REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL CASE (MURDER) NO. E031 OF 2024
REPUBLIC…………………………………………….…….PROSECUTION
VERSUS
EDWIN WANYONYI LUNGETI……………………….……1ST ACCUSED
VITALIS BARASA JUMA……….……………………………2ND ACCUSED
JUDGEMENT
A. Introduction
1. The accused persons herein EDWIN WANYONYI LUNGETI and VITALIS BARASA JUMA are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that on the 7th day of June 2024 at Siritanyi village, in Bungoma South Sub-County within Bungoma County, jointly murdered STEPHEN WAMALWA LUNGETI alias CAMILI.
2. The accused persons pleaded not guilty to the charge. The Prosecution called thirteen (13) witnesses in support of its case.
B. Prosecution’s Case
3. PWI was Patrick Wanyonyi Lungeti, who testified that both the 1st accused person and the deceased herein are his sons while the 2nd accused person is his nephew. He recalled on 7th June 2024 at 4.00 p.m. he was informed by his wife that his son had committed suicide when the 1st accused person confronted his wife demanding to know the circumstances surrounding the demise of the deceased herein. They proceeded to search for the deceased and found him hanging from a tree with a rope tied round his neck. On cross-examination, he told the Court that both the accused persons and the deceased herein are family members and he has never witnessed any squabbles and was not at home when the incident occurred wherefore, he had no knowledge of the cause of death of the deceased. He stated that his wife claimed that the deceased had committed suicide. On re-examination, he told the Court that he had not seen the deceased for about three (3) months as he was in Kisumu on a construction job and he could not tell if there was any discord between him and the accused persons.
4. PW2, Dominic Wafula Wanyonyi, testified that the deceased herein is his brother and that on 7th June 2024 at 7:00 p.m. he found his body lying in a nearby bush. According to him, earlier on in the day they both went to a construction job only for him to disappear and when he returned home at 7:00 p.m. he found a large crowd and police officers. He saw the deceased person sitting under a small guava tree with a rope tied on his neck and fixed on the tree. He told the Court that the 1st accused person is his eldest brother and the 2nd accused person is his cousin. He also stated that there were no differences between them and he did not see them during the day. On cross-examination, he told the Court that they are all family members and they lived peacefully, thus the motive of death is unclear. He told the Court that he did not witness the incident that led to the demise of the deceased as he only arrived home at 7.00 p.m. He told the Court that the deceased had disappeared from home for about one year and had only returned for three days prior to his demise. He concurred that the deceased was a known thief in the area, but could not tell if the 1st accused person was at the construction site or the 2nd accused person was fetching water at a nearby institution. On re-examination, he reiterated that the deceased used to collect anything he came across and that he did not witness the incident.
5. PW3, Wycliff Wanjala Juma, testified that on 7th June 2024, he received customers who requested to be ferried to Mareli area: they were the deceased person, PW2 and Wafula. He told the court that when he returned home in the evening, he had wails. He met with PW1 and they proceeded to the scene whereat they found the body of the deceased person in a sitting position with a small rope tied around his neck, but he was not hanging from the guava tree.
6. On cross-examination, PW3 told the Court that he knew both the accused persons as they had grown up together and that the accused persons and the deceased lived peacefully. He told the Court that he did not meet the accused persons on that day he ferried the deceased to a construction site and that he received information that the deceased had hanged himself. On re-examination, he told the Court that he was not sharing a room with the accused persons and he could not testify to whether they had differed with the deceased person.
7. PW4 Justus Wafula Wangila, testified that on 7th June 2024 at 6.00 a.m. he saw the deceased person in the company of his brother PW2 and PW3 who informed him that they were heading for work at Mareli area. He told the Court that he joined them on their motorcycle and later they broke off and he went home as he was not amongst the selected workers at the construction site. He told the Court that it was later in the evening that he established that the deceased had been found dead, but he never visited the scene. He told the Court that the accused persons are well known to him and that he does not have a problem with them. On cross-examination, he told the Court that the accused persons are well know to him and he has not heard any squabbles between them and the deceased person. He told the Court that both the accused persons were not at the construction site at Mareli area as he only left the deceased and his brother there and could not tell if the deceased hanged himself. Finally, he testified that the deceased had not been in the area for a long period of time and that he had heard that he was a thief.
8. PW5, Dr. Elly Kiplimo Kosgei, based at Bungoma County Referral Hospital testified that he had conducted the postmortem examination on the body of the deceased person and had compiled the post mortem report dated 10th June 2024. It was his testimony that on external examination of the body of the deceased he noted rigor mortis, peripheral cyanosis (blue coloration of the nails), and a rope mark on anterior neck. On internal examination he observed a fracture of the thyroid bone and he opined that the cause of death was as a result of severe asphyxia (loss of air) due to strangulation. That the cause of death could be have been suicide with the mark on the deceased person’s neck being indicative of strangulation. This witness produced the post mortem report as PEXH 4.
9. On cross-examination, PW5 maintained that told the Court the cause of death of the deceased was severe asphyxia due to strangulation. He could not tell whether the same was self-inflicted or not. On re-examination, he told the Court that he has no duty to have specific persons present during the autopsy other than close family members who assist in identification of the cadaver and give the history of the body.
10. PW6, No. 11083 P.C Gregory Monari, a crime scene investigator appointed by the Director of Public Prosecution vide gazette Notice NO 1145 dated 1.1.2923, and attached to DCI Bungoma identified the photographs of the scene (marked PMFI-1-2 (a) (9 photographs) which were used to document the scene. He testified that on 7.6.2024 at 9 pm he had visited a scene of suspected suicide at Siritanyi area village Tendeti while in the company of detective Tom Ongaro and other police officers from Bungoma police station. He took 9 photographs :-
i. Photos 1 & 2 – General view of compound where deceased resided
ii. Photos 3 – 4 – Clos up view of deceased
iii. Photos 5-6 – extreme close up of deceased face.
iv. Photo – Extreme close up of neck of deceased
v. Photo 8 – close up view of the note on the branch.
vi. Photo 9 – Close up view of deceased body.
