https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9463

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **HCCRC NO. E010 OF 2025** REPUBLIC ……………………………………………………..PROSECUTOR **VERSUS** SHADRACK MWANZIA NDAMBUKI …………………….…..…ACCUSED **JUDGMENT** 1. Shadrach Mwanzia Ndambuki is charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on the night of 29/12/2024 at Kathonzweni center, Kathonzweni location Kathonzweni sub county Makueni County jointly with others not before court murdered Stephen Kimathi. 2. He pleaded not guilty on 8/5/2025. 3. He was represented by Mr. Mutuku. 4. PW1 was the father of the deceased. He told the court that on 28/12/2024, his son Stephen Kimathi came home at 2:00 am. His other son Kilonzo told him that Stephen had come home without clothes, and told him that he was assaulted by Junior the son of Katwelo. 5. He went to Kimathi’s house and found Kimathi on the bed. Kimathi told him he had been assaulted- that three people had ambushed him at Vitale corner, and that he had only identified Junior Katwelo. About 4:00 pm, he noticed that Kimathi was deteriorating. About 9:00 pm, they took him to hospital – He was complaining of stomach and head pains. 6. At Kathonzweni hospital the doctor examined him, then he called him in and told him that Kimathi was no longer present and advised him to find a way to take his body to the mortuary. Later a postmortem was conducted. The doctor told them that Kimathi had a fracture of the head, and there was bleeding in the brain. 7. On cross examination he said he did not know the accused person but he knew the father – he said he could not tell the exact time the son came home, he said it is the one who opened for him who said that he was naked. He said he went to see his son Kimathi at about 7:00 am. He said he did not ring Mwanzia Musyoka, he sent a child called Sammy Mutua. He said Kimathi told her that he was assaulted. He said he did not know how many people assaulted him. He said he was sure his son told him he was assaulted by three people. He said five of them entered the postmortem room. 8. PW2 Gabriel Kilonzo told the court that Stephen Kimathi is his brother, and that they shared a room. That on 29/12/2024 Kimathi came here at 2:00 am. He was crying. He said that at Vitale, he was ambushed by two men on a motorbike who took his clothes, trouser, inner wear, phone. He said he identified Junior Kitwelo. He complained of stomach pains, pain in the head and had injuries on the knees. He, PW2 woke up and went to work leaving word with his mother to go check on him as she was outside when he was leaving. He came back approximately 6:00 pm and found that he had been given medicine. They took him to hospital – but the doctor said he was dead. He said he was not aware of any grudges between the accused and his brother. 9. On cross examination he said he did not know the accused person but used to see him in the area he said his brother came at 2:00 am, and did not have clothes on, he said he recorded a statement with the police. He denied that he told the police that he told his brother to sleep and go to hospital in the morning. He said when the brother came he told him that he told him he was beaten when he appeared at 2:00 am; by three people. He also said that deceased told him 2 men on a motorbike assaulted him. On reexamination he said 3 people on a motorbike assaulted him. 10. PW3 Kennedy Muli a doctor at Makueni Referral Hospital. He conducted the postmortem on the body of Stephen Kimathi on 3/1/23025. He had soft tissue injury on the face and neck and chest; soft tissue injuries on knees. There was blood in the abdominal cavity – 2 litres, massive subdural hematoma, occipital and temporal region- cause of death severe head injury causing massive subdural hematoma. On cross examination he had liver lacerations caused by blunt trauma. 11. PW4 Maurice Muswii Ndambuki – told the court that he did not know the deceased well, but he and the family was neighbors at home. That on 29/12/2025, he went to Kathonzweni and found a crowd- people were talking about 2 young men who had fought and one died, he said that they mentioned Junior- one Shadrack Mwanzia. He said he went looked for father of Shadrack and told him what he had heard. He told father of Shadrack that the one who had died was said to be Ndambuki s/o Andrea. He was told to go record a statement at the police station. He said he did not know what happened he only heard what people said. On cross examination he said that he did not witness the fight, that the people just said that the two fought. 12. PW4 Daniel Muthama Mutule was the boda boda rider who assisted to rush Kimathi to hospital after he was called by PW1 at approximately 10:00 pm. He said when they arrived at Kathonzweni Health Centre the nurse took him inside – and the (PW5) heard the nurse tell them if they had acted earlier, they would have saved his life. He said he saw the body had blood stains on his face and clothes. On cross examination he said he could not know whether the deceased had malaria- his was just to rush him to hospital. He said he was called from his home - that they came to his gate with the sick person. Shown his statement to the police it said that they called him from his house, and he proceeded to the house of the PW1.He changed and said he did not find them at his gate- but he proceeded to their home, on reexamination he confirmed that he was called to the house of PW1. 13. PW6 no 259188 PC Matete Obadiah from DCI Kathonzweni. He was the investigating officer. He testified that the report he was assigned to investigate was that the deceased was a mechanic at Kathonzweni Market – on the material night he was going home at about 2:00 am. When at Vitale primary school he was approached by a motorcycle which had 3 passengers, they alighted from his motorcycle- he knew one of them by name Shadrack Mwanza Ndambuki alias junior; that the three assaulted him he was over powered, he fell down – that they took his phone, money – that he went home, where he found his brother Kilonzo and told him what had happened- that he was later pronounced dead when the family took him to hospital. 