https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9844

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CRIMINAL DIVISION- MILIMANI COURT** **CRIMINAL CASE NO. 075 OF 2021** **REPUBLIC ……………..…………….……PROSECUTOR** **VERSUS** **DICKSON MURIITHI NDUNGU……………. ACCUSED** **RULING ON CASE TO ANSWER** **INFORMATION** 1. The Accused Person herein Dickson Muriithi Ndungu Alias Rasta Alias Vaite is charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code Cap.63 Laws of Kenya. 2. Particulars of the offence being that on the night of 9th December, 2020 at around 100 Hrs in Bondeni Area within Mathare Slums, within Nairobi County murdered Charles Kamile Luka alias Mudembi Kyalo. 3. The accused was found FIT TO PLEAD vide Report of 25/10/2021.The Charge/information was read to the Accused person on 1/12/2021 and he pleaded NOT GUILTY. 4. The Prosecution called a total of 6 witnesses and produced exhibits in support of its case. **PROSECUTION EVIDENCE** Hon. LJ D. Chepkwony heard the prosecution evidence from the following witnesses :- 1. **PW1 Nzioka Nthenge** who works at Eastleigh as a loader on lorries stated that on 9/12/2020 at about 9.00pm, he was in the house with the deceased. They were sharing this house The deceased left the house at about 10.30pm on this night and he was left sleeping. He was woken up by noise outside the house. He then heard a voice say "Faite Rasta amenidunga kisu" in Kiswahili language (translated in English to mean "Faite, Rasta has stabbed me with a knife"). He got out of the house and saw the deceased had fallen down at the gate to the plot and was bleeding. He was not talking but he was bleeding profusely from the left side of the chest (upper). The neighbours heard the noise and come out. They wrapped a lesso around the deceased and one of them called for a vehicle from Blue House Hospital and they met it on the road and ushed him to Blue House Hospital in Eastleigh. He followed the deceased to hospital and he was told that he had died. He went back to the house. The last thing he heard the deceased say was; "Vaite Rasta has stabbed him with a knife". He did not see Vaite Rasta at the scene where the deceased was lying when he got out. He knows who Vaite Rasta is as he used to live in a plot next to where they were living (deceased and him). There were about five houses between their house and where Vaite Rasta was living. Each house had a gate. The deceased had fallen outside the gate to their house. He knew Vaite Rasta as he was a neighbour. He used to work on a lorry which would transport goods to Eldoret and many other places outside Nairobi. He would take goods on a hand cart and load them on a lorry. The said Vaite Rasta was the one in court. He (pointed and identifies the accused person in the dock). He said that after the incident, Vaite Rasta disappeared from the area and he only saw him that day in court. He disappeared from the house from that night. **6. PW2 Kyafya Iluka** told the court that he used to live in Nairobi at the time of incident but now reside at in Kitui. He said that Charles Kamile Iluka Alisi Musembi Kyalo was his brother. On 10/12/2020 he received a call from his father that he had received a report his brother, Charles was admitted in hospital. When he went to his brother's place of residence, he saw blood on the ground and on enquiring where his brother was he was was told that he had died. He then proceeded to the city mortuary where he was shown his brother's body at the mortuary. He identified his brother and saw he had a stab wound on the left side on the upper chest. On 15/12/2020, they attended the Post Mortem examination with his father and uncle. He said that he was among those who identified the body to the doctor at the city mortuary. The doctor completed a Post Mortem Form. He (identified form) MFIP1. He was not present at the scene and did not witness the incident where his brother was stabbed. **7. PW3 Daniel Maingi Munyeke** who resides at Huruma stated that on 1/10/2021 at about 7.00pm on his way to the house from work Patrick Wambua whom he work with at Eastleigh called him and asked him where he was and he told him he was at home. He asked him they meet at a place not so far from where they were staying because he had seen someone who he wanted him to confirm if he was the one. A man they used to call 'Vaite' or Rasta had killed someone and Wambua wanted him to go and confirm if he was the one. The man who had been killed they used to call him Muvisi. He had other names I have forgotten.He went to where Wambua was and when he showed him the man, who was playing the pool game, he confirmed that it was Vaite. They went to Johazack-Huruma Police Station where they reported the matter and they were given 2 Police Officers who they led to where Vaite was playing the game of pool. They pointed Vaite out to the police and they arrested him. They used to call him either Vaite or Rasta. He said he did not know him very well but he would see him