REPUBLIC OF KENYA
HIGH COURT OF KENYA AT BUNGOMA
HCCR NO. E018 OF 2024
REPUBLIC…………..………………………………..….PROSECUTION
VERSUS
KEVIN WANJALA WAMALWA……………….………….…ACCUSED
JUDGMENT
Kevin Wanjala Wamalwa 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 night between the 6th and 7th day of March 2024, at Musia village in Bumula Sub-County within Bungoma County, murdered Dismas Simiyu Wafula.
The prosecution called seven (7) witnesses to prove their case.
PROSECUTION CASE
Wycliff Tabu Wafula ,Pw1, testified that on the 7.3. 2024, at about 1.38 a m, Kevin, the accused, knocked on the door and told him that his father, Dismas, was not responding. The accused is his brother's son. His brother is called Enos. He went to the deceased’s house. He found Kevin, his father Enos and the deceased who was lying facing up. He saw scratch marks on the neck of the deceased. The deceased was not responding. Neighbours came to the home when they heard him crying. The accused and the deceased were staying in the same house. Each had their own room. The neighbours took the accused to Nasianda police post. The accused and deceased had disagreed 3 months before the deceased’s death. Dismas has asked the accused to move out. They had lived together for five (5) years.
William Wafula Wanyonyi , Pw2, recalled that on 6 th March 2024 at 8:30 pm, he was at Harriet’s place drinking alcohol. He was with the accused and the deceased. They disagreed outside. When Kevin entered the house, he appeared annoyed. He heard Kevin say, “Leo untaniona”(“ Today you will see me) . " Harriet asked them to leave. At 1:30 am, Kevin’s father, Enos, went to his place and informed him that Dismas had died. He went to Dismas’s home and found him dead, lying face upwards on the floor. He noticed injuries, scratches on his neck. Kevin was present; he had injuries to his eye and blood on his shirt. When asked what had happened, he said the door had hit him. The house had no door. There was a time Kevin and Dismas disagreed over food. He never heard any commotion that night.
Harriet Osundwa Wakala Mwabia, Pw3, testified that on 6 March 6.3.2024, she was at her residence selling alcohol. The accused, the deceased, and others were present. When Dismas and Kevin arrived, they appeared intoxicated. They requested alcohol, but she told them it was finished. The deceased and the accused began arguing. She asked Kevin to leave. She heard the accused say to the deceased, “ leo utaniona, " and the deceased responded, “ hata ukini piga hakuna kitu uta fanya. " At 2:00 a.m., she was awakened by Geoffrey and Isaac and asked what had happened at her premises. She was informed that the deceased had died. She recalled that five years earlier, Kevin had broken her windows, but she did not pursue the matter. She has no grudge against him. She also told the court that the accused and the deceased often quarrelled and that the two did not have a peaceful relationship.
Doctor Elly Kosgei, PW4, testified that he performed a post-mortem on the deceased on 11th March at Bungoma Referral Hospital. The body was that of Dismas Simiyu. On external examination, there were strangulation marks on the anterior neck, most likely caused by strangulation by hand. He also observed bruises on the face, and the nails were bluish due to lack of oxygen. There was a fracture in the neck bone. On internal examination, a fracture was noted on the hyoid bone. He formed the opinion that the cause of death was severe asphyxia from strangulation.
Geoffrey Wafula Malaba, Pw5, recalled that on 6 March 2024, he was at a drinking joint with the deceased and the accused. Dismas offered to go and get cigarettes and was to be lent one. Upon returning, Kevin asked Dismas for a cigarette, and Dismas promised to give him one after he had lit his own. Kevin then told Dismas, “You have denied me a cigarette, you will see”. Dismas replied that the cigarettes were not his. Dismas called his brother William and requested that they go home. He heard Kevin tell the deceased that he would pass through his place. At 1.00 am, he heard people crying. He went to Dismas’s house and found he had died. The accused was standing outside Dismas’s house. He asked Kevin about his swollen head and mouth. Kevin told him he had hit himself on the door. There was no door in the house. Kevin informed them to take him to the police station.
Isaac Okumu Shikuku, Pw6, recalled that on 6.3.2024, he was at Harriet’s place from 6.00 pm to 7.00 pm. The accused and the deceased were also there. On the night of 7 th March 2024, he heard screams, and when he went to the neighbour's place, he found Kevin crying there. Dismas was in his room, dead. Kevin offered to be taken to the police if they thought he had caused Dismas's death.
