Republic v Muteti & 5 others [2023] KEHC 23890 (KLR)

Republic v Muteti & 5 others (Criminal Case 6 of 2016) [2023] KEHC 23890 (KLR) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23890 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case 6 of 2016

MW Muigai, J

October 12, 2023

Between

Republic

Prosecutor

and

Patrick Ngunzu Muteti

1st Accused

Francis Kaimi Bernard

2nd Accused

Duncan Maithya Muteti

3rd Accused

Nicholas Muthiani Musembi

4th Accused

Alfonse Kioko Nzioki

5th Accused

Joseph Ndonye Mutua Alias Kanari

6th Accused

Ruling

1. The six [6] accused persons have been charged with two counts Murder of two [2] persons namely Nahason Kasyula and Wambua Masila.

2. The information that led to the arraignment of the 6 accused persons before the Court was as follows:Murder contrary to Section 203 as read with Section 204 of the Penal Code, Laws of Kenya.Particulars of two offences are as follows:Count 1Patrick Ngunzu Muteti, 2. Francis Kaimi Bernard, 3. Duncan Maithya Muteti, 4. Nicholas Muthiani Musembi, 5. Alfonse Kioki Nzioka and 6. Ndonye Mutua alias Kanari:On the 26th day of December, 2015 at Nzii farm, Kaseku Village Masinga Sub-County with Machakos County with others not before court murdered Nahason Kasyula.Count 2Patrick Ngunzu Muteti, 2. Francis Kaimi Bernard, 3. Duncan Maithya Muteti, 4. Nicholas Muthiani Musembi, 5. Alfonse Kioki Nzioka and 6. Ndonye Mutua alias Kanari:On the 26th day of December, 2015 at Nzii farm, Kaseku Village Masinga Sub-County with Machakos County with others not before court murdered Wambua Masila.

The Prosecution Case 3. The prosecution case was anchored on the evidence of fourteen [14] witnesses.

4. PWI James Musyoka Kasyula gave sworn evidence and testified that he is a resident of Nzee farm in Masinga Sub-County. He was/is the father of the two deceased children. He was/is the owner of the shop/store and home which were set on fire. He stated that in 2015 he was working on his farm and also running a small shop and a maize mill and that he knows Wambua Masila and Nahashon Kasyula. He stated further that he recalled on 26/12/2015, he woke up with his two children and proceeded to his shop. On their way he found people making noise and also met one Kioko and then proceeded to his shop with his two sons and nephew where a motorcycle tyre was removed for repair at Kiathinene market.

5. The 3 proceeded to the market. It was his testimony that he decided to proceed to towards Kithini Police Post when he met two persons namely Muema and Muthiani who appeared to be hostile to him. He further testified that he had no grudge with them in the past and that he returned home to collect his identity card only to find large crowd who turned up, fearing for his life, he rushed to the police. He stated that those among the crowd were Patrick Mbuvi, Elijah Munyao Mutie, Ngundo Muteti, Makau Muteti, Mutie Mutua Kamunzyu, Peter Mutua Kana, Lonzya Muli, Muinde Kyumbe, Simon Makumbe, Musau Muteti, Mbole Mutune and Peter Mutune. He stated that the six accused persons are well known to him and were among the crowd that descended onto his home and he managed to escape to Ndithini Police Post to report on the incident.

6. He testified that those he had left at home were Dorcas, Monica, Jacob Muisyo and that the police advised him to remain at the Post as they rushed to his home to check. It was his testimony that later the Police accompanied him to Nzee farm where the two children had been killed and his homestead burnt and that one of those injured was Enock Mule. His eyes were operated recently and he was unable to see things clearly his shop was also burnt down. He later recorded a statement. He further stated that earlier he had had a case pending in court with the accused persons. He testified that they were arrested at Kithimani Law Courts. The bodies of those killed were taken to mortuary. A postmortem was conducted on the bodies.

7. In cross-examination, by Mr. Kyalo PW1 testified that he knows the 1st, 2nd and 3rd accused since they are the ones who had earlier attacked him at his farm and that he had known the 2nd accused for three years while the 3rd accused was known to him that day and that the 1st -3rd accused persons are from one family. He told the Court that he had a land dispute in the past. He bought land and the Accused persons family were squatters. It was his testimony that he had lodged the complaint over the land issue with the police and the Kithimani Court was handling a Criminal Case No. 1365 of 2015 of assault where he was the complainant before the incident. He referred to a copy of the charge sheet. He stated that he saw a large crowd heading towards his shop at a distance of 200 meters and that the crowd numbered about thirty. He maintained that the three accused persons were among the crowd at 200 metres of 30 people; that the 1st accused person wore a stripped track suit while the 2nd accused had a striped shirt and the 3rd had a black cloth. He testified that he was not present when his house was burnt and therefore could not tell who did that or killed his children and that he later at midnight had to organize to pick up the bodies of the deceased persons.

8. Further, in cross-examination by Mrs. Nyaata, PW1 testified that he had known the 4th accused for long time and they had never had any disagreement before and that he met the 4th accused on the way and he had no injuries. Testifying that his children had not informed him that the 4th accused had been injured and a report made to the police and that his home is about 200 meters from the place he had met the 4th accused and was able to recognize the attackers. It was PW1’s testimony that it was the 5th accused who was demanding a ransom of Kshs 1 million or else his homestead would be razed down and that he met the 5th Accused at his shop earlier in the day. He testified further that the accused had a black stripped coat and that it was Elijah Munyao Mutie who had hired the Accused persons to commit the crime; that he ran away and only returned at night and thus did not witness the incident.

9. In cross examination by Mr. Makau Mutua, PW1 testified that the 6th Accused is called Kinari and is his neighbour and that he has no case with the 6th accused at Kithimani Court; and that he has never disagreed with the 6th accused; that there was a large crowd and he was able to spot the 6th accused and that the road led to his homestead. He testified that he fled from the scene before the incident took place and he did not witness the scene. Testifying that the police officers delayed in reaching the scene in time and that he did not accompany the officers to the scene.

10. In re-examination, it was his testimony that he was at a distance of 75 meters away from the crowd and that the accused persons had been drinking beer the previous day prior to the incident.

