1. The Accused herein was charged of murder contrary to Section 203 as read with 204 of the Penal Code Cap 63 Laws of Kenya. The particulars of the offence were that on diverse dates between the 10th day of November 2024 and 12th day of November 2024, at Echibibulu Location, Emurembe Sub Location in Emuhaya Sub County within Vihiga County murdered one Victor Mchine. 2. The accused denied the offence and at his trial was represented by Mr. Didi pursuant to Article 50(2)(h) of the Constitution. Whereas the State case was being prosecuted by Mr. Leina for the Director of Public Prosecution. It is trite that every accused person is presumed innocent until the contrary is proved which is by way of evidential material which meets the criteria of admissibility under the Evidence Act. The Prosecution therefore in discharging that burden summoned the following witnesses in terms of Section 107, 108, 109, 111, & 112 of the Evidence Act. Summary of the Prosecution case 3. In the first instance the brief facts surrounding the death of the deceased as presented before this Court were that on 10th November 2024, the deceased 1 CRIMINAL CASE NO. E018 OF 2024 Victor aged 8 years was attending school at Emurembe primary school he later went missing while he was playing with other children from his neighborhood. His grandmother Martha Khachendi who testified as PW1 got to know of the incident and decided to make a report of a person missing to Emakakha Police Post. The National Police Service in compliance with the statutory and constitutional duties on booking the report on the Occurrence Book namely OB15/11/11/2024 moved into action to trace, search and find the whereabouts of the deceased. It did not take long as at 12th November 2024 a report was received that there was a dead body of a child in a maize plantation near Ikumu river. That is when she started looking for the child and in her efforts he met one Peter Mulima who told her that he saw one male adult namely Charles playing with some children within Emurembe and after a short time he saw him leaving with a child who was following him from behind. According to the investigation diary and the PW1 testimony PW1 apparently knew the said accused including his home and therefore agreed to take PW1 to find out what happened to her grandson. In the further evidence by PW1 on arrival at the home of the accused she found his parents whom they inquired about his whereabouts but they confirmed that he has not been seen since the morning of that day and were not even aware about the missing child. This matter was therefore escalated to the biological father of the deceased who works in Kisumu. This matter by now according to PW1 was a police case to try and trace the missing child. 4. Next witness happened to be Lucky Malenya (PW2) who told the Court that on 10th November 2024 at around 1600hrs he was playing with other neighboring children in their compound who included the deceased Victor. It was PW2’s testimony that it did not take long before a short man of dark complexion who appeared drunk joined them at the field where they were playing football. According to PW2, he played for a while and in a few minutes he withdrew but did give some money to two girls that is Joy and Annah. Apparently from the evidence of PW2, the deceased started crying why he was 2 CRIMINAL CASE NO. E018 OF 2024 being discriminated by the strange man in sharing the money with him like the rest of the other children. It was in that simultaneous chain of events that the witness told the Court of Victor the deceased, went missing as the stranger who had joined them had been seen walking with him towards the river. The search and finding of the deceased was mounted by the villagers together with the police and on 12th November 2024 his lifeless body was found near river Ikumu next to a maize plantation. 5. The next witness to be summoned by the State was Michael Murundo Atanasi (PW3), who was identified as a child aged 14 years as 10th November 2024. This witness told the Court that on this material day he was playing within the estate in company of the following children namely; Brighton Okutiema aged 14 years, Patrick Muyoyo aged 12 years, Joy Ageda aged 4 years, Ann Mukhasia aged 10 years, Victor Omuchine aged 9 years and Felix Ateto aged 7 years. In the course of that physical activity, PW3 told the Court that a stranger joined them whom he gave the physical features as being dark in complexion, short, bearded and was dressed in a blue T-shirt, blue jeans, red slippers and seemed drunk. The story continues in what was observed by PW3 that the stranger started dishing out money to some of the team members like Joy, Ann e.t.c which was in one hundred (100) and fifty (50) denominations. However, PW3 went further to tell this Court that the deceased was angered and started crying for being discriminated by the stranger in sharing out the money to him like the other children. That is when the stranger pulled him aside and started to comfort him in Swahili language as follows“mtoto wangu acha kulia”. As the episode continued one mama Feebe came home from church and asked them to tell the stranger to leave the compound. In the testimony of PW3 the stranger actually left and the deceased ran towards the same direction like the stranger. That was the beginning of the tragic moment of a missing person who was later to be discovered having been killed. 