Republic v Harun Wachira Muriuki

The chief then called the police at Baricho and came to the scene. The deceased had been attacked just a t her home. From the deceased’s home to my home is a short distance about 50 meters (like from here to the Mabati across the road) deceased was my mother in law. She lived in her house alone but Alice was taking care of her as she lived nearby. In that boma we stayed me, Alice, deceased and a witness and another person called Mutugi who died. Deceased is my mother in law, mother to my husband. She was also Alice’s mother. My husband died long ago. I have two disabled children the others live on their own. Alice lived with the accused (Wachira) who is her son. We did not know who had cut the deceased. Later I went to Baricho to write a statement. That is when the police arrested the accused. 4. On Cross – examined by Wambui for the Accused he said: “ “I came from the shamba about 4.00p.m. Alice came to my place about 30 minutes after I got home about 4.30 or 5p.m. Alice came but I don’t Know where she came from. Before Alice came I did not hear any communication. I went to deceased’s place and found the body covered. I don’t know who covered the body. I did not see anyone cutting deceased. I don’t know with what she was cut.” 5. On Re – examination by Mr. Mamba for the prosecution he said “I don’t know how long the body had been at the scene.” 6. PW2 Agnes Wairimu Maina from Kiine location, a farmer testified that: “ “On 17th October, 2017 I woke up cut fodder for cows then at lunch I went for prayers at church. I was called to come back. I was told my mother had been cut and injured. I was called by Cecilia Wanjiru Maina. This was about 4.00p.m. When I received the call I left church and went t o my house to organise myself so I could got to mother’s house. At about 6.00p.m. I reached mother’s house. I did not speak to anyone when I was called as I was in shock. I found many people when I got to the scene. Later police arrived. On reaching I saw mother’s body at a distance. I saw something that was covered. The deceased is a mother to my husband. My husband died in 1990 but mother lived Regina, Alice Josephat and accused. I was concerned but I did not know who did the act. I did not hear of any dispute there. We later went to Baricho to write a statement. This was on 18th. When police came I escorted the body to the mortuary. On 28th October, 2019 I don’t know why accused was arrested. 7. On Cross- examination by Ms. Wambui for the Accused he said “I did not know who killed deceased. I did not see anyone kill deceased. Identified the body the day before the burial.” 8. On Re – examination by Mamba for the Prosecution he said “I saw the deceased body it was still covered when she was taken to hospital.” 9. PW3 Dr. Stephen Ndiritu of Karatina sub – County hospital testified that: “ “Post mortem for Lydia Wangechi Maina at Karatina Hospital on 28th October, 201`9 at 11.00a.m. General observation. African female of 105 years good nutrition of 160cm height body preserved. Cut on the back of head vessels and brain oozing out. There were no other injuries. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4753/eng@2026-02-12 2

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Cause of death head injury by cut. Death Certificate 1918816 dated 28th October, 2019. Post Mortem reported signed and sealed. Pex 1: Post mortem report dated 28th October, 2019.” 10. On Cross examined by Ms. Wambui for the Accused: “ There was only one deep cut on `back of the head. Possible weapon was sharp and heavy weapon which could cause the fracture of the skull bone. There were no other body injuries on the body.” 11. PW4 NO.86276 PC Alex Ndegwa attached DCI Nyeri County testified that: “ “Before then I was at Kirinyaga West Sub-county at Baricho between 2019 – 2020 March. On 17th October, 2019 accompanied by deputy OCS Baricho Police Station, Inspector Njoroge and PC Immanuel Askoye and other general duty officers, we went to Chema village, Ruiru Location, sub-location Ruiru Kibungoti at the home of the deceased Lydia Wangechi Maina, the report was that Lydia Wangechi Maina had been killed. The body was outside her house, while cut on two places on the head using a sharp object. We looked around to see any object used but we were unsuccessful and the assailant was not known. The person who discovered the body was deceased’s daughter Alice Wanjiru Munene who lived near the deceased home when she came back from a public will at a nearby shopping centre at around 3.00p.m. Alice’s home is about 40 meters from the deceased house and she is the one who was taking care of her as the deceased was old at 105 years. We inquired for the deceased’s son Josphat Mutugi Kanyagari who was at his house at 10 metres away. He said he had not seen any person who could have done the act and he had not heard anything. Scene of crime officers came and documented the scene. We took the body assisted by the family to Karatina Hospital Mortuary awaiting post mortem and further investigation. I also took a sketch file of the scene. On 19th October, 2019 assisted by Sub county CCIO, CI Kibe and also DCI Officers of Kirinyaga West we revisited the scene at Chema village and we found one Harun Wachira Muriuki a grandson to the deceased and son to Alice Wanjiru Munene daughter to the deceased who was at their home about 40 meters away from home of the deceased. On questioning him he responded in a suspicious manner and we arrested him for further interrogation. We took Harun Wachira for further interrogation and finally he recorded a confession statement. He confessed that he is the one who killed his grandmother and used a panga to cut her twice on the head and he ran to his house and washed the panga of the blood and went to bed. He said the panga which he described and said it was at her mother’s house. He said that the panga had been asked for by his mother and he gave it to her. We got the panga which was brought by the accused mother. (Panga labelled CR 222/173/209 MFI 2 now produced as P. Exhibit 2) We took the accused and on 21st October, 2019 accompanied by CI Kibe and other DCI officers with the suspect Harun Wachira we went back to the place and conducted a further search in his house. He produced a blue T-shirt which he had used to wipe the panga after washing it and the clothes he had worn on the material day a black t-shirt (MFI 4 with picture https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4753/eng@2026-02-12 3

