Republic v John

He then went and brought a motorbike (boda boda) and let PW3 take the Muli to hospital. 6. According to PW3 – she and the boda boda person took him to Amref Hospital, Muli’s wife came while they were there and took him to Makindu Hospital – after she learnt about the incident from other people. 7. Beatrice added that accused was a regular at the club where she worked – but she did not know him well. She said it was not dark and she was able to see him. She however did not see the knife she said accused was stabbed on one side. She said both Alex and Sammy were drunk but she was not. She said the incident happened on 24/12/2018, she also said it was on 31/1/2019. 8. On his part Alex began by saying the incident was on 18/8/2018, then that it was 16/8/2018. On cross examination he said that Muli was drunk when they left PW3’s club. That as they were walking to Kiembeni Club, Muli received a phone call, he slowed down and both he and Beatrice passed him and went ahead of him, and that he was behind them about 10m away. They heard him say , “Follow that person, he has stabbed me.” Alex told the court that He said he did not see the person, it was night, and there was no light. He said he that the last time he had seen the accused was in in the club and he was wearing DWA uniform. 9. PW1 – Joseph Rasha Sammy brother to deceased testified how he received a phone call from an uncle on 16/8/2018 at around midnight about the stabbing of Muli Sammy. He was about 10km away from where the incident was said to have happened . He he left the scene in the company of other family members. They found he had been removed and traced him to Makindu hospital undergoing treatment. 10. He testified that he spoke with Muli the following day – and that the Muli told him that he had been stabbed by Mulinge who he (PW1) did not know – but that they worked together at DWA. He said his Muli later told him that they went to a club, there was a girl, that Muli went out with that girl, that Mulinge waylaid him and stabbed him. 11. He testified that Muli was discharged from hospital after 2 weeks but a week and a half after discharge he began to vomit blood. He was treated at Machakos, Makindu Hospitals and later Jamii Hospital in Karatina where he did on 20/1/2019. A postmortem was later conducted. He marked the treatment documents and postmortem report. 12. PW2 Kyalo Mumo said he received a call from one Zembi who told him that Muli was stabbed by Joseph Mulinge. He said he knew both of them. After visiting Muli in Hospital, they began to look for Mulinge and did not find him at home. He said he took Muli to the police to report on 24/8/2018 but Mulinge had not been traced. 13. PW2 further testified that Mulinge was not at him home – and was spotted elsewhere from home, and they went there and arrested him. 14. On cross-examination he said he brought the Muli to the Police Station and that they actually walked there though he was not stable. 15. PW5, Reuben Muloi Zakayo , an uncle of Muli, also just received a phone call on 16/8/2018, and learnt about the stabbing. He spoke about the status of Muli’s health after the alleged stabbing. He described how he went home, sold land and took his nephew to a private hospital - where he was treated until https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4323/eng@2026-02-06 2

