1. The accused, Samuel Okskos Agwanda, was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The Information alleged that on 23rd January 2025 at Chepilat Area in Borabu Sub-County, Nyamira County, he murdered Emiliano Damara, a child aged one and a half years. He denied the charge and the matter proceeded to full trial.
2. The prosecution bore the burden of proving beyond reasonable doubt that the deceased died, that her death resulted from an unlawful act or omission, that the unlawful act or omission was committed by the accused, and that in causing her death the accused acted with malice aforethought within the meaning of section 206 of the Penal Code.
3. In discharge of that burden, the prosecution called five witnesses whose evidence traced the events of 23rd January 2025 from the time the deceased was allegedly assaulted to the subsequent police investigations.
4. Cyrus Onsongo Ogaga (PW1) stated that on the material date at about 6.00 p.m., while going to fetch water near the accused's residence, he found the accused beating Emiliano Damara, a child aged one and a half years, with the handle of a hammer. His attempt to intervene was rebuffed by the accused, who told him that the child was his and that he should not interfere. He left the scene and later learnt that the child had been rushed to Summit Hospital, where she was pronounced dead. He identified the hammer produced in evidence as the one used during the assault.
5. Joshua Momanyi (PW2), the accused's landlord, stated that at about 7.00 p.m. on the same evening the accused went to his shop to collect payment for digging a borehole. They proceeded to inspect the work before payment could be made. While at the site, the accused received a telephone call informing him that the child had died. PW2 accompanied him to Summit Hospital, where they found the child lying lifeless on a hospital bed. Police officers arrived shortly thereafter and arrested the accused. PW2 neither witnessed the assault nor knew how the child sustained the fatal injuries.
6. Bernard Openi Mayinyo (PW3), a neighbour and friend of the accused, testified that at about 8.00 p.m. on the material evening he met the accused carrying the deceased while rushing to Summit Hospital after informing him that the child was unwell. He followed the accused to the hospital, where he found a large crowd, and stated that the accused's wife joined them on the way. PW3 further testified that he had previously seen the accused beat the child about three days before the incident and that the accused regularly assaulted her. Although he initially stated during his examination-in-chief that he had not witnessed the assault which led to the child's injuries, he later asserted during cross-examination, and maintained in re-examination, that he had in fact seen the accused assault the deceased on the material day.
7. Dr Morebu Peter Momanyi (PW4), a Senior Medical Officer at Kisii Teaching and Referral Hospital, performed the post-mortem examination on the body of Emiliano Damara on 30th January 2025 at St John Nyansiongo Mission Hospital. The examination revealed multiple bruises on the head together with extensive bleeding beneath the scalp and into the brain. He formed the opinion that death resulted from severe head injury caused by blunt force trauma to the head and produced the post-mortem report in evidence.
8. Sergeant Paskal Omondi (PW5), an officer attached to the Directorate of Criminal Investigations at Borabu, investigated the case. On the night of 23rd January 2025 he received information that a dead child had been taken to Summit Hospital under suspicious circumstances. At the hospital, the attending doctor informed him that the child had sustained head injuries suggestive of an unlawful assault. He arrested both the accused and the child's mother before visiting the accused's house the following day, where he recovered a hammer suspected to have been used in the assault and prepared an inventory of the recovery. His investigations established that the deceased had remained in the accused's custody throughout the day while the child's mother was at work, and that she returned home in the evening to find the child lying dead. Upon completion of investigations, the accused was charged with murder while the child's mother was released with the intention that she would testify for the prosecution, although she could not later be traced. He produced the hammer, the photographs of the scene, and the certificate relating to the photographs as exhibits.
9. At the close of the prosecution case, the Court found that a prima facie case had been established and placed the accused on his defence. He elected to give sworn evidence and did not call any witness. He stated that on the morning of 23rd January 2025 his wife, Mwende Okskos, left for work, leaving the child in his care. She returned home at about 3.00 p.m. and found both him and the child well. Later that afternoon, his landlord assigned him the task of cleaning the compound, which they undertook together. At about 6.00 p.m., Mwende put the child to sleep before leaving shortly thereafter to return items she had borrowed from a neighbour. She returned at about 7.30 p.m. and found the child still asleep. He then left to inform his landlord that the work had been completed and to collect payment.
