INTRODUCTION AND THE CHARGE
1. The Accused person, Derrick Mayabi Makutsa alias Dero, stands charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code, Chapter 63 of the Laws of Kenya
2. The particulars of the offence are that on the 11th day of December 2023, at Ebumbeya village, Issabalu Sub-Location, Ebusakami Location within Luanda Sub-County in Vihiga County, the Accused, jointly with others not before the Court, murdered Shem Omoko Alias Kangethe.
3. The Accused pleaded not guilty to the information and a full trial ensued. The Prosecution called six (6) witnesses. At the close of the Prosecution case, this Court, having considered the evidence, found that a prima facie case had been established and placed the Accused on his defence in accordance with Section 306(2) of the Criminal Procedure Code, the options open to him having been explained. The Accused elected to give sworn evidence and called one witness. The defence hearing was conducted on 7th October 2025 and the defence case was thereafter closed, counsel indicating that the Accused's mother, who had been intended as a further witness, was incapacitated.
4. Directions were given for the filing of written submissions. The Republic filed submissions dated 12th November 2025 and the Accused filed final submissions dated 21st January 2026, the latter expressly adopting and relying also upon his earlier submissions dated 4th December 2024 and filed on 17th December 2024. I have considered the evidence, the submissions and the authorities cited by both counsel.
B. THE PROSECUTION CASE
5. PW1, Annah Nyakoa, was an aunt of the deceased, who was her nephew. She testified that on 8th December 2023 at about 1400 hours she was at her stall where she carries on business when she saw a number of SubChiefs pass by. They went into the home of a person known as “mama fire”, where there were many people who chased them away together with the deceased, who was a member of community policing.
6. She further stated that she heard the mob saying that they had warned the deceased several times and that they would kill him, and that the Accused was in that mob. She stated that she knew the Accused physically as “mama fire's” husband. She informed her sister, PW2, the mother of the deceased, to warn the deceased that the mob had threatened to kill him. She learnt thereafter that the deceased had been killed and she recorded her statement at the police station.
7. PW2, Evaline Mayani Mbeta, the mother of the deceased, testified that she was at Luanda market when PW1 informed her to warn the deceased not to leave home because certain persons whom PW1 could identify physically had said that they would kill him. She relayed the warning to the deceased, but he nevertheless left home. She later learnt through PW6 that he had been killed. At the scene she identified the body of her son, and the police thereafter removed the body to the mortuary.
8. PW3, Dr. Masika Collins, conducted the post mortem examination on the body of the deceased. On external examination he found head injuries on the scalp and four deep cut wounds. Internally, the head injury had penetrated the cranium with visible brain matter. He formed the opinion that the cause of death was severe head injury secondary to trauma caused by a sharp object. He produced the post mortem report dated 20th December 2023 as an exhibit. The report was not opposed.
9. PW4, Geoffrey Ng'eno, the Assistant County Commissioner, Luanda SubCounty, testified that on 8th December 2023 at 1400 hours the deceased, who was his informer and also a member of community policing, told him that there was a den within Luanda town where bhang was being sold to school children. Having just concluded a public baraza, he proceeded with Chiefs and Assistant Chiefs to the den, said to be owned by “mama fire” alias Jennifer Malele.
10. On arrival, the partakers scampered and “mama fire” was found in the house rolling bhang. The team confiscated what was on the table. She resisted arrest, and as the team left the compound the Accused blocked their way and grabbed the bhang that had been confiscated. “Mama fire” then shouted “nimewapatia kazi”, whereupon members of the public, described as youth, pelted stones at the team and forced them to flee. PW4 reported the incident at Luanda Police Station. On 11th December 2023 at 1845 hours he received information that a person had been murdered along the road at Ebusakami. He proceeded there and established that the deceased was Shem Omoko alias Kangethe. The deceased's motorcycle was a few metres from the body and there was a large crowd at the scene.
11. PW6, Chief Inspector Josephat Muya (also recorded in the proceedings as Josephat Mwai), No. 240074, was the investigating officer. He testified that on 11th December 2023, while at Luanda Police Station, he was informed by the OCS Luanda that a person had been killed at a place known as Mombasa Raha. He proceeded to the scene with other officers and realised that the deceased was known to him as an informer. The body had injuries to the front and back of the head which appeared to have been caused by a sharp object. The deceased's motorcycle was also at the scene. The body was removed to Coptic Hospital Mortuary.
