https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12885

**** **REPUBLIC OF KENYA** **HIGH COURT OF KENYA** **CRIMINAL DIVISION -NAIROBI** **REPUBLIC –VS- NICHOLAS MWENDWA MUTUKU** **HIGH COURT CRIMINAL CASE E030 OF 2020** **JUDGMENT** **INFORMATION** 1. The Accused Person herein **Nicholas Mwendwa Mutuku** was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. Particulars of the offence being that on the night of 26th September 2020 at Mihango Estate Kayole Subcounty within Nairobi the Accused murdered **Kelvin Maundu*.*** The accused pleaded not guilty. **PROSECUTION EVIDENCE** The evidence was taken/recorded by Hon Ogembo J on/from 28/3/2022 1. **PWI MARTIN MWENDA MUTUA.** a resident at Mlolongo doing casual jobs stated that on 27/9/2020 at about 7:00 he was in his house in Kayole. He lived in in the same Plot with the accused person. It was a storey building and his room was on 3rd floor while for the accused was on 2nd floor. It was a single room. He found Nicholas with 2 others, Kelvin Maundu and another Mzee he knew as ‘‘Fathe’'. He found Kelvin had burnt on the face and he was seated on the seat. Nicholas was sleeping on the mattress. ‘‘Fathe’e’ was also seated on a seat 2. Kelvin was burnt on the face and chest. When he saw him, he told him “bro:, nipeleke hospitali walikuwa wanataka kunimaliza.” He went back to his room he dressed and he went back to the deceased. Then all the 3 of them took him to Mama Lucy Kibaki Hospital and when they reached the Hospital, PW1 called his elder sister who came with his other sister and brother. The sister called Ngina came with his brother Denis. He said that he stayed with them for a short time and left, him with Ngina, Denis and another sister. ‘‘Fathe’' and Nicholas had left earlier. 3. On the same day at about 2:00pm, his cousin known as Jeff called and told him that Kelvin had passed away. PW1 went to Mama Lucy Hospital where he found them and they all went to Kayole Police Station and reported and they wrote their statements. Nicholas was the Accused person before Court that today. Kelvin had stayed with Nicholas the Mwendwa for about 1 month. 4. In cross examination he said that he had known the Accused Person and deceased for a long time but ‘‘Fathe’' was known to him for about 1 month. He had stayed in the flat for 4 years. He stated that both the Accused and the deceased were his Cousins. When he went to the Accused’s house the door was not locked. He did not know why deceased did not go to his house if he needed his help. As they took the deceased to the hospital he never spoke. He only gave him his sister's number when they reached to the hospital. 5. **PW2 No. 235260 Inspector Daniel Musembi** a Crimes Scenes Investigator testified that on 28/9/2020 at around 8:00am, while he was at Kayole Division, he accompanied PC Wachira to a scene at Mihango stage and thereafter to Mama Lucy Hospital. At the scene at Mihango he documented the same and photographed the following:- Place of the incident, Room No. 16. Therein were 2 rooms. but one seemed to be unoccupied. There in was a charred piece of cloth. The room *had signs occupation and was partly burnt chart.* 1. He went to the Mortuary where he took 4 photographs of the general view of the body of the deceased wearing clothes. The closer view showed burns on the chest of the deceased. He produced a report dated 28/9/2020 which he had signed and 7 photographs * *Bundle of 7 photographs – MFI – P- 1 – Exh. P- 1* * *Crime incident report – MFI – 2- Exh – 2* 1. In Cross examination he said that at the house, there were no signs of a commotion. The incident was on 27th and he visited the scene on 28th, and there was possibility of tampering with the scene. There was smell of paraffin although they did not recover it. There were charred pieces of clothes but there was no other sign of burning. While one room had nothing, the other room had a carpet, cupboard and bed. There was no sign of struggle in the vacant room, save for the smell of paraffin. The partially burnt cloth was in the other room. He did not take a photo of the whole room. 2. **PW3 Denis Muinde** brother to the late Kevin Muinde stated that on 29/9/2020, he went to Mama Lucy Hospital where he identified the body of Kevin before Post Mortem. He saw the body had burn injuries on the chest and face. 3. In Cross-examination he stated that Martin (PW1) is his distant Cousin. He accompanied him to hospital when his brother was still alive. He did not speak to the deceased and Martin did not tell him what had happened. It was for Martin to tell the court what happened since the deceased did not talk to him but Martin had been together with the deceased for a long time and he only joined them at the hospital. **12. PW4 Stephen Tukei** a Government Analyst at Government Chemist stated that he received 3 exhibits from No. 98830 PC Patrick Wachira on 2/10/2020. A) a khaki evidence bag containing a blue and white striped shirt. - MFI -P-4. A(ii), a khaki evidence bag containing a grey T-shirt-MП-Р-5 A(iii) A Khaki evidence bag containing a purple jacket with red and white spots-MI-P- The Memo Form requested him to ascertain traces of fire accelerants in the exhibits listed. He did examination and found diesel a highly flammable petroleum products in the items. He produced the report signed and dated 23/7/2021. Memo Form-Exh-3 Analyst report - Exh.4 1. In cross examination he stated that there were burnt parts on the clothing’s. The jacket had no burnt part. A-3 had been removed from the deceased at the morgue and A-1 were remains of burnt shirt collected from the room. He said that Diesel is highly flammable petroleum product but Kerosene is more flammable . 1. **PW5 Dr. Muendo Muthini,** also produced a report of the following samples with the name of Kelvin Maundu 2. Blood sample 3. Stomach contents 4. Kidney and liver. He was to examine and determine the presence and toxicity of any chemically toxic substance.They did full toxicology screening and it showed negative results on all the exhibits. Although they worked as a team he was the one who signed the report on 3/8/2021. They worked on the samples as a team. 1. In Cross examination he said that: if one dies of carbon (IV) oxide inhalation, they do blood test. For this one it turned negative. 