around Eastleigh. He was the one before court (points at the accused person in the dock). He heard he had killed someone but he did not witness the incident. When Wambua saw him, he called me to confirm if whoever he was seeing was Vaite. **8. PW4 Dr. Peter Muriuki Ndegwa** stated that he works with Ministry of Health, Department of Diagonistic and Forensic Services - Medico-legal Section as a Pathologist since 2005. He hold a Bachelor of Medicine and Surgery from the University of Nairobi and a Master of Medicine in Pathology from the same University.He told the court that on 15/12/2020, at the City Mortuary, he performed a post mortem examination on the body of one Charles Msee llika. It was identified to him by two persons, Patrick Itembu Kamila and Luka Kamila Ndengu, the father of the deceased, PC Mutune of DCI Starehe. He noted and documented that the body was of a female African adult (36 years) in blooded clothes. He was of fair nutritional status, slim and tall. He also noted that an ellipsoid penetrating stab wound medial to the right nipple. It was 8 by 4 cm. It was an indication of a single edge weapon. The body was pale and there was predatorial artifacts on the right upper libs and right anterior chest wall (some animals had nipped on the body). On opening up, the right chest cavity had been penetrated between the 3rd. and 4th ribs. The right lung had been perforated, and there was right sided hemothorax amounting 2000 milliliters equivalent to 2 liters. The other systems were briefly normal l He formed an opinion that the cause of death of the late Charles Kamule Luka was exsanguination hemorrhage due to sere chest injury secondary to a penetrating sharp force trauma. He produced a carbon copy of his original draft certified as a true copy dated on 18/10/2021 as Ex. P1 **9. PW5 No.84299 PC Mustafa Jillo** based at Huruma Police Station at Starehe Division told the court that on 1/10/2021, he was with his colleagues, IP Kivuva, PC Alex Muya and PC Peter Mugo when they received information that there was someone who had committed murder and was within their area at Mbuthya. Upon receiving the information, they accompanied some young men (civilian) who had come to make the report to a place where there was a pool table at Mbuthya. They identified to them a man by the name Dickson and they arrested him and escorted him to the Police Station and placed him in the cells. He was charged with the offence he is facing today. The report was made to IP Kibuba. The DCI Starehe took over the case. He said Dickson was the one before court ( he pointed and identified the accused person in the dock). 10. PW6 No. 74083 PC Alexander Muya based at Huruma Police Station performing general duties told the court that on 1/10/2021 at around 8.30pm they received members of public at the said Police Station from whom they received information that there was a man wanted for the offence of murder by Pangani Police Station. Together with his colleague they accompanied the members of public to Mbuthya within Huruma where the suspect (man) was spotted. They directed them to where the suspect was playing pool with others. They identified him to them and they arrested him and escorted the suspect to the Police Station and booked him in the OB via OB No.65/1/10/2021 pending collection by Pangani Police Station. He said he did not know the suspect prior to the arrest. **Hon. Lady Justice Muigai heard prosecution evidence from the following witnesses:-** 11. On 4/3/2025, **Section 200 CPC** was read to Accused person in Kiswahili by Court Assistant and Accused person opted to proceed from where the matter stopped. Further Hearing was scheduled on 28/4/2025. **12. PW 6 a Clinical Office**r working with M. C. F France – Mathare Project and Registered with Clinical Officers Council Registration No. 8453 testified on behalf of her colleague Selina Nyambu who could not attend court on that day. She said that she had worked with her for 6 years and she was conversant with her handwriting and signature. She produced Death Notification Form for Musembi Kyalo who was 35 years old. She told the court that the deceased was attended at M.C.G. Clinic on 9/12/2020. He was brought to the clinic by MSF ambulance accompanied by his friend with a history of stab wound by a known person in Mathare. He was taken for resuscitation as he was in a critical state at 23:15 Hrs and stopped at 28:45 Hrs and with no success and the patient was certified dead. The Death Notification Form was filed by Ms. Selina Nyambu on 9/12/2020. Notification of Death was produced ad Exhibit No. 2 of 9/12/2020. **13. PW7 - Jeremiah W. Thirikwa** ID No. 24631574 Force No. 241354 Inspector at Muthulwa HQ. He told the court that on 5/10/2021while within the Police Station he received a call from DCIO Mr. Musangi who told him that an accused person was held in Pangani Police Station custody for offence of murder of Charles Kamile Luka. He said that on 9/12/2021 at 9.00 pm the accused person