No. 237384 P.C. Evans Chesebe, Pw7, told the court that on the 7.3.2024, he was assigned a murder case to investigate. He found the suspect at Nasianda police post, and from there he went to the scene of the crime. He found a mud house. It had no door. They used a mabati as a door. The house had two rooms. He saw the body of the deceased lying on the floor. His neck had marks. They took the body to Bungoma. He picked the accused thereafter. He noticed a scratch mark on his face. He recorded statements from witnesses. He was informed that the accused and deceased had quarrelled over a cigarette and also that the accused had told the deceased, “Today you will see me.” The witnesses stated that the accused had been away from that house for about a week. The accused could not explain to him what had happened and why he had returned that night. The bruise the accused had was not a big one, nor was he treated for it.
DEFENCE CASE
The accused gave a sworn statement. His defence is as follows: on the night of 6th March 2024, he woke up and went to work at the farm. He returned home, prepared lunch, and then went to look for Kumbe Kumbe . He did this until 3:00 pm. At 3:00 p.m., he went to Harriet’s place, and afterwards, he went to sell his Kumbe Kumbe . He was not at Harriet’s place at 8:00 pm. He did not see his father that day. He went to the maize mill. He returned home and watched football at Siyanda from 5:00 pm until 10:00 pm. He then went back home. The door was not in its usual place. He entered the house and lit a matchstick. He saw his father lying there with saliva coming out of his mouth. He called out, but there was no response. He then went to Baba Enosh and Wickliff, and they accompanied him back to the house. They started crying. They held a meeting and decided he should go to the police station to give his statement. He does not know what happened to his uncle. They have lived together since 2011.
SUBMISSIONS
The prosecution and defence filed written submissions at the close of the defence. The prosecution submitted as follows: the cause and death of the deceased were uncontroverted. On whether the accused caused the unlawful death of the deceased, it was submitted that Pw2 and Pw3 heard the accused threaten the deceased using the word “ leo utiniona”. The doctor’s evidence was that the deceased’s external appearance had strangulation marks on the neck and bruises on the face and wrist, and that the deceased succumbed to asphyxia from strangulation. The investigating officer noticed that the accused had an injury on his face, and upon interrogating him on the same, the accused could not explain how he sustained the facial wounds. It was submitted that the injuries were defensive wounds he sustained, which is sufficient proof of a struggle between the deceased and the accused. On cogent circumstantial evidence, it was submitted that there is adequate circumstantial evidence connecting the accused to the murder of the deceased without leaving any room for another suspect. The accused and deceased were the ones occupying the house, and the accused had threatened the deceased, only for the very accused to find him dead. The accused, too, had injuries he could explain. Reliance was placed in the case of Abanga alias Onyango vs. Republic, CRA No. 32 of 1990, where the Court of Appeal set out the principles to be applied in determining whether the circumstantial evidence adduced was sufficient to sustain a conviction. On malice aforethought, it was submitted that the deceased succumbed to severe asphyxia from strangulation; this is sufficient to prove malice aforethought. On the accused’s defence, it was submitted that the accused admitted being in the house of Pw2 with the deceased and, upon discovering the deceased dead in the house he was sharing with the deceased, he was. His defence weighed against the overwhelming evidence of all the prosecution witnesses remains a mere denial and ought to be treated as such.