3 CRIMINAL CASE NO. E018 OF 2024 6. Further the narrative in support of the Prosecution case was also boosted by PW4 Feebe Ayienda Migoyo who told the Court that on 10th November 2024 she arrived home from church at around round 16300hrs and on arrival heard the children shouting 'tumeshinda'. That she was attracted by this and went to see what was happening and that is she realized that the neighbors ‘children were playing football among them were her grandchildren Joy, Annah, Michael, Victor and others. She also came to observe that Joy and Annah were holding some money, being one fifty shillings for Joy, and Annah had two of fifty shillings notes. She inquired from the two children who gave them the money and they told her they were given by a man who joined them as they were playing. She also saw him, although it was her first time seeing that stranger within the compound. According to PW4 he was dressed in a blue T-shirt, black jeans trouser and he was of average height and of dark complexion, beard and hair on the head. It was also PW4’s observations that the man appeared drunk. She entered into her house to change and told the children to tell the stranger to move away from her compound and the children complied. The witness further told the Court that following that incident she came to learn of the death of the deceased who had left with the stranger towards the direction of river Ikumu in which investigations were conducted leading to the arrest of the accused as a suspect for the offence of murder of killing the deceased. 7. The Police who recovered the body of the deceased took steps to have the postmortem conducted by one Dr. Dixon Mchana who in his report dated 19th November 2024 opined that the cause of death was Asphyxia secondary to suffocation. The post mortem was admitted in evidence as Exhibit 2 in support of the Prosecution case by PW5. 8. The next witness to give his evidence was Peter Mulima PW6 who stated in Court that on Sunday the 10.11.2024 at around 16:00 hrs he was harvesting sand from Ikumu river within Emurembe together with other people. He saw one male adult namely Charles with a child whose name is Victor Mchine. He 4 CRIMINAL CASE NO. E018 OF 2024 knew the child and his grandmother as they are neighbors within the village. According to the witness the child was following Charles on a small footpath going towards his home. Further that evening the witness told the Court that at around 2030hrs, the grandmother of the child went to his house looking for the child and that is when he told her that he saw the child with Charles the accused person in these proceedings. He was therefore to assist them in looking for the child by leading the grandmother who was accompanied by her husband and son to Charles’ home where they found his parents. They inquired on the whereabouts of the said Charles and the child but they never got any positive response. It was decided that the National Police Service to be informed so that they can mount the search of the missing victim. It was to the best of his recollection that the accused person before Court whom he had known prior to the 10th of November 2024 is the same person who was seen with the child and now facing a criminal charge of murder of the deceased contrary to Section 203 of the Penal Code. 9. The Prosecution went further to call for the evidence of PW7 Chief Inspector Sambu who was tasked with the role of conducting the identification parade in which the accused person was positively identified as the suspect of the murder. In the same parade PW7 told the Court the accused was identified by Michael Murunga Atanasi (PW3), Lucky Malenya (PW2) and Feebe Ayenda (PW4). The witnesses present before this Court attended the identification parade and squarely placed the accused at the scene of the crime. 10. Finally, the Prosecution further adduced the evidence of PC Dancun Wachira (PW8), who told the Court that he was assigned investigating duties of this homicide involving the deceased which was alleged to have occurred at Echibibulu location Emurembe sub location in Emuhaya sub county within Vihiga County. It was PW8 recollection that information had come into the Police Station that the victim’s body had been spotted in a maize plantation near Ikumu river. The investigation was initiated by virtue of the report booked in the Occurrence Book by his grandmother one Martha Khachendi. 5 CRIMINAL CASE NO. E018 OF 2024 According to PW8 with assistance of the members of the public he managed to arrest the suspect and placed him in custody. The body was thereafter collected from the scene and escorted to Vihiga County hospital mortuary and the post mortem examination was performed by Dr. Mchana who formed the opinion that the deceased was unlawfully killed due to Asphyxia secondary to suffocation. That further investigation revealed that the victim had been sexually assaulted before being suffocated. He placed before Court the documentary evidence which persuaded him to recommend to the DPP to invoke Article 157 (6)(7) of the Constitution as read with Section 203 of the Penal Code for a charge of murder to be preferred against the accused person before this Court. 