REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL CASE NO. E050 OF 2023
REPUBLIC……………………………………………….……PROSECUTION
VERSUS
SWEDEN KIPSANG CHEBONYA …….…………………...…….ACCUSED
JUDGEMENT
1. The Accused person herein, SWEDEN KIPSANG CHEBONYA, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars were that on the 11th day of December 2023, at Makutano village in Kopsiro Location, Kopsiro Sub-County, within Bungoma County, murdered COLLINS CHEBONYA.
2. The Accused person denied the charge and Prosecution presented Seven (7) witness in support of its case. The defence is represented by Mr. Makokha.
3. At the close of the parties’ cases, the Prosecution noted that the State did not intend to file any final written submissions. The Defence on the other hand, did not file any written submissions despite declaring their intentions to do so.
4. This being a charge of murder contrary to Section 203 as read with Section 204 of the penal Code, the following ingredients should be proved by the Prosecution beyond reasonable doubt;
i. the death of the deceased and the cause of that death;
ii. that the accused committed the unlawful act which caused the death of the deceased; and,
iii. the accused had harboured malice aforethought
5. The above ingredients were buttressed by the Court in Republic vs. Mohammed Dadi Kokane & & 7 Others [2014] eKLR where the elements of the offence of murder were listed by M. Odero, J as follows: -
1) The fact of the death of the deceased.
2) The cause of such death.
3) Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly;
4) Proof that said unlawful act or omission was committed with malice aforethought.
6. On the death of the deceased, it is not disputed that the deceased died on 11th December 2023. I have carefully considered the evidence on record and it is not in dispute that the deceased died and that his death was not accidental because according to the post-mortem report, PW5, Dr. Graham Masika Makokha, established the cause of death as tension pneumohemothorax secondary to a stab wound by a sharp object. He produced in Court the post mortem form filled on 20th December 2023, marked as PEXH.1
7. As to whether the Accused person was responsible for his death, PW1, Florence Chemetes Chebonet, testified that the Accused person herein showed up at her door at 4.00 p.m. claiming that he had killed the deceased person herein. The Accused person requested that she accompanies him to where the Deceased person was and, on the way, she raised an alarm prompting the intervention of the villagers and on enquiry she reiterated the events as narrated to her by the Accused person herein. The villagers proceeded to conduct a body search on the Accused person and they retrieved a knife from his pockets. PW6, Godwin Khamala Waliama, testified that he was a Government Analyst based at Kisumu Government Chemist. According to him, he received exhibits from PW7, PC Onyango of DCI Cheptais, via Exhibit Memo dated 22nd December 2023, Exhibit 6, for purposes of examination. These included: A knife with metallic silverfish colour marked as “A”, a black jean trouser in a red carrier bag marked as “B”, blood samples of the deceased herein marked as “D”, a green polo t-shirt with a label ‘bucci’ kept in a blue carrier bag and marked as “E” and a buccal swab of the Accused person herein marked as “C”. He told the Court that the Accused person was physically presented to his office by PW7 in order to extract the buccal swab. According to him, his findings were that the DNA profile generated from the blood stain of the knife “A” and the t-shirt “E” are identical and matched the DNA profile generated from the reference sample of the deceased person and that the DNA profile generated from the blood stained trouser “B” is a mixed DNA profile belonging to the Accused and the deceased person herein. He produced the Analyst report dated 25th June 2024 as Exhibit 5. On cross-examination, he told the Court that the blood on the knife recovered from the Accused person herein belonged to the deceased person. In his defence hearing, the Accused person herein testified that maintained that the deceased was his uncle and that he did not kill him as alleged. He refuted the claims by PW1 that he confessed to her about killing the deceased herein and that he had disagreed with her over his piece of land which PW1 wanted for purposes of tilling. He told the Court that he knew nothing about the knife and insisted that he was at Makutano watching video at the time of the incident. I find the Accused person’s assertion that he does not know who stabbed the deceased perplexing as PW6 has clearly established before this Court that the knife that was recovered from his pockets and the trouser he wore at the time of his apprehension both bore the blood stains that belonged to the deceased linking him to the death. PW1 testified that the Accused person told her that he had stabbed the deceased person herein but she did not witness the incident.
