https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11435

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **HCCRC NO. E003 OF 2024** REPUBLIC ……………………………………………………..PROSECUTOR **VERSUS** SIMON KIMILU MUTIE ………………………………..…….…..…ACCUSED **JUDGMENT** 1. Simon Kimilu Mutie was charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars were that on 8/2/2024 at Kitango Location, Kathanga village, Mukea Sub-County, Makueni County he murdered Nason Mutie Kiilu. 2. On 20/3/2024, the accused took plea and pleaded not guilty. 3. The deceased was the elder brother of Pw1 Paulo Muia Kimilu who told the court that on 8/2/2024, he was in the shamba. His wife called him from the shamba. He went there to find her with Saimo – the accused person. Saimo told him that he had found his father having fallen down on the ground. Pw1 told Saimo to show him, he (Saimo) took him to their home. Pw1 said he noted that there were signs of a struggle outside, and there was some blood on the ground outside the kitchen. Then he saw the brother inside his house lying on his back – with blood at the mouth. He was of the view that he had died outside and had been pulled inside the house. 4. On cross-examination he said that the deceased’s home was around 200 metres from his own home. He said he was aware that Simon and his father “*walikuwa wanavurugana*” but he had not seen them fight. 5. He said that Simon had some blood on his hands when Simon came to his home had both his and his father’s mobile phones; that Simon said he found his father dead and had taken his father’s phone from his pocket. 6. Pw2 a minor 12 year old FMM and sister to the accused testified how on the material morning she left home for school – after her father had given her tea. She went to school and came home at 4:00 pm. She found the village in her in her home praying. Her aunt took her with her – she said when she left home her father was ok. 7. On cross-examination she said she knew that Simon had ‘done that thing’ because every day he quarreled with their father – she said she had not seen them fight but that one time her father had told her that Simon had assaulted him. She said her father never took alcohol. 8. Pw3 Regina Muendi Muia testified that on 8/2/2024 she was at home when Simon – the accused went and told her that he had come home and found his father missing – the main house door was open – but his father was not there – but when he went to the kitchen he found him lying on the kitchen floor. She asked him whether he was talking – the accused told her – “*hata hayuko, amekufa*” – then she called Pw1, and she followed them. They found that he was dead. 9. She too said she had seen blood outside the kitchen. 10. On cross-examination she denied that she and her husband wanted the accused jailed so that they could control the property of the deceased. She told the court that deceased had 2 wives that the 1st wife had passed on, mother of accused was the 2nd wife – that deceased had other children – including a daughter at university. She said deceased never took alcohol. 11. That the accused had at form 4 B+ but was just at home selling his father’s things. That the 1st wife had 4 children and the accused had 2 sisters. 12. Pw4 James Musyoka Linge a Mchungaji with New Destiny Believers and Prayers Centre said the deceased was his neighbor. On the material date 8/2/2024 he heard quarrels between the accused and his father – the father was telling the son – “you want to tell me how we are going to live in this my home?” He did not hear the response from the son (accused) but he heard the father say – “*unataka kunikalia mimi*?” he did not hear a sound. 13. Later he saw the accused come to their home to call his father and they left together. When he followed his father, he went found Pw1, Pw3 & others – his father had gone to report to the police station that the father of the accused was dead. He said he told the police what he had heard – he said it was *kawaida* for the two father and son to quarrel. He said he could see the movements on the home of the deceased – he could see what was going on there. 14. Pw5 Peter Linge Kaleli the father to Pw4 testified that deceased was the neighbor. He said on 8/2/2024 the accused went to his home around 1:00 pm – He told him to go with him to his home – that when they got there that Simon sat on a stool outside then told the Pw5 to enter the kitchen and see for himself. 15. He said he opened the door and saw Nasion lying on the floor. He said he saw that he had been stabbed with a sharpening file on the neck behind the ear, he said he was lying on the file – and that there was a big stone there. He said the accused was just seated outside – “*anabonyeza simu yake tu*” like he did not care at all. 16. He said Nasion was already dead. He said there was blood outside, one of deceased’s shoes was there with blood, - he said he concluded that the boy was the killer and he went and reported to police. 17. On cross-examination he said he had heard the quarrels. That according to him the deceased had been stabbed. He said he did not know that Simon was texting the sister. He said that his home was around 40 metres from the home of the accused – and could not see into the home. 18. Pw6 Dr. Everlyn Kitungo conducted the postmortem on 15/2/2024. She produced the postmortem report. She testified that she noted the following; Externally * Embalmment site noted on the right thigh. * Racoon eyes noted * Bruise noted on the head – 6cm length * Bruise noted around the right shoulder. * Dried blood noted on the right hand. * Central cyanosis noted. * Pale body noted. Internally Respiratory System * Large muscle hematoma noted on the pectoralis major * Broken right clavicle noted. * Broken ribs 1, 2, 3 on the right rib cafe. Cardio-vascular system * Large pericardial hematoma noted around 500nb. * Ruptured aorta noted. Digestive system * pale abdominal organs noted. Head * Small subdural hematoma noted around the occipital rejoin. The cause of death was Cardiovascular collapse secondary to Aortic rupture following blunt force trauma. 