REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL CASE NO E029 OF 2022 (MURDER)
REPUBLIC…………………………………………..….PROSECUTOR
VERSUS
BRIAN WANJALA BIKETI…………………………..……..ACCUSED
JUDGMENT
Brian Wanjala Biketi ( the accused) is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that, on the 24 th day of August 2022 at Ndengelwa area in Bungoma South Sub- County within Bungoma County murdered Phyllis Nanjala.
The accused person denied the charge. The prosecution called seven (7) witnesses to prove their case.
PROSECUTION CASE
Ben Barasa Makoi (Pw1) testified that the deceased, Phyllis Nanjala Khaemba, was his wife. He knows the accused well, having met him in Meru in 2021. On 24th August 2022, he was at home when his mother informed him that his wife had committed suicide. He got up and went to the place where the deceased was working and staying at Ndengelwa. Upon arriving at the clinic, they found the door closed. The police opened it, and they discovered her body inside. The deceased had a rope around her neck made from curtain fabric. She was kneeling, with her knees not touching the ground. They took the body to the mortuary in Bungoma. On 30th August 2022, a post-mortem was conducted, and he identified the body. The post-mortem revealed that she had a broken neck, injuries on the right side of her ribs, and her knees had been hit and injured.
Luka Muhuana Umali (Pw2) testified that the deceased was her employee and the wife of her cousin, Pw1. The deceased had worked for her for three months. She is acquainted with the accused, Brian. Her landlord called her at 7:40 am to inform her that the deceased had committed suicide. Upon arriving at her clinic, she found that the police had broken in. They discovered the deceased hanging from a piece of curtain within the clinic. Her knees were on the floor in a kneeling position. She heard people saying that Brian was the husband of the deceased. The police arrested the accused.
Catherine Khaemba (Pw3) testified that Pw2 has a clinic on her plot in Ndeneglwa. She knew the deceased, who lived on her plot and was a nurse. She often saw the accused visiting the clinic regularly. On 25th August 2022, the accused went to her place and asked, “Where is sister?”. He was looking for the deceased. She told him it was early and that she might still be asleep. He responded that he doubted she was sleeping, as she had called him the night before at 9:00 p.m. and mentioned that he might not find her the next day. Surprised, she went to the clinic. The place was dark. She called out her name twice but received no answer. The accused returned and informed her that she was saying the deceased was asleep, but she had hanged herself. She went to check and asked him to call the police. The accused went to fetch the police. Before the deceased died, she had inquired about her relationship with Brian. The deceased told her that the accused was her husband. She recalled that the accused had been there at 4:00 p.m. on the evening of the 24th. She did not see the accused leave, she locked her place at 8:00 p.m. When the police arrived, they found the deceased in the room on the ground, kneeling with a cloth around her neck. The deceased had seemed alright when she saw her.
Doctor Elly Kiplimo Kosgei (Pw4) testified that he performed a post-mortem on Phyllis Nanjala on 30/10/2022. He observed a ligature mark on her neck, likely from a curtain or bedsheet. She also had a bruise with a hematoma on her left leg and another bruise on the right anterior tibial region of the lower limb. Her neck was mobile. She suffered from a collapsed lung and massive haemothorax, along with fractures to the head and the hyoid bone. He concluded that the cause of death was severe asphyxia due to strangulation with massive haemothorax.
Cpl Johana Tanui (Pw5), scenes of crime officer, testified that he was called to a scene and found a body in a kneeling position with a piece of cloth tied around her neck, which was tied to the roof of the building. Upon examination of her body, she had blood stains on her right palm, which he swabbed for further analysis. They recovered two phones. The investigating officer later searched the suspect and recovered a yellowish pair of pants (D1), a black striped greenish T-shirt (D2), brownish long trousers (D11), and a pair of used surgical gloves marked ( E ). He took 13 photographs. No. 1 was a close-up view of the clinic, No. 2 to 6 were photos of the body taken from different angles, No. 7 to 8 were close-up views of the bed, chair and phone, and No. 9 to 13 were closer views of the exhibits recovered from the suspect. He produced the 13 photographs and a certificate. From the photographs, he found it was not consistent with a suicide hanging. The piece of cloth used to hang the body made a round shape around the neck instead of a ‘V’ shape. When a person hangs himself, the sudden force makes a V-shape. The round shape indicates that the cloth was tied around her neck, and her body was in a kneeling position. In cross-examination, Pw5 told the court that he visited the scene in the morning. People were at the scene. Police officers were already at the scene. The scene was protected. He did not know how the scene was before the police arrived. The deceased did not commit suicide. The stool in the room was not far from the body.