8. Analyzing the above evidence that the Accused person and the deceased were together during his assault; and, that in the circumstances whatever the Accused person told PW1 was duly corroborated by independent evidence as tendered by PW6. There is therefore very strong suspicion that the Accused person committed the murder of the deceased and there is direct evidence linking him to the offence. I find the Accused person’s explanation and conduct inculpatory.
9. From the forgoing, it is evident that the totality of the evidence is considered, it becomes apparent that the Accused person failed to prove their innocence and, having failed to do so, an adverse inference must be drawn that he and no one else was the person who caused the death of the deceased as no other reasonable hypothesis can be drawn.
10. Since the bloodstains on the recovered panga and clothes had been established by the Government analyst to have emanated from the deceased the question to be asked is “How did the deceased’s blood end up on the clothes belonging to the Accused? The only irresistible conclusion is that the Accused must have come into contact with the deceased and point to a struggle with the deceased before he died. The injuries found on the deceased were so severe to rule out an accident. The recovered bloodstained knife was the murder weapon that had been used by the Accused to inflict the injuries on the deceased with reference to Exhibit 1. The manner in which the injuries were inflicted left no doubt that the Accused had an intention of inflicting serious injuries or grievous harm on the deceased that led to the death. These kinds of injuries could only have been intended to cause the death or grievous harm to the deceased. I find from the nature of injuries inflicted that indeed the accused had malice aforethought.
11. Section 206 of the Penal Code specifies that:
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
a. an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
b. knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.”
12. In the locus classicus case of Republic vs Tubere S/O Ochen [1945] 12 EACA 63 it was 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.
13. Consequently, given that the deceased died from tension pneumohemothorax occasioned by a stab wound by a sharp object and that the Accused person did not provide any explanation on how to absolve himself from the death of the deceased person, and considering that malice aforethought was established by the manner of assault. I find the Prosecution has proved the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code proved against the Accused beyond any reasonable doubt. I find him guilty as charged and convict him accordingly.
14. Sentence will be after records and mitigation.
Dated and delivered at Bungoma this 26th day of June 2025
M.S. SHARIFF
JUDGE
IN THE PRESENCE OF:
MS KIBET………………………………...FOR PROSECUTION
WANJALA HOLDING BRIEF FOR MR MAKOKHAFOR ACCUSED PERSON
PETER COURT ASSISTANT
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL CASE NO. E050 OF 2023
REPUBLIC……………………………………………….……PROSECUTION
VERSUS
SWEDEN KIPSANG CHEBONYA …….…………………...…….ACCUSED
JUDGEMENT
1. The Accused person herein, SWEDEN KIPSANG CHEBONYA, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars were that on the 11th day of December 2023, at Makutano village in Kopsiro Location, Kopsiro Sub-County, within Bungoma County, murdered COLLINS CHEBONYA.
2. The Accused person denied the charge and Prosecution presented Seven (7) witness in support of its case. The defence is represented by Mr. Makokha.
3. At the close of the parties’ cases, the Prosecution noted that the State did not intend to file any final written submissions. The Defence on the other hand, did not file any written submissions despite declaring their intentions to do so.
4. This being a charge of murder contrary to Section 203 as read with Section 204 of the penal Code, the following ingredients should be proved by the Prosecution beyond reasonable doubt;
i. the death of the deceased and the cause of that death;
ii. that the accused committed the unlawful act which caused the death of the deceased; and,
iii. the accused had harboured malice aforethought
5. The above ingredients were buttressed by the Court in Republic vs. Mohammed Dadi Kokane & & 7 Others [2014] eKLR where the elements of the offence of murder were listed by M. Odero, J as follows: -
1) The fact of the death of the deceased.
2) The cause of such death.
3) Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly;
4) Proof that said unlawful act or omission was committed with malice aforethought.