1. On cross-examination she told the court that the injury could not have been caused by a fall – and if a fall, it would have to be from a high height. She said the deceased had a normal liver. 2. Pw7 No. 105831 – PC Sarah Kagendo was the Investigating Officer. She was attached to DCI Mukaa at the material time. That when she arrived at the scene on 8/2/2024 she found Police Officers from Kitanga police post trying to calm Irate villagers who wanted to lynch the accused person. 3. She told the court the deceased was lying on his back facing up – he had one shoe – she followed the disturbed soil, recovered the other shoe; and a cap. At the fire place one stone of the 3 had been plucked, there was a file (sharpening file) lying where the head was – and it was suspected to be the murder weapon; head had visible injuries – bruises on forehead, back of head – that there was dry blood nose and mouth – the file and stone were collected, body moved to the mortuary and the suspect was taken to Salama Police Station. He was later charged with murder. 4. She produced the hearth stone, the file and a red cap; brown plastic sandal. (PEx 2, 3, 4, 5). On cross-examination she said a murder is determined by proof of death, cause of death as per the doctor’s report. Asked about the intention of the killing she said that the neighbors said that there were constant fights between the accused and the deceased. 5. She said that the fire stone was plucked from the hearth – that the deceased could not have fallen on the stone – If he had fallen on his back there would be no injuries were on chest. She said there was a difference between the injury of a fall and the lying of being hit – that it was not possible that the deceased had fallen down during a scuffle with the accused. She said the accused had plucked the stone hit the father. The head was lying on the file. He said it was possible that there was a scuffle between the deceased and the accused – but she said that a normal fall could not break three ribs – that the stone may have been lifted and dropped on him while he was down. 6. In his defence, the accused person made a sworn statement. He said on the night of 7/2/2024 he was at the home of Kennedy Muendo. He went home on the morning of 8/2/2024 – he made tea – he gave his father tea, and when he took a cup for himself/his father asked him – that he was going to take tea he had not worked for. That he told his father his father he was at work the day before and had just came home. 7. Then his father asked whether he wanted to sit on him – telling him that he was not his home he said he responded in the negative. Then his father went inside, came out with a rungu, that he aimed the rungu at him, that he ducked, lost balance, collided with the door frame which hit his ribs, and he fell on the fire stones where he fell on the back of his head. 8. He said he called his uncle at his wife, Pw3. He went with the uncle, and they found his father in a bad state. He said he sat KCSE in 2021 – got a B+, that his sister sat in 2022, got an A, that his father decided to pay for her college first, and asked him to help at home. He said he never killed his father – their mother died in 2012. 9. On cross-examination he said he was 30 years old – He said he had B+ he was called to Chuka University to study medicine. He told the court that the said the incident happened on 8/2/2024. He said he made tea for himself and his father and his sister. That it was not unusual that he made tea for himself, his father, his sister. That his father was unhappy because the previous day he had left after making tea and had not come back that evening – that his father was 62 years old, that he was too old to make his tea, that he walked with a walking stick, that he did not have any chronic illness. 10. He said he bought things for tea on 6/2/2024, that on 8/2/2024, his sister had already left for school – that she usually went to school at 6:00 am – he said she would have tea on some days, when she was late she would not make tea. He said she had tea without milk, and would not give their father tea. 11. He said on the material date it is his father who threatened to take him somewhere where he would never leave. He said his father said to him that he wanted to sit on him, that that was not his home. He confirmed that these were the same words that Pw4 told the court that he had heard. He denied hitting his father. He denied annoying his father. He said he assisted at home. 12. He closed his case. **SUBMISSIONS** 1. Mr. Makau for the accused filed written submissions. – Citing **Kibera HCCRC E072/2023 R vs Daniel Musau & Anor [2025] KEHC KLR** where the court cited – ***R vs Andrew Moecha Omwenga*** – Counsel lay down the ingredients for murder as set out under section 203 of the Penal Code, and **Andrew Ndegwa Ngari v R [2014] eKLR**. *“The ingredients for the offence of murder as provided in Section 203 of the Penal Code and which therefore the prosecution is in this case required to prove beyond reasonable doubt are:-* 1. *The death of the deceased and the cause of that death.