Republic v Muteti & 5 others (Criminal Case 6 of 2016) [2026] KEHC 12433 (KLR) (30 July 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CRIMINAL CASE NO. 6 OF 2016** **REPUBLIC .................................................................. PROSECUTOR** **VERSUS** **PATRICK NGUNZU MUTETI ................................. 1ST ACCUSED** **FRANCIS KAIMI BENARD ..................................... 2ND ACCUSED** **DUNCAN MAITHYA MUTETI ............................... 3RD ACCUSED** **NICHOLAS MUTHIANI MUSEMBI ..................... 4TH ACCUSED** **ALFONSE KIOKO NZIOKI ..................................... 5TH ACCUSED** **JOSEPH NDONYE MUTUA alias KANARI .......... 6TH ACCUSED** **JUDGMENT** 1. The six accused persons herein are jointly charged on two counts of murder contrary to **Section 203 as read with Section 204 of the Penal Code**. The particulars are that on the 26th day of December, 2015 at Nzii Farm, Kaseku Village, Ndithini Sub-Location, Masinga Sub-County within Machakos County, jointly with others not before court, murdered Nahason Kasyula (also referred to in the record as Nahason Musyoka) in Count I, and Wambua Masila (also referred to as Masila Wambua) in Count II. 2. All six accused persons pleaded not guilty to both counts. 3. The prosecution called a total of fourteen (14) witnesses in support of its case. 4. **PW1, James Musyoka Kasyula**, the father of the two deceased persons and owner of the homestead, shop and store at the centre of this matter, testified that on the material morning he woke up with his two children, Nahason and Wambua, and proceeded to his shop, where he found people at the shopping centre making noise. The two children and a nephew left the shop to have a motorcycle tyre repaired at Kiathinene market, while he proceeded towards Kithuni Police Post, meeting on the way two persons, Muema and Muthiani, who appeared hostile to him though he had no grudge with them. He returned home to collect his identity card and found a large crowd already at his homestead. Fearing for his life, he fled to Ndithini Police Post. He testified that he identified all six accused persons, whom he knew, among the crowd that had descended on his home. Police officers from Ndithini proceeded to the scene while he remained at the police post, and later escorted him to his farm, where he found that his two children had been killed and his house and shop burnt down. He confirmed that he had a pending assault case against the 1st, 2nd and 3rd accused at Kithimani Law Courts, and that they were in due course arrested while attending that case. 5. On cross-examination, PW1 conceded a long-standing land dispute between himself and squatters in the area, including the 1st, 2nd and 3rd accused, who are brothers. He initially stated that the group he saw, whom he placed at about thirty (30) and described as drunk, did not include the 1st, 2nd and 3rd accused so far as he could see that morning, before later changing his account to state that he did see them, and describing the clothing each wore. He admitted that he did not witness the actual burning or killing, having already fled. On re-examination, he maintained that the crowd was drunk, having been supplied with alcohol overnight by one Elijah Munyao Mutie. **6. PW2, Enock Mule**, a brother of the deceased Nahason, testified that on the material day he was in the company of Nahason and their cousin Wambua, having gone to PW1's shop to collect a motorcycle wheel for repair; finding no spares, they were called back home by PW1. On the way he was accosted by persons he named as Kithu Makau, Kithuli Kanari Kimuyu and Kilonzo Benard, who tied his hands and feet and shoved him into a thicket. Nahason and Wambua were then brought and assaulted en route to the homestead; his mother and his brother's wife were also injured. On arrival, the store and home were set ablaze and the two deceased thrown into the flames. He was himself rescued by a neighbour who hid him in a nearby thicket, and was later treated at Thika Level Five Hospital. He asserted that all six accused participated, attributing to the 1st accused the pushing of the store so that it would fall on the occupants, to the 2nd accused the heaping of bricks upon them, to the 3rd accused the removal of petrol from a motor vehicle, and to the 6th accused, assisted by one Kilonzo, the collection of grass to torch the deceased. His account of the specific role of the 4th and 5th accused was, however, inconsistent, at one point attributing to the 4th accused the injuring of his mother and at another attributing that same act to the 5th accused. 