Criminal Case No. 29 of 2021 1
REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL CASE NO. 29 OF 2021
REPUBLIC ………………………………………………………………………….. DPP
VERSUS
ALEX LUGALIA VIVO…………………………………..………………1ST ACCUSED
FRED MUHAKO LUGALIA …………………………..……….…….. 2ND ACCUSED
STANLEY AKWIYANGA LUGALIA …………………..………….… 3RD ACCUSED
Coram: Justice R. Nyakundi
Mr. Leina Prosecution Counsel for the State
M/S Malanda Advocate for the Accused Persons
JUDGMENT
Introduction
1. The Accused persons herein were charged with the offence of murder
contrary to Section 203 as read with Section 204 of the Penal Code Cap
63 (Laws of Kenya). The particulars of the Charge were that:
“On the 18th day of May 2020 at Mukingi Village, Mukingi Sub-location
in Izava South Location in Sabatia Sub-County within Vihiga County
jointly murdered Henry Akwiyanga”
2. The Prosecution’s case was heard on diverse dates between 19th July
2022 and 8th April 2025 when it closed its case. On 17th July 2025, this
Court found that the Prosecution had established a prima facie case
against the Accused persons and thereby put them on their defence.
The defence case was heard on 28th January 2026.
3. The 1st, 2nd and 3rd Accused persons Written Submissions were dated
30th April 2026. As at the time of writing this Judgment, the Prosecution
had not put in their submissions.
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Analysis and Determination
4. Before this Court delves into the main ingredients which constitute the
offence of murder contrary to Section 203 of the Penal Code it is
presumed that each of the Accused Person is innocent until the
contrary is proved by the State as provided for under Article 50(2) (a) of
the Constitution. The standard and burden of proof is always vested
with the State and the actual mandate of prosecuting crimes within our
penal laws is vested with the Office of the Director of Public Prosecution
under Article 157(6), (7), (8), (9), (10) & (11) of the Constitution. The
applicable doctrine whose manifestation flows from Section 107(1), 108,
109 and 112 of the Evidence Act is that of proof of beyond reasonable
doubt. This conceptual framework has found itself being interpreted
and construed as to its meaning and application to the facts of each
criminal case laid before a trial Court by way of evidence to prove
existence or non-existence of facts in issue in relation to the
commission of the crime. In this regard, the Court in Miller vs
Minister of Pensions [1947] 2 All E.R. 372 at page 373 to page 374 it
was stated that:
"The degree of beyond reasonable doubt is well settled. It need not
reach certainty, but it must carry a high degree of probability. Proof
beyond reasonable doubt does not mean proof beyond the shadow
of a doubt. The law would fail to protect the community if it
admitted fanciful possibilities to deflect the course of justice. If
evidence is so strong against a man as to leave only a remote
possibility in his favour, which can be dismissed with a sentence:
'of course it is possible but not in the least probable', the case is
proved beyond reasonable doubt; but nothing short of that will
suffice."
5. The burden of proof never shifts to the accused person and there is no
obligation for an accused person to say anything at his or her trial with
regard to the existence of facts in issue on the indictment. The fact that
the accused has given/or placed in his or her defence or relies on an
account given to the Investigating Officer does not alter the burden and
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standard of proof of beyond reasonable doubt. The accused person has
no obligation to proof that his or her version is true, it is the duty and
mandate of the State through the Director of Prosecution that the
account given by the accused or his or her defence witnesses has not
controverted the chain of events that could reasonably affect negatively
the case for the Prosecution or the State for that matter. On this issue,
the Courts in a series of decisions starting with Andrea Obonyo & Ors.
V. R. [1962] E.A. 542, on pg 550 extensively discussed the doctrine of
the standard and burden of proof of beyond reasonable doubt in
criminal cases and the salient features on giving weight to the evidence
admitted by the State and the perspective by the defence tailored to
change the narrative of the case proven beyond reasonable doubt.
Thus: "As to the standard of proof required in criminal cases DENNING,
L.J. (as he then was), had this to say in Bater v. Bater [1950] 2 All
E.R. 458 at 459:
'It is true that by our law there is a higher standard of proof in
criminal cases than in civil cases, but this is subject to the
qualification that there is no absolute standard in either case. In
criminal cases, the charge must be proved beyond reasonable
doubt, but there may be degrees of proof within that standard.
Many great judges have said that, in proportion as the crime is
enormous, so ought the proof to be clear.
" That passage was approved in Hornal v. Neuberger Products Ltd.
[1956] 3 All E.R. 970, and in Henry H. Ilanga v. M. Manyoka [1961]
E.A. 705 (С.А.). In Hornal v. Neuberger Products Ltd., HODSON,
L.J., cited with approval the following passage from Kenny's
Outlines of Criminal Law (16th Edn.), at p. 416:
'A larger minimum of proof is necessary to support an accusation
of crime than will suffice when the charge is only of a civil nature....
in criminal cases the burden rests upon the prosecution to prove
that the accused is guilty 'beyond reasonable doubt'. When
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therefore the case for the prosecution is closed after sufficient
evidence has been adduced to necessitate an answer from the
defence, the defence need do no more than show that there is
reasonable doubt as to the guilt of the accused. See R. v. Stoddart
(1909) 2 Cr. App. Rep. 217 at p. 242.
....... ... [I]n criminal cases the presumption of innocence is still
stronger, and accordingly a still higher minimum of evidence is
required; and the more heinous the crime the higher will be this
minimum of necessary proof.
Where, on the evidence adduced before Court, there exists only а
remote possibility of the innocence of an Accused person, it would
mean the Prosecution has proved its case beyond reasonable
doubt; hence, the Prosecution would have conclusively discharged
the burden that lay on it to prove the guilt of the Accused. In Obar
s/0 Nyarongo v. Reginam (1955) 22 E.A.C.A. 422, at p. 424 the
Court held that:
"We think it apt here to cite a passage from the recent Privy Council
case of Chan Kau v. The Queen (1952) W.L.R. 192. ... At p. 194
Lord Tucker said this:
'Since the decision of the House of Lords in Woolmington v. Director
of Public Prosecutions (1935) A.C. 462; and Mancini v. Director of
Public Prosecutions 28 C.A.R. 65; it is clear that the rule with
regard to the onus of proof in cases of murder and manslaughter
is of general application and permits of no exceptions save only in
the case of insanity, which is not strictly a defence.”