11. And he also drew a sketch of the while scene and the same was not drawn to scale. He produced the photographs as P Exhibits 2 A, a Certificate of photographic evidence as P Exhibit 2 B and sketch map as P exhibit 5.
12. PW6 told the Court that they found the deceased seated on the ground and his body was place on the guava branch (PMFI-1). That upon receiving a flash disc with scene photographs, he processed the photos (9) and certified them. These photographs were taken by the investigating officer after visiting the scene. He produced the photographs as P Exhibits No. 6 and the exhibit memo as P Exhibit 6(b) and the certificate as to photographic print as P Exhibit 6 (c).
On cross-examination, Pw6 said that he had visited the scene on 7th June 2024, at 9.00 p.m. he was not aware of the time of commission of the crime and he noted that the deceased was tied to the tree. He told the Court that he could not testified to whether there was any interference with the scene as the same was not secured from 4 p.m. to 9 p.m. Further that the photographs PEXH. 2(a) showed that the neck of the deceased had been tied with a rope but, he was not hanging from the tree.
13. PW7, Bernard Wafula Nabalia Nabafu, testified that on the morning of the date of the incident he had assisted PW1 with his bicycle to attend a funeral which he returned the same day by 5.00 p.m. That before PW1 left his residence he mentioned that his wife (PW1’s) had earlier on told him the Kamili had died.
14. PW8, Simon Sikama Mutina, testified that on 28th June 2024, while seated with PW1 at his compound, he saw the CID Bungoma officers approaching them with one Triza, a daughter of the deceased in tow. After greeting them, the officers introduced themselves and they started to interrogate Triza and each time the Triza pointed to a specific area, the officers would take photographs of the area. Triza later told them that she had witnessed the incident that led to the demise of her father as she was behind the house and she took them to the scene which was at the guava tree. On cross-examination, he told the Court that he is related to the accused persons and he not aware of any disagreements between them and the deceased herein and that he only witnessed the investigations.
15. PW9, William Obwar, testified that on 28th June 2024, he witnessed Triza narrate the events that lead to the deceased person’s demise to the DCI officers and that he was present when the photograph produced as PEXH 6 were taken.
16. PW10, Joyce Anguche Otengo, a collegue of the accused at Shiloo Mentorship Academy School at Siritanyi testified that she on 7th June 2024, the 2nd accused person reported to work and fetched water but she did not find him at work.
17. After brief voire dire, this Court established that a child witness was intelligent and understood the need to be truthful enough to allow her render her sworn testimony as PW11.
18. PW11, (protected witness), testified that on 7th June 2024 after returning home from school she found the deceased person being strangled by the two accused persons and her grandmother in the house (Isima) of the1st accused person. That she had positioned herself at the back window of the 1st accused person’s house and she peep into the Isimba. It was her testimony that after struggling the deceased, the accused persons poured water on him to confirm whether he had died. They then took him to a nearby forest whereat they placed him under a tree and covered his body with branches and then left. She told the Court that she had stealthily followed them to see where they were taking the deceased person to. It was after their exit that she left the scene. She was able to do an identification of the tree branch they placed the deceased under (MFI-1). On cross-examination, she told the Court on the day of the incident she had gone home for lunch at 1.00 p.m. and return home at 7 p.m. when she found the accused persons with grandmother, but her grandfather was not at home. She told the Court that the deceased had not disappeared for 3 months, but he had gone to work and that on that date of the incident it rained at 5.00 p.m. while she was at the rear window and been rained on. She told the Court that in the evening the room can get dark, but it was not very dark and despite the house having no electricity she saw the incident happen in the isimba with two rooms. She told the Court the 1st accused person and the deceased usually disagreed, but she did not know the reason for the fighting. She testified that while witnessing the incident she did not scream, but she saw the accused persons strangle the deceased and she informed PW1 when he returned home and her paternal uncle Manu. On re-examination, she reiterated that she saw the accused persons and grandmother strangling the deceased person through the window with the aide of a bit of light from the window as the same was broken and this occurred at about 7.00 p.m.
19. PW12, No. 72205 Sgt. Edward Thuranira, testified that he is based at Siritanyi Patrol Base and on 7th June 2024 at 7.01 p.m. he received a report of death from PW1 herein and that the deceased’s body was discovered near the house. That he went to the scene with his colleagues and found the body of the deceased in a sitting position with a nylon rope tied to a guava tree ( MFI-1) that was not able to support the weight of a hen let alone a human being. They liaised with DC1 Bungoma who visited the scene and took photos in his presence. He identified in Court the photos taken in his presence as the ones produced in Court as PEXH 2A. The body was in a sitting position and supported by a thin guava tree, the nylon rope was loosely tied on his neck.
20. PW12 told this Court that on 17th June 2024, he received information from PW1 indicting that his son, 1st accused person, had confessed to killing the deceased and was then being beaten by a mob wherefore this witness and Police Constable Ombasa went and rescued him but the mob followed them to the police station. Later on, a daughter of the deceased went to the station and stated that she had information about the incident. That upon interrogating the young girl, he established that the deceased was killed by two people; Edwin Wanyonyi and Vitalis, the accused persons herein. That upon inquiring on how to trace the 2nd accused person he was told that he was amongst the crowd that had followed him back to the station. He proceeded to apprehend the 2nd accused person who denied his involvement, and he later handed the accused persons to the DCI. On cross-examination, he told the Court that he was not aware if the deceased had gone missing and that the 1st accused person had confessed to killing the deceased. Further, he told the Court that they visited the scene at 7.15 p.m. and was not informed of the exact time of commission of the crime and he maintained that PW11 told him that the deceased was strangled by the two accused persons while they were drinking together.