11. It was at the close of the Prosecution case that the accused was placed on his defence by this Court on a ruling delivered on 26th January 2026 by Kamau J as she then was. Thereafter Section 200 of the CPC was complied with in accordance with the ruling pronounced by this Court on 20th April 2026. The Defence Case 12. The accused person in his defence elected to give his own statement in which he denied the offence of ever having coming into contact with the deceased on the material day as alleged by the Prosecution. The accused person in his narrative told the Court that he had never met the deceased as alleged to give him an opportunity to commit the offence as alluded to by the witnesses. 13. The second witness called by the accused person is his sister by the name Racheal Awinja who told the Court that she stays in the same compound with the accused and all along he has been known to be a peaceful and polite man who could not commit such an offence. The witness went on to state that between 10th and 12th November which dates are being alleged the offence was committed the accused was just at home with his child Josephine and 6 CRIMINAL CASE NO. E018 OF 2024 therefore not possible that he could have been in Ikumu river alongside the maize plantation sodomizing the deceased and later suffocating him to death. 14. The defence further adduced the testimony of one Emily Musembi who told the Court that she is a bodaboda operator and also a small scale farmer. She confirmed that the accused is her eldest brother and during those days when it was alleged that he committed the offence of murder he happened to be at home. She therefore denied that the evidence by the Prosecution placing him at the scene of the crime of killing the deceased to be a fabrication. Analysis and Determination 15. The Criminal Trial Courts in Kenya duly constituted under Article 50 (1) of the Constitution have consistently held that the Prosecution must prove its case beyond reasonable doubt on its own legs relying on foundational landmark judgments such as Miller vs Minister of Pensions 1947 2ALL ER 372372 where Lord Denning held as follows: That degree is well settled. If needs not reach certainty, but it must carry a high degree of probability. Proof of beyond a reasonable doubt does not mean proof beyond the shadow of a doubt. The law would prevail to protect the community if it addressed forceful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remedy possibility of his favour which can be dismissed with the sentence of course, it doubt but nothing of that will suffice." See also Woolmington v DPP 1935 AC462. 16. It is to be noted that the law does not contemplate stitching the pieces of evidence in a watertight manner, for the standard of proof in a criminal case is not proof beyond all doubts but only beyond reasonable doubt. In other words, if a clear picture emerges on piecing together all evidence which indicates beyond reasonable doubt of the role played by the accused in the perpetration of the crime, the Court holds the accused person’s criminally liable and punishes them under the provisions of the Penal Code, in 7 CRIMINAL CASE NO. E018 OF 2024 contradistinction to the requirement of proof based on the preponderance of probabilities as in case of civil proceedings. 17. This maxim of beyond reasonable doubt in the realm of criminal law trials is tested within the scope of fair trial rights under Article 50 of the Constitution. The exercise of judicial discretion to rule on a criminal matter as having assailed the threshold of beyond reasonable doubt is not speculative or subjective, it is evidence pieced together from both the Prosecution and the defence. This is what the Court observed in Ramakant Rai v. Madan Rai, (2003) 12 SCC 395 where it stated that: “24. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than the truth. To constitute reasonable doubt, it must be free from an overly emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.”(See Republic v Nyambura & 4 Others [2001] KLR 355, Semfukwe and Others v Republic [1976-1985] EA 536, Guyo For a Duba v Republic Nakuru CACRA No. 89 of 1999 and Gupta v Republic [1983] KLR 381 [1982-1988] 1 KAR 56) 18. In addition, the Court in State of Haryana v. Bhagirath (1999) 5 SCC 96 as follows: “8. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal Court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression ‘reasonable doubt’ is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge. 9. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial 8 CRIMINAL CASE NO. E018 OF 2024 pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows: ‘It is difficult to define the phrase “reasonable doubt”. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case [Commonwealth v. Webster, 5 Cush 295 : 59 Mass 295 (1850)] . He says: “It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.”’ 10. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus: ‘The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt. 19. Thus the requirement of the law in Kenya on threshold issues of prove is navigated by dint of Sections 107, 108, 109, 111 & 112 of the Evidence Act. The underpinning of the standard of proof beyond reasonable doubt is also blended with jurisprudential decisions of the Superior Courts. 