Polycarp Lutta Kweyu, a government analyst, testified as follows: on 14th September 2022, Cpl Kipkirui Serem of DCI Bungoma submitted six items for DNA analysis: a toenail from Philis Nanjala (deceased), marked ‘F’; a yellow pant, marked ‘D’; a short-sleeved black and green T-shirt, marked ‘D2’; a pair of cream latex surgical gloves, marked ‘D3’; and a blood sample from Brian Wanjala Biketi (suspect), marked ‘E’. He was requested to carry out a DNA analysis on the aforementioned items to determine the presence and origin of biological evidential material. His findings after the analysis were as follows: the stains on the yellow pant, item ‘D’, and the stains inside the glove of item ‘D3’ tested positive for seminal fluid and spermatozoa. He marked the two gloves differently from the police, as they had differing findings. The tissue and trouser item ‘D2’ were slightly stained with human blood. He generated a DNA profile from the samples at the back of the report. After comparing the DNA profiles, he made the following findings and opinion: the male DNA profile generated from the seminal fluid on the panty item ‘D1’ and the seminal fluid in glove ‘B’, item ‘D3’ were identical and matched the DNA profile from Brian Wanjala Biketi. The male DNA profile generated from the bloodstained trouser item ‘D2’ belonged to a single unknown male person. The female DNA profile generated from the curtain surface of glove ‘B’, item ‘D3’, the bloodstain on the T-shirt item ‘D2’, and the pant item ‘D1’ were identical and matched the DNA profile of Philis Nanjala, the deceased. The DNA profile generated from glove ‘A’, part of item ‘D3’, was partial and inconclusive; he could not determine if it belonged to a male or female. During cross-examination, he stated that his colleague received the exhibits. The blood sample of the accused was submitted. They usually do not follow up on the source of the exhibits. The blood they received was suitable because, if it were not, they would have rejected it. The blood sample was not preserved; had it been so, they would have rejected it.
No. 90903 Corporal ( Cpl) Kipkirui Serem testified that he is the investigating officer in this case. On the 25th of August 2022, he received information from officers at Ndengelwa Police that they needed assistance with a case of suicide. They proceeded to the scene, a clinic at Ndengelwa called Malon Clinic. Upon entering, they found the lifeless body of a human being tied around the neck with a piece of cloth hanging from the rafters of the clinic. He examined the body; it did not appear to be a case of suicide. He decided to investigate and interviewed several witnesses. He learnt that someone had reported that the deceased was his girlfriend. The officers at Ndengelwa had arrested the accused and detained him. They processed the scene and moved the body to Bungoma General Hospital morgue. Later, he interrogated the accused, who provided different accounts of the events; at one point, he claimed the deceased was his wife and then stated that she was his girlfriend. He conducted a thorough search with the purpose of placing him in the cells and noticed a stain on the chest area. He took the T-shirt for DNA analysis. The accused failed to account for the stain. He asked the accused to remove his belt, as prisoners in custody are not allowed to have belts in the cells. He discovered that the accused had two trousers. He asked him to remove the trousers and found that he was hiding some other materials in that particular pair of trousers. This was a lady's yellow panties. It appeared dirty. He also sound a pair of surgical gloves which were used. The accused could not give an explanation for the items. He preserved them for DNA analysis. As the accused removed the trousers, he noticed that they appeared to have blood stains on the knee region. He recovered the same for DNA analysis. The deceased was identified as Philis Nanjala. A post-mortem was done on 30.8.2022 and it was established that she died as result of severe asphyxia from strangulation with massive hemoathrax. The body of the deceased had injuries to show she was defending herself prior to the injuries. Later, he sent an exhibit to the government analyst in Kisumu for analysis. Photographs were taken by the scenes of crime. The accused consented to his blood being taken.
