1. The Accused person herein, DANIEL KIBET CHEREN alias NYEUSI was charged with the offence of murder contrary to Section 203 and 204 of the Penal Code. The particulars were that on the 14th day of September, 2023 at Chesikum Village, Chepwek Sub- Location, Cheptais Sub-County, within Bungoma County, murdered FRED BARKACHA CHEREN.
2. The Accused persons denied the charge and Prosecution presented Eight (8) witness in support of its case. The defence is represented by Mr.Muyala.
3. At the close of the parties’ cases, both parties filed their written submissions. The same has been considered.
4. Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law. This being a charge of murder contrary to Section 203 as read with Section 204 of the penal Code, the following ingredients should be proved by the prosecution beyond reasonable doubt;
i. the death of the deceased and the cause of that death;
ii. that the accused committed the unlawful act which caused the death of the deceased; and,
iii. the accused had harboured malice aforethought.
5. The above ingredients were buttressed by the Court in Republic vs. Mohammed Dadi Kokane & & 7 Others [2014] eKLR where the elements of the offence of murder were listed by M. Odero, J as follows: -
1) The fact of the death of the deceased.
2) The cause of such death.
3) Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly;
4) Proof that said unlawful act or omission was committed with malice aforethought.
6. On the death of the deceased, it is not disputed that the deceased died on 15th September 2023. The witness account in Court establishes that the deceased indeed died and the cause of death was established by PW8, Dr. Elly Kiplimo Kosgey, as respiratory arrest as a result of the penetrative stab wounds. He produced in Court the post mortem form filled on 20th September 2023, marked as PEXH.2.
7. As to whether the Accused person was responsible for the death of the deceased person herein, PW1, Chesiro Jackline, testified that the deceased person was his husband and on 14th September 2023, at precisely 9.00 p.m. while they were in the house taking tea, the Accused Person herein in the company of another not before this Court stormed into their house and seized her husband. She told the Court the Court that the other person had a panga with him and got hold of the deceased person while the Accused person stabbed him. She identified the knife that was used to stab her husband in Court as MF1. It was her testimony that the Accused person stabbed the deceased on the stomach and that she was able to identify him and the other person not before court with the aid of the Sunking solar lighting. She told the Court that she confronted them over the incident but they ignored her and on trying to intervene the other person not before this Court threatened her with a knife while blocking the door. This prompted her to scream for help and her co-wife together with the other villagers responded immediately. She did a dock identification of the person who stabbed the deceased person as the Accused Person in Court. On cross-examination, she told the Court that there was no differences between the Accused person and the deceased person and that it was not true that she was in the company of the deceased person and the Accused person taking chang’aa. She told the Court that the incident occurred at night and she was able to see the assailants by the use of solar light and that she recognized them. English case of R v Turnbull & Others (1976) 3 ALL ER 549, which has a detailed discussion on the factors that ought to be considered when the evidence turns on identification by a single witness. The Court there said:
“....The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way....? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”
8. Further, the Kenya Court of Appeal in the case of Wamunga v Republic (1989) KLR 426 followed this view when it stated:
“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.”
9. Analyzing the above evidence that the Accused person and the deceased were together during his assault and that PW1 witnessed how the Accused Person herein stabbed the deceased person in the stomach that left him lying down unconscious is clear evidence that the Accused person and no one else that killed the deceased. The Accused person’s defence was that on the day of the alleged incident he woke up as usual, and went to work on his farm and at lunch hour he left for the centre Luanda to have fun with his friends. He told the Court that he stayed there up to 2 p.m. and proceeded to tend to his cattle and later proceeded home at 5 p.m. He told the Court that while heading home, with his cattle, he passed by his in-law’s house who used to sell local brew bought some indulge in some brew then proceeded home at 6p.m. He insisted that when he got home he ate and went to sleep and his wife could confirm the same. He told the Court that PW1 is the wife to his brother-in-law and that he had issues with her previously as she borrowed from him money but has refused to pay the same and that she has a grudge against him. He denied the allegations that he stabbed the deceased person herein. DW2, Sarah Kapchanga, testified that the Accused Person herein is her husband and that on the day of the incident he was at home with her and their children. She testified that there was no bad blood with DW1 and the deceased person herein and that PW1 owed her husband money that he assisted her with when she was trying to get back her confiscated local brew from the police. She insisted that on the day of the incident the Accused Person did not leave the house at night. On cross-examination, she told the Court that on the date of the incident she got back home from the house at 2 p.m. and the Accused Person had gone to source for charcoal. It is trite law that when an Accused Person pleads an alibi, the burden of proving the falsity, if at all, of the defence of alibi lies with the Prosecution. In the case of Victor Mwendwa Mulinge vs. R [2014] eKLR the Court of Appeal while addressing alibi defence stated:
It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see Karanja vs. R [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.