20. The present case it is against this background that the following elements for the offence of murder contrary to Section 203 of the Penal Code must be prove beyond reasonable doubt: a. The victim’s death 9 CRIMINAL CASE NO. E018 OF 2024 b. That the accused caused the death of the deceased without lawful justification or excuse c. That at the time of committing the offence the accused did the unlawful act with malice aforethought d. That in the whole it was the accused who killed the deceased. 21. The co-existing circumstances which emerges from the testimonies of the Prosecution witnesses is that substantially the case is based on circumstantial evidence. The Court of Appeal in the case of Abanga Alias Onyango v R Cr. Appeal No.32 of 1990 stated as follows on threshold of circumstantial evidence: “It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three fests. (1) The circumstances from which an inference of guilt is sought to be drawn, must cogently and firmly established. (2) Those circumstances should be of a definite tendency unerringly pointing towards guilty of the accused. (3) The circumstances cumulatively, should form a chain so complete that there is no escape from the conclusion that within or human probability a crime was committed by the accused and none else. 22. The core legal tests for circumstantial evidence: Firmly Established Facts: The primary inculpatory facts from which guilt is inferred must be cogently and solidly proved. Unerring Direction: The proved circumstances must point exclusively and definitively toward the guilt of the accused. Complete Chain: When taken together, the events must form a chain so complete that there is no escape from the conclusion that the accused committed the crime. Exclusion of Innocence: There must be no co-existing circumstances or alternative reasonable hypotheses that weaken the inference of guilt. 10 CRIMINAL CASE NO. E018 OF 2024 Burden of Proof: The strict burden remains on the Prosecution to prove guilt beyond a standard of beyond reasonable doubt and never shifts to the accused 23. This case for the Prosecution brought into perspective the last seen theory which was clearly illuminated in the case of Moses Jua vs. The State (2007) LPELR-CA/IL / 42/ 2006 where the Court, while considering the ‘last seen alive with’, doctrine held: “Even though the onus of proof in criminal cases always rests squarely on the Prosecution at all times, the last seen theory in the Prosecution of murder or culpable homicide cases is that where the deceased was ‘last seen with the accused' there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death' In the absence of any explanation' the Court is justified in drawing the inference that the accused killed the deceased. "In yet another Nigerian case considering the same doctrine' in Stephen Haruna vs, The Attorney General of The Federation (2010) iLAW/CA/A/86/C/2009, the Court opined thus: "The doctrine of last seen” means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such in the absence of any explanation' the Court is justified in drawing the inference that the accused killed the deceased." In yet another Nigerian case considering the same doctrine' in Stephen Haruna vs., The Attorney General of The Federation (2010) iLAW/CA/A/86/C/2009 the Court opined thus: "The doctrine of "last seen" means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no 11 CRIMINAL CASE NO. E018 OF 2024 other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstance. In the absence of a satisfactory explanation' a trial Court and an appellate Court will be justified in drawing the inference that the accused person killed the deceased...” 24. In the present case as far as the death of the deceased is concerned there is no dispute about the same. The defence has not contested the case of the Prosecution that the deceased died on account of Asphyxia secondary to suffocation. The plea by the defence is that of ignorance of the death and also alibi, that the accused was in another village or scene which happens to be his homestead but he does not rebut the element of the death of the deceased. There is also the postmortem report from Dr. Mchana dated 19th November 2024 in which he certified that the deceased is dead and the cause of death was confirmed to be Asphyxia secondary to muffling suffocation. Therefore, the first element for the offence of murder has been proved beyond reasonable doubt. 25. The second element is on causation and the harm suffered by the victim and the society at large bring within the definition of a crime. Thus, the classical definition of crime is any act or omission prohibited by the law that is enacted for the protection of the public and the violation of which is prosecuted by the state in judicial proceedings in its own name. A crime is also defined as an illegal act, omission or event, with consequences that the offender, if detected and a decision is made to prosecute him, is prosecuted by or in the name of the state, and if found guilty is liable to be punished. The definition of crime brings out the public law element of criminal law - crime is a prohibition by the law emanating from the state, violation of the law leads to Prosecution by the state, in proceedings in the state’s name and before a state organ. (See Criminal Law by William Musyoka page 4). 