10. While inspecting the work with his landlord, he received a telephone call from Mwende informing him that the child had died and that she was at Summit Hospital. They immediately proceeded there and found the child's body. The attending doctor informed him that although Mwende had brought the child to hospital after reporting that she had suddenly fallen ill, she had already died. As arrangements were being made to transfer the body to the mortuary, police officers arrived and arrested both of them before taking them to Matutu Police Station. Mwende was released the following day while he remained in custody.
11. He denied assaulting or killing the deceased and maintained that he did not know how she sustained the fatal injuries. He acknowledged that the hammer produced in evidence belonged to him but explained that it was one of the tools he used in his work as a mason and that the police recovered it from his house despite the presence of several other tools.
12. Accused denied knowing PW1 and PW3 before the trial and maintained that they falsely implicated him. He added that the deceased was his stepdaughter, whom he had no reason to harm, and explained that although he intended to call Mwende as a witness, he had been unable to trace her after she left following his arrest.
13. The death of a child is an unspeakable tragedy that naturally evokes profound grief. Where the allegation is that the child's death was caused by a parent or a person standing in the position of a parent, the sense of loss is accompanied by understandable public concern. The Court, however, is not called upon to determine the case on the basis of emotion, sympathy or suspicion. Its constitutional duty is to evaluate the evidence impartially and determine whether the prosecution has proved each ingredient of the offence of murder beyond reasonable doubt.
14. The offence of murder is created under section 203 of the Penal Code and attracts the penalty prescribed under section 204 thereof. To secure a conviction, the prosecution must prove beyond reasonable doubt that the deceased is dead; that the death resulted from an unlawful act or omission; that it was the accused who committed the unlawful act or omission which caused the death; and that, in committing that act, he acted with malice aforethought within the meaning of section 206 of the Penal Code. That burden rests throughout upon the prosecution and never shifts to the accused, as reiterated by the Court of Appeal in Shangasu v Republic [2024] KECA 1223 (KLR).
15. The first ingredient concerns the fact and cause of death. PW4, Dr Morebu Peter Momanyi, conducted a post-mortem examination on the body of Emiliano Damara on 30th January 2025 at St John Nyansiongo Mission Hospital. The examination revealed multiple bruises on the scalp, extensive sub-scalp haemorrhage, and intracranial haemorrhage, and the pathologist formed the opinion that the cause of death was severe head injury due to blunt force trauma to the head. The post-mortem report findings are consistent with the photographic exhibits depicting the extensive injuries sustained to the deceased's head. From this evidence, the Court is satisfied that the prosecution proved beyond reasonable doubt that Emiliano Damara died and that her death was caused by severe head injury resulting from blunt force trauma to the head.
16. The second ingredient is whether that death resulted from an unlawful act or omission. The nature, location and extent of the injuries described by the pathologist which are multiple bruises to the scalp, extensive sub-scalp haemorrhage and intracranial haemorrhage are indicative of the application of considerable force to a vulnerable part of the body and are wholly inconsistent with a natural or accidental death; there is, indeed, no suggestion on the record that the injuries were accidental or self-inflicted. The evidence therefore establishes that the deceased met her death through an unlawful act.
17. The third ingredient, and the one that lies at the heart of this case, is whether it was the accused who inflicted the injuries that caused the deceased's death. The real controversy in this case is not, therefore, whether an offence was committed, but whether the prosecution proved beyond reasonable doubt that it was the accused who inflicted the fatal injuries. In resolving that issue, the Court is required to examine the evidence of PW1 and PW3, consider whether it is consistent with the medical evidence, evaluate it alongside the defence advanced by the accused and the other evidence on record, and determine whether, taken as a whole, it establishes the accused's culpability beyond reasonable doubt.
18. The prosecution's case, in essence, was that the accused had been seen assaulting the deceased on the material evening — first by PW1, who testified to witnessing him strike the child with a hammer, and separately by PW3, who claimed to have witnessed an assault as well. To this the prosecution added the medical evidence establishing that the deceased died of blunt force head trauma, the recovery of a hammer from the house shared by the accused and the deceased, and the investigating officer's evidence that the child had remained in the accused's sole care for a substantial part of the day.