DEFENCE CASE
The accused, in his defence, gave a sworn statement. He testified as follows; he was staying in Webuye before his arrest and he does business and is also a farmer. He did not murder Phylis Nanjala Kahemba. He knew the deceased was his girlfriend. They had been friends for over two years. On the 23rd August 2022, he was at Webuye. At 3.00 pm he came to visit his girlfriend. He came to get medicine for his mother who was sick. He bought the medicine for his mother. The deceased gave him the medicine. She worked as a Chemist and would sleep at her workplace. He visited her and left for Webuye at 6.00pm. He left her at work she was well. They did not meet again after that. On the 24 th he woke up to go to work. Her workplace was on his way to his work. On reaching her place, he found the door locked. He called, and she did not respond. He decided to get her landlord. She tried to call the deceased and she did not respond. The door was locked from inside. The landlord tried to open the door, but she could not. They went with the landlord to get help from the police at Ndengelwa. They made a report and went back to the clinic. The door was still locked. Later, the police picked him to go help them, and on reaching the police station, he was interrogated and he denied. They inquired about what could be in the house to account for it being locked. He stayed there for 4 hours, and he was brought to Bungoma. He denied knowing that Pw1 was the deceased’s husband. He did not know the deceased had a husband. He knew she had children who were staying with her mother. He never visited the husband’s place. He does not know Catherine Khaemba. Her Landlord was called Pamela. The exhibits produced nos. 6,7, 8 , 9 a & b were not on him. He was seeing the trousers in court. He does not know the T-shirt either. He saw the exhibits in court. He had a brown shirt on the material day and black trousers. He was not asked to remove his clothes. No blood was taken from him from the time of his arrest, nor was he taken to the hospital to have blood taken. The officer who testified in court is not the one who booked him in the cells. He produced the investigation diary as Defence Exhibit No. 1. He was arrested as a suspect. The deceased was his lover. During cross-examination, the accused told the court that the deceased sold the medicine to him on credit on the 23 rd August 2022. He cannot estimate the time he was at Ndelengwa. He returned home at 6:00 p.m. He has nothing to show that he had a sick mother. On the 24 th he went to the deceased’s place and found the door locked. He was not worried that he had seen her. It is a lie that he locked the door and went to the police station. The landlady is Pamela and not the lady who came to court. It is a lie that the exhibits which were produced in court were found in his trousers. He did not know the police officer before his arrest, nor did he know the government analyst. It is a lie that they have no reason to frame him. He did not call the family of the deceased. The police took his phone. He does not have another murder case.
SUBMISSIONS
The prosecution and defence filed written submissions. The prosecution submitted as follows: the death and cause of death of the deceased were proved. The accused intentionally and unlawfully killed the deceased. The accused had informed Pw1 that the deceased was married to another man and further that the deceased had raised an issue regarding the accused maligning her with the intention of sabotaging her marriage. Pw3 saw the accused at the clinic on the 24 th August 2022 at around 16:00 hours, but she did not see him leave. The accused told her that the deceased had threatened to commit suicide. According to the investigating officer (I/O), the door was locked from inside, and there was no way the deceased could have killed herself and then shut the door from inside. The I/O did not find any communication between the deceased and the accused on 23.8.2022. The doctor explained why he arrived at the conclusion that the deceased was strangled and did not kill herself. On motive and malice aforethought, it was submitted that by strangling the deceased to death, the accused had malice aforethought since every intentional killing is with malice aforethought. The accused’s defence is marred with gaps and is a total sham. When juxtaposed with the overwhelming prosecution evidence, the defence tendered is weak and does not reasonably challenge the watertight evidence tendered by the prosecution witnesses. While they agree with the defence that there is no direct evidence linking the accused to the commission of the offence, as there was no eye witnesses to the offence, Pw6’s evidence directly and exhaustively connected the accused to the death of the deceased, this is because the blood samples drawn from a trouser he was wearing matched the deceased’s DNA profile.
The defence analysed the prosecution evidence and submitted that there was no direct evidence linking the accused to the murder of the deceased, except for the DNA report, which has discrepancies. It was submitted that Pw7 stated the accused was wearing brown trousers, whose analysis showed they belonged to an unknown person. Convicting the accused solely on evidence from the government analyst without corroborating evidence is unsafe. The deceased and the accused were lovers, and there is a chance they had sex on 24/8/2022 when they met. Pw5 stated they went to the scene with Pw7 in the afternoon, whereas Pw7 claimed it was in the morning. No eyewitness testified that they saw the accused strangle the deceased. Pw4, who performed the post-mortem, did not take any specimens from the deceased for DNA analysis. The prosecution failed to show how they obtained the deceased’s sample and the accused’s sample. There was no mention of the specimens taken in the investigation diary, a document detailing the investigation, exhibits recovered, evidence gathered, and the conclusion reached. Pw7 relied on the evidence of a witness who did not witness the strangulation. On the defence of alibi raised, counsel relied on the case of Republic versus Omar Ali Chidagaya , which states that alibi posits the physical impossibility of the accused at the scene of the offence. It is well established that if the accused raises an alibi defence, the burden lies on the prosecution to prove that the accused was at the scene of the crime. If the prosecution fails to discharge this burden, the case should be resolved in favour of the accused. It was further argued that the prosecution failed to place the accused at the scene of the crime and that, from the above contradictions, the prosecution has failed to prove their case beyond a reasonable doubt. The defence also relied on the case of Musili Tulo v. Republic (2014) eKLR to support their argument that there was no direct evidence against the accused and that the prosecution relied on circumstantial evidence.
