1. The Accused, Alex Nyamboka Ongaki, is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on 24th July 2025 at Chepilat area in Borabu Sub-County within Nyamira County, he murdered Princess Hellen, a minor aged about one year. He pleaded not guilty and the matter proceeded to full trial. The Prosecution called five witnesses and produced documentary and real exhibits in support of its case, while the Accused gave sworn evidence in his defence.
2. PW1, the mother of the deceased and wife to the Accused, testified that on the material day the Accused returned home at about 10.00 a.m., collected their children from the neighbour’s home, and later sent her away to charge a phone battery. Upon her return, she found the deceased lying on a bed in distress and unable to breathe. The child was rushed to Summit Hospital and later referred to Kaplong Hospital, where she died. PW1 suspected that the Accused may have used a hammer, which she had seen with him earlier, to inflict injury on the child. However, she was categorical in cross-examination that she did not witness any assault. She further admitted that her police statement contained several inaccuracies and expressly disowned substantial portions of it. She also alluded to information allegedly given to her by another child, Mokaya, to the effect that the Accused struck the deceased with a hammer, but that child was not called as a witness.
3. PW2, Abigael Kwamboka Omori, a neighbour, testified that PW1 had taken the children to her house on the morning of 24th July 2025 and that shortly thereafter the Accused collected them. She confirmed that the children were not crying at that time. About thirty minutes later, PW1 informed her that the deceased appeared sick. PW2 observed that the child looked breathless and advised that she be taken to hospital. She did not observe any injuries on the child and did not witness any assault.
4. PW3, Dr. Morebu Peter Momanyi, conducted the post-mortem examination on 04th August 2025. He testified that the deceased had bruises on the front and back of the head, multiple skull fractures, and subdural hematoma. He formed the opinion that the cause of death was severe head injury due to blunt force trauma. The post-mortem report was produced as Prosecution Exhibit 1 (P Exhibit 1).
5. PW4, CIP Jackson Kanai, the investigating officer, testified that he received information of the incident and visited the scene and the hospital. He stated that he was informed that the Accused had assaulted the child with a hammer. He recovered a hammer from the Accused’s house, which was produced as Prosecution Exhibit 2 (P Exhibit 2). He also referred to photographs of the deceased, though he was not the maker. Under cross-examination, he conceded that he did not record the statements himself and that the mother’s statement did not state that she witnessed the assault.
6. PW5, CIP Leyrice Ligaka Mukutsi, a scenes of crime officer, produced photographs of the deceased and a certificate. The photographs were produced as Prosecution Exhibit 3 (a)–(f) and the certificate as Prosecution Exhibit 4. He confirmed that he did not take the photographs himself but merely processed and certified them.
7. The Accused, Alex Nyamboka Ongaki, gave sworn testimony. He stated that on the material day he left for work but returned after his motor vehicle developed mechanical problems. He found his child near the neighbour’s home crying, took her home, and handed her to PW1 for breastfeeding before leaving again. Shortly thereafter, he was informed that the child was unwell, and together with PW1 and PW2, they took the child to hospital, where she died.
8. He denied assaulting the child, denied that any hammer was recovered from his house, and maintained that he did not know how the child sustained the fatal injuries.
9. I have considered the evidence on record. The offence of murder requires proof of the fact and cause of death, that the death resulted from an unlawful act or omission, that the act was committed by the Accused (actus reus), and that the Accused acted with malice aforethought.
10. There is no dispute as to the fact and cause of death. The evidence of PW3, supported by the post-mortem report (P Exhibit 1), conclusively established that the deceased died from severe head injuries caused by blunt force trauma.
11. The central issue is whether the Prosecution has proved that it was the Accused who inflicted those injuries. PW1, the mother of the deceased and the only adult person present with the child at the material time, testified that upon her return to the house she found the deceased lying on the bed in distress. She expressly stated in cross-examination that she did not witness the Accused assault the child. PW1 further referred to information allegedly given to her by another child, Mokaya, to the effect that the Accused had struck the deceased with a hammer. However, that child was not called as a witness. The alleged statement was therefore not subjected to cross-examination and remains hearsay, devoid of probative value. PW2, the neighbour, confirmed that the children were normal when they left her care and that she did not witness any assault or observe any injuries on the deceased. Her evidence does not implicate the Accused in the infliction of the fatal injuries. The medical evidence tendered by PW3 established that the deceased died from severe head injuries caused by blunt force trauma. While this confirms that the death was not natural, it does not identify the person who inflicted those injuries.