7. On cross-examination, PW2 stated that he did not know the 1st accused, who did not reside in the area. He confirmed the existence of land disputes reported to police on several occasions, and that police stationed some two kilometres away did not respond. He was categorical that upon reaching the scene he became terrified and “got conscious,” that he could hear but not see, and at one point stated that he only heard, but did not see, what transpired. He nonetheless proceeded to describe the clothing worn by the 1st, 2nd and 3rd accused. On re-examination he again described the roles played, without resolving the inconsistency. His own statement recorded at the police station did not mention the 5th accused as one of the attackers at all. 8. **PW3, Dorcas Mutile**, the widow of the deceased Nahason, testified that on the night of 25th December, 2015 she and one Monica Kalekye had gone to fetch the deceased persons, together with Enock Mule and one Muisyo, who were said to be intoxicated; on the way home a scuffle arose with the 4th accused over the use of the tarmac road, and they ran home. The following morning, her mother-in-law (PW4) and Monica went to the market while she remained at home; she was alerted by a girl, Mbula, that relatives were being assaulted, went to the scene, and was met by the assailants, whom she identified as the six accused, demanding to know the whereabouts of her husband, PW1. She was forced to accompany them to the market and sit with her mother-in-law and Monica, and testified that she was able to identify the 6th accused as one of those who assaulted them there. Her husband and cousin were later brought in by unknown persons and the group proceeded home, where a crowd of about seventy (70) people had gathered and demolished five houses before setting them ablaze. 9. PW3 gave two materially different accounts, at different stages of her testimony, of the specific role played by each accused. In examination-in-chief she stated that the 1st accused merely stood by and did nothing, that the 2nd and 3rd accused demolished her house, that the 4th accused also demolished the house, that the 5th accused did nothing, and that the 6th accused participated in the demolition. She subsequently gave a different version, stating instead that the 1st accused helped put the deceased into the store to burn, that the 2nd accused torched the house and struck the deceased with stones, that the 3rd accused punched the deceased onto the fire, that the 4th accused struck the deceased with stones and participated in the burning, that the 5th accused torched the store, and that the 6th accused assaulted the deceased using stones. On cross-examination she was unable to recall what any of the accused were wearing. 10. **PW4, Catherine Musyawa Musyoka**, PW1's wife and the mother of the deceased persons, testified that on the material morning she took breakfast with her sons Nahason and Enock and their wives, Monica and Dorcas (PW3), together with Wambua, before leaving for the market with Monica. On the way they met a large crowd, among whom she identified all six accused. She followed the crowd to establish its purpose, was ordered to lie down and asked the whereabouts of her sons, and informed the crowd that they had gone to the market. Her sons were later brought, tied hand and foot, and beaten, the 4th accused kicking Wambua in the stomach; the group was escorted home, where her son and his cousin were placed in the store, which was set alight; Enock Mule was untied and released as he was said not to be from the area, while she herself was seized, thrown down a nearby valley, and struck with a stone. 11. PW4 attributed the following specific roles to the accused: the 1st accused struck the deceased with bricks; the 2nd accused torched one of the houses; the 3rd accused struck Enock Mule with a stick; the 4th accused struck the second deceased in the stomach; and the 5th and 6th accused together struck the first deceased. She confirmed the existence of a land dispute between the accused persons and her husband, PW1, and that the deceased used to drink and were, in the community's view, troublesome. 12. **PW5, Bernard Wambua Kasyula**, and **PW6, No. 68899 PC Joel Kasyuko Musyoka**, a brother of the deceased, testified to identifying the bodies of Wambua Masila and Nahason Kasyula respectively for purposes of the post-mortem examination. PW6 further testified that he received a report while off duty that his brothers had been attacked and lynched, and that he attended the mortuary in the company of a police officer, where, notwithstanding the injuries and burns sustained, he was able to identify the two bodies. 