2. **PW6 Jeremiah Abwire Okwaro** a lorry driver from Kayole and also Care Taker of the Plot at Mihango testified that on 26/9/2020 at about 10:00pm, a young man called Maundu the deceased, was going outside the Plot which is near a stage. He was outside the Plot helping his wife at her vegetable kiosk. He said that he stayed on the ground floor of the Plot. He greeted Maundu and asked him where he was going as it was curfew time. He told him that Nicholas Mwendwa the accused person, also their tenant at the Plot, had asked him to go and buy him a beer. The deceased was staying in the house of Nicholas, door 16 on 2nd floor. He said that later in the night, he heard them open the gate as they spoke in Kamba language. They climbed upstairs. 3. Since they had arrears of Ksh.2000/=, at about 11:00AM, he went to their room and found the door open and there was a strong smell of kerosene; nobody Responded. He went up stairs to the house of Martin their other friend and he asked where Mwendwa was. Martin told him that Mwendwa had burnt Maundu and he had been taken to Mama Lucy Kibaki Hospital. In the evening Martin told him Mwendwa had passed away when he came back from hospital . DCI officers came shortly and inspected the house. They also took photographs. He entered the house with the officers and saw the broken stove and a burnt mattress. Also, Maundu’s clothes were burnt. They managed to trace Mwendwa as he was escaping, he had a bag and Muguka. They arrested him at Corner Mbaya in Kayole, about 10 minutes’ walk from the Plot. They took him to Matopeni Police Station. He said that Mwendwa is the one who had rented the house at Kshs.2,500/=. He produced an agreement he signed with him. He moved on 29.2.2020 when he paid 5000/= for rent and deposit. * *Tenancy agreement – PMFI-7.* 1. He testified that he used to pay rent in the landlords account at Equity Bank. *2 receipts – PMFI-8(a)(b).* He said that Mwendwa and Maundu used to have commotions in their house and neighbours could calm them down. One mzee also stayed with them. That day, the 3 of them had been together. He identified Mwendwa as the accused in Court. 1. In Cross examination he stated that Nicholas Mwendwa had rented the house and the 3 of them stayed in there. Maundu had been with him for 1 month and Mzee for 2 weeks. It is Mwendwa who cut for Maundu the keys. He saw Mwendwa use the key. The driver could come back by 4:00pm. It was a single room. He stated that he did not hear any commotion and that he only knew about it when he went for rent. Martin did not say he heard commotion in the night. He said that the door was open and on peeping there was no one in the house. He saw kerosene on the floor. Martin, Mwendwa, Maundu and Mzee used to walk together. 2. He said that he did not witness the incident he was only involved in the arrest of the accused. His aunty is the one who informed them where the accused was. His aunty was reluctant to write a statement because they are relatives. They took him to the Police Station with his paper bag with clothes. 3. Mwendwa was the tenant who signed the agreement with him. He gave keys to only Mwendwa and not Maundu or mzee. When he went to ask for rent, the door was open but with a curtain. There was a strong kerosene smell. He did not enter. Martin told him that Mwendwa had burnt Maundu who had been taken to Mama Lucy. It is Martin who told him about Maundu’s death. He took the DCI Officers to the house. He saw them taking photographs. They arrested Mwendwa at Corner Mbaya as he was with a paper bag with clothes and shoes. It is him who took him to the police station as his aunt and Martin were reluctant. He never saw mzee again. His evidence is truthful. Also, his statement. On 4/3/2025, this Court took over the matter; **Section 200 CPC** was read to the Accused person and he opted to proceed with the matter from where it stopped. 1. **PW7 No. 98830 Corporal Patrick Wachira Muriuki** who was duty on 27th stated they received the report of deceased’s death from PW1and that they went to scene and then to Mama Lucy Hospital Mortuary. That they found that Kelvin Maundu had burnt wounds on the leg, on his face and chest. The deceased Maundu called Martin Mwendwa to take him to hospital and told him Mwendwa and Patrick wanted to finish him. Martin Mwendwa PW1 recorded his statement and the accused was arrested by the public that night who brought him to the station. He was interrogated and the caretaker gave out the tenant agreement where the accused rented room No. 16 on 2nd floor. 2. That they found the deceased’s clothes his short had been completely burnt. He produced the short as exhibit 4 the T-shirt which smelt petrol as exhibit 5 the jacket was produced as exhibit 6, the tenancy agreement produced as exhibit 7 the government analyst report as exhibit 8 and the accused mental assessment report dated 5/10/2020 was produced as exhibit 9.He stated that they found the deceased at Mama Lucy Kibaki Hospital Mortuary and that it smelt petrol. the jacket at Mama Lucy 26. He was cross examined and he stated that he did not know that the deceased and the accused were related. That the accused married ‘Fathe's daughter. He admitted that did not visit Masii and that he did not interrogate the neighbor. Further that he did not know whether Martin was among those who brought the accused to the station. That the deceased did tell PW1 that he was fixed by Martin and ‘Fathe’. That he visited the place, the house had 2 rooms. One had a sofa and mattress and there was water on the floor. That ‘Fathe’ came seeking for a place to sleep. That there was no report or claim of injuries when the accused was brought to the station, 28. When the deceased was found he was burnt and the accused was the one who rented the house and he was in the house. The house had things scattered all over the house. That Martin said that he took the deceased to hospital That the caretaker did not state that there was fire at the place. 29. Further, that clothes were taken to the Government Chemist and they were found to have diesel. The accused, the deceased and ‘Fathe’ worked and lived together and he did not know if they had problems and whether they were drinking. That the fire was at the deceased corner. Lastly, that he tried to look for ‘Fathe’ but the name and identity or phone numbers were not found, he also did not know or find his daughter. 