page 2 of 6

he died on 20/1/2019. According to him the postmortem revealed that Muli had been injured by a knife. He however confirmed that he was not present when the postmortem was conducted. He told the court he was really stressed by Muli’s illness considering the expenses he had incurred. 16. PW6 Dr. John Muthuri conducted the postmortem examination at Jamii Hospital Mortuary, Karatina on 31/1/2019. He said the form indicated the circumstances to be that the deceased was stabbed by known person on 16/8/2018 - and that surgery was initially done at Makindu Hospital and he was discharged on 23/8/2018. That he vomited blood on 15/9/2018, was managed is various hospitals and died on 20/1/2019. He was 23 years old. 17. Externally his body revealed evidence of medical interventions a healed abdominal surgical scar, puncture marks evidence of intravenous management. 18. Internally the deceased’s abdomen had multiple surgical adhesions – colon, stomach, small intestine. There was no evidence of obstruction/peritonitis/inflammation. There was blood within the stomach tracking to the small intestine about 1.5 litres. There was an ulcer about 2x2 cm. there were multiple nodules within the liver some, yellow, some white, longest was 4x4 cm. He formed the view that cause of death was upper gastro – intestinal bleeding due to a gastric ulcer from a penetrating abdominal injury – pending histology analysis. He testified that he needed to check the ulcer, liver and tissues in the body. That after the analysis he found that; the kidneys had features of acute kidney injury; the stomach – presence of an ulcer and gastritis, the liver had features of primary liver cancer – hepatocellular carcinoma. He produced the post mortem report. 19. On cross-examination by Mr. Kioko for accused he said deceased passed on after 5 months. That deceased died due to bleeding within the gastric system due to an ulcer, and cancer of the liver. Asked by court to clarify – he said that the ulcer was caused by infection of the gastric wall by H. pylori and that stress may cause gastritis leading to the ulcer. 20. PW7 No. 92194 Sgt Evalyne Furaha told the court she was attached to Kibwezi Police station on 16/8/2018. That on 24/1/2019 she was instructed by the OCS to accompany a village elder Kyalo Mumo to arrest a murder suspect. They went to a village within Makindu and arrested the accused who was identified by the village elder. 21. On cross-examination she said the suspect was sleeping in a house – that she did not establish whose house it was. 22. PW8 No. xxxxx PC Francis Musyoka took up the investigations in this matter on 29/4/2021 . He said the previous investigator was late C.I Thomas Okungu. He testified that all he did was to peruse the file where he found the witness statements, three discharge summaries with respect to the deceased dated 23/8/2018, 18/9/2018 and 17/12/2018 respectively. From the record he found that the deceased had sustained a stab wound injury in the abdomen leading to all these hospitalizations and a medical report from Jamii Hospital, Karatina , a postmortem report dated 21/1/2019. The suspect had already been arrested and charged before court. He said he did not carry out any further investigations. 23. On cross-examination he said he was not handed over the murder weapon. 24. The prosecution closed its case. 25. The issue is whether the prosecution has established a prima facie case to warrant the accused being put on the defence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4323/eng@2026-02-06 3

page 3 of 6

26. A prima facie case was defined in Republic v. Abdi Ibrahim Owl [2013] eKLR a prima facie case was defined as follows: “Prima facie” is a Latin word defined by Black’s Law Dictionary, 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption” 27. In Ramanlal Trambaklal Bhatt v. R [1957] EA 332 at 334 and 335, the court stated as follows: “ 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 defence is made, but rather hopes the defence 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 defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence…It is may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.” 28. I have carefully considered the evidence on record. The prosecution must establish the ingredients of murder – as defined at section 203 of the Penal Code. It states: Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. That a person died, that the death was unlawful and was caused by the accused with malice afore thought. 29. In this case it is not in doubt that the deceased died- but what caused his death? 30. The two witnesses Beatrice and Alex were the witnesses to the circumstances of the offence. However, they gave conflicting evidence on how the incident happened. Both said they were walking in single file at 11.30pm towards a club. One said Muli was ahead , the other that he was the one at the rear . One said a person passed and went ahead of them and she heard Muli say he had been stabbed. The other said he heard from the rear Muli tell them to follow that person who had stabbed him. Neither saw the knife or the stabbing take place. One said the attacker jumped into the nearby bush. The other did not say what happened. None said there had been any issues between Muli and the alleged stabber. One said in the same breath that he saw Mulinge and that he did not get to identify the attacker. The one who said she saw him did not explain how she identified him in the night. Neither named the Boda boda person who allegedly took Muli to hospital and he was not called to testify. 31. Evidently neither of the 2 persons who were present at the scene saw the stabbing take place . Each simply said o they heard Muli say that he had been stabbed and he was bleeding. 32. As to who stabbed Muli - while each readily name Joseph Mulinge and – it is evident from their testimony that this identification was not based on any description- voice, clothes, face anything. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4323/eng@2026-02-06 4