12. The investigating officer’s evidence (PW4) was largely based on information received from others and did not provide direct linkage between the Accused and the act causing death. Notably, he conceded that the mother’s recorded statement did not state that she witnessed any assault.
13. It is only upon consideration of the foregoing evidence that the character of the Prosecution case becomes apparent: it is entirely circumstantial. The law governing such evidence is well settled. The circumstances relied upon must be firmly established and must form a complete and unbroken chain pointing irresistibly to the Accused, to the exclusion of any other reasonable hypothesis.
14. In the present case, that evidential chain is incomplete. There is no direct or reliable circumstantial evidence linking the Accused to the act that caused the death of the deceased.
15. It is trite, as held by the Court of Appeal in Sawe v Republic [2003] KECA 182 (KLR), that suspicion, however strong, cannot form the basis of a conviction. The circumstances of this case may raise suspicion against the Accused, particularly as he was among the last persons seen with the deceased. However, suspicion alone, even if grave, cannot meet the threshold of proof beyond reasonable doubt.
16. The possibility that the injuries may have been sustained in circumstances not fully established by the Prosecution cannot be excluded. The law demands proof, not conjecture.
17. The burden of proof rests entirely on the Prosecution, as stated in Woolmington v DPP [1935] AC 462, and that burden has not been discharged. In the absence of proof of the actus reus, the issue of malice aforethought does not arise.
18. Having so found, this Court concludes that the Prosecution has not proved beyond reasonable doubt that it was the Accused who committed the unlawful act that led to the death of the deceased. The evidential gaps identified are not minor or peripheral as they go to the very root of the charge.
19. In criminal law, where doubt exists, that doubt must be resolved in favour of the Accused. The standard of proof is not one of probability but of certainty beyond reasonable doubt. The present case falls short of that standard.
20. Consequently, and for the reasons set out above, the Court finds that the charge of murder contrary to section 203 as read with section 204 of the Penal Code has not been proved to the required standard.
21. Consequently, this court makes the following orders:
1) The Accused, Alex Nyamboka Ongaki, is hereby found not guilty of the offence of murder.
2) The Accused is accordingly acquitted under section 322(1) of the Criminal Procedure Code.
3) The Accused shall be set at liberty forthwith unless otherwise lawfully held.
2. PW1, the mother of the deceased and wife to the Accused, testified that on the material day the Accused returned home at about 10.00 a.m., collected their children from the neighbour’s home, and later sent her away to charge a phone battery. Upon her return, she found the deceased lying on a bed in distress and unable to breathe. The child was rushed to Summit Hospital and later referred to Kaplong Hospital, where she died. PW1 suspected that the Accused may have used a hammer, which she had seen with him earlier, to inflict injury on the child. However, she was categorical in cross-examination that she did not witness any assault. She further admitted that her police statement contained several inaccuracies and expressly disowned substantial portions of it. She also alluded to information allegedly given to her by another child, Mokaya, to the effect that the Accused struck the deceased with a hammer, but that child was not called as a witness.
3. PW2, Abigael Kwamboka Omori, a neighbour, testified that PW1 had taken the children to her house on the morning of 24th July 2025 and that shortly thereafter the Accused collected them. She confirmed that the children were not crying at that time. About thirty minutes later, PW1 informed her that the deceased appeared sick. PW2 observed that the child looked breathless and advised that she be taken to hospital. She did not observe any injuries on the child and did not witness any assault.
4. PW3, Dr. Morebu Peter Momanyi, conducted the post-mortem examination on 04th August 2025. He testified that the deceased had bruises on the front and back of the head, multiple skull fractures, and subdural hematoma. He formed the opinion that the cause of death was severe head injury due to blunt force trauma. The post-mortem report was produced as Prosecution Exhibit 1 (P Exhibit 1).
5. PW4, CIP Jackson Kanai, the investigating officer, testified that he received information of the incident and visited the scene and the hospital. He stated that he was informed that the Accused had assaulted the child with a hammer. He recovered a hammer from the Accused’s house, which was produced as Prosecution Exhibit 2 (P Exhibit 2). He also referred to photographs of the deceased, though he was not the maker. Under cross-examination, he conceded that he did not record the statements himself and that the mother’s statement did not state that she witnessed the assault.