and the deceased at Mathare when an altercation occurred over undisclosed issues and in the process the accused person stabbed the deceased on the chest. A neighbor went and found the deceased his roommate on the ground and he was writhing in pain and he stated he was stabbed by Rasta. The room- mate alerted neighbors to come and help him take the decease to the hospital as he was bleeding. They took him to MSF Hospital Juja Road where upon arrival the doctor stated that the deceased had died. Police officers at Starehe Police Station were informed and they came and took the body to City Mortuary awaiting post mortem. Immediately after the incident the accused person disappeared to an unknow destination. On 1/10/2021, about 10 months later, the accused person was sported at a Pool Table he was identified by 2 of the deceased’s friends and they reported to Huruma Police Station. 14. P.C. Mstafa J. W and P. C. Muia reached to the scene from Huruma Police Station within Hurama and they were able to arrest Dickson Murithi alias Bantu or Rasta and he was transferred to Pangani Police Station. 15. On 6/10/2021 applied for a custodial Misc Application at Makadara law courts to enable him to conduct investigations. He escorted the accused person to Mathare Hospital for Mental assessment and he was found FIT TO PLEAD. On 15/10/2024 a post mortem was conducted at City Mortuary and the body of the deceased was identified by his father and brother Luka. 16. After the post mortem it was certified that the deceased died from chest injuries. He recorded statements of several witnesses and Musyoka Nthenge PW1 testified that he heard deceased stating that he was stabbed by Rasta a neighbor at Huruma slums Bondeni Area Mathare. After the incident the accused person escaped from the area and came back/was found 10 months later and he was charged with the offence of murder. **17. PW9 – Fil Beult Liwas Nzavali – ID** No. 13061540 a Civil Servant National Registration Bureau Finger print Officer stated that on 8/12/2021 he received a letter from CID Starehe Division requesting for finger prints verification and attached to the letter was a list of P20 with recorded finger print impression. After verification of the finger prints from their system he found it belonged to Dickson Muriithi Ndungu holding ID No. 33710882 and he replied to the letter on 3/2/2022. He produced a report to support the information form their records :- * Name of Applicant * Registration of ID No. * Civil status – Home particulars * Photograph and signature * IO prints of the individual He produced the Report and Certificate under Section. 106 Evidence Act as Exhibit -3 Report dated 3/2/2022. **SUBMISSIONS** **ACCUSED PERSON’S WRITTEN SUBMISSIONS** 18.The definition of a prima facie case is well established in Court. The Court of Appeal in the case of **Anthony Njue Njeru Vs. Republic [2006]KECA 339.** **THE DEATH OF THE DECEASED OCCURRED** 19. On 9th December 2021, **PW1, Nzioka Nthenge**, testified that he lived with the deceased and that after the alleged stabbing, the deceased was rushed to Blue House Hospital. PW1 then followed the deceased to the hospital, and was later told that the deceased had died. During cross-examination, PW1 referred to the deceased as Charles. 20. On 9th December 2021, PW2, Kalsya Luka, testified that on 10th December 2020, he identified the body of his late brother Charles Kamile Luka Alias Musembi Kyalo at City Mortuary, and that he, alongside his father, attended the post-mortem conducted on his brother's body on 15th December 2020. 21. On 8th February 2022, PW4, Dr. Peter Muriuki Ndegwa, testified that he performed a post-mortem on the body of one Charles Musee Iluka on 15th December 2020. He testified that the body was identified to him by two (2) persons, Patrick Katembu Kamile and Luka Kamila Ndengu. He produced the Post-Mortem Form as Prosecution Exhibit 1, showing the deceased as Charles Musee Iluka, aged 36 years. 22. On 28th April 2025, PW7, Milka Jumi, a Clinical Officer, testified at MSF France Mathare Project on behalf of Selina Nyambu, a clinical officer. PW7 produced the Death Notification Form as Prosecution Exhibit 2. The form showed that one Musembi Kyalo, aged 35 years, was declared dead on 9th December 2020 at 2345hrs at MSF Lavender House. 23. Ordinarily, the death of the deceased in a murder trial would easily be proven by a post-mortem report; however, in this case, we are uncertain as to the identity of the deceased person. Who died? (i) Was it Charles Kamile Luka, as told by PW2? (ii) Was it Charles Musee Iluka, aged 36 years, according to the Post-Mortem Form? (iii) Was it Musembi Kyalo, aged 35 years, who died on 9th December 2020 at 2345hrs at MSF Lavender House as per the Notification of Death Form? Or (iv) Was it Musembi Kyalo who died on 10th December 2020 at 1240hrs at Kenyatta National Hospital, as seen in 'From Stapol Pangani dated 10/12/2020? 