13. **PW7, No. 96399 Alex Wambao**, a police officer attached to Masinga Police Station, testified that on 1st February, 2016 the Assistant Chief (PW12) and the Chief (PW13) reported to Cpl Paul Nduati (PW8) that suspects in the murder had been traced. He proceeded with the two administrators and arrested two suspects pointed out to him for the first time, whom he identified as the 2nd and 4th accused. They were escorted to Ndithini Patrol Base and later collected by CID officers from Matuu Police Station. 14. **PW8, No. 62212 Cpl Paul Nduati**, in charge of Ndithini Patrol Base, testified that he received a report that PW1's home had been torched and dispatched officers who confirmed that two persons had been burnt and killed. He thereafter led further officers to the scene, where a motor vehicle had also been torched, one family member had been badly injured, and villagers were present; the injured person was taken to Ndithini Mission Hospital. On cross-examination, he confirmed his awareness of the pending assault case at Kithimani Law Courts in which the 1st, 2nd and 3rd accused were charged and PW1 was the complainant, and conceded that he could not say who had committed the alleged acts. 15. **PW9, Dr. Muli Simon Kioko**, conducted the post-mortem examinations on both deceased persons. On Wambua Masila, he found a fractured skull on the left temporal region, a decapitated left forearm, dislocation of the right elbow, a decapitated right forearm, fractures of the right knee and left distal leg, a further fracture of the right lower limb, dislocation of the right knee, and burns over the entirety of the body. He formed the opinion that death resulted from cardio-pulmonary arrest due to multiple organ failure secondary to severe, generalised blunt-force trauma from beating with a blunt object, and that the deceased was already dead by the time he was set alight, the decapitations having resulted from the burning. On Nahason Kasyula, he found a fractured occipital bone with multiple fracture lines and intracranial haemorrhage, the hands bound with rope, burnt phalanges, and superficial burns to the back and chest; he opined that death resulted from cardio-pulmonary arrest due to brain contusion caused by blunt head trauma. In both cases, no smoke was found in the air passages, confirming that death preceded the burning. 16. **PW10, No. 92115 Cpl Samuel Kamau**, attached to the DCI Kangundo Crime Scene Section, testified that on 11th February, 2016 he received an exhibit memo from Sgt Gladwell Mburu (PW11) and processed eighteen photographs of the scene, comprising general views of the demolished houses, the burnt motor vehicle, motorcycle and posho mill, and the remains of a burnt human body, producing a certificate under Section 78 of the Evidence Act. He conceded that he had not visited the scene himself and had not taken the photographs, which had in fact been taken by one Pc Korir, and that he could not confirm precisely where or when each photograph was taken. 17. **PW11, Sgt. Gladwell Mburu**, the Investigating Officer, testified that the matter was reported to her on 28th December, 2015. She proceeded to the scene in the company of other officers and found the burnt vehicle, houses, motorcycle and shop; she recorded witness statements with the assistance of the area Chief, and the injured, namely PW6, PW4 and PW3, were taken for treatment. She collected ashes from the burnt store and prepared an exhibit memo dated 11th February, 2016 for the government chemist. She confirmed that the 1st, 2nd and 3rd accused were arrested at Kithimani Law Courts while attending an unrelated case, and that the 4th, 5th and 6th accused were arrested with the assistance of the area Chief. She confirmed the existence of a land dispute and other long-standing differences between the families of the accused and the deceased. 18. On cross-examination, PW11 conceded that the police took long to respond, that a crowd of approximately 200 people had gathered, that the arrests were effected some three weeks after the incident, that all the witnesses were family members of the deceased or police officers with no independent witnesses called, and that neither the area Chief nor the neighbours had their statements recorded. She confirmed that a list of names had been narrowed to eleven suspects, of whom several remained at large. She further confirmed that neither the photographs taken by Pc Korir nor the flash disk on which they were stored were ever produced as exhibits. 