11. PW2 Enock Mule gave his sworn statement and testified that in 2015 he used to reside in Joska Kamulu and that on 26/12/2015 he was at home Kiathinene Village in Masinga Sub County. Testifying he was with his brother Nahashon and his cousin Wambua Masila, they had gone to their father’s shop to fetch a motorcycle wheel for repairs, took the tyre to the market but there were no spares. It was his testimony that his father later called them back home and on his way home he was accosted by some persons Ngunza Kithu, Makau Kithu, Kanari Kimanzyu Kilonzo Benard, who got hold of him and tied up his hands and feet and shoved him into a thicket and they then decided to go for more persons. Testifying that they later brought Nahashon and Masila and they assaulted them as they led them to their home and that his mother and brother’s wife were also beaten and injured; that the beatings continued and that on arrival home the suspects set stores and homes on fire.

12. He testified further that they were thrown into the burning flames and he was rescued by a neighbour who hid him by a nearby thicket. However, his brother and cousin died. It was PW2’s testimony that he was later rescued and taken to Thika Level Five Hospital. Testifying that the six Accused persons herein are among those who participated in the crime but he did not know most of their names and that it was the 6th accused who lit fire that consumed the premises assisted by Kilonzo and maintained that all the accused persons were present. He stated that the 1st accused was pushing the store to fall on them while the 2nd accused heaped bricks on them while the 3rd accused removed petrol from the vehicle; that the 4th accused was removing bricks while the 5th accused was injuring his mother and the 6th accused was collecting grass for touching his brothers. He said finally that he had no disagreement with the accused persons before that day.

13. In cross-examination by Mr. Kyalo, PW2 testified that he was not living with his father in 2015 as he was residing at Joska and that he did not know the name of the 1st accused as he was new to him likewise the 2nd accused but he used to see them in the area and that he did not know the name of the 3rd accused but is brother to 1st accused and 2nd accused. testifying that they a land dispute in the past and that he is aware his father had lodged a report over the land dispute to the police; further that he was hijacked alone by the suspects around 11:00am and the place of hijacking was about 2Km away from his home; that those who waylaid him at first were twelve [12] in number and that he cannot recall the name of the rider who ferried him. Testifying further that he was unable to monitor the events as he was beaten unconscious and only came to around 2:00 am. It was his testimony that he was hidden about 200 meters from their home and he was injured and could hear the voices from his hideout. He stated that the 1st accused wore blue jeans while the 2nd accused wore black trouser with a blue shirt while the 3rd accused wore whitish brownish jacket. He stated further that it is not true his father was terrorizing people in the village and that his statement alludes to the allegation that his family was terrorizing people in the village and that he is aware that the 4th accused had been attacked by his brother prior to the incident which he claims he was also present. He finally testified that he is aware one of his brother is serving a jail term.

14. In cross-examination by Mrs. Nyaata, PW2 testified that he knows both 4th and 5th accused as their family have had no problem with theirs and that he had come home for Christmas. He testified further that he 4th accused was injured by his cousin Masila on the 25/12/2015; that on 26/12/2015 he was tied on hand feet, beaten and then escorted home by the attackers; further that his statement does not indicate name of the 5th accused; it is PW2’s testimony that there were people who just came to see what was happening and 4th accused had a metal bar and injuring his brother and Cousin. He stated that he was unconscious but able to see what was happening; further that he was not able to see what was happening at a distance of 200 meters. 4th accused wore black greyish trouser and open maasai shoes. Testifying that he saw 4th accused at their home and 5th accused wore a pink t-shirt and a torn black trouser attacking his mother and the deceased persons and finally he stated that he recorded what he saw.

15. In cross-examination by Mr. Muthama for Makau, PW2 testified that the home, store, maize mill, car and motorcycle were all burnt and that he was assisted by Dominic Musyoka Githua. Testifying that the deceased were thrown into the burning store and that he was unable to walk and was assisted by Dominic, he intimated that his statement indicates he was able to run for about 15 meters and Dominic Musyoka assisted him. He testified that what he recorded in his statement is correct and he was able to run to safety. He stated that he did not seek refuge inside a café but in a bush.

16. In re-examination, PW1 testified that it was the accused persons who were alleging that his father was terrorizing people in the area and that Masila attacked the 4th accused after he had insulted him to go slow while stepping on the tarmac road. Testifying he was unable to see much but he had not lost consciousness and that the 4th accused attempted to break into the car and also stoned them at home. It was his testimony that the 5th accused assaulted his mother and also the deceased and that Dominic Musyoka Githua untied him and helped him to safety.

17. PW3 Dorcas Mutile, gave her sworn statement and testified that in 2015 she was in Kavelena village in Masinga Sub County, she was then married woman by Nelson Mutuku Musyoka. She testified Wambua Masila was a cousin to her husband while Nahashon Kasyula was her husband. Further she testified that on 25/12/2015 at 9pm she was at Mpusyani market with Monica Kalekye who was a wife to a brother-in-law and that they had gone to pick the deceased herein and Enock Mule plus one Muisyo as they had been alerted that one of them had drunk too much and needed to be assisted. She stated that they linked up and on their way home 4th accused complained that they were using the tarmac road inappropriately and a scuffle ensued and they had to run home. She stated that the following day on the 26/12/2015, her mother-in-law Catherine Musyao and Monica went to the market and she was left behind and later, at around 8:00am a young girl Mbula alerted her certain persons were assaulting their relatives. PW3 met the assailants who demanded for the whereabouts of PW3’s husband. They forced her to accompany them to the market and that those persons are the accused herein. PW3 stated that she had not seen them before and they went to the market where PW3 was forced to sit down with her mother-in-law and Monica. PW3 had not known the names of the accused person before but they used to be at the market. PW3 was able to mark their faces that day as they are the ones who attacked her husband and his cousin as well as her mother in law. PW3 further testified that the 6th accused started assaulting her and her mother-in-law and that one Nguso received a call and PW3 heard him say confirming that the persons needed had been found. PW3’s husband and his cousin were brought by persons unknown to PW3 and who ordered them to proceed to their home. It was the testimony of PW3 that a large crowd numbering about seventy turned up at their home, they demolished five houses and then set them on fire. According to PW, 1st accused only stood there and did not do anything, 2nd and 3rd accused demolished her house, the 4th accused demolished the house, 5th accused did not do anything, 6th accused participated in the demolition. PW3 further stated they also torched the store and that the two deceased persons were thrown into the burning store and perished there and that they also torched the shop and burnt the motorcycle and vehicle as well as a maize mill; that they were warned not to assist the deceased in any way and that Enock Mule was helped to escape. It was PW3’s testimony that they later went to Kivani Village to live and that the 1st accused helped to put the deceased into the store to burn, 2nd accused torched the house and hit the deceased persons with stones, 3rd accused also pushed the deceased onto the fire, 4th accused hit deceased with stones and also participated in burning, 5th accused torched the store and 6th accused assaulted deceased persons using stones. PW3 finally testified that she had no difference with the accused persons before.

