1. Rodgers Kibet Kiboi is charged with murder contrary to section 203 read with section 204 of the Penal Code. The particulars of the offence are that on the 27th day of April 2024, at Nasala village in Bungoma West Sub-County, within Bungoma County, Isaac Chesiro was murdered.
2. The prosecution called 14 witnesses to prove their case. The accused gave sworn statement in his defence.
PROSECUTION CASE
3. Vivan Nekesa Wafula, Pw1, testified as follows. On 27.4.2024, she was at home. A child named Simon approached her and said Isaac was being killed. Simon left, then returned and said Rodgers had killed Isaac. She went to the scene and found Rodgers and Isaac. Isaac was lying in a ditch. She saw Rodgers pull Isaac from the ditch and place him on the road. She began to scream, calling on Barasa, who was in a nearby shamba. Rodgers, armed with a hoe handle, threatened to kill her if she continued to say he had killed Isaac. Isaac was covered in blood. The accused is their neighbour. Pw1 identified the deceased using photos she was shown, the jembe and a black stone.
4. Abraham Barasa, Pw2, testified as follows. On the material day, he was playing football in a field with his two friends, Mark and Simono. It was about 3.00pm. 2 children came from the upper side of the road and told them that two people wanted to fight. He went to the place and saw Rodgers pulling Isaack onto the road. He saw both of them fall. Rodgers got up first and held Isaack by the neck. He saw Rodgers take a stone from the road and hit Isaack with it 4 times. He called Mark, who came, and Mark called Pw1, Vivi. Vivi came. He saw Rodgers hit Isaack with the stone again. Vivian called Mzee Barasa. Then Rodgers left with the jembe and went into the forest. Isaack was lying on the road with blood around his head and his legs tied with a rope made of grass. The hoe he saw had blood on it.
5. Mark Simiyu, Pw3, testified as follows: On 27.4.2024, he was playing ball with other children. He went home to drink water, and on returning, Abraham told him that people were fighting. On checking, he saw Rodgers pulling Isaack with one hand and stepping on him. Rodgers dragged Isaack to the middle of the road, then took a stone and hit Isaack, and then took a jembe and hit Isaack’s head. Isaack bled from the head. Abraham went to call Vivian, and she called Barasa. Rodgers left carrying the jembe. Isaack’s body was later picked up by the police. Rodgers is a close neighbour.
6. Titus Ngegwo, Pw4, testified as follows: On 27.4.2024, at about 3 to 4.00pm, he received a call from the Chief of Namubila location, which borders his location, reporting that Rodgers had fought with someone, that the person had died, and that Rodgers was heading in his direction. He alerted the area policing members and provided Rodgers' description. Joseph informed him that he had seen someone matching that description. He rushed to the Bokoni area and found Rodgers with the village elder. Rodgers explained why he was running away. He rearrested the accused and took him to Chesikaki police station.
7. Joseph Mose Mamboleo, Pw5, testified that on 27.4.2024 at 3.00pm he received a call from Pw4 informing him of a person who had committed a murder. He went looking for the person and, after 20 minutes, saw someone heading in his direction. He called out the name Rodgers, and the accused responded. The accused informed him that he knew he was a village elder. The accused had bruises on his face. The accused told him what had happened. He arrested the accused and called Pw4, who came and took him to the police station.
8. Samuel Sikuku Wambeo, Pw6, testified that on 27.4. 2024 he was on his way from his home to the shops. He saw Rodgers at their shamba, digging with a hoe( jembe). He also saw the deceased at their shamba, telling the children not to allow animals to enter. He saw Rodgers leave his shamba and go to talk to Isaack. On his way back, he found Isaack lying in the middle of the road, hit on the head and bleeding. Rodgers was not there. He went back home and told the deceased’s mother that her son had been murdered. By then, he had known the accused for two (2) years.
9. No. 110883 P.C Edward Munari, Pw7, recalled that, as an officer conducting crime scene investigations, he had worked with Sgt Tanui for 4 years. He produced the photographs taken by Sgt Tanui at the scene, together with the certificate, exhibit 4, dated 3.7.2024 (P-exhibits 1 a to g). He processed P exhibits 2 a and b.
