Republic & 2 others v Kelvin Theuri Muchiri

2. The accused entered a plea of ‘Not Guilty’ to the charge and his trial commenced on 19th March 2024. The prosecution called a total of nine (9) witnesses in support of their case. The prosecution having closed their case the court now has the duty to determine whether a prima facie case has been established. 3. PW1 FRANCISCO NJORO NYAGA told the court that although he hails from Embu County he had moved to live in Nyeri County where he did casual work on tea plantations. PW1 told the court that the Deceased Issack Muchiri Theuri was his friend and stated that the Deceased had even given him a piece of land to cultivate for food. PW1 stated that he also knew the accused Kelvin Theuri who was a son to the Deceased. 4. PW1 testified that on 17th November 2012 at about 5.00pm he came home from work and went to visit the Deceased. He found the house of Deceased locked from inside but PW1 stated that he perceived a bad odour emanating from inside the house. He decided to push open the window. Upon peeping into the house PW1 saw the body of the Deceased HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 2 of 23

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lying near the door. PW1 immediately ran to the house of the Deceased’s mother which was within the same compound to alert her. He then went to inform a brother of the Deceased of what he had seen. 5. Police were later alerted and visited the scene. PW1 was interrogated and later wrote his statement. 6. According to PW1 the Deceased and his son did not have a good relationship and the two often quarreled. PW1 stated that on 20th November 2022 he was on his way to the home of the Deceased to attend burial arrangements and he met the accused. The accused threatened PW1 stating that he would to do to him what he had done to his father. 7. PW2 MARY WANJIKU was the mother of the Deceased. She confirmed that the accused was the son of the Deceased. PW2 told the court that the Deceased lived in his house with the Accused as wife of deceased had left the home earlier due to domestic problems. 8. PW2 told the court that on 17th November 2022 she had been with the Deceased and had even assigned him some work to do for her. That later she was in her home when she heard HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 3 of 23

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the accused and Deceased quarreling. She was however unable to hear the words being exchanged and could not tell what the quarrel was about. Later after 5.00pm PW1 came to the home of PW2 and informed her that her son was dead. PW2 understandably went into panic mode and called for her other sons. She did not go to the house of Deceased nor did she see the body 9. PW2 told the court that she suspected it was accused who had killed the Deceased because the accused had purchased a panga. PW2 stated that the accused often went about threatening family members saying that he will kill three (3) people. 10. PW3 PERIS WAIRIMU THEURI is a sister to the Deceased. PW5 SHADRACK WANG’OMBE THEURI was a brother to the Deceased and PW7 REV ELIJAH WAMBATHAI MISHEK was also a brother to the Deceased. All three witnesses gave similar evidence. The witnesses who were all siblings of the Deceased confirm that the Deceased resided with the accused who was his son in the family compound. The three HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 4 of 23

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witnesses all confirm that they received news of the death of the Deceased on 17th November 2022. As is to be expected upon receiving the news they all rushed to the scene. 11. PW3 told the court that she did not go to view the body of her brother but PW5 and PW7 both went to the house of Deceased to see what had happened. They both state that they found the body of the Deceased lying inside his house facing upwards. PW7 stated that he noticed a cut wound on the head of the Deceased. That the body was already in a bad state of decomposition and was infested by maggots. Police later came broke open the door and took the body to the mortuary. PW5 and PW7 both stated that they later identified the body to the doctor for purposes of the postmortem examination. 12. PW3, PW5 and PW7 all told the court that the accused and Deceased HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 5 of 23

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often had differences. They all state that the accused did utter words to the effect that he had already killed one person and was remaining with two to dispose of. 13. PW4 DR JOHN MUTURI a medical doctor attached to Nyeri PGH told the court that on 23rd November 2022 he conducted the autopsy the body of the Deceased. The doctor produced as an exhibit the Post-mortem report Pexb 1. 14. PW6 DR MOSES MWENDA is the consultant Psychiatrist who examined the accused and produces his report as an exhibit Pexb 2. 15. PW8 CHARLES NDUNGU MARINE was the sub-chief of Ichakachiru location. He confirms that both the Deceased and his son (accused) were residents of his area. PW8 told the court that on 17th November 2022 at about 8.00pm he received a call from PW7 informing him of the discovery of the body HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 6 of 23

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of the Deceased. PW8 went to Ihururu Police Post to report the incident. He later accompanied police to the scene where they found the decomposing body of the Deceased. 16. PW9 PC ALEX NDEGWA was the investigating officer. He told the court that he interrogated all the witnesses and recorded their statements. That on 23rd November 2022 he arranged for the autopsy on the body of the Deceased. PW9 stated that five days after the burial of the Deceased and upon conclusion his investigations the accused was arrested and placed in cells. The accused was later arraigned in the High Court on a charge of Murder. ANALYSIS AND DETERMINATION 17. The prosecution having closed their case it behoves this court to determine whether a prima facie case has been established such as would warrant calling upon the accused to defend himself. In line with HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 7 of 23