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of diamond and his picture P. Exhibit No. 4). There was also unfinished jeans trouser (MFI 5 now P. Ex5). The blue T-shirt which the deceased wiped the panga (MFI 3, P.Ex 3). I made an inventory which we left a copy of the received items with the mother. Confession was recorded by Chief Inspector Kibe. On 22nd October, 2019 he was arraigned in court for charges of murder and we were given 14 days for further investigations. We retained the exhibits and I forwarded the file to CCIO for record transmission to DPP. The suspect said that he was suspecting that the grandmother was bewitching him.” 12. On Cross – examination by Ms. Wambui for the Accused: “ “I have been a police officer for 21 years. I went to see the body I saw 2 deep cuts on the head. Post mortem report – external appearance – deep cut. Head – only 1 deep cut wound. May be because of the cover of the blood it seemed to be two cuts. Incident reported by the chief of the area, assistant chief Ruiru Sub-location. Reports of the chief was that deceased had been attacked by unknown assailants. At the time of the incident there was no one at home according to the reports by assistant chief. Suspect said he never saw anybody and he did not hear anything. Josphat is a witness. On 19th October, 2019 – statement there were other people Alice, Harun Wachira at their home. Suspicious conduct – we arrested Harun for further interrogation. (He was in custody on 19, 20 and 21st October, 2019) On 21st October, 2019 he made the confession. We have not produced it before the court) it is not an exhibit. [The CCIO Chief inspector Kibe any evidence that he was of rank of inspector before the court?] No. Inventory: Panga recovered from Alice. Alive recorded her statement and she has already testified. (Blue – T-shirt and panga submitted to Government chemist for forensics? I was on transfer. I do not have any request. [17/10 – 21/10/2019] I do not know what use the panga was being used for.” 13. On Re – examination by Mr. Mamba, PW4 said: “ Post-mortem – injury on the body was on the head. On 17th October, 2019 the suspect was at his house, we cant to realise that he was at this house later when we came to see him on 19th October, 2019. On questioning Harun Wachira he responded in a suspicious manner) statement reads. On the same date on 19th October 2019 we had informers that on 17th October, 2019 when the murder happened that he was still in his house. On 22nd October, 2019 he was arrested. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4753/eng@2026-02-12 4

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On the Confession, the accused accepted the charge. A cautionary statement was recorded?) Statement under inquiry was recorded by CI Kibe. The exhibits were recovered and retained. We have produced them before the court.” Submissions 14. Counsel for the DPP and for the Accused then filed submissions on case to answer respectively dated 11/11/2025 and 17/11/2025, and ruling was reserved. 15. For the DPP, it was urged that there was sufficient evidence to prove the charge and a prima facie case to warrant the placing of the accused on his defence had been established as follows: “ The accused person was charged with Murder Contrary to Section 203 as read with Section 204 of the Kenyan Penal Code. Brief Circumstances Surrounding This Case On 17th October 2019 at around 2pm, the body of the deceased was found lying in a pool of blood with visible injuries on the head indicating deep cut. The Police who arrived and investigated the case led to the arrest of the accused Haron Wachira Muriuki herein. While in the Police custody, the accused willingly took Pw-4 {No.86276 Pc Alex Ndegwa} in the company of other officers to [Chema] Village where he showed them a blue T-shirt with blood stain and a [Machete] that was a murder weapon. The investigating officers were able to establish that the accused occasioned the grievous injuries to the deceased who was his grandmother using the weapon [Machete] he led the Police to recover. Evidence It is the Testimony of Pw-1 {Regina Wambura Warui] that on 17th October 2019 at about 7 am, she was called and informed that the deceased {Lydia Wangeci Maina} had been injured and indeed when she arrived at the scene, she found the deceased lying down with deep cuts that looked like had been occasioned sharp object. She doubted the injuries would have been occasioned by an outside given the fierce dogs within the compound that could still be seen. She recalled that its is the Police who were called that took the deceased body after mapping the scene of crime. Pw- 2 {Agness Wairimu Maina} recalls being informed of the grievous injuries occasioned on the deceased on 17th October 2019 by one {cicely Waruguru Maina}. That she responded quicky but upon arrival at the homestead of the deceased, she found the Police had already arrived and cordoned the scene. She identified the body f the deceased on 18th October 2019 at the Karatina Sub-County Hospital. Pw·3 {Dr. Nderitu Step hen} performed the Post Mortem and formed the opinion that the cause of death was due to severe head injuries secondary to a deep wound. He produced the Post-Mortem No 1918816. Pw·4 {No 86276 PC Alex Ndegwa} was the investigating officer who was among the first responders. He mapped the scene of crime and commenced investigations that led to the arrest of the accused {Raron Wachira Kariuki}. It is his evidence that on 21st October 2019 while accompanied by SCCIO {Chief Inspector Samuel Kibe} and other officers, the accused {Harun Wachira Muriuki} led them to a village called [Chema] where after conducting searches, found a blue- T-shirt written on Diamond with a black https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4753/eng@2026-02-12 5