19. **PW12, Daniel Kiio Mbithi**, the then Assistant Chief of Kiatineni Sub-Location, testified that he received a call at about 1.00 p.m. from one Paul Musembe reporting that two young men were surrounded by a crowd and being severely beaten. He alerted Ndithini Police Post and the area Chief (PW13), and they proceeded together to the scene, diverting to an alternative route upon seeing smoke and hearing an explosion and encountering a crowd heading towards them. They found four houses, a store and a motor vehicle burnt, and two bodies burnt in the store; PW1's wife (PW4) was in shock and was assisted to safety by PW3. He confirmed that he did not see any of the accused at the scene. He further testified that on 1st February, 2016 he, together with the Chief and three police officers, proceeded to Kavilila trading centre, where two suspects, whom he named as Kioko Nzioka and Muthiani, were arrested and escorted to Ndithini Police Station. 20. **PW13, Makau Mwangangi**, the Area Chief of Ndithini Location, corroborated PW12's evidence in all material respects, having accompanied him to the scene, and confirmed that he did not see the accused there notwithstanding that he knew them well and regarded the 1st to 3rd accused, in particular, as persons who had never previously exhibited any wrongdoing and who assisted in community affairs. 21. **PW14, Dr. Denis Onyango**, the Government Analyst, testified that on 12th February, 2016 he received samples of burnt debris and soil from PW11, which he examined and found to contain traces of petrol, indicative of a fire accelerant. He conceded that the debris analysed was soil, and that his findings did not confirm the presence of any human remains in the sample examined. 22. At the close of the prosecution's case, this Court (Muigai, J.) delivered a ruling on 12th October, 2023 on whether the accused had a case to answer. Applying the test in *Anthony Njue Njeru v Republic*, Court of Appeal No. 77 of 2006, *Ramanlal Trambaklal Bhatt v R* [1957] EA 332, and *Ronald Nyaga Kiura v Republic* [2018] eKLR, the Court held, having reviewed the totality of the evidence and documentary exhibits on record, that the prosecution had “proved a prima facie case that warrants the accused person to be placed on his defence.” The matter was thereafter mentioned for directions. 23. All six accused persons opted to give sworn evidence, and two additional witnesses testified in support of the defence. 24. **DW1, Patrick Ngunzu Muteti**, the 1st accused, testified that on the material day he was with his brother-in-law at Ndithini when he heard people saying that houses had been burnt. He denied being part of the crowd or participating in the burning, stating that it was his brother, the 2nd accused, who had the land dispute with PW1, and that he himself did not know PW1 or his children. He testified to the broader land dispute in the family, explaining that his family had employed a labourer, Kimanzi, who was assaulted by the deceased's family, precipitating a confrontation and the subsequent charges against the 1st, 2nd and 3rd accused at Kithimani Law Courts (Criminal Case No. 1365 of 2015), where they were arrested on 16th January, 2016 while attending that case. He produced the charge sheet in that matter as Dexh-1. 25. **DW2, Francis Kaimi Bernard**, the 2nd accused, testified that he knew PW1 well as a neighbour, and that on 25th December, 2015 he was attacked by four people, including two of PW1's sons, Nahason and Muisyo, and thereafter reported the matter and sought treatment. The following day, he went to Kavilila Market on hearing that people were being assaulted there, but did not proceed to PW1's home. He also confirmed having seen the 4th accused injured by PW1's children. He produced an OB extract as Dexh-2 confirming his report of the earlier assault at Ndithini Police Post. 26. **DW3, Duncan Maithya Muteti**, the 3rd accused, confirmed that the 1st and 2nd accused are his brothers, and testified that he was in Athi River on the material day, celebrating with friends, and only learnt of the incident afterwards, returning home some days later to find the 2nd accused injured. He confirmed the family's land dispute with PW1, and stated his belief that he had been implicated because of a vendetta arising from the arrest of his relatives. 27. **DW4, Nicholas Muthiani Musembi**, the 4th accused, testified that he was attacked and injured by unknown persons on the night of 25th December, 2015, and that on the material day he first reported the matter at Mbitini Police Post before proceeding to Kakuku Ithanga for medication, being unaware at the time of the events at PW1's homestead. He produced police notes as Dexh-1, treatment notes as Dexh-2, and a photograph of his injuries as Dexh-7. 