page 4 of 6

33. Beatrice says – I saw a person pass from behind us, and went to the front – the person who passed was Joseph Mulinge John. She said she did not know him too well but that he used to come to the club – Other than the name, Beatrice did not offer any other description as to how she was able to identify this person as Joseph Mulinge – the accused in the dock. She said that she, the deceased and Alex had taken Alcohol – that the 2 were drunk – something Alex denied. His testimony became even mere incredible under cross- examination – he said he and Beatrice were following each other and Muli was behind them – contradicting the testimony by Beatrice that the stabber passed her and stabbed Muli who was ahead of her – Alex said that Muli was 10m behind him and Beatrice when the alleged stabbing took place and that the person jumped into the bushes – so if Muli was 10m behind them, and the stabbing took place when he was 10m behind them at what point did the stabber pass them to stab Muli? It is also noteworthy that Beatrice does not say what the stabber did after he committed the offence – Alex added that when he last saw the accused in the club, he was dressed in his work uniform neither he nor Beatrice said that the person they saw was dressed in any uniform. 34. What emerges from the testimony of these 2 in that other than a name they give contradicting evidence on how the incident happened and that makes them evidence on the identification of the suspect incredible. Infact Alex in the end says he did not identify the suspect- leaving the testimony of Beatrice uncorroborated and unreliable. 35. The court must satisfy itself on the identification of a suspect I am guided by Maitanyi vs R [1986] KECA 39 KLR Wamunga V R [1989] KCEA 47 KLR where the Court of Appeal cited Abdala Bin Wendo V R 20 EACA 166 para 25 on the need the courts need to satisfy itself that the identification was proper. 36. The evidence of these witnesses on identification becomes unreliable due to itself contradiction. In addition, there is no evidence that the accused person and the deceased had any issues, disagreements etc. at the club before the three left or even before that. 37. Did the deceased make a dying declaration?(See R V Ntonja [2024] KEHC 161117(KLR) PW1 stated that the deceased told him that he was stabbed by Mulinge. That they worked together at DWA estate, and that it was about a girl. 38. There is evidence that the accused and the deceased were in the club where Beatrice was selling alcoholand up to the time the club was closed there was no evidence of any confrontation on any issue between accused and deceased. According to Beatrice accused was just one of many customers who would have buy alcohol drink and go. 39. There is nothing on record to show that the investigating officer followed upon this clue - that there may have been an issue over a girl between the accused and the deceased. Neither is there evidence that any investigation was conducted to enable the Muli identify this Mulinge since he made his report on the 24th August 2018. The village and elder said he took Muli to the police station on 24/8/2018 to report the assault – there is nothing on record to show that the deceased named this specific accused as the Mulinge who stabbed him- The prosecution did not place before court any evidence to support the allegations made by PW2 – to corroborate what he said. 40. Hence – what the deceased said cannot be said to be a dying declaration. 41. Coming to the postmortem report – It is important to note that although the discharge summaries from various hospitals were mentioned none was produced by the prosecution as evidence. Hence – the court was left with the postmortem report with respect to the cause of death. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4323/eng@2026-02-06 5

page 5 of 6

The question is – was death caused by a stab wound? The Pathologist testimony is that at the time he was conducting the postmortem there was a healed surgical scar in the abdomen. It would appear that after the stab, the injury was managed through the surgery and was healing as evidenced by the scar. However, this is deduction from the pathologist’s testimony. The Pathologist’s report is that the deceased had a bleeding ulcer and cancer of the liver. He did not make a direct connection between the alleged stab and the other findings that he made. 42. In the end prosecution did not avail evidence of the stabbing - as no one saw it happen- The initial treatment documents /P3 were not produced. The postmortem was not conclusive on a stab woundbut on ulcers and cancer. 43. The identification/recognition evidence was contradictory and unreliable. 44. From the foregoing its evident that prosecution was able to establish that the deceased died, that the accused was the suspect but no evidence to establish a nexus between the death of the deceased and the accused , or the alleged stab wound with the accused. 45. Hence it is my view that the option available to this court is a finding that a prima facie case has not been made out to warrant the accused to be put to his defense, a finding of not guilty under s.306(1) of the Criminal Procedure Code. 46. The charge of murder is dismissed, the accused is acquitted and is to be set at liberty unless otherwise legally held. DATED, SIGNED AND DELIVERED THIS 6TH FEBRUARY 2026 MUMBUA T MATHEKA JUDGE SIGNED BY/FOR: LADY JUSTICE MATHEKA, TERESIA MUMBUA THE JUDICIARY OF KENYA. MAKUENI HIGH COURT DATE: 2026-02-06 17:13:47 In the presence of: CA Mwiwa/Daniel Accused present Mr. Kioko for accused Mr. Musyoki for state https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4323/eng@2026-02-06 6

page 6 of 6