ANALYSIS AND DETERMINATION
In a murder case the prosecution has to prove the following the death and cause of death of the deceased, the accused caused the unlawful death of the deceased and that he had malice aforethought
Regarding the first issue, I find evidence that the deceased died. Pw1, Pw2 and Pw3 testified that they saw the body of the deceased. Pw4 did a post-mortem on the deceased and formed the opinion that the cause of death was severe asphyxia due to strangulation with massive haemothorax.
On whether the accused caused the unlawful death of the deceased. None of the witnesses who testified saw the accused strangle the deceased. The evidence presented by the prosecution is circumstantial. In the case of Nzibo v R (2005) 1KLR 699 the Court of Appeal held as follows:
“In a case depending entirely on circumstantial evidence in order to justify the inference of guilt, the incriminating facts must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his 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 coexisting circumstances which would weaken or destroy the inference.’’
The prosecution has submitted that the evidence that links the accused to the murder is the evidence of Pw6, the government analyst. Pw7 stated that after they arrested the accused they recovered the items which were submitted to the government analyst. The accused denied being in possession of the exhibits in question. The defence raised an important point that the investigation dairy that indicates the exhibits recovered or investigations done does not mention any exhibit being recovered from the accused. The defence drew this court’s attention to the post-mortem reports that does not indicate that there were any specimens taken from the deceased or the accused. I find that the prosecution were to demonstrate how they obtained the specimen they took to the government analyst. Pw 4, who did the post-mortem, did not mention anything about taking a specimen from the deceased. In the case of Musili Tulo vs Republic (supra), the court held that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. The circumstances should be of a definite tendency, pointing towards the guilt of the accused. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that, within all human probability, the crime was committed by the accused and no one else.
The government analyst's report states that the seminal fluid found on the panty and in the gloves matched the DNA profile derived from the accused. The accused has denied that any samples were taken from him. The prosecution did not demonstrate how they obtained the specimens in question. Further, the reports show that the DNA from the trousers belonged to an unknown male. This does not establish a link between the accused and the deceased. Another finding is that the sample from the T-shirt and panty matched the deceased. Pw4 did not take any samples from the deceased. How were these samples collected? The other glove, reported to have been recovered from the accused, was partial and inconclusive. The investigating diary does not indicate that any specimens or exhibits were recovered from the accused, nor did the prosecution provide an inventory of the exhibits found on him. Moreover, if a blood sample or other specimen had been taken from the accused, why did the prosecution not produce the consent he is said to have signed? The accused denied that these items were recovered from him. I find that there are gaps in the prosecution's case which do not establish that the accused was the person who murdered the deceased. There are no other circumstances that weaken the prosecution's case. Additionally, Pw3, who spoke to the accused on 24/8/2022, told the court that she saw the accused with the deceased before she closed at 8.00 pm the previous day. What happened after she closed remains unestablished. The prosecution needed to prove that all the evidence clearly points to the accused as the murderer. The gaps I have highlighted create doubt in my mind whether the accused indeed murdered the deceased. The accused remains a suspect in this matter. Suspicion, however strong, cannot be used as the basis for inferring guilt (see Mary Wanjiku Gichira v Republic). I need not decide on malice aforethought.
I find that the prosecution has failed to prove their case beyond reasonable doubt. The accused is acquitted of the charge of murder and is set free, unless lawfully held.
Dated, signed and delivered at Bungoma this 13 th day of June 2025 .