30. **Pw 8 Dr Charles.K. Muturi** the pathologist from Mama Lucy Kibaki hospital referred to the Post Mortem Form dated 28/9/2020 with findings that the deceased died while being treated, he also had clothes on. That the deceased suffered 2nd degree burns on the left side of the face, on the skull and chest regions, the abdomen, right arm and there was swelling on the arteries. The deceased lungs and brain were congested. The cause of death was skin burns open fire burns, toxicology was also pending. 31. He was cross examined and he said that he did not find any drug or medicine or alcohol on him. That he did not examine the nails to check defensive marks. 32. Parties filed written submission on case to answer. On 24th November 24/11/2025 this court delivered Ruling on case to answer and stated that the prosecution had proved a *prima facie* case and the Accused was put on is Defense. **THE DEFENCE EVIDENCE** The Defense Witnesses submitted written Statements with their testimonies and Defense Counsel sought statements and judgment of Wamunyu Court where the deceased was found guilty of indecent assault and was alleged to have escaped from Prison. **Wamunyu Magistrate Court S.O 28/2018.** **33. DW1 Nicholas Mwendwa Mutuku in sworn statement** testified that he went to School with Kevin Maundu.(Deceased) Kevin was hosted by Martin Mwendwa Mulwa (PW1) and he lived with ‘Fathe’ related through marriage to his daughter Caroline Mwikali Mbaika and they had a child. He stated that on **27/9/2020 PW1** told him to help him to stay with Kevin 1 guest one Kevin as his sister was coming to his house. Kevin was to stay with him for 1 month; in 1 week he slept once or twice. 34 On Saturday, 26/9/2020 they left the house and they went to Wotefarm Club where they were drinking with Martin, Junior Martin’s sister, Junior is son of ‘Fathe’ brother to Caroline Mwikali Mbaika his girlfriend. 35. On the way Wotefarm Club the accused person, Matin and Junior met Kevin and ‘Fathe’ and they went to Club Ndugu Wote. They went at 8.00am at Wote Farm Club where they were drinking. They stayed up to 11 am and they went for lunch at a hotel near the Club. They stayed there up to 10.00 pm – 11.00 pm. They then left each to their way. On they way, Junior and ‘Fathe’ went back Kevin said he went away and the accused person, Martin and his sister went to the Plot where they lived together at 11.00 pm. The gate was not locked any one could enter any time. 36. He went to 2nd Floor Room 16 alone and Martin went to 3rd floor with his sister. He did not lock the house as he expected ‘Fathe’ his ‘Fathe’ in law ‘Fathe’ to Caroline Mwikali Mbuka whom they have a child together. Martin requested him to house ‘Fathe’ as he would go to Kangundo and he agreed. He also expected Kelvin who was staying with him for one month and he came on and off. The house was double room 1 room he used to clip/sitting room and divided by curtain. I had sofaset and table and the tools for the other room where he did his work. ‘Fathe’ slept on the set and Kevin was on the mattress with the accused person. The next day he heard a knock at the door. It was ‘Fathe’ at the door and he said that Kelvin was severely injured. He went out the ground floor he found Kelvin and Martin and this was 27/9/2020 at 7.00 am and he saw Kelvin was injured on the chest and face one side. Kelvin said to him “brother take me to hospital they wanted to finish me.” The accused person Martin and ‘Father’ took Kelvin to a clinic nearby, where they were told to take him to Mama Lucy Hospital. They walked for10 metres then to Mama Lucy they took Public transport. 37. At Mama Lucy the accused person, Martin ‘Fathe’ and Kelvin arrived at 8.00am. They went to Emergency Section Hospital and they waited for the doctor. After 30 minutes the doctor and Martin called Kelvin’s relative Dennis Mwongela and Gladys Ngala who arrived at 9.00 am. Dennis Muinde (PW3) Mweyala. He pushed Kelvin with a wheel chair to the doctor, the doctor talked to him but he did not respond. He stayed out with Martin and ‘Fathe’ for 1 hour. They went to Kayole with Kelvin and ‘Fathe’ and they left Mama Lucy at 2.00 pm. Later Martin was called by Dennis (PW3) and he told them Kelvin had died, this was after 2.00pm. 38. Martin went to his house and the accused person went to take soup at 7.00 pm. ‘Fathe’ went to his son Junior at 2.00 pm. They got the report of his death with ‘Fathe’. At that time, He saw 3 people Martin, Junior and Jeremiah Okwaro Ambrose (PW6) and a lady whose name he did not know. He was taken to Kayole Matopeni and he was accused of Kelvin’s death. 39. He told the court that he did not cause the death of Kelvin. PW6 gave him the house he was the caretaker PW6 lied he was the one who rented the house and he collected rent from him and not from Kelvin. PW4 & PW5 were from the Government Chemist produced reports and found traces of diesel. He said he was not using diesel or paraffin. The Post Mortem Report page 3 result to examination was “open fire skin burns and inhalational burns pending toxicology.” PW5 stated in his report he did not find carbon monoxide. “No evidence of burns on the clothes”To the allegation he burnt Kelvin he said he did not burn him at all. 40. On cross examination he requested for photographs in the court and the photos were availed. He said Kelvin was his friend Martin was his cousin. Kelvin was Martin’s neighbour. He was in Kayole same Plot with Martin Mwendwa Mutua(PW1).He was on 2nd floor and Martin on 3rd floor.Kelvin asked him to live with him. They lived together for 3 weeks before his death.They went to drink and Martin, Junior ‘Fathe’ and the accused person and Martin sister they drunk from 7.00 am to 10.00 pm on a Saturday.He said that he lived with Kelvin and ‘Fathe’. They entered the Plot with Martin and his sister and he went to his house.Kelvin said he was going on alone and he did not know if he came to the house. He saw him the next day. He was sleeping with Kelvin on the mattress and ‘Fathe’ slept on the seat. 41. He was woken up by ‘Fathe’ and he found the room was normal and mattress had o burns except cigarette burns. Nowhere else was burnt. The sets were not burnt and there was no smoke smell. They left with ‘Fathe’ and found Kelvin and Martin and he was injured on the chest and face. He was dressed and was slightly burnt on the face and chest he was burnt. Kelvin had T-Shirt blue in colour.-Bundle of photographs – Exhibit 2.The shirt that Kelvin had was burnt. The door to his house. The shirt he had on at the time. Kelvin told him that “those two wanted to kill him.”Kelvin those 2 wanted to finish him and said in Kikamba and he did not tell him who the 2 were. 42. PW1 stated that deceased said the accused and ‘Fathe’ wanted to kill him. He also told him that those 2 wanted to kill him. Martin PW1 they had not fought or quarreled. PW6 did not have any grudge. 