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unfinished trouser with blood stain. That the accused asked the mother to hand over the [Machete]which was suspected murder weapon. He willingly told them the reason why the deceased had to die. We submit that the accused had intent to cause grievous har to the deceased with a malice a forethought which eventually caused the death of the deceased.” 16. The Defence submitted that there was no credible evidence to link the Accused to the death of the Deceased and a prima facie case under the test of Bhatt v. R [1957] EA 332 had not been established, as follows: “ The well-settled test for determining whether an accused person should be called upon to answer a charge [is set out] in the celebrated case of Ramanlal Trambaklal Bhatt v R (1957) EA 332 [where] the Court held that a prima facie case is only established where, if the evidence adduced by the prosecution were to remain uncontroverted, a reasonable tribunal properly directing its mind to the law and evidence could convict. In that decision, the court warned that a mere scintilla of evidence or evidence of such poor quality that it cannot support a conviction is insufficient. This position was reaffirmed in Festo Wandera Mukando v Republic (1980) KLR 103. where the Court of Appeal emphasized that the evidence must be such that it would sustain a conviction if left unanswered. Applying that test to the present case, it is evident that the prosecution has not placed before the Court any credible evidence linking the accused to the death of the deceased. None of the four witnesses who testified witnessed the ofience, heard any commotion, or saw the accused with the deceased at any time material to the ofience. PW1was categorical that she did not see or hear anything and did not know who killed the deceased. PW2 similarly testified that she did not know who killed her mother-in-law and had no information placing the accused at the scene. This leaves a complete evidentiary vacuum with regard to the events surrounding the death of the deceased. Furthermore, the prosecution failed to call the most crucial witnesses in this case. The evidence on record shows that an individual named Josephat lived approximately ten meters from where the deceased was found and was the only person on the compound at the time. His evidence was indispensable, yet he was not called. The person who allegedly discovered the body, one Alice, was also never called, despite being the last person known to have interacted with the deceased and having exclusive knowledge of when and how she found the body. The failure to call these vital witnesses entitles the Court to draw an adverse inference, as affirmed in Bukenya & Others v Uganda (1972) EA 549, where the Court held that when the prosecution fails to call material witnesses, the court may infer that the evidence withheld would have been unfavourable to the prosecution. The prosecution sought to rely on an alleged confession. However, no confession, that meets the mandatory requirements of Section 25A of the Evidence Act was produced before this Court. There is no written confession on record, no evidence of the rank of the officer before whom it was allegedly made, and no certificate of confession was produced. The mere assertion by the investigating officer that the accused "confessed" does not amount to admissible evidence. The legal position is clear that a confession is only admissible when made before a magistrate or a police officer of the rank of Chief Inspector or above, and must be properly recorded and certified in accordance with the Evidence Act and the Evidence (Out-of-Court Confession) Rules. In Tuwamoi v Uganda (1967) EA 84, the Court emphasized that courts must be satisfied that a confession is voluntary and properly https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4753/eng@2026-02-12 6

