https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8189

Republic v Mutuku (Criminal Case E006 of 2022) [2026] KEHC 8189 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8189 (KLR) Republic of Kenya In the High Court at Makueni Criminal Case E006 of 2022 JN Onyiego, J June 11, 2026 Between Republic Prosecutor and Festus Mwanzia Mutuku Accused Ruling 1.The accused person herein is charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that, at unknown date and time between 31st December 2021 and 2nd January 2022, at Kasunguni area in Kilungu Sub-County, within Makueni County he murdered Salvin Maithya Ndome. 2.Having denied the charge, the case proceeded to full trial with the prosecution adducing evidence from 12 witnesses in its endeavour to discharge the burden of proof beyond reasonable doubt. As such, at this stage, this court’s role is to consider the evidence on record and make a determination as to whether the same presents a prima facie case that would warrant this court to call upon the accused person to give his defence pursuant to Section 306 of the Criminal Procedure Code. 3.Under Section 211 of the Criminal Procedure Code, a prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. [See Ramanlal Trambaklal Bhatt v R [1957] E.A 332 at 334 and 335]. 4.Similar position was held in the case of Republic V Abdi Ibrahim Owl [2013] eKLR and Ronald Nyaga Kiura V Republic (2018) eKLR]. 5.However, it is trite that, where the court is not acquitting the accused person at the close of prosecution’s case, there is no need for a reasoned ruling for a case to answer. Reasons should only be given where the submission of a no case to answer by the accused is upheld and the accused is to be acquitted. [See Festo Wandera Mukando v Republic [1980] KLR 103]. 6.Therefore, at the close of the prosecution’s case, it is the duty of the trial court to examine and assess the evidence tendered by the prosecution so as to establish whether the elements of a prima facie case are in existence and if so, the accused will be invited to give his defence either on oath or unsworn or he may even elect to exercise his constitutional right of keeping silent. In the event he is called upon to state his defence as provided under Section 306 of the Criminal Procedure Code, besides adducing evidence by himself, /herself, he/she can also call witnesses to rebut the prosecution’s case. 7.I have considered the evidence tendered by the prosecution. It is trite that it is the duty of the prosecution to prove the guilt of an accused beyond reasonable doubt. See Woolmington vs DPP [1935] AC 462. The only issue for determination is whether the prosecution discharged the burden of proof against the accused person that he murdered the deceased. 8.The offence of murder is defined under Section 203 of the Penal Code as:‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder’. 9.The prosecution thus must establish the following essential ingredients:i.That the deceased died.ii.That his death was unlawfully caused.iii.That the death was actuated by malice aforethought.iv.That the accused was the assailant. 10.The above position was held in the case of Nyambura & Others vs Republic (2001) KLR355. 11.Regarding the death of the deceased, the doctor who performed postmortem examination (PW4) stated that upon examination, the body had multiple bruises on the right side of the face, clotting blood around both eyes-trauma and bruises on the left shoulder about 8cms. Internally, there was discoloration of the lungs and clot on the upper part of the brain. The cause of death was asphyxiation due to lack of oxygen. He said that the deceased did not die out of drowning although he could not rule it out. 12.On the cross examination, he stated that lack of oxygen could have been due to suffocation. Regarding the presence of blood clot, he said it could have been as a result of a fall. 13.In re-examination the doctor stated that lack of oxygen could have been caused either by drowning, strangulation or suffocation. PW1 to PW12 confirmed that the deceased’s body was found floating in a river. The question of death is therefore established. 14.Was the death caused unlawfully? From the evidence on record, nobody saw the deceased being attacked. According to the doctor, the deceased had bruises which could have been caused by a fall or some other cause. As to the cause of death, the doctor again gave contradictory statements to the effect that lack of oxygen could have been as a result of suffocation, strangulation or drowning. Of the three possible causes, only drowning was established. With this material contradiction, it is not possible to conclude with certainty human participation. Accordingly, the actual cause of death was not conclusively established hence this court cannot make a finding whether the death was unlawful or not. In law, the benefit of doubt goes to the accused. 15.As to who caused the death of the deceased, nobody witnessed the accused attack the deceased. The only evidence available is that of PW1 and PW2 who claimed that on 31-12-21, they saw and overheard accused warning the deceased to stop sleeping with his wife lest he killed him. The rest of the witnesses merely gave evidence regarding the discovery of the body. There is no evidence on record to suggest that the accused did actualize the threat. 16.On the evidence by the Investigating Officer that the Safaricom coordinates located the accused’s phone within the proximity of the river where the deceased’s body was found, the same is not on itself conclusive. Several people’s phones could be located within common coordinates hence not enough to connect somebody with the murder of somebody. 17.It is apparent that there is no direct evidence to connect accused with the offence in question. It is clear from the evidence on record also that the circumstantial evidence relied on does not conclusively connect the accused with the offence. Prosecution is purely relying on circumstantial evidence which is doubtful and not credible on its own to sustain a conviction even if accused were to be put on his defence. See the case of Ahamad Abolfathi & Another vs Republic (2018) eKLR where circumstantial evidence was elaborated thus;“Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence.” 18.In the case of Sawe v Republic (2003) KLR 364, the Court had this to say on circumstantial evidence;“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 co-existing circumstances weakening the chain of circumstances relied on.” 19.The circumstantial evidence on record does not eliminate all possible doubts including the cause of death which would include drowning. 20.Having held that there is no sufficient evidence to connect the accused with the death of the deceased, there is no need in considering the element of malice aforethought. Accordingly, it is my finding that the prosecution has not established a prima facie case to put accused on his defence. To that extent, the accused is acquitted under Section 306 of the Criminal Procedure Code. Accused shall be set free unless otherwise lawfully held. DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 11TH DAY OF JUNE, 2026….…………………….J. N. ONYIEGOJUDGE