28. **DW5, Alfonse Kioko Nzioki**, the 5th accused, testified that he knew PW1 well, PW1 having bought land adjoining the area, which had given rise to squabbles with persons who had long settled there. He stated that on the material day he worked on his farm until evening, when he proceeded to Kavilila shopping centre at about 5.00 p.m. to buy phone credit, found the centre unusually deserted, and learnt from a shopkeeper of the events at PW1's shop and homestead earlier that day. He denied visiting the homestead or the shop. 29. **DW6, Joseph Ndonye Mutua**, the 6th accused, testified that he knew PW1 and the deceased persons but denied committing the offence, stating that he had been sent by his mother to fetch vegetables for the family shop on the material morning. 30. **DW7, Simon Mutisya Mutinda**, a 70-year-old farmer and village elder from the area, testified that he knew all the accused persons and one of the deceased as neighbours from the same locality. He recounted that he had, prior to the incident, been assaulted by one of PW1's sons, Muisyo, while inquiring after his own son, and that PW1 had subsequently failed to honour a promise to assist him with medical treatment and had taken his treatment papers. He testified that PW1's family was not well regarded in the area, being seen as having covered up their children's misconduct, and that people were relieved when the family relocated after the incident. On the material day, he saw the 1st and 2nd accused at Kavilila Market and not at PW1's home. He testified that it was as though the whole village had descended on PW1's homestead out of accumulated resentment, but stated candidly that he could not say whether any of the accused persons took part in what happened there, as he did not go to the scene himself. 31. **DW8, Susan Kanini Mumbi** (also recorded as Karini Muli), the mother of the 6th accused, testified that she sent her son to fetch vegetables from their garden at about 9.00 a.m. on the material day, that he travelled by bicycle as the distance was far, and that he returned at about 1.00 p.m. with the vegetables. She conceded on cross-examination that she had no means of communicating with him between 9.00 a.m. and 1.00 p.m., as neither of them had a phone, and that she therefore could not account for his whereabouts or activities during that specific window. 32. At the close of the defence case, written submissions were filed by the State, dated 15th December, 2025, urging conviction of all six accused persons; and, separately, on behalf of the 1st, 2nd and 3rd accused, the 4th and 5th accused, and the 6th accused respectively, each urging their acquittal on the ground that the prosecution had failed to prove its case beyond reasonable doubt. **Analysis and Determination** 33. I have considered the evidence tendered by the prosecution and the defence, together with the submissions filed by the State and on behalf of the accused persons. The burden of proving an accused person's guilt beyond reasonable doubt lies throughout with the prosecution and never shifts to the accused. 34. The accused persons are charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. The elements to be proved are set out consistently in the authorities relied on by both the State and the defence: ***Republic v Mohamed Dadi Kokane & 7 Others*** [2014] eKLR; ***Republic v Pius Kikungu John*** [2019] eKLR; ***Anthony Ndegwa Ngari v Republic***, Court of Appeal (Nyeri) Criminal Appeal No. 352 of 2012, [2014] eKLR; and ***Republic v Daniel Musyoka Muasya & Others***, Mombasa HCCR No. 42 of 2009. These require proof of ; 1. ***the fact and cause of death;*** 2. ***that the death resulted from an unlawful act or omission of the accused, the actus reus; and*** 3. ***that the act or omission was committed with malice aforethought, the mens rea.*** 35. On the fact and cause of death, PW9 documented severe, multiple blunt-force injuries to both deceased persons, including a fractured skull and multiple limb fractures in the case of Wambua Masila, and a fractured occipital bone with intracranial haemorrhage in the case of Nahason Kasyula, and confirmed in both cases that no smoke was present in the air passages, meaning each deceased was already dead when set alight. I am satisfied, that both deceased persons died of cardio-pulmonary arrest caused by severe blunt-force trauma inflicted before they were burnt, and not by the burning itself. 36. The more difficult question is whether the prosecution proved, to the required standard, that it was these six accused, rather than other members of an admittedly large mob variously estimated at between thirty and three hundred people, who inflicted those injuries. The State submits that PW1, PW2, PW3 and PW4 gave direct eyewitness evidence placing each of the six accused at the scene and performing specific acts. I have given this submission careful weight, given the detailed character of the accounts furnished by PW2, PW3 and PW4 in particular. 