R.E.OUGO
JUDGE
In the presence of:
Brian Wanjala Biketi/Accused
Miss Matere For the State
Miss Natwati For the Accused
Wilkister C/A
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL CASE NO E029 OF 2022 (MURDER)
REPUBLIC…………………………………………..….PROSECUTOR
VERSUS
BRIAN WANJALA BIKETI…………………………..……..ACCUSED
JUDGMENT
Brian Wanjala Biketi ( the accused) is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that, on the 24 th day of August 2022 at Ndengelwa area in Bungoma South Sub- County within Bungoma County murdered Phyllis Nanjala.
The accused person denied the charge. The prosecution called seven (7) witnesses to prove their case.
PROSECUTION CASE
Ben Barasa Makoi (Pw1) testified that the deceased, Phyllis Nanjala Khaemba, was his wife. He knows the accused well, having met him in Meru in 2021. On 24th August 2022, he was at home when his mother informed him that his wife had committed suicide. He got up and went to the place where the deceased was working and staying at Ndengelwa. Upon arriving at the clinic, they found the door closed. The police opened it, and they discovered her body inside. The deceased had a rope around her neck made from curtain fabric. She was kneeling, with her knees not touching the ground. They took the body to the mortuary in Bungoma. On 30th August 2022, a post-mortem was conducted, and he identified the body. The post-mortem revealed that she had a broken neck, injuries on the right side of her ribs, and her knees had been hit and injured.
Luka Muhuana Umali (Pw2) testified that the deceased was her employee and the wife of her cousin, Pw1. The deceased had worked for her for three months. She is acquainted with the accused, Brian. Her landlord called her at 7:40 am to inform her that the deceased had committed suicide. Upon arriving at her clinic, she found that the police had broken in. They discovered the deceased hanging from a piece of curtain within the clinic. Her knees were on the floor in a kneeling position. She heard people saying that Brian was the husband of the deceased. The police arrested the accused.
Catherine Khaemba (Pw3) testified that Pw2 has a clinic on her plot in Ndeneglwa. She knew the deceased, who lived on her plot and was a nurse. She often saw the accused visiting the clinic regularly. On 25th August 2022, the accused went to her place and asked, “Where is sister?”. He was looking for the deceased. She told him it was early and that she might still be asleep. He responded that he doubted she was sleeping, as she had called him the night before at 9:00 p.m. and mentioned that he might not find her the next day. Surprised, she went to the clinic. The place was dark. She called out her name twice but received no answer. The accused returned and informed her that she was saying the deceased was asleep, but she had hanged herself. She went to check and asked him to call the police. The accused went to fetch the police. Before the deceased died, she had inquired about her relationship with Brian. The deceased told her that the accused was her husband. She recalled that the accused had been there at 4:00 p.m. on the evening of the 24th. She did not see the accused leave, she locked her place at 8:00 p.m. When the police arrived, they found the deceased in the room on the ground, kneeling with a cloth around her neck. The deceased had seemed alright when she saw her.
Doctor Elly Kiplimo Kosgei (Pw4) testified that he performed a post-mortem on Phyllis Nanjala on 30/10/2022. He observed a ligature mark on her neck, likely from a curtain or bedsheet. She also had a bruise with a hematoma on her left leg and another bruise on the right anterior tibial region of the lower limb. Her neck was mobile. She suffered from a collapsed lung and massive haemothorax, along with fractures to the head and the hyoid bone. He concluded that the cause of death was severe asphyxia due to strangulation with massive haemothorax.
Cpl Johana Tanui (Pw5), scenes of crime officer, testified that he was called to a scene and found a body in a kneeling position with a piece of cloth tied around her neck, which was tied to the roof of the building. Upon examination of her body, she had blood stains on her right palm, which he swabbed for further analysis. They recovered two phones. The investigating officer later searched the suspect and recovered a yellowish pair of pants (D1), a black striped greenish T-shirt (D2), brownish long trousers (D11), and a pair of used surgical gloves marked ( E ). He took 13 photographs. No. 1 was a close-up view of the clinic, No. 2 to 6 were photos of the body taken from different angles, No. 7 to 8 were close-up views of the bed, chair and phone, and No. 9 to 13 were closer views of the exhibits recovered from the suspect. He produced the 13 photographs and a certificate. From the photographs, he found it was not consistent with a suicide hanging. The piece of cloth used to hang the body made a round shape around the neck instead of a ‘V’ shape. When a person hangs himself, the sudden force makes a V-shape. The round shape indicates that the cloth was tied around her neck, and her body was in a kneeling position. In cross-examination, Pw5 told the court that he visited the scene in the morning. People were at the scene. Police officers were already at the scene. The scene was protected. He did not know how the scene was before the police arrived. The deceased did not commit suicide. The stool in the room was not far from the body.
