Republic v Gerald Mutuku Nyagita & Jackline Mwende Mutua alias Jackline Mwende Kithome [2020] KEHC 9116 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HCCR NO. 56 OF 2017

Formerly Machakos HCCR No. 44 of 2015

REPUBLIC.....................................................................PROSECUTION

-VERSUS-

GERALD MUTUKU NYAGITA.......................................1STACCUSED

JACKLINE MWENDE MUTUA alias

JACKLINE MWENDE KITHOME................................2NDACCUSED

RULING

1. Gerald Mutuku NyagitaandJackline Mwende Kithome referred to as 1st and 2nd accused persons are jointly charged with the murder of Darius Kithome Munyaliti contrary to section 203 as read with section 204 of the Penal Code.

2. The prosecution case is premised on the evidence of fourteen (14) witnesses.  Both parties filed written submissions through their learned counsel.

3. From the evidence, it is clear the deceased did not die from a natural cause.  The witnesses have explained what they each did, heard and witnessed on the night of 8th and 9th day of May, 2015.

4. The 2nd accused was an estranged wife of the deceased, and the latter was living with the children of the marriage. The 1st accused was said to be in a romantic relationship with the 2nd accused.

5. There are burnt items belonging to the deceased which are said to have been found in a house said to belong to the 1st accused.  They were produced by PW12. They were recovered in 1st accused’s absence and no one identified them as belonging to the deceased.  The hired car that was said to have been used by the 1st accused to run over the deceased was released to the owners.  It does not form part of the evidence before this court.  Basically, I find the evidence trying to connect the 1st accused to the murder of the deceased to be very weak.  For my part, I find him not guilty and acquit him under section 306(1)

6. On the other hand, I am satisfied that the prosecution has made out a prima facie case against the 2nd accused.  I hereby place her on her defence under section 306(2) Criminal procedure Code.

7. 1st accused shall be set free unless otherwise held under a separate warrant.

Orders accordingly.

Delivered, signed & dated this 28th day of January 2020, in open court at Makueni.

.......................

H. I. Ong’udi

Judge