https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9524

Republic v Nzilani (Criminal Case E011 of 2022) [2026] KEHC 9524 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEHC 9524 (KLR) Republic of Kenya In the High Court at Machakos Criminal Case E011 of 2022 EN Maina, J June 30, 2026 Between Republic Prosecution and Catherine Nzilani Accused Ruling 1.The accused person is charged with the offence of murder contrary Section 203 as read with Section 204 of the Penal Code. 2.The particulars of the charge are that on 21st March 2022 mat Mlolongo Township, the accused murdered Julius Mulu Wavinya. 3.The accused pleaded not guilty to the charge following which the prosecution called five witnesses. Briefly their evidence was that the accused and the deceased were cohabiting in a house where he was found dead on the morning of 22nd March 2022. The previous night the two of them had been out drinking with their friends PW3 and PW4 and had gone back home drunk. They retired to their bedroom or bed area which was separated from the sitting room by a curtain while their friends were left sleeping on the couches in the living room area. However, the next morning only the deceased was in the bedroom and their friend, PW3 did not know when the accused left the house as he was asleep. Later, another of their friends PW4 went to the house and found the lifeless body of the deceased in the bedroom. According to PW4, the accused person later called to say that the deceased had been found dead in the house and he should go there which he did and confirmed. Upon confirming what the accused told him he went to report the matter. He met there with the accused who purported to have also gone to report. Police officers went to the scene and removed the body to the mortuary. They later commenced investigations and when a post mortem was conducted it revealed that the deceased had been strangled. It was then that the accused was charged with this offence. PW3 testified that on the fateful night the accused and the deceased confronted each other but there was no physical fight. According to the investigating officer (PW5), the accused alleged that the deceased had attempted to commit suicide on that night because he was incensed that she had reported him to the police for assaulting her. PW5 did not however believe her and hence this charge. 4.After the close of the prosecution’s case, the Counsel on either side – Mr. Masila for the State and Mr. Mwakireti for the accused, made their arguments by way of written submissions. I need not reproduce them here. Suffice it to state that I have considered them fully alongside the evidence in order to determine whether the prosecution has established a prima facie case against the accused person to warrant this court to put her on her defence. Analysis and determination 5.The offence of murder is proved when evidence is adduced beyond reasonable doubt that the victim died, that the death was caused by an unlawful act; that the unlawful act was by the accused person and that the act was actuated by malice aforethought. 6.In this case, I am satisfied that the fact of the death of the deceased, that the death was by a human hand and by an unlawful act have been proved beyond reasonable doubt. The death was proved by the deceased’s brother (PW1), his two friends (PW3) and (PW4), the Pathologist (PW2) and the Investigating Officer (PW5). The death was also conceded by the accused person. 7.That the death was by an unlawful act was proved through the post mortem report. The results of the post mortem were not contested and in the absence of evidence to the contrary this court finds the pathologist’s opinion valid. It is therefore my finding that the deceased was killed. 8.As to whether the accused was the perpetrator of the unlawful act, I find that as she was the last person to be seen with the deceased she has an explanation to give under the “Last Seen With” doctrine. This is more especially because there was evidence that on that night she had an altercation with the deceased person on the way to their house from the bar. 9.In the premises she shall be required to enter her defence as provided in Section 306 (2) of the Criminal Procedure Code. It is so ordered. RULING SIGNED, DATED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS ON THIS 30TH DAY OF JUNE, 2026.E. N. MAINAJUDGEIn the presence of:Madam Otieno for the StateMr. Mutinda holding brief Mwakireti for the accusedThe accused personBenson - Court Assistant/Interpreter