Court rejects testimony of deceased witnesses, acquits man of murder charge

On an evening in March 2020, what began as an ordinary night at a small bar in Mashinani, Kinangop, would eventually spiral into a case that landed before the High Court in Naivasha. At the center of the case stood David Kimani Muigana, a man accused of the grave crime of murder.

The story began inside a local bar where the deceased, Patrick Muhoro Mbau, had been drinking. According to testimony presented in court, Mbau entered the bar already intoxicated.

A seemingly minor incident soon triggered tension. A waitress, who had been sent to purchase a cigarette for a customer, returned to the bar only to be accidentally struck by the drunken patron. The situation escalated quickly. She slapped him, and a brief confrontation followed before other attendants intervened and forced the deceased out of the bar.

What happened after that moment would become the heart of the legal battle.

One witness told the court that he later encountered Mbau lying on the grass outside. The man appeared heavily intoxicated and struggled to stand. As the witness attempted to help him, Mbau allegedly mentioned that he had been beaten by someone named “Kimani.” At the time, the remark seemed casual, something to perhaps discuss the following day. But the next day, events took a tragic turn.

Another witness testified that he saw Mbau at a shop complaining of severe stomach pain. The deceased was holding his abdomen and asking for medicine, but the shopkeeper refused to sell him more, saying he had already bought medication the previous night. Concerned, the witness asked someone to help take Mbau to hospital. Unfortunately, he never recovered. Doctors later determined that he died from peritonitis caused by a perforated intestine resulting from blunt force trauma to the abdomen.

With a death confirmed and suspicions circulating, investigators began piecing together what might have happened. Eventually, attention turned to David Kimani Muigana. Authorities alleged that he had assaulted the deceased during the altercation that night. Muigana, however, denied any involvement, telling the court he had simply been working nearby at a butchery and later heard about the fight after the fact.

The prosecution’s case leaned heavily on circumstantial evidence. Most notably, it relied on the statement that the deceased had allegedly made to the witness naming “Kimani” as the person who beat him. Prosecutors argued that this was a dying declaration, a statement made about the cause of death by someone who later dies, which the law sometimes allows courts to consider as evidence.

But the judge approached this claim with caution.

First, the court noted that the deceased had been intoxicated both when he entered the bar and when he was later found lying outside. His condition raised doubts about the reliability of what he said. Second, the alleged statement only mentioned the name “Kimani,” a common name, without clearly identifying David Kimani Muigana as the person responsible. Without further confirmation, the court found that the identification was uncertain.

Even more troubling were the gaps in the investigation.

The prosecution had indicated it would call numerous witnesses who had been present at the bar during the altercation. Yet many of those individuals including bar attendants who might have witnessed the fight never testified. Despite repeated adjournments and court summons, several key witnesses could not be traced, and the prosecution eventually closed its case without them.

As a result, much of the prosecution’s theory remained unsupported.

The court also declined to rely heavily on the statement of another witness who had died before testifying. Because the accused had no opportunity to cross-examine that witness, using the statement as decisive evidence would risk violating the accused’s constitutional right to challenge the evidence against him.

When all the evidence was weighed, the judge concluded that the case lacked the necessary proof. While the death of Patrick Muhoro Mbau was undisputed and deeply tragic, the law demands more than suspicion; it requires proof beyond reasonable doubt.

Without credible eyewitness testimony, reliable identification, or corroborating evidence linking Muigana to the fatal assault, the prosecution’s case fell short.

David Kimani Muigana was acquitted of the charge of murder.