https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11174

Republic v Mutai & another (Criminal Case 16 & 23 of 2019 (Consolidated)) [2026] KEHC 11174 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 11174 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Case 16 & 23 of 2019 (Consolidated) JRA Wananda, J May 22, 2026 Between Republic Prosecution and Wilson Koech Mutai 1st Accused Paul Kibowen Letting 2nd Accused Ruling 1.The accused persons were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on the night of 21/02/2019 at Kipkaren Trading Centre, Turbo sub-County within Elgeyo Marakwet County, they jointly murdered one Stephen Kirwa. 2.Initially, the 2nd accused was charged separately in Eldoret High Court Criminal Case No. 23 of 2019, before it was consolidated with the instant case which then proceeded as the lead file. Mr. Oscar Oduor has been appearing for the 1st accused, while Mr. Koech for the 2nd accused, as the pro bono Advocates. 3.The trial commenced before me on 11/10/2023 during which the Prosecution presented 7 witnesses before eventually closing its case on 17/12/2025. 4.Regarding the evidence presented, PW1, Linet Khasandi, stated that she was a resident of Kipkaren, and narrated how she had gone to a local alcohol drinking den within Kasarani area at around 10.00 am on 21/02/2019 when she was joined by the deceased who was a friend, and who noticed some injuries she had on her face and inquired about them. She stated that because the initial spot did not have alcohol, they shuttled between it and another spot several times before finally settling back at the initial drinking den after alcohol was finally brought. She testified that she left the drinking spot at about 3.00-4.00 pm leaving the deceased behind moderately drunk, and narrated how on the next day when she went to Kipkaren Police Station to report the injuries she had earlier suffered on her face, she overheard the police discussing how a dumb person was found murdered at Kipkaren. She stated that at around 8.00 pm police officers came to her house and arrested her, claiming that she was among the last people to be seen with the deceased. She testified that she was taken to the same Kipkaren Police Station where she remained in custody for about 13 days, that she knew both accused persons as they were regular patrons at the drinking den, and that she did not see the accused persons at the drinking spot on the day she was there with the deceased. 5.PW2, Ezekiel Kiprop, who introduced himself as a brother to the deceased. He testified that he last saw the deceased on 20/2/2019 at around 8.00 pm when the deceased, with whom they lived in the same homestead, came over to his house and asked him for chicken to sell to get some money. He stated that the deceased was very okay healthwise when he last saw him and gave him the chicken, and that he again saw the deceased in the morning when the deceased left at around 6.00-7.00 am to take the chicken to the market. He stated that he, too, later left home for his day’s usual businesses before returning home at around 5.00 pm but he did not find the deceased at home. He narrated how, with his brothers, they kept checking whether the deceased had returned home until at around 10.00 pm and went to sleep, how on the next morning, at around 8.00 am, his other brother phoned and told them that the deceased was killed, how he went to the scene where he had been directed to, at Kasarani area within Kipkaren, where the deceased had been found, at the gate of a house. He narrated how he saw the body, which was bleeding from the nose and also had a slight wound on the neck, how police officers took photographs thereof, how he recorded his statement, and how the body was collected and taken to the morgue where a post mortem was conducted. He also stated that the deceased was a dumb person who could not speak. In conclusion, he testified that he did not know the 1st accused, but he knew the 2nd accused as he used to see him around. 6.PW3, Barnabas Rono Chepkwony, testified that he was at Kipkaren market on 21/02/2021 at around 6.00 pm when on his way home, he met the two accused persons who were well known to him, with a third person who was dumb but whom he did not know, that all 3 were drunk, and that the accused persons were beating the dumb man. He stated that he tried to separate the three and convinced the 2nd accused (Paul Kiboen Letting) to go home, which the 2nd accused agreed to, and they left the dumb man and the 1st accused (Wilson Koech Mutai), who was lying down as he had presumably been punched and was too drunk, at the scene. He testified that however, along the way, the 2nd accused realized that he had left his cap at the scene and so he (2nd accused) returned to fetch it but he (PW3) did not accompany him back but went home alone. He testified that before he had separated the 3, he had noticed that the dumb man was only interested in fighting the 2nd accused who had presumably punched the dumb man, and that the dumb man had no much interest in the 1st accused. He narrated how on the next morning, at about 8.00 am, he heard some women who were hawking milk discussing how the dumb person had been found dead on the road where PW3 had left the 3 fighting on the night before, how he went to the home of the 2nd accused to inquire only to learn that he (2nd accused) had fled, how he then went to the police station and reported what he had witnessed the day before, but the police, instead locked him up in the cells where he remained in custody for 7 days and was only released after the 1st accused was arrested. In cross-examination, he reiterated that all 3 were drunk, that the dumb/deaf person had punched the 1st accused who fell down, and that the dumb person did not have any visible injuries when he separated them. He confirmed that although he went to the scene where the body was reported to have been found, he did not gain access to enable him view the body and so he could not verify whose body it was, and that it was near the home of a local charcoal seller which home villagers even burnt down. 7.PW4, Seargent Bernard Idewa, introduced himself as a Police Officer formerly stationed at Kipkaren Police Station. He narrated how he received