https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12351

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **HCCR CASE NO. 20 OF 2019** **REPUBLIC PROSECUTION** **-VERSUS-** **TITUS MUTIE MULWA alias MOSES ACCUSED** **RULING** **Background** 1. The accused, **TITUS MUTIE MULWA** alias Moses, is charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on 10th May, 2019 in Matungulu Sub-County within Machakos County, he murdered **MUTINGILI NZINGA** (“the deceased”). He denied the charge. The prosecution called eight witnesses. **The Prosecution's Evidence** 1. **PW1, Benedetta Muthini Mukoma**, a workmate of the deceased at JC Bar and Restaurant, Joska, testified that in May 2019 the deceased reported for work in the morning and they did cleaning duties. The accused, came to the residential house and the deceased handed him the keys through the window. Cleaning ended at 11.00 a.m. and the deceased left, the two agreeing to link up at 5.00 p.m. The witness reported for duty at 5.00 p.m.; the accused arrived and told her the deceased had directed that he collect Kshs. 100/= from her, to be settled between them later, and she gave him the sum. Her employer, David, later asked after the deceased's whereabouts and she said she had not seen her. She worked until 11.00 p.m. and closed. The following day she received a call from one Tunguti asking why the deceased's phone was not being picked. She, Tunguti and one Janet went to the deceased's house, within a plot owned by John Kitonga Murage, and found the door locked from outside. Neighbours said they had last seen the deceased at 3.00 p.m. the previous day. She alerted the village elder and asked him to contact the landlord. The body was recovered from inside the house around 5.00 p.m. that day. The accused and the deceased used to cohabit in that house. On cross-examination she stated that she had known the accused for one month, was unaware of any squabbles between the accused and deceased, that the deceased was not in a good mood when she left at 11.00 a.m., that the deceased gave the accused the room keys, that she could not tell whether the accused went to the deceased's house, and that the house was found locked with two padlocks with no movement heard inside. 2. **PW2, Pius Kinoi Maingi**, a farmer and village elder of Kausyani village, Lukenya location, testified that on 11th May, 2019 he received a report from Benedetta Muthini that a lady she worked with had gone missing and that the house she resided in with her husband/lover was locked from outside. He visited the plot and found the door locked with two padlocks, the second having been added by the landlord over unpaid rent, and observed flies hovering at the door. He alerted the landlord, and together with him and neighbours they broke the padlocks and gained entry, finding the body of the deceased lying on a mattress on the floor, naked but covered with a bed sheet. He alerted the area chief and the police, who removed the body. He identified the accused in court, stating that the accused had been brought to the scene by police several days after the incident and that this was his first time seeing him. He described the body as bearing bruises, with blood coming from the nostrils, and produced photographs of the scene taken by Corporal Kamau of the scenes-of-crime unit, marked PMFI-1(a) and (b). He interrogated those gathered at the scene and directed persons with material information to record statements at Joska Police Station, and thereafter recorded his own statement. The body was removed by the DCI to Kangundo Mortuary. On cross-examination he stated that he did not find the accused at the scene, that the deceased's sister had told him she had seen the deceased leaving the bar and had described her work at Sunshine, that nobody alleged having heard or witnessed a scuffle at the scene, that he did not arrest the accused, and that no weapon was found at the scene. 3. **PW3, No. 235521 C.I. Hassan Mboya**, who was in charge of Joska Police Post at the material time, testified that on 11th May, 2019 at 11.40 p.m. he received a report that a person had been found dead in a house. He met village elder Pius Kinoi, who led him to the place, a few metres from Sunshine Shopping Centre. He entered the iron-sheet house and found the body lying on a mattress on the floor of what was a single room, with nobody else present. 4. **PW4, No. 85269 Cpl Jacob Cheserek**, then based in Nyeri Sub-County, testified that on 29th May, 2019 the DCIO informed him and other officers that a murder suspect from Matungulu was heading towards Nyeri and directed them to track his movements using his phone. Together with DCIO John Gacheru, Corporal Maurice Agoro, PC Erick Ojwang and PC Renus, they traced him through Nairobi to Karatina, where they found him alighting from a matatu at the main stage carrying masonry tools. He was arrested and taken to Nyeri Police Station, where he stated he had been waiting to be collected by his aunt. His phone was handed to Matungulu Police Station, which collected him the following day. He identified the accused in court as the person arrested. On cross-examination he confirmed that the accused had no knife or panga on him, that his clothes were clean and unstained, and that his role had been limited to effecting the arrest. 5. **PW5, Dr. Katua Daniel**, a family physician who conducted the post-mortem examination on 23rd May, 2019 at Kangundo Level 4 Hospital, testified that the cause of death was strangulation, with broken bones of the cervical spine, and produced the post-mortem form as Exhibit P.2. No samples were taken. On cross-examination he stated that a plastic tube found in the stomach could be attributed to medical intervention, that the skin bore necrotic changes, that the broken neck bones could have resulted from blunt force applied by bare hands or, alternatively, from hanging, though no evidence of hanging was found, and that vomit and food material were present in the oral cavity. On re-examination he stated that, as between bare hands and a rope, he would attribute the injury to bare hands. 6. **PW6, No. 40548 IP Henry Kamau**, a crime scene officer, testified that he generated sixteen photographs of the scene at the DCI headquarters and prepared the accompanying certificate, which were produced as Exhibits 1(a)-(f) and (g). He clarified that he had not personally taken the photographs and could not speak to their contents. 