* 2. *That the death was as a result of an unlawful act.* 3. *That the accused was the perpetrator of the unlawful act* 4. *That the accused had malice aforethought.”* 5. He submitted that the prosecution had the duty to prove the charge beyond a reasonable doubt. It was submitted that the death of the deceased was proved. That none of the witnesses saw the incident happen , that their evidence was hearsay and relied on **Chuka HCCRA E004/2020 Peter Nkonge Gakundu v R [2021] KEHC 3757 (KLR)** where the Judge cited **Kinyatti v R [1984] eKLR** on the definition of hearsay. *“Hearsay or indirect evidence is the assertion of a person other than the witness who is testifying, offered as evidence of the truth of that asserted rather than as evidence of the fact that the assertion was made. It is not original evidence.* *The rule against hearsay is that a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of a state fact.* *Hearsay evidence may be admitted if the statement containing it is made in conditions of involvement or pressure and within proximity but not exact contemporaneity as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.* *The evidence of a statement made to a witness by a person who is not called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is not admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.* *Some seemingly hearsay evidence may be proved to be original evidence when the fact that it was made, as distinct from its truth by taking the following into account:-* 1. *Was the statement made or not?* 2. *It is relevant to an issue, regardless of whether it is true or false* 3. *If it affects the credit of a witness by either being consisted or inconsistent”* 4. He also relies on section 3 of Evidence Act – on definition of a fact, and section 63 on oral evidence. He submits that the accused person was merely the suspect and suspicion is not proof and relies on **Mary Gichura v R [1998] eKLR**. *“Suspicion however strong cannot provide a basis for inferring guilt which must be proved by evidence. Before a court of law can convict an accused person of an offence, it ought to be satisfied that the evidence against him is overwhelming and points to his guilt. This is because a conviction has the effect of taking away the accused’s freedom and at times life”* 1. He submitted that the evidence of Pw4 and Pw5 was unreliable for inconsistency. The Pw4 told the court there was fence between her home, and that of the deceased and one could see the goings on there – yet Pw5 told the court that there was a fence, that one would not see – that Pw4 said it was at 1:00 pm when he heard the quarrel, Pw5 that it was 8:00 am when he heard the quarrel; that cross-examination of Pw4 revealed his charcoal making criminal enterprise hence he was not a credible witness. 2. He relied on section 154 of the Evidence Act – *“When a witness is cross-examined he may, in addition to the questions hereinbefore referred to, be asked any questions which tend:-* * 1. *To test his accuracy, veracity or credibility* 2. *To discover who he is and what is this position in life.* 3. *To shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture”* 1. Counsel submitted that the accused person’s defence stood up against the case for the prosecution. That the prosecution failed to prove beyond a reasonable that the deceased died from unlawful cause of death. 2. That his testimony that deceased died from an accident was sufficient doubt – citing an American research study dubbed ***“Traumatic Aortic Injuries*** authored by Harper C. Collier S. and Slesinger T. posted on the American National Library of Medicine website <https://www.ncbi.nlm.nih.gov/books/NBK555980/#:~=Blunt%20Trauma,pr event%20free%20rupture%20and%death>.” 3. He submits that the study proves that a serious fall could result in a blunt traumatic aortic injury – as one suffered by the deceased. On what amounts to proof beyond a reasonable doubt – counsel relied on **R vs Daniel Charo Mungatana [2022] KEHC 11719 (KLR**). the court stated *“It is therefore trite that the state should prove its case so strongly that the evidence leaves the trial court with the highest degree of certitude based on such evidence. It is to be noted that the concept of reasonable doubt in our criminal justice system is not based upon a sympathy or a whim or prejudice or caprice or sentimentality, jelly fish or a judge or Magistrate seeking to convict or acquit another human being of the commission of the offence, it is an approach to hold the state to the highest standard of discharging its burden of proof in criminal cases beyond reasonable doubt, it is not a conjecture or a fanciful doubt. It is based on admissible and material evidence to dissuade the trial court form acquitting an accused person.”* 1. On issue of malice aforethought - as defined by section 206 of the Penal Code it was submitted that the accused person had admitted to disagreements with his father. However, he had no reason to kill his father, that his father just had an accident. He cited section 9(1) of the Penal Code. *“Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.”* 1. He submitted that though the prosecution did not need to prove motive to prove charge of murder See **R vs Richard Mbaabu [2014] KEHC 8448 (KLR)** however that, section 9(1) of the Penal Code was still applicable. 