10. Eunice Chemtai Cheseme, Pw8, testified that on 27.4.2024, between 3.00 and 4.00pm, she was at her home when her son, Isaack Chesiro, left to find a boy to give him a mattress. She then went to the mill. Whilst at the mill, Samuel told her that Isaack had been killed. She went to the scene and found her son lying on the road. She spoke to him, but he did not respond. She found a stone and a piece of timber. Isaack was bleeding from the ears. Police arrived and took the body away. She knew the accused before the incident. She found the accused at the chief’s office. They had a case against the accused, which was handled at the Chief’s place. The accused had gone to their shamba and claimed it was his. Their case was heard by the ACC, and the accused was asked to move out. The accused had built a temporary structure in the said shamba and was living there. The accused threatened to kill.
11. Rachael Chepkech, Pw9, testified that she knows the deceased and his parents. The accused is her nephew. In April 2024, Isaac went to her place. There was a dispute over a shamba. Rodgers had gone to their shamba and claimed it was his. The ACC asked Rodgers to move out of the shamba. On 27.4.2024 at about 3.00pm, she saw the deceased leave their home and, shortly thereafter, heard someone say Isaac had been killed. She went to the scene and found Isaac lying on the road in a pool of blood. He was dead. People gathered at the scene and went looking for Rodgers.
12. No. 124679 P.C Brain Kariuki, Pw10, recalled that on 27.4.2024 at 1755 hours, he received the accused at the police station from Chief Titus Ngeywo. Rodgers was a suspect in a murder case. He rearrested the accused, who was awaiting collection by the DCIO Sirisia.
13. Polycarp Lutta Kweyu, Pw11, a government analyst, testified that on 9.5.2024 he received six samples from DCI officers from Sirisia. He received the following samples; Exhibit A, a blood-stained white jacket belonging to Isaac Chesiro; Exhibit B, a blood-stained trouser belonging to Rodgers Kibet Kiboi; Exhibit C, a blood-stained stone collected near the body of Isaac Chesiro; Exhibit D, a blood-stained jembe recovered from the house of Rodgers Kiboi; Exhibit E, nails obtained from the deceased; and Exhibit F, a buccal sample obtained from Rodgers Kiboi. Items A (the jacket), B (the trouser), and D (the jembe) were heavily stained with blood of human origin. The stone (item C) was moderately stained with blood of human origin. His findings after carrying out the analysis were as follows; the DNA profiles generated from the blood stains on the jacket, trouser, stone, and jembe were identical and matched the DNA profile of Isaac Chesiro, the deceased. The DNA profile generated from the stains on the jembe – wooden handle was a mixed DNA profile of Isaac Chesiro, the deceased, and Rodgers Kibet Kiboi, the accused. He produced his report, exhibit 5, and the exhibit memo, exhibit 6.
14. David Moikut Ndiema, Pw12, testified that on 30.4.2024 he went to Bungoma Referral Hospital and identified the deceased, Isaac Chesiro, who is his in-law's son.
15. Doctor Elly Kiplimo Kosgei, Pw13, testified that he performed a post-mortem on the body of Isaac Chesiro on 30.4.2024. The deceased was 36 years old. The body showed superficial bruises on the lower limbs of both legs, abrasions on the anterior chest walls, and cut wounds on the scalp and below the chin, most probably caused by a blunt object. On internal examination, all was normal. There was a depression on the head, a subdural haematoma, and a fractured temporal bone. The other systems were normal. He concluded that the cause of death was a severe head injury from blunt trauma to the head as a result of assault. The report was P exhibit 2.
