Republic v Samuel Muturi Thuku

of ten (10) prosecution witnesses after which he was transferred to Nairobi. I then took over the matter and heard the evidence of the remaining four (4) witnesses. The prosecution called a total of fourteen (14) witnesses in support of their case. 3. PW1 PETER WAITITU was a boda boda rider working in Nairobi. He told the court that the Deceased was his father whilst the accused was his brother. PW1 stated that on 11th October 2021 he received a call from another brother Michael Ndungu informing him that their mother had been cut and that their father deceased could not be traced. PW1 immediately left Nairobi and travelled to the family home in Nyeri. He went to Othaya Hospital but found that his mother had been treated and discharged. PW1 then went to the home of his uncle where he found his mother nursing cuts on her cheek and mouth. 4. PW1 then went to the family home and noted blood stains on the floor but found no trace of his father. He and others began to search for their father. They followed a trail of blood-stains to the shamba and then to a nearby river. They proceeded to HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 2 of 22

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search the neighbourhood and finally found the body of the deceased stuffed inside an abandoned pit latrine. Police from Mukurwe-ini attended the scene and took the body to the mortuary. The accused who was a son to the Deceased was then arrested and charged. 5. PW2 JOSEPH GICHUHI GATHAKWE is a brother to the Deceased. He told the court that on 11th October 2021 his niece Esther Wanjiru who was a daughter to the Deceased came and informed him that the Deceased was missing from home and was not answering his phone. PW2 went to the home of Deceased and found a pool of blood on the floor in the Deceased’s room. He followed a trail of blood to the shamba. Police were alerted and the body of Deceased was later found in a pit latrine. PW2 stated that suspicion fell on accused who was the Deceased’s son because the two were said to have a dispute over land issues. 6. PW3 MICHAEL NDUNGU is also a son to the Deceased. He told the court that on 11th October 2021 in the morning hours he was informed by his brother that his mother had been assaulted and had been rushed to hospital, PW3 sent money to HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 3 of 22

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facilitate the hiring of transportation to take his mother to hospital. PW3 then went to the family home and saw blood stains in his father’s room. There was a trail of blood leading to the nearby bushes. The body of their father (deceased) was later recovered inside a put latrine. 7. PW4 who was also a son of the Deceased gave similar evidence to that of PW2 and PW3. 8. PW5 ESTHER WANGUI was a daughter of the Deceased and a sister to the Accused. PW5 had left her marital home and had returned to live with her parents. PW5 told the court that on 11th October 2021 in the morning she heard a shout from her mother’s room. She came out and saw her mother bleeding from a cut on her head. Accused who was present arranged to take the mother to hospital. 9. PW5 then began to search for her father. She went to the room and found blood stains on the floor. The room was disorganized. A trail of blood let to the farm outside. HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING The body of deceased Page 4 of 22

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was found in a pit latrine. PW5 was initially arrested by police but she was later released. Eventually the accused was charged. 10. PW6 JOHN MAINA MATHENGE was the chief of Iriani Location in Othaya. He told the court that on the material date in October the accused phoned to inform the chief that his mother had been assaulted by Deceased and had been taken to hospital and that after the incident the father went missing. Later PW6 received a call informing him that the body of the Deceased had been recovered in a pit latrine. 11. PW6 told the court that he had previously mediated over quarrels between the Deceased and his son/accused. PW6 also told the court that the Deceased and his wife often fought but that they usually reconciled and went on with their lives. PW6 stated that the accused had threatened the Deceased in his presence. PW6 stated that he did visit the scene and saw a pool of blood on the floor in the Deceased’s room. HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 5 of 22

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12. PW7 DR PAUL KIMATHI is a doctor based at the Mukurweini SubCounty Hospital. He produces the post-mortem form dated 14th October 2021 in respect of the autopsy conducted on the body of the Deceased. The body had a deep laceration on the neck. The neck and oesophagus were severed. The cause of death was found to be “hemorrhage secondary to neck laceration’. The post mortem form was produced as an exhibit in the case Pexb 3. 13. PW8 JANE MUTHONI KAMUNYA is a sister in law to the Deceased. She told the court that on 11th October 2021 she was informed that her sister had been assaulted and was admitted in hospital. PW8 went to the hospital and found her sister there nursing cut on the head. Accused was there with his mother. 14. PW9 CECILIA WANJIRU THUKU is the wife of the Deceased. She states that on 10th October 2021 at 11.30pm the accused who was her son threatened to kill his father. That later the HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 6 of 22

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accused came and told her that he had killed his father. PW9 states that she was asleep in her room and did not hear any commotion. PW9 vehemently denies that she was assaulted and injured by her husband. She claims that she does not know how she sustained her injuries. PW9 told the court that she was initially arrested and placed in custody. That whilst in custody she received news that the body of the Deceased had been recovered inside a pit latrine. 15. PW10 CORPORAL MURKOMEN CHEBOI was the Investigating Officer. He told the court that on the morning of 11th October 2021 he went to the scene at Gikuri village. He found blood in the deceased’s room and vomit. The bloodstains led outside. Police then searched the accused’s house and recovered boots which had blood stains. PW10 states that they followed the blood stains to the next farm but found nothing. The next day police were informed that the body of the Deceased had been recovered in a pit latrine. The HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 7 of 22