The defence submissions were as follows: on the death of the deceased, it was submitted that there is no dispute that there was the death of Dismas Simiyu Wafula . On whether the death was caused by an unlawful act or omission of the accused person. It was submitted that none of the witnesses testified on what happened to the deceased, and none of them saw the accused commit the heinous act. The witnesses saw him either before or after the death of the deceased. The last person seen with the deceased was Pw2, as stated by Pw5. The witnesses' evidence did not corroborate each other on what they heard the accused say. Pw2 heard the accused say “ nitakuja hapo ” and “ leo utaniona ”, Pw3 heard the accused say “ leo utaniona ”, and the deceased answered , “ hakuna kitu wewe utafanya ”, Pw4 heard “ unanninyima siagara utaona ” and “ endeni nitapitia hapo .” On malice aforethought, it was submitted that the accused person had no intention of harming his uncle. The statements ‘Leo Utaniona or Utaona’ do not indicate anger and have fallen short of demonstrating an intention to kill or do grievous harm. The State failed to establish any ill motive or intention on the part of the accused, as threats or angry words must be supported by conduct of demonstrating intent. The prosecution has failed to prove that the accused possessed the mens rea to kill anyone. .It was further submitted that the investigating officer failed to do countless processes that could have given clarity as to the death of the deceased. The post-mortem suggested the deceased died from manual strangulation with neck marks present. No DNA samples were taken and the accused though being in custody all through was not tested for the deceased’s DNA under his nails. The investigating officer also stated that the accused had a cut, not a scratch but there was no medical record or photo evidence of the injury or blood sustained shirt. The investigating officer’s failure to document or collect forensic evidence weakens the prosecution's case. The investigating officer did not rule out other suspects as it was stated that the house had an improperly installed door that could have given access to anyone. Relying on principles stated in the case of Ahamed Abolfathi Mohammed & another vs Republic [2018] KECA eKLR on circumstantial evidence the defence submitted that the chain of events is neither complete nor exclusive to the accused guilt as no witness placed the accused at the scene of crime neither was he the last person to be seen with the deceased, further the fact that the accused lived or visited the shared home doe not in itself imply ill motive, guilt of raise suspicion. In light of the insurmountable gaps and the unresolved question of causation and intent , the death of the decease remains a mystery of the night and the accused should be acquitted. The prosecution has failed to discharge their burden of proving the case beyond a reasonable doubt ( see Republic vs Patrick Ong’au Okioma [2021] eKLR)
ANALYSIS AND DETERMINATION.
In a case of murder under section 203 of the Penal Code, the prosecution has the task of proving the following: the death and cause of death of the deceased; whether death was caused by an unlawful act or omission of the accused and whether there was malice aforethought. For the prosecution to sustain a conviction, it has the duty to prove its case beyond a reasonable doubt.
On the death and cause of death, Pw1, Pw2, and Pw5 testified that on the night of 7.3.2024, they found the deceased dead in his house. Pw4, Doctor Elly, who performed the post-mortem, testified that the cause of death was severe asphyxia due to strangulation. The death and the cause of death were proven.
The next issue is whether the accused caused the unlawful death of the deceased. There is no dispute that none of the witnesses called saw the accused strangle the deceased. As submitted, the prosecution's case is based on circumstantial evidence. The principles for reliance on circumstantial evidence to sustain a conviction in any criminal trial were stated by the Court of Appeal in the case of Abanga Alias Onyango vs. Republic, Cr Appeal No 32 of 1990 (UR) , as follows:
“ It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:
The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
The circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else.”
The Court of Appeal further amplified the above position in the case of Sawe vs. Republic [2003] KLR 364 as follows:
“ In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remains with the prosecution. It is a burden, which never shifts to the party accused”.
The prosecution has submitted that the accused threatened to harm the deceased using the word “ uta niona” and further that according to the doctor, the deceased's external appearance bore strangulation marks on the neck and bruises on the face and wrist joint, and that the deceased succumbed to severe asphyxia from strangulation. The defence has pointed out the differences in the evidence of Pw2, Pw3, and Pw43 regarding what the accused said before he left. Although the accused states that he was at PW3’s place at 3.00 pm and that he left. I am not persuaded that he was there at 3.00 pm. Pw2, Pw3, Pw4 and Pw5 testified that he was at Pw3’s in the evening between 7 pm and 8.30 pm. Pw2 heard the accused tell the deceased “ leo untaniona ”. Pw3 heard him tell the deceased” leo utaniona ” , Pw5 heard the accused tell the deceased, “unaninyima sigara utaona ”, “ you have denied me a cigarette, you will see me ”. These words were uttered