In Okethi Okale v. R. [1965] E.A. 555, the trial judge had
misdirected himself on the onus of proof; and made remark on the
defence evidence, stating that:
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"I have given consideration to this unsworn evidence but I do not
think it sufficient to displace the case built up by the prosecution
or to produce a 'reasonable doubt'."
On appeal, the Court responded at p. 559 as follows:
"We think with respect that the learned judge's approach to the
onus of proof was clearly wrong, and in Ndege Maragwa v.
Republic (1965) E.A.C.A. Criminal Appeal No. 156 of 1964
(unreported), where the trial judge had used similar expressions
this Court said:
"... we find it impossible to avoid the conclusion that the learned
judge has, in effect, provisionally accepted the prosecution case
and then cast on the defence an onus of rebutting or casting doubt
on that case. We think that is an essentially wrong approach: apart
from certain limited exceptions, the burden of proof in criminal
proceedings is throughout on the prosecution. Moreover, we think
the learned judge fell into error in looking separately at the case
for the prosecution and the case for the defence.
In our view, it is the duty of the trial judge ... to look at the evidence
as a whole. We think it is fundamentally wrong to evaluate the
case for the prosecution in isolation and then consider whether or
not the case for the defence rebuts or casts doubt on it. Indeed, we
think that no single piece of evidence should be weighed except in
relation to all the rest of the evidence. (These remarks do not, of
course, apply to the consideration whether or not there is a case to
answer, when the attitude of the Court is necessarily and
essentially different.)"
6. The issues that were put before this Court for consideration were as
follows:
a. Whether or not Henry Akwiyanga (hereinafter referred to as the
“deceased”) died?
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b. If so, was his death caused by an unlawful action(s) and/or
omissions?
c. If so, who caused the unlawful action(s) and/or omissions?
d. Was there malice aforethought in the causation of the deceased’s
death?
7. This Court therefore found it prudent to deal with the said issues under
the following distinct and separate headings.
Proof of Death of the Deceased
8. The 1st, 2nd and 3rd Accused persons submitted that it was not disputed
that the death of the deceased person occurred.
9. As both the Prosecution and Defence witnesses alluded to the
deceased’s death, it was not necessary to seek further proof. This Court
found and held that the deceased’s death was proved without an iota of
doubt.
Proof of Cause of the Deceased’s Death
10. The Accused persons did not submit on this issue.
11. The cause of the deceased’s death was a pertinent issue. PW 2, DR
COLLINS MASIKA tendered a Post Mortem Report dated 21st May 2020
in respect of the deceased herein as an exhibit in this matter. After
conducting the post mortem examination, he formed an opinion that
the cause of death was intracranial haemorrhage due to trauma.
12. It was therefore clear from his evidence that the deceased’s death was
not as a result of natural causes. It was therefore crucial to establish
how the deceased sustained the injuries that caused his death.
Identification of Perpetrator(s) of Deceased’s Death
13. On identification of the accused person the Turnbull decision [1977],
All E.R has been adopted in many jurisdictions including Kenya to
provide the yardstick to qualify for quality identification of the suspects.
It provides inter alia as follows:
“That it is important to note that the trial Judge’s duty is to
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withdraw the case from the jury in an identification case is wider
than the general duty of a trial judge in respect of a submission of
no case to answer as enunciated in Galbraith (1981) 73 Cr. App.
R. 124, [1981] 1 W.L.R. 1039. Moreover Turnbull plainly
contemplates that the position must bе assessed not only at the
end of the prosecution case but also at the close of the accused's
case at pp. 137, 138 and 228H-229A. Secondly, Turnbull requires
the judge to warn the jury of the special need for caution before
convicting the accused in reliance on visual identification and to
explain that a mistaken witness may be a convincing one. That
means that the jury ought to be told that honesty as such is no
guarantee against a false impression being so indelibly imprinted
on the mind as to convince an honest witness that it was wholly
reliable. Reid v R (1990) 90 Cr. App. R. 121, [1990] 1 AC.363, 380F-
381C. We do not, of course, say that these particular words must
be used but the risk must be clearly conveyed to the jury. Thirdly,
Turnbull requires the judge to direct the jury to examine the
circumstances in which the identification was made. Finally, he
should remind the jury of any specific weaknesses which had
appeared in the identification evidence. Needless to say, the judge
must deal with the specific weaknesses in a coherent manner so
that the cumulative impact of those specific weaknesses is fairly
placed on the jury."
14. The Accused persons denied killing the deceased. They submitted that
he died from injuries suffered as a result of falling from a ladder.
15. The Accused persons submitted that there was no direct evidence
linking them to the death of the deceased and that while the deceased
was said to have been attacked by rungus and pangas, the Investigation
Officer did not produce any of the said weapons but only brought pieces
of woods which he alleged were used and which he confirmed that they
were not found at the scene or in any of the Accused persons’ house.
16. They further asserted that the Investigation Officer also stated that at
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time of visiting the scene of the crime, he did not see the ladder and
that the house had already been demolished.
17. It was their case that the Prosecution witnesses were not consistent in
their testimonies as there were contradictions during cross-
examination. They asserted that none of them was arrested at the scene
of the crime and that no weapons alleged to have been used was found
in any of their house. They added that the scene of the alleged crime
was interfered with as the ladder that was said to have been used by
the deceased was carried away from the scene by members of the public
and the house demolished before the Investigating Officer visited the
scene.
18. They were emphatic that they did not participate in causing the death
of the deceased. They argued that the Prosecution had failed to prove
that they were guilty beyond reasonable doubt. They urged this Court
to acquit them of the murder charges herein.
19. Notably, PW 1, ROSA SAVAI VIVO, testified that on the material day,
the Accused persons went to her home and found her with a guest, one
Vero and who was taking tea. She identified the 1st, 2nd and 3rd Accused
persons in the dock. She stated that it was the 3rd Accused person who
was first attacked the deceased. She added that the 1st Accused person
came with a panga, and was the father of the 2nd and 3rd Accused
persons who had rungus.
20. She further testified that the deceased was his brother-in-law and that
the 1st Accused cut him with a panga and he fell from the roof. She
added that he was cut on the head and that he bled so much. She
asserted that the 2nd and 3rd Accused persons hit the deceased’s head
with rungus. She said that the deceased was rushed to Mbale but he
later died.