6. PW5, CIP Leyrice Ligaka Mukutsi, a scenes of crime officer, produced photographs of the deceased and a certificate. The photographs were produced as Prosecution Exhibit 3 (a)–(f) and the certificate as Prosecution Exhibit 4. He confirmed that he did not take the photographs himself but merely processed and certified them.
7. The Accused, Alex Nyamboka Ongaki, gave sworn testimony. He stated that on the material day he left for work but returned after his motor vehicle developed mechanical problems. He found his child near the neighbour’s home crying, took her home, and handed her to PW1 for breastfeeding before leaving again. Shortly thereafter, he was informed that the child was unwell, and together with PW1 and PW2, they took the child to hospital, where she died.
8. He denied assaulting the child, denied that any hammer was recovered from his house, and maintained that he did not know how the child sustained the fatal injuries.
9. I have considered the evidence on record. The offence of murder requires proof of the fact and cause of death, that the death resulted from an unlawful act or omission, that the act was committed by the Accused (actus reus), and that the Accused acted with malice aforethought.
10. There is no dispute as to the fact and cause of death. The evidence of PW3, supported by the post-mortem report (P Exhibit 1), conclusively established that the deceased died from severe head injuries caused by blunt force trauma.
11. The central issue is whether the Prosecution has proved that it was the Accused who inflicted those injuries. PW1, the mother of the deceased and the only adult person present with the child at the material time, testified that upon her return to the house she found the deceased lying on the bed in distress. She expressly stated in cross-examination that she did not witness the Accused assault the child. PW1 further referred to information allegedly given to her by another child, Mokaya, to the effect that the Accused had struck the deceased with a hammer. However, that child was not called as a witness. The alleged statement was therefore not subjected to cross-examination and remains hearsay, devoid of probative value. PW2, the neighbour, confirmed that the children were normal when they left her care and that she did not witness any assault or observe any injuries on the deceased. Her evidence does not implicate the Accused in the infliction of the fatal injuries. The medical evidence tendered by PW3 established that the deceased died from severe head injuries caused by blunt force trauma. While this confirms that the death was not natural, it does not identify the person who inflicted those injuries.
12. The investigating officer’s evidence (PW4) was largely based on information received from others and did not provide direct linkage between the Accused and the act causing death. Notably, he conceded that the mother’s recorded statement did not state that she witnessed any assault.
13. It is only upon consideration of the foregoing evidence that the character of the Prosecution case becomes apparent: it is entirely circumstantial. The law governing such evidence is well settled. The circumstances relied upon must be firmly established and must form a complete and unbroken chain pointing irresistibly to the Accused, to the exclusion of any other reasonable hypothesis.
14. In the present case, that evidential chain is incomplete. There is no direct or reliable circumstantial evidence linking the Accused to the act that caused the death of the deceased.
15. It is trite, as held by the Court of Appeal in Sawe v Republic [2003] KECA 182 (KLR), that suspicion, however strong, cannot form the basis of a conviction. The circumstances of this case may raise suspicion against the Accused, particularly as he was among the last persons seen with the deceased. However, suspicion alone, even if grave, cannot meet the threshold of proof beyond reasonable doubt.
16. The possibility that the injuries may have been sustained in circumstances not fully established by the Prosecution cannot be excluded. The law demands proof, not conjecture.
17. The burden of proof rests entirely on the Prosecution, as stated in Woolmington v DPP [1935] AC 462, and that burden has not been discharged. In the absence of proof of the actus reus, the issue of malice aforethought does not arise.
18. Having so found, this Court concludes that the Prosecution has not proved beyond reasonable doubt that it was the Accused who committed the unlawful act that led to the death of the deceased. The evidential gaps identified are not minor or peripheral as they go to the very root of the charge.
19. In criminal law, where doubt exists, that doubt must be resolved in favour of the Accused. The standard of proof is not one of probability but of certainty beyond reasonable doubt. The present case falls short of that standard.
20. Consequently, and for the reasons set out above, the Court finds that the charge of murder contrary to section 203 as read with section 204 of the Penal Code has not been proved to the required standard.
21. Consequently, this court makes the following orders:
1) The Accused, Alex Nyamboka Ongaki, is hereby found not guilty of the offence of murder.
2) The Accused is accordingly acquitted under section 322(1) of the Criminal Procedure Code.
3) The Accused shall be set at liberty forthwith unless otherwise lawfully held.