14. He said he conducted investigations and found that the deceased was assaulted by the accused whom he recognized because he came from a nearby village. That after the postmortem he pursued the accused- whom they arrested on 4/5/2025 *“after a tip off* “at Kathonzweni Market. He recommended that he be charged with murder contrary to section 203 a read with section 204 of Penal Code .On cross examination he denied that he had not been told everything he told the court. He said he was not there when deceased was attacked, he could not confirm that deceased was attacked by three people; he did not see the accused snatch the mobile phone from deceased; He said Kiundwani was approximately 3KM from the scene, he would not tell how long it took the deceased to reach home. He finally confirmed that what he told the court is what he was told by the witnesses. 15. He said he did not think this was a case for an inquest, he said accused was well known to the deceased; that he did not recover anything from the accused. 16. In his sworn statement of defence the accused person told the court that it is not true that he had committed the offence. He told the court he was not at home at that time. He told the court he was away doing his business at Matiliku - and when he came here on 5/4/2025 he was arrested – he gave the story of his suffering upon arrest, how the DCI officers demanded money from him so that they could drop the charges and he refused. He told the court that he was found with nothing related to the deceased – and that he did not know the deceased. He denied the offense. **SUBMISSIONS** 1. In his submissions Counsel for accused person set out the evidence given by each side. 2. Relying on **Antony Ndegwa Ngari versus Republic (2014) KECA 424 (KLR)** he submitted that the prosecution must prove all the ingredients of the offence of the murder beyond a reasonable doubt, *the death of the deceased and cause of death*, *that accused caused the death of the deceased via an unlawful act*; *that accused had malice aforethought*. Counsel pointed out the contradictions in the case for the prosecution regarding the number of people who had allegedly assaulted deceased; on whether one of the boda-boda’s that was to take the deceased to hospital broke down, whether the boda boda had gone to the home of the PW1 to pick the injured person or whether they brought him to his gate, whether the accused fought, whether accused attacked the deceased. 3. On the proposition that these discrepancies, contradictions and inconsistencies ought to be resolved in favor of the accused person the defense cited **Richard Munene verses Republic (2018) and KLR.** It was submitted that the inconsistencies/ contradictions were substantial and ought to be resolved in favor of the accused. Further that the prosecution case was based on circumstantial evidence and according to **Sawe versus Republic [2003] KECA 182 (KLR**) – there was no evidence showing that the inculpatory facts were incompatible with the innocence of the accused person’ – that in this case no witness saw the accused commit the alleged offence or place the accused at the scene where the offence was committed- that the circumstantial evidence is weak. That the accused defense is unchallenged, that he was living in Matiliku – when he was arrested – that the police tried to arrest him on the threshold of circumstantial evidence the defense cites **Kirimi versus Republic (2025) KECA 410 KLR** where the court stated: *The evidence against the appellant was to a large extent circumstantial evidence as to what actually transpired immediately before, during and after the incident.* *Circumstantial evidence must be examined with circumspection before it can be relied upon to support a conviction.* *17. In the case of* ***Sylvester Mwacharo Mwakeduo & another v Republic [2019]eKLR*** *this Court observed:* *“Over the years, courts have set the threshold which has to be met if circumstantial evidence is to be relied on to prove a case to the required standard of beyond reasonable doubt.* *For circumstantial evidence to form the basis of a conviction several conditions must be satisfied to ensure that it points only to the guilt of the accused to the exclusion of others. This test has previously been applied by this Court in a myriad of cases for instance in the case of* ***Judith Achieng’ Ochieng’ v Republic, Criminal Appeal 128 of 2006****, this Court stated the law as follows:-* *It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy four tests:-* *i. The circumstances from which the inference of guilt is sought to be drawn must be cogently and firmly established;* *ii. Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;* *iii. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else;* *iv. In other words, in order to justify a finding of guilt, the circumstantial evidence, in its totality, ought to be such that the incriminating facts lead to the unimpeded conclusion of guilt and that there are no co-existent facts that are capable of explanation upon any reasonable hypothesis other than that of the accused’s guilt.”* 1. It is submitted that the evidence before court is insufficient to prove the charge to warrant conviction – and the accused ought to be acquitted. **ANALYSIS AND DETERMINATION** 1. I have carefully considered the evidence on record, the submissions by counsel for the accused as I have found more by the state. The prosecution must prove the charge against the accused person beyond reasonable doubt. The ingredients of murder are set out in **Anthony Ndegwa (above).