19. The defence, on the other hand, denied any involvement in the child's death. It was asserted that the deceased was well throughout the day, that she was later left with her mother after her mother returned from work, and that the telephone call informing the accused of her death was received while he was away inspecting work with his landlord. It was further maintained that the hammer recovered by the police was merely a tool of trade and that no evidence connected it to the injuries sustained by the deceased.
20. Closer examination of the two eyewitness accounts, however, reveals significant difficulty. PW1 testified that at about 6.00 p.m. on the material date, he saw the accused strike the deceased on the buttocks with the wooden handle of a hammer, and he later identified that hammer, recovered by the investigating officer from the accused's house, as the one used. The post-mortem examination conducted by PW4, however, did not reveal any injury to the buttocks; instead, the pathologist documented multiple bruises on the scalp, extensive sub-scalp haemorrhage, and intracranial haemorrhage, attributing death to severe head injury from blunt force trauma to the head. PW1's account of the assault is thus materially inconsistent with the injuries that in fact killed the deceased. Nor does the recovery of the hammer close that gap: although it was recovered from the accused's house, no forensic examination was undertaken to determine whether it bore blood stains, tissue, DNA, or any other material linking it to the deceased or to the injuries disclosed at the post-mortem examination, and the accused's explanation that it was his tool of trade went unrebutted.
21. PW3's evidence fares no better. While he stated in his evidence-in-chief that he met the accused at about 8.00 p.m. as the accused was carrying the child to Summit Hospital, and expressly stated that he had not witnessed the incident, he later asserted during cross-examination, and reaffirmed in re-examination, that he had in fact seen the accused assault the child on the material day. He neither disclosed when that alleged assault occurred nor described the manner in which it was carried out, leaving the Court without any factual basis upon which to determine whether he was referring to the same occurrence described by PW1 or to an altogether different incident, or whether either account bears any relation to the head injuries established by the medical evidence.
22. The sequence of events narrated by the accused assumes importance because it bears directly on the question whether he remained with the deceased at the material time. According to his sworn testimony, his wife left for work on the morning of the material date, leaving the deceased in his care, and returned at about 3.00 p.m. to find both him and the child well. He further testified that at about 5.00 p.m. he and his wife undertook cleaning work assigned to him by their landlord, Joshua Momanyi, before his wife took the child into the house to sleep at about 6.00 p.m. The accused stated that his wife thereafter left at about 6.30 p.m. to return some goods to one Cyrus and came back at about 7.30 p.m., by which time, according to him, the child was still asleep. It was only after her return that he proceeded to his landlord's house to notify him that the assigned work had been completed and to request payment. He explained that while returning with the landlord, he received a telephone call from his wife informing him that the child had died and that she was at Summit Hospital.
23. That account was materially corroborated by PW2, Joshua Momanyi, the accused's landlord, who confirmed that the accused went to collect payment for the work done, that they proceeded together to inspect the completed work, and that while they were there the accused received a telephone call informing him of the child's death, whereupon they immediately proceeded to Summit Hospital. Although PW2 did not witness the events leading to the deceased's injuries, his evidence lends support to the accused's account of his movements during that part of the evening.
24. That account assumes even greater significance when considered alongside the evidence of the investigating officer. PW5 testified that, from his investigations, he established that the deceased had remained in the accused's care during the day while the child's mother was at work, and that she returned home in the evening and found the child lying dead while the accused was absent. He further stated that the child's mother was initially treated as a prosecution witness and was released after investigations for that purpose, but despite efforts she could not subsequently be traced to testify before the Court. PW5's account in this regard was based on the information gathered during his investigations rather than on his own personal observation.
25. During cross-examination, PW5 further conceded that no one had witnessed the accused inflict the fatal injuries upon the deceased and that his suspicion of the accused was founded on information supplied by the child's mother that she had left the child in the accused's care.
26. In those circumstances, the child's mother was plainly not a peripheral witness whose evidence would merely have been cumulative. She was the only person capable of placing before the Court a direct account of the events after she returned home that evening, explaining the condition in which she found the deceased, the circumstances under which the child came to be taken to hospital, and whether the chronology narrated by the accused was truthful. Her testimony would equally have enabled the Court to assess the foundation upon which PW5 formed the opinion that the accused was responsible for the deceased's death. The prosecution nevertheless proceeded without her evidence, notwithstanding that it had itself identified her as a material witness, thereby leaving unresolved factual issues at the centre of its case.