12. He stated that in the course of investigations he learnt that on 8th December 2023 PW4 had led a team of NGAO officers to curb bhang consumption at the house of Jennifer Malele alias “mama fire” following
a tip-off from the deceased, and that PW4 and his team had been attacked by youth from that house led by the Accused. He further stated that he learnt that the youth had warned the deceased severally against reporting them to the police, and that PW1 had informed him that she heard the youth in the mob say that they would kill the deceased and that the Accused was in that mob. He arrested the Accused and charged him with the offence before the Court. He identified the Accused in Court.
13. The evidence of PW5 is contained in the record of the proceedings. It is convenient to note at this stage that the Republic's written submissions summarise the evidence of PW1, PW2, PW3, PW4 and PW6 only, and do not address the evidence of PW5. I have nevertheless considered the whole of the record, as I am bound to do.
C. THE DEFENCE CASE
14. DW1, Derrick Mayabi Makutsa alias Dero, the Accused, gave sworn evidence in Kiswahili. He testified that he comes from Emuli village, Luanda, Vihiga County and is engaged in the building and construction (jua kali) business. He stated that on 11th December 2023 he was at home at Emuli with his mother, Jane Amanya Atich, and his sister, Doreen Mayabi.
15. He testified that on that day he was farming at his mother's farm, which is next to the house. He began cultivating at 9.00 a.m. and continued until about 1.00 p.m. going towards 2.00 p.m., while his sister did household chores such as mopping and sweeping. He then ate the lunch prepared by his sister. He untied the cow he had been grazing in the compound and continued grazing it there until about 5.00 p.m., when he returned it to its shed and milked it. He thereafter bathed and watched television. Supper was cooked at 7.00 p.m. and he retired to bed at about 8.00 p.m. He stated that he slept in his mother's house and that his mother, his sister and himself were in the house that night.
16. He testified that he was subsequently arrested along the road by police officers as he was going to work and was taken to Luanda Police Station, where his mobile telephone, an Oppo A92020, was taken from him and he was placed in the cells. The telephone was returned to him at Vihiga Court on 23rd October 2024 by an officer from Luanda Police Station. He signed a document acknowledging the return; the police officer also signed, and his sister Doreen Mayabi was present. He produced the telephone, IMEI 860028046239844, blue in colour, together with a sim card, which was marked as Defence Exhibit 1.
17. He further testified that he does not know how to drive; that from his home to Luanda town is about 10 kilometres and from Ebusakami to his home is about 20 kilometres; that he is not married and has no wife; that he never threatened the deceased; that he does not know Jennifer; and that he did not kill the deceased.
18. On cross-examination, DW1 stated that he does not know the deceased and does not know “Fire Mama”, who had been mentioned in the proceedings. He maintained that on 11th December 2023 he was with his mother and Doreen, that only Doreen would be his witness because his mother was unwell at home, and that they were all together in the sense that he was at the shamba and they could see one another. He denied the evidence adduced against him. On re-examination he stated that he had been sworn to tell the truth, that he was in the shamba while his sister Doreen and his mother were seated in the shed next to the shamba, and that Doreen was assisting their mother to bask in the sun.
19. DW2, Doreen Mayabi, the sister of the Accused, also gave sworn evidence in Kiswahili. She testified that she comes from Emuli village, Luanda township, Vihiga County and is presently unemployed. On 11th December 2023 she was at home at Emuli with her mother, Jane Amanya Atich, and her brother Derrick Mayabi Makutsa, the Accused. Her mother is at home, unwell and paralysed; her father died in 2009.
20. She testified that on that day she was doing household chores as she looks after her mother, and that the Accused was also at home. He woke up, took tea and went to the shamba, where he cultivates vegetables. He began digging at about 9.00 a.m. and left between 1.00 p.m. and 2.00 p.m., when he came and ate the lunch she had cooked. He rested a while and suggested that they take their mother outside to bask. He then untied the cow and began grazing it, and it was about 3.00 p.m. when he was grazing the cow. She could see him herding the cow in the compound, taking care that it did not eat his vegetables.
21. She further testified that he took the cow to its shed at 5.00 p.m., milked it, then bathed and watched television. He waited for supper and ate when it was ready. They watched the news and all went to sleep, sleeping in their mother's house. She stated that the Accused has no wife and has not constructed a house at home.
