1. Chrispinus Khaemba Musamali is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are: on the 18th day of January 2024 at Namutokolo village in Kimilili sub-county, within Bungoma county, jointly with another not before the court, murdered Ronald Wasike Nyongesa.
2. The accused person denied the offence, and the prosecution called seven witnesses to prove its case. The accused gave a sworn statement in his defence.
PROSECUTION CASE
3. Linnet Nafula Musamali (PW1) testified that the deceased was her husband and the accused her brother-in-law. On 18.1.2024, she met the accused standing at their gate. He was threatening to kill someone. He told her that he had warned her not to farm at the lower part of the land and that if he saw her do it again, he would beat her and throw her into the river there. The deceased heard the accused, came out of their house, and asked why he was making noise. The accused left, then returned with Justus, his son. Shortly thereafter, she saw the accused jump at her husband, who was walking towards the neighbour’s home. She saw the accused stab her husband in the stomach. Her husband's intestines came out. Justus cut her son Allan's hand when Allan came out to separate the accused and the deceased. The deceased died before they reached the hospital. He was pronounced dead at Kimilili hospital. She told the court that, as a family, they had had disputes and that the accused was quarrelsome. Her husband was given the title deeds, which did not please the accused. Justus was not arrested. The accused took himself to the police station.
4. Allan Simiyu Musamali (Pw2) testified that on 18.1.2024 at about 6.00 pm, he was at home. Earlier, he had gone to the shamba with the deceased, his father, to plant vegetables, and they returned home. Whilst in his house, he heard the accused say, “I have refused this person not to go and dig the lower part of the shamba today, someone will die”. He went out and asked the accused what the problem was, and the accused told him that he had helped him, and now that he was fat, he had started to talk back to him. The accused thereafter left and threatened to return. He returned to his house. Whilst in his house, he heard his mother scream, and on going out, he saw his father at the neighbour’s gate. He saw the accused jump at his father. He went to separate them and saw the accused stab the father in the stomach with a knife. The accused’s son cut him in the hand. His father’s intestines came out, and he died on the way to the hospital. The accused took himself to the police station on the 20th.
5. Robert Kibuyi Nakitari (Pw3) testified that on 18.1.2024 he was in his house when he heard noise outside. Looking out, he saw the accused and the deceased standing and quarrelling. He heard the accused say, “Today I will kill a witch”. Shortly thereafter, he saw the accused stab the deceased with a knife. He raised the alarm. The deceased fell, and his intestines were outside his stomach. The deceased was pronounced dead at the hospital. The accused and the deceased are his neighbours. His family sold to them. The accused and the deceased have had quarrels over witchcraft. The accused used to allege that the deceased is a mchawi, a witch.
6. Doctor Philip Kosgei (Pw4) testified that on 25.1.2024 he performed a post-mortem on the body of the deceased Ronald Wekesa Nyongesa. On examining the body, he noted the following. The main injury was to the abdomen. There was a sutured wound on the left side of the abdomen measuring 2 cms in length. The respiratory, genito-urinary, head, nervous, and spinal systems were intact. The cardiovascular system showed a sutured wound on the left side of the abdomen. The abdominal cavity and spleen were ruptured. The digestive system showed injury to the descending colon. The cause of death was haemorrhagic shock secondary to injury to a vital organ caused by a sharp object. He produced the post-mortem report as exhibit no. 1.
7. Francis Simiyu Tayai, a senior assistant chief, gave the following testimony. On 29.11.2023, he chaired a meeting. During the meeting, it was alleged that Linnet Pw1 practised witchcraft. Linnet denied the allegations. On 18.1.2024, he was informed that the accused had killed his brother. He visited the scene, where the situation was tense, and called for police assistance. He has known the accused for the past ten years.
8. Amos Wanyama Lolo (Pw6) testified that on 25.1.2024 he identified the deceased’s body at Lugulu Mission Hospital. The deceased was his brother, and the accused is his cousin, the son of his uncle.
9. P. C Geoffrey Onyancha No. 119093, the investigating officer, testified as follows: after receiving the report of the incident on 18.1.2024, they proceeded to the scene. They were informed that the deceased had been stabbed by the accused. He was accompanied by his colleagues. They identified the key witnesses, who were family members, and recorded their statements. They were informed that the injured person had died. Later, a post-mortem was conducted on the deceased's body. The accused surrendered at Kimilili police station, where he was arrested and charged in court.