18. In cross-examination by Mr. Kyalo, PW3 testified that it was her first time on 26/12/2015 to see the accused persons and that the mob was large comprising about 70 in number and further that they went home with the large crowd; that she was ordered to sit outside the compound. PW3 could not recall the clothes the 1st -3rd accused wore as she did not know them well before. According to PW3 the 1st accused threw the two deceased persons into the burning store and that Monica Kalekye also witnessed and that the 2nd accused struck a match box to burn the premises, the 3rd accused tossed the two deceased persons into the burning store and that Monica and Blessings were present and saw what happened. PW3’s mother-in-law was sitting elsewhere and that PW3’s mother in law was thrown into a deep gulley and that PW3 is certain of what she saw.

19. In cross-examination by Mrs. Nyaata, PW3 stated she had not known the accused before except 2nd and 6th accused persons and that 25/12/2015 at 9pm they had gone to pick up her husband and it was dark but there were some lights; further there was no incident of a fight on 25/12/2015 save only stones being thrown and each one of them running away and PW3 was with Enock Mule on the 25/12/2015. She testified that she did not see Masila assaulting anyone on 25/12/2015 and that the crowd comprised of men and women some of whom came to see what was happening; that she was able to see the accused persons and they took 30 minutes from the market to their home. PW3 stated further she was seated on the ground near the accused persons and she cannot recall the type of clothes the 4th and 5th accused wore. Further it was her testimony that she was seated at about six meters and 4th accused torched her mother-in-law’s house using a matchstick being that it was during the day and she could see it clearly and that there were many people. PW3 stated 5th accused burnt the store using a match box and she can’t tell what 5th accused wore and she had no problem with the 4th and 5th accused persons and she could not tell if her late husband had any differences with them. PW3 maintained that the accused persons killed the deceased persons, she saw the deceased being thrown into the fire and the incident took place from 11:00 am up to 5pm, the police arriving after the incident.

20. In cross-examination by Mr. Makau, PW3 testified that she had known the 6th accused for about one year as a good person and had not wronged her before. She stated further that she was present at the scene and the 6th accused slapped her twice and she was angry with him. According to PW3 6th accused torched the vehicle and that 6th accused hit her husband on the back with a stone. She testified that she is aware of the murder case and she did not see the 6th accused murder a person, stating that day people were murdered.

21. In re-examination, PW3 testified that the 6th accused torched a vehicle and hit her husband with a stone and her husband died.

22. PW4 Cathelina Musyawa, gave her sworn testimony and testified that on 26/12/2015 she woke up and took breakfast with her children Nahason Musyoka, Enock Mule and their wives Monica and Dorcas and she was also with Masila. PW4 stated that they later suggested they go to the market to run some errands; that she left with Monica for the market and on the way they saw a large group of who had weapons, the 1st accused was among them and likewise 2nd and 3rd accused, 4th accused was also among them likewise 5th and 6th accused. PW4 had known them as they lived in the same area with PW4. According to PW4, there were others who were not arrested and that they had no relationship with those persons, they followed them to find out their mission and that she talked to one of them named Lonzi who declined to respond to her. PW4 followed them for some distance where they ordered her to lie or else they would beat her up and that her daughter in law Monica also arrived and she too was ordered to lie down. It was PW4’s testimony that the crowd demanded the whereabouts of her sons and she informed them that they had gone to the market, 6th accused threatened to beat them; further she stated she was kept there for some hours and that later her sons and their cousin were brought there already tied up on the hands and legs. According to her they were then viciously attacked and 4th accused kicked Masila on the stomach. PW4 tried to intervene but was pushed off. She testified further that crowd later decided that they escort them home. Masila attempted to run but was chased. She stated that they were all escorted home and that on the way the 5th accused demanded for Kshs 1 million so that they could be spared. Testifying that on arrival home her sons and their cousin were placed under a store which was set on fire and she tried to plead with the irate mob to no avail. PW4 lamented that Enock Mule was untied and left to go as he used not to stay in the area and the store was beginning to catch fire and the irate mob tied the two deceased persons and then hit them with bricks. She testified she was seized and thrown down a nearby valley and hit with a stone and that the 1st accused hit deceased with bricks, 2nd accused torched one of the houses, 3rd accused hit Enock Mule with a stick, 4th accused hit the 2nd deceased on the stomach, 5th accused hit the 1st deceased while the 6th accused also hit the 1st deceased with a stick. She stated that later the area chief came and requested her to stand up and she was assisted to hospital for treatment. PW4 produced the P3 Form issued to her.PW4 learnt while in hospital that Nahason and Masila had died; further that she had not disagreed with the accused persons before but they had a land dispute with PW4’s husband.

23. In cross-examination by Mr. Kyalo, PW4 testified that she left the market at 10:00 am and Dorcas and Muisyo plus some young children remained at home; that her husband had left early in the morning for a church function and she saw a large a crowd that had sticks and metal bars while she was on her way to the market. PW4 saw the 1st accused who wore a white stripped T-shirt, 2nd accused was among the crowd and could not recall what he wore, 3rd accused is called Makau Kithu and he wore a T-shirt. PW4 had known the 1st – 3rd accused persons as they were neighbors and that they left the market for home with the large crowd numbering over fifty and that she was then trying to implore the crowd to spare her children and that she emerged from the valley to find the two deceased had passed on.

24. In cross-examination by Mrs. Nyaata, PW4 testified that she knew 4th and 5th accused persons for long as they used to have a land dispute with their families and that the land issue is not the cause of the murder case and that PW4’s husband left home early on 26/12/2015 after taking tea. According to PW4, the crowd did not talk to her when they first met and she decided to follow them to establish what they were upto and 4th and 5th accused were at the market but PW4 could not tell what they were doing there. Testifying the deceased persons were assaulted by the 4th accused at the market while the 5th accused joined in while at their home and that Masila Wambua was attacked and she was able to witness. PW4 could not recall the clothes 4th and 5tyh accused wore and her daughter in law Dorcas was present and witnessed the incident. Further, PW4 saw 4th and 5th accused assaulting the deceased persons and that the crowd comprised of male and female villagers. PW4 testified further that about four people threw the deceased persons into the burning store and her husband was not at home at the time of the incident. She could not tell if her husband saw the crowd and they arrived home at 2pm. Testifying that police officers visited the area around 11pm or midnight but the she was in hospital and that the deceased were killed by the mob.