21. On cross-examination, PW 1 stated that her husband had died ten (10)
years ago and that she did not have a good relationship with the
Accused persons’ family as there was a dispute over land which they
demanded that she vacates. (The Court noted that she broke down
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during her testimony having been reminded of the incident and took
time to answer the questions).
22. She was emphatic that she was present when the incident happened
and that the deceased was cut before he fell down and that it was not
true that he fell and died from the fall. She was emphatic that the
deceased was on top of the house that was demolished and that the 1st
Accused person climbed the house and cut the deceased while there.
23. PW 3, HELLEN OSIDE, testified that the deceased was her uncle and
that he knew the Accused persons as the 1st Accused person was her
step father while the 2nd and 3rd Accused persons were his nephews.
She also said that PW1 was her mother. It was her testimony that on
the material day, PW1 called the deceased to show him the side of the
house which had fallen on one side. PW1 asked her whether the people
who were to repair the house were still coming.
24. She stated that Duncan Chose and three (3) others entered the house.
She said that they had found the 1st Accused person cleaning the
compound near their house. The 1st Accused person then told the
deceased to go out and do what had brought him there. He also told
him that he was not his father and that his father died long ago.
25. She further testified that the deceased came out of the house and told
Duncan to give him a ladder, when he got on the second stair, the 2nd
Accused person told him to try and get to the roof and he would remove
his teeth. She said that the deceased came down and raised his hands
up. She stated that the 2nd Accused person had two (2) rungus.
26. She further stated that the 2nd Accused person hit the deceased with a
rungu on his head and shoulder and that the 3rd Accused person came
with a panga and cut the deceased on the head. She added that the 1st
Accused person came out and cut the deceased on the chin and said
that they should finish the deceased so that he could go away
completely. She screamed and people came to the scene. The deceased
was taken to hospital by Duncan Chose and Humphrey Gododi. She
added that the police took photographs of the scene and identified the
two (2) sticks that were recovered and were used to hit the deceased.
Criminal Case No. 29 of 2021 10
27. She said that the 3rd Accused person had two (2) pangas and he used
to cut the deceased with one while the other was placed down and that
2nd Accused person had two (2) rungus and used them both to hit the
deceased. On cross-examination, she confirmed that PW1 was in the
house when the incident happened and came after the deceased had
been injured by the 2nd and 3rd Accused persons. She confirmed that
she was the only one at the scene when the incident happened. She
admitted that the whole issue emanated from a land dispute as she
shared the same father with the 1st Accused person and that their father
had died without distributing land. She explained that the house that
was demolished was their father’s and at the material time, it belonged
to their mother but the 1st Accused person did not want the same
demolished.
28. PW 4, CHARLES KISAMBO SADI, testified that he knew the deceased
as a cousin to his father. He also knew the Accused persons as they
were relatives. On the material day, he stated that he was at home at
around 8.00am as he had come from his work as a security guard. He
heard screams coming from PW1’s home. He rushed to the said home
and when he inquired what had happened, PW1 told him that the 1st
Accused person and his children had beaten the deceased.
29. It was his testimony that he saw the deceased lying near an old house
and had been cut on the chin, head and on the left leg. He stated that
he took the deceased to the hospital together with George Sadi and that
he went back home to notify the deceased’s wife what had happened.
He later heard that the deceased died.
30. On his cross-examination, he stated that he could not say that the
deceased was injured by the ladder as he had been cut on the head,
chin and leg. He notified the Court that PW1 and the Accused persons
had differences arising out of land dispute and that the house was to
be demolished according to the Maragoli customs and that PW1 had
notified the larger family of the said demolition and everyone had agreed
to the same including the three (3) Accused persons. He wondered why
they injured the deceased.
Criminal Case No. 29 of 2021 11
31. PW 5, NO 113503 PC EVANS KORIR, testified on behalf of the
Investigating Officer No. 46924 PC Richard Korir who had retired. His
evidence corroborated that of PW1, PW2, PW3 and PW4. He explained
that PW1 had called the deceased to help her demolish the house which
was dilapidated. He said that according to the Maragoli custom, he was
to remove one iron sheet before the house could be demolished as that
happens when a woman has lost her husband. He added that PW1 was
staying in the same compound with the 1st Accused person who was a
step son and that the 1st Accused person was objecting the demolishing
of the house. When the deceased climbed to remove the iron sheet, the
Accused persons attacked him. He produced the recovered rungus as
exhibit in Court.
32. The 1st Accused person testified as DW1. It was his testimony that on
the material day at about 7.00a.m, he was outside his house collecting
garbage from the compound. He said that there were three (3) houses
in the said compound belonging to PW1 and that from his house to
PW1’s was about fifteen (15) steps. He stated that he saw about thirty
(30) people he did not know who were armed and who came to the
compound.
33. It was his testimony that one of them took a ladder and put it on PW1’s
house and that one of them an old man about aged seventy-six (76)
years old got up the ladder. He asserted that the person who got up the
ladder had a hammer and started removing the iron sheet. He said that
old man fell down with the ladder and that he went inside his house to
take tea while the armed people ran away.
34. He further stated that he took his children (the 1st and 2nd Accused
persons) to the Police Station at Mbale to report the matter. He said that
the 2nd Accused person was in the house and the 3rd Accused person
was in the kitchen when he was cleaning the compound and that it was
not true that they were at PW1’s house. He denied having a had a panga
that material day. He also denied having a dispute with PW1 or
interfering with the people who had come to work for her on the
demolition. His evidence was corroborated by that of 2nd and 3rd
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Accused persons who testified as DW2 and DW3. It was their case that
the deceased died from falling from the ladder.
35. After carefully analysing the evidence that was adduced by the
Prosecution witnesses, it was evident that PW3 saw the 2nd Accused
persons beating the deceased on the material date with rungus and the
3rd Accused person cutting him with a panga on the head while the 1st
Accused person cut him on the chin with a panga.
36. The incident happened during daytime. Therefore, there was sufficient
light as PW1 and PW3 were able to see them beating the deceased.
37. PW1, PW3 and PW4 were also able to see the deceased bleeding and his
body full of injuries. PW1 and PW3 also saw the crude weapons the
Accused persons were carrying at the material time.
38. PW1 and PW3 all placed the Accused persons at the scene of crime.
There was sufficient lighting that was favourable for the positive
identification of the 1st, 2nd and 3rd Accused person.
39. Additionally, PW4 testified that PW1told him that it was the Accused
persons who had attacked the deceased.