7. **PW7, No. 72450 Cpl Kennedy Chesombos**, the investigating officer attached to DCI Matungulu, testified that on being informed of the murder report at Joska Police Post, he accompanied the deceased's relatives, her sister Veronica Kambua Nzingu and her former husband Mutio Tito, to the mortuary for the post-mortem conducted by Dr. Katua, confirming the identity of the deceased and the cause of death. He testified that the accused and the deceased had been together at a bar on the material day; that the accused asked the deceased for the keys to her house; that the deceased later directed the reportee to follow the accused there; that the deceased did not report for work at the bar's opening hour; and that the accused instead went to the bar and collected Kshs. 100/= from the reportee, telling her it had been sent for by the deceased for refund later, before disappearing. He stated that the reportee, upon finding the deceased's house locked the following morning, reported to the village elder, following which the house was accessed and the deceased found dead. He testified that investigations pointed to the accused as a person of interest, being the last person seen with the deceased, and that neighbours were heard to say the deceased had screamed for help, though none came forward to record statements. The accused was traced and arrested in Nyeri on 25th May, 2019 with the assistance of officers including PC Cheserek, and upon interrogation confessed to having known the deceased for about four years as a lover with an intention to marry. He states that the motive of the killing being a dispute over money the accused alleges the deceased had stolen from him. The confession was recorded by CI Maurice Okul. No exhibits were recovered and no specimens were sent to the government chemist. On cross-examination he confirmed that the deceased's former husband was Mutie Tito, that he was not the officer who arrested the accused, that investigations placed Tito away from the vicinity of the offence, that no fingerprint dusting was established, and that the reportee had confirmed the deceased and accused were together but did not witness the killing, there being no direct eyewitness. 8. **PW8, No. 230658 SSP Maurice Okul Muga**, testified that on 7th June, 2019 the DCIO of Matungulu brought the accused to his office in the company of his father, whom he later learnt was John Nduva Kimanthi, for recording of a caution statement. He explained the charge and the caution to the accused, who indicated he understood English, and recorded the statement as the accused spoke. In it, the accused stated that he had known the deceased for about four years as his girlfriend; that she kept a house at Joska near Sunshine; that on the material day he found Kshs. 60,000/= missing from under his mattress after the deceased had been to his house in his absence; that upon confronting her, she became furious, reminded him she had separated from him, and an altercation ensued in which he hit her on the neck with his right hand, causing her to fall unconscious on the bed; and that he then left, padlocked the door from outside, and fled first to Matuu and later to Nanyuki, where he was arrested. The statement was read back to the accused and explained to him, and was signed by the accused and his father, together with a certificate that it was made without coercion. The confession, dated 7th June, 2019, was produced as Exhibit P.3 without objection. On cross-examination the witness maintained that the accused had not been intimidated, that the accused confirmed the statement as recorded was correct, and that his father was present throughout. 9. At the close of the prosecution's case, the accused sought and was granted twenty-one days to file submissions, with the prosecution to respond thereafter. Both parties have filed and exchanged written submissions, the prosecution urging that a prima facie case has been established and the accused be placed on his defence under Section 306(2) of the Criminal Procedure Code, and the defence urging the converse and an acquittal under Section 306(1) of the Code. **Analysis** 1. **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 … 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 R (1957) EA 332***, the Court 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 a prima facie case in Black's Law Dictionary as evidence sufficient to establish a fact or raise a presumption unless disproved or rebutted. 2. The prosecution must ultimately establish the fact and cause of death, that the death was caused by the unlawful act of the accused, and malice aforethought under Section 206 of the Penal Code (***R v Nyambura & 4 Others (2001) KLR 355***; ***Anthony Ndegwa Ngari v Republic [2014] eKLR***). Where the case rests on circumstantial evidence, the position was stated in ***Kipkering Arap Koskei & Another v R (1949) 16 EACA 135***: **“*The inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt.”*** 1. Where reliance is placed on a statement said to have been made by an accused person, ***Republic v Mohammed & Another (Petition 39 of 2018) [2019] KESC 48 (KLR)***, applied in ***Republic v Gichira & 2 Others (Criminal Case 3 of 2016) [2025] KEHC 17748 (KLR)***, drew the following distinction: **“*Where there was a confession an accused person would acknowledge the commission of an offence and could be convicted on the basis of that acknowledgement alone but in the case of an admission the accused person would acknowledge a fact from which guilt could be inferred but additional evidence would be needed to prove the commission of an offence.”*** 1. On the reasons a court gives at this stage, in the case of ***Kibera Karimi v R (1979) KLR 36*** (Trevelyan and Todd JJ) held that where a prima facie case is found, the court is not required to give reasons for that finding, so as not to prejudice the fair trial of the case by creating the impression that it has already made up its mind before hearing the defence. This is to be contrasted with a finding that no prima facie case has been made out, where full reasons must be given for an acquittal see ***Murimi v R (1967) EA 542***. **Determination** 1. Having considered the evidence tendered by the eight witnesses, the exhibits produced, and the submissions filed by both parties, I am satisfied that a prima facie case within the meaning of Section 306(2) of the Criminal Procedure Code has been established against the accused, sufficient to require him to be placed on his defence. 2. Consistent with ***Kibera Karimi v R (supra)***, I do not elaborate further reasons for this finding. The weight and sufficiency of the evidence, including the submissions on the confession, the circumstantial evidence and the doctrine of last seen, remain for determination at the conclusion of the trial. **Disposition** 1. Pursuant to Section 306(2) of the Criminal Procedure Code, the accused, **TITUS MUTIE MULWA** alias Moses, is placed on his defence. He 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. It is so ordered. **Ruling dated, signed and delivered virtually through Microsoft Teams on this 30th day of July 2026** **E.N. MAINA** **JUDGE** **In the presence of:** Mr. Masila for the State Mr. Muumbi for the Accused Accused person Miriam - Court Assistant/Interpreter