22. She testified that on 12th December 2023 they woke the Accused, took tea, and he told her he wanted to go out on some errands. After he left he telephoned her and informed her that he had been arrested along the road. She followed him to Luanda Police Station and spoke to him physically. He told her his telephone had been taken. She knew his telephone; it was an Oppo and was the one he had been using. She next saw the telephone in Court. The police returned it to him on 23rd October 2024 at about 2.00 p.m. She signed the acknowledgement (Defence Exhibit 1), showed the Court her signature and read out the identity card number appearing thereon as 32638841. The police officer who signed the document was recorded as Joseph, No. 240074, indicated as C.I. Josephat Mwai.
23. DW2 stated categorically that the Accused never left home on 11th December 2023 and that he left home on 12th December 2023, when he was arrested. It is a matter of record that learned counsel for the Republic did not cross-examine DW2 at all. The defence thereafter closed its case.
D. SUBMISSIONS
(i) For the Republic
24. Learned Principal Prosecution Counsel, Miss F. Koech, submitted that the Prosecution called six witnesses and established a prima facie case. She candidly and properly conceded that none of the Prosecution witnesses actually saw the Accused assault the deceased and that the case rests on circumstantial evidence.
25. On death and unlawfulness, counsel relied on the evidence of PW3 and the post mortem report, and cited R v Joseph Chege Njora [2007] eKLR and Antony Njue Njeru v R, Criminal Appeal No. 77 of 2006, on the circumstances in which a killing may be justified or excused. On the acts of the Accused, counsel relied on Abanga alias Onyango v R, Criminal Appeal No. 32 of 1990, Sawe v Republic [2003] eKLR and GMI v Republic, Criminal Appeal No. 38 of 2011, and submitted that the chain of events is cumulative and shows clearly that the Accused, jointly with others, was the perpetrator.
26. On malice aforethought, counsel relied on Section 206 of the Penal Code, Republic v Tubere s/o Ochen (1945) 12 EACA 63 and Hyam v DPP [1974] A.C., and submitted that the nature of the injuries to the head, together with the threats spoken to by PW1, establish malice aforethought. Counsel concluded that the Accused gave no tangible defence, did not dislodge the Prosecution case, and should be convicted and sentenced accordingly.
(ii) For the Accused
27. Learned counsel Mr. Lugadiru submitted that the Accused gave a detailed and coherent account of his movements on 11th December 2023, that his alibi was never challenged or shaken by the Prosecution, and that the evidence of DW2 corroborated that of DW1 and was itself unshaken.
28. Counsel emphasised the Prosecution's own concession that none of its witnesses saw the Accused assault the deceased. He submitted that the three tests in Abanga (supra) and the further requirement in Sawe (supra) were not met; that the investigating officer confiscated the Accused's mobile telephone for the purpose of investigation and found nothing in it linking the Accused to the offence, the telephone having been returned to the Accused on 23rd October 2024 under the handingover note produced as Defence Exhibit 1; and that no circumstance was established placing the Accused at the scene.
29. Counsel submitted that, the actus reus not having been established, the question of malice aforethought under Section 206 of the Penal Code does not arise, and urged the Court to acquit the Accused under Section 215 of the Criminal Procedure Code.
E. ISSUES FOR DETERMINATION
30. The elements of the offence of murder are settled. In Anthony Ndegwa Ngari v Republic [2014] eKLR (see also Nyambura & Others v Republic [2001] KLR 355), the Court of Appeal identified them as: (a) the death of the deceased and the cause of that death; (b) that the Accused committed the unlawful act which caused the death of the deceased; and (c) that the Accused had malice aforethought.
31. Arising from the pleadings, the evidence and the rival submissions, the issues that fall for determination in this case are:
a. Whether the deceased, Shem Omoko alias Kangethe, is dead and the cause of his death;
b. Whether the death was caused by an unlawful act or omission;
c. Whether it was the Accused person who committed the unlawful act which caused the death of the deceased;
d. If so, whether the Accused was actuated by malice aforethought;
e. Whether the defence of alibi raised by the Accused has been displaced; and
f. What orders should issue.
F. THE BURDEN AND STANDARD OF PROOF
32. Before turning to the issues, I remind myself of the governing principle. The burden of proving the guilt of the Accused rests upon the Prosecution throughout and never shifts. It is discharged only by proof beyond reasonable doubt. In Woolmington v Director of Public Prosecutions [1935] AC 462, Viscount Sankey L.C. described this as the golden thread running through the web of the English criminal law, and the principle applies with full force in this jurisdiction.