40. This Court was persuaded to find and hold that the 1st, 2nd and 3rd
Accused persons were positively identified by PW1 and PW3 as
aforesaid. Identification was by way of recognition. They were all related
and were neigbours living in the same compound therefore knew each
other well. This could not have been a case of mistaken identity.
41. The Accused persons did not demonstrate that there was any motive
for PW1 and PW3 to have colluded to frame them as the people who
unlawfully caused the deceased’s death on that material date. Their
assertions that the Prosecution’s evidence was inconsistent and/or it
failed to call crucial witnesses thus fell on the wayside.
42. Consequently, it was this Court’s finding that the 1st, 2nd and 3rd
Accused persons’ defence was mere denial and did not displace and/or
dislodge the consistent and cogent evidence that was adduced by PW1,
PW2, PW3, PW4 and PW5.
43. The witnesses to this case were very emphatic that the accused persons
were previously known to them and there was no mistaken identity
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whatsoever of placing each of the accused persons at the scene of the
crime.
44. The accused persons are charged jointly with the offence of murder.
This Court therefore has to determine whether they executed the
unlawful act with malice aforethought contrary to Section 203 of the
Penal Code jointly and severally as provided for under Section 21 of the
Penal Code. The Penal Code provides on the principles of criminal
responsibility in the following terms:
"When two or more persons form a common intention to prosecute
an unlawful purpose in conjunction with one another, and in the
prosecution of that purpose an offence is committed of such a
nature that its commission was a probable consequence of the
prosecution of that purpose, each of them is deemed to have
committed the offence."
45. This is to be read in conjunction with Section 20 of the Penal Code
which also provides as follows:
"(1) When an offence is committed, each of the following persons is
deemed to have taken part in committing the offence and to be
guilty of the offence and may be charged with actually committing
it- (a) every person who actually does the act or makes the omission
which constitutes the offence; (b) every person who does or omits
to do any act for the purpose of enabling or aiding another person
to commit the offence;
(c) every person who aids or abets another person in committing
the offence.
(2) Any person who procures another to do or omit to do any act of
such nature that if he or she had done the act or made the omission
the act or omission would have constituted an offence on his or her
part is guilty of an offence of the same kind and is liable to the
same punishment as if he or she had done the act or made the
omission; and he or she may be charged with doing the act or
making the omission."
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46. The Court in the case of Ismael Kisegerwa & Anor. vs Uganda; C.A.
Crim. Appeal No. 6 of 1978 remarked as follows:
"In order to make the doctrine of common intention applicable, it
must be shown that the accused had shared with the actual
perpetrator of the crime a common intention to pursue a specific
unlawful purpose, which led to the commission of the offence. If it
can be shown that the accused persons shared with one another
a common intention to pursue a specific unlawful purpose, and in
the prosecution of that unlawful purpose an offence was
committed, the doctrine of common intention would apply
irrespective of whether the offence committed was murder or
manslaughter.”
47. From the local legal trajectory, Kenyan Courts have not been left behind
in underpinning the principles on common intention under Section 21
of the Penal Code. Thus, the following cases are on point:
Republic v. Erick Kiboi Ombati & 3 others (Criminal Case 21 of
2015): The Court outlined that common intention can be inferred
from the joint actions of the accused, such as participating in a mob
attack, which proves beyond reasonable doubt that they were acting
with malice aforethought.
Republic v. Nelson Bosire Otuke & 2 others (HCCRC E021 of
2022): The High Court relied on Section 21 to convict multiple
accused individuals for murder because they actively participated in
the initial assault, rendering them liable under the doctrine.
Mabel Kavati & Another v. Republic (Machakos High Court): The
Court affirmed that while each case is decided on its own merits,
evidence that accused persons acted in a joint criminal enterprise—
even if one did not physically deal the fatal strike—satisfies the
threshold of common intention.
48. The fundamental principle under common intention is that although
the specific individuals may not have struck the fatal blow, all
participated in the unlawful act and shared a common intention making
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them all equally culpable as principals of committing the offence in
question. In this case there is sufficient evidence that the accused
persons before Court had a common intention which has been proved
by way of evidence to cause the death of the deceased. The gaps being
alluded to by the defence Counsel is not capable of occasioning a
rebuttal to the Prosecution case which has been proved beyond
reasonable doubt. I therefore hold the view from the evidence that the
three accused persons before this Court shared a common intention
and acted together to commit the crime of murder against the deceased
and the conduct of each of one of them is legally imputed to all the
others bypassing the need to prove individual causation.
49. This is a case in which there was both direct and circumstantial
evidence which formed the chain of events which are so complete
pointing towards the accused persons’ guilt to the exclusion of all other
reasonable hypothesis. The Court in R vs Kipkering Arap Koskei and
Another [1949] 16 EACA, observed as follows:
“That in order to justify, on circumstantial evidence, the inference
of guilt, the inculpatory facts must be incompatible with the
innocence of the accused, and incapable of explanation upon any
other reasonable hypothesis than that of guilt, and the burden of
proving facts which justify the facts to the exclusion of any
reasonable hypothesis of innocence is always on the prosecution
and never shifts to the accused. This principle was late in the case
of Simon Musoke vs R. Criminal Appeal No. 188 of 1956 given more
explanation when the court added that at the same time there must
not be any co-existing facts in or circumstances which may weaken
or destroy that inference of the guilt of the accused person”.
50. This is also the position taken by the Court in the case of Peter Mote
Obero & Another V Republic [2011] eKLR Court of Appeal at Kisumu,
in Criminal Appeal No. 177 of 2008, the learned Judges Omolo, Waki &
Nyamu, JJA reiterated as follows;
“It is the essence of circumstantial evidence that, in order to justify
an inference of guilt, the inculpatory facts must be incompatible
Criminal Case No. 29 of 2021 16
with the innocence of the accused and incapable of explanation
upon any other reasonable hypothesis than that of guilt. It is also
necessary before drawing the inference of the accused’s guilt from
circumstantial evidence to be sure that there are no other co-
existing circumstances which would weaken or destroy the
inference – Teper V R [1952] AC 480. With those safeguards in
place, circumstantial evidence is as good as any direct evidenc
[...truncated]
REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL CASE NO. 29 OF 2021
REPUBLIC ………………………………………………………………………….. DPP
VERSUS
ALEX LUGALIA VIVO…………………………………..………………1ST ACCUSED
FRED MUHAKO LUGALIA …………………………..……….…….. 2ND ACCUSED
STANLEY AKWIYANGA LUGALIA …………………..………….… 3RD ACCUSED
Coram: Justice R. Nyakundi
Mr. Leina Prosecution Counsel for the State
M/S Malanda Advocate for the Accused Persons
JUDGMENT
Introduction
1. The Accused persons herein were charged with the offence of murder
contrary to Section 203 as read with Section 204 of the Penal Code Cap
63 (Laws of Kenya). The particulars of the Charge were that:
“On the 18th day of May 2020 at Mukingi Village, Mukingi Sub-location
in Izava South Location in Sabatia Sub-County within Vihiga County
jointly murdered Henry Akwiyanga”
2. The Prosecution’s case was heard on diverse dates between 19th July
2022 and 8th April 2025 when it closed its case. On 17th July 2025, this
Court found that the Prosecution had established a prima facie case
against the Accused persons and thereby put them on their defence.