DEFENCE CASE
10. The accused person gave a sworn statement. He testified as follows. This case was planted on him. It is a lie that he stabbed his brother. On 18.1.2024, he was going to work to sell clothes when his brother Ronald Wekesa came and jumped on him, holding his neck. He began strangling him. He could not swallow saliva. They both fell to the ground. They began struggling, and his child, Allan, came with a panga. When Allan Paulo raised the panga to cut him, it went to the side. People found them down there and began screaming. When people came, they found Paulo had cut the father. He did not see where the father was cut.
11. During cross-examination, he told the court that he did not know whether Ronald was alive. He had not seen Ronald. He admitted he had been charged with Ronald's murder. He did not cause Ronald's death. He did not allege that Linnet was a witch and then kill Ronald so that he could inherit Ronald's share. He lives on a shamba his father gave him. It is not true that he did not want Ronald to get his share of the shamba. The witnesses who testified in court lied against him. He has had disputes with the witnesses. He had not told his lawyer about the said dispute.
12. The parties were given time to file written submissions. Only the prosecution filed written submissions. Counsel for the defence did not file any submissions.
13. The prosecution submitted that the deceased’s death was proved; Pw6 identified the deceased’s body, and Pw4 conducted the post-mortem. The cause of death was also established; the deceased succumbed to haemorrhagic shock secondary to vital organ injuries. It was further submitted that the accused was amongst the assailants who unlawfully caused the deceased’s death. Pw1 and Pw2 were eyewitnesses to the incident that led to the deceased’s death. The motive was proved through the evidence of Pw5, who told the court that he received an allegation that Linnet was a witch and that he convened a barasa. On malice aforethought, it was submitted that the injuries inflicted upon the deceased disclosed an intention to cause grievous harm. The accused’s defence was a mere denial, devoid of any serious counter to the cogent evidence adduced by the prosecution.
ANALYSIS AND DETERMINATION
14. The offence of murder is defined under section 203 of the Penal Code as follows; “ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” From this definition, the prosecution is expected to prove beyond a reasonable doubt: the death of the deceased and the cause of that death; that the accused committed an unlawful act or omission that led to the death; and that the accused committed the unlawful act with malice aforethought.
15. The deceased's death is not in dispute. Pw1, Pw2 and Pw6 gave evidence on this, and the post-mortem report produced by Doctor Kosgei confirmed the deceased's death. According to the post-mortem report, the cause of death was haemorrhagic shock secondary to injuries to vital organs.
16. On whether the accused committed the act that caused the deceased’s death, the accused denied causing the injury that led to the deceased’s death. Pw1 and Pw2 testified that they witnessed the accused stab the deceased. The incident occurred at about 6.00 pm, as the deceased tried to reach the neighbour’s place after the accused had threatened him. The parties are related, so identification was by recognition. I saw and heard the two witnesses testify and found them truthful and consistent. Pw3 also witnessed the accused and the deceased quarrelling, and then saw the deceased fall after being stabbed by the accused. The accused’s defence that it was the deceased’s son who caused the injury to his own father is an afterthought. Allan, who was Pw2, was never cross-examined on that allegation. The prosecution adduced direct evidence pointing to the accused as the person who stabbed the deceased. The post-mortem report confirmed that the deceased had been stabbed and died as a result of the injury.
17. The defence raised by the accused, that it was Pw2 who caused the injury by cutting his own father with a panga he had, is an afterthought. Further, the disputes he raised in his defence were never brought up during cross-examination, if indeed they occurred.
18. The next issue is whether the accused committed the act with malice aforethought. The Court of Appeal in Musa Kiplangat Biegon v Republic [2012]eKLR stated the following on malice aforethought.
“ By section 206 of the Penal Code malice aforethought is deemed to be established by evidence proving, among other things, an intention to cause death or to do grievous harm to any person or knowledge that, the act or omission causing death will probably cause death of or grievous harm to some person.
19. The accused stabbed the deceased in the stomach, and his intestines came out. He carried out his earlier threat. The injuries were grievous. Malice aforethought was established because the accused knew his actions would cause grievous harm to the deceased. I find that the prosecution has proved its case beyond a reasonable doubt. The accused, Chrispinus Kahemba Musamali , is guilty of the murder of Ronald Wasike Nyongesa, and he is convicted accordingly as charged.
Dated, signed and delivered virtually this 4 th Day of June 2026.