2. For the prosecution it is submitted that the prosecution had established beyond a reasonable doubt that accused was with the deceased on 8/2/2024, that the accused had a frosty relationship with his father, and they would quarrel quite often. 3. Prosecution cited ***R vs Edan E001/2023 [2025] KEHC 15124 KLR*** that the court had a duty to subject every piece of evidence to scrutiny to confirm whether the elements of murder had been proved. 4. That the only thing for the court to determine would be whether the accused person committed the unlawful act. That the accused was placed at the scene and the time of the offence, he was with his father, that they were heard quarrelling and the body of the deceased was found soon thereafter lying on the floor lifeless – that while no one saw the accused assault his father, the circumstantial evidence pointed fully at him and leads to the inescapable conclusion that it is the accused who assaulted the deceased. 5. In the case of *Sawe V/S Republic (2003) KLR 364* it was held as follows: *“The inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstance weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this reference from the facts to the exclusion of any reasonable hypothesis of innocence remains with the prosecution. It is a burden that never shifts to the accused”* It is submitted that the accused caused the death with malice aforethought. **ANALYSIS AND DETERMINATION** 1. I have carefully considered the evidence on record and the submissions by both the defence and the state. 2. The only issue for determination is whether the prosecution has established beyond a reasonable doubt that the accused unlawfully killed his father with malice aforethought. 3. The ingredients of murder are settled as provided for by Section 203 as read with Section 206 of the Penal Code. It is not in dispute that the deceased died. It is not denied that the accused person is the only person who was home with his father. 4. The accused person confirmed that his father quarreled him that morning because he had left home the previous day and had not come that night, only came in the morning to make and have tea. That his father quarreled him, and asked him whether he intended to “sit on him” or to rule him in his own home. 5. The evidence is that the accused did not respond. It appears to me that the accused person was angered by the words uttered by his father. 6. There is evidence that accused had reason to be angry with his father. When he passed exams with a B+, was admitted to university – but his father chose his sister over him, sending her to college while leaving him to help at home with manual jobs, including doing casual jobs to support him yet he appeared not to appreciate the “sacrifice” the accused had made . His young siblings testified that accused person often quarreled with their father and that at one time their father told her that accused had assaulted him. 7. The witnesses who arrived at the scene noted that there had been a struggle outside the kitchen and there was blood, one shoe of the deceased and his cap. 8. The accused person’s explanation was that his father while threatening him with a rungu lost balance and hit into the door frame and that that is how he broke his ribs . It is noteworthy that he never told any of the witnesses this. He did not tell his uncle, or the PW5 . 9. The deceased had multiple injuries bruise on forehead, bruise on right shoulder, fracture of the right clavicle, at the ribs on the right were broken, small subdual hematoma occipital were these injuries. Are these commensurate with person hitting themselves on a door frame or a person who was hit or pushed to forcefully fall against a blunt object? 10. The witnesses who came drew conclusions that accused may have stabbed him father with a sharpening file but there was no stab wound. 11. The pathologist said if it was fall it would have to be from a height. The injuries are therefore not consistent with a fall. 12. The accused person had built up anger. He confirmed that his father quarreled him that day and the quarrel was heard by PW4 must have erupted when his father uttered the words to him. It is noteworthy that he did not respond to the quarrels that day. 13. What the evidence presents is that the accused was the only one with his father at home. There was a disagreement. The next thing his father is lying down dead with broken ribs and a fractured shoulder. There was a scuffle out of which the deceased sustained the injuries. The accused must have pushed his father, who he said walked with a stick so that the impact with the blunt object was that forceful that he broke his ribs. 14. The evidence does not indicate that the accused intended to kill his father. That is explained by the actions he took after the incident. He locked him in the kitchen, then he went and called out people to come. 15. In the circumstances I find that in the heat of their quarrel the accused instead of responding, he pushed his father causing him to collide with whatever the blunt object was which caused him the injuries and the fracture ribs leading to the aortic rapture that caused his death. 16. In the circumstances I find the accused caused his father’s death but there was no malice aforethought. I dismiss the murder charge I find him guilty of manslaughter Under 202 as read with Section 205 of the Penal Code. The accused is convicted accordingly. **JUDGMENT** dated, signed and delivered at Eldama Ravine (Sub-Registry) this 24th July 2026. **MUMBUA T MATHEKA** **JUDGE** **In the presence of**:- CA Chrispol Ms. Musango for state Mr. Makau for the accused Accused present