21. PW13, Cpt. Tom Ogalo, based at DCI Bungoma South testified that on 7th June 2024 his boss had instructed him and his colleagues to attend to a report of death at Siritani. That they visited that scene and found the body of the deceased person herein with a rope on his neck tied to a guava tree, seated with his legs stretched out. (PW6) took photographs of the scene. They then removed the body from the scene and took it to the mortuary. He attended the postmortem examination. That he later started interrogating the witnesses. He told the Court that PW11 identified the site where the deceased was killed which was the bedroom of an isimba and she showed them where she had stood as she witnessed the grotesque act been committed. He told the Court that PW11 took them to the scene where the body was later tied up to a guava tree and showed them where she was watching everything from (PEXH6). At the conclusion of the post mortem report the rope was handed over to the DCI which he produced in Court as PEXH 3 and he also produced the guava tree as PEXH 1. He identified the accused persons he had apprehended as the ones in the dock.
22. On cross-examination, PW13 told the Court that when they visited the scene there were police officers at the scene (PW12). That a report of death was made at Siritanyi Police Post and the reportee was not aware of the time the incident occurred. He maintained that the evidence of PW11 was that of an eye witness and it placed the accused persons at the scene of the crime, and that none of the accused persons confessed to the crime. On re-examination, he told the Court that he was not present when the witness was witnessing the crime.
23. After close of the Prosecution’s case the Court found that the accused persons herein had a case to answer. They were placed on their defence and they opted to give sworn testimonies.
C. Defence Case
24. DW1 Edwin Wanyonyi Lungeti, the 1st accused person herein testified that the deceased herein was his brother. According to him he was not involved in his brother’s demise as on 7th June 2024, he left the house of Moses Wabomba for Kanduyi to do some construction work and was there until 5 p.m. After work, he returned to Moses’s house to fetch water to have his bath and that when he heard noises from the direction of their home prompting him to investigate the same wherein he found a large crowd talking about how the deceased had committed suicide. He went to their farm which was in a forest and found the deceased seated down and he had a rope. He told the Court that while in the company of PW1 they proceeded to Siritanyi Police Post to lodge a report and he left PW1 there to head back to Moses Wabomba’s house, and that he was later arrested after 2 weeks.
25. It was his testimony that PEXH 6 is the farm of PW1 and that PW1 resides with his mother and grandchildren in the house and that PW2 and himself did not reside in the same house. He beseeched this Court to investigate the murder of the deceased and he maintained that he was not involved in the incident.
26. On cross-examination, he told the Court that on 7th June 2024, he was at Kanduyi the whole day and that he was under the employment of one Dickson Msoda who was the engineer at the site with about 800 workers and that Mr. Msoda and Anthony Wafula were with him at the site and they saw him at the site. He maintained that he had returned home at 5.00 p.m. and that was when he received information of the suicide of the deceased. He maintained that the body of the deceased was seated down with his legs stretched in front of him and he had a rope on his neck tied to a tree equivalent to the thickness of his hand and the said tree could support the weight of the deceased. He maintained that he is was not aware of what happened to the deceased and that the distance from the house of Wabomba to the scene was about 500 meters and a 5-mintue walk. He told the Court that he knew PW11 as she is a daughter of the deceased herein and she resides at their home and that he has no grudge with her and that PW11 framed him.
27. On re-examination, he told the Court that he got home at 5.00 p.m from work and that was when he learnt about the suicide. He reiterated that the distance between Wabomba’s house and their home is a 5-minute walk, and that he did not know how the deceased met his death. He maintained that on the date of the incident he had never met PW11 at home.
28. DW2, Vitalis Barasa Juma, testified that he used to work as a casual worker at Shiro Academy for 3 years and that the deceased herein was his cousin, and that prior to his demise there existed no discord between them. He denied any involvement in the demise of the deceased herein and told the Court that on 7th June 20204, he reported to work at 5.00 a.m. to fetch water for the students until 8.00 a.m. and then he proceeded to Linet Wesonga, the owner of the school to do some casual work; feeding cattle and only retired at 6.00 p.m. He told the Court that his home is 100 meters from the home of PW1. According to him, he only learnt of the demise of the deceased herein on 8th June 2024, from the 1st accused person while he was doing some causal work for the PW1, which was building a house for the deceased herein. He told the Court that he inquired from PW1 whether the deceased was back home given that he fled after stealing a bicycle and PW1 was hesitant to respond.
29. On cross-examination, he told the Court that on 7th June 2024, he was at the school and that the students and teachers saw him, but all of the teachers were on transfer. He maintained that he left madam Linet’s house at 6.00 p.m. and he went home, and that the distance between the scene and his house was about 300 meters which was about a10-minute walk. He maintained that he did not murder the deceased herein and that he held not grudges against PW11 and he could not tell whether PW11 was coached to implicate him.
30. On re-examination, he reiterated that he knew the people at the school by facial appearance and that he used 3 minutes to walk from his house to that of PW1 and that PW11 lied against him.
31. After close of the defence case, parties were directed to file and exchange submissions. It is only submissions by the defence which are on record. The Prosecution opted to rely on the evidence on record.
D. Defence submissions
32. In the submissions, the defence advocate said that the issues for determination were whether the prosecution proved murder beyond reasonable doubt and what orders the court should grant.
33. According to counsel, the standard of proof in criminal cases is "beyond reasonable doubt." The Prosecution must provide convincing evidence to establish guilt. He submitted that the Prosecution claims the deceased died from strangulation, supported by a postmortem report. However, the defense argues that the evidence is insufficient and lacks corroboration.
34. The defence submitted that the accused persons were not at the scene and provided alibi evidence. Furthet that witnesses testified that the deceased had a troubled relationship with the community and not the accused persons. On the issue of identification, the defense emphasizes the lack of positive identification of the accused persons as the perpetrators. The defence maintain that the evidence of the key witness was unreliable.