The defence case was heard on 28th January 2026.
3. The 1st, 2nd and 3rd Accused persons Written Submissions were dated
30th April 2026. As at the time of writing this Judgment, the Prosecution
had not put in their submissions.
Criminal Case No. 29 of 2021 2
Analysis and Determination
4. Before this Court delves into the main ingredients which constitute the
offence of murder contrary to Section 203 of the Penal Code it is
presumed that each of the Accused Person is innocent until the
contrary is proved by the State as provided for under Article 50(2) (a) of
the Constitution. The standard and burden of proof is always vested
with the State and the actual mandate of prosecuting crimes within our
penal laws is vested with the Office of the Director of Public Prosecution
under Article 157(6), (7), (8), (9), (10) & (11) of the Constitution. The
applicable doctrine whose manifestation flows from Section 107(1), 108,
109 and 112 of the Evidence Act is that of proof of beyond reasonable
doubt. This conceptual framework has found itself being interpreted
and construed as to its meaning and application to the facts of each
criminal case laid before a trial Court by way of evidence to prove
existence or non-existence of facts in issue in relation to the
commission of the crime. In this regard, the Court in Miller vs
Minister of Pensions [1947] 2 All E.R. 372 at page 373 to page 374 it
was stated that:
"The degree of beyond reasonable doubt is well settled. It need not
reach certainty, but it must carry a high degree of probability. Proof
beyond reasonable doubt does not mean proof beyond the shadow
of a doubt. The law would fail to protect the community if it
admitted fanciful possibilities to deflect the course of justice. If
evidence is so strong against a man as to leave only a remote
possibility in his favour, which can be dismissed with a sentence:
'of course it is possible but not in the least probable', the case is
proved beyond reasonable doubt; but nothing short of that will
suffice."
5. The burden of proof never shifts to the accused person and there is no
obligation for an accused person to say anything at his or her trial with
regard to the existence of facts in issue on the indictment. The fact that
the accused has given/or placed in his or her defence or relies on an
account given to the Investigating Officer does not alter the burden and
Criminal Case No. 29 of 2021 3
standard of proof of beyond reasonable doubt. The accused person has
no obligation to proof that his or her version is true, it is the duty and
mandate of the State through the Director of Prosecution that the
account given by the accused or his or her defence witnesses has not
controverted the chain of events that could reasonably affect negatively
the case for the Prosecution or the State for that matter. On this issue,
the Courts in a series of decisions starting with Andrea Obonyo & Ors.
V. R. [1962] E.A. 542, on pg 550 extensively discussed the doctrine of
the standard and burden of proof of beyond reasonable doubt in
criminal cases and the salient features on giving weight to the evidence
admitted by the State and the perspective by the defence tailored to
change the narrative of the case proven beyond reasonable doubt.
Thus: "As to the standard of proof required in criminal cases DENNING,
L.J. (as he then was), had this to say in Bater v. Bater [1950] 2 All
E.R. 458 at 459:
'It is true that by our law there is a higher standard of proof in
criminal cases than in civil cases, but this is subject to the
qualification that there is no absolute standard in either case. In
criminal cases, the charge must be proved beyond reasonable
doubt, but there may be degrees of proof within that standard.
Many great judges have said that, in proportion as the crime is
enormous, so ought the proof to be clear.
" That passage was approved in Hornal v. Neuberger Products Ltd.
[1956] 3 All E.R. 970, and in Henry H. Ilanga v. M. Manyoka [1961]
E.A. 705 (С.А.). In Hornal v. Neuberger Products Ltd., HODSON,
L.J., cited with approval the following passage from Kenny's
Outlines of Criminal Law (16th Edn.), at p. 416:
'A larger minimum of proof is necessary to support an accusation
of crime than will suffice when the charge is only of a civil nature....
in criminal cases the burden rests upon the prosecution to prove
that the accused is guilty 'beyond reasonable doubt'. When
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therefore the case for the prosecution is closed after sufficient
evidence has been adduced to necessitate an answer from the
defence, the defence need do no more than show that there is
reasonable doubt as to the guilt of the accused. See R. v. Stoddart
(1909) 2 Cr. App. Rep. 217 at p. 242.
....... ... [I]n criminal cases the presumption of innocence is still
stronger, and accordingly a still higher minimum of evidence is
required; and the more heinous the crime the higher will be this
minimum of necessary proof.
Where, on the evidence adduced before Court, there exists only а
remote possibility of the innocence of an Accused person, it would
mean the Prosecution has proved its case beyond reasonable
doubt; hence, the Prosecution would have conclusively discharged
the burden that lay on it to prove the guilt of the Accused. In Obar
s/0 Nyarongo v. Reginam (1955) 22 E.A.C.A. 422, at p. 424 the
Court held that:
"We think it apt here to cite a passage from the recent Privy Council
case of Chan Kau v. The Queen (1952) W.L.R. 192. ... At p. 194
Lord Tucker said this:
'Since the decision of the House of Lords in Woolmington v. Director
of Public Prosecutions (1935) A.C. 462; and Mancini v. Director of
Public Prosecutions 28 C.A.R. 65; it is clear that the rule with
regard to the onus of proof in cases of murder and manslaughter
is of general application and permits of no exceptions save only in
the case of insanity, which is not strictly a defence.”