16. No. 71691 Sgt Isaac Ireri, Pw14, the investigating officer, testified as follows: On 27.4.2024 in the afternoon, he was informed by his boss of a body in the middle of the road. He proceeded to the scene and found the body of a male. People at the scene gave him the name of the deceased, and he also heard that Rodgers Kibet Kiboi had killed the deceased and had run away. He processed the scene and recovered a blood-stained stone and a blood-stained hoe, which he later took to the government analyst. He was informed by the assistant chief that he had arrested Rodgers and taken him to Chesikaki police station. He rearrested Rodgers and took him to Sirisia police station. He took him for mental assessment after receiving an order to detain him for 14 days. Rodgers was found fit to stand trial. Buccal tests were conducted on Rodgers at the Kisumu Government Chemist. A post-mortem was conducted on 30.4.2024. The cause of death was severe head injuries from blunt trauma to the head. The accused, after all due process, was charged with murder. He produced the stone, hoe, deceased’s jacket and the accused’s trouser, which he had recovered. He also produced them, together with the exhibit memo. He established that there was a shamba dispute.
DEFENCE
17. The accused person gave a sworn statement. He testified as follows. He lives in Masala village and used to work as a boda boda driver. He knows Isaac Chesiro. They are related. Isaac calls him Baba. They belong to the same clan and are neighbours. They have had a good relationship with Isaac’s family. They had a dispute over a shamba. He was not involved in the case. On 27.4.2024, he was arrested at 4.00pm along the road at Cheptais by the chief and village elder. He was taken to the police station, then to Sirisa court. He does not understand why he was charged with murder. When he was arrested, he was not told anything. He did not know that Isaac had died. He learnt this in court. He did not go to the scene where Isaac died. He does not know why the witness said he hit Isaac with a stone. He was arrested for no good reason.
SUBMISSIONS
18. The court gave directions for the parties to file their submissions. The defence filed written submissions. However, as at the time of writing this judgment, the prosecution had not filed its submissions.
19. In their submissions, the defence briefly summarised the evidence and submitted that, from the prosecution’s evidence, the accused committed the unlawful act that caused death; however, the element of malice aforethought was not established. From the evidence, the accused, while engaged in his farm, was provoked by the deceased, and thus his acts were not premeditated. He simply acted in the heat of passion, which unfortunately resulted in death. The defence relied on the case of Peter Kingori Mwangi vs Republic [2014] eKLR, where the court held that once the defence of provocation is raised, the burden shifts to the prosecution to prove the absence of provocation. The defence urged this court to find that the prosecution proved the offence of manslaughter, not murder, against the accused.
ANALYSIS AND DETERMINATION
20. In a murder case, this court is to determine whether the ingredients of the offence of murder, as set out in Section 203 of the Penal Code, have been proved beyond reasonable doubt by the prosecution.
21. Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused persons were charged provides as follows: -
Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
22. The prosecution must prove the elements of the offence of murder beyond reasonable doubt. The Court of Appeal in Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) set out the elements of the offence of murder as follows:
“For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.”
Whether the death of the deceased and its cause were proved
23. There is no dispute that Isaac Chesiro died on 27.4.2024. Pw1, Pw2, Pw3, Pw6, Pw8, and Pw9 testified that they saw the deceased's body lying on the road and that it was subsequently taken to Bungoma Referral Hospital.
24. The evidence of Pw13, Dr. Elly Kosgei, who performed the post-mortem on the deceased, indicates that the deceased had superficial bruises on both lower limbs, abrasions on the anterior chest walls, and cuts and wounds on the scalp and below the chin. There was a depression on the head and a fractured temporal bone with a subdural haematoma. He concluded that the cause of death was a severe head injury from blunt trauma to the head as a result of the assault.
25. This court is satisfied that both the fact and the cause of death were proved beyond reasonable doubt.
Whether it was the accused who unlawfully caused the death of the deceased.
The Prosecution’s case rests on the evidence of Pw1, Pw2 and Pw3. They all saw the accused pull the deceased’s body onto the road. Pw2 testified that he saw the accused take a stone and hit the deceased four times. Pw3 saw the accused take a hoe and hit the deceased on the head. By the time Pw1 arrived, the accused had already inflicted injuries on the deceased and also threatened her. The evidence of these three witnesses corroborates and points directly to the accused as the person who inflicted the injuries on the deceased. The accused was their neighbour. This was a case of recognition, not of identifying a stranger. The Court of Appeal in the case Anjononi & 2 others v Republic [1980] KECA 23 (KLR) observed that:
“This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported).”