37. Close scrutiny of that evidence shows that PW2, PW3 and PW4, the only witnesses who purport to describe individual conduct, give three materially different, and in places directly contradictory, accounts of what each accused did. As to the 1st accused alone: PW2 says he pushed the store so that it would fall on the occupants; PW3, in examination-in-chief, says he stood by and did nothing, before later, in the same testimony, saying he helped put the deceased into the store to burn; and PW4 says he struck the deceased with bricks. As to the 2nd accused: PW2 says he heaped bricks; PW3 gives two versions, that he either helped demolish the house or torched it and struck the deceased with stones; and PW4 says he torched one of the houses. As to the 3rd accused: PW2 speaks of removing petrol from a vehicle; PW3 speaks, in her two versions, of demolishing the house or punching a deceased person onto the fire; and PW4 says he struck Enock Mule, a surviving witness, with a stick. Similar divergences arise as to the 4th, 5th and 6th accused, with PW2's own account inconsistent as to which of the 4th or 5th accused injured his mother. No two of these three witnesses agree on what any single accused person did. 38. This is not a minor discrepancy. The very question the prosecution must answer, whether a given accused stood by and did nothing, demolished a house, struck a person with a weapon, or helped place a living person into a fire, goes to the core of what distinguishes participation in an unlawful killing from mere presence in a crowd. Where witnesses relied on to prove individual participation cannot agree, even amongst themselves, on so fundamental a question, that evidence cannot meet the standard required before identification evidence can sustain a conviction, namely that it “should be watertight to justify a conviction”: see ***R v Eria Sebwato*** [1969] EA 174, applied in ***Kimotho Kiarie v Republic***, Criminal Appeal No. 93 of 1983, [1984] KLR 739. 39. I bear in mind, further, that PW1, PW2, PW3 and PW4 are not independent witnesses. They are, respectively, the father, brother, widow and mother of the deceased persons, a single family with an acknowledged and litigated land dispute with the families of the 1st, 2nd and 3rd accused, and with a pending assault case at Kithimani Law Courts in which PW1 was himself the complainant against those three accused. It is deponed that, it was while attending that case that the 1st, 2nd and 3rd accused were arrested for the present offence. By contrast, the first independent responders to the scene, PW8, PW12 and PW13, all testified that they did not see any of the accused there, notwithstanding that PW12 and PW13 in particular knew the 1st to 3rd accused personally and regarded them as persons of previously unblemished conduct. No identification parade was conducted, though some witnesses were seeing some of the accused for the first time, and no description of the accused was given to any person in authority at the earliest opportunity: see ***Republic v James Ogwang Alicho & Another*** [2018] eKLR. 40. The manner of the investigation and arrests compounds these concerns. PW11 testified that eleven suspects were ultimately named out of many put forward by the family and the area Chief, several of whom remain at large. PW7 testified that he arrested the 2nd and 4th accused, pointed out to him at Kavilila; PW12, however, gave a different account, testifying that he was involved in arresting, at the same trading centre, the 5th accused and the 4th accused. These two accounts cannot both be correct as to which two persons were arrested together on that occasion, and no witness reconciled them. Nor were the photographs taken at the scene, or the medium on which they were stored, ever produced as exhibits, though evidence was given that they were taken. These are the kind of investigative shortcomings that led the courts in ***Republic v Patrick Kyalo Munywa & Another*** [2019] eKLR, to find presence “at the scene of crime is not enough to infer guilt” in the absence of credible evidence linking the accused to the specific unlawful act. 41.I turn to the individual defences. The 2nd accused's account that he was attacked by two of PW1's own sons the day before the incident, and reported and was treated for that assault, is corroborated by an independent OB extract (Dexh-2). The 4th accused's alibi, that he was assaulted by PW1's children on the night of 25th December and was seeking treatment on the material day, is corroborated both by documentary evidence (police notes, treatment notes and a photograph of his injuries) and by the independent testimony of DW7, a village elder with no evident stake in the