R.E.OUGO
JUDGE
In the presence of:
Chrispinus Khaemba Nyongesa
M/s Matere -For the State
Mr. Shikhu For the Accused
Wilkister C/A
HCCRC NO. E009 OF 2024-JUDGMENT 2
2. The accused person denied the offence, and the prosecution called seven witnesses to prove its case. The accused gave a sworn statement in his defence.
PROSECUTION CASE
3. Linnet Nafula Musamali (PW1) testified that the deceased was her husband and the accused her brother-in-law. On 18.1.2024, she met the accused standing at their gate. He was threatening to kill someone. He told her that he had warned her not to farm at the lower part of the land and that if he saw her do it again, he would beat her and throw her into the river there. The deceased heard the accused, came out of their house, and asked why he was making noise. The accused left, then returned with Justus, his son. Shortly thereafter, she saw the accused jump at her husband, who was walking towards the neighbour’s home. She saw the accused stab her husband in the stomach. Her husband's intestines came out. Justus cut her son Allan's hand when Allan came out to separate the accused and the deceased. The deceased died before they reached the hospital. He was pronounced dead at Kimilili hospital. She told the court that, as a family, they had had disputes and that the accused was quarrelsome. Her husband was given the title deeds, which did not please the accused. Justus was not arrested. The accused took himself to the police station.
4. Allan Simiyu Musamali (Pw2) testified that on 18.1.2024 at about 6.00 pm, he was at home. Earlier, he had gone to the shamba with the deceased, his father, to plant vegetables, and they returned home. Whilst in his house, he heard the accused say, “I have refused this person not to go and dig the lower part of the shamba today, someone will die”. He went out and asked the accused what the problem was, and the accused told him that he had helped him, and now that he was fat, he had started to talk back to him. The accused thereafter left and threatened to return. He returned to his house. Whilst in his house, he heard his mother scream, and on going out, he saw his father at the neighbour’s gate. He saw the accused jump at his father. He went to separate them and saw the accused stab the father in the stomach with a knife. The accused’s son cut him in the hand. His father’s intestines came out, and he died on the way to the hospital. The accused took himself to the police station on the 20th.
5. Robert Kibuyi Nakitari (Pw3) testified that on 18.1.2024 he was in his house when he heard noise outside. Looking out, he saw the accused and the deceased standing and quarrelling. He heard the accused say, “Today I will kill a witch”. Shortly thereafter, he saw the accused stab the deceased with a knife. He raised the alarm. The deceased fell, and his intestines were outside his stomach. The deceased was pronounced dead at the hospital. The accused and the deceased are his neighbours. His family sold to them. The accused and the deceased have had quarrels over witchcraft. The accused used to allege that the deceased is a mchawi, a witch.
6. Doctor Philip Kosgei (Pw4) testified that on 25.1.2024 he performed a post-mortem on the body of the deceased Ronald Wekesa Nyongesa. On examining the body, he noted the following. The main injury was to the abdomen. There was a sutured wound on the left side of the abdomen measuring 2 cms in length. The respiratory, genito-urinary, head, nervous, and spinal systems were intact. The cardiovascular system showed a sutured wound on the left side of the abdomen. The abdominal cavity and spleen were ruptured. The digestive system showed injury to the descending colon. The cause of death was haemorrhagic shock secondary to injury to a vital organ caused by a sharp object. He produced the post-mortem report as exhibit no. 1.
7. Francis Simiyu Tayai, a senior assistant chief, gave the following testimony. On 29.11.2023, he chaired a meeting. During the meeting, it was alleged that Linnet Pw1 practised witchcraft. Linnet denied the allegations. On 18.1.2024, he was informed that the accused had killed his brother. He visited the scene, where the situation was tense, and called for police assistance. He has known the accused for the past ten years.
8. Amos Wanyama Lolo (Pw6) testified that on 25.1.2024 he identified the deceased’s body at Lugulu Mission Hospital. The deceased was his brother, and the accused is his cousin, the son of his uncle.
9. P. C Geoffrey Onyancha No. 119093, the investigating officer, testified as follows: after receiving the report of the incident on 18.1.2024, they proceeded to the scene. They were informed that the deceased had been stabbed by the accused. He was accompanied by his colleagues. They identified the key witnesses, who were family members, and recorded their statements. They were informed that the injured person had died. Later, a post-mortem was conducted on the deceased's body. The accused surrendered at Kimilili police station, where he was arrested and charged in court.