Polycarp Lutta Kweyu, a government analyst, testified as follows: on 14th September 2022, Cpl Kipkirui Serem of DCI Bungoma submitted six items for DNA analysis: a toenail from Philis Nanjala (deceased), marked ‘F’; a yellow pant, marked ‘D’; a short-sleeved black and green T-shirt, marked ‘D2’; a pair of cream latex surgical gloves, marked ‘D3’; and a blood sample from Brian Wanjala Biketi (suspect), marked ‘E’. He was requested to carry out a DNA analysis on the aforementioned items to determine the presence and origin of biological evidential material. His findings after the analysis were as follows: the stains on the yellow pant, item ‘D’, and the stains inside the glove of item ‘D3’ tested positive for seminal fluid and spermatozoa. He marked the two gloves differently from the police, as they had differing findings. The tissue and trouser item ‘D2’ were slightly stained with human blood. He generated a DNA profile from the samples at the back of the report. After comparing the DNA profiles, he made the following findings and opinion: the male DNA profile generated from the seminal fluid on the panty item ‘D1’ and the seminal fluid in glove ‘B’, item ‘D3’ were identical and matched the DNA profile from Brian Wanjala Biketi. The male DNA profile generated from the bloodstained trouser item ‘D2’ belonged to a single unknown male person. The female DNA profile generated from the curtain surface of glove ‘B’, item ‘D3’, the bloodstain on the T-shirt item ‘D2’, and the pant item ‘D1’ were identical and matched the DNA profile of Philis Nanjala, the deceased. The DNA profile generated from glove ‘A’, part of item ‘D3’, was partial and inconclusive; he could not determine if it belonged to a male or female. During cross-examination, he stated that his colleague received the exhibits. The blood sample of the accused was submitted. They usually do not follow up on the source of the exhibits. The blood they received was suitable because, if it were not, they would have rejected it. The blood sample was not preserved; had it been so, they would have rejected it.
No. 90903 Corporal ( Cpl) Kipkirui Serem testified that he is the investigating officer in this case. On the 25th of August 2022, he received information from officers at Ndengelwa Police that they needed assistance with a case of suicide. They proceeded to the scene, a clinic at Ndengelwa called Malon Clinic. Upon entering, they found the lifeless body of a human being tied around the neck with a piece of cloth hanging from the rafters of the clinic. He examined the body; it did not appear to be a case of suicide. He decided to investigate and interviewed several witnesses. He learnt that someone had reported that the deceased was his girlfriend. The officers at Ndengelwa had arrested the accused and detained him. They processed the scene and moved the body to Bungoma General Hospital morgue. Later, he interrogated the accused, who provided different accounts of the events; at one point, he claimed the deceased was his wife and then stated that she was his girlfriend. He conducted a thorough search with the purpose of placing him in the cells and noticed a stain on the chest area. He took the T-shirt for DNA analysis. The accused failed to account for the stain. He asked the accused to remove his belt, as prisoners in custody are not allowed to have belts in the cells. He discovered that the accused had two trousers. He asked him to remove the trousers and found that he was hiding some other materials in that particular pair of trousers. This was a lady's yellow panties. It appeared dirty. He also sound a pair of surgical gloves which were used. The accused could not give an explanation for the items. He preserved them for DNA analysis. As the accused removed the trousers, he noticed that they appeared to have blood stains on the knee region. He recovered the same for DNA analysis. The deceased was identified as Philis Nanjala. A post-mortem was done on 30.8.2022 and it was established that she died as result of severe asphyxia from strangulation with massive hemoathrax. The body of the deceased had injuries to show she was defending herself prior to the injuries. Later, he sent an exhibit to the government analyst in Kisumu for analysis. Photographs were taken by the scenes of crime. The accused consented to his blood being taken.