In Okethi Okale v. R. [1965] E.A. 555, the trial judge had
misdirected himself on the onus of proof; and made remark on the
defence evidence, stating that:
Criminal Case No. 29 of 2021 5
"I have given consideration to this unsworn evidence but I do not
think it sufficient to displace the case built up by the prosecution
or to produce a 'reasonable doubt'."
On appeal, the Court responded at p. 559 as follows:
"We think with respect that the learned judge's approach to the
onus of proof was clearly wrong, and in Ndege Maragwa v.
Republic (1965) E.A.C.A. Criminal Appeal No. 156 of 1964
(unreported), where the trial judge had used similar expressions
this Court said:
"... we find it impossible to avoid the conclusion that the learned
judge has, in effect, provisionally accepted the prosecution case
and then cast on the defence an onus of rebutting or casting doubt
on that case. We think that is an essentially wrong approach: apart
from certain limited exceptions, the burden of proof in criminal
proceedings is throughout on the prosecution. Moreover, we think
the learned judge fell into error in looking separately at the case
for the prosecution and the case for the defence.
In our view, it is the duty of the trial judge ... to look at the evidence
as a whole. We think it is fundamentally wrong to evaluate the
case for the prosecution in isolation and then consider whether or
not the case for the defence rebuts or casts doubt on it. Indeed, we
think that no single piece of evidence should be weighed except in
relation to all the rest of the evidence. (These remarks do not, of
course, apply to the consideration whether or not there is a case to
answer, when the attitude of the Court is necessarily and
essentially different.)"
6. The issues that were put before this Court for consideration were as
follows:
a. Whether or not Henry Akwiyanga (hereinafter referred to as the
“deceased”) died?
Criminal Case No. 29 of 2021 6
b. If so, was his death caused by an unlawful action(s) and/or
omissions?
c. If so, who caused the unlawful action(s) and/or omissions?
d. Was there malice aforethought in the causation of the deceased’s
death?
7. This Court therefore found it prudent to deal with the said issues under
the following distinct and separate headings.
Proof of Death of the Deceased
8. The 1st, 2nd and 3rd Accused persons submitted that it was not disputed
that the death of the deceased person occurred.
9. As both the Prosecution and Defence witnesses alluded to the
deceased’s death, it was not necessary to seek further proof. This Court
found and held that the deceased’s death was proved without an iota of
doubt.
Proof of Cause of the Deceased’s Death
10. The Accused persons did not submit on this issue.
11. The cause of the deceased’s death was a pertinent issue. PW 2, DR
COLLINS MASIKA tendered a Post Mortem Report dated 21st May 2020
in respect of the deceased herein as an exhibit in this matter. After
conducting the post mortem examination, he formed an opinion that
the cause of death was intracranial haemorrhage due to trauma.
12. It was therefore clear from his evidence that the deceased’s death was
not as a result of natural causes. It was therefore crucial to establish
how the deceased sustained the injuries that caused his death.
Identification of Perpetrator(s) of Deceased’s Death
13. On identification of the accused person the Turnbull decision [1977],
All E.R has been adopted in many jurisdictions including Kenya to
provide the yardstick to qualify for quality identification of the suspects.
It provides inter alia as follows:
“That it is important to note that the trial Judge’s duty is to
Criminal Case No. 29 of 2021 7
withdraw the case from the jury in an identification case is wider
than the general duty of a trial judge in respect of a submission of
no case to answer as enunciated in Galbraith (1981) 73 Cr. App.
R. 124, [1981] 1 W.L.R. 1039. Moreover Turnbull plainly
contemplates that the position must bе assessed not only at the
end of the prosecution case but also at the close of the accused's
case at pp. 137, 138 and 228H-229A. Secondly, Turnbull requires
the judge to warn the jury of the special need for caution before
convicting the accused in reliance on visual identification and to
explain that a mistaken witness may be a convincing one. That
means that the jury ought to be told that honesty as such is no
guarantee against a false impression being so indelibly imprinted
on the mind as to convince an honest witness that it was wholly
reliable. Reid v R (1990) 90 Cr. App. R. 121, [1990] 1 AC.363, 380F-
381C. We do not, of course, say that these particular words must
be used but the risk must be clearly conveyed to the jury. Thirdly,
Turnbull requires the judge to direct the jury to examine the
circumstances in which the identification was made. Finally, he
should remind the jury of any specific weaknesses which had
appeared in the identification evidence. Needless to say, the judge
must deal with the specific weaknesses in a coherent manner so
that the cumulative impact of those specific weaknesses is fairly
placed on the jury."
14. The Accused persons denied killing the deceased. They submitted that
he died from injuries suffered as a result of falling from a ladder.
15. The Accused persons submitted that there was no direct evidence
linking them to the death of the deceased and that while the deceased
was said to have been attacked by rungus and pangas, the Investigation
Officer did not produce any of the said weapons but only brought pieces
of woods which he alleged were used and which he confirmed that they
were not found at the scene or in any of the Accused persons’ house.
16. They further asserted that the Investigation Officer also stated that at
Criminal Case No. 29 of 2021 8
time of visiting the scene of the crime, he did not see the ladder and
that the house had already been demolished.
17. It was their case that the Prosecution witnesses were not consistent in
their testimonies as there were contradictions during cross-
examination. They asserted that none of them was arrested at the scene
of the crime and that no weapons alleged to have been used was found
in any of their house. They added that the scene of the alleged crime
was interfered with as the ladder that was said to have been used by
the deceased was carried away from the scene by members of the public
and the house demolished before the Investigating Officer visited the
scene.
18. They were emphatic that they did not participate in causing the death
of the deceased. They argued that the Prosecution had failed to prove
that they were guilty beyond reasonable doubt. They urged this Court
to acquit them of the murder charges herein.
19. Notably, PW 1, ROSA SAVAI VIVO, testified that on the material day,
the Accused persons went to her home and found her with a guest, one
Vero and who was taking tea. She identified the 1st, 2nd and 3rd Accused
persons in the dock. She stated that it was the 3rd Accused person who
was first attacked the deceased. She added that the 1st Accused person
came with a panga, and was the father of the 2nd and 3rd Accused
persons who had rungus.
20. She further testified that the deceased was his brother-in-law and that
the 1st Accused cut him with a panga and he fell from the roof. She
added that he was cut on the head and that he bled so much. She
asserted that the 2nd and 3rd Accused persons hit the deceased’s head
with rungus. She said that the deceased was rushed to Mbale but he
later died.