26. Further, the incident occurred during the day at 3.00pm. The three witnesses saw the accused hit the deceased several times. In his defence, the accused denied injuring the deceased, claiming that he was merely arrested, taken to the police station, charged with murder, and not told anything. His counsel submitted that the accused acted in self-defence. That was not what the accused said in his defence. According to him, he did not commit the murder. His defence is a mere denial and does not challenge the evidence adduced by the prosecution.
27. Further corroboration is found in the accused’s conduct immediately after the incident; he fled. He was, however, arrested the same day by Pw4 and Pw5 after they were alerted that he was heading their way. In addition, a pair of trousers recovered from the accused had blood stains belonging to the deceased. This evidence, coupled with the evidence of Pw1, Pw2 and Pw3, clearly points to the accused as the one who unlawfully caused the deceased’s death. The accused’s defence was a bare denial.
Whether the accused acted with malice aforethought
28. Malice aforethought is defined in Section 206 of the Penal Code. In Republic v Tubere S/O Ochen [1945] 12 EACA 63, the court held that:
“An inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before, during and after the attack.”
29. The deceased sustained a depressed skull fracture, a subdural haematoma, and a fractured temporal bone. The cause of death was a severe head injury inflicted by a blunt object, in this case a hoe. The deceased died as a result of a head injury. The head is an extremely vulnerable part of the human body. Repeatedly striking another person on the head with a blunt object is conduct from which an intention to cause death or grievous harm may properly be inferred. Evidence was adduced that the two families had a land dispute. It is alleged in the defence submissions that the accused was provoked, but the accused did not testify that he was provoked during the incident. I find that malice aforethought was proved.
30. Accordingly, I find that the prosecution has proved the charge of murder beyond reasonable doubt. The accused, Rodgers Kibet Kiboi, is hereby found guilty of the murder of Isaac Chesiro and convicted accordingly.
Dated , signed and delivered virtually this 13 th Day of July 2026.
R. E. OUGOJUDGE
In the presence of:
Rodgers Kibet Kiboi/Accused
Miss Matere - For the State
Miss Lunani - For the Accused
Wilkister/Minah - C/A
HCCRC NO. E028 OF 2024-JUDGMENT 2
2. The prosecution called 14 witnesses to prove their case. The accused gave sworn statement in his defence.
PROSECUTION CASE
3. Vivan Nekesa Wafula, Pw1, testified as follows. On 27.4.2024, she was at home. A child named Simon approached her and said Isaac was being killed. Simon left, then returned and said Rodgers had killed Isaac. She went to the scene and found Rodgers and Isaac. Isaac was lying in a ditch. She saw Rodgers pull Isaac from the ditch and place him on the road. She began to scream, calling on Barasa, who was in a nearby shamba. Rodgers, armed with a hoe handle, threatened to kill her if she continued to say he had killed Isaac. Isaac was covered in blood. The accused is their neighbour. Pw1 identified the deceased using photos she was shown, the jembe and a black stone.
4. Abraham Barasa, Pw2, testified as follows. On the material day, he was playing football in a field with his two friends, Mark and Simono. It was about 3.00pm. 2 children came from the upper side of the road and told them that two people wanted to fight. He went to the place and saw Rodgers pulling Isaack onto the road. He saw both of them fall. Rodgers got up first and held Isaack by the neck. He saw Rodgers take a stone from the road and hit Isaack with it 4 times. He called Mark, who came, and Mark called Pw1, Vivi. Vivi came. He saw Rodgers hit Isaack with the stone again. Vivian called Mzee Barasa. Then Rodgers left with the jembe and went into the forest. Isaack was lying on the road with blood around his head and his legs tied with a rope made of grass. The hoe he saw had blood on it.
5. Mark Simiyu, Pw3, testified as follows: On 27.4.2024, he was playing ball with other children. He went home to drink water, and on returning, Abraham told him that people were fighting. On checking, he saw Rodgers pulling Isaack with one hand and stepping on him. Rodgers dragged Isaack to the middle of the road, then took a stone and hit Isaack, and then took a jembe and hit Isaack’s head. Isaack bled from the head. Abraham went to call Vivian, and she called Barasa. Rodgers left carrying the jembe. Isaack’s body was later picked up by the police. Rodgers is a close neighbour.
