https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9131

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **HCCRC NO. E003 OF 2022** REPUBLIC ……………………………………………………..PROSECUTOR **VERSUS** STALLONE KISAMBO TIMOTHY …………………….…..…1ST ACCUSED JOSHUA MUASYA NZIOKA ………………………………….2ND ACCUSED **JUDGMENT** 1. The tw0 accused persons STALLONE KISAMBO TIMOTHY and JOSHUA MUASYA NZIOKA are charged with murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged that on the night of 1st and 2nd January 2022 at Mbui Nzau Market, Nguumo Location, Makindu Sub-County within Makueni County (with others not before court) they jointly murdered Paul Kitonyi Mwanzia. 2. They each took plea on 1/2/2021 before Hon Dulu J and pleaded not guilty. They were represented by Mr. Judah Kioko Advocate. 3. The trial did not take off until 14/11/2023 for various reasons. 4. Pw1 17 year old **Mutinda Kitonyi** testified how on 1/1/2022 he and his father, and sister had lunch, and his father left for Mbui Nzau market. 5. Later, he too had went to Mbui Nzau market – but never saw his father – he went home around 7:00 pm. His father was not home. He slept. 6. The following morning around 5:00 am he heard his father knocking on the door, when he opened his father came in bleeding from the head and mouth. He told the court that he asked his father what had happened; that his father told him that 2 people Kisambo Timothy and Nzioka Muasya had beaten him. 7. From the record those were his last words to the boy – because thereafter, he landed on the bed – his head on the bed, his feet on the ground. 8. PW2, his father **Mwanzia Mailu** (grandfather to PW1) came and tried to lift him. He bled from the mouth. The boy was sent to call the neighbor – who was Pastor Musyoka and he came with his son Muema. They prayed then a boda boda was called – Mwanzia, and the Pastor’s son accompanied his injured father to hospital and when he was leaving, PW2 his grandfather told him not tell anyone what his father had told him. 9. His father was taken to Kibwezi, Amref hospital, later transferred to Kenyatta National Hospital where he died. 10. On cross-examination he said he did know that his father was drunk when he arrived home that night. He did not smell alcohol on him. He said his father did not tell him anything else, and his grandfather did not tell him why he told him not to tell anyone what his father had told him 11. He said he told the police what his father told him. 12. **PW2 Mwanzia Mailu** father of deceased, grandfather of Pw1. He told the court that his house was L-Shaped and he shared it with his son – the deceased, and his grandchildren – deceased’s children as deceased had separated with his wife. 13. He told the court that on 1/1/2022 they celebrated *sikukuu ( New Year)* , had chapatti and stew he, his son, his son’s children and his wife – their grandmother. After that the son left. 14. On 2/1/2022 he heard people talking. His wife who had woken up early went out – the Pw2 heard her scream. He went to check and saw his son sprawled on the bed – half on, half off, and Pw1 was there. When he lifted him to place him on the bed properly blood came out of his mouth. He sent for the pastor who came, prayed, and they took his son to hospital. He said his son did not talk to him but he had heard him talk to his son (PW1)– he was taken to Makindu Hospital , then Makueni Referral Hospital , then Kenyatta National Hospital. 15. He said deceased had injury on head, leg, ribs – he said it appeared to him that his son had been beaten badly – to the point where he appeared to have “resurrected” just to get home. 16. He said the grandson told him his father told him he was beaten by Kisambo and Nzioka – he said he told him not to tell people this. 17. He said the postmortem revealed that he had been injured on the brain, ribs – “**ubongo ulikuwa umesukumwa na damu**”. He said he knew the accused persons well; that they were relatives – one was like his own child, the other his cousin because Accused 2’s father was brother to his mother. That Kisambo and Nzioka’s mothers were sisters. He said Kisambo had at some point taken deceased’s money, was arrested, matter settled. that his son , Paul, the deceased was being accused of taking Nzioka’s wife. 18. On cross-examination he said that he lifted his son – blood spurted from his mouth – he said Mbui Nzau was 21/2 kilometres from home. 19. He said he did not know who had killed his son. 20. **PW3 Justus Mwanzia** the younger brother of the deceased, testified how he received the information of his brother’s state, followed him to hospital, how he finally died. He testified that his brother had injury on the head, broken skull, left leg was fractured. He said he conducted his own investigation to find out where his brother was on 1/1/2022. He said he found out that he had been at Billionaire’s club where he quarreled with Kisambo and Nzioka, and the 2 followed him when he left. He said one Mercy, a worker at the club is the one who gave him that information. 