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wife and daughter of the Deceased were initially arrested and placed in custody but both were later released. accused was eventually arrested and charged. The PW10 produced as exhibits the shoes recovered from accused’s house blood stained sweater taken from the daughter. 16. PW11 RUTH WANGARI KAHIU is a government analyst. She produced as an exhibit her report dated 8th September 2022 Pexb 14. 17. PW12 MICHAEL MUTHUI GACHOKI is a boda boda rider. He told the court that on 11th October 2021 at 6:00am the accused came to call him and requested PW12 to take his mother to hospital. PW12 obliged and went to pick the accused’s mother. He took them first to the police station to make a report and thereafter took them to hospital. 18. PW13 SAMUEL MUTURI WAITITU was a nephew of the Deceased. HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 8 of 22

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He told the court that on 11th October 2021 he was a asleep in his house in Nairobi. He received information that the Deceased had assaulted his wife. PW12 left immediately for Othaya. He went to the hospital and found accused there with his mother. They told him that they did not know where the Deceased was. Later PW13 was informed that the body of the Deceased had been recovered inside a pit latrine. 19. PW14, DR MOSES MWENDA is a consultant Psychiatrist based at the Nyeri PGH. He told the court that he examined the accused and formed the opinion that he was fit to stand trial. PW14 produced his report dated 17th February 2026 as an exhibit Pexb 15. ANALYSIS AND DETERMINATION 20. 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 HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 9 of 22

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himself, in line with Section 306 of the Criminal Procedure Code Cap 75 Laws of Kenya. 21. 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”. 22. In the case of Ronald Nyaga Kiura v Republic (2018) eKLR it was stated as follows:“It is important to note that at the close of the prosecution, what is required in law at this stage is for the trial court to satisfy itself that prima HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 10 of 22

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facie has been made out against the accused person sufficient enough to put him on his defence pursuant to section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by the accused person. This is well illustrated in the cited Court of Appeal case of RMANLAL BHAT VS REPUBLIC (1957) EA 322. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused on his defence. 23. In simple and clear terms a prima facie case under Criminal Law means HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 11 of 22

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the establishment of a rebuttable presumption that an accused person is guilty of the offence with which he has been charged unless the contrary is proved. 24. 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. 25. The accused herein faced a charge of murder. Section 203 of the Penal Code Cap 63 Laws of Kenya defines the offence of Murder as follows;“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of Murder.” HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 12 of 22

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26. 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. 27. There can be no dispute concerning the fact of death of the Deceased. Nearly all the witnesses narrated how a pool of blood was seen in the bed-room of the Deceased. The trail of blood led outside to the farm. The witnesses all testified that the body of the deceased was finally found in a disused pit latrine. PW10 the investigating officer confirmed that he collected the body and took it to the mortuary. The witnesses who included the wife (PW9) daughter (PW5) and sons of the HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 13 of 22

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Deceased who all knew him well identify the Deceased as Franklin Thuku Gatweku. I am satisfied that the fact of death of the Deceased has been proved beyond reasonable doubt. 28. Evidence pertaining to the cause of death of the Deceased was also conclusive. The witnesses all state that the body of the Deceased had several cuts on the head and the neck was virtually severed. PW7 Dr. Paul Kimathi produced the post-mortem form Pexb 3 in respect of the autopsy which was conducted on the body of the Deceased. PW7 confirmed that there were cuts on the body, that there was a big laceration on the neck and that the trachea and oesophagus were severed. PW7 gave the cause of death as hemorrhage due to assault. This was expert medical evidence which was not challenged or controverted by the defence. I therefore find that it has been sufficiently proved that deceased met his death due to a viscious assault. 29. The final element which the prosecution is required to prove is the HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 14 of 22

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involvement of the accused in the murder of the Deceased. In other words there must be prima facie evidence to show that it was the accused who so visciously attacked and killed the Deceased. 30. From the evidence it is clear that the Accused was one of the sons of the Deceased. The witnesses state that father and son did not get on well, that the two frequently butt head over land issues. The mere fact that the two were known to have a bad relationship not proof that the accused is the one who killed the Deceased. 31. PW5 the sister to the accused and PW9, the accused’s mother both state that the accused severally threatened the Deceased in their presence. PW6 the area chief told the court that the accused threatened the Deceased in his presence. He stated that prior to this incident he had been called upon to mediate over disagreements between the accused and his father. The other witnesses all testify that HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 15 of 22

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they were aware that there existed bad blood between the accused and his father. The fact the accused and deceased had a bad relationship does not amount to proof that the accused killed the Deceased - it may merely lead to suspicion against the accused. It is trite that suspicion however strong cannot form the basis for a conviction. In any event PW9 in her evidence stated that she never took the threats made by the accused seriously. 32. PW9 was the wife of the Deceased and mother to the Accused. She told the court that on the night of 10th October 2021 the accused came and told her that he had killed his father. Firstly this would amount to a confession which is not admissible unless recorded in line with Section 25A (1) of the Evidence Act, Cap 80 Laws of Kenya which provides that “(1) A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 16 of 22

