https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10771

Republic v Mutungi (Criminal Case E009 of 2022) [2026] KEHC 10771 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10771 (KLR) Republic of Kenya In the High Court at Makueni Criminal Case E009 of 2022 TM Matheka, J July 17, 2026 Between Republic State and Alex Nzimbi Mutungi Accused Judgment 1.The accused person was charged with Murder as 203 as read with Section 204 of the Penal Code. The particulars were that in the year 2017 at unknown date time in Iiani village Kilome Location, Mukaa Sub-location, Makueni with others not before court he murdered Kelvin Mwendwa Michael. 2.Accused was represented by Mr. Hassan. He took plea on 3rd October, 2022 before Dulu J, he pleaded not guilty. Prosecution’s Case: 3.Pw1, Margaret Ndunge Nthia from Enzai Ikomoa village testified that deceased was her son. That her son and the accused were friends from the time they completed class 8 in 2010. That the accused would even visit her home, where she would assign them work for instance taking care of the cattle; then they would go to the home of the accused person where they could spend the night, and he could come there the following day. 4.She testified that the boys became delinquent and began “kwenda hivi hivi” – and stole other people’s things. That she later met the accused at the Nunguni Probation Office, where her son was also reporting. 5.That in 2017, her son, the deceased stole chicken, went to hide in the home of the accused, was arrested brought to court and imprisoned for 9 months. That he only rang her and told her that he was leaving prison. He told her that she was not to be involved in his life anymore. She said he never came there but went to Nzimbi’s home. 6.That on 16th July, 2022 she heard rumours that her son had been killed by Nzimbi, and thrown into a toilet. She and her husband went and reported to DCI and they were told to await investigations. She told the court at some point a woman emerged, saying that Nzimbi had killed Mwendwa, thrown him into an unused toilet. 7.That Nzimbi’s mother told them that Nzimbi had said the toilet was smelling bad and needed to be filled up. That the toilet was then covered up. 8.She testified that all this time she was praying a lot. That as a result of her prayers Nzimbi became mad, and began to talk to himself telling Mwendwa to leave his head alone. That “people” concluded that it was Nzimbi who had killed Mwendwa. 9.She testified that on 26th July, 2022 DCI officers went to the home of Nzimbi where he pointed out the toilet where a skeleton was found. That her DNA was taken through a buccal swab, and it was confirmed that the skeleton belonged to her son – after the post-mortem, they buried him on 9th October, 2022. That the doctor said that cause of death was a result of being hit on the head. 10.On cross examination she said she was not aware whether the 2 her son and the accused, had ended their friendship. That upon release from prison, her son went to home of Nzimbi - and that he was a hawker. 11.She said she heard the rumours of the killing from one Kasisi Eunice Mulinge. She said she used to pray to God to reveal the killer, that Nzimbi became mad and began to say that he had killed Mwendwa. 12.PW2, Michael Musyoki Ndiku was the father of the deceased. He said he knew the accused because he met him at Shimo la Tewa Borstal Institution – where his son was. He testified that his son (deceased) had refused school – he reported his son, and he was taken to Borstal Institution in Mombasa. He said when his son left Borstal, he came home and began to sell things at Sultan Hamud – then they got together with Nzimbi, and they would even come to his home. 13.That one day in July, 2017 while some people were passing, he overheard one say, while pointing at him and his wife – that they were going to cry very much as their son had been killed. He testified that he and his wife reported to the DCI – then they went to Nzimbi’s home. He said Nzimbi begged him not to take him to the police and he would show them where Mwendwa was. 14.He testified after “Nimemkondolea macho” Nzimbi said he had killed Mwendwa with an iron rod. That he took them to the toilet on top of which he had begun to feed his cattle. Upon digging, the body of Mwendwa was found. He said there had been other suspects but those were released, and Nzimbi was charged. 