https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9599

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CRIMINAL CASE NO. 27 OF 2018** **REPUBLIC ……………………………………………...PROSECUTION** ***VERSUS*** **JOSEPHAT MUKONO RATUMO …………………..….1ST ACCUSED** **FRANCIS NDUHIU MUTURI …………………………..2ND ACCUSED** **RULING** 1. The accused persons are charged with the offence of murder contrary **Section 203 as read with Section 204 of the Penal Code** the particulars being that they murdered Emmanuel Mumo Mutuku, deceased, on diverse dates between 15th and 20th September 2018. The offence is alleged to have been committed at Kikesa Trading Centre in Yatta Sub- County. 2. The accused persons both pleaded not guilty to the charge whereupon the prosecution called ten (10) witnesses. The sum total of the evidence of the prosecution witnesses is that on or about 15th September 2018, the accused persons who were police officers attached to Kikesa Police Post arrested the deceased and took him to the police post. There were conflicting accounts of the reason for the arrest with some witnesses testifying that members of the family had reported a charge of incest against him at the police post with others disputing that such a report had been made. One of the witnesses even alleged that the deceased resisted the arrest and members of the public had to assist the officers. What, however, is not in dispute is that the deceased was arrested and taken to Kikesa police post only for him to be found lying not far from the post with injuries the next day. Members of the family were notified to go for him by the officers. They did so and took him to hospital but he did not come out alive. The court heard that the deceased disclosed to some of the witnesses that he had been assaulted by the officers. 3. A post mortem conducted on the body of the deceased by Dr. Johansen Oduor (PW8) revealed that the cause of death was multiple injuries caused by blunt trauma. The post mortem report was produced in evidence – (Exhibit P.2) 4. There was also evidence that during the investigations a blood stained trouser was found in the house of the 1st accused and that the blood on that trouser was put to forensic examination and it matched blood stains collected from the floor of the cells. The same also matched a blood sample collected from the body of the deceased during the post mortem. The trouser was produced in evidence as were the exhibit memo forms evidencing the specimens and articles that were submitted to the Government chemist for analysis (Exhibit 1 & 3 respectively. 5. After the close of the case for prosecution, Counsel agreed to make their arguments by way of written submissions. Only those of Mr. Mukula, learned Counsel for the 1st accused were received. Mr. Muteti, learned Counsel for the 2nd accused, elected not to submit at this stage but Mr. Masila, Prosecution Counsel simply did not file his submissions despite having more than two months to do so. 6. Be that as it may, I have considered the evidence and submissions on record carefully so as to determine whether a case has been made out against the accused persons, to warrant them to be put on their defence – see Section **306(1) of the Criminal Procedure Code**. At this stage I must be cautious not to delve into the merits or otherwise of the charge as I am yet to hear the case for the defence, unless of course I am of the view there is no case to answer, in which case I am required to give reasons. 7. The fact of the death of the deceased is not in dispute and is not in doubt as there is evidence that conclusively proves that fact. The cause of that death and also the fact that it was by an unlawful act is also in, my view, not in doubt as it was proved beyond reasonable doubt by the pathologist who performed the post mortem and that report was not challenged. The death was due to injuries occasioned or inflicted by an assault on the deceased. 8. What remains to be determined then, is whether the accused persons were positively identified as the perpetrators of that unlawful act and if not whether there is other evidence to prove beyond reasonable doubt that they were the perpetrators. Following that, will be the issue of whether or not the unlawful act was of malice aforethought. 9. Having considered the evidence and submissions, I am satisfied that the prosecution has established a prima facie case against the accused person’s sufficiently to warrant this court to put them on their defence. Firstly, they were the last to be seen with the deceased person so under the last seen doctrine they would be required to give an explanation. Secondly there is evidence of an alleged death declaration and thirdly there is forensic evidence that connects the 1st accused to the blood of the deceased. In the premises they shall be required to enter their defence as required under **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. MAINA** **JUDGE** **In the presence of:** Mr. Mukula for 1st accused person Mr. Muteti Advocate for 2nd accused person Madam Otieno for the State Accused person Benjamin - Court Assistant/Interpreter