** 2. It is not on doubt that the deceased died and that the death was not of a natural cause. He died from injuries to his head caused by blunt trauma. So – death was not natural and unlawful. 3. Did the accused cause the death? 4. According to prosecution – the deceased told his brother that he was assaulted by Junior –son of Kitwelo. However, neither the father of the deceased nor the brother knew the accused person nor did any of the prosecution witnesses from the village of the deceased. The witnesses said they knew the father of the accused but the prosecution did not produce any evidence to that effect. The I.O was not truthful when he said that the deceased knew the accused because he came from a neighboring village. It is noteworthy that remained an allegation on the part of the prosecution. 5. No evidence was brought by the prosecution to establish that the father of the accused was known as Kitwelo, or that the accused person’s other name was Junior. This was clear from the charge and information where the prosecution did not use the alleged alias of Junior with regard with the accused person, an indication that they did not have evidence that he was known by that name. Again, the I.O’s stamen that the deceased told people he was assaulted by Shadrack Mwanzia alias Junior was not supported by any evidence from those who spoke to the deceased. None of them mentioned the name Shadrack or Mwanzia. They said Junior Kitwelo. The prosecution having charged the accused had the obligation to establish that he was otherwise known as Junior Kitwelo the one referred to by the deceased. They did not do that. Even in the charge sheet, the prosecution has not even named the accused as Shadrack Mwanzia Ndambuki alias Junior. The prosecution put pressure on the accused during cross examination that this was his other name was Junior - and the accused denied it and demonstrated that no one established that he was called Junior at home by anyone, even by his own family. 6. It is noteworthy that in the testimony by the investigating officer – he said that the person who assaulted the deceased was named Shadrack Mwanzia Ndambuki alias Junior. He did not tell the court how he established that the name Junior referred to the accused person. 7. It is evident that the prosecution case is that the deceased’s phone, clothes were taken by those who assaulted him – the investigating officer did not tell the court whether he investigated the phone of the deceased to locate its whereabouts or its call logs to see what information he could gather regarding the whereabouts of deceased – nor did he try to look for it to see whether it had any leads- he conducted no investigations other than arresting the accused. In fact, the evidence of the accused and how and when he was arrested is corroborated by that of the investigating officer – The investigating officer did not investigate the information brought out by the prosecutor in the cross examination the accused person – about an alleged place called Love Bar – where the accused is alleged to have been on the material night. No one testified to place him there. 8. The evidence of PW4 – was complete hearsay - the prosecutor tried to sneak in hearsay evidence to place the accused at a scene where some unknown people are said to have witnessed a fight between the accused and the deceased without calling these alleged eye witness to testify. 9. In addition what the deceased is alleged is have said cannot be said to be a dying declaration. His exact words were not stated – he used a name that could have referred to anyone and going by the settled principles on dying declarations- it was necessary that the same be corroborated by satisfactory evidence. In **Pius Jasunga S/O Akumu versus R. [1954] 21 EACA 333****the court stated** *“....it is not a rule of law that in order to support a conviction there must be corroboration of a dying declaration (Republic v Eligu S/O Odel & Another [1943] 10 EACA 9) and circumstances which go to show that the deceased could not have been mistaken in his identification of the accused. But it is generally speaking, very unsafe to base a conviction solely on the dying declaration of a deceased person made in the absence of the accused and not subject to cross examination unless there is satisfactory corroboration* 1. There was no evidence to connect the accused to the injuries that led to the death of the deceased – as the evidence- before court does not point at the accused person as the person who could have caused this death. 2. The issue of malice aforethought as envisaged by section 206 of the Penal Code does not arise. 3. In the circumstances I arrive at the conclusion that the prosecution indeed established that the deceased died. That the injury was caused by blunt force injury which could have been caused by a blow on the head. The accused denied the charges, explained where he was on the material time. The prosecution did not challenge his defence. The evidence before court did prove beyond a reasonable doubt that the accused was the one who committed the offence. 1. In the circumstances I arrive at the conclusion that the prosecution indeed established that the deceased died. That the injury was caused by blunt force injury which could have been caused by a blow on the head. The accused denied the charges, explained where he was on the material time. The prosecution did not challenge his defence. The evidence before court did not prove beyond reasonable doubt that the accused was the one who committed the offence .In the circumstances the charge of murder is not proved beyond reasonable doubt. The charge is dismissed and is the accused is accordingly acquitted. He is to set at liberty unless otherwise legally held JUDGMENT dated signed and delivered virtually at Kabarnet this 30th June 2026 **MUMBUA T MATHEKA** **JUDGE** **In the presence of**:- Accused CA Dan Mr. Mutuku for accused Mr. Musyoki for state