15.On cross-examination he testified that deceased was his 1st born son, that he was not of good behavior, that he was arrested for theft in 2014, he was imprisoned, that when he was released from prison they never saw him. Reading from his statement he said “I heard when the wife of my brother Mutiso Ndiku asked her….the wife of my brother Eunice Mulinge is the one who heard.” He said Eunice heard the story from her mother – because the incident happened at kwa Kaseke where Eunice was born. He said the accused and the deceased were good friends, deceased had lived in Emali, but at some point lived at Nzimbi’s home. 16.He testified that he did not know why Nzimbi killed his son. That Nzimbi brought to him a chuma, saying it is the one he used. That police took a spear from Nzimbi’s house. That near Nzimbi’s house, there was also Nzimbi’s brother’s house. He said he never heard of any mob injustice in that area, he said Nzimbi and another killed his son. 17.PW3, Dr. Maurice Onyango Otieno conducted the post mortem at Kilungu sub-county Hospital on 31st August, 2022. He was presented with the dry bones of a human skeleton, it had fracture on the left temporal region of the skull about 8 cm long. He said this appeared to be a blunt object injury which could have led to cranial bleeding leading to cardiopulmonary arrest leading to death. 18.On cross-examination he said that he ascertained from records that was Kelvin Mwendwa; that he did not personally conduct any tests; that there were 2 witnesses present during the post mortem examination. He said at the time of post-mortem there was no DNA report; that samples for DNA were taken at post mortem. He confirmed that it was not scientifically correct to say that he conducted post mortem on the body of Kelvin Mwendwa Michael. 19.PW4, Henry Kiptoo Sang was the Government Analyst – at the time based at Government Chemist, Nairobi. On 2nd August, 2022 he obtained buccal swabs from Margaret Ndunge Nthia alleged to be mother of deceased person. He received a tibular bone wrapped in khaki from No.239368 IP Anthony Okumu from DCI Mukaa, on 4th August, 2022 a femur bone was received from the same officer – he was required to establish the existence of genetic relationship if any between the buccal swabs and the bones. 20.He testified that DNA profile from the femur bone matched the DNA profile from the buccal swabs from Margaret Ndunge Nthia. He produced his report dated 26th August, 2022. 21.On cross-examination he said that though siblings shared DNA, it could not be exactly the same – and would only match if they were identical twins. That the DNA profile showed that Margaret was a biological mother not a sibling. 22.PW5, No.239368 IP. Anthony Okumu was based at DCI Mukaa, he was the investigating officer. That on 25th July, 2022 a report of missing person was made at Salama Police Station from PW1 and PW2. He said the report was that Kelvin Mwendwa had been missing since 2017. They heard that there was a buried body at Ilaani village, Kilome. They went to the home of Alex Nzimbi. He told the court that they found the mother of Alex – asked for Alex and they were told he was sleeping in his brother’s house. The officer said that Alex told them that he and the deceased had disagreed, that he had killed him, buried him in the toilet and blocked the toilet. 23.He testified that following day Scenes of Crime Personnel processed the same – they exhumed the bones – the bones were presented for post mortem – and the doctor said there had been a fracture of the skull. He then sent some bones to Government Analyst. He testified that upon investigation that accused said he had sold the murder weapon for scrap metal. He said the accused was charged. 24.On cross-examination he told the court that the accused was interviewed by the DCIO Chief Inspector Raymond Malel. He said a confession was taken by the Chief Inspector. He said upon arrest the accused was first taken to hospital. He said the date of the confession was one month after the accused had undergone treatment – that his statement was recorded on 30th August, 2022. Asked about the statement, he referred to one dated 25th July, 2022. He was asked about the treatment notes for the accused person. He said he had not produced the same. 25.PW5, No.79063 Cpl, Derrick Kiprono. He said he went to the scene on 26th July, 2022. He took photos – which included phots of skull and pelvic bone, long bones, ribs, upper and lower limbs. He produced the photos as P. Exhibit 4 (a), (b), (c), (d), (e), (g). Certificate P. exhibit 5. 26.The prosecution closed the case. 27.The accused was put to his defence and he made a sworn statement of defence. Defence Case: 28.The accused person told the court that he and the deceased knew each other at Borstal Institute: Shimo La Tewa. He said he was in Borstal from 7th January, 2o11, Kelvin joined him there in April, 2011. He said he left Borstal on 25th May, 2012, and did not know when Kelvin left. 29.He told the court how on 25th July, 2022 he was at home when police and the parents of the deceased came to his home. He said the parents of Kelvin knew him because they had met him at Borstal. He said the police told him to show them the toilet near the lemon tree. He said there were three toilets, one of which was unused, had “poromokad” forcing him to dig another. He said this last one was unused. 