In September 2020, the High Court convicted Douglas Mutiga Muriuki and his son Stephen Muriuki Baibaya for fatally slashing a man with whom they allegedly had a land dispute.
The two men were reported to have used a panga and a rungu on their victim; one slashed as the other pounded the head with the club.
The court jailed them for 20 years.
But the judgment's flaw was to rely on the dying declaration of Peter Mutheu M’ithali, the murder victim, as the main building block of the guilty verdict.
The Court of Appeal freed the duo on June 9, saying the declaration supposedly made by the dying man was only related by one person and it was not fully corroborated.
The killing took place on January 28, 2016, and area assistant chief Joshua Ngarisha was the first law enforcement official to reach the chief after the area OCPD had phoned him.
He testified the victim was laying on the ground, bleeding profusely and writhing in pain.
Court papers indicated that Ngarisha then told the administrator, "If he died, then it should be known that the cause was Mutiga and his son.”
“The [dying man] further told him the attackers had taken Sh30,000, his Samsung Galaxy mobile phone and documents, including a Cooperative Bank ATM. The victim was from PW3’s sublocation, but the appellants were from the neighbouring sublocation,” the documents read.
The allegedly stolen properties were not found on the two suspects when they were eventually apprehended.
The assistant chief also said dead man's family had a land boundary dispute, which was being handled by the Meru council of elders, known as the Njuri Ncheke.
In their defence, Muriuki said on the day of the murder, he was away in Rongai “for a funeral when my wife rang me to say people had set the house on fire and my son was arrested.”
At the Appeals Court, the judges faulted the trial court and the investigators for their less than judicious handling of the case that left gaps and questions, making the conviction uncertain and unsafe.
For example, the judgment said, "If the 1st appellant was found with a blood-stained panga, the panga was not subjected to forensic analysis to identify the murder weapon. In sworn defence, however, he denied being in possession of any panga.”
The court also raised questions about identification of the suspects. And the fact that the suspects admitted to the land issue as declared by the dying victim? The court said the victim could have randomly picked the two men with whom he had a land dispute.
The judges said, “The PW3 [the assistant chief] did not say that he asked which 'Mutiga and his son' the dying man was referring to. He stated that he found members of the public at the scene where the bleeding man lay. One of those who assisted him carry the victim also heard the deceased mention his attackers.
"These members of the public were not called. Joel Kirema [a member of the public] who allegedly heard the names of the attackers was not called. There was no evidence that he could not be secured to testify, after he recorded a police statement.”
“…no eye witnesses... were called to say that the persons who attacked and assaulted the deceased were the appellants,” the judgment read.
The judgment went on: “It is our view that had the trial court considered the totality of the matters we have pointed out in relation to the evidence called by the prosecution, it would have found that it was not safe to rely solely on the evidence of PW3 to find that the deceased had made a dying declaration naming the appellants as his attackers.
“If indeed there was a dying declaration, the identities of the attackers were not clear or certain, and, in view of the dispute between the deceased and the appellants, there was need for corroboration. There was no corroboration.”