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Section 306 of the Criminal Procedure Code Cap 75 Laws of Kenya. 18. In the case of REPUBLIC -VS- ABDI IBRAHIM OWL [2013] eKLR the Court defined what constitutes a ‘prima facie case’ in the following terms “Prima facie is a latin term defined by Blacks Law Dictionary, 8th edition, as “sufficient to establish a fact or raise a presumption unless disproved or rebutted. “Prima facie case” establishment of is a defined legally as “the rebuttable presumption”. 19. In simple and clear terms a prima facie case under Criminal Law means the establishment of a rebuttable presumption that an accused person HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 8 of 23

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is guilty of the offence with which he has been charged unless the contrary is proved. 20. It is important to note that the establishment of a prima facie case by the prosecution does not necessarily mean that the accused will ultimately be convicted. The finding merely implies that the prosecution has adduced sufficient evidence which if left uncontroverted could sustain a conviction. The final standard of guilt still remains proof beyond reasonable doubt, which can only be determined at the conclusion of the entire trial. 21. The accused herein faced a charge of murder. Section 203 of the Penal Code Cap 63 Laws of Kenya defines the offence of Murder HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 9 of 23

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as follows;“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of Murder.” 22. Following from the above definition arise the following critical elements requiring proof by the prosecution (1) The fact and cause of death of the Deceased. (2) That the death of the Deceased was the direct result of an unlawful act or omission on the part of the Accused the ‘actus reus’ of the offence. (3) That said unlawful act or omission was committed with malice aforethought - the ‘mens rea’ of the offence. 23. In this case the fact of death of the deceased is not in any doubt. PW1, HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 10 of 23

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PW2, PW5, PW7 and PW9 all told the court that they saw the decomposing body of the deceased lying inside his house. PW2 the mother of the Deceased together with PW5 and PW7 all siblings of the Deceased identified the dead man as ISSACK MUCHIRI THEURI a person who was well known to them all. 24. Likewise there exists no controversy regarding the cause of death of the Deceased. PW4 Dr. Muturi a medical practitioner confirmed that he conducted the autopsy on the body of the Deceased. PW4 told the court that the body was decomposing when brought to the mortuary and that he noted a penetrating wound with severed skull fracture and severed brain on the body. PW4 produced as an exhibit Pexb 1 the post-mortem dated 23rd November 2022 filed HIGH COURT CRIMINAL CASE NO. E010 OF 2023 and signed RULING by himself. Page 11 of 23 His

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conclusion was that the cause of death was ‘Head injury due to a penetrative sharp force trauma.” 25. This was expert medical evidence which was neither challenged nor controverted by the defence. As such I find that the deceased met his death as a result of being stabbed in the head with a sharp object. 26. In order to establish a prima facie case the prosecution was required to adduce sufficient evidence to point exclusively at the accused as the person who stabbed the deceased in the head thereby causing to his death i.e there must be evidence to prove the ‘actus reus’ of the offence of murder. 27. It is not in dispute that the accused was a son to the Deceased and HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 12 of 23

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that the two lived together in the deceased’s house. It has been alleged by some of the witnesses that there were constant quarrels and/or disagreements between the accused and his father. The mere fact that the two were often at odds is not proof that it was the accused who stabbed and killed the Deceased. Fathers and sons in many cases are known to butt heads but this does not amount to proof of murder. 28. There is no witness who saw the accused stab or attack the deceased. Indeed no witness saw the two men together during the period in question. As such there is no direct eye witness testimony linking the accused to the murder of the deceased. PW2 who was the mother to HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 13 of 23

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the Deceased and grand-mother to the accused told the court that she last saw her son on 17th November 2022, when she assigned him certain tasks to carry out for her. PW2 stated that she later heard the accused and his father quarreling. However she was not able to hear the words spoken and could not tell the cause of the quarrel. PW2 did not go to the house of the deceased to check what the problem was? 29. A close examination of the evidence of PW2 reveals one inexplicable anomaly. PW2 claims to have actually seen the deceased on 17th November 2022 the day his body was recovered. She claims that on HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 14 of 23