24. The Court of Appeal in the case of **Reuben Ombura Muma & another vs. Republic [2018] KECA 704 (KLR)** **PROSECUTION’S WRITTEN SUBMISSIONS** **DEATH OF THE DECEASED** **DETERMINATION** 25. Fact of death was proven by post mortem report dated 15th December, 2020 produced by the government pathologist which established that the deceased died as a result of a sharp wound on his left chest near the hear which damaged his lungs. This conclusively proves the fact and cause of death. **WAS THE DEATH CAUSED BY AN UNLAWFUL ACT OR OMISSION?** 26. PW 1 testified that he found the deceased lying down with blood oozing out from his chest and the deceased stated that the accused had stabbed him. There is o suggestion of an accident, self defence, or any lawful justification for stabbing an individual in the chest. **THE PERPETRATOR WAS MOTIVATED BY MALICE AFORETHOUGHT** 27. **Section 206** of the Penal Code outlines the circumstances that constitute malice aforethought which include: 1. An intention to cause death of or do grievous harm to any person 1. Knowledge that the act or omission causing death will probably cause the death or grievous harm to some person.... 28. The actions of the accused, as revealed by the evidence, fall squarely within this definition. An altercation ensued between the accused and the deceased, after which the accused became enraged and stabbed the deceased in the chest. Stabbing a person in the chest, a vital area containing the heart and lungs, demonstrates an intention to cause death or grievous harm. Furthermore, the accused's immediate flight from the scene and his evasion of arrest for approximately eleven months is conduct consistent with a guilty mind and consciousness of a heinous crime, from which malice can be inferred. 29. In the case of **Republic v Tubere [1985] KLR, malice** aforethought can be inferred by the nature of the weapon used and the part of the body targeted. Here, a sharp weapon was used to target the chest. **POSITIVE IDENTIFICATION OF THE ACCUSED PERSON** 30. The accused person was positively identified as the perpetrator. The most crucial piece of evidence is the dying declaration made by the deceased himself. PW 1, the deceased's roommate testified that he heard the deceased shout that he had been stabbed by 'Dickson alias Vaite alias Rasta. In Republic v Aboi (Criminal Case E013 of 2022) the court attached a significant weight to dying declarations as it held; ***"The statement by the deceased to the PWI relate to the events that eventually led to his death and I am therefore satisfied that the same amounted to a dying declaration. Whereas a dying declaration does not require corroboration, the deceased was very consistent in his mentioning of the Accused as one who attacked him and it is my finding that this coupled with the evidence of PW4 and PW6, both of whom I found to be credible and trustworthy witnesses, as they had no reason to lie against the Accused, leaves no doubt that the Accused committed this offence."*** 31. In the case of **Anthony Njue Njeru vs Republic Court of Appeal No 77 of 2006;** the Court determined the scope and content of case or no case to answer Ruling by the Court as follows; ***[Is]Was there a prima facie case to warrant the Trial Court to call upon the appellant to defend himself? It is a cardinal principle of our law that the onus is on the prosecution to prove its case beyond reasonable doubt and a prima facie case is not made out if, at the close of prosecution the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction”.*** 32. The issue of what is a prima facie case in criminal trials was clearly explained in **Ramanlal Trambaklal Bhatt vs R [1957] E.A. 332 at P. 334-335 where it was said:-** “***Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one:-*** ***“Which on full consideration might possibly be thought sufficient to sustain a conviction.”*** ***This is perilously near suggesting that the court would not be prepared to convict if no defense is made, but rather hopes the defense will fill the gaps in the prosecution case.*** ***Nor can we agree that the question whether there is a case to answer depends only on whether there is:-*** ***“some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defense.”*** 33. In the instant case, on record the evidence recorded upto the Prosecution closed its case; discloses a prima facie case that warrants the Accused person to be placed on his Defense. **DISPOSITION** **34. Upon this Court’s consideration of the totality of the evidence adduced and on record, the Prosecution has proved a prima facie case that warrants the Accused person to be placed on his Defense.** **35. Further Mention for Directions on 9/7/2026.** **RULING DELIVERED SIGNED DATED IN OPEN COURT** **CRIMINAL DIVISION HIGH COURT NAIROBI ON 18/6/2026.** **M.W. MUIGAI** **JUDGE** ***In the presence of:*** Ms. Jackline Wairumu for Accused Person - online Accused – Present in Court Court Assistant - Gladys Court – Ruling on evidence on record Further mention on 9/7/2026 **M.W. MUIGAI** **JUDGE**