33. This principle is reinforced by Article 50(2)(a) of the Constitution of Kenya, 2010, which guarantees every Accused person the right to be presumed innocent until the contrary is proved, and by Article 50(2)(l), which provides that an Accused person shall not be compelled to give self-incriminating evidence. Sections 107 and 108 of the Evidence Act likewise place the legal burden on the party who asserts.
34. It follows that the Prosecution case must stand or fall on its own strength. The Prosecution cannot found a conviction upon the weakness of the defence, and the rejection of a defence, even wholly, does not by itself supply the proof which the Prosecution is required to furnish. As was emphasized in Okethi Okale v Republic [1965] EA 555, the evidence for the Prosecution and the evidence for the defence must not be considered in isolation from one another; the Court must consider the case as a whole.
35. I bear in mind, finally, that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt or proof to a mathematical certainty. It means that the evidence must be of such cogency that the Court is left with no reasonable doubt as to the guilt of the Accused. Where a reasonable doubt exists, it must be resolved in favour of the Accused.
G. ANALYSIS AND DETERMINATION
Issue (a): The fact and cause of death
36. The fact of death is not in dispute. The Republic and the defence are agreed on this point, the Accused expressly conceding in his submissions that the death of Shem Omoko alias Kangethe was proved by the post mortem report and the evidence of PW1, PW2 and PW3.
37. PW2 identified the body of the deceased as that of her son at the scene. PW4 and PW6 attended the scene and confirmed the identity of the deceased. PW3, Dr. Masika Collins, conducted the post mortem examination, found head injuries on the scalp and four deep cut wounds, observed that the head injury had penetrated the cranium with visible brain matter, and opined that the cause of death was severe head injury secondary to trauma caused by a sharp object. He produced the post mortem report dated 20th December 2023, which was not opposed.
38. I am accordingly satisfied, and I find as a fact, that Shem Omoko Alias Kangethe is dead and that the cause of his death was severe head injury secondary to trauma caused by a sharp object. The first element is proved beyond reasonable doubt.
Issue (b): Whether the death was caused by an unlawful act
39. The law presumes every homicide to be unlawful unless it is excused or authorized by law. In Gusambizi s/o Wesonga v Republic (1948) 15 EACA 63, it was held that every homicide is presumed to be unlawful except where circumstances make it excusable or where it has been authorised by law. Article 26(1) and (3) of the Constitution guarantees the right to life and provides that a person shall not be deprived of life intentionally save to the extent authorised by the Constitution or other written law.
40. Nothing on the record suggests accident, lawful authority, self-defence or provocation. The deceased was found lying along a public road at Ebusakami with his motorcycle nearby, having sustained four deep cut wounds to the head penetrating the cranium. Injuries of that character, inflicted with a sharp object upon a person going about his business, admit of no lawful explanation.
41. I therefore find that the death of the deceased was caused by an unlawful act. The second element is proved beyond reasonable doubt.
Issue (c): Whether the Accused committed the unlawful act which caused the death
42. This is the decisive issue in this trial, and it must be approached with care.
43. The Republic frankly and properly concedes in its submissions that none of the Prosecution witnesses actually saw the Accused assault the deceased. There is therefore no direct evidence whatsoever connecting the Accused to the death of the deceased. There is no eyewitness. There is no confession. There is no forensic evidence. The Prosecution case rests entirely upon circumstantial evidence.
44. Circumstantial evidence is, of course, perfectly capable of founding a conviction, and is frequently the best evidence available. But because it proceeds by inference rather than by observation, the law has long imposed strict conditions before an inference of guilt may be drawn from it.
45. The classic statement is that of the Court of Appeal for Eastern Africa in R v Kipkering Arap Koske & Another (1949) 16 EACA 135:
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 his guilt, and the burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the Prosecution and never shifts to the Accused.
46. Both parties have cited Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990, in which the Court of Appeal set out the three tests which circumstantial evidence must satisfy: first, the circumstances from which an inference of guilt is sought to be drawn must be cogent and firmly established; secondly, those circumstances must be of a definite tendency unerringly pointing towards the guilt of the Accused; and thirdly, the circumstances, taken cumulatively, must 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 by no one else.