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the same day she heard the accused and deceased quarrelling. In her evidence PW2 says “………….I last saw the deceased alive that same day. I had given him some work to do. That is the same day he was found dead. I am certain of this…………” [Own emphasis] 30. There is irrefutable evidence that at the time the body of the deceased was discovered it was already decomposing and was maggot-infested. The fact that the body was already decomposing means that the deceased had been dead and his body had lain undiscovered for several days prior to the 17th November 2022. Indeed all the witnesses testify that there was a bad odour emanating from the rotting body. This was not a fresh body. There is no way that PW2 could have seen and heard from the Deceased on 17th November 2022 when on that very day the Deceased body lay rotting HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 15 of 23

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in his house. I find that PW2 is either mistaken or was not being candid in her testimony. 31. The other aspect which cast suspicion on the accused was the testimony from several witnesses that the accused was fond of threatening family members. PW1 told the court that although the accused had threatened him he did not bother to report the said threats to any authority or to the police. Similarly although PW2 claimed that the accused had also threatened her, she still welcomed him into her house to take his meals. PW2 stated under cross examination that “Though he had threatened me I still gave accused tea and meals. I did not fear him.” 32. It is clear that none of the witnesses took these threats allegedly made HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 16 of 23

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by the accused seriously. Moreover the fact that the accused may have threatened other family members cannot be taken as proof that he killed the Deceased (his father). 33. It was alleged that the accused had stated to several family members that having already killed one person he remained with two to kill. No witness stated that the accused ever identified by name the person he had already killed nor did the accused name the two he was yet to dispose of. PW8 who was the local sub-chief told the court that he was never called by the family to settle any differences between themselves and the accused. 34. These alleged statement by the accused which was taken to be a HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 17 of 23

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confession of sorts is not admissible by this court. Article 50(2) of the Constitution of Kenya 2010 protects the right of an accused person against self-incrimination. Likewise Section 25A of the Evidence Act Cap 80 Laws of Kenya sets out the only circumstances in which a confession may be admitted by the court. The Accused did not make any confession after being cautioned in line with Section 25A. 35. PW6 DR. Moses Mwenda consultant testified that the accused had a history of drug induced psychosis. These may have been merely the rantings of a disturbed mind. These utterances cannot be taken as proof that the accused killed his father. HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 18 of 23

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36. PW9 PC Alex Ndegwa was the investigating officer. He told the court that he went to the scene and took photographs. Unfortunately his mobile phone later crashed and the photographs taken could not be retrieved for production in courts. 37. PW9 stated that one of the reasons he charged the accused was due to the utterances which the accused had made to family members after the incident. As demonstrated in my earlier analysis these alleged utterances do not amount to proof of any illegal act and indeed the family appeared not to have taken the words of the accused seriously. 38. PW2 further claimed that he suspected the accused because the HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 19 of 23

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accused had set a huge fire claiming that he was burning his old clothes. PW9 suspected that the accused was getting rid of evidence. PW9 did not specify exactly what evidence the accused could have been destroying. No weapon was found at the scene. PW9 did not even bother to collect the debris from this fire for forensic analysis. The claim the accused that he was burning his old clothes cannot in the circumstances be discounted. 39. It was further claimed that suspicion had fallen on the accused because he had recently purchased a new ‘panga’. No evidence of this alleged purchase was tendered in court. Moreover a panga is a common farming implement found in most rural homes in Kenya. The HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 20 of 23

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purchase of a panga cannot be said to amount to proof of any nefarious intent on the part of the accused. 40. In summary I find no credible and/or tangible evidence linking the accused to the murder of his father. Indeed all the witnesses confirmed that the accused fully participated in the funeral arrangements and attended the burial of his father like any grieving son would do - there was no evidence of a guilty mind. 41. In order to return a finding of a prima facie case the evidence on record must be such that if the accused elected to keep silent in his defence a conviction would be forthcoming. It is clear to this court that the arrest and charging of the accused was based on mere suspicion and HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 21 of 23

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innuendo. The accused was only charged because he was known to have quarreled often with the Deceased. This is not sufficient proof of actus reus. 42. It is trite that suspicion alone, no matter how strong can never amount to proof of guilt. In MARY WANJIKU GICHIRA -VS- REPUBLIC Criminal Appeal No. 17/1995 the court of Appeal held that “Suspicion however strong cannot provide a basis for inferring guilt which must be proved by evidence. Before a court of law can convict an accused person of an offence, it ought to be satisfied that the evidence against him is overwhelming and points to his guilt.” HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 22 of 23

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To put the accused to his defence would be tantamount to calling upon the accused to fill the gaps in the prosecution case. Accordingly I find that the prosecution have failed to establish a prima facie case. I therefore acquit the accused of this charge of murder. The accused is to be set at liberty forthwith unless he is otherwise lawfully held. Dated in Nyeri this 3rd day of July 2026. ……………………… MAUREEN A. ODERO JUDGE HIGH COURT CRIMINAL CASE NO. E010 OF 2023 RULING Page 23 of 23

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