35. The defence submitted that the accused persons provided alibi evidence, stating they were elsewhere during the time of the murder and the Prosecution failed to disprove the alibi.
36. On malice aforethought, the defence, argued that since the Prosecution did not prove the involvement of the accused persons, malice aforethought is irrelevant.
37. In conclusion, the defence posit that the Prosecution's case was based on speculation and insufficient evidence. They urge the Court to acquit the accused due to lack of proof beyond reasonable doubt.
38. The defence relied on the following cases in their written submissions:
a. Republic vs. Ismail Hussein Ibrahim (2018) eKLR: This case was cited to emphasize the principle of the burden and standard of proof in criminal cases, which is "proof beyond reasonable doubt."
b. Victor Mwendwa Mulinge vs. Republic (2014) eKLR: This case was referenced to highlight the principle that when an accused person raises an alibi defense, the burden of proving its falsity lies with the prosecution.
c. Antony Ndegwa Ngari vs. Republic (2014) eKLR: This case was cited to outline the three ingredients of the offence of murder: (a) the death of the deceased and its cause, (b) that the accused committed the unlawful act which caused the death, and (c) that the accused had malice aforethought.
d. Eric Otieno Meda vs. Republic (2019) eKLR: This case was referred to support the argument that the identification of the accused persons as perpetrators must be proved beyond reasonable doubt.
e. Sawe vs. Republic (2003) KLR 364: This case was cited to assert that suspicion, no matter how strong, cannot be the basis for inferring guilt, which must be proven beyond reasonable doubt.
E. Analysis and determination
39. Upon consideration of the evidence of 13 Prosecution witnesses and the sworn testimonies of the accused persons, this Court has to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the Prosecution against the accused persons.
40. Section 203 and 204 of the Penal Code under which the accused persons are charged provide for the offence of murder and the punishment therefor. These statutory provisions obligate the Prosecution to prove beyond reasonable doubt that the accused persons, with malice aforethought, through unlawfully act or omission caused the death of the deceased.
41. The above cited sections provide as follows:
“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
204. Any person who is convicted of murder shall be sentenced to death.”
42. The elements of the offence of murder that must be proved by the Prosecution beyond reasonable doubt were outlined in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR as follows: -
i. That the deceased died;
ii. That the death was caused by an unlawful act or omission;
iii. That the accused person directly or indirectly participated in the commission of the alleged offence; and
iv. That there was malice aforethought.
(a) The fact of death of the deceased
43. The postmortem form PEXH 4 filled by PW5, Dr. Elly Kiplimo Kosgei, on 10th June 2024, reveals that the deceased died of severe asphyxia due to strangulation. I find that the Prosecution proved this ingredient of the offence beyond reasonable doubt.
(b) Death was caused by an unlawful act or omission
44. The evidence of the doctor was that the deceased died as a result of severe asphyxia due to strangulation. This could have been as a result of hanging or even strangulation but the circumstances of this case coupled with other injuries on the body of the deceased point to a 3rd party having inflicted injuries that led to the death of the deceased. This Court therefore finds that the death of the deceased was not as a result of self-inflicted injuries.
(c) Proof that the accused persons committed the unlawful act which caused the death of the deceased
45. PW11 identified accused persons and her grandmother as the assailants that strangled the deceased herein and the heinous act occurred at the house (Isimba) of the 1st accused person. This witness, was categorical that she witnessed the acts of the accused persons as she peeped through a back window. She then trailed the accused persons into the forest where they positioned the body by a guava plant and tied a rope on his neck then covered the body with twigs. PW11 said that the incident happened at 7 p.m and room was not very dark and light was also streaming from a broken window wherefore she positively identified the accused persons who are her paternal uncles. This witness informed her grandfather of the incident immediately upon his arrival at his house.
46. The Court of Appeal in Wamunga v. Republic [1989] KLR 424 emphasized that evidence of identification by a single witness must be carefully scrutinized to ensure that it is free from error. Similarly, in Nzaro v. Republic (1991) KAR 212, the Court held that such evidence must be absolutely watertight to justify a conviction. In this case, the circumstances of identification of the accused persons were favourable, as the incident occurred during evening hours, and PW11 had ample opportunity and lighting to observe the accused persons. Indeed, this was not even a case of identification of a stranger in difficult circumstances but one of recognition by a close relative.
47. In Anjononi vs Republic [1980] eKLR, it was stated by this Court that evidence of recognition of an assailant is more satisfactory, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or another. Much as the evidence of the identification and or recognition of the appellant was by a single witness, it was worth of belief and the trial court did not therefore err in believing and acting on it. It is also not lost on us that the trial Court appreciating the need to caution itself of the dangers of relying on the evidence of a single witness on matters identification.
48. Both accused persons raised alibi defences but did not call any witnesses to support their alibi. It is also instructive to note that these alibi defence were never brought to the attention of the prosecution during the pre-trial so as to accord the prosecution time to investigate the alibi. Further the alibi defence did not come out during cross examination of the prosecution witnesses. The question that this court must answer is whether the alibi defence dislodged the testimony of PW11. My answer to that question is in the negative for reasons that PW11, although a minor and a protected witness narrated the events that she had witnessed on the material evening with clarity and consistency which was unshaken upon cross examination. I have thus found her testimony as credible and reliable. The alibi defence were at best an afterthought.
49. The manner in which the deceased met his death was unlawful. The wounds sustained during the assault can properly be said be the cause of death. This death in question was not justified or excusable. The accused persons are therefore found to have committed the unlawful act that caused the death of the deceased.
(d) Malice aforethought
50. Having found that the Prosecution has proved the actus reus of the offence, the issue for determination is whether malice aforethought can be inferred.