25. In cross-examination by Muthama, PW4 stated 6th accused attacked Nahason and Masila and there were more than ten sticks and stones used to hit deceased persons. PW4 was trying to deflect the sticks and stones directed at the deceased persons and that she was able to see the assailants. PW4 was also attacked in the process and after PW4 was assisted out of the valley she came to learn both deceased had passed on.

26. In re-examination, PW4 gave her testimony that 1st accused is called Ngunzu, 2nd accused is Kaimi Muteti, 3rd accused is Makau Kithu, 4th accused is Muthiani Musembi, 5th accused is Kioko Nzioka and 6th accused is Kanari Mutua Kamunzyo and the six accused persons were among the mob that killed the deceased persons. PW4 had known the accused persons before and that they arrived home at 2pm and the store was torched around 3pm. PW4 was able to see the premises and properties being torched.

27. PW5 Bernard Wambua Kasyula, gave his sworn statement and testified that he is from Masinga Sub-County and a farmer. PW5’s son who died at the time of death, Nahason Kasyula is a son to his brother. PW5 recall on 29/12/2015 he was accompanied by his brother James Kasyula and his son Joel and his other son to the mortuary where post mortem was conducted on the bodies of the deceased persons and they identified the bodies.

28. There was no cross examination and re-examination of PW5.

29. PW 6 NO. 68899 PC. Joel Kasyula Musyoka gave his sworn statement and testified that he is attached at Buru Buru Police Station and that previously he was at Kambete police station. PW6 recall on 29/12/2015, he was on leave at home in Ndithini when he received a report to the effect that his two brothers had been lynched and they were Nahashon Kasyula and Wambua Masila. PW6 visited the hospital mortuary in company of a police attached at Ndithini police post and that his father James Kasyula and his brother Wambua were also present. Testifying the bodies had injuries and burns but he was able to identify them. He stated the first body was that of Nahashon Kasyula and the second one belonged to Wambua Masila.

30. In cross-examination by Mr. Kyalo, PW6 stated that he identified the bodies and the bodies were not burn beyond recognition hence PW6 was able to recognize the bodies.

31. In re-examination, PW6 testified that the physical faces were recognizable.

32. PW7 NO. 96399 Alex Wambao, testified that he is currently attached at Masinga police station, that previously he was at Ndithini police patrol base. PW7 recall on 1/1/2016 in the evening when one Kiio the Assistant Chief and the Chief Mr. Makau called Corporal Paul Nduati and reported that there were suspects of murder where they had murder family members of Kasyula. PW7 rode on a motor cycle and met the chief and his assistant and they managed to arrest two suspects who were pointed out by two administration officials. It was the first time PW7 saw the 2nd and 4th accused herein. He testified that they escorted them to the Ndithini Patrol Base and were later picked up by CID officers from Matuu police station.

33. In cross-examination by Mr. Kyalo, PW7 testified he arrested 2nd accused who is called Alfonse.

34. In cross-examination by Mrs. Nyaata, PW7 testified that he arrested 2nd and 4th accused on 1/2/2016 and the suspects were involved in a murder. PW7 did not participate in investigations and that he found the two in the company of the chief and his assistant chief while drinking alcohol.

35. In re-examination, PW7 stated that he arrested Alphonse and Nicholas, the 2nd and 4th accused persons.

36. PW8 NO. 62212 CPL. Paul Nduati, testified that he is currently stationed at Manyatta police station and that in 2015 PW8 was in charge of Ndithini patrol Base within Masinga Division. Testifying that on 20/12/2015 he was out of the office when they received a report from the District Officer that the home of Kasyula had been burnt. PW8 then instructed PC Senei and PC Osman to rush to the scene. It was his testimony that they reported that two people had been burnt and killed. PW8 sought for assistance and led officers to the scene of crime. He knew the home quite well and that they found two bodies already burnt, a vehicle torched and established that one of the family member had been badly injured and houses burnt. Testifying that there were villagers at the scene and they managed to recognize those burnt. According to PW8 the one injured could not even walk and they assisted her to Ndithini Mission hospital.

37. In cross-examination by Mr. Kyalo, PW8 stated he was then out of office and that a report had earlier in the day been made at the Patrol Base. PW8 only came to learn of the incident at 1. 30 pm from the District Officer, his officers did not alert him of the incident. Testifying that he reported there in March, 2015. PW8 had known the family of the deceased and the area has squatter problems PW8 had been made aware of and there had been claims that the family of deceased had dispossessed the squatters their land. PW8 had known the 1st accused herein and was also aware of the assault case at Kithimani.

38. In cross-examination by Mrs. Nyaata, he testified that he is not sure if a report had been lodged by the family of deceased at his Patrol Base. Testifying that he had known the family of the deceased since he used to visit the area over issue to do with squatters, PW8 had seen the photographs and confirmed that he had seen the bodies which had been burnt beyond recognition; he could not identify the bodies. PW8 did not know the 4th and 5th accused persons since he had not seen them before.

39. In cross-examination by Mr. Mutua, PW8 testified that the area has a squatter problem and that the deceased family had problems with squatters; further that the squatters in the area are many. According to PW8, he left Ndithini area in 2017 while squatter problems still persistent. Testifying the dispute was about land. PW8 was not the investigating officer. He did not know the 6th accused.

40. In re-examination, he said that the complainant in the criminal case (D.M.F.I) was James Kasyula and the scene was the home of James Kasyula. Testifying that aforesaid had three suspects one of whom is the 1st accused herein and that DMFI-2 shows that the reportee was referred to hospital but he could not tell if he came back to station for issuance of P3 Form and he could see from the photographs that skin of deceased could be seen.

41. PW9 DR. Muli Simon Kioko, testified that he is a General Practioners at Matuu Town vide license No. A3342, on 29/12/2015 at Ndithini Hospital Mortuary he carried out a post mortem examination on the body of the deceased which was identified by Shadrack Wambua, a relative and a police officer from Ndithini Police Post. Testifying that the body was well preserved and the external appearance was as follows: - He had a fractured skull on left temporal region of the head.

He had decapitated left front arm.

Dislocation of right elbow.

Decapitated right forearm.

Fracture of right knee.

Fracture of left distal leg.

Fracture of right lower limb.