6. On the death of the deceased, it is not disputed that the deceased died on 11th December 2023. I have carefully considered the evidence on record and it is not in dispute that the deceased died and that his death was not accidental because according to the post-mortem report, PW5, Dr. Graham Masika Makokha, established the cause of death as tension pneumohemothorax secondary to a stab wound by a sharp object. He produced in Court the post mortem form filled on 20th December 2023, marked as PEXH.1
7. As to whether the Accused person was responsible for his death, PW1, Florence Chemetes Chebonet, testified that the Accused person herein showed up at her door at 4.00 p.m. claiming that he had killed the deceased person herein. The Accused person requested that she accompanies him to where the Deceased person was and, on the way, she raised an alarm prompting the intervention of the villagers and on enquiry she reiterated the events as narrated to her by the Accused person herein. The villagers proceeded to conduct a body search on the Accused person and they retrieved a knife from his pockets. PW6, Godwin Khamala Waliama, testified that he was a Government Analyst based at Kisumu Government Chemist. According to him, he received exhibits from PW7, PC Onyango of DCI Cheptais, via Exhibit Memo dated 22nd December 2023, Exhibit 6, for purposes of examination. These included: A knife with metallic silverfish colour marked as “A”, a black jean trouser in a red carrier bag marked as “B”, blood samples of the deceased herein marked as “D”, a green polo t-shirt with a label ‘bucci’ kept in a blue carrier bag and marked as “E” and a buccal swab of the Accused person herein marked as “C”. He told the Court that the Accused person was physically presented to his office by PW7 in order to extract the buccal swab. According to him, his findings were that the DNA profile generated from the blood stain of the knife “A” and the t-shirt “E” are identical and matched the DNA profile generated from the reference sample of the deceased person and that the DNA profile generated from the blood stained trouser “B” is a mixed DNA profile belonging to the Accused and the deceased person herein. He produced the Analyst report dated 25th June 2024 as Exhibit 5. On cross-examination, he told the Court that the blood on the knife recovered from the Accused person herein belonged to the deceased person. In his defence hearing, the Accused person herein testified that maintained that the deceased was his uncle and that he did not kill him as alleged. He refuted the claims by PW1 that he confessed to her about killing the deceased herein and that he had disagreed with her over his piece of land which PW1 wanted for purposes of tilling. He told the Court that he knew nothing about the knife and insisted that he was at Makutano watching video at the time of the incident. I find the Accused person’s assertion that he does not know who stabbed the deceased perplexing as PW6 has clearly established before this Court that the knife that was recovered from his pockets and the trouser he wore at the time of his apprehension both bore the blood stains that belonged to the deceased linking him to the death. PW1 testified that the Accused person told her that he had stabbed the deceased person herein but she did not witness the incident.
8. Analyzing the above evidence that the Accused person and the deceased were together during his assault; and, that in the circumstances whatever the Accused person told PW1 was duly corroborated by independent evidence as tendered by PW6. There is therefore very strong suspicion that the Accused person committed the murder of the deceased and there is direct evidence linking him to the offence. I find the Accused person’s explanation and conduct inculpatory.
9. From the forgoing, it is evident that the totality of the evidence is considered, it becomes apparent that the Accused person failed to prove their innocence and, having failed to do so, an adverse inference must be drawn that he and no one else was the person who caused the death of the deceased as no other reasonable hypothesis can be drawn.
10. Since the bloodstains on the recovered panga and clothes had been established by the Government analyst to have emanated from the deceased the question to be asked is “How did the deceased’s blood end up on the clothes belonging to the Accused? The only irresistible conclusion is that the Accused must have come into contact with the deceased and point to a struggle with the deceased before he died. The injuries found on the deceased were so severe to rule out an accident. The recovered bloodstained knife was the murder weapon that had been used by the Accused to inflict the injuries on the deceased with reference to Exhibit 1. The manner in which the injuries were inflicted left no doubt that the Accused had an intention of inflicting serious injuries or grievous harm on the deceased that led to the death. These kinds of injuries could only have been intended to cause the death or grievous harm to the deceased. I find from the nature of injuries inflicted that indeed the accused had malice aforethought.
11. Section 206 of the Penal Code specifies that:
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
a. an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
b. knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.”
12. In the locus classicus case of Republic vs Tubere S/O Ochen [1945] 12 EACA 63 it was 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.
13. Consequently, given that the deceased died from tension pneumohemothorax occasioned by a stab wound by a sharp object and that the Accused person did not provide any explanation on how to absolve himself from the death of the deceased person, and considering that malice aforethought was established by the manner of assault. I find the Prosecution has proved the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code proved against the Accused beyond any reasonable doubt. I find him guilty as charged and convict him accordingly.
14. Sentence will be after records and mitigation.
Dated and delivered at Bungoma this 26th day of June 2025
M.S. SHARIFF
JUDGE
IN THE PRESENCE OF:
MS KIBET………………………………...FOR PROSECUTION
WANJALA HOLDING BRIEF FOR MR MAKOKHAFOR ACCUSED PERSON
PETER COURT ASSISTANT