27. Viewed in its entirety, the evidence did not establish beyond reasonable doubt that it was the accused who inflicted the fatal head injuries sustained by the deceased. PW1 testified only to having seen the accused strike the deceased on the buttocks with the handle of a hammer, yet the medical evidence demonstrated that the fatal injuries were confined to the head. PW3's evidence neither reconciled that inconsistency nor gave a coherent account of the alleged assault, his testimony having shifted from stating that he had not witnessed the assault to claiming that he had seen it without identifying when, where or how it occurred. The recovery of the hammer from the accused's house did not fill that evidential gap in the absence of any forensic evidence connecting it to the injuries. Moreover, the prosecution led no evidence establishing when the fatal head injuries were inflicted, leaving unresolved whether they were sustained during the assault alleged by PW1, the unspecified assault later asserted by PW3, or at some other time altogether. The evidence therefore left unanswered the central question of who inflicted the fatal injuries.
28. The prosecution bore the burden of proving beyond reasonable doubt that it was the accused who caused the deceased's death. No witness testified to having seen the accused inflict the fatal head injuries, the medical evidence did not support the account given by PW1, PW3's evidence remained contradictory, and the testimony of the child's mother, upon which the investigating officer's suspicions were founded, was never placed before the Court. What ultimately remains is suspicion that the accused may have been responsible for the deceased's death. As the Court of Appeal held in Sawe v Republic [2003] KLR 364, suspicion, however strong, cannot provide the basis for inferring guilt and cannot found a conviction in a criminal case. The prosecution therefore failed to discharge the burden of proving beyond reasonable doubt that it was the accused who inflicted the fatal injuries that caused the deceased's death.
29. Having found that the prosecution failed to prove beyond reasonable doubt that it was the accused who inflicted the fatal injuries sustained by the deceased, it becomes unnecessary to consider whether malice aforethought was established. That issue can only arise once it has first been proved that the accused committed the unlawful act that caused the deceased's death.
30. Accordingly, I find that the prosecution failed to prove the charge of murder contrary to sections 203 and 204 of the Penal Code beyond reasonable doubt. The accused, Samuel Okskos Agwanda, is hereby found not guilty and is acquitted under section 322(1) of the Criminal Procedure Code. He shall be released forthwith unless otherwise lawfully held.
2. The prosecution bore the burden of proving beyond reasonable doubt that the deceased died, that her death resulted from an unlawful act or omission, that the unlawful act or omission was committed by the accused, and that in causing her death the accused acted with malice aforethought within the meaning of section 206 of the Penal Code.
3. In discharge of that burden, the prosecution called five witnesses whose evidence traced the events of 23rd January 2025 from the time the deceased was allegedly assaulted to the subsequent police investigations.
4. Cyrus Onsongo Ogaga (PW1) stated that on the material date at about 6.00 p.m., while going to fetch water near the accused's residence, he found the accused beating Emiliano Damara, a child aged one and a half years, with the handle of a hammer. His attempt to intervene was rebuffed by the accused, who told him that the child was his and that he should not interfere. He left the scene and later learnt that the child had been rushed to Summit Hospital, where she was pronounced dead. He identified the hammer produced in evidence as the one used during the assault.
5. Joshua Momanyi (PW2), the accused's landlord, stated that at about 7.00 p.m. on the same evening the accused went to his shop to collect payment for digging a borehole. They proceeded to inspect the work before payment could be made. While at the site, the accused received a telephone call informing him that the child had died. PW2 accompanied him to Summit Hospital, where they found the child lying lifeless on a hospital bed. Police officers arrived shortly thereafter and arrested the accused. PW2 neither witnessed the assault nor knew how the child sustained the fatal injuries.
6. Bernard Openi Mayinyo (PW3), a neighbour and friend of the accused, testified that at about 8.00 p.m. on the material evening he met the accused carrying the deceased while rushing to Summit Hospital after informing him that the child was unwell. He followed the accused to the hospital, where he found a large crowd, and stated that the accused's wife joined them on the way. PW3 further testified that he had previously seen the accused beat the child about three days before the incident and that the accused regularly assaulted her. Although he initially stated during his examination-in-chief that he had not witnessed the assault which led to the child's injuries, he later asserted during cross-examination, and maintained in re-examination, that he had in fact seen the accused assault the deceased on the material day.
