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High CourtDismissedCriminal Case No. 11 of 2013

Republic v Josiah Muthiani Maweu

High Court of Kenya
26 October 2020
GOG V Odunga
14,295 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~57 min to read original · ~4 min brief

The bottom line

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In criminal cases, suspicion alone is not enough; the prosecution must prove guilt beyond a reasonable doubt.

What this practically means

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Executive summary

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The accused, Josiah Muthiani Maweu, faced two counts of murder contrary to section 203 as read with section 204 of the Penal Code, arising from the deaths of W T, a traditional healer, and her 13-year-old grandson T N, who disappeared on 25th November 2012 after leaving home with the accused to treat his home at Kathama, and whose strangled bodies were found on 26th November 2012 in Del Monte Forest, Kilimambogo. The prosecution called ten witnesses establishing that the accused visited the 1st deceased three times, was last seen with both deceased in Thika, gave his phone number to the family, and was arrested after his number was tracked to Makueni and Nairobi. The defence was that the deceased disappeared from a Thika stage while he went to buy more changaa, that he was drugged in a bar and lost his phone, and that he believed the deceased had returned home. The court, Odunga J, framed the ingredients of murder and found death and its cause (ligature strangulation) proved beyond reasonable doubt. However, the case rested entirely on circumstantial evidence. Applying the tests in Sawe, Kipkering Arap Koske and Abanga, the court held the circumstantial evidence was not overwhelming, that there was no corroboration placing the accused at the scene, and that the blanket on the 2nd deceased's head was never examined. The court also held that malice aforethought was not proved, the only suggested motive being a land dispute involving a third party whom investigations failed to connect to the deaths. The accused was acquitted and ordered set at liberty unless otherwise lawfully held.

Key legal issues

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01

Whether the circumstantial evidence was overwhelming enough to invoke the 'last seen with deceased' doctrine

Holding

The court found the circumstantial evidence was not overwhelming; the accused's explanations (phone charging problems, belief the deceased left with PW4) weakened the chain of circumstances, and the blanket tied on the 2nd deceased's head was never examined or produced.

Reasoning

The court applied the Abanga and Kipkering Arap Koske tests requiring inculpatory facts incompatible with innocence. It found the accused's conduct had plausible innocent explanations, and the failure to examine the blanket found on the 2nd deceased's head left a missing link that weakened the chain of circumstantial evidence.

p. 11
02

Whether malice aforethought was proved

Holding

Malice aforethought was not proved; the only evidence tending to prove it was a land dispute involving a third party (L) whom investigations failed to connect to the deaths.

Reasoning

The court applied section 206 of the Penal Code and Nzuki v Republic, holding that without proof of intention to cause death or grievous harm, or knowledge of likely death, a murder charge fails. The land dispute motive was never linked to the accused, so the ingredient of malice aforethought was not established.

p. 13
03

Whether corroboration of the 'last seen' evidence existed

Holding

There was clearly no corroboration connecting the accused to the crime scene or the deaths.

Reasoning

The court defined corroboration as evidence tending to confirm other evidence in material particulars, connecting the accused with the crime. It found no such evidence: the accused was last seen with the deceased in Thika, but nothing placed him at Kilimambogo where the bodies were found.

p. 10

Legal principles established

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  • The burden of proof in criminal cases lies with the prosecution and never shifts to the accused
  • Suspicion, however strong, cannot be the basis of a conviction
  • Circumstantial evidence must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis before a conviction can be sustained
  • Malice aforethought must be proved for a murder conviction; without it the offence is at most manslaughter

Court orders

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  1. 1.The accused was acquitted of the charges of murder
  2. 2.The accused was directed to be set at liberty unless otherwise lawfully held
Jurisdiction invoked
Original criminal jurisdiction under the Penal Code, Cap 63 (murder charge under section 203)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Josiah Muthiani Maweu", Case Analysis (2020). Criminal Case No. 11 of 2013. Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.