47. To these must be added the fourth requirement stated in Sawe v Republic [2003] eKLR and Simoni Musoke v R [1958] EA 715, namely that the Prosecution must establish that there are no other co-existing circumstances which would weaken or destroy the inference of guilt. The Court of Appeal in Sawe added a caution which is directly in point in this case:
Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.
48. Against that framework, I turn to examine the strands of circumstantial evidence upon which the Republic relies. As I understand the Prosecution case, they are three: motive arising from the events of 8th December 2023; threats allegedly uttered in the presence of PW1 on that date; and the death of the deceased three days later.
I. The events of 8th December 2023 and the question of motive
49. PW4 gave direct evidence of the raid on the bhang den on 8th December 2023 and stated that as the team left the compound, the Accused blocked their way and grabbed the confiscated bhang. If accepted, that evidence establishes that the Accused had an interest in the deceased's activities as an informer, and therefore a possible motive.
50. Two observations must, however, be made. First, motive is not an ingredient of the offence of murder. Its presence may strengthen a case otherwise established; its presence alone can never constitute proof of the act charged. Many persons have a motive to commit a crime; very few of them commit it.
51. Secondly, and more importantly, the evidence of PW4 goes to an incident which occurred on 8th December 2023, at a different place, and which had nothing to do with the killing. It establishes, at most, an antecedent quarrel. It does not place the Accused at Ebusakami on 11th December 2023, nor does it connect him with the assault upon the deceased. The chain, on this strand, does not even begin to close.
52. I would add that the record should be examined carefully on the question whether PW4 knew the Accused before 8th December 2023 and by what means he came to name him, and whether PW4 identified the Accused in the dock. The Republic's submissions record a dock identification only by PW6, the investigating officer, whose identification is of no evidential value on this question since he merely identified the man he had himself arrested.
II. The alleged threats spoken to by PW1
53. The evidence of PW1 is the load-bearing pillar of the Prosecution case. It is therefore necessary to examine it closely.
54. PW1's evidence, as summarized by the Republic itself, is that she heard “the mob” saying that they had warned the deceased several times and that they would kill him, and that the Accused was in that mob. Elsewhere in the same submissions it is put slightly differently, namely that she heard “the youth among them the Accused” state that they would kill the deceased. These are not the same proposition. The first attributes the words to an undifferentiated crowd; the second attributes them to the Accused.
55. The distinction matters. Words spoken by an unidentified member of a mob are not admissible against the Accused merely because he is said to have been present in the mob. Such words are, as against him, hearsay. They become admissible against him only if he himself uttered or adopted them, or if a common intention or conspiracy is first independently established, in which case Section 10 of the Evidence Act may render the statements of one conspirator admissible against another. Neither foundation was laid here.
56. There is a further and more fundamental difficulty. PW1's ability to place the Accused in that mob rests entirely on her recognition of him as “mama fire's husband”. The Accused testified on oath that he is not married, that he has no wife, and that he does not know Jennifer Malele or “mama fire” at all. DW2 confirmed that her brother has no wife. That evidence was put squarely in issue in cross-examination and the Accused maintained it. The Prosecution neither recalled PW1 nor applied under Section 309 of the Criminal Procedure Code to adduce evidence in rebuttal. The very basis upon which PW1 claimed to recognise the Accused therefore stands contradicted on oath and unanswered.
57. No identification parade was conducted. In a case where the identity of the offender is the sole live issue, that omission is not a technicality. The evidence of identification remains, on this record, of the weakest description.
58. Even taking PW1's evidence at its highest, it establishes no more than that on 8th December 2023 a threat was uttered by someone in a crowd in which the Accused is said to have been present. Utterances made in the heat of a confrontation, by persons in a crowd, three days before a killing, cannot without more be elevated into proof that the person who made them, still less a person who merely stood among those who made them, carried them into execution.
III. The death of the deceased on 11th December 2023
59. The third strand is temporal proximity. The deceased was killed three days after the confrontation. But proximity in time, standing alone, proves nothing about who did the killing. Not a single witness places the Accused at Ebusakami, or on the road where the deceased was found, or anywhere near the deceased, on 11th December 2023. No witness saw him travelling to or from the scene. Nothing recovered at the scene is linked to him.