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obtained. No such evidence exists in this case. In the absence of a valid confession, the alleged admission is nothing more than hearsay and cannot form the basis of a conviction. The prosecution also produced a machete (panga) and clothing items allegedly linked to the accused. However, none of these items were subjected to forensic analysis. There is no DNA report linking the panga to the deceased, no blood analysis, no fingerprint evidence, and no testimony from any forensic expert to show that the weapon produced could have caused the injuries described in the postmortem report. The pathologist, PW3, merely confirmed the cause of death as a deep cut to the head caused by a sharp and heavy object, but ofiered no connection to the accused or to the panga produced in court. In Republic v Richard Itweka Wahiti v. R (2019] eKLR, the High Court held that where the prosecution fails to establish forensic linkage between a recovered weapon and the deceased, the evidence is insufficient to sustain a conviction. That principle applies squarely in this matter. The investigation in this case was plainly inadequate. No scene reconstruction was conducted, no timelines were established, no forensic samples were collected, and no attempt was made to establish who the deceased was last seen with prior to her death. PW4 admitted that when the accused was questioned, he allegedly "responded suspiciously", which then formed the basis for his arrest. Suspicion, however, strong-cannot amount to proof of guilt. The Court of Appeal in Sawe v. Republic [2003] KLR 3,64-held unequivocally that suspicion, however compelling, cannot form the basis of a conviction and that circumstantial evidence must irresistibly point to the accused and exclude all other hypotheses. In the present case, there is not even a semblance of a circumstantial chain. The prosecution's case rests on speculation. In light of the foregoing, it is evident that the prosecution has failed to establish any nexus between the accused and the death of the deceased. The evidence is so disjointed, weak, and unreliable that even if left unchallenged, no reasonable tribunal could convict on it. The legal threshold for establishing a prima facie case has therefore not been met. In the circumstances, the defence respectfully submits that the accused should not be called upon to enter his defence. We urge this Honourable Court to find that there is no case to answer and to acquit the accused person under Section 215 of the Criminal Procedure Code.” Issue for determination 17. In accordance with authority the issue for determination is whether a prima facie case within the meaning of Bhatt v. R has been established as to justify a finding in with terms of section 306 (2) of the Criminal Procedure Code that the evidence of the witnesses for the prosecution discloses that there is evidence that the accused person committed the ofience or not. If the Court finds that there is evidence that the accused person committed the ofience, it shall inform the accused person of his right to address the court in his defence. 18. If no prima facie case is established, the accused is entitled to a finding of not guilty and an acquittal under section 306 (1) of the Criminal Procedure Code. See Murimi v. R (1967) EA 542 and R v. Wachira (1975) EA 262. Determination 19. In considering the existence of a prima facie case, the Court will examine the evidence for proof of the three elements of ofience of murder, as observed by the Court of Appeal in Mwangi v Republic https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4753/eng@2026-02-12 7

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(Criminal Appeal 13 of 2012) [2021] KECA 149 (KLR) (19 November 2021) (Judgment) citing Republic vs. Nyambura & 4 Others [2001] KLR 355, namely: “ i. Death of the deceased occurred; ii. That the death of the deceased was caused by an unlawful act or omission by the accused person. iii. The accused in committing the unlawful act or omission possessed malice aforethought.”” 20. The Prosecution’s case was based on an alleged confession by the Accused where it was said the accused killed the deceased grand mother for the reason that he suspected that she was bewitching him. 21. The confession was taken by the County Criminal Investigations Officer (CCIO) Chief Inspector Kibe. The accused allegedly led the Chief Inspector Kibe and other officers to a village (Chema) where upon a search, a blue T-shirt and black trouser were recovered. The accused is said to have asked his mother to hand over the machete which was suspected to be the murder weapon. 22. However, the alleged confession taken by Chief Inspector Kibe was not produced and the officer was not called as a witness. 23. The exhibits were not processed by the Government Chemist/analyst for DNA to establish any link with the deceased and or the Accused. 24. The accused’s mother who allegedly handed over the suspected murder weapon on instructions of the accused was not called to testify. See Bukenya & Others v Uganda (1972) EA 549 that “ The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent. Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tendered to be adverse to the prosecution.” 25. It is wholly unsafe to convict on the state of evidence before the Court. Orders 26. Accordingly, for the reasons set out above, the Court finds that the Prosecution has not established a prima case to warrant the placing of the accused on his defence in terms of section 306 (2) of the Criminal Procedure Code. 27. The Court shall record a finding of not guilty in terms of section 306 (1) of the Criminal Procedure Code, and the Accused is acquitted of the charge of murder contrary to section 203 as read with section 204 of the Penal Code. 28. The accused shall be set at liberty forthwith, unless he is otherwise lawfully held. Order accordingly. DATED AND DELIVERED THIS 12TH FEBRUARY, 2026. EDWARD M. MURIITHI JUDGE Appearances: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4753/eng@2026-02-12 8

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Mr. Mamba for the DPP. Ms. Wambui Maina for the Accused. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4753/eng@2026-02-12 9

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