before the accused left Pw3’s place. According to Pw5, the deceased called on Pw2, asking them to leave. The two left Pw3’s place. None of these witnesses saw the accused strangle the deceased. The accused spoke threatening words to the deceased in the presence. This evidence needed to be corroborated with other evidence to demonstrate that it is the accused who strangled the deceased. According to the investigating officer, when they visited the house where the deceased lived, they found him lying face upward. The deceased was already dead. He observed that the deceased had marks around his neck, but the other parts of his body did not have marks. Pw4, who did the post-mortem stated that the deceased had a strangulation mark on the anterior neck, most likely hand strangulation, bruises on the left wrist joint and bruises on the face. The investigation officer also stated that, “ the accused had something like a scratch on the face , it was like a bruise” . During cross-examination, he told the court that there was no forensic analysis of the said marks and that there was a defence wound on the deceased. If the accused had a scratch / bruise on his face as was stated, it was upon the investigating officer to request a DNA sample from the deceased and to have it analysed with the scratch/ bruise the accused had on his face. This was necessary to conclusively show that it is the accused who strangled the deceased. Threats alone, without further cogent evidence to link the accused to the incident, are not sufficient to make a finding that all evidence points unerringly to the guilt of the accused person. While threats can be a part of the evidence to be considered, in a case where is a history of misunderstanding as was suggested to by some of the witnesses and a subsequent death, a conviction for murder requires proof beyond reasonable doubt that the accused caused the death of the deceased. The Supreme Court of Uganda in Kahunde Semakula vs Uganda CR Appeal No.11 of 1994 observed as follows;
"Another requirement concerning circumstantial it must evidence is that is to be narrowly examined, because evidence of this kind may fabricated to cast suspicion on another. It is therefore from necessary before drawing the inference of the accused's guilt circumstantial evidence to be sure that there are no other co inference existing circumstances which would weaken or destroy the inference” (emphasis mine)
The accused denied strangling the deceased. There was also evidence indicating that the house shared by the accused and the deceased had no door. Could it be that someone else was there before the accused arrived home? The prosecution did not present evidence to exclude this possibility. The Court of Appeal in the case of Mary Wanjiku Gichira v Republic (Criminal Appeal No 17 of 1998) (unreported) held that suspicion, however strong, cannot serve as a basis for inferring guilt, which must be established by evidence. The accused was regarded as a suspect. Mere suspicion is not sufficient to establish guilt. The prosecution has failed to prove beyond a reasonable doubt that the accused committed the alleged murder. Therefore, I find that the accused, Kevin Wanjala Wamalwa, is not guilty of the charge of murder; he is acquitted under section 215 of the CPC and is free to go unless lawfully detained.
Dated, signed and delivered at Bungoma this 11 th day of July 2025
R.E.OUGO
JUDGE
In the presence of:
Kevin Wanjala Wamalwa/ Accused
Miss Matere State Counsel
M/s Kimora For the Accused
Wilkister - C/A
HIGH COURT OF KENYA AT BUNGOMA
HCCR NO. E018 OF 2024
REPUBLIC…………..………………………………..….PROSECUTION
VERSUS
KEVIN WANJALA WAMALWA……………….………….…ACCUSED
JUDGMENT
Kevin Wanjala Wamalwa 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 night between the 6th and 7th day of March 2024, at Musia village in Bumula Sub-County within Bungoma County, murdered Dismas Simiyu Wafula.
The prosecution called seven (7) witnesses to prove their case.
PROSECUTION CASE
Wycliff Tabu Wafula ,Pw1, testified that on the 7.3. 2024, at about 1.38 a m, Kevin, the accused, knocked on the door and told him that his father, Dismas, was not responding. The accused is his brother's son. His brother is called Enos. He went to the deceased’s house. He found Kevin, his father Enos and the deceased who was lying facing up. He saw scratch marks on the neck of the deceased. The deceased was not responding. Neighbours came to the home when they heard him crying. The accused and the deceased were staying in the same house. Each had their own room. The neighbours took the accused to Nasianda police post. The accused and deceased had disagreed 3 months before the deceased’s death. Dismas has asked the accused to move out. They had lived together for five (5) years.
William Wafula Wanyonyi , Pw2, recalled that on 6 th March 2024 at 8:30 pm, he was at Harriet’s place drinking alcohol. He was with the accused and the deceased. They disagreed outside. When Kevin entered the house, he appeared annoyed. He heard Kevin say, “Leo untaniona”(“ Today you will see me) . " Harriet asked them to leave. At 1:30 am, Kevin’s father, Enos, went to his place and informed him that Dismas had died. He went to Dismas’s home and found him dead, lying face upwards on the floor. He noticed injuries, scratches on his neck. Kevin was present; he had injuries to his eye and blood on his shirt. When asked what had happened, he said the door had hit him. The house had no door. There was a time Kevin and Dismas disagreed over food. He never heard any commotion that night.