30.The police told him to show them the toilet that had ‘poromokad’ and while he was doing so, PW2 slapped him, saying he was wearing Kelvin’s clothes. He (PW2) told accused that he had hit Kelvin with an iron bar 3 times. They dug up the toilet and said they had found some bones. The following day they came, and picked the bones. He denied any knowledge of what happened or how the bones got there. 31.On cross-examination he said the day police came he was home with his mother. He said when police came they asked “wapi choo yenu ilibomoka karibu na ndimu?” That the police then went and dug and said they had found bones. He said when they found the bones, he was at the police station. He said that that toilet just collapsed, he denied that deceased lived in his home. 32.The accused did not call any witnesses. Submissions. 33.At the close of the case for the prosecution and defence – counsel for the accused person filed their submissions dated 10th May, 2026. After reiterating the evidence presented by the prosecution, and the defence counsel set out issues for determination: -1.Whether the prosecution has established malice aforethought on the part of the accused person.2.Whether this case meets the high threshold for circumstantial evidence to sustain a conviction.3.Whether the prosecution has proved actus reus on part of the accused person. On the 1st issue: 34.The counsel set out the ingredients of murder, and submitted that the prosecution had not established any intention to kill on the part of the accused person – and none could be inferred from the conduct of the accused. That no weapon was recovered and there was no evidence that there had ever been a struggle between the accused and the deceased . On the 2nd issue: 35.Counsel referred to R –vs- Kipkering Arap Koskei & Anor. [1949] 16 EACA 135.“That 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 hypotheses than that of guilt, and the burden of proving facts which justify the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused.” 36.Reliance was placed on Simon Musoke –vs- Republic CR.APPEAL No.188 of 1956.“At the same time there must not be any co-existing facts in or circumstances which may weaken or destroy that inference of the guilt of the accused person.” 37.The Court of Appeal in Peter Mote Obero & Anor. –vs- R.[2011] eKLR – the Court of Appeal in CR. Appeal 177/2008 (Kisumu) reiterated R –vs- Kipkering Arap Koske stating“It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference with those safeguards in place, circumstantial evidence is as good as any direct evidence which is tendered and accepted to prove a fact.”See also R –vs- Taylor, Weaver & Donovan [1928] 2) CR.APP.20 CA. 38.It is submitted that no one saw the accused kill the deceased. That it was evident that the accused did not live alone in the homestead; that the pit latrine was accessible to other people – members of the family, visitors, trespassers at night – and there was no evidence that it was the accused who had the sole use of the said toilet. 39.That the evidence by the accused destroyed the circumstantial evidence and that all the police and the prosecution had were suspicions. On the 3rd Issue: 40.It was submitted that there was no proof that the deceased’s death was unlawful; that the deceased could have fallen into the toilet accidentally – or could have been placed there by a 3rd party – or could have died of natural causes. the Defence cited R –vs- Mary Ng’eno & 3 others [2014] eKLR – where a body was found in a pit latrine – and the court was of the view that prosecution needed to link the accused to the act of killing. That in this case it was the same – the prosecution made no connection between the accused and the act of killing of the deceased. 41.Arguing that the prosecution had the burden to prove the charge beyond reasonable doubt the defence also cited Lord Denning in Miller –vs- Minister of Pensions [1947] 2 ALL ER 3372.“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.” Analysis and Determination: 42.I have carefully considered the evidence on record, the submission by the defence – (none were filed by prosecution). I must state that this was one of the bizarre murder cases I have handled. 