7. Dr Morebu Peter Momanyi (PW4), a Senior Medical Officer at Kisii Teaching and Referral Hospital, performed the post-mortem examination on the body of Emiliano Damara on 30th January 2025 at St John Nyansiongo Mission Hospital. The examination revealed multiple bruises on the head together with extensive bleeding beneath the scalp and into the brain. He formed the opinion that death resulted from severe head injury caused by blunt force trauma to the head and produced the post-mortem report in evidence.
8. Sergeant Paskal Omondi (PW5), an officer attached to the Directorate of Criminal Investigations at Borabu, investigated the case. On the night of 23rd January 2025 he received information that a dead child had been taken to Summit Hospital under suspicious circumstances. At the hospital, the attending doctor informed him that the child had sustained head injuries suggestive of an unlawful assault. He arrested both the accused and the child's mother before visiting the accused's house the following day, where he recovered a hammer suspected to have been used in the assault and prepared an inventory of the recovery. His investigations established that the deceased had remained in the accused's custody throughout the day while the child's mother was at work, and that she returned home in the evening to find the child lying dead. Upon completion of investigations, the accused was charged with murder while the child's mother was released with the intention that she would testify for the prosecution, although she could not later be traced. He produced the hammer, the photographs of the scene, and the certificate relating to the photographs as exhibits.
9. At the close of the prosecution case, the Court found that a prima facie case had been established and placed the accused on his defence. He elected to give sworn evidence and did not call any witness. He stated that on the morning of 23rd January 2025 his wife, Mwende Okskos, left for work, leaving the child in his care. She returned home at about 3.00 p.m. and found both him and the child well. Later that afternoon, his landlord assigned him the task of cleaning the compound, which they undertook together. At about 6.00 p.m., Mwende put the child to sleep before leaving shortly thereafter to return items she had borrowed from a neighbour. She returned at about 7.30 p.m. and found the child still asleep. He then left to inform his landlord that the work had been completed and to collect payment.
10. While inspecting the work with his landlord, he received a telephone call from Mwende informing him that the child had died and that she was at Summit Hospital. They immediately proceeded there and found the child's body. The attending doctor informed him that although Mwende had brought the child to hospital after reporting that she had suddenly fallen ill, she had already died. As arrangements were being made to transfer the body to the mortuary, police officers arrived and arrested both of them before taking them to Matutu Police Station. Mwende was released the following day while he remained in custody.
11. He denied assaulting or killing the deceased and maintained that he did not know how she sustained the fatal injuries. He acknowledged that the hammer produced in evidence belonged to him but explained that it was one of the tools he used in his work as a mason and that the police recovered it from his house despite the presence of several other tools.
12. Accused denied knowing PW1 and PW3 before the trial and maintained that they falsely implicated him. He added that the deceased was his stepdaughter, whom he had no reason to harm, and explained that although he intended to call Mwende as a witness, he had been unable to trace her after she left following his arrest.
13. The death of a child is an unspeakable tragedy that naturally evokes profound grief. Where the allegation is that the child's death was caused by a parent or a person standing in the position of a parent, the sense of loss is accompanied by understandable public concern. The Court, however, is not called upon to determine the case on the basis of emotion, sympathy or suspicion. Its constitutional duty is to evaluate the evidence impartially and determine whether the prosecution has proved each ingredient of the offence of murder beyond reasonable doubt.
14. The offence of murder is created under section 203 of the Penal Code and attracts the penalty prescribed under section 204 thereof. To secure a conviction, the prosecution must prove beyond reasonable doubt that the deceased is dead; that the death resulted from an unlawful act or omission; that it was the accused who committed the unlawful act or omission which caused the death; and that, in committing that act, he acted with malice aforethought within the meaning of section 206 of the Penal Code. That burden rests throughout upon the prosecution and never shifts to the accused, as reiterated by the Court of Appeal in Shangasu v Republic [2024] KECA 1223 (KLR).