10. The evidence of this witness, PW1, which placed the Accused Person at the scene of the offence was not in any way challenged. This alibi defence cannot possibly be true owing to the evidence of PW1 which placed the Accused Person at the scene of the crime. I find the Accused person’s explanation and conduct inculpatory.
11. From the forgoing, it is evident that the totality of the evidence is considered, it becomes apparent that the Accused Person failed to prove their innocence and, having failed to do so, an adverse inference must be drawn that he and no one else was the person who caused the death of the deceased as no other reasonable hypothesis can be drawn. I therefore find that the Prosecution evidence on record displaced the alibi defence of the Accused.
12. It is trite law that a conviction can be founded on the evidence of a single witness. The Court of Appeal in Abdullah Bin Wendo vs. Rex 20 EACA 166, stated as follows:
Subject to certain well-known exceptions it is trite law that a fact may be proved by a testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct pointing to guilt from which a Judge or jury can reasonably conclude that the evidence of identification although based on the testimony of a single witness can safely be accepted as free from the possibility of error.
13. According to Sections 107 and 109 of the Evidence Act, the burden of proof lies with the Prosecution and in this case, the standard of proof is beyond reasonable doubt. At no point does this burden shift to the Accused Person and the Courts are cautioned about this. There is direct evidence, from PW1, that the death of the deceased was caused by the Accused Person.
14. Having found that the Prosecution has proved actus reus, the issue for determination is whether malice aforethought can be inferred now that a single blow to deceased’s head caused his death.
15. The offence of murder is complete when, “malice aforethought” is established if, pursuant to Section 206 of the Penal Code evidence proves any one or more of the following circumstances:
“(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) An intent to commit a felony;
(d) An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
16. When none of the aforesaid elements are proved but there is otherwise an unlawful killing of another human being, the person commits the felony of manslaughter under Section 202 Penal Code which is punishable under Section 205 Penal Code by a term of imprisonment extending up to life.
17. In Morris Aluoch v Republic Cr. Appeal No. 47 of 1996 [1997] eKLR), the Court of Appeal cited the case of REX VS TUBERE S/O OCHEN (1945) 12 EACA 63 with approval where it was in stated as follows:
“If repeated blows inflicted the injury then malice aforethought could well be presumed but in this case we have to contend with one single blow which caused perforation of the intestine which led to internal bleeding which did not become apparent until the death of the deceased some four days late.”
18. In this case, according to the post-mortem form filled by PW8 indicated that the injuries observed on the deceased person were: 2 penetrative wounds on anterior chest wall both measuring 6×1 cm and 5×1 cm. On internal examination, he noted that there was accumulation of blood in the chest cavity and collapse of the lung. He observed presence of blood in the heart cavity and lacerations on the left ventricle and proceeded to form a prognosis that the cause of death was respiratory arrest from penetrative stab wounds. PW1 testified the Accused person and another not before this Court stormed into her house on the date of the incident with the other person, she referred to as Protus, holding a panga with him, got hold of the deceased person while the Accused person stabbed him. She identified the knife that was used to stab her husband in Court as MF1.PW7 availed the MFI in Court as PEXH1.
19. In the locus classicus case of Republic vs Tubere S/O Ochen [1945] 12 EACA 63 it was held that an inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the Accused before, during and after the attack.
20. The Court of Appeal in the case of Joseph Kimani Njau v R (2014) eKLR, the Court of Appeal held as follows:
“Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual subject;
i) The intention to cause death;
ii) The intention to cause grievous bodily harm;
iii) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.
It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed……”
21. In this case, despite the lack of evidence of repeated assault on the deceased person, it is clear that with the choice of weapon and the part of the body targeted, leads me to believe that the stab wound was not an isolated one and there was clear malice aforethought on the part of the Accused Person. In other words, it was likely that the Accused Person did intend to kill the deceased person or cause him grievous harm, the moment he stormed into his house, so that there can be no question that malice aforethought was established.
22. Consequently, given that the deceased person died from respiratory arrest from penetrative stab wounds and that the Accused Person did not provide any explanation on how the deceased person was assaulted, or absolve himself from his death, and considering that malice aforethought was established by the manner of assault, I am satisfied, that the Prosecution proved its case to the required standard that the Accused Person murdered the deceased and will convict him accordingly.