Dislocation of right knee

Body was burnt beyond recognition (100% burns)

42. PW9 testified that it was alleged that the deceased was burnt by a mob. He relied on the history from the relatives and investigating officer. Testifying further that he dissected the internal parts and did not see any soot in the windpipe and formed the opinion that the cause of death was cardio pulmonary arrest due to multiple organ failure secondary to severe and generalized blunt body trauma by beating, the weapon used was blunt, deceased was burnt when already dead. He testified further that the decapitation was due to burns. He stated his report is dated 29/12/2015 and to be produced (Exhibit 4A- post mortem report form in respect of Wambua Masila).

43. PW9 further testified that another report of a deceased a person which he conducted on 29/12/2015. Testifying that the victim was one Nahashon Kasyula who was identified by Joel Kasyula and CPL Ndauti. Deceased was aged 24 years old and of good nutritional status and that it had been well preserved. PW9 testified that the external appearance was as follows: - Simple occipital fracture.

Hand lied with a rope.

Phalanges of upper limb (fingers) had been burnt.

The back and chest had superficial burns.

44. PW9 testified that he opened the head and noted that the occipital had multiple fractures and there was intracranial haemorrhage. PW9 formed the opinion that the cause of death was cardio pulmonary arrest due to brain contusion due to blunt head trauma. He produced (Exhibit 4B-Post mortem in respect of Nahashon Kasyula).

45. In cross-examination by Mr. Kyalo, PW9 gave his testimony that the body of the first victim was burnt beyond recognition which was about third degree burns and that the deceased was burnt after he had died prior the burns; further the second victim’s injuries were so severe.

46. In cross-examination by Mr. Mutua, PW9 testified that the first victim had been burnt beyond recognition and he could not tell the date of the alleged burns, further he stated the body of Wambua Masila could not be recognized unless by the relatives and the police officer.

47. PW10 NO. 92115 CPL Samuel Kamau, gave his sworn statement and testified that he is currently attached at DCI Kangundo Crime Scenes Section and he is gazette vide No. 217 dated 28/12/2012. PW10 recall on 11/2/2016 at 4pm he received an exhibit Memo form from Sgt. Gladwell Mburu (MFI-7). PW10 was directed to print photographs; he proceeded to print the pictures. He testified that it had been claimed from the Exhibit memo that an incident took place on 26/12/2015, where persons were killed and properties burnt. PW10 processed the pictures pursuant to Section 78 of the Evidence Act and ensured that he supervised the processing of those photographs which are 18 in number (MFI-2A-R): - 1-6 general view of the demolished houses, 7 close up of a burnt motor vehicle, 8-11 motor cycle (burnt), 12-14 a posho mill (burnt), 15 remains of a burnt human body. Testifying that the photographs were processed on 20/6/2016 and a certificate to that effect was prepared (MFI-8 a certificate) PW10 produced the photographs and certificate (P. Exhibit 2A-R and 8).

48. In cross-examination by Mr. Kyalo, PW10 stated that his rank is Corporal and he did not visit the scene. PW10 did not take the photos himself as they had been taken by police officer Korir who had rushed to the scene and was the investigating officer who briefed him; testifying that exhibit memo was forwarded to him on 11/2/2016 by Sgt. Mburu who was the investigating officer and not Korir. According to PW10 the incident took place on 26/12/2015 at around 17:00 hours.

49. In cross-examination by Mrs. Nyaata, he testified that he was told Korir was the one who took the photographs and the date taken as indicated on the Exhibit Memo Form.PW10 was not at the scene, he received the disc which was a 3 GB and it was not possible to know the date the photographs were taken if only the disc is to be considered. He testified further that photographs show damaged items and that it was not possible to gather the number of persons burnt as they are not recognizable.

50. In re-examination, PW10 testified he is the one who processed the photographs.

51. PW11 NO. 541847- SGT- Gladwell Mburu, gave her sworn statement and stated that initially she was based at Yatta police station but currently based at Gatundu. She stated that she does investigations and on 28/12/2015, she was alerted of the matter and earlier on 26/12/2015 officers had proceeded to the scene of crime within Ndithini. Testifying it had been reported by Corporal Nduati that a large mob had descended on a certain family and attacked them, there were chaos in that area. PW11 the revisited the scene on the 28/12/2015 in company of Sgt. Machogu, Corporal Nduati, PC Korir and PC Edwin Metto. PW11 saw the aftermath as there was a burnt vehicle, burnt houses, burnt motorcycle, store and burnt shop. She testified that the owner of the homestead was one James Musyoka Kasyula and that on that day the situation had calmed and they were able to record witness statements; the area chief one Kioko was present and several officers were involved in recording the statements from witnesses. PW11 learnt that photographs had been taken on the 26/12/2015 and the burnt bodies were taken to a nearby mission hospital. Testifying that other victims sustained injuries such as Joel Kasyula, Catherina and Dorcas and were taken for treatment; that they then embarked on looking for the suspects. PW11 retrieved the photos from the mobile phone of Korir and transferred them into a flash disc and had them forwarded to the scenes of crime officers (Exhibit 7- exhibit memo form). It was PW11’s testimony that she collected the ashes from the burnt store and were the bodies had been thrown into and the investigating officer was Machogu. PW11 then prepared an exhibit memo Form to the government chemist dated 11/2/2016. She produced the memo form (exhibit 9 – memo form). PW11 stated that she was able to track down the suspects the first three accused herein were arrested at Kithimani law courts where they had gone to attend a case involving complaint James Musyoka Kasyula which involved an assault investigated by CPL Nduati, they were arrested by other officers and that she had not known the first three accused persons before. PW11 stated further that 4th ,5th, and 6th accused persons were later arrested through the aid of the area chief of Ndithini and PW11 duty was only to arrest and arraign in court. She had not interacted with all the accused persons before. PW11 established that there had been differences between the families accused and deceased prior to the incident also there was a land dispute.

52. In cross- examination by Mr. Kyalo, PW11 testified that she is the investigating officer in this matter and she visited the scene on 28/12/2015 for the first time and did not go back there again; that the offices visited the scene on 26/12/2015, incident was duly reported. PW11 learnt that James Kasyula had to take refuge and later reported the matter at 1300 hours vide mobile phone number. Testifying that officers from Ndithini post tried to visit the scene but could not access it due to blockage of the road and had to seek reinforcement; further that Ndithini post is about 6-7 kilometers away. She stated that a large crowd thronged the complainant’s home and were more than hundred in number. PW11 recorded a statement from James Kasyula on the incident who accompanied the officers to the scene. PW11 did not visit the scene on 27/12/2015. It was PW11’s testimony that she gathered statements from complainants’ neighbours including the area chief. The assistant chief is Daniel Kiio Mbithi and is one of the witnesses. PW11 was not aware of one Elijah Munyao Mutio who is alleged to have bought alcohols fo the goons who latter attacked the complainant’s family and that it is true there was a depute the 1st -3rd accused persons and the family of the complainant. PW11 stated that she is aware that there are several disputes over land in the area where no title deeds are available; further that the 1st- 3rd accused were arrested on 19/1/2016.