15. The first ingredient concerns the fact and cause of death. PW4, Dr Morebu Peter Momanyi, conducted a post-mortem examination on the body of Emiliano Damara on 30th January 2025 at St John Nyansiongo Mission Hospital. The examination revealed multiple bruises on the scalp, extensive sub-scalp haemorrhage, and intracranial haemorrhage, and the pathologist formed the opinion that the cause of death was severe head injury due to blunt force trauma to the head. The post-mortem report findings are consistent with the photographic exhibits depicting the extensive injuries sustained to the deceased's head. From this evidence, the Court is satisfied that the prosecution proved beyond reasonable doubt that Emiliano Damara died and that her death was caused by severe head injury resulting from blunt force trauma to the head.
16. The second ingredient is whether that death resulted from an unlawful act or omission. The nature, location and extent of the injuries described by the pathologist which are multiple bruises to the scalp, extensive sub-scalp haemorrhage and intracranial haemorrhage are indicative of the application of considerable force to a vulnerable part of the body and are wholly inconsistent with a natural or accidental death; there is, indeed, no suggestion on the record that the injuries were accidental or self-inflicted. The evidence therefore establishes that the deceased met her death through an unlawful act.
17. The third ingredient, and the one that lies at the heart of this case, is whether it was the accused who inflicted the injuries that caused the deceased's death. The real controversy in this case is not, therefore, whether an offence was committed, but whether the prosecution proved beyond reasonable doubt that it was the accused who inflicted the fatal injuries. In resolving that issue, the Court is required to examine the evidence of PW1 and PW3, consider whether it is consistent with the medical evidence, evaluate it alongside the defence advanced by the accused and the other evidence on record, and determine whether, taken as a whole, it establishes the accused's culpability beyond reasonable doubt.
18. The prosecution's case, in essence, was that the accused had been seen assaulting the deceased on the material evening — first by PW1, who testified to witnessing him strike the child with a hammer, and separately by PW3, who claimed to have witnessed an assault as well. To this the prosecution added the medical evidence establishing that the deceased died of blunt force head trauma, the recovery of a hammer from the house shared by the accused and the deceased, and the investigating officer's evidence that the child had remained in the accused's sole care for a substantial part of the day.
19. The defence, on the other hand, denied any involvement in the child's death. It was asserted that the deceased was well throughout the day, that she was later left with her mother after her mother returned from work, and that the telephone call informing the accused of her death was received while he was away inspecting work with his landlord. It was further maintained that the hammer recovered by the police was merely a tool of trade and that no evidence connected it to the injuries sustained by the deceased.
20. Closer examination of the two eyewitness accounts, however, reveals significant difficulty. PW1 testified that at about 6.00 p.m. on the material date, he saw the accused strike the deceased on the buttocks with the wooden handle of a hammer, and he later identified that hammer, recovered by the investigating officer from the accused's house, as the one used. The post-mortem examination conducted by PW4, however, did not reveal any injury to the buttocks; instead, the pathologist documented multiple bruises on the scalp, extensive sub-scalp haemorrhage, and intracranial haemorrhage, attributing death to severe head injury from blunt force trauma to the head. PW1's account of the assault is thus materially inconsistent with the injuries that in fact killed the deceased. Nor does the recovery of the hammer close that gap: although it was recovered from the accused's house, no forensic examination was undertaken to determine whether it bore blood stains, tissue, DNA, or any other material linking it to the deceased or to the injuries disclosed at the post-mortem examination, and the accused's explanation that it was his tool of trade went unrebutted.
21. PW3's evidence fares no better. While he stated in his evidence-in-chief that he met the accused at about 8.00 p.m. as the accused was carrying the child to Summit Hospital, and expressly stated that he had not witnessed the incident, he later asserted during cross-examination, and reaffirmed in re-examination, that he had in fact seen the accused assault the child on the material day. He neither disclosed when that alleged assault occurred nor described the manner in which it was carried out, leaving the Court without any factual basis upon which to determine whether he was referring to the same occurrence described by PW1 or to an altogether different incident, or whether either account bears any relation to the head injuries established by the medical evidence.
22. The sequence of events narrated by the accused assumes importance because it bears directly on the question whether he remained with the deceased at the material time. According to his sworn testimony, his wife left for work on the morning of the material date, leaving the deceased in his care, and returned at about 3.00 p.m. to find both him and the child well. He further testified that at about 5.00 p.m. he and his wife undertook cleaning work assigned to him by their landlord, Joshua Momanyi, before his wife took the child into the house to sleep at about 6.00 p.m. The accused stated that his wife thereafter left at about 6.30 p.m. to return some goods to one Cyrus and came back at about 7.30 p.m., by which time, according to him, the child was still asleep. It was only after her return that he proceeded to his landlord's house to notify him that the assigned work had been completed and to request payment. He explained that while returning with the landlord, he received a telephone call from his wife informing him that the child had died and that she was at Summit Hospital.