23. Sentence will be after records and mitigation.
Dated and delivered at Bungoma this 27th day of June 2025
2. The Accused persons denied the charge and Prosecution presented Eight (8) witness in support of its case. The defence is represented by Mr.Muyala.
3. At the close of the parties’ cases, both parties filed their written submissions. The same has been considered.
4. Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law. This being a charge of murder contrary to Section 203 as read with Section 204 of the penal Code, the following ingredients should be proved by the prosecution beyond reasonable doubt;
i. the death of the deceased and the cause of that death;
ii. that the accused committed the unlawful act which caused the death of the deceased; and,
iii. the accused had harboured malice aforethought.
5. The above ingredients were buttressed by the Court in Republic vs. Mohammed Dadi Kokane & & 7 Others [2014] eKLR where the elements of the offence of murder were listed by M. Odero, J as follows: -
1) The fact of the death of the deceased.
2) The cause of such death.
3) Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly;
4) Proof that said unlawful act or omission was committed with malice aforethought.
6. On the death of the deceased, it is not disputed that the deceased died on 15th September 2023. The witness account in Court establishes that the deceased indeed died and the cause of death was established by PW8, Dr. Elly Kiplimo Kosgey, as respiratory arrest as a result of the penetrative stab wounds. He produced in Court the post mortem form filled on 20th September 2023, marked as PEXH.2.
7. As to whether the Accused person was responsible for the death of the deceased person herein, PW1, Chesiro Jackline, testified that the deceased person was his husband and on 14th September 2023, at precisely 9.00 p.m. while they were in the house taking tea, the Accused Person herein in the company of another not before this Court stormed into their house and seized her husband. She told the Court the Court that the other person had a panga with him and got hold of the deceased person while the Accused person stabbed him. She identified the knife that was used to stab her husband in Court as MF1. It was her testimony that the Accused person stabbed the deceased on the stomach and that she was able to identify him and the other person not before court with the aid of the Sunking solar lighting. She told the Court that she confronted them over the incident but they ignored her and on trying to intervene the other person not before this Court threatened her with a knife while blocking the door. This prompted her to scream for help and her co-wife together with the other villagers responded immediately. She did a dock identification of the person who stabbed the deceased person as the Accused Person in Court. On cross-examination, she told the Court that there was no differences between the Accused person and the deceased person and that it was not true that she was in the company of the deceased person and the Accused person taking chang’aa. She told the Court that the incident occurred at night and she was able to see the assailants by the use of solar light and that she recognized them. English case of R v Turnbull & Others (1976) 3 ALL ER 549, which has a detailed discussion on the factors that ought to be considered when the evidence turns on identification by a single witness. The Court there said:
“....The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way....? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”
8. Further, the Kenya Court of Appeal in the case of Wamunga v Republic (1989) KLR 426 followed this view when it stated:
“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.”
9. Analyzing the above evidence that the Accused person and the deceased were together during his assault and that PW1 witnessed how the Accused Person herein stabbed the deceased person in the stomach that left him lying down unconscious is clear evidence that the Accused person and no one else that killed the deceased. The Accused person’s defence was that on the day of the alleged incident he woke up as usual, and went to work on his farm and at lunch hour he left for the centre Luanda to have fun with his friends. He told the Court that he stayed there up to 2 p.m. and proceeded to tend to his cattle and later proceeded home at 5 p.m. He told the Court that while heading home, with his cattle, he passed by his in-law’s house who used to sell local brew bought some indulge in some brew then proceeded home at 6p.m. He insisted that when he got home he ate and went to sleep and his wife could confirm the same. He told the Court that PW1 is the wife to his brother-in-law and that he had issues with her previously as she borrowed from him money but has refused to pay the same and that she has a grudge against him. He denied the allegations that he stabbed the deceased person herein. DW2, Sarah Kapchanga, testified that the Accused Person herein is her husband and that on the day of the incident he was at home with her and their children. She testified that there was no bad blood with DW1 and the deceased person herein and that PW1 owed her husband money that he assisted her with when she was trying to get back her confiscated local brew from the police. She insisted that on the day of the incident the Accused Person did not leave the house at night. On cross-examination, she told the Court that on the date of the incident she got back home from the house at 2 p.m. and the Accused Person had gone to source for charcoal. It is trite law that when an Accused Person pleads an alibi, the burden of proving the falsity, if at all, of the defence of alibi lies with the Prosecution. In the case of Victor Mwendwa Mulinge vs. R [2014] eKLR the Court of Appeal while addressing alibi defence stated:
It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see Karanja vs. R [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.
