The High Court has acquitted rally driver Maxine Wahome of the murder of her late boyfriend, Asad Khan, after finding that the prosecution failed to establish a prima facie case against her.

Delivering the ruling, Justice Lilian Mutende held that the evidence presented by the prosecution did not meet the legal threshold required to place Wahome on her defence.

“The prosecution has failed to establish a prima facie case. She is hereby acquitted,” the judge ruled.

Wahome had been charged with murdering Khan at Preston Apartments on Oloitoktok Road, Nairobi, on December 12, 2022.

In her ruling, Justice Mutende analysed the evidence of all 29 prosecution witnesses and found that there was no proof directly linking Wahome to Khan’s death.

The judge rejected the prosecution’s argument that because only the accused and the deceased were in the apartment, Wahome was responsible for the fatal injuries, holding that the inference of culpability had not been proved.

Justice Mutende observed that in a murder trial, the prosecution bears the burden of proving beyond reasonable doubt the fact of death, that the death resulted from an unlawful act or omission by the accused, and that the act was accompanied by malice aforethought.

The court heard that Khan was admitted to hospital after sustaining injuries but remained unconscious despite treatment until his death.

Medical evidence showed that the cause of death was sepsis arising from his injuries. He had bruises on both hands, trauma to the back of the head, swelling and a cut on the head, with injuries to his arms classified as defensive wounds.

Medical witnesses also testified that Khan suffered traumatic head injuries consistent with a fall. The judge further noted evidence suggesting poor continuity of treatment following his transfer from Nairobi Hospital to Avenue Hospital, which could have contributed to his death.

While the defence raised the issue of medical negligence, Justice Mutende held that the question before the court was whether the prosecution had proved that Wahome inflicted the injuries.

The prosecution also relied on evidence that Wahome locked the apartment and denied Khan’s relatives access, as well as WhatsApp messages exchanged between the couple, including communication about the purchase of a bottle of Jameson whiskey.

A neighbour testified that he heard Khan ordering Wahome to leave the apartment and heard her respond that she was leaving. The court also heard evidence that the deceased had previously been violent towards women he had been in relationships with.

Justice Mutende noted that none of the prosecution witnesses witnessed the alleged assault.

A scenes-of-crime officer testified that investigators recovered broken window glass and a broken bottle at the apartment. During cross-examination, the officer conceded that the deceased could have kicked the glass, while the pattern of the broken glass suggested force had originated from inside the house. No blood-stained clothing linking Wahome to the alleged offence was recovered.

The court also heard that Wahome had locked herself on the balcony while the deceased was allegedly attempting to gain access.

Forensic evidence showed that blood samples recovered from the scene matched the deceased’s DNA and not that of the accused. Toxicology results revealed traces of narcotics, ethanol, and medication used to treat diabetes and hypertension in Khan’s system. Evidence was also led that Wahome had sustained swelling to her head and was intoxicated at the time of the incident.

Justice Mutende further noted that the investigating officer was unable to state with certainty that Wahome caused Khan’s death.

Having considered the totality of the prosecution’s evidence, the judge held that it was insufficient to sustain the charge and acquitted Wahome.