21. On cross-examination, PW 1 stated that her husband had died ten (10)
years ago and that she did not have a good relationship with the
Accused persons’ family as there was a dispute over land which they
demanded that she vacates. (The Court noted that she broke down
Criminal Case No. 29 of 2021 9
during her testimony having been reminded of the incident and took
time to answer the questions).
22. She was emphatic that she was present when the incident happened
and that the deceased was cut before he fell down and that it was not
true that he fell and died from the fall. She was emphatic that the
deceased was on top of the house that was demolished and that the 1st
Accused person climbed the house and cut the deceased while there.
23. PW 3, HELLEN OSIDE, testified that the deceased was her uncle and
that he knew the Accused persons as the 1st Accused person was her
step father while the 2nd and 3rd Accused persons were his nephews.
She also said that PW1 was her mother. It was her testimony that on
the material day, PW1 called the deceased to show him the side of the
house which had fallen on one side. PW1 asked her whether the people
who were to repair the house were still coming.
24. She stated that Duncan Chose and three (3) others entered the house.
She said that they had found the 1st Accused person cleaning the
compound near their house. The 1st Accused person then told the
deceased to go out and do what had brought him there. He also told
him that he was not his father and that his father died long ago.
25. She further testified that the deceased came out of the house and told
Duncan to give him a ladder, when he got on the second stair, the 2nd
Accused person told him to try and get to the roof and he would remove
his teeth. She said that the deceased came down and raised his hands
up. She stated that the 2nd Accused person had two (2) rungus.
26. She further stated that the 2nd Accused person hit the deceased with a
rungu on his head and shoulder and that the 3rd Accused person came
with a panga and cut the deceased on the head. She added that the 1st
Accused person came out and cut the deceased on the chin and said
that they should finish the deceased so that he could go away
completely. She screamed and people came to the scene. The deceased
was taken to hospital by Duncan Chose and Humphrey Gododi. She
added that the police took photographs of the scene and identified the
two (2) sticks that were recovered and were used to hit the deceased.
Criminal Case No. 29 of 2021 10
27. She said that the 3rd Accused person had two (2) pangas and he used
to cut the deceased with one while the other was placed down and that
2nd Accused person had two (2) rungus and used them both to hit the
deceased. On cross-examination, she confirmed that PW1 was in the
house when the incident happened and came after the deceased had
been injured by the 2nd and 3rd Accused persons. She confirmed that
she was the only one at the scene when the incident happened. She
admitted that the whole issue emanated from a land dispute as she
shared the same father with the 1st Accused person and that their father
had died without distributing land. She explained that the house that
was demolished was their father’s and at the material time, it belonged
to their mother but the 1st Accused person did not want the same
demolished.
28. PW 4, CHARLES KISAMBO SADI, testified that he knew the deceased
as a cousin to his father. He also knew the Accused persons as they
were relatives. On the material day, he stated that he was at home at
around 8.00am as he had come from his work as a security guard. He
heard screams coming from PW1’s home. He rushed to the said home
and when he inquired what had happened, PW1 told him that the 1st
Accused person and his children had beaten the deceased.
29. It was his testimony that he saw the deceased lying near an old house
and had been cut on the chin, head and on the left leg. He stated that
he took the deceased to the hospital together with George Sadi and that
he went back home to notify the deceased’s wife what had happened.
He later heard that the deceased died.
30. On his cross-examination, he stated that he could not say that the
deceased was injured by the ladder as he had been cut on the head,
chin and leg. He notified the Court that PW1 and the Accused persons
had differences arising out of land dispute and that the house was to
be demolished according to the Maragoli customs and that PW1 had
notified the larger family of the said demolition and everyone had agreed
to the same including the three (3) Accused persons. He wondered why
they injured the deceased.
Criminal Case No. 29 of 2021 11
31. PW 5, NO 113503 PC EVANS KORIR, testified on behalf of the
Investigating Officer No. 46924 PC Richard Korir who had retired. His
evidence corroborated that of PW1, PW2, PW3 and PW4. He explained
that PW1 had called the deceased to help her demolish the house which
was dilapidated. He said that according to the Maragoli custom, he was
to remove one iron sheet before the house could be demolished as that
happens when a woman has lost her husband. He added that PW1 was
staying in the same compound with the 1st Accused person who was a
step son and that the 1st Accused person was objecting the demolishing
of the house. When the deceased climbed to remove the iron sheet, the
Accused persons attacked him. He produced the recovered rungus as
exhibit in Court.
32. The 1st Accused person testified as DW1. It was his testimony that on
the material day at about 7.00a.m, he was outside his house collecting
garbage from the compound. He said that there were three (3) houses
in the said compound belonging to PW1 and that from his house to
PW1’s was about fifteen (15) steps. He stated that he saw about thirty
(30) people he did not know who were armed and who came to the
compound.
33. It was his testimony that one of them took a ladder and put it on PW1’s
house and that one of them an old man about aged seventy-six (76)
years old got up the ladder. He asserted that the person who got up the
ladder had a hammer and started removing the iron sheet. He said that
old man fell down with the ladder and that he went inside his house to
take tea while the armed people ran away.
34. He further stated that he took his children (the 1st and 2nd Accused
persons) to the Police Station at Mbale to report the matter. He said that
the 2nd Accused person was in the house and the 3rd Accused person
was in the kitchen when he was cleaning the compound and that it was
not true that they were at PW1’s house. He denied having a had a panga
that material day. He also denied having a dispute with PW1 or
interfering with the people who had come to work for her on the
demolition. His evidence was corroborated by that of 2nd and 3rd
Criminal Case No. 29 of 2021 12
Accused persons who testified as DW2 and DW3. It was their case that
the deceased died from falling from the ladder.
35. After carefully analysing the evidence that was adduced by the
Prosecution witnesses, it was evident that PW3 saw the 2nd Accused
persons beating the deceased on the material date with rungus and the
3rd Accused person cutting him with a panga on the head while the 1st
Accused person cut him on the chin with a panga.
36. The incident happened during daytime. Therefore, there was sufficient
light as PW1 and PW3 were able to see them beating the deceased.
37. PW1, PW3 and PW4 were also able to see the deceased bleeding and his
body full of injuries. PW1 and PW3 also saw the crude weapons the
Accused persons were carrying at the material time.
38. PW1 and PW3 all placed the Accused persons at the scene of crime.
There was sufficient lighting that was favourable for the positive
identification of the 1st, 2nd and 3rd Accused person.