6. Titus Ngegwo, Pw4, testified as follows: On 27.4.2024, at about 3 to 4.00pm, he received a call from the Chief of Namubila location, which borders his location, reporting that Rodgers had fought with someone, that the person had died, and that Rodgers was heading in his direction. He alerted the area policing members and provided Rodgers' description. Joseph informed him that he had seen someone matching that description. He rushed to the Bokoni area and found Rodgers with the village elder. Rodgers explained why he was running away. He rearrested the accused and took him to Chesikaki police station.
7. Joseph Mose Mamboleo, Pw5, testified that on 27.4.2024 at 3.00pm he received a call from Pw4 informing him of a person who had committed a murder. He went looking for the person and, after 20 minutes, saw someone heading in his direction. He called out the name Rodgers, and the accused responded. The accused informed him that he knew he was a village elder. The accused had bruises on his face. The accused told him what had happened. He arrested the accused and called Pw4, who came and took him to the police station.
8. Samuel Sikuku Wambeo, Pw6, testified that on 27.4. 2024 he was on his way from his home to the shops. He saw Rodgers at their shamba, digging with a hoe( jembe). He also saw the deceased at their shamba, telling the children not to allow animals to enter. He saw Rodgers leave his shamba and go to talk to Isaack. On his way back, he found Isaack lying in the middle of the road, hit on the head and bleeding. Rodgers was not there. He went back home and told the deceased’s mother that her son had been murdered. By then, he had known the accused for two (2) years.
9. No. 110883 P.C Edward Munari, Pw7, recalled that, as an officer conducting crime scene investigations, he had worked with Sgt Tanui for 4 years. He produced the photographs taken by Sgt Tanui at the scene, together with the certificate, exhibit 4, dated 3.7.2024 (P-exhibits 1 a to g). He processed P exhibits 2 a and b.
10. Eunice Chemtai Cheseme, Pw8, testified that on 27.4.2024, between 3.00 and 4.00pm, she was at her home when her son, Isaack Chesiro, left to find a boy to give him a mattress. She then went to the mill. Whilst at the mill, Samuel told her that Isaack had been killed. She went to the scene and found her son lying on the road. She spoke to him, but he did not respond. She found a stone and a piece of timber. Isaack was bleeding from the ears. Police arrived and took the body away. She knew the accused before the incident. She found the accused at the chief’s office. They had a case against the accused, which was handled at the Chief’s place. The accused had gone to their shamba and claimed it was his. Their case was heard by the ACC, and the accused was asked to move out. The accused had built a temporary structure in the said shamba and was living there. The accused threatened to kill.
11. Rachael Chepkech, Pw9, testified that she knows the deceased and his parents. The accused is her nephew. In April 2024, Isaac went to her place. There was a dispute over a shamba. Rodgers had gone to their shamba and claimed it was his. The ACC asked Rodgers to move out of the shamba. On 27.4.2024 at about 3.00pm, she saw the deceased leave their home and, shortly thereafter, heard someone say Isaac had been killed. She went to the scene and found Isaac lying on the road in a pool of blood. He was dead. People gathered at the scene and went looking for Rodgers.
12. No. 124679 P.C Brain Kariuki, Pw10, recalled that on 27.4.2024 at 1755 hours, he received the accused at the police station from Chief Titus Ngeywo. Rodgers was a suspect in a murder case. He rearrested the accused, who was awaiting collection by the DCIO Sirisia.