26. On matters of causation, the harm caused by the act or omission or the event must be traceable to the offender, before he can be held criminally liable for it. 12 CRIMINAL CASE NO. E018 OF 2024 Harm usually is an event caused by a plurality of factors. There are several causes of an event. The cause or factor that is dominant in the occurrence of the event must be identified. The position is that the event is caused by one of the factors if it could not happen without that factor. Therefore, it is possible for a wholly innocent person to act under mistake so as to cause harm to another. Causation is particularly important in cases where there is no physical involvement or participation of the accused person, where the accused’s participation is indirect, where another person has intervened, where the victim's own conduct has affected the result and where there is contributory negligence of the victim.” (See Criminal Law by William Musyoka page 46) 27. It is trite law that every homicide in Kenya is considered unlawful caused unless the defence of insanity, self-defense, justification on any of the defences provided for under the province of criminal law. For this it may be appropriate to commence our analysis on the events of 10th November 2024 when the deceased was playing within their compound as alluded to by PW1, PW2, PW3, and PW4 which triggered the criminal process and the accused evidence never controverted or dislodged the chain of events which finally laid a basis of a missing person as reported to the Police Station. The record at the Police Station was maintained in the normal course of its business and investigation. That substantive piece of evidence became the source upon which the deceased body was recovered at the maize plantation which is alongside river Ikumu. It is this same body of the deceased who was seen alive on 10th of November 2024 PW2, PW3 and PW4. The accused person was chased from the playground by PW4 as she entered the compound and found a stranger amongst the children and wondered what role he played in that cohort. It is also on record from the testimonies of PW2 and PW3 that this accused person who was positively identified and the clothes he was wearing on the material day did dish out some money to some of the children who were playing with the deceased. This act of discrimination did not go well down with the deceased. It is not very clear what was the motive of the 13 CRIMINAL CASE NO. E018 OF 2024 accused who made contact with the deceased to cool his emotions down and beseeched him in Swahili and I quote “mtoto wangu acha kulia”. 28. It goes without saying cumulatively when PW4 chased away the Accused from the playground in the presence of the deceased and other children namely Michael Murunga Atanasi (PW3), Lucky Malenya (PW2), Brighton Okutiema, Patrick Muyoyo, Joy Ageda, Ann Mukhasia, Victor Omuchine and Felix Ateto. Apparently he was followed immediately thereafter by the deceased towards the same direction. If one appreciates this evidence by these witnesses, there are no discrepancies as to how the chain of events of this murder were initiated on 10th November 2024 and from that time henceforth the deceased went missing and a search mounted by the Police and members of the public ultimately came into contact with the lifeless body of the deceased on 12th November 2024 at a maize plantation. 29. The aforesaid body of the deceased was positively identified and eventually escorted to Vihiga County Referral Hospital. The postmortem report confirms that the deceased prior to being suffocated was sodomized. What comes into the surface is that the deceased death was unlawfully caused bringing the offence within the scope of Section 203 of the Penal Code. In this respect, one has to view the evidence by the Prosecution witnesses in the light of the behavioral pattern in the rural environment. This is what the Court had in mind in the case of Shivaji Sahebrao Bobade v. State of Maharashtra, (supra) wherein it was held that: “8. Now to the facts. The scene of murder is rural, the witnesses to the case are rustics and so their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in Courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against 14 CRIMINAL CASE NO. E018 OF 2024 the veracity of the core of the testimony Page 34 of 63 provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. The learned Sessions Judge has at some length dissected the evidence, spun out contradictions and unnatural conduct, and tested with precision the time and sequence of the events connected with the crime, all on the touchstone of the medical evidence and the post-mortem certificate. Certainly, the Court which has seen the witnesses depose, has a great advantage over the appellate Judge who reads the recorded evidence in cold print, and regard must be had to this advantage enjoyed by the trial Judge of observing the demeanour and delivery, of reading the straightforwardness and doubtful candour, rustic naiveté and clever equivocation, manipulated conformity and ingenious inveracity of persons who swear to the facts before him. Nevertheless, where a Judge draws his conclusions not so much on the directness or dubiety of the witness while on oath but upon general probabilities and on expert evidence, the Court of appeal is in as good a position to assess or arrive at legitimate conclusions as the Court of first instance. Nor can we make a fetish of the trial Judge's psychic insig
[...truncated]
[...truncated]