outcome. This is the most fully corroborated of the alibi defences raised. The 5th accused's account of a day spent farming, followed by an evening visit to a shopping centre, was not shaken in cross-examination, though it lacks independent corroboration. The 6th accused's alibi, corroborated by his mother, DW8, is the weakest of the four: DW8 conceded she had no means of communicating with her son between 9.00 a.m. and 1.00 p.m. on the material day and could not, in truth, account for his whereabouts throughout that window. The State submits that this alibi was raised late and should carry little weight. It is settled law, however, that an alibi, however late raised, must be given full consideration, and that the burden of disproving it beyond reasonable doubt rests on the prosecution throughout: see ***Kimotho Kiarie v Republic*** [1984] KLR 739; an alibi need not be proved,it is enough that it introduces “a doubt that is not unreasonable.” I find that the 6th accused's alibi, though the least persuasive of the four, was nonetheless not disproved by the prosecution to the required standard, given the same identification difficulties affecting the case against him. 42. The 1st and 3rd accused persons raised no documentary alibi, but each gave an account placing himself away from the homestead: the 1st accused at Kavilila Market, corroborated by DW7 having seen him there, and the 3rd accused in Athi River, uncorroborated save by his own testimony. An accused person who raises such a defence assumes no burden of proving it; it is for the prosecution to disprove it beyond reasonable doubt:. Given the state of the identification evidence discussed above, I am not satisfied that the prosecution discharged that burden as against either the 1st or the 3rd accused. 43. I have considered the State's submission, grounded in **Section 206 of the Penal Code** and the case of ***Republic v Okwara***, **Criminal Case No. E015 of 2023, [2024] eKLR,** that the manner of the killing, the dragging, tying, beating and eventual burning of two living human beings, self-evidently discloses malice aforethought on the part of whoever authored those acts, the elements of which “relate to intention and knowledge.” I do not doubt that submission as a general proposition. It does not, however, relieve the prosecution of the anterior burden of proving, to the required standard and in respect of each individual accused, that he was one of the persons who authored those acts, whether as principal or through a common intention shared with the actual perpetrators. Given my findings on identification above, that anterior burden has not been discharged, and the question of malice aforethought does not fall to be determined individually against any of the six accused. 44.I have given full weight to the gravity of this case and to the State's submission that fourteen witnesses, extensive documentary exhibits, and a post-mortem record of severe and deliberate violence together warrant conviction. A perpetrator, or perpetrators, of an offence of this brutality ought unquestionably to be brought to justice. However, Sections 109 and 110 of the Evidence Act place the burden on the party who asserts a fact to prove it, and I must be satisfied beyond reasonable doubt not merely that a grave wrong was done, but that it was these six accused, individually, who did it. Having regard to the irreconcilable inconsistencies among the identifying witnesses as to the specific conduct of each accused, the fact that these witnesses are drawn exclusively from a single family with an acknowledged and litigated dispute with the accused's families, the absence of any identification parade or independent corroboration placing any accused at the scene, the material inconsistency in the prosecution's own account of the arrests, and the alibi evidence, corroborated to varying degrees, tendered by the 2nd, 4th, 5th and 6th accused, I find that the prosecution has not proved beyond reasonable doubt that any of the six accused persons committed the unlawful acts that caused the deaths of Nahason Kasyula and Wambua Masila. 45. Accordingly, I find each of the six accused persons, namely Patrick Ngunzu Muteti, Francis Kaimi Benard, Duncan Maithya Muteti, Nicholas Muthiani Musembi, Alfonse Kioko Nzioki and Joseph Ndonye Mutua, not guilty on both counts of murder contrary to **Section 203 as read with Section 204 of the Penal Code,** and I hereby acquit each of them. It is so ordered. **Judgment 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. Odero for 6th Accused person Mrs Nyaata for 4th & 5th Accused persons Mr. Kyalo for 1st, 2nd and 3rd Accused persons All 6 Accused persons Miriam – Court Assistant/Interpreter