a phone call at about 6.00 am on 21/02/20219 informing him that the body of a middle-aged man had been found lying on the ground within Kasarani area, how he went to the scene where he found a crowd and saw the body, and how some members of the public mentioned the names of people who were last seen with the deceased, and even led them to homes of some of those mentioned but found none of them at their homes as they had gone into hiding. He stated that one of those mentioned was the 1st accused (Wilson Koech Mutai) whom he knew well as he used to live next to the police station, and he then narrated how he received an alert on 1/03/2019 that the 1st accused had been sighted within the area, how he went there, arrested him and brought him to the police station, how the 1st accused denied being the one who hit the deceased, and told PW4 that he had fled because he feared arrest. In cross-examination, he stated that the body was found on a path/highway from an alcohol drinking spot, and also explained the location of Kipkaren when referred to Kipkaren Trading Centre and Kasarani and the distances involved. He however insisted that Kasarani is still within Kipkaren area. He also stated that when he saw the body at the scene, it had dried blood on the face. 8.PW5, Corporal James Songok, introduced himself as the Investigating Officer in the case. He narrated how at around 10.00 am on 22/02/2019, he was informed by the Officer-in-charge that a murder had been committed at Kipkaren River Trading Centre, how he went there, at Kasarani area, together with other officers, where he saw the body lying on a footpath, how he checked and noted that the deceased had injuries on the back of his head, and blood on the neck and shoulders and blood was also oozing from his mouth, how they called Scene of Crime officers who came over and documented the scene, and later removed the body and took it to the mortuary. He stated that he returned to the mortuary on the next day where he met some members of the family of the deceased, during which time the deceased had already been identified, and that a post-mortem exercise was conducted. He testified further that he returned to the scene and conducted further investigations through which he gathered that the accused persons and the deceased were taking illicit drinks together but at some point, a fight ensued between them, which information he gathered from PW1, whom he found at the alcohol drinking place when he went there to investigate, and also from PW2 whom PW1 told him had been separating the fight. He narrated how the accused persons were subsequently traced, arrested and charged in Court. As for reasons for the fight, he testified that he established that the deceased, who was deaf and dumb, was in a relationship with a certain lady whom he found with the accused persons on the fateful day, and it is when he confronted the trio to ask questions that the fight ensued. In cross-examination, he, too, explained that Kipkaren River Trading Centre is within Kasarani area. He also testified that members of the public burnt down the chan’gaa/illicit drinking den on the day that the body was found. He also revealed that he never traced the lady the subject of the fight. 9.PW6, John Kiberenge Wanambisi, introduced himself as a then Medical Officer who conducted the post mortem on the deceased. He testified that the deceased had a soiled shirt and other blood-stained clothes, that he had blood on the neck and shoulders, and blood was also oozing from the nose, mouth and ears, a huge blood clot on the point of the impact on the skull (haematoma), and he formed the opinion that the cause of death was head injury due to intracranial haemorrhage caused by a blunt force. He then produced the post mortem report. In cross-examination, he agreed that similar injuries could also be caused by a fall backwards, and also agreed that there were signs of alcohol intake by the deceased. 10.PW7, Senior Sergeant David Ogweny, introduced himself as a Scene of Crime gazetted police officer. He testified that on 22/02/2019 at around 12.00 noon, he was asked to attend a scene of crime exercise at Kasarani area within Kipkaren Trading Centre, which he did, and where he met the Investigating Officer (PW5), and that he saw the body lying on a footpath with blood oozing from the nose and mouth. He testified that he processed the scene and took 10 photographs, after which the body was removed to the mortuary. He then produced the photographs and the accompanying Certificate as exhibits. 11.Upon close of the defence case, and by extension, of the whole trial, I gave the parties leave to file written Submissions. Prosecution Counsel Ms. Muriithi, handed over to me in Court, a copy of her Submissions dated 4/02/2026. However, the same does not appear in the Judiciary Case Tracking System (CTS) online portal. Counsel is advised to ensure the same is so filed in the CTS as now required, otherwise the Submissions might be deemed as not forming part of the record. For the defence, I have only come across the Submissions dated 18/02/2026, filed through Messrs Chepkirui Koech & Associates Advocates, on behalf of the 2nd accused. Prosecution Submissions 12.Prosecution Counsel Ms. Muriithi, after restating the law, submitted that the death of the accused and cause of death were established by way of the post mortem, in respect to which the body of the deceased was identified by his brother. On whether the accused persons committed the murder, she recited the evidence of witnesses, and urged that the accused persons were seen assaulting the deceased, and that the last seen principle recognized in Section 111(1) of the Evidence Act applies and, as such, the accused persons owe an explanation on how the deceased met his death. Counsel also submitted that the fact that the accused persons hit the deceased all over the body, and particularly the head, a vital body part, indicated that they were very deliberate and had “malice aforethought”. 