DEFENCE CASE
The accused, in his defence, gave a sworn statement. He testified as follows; he was staying in Webuye before his arrest and he does business and is also a farmer. He did not murder Phylis Nanjala Kahemba. He knew the deceased was his girlfriend. They had been friends for over two years. On the 23rd August 2022, he was at Webuye. At 3.00 pm he came to visit his girlfriend. He came to get medicine for his mother who was sick. He bought the medicine for his mother. The deceased gave him the medicine. She worked as a Chemist and would sleep at her workplace. He visited her and left for Webuye at 6.00pm. He left her at work she was well. They did not meet again after that. On the 24 th he woke up to go to work. Her workplace was on his way to his work. On reaching her place, he found the door locked. He called, and she did not respond. He decided to get her landlord. She tried to call the deceased and she did not respond. The door was locked from inside. The landlord tried to open the door, but she could not. They went with the landlord to get help from the police at Ndengelwa. They made a report and went back to the clinic. The door was still locked. Later, the police picked him to go help them, and on reaching the police station, he was interrogated and he denied. They inquired about what could be in the house to account for it being locked. He stayed there for 4 hours, and he was brought to Bungoma. He denied knowing that Pw1 was the deceased’s husband. He did not know the deceased had a husband. He knew she had children who were staying with her mother. He never visited the husband’s place. He does not know Catherine Khaemba. Her Landlord was called Pamela. The exhibits produced nos. 6,7, 8 , 9 a & b were not on him. He was seeing the trousers in court. He does not know the T-shirt either. He saw the exhibits in court. He had a brown shirt on the material day and black trousers. He was not asked to remove his clothes. No blood was taken from him from the time of his arrest, nor was he taken to the hospital to have blood taken. The officer who testified in court is not the one who booked him in the cells. He produced the investigation diary as Defence Exhibit No. 1. He was arrested as a suspect. The deceased was his lover. During cross-examination, the accused told the court that the deceased sold the medicine to him on credit on the 23 rd August 2022. He cannot estimate the time he was at Ndelengwa. He returned home at 6:00 p.m. He has nothing to show that he had a sick mother. On the 24 th he went to the deceased’s place and found the door locked. He was not worried that he had seen her. It is a lie that he locked the door and went to the police station. The landlady is Pamela and not the lady who came to court. It is a lie that the exhibits which were produced in court were found in his trousers. He did not know the police officer before his arrest, nor did he know the government analyst. It is a lie that they have no reason to frame him. He did not call the family of the deceased. The police took his phone. He does not have another murder case.
SUBMISSIONS
The prosecution and defence filed written submissions. The prosecution submitted as follows: the death and cause of death of the deceased were proved. The accused intentionally and unlawfully killed the deceased. The accused had informed Pw1 that the deceased was married to another man and further that the deceased had raised an issue regarding the accused maligning her with the intention of sabotaging her marriage. Pw3 saw the accused at the clinic on the 24 th August 2022 at around 16:00 hours, but she did not see him leave. The accused told her that the deceased had threatened to commit suicide. According to the investigating officer (I/O), the door was locked from inside, and there was no way the deceased could have killed herself and then shut the door from inside. The I/O did not find any communication between the deceased and the accused on 23.8.2022. The doctor explained why he arrived at the conclusion that the deceased was strangled and did not kill herself. On motive and malice aforethought, it was submitted that by strangling the deceased to death, the accused had malice aforethought since every intentional killing is with malice aforethought. The accused’s defence is marred with gaps and is a total sham. When juxtaposed with the overwhelming prosecution evidence, the defence tendered is weak and does not reasonably challenge the watertight evidence tendered by the prosecution witnesses. While they agree with the defence that there is no direct evidence linking the accused to the commission of the offence, as there was no eye witnesses to the offence, Pw6’s evidence directly and exhaustively connected the accused to the death of the deceased, this is because the blood samples drawn from a trouser he was wearing matched the deceased’s DNA profile.
The defence analysed the prosecution evidence and submitted that there was no direct evidence linking the accused to the murder of the deceased, except for the DNA report, which has discrepancies. It was submitted that Pw7 stated the accused was wearing brown trousers, whose analysis showed they belonged to an unknown person. Convicting the accused solely on evidence from the government analyst without corroborating evidence is unsafe. The deceased and the accused were lovers, and there is a chance they had sex on 24/8/2022 when they met. Pw5 stated they went to the scene with Pw7 in the afternoon, whereas Pw7 claimed it was in the morning. No eyewitness testified that they saw the accused strangle the deceased. Pw4, who performed the post-mortem, did not take any specimens from the deceased for DNA analysis. The prosecution failed to show how they obtained the deceased’s sample and the accused’s sample. There was no mention of the specimens taken in the investigation diary, a document detailing the investigation, exhibits recovered, evidence gathered, and the conclusion reached. Pw7 relied on the evidence of a witness who did not witness the strangulation. On the defence of alibi raised, counsel relied on the case of Republic versus Omar Ali Chidagaya , which states that alibi posits the physical impossibility of the accused at the scene of the offence. It is well established that if the accused raises an alibi defence, the burden lies on the prosecution to prove that the accused was at the scene of the crime. If the prosecution fails to discharge this burden, the case should be resolved in favour of the accused. It was further argued that the prosecution failed to place the accused at the scene of the crime and that, from the above contradictions, the prosecution has failed to prove their case beyond a reasonable doubt. The defence also relied on the case of Musili Tulo v. Republic (2014) eKLR to support their argument that there was no direct evidence against the accused and that the prosecution relied on circumstantial evidence.