21. **Pw4 Dr. Joseph Ndung’u** a Consultant Pathologist at Kenyatta National Hospital conducted the postmortem examination on body of Paul Kitonyi Mwanzia on 12/1/2022 at Kenyatta National Hospital mortuary. The body was identified by his father and a police office. 22. Externally the head was bandaged, breathing tube was insitu and ECG links were on the chest. Internally there was a head injury – craniotomy incision, craniotomy window on the left side of the head. – there was bleeding into the brain tissue on the left side of the brain, and bruises on the left brain – brain contusion. Cause of death – traumatic brain injury due to trauma caused by blunt force. 23. He produced the postmortem Report as PEX 1. 24. On cross-examination he told the court that they could not differentiate blunt trauma – that even a fell could result in blunt trauma. 25. **Pw5 No. 49068 CPL Thaddeus Kimweli** from Makindu police station, was the Investigating Officer. He testified that a report was made at the station on 5/1/2022 by the father of deceased that deceased was assaulted on 1/1/2022 at Mbui Nzau market. He accompanied the three reportees, father, brother and son of the deceased to the Mbui Nzau market – to the bar where deceased and Accused 1 were said to have been drinking on the fateful night. – Billionaire’s Club. At that time the deceased was in the ICU at KNH. 26. He told the court that at the club he “***took***” the bar maid and the watchman. He then went to look for Kisambo he did not find him – he found Accused 2 and arrested him and three others – He visited deceased in hospital on 6/1/2022 found him in ICU on oxygen. He was not talking. He handed over the case to DCI. 27. He attended the postmortem examination. 28. He said the 2 accused persons were said to have assaulted the deceased as he left the club. He also said when deceased got home, he told his son about the two. He testified that he recorded statements of the barmaid and watchman but did not know whether they had testified – that their names were Mercy Ndumi and Mutinda Musee. That these 2 told him that Accused 1 was drinking with the deceased on the material date, Accused 2 came greeted them and left. 29. He said that the only evidence he had that the accused persons were at Mbui Nzau that night was from Mercy and Mutinda, the workers at Billionaire’s Club. He also said that a person could be located by their phone. 30. On 3/4/2025 prosecutor closed its case. 31. The accused persons were put on her defence pursuant to section 306(2) of the CPC. 32. Accused 1 in a sworn statement said he was at home on 1/1/2022 and never went to Billionaire’s Club. He said he was unwell. He did not have any issues with the deceased and did not know why the deceased mentioned him. 33. On cross-examination he said he knew the deceased and that there was some relatedness – ***“ni watu was familia”.*** He said from his home to Mbui Nzau was around 3 kilometres and that his family and that of deceased did their market issues at Mbui Nzau. He said what the deceased told his son was a lie. He said his co-accused was his cousin. 34. His mother **Tabitha Kilunda** testified that her son was unwell and did not go anywhere on 31st, 1st, 2nd. On cross-examination she said he would tell her if he was leaving the home. 35. Accused 2 **Joshua Nzioka Mwanzia** testified that he was at home on 1/1/2022. He said he never left his home and the story of his injuring the deceased was lies. 36. He said he had one issue with the deceased – who was his cousin – when he became friends with his (Accused 2’s) ex-wife. He said this must have been the reason for his arrest. He said the police arrested 4 people they also arrested the barmaid and the watchman – yet these others were released. He did not know why. He said he did not take alcohol. 37. He, when cross-examined said he had left his wife – then he later heard she had started a relationship with his cousin –the deceased. 