39. Additionally, PW4 testified that PW1told him that it was the Accused
persons who had attacked the deceased.
40. This Court was persuaded to find and hold that the 1st, 2nd and 3rd
Accused persons were positively identified by PW1 and PW3 as
aforesaid. Identification was by way of recognition. They were all related
and were neigbours living in the same compound therefore knew each
other well. This could not have been a case of mistaken identity.
41. The Accused persons did not demonstrate that there was any motive
for PW1 and PW3 to have colluded to frame them as the people who
unlawfully caused the deceased’s death on that material date. Their
assertions that the Prosecution’s evidence was inconsistent and/or it
failed to call crucial witnesses thus fell on the wayside.
42. Consequently, it was this Court’s finding that the 1st, 2nd and 3rd
Accused persons’ defence was mere denial and did not displace and/or
dislodge the consistent and cogent evidence that was adduced by PW1,
PW2, PW3, PW4 and PW5.
43. The witnesses to this case were very emphatic that the accused persons
were previously known to them and there was no mistaken identity
Criminal Case No. 29 of 2021 13
whatsoever of placing each of the accused persons at the scene of the
crime.
44. The accused persons are charged jointly with the offence of murder.
This Court therefore has to determine whether they executed the
unlawful act with malice aforethought contrary to Section 203 of the
Penal Code jointly and severally as provided for under Section 21 of the
Penal Code. The Penal Code provides on the principles of criminal
responsibility in the following terms:
"When two or more persons form a common intention to prosecute
an unlawful purpose in conjunction with one another, and in the
prosecution of that purpose an offence is committed of such a
nature that its commission was a probable consequence of the
prosecution of that purpose, each of them is deemed to have
committed the offence."
45. This is to be read in conjunction with Section 20 of the Penal Code
which also provides as follows:
"(1) When an offence is committed, each of the following persons is
deemed to have taken part in committing the offence and to be
guilty of the offence and may be charged with actually committing
it- (a) every person who actually does the act or makes the omission
which constitutes the offence; (b) every person who does or omits
to do any act for the purpose of enabling or aiding another person
to commit the offence;
(c) every person who aids or abets another person in committing
the offence.
(2) Any person who procures another to do or omit to do any act of
such nature that if he or she had done the act or made the omission
the act or omission would have constituted an offence on his or her
part is guilty of an offence of the same kind and is liable to the
same punishment as if he or she had done the act or made the
omission; and he or she may be charged with doing the act or
making the omission."
Criminal Case No. 29 of 2021 14
46. The Court in the case of Ismael Kisegerwa & Anor. vs Uganda; C.A.
Crim. Appeal No. 6 of 1978 remarked as follows:
"In order to make the doctrine of common intention applicable, it
must be shown that the accused had shared with the actual
perpetrator of the crime a common intention to pursue a specific
unlawful purpose, which led to the commission of the offence. If it
can be shown that the accused persons shared with one another
a common intention to pursue a specific unlawful purpose, and in
the prosecution of that unlawful purpose an offence was
committed, the doctrine of common intention would apply
irrespective of whether the offence committed was murder or
manslaughter.”
47. From the local legal trajectory, Kenyan Courts have not been left behind
in underpinning the principles on common intention under Section 21
of the Penal Code. Thus, the following cases are on point:
Republic v. Erick Kiboi Ombati & 3 others (Criminal Case 21 of
2015): The Court outlined that common intention can be inferred
from the joint actions of the accused, such as participating in a mob
attack, which proves beyond reasonable doubt that they were acting
with malice aforethought.
Republic v. Nelson Bosire Otuke & 2 others (HCCRC E021 of
2022): The High Court relied on Section 21 to convict multiple
accused individuals for murder because they actively participated in
the initial assault, rendering them liable under the doctrine.
Mabel Kavati & Another v. Republic (Machakos High Court): The
Court affirmed that while each case is decided on its own merits,
evidence that accused persons acted in a joint criminal enterprise—
even if one did not physically deal the fatal strike—satisfies the
threshold of common intention.
48. The fundamental principle under common intention is that although
the specific individuals may not have struck the fatal blow, all
participated in the unlawful act and shared a common intention making
Criminal Case No. 29 of 2021 15
them all equally culpable as principals of committing the offence in
question. In this case there is sufficient evidence that the accused
persons before Court had a common intention which has been proved
by way of evidence to cause the death of the deceased. The gaps being
alluded to by the defence Counsel is not capable of occasioning a
rebuttal to the Prosecution case which has been proved beyond
reasonable doubt. I therefore hold the view from the evidence that the
three accused persons before this Court shared a common intention
and acted together to commit the crime of murder against the deceased
and the conduct of each of one of them is legally imputed to all the
others bypassing the need to prove individual causation.
49. This is a case in which there was both direct and circumstantial
evidence which formed the chain of events which are so complete
pointing towards the accused persons’ guilt to the exclusion of all other
reasonable hypothesis. The Court in R vs Kipkering Arap Koskei and
Another [1949] 16 EACA, observed as follows:
“That in order to justify, on circumstantial evidence, the inference
of guilt, the inculpatory facts must be incompatible with the
innocence of the accused, and incapable of explanation upon any
other reasonable hypothesis than that of guilt, and the burden of
proving facts which justify the facts to the exclusion of any
reasonable hypothesis of innocence is always on the prosecution
and never shifts to the accused. This principle was late in the case
of Simon Musoke vs R. Criminal Appeal No. 188 of 1956 given more
explanation when the court added that at the same time there must
not be any co-existing facts in or circumstances which may weaken
or destroy that inference of the guilt of the accused person”.
50. This is also the position taken by the Court in the case of Peter Mote
Obero & Another V Republic [2011] eKLR Court of Appeal at Kisumu,
in Criminal Appeal No. 177 of 2008, the learned Judges Omolo, Waki &
Nyamu, JJA reiterated as follows;
“It is the essence of circumstantial evidence that, in order to justify
an inference of guilt, the inculpatory facts must be incompatible
Criminal Case No. 29 of 2021 16
with the innocence of the accused and incapable of explanation
upon any other reasonable hypothesis than that of guilt. It is also
necessary before drawing the inference of the accused’s guilt from
circumstantial evidence to be sure that there are no other co-
existing circumstances which would weaken or destroy the
inference – Teper V R [1952] AC 480. With those safeguards in
place, circumstantial evidence is as good as any direct evidenc
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