43.According to the PW1 and PW2 their son went to prison in 2014 . That when he completed his term and was about to leave prison, he rang the mother and told her, that he no longer wanted her involved in his life. 44.That in 2022, there were rumours that their son was killed by his friend in 2017. That these rumours began by the father overhearing a conversation by some people who were walking past him and his wife; saying how they( he and his wife) were going to cry as their son had been killed. 45.These people did not record statements to Tel the court how they knew in 2022 that the son of PW1 and PW2 had been killed by the accused in 2017. How did they know? How did they also know exactly where the body had been buried or thrown? 46.These persons who had firsthand information , who knew about the killing did not testify. PW1 and PW2 told the court that there were people who came from the area who knew about the killing. However, none of them was called as a witness – no one from the area where the offence is said to have been committed was called to testify – not even the one named as the mother of Eunice the one who was said to have started the rumours. 47.It is evident that the investigating officer did not conduct any investigations to find out when the deceased could have been in the area, when the deceased was last seen alive and who he was seen with – they simply went, dug up the bones, and arrested and charged the accused. Yet there was no evidence from the parents that since 2017 they had not heard from their son, and what they had done about it? why was there no missing person report in the years preceding the alleged killing? 48.The testimony of PW1 and PW2 was purely hearsay – as to what other people said, what the accused is alleged to have said, and was not admissible against the accused. 49.The doctor who conducted the post-mortem told the court that when he conducted the post mortem he had no report as whose body the bones belonged to – he told the court that he did not have the DNA report telling him that that was the body of Kelvin Mwendwa. 50.In this evidence of the Pathologist the prosecution created a gap, whose bones did the pathologist conduct the examination on? The post mortem report by this doctor cannot be relied on as evidence of cause of death of Kelvin Mwendwa. 51.The I.O took some bones were to the Government Analyst for DNA analysis – During post mortem, the doctor gave samples for DNA analysis – the samples he gave out from the body he examined were not taken for analysis and if they were no report was availed to confirm that the body from which he took samples is the same one as the one whose bones the investigating officer took to the Government Analyst. 52.So, did prosecution establish accused killed the deceased? The prosecution established that there were bones, skeleton of a person in the unused pit latrine in the homestead of the accused – where he was with his mother and siblings. However, as to how the bones got there, there evidence placed before the court to connect the accused to the same was pure suspicion. 53.From the evidence adduced, there is no direct evidence linking the accused person to the commission of the alleged offence. The prosecution's case rests entirely on circumstantial evidence, which falls short of establishing an unbroken chain of circumstances pointing irresistibly to the guilt of the accused. Consequently, the evidence does not sufficiently connect the accused person to the offence charged.In Ahamad Abolfathi & another s Republic [2018] eKLR, the Court of Appeal held as follows;“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 just as direct evidence.” 54.Again, in Joan Chebichii Sawe vs Republic [2003] eKLR, the Court of Appeal held that;“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.” 55.In his defence the accused conceded that he knew the Kelvin. That they were in the Borstal Institution together but he left him there when he was released. He denied any knowledge of how the bones said to have been recovered in him home got there . He said when they were recovered he was already in custody. 56.In the end, the prosecution has failed to prove its case to the required standard of proof. There is sufficient doubt as to the involvement of the accused in the death of Kelvin or the person whose bones the police alleged were found in his home. The charge of murder is dismissed, and the accused is hereby acquitted. He is to be set l liberty unless otherwise legally held. 57.Right of appeal 14 days. 58.Orders accordingly. JUDGMENT DATED SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF JULY, 2026.MUMBUA T. MATHEKAJUDGEIn the presence of:Court Assistant - MwarahimuAccused: PresentMulei for AccusedMs Musango for the State