the accused travelled from Nairobi to Muthetheni on 31st August, 2015. This evidence, however, was fraught with inconsistencies. The ticket did not bear the accused’s name, was not authenticated by any representative of the bus company and was not formally produced as an exhibit before court. PW9 conceded that no effort was made to verify its origin. As such, in the absence of proper authentication and production, the evidential value of the ticket is negligible and it cannot safely be relied upon to place the accused at or near the scene of the crime at the material time. 82.Additionally, the prosecution alleged that the accused was arrested while hiding in a hotel at Masii. That assertion was equally unsupported by evidence. No hotel records were produced no hotel staff were called to confirm his presence there, no records were produced. Moreover, PW9 the investigating officer who advanced this claim, admitted that no inquiries were made at the hotel and admitted not being present at the time of the arrest. This weakens the probative value of that assertion and raises doubt as to its accuracy. 83.Of greater significance is the complete absence of forensic evidence linking the accused to the offence. No weapon was recovered; no fingerprints or DNA evidence were obtained and even the deceased’s clothes were not subjected to analysis. The investigating officer admitted that no forensic examination such as dusting was conducted at the scene. In a case wholly dependent on circumstantial evidence, such omissions are significant and weaken the chain of evidence. 84.In addition, this Court also notes that none of the prosecution witnesses placed the accused at the scene at the time of the murder. Although PW9 stated that witness statements indicated the accused was present, no such witness actually testified to that effect. On the contrary, the evidence shows that the accused arrived at the scene later, after being informed of his father’s death. This is consistent with his defence and was not displaced by the prosecution. This leaves doubt as to the possibility of the alleged offence being committed by another assailant. 85.Taking all the above factors into account, this Court finds that the circumstantial evidence relied upon by the prosecution does not meet the threshold required in law. It does not form a complete chain of evidence is neither complete nor incapable of explanation upon any other reasonable hypothesis than that of accused’s guilt. On the contrary, there exists several gaps and alternative explanations which have not been excluded. The evidence, at best, raises suspicion but as consistently held by the Court of Appeal in the case of GMI v Republic [2013] KECA 103 (KLR) that:-“A strong suspicion that the appellant might have known how the deceased died but suspicion alone no matter how strong is not enough to sustain a conviction. We entertain doubt whether the deceased was attacked by other people or by the Appellant.”Suspicion alone therefore, however strong, cannot be the basis for a conviction. 86.The final element, is whether the accused acted with malice aforethought within the meaning of Section 206 of the Penal Code. While the nature and severity of the injuries inflicted upon the deceased clearly demonstrate that the assailant had the intention to cause death or grievous harm, the prosecution failed to establish that it was the accused who inflicted those injuries. In the absence of such proof linking the accused to the act itself, malice aforethought cannot be attributed to him. 87.In the circumstances, this Court finds that although the death and its unlawful nature were proved, the prosecution has failed to establish beyond reasonable doubt that the accused was the person who committed the act that caused the death of the deceased or that he acted with the requisite malice aforethought. 88.Accordingly, I find that the prosecution has not discharged its burden of proof. The charge of murder against the accused therefore fails. The accused, Patrick Kioko Mbondo, is hereby acquitted under Section 215 of the Criminal Procedure Code and shall be set at liberty forthwith unless otherwise lawfully held. 89.Orders accordingly. DELIVERED, DATED AND SIGNED VIRTUALLY THIS 4TH DAY OF JUNE, 2026RHODA RUTTOJUDGEIn the presence of;Court Assistant: WabwireMr. Kyalo for the AccusedMr. Motende for StateAccused present in court