2nd Accused Person’s Submissions 13.Ms. Koech, also after restating the law, submitted that although the death is not disputed, the Prosecution failed to establish the element of proof that the 2nd accused committed the murder, and also the element of “malice aforethought”. She submitted that there is no direct evidence linking the 2nd accused to the death since PW3 who claimed to have seen the fight, did not state that he saw the 2nd accused delivering the fatal blow or killing the deceased, or striking the deceased on the head. Counsel also pointed out that no weapon was recovered, and that PW3 confirmed that the deceased was well and fine when PW3 separated the fight. She contended that the head injury suffered by the deceased could as well have been a result of fall, a theory agreed as possible by the doctor who conducted the post mortem, and that there is therefore a glaring evidentiary gap between the alleged fight that took place at 6.00 pm and the discovery of the body the following morning at 8.00 am. She thus dismissed the Prosecution case as one based on unproven “circumstantial evidence”, and asserted that in this case the chain of causation is broken as there is a time gap between 6.00 pm and 8.00 am. She also urged that the possibility that a third party is the one who killed the deceased had not been ruled out. She further urged that the investigate record reveals weaknesses such as, for instance, no weapon was recovered, no forensic evidence such as DNA, blood or clothing was collected for analysis, no scene reconstruction was conducted, and no other independent witnesses were called despite testimony that other people were present. In conclusion, she submitted that no evidence establishing the existence of “malice aforethought” was presented. She also cited several authorities to support the several points she submitted above. Determination 14.At this stage, the Court is only considering whether the accused persons have a case to answer, which was described by G. Dulu J in the case of Republic vs Joseph Shitandi & Another (2014) eKLR as follows:“A case to answer is a case where if the accused keeps quiet, the evidence of the prosecution should be such that a conviction will result.” 15.The procedure in determining whether an accused person has a case to answer was discussed in the case of Republic vs Samuel Karanja Kiria (2009) eKLR in which J.B Ojwang J (as he then was) stated the following:“The question at this stage is not whether or not the accused is guilty as charged but whether there is cogent evidence of his connection with the circumstances in which killing of deceased occurred. That the concept of prima facie case dictates as a matter of law that an opportunity created by this court for the accused to state his own case regarding the killing. The governing law on this point is well settled ... The Court of Appeal is Criminal Appeal No. 77/2006 expressed that too detailed analysis of evidence stage at no case to answer stage is undesirable it the court is going to put accused on his defence as too much details in the trial court’s ruling could then compromise the evidentiary quality of the defence to be mounted.” 16.The trial Court is however cautioned that at this stage, it should not make definitive findings should it conclude that the accused has a case to answer. In this regard, in Festo Wandera Mukando vs Republic [1980] KLR 103, E. Trevelyan J stated as follows:“...we draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the court and, and an extreme case, may require an appellate court to set aside an otherwise sound judgment. Where a submission of “no case” to answer is rejected, the court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned.” 17.The picture painted by the Prosecution is that the death of the deceased (a deaf and dumb man) arose from a case of friends getting into a fight while drinking together at a local alcohol den. The post mortem report reveals that the cause of death was head injury resulting from a blunt force. PW1 narrated how she was with the deceased at the drinking den up to about 3.00-4.00 pm when she left him healthy and fine still drinking. There is therefore testimony that the deceased was still alive and healthy taking alcohol at the drinking den up to about that time. PW3 testified that he witnessed the deceased and the accused persons fighting along the road, how he intervened to separate them and convinced the 2nd accused to go home, how he left with the 2nd accused leaving the deceased and the 1st accused at the scene, but along the way, the 2nd accused noticed that he had left his cap at the scene and returned to the scene of the fight but PW1 did not accompany him back. The testimony of PW3 was therefore that of an alleged eye-witness, and which if true, placed the accused persons at the scene of crime. Photographs of the body said to have been taken at the scene were also produced. The Prosecution has therefore invoked the “last seen” principle and submitted that the accused persons have to explain how the accused met his death as they were the last person seen fighting or beating him up along the road. Although all these accounts and allegations may still be debunked in the course of the defence case, they do lay a basis for the Prosecution case. 18.With the principles set out earlier, and the facts recounted above in mind, having considered the evidence on record so far and the testimonies of the witnesses, and without delving into the merits thereof, I only state my finding to be that the Prosecution has established a prima facie case to the Court’s satisfaction. Accordingly, I find that each of the 2 accused persons has a case to answer. They are both therefore placed on their defence. 19.The accused persons are therefore informed of their rights under Article 50(2)(i)(j)(k) of the Constitution and also under Section 306(2) of the Criminal Procedure Code to address the Court. Accordingly, they are informed that they have a right to address the Court either personally or by their Advocate and to give evidence on their own behalf or to give unsworn statements, and to call witnesses in their defences. The Accused persons are therefore placed on their defence. DELIVERED, DATED AND SIGNED AT ELDORET THIS 22ND DAY OF MAY 2026……………..……..WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:Both accused personsMs. Koech for the 2nd AccusedMs. Koech h/b for Mr. Oduor for the 1st AccusedMs. Muriithi for the StateCourt Assistant: Brian Kimathi