23. That account was materially corroborated by PW2, Joshua Momanyi, the accused's landlord, who confirmed that the accused went to collect payment for the work done, that they proceeded together to inspect the completed work, and that while they were there the accused received a telephone call informing him of the child's death, whereupon they immediately proceeded to Summit Hospital. Although PW2 did not witness the events leading to the deceased's injuries, his evidence lends support to the accused's account of his movements during that part of the evening.
24. That account assumes even greater significance when considered alongside the evidence of the investigating officer. PW5 testified that, from his investigations, he established that the deceased had remained in the accused's care during the day while the child's mother was at work, and that she returned home in the evening and found the child lying dead while the accused was absent. He further stated that the child's mother was initially treated as a prosecution witness and was released after investigations for that purpose, but despite efforts she could not subsequently be traced to testify before the Court. PW5's account in this regard was based on the information gathered during his investigations rather than on his own personal observation.
25. During cross-examination, PW5 further conceded that no one had witnessed the accused inflict the fatal injuries upon the deceased and that his suspicion of the accused was founded on information supplied by the child's mother that she had left the child in the accused's care.
26. In those circumstances, the child's mother was plainly not a peripheral witness whose evidence would merely have been cumulative. She was the only person capable of placing before the Court a direct account of the events after she returned home that evening, explaining the condition in which she found the deceased, the circumstances under which the child came to be taken to hospital, and whether the chronology narrated by the accused was truthful. Her testimony would equally have enabled the Court to assess the foundation upon which PW5 formed the opinion that the accused was responsible for the deceased's death. The prosecution nevertheless proceeded without her evidence, notwithstanding that it had itself identified her as a material witness, thereby leaving unresolved factual issues at the centre of its case.
27. Viewed in its entirety, the evidence did not establish beyond reasonable doubt that it was the accused who inflicted the fatal head injuries sustained by the deceased. PW1 testified only to having seen the accused strike the deceased on the buttocks with the handle of a hammer, yet the medical evidence demonstrated that the fatal injuries were confined to the head. PW3's evidence neither reconciled that inconsistency nor gave a coherent account of the alleged assault, his testimony having shifted from stating that he had not witnessed the assault to claiming that he had seen it without identifying when, where or how it occurred. The recovery of the hammer from the accused's house did not fill that evidential gap in the absence of any forensic evidence connecting it to the injuries. Moreover, the prosecution led no evidence establishing when the fatal head injuries were inflicted, leaving unresolved whether they were sustained during the assault alleged by PW1, the unspecified assault later asserted by PW3, or at some other time altogether. The evidence therefore left unanswered the central question of who inflicted the fatal injuries.
28. The prosecution bore the burden of proving beyond reasonable doubt that it was the accused who caused the deceased's death. No witness testified to having seen the accused inflict the fatal head injuries, the medical evidence did not support the account given by PW1, PW3's evidence remained contradictory, and the testimony of the child's mother, upon which the investigating officer's suspicions were founded, was never placed before the Court. What ultimately remains is suspicion that the accused may have been responsible for the deceased's death. As the Court of Appeal held in Sawe v Republic [2003] KLR 364, suspicion, however strong, cannot provide the basis for inferring guilt and cannot found a conviction in a criminal case. The prosecution therefore failed to discharge the burden of proving beyond reasonable doubt that it was the accused who inflicted the fatal injuries that caused the deceased's death.
29. Having found that the prosecution failed to prove beyond reasonable doubt that it was the accused who inflicted the fatal injuries sustained by the deceased, it becomes unnecessary to consider whether malice aforethought was established. That issue can only arise once it has first been proved that the accused committed the unlawful act that caused the deceased's death.
30. Accordingly, I find that the prosecution failed to prove the charge of murder contrary to sections 203 and 204 of the Penal Code beyond reasonable doubt. The accused, Samuel Okskos Agwanda, is hereby found not guilty and is acquitted under section 322(1) of the Criminal Procedure Code. He shall be released forthwith unless otherwise lawfully held.