51. The offence of murder is complete when, “malice aforethought” is established if, pursuant to Section 206 of the Penal Code evidence proves 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
[...truncated]
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL CASE (MURDER) NO. E031 OF 2024
REPUBLIC…………………………………………….…….PROSECUTION
VERSUS
EDWIN WANYONYI LUNGETI……………………….……1ST ACCUSED
VITALIS BARASA JUMA……….……………………………2ND ACCUSED
JUDGEMENT
A. Introduction
1. The accused persons herein EDWIN WANYONYI LUNGETI and VITALIS BARASA JUMA are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that on the 7th day of June 2024 at Siritanyi village, in Bungoma South Sub-County within Bungoma County, jointly murdered STEPHEN WAMALWA LUNGETI alias CAMILI.
2. The accused persons pleaded not guilty to the charge. The Prosecution called thirteen (13) witnesses in support of its case.
B. Prosecution’s Case
3. PWI was Patrick Wanyonyi Lungeti, who testified that both the 1st accused person and the deceased herein are his sons while the 2nd accused person is his nephew. He recalled on 7th June 2024 at 4.00 p.m. he was informed by his wife that his son had committed suicide when the 1st accused person confronted his wife demanding to know the circumstances surrounding the demise of the deceased herein. They proceeded to search for the deceased and found him hanging from a tree with a rope tied round his neck. On cross-examination, he told the Court that both the accused persons and the deceased herein are family members and he has never witnessed any squabbles and was not at home when the incident occurred wherefore, he had no knowledge of the cause of death of the deceased. He stated that his wife claimed that the deceased had committed suicide. On re-examination, he told the Court that he had not seen the deceased for about three (3) months as he was in Kisumu on a construction job and he could not tell if there was any discord between him and the accused persons.
4. PW2, Dominic Wafula Wanyonyi, testified that the deceased herein is his brother and that on 7th June 2024 at 7:00 p.m. he found his body lying in a nearby bush. According to him, earlier on in the day they both went to a construction job only for him to disappear and when he returned home at 7:00 p.m. he found a large crowd and police officers. He saw the deceased person sitting under a small guava tree with a rope tied on his neck and fixed on the tree. He told the Court that the 1st accused person is his eldest brother and the 2nd accused person is his cousin. He also stated that there were no differences between them and he did not see them during the day. On cross-examination, he told the Court that they are all family members and they lived peacefully, thus the motive of death is unclear. He told the Court that he did not witness the incident that led to the demise of the deceased as he only arrived home at 7.00 p.m. He told the Court that the deceased had disappeared from home for about one year and had only returned for three days prior to his demise. He concurred that the deceased was a known thief in the area, but could not tell if the 1st accused person was at the construction site or the 2nd accused person was fetching water at a nearby institution. On re-examination, he reiterated that the deceased used to collect anything he came across and that he did not witness the incident.
5. PW3, Wycliff Wanjala Juma, testified that on 7th June 2024, he received customers who requested to be ferried to Mareli area: they were the deceased person, PW2 and Wafula. He told the court that when he returned home in the evening, he had wails. He met with PW1 and they proceeded to the scene whereat they found the body of the deceased person in a sitting position with a small rope tied around his neck, but he was not hanging from the guava tree.
6. On cross-examination, PW3 told the Court that he knew both the accused persons as they had grown up together and that the accused persons and the deceased lived peacefully. He told the Court that he did not meet the accused persons on that day he ferried the deceased to a construction site and that he received information that the deceased had hanged himself. On re-examination, he told the Court that he was not sharing a room with the accused persons and he could not testify to whether they had differed with the deceased person.
7. PW4 Justus Wafula Wangila, testified that on 7th June 2024 at 6.00 a.m. he saw the deceased person in the company of his brother PW2 and PW3 who informed him that they were heading for work at Mareli area. He told the Court that he joined them on their motorcycle and later they broke off and he went home as he was not amongst the selected workers at the construction site. He told the Court that it was later in the evening that he established that the deceased had been found dead, but he never visited the scene. He told the Court that the accused persons are well known to him and that he does not have a problem with them. On cross-examination, he told the Court that the accused persons are well know to him and he has not heard any squabbles between them and the deceased person. He told the Court that both the accused persons were not at the construction site at Mareli area as he only left the deceased and his brother there and could not tell if the deceased hanged himself. Finally, he testified that the deceased had not been in the area for a long period of time and that he had heard that he was a thief.
8. PW5, Dr. Elly Kiplimo Kosgei, based at Bungoma County Referral Hospital testified that he had conducted the postmortem examination on the body of the deceased person and had compiled the post mortem report dated 10th June 2024. It was his testimony that on external examination of the body of the deceased he noted rigor mortis, peripheral cyanosis (blue coloration of the nails), and a rope mark on anterior neck. On internal examination he observed a fracture of the thyroid bone and he opined that the cause of death was as a result of severe asphyxia (loss of air) due to strangulation. That the cause of death could be have been suicide with the mark on the deceased person’s neck being indicative of strangulation. This witness produced the post mortem report as PEXH 4.
9. On cross-examination, PW5 maintained that told the Court the cause of death of the deceased was severe asphyxia due to strangulation. He could not tell whether the same was self-inflicted or not. On re-examination, he told the Court that he has no duty to have specific persons present during the autopsy other than close family members who assist in identification of the cadaver and give the history of the body.
10. PW6, No. 11083 P.C Gregory Monari, a crime scene investigator appointed by the Director of Public Prosecution vide gazette Notice NO 1145 dated 1.1.2923, and attached to DCI Bungoma identified the photographs of the scene (marked PMFI-1-2 (a) (9 photographs) which were used to document the scene. He testified that on 7.6.2024 at 9 pm he had visited a scene of suspected suicide at Siritanyi area village Tendeti while in the company of detective Tom Ongaro and other police officers from Bungoma police station. He took 9 photographs :-
i. Photos 1 & 2 – General view of compound where deceased resided
ii. Photos 3 – 4 – Clos up view of deceased
iii. Photos 5-6 – extreme close up of deceased face.
iv. Photo – Extreme close up of neck of deceased
v. Photo 8 – close up view of the note on the branch.
vi. Photo 9 – Close up view of deceased body.