Harriet Osundwa Wakala Mwabia, Pw3, testified that on 6 March 6.3.2024, she was at her residence selling alcohol. The accused, the deceased, and others were present. When Dismas and Kevin arrived, they appeared intoxicated. They requested alcohol, but she told them it was finished. The deceased and the accused began arguing. She asked Kevin to leave. She heard the accused say to the deceased, “ leo utaniona, " and the deceased responded, “ hata ukini piga hakuna kitu uta fanya. " At 2:00 a.m., she was awakened by Geoffrey and Isaac and asked what had happened at her premises. She was informed that the deceased had died. She recalled that five years earlier, Kevin had broken her windows, but she did not pursue the matter. She has no grudge against him. She also told the court that the accused and the deceased often quarrelled and that the two did not have a peaceful relationship.
Doctor Elly Kosgei, PW4, testified that he performed a post-mortem on the deceased on 11th March at Bungoma Referral Hospital. The body was that of Dismas Simiyu. On external examination, there were strangulation marks on the anterior neck, most likely caused by strangulation by hand. He also observed bruises on the face, and the nails were bluish due to lack of oxygen. There was a fracture in the neck bone. On internal examination, a fracture was noted on the hyoid bone. He formed the opinion that the cause of death was severe asphyxia from strangulation.
Geoffrey Wafula Malaba, Pw5, recalled that on 6 March 2024, he was at a drinking joint with the deceased and the accused. Dismas offered to go and get cigarettes and was to be lent one. Upon returning, Kevin asked Dismas for a cigarette, and Dismas promised to give him one after he had lit his own. Kevin then told Dismas, “You have denied me a cigarette, you will see”. Dismas replied that the cigarettes were not his. Dismas called his brother William and requested that they go home. He heard Kevin tell the deceased that he would pass through his place. At 1.00 am, he heard people crying. He went to Dismas’s house and found he had died. The accused was standing outside Dismas’s house. He asked Kevin about his swollen head and mouth. Kevin told him he had hit himself on the door. There was no door in the house. Kevin informed them to take him to the police station.
Isaac Okumu Shikuku, Pw6, recalled that on 6.3.2024, he was at Harriet’s place from 6.00 pm to 7.00 pm. The accused and the deceased were also there. On the night of 7 th March 2024, he heard screams, and when he went to the neighbour's place, he found Kevin crying there. Dismas was in his room, dead. Kevin offered to be taken to the police if they thought he had caused Dismas's death.
No. 237384 P.C. Evans Chesebe, Pw7, told the court that on the 7.3.2024, he was assigned a murder case to investigate. He found the suspect at Nasianda police post, and from there he went to the scene of the crime. He found a mud house. It had no door. They used a mabati as a door. The house had two rooms. He saw the body of the deceased lying on the floor. His neck had marks. They took the body to Bungoma. He picked the accused thereafter. He noticed a scratch mark on his face. He recorded statements from witnesses. He was informed that the accused and deceased had quarrelled over a cigarette and also that the accused had told the deceased, “Today you will see me.” The witnesses stated that the accused had been away from that house for about a week. The accused could not explain to him what had happened and why he had returned that night. The bruise the accused had was not a big one, nor was he treated for it.
DEFENCE CASE
The accused gave a sworn statement. His defence is as follows: on the night of 6th March 2024, he woke up and went to work at the farm. He returned home, prepared lunch, and then went to look for Kumbe Kumbe . He did this until 3:00 pm. At 3:00 p.m., he went to Harriet’s place, and afterwards, he went to sell his Kumbe Kumbe . He was not at Harriet’s place at 8:00 pm. He did not see his father that day. He went to the maize mill. He returned home and watched football at Siyanda from 5:00 pm until 10:00 pm. He then went back home. The door was not in its usual place. He entered the house and lit a matchstick. He saw his father lying there with saliva coming out of his mouth. He called out, but there was no response. He then went to Baba Enosh and Wickliff, and they accompanied him back to the house. They started crying. They held a meeting and decided he should go to the police station to give his statement. He does not know what happened to his uncle. They have lived together since 2011.