10. The evidence of this witness, PW1, which placed the Accused Person at the scene of the offence was not in any way challenged. This alibi defence cannot possibly be true owing to the evidence of PW1 which placed the Accused Person at the scene of the crime. I find the Accused person’s explanation and conduct inculpatory.
11. From the forgoing, it is evident that the totality of the evidence is considered, it becomes apparent that the Accused Person failed to prove their innocence and, having failed to do so, an adverse inference must be drawn that he and no one else was the person who caused the death of the deceased as no other reasonable hypothesis can be drawn. I therefore find that the Prosecution evidence on record displaced the alibi defence of the Accused.
12. It is trite law that a conviction can be founded on the evidence of a single witness. The Court of Appeal in Abdullah Bin Wendo vs. Rex 20 EACA 166, stated as follows:
Subject to certain well-known exceptions it is trite law that a fact may be proved by a testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct pointing to guilt from which a Judge or jury can reasonably conclude that the evidence of identification although based on the testimony of a single witness can safely be accepted as free from the possibility of error.
13. According to Sections 107 and 109 of the Evidence Act, the burden of proof lies with the Prosecution and in this case, the standard of proof is beyond reasonable doubt. At no point does this burden shift to the Accused Person and the Courts are cautioned about this. There is direct evidence, from PW1, that the death of the deceased was caused by the Accused Person.
14. Having found that the Prosecution has proved actus reus, the issue for determination is whether malice aforethought can be inferred now that a single blow to deceased’s head caused his death.
15. The offence of murder is complete when, “malice aforethought” is established if, pursuant to Section 206 of the Penal Code evidence proves any one or more of the following circumstances:
“(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) An intent to commit a felony;
(d) An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
16. When none of the aforesaid elements are proved but there is otherwise an unlawful killing of another human being, the person commits the felony of manslaughter under Section 202 Penal Code which is punishable under Section 205 Penal Code by a term of imprisonment extending up to life.
17. In Morris Aluoch v Republic Cr. Appeal No. 47 of 1996 [1997] eKLR), the Court of Appeal cited the case of REX VS TUBERE S/O OCHEN (1945) 12 EACA 63 with approval where it was in stated as follows:
“If repeated blows inflicted the injury then malice aforethought could well be presumed but in this case we have to contend with one single blow which caused perforation of the intestine which led to internal bleeding which did not become apparent until the death of the deceased some four days late.”
18. In this case, according to the post-mortem form filled by PW8 indicated that the injuries observed on the deceased person were: 2 penetrative wounds on anterior chest wall both measuring 6×1 cm and 5×1 cm. On internal examination, he noted that there was accumulation of blood in the chest cavity and collapse of the lung. He observed presence of blood in the heart cavity and lacerations on the left ventricle and proceeded to form a prognosis that the cause of death was respiratory arrest from penetrative stab wounds. PW1 testified the Accused person and another not before this Court stormed into her house on the date of the incident with the other person, she referred to as Protus, holding a panga with him, got hold of the deceased person while the Accused person stabbed him. She identified the knife that was used to stab her husband in Court as MF1.PW7 availed the MFI in Court as PEXH1.
19. In the locus classicus case of Republic vs Tubere S/O Ochen [1945] 12 EACA 63 it was held that an inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the Accused before, during and after the attack.
20. The Court of Appeal in the case of Joseph Kimani Njau v R (2014) eKLR, the Court of Appeal held as follows:
“Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual subject;
i) The intention to cause death;
ii) The intention to cause grievous bodily harm;
iii) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.
It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed……”
21. In this case, despite the lack of evidence of repeated assault on the deceased person, it is clear that with the choice of weapon and the part of the body targeted, leads me to believe that the stab wound was not an isolated one and there was clear malice aforethought on the part of the Accused Person. In other words, it was likely that the Accused Person did intend to kill the deceased person or cause him grievous harm, the moment he stormed into his house, so that there can be no question that malice aforethought was established.
22. Consequently, given that the deceased person died from respiratory arrest from penetrative stab wounds and that the Accused Person did not provide any explanation on how the deceased person was assaulted, or absolve himself from his death, and considering that malice aforethought was established by the manner of assault, I am satisfied, that the Prosecution proved its case to the required standard that the Accused Person murdered the deceased and will convict him accordingly.
23. Sentence will be after records and mitigation.
Dated and delivered at Bungoma this 27th day of June 2025