11. And he also drew a sketch of the while scene and the same was not drawn to scale. He produced the photographs as P Exhibits 2 A, a Certificate of photographic evidence as P Exhibit 2 B and sketch map as P exhibit 5.
12. PW6 told the Court that they found the deceased seated on the ground and his body was place on the guava branch (PMFI-1). That upon receiving a flash disc with scene photographs, he processed the photos (9) and certified them. These photographs were taken by the investigating officer after visiting the scene. He produced the photographs as P Exhibits No. 6 and the exhibit memo as P Exhibit 6(b) and the certificate as to photographic print as P Exhibit 6 (c).
On cross-examination, Pw6 said that he had visited the scene on 7th June 2024, at 9.00 p.m. he was not aware of the time of commission of the crime and he noted that the deceased was tied to the tree. He told the Court that he could not testified to whether there was any interference with the scene as the same was not secured from 4 p.m. to 9 p.m. Further that the photographs PEXH. 2(a) showed that the neck of the deceased had been tied with a rope but, he was not hanging from the tree.
13. PW7, Bernard Wafula Nabalia Nabafu, testified that on the morning of the date of the incident he had assisted PW1 with his bicycle to attend a funeral which he returned the same day by 5.00 p.m. That before PW1 left his residence he mentioned that his wife (PW1’s) had earlier on told him the Kamili had died.
14. PW8, Simon Sikama Mutina, testified that on 28th June 2024, while seated with PW1 at his compound, he saw the CID Bungoma officers approaching them with one Triza, a daughter of the deceased in tow. After greeting them, the officers introduced themselves and they started to interrogate Triza and each time the Triza pointed to a specific area, the officers would take photographs of the area. Triza later told them that she had witnessed the incident that led to the demise of her father as she was behind the house and she took them to the scene which was at the guava tree. On cross-examination, he told the Court that he is related to the accused persons and he not aware of any disagreements between them and the deceased herein and that he only witnessed the investigations.
15. PW9, William Obwar, testified that on 28th June 2024, he witnessed Triza narrate the events that lead to the deceased person’s demise to the DCI officers and that he was present when the photograph produced as PEXH 6 were taken.
16. PW10, Joyce Anguche Otengo, a collegue of the accused at Shiloo Mentorship Academy School at Siritanyi testified that she on 7th June 2024, the 2nd accused person reported to work and fetched water but she did not find him at work.
17. After brief voire dire, this Court established that a child witness was intelligent and understood the need to be truthful enough to allow her render her sworn testimony as PW11.
18. PW11, (protected witness), testified that on 7th June 2024 after returning home from school she found the deceased person being strangled by the two accused persons and her grandmother in the house (Isima) of the1st accused person. That she had positioned herself at the back window of the 1st accused person’s house and she peep into the Isimba. It was her testimony that after struggling the deceased, the accused persons poured water on him to confirm whether he had died. They then took him to a nearby forest whereat they placed him under a tree and covered his body with branches and then left. She told the Court that she had stealthily followed them to see where they were taking the deceased person to. It was after their exit that she left the scene. She was able to do an identification of the tree branch they placed the deceased under (MFI-1). On cross-examination, she told the Court on the day of the incident she had gone home for lunch at 1.00 p.m. and return home at 7 p.m. when she found the accused persons with grandmother, but her grandfather was not at home. She told the Court that the deceased had not disappeared for 3 months, but he had gone to work and that on that date of the incident it rained at 5.00 p.m. while she was at the rear window and been rained on. She told the Court that in the evening the room can get dark, but it was not very dark and despite the house having no electricity she saw the incident happen in the isimba with two rooms. She told the Court the 1st accused person and the deceased usually disagreed, but she did not know the reason for the fighting. She testified that while witnessing the incident she did not scream, but she saw the accused persons strangle the deceased and she informed PW1 when he returned home and her paternal uncle Manu. On re-examination, she reiterated that she saw the accused persons and grandmother strangling the deceased person through the window with the aide of a bit of light from the window as the same was broken and this occurred at about 7.00 p.m.
19. PW12, No. 72205 Sgt. Edward Thuranira, testified that he is based at Siritanyi Patrol Base and on 7th June 2024 at 7.01 p.m. he received a report of death from PW1 herein and that the deceased’s body was discovered near the house. That he went to the scene with his colleagues and found the body of the deceased in a sitting position with a nylon rope tied to a guava tree ( MFI-1) that was not able to support the weight of a hen let alone a human being. They liaised with DC1 Bungoma who visited the scene and took photos in his presence. He identified in Court the photos taken in his presence as the ones produced in Court as PEXH 2A. The body was in a sitting position and supported by a thin guava tree, the nylon rope was loosely tied on his neck.
20. PW12 told this Court that on 17th June 2024, he received information from PW1 indicting that his son, 1st accused person, had confessed to killing the deceased and was then being beaten by a mob wherefore this witness and Police Constable Ombasa went and rescued him but the mob followed them to the police station. Later on, a daughter of the deceased went to the station and stated that she had information about the incident. That upon interrogating the young girl, he established that the deceased was killed by two people; Edwin Wanyonyi and Vitalis, the accused persons herein. That upon inquiring on how to trace the 2nd accused person he was told that he was amongst the crowd that had followed him back to the station. He proceeded to apprehend the 2nd accused person who denied his involvement, and he later handed the accused persons to the DCI. On cross-examination, he told the Court that he was not aware if the deceased had gone missing and that the 1st accused person had confessed to killing the deceased. Further, he told the Court that they visited the scene at 7.15 p.m. and was not informed of the exact time of commission of the crime and he maintained that PW11 told him that the deceased was strangled by the two accused persons while they were drinking together.