SUBMISSIONS
The prosecution and defence filed written submissions at the close of the defence. The prosecution submitted as follows: the cause and death of the deceased were uncontroverted. On whether the accused caused the unlawful death of the deceased, it was submitted that Pw2 and Pw3 heard the accused threaten the deceased using the word “ leo utiniona”. The doctor’s evidence was that the deceased’s external appearance had strangulation marks on the neck and bruises on the face and wrist, and that the deceased succumbed to asphyxia from strangulation. The investigating officer noticed that the accused had an injury on his face, and upon interrogating him on the same, the accused could not explain how he sustained the facial wounds. It was submitted that the injuries were defensive wounds he sustained, which is sufficient proof of a struggle between the deceased and the accused. On cogent circumstantial evidence, it was submitted that there is adequate circumstantial evidence connecting the accused to the murder of the deceased without leaving any room for another suspect. The accused and deceased were the ones occupying the house, and the accused had threatened the deceased, only for the very accused to find him dead. The accused, too, had injuries he could explain. Reliance was placed in the case of Abanga alias Onyango vs. Republic, CRA No. 32 of 1990, where the Court of Appeal set out the principles to be applied in determining whether the circumstantial evidence adduced was sufficient to sustain a conviction. On malice aforethought, it was submitted that the deceased succumbed to severe asphyxia from strangulation; this is sufficient to prove malice aforethought. On the accused’s defence, it was submitted that the accused admitted being in the house of Pw2 with the deceased and, upon discovering the deceased dead in the house he was sharing with the deceased, he was. His defence weighed against the overwhelming evidence of all the prosecution witnesses remains a mere denial and ought to be treated as such.
The defence submissions were as follows: on the death of the deceased, it was submitted that there is no dispute that there was the death of Dismas Simiyu Wafula . On whether the death was caused by an unlawful act or omission of the accused person. It was submitted that none of the witnesses testified on what happened to the deceased, and none of them saw the accused commit the heinous act. The witnesses saw him either before or after the death of the deceased. The last person seen with the deceased was Pw2, as stated by Pw5. The witnesses' evidence did not corroborate each other on what they heard the accused say. Pw2 heard the accused say “ nitakuja hapo ” and “ leo utaniona ”, Pw3 heard the accused say “ leo utaniona ”, and the deceased answered , “ hakuna kitu wewe utafanya ”, Pw4 heard “ unanninyima siagara utaona ” and “ endeni nitapitia hapo .” On malice aforethought, it was submitted that the accused person had no intention of harming his uncle. The statements ‘Leo Utaniona or Utaona’ do not indicate anger and have fallen short of demonstrating an intention to kill or do grievous harm. The State failed to establish any ill motive or intention on the part of the accused, as threats or angry words must be supported by conduct of demonstrating intent. The prosecution has failed to prove that the accused possessed the mens rea to kill anyone. .It was further submitted that the investigating officer failed to do countless processes that could have given clarity as to the death of the deceased. The post-mortem suggested the deceased died from manual strangulation with neck marks present. No DNA samples were taken and the accused though being in custody all through was not tested for the deceased’s DNA under his nails. The investigating officer also stated that the accused had a cut, not a scratch but there was no medical record or photo evidence of the injury or blood sustained shirt. The investigating officer’s failure to document or collect forensic evidence weakens the prosecution's case. The investigating officer did not rule out other suspects as it was stated that the house had an improperly installed door that could have given access to anyone. Relying on principles stated in the case of Ahamed Abolfathi Mohammed & another vs Republic [2018] KECA eKLR on circumstantial evidence the defence submitted that the chain of events is neither complete nor exclusive to the accused guilt as no witness placed the accused at the scene of crime neither was he the last person to be seen with the deceased, further the fact that the accused lived or visited the shared home doe not in itself imply ill motive, guilt of raise suspicion. In light of the insurmountable gaps and the unresolved question of causation and intent , the death of the decease remains a mystery of the night and the accused should be acquitted. The prosecution has failed to discharge their burden of proving the case beyond a reasonable doubt ( see Republic vs Patrick Ong’au Okioma [2021] eKLR)
ANALYSIS AND DETERMINATION.
In a case of murder under section 203 of the Penal Code, the prosecution has the task of proving the following: the death and cause of death of the deceased; whether death was caused by an unlawful act or omission of the accused and whether there was malice aforethought. For the prosecution to sustain a conviction, it has the duty to prove its case beyond a reasonable doubt.
On the death and cause of death, Pw1, Pw2, and Pw5 testified that on the night of 7.3.2024, they found the deceased dead in his house. Pw4, Doctor Elly, who performed the post-mortem, testified that the cause of death was severe asphyxia due to strangulation. The death and the cause of death were proven.