DEFENCE CASE
10. The accused person gave a sworn statement. He testified as follows. This case was planted on him. It is a lie that he stabbed his brother. On 18.1.2024, he was going to work to sell clothes when his brother Ronald Wekesa came and jumped on him, holding his neck. He began strangling him. He could not swallow saliva. They both fell to the ground. They began struggling, and his child, Allan, came with a panga. When Allan Paulo raised the panga to cut him, it went to the side. People found them down there and began screaming. When people came, they found Paulo had cut the father. He did not see where the father was cut.
11. During cross-examination, he told the court that he did not know whether Ronald was alive. He had not seen Ronald. He admitted he had been charged with Ronald's murder. He did not cause Ronald's death. He did not allege that Linnet was a witch and then kill Ronald so that he could inherit Ronald's share. He lives on a shamba his father gave him. It is not true that he did not want Ronald to get his share of the shamba. The witnesses who testified in court lied against him. He has had disputes with the witnesses. He had not told his lawyer about the said dispute.
12. The parties were given time to file written submissions. Only the prosecution filed written submissions. Counsel for the defence did not file any submissions.
13. The prosecution submitted that the deceased’s death was proved; Pw6 identified the deceased’s body, and Pw4 conducted the post-mortem. The cause of death was also established; the deceased succumbed to haemorrhagic shock secondary to vital organ injuries. It was further submitted that the accused was amongst the assailants who unlawfully caused the deceased’s death. Pw1 and Pw2 were eyewitnesses to the incident that led to the deceased’s death. The motive was proved through the evidence of Pw5, who told the court that he received an allegation that Linnet was a witch and that he convened a barasa. On malice aforethought, it was submitted that the injuries inflicted upon the deceased disclosed an intention to cause grievous harm. The accused’s defence was a mere denial, devoid of any serious counter to the cogent evidence adduced by the prosecution.
ANALYSIS AND DETERMINATION
14. The offence of murder is defined under section 203 of the Penal Code as follows; “ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” From this definition, the prosecution is expected to prove beyond a reasonable doubt: the death of the deceased and the cause of that death; that the accused committed an unlawful act or omission that led to the death; and that the accused committed the unlawful act with malice aforethought.
15. The deceased's death is not in dispute. Pw1, Pw2 and Pw6 gave evidence on this, and the post-mortem report produced by Doctor Kosgei confirmed the deceased's death. According to the post-mortem report, the cause of death was haemorrhagic shock secondary to injuries to vital organs.
16. On whether the accused committed the act that caused the deceased’s death, the accused denied causing the injury that led to the deceased’s death. Pw1 and Pw2 testified that they witnessed the accused stab the deceased. The incident occurred at about 6.00 pm, as the deceased tried to reach the neighbour’s place after the accused had threatened him. The parties are related, so identification was by recognition. I saw and heard the two witnesses testify and found them truthful and consistent. Pw3 also witnessed the accused and the deceased quarrelling, and then saw the deceased fall after being stabbed by the accused. The accused’s defence that it was the deceased’s son who caused the injury to his own father is an afterthought. Allan, who was Pw2, was never cross-examined on that allegation. The prosecution adduced direct evidence pointing to the accused as the person who stabbed the deceased. The post-mortem report confirmed that the deceased had been stabbed and died as a result of the injury.
17. The defence raised by the accused, that it was Pw2 who caused the injury by cutting his own father with a panga he had, is an afterthought. Further, the disputes he raised in his defence were never brought up during cross-examination, if indeed they occurred.
18. The next issue is whether the accused committed the act with malice aforethought. The Court of Appeal in Musa Kiplangat Biegon v Republic [2012]eKLR stated the following on malice aforethought.
“ By section 206 of the Penal Code malice aforethought is deemed to be established by evidence proving, among other things, an intention to cause death or to do grievous harm to any person or knowledge that, the act or omission causing death will probably cause death of or grievous harm to some person.
19. The accused stabbed the deceased in the stomach, and his intestines came out. He carried out his earlier threat. The injuries were grievous. Malice aforethought was established because the accused knew his actions would cause grievous harm to the deceased. I find that the prosecution has proved its case beyond a reasonable doubt. The accused, Chrispinus Kahemba Musamali , is guilty of the murder of Ronald Wasike Nyongesa, and he is convicted accordingly as charged.
Dated, signed and delivered virtually this 4 th Day of June 2026.
R.E.OUGO
JUDGE
In the presence of:
Chrispinus Khaemba Nyongesa
M/s Matere -For the State
Mr. Shikhu For the Accused
Wilkister C/A
HCCRC NO. E009 OF 2024-JUDGMENT 2