21. PW13, Cpt. Tom Ogalo, based at DCI Bungoma South testified that on 7th June 2024 his boss had instructed him and his colleagues to attend to a report of death at Siritani. That they visited that scene and found the body of the deceased person herein with a rope on his neck tied to a guava tree, seated with his legs stretched out. (PW6) took photographs of the scene. They then removed the body from the scene and took it to the mortuary. He attended the postmortem examination. That he later started interrogating the witnesses. He told the Court that PW11 identified the site where the deceased was killed which was the bedroom of an isimba and she showed them where she had stood as she witnessed the grotesque act been committed. He told the Court that PW11 took them to the scene where the body was later tied up to a guava tree and showed them where she was watching everything from (PEXH6). At the conclusion of the post mortem report the rope was handed over to the DCI which he produced in Court as PEXH 3 and he also produced the guava tree as PEXH 1. He identified the accused persons he had apprehended as the ones in the dock.
22. On cross-examination, PW13 told the Court that when they visited the scene there were police officers at the scene (PW12). That a report of death was made at Siritanyi Police Post and the reportee was not aware of the time the incident occurred. He maintained that the evidence of PW11 was that of an eye witness and it placed the accused persons at the scene of the crime, and that none of the accused persons confessed to the crime. On re-examination, he told the Court that he was not present when the witness was witnessing the crime.
23. After close of the Prosecution’s case the Court found that the accused persons herein had a case to answer. They were placed on their defence and they opted to give sworn testimonies.
C. Defence Case
24. DW1 Edwin Wanyonyi Lungeti, the 1st accused person herein testified that the deceased herein was his brother. According to him he was not involved in his brother’s demise as on 7th June 2024, he left the house of Moses Wabomba for Kanduyi to do some construction work and was there until 5 p.m. After work, he returned to Moses’s house to fetch water to have his bath and that when he heard noises from the direction of their home prompting him to investigate the same wherein he found a large crowd talking about how the deceased had committed suicide. He went to their farm which was in a forest and found the deceased seated down and he had a rope. He told the Court that while in the company of PW1 they proceeded to Siritanyi Police Post to lodge a report and he left PW1 there to head back to Moses Wabomba’s house, and that he was later arrested after 2 weeks.
25. It was his testimony that PEXH 6 is the farm of PW1 and that PW1 resides with his mother and grandchildren in the house and that PW2 and himself did not reside in the same house. He beseeched this Court to investigate the murder of the deceased and he maintained that he was not involved in the incident.
26. On cross-examination, he told the Court that on 7th June 2024, he was at Kanduyi the whole day and that he was under the employment of one Dickson Msoda who was the engineer at the site with about 800 workers and that Mr. Msoda and Anthony Wafula were with him at the site and they saw him at the site. He maintained that he had returned home at 5.00 p.m. and that was when he received information of the suicide of the deceased. He maintained that the body of the deceased was seated down with his legs stretched in front of him and he had a rope on his neck tied to a tree equivalent to the thickness of his hand and the said tree could support the weight of the deceased. He maintained that he is was not aware of what happened to the deceased and that the distance from the house of Wabomba to the scene was about 500 meters and a 5-mintue walk. He told the Court that he knew PW11 as she is a daughter of the deceased herein and she resides at their home and that he has no grudge with her and that PW11 framed him.
27. On re-examination, he told the Court that he got home at 5.00 p.m from work and that was when he learnt about the suicide. He reiterated that the distance between Wabomba’s house and their home is a 5-minute walk, and that he did not know how the deceased met his death. He maintained that on the date of the incident he had never met PW11 at home.
28. DW2, Vitalis Barasa Juma, testified that he used to work as a casual worker at Shiro Academy for 3 years and that the deceased herein was his cousin, and that prior to his demise there existed no discord between them. He denied any involvement in the demise of the deceased herein and told the Court that on 7th June 20204, he reported to work at 5.00 a.m. to fetch water for the students until 8.00 a.m. and then he proceeded to Linet Wesonga, the owner of the school to do some casual work; feeding cattle and only retired at 6.00 p.m. He told the Court that his home is 100 meters from the home of PW1. According to him, he only learnt of the demise of the deceased herein on 8th June 2024, from the 1st accused person while he was doing some causal work for the PW1, which was building a house for the deceased herein. He told the Court that he inquired from PW1 whether the deceased was back home given that he fled after stealing a bicycle and PW1 was hesitant to respond.
29. On cross-examination, he told the Court that on 7th June 2024, he was at the school and that the students and teachers saw him, but all of the teachers were on transfer. He maintained that he left madam Linet’s house at 6.00 p.m. and he went home, and that the distance between the scene and his house was about 300 meters which was about a10-minute walk. He maintained that he did not murder the deceased herein and that he held not grudges against PW11 and he could not tell whether PW11 was coached to implicate him.
30. On re-examination, he reiterated that he knew the people at the school by facial appearance and that he used 3 minutes to walk from his house to that of PW1 and that PW11 lied against him.
31. After close of the defence case, parties were directed to file and exchange submissions. It is only submissions by the defence which are on record. The Prosecution opted to rely on the evidence on record.
D. Defence submissions
32. In the submissions, the defence advocate said that the issues for determination were whether the prosecution proved murder beyond reasonable doubt and what orders the court should grant.
33. According to counsel, the standard of proof in criminal cases is "beyond reasonable doubt." The Prosecution must provide convincing evidence to establish guilt. He submitted that the Prosecution claims the deceased died from strangulation, supported by a postmortem report. However, the defense argues that the evidence is insufficient and lacks corroboration.
34. The defence submitted that the accused persons were not at the scene and provided alibi evidence. Furthet that witnesses testified that the deceased had a troubled relationship with the community and not the accused persons. On the issue of identification, the defense emphasizes the lack of positive identification of the accused persons as the perpetrators. The defence maintain that the evidence of the key witness was unreliable.