The next issue is whether the accused caused the unlawful death of the deceased. There is no dispute that none of the witnesses called saw the accused strangle the deceased. As submitted, the prosecution's case is based on circumstantial evidence. The principles for reliance on circumstantial evidence to sustain a conviction in any criminal trial were stated by the Court of Appeal in the case of Abanga Alias Onyango vs. Republic, Cr Appeal No 32 of 1990 (UR) , as follows:
“ It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:
The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
The circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else.”
The Court of Appeal further amplified the above position in the case of Sawe vs. Republic [2003] KLR 364 as follows:
“ In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remains with the prosecution. It is a burden, which never shifts to the party accused”.
The prosecution has submitted that the accused threatened to harm the deceased using the word “ uta niona” and further that according to the doctor, the deceased's external appearance bore strangulation marks on the neck and bruises on the face and wrist joint, and that the deceased succumbed to severe asphyxia from strangulation. The defence has pointed out the differences in the evidence of Pw2, Pw3, and Pw43 regarding what the accused said before he left. Although the accused states that he was at PW3’s place at 3.00 pm and that he left. I am not persuaded that he was there at 3.00 pm. Pw2, Pw3, Pw4 and Pw5 testified that he was at Pw3’s in the evening between 7 pm and 8.30 pm. Pw2 heard the accused tell the deceased “ leo untaniona ”. Pw3 heard him tell the deceased” leo utaniona ” , Pw5 heard the accused tell the deceased, “unaninyima sigara utaona ”, “ you have denied me a cigarette, you will see me ”. These words were uttered before the accused left Pw3’s place. According to Pw5, the deceased called on Pw2, asking them to leave. The two left Pw3’s place. None of these witnesses saw the accused strangle the deceased. The accused spoke threatening words to the deceased in the presence. This evidence needed to be corroborated with other evidence to demonstrate that it is the accused who strangled the deceased. According to the investigating officer, when they visited the house where the deceased lived, they found him lying face upward. The deceased was already dead. He observed that the deceased had marks around his neck, but the other parts of his body did not have marks. Pw4, who did the post-mortem stated that the deceased had a strangulation mark on the anterior neck, most likely hand strangulation, bruises on the left wrist joint and bruises on the face. The investigation officer also stated that, “ the accused had something like a scratch on the face , it was like a bruise” . During cross-examination, he told the court that there was no forensic analysis of the said marks and that there was a defence wound on the deceased. If the accused had a scratch / bruise on his face as was stated, it was upon the investigating officer to request a DNA sample from the deceased and to have it analysed with the scratch/ bruise the accused had on his face. This was necessary to conclusively show that it is the accused who strangled the deceased. Threats alone, without further cogent evidence to link the accused to the incident, are not sufficient to make a finding that all evidence points unerringly to the guilt of the accused person. While threats can be a part of the evidence to be considered, in a case where is a history of misunderstanding as was suggested to by some of the witnesses and a subsequent death, a conviction for murder requires proof beyond reasonable doubt that the accused caused the death of the deceased. The Supreme Court of Uganda in Kahunde Semakula vs Uganda CR Appeal No.11 of 1994 observed as follows;
"Another requirement concerning circumstantial it must evidence is that is to be narrowly examined, because evidence of this kind may fabricated to cast suspicion on another. It is therefore from necessary before drawing the inference of the accused's guilt circumstantial evidence to be sure that there are no other co inference existing circumstances which would weaken or destroy the inference” (emphasis mine)
The accused denied strangling the deceased. There was also evidence indicating that the house shared by the accused and the deceased had no door. Could it be that someone else was there before the accused arrived home? The prosecution did not present evidence to exclude this possibility. The Court of Appeal in the case of Mary Wanjiku Gichira v Republic (Criminal Appeal No 17 of 1998) (unreported) held that suspicion, however strong, cannot serve as a basis for inferring guilt, which must be established by evidence. The accused was regarded as a suspect. Mere suspicion is not sufficient to establish guilt. The prosecution has failed to prove beyond a reasonable doubt that the accused committed the alleged murder. Therefore, I find that the accused, Kevin Wanjala Wamalwa, is not guilty of the charge of murder; he is acquitted under section 215 of the CPC and is free to go unless lawfully detained.
Dated, signed and delivered at Bungoma this 11 th day of July 2025
R.E.OUGO
JUDGE
In the presence of:
Kevin Wanjala Wamalwa/ Accused
Miss Matere State Counsel
M/s Kimora For the Accused
Wilkister - C/A