53. On cross-examination by Mrs. Nyaata, PW11 testified that she did not visit the scene on 26/2/ 2016 but on 28/12/2015 and that the bodies were taken to the mortuary. PW11 was not present during the post mortem though she had seen them on 28/12/2015 burnt beyond recognition and the photographs were taken by PC Korir on 26/12/2015 and transferred to a flash disc on 27/12/2015. Testifying that she was aware that assault case involved many suspects and incident took place from morning up to later at night. She testified further that the officers reached the scene before 6 pm when the incident had happened and the arrest took place after recording of witness statements. The 4th and 5tyh accused were arrested by the assistant chief Daniel Kiio Mbithi. PW11 recorded statement of the area chief Mwangangi, 4th and 5th accused were arrested on 14th 3/ 2016 after the others had been charged and that she did not agree with the suggestion that it was the mob which is responsible for the attack. PW11 narrowed down her investigations to 11 suspects some of whom are still at large, photos were forwarded to the scene officers on 11/2/2016 and that there was a pending criminal case at Kithimani. Testifying that she is not aware of any criminal case between Mrs. Nyaata’s clients and complainant at Kithimani Courts.

54. In cross-examination by Mr. Mutau, PW11 stated that she was the investigating officer and she established that a criminal case was pending involving family of the deceased and accused persons. PW11 could not tell if the 6th accused had a case with deceased’s family and the deceased family did not implicate 6th accused but was by the witnesses. It was her testimony that there were issues to do with squatters claiming land ownership and she indicated in her statement that there was a crowd of 200 people who descended on to the deceased home. Her investigations led her to pin point about 11 suspects and the six accused were fully involved in the commission of the crime. PW11 testified that she could not tell the identity of the persons who struck the match sticks used to set fire the victims and properties and cannot tell if the accused persons lit the fire. She stated further that Korir’s mobile phone is not an exhibit and she did not have the serial number and that the flash disc was not before court and cannot recall its numbers. Testifying that Stanley Korir was her assistant in the investigations and other suspects are still at large.

55. In re-examination PW11 stated that she confirmed seeing the bodies which were burnt and that one body was burnt beyond recognition while the other was recognizable through the body parts. Further that there were 11 suspects and the accused persons are part of them.

56. PW12 Daniel Kiio Mbithi, gave his sworn statement and testified that he is a former Assistant chief and now retired; that on 26/12/2015 he can recall he received a call at 1 pm and he was told of somewhere where there was a fight. PW12 called the chief, called his brother and also the police. Testifying that he called Chief Makau Mwangangi. He sends him a motorbike was spoilt he was to get transport and pick him too. PW12 got a motor bike and got the chief and went and found the people who had a fight and were told they had gone. Testifying that they went to the Boma where they were, on the way they met a multitude of people. They were scared and they took another route and reached the Boma. He testified that they found the houses and the car were on fire. PW12 testified further that there were four houses on fire and two bodies burnt and found the mother of ‘Boma’ who was on the ground. They took the lady and took her to another ‘Boma’. He testified that her son came and took her to the hospital. Testifying that further at the scene they found the posho mill and a motorbike were burnt and the property belonged to James Kasyula. PW12 testified further that the police officers came from Masinga and took over the investigations. Testifying that he knows all the accused persons, 4th, 5th and 6th accused persons. He knows them before he has met and they are from his Sub location; that the incident took place in the next Sub location. 1st, 2nd and 3rd persons. 4th, 5th, and 6th accused have been in their Sub location for 27 years; that 1st 2nd and 3rd accused persons. He knew them before this case. He stated that on the day of the incident he did not see them.

57. In cross-examination by Mr. Kyalo, PW12 testified that he did not know 1st 2nd and 3rd accused persons before this case from 2015 PW12 knows them now, 1st 2nd and 3rd accused are from his sub location and that he does not know anything bad about them. Testifying that he knows James Kasyula for 5 years since he went to PW12 ‘s area and that the deceased’s father is James Kasyula; further he testified that he did not know the relationship between James Kasyula and 1st 2nd and 3rd accused. Testifying that they found the 4 houses the motor vehicle a blaze and 2 dead bodies and found around over 200 people.

58. In cross- examination by Mrs. Nyaata, PW12 stated that 4th and 5th accused are from his sub location Kiatinini and the incident was at Milaani sub location. Testifying that the 4th 5th and 6th have never been brought to his office and on his own view they are of good conduct. Testifying they met a multitude of people as they went there and he could not tell where they came from. PW12 found an old lady wife of the owner of the ‘Boma’. He did not find anyone committing the offence when they went.

59. In cross-examination PW12 stated that he did not see what happened, he did not witness the incident, he did not know who committed the offense and that they had helped arrest Muthiani and Kioko the 4th and 5th accused persons with police officers.

60. PW13 Makau Mwangangi, testified that he lives in Lithini/ Masinga Sub- County Machakos County and he is Chief of Lithini since 2007 till know. He testified that on 26/12/2015 at 1pm he got a call from sub chief in Kavelele who said there was an incident at Kavelele Market; that there was a problem and the sub chief was to go for him and he informed the police and they went together to Kavelele Market and they found sub Chief of Ndithini Sub- location and they went 3 of them, him and 2 sub- Chiefs. He testified that on arrival at Kavelele they did not find the people at the scene and they headed to look for them and they went to their home. He stated that they found the 2 children were burnt to death and found smoke coming from the home, and they saw a multitude of people more than 200 people, they found 4 houses 1 store and smoke was coming out and two bodies lay on the ground and they were burnt to death. PW13 testified further that they found Kasyula’s mother who was on the ground; that they calmed her down and asked two of Kasyula’s grandchildren to remove her from there and took her elsewhere; after that they came back, they found at the scene that the posho mill /shop were on fire and the police came to the scene. PW13 testified that on that day, they did not find any of the accused persons and that he knows all of them.