38. DW4 Wayua Matiasi testified that the Accused 2 was her elder brother. She said that her brother was at home on 1/1/2022 – that her brother did not drink alcohol. She said Accused 2’s wife had just been discharged from hospital after giving birth. That Accused 2 never went to Mbui Nzau. 39. On cross-examination she said on 1/1/2022 she had gone to assist Accused 2’s wife – who had given birth – she said she stayed there close to 2 weeks, that even when he was arrested she was there. **Submissions** 1. Counsel for the accused persons submitted that the case for the prosecution was based on circumstantial evidence. * That the deceased told his son who beat him before he died. * That the bar attendant and the watchman at Billionaire’s Club at Mbui Nzau Market placed the accused persons in a fight with the deceased on the material night. 1. It was submitted that the evidence of Pw1 was uncorroborated and untrustworthy – that the case for the prosecution was that the Accused 1 and deceased were drinking together that night yet PW1 said he was not drunk, did not smell of alcohol. That the prosecutor closed the case without calling the bar attendant and the watchman to place accused persons at Mbui Nzau – and no forensic evidence was brought to place the accused persons and the deceased at Mbui Nzau on the material night. 2. That the defence presented alibi evidence and witnesses which went unchallenged by the prosecution. There was no evidence to place the accused persons at the scene, there was no evidence of participation in any act that caused the deceased injury; no malice aforethought could be established. 3. The accused persons rely on ***Antony Ndegwa v R [2014] eKLR*** on the ingredients of murder that prosecution must establish – They rely on ***Sawe v R [2003] eKLR*** on what kind of circumstantial evidence can hold a conviction, ***Abanga v R [1992] eKLR*** and on the nature of circumstantial evidence – that the chain of circumstantial evidence must be so high that only accused could have committed the offence; ***Bukenya v Uganda [2021] UGCA 20*** on the effect of failure to call key witnesses by prosecution; ***Sawe v R [2003] KECA 182 KLR*** – on the requirement for prosecution to avail all witnesses to establish the truth 4. On dying declarations, it was submitted that Kenyan Courts have held that dying declarations are admissible but they must be treated with caution and be corroborated. 5. This court is urged to find that the prosecution has failed to prove its case beyond a reasonable doubt. **Analysis and Determination** 1. I have carefully considered both prosecution and defence evidence on record. I have considered the submissions by defence – state chose to rely on the evidence on record. The issues are that present for determination are:- 2. *Whether deceased made a dying declaration?.* 3. *What is the weight of that dying declaration?* 4. *Whether prosecution has proved the charge of murder contrary to section 203 as read with section 206 of the Penal Code?.* 5. *Whether the accused persons presented evidence of alibi?.* 6. *Whether those alibis were shaken?*. 7. On the dying declaration, PW1 a child of the deceased told the court that the father arrived home with injuries on the morning of 2/1/2022. That the father told him that he had been beaten by Kisambo Timothy & Nzioka. That when he told his grandfather, his grandfather told him not to tell anyone what his father had told him. Apparently his father never said anything else. 8. Hence what he said is deemed a dying declaration in view of the provisions of section 33(a) of the Evidence Act, Cap 80 Laws of Kenya – **“Statements, written or oral, of admissible facts made by a person who is dead… as to the cause of his death or as to any circumstances of the transaction which resulted in his death, in cases which the cause of that persons death comes into question…”** 1. The court relying on a dying declaration must caution itself as was guided by ***Pius Jasunga s/o Akumu v R [1954] 21 EACA 333*** – and confirmed in ***Stephen Muturia Kinganga v R [2013] KECA 109 (KLR)*** and numerous other authorities. 2. The Court of Appeal in **Henry Mulamba Bwire & Anor v Republic [2019]KECA 163 KLR** had this to say; *Turning to the legal threshold for sustaining a dying declaration as a basis for conviction, the trial court reviewed the case of* **Pius Jasunga S/O Akumu versus R. [1954] 21 EACA 333** *for guiding principles namely, that caution must be exercised when accepting a dying declaration as a basis for a conviction. Secondly, corroboration for a dying declaration is not mandatory but there is need for the court to examine the circumstances under which the dying declaration was made and satisfy itself that the deceased could not have been mistaken as to the identity of the accused. Thirdly, it is generally unsafe to base a conviction