43**. Dw2 Christine Nduku Mutuku**; salonist said that Accused Person is his son, and she knew Kelvin as he was a neighbor to her sister-in-law. She told the court that Kelvin was charged with offence of rape at Wamunyu Court. The evidence of PWI Martin contrary on the Accused person. The evidence of Father/Fadhila is a father-in-law as her daughter and they have had a child and Fedhila and he was a good father to the child. She did not know where Fedhila was and that she went inside the house after the fire that day but she did not see any ‘mtungi’ deisel or paraffin and she did not see what burnt the house. She said that she saw sofaset and curtains that divided the house and they were not burnt. The photographs showed – blood, mattress and curtains that were not burnt. The deceased was charged with offence of defilement and indecent assault in **Criminal Case of S.O 28 of 2019 at Wamunyu Law Court** and he was sentenced, but he escaped and did not serve sentence. He said that there were other people with grudge with deceased and could have caused the fire. 44. In cross examination he said that the Accused person is his 2nd born son and he came to Nairobi in 2014 as an Artist. He said that he did not witness what happened on 26/27/9/2020 and he did not attend funeral of the deceased. He said that Martin Mwendwa Mutua (PW1) is cousin to Accused Person and they was no grudge and they did not have a problem. They all lived in one plot but Martin was scared to talk to her. She was not a witness to the case at Wamunyu Court and she did not attend Court and that she knew nothing about the matter. **45. Dw2 No. 1988064884 Sgt Jafeth Mutuku Makau** stated that he is a Police Officer with Administration Police. He was called byPW6 Caretaker Jeremiah Okwaro Obima PW6 to go and collect the items that had not been burnt. He went to the scene he could not remember the date but it was in 2020 it was a 2 roomed house he found curtains, sufurias, and trousers which belonged to the accused person, there was a store & sofa set and it was not burnt. He stated Accused person is his son and he was with PW1 Martin Fedhal and Katiku took the suspect and he was given by Landlord/caretaker and he and his wife were present. He referred to photographs that were produced:- **Photograph 1 – blood stains** **Photograph 2 – clothes/bag not burnt.** **Photographs 3 –** Partition not small part black not burnt**.** When he visited the house; he did not see any sign of fire. 46. On cross examination; he said that Accused is his 3rd born son and he was called by the Caretaker to collect the Accused’s belongings. His son made pictures and sold them. He lived with a lady, child and Father-in-law. He heard Kelvin lived with him. At the house he found a stove, curtain mattress and sufuria, the stove had no oil at all and there was no gas cooker. He did not know about the fire.He said that Martin (PW1) is cousin to Accused Person son of his younger sister. They have lived together for long and they were friends. **PROSECUTION SUBMISSIONS** **PROOF OF DEATH OF THE DECEASED** 47. The fact of the death is not in dispute. PW3, the brother of the deceased testified that he identified the body of the deceased at Mama Lucy Hospital before the post-mortem was conducted. This evidence was corroborated by the post mortem report MFI P3, produced by government pathologist, PW7, which confirmed the death. **PROOF THAT THE DEATH WAS CAUSED BY AN UNLAWFUL ACT** 48. The evidence overwhelmingly shows that the death was a direct result of an unlawful act, a violent assault by burning. PWI testified that upon entering the house on the morning of 27th September, 2020, he found the deceased seated on a sofa with his face swollen and his upper body and chest region appearing burnt. Crucially in his dying declaration, the deceased implicated his two housemates, the accused and one "‘Fathe’e," as the perpetrators. The doctrine of res gestae applies here, as the statement was made concurrently with the event. 49. This oral evidence is strongly corroborated by forensic evidence. The Government Chemist Report (Exhibit 4), confirmed that the deceased's clothing contained a highly flammable petroleum product. Furthermore, PW6 testified to recovering burnt clothes with a heavy smell of kerosene at the scene. The Toxicology report ruled out poisoning, solidifying that the burn injuries were the cause of death, not an accident, suicide or natural causes. **PROOF THAT THE ACCUSED WAS THE PERPETRATOR** 50. The prosecution has placed the accused person squarely at the scene of the crime through direct and circumstantial evidence. PWI found the accused, sleeping on a mattress in the same room where the grievously injured deceased was seated. He was not a passer-by; he was a resident of the house and was present when the injuries were discovered. PW2, the caretaker, testified that on the night of 26th September 2020, at around 10:00pm, he saw the deceased leave the Plot The deceased told him that he had been called by “Mwenda” to go have bottle of beer. This places the accused and the deceased were together just hours before the injuries were sustained. The doctrine of last seen together places a heavy burden on the accused to explain how the deceased sustained his injuries, which he has failed to do. The accused admits to being in the house all night, separate only by a curtain. He claims he heard no commotion and saw nothing. However, a person cannot be set on fire with a flammable liquid in a "tiny/small" room without a significant disturbance. His explanation that he was asleep throughout is not plausible and is contradicted by the severity of the injuries and the presence of the kerosene fumes. **PROOF OF MALICE AFORETHOUGHT** 1. Malice aforethought, as defined under **Section 206** of the Penal Code, is established where there is an intention to cause death or grievous harm. In the case of **Republic v Tubere [1985] KLR.** the court held that malice can be inferred from the nature of the weapon used and the part of the body targeted. In this case, the weapon was an unknown container of a highly flammable petroleum product, kerosene or diesel, which was used to set the deceased's upper body on fire. Targeting the chest, neck and face with such an accelerant is an act so inherently dangerous that it demonstrates a clear intention to cause death or at the very least, grievous harm. The deceased's own words, "these two want to finish me," provide direct evidence of the assailant's murderous intent. 