13. Polycarp Lutta Kweyu, Pw11, a government analyst, testified that on 9.5.2024 he received six samples from DCI officers from Sirisia. He received the following samples; Exhibit A, a blood-stained white jacket belonging to Isaac Chesiro; Exhibit B, a blood-stained trouser belonging to Rodgers Kibet Kiboi; Exhibit C, a blood-stained stone collected near the body of Isaac Chesiro; Exhibit D, a blood-stained jembe recovered from the house of Rodgers Kiboi; Exhibit E, nails obtained from the deceased; and Exhibit F, a buccal sample obtained from Rodgers Kiboi. Items A (the jacket), B (the trouser), and D (the jembe) were heavily stained with blood of human origin. The stone (item C) was moderately stained with blood of human origin. His findings after carrying out the analysis were as follows; the DNA profiles generated from the blood stains on the jacket, trouser, stone, and jembe were identical and matched the DNA profile of Isaac Chesiro, the deceased. The DNA profile generated from the stains on the jembe – wooden handle was a mixed DNA profile of Isaac Chesiro, the deceased, and Rodgers Kibet Kiboi, the accused. He produced his report, exhibit 5, and the exhibit memo, exhibit 6.
14. David Moikut Ndiema, Pw12, testified that on 30.4.2024 he went to Bungoma Referral Hospital and identified the deceased, Isaac Chesiro, who is his in-law's son.
15. Doctor Elly Kiplimo Kosgei, Pw13, testified that he performed a post-mortem on the body of Isaac Chesiro on 30.4.2024. The deceased was 36 years old. The body showed superficial bruises on the lower limbs of both legs, abrasions on the anterior chest walls, and cut wounds on the scalp and below the chin, most probably caused by a blunt object. On internal examination, all was normal. There was a depression on the head, a subdural haematoma, and a fractured temporal bone. The other systems were normal. He concluded that the cause of death was a severe head injury from blunt trauma to the head as a result of assault. The report was P exhibit 2.
16. No. 71691 Sgt Isaac Ireri, Pw14, the investigating officer, testified as follows: On 27.4.2024 in the afternoon, he was informed by his boss of a body in the middle of the road. He proceeded to the scene and found the body of a male. People at the scene gave him the name of the deceased, and he also heard that Rodgers Kibet Kiboi had killed the deceased and had run away. He processed the scene and recovered a blood-stained stone and a blood-stained hoe, which he later took to the government analyst. He was informed by the assistant chief that he had arrested Rodgers and taken him to Chesikaki police station. He rearrested Rodgers and took him to Sirisia police station. He took him for mental assessment after receiving an order to detain him for 14 days. Rodgers was found fit to stand trial. Buccal tests were conducted on Rodgers at the Kisumu Government Chemist. A post-mortem was conducted on 30.4.2024. The cause of death was severe head injuries from blunt trauma to the head. The accused, after all due process, was charged with murder. He produced the stone, hoe, deceased’s jacket and the accused’s trouser, which he had recovered. He also produced them, together with the exhibit memo. He established that there was a shamba dispute.
DEFENCE
17. The accused person gave a sworn statement. He testified as follows. He lives in Masala village and used to work as a boda boda driver. He knows Isaac Chesiro. They are related. Isaac calls him Baba. They belong to the same clan and are neighbours. They have had a good relationship with Isaac’s family. They had a dispute over a shamba. He was not involved in the case. On 27.4.2024, he was arrested at 4.00pm along the road at Cheptais by the chief and village elder. He was taken to the police station, then to Sirisa court. He does not understand why he was charged with murder. When he was arrested, he was not told anything. He did not know that Isaac had died. He learnt this in court. He did not go to the scene where Isaac died. He does not know why the witness said he hit Isaac with a stone. He was arrested for no good reason.
SUBMISSIONS
18. The court gave directions for the parties to file their submissions. The defence filed written submissions. However, as at the time of writing this judgment, the prosecution had not filed its submissions.
19. In their submissions, the defence briefly summarised the evidence and submitted that, from the prosecution’s evidence, the accused committed the unlawful act that caused death; however, the element of malice aforethought was not established. From the evidence, the accused, while engaged in his farm, was provoked by the deceased, and thus his acts were not premeditated. He simply acted in the heat of passion, which unfortunately resulted in death. The defence relied on the case of Peter Kingori Mwangi vs Republic [2014] eKLR, where the court held that once the defence of provocation is raised, the burden shifts to the prosecution to prove the absence of provocation. The defence urged this court to find that the prosecution proved the offence of manslaughter, not murder, against the accused.