solely on the dying declaration of a deceased person made in the absence of an accused person and not subjected to cross-examination*. In **Pius Jasunga** the Court stated: *“The question of the caution to be exercised in the reception of dying declarations and the necessity for their corroboration has been considered by this court in numerous cases and passage from the 7th Edition of Field on Evidence has repeatedly been cited with approval* 1. The rule of the thumb appears to be that that it would be unsafe to convict on an uncorroborated dying declaration. In this case – the PW1 told the court that the only thing the father told him is that he was beaten by Kisambo and Nzioka – the record will show that the prosecution did not endeavor to get the actual words spoken by the deceased to PW1 . The court was not told the exact words that he said. What exactly did he say? 2. In addition, the prosecution had two eye witnesses, who even recorded statements as per the I.O only 2 witnesses who would have corroborated the fact of the accused persons having been seen in the company of the deceased on the material night, and having had a quarrel, that is said to have led to a fight were **NOT** called as witnesses – these two – Mercy and Mutinda – the bar attendance and the watchman at Billionaire’s club – these 2 were crucial witnesses in placing the deceased, and the 2 accused persons in the same place on the fateful night. In Pius Jasunga 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. The prosecution has not provided any other evidence to connect the 2 accused with the injuries that the deceased had that night. 2. There is no established scene where the offence is alleged to have occurred. The Investigating Officer did not investigate the matter. He did not establish where in Mbui Nzau Market the offence happened. Where did the alleged fight occur? he did not identify the scene so it is not known where the alleged beating took place. 3. The I.O arrested several suspects – recorded statements but did not do anything beyond arresting these two on the alleged dying declaration. It is evident that the prosecution did not support the dying declaration with satisfactory corroboration. 4. The prosecution established that the deceased died from the injuries he sustained on the night of 1st/2nd January 2022. These were head injuries. The cause of death was the bleeding into the brain following blunt trauma. The pathologist stated that the same injury could have been sustained from a fall – which could also have caused blunt trauma. 5. No one placed the deceased at Mbui Nzau market on that 1st January 2022 – not even Pw1 who said he was there the whole afternoon and never saw his father there – so we do not have evidence that he was indeed at Mbui Nzau and that he would have sustained the injuries there – 6. So other than that, deceased arrived home on the morning of 2/1/2022 with serious head injury no other evidence places the accused persons where he was – or him, where they were. 7. The 2 accused persons denied the charge. Each of them gave sworn evidence that they were at their homes – for Accused 1 – the mother testified that he was at home, unwell, for Accused 2 – the sister testified that he was at home, that his wife had just given birth. That in any event, the accused 2 – did not take alcohol, so he could not have been drinking with the deceased/or with Accused 1. 8. There is no evidence of any previous disagreements, fights – quarrels, threats – and even when issue of the deceased’s affair with the ex-wife of Accused 2 did not appear to have created any issues/animosity, and this came out from the testimony of the deceased’s father. So – the court was not given evidence to demonstrate any bad blood between the accused persons and the deceased – 9. The 2 accused persons told the court that they were in their homes that day and that night. Their witnesses on cross-examination were not shaken. 10. Having considered the evidence given by the prosecution and the defence by the accused persons, it is clear that there is sufficient doubt as to whether the accused persons committed the offence as alleged. This doubt must be resolved in favour of the accused persons. 11. in the circumstances, charge of murder dismissed, each of the accused persons is acquitted accordingly and is to be at liberty unless otherwise legally held. Orders accordingly JUDGMENT dated signed and delivered virtually this 26th June 2026. **MUMBUA T MATHEKA** **JUDGE** **In the presence of**:- CA Chrispol A1- present A2- present Mr. Judah Kioko for accused persons Ms. Musango for the State