1. The accused in his sworn statement, and through the statements of his parents, has attempted to create a defence of innocence by suggesting; the house door was open so anyone could have entered, ‘Fathe’e is the real perpetrator, the witness Martin framed him and that there were no defensive injuries on him. 2. These defences are unavailing and an afterthought. The fact that the door was open does not negate the accused's presence and failure to assist the deceased or raise an alarm. As a lawful resident, he had a duty to protect the deceased or explain what happened under his watch. 3. The accused cannot simply shift blame to an absent third party while offering no credible account on his own. ‘Fathe’e's absence does not exonerate the accused, it merely points to a common design between the two. 4. The allegation that PWI framed the accused is baseless. PWI's testimony is consistent. corroborated by the caretaker and most importantly, supported by forensic evidence. There is no motive suggested for why PWI would want to frame a "cousin" and friend. 5. On the absence of defensive injuries, it is uncommon for victims of a sudden traumatic attack, such as being set on fire, to be incapacitated immediately and unable to defend themselves. 6. The prosecution has adduced credible, consistent and corroborated evidence whereas the accused's defence is a mere denial that does not rebut the circumstantial and direct evidence against him. We humbly submit that the prosecution has proven its case against the accused person beyond reasonable doubt. They pray that the Court finds the Accused Person guilty of the murder of Kevin Maundu Muindi and convict him accordingly **under Section 322** of the **Criminal Procedure Code and section 203 & 204 of the Penal Code.** **SUBMISSIONS BY THE ACCUSED PERSON** 1. On 27th February 2026 the Accused person filed submissions and stated that **Section 33(a) of the Evidence Act**, courts have consistently held the view that evidence of a dying declaration must be admitted with caution because firstly, the dying declaration is not subject to the test of cross-examination and secondly, circumstances leading to the death of the deceased such as acts of violence, may have occasioned him confusion and surprise so as to render his perception questionable. While it is not a rule of law that a dying declaration must be corroborated to found a conviction, nevertheless the trial court must proceed with caution and to get the necessary assurance that a conviction founded on a death declaration is indeed safe. 2. That both the Accused's mother and Father visited the house where the accused, the deceased and Prosecution witness ‘Fathe’la had spent the night. During their visit they confirmed they did not see anything which was burnt in the house. 3. That in the absence of any evidence of production of things which were burnt in the house he confirms that the case against the accused must fail since there is no evidence that the accused burnt or caused the burns on the deceased which lead to his death. 4. The Accused person in his testimony had confirmed that he had drunk with the deceased the whole day on the preceding evening and they had been together with Junior, ‘Fathe’la, Martin the sister and they had been on good terms with the deceased when they parted ways before reaching the house he went to sleep and he left the door for the house unlocked and went to sleep on the mattress which was on the floor and there was a curtain /sheet creating a barrier between where the accused slept on the floor and the sofa set. 5. He urges the Court to find and hold that the fact that the deceased was not sleeping on the mattress or seated on the mattress on the floor confirms that the accused herein has wrongly been charged as he had no line of vision to see what was happening to the accused nor could he have harmed the deceased as he was fast asleep per his testimony having slept after 11pm the previous night and having been very drunk. 6. The Court to find and hold that the failure to avail the mattress in court confirms there were no burns on the mattress confirming that the accused who was fast asleep on the mattress could not have burnt the deceased. 7. He submitted that the conduct of the accused in hosting the deceased in his house being very close with him and taking him to hospital upon being woken up by the sound of the door closing confirms that the had no bad intention against the deceased. 8. That the evidence by Wabwire that he found the accused when he was escaping is not correct as he has not written anywhere in his statement to the police that the accused was trying to escape and he had to get him before he escape. 9. He urges the court to find and hold that the fact the Prosecution witness ‘Fathe’la who was in the room with the deceased and whom the accused took to hospital it has never been confirmed that the accused herein is n guilty and prosecution witness ‘Fathe’la should be investigated. 10. His concern were the alleged words which the deceased uttered to Prosecution witness Martin “bro *nipeleke hospitali hawa walitaka kuninimaliza*...” which words were not repeated to any-one else confirming that the words cannot point to the guilt of the deceased as the deceased never mentioned the name of the accused. And indeed, the person whom the words were addressed...Martin. Is not a brother of the deceased confirmed that the words were not uttered and if uttered they were not accurate and did not correctly refer to any one as Prosecution witness Martin is not deceased’s brother. 11. The court to consider the medical examination report for the accused which confirmed that he had no marks or injuries anywhere. This is indicative that the accused could not have harmed the deceased. 1. The court to consider the post mortem which was conducted on the body of the deceased which confirms that the clothes which the deceased wore were ..."INTACT" confirming they were not burnt. 