ANALYSIS AND DETERMINATION
20. In a murder case, this court is to determine whether the ingredients of the offence of murder, as set out in Section 203 of the Penal Code, have been proved beyond reasonable doubt by the prosecution.
21. Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused persons were charged provides as follows: -
Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
22. The prosecution must prove the elements of the offence of murder beyond reasonable doubt. The Court of Appeal in Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) set out the elements of the offence of murder as follows:
“For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.”
Whether the death of the deceased and its cause were proved
23. There is no dispute that Isaac Chesiro died on 27.4.2024. Pw1, Pw2, Pw3, Pw6, Pw8, and Pw9 testified that they saw the deceased's body lying on the road and that it was subsequently taken to Bungoma Referral Hospital.
24. The evidence of Pw13, Dr. Elly Kosgei, who performed the post-mortem on the deceased, indicates that the deceased had superficial bruises on both lower limbs, abrasions on the anterior chest walls, and cuts and wounds on the scalp and below the chin. There was a depression on the head and a fractured temporal bone with a subdural haematoma. He concluded that the cause of death was a severe head injury from blunt trauma to the head as a result of the assault.
25. This court is satisfied that both the fact and the cause of death were proved beyond reasonable doubt.
Whether it was the accused who unlawfully caused the death of the deceased.
The Prosecution’s case rests on the evidence of Pw1, Pw2 and Pw3. They all saw the accused pull the deceased’s body onto the road. Pw2 testified that he saw the accused take a stone and hit the deceased four times. Pw3 saw the accused take a hoe and hit the deceased on the head. By the time Pw1 arrived, the accused had already inflicted injuries on the deceased and also threatened her. The evidence of these three witnesses corroborates and points directly to the accused as the person who inflicted the injuries on the deceased. The accused was their neighbour. This was a case of recognition, not of identifying a stranger. The Court of Appeal in the case Anjononi & 2 others v Republic [1980] KECA 23 (KLR) observed that:
“This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported).”
26. Further, the incident occurred during the day at 3.00pm. The three witnesses saw the accused hit the deceased several times. In his defence, the accused denied injuring the deceased, claiming that he was merely arrested, taken to the police station, charged with murder, and not told anything. His counsel submitted that the accused acted in self-defence. That was not what the accused said in his defence. According to him, he did not commit the murder. His defence is a mere denial and does not challenge the evidence adduced by the prosecution.
27. Further corroboration is found in the accused’s conduct immediately after the incident; he fled. He was, however, arrested the same day by Pw4 and Pw5 after they were alerted that he was heading their way. In addition, a pair of trousers recovered from the accused had blood stains belonging to the deceased. This evidence, coupled with the evidence of Pw1, Pw2 and Pw3, clearly points to the accused as the one who unlawfully caused the deceased’s death. The accused’s defence was a bare denial.
Whether the accused acted with malice aforethought
28. Malice aforethought is defined in Section 206 of the Penal Code. In Republic v Tubere S/O Ochen [1945] 12 EACA 63, the court held that:
“An inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before, during and after the attack.”
29. The deceased sustained a depressed skull fracture, a subdural haematoma, and a fractured temporal bone. The cause of death was a severe head injury inflicted by a blunt object, in this case a hoe. The deceased died as a result of a head injury. The head is an extremely vulnerable part of the human body. Repeatedly striking another person on the head with a blunt object is conduct from which an intention to cause death or grievous harm may properly be inferred. Evidence was adduced that the two families had a land dispute. It is alleged in the defence submissions that the accused was provoked, but the accused did not testify that he was provoked during the incident. I find that malice aforethought was proved.
30. Accordingly, I find that the prosecution has proved the charge of murder beyond reasonable doubt. The accused, Rodgers Kibet Kiboi, is hereby found guilty of the murder of Isaac Chesiro and convicted accordingly.
Dated , signed and delivered virtually this 13 th Day of July 2026.
R. E. OUGOJUDGE
In the presence of:
Rodgers Kibet Kiboi/Accused
Miss Matere - For the State
Miss Lunani - For the Accused
Wilkister/Minah - C/A
HCCRC NO. E028 OF 2024-JUDGMENT 2