61. In cross- examination by Mr. Kyalo, PW13 stated that he knew the 1st 2nd and 3rd accused for over ten years. Kasyula was the grandfather of the deceased children.

62. In cross-examination by Mrs. Nyaata, PW13 testified that he heard that Kasyula’s sons were harassing and assaulted the people. On Christmas day the deceased had beaten people. He stated that Muthiani 4th Accused was beaten and PW13 saw him injured and he told him to report to the police; the 3rd accused Duncan Maithya Muteti pointed where Kasyula had killed his wife and was jailed for 10 years. He saw the crowd from far. PW13 testified that the ‘Kuwait’ Village and others caused the incident and that on that day he did not meet 4th and 5th accused he met them on 22/1/2016 and that the incident took place in Kavelela Milaani sub location-uvaini village.

63. In cross-examination by Mr. Muthama, PW13 stated that he did not see the 6th accused.

64. PW14 Denis Owino Onyango, gave his sworn statement and testified that he is a Government Chemist analyst in Nairobi, he holds BSC in Chemistry and Bio Chemistry from JKUAT University and he is a gazetted GN 5934 OF 12/1/2007. He testified further that he has Exhibit Memo Form and government analyst Report were submitted to government chemist by Sgt Gladwell Mburu No. 51847 DCI Yatta. That the exhibit memo - contained Some burnt debris and he was to do analysis to find out if there was fire accelerant PW14 proceeded with the examination and analysis of burnt debris and soil and he used a machine called ultraviolet rieval spectroscope. He found out that the burnt debris and soil had traces of petrol which is a fire accelerant. He stated that he made a report referenced E8/16 and signed the report on 29/2/ 2016 and was signed on his behalf by colleague Sarah they endorsed it with Government Chemist seal. He produced his report (Government Analyst Report MFI-10- Exhibit 10), exhibit Memo Form- MFI-9 – exhibit 9.

65. In cross-examination by Mr. Kyalo for the 1st 2nd and 3rd accused persons, PW14 stated that he was to do analysis and confirm fire accelerant the exhibit memo status. PW14 testified that he was to ascertain the cause of fire and substance of the burnt debris and that is what he did.

66. In cross-examination by Mr. Makau for the 6th accused person, PW 14 testified that he received burnt debris and soil only nothing else.

67. The matter was canvassed by written submissions.

Submissions on a No Case To Answer 68. 1st , 2nd and 3rd Accused persons in their submissions dated and filed in Court on 6th April,2023, Mr. Kyalo, Counsel for the said accused persons submitted that from the prosecution evidence, it is manifestly clear that none of the prosecution witnesses saw 1st 2nd and 3rd accused persons assault the deceased as none gave direct evidence to link the accused persons to the alleged crime.

69. Counsel submitted that the prosecution case is built on mere suspicion and only circumstantial evidence, and that the prosecution through the witnesses had the onus to prove that indeed the accused persons caused the death of the deceased by unlawful act or omission and that they had malice aforethought to do so.

70. On the issue of proof of the fact and the cause of death of the deceased, counsel relied on postmortem report by PW9 PEHX-4 (a) and (b) which confirmed that the deceased were long dead before being burnt since no smoke was identified in their wind pipe, cause of death being cardio pulmonary arrest. It was the counsel’s submission that the cause of death was clarified by PW9 to be as a result of the injuries inflicted and not the burning itself.

71. Regarding the proof that the death of the deceased was the direct consequence of unlawful acts or omission on the part of the accused persons which constitutes the “actus reus” of the offense, counsel submitted that it is not in dispute that in the mid-morning hours of 26/12/2015 a group of people (mob) visited the homestead of PW1 (Mr. James Kasyula) whereby they assaulted the deceased persons and torched PW1 homestead.

72. Counsel submitted that the main issue to determine is whether the 1st 2nd and 3rd accused persons were among others positively identified at the scene and the role they played in committing the offence. Counsel relied on the case of Republic v James Ogwang Alicho & Another [2018] eKLR (Kakamega Criminal (murder) case 15 of 2013) and Donald Atemia Sipendi v Republic [2019] eKLR Criminal Appeal No 299 of 2011, to buttress the point on the question touching on the identity of the accused person.

73. Counsel submitted on behalf of the 1st 2nd and 3rd accused that PW1, PW2, PW3 and PW4, were the witnesses who alleged to have identified the said accused persons within the mob. According to counsel these witnesses differed on two key points which are the dress code and the role played by the said accused persons. Opining that each of the said witnesses gave different version from the other and further they conflicted in their own evidence in examination in chief vis as viz cross examination by the advocates on record for all the accused persons. It was contended by the counsel that witnesses failed to exclusively single out the accused person from the mob as persons who committed the alleged offence by assaulting and or inflicting injuries to the deceased persons to the exclusion of others in the mob. It was the counsel’s contention that PW1,2,3 AND 4 did not see the accused person possessing weapons and before and after the crime. Reliance was placed on the case of Republic v Patrick Kyalo Munywa & Another [2019] eKLR (Machakos Criminal (murder) case no 62 of 2013, to support his point.

74. As regards the proof that the said unlawful act or omission was committed with malice aforethought which constitutes the mens rea of the offence, counsel relied on the case of Republic v Ismail Hussein Ibrahim (2018) eKLR, to buttress the position that to infer malice aforethought from the nature and type of weapons used and multiple severe bodily injuries of the victim.

75. Counsel submitted that there was bad blood in which PW11 confirmed that there was simmering land disputes in the area out of which PW1 had a problem with the squatters who used to invade his land. Contending that there were several cases reported at chief’s office concerning land disputes and further that the 1st, 2nd and 3rd accused persons were arrested while attending an assault case at Kithimani Law Courts in which PW1 herein father to the deceased persons is the complainant.

76. It was the counsel’s submission that there were no independent witnesses called to corroborate the deceased family members evidence and that the investigating officer confirmed that the area chief, the neighbours did not record statements, opining that there must have been neighbours around the deceased home who were probably among the first people to witness what happened. Reliance was on the case of Republic v Morris Karani Alando (Kakamega Criminal (murder) case no. 32 of 2012), to buttress the point of poor investigation where key witnesses were not called to support the prosecutions claim.

77. Counsel finally urged the court to discharge/ acquit the 1st 2nd and 3rd accused persons under section 306 (1) of the Criminal Procedure Code.