1. He submitted that the deceased suffered injuries elsewhere that is why the clothes of the deceased had no burns, the house of the accused had no diesel, the mattress and sofa set of the deceased had no burns and the accused had no wounds on his body to show that there was a fight. Also the deceased body had no defensive wounds at all to show that he had fought off any attack or that he had scratched, punched or engaged in any confrontation with the accused. 1. The witness Wabwire on his testimony alleged that the accused and the deceased used to quarrel; however that line of testimony ought to be disregarded since it is not recorded in his witness statement nor was it corroborated by any other witness. 2. The principles governing dying declarations were considered by the Court of Appeal in the Case of **Phillip Nzaka vs. Republic (2016) eKLR.**He submitted that there was no malice afore thought established against the accused that he wanted to kill the deceased.That the prosecution has not established that the accused formed the intention to kill the deceased or that he did any act or omission which he knew would cause the death of the deceased. The judicial test in determining whether the Accused person had malice aforethought the courts have given judicial interpretation to be that the: ***…the Court must take the surrounding evidence into account. This was held by the Court of Appeal in the case of N MW v Republic [2018] eKLR where it stated:-"It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of Chesakit V. Uganda, CR. APP. No. 95 of 2004, the Court of Appeal of Uganda stated that in determining in a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person."*** 1. They relied on **Section 13(4) of the Penal Code** which provides:-that ***"Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence."*** 1. In **Said Karisa Kimunzu -vs- Republic- Criminal Appeal No. 266 of 2006,** this Court held, ***"But under subsection (4) the court is required to take into account the issue of whether the drunkenness or intoxication deprived the person charged of the ability to form the specific intention required for the commission of a particular crime. In a charge of murder such as the one under consideration, the specific intention required to prove such an offence is malice aforethought as defined in section 206 of the Penal Code. If there be evidence of drunkenness or intoxication then under section 13(4) of the Penal Code, a trial court is required to take that into account for the purpose of determining whether the person charged was capable of forming any intention, specific or otherwise, in the absence of which he would not be guilty of the offence. In the circumstance of this appeal, the learned trial Judge was required to take into account the appellant's drinking spree of the previous night and even that morning in determining the issue of whether the appellant was capable of forming and had formed the intention to kill his son."*** 1. In **Julius Obare Angasa-vs- Republic - Criminal Appeal No. 271 of 2008** this Court observed as herein under:- ***"As this Court pointed out in David Munga Maina -vs- Republic [2007] eKLR, a party who says he had taken some liquor is not necessarily raising the defence of insanity. Such a person may only be asking the court to take into account the fact of his having consumed liquor and whether that state had deprived him of the ability to form the specific intent to kill.*** 76. This being entirely circumstantial case he urged the Court to find that there was no basis that found the accused guilty. He relied in the decision in **Sawe vs Republic** and in particular the paragraphs:- ***22. As we have already pointed out. the evidence in this case was entirely circumstantial. In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of Iris guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden, which never shifts to the party accused*** 77. In this state of the evidence, the two watchmen are not excluded from being persons who might have started the fire or for that matter any intruder might have done so. If that be the case, then the evidence does not irresistibly point to the appellant to the exclusion of all others within the meaning of **R v Kipkering arap Koske & Another 16 EACA 135** where it held, inter alia, that:- ***In order to justify the inference of guilt, the inculpatory fact must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt".*** **ANALYSIS & DETERMINATION** 78. I have carefully considered evidence on record and submissions by parties. In criminal case the burden of proof solely rest with the Prosecution. In the celebrated case of **H.L(E)Woolmington vs. DPP [1935] A.C 462 pp. 481,** Viscount Sankey L.C held that:- ***“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defense of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’*** 79. The standard of proof is proof beyond reasonable doubt. According to Lord Denning on what is proof beyond reasonable doubt in **Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372** stated that:- ***“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”*** 80. The Evidence Act provides **Section 107**; the burden of proof is on prosecution. **Section 111 of the Act** the burden of proof at times shifts only when the Accused /Defense has the burden of proving any fact especially within the knowledge of such person is upon him. The accused person is faced with the charge of murder contrary to **Section 203 as read with Section 204 of the Penal Code.** The provisions provide:- **Section 203** ***Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.*** **Section 204** ***Any person convicted of murder shall be sentenced to death.*** **81. In Republic vs. Mohammed Dadi Kokane & & 7 Others [2014] eKLR** the elements of the offence of murder were listed by Hon. M. Odero, L J. as follows:- ***1) The fact of the death of the deceased.*** ***2) The cause of such death.*** ***3) Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly*** ***4) Proof that said unlawful act or omission was committed with malice aforethought.*** 82. Similarly; in **Roba Galma Wario vs. Republic [2015] eKLR court held that:** ***“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional…”*** **THE FACT OF THE DEATH OF THE DECEASED.** 83. The fact of death of the deceased herein is not in dispute. Martin Mwendwa Mutua PW1 on 27/9/2020 went to the house of Nicholas Mwendwa Accused Person on 2nd Floor. PW1 found Nicholas, Kelvin and ‘Fathe’. He found Kelvin seated on the seat and he had burns on the face and chest. ‘Fathe’ was also on the seat but Nicholas was sleeping on the mattress. They all took him to Mama Lucy Hospital and called his sister Ngina and Brother Dennis. Later , Kelvin succumbed to his injuries. 