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before a Judge, a magistrate or before a police officer (other than the investigating Officer), being an officer not below the rank of Inspector of Police and a third party of the person’s choice.” 33. PW9 also told the court that on the night in question she heard a loud commotion from her husband’s bedroom (the husband and wife slept in separate rooms) and states that she saw the accused wielding a panga. Later in her testimony this witness had stated she did not hear any commotion from her husband’s room. PW9 is giving contradictory evidence. What does she want the court to believe. Again it appears that PW9 did not bother to go and find out the source of the loud commotion she had heard. 34. PW5 who was the accused’s sister was also present in the family home on the material date. PW5 only spoke of a quarrel she had with accused over money which he was supposed to give her. She also spoke of having found mother with cuts on her HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 17 of 22

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face. PW5 made no mention of having seen the accused attack the Deceased. All in all there is no evidence directly linking the accused to the murder of the Deceased. 35. The evidence on record is that a pool of blood was found in the Deceased’s room. That there was a trail of blood leading outside to the farm. This raises the possibility that after being attacked the Deceased may have staggered out of his house and gone outside to seek help. The state of the deceased’s bedroom and the post mortem report indicate that the Deceased was viciously attacked and fatally injured. The critical question is who was the deceased fighting with that night. 36. The prosecution witnesses all state that the information they received was that the Deceased had been fighting with his wife and cut her. The wife was rushed to hospital where she was treated and later discharged. Curiously despite this evidence the said wife PW9 insists that it was not the Deceased who cut her. In her evidence PW9 tries to claim HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 18 of 22

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that she has no idea how she sustained the grievous injuries. She says;“I do not recall exactly when I got the injuries.” 37. I do not for one minute buy this at all. The injuries which PW9 sustained were serious enough to warrant her being taken to hospital. She cannot claim not to know how she sustained such serious injuries. Why is PW9 so anxious to put a distance between her injuries and the death of the Deceased. Contrary to the protestations of PW9, her sister in law PW8 stated in court that “Cecilia (PW9) told me that her husband had assaulted her.” 38. PW10 the investigating officer told the court that PW9 told police that it was her son (accused) who had attacked her. However under cross-examination PW10 stated that Esther [PW5] who was also present in the house at the material time told police that it was Deceased who attacked her mother. Why is it that the key witnesses who were at the scene all give contradictory evidence? HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 19 of 22

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39. The mother herself gave contradictory evidence regarding the source of her own injuries. She states “I said it was the Deceased who had assaulted me. I did so because……..had threatened to kill me. It is not true that I was assaulted on 9 th October 2021………….” 40. Much as I did not see or hear PW9 testify it is quite obvious that the mother and her daughter were totally dishonest in their evidence. They were clearly hiding something. It is pertinent to note that in the first instance PW9 and PW5 were arrested as suspects but they were later released when they pointed fingers at the accused. The very real possibility that in a fight with her husband PW9 cut him leading to his death has not been properly discounted. The contradictory evidence PW5 and PW9 lends credence to this theory. 41. The evidence of the government analyst does not shed much light on the issue. The clothes and items which were examined were all found to be stained with blood which matched the HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 20 of 22

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DNA sample of the Deceased’s blood sample. This was to be expected since given the scene as described by the witnesses there must have been a big commotion in the home that night. The injuries on the Deceased suggest massive blood loss. The fact that some of the blood got onto the clothes of those who were in the house that day is not surprising. 42. According to the government analyst she did not receive any blood samples from the accused or his mother, PW9 thus no DNA profiling was done. In my view this was a grave (and possibly a deliberate) omission on the part of the police. Why would investigators fail to take blood samples from the two main suspects unless there were trying to hide something. PW11 told the court that due to the failure to obtain said blood samples she was unable to make any direct connection between the panga and the accused. 43. This is a case in which there were at least three suspects to the murder of the Deceased. The police decided to charge only one suspect (the accused). The evidence against the accused is HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 21 of 22

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tenuous at best. The key witnesses PW5 and PW9 were dishonest, contradicted each other and their evidence was shaken under cross-examination. In my opinion PW5 and PW9 were not truthful regarding what they saw and heard on the night in question. 44. To put accused to his defence on the basis of such weak and contradictory evidence would be an exercise in futility. If the accused elected to keep silent in his defence the evidence on record would not sustain a conviction. The actus reus of the offence was not proved. In the circumstances I find that the accused has no case to answer. He is therefore acquitted and is to be set at liberty forthwith unless he is otherwise lawfully held. Dated in Nyeri this 10th day of July 2026. ……………………….. MAUREEN A. ODERO JUDGE HIGH COURT CRIMINAL CASE NO. E011 OF 2021 RULING Page 22 of 22

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