4th and 5th Accused Persons Submissions On No Case To Answer 78. By their submissions dated 24th April,2023 and filed in court on 25th April,2023, Mrs. Nyaata, counsel for the said accused persons submitted that the only issue for determination is whether or not the prosecution has established a prima facie case for the 4th and 5th accused persons to be called upon to defend themselves, counsel relied on the case of Republic v Nicholas Onyango Nyolo (2014) eKLR, to support her position regarding the proof of the fact of cause of death of the deceased, proof of death as a result of direct consequence of an unlawful act or omission on the part of the accused person which constitute actus reus of the offence and the commission of the said unlawful act or omission was committed with malice aforethought which constitute mens rea of the offence.

79. Counsel in her submission opined that the prosecution produced the postmortem reports by PW9 as exhibit no 4A and 4B which confirmed the fact and cause of death of the deceased persons herein.

80. Counsel submitted that each witnesses gave different versions of what actually transpired and what was clear was that unlawful act was committed by a mob with PW2 and PW3 allegedly differed on the kind of clothes 4th and 5th accused wore. It was counsel’s contention that this matter was never investigated and if such investigation took place, PW11 the investigating officer could not explain to court what commission or omission did the accused persons herein do which led to the death of the deceased persons herein.

81. Counsel submitted further that the investigating officer only stated that there were over 100 people who went to PW1’s homestead and narrowed to 11 suspects not explaining why she narrowed down the 11 suspects. Counsel submitted that by failing to prove the actus reus of the offense herein beyond reasonable doubt, it cannot be said that accused persons had a guilty mind, urging that the prosecution failed to establish any case against 4th and 5th accused persons which can sufficiently require them to make a defence.

Submissions By The State Case To Answer 82. The state vide its submissions dated and filed 10th May, 2023, Mr. Mwongera, state counsel submitted on the following issues sequentially.

83. On whether the accused involved in the murder of the deceased, state counsel submitted that PW1, PW2, PW3 & PW4 clearly placed the accused persons in the scene of crime. He submitted that the said witnesses witnessed the accused persons come into their homestead, set the houses, store and motor vehicle on fire. (Nahason Kasyula and Wambua Masila) were thrown in the store when it was on fire. Submitting that PW2 clearly illustrates that the 1st accused persons was pushing the store to fall on them, while the 2nd accused heaped bricks on them, the 3rd accused removed petrol from the vehicle, the 4th accused was removing bricks, the 5th accused was injuring his mother, finally, the 6th accused was collecting grass to torch the deceased.

84. On malice, counsel relied on Section 206 of the Penal Code on the malice aforethought, submitting that accused persons had malice aforethought because they accosted, assaulted and dragged the two deceased persons from the market to their home and without hesitation set the houses, store and vehicle on fire and they threw the deceased into the fire.

85. On the accused identification, counsel for the state place reliance on direct evidence for identification by PW1, PW2, PW3 & PW4.

86. On the cause of death, counsel submitted that PW9 Dr. Muli Kioko testified that he filled the post mortem report for Wambua Masila and formed the opinion that cause of death was cardio pulmonary arrest due to multiple organ failure secondary to severe and generalized blunt trauma by beating, the weapons used was blunt and the deceased was burnt when already dead, decapitation was due to the burns. Counsel further placed reliance on the post mortem report for Nahason Kasyula which confirmed that cause of death was cardio arrest due to brain contusion due to blunt head trauma. Further state counsel relied on the evidence of PW14 who examined the burnt debris and soil traces of petrol, fire accelerant.

87. Counsel relied on the cases of Ronald Nyaga Kiura v Republic [2018] eKLR, Ramanlal Trambaklal v R [1957] EA 332 at 334 and 335 and R v Jagjiwan M. Patel and Others (1) T.L.R (R) 85, to buttress his point on prima facie case.

88. State counsel submitted finally that the prosecution availed the testimonies of fourteen witnesses in addition to the documentary evidence produced as exhibits in this matter hence according to counsel prosecution proved beyond reasonable doubt and the accused ought to be placed in their defence under Section 306 (2) of the Criminal Procedure Code.

Determination/ Analysis 89. At the Close of the Prosecution case, this Court read through the Court record and documentary exhibits produced during trial and considered the totality of the evidence.

90. In the case of Anthony Njue Njeru v Republic Court of Appeal No 77 of 2006; the Court determined the scope and content of case or no case to answer Ruling by the Court as follows;[Is]Was there a prima facie case to warrant the Trial Court to call upon the appellant to defend himself? It is a cardinal principle of our law that the onus is on the prosecution to prove its case beyond reasonable doubt and a prima facie case is not made out if, at the close of prosecution the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction”.

91. The issue of what is a prima facie case in criminal trials was clearly explained in Ramanlal Trambaklal Bhatt v R [1957] EA 332 at P. 334-335 where it was said:-“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 defense is made, but rather hopes the defense 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 defense.”

92. The evidence on record by Trial Court Hon. D. K. Kemei J consists of PW1 father of deceased children and owner of the shop stores and home where the Stores and home were set on fire by the suspects/accused persons in Court among others not in Court. PW2 was accosted on the way by suspects among them Accused persons who assaulted him; he was tied hands and feet and shoved in a thicket. Later Nahashon and Masila were also assaulted taken home and set stores and homes on fire.PW2 was rescued by a neighbor.

93. PW1,PW2,PW3 (widow of deceased)PW4 placed Accused persons in the incidents of assault, arson and murder of deceased persons.

94. PW6 was present during Post Mortem of deceased persons PW7 with the Chief & Assistant Chief arrested 2nd & 4th Accused persons. PW8 visited the scene.

95. PW9 conducted post mortem on both bodies of deceased persons.PW14 Government Chemist did analysis of burnt debris and soil sample and confirmed traces of petrol.

96. PW10 took photographs at Scene of Crime and PW11 Investigated the matter.

97. PW12 the Chief then testified on receipt of report and visited scene.PW13 was Chief who testified on receipt of the report and what he did.

Disposition 1. Upon this Court’s consideration of the totality of the evidence adduced and on record, the Prosecution has proved a prima facie case that warrants the Accused person to be placed on his Defense.

2. Further Mention for Directions on 19/10/2023.

RULING DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 12TH OCTOBER, 2023. (VIRTUAL/PHYSICAL CONFERENCE).M.W. MUIGAIJUDGEIN THE PRESENCE OF:NO APPEARANCE FOR THE ACCUSED PERSONSMR. MWONGERA FOR THE STATEGEOFFREY/PATRICK – COURT ASSISTANT(S)