84. PW2 Inspector Daniel Musembi, Crime Scene Investigator, on 28/9/2020 at 8 am accompanied by PC Wachira went to Mihango stage and thereafter to Mama Lucy Hospital. He photographed place of incident Room 16 therein 2 rooms. He found a charred piece of clothe and partly burnt chart in next room. At the Mortuary he took photographs of deceased and made his Report. PW3 Denis Muinde Brother of the deceased identified the body of his late brother for Post Mortem.PW7 Pathologist conducted Post Mortem. **THE CAUSE OF DEATH** 85. The cause of death was explained by PW 7 Dr.Charles K.Muturi confirmed he conducted Post Mortem on 29/9/2020 and found cause of death open fire skin burns and inhalational burns pending toxicology. 86. On 27/9/2020, the deceased was found by PW1, in the Hse No 16 with partly burnt upper side of the body. He was rushed to Mama Lucy Hospital and succumbed to death. During Post mortem the Pathologist found deceased with burns 2nd Degree on the face mainly left side extending to the scalp; neck extending to both sides anterior chest region extending to upper abdomen, right forearm burnt surface at 25%. 87. PW2 Scene Visiting Officer confirmed that he took photographs both at Hse No 16 and at the Mortuary and produced Certificate as to Photographic prints dated 6/6/2022 and produced 7 photographs; Photo-1 general view of entrance to the house Photo-2 showing partly burnt shirt in the occupied room Photo-3 Charred pieces of cloth in the unoccupied room Photo 4-5 general view of the deceased in the morgue Photo6-7 close-up view photos of the deceased in the morgue showing burn injuries. The cause of death is from the burn injuries the deceased sustained and while in Mama Lucy Hospital he succumbed to his death. **PROOF THAT THE DECEASED MET HIS DEATH AS A RESULT OF AN UNLAWFUL ACT OR OMISSION ON THE PART OF THE ACCUSED PERSON(S)** 88. PW1 was the 1st at the scene at Hse 16 2nd Floor and found the deceased Kelvin with burns sitting on the seat, the Accused Nicholas lying on the mattress asleep and ‘Fathe’ sitting on the seat. When deceased saw PW1 he told him ‘Bro nipeleke hospitali walikuwa wanataka kunimaliza’. The 3 of them took deceased to hospital, Martin, Nicholas and ‘Fathe’ upon reaching Mama Lucy Hospital PW1 called deceased’s family and left and ‘Fathe’ & Nicholas left earlier. 89. The fact that the deceased Kelvin was in the house No 16 2nd Floor and had sustained burn wounds on face neck and chest in the said house and confirmed by PW6 to have come back the previous night together and PW2 took photographs of burnt items in the house the next day; depicts that ‘Fathe’ and Nicholas were in close proximity to deceased had knowledge of his presence in the room, they had opportunity to pounce on him and harm him and based on last -seen doctrine, were the last persons with deceased when he was ok until he was injured and scarred by burn wounds. The deceased could not possibly burn himself. In short, they are responsible for the act /omission that resulted the deceased’s death. **Republic vs Richard Itweka Wahiti HCT Criminal Case No 9 2016 HCT-Kiambu & Republic vs Joseph Kioko Muthoka HCT Criminal Case No 70 of 2015- Machakos.** 90. The Defense detailed submissions cautioned against reliance on dying declarations without corroborating evidence and cited **Phillip Nzaka Watu vs Republic [2016] eKLR** that dying declaration must be admitted with caution as it is not subject to cross examination and circumstances leading to death of deceased may cause deceased confusion and surprise to render his perception questionable. Although it is not a rule that dying declaration must be corroborated to found a conviction, the Trial court must proceed with caution and get necessary assurance that a conviction based on dying declaration is safe. 91. Applied to the instant case, PW1 Martin, the deceased Kelvin, Accused person Nicholas were all known to each other, there was no issue of mistaken identity, no evidence was led to disclose bad blood malice or feud between them. In the absence of any evidence of vendetta blackmail or malice, PW1 who was 1st to come to Hse 16 that morning saw deceased and he told him that ‘Fathe’ and Nicholas wanted to finish him.This is contested by Defense that no one else heard the statement apart from PW1, PW1 is not deceased’s brother and that the deceased did not nae the Accused and Fathe, this Court took the statement as stated in consideration with existing surrounding circumstances. 92. The Accused person ‘s Defense has mainly been denial of commission of offence with another not before Court; ‘Fathe’ who allegedly could not be traced; possibility of the fact that the door was left open after he came from drinking spree with the others and that the deceased had enemies and that crime the deceased was convicted of and sentenced in **Criminal Case 28 of 2018 from Wamunyu Court** and allegedly escaped from Prison and did not serve the sentence, hence enemies pursued him to burn him. 93. The possibility of another person coming into the house and lighting fire burning Kelvin and all goes on quietly without any commotion, cry from pain, struggle to avoid further burning, no fire, smell and smoke and only burnt Kelvin while ‘Fathe’ and Nicholas were asleep is farfetched. The Hse 16 on 2nd Floor is not isolated but among other houses on floor below and above; how another intruder got in without any noise disturbance chose only to harm burn the deceased and left ‘Fathe’ and Nicholas who did not hear, see, feel or see any smoke or fire or took precaution not to be burnt, yet they remained in the same house is illogical and unreasonable to fathom. 