35. The defence submitted that the accused persons provided alibi evidence, stating they were elsewhere during the time of the murder and the Prosecution failed to disprove the alibi.
36. On malice aforethought, the defence, argued that since the Prosecution did not prove the involvement of the accused persons, malice aforethought is irrelevant.
37. In conclusion, the defence posit that the Prosecution's case was based on speculation and insufficient evidence. They urge the Court to acquit the accused due to lack of proof beyond reasonable doubt.
38. The defence relied on the following cases in their written submissions:
a. Republic vs. Ismail Hussein Ibrahim (2018) eKLR: This case was cited to emphasize the principle of the burden and standard of proof in criminal cases, which is "proof beyond reasonable doubt."
b. Victor Mwendwa Mulinge vs. Republic (2014) eKLR: This case was referenced to highlight the principle that when an accused person raises an alibi defense, the burden of proving its falsity lies with the prosecution.
c. Antony Ndegwa Ngari vs. Republic (2014) eKLR: This case was cited to outline the three ingredients of the offence of murder: (a) the death of the deceased and its cause, (b) that the accused committed the unlawful act which caused the death, and (c) that the accused had malice aforethought.
d. Eric Otieno Meda vs. Republic (2019) eKLR: This case was referred to support the argument that the identification of the accused persons as perpetrators must be proved beyond reasonable doubt.
e. Sawe vs. Republic (2003) KLR 364: This case was cited to assert that suspicion, no matter how strong, cannot be the basis for inferring guilt, which must be proven beyond reasonable doubt.
E. Analysis and determination
39. Upon consideration of the evidence of 13 Prosecution witnesses and the sworn testimonies of the accused persons, this Court has to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the Prosecution against the accused persons.
40. Section 203 and 204 of the Penal Code under which the accused persons are charged provide for the offence of murder and the punishment therefor. These statutory provisions obligate the Prosecution to prove beyond reasonable doubt that the accused persons, with malice aforethought, through unlawfully act or omission caused the death of the deceased.
41. The above cited sections provide as follows:
“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
204. Any person who is convicted of murder shall be sentenced to death.”
42. The elements of the offence of murder that must be proved by the Prosecution beyond reasonable doubt were outlined in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR as follows: -
i. That the deceased died;
ii. That the death was caused by an unlawful act or omission;
iii. That the accused person directly or indirectly participated in the commission of the alleged offence; and
iv. That there was malice aforethought.
(a) The fact of death of the deceased
43. The postmortem form PEXH 4 filled by PW5, Dr. Elly Kiplimo Kosgei, on 10th June 2024, reveals that the deceased died of severe asphyxia due to strangulation. I find that the Prosecution proved this ingredient of the offence beyond reasonable doubt.
(b) Death was caused by an unlawful act or omission
44. The evidence of the doctor was that the deceased died as a result of severe asphyxia due to strangulation. This could have been as a result of hanging or even strangulation but the circumstances of this case coupled with other injuries on the body of the deceased point to a 3rd party having inflicted injuries that led to the death of the deceased. This Court therefore finds that the death of the deceased was not as a result of self-inflicted injuries.
(c) Proof that the accused persons committed the unlawful act which caused the death of the deceased
45. PW11 identified accused persons and her grandmother as the assailants that strangled the deceased herein and the heinous act occurred at the house (Isimba) of the 1st accused person. This witness, was categorical that she witnessed the acts of the accused persons as she peeped through a back window. She then trailed the accused persons into the forest where they positioned the body by a guava plant and tied a rope on his neck then covered the body with twigs. PW11 said that the incident happened at 7 p.m and room was not very dark and light was also streaming from a broken window wherefore she positively identified the accused persons who are her paternal uncles. This witness informed her grandfather of the incident immediately upon his arrival at his house.
46. The Court of Appeal in Wamunga v. Republic [1989] KLR 424 emphasized that evidence of identification by a single witness must be carefully scrutinized to ensure that it is free from error. Similarly, in Nzaro v. Republic (1991) KAR 212, the Court held that such evidence must be absolutely watertight to justify a conviction. In this case, the circumstances of identification of the accused persons were favourable, as the incident occurred during evening hours, and PW11 had ample opportunity and lighting to observe the accused persons. Indeed, this was not even a case of identification of a stranger in difficult circumstances but one of recognition by a close relative.
47. In Anjononi vs Republic [1980] eKLR, it was stated by this Court that evidence of recognition of an assailant is more satisfactory, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or another. Much as the evidence of the identification and or recognition of the appellant was by a single witness, it was worth of belief and the trial court did not therefore err in believing and acting on it. It is also not lost on us that the trial Court appreciating the need to caution itself of the dangers of relying on the evidence of a single witness on matters identification.
48. Both accused persons raised alibi defences but did not call any witnesses to support their alibi. It is also instructive to note that these alibi defence were never brought to the attention of the prosecution during the pre-trial so as to accord the prosecution time to investigate the alibi. Further the alibi defence did not come out during cross examination of the prosecution witnesses. The question that this court must answer is whether the alibi defence dislodged the testimony of PW11. My answer to that question is in the negative for reasons that PW11, although a minor and a protected witness narrated the events that she had witnessed on the material evening with clarity and consistency which was unshaken upon cross examination. I have thus found her testimony as credible and reliable. The alibi defence were at best an afterthought.
49. The manner in which the deceased met his death was unlawful. The wounds sustained during the assault can properly be said be the cause of death. This death in question was not justified or excusable. The accused persons are therefore found to have committed the unlawful act that caused the death of the deceased.
(d) Malice aforethought
50. Having found that the Prosecution has proved the actus reus of the offence, the issue for determination is whether malice aforethought can be inferred.
51. The offence of murder is complete when, “malice aforethought” is established if, pursuant to Section 206 of the Penal Code evidence proves 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
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