ANALYSIS AND DETERMINATION
In a murder case the prosecution has to prove the following the death and cause of death of the deceased, the accused caused the unlawful death of the deceased and that he had malice aforethought
Regarding the first issue, I find evidence that the deceased died. Pw1, Pw2 and Pw3 testified that they saw the body of the deceased. Pw4 did a post-mortem on the deceased and formed the opinion that the cause of death was severe asphyxia due to strangulation with massive haemothorax.
On whether the accused caused the unlawful death of the deceased. None of the witnesses who testified saw the accused strangle the deceased. The evidence presented by the prosecution is circumstantial. In the case of Nzibo v R (2005) 1KLR 699 the Court of Appeal held as follows:
“In a case depending entirely on circumstantial evidence in order to justify the inference of guilt, the incriminating facts must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his 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 coexisting circumstances which would weaken or destroy the inference.’’
The prosecution has submitted that the evidence that links the accused to the murder is the evidence of Pw6, the government analyst. Pw7 stated that after they arrested the accused they recovered the items which were submitted to the government analyst. The accused denied being in possession of the exhibits in question. The defence raised an important point that the investigation dairy that indicates the exhibits recovered or investigations done does not mention any exhibit being recovered from the accused. The defence drew this court’s attention to the post-mortem reports that does not indicate that there were any specimens taken from the deceased or the accused. I find that the prosecution were to demonstrate how they obtained the specimen they took to the government analyst. Pw 4, who did the post-mortem, did not mention anything about taking a specimen from the deceased. In the case of Musili Tulo vs Republic (supra), the court held that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. The circumstances should be of a definite tendency, pointing towards the guilt of the accused. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that, within all human probability, the crime was committed by the accused and no one else.
The government analyst's report states that the seminal fluid found on the panty and in the gloves matched the DNA profile derived from the accused. The accused has denied that any samples were taken from him. The prosecution did not demonstrate how they obtained the specimens in question. Further, the reports show that the DNA from the trousers belonged to an unknown male. This does not establish a link between the accused and the deceased. Another finding is that the sample from the T-shirt and panty matched the deceased. Pw4 did not take any samples from the deceased. How were these samples collected? The other glove, reported to have been recovered from the accused, was partial and inconclusive. The investigating diary does not indicate that any specimens or exhibits were recovered from the accused, nor did the prosecution provide an inventory of the exhibits found on him. Moreover, if a blood sample or other specimen had been taken from the accused, why did the prosecution not produce the consent he is said to have signed? The accused denied that these items were recovered from him. I find that there are gaps in the prosecution's case which do not establish that the accused was the person who murdered the deceased. There are no other circumstances that weaken the prosecution's case. Additionally, Pw3, who spoke to the accused on 24/8/2022, told the court that she saw the accused with the deceased before she closed at 8.00 pm the previous day. What happened after she closed remains unestablished. The prosecution needed to prove that all the evidence clearly points to the accused as the murderer. The gaps I have highlighted create doubt in my mind whether the accused indeed murdered the deceased. The accused remains a suspect in this matter. Suspicion, however strong, cannot be used as the basis for inferring guilt (see Mary Wanjiku Gichira v Republic). I need not decide on malice aforethought.
I find that the prosecution has failed to prove their case beyond reasonable doubt. The accused is acquitted of the charge of murder and is set free, unless lawfully held.
Dated, signed and delivered at Bungoma this 13 th day of June 2025 .
R.E.OUGO
JUDGE
In the presence of:
Brian Wanjala Biketi/Accused
Miss Matere For the State
Miss Natwati For the Accused
Wilkister C/A