94. The Accused buttressed Prosecution evidence that in the house the furniture/sofa set and beddings were intact there was no fire so insinuating that the deceased was not burnt in the house and if so it was not by him/them. PW2 Scene Visiting Officer arrived the next day 28/9/2020 after PW1 lodged the report at the Police station on learning of Kelvin’s death at Mama Lucy Hospital the previous night. There was ample time and opportunity for the Accused person to clean the room remove any burnt items by the time Photographs were taken, the next day PW2 only found partly burned shirt in the occupied room and charred pieces of cloth in the occupied room. It was not possible to find any burnt items by then. 95. The Defense comprised of Accused, his mother and his father and alleged through Defense Counsel Mr Odawa produced proceedings and judgment of **CM CT Machakos Criminal Case S.O. 28 of 2018 -Republic vs Kelvin Maundu Muindi** where the deceased was convicted of offence of indecent act with a child c/s11 of sexual Offences Act on 28/11/2019 and was sentenced to imprisonment but allegedly escaped from prison. Hence the deceased had enemies who were following him and ended up burning him. The Court saw read the judgment but the fact of escaping prison except for Accused person and his mother and father’s testimonies in Defense Dw2 & Dw3 respectively, during Defense hearing there was no proof of alleged escape and if so that is what happened and they knew of the offence committed by deceased by escaping prison they ought or would have reported to Police/Prison Authorities by then not now. 96. Whether a person is good or bad one; he is entitled to life except when curtailed through due process as provided by **Article 26 of the Constitution.** No-one is entitled to take law into their hands and end one’s life. **PROOF THAT SAID UNLAWFUL ACT OR OMISSION WAS COMMITTED WITH MALICE AFORETHOUGHT.** **Section 206 of the Penal Code** sets out the circumstances which constitute malice aforethought as follows: ***“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:*** 1. ***An intention to caused death or to do grievous harm to any person whether such person is the person actually killed or not.*** ***(b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accomplished by indifference whether death or grievous harm is caused or not, or by a wish that it may be caused or not, or by a wish that it may not be caused.*** ***(c) An intention to commit a felony.*** ***(d) An intention by an act or omission to facilitate the flight or escape from custody of any person who attempt to commit a felony.*** 98. The Court of Appeal in **Nzuki vs. Republic [1993] KLR 171** held that: ***“Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused;-*** ***i) The intention to cause death;*** ***ii) The intention to cause grievous bodily harm;*** ***iii) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.*** ***It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed The mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into a crime of murder. (See Hyman vs. Director of Public Prosecutions (1975)AC 55”. (emphasis added).*** 99. Malice aforethought is the mental element (or ***mens rea***) required to prove murder which has to be established by the Prosecution. The prosecution has proved that the accused caused the death of the deceased but also the mental element of the accused has to be proved as well for the court to determine whether murder has been proved beyond reasonable doubt. 100. The Defense raised the defense of intoxication. The Accused person stated that on 27/9/2020 confirmed that he Martin Junior Martin’s sister went reveling at Wote Farm Club and started drinking at 8 am at 11 am they went for lunch at a hotel and came back drank until 10 pm-11pm and they all left each their own way. He got to the house alone. The Defense submitted that he could not have formed motive; ***mens rea*** or malice aforethought. ***9. Intention and motive [Section 9 of Penal code]*** ***(1) 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.*** ***(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.*** ***[Section 13 of Penal code]*** ***(2) Intoxication shall be a defense to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing*** ***(4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.*** 101. The Prosecution presented evidence both direct and circumstantial evidence; PW1 saw deceased with fire burns on face neck and chest while Hse 16, the deceased told him that the 2 namely, Nicholas and ‘Fathe’ wanted to finish him and asked PW1 to take him to hospital.PW6 saw them previous night together coming back speaking Kikamba and traces of burns found in the house as follows; **Formal Expert** witnesses presented reports; **PW2 Crime Scene Investigator**- provided 7 photographs one of partly burnt shirt in the hose and charred pieces of cloth in the unoccupied room Hse 16. He also took photographs of deceased at Mortuary with burnt wounds on chest face and neck. 102. **PW4 Government Analyst** who received blue and white stripped shirt A1; grey Tshirt A2 and purple jacket with red and white spots A3 to ascertain presence of fire accelerants in the items and found diesel, a highly inflammable petroleum product detected in the items. 103. **PW5 Government Analyst** who received specimen of blood , stomach content and kidney and liver to examine and determine toxicity and the results were negative, **PW7 Pathologist** who conducted Post Mortem and found cause of death open fire skin burns and inhalational burns pending toxicology. 104. The evidence of Land lord PW6 he saw deceased that night he went to buy bear for Nicholas and later they came back to together speaking Kikamba and Investigation Officer PW7 further corroborates experts evidence and supports cause of deceased’s death PW1 reported the dying declaration by deceased to PW1. The totality of the evidence on record proves deceased ‘s death caused by Accused person and another not in Court. The Accused and another were together in the house with deceased before, at or during the incident that led to burns on his body as confirmed by Pathologist. However, the ingredient of malice aforethought is vitiated by defense of intoxication. The issue of intoxication is also confirmed PW6. The Court is not satisfied that malice aforethought has been established in terms of Section 206 of the Penal Code. **Section 179 of the Criminal Procedure Code** provides- ***(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.*** ***(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.*** **DISPOSITION** **105. In the premises, I reduce the charge of murder to manslaughter. The accused is acquitted of the charge of murder but convicted of the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.** **Judgment accordingly.** **JUDGMENT DELIVERED SIGNED &DATED IN OPEN COURT CRIMINAL DIVISION-MILIMANI ON 30/7/2026 VIRTUALLY/PHYSICALLY** **M.W.MUIGAI** **JUDGE** **Mr. Odawa**:The matter to be mentioned on a date presentencing to be done. The Probation Report to be obtained. **Court** – Further mention on 23/9/2026.