60. On the contrary, there are co-existing circumstances which materially weaken any inference of guilt, and which the Prosecution was obliged, but has failed, to exclude:
(i) The deceased was, on the evidence of both PW4 and PW6, a police informer and a member of community policing who had caused a bhang den to be raided. By the nature of that role he was exposed to hostility from a wide and indeterminate class of persons. PW4's own evidence is that a crowd of youth stoned a team of Government administrators. Any one or more of that crowd, or of the wider community of persons whose trade the deceased had disrupted, had the same motive attributed to the Accused.
(ii) The Information itself charges the Accused “jointly with others not before Court”. The Prosecution therefore acknowledges the existence of other perpetrators. None of them was identified, investigated or charged, and no evidence was led as to the part, if any, played by the Accused as distinct from those others.
(iii) The proprietor of the den, Jennifer Malele alias “mama fire”, was on PW4's evidence the person who shouted the words which precipitated the stoning. She was neither charged nor called as a witness.
(iv) There is no evidence excluding the possibility that the deceased, who was found on a public road at night with his motorcycle beside him, met his death at the hands of persons wholly unconnected with the events of 8th December 2023.
IV. The lacunae in the investigation
61. The state of the investigation gives this Court real disquiet. No murder weapon was recovered. No blood, fingerprint, DNA or other forensic examination was undertaken or produced. No scene-of-crime report or sketch plan was tendered. No witness from the locality of the killing was called to speak to what was seen or heard on the road at Ebusakami that evening, notwithstanding PW4's evidence that a large crowd had gathered there.
62. Most strikingly, the investigating officer seized the Accused's mobile telephone on arrest in December 2023 and retained it until 23rd October 2024, a period of some ten months. That telephone was the one item of potentially objective evidence in the entire case. It was capable of yielding call data records, cell-site information locating the handset on 11th December 2023, message content and contact associations. No such analysis was produced. The defence submits, and the Republic does not contradict, that the investigating officer found nothing in the telephone linking the Accused to the offence. The handset was simply returned to the Accused under the handing-over note produced as Defence Exhibit 1.
63. In Bukenya & Others v Uganda [1972] EA 549, the Court of Appeal for Eastern Africa held that the Prosecution has a duty to call or make available all witnesses necessary to establish the truth, even where their evidence may be inconsistent; that the Court itself has not merely the right but the duty to call any person whose evidence appears essential to the just decision of the case; and that where the evidence called is barely adequate and it appears there was other evidence available, the Court is entitled to infer that such evidence would have been adverse to the Prosecution. That principle, endorsed by our Court of Appeal in Erick Onyango Ondeng' v Republic [2014] eKLR, applies with particular force where, as here, the evidence actually led is
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1. The Accused person, Derrick Mayabi Makutsa alias Dero, stands charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code, Chapter 63 of the Laws of Kenya
2. The particulars of the offence are that on the 11th day of December 2023, at Ebumbeya village, Issabalu Sub-Location, Ebusakami Location within Luanda Sub-County in Vihiga County, the Accused, jointly with others not before the Court, murdered Shem Omoko Alias Kangethe.
3. The Accused pleaded not guilty to the information and a full trial ensued. The Prosecution called six (6) witnesses. At the close of the Prosecution case, this Court, having considered the evidence, found that a prima facie case had been established and placed the Accused on his defence in accordance with Section 306(2) of the Criminal Procedure Code, the options open to him having been explained. The Accused elected to give sworn evidence and called one witness. The defence hearing was conducted on 7th October 2025 and the defence case was thereafter closed, counsel indicating that the Accused's mother, who had been intended as a further witness, was incapacitated.
4. Directions were given for the filing of written submissions. The Republic filed submissions dated 12th November 2025 and the Accused filed final submissions dated 21st January 2026, the latter expressly adopting and relying also upon his earlier submissions dated 4th December 2024 and filed on 17th December 2024. I have considered the evidence, the submissions and the authorities cited by both counsel.
B. THE PROSECUTION CASE
5. PW1, Annah Nyakoa, was an aunt of the deceased, who was her nephew. She testified that on 8th December 2023 at about 1400 hours she was at her stall where she carries on business when she saw a number of SubChiefs pass by. They went into the home of a person known as “mama fire”, where there were many people who chased them away together with the deceased, who was a member of community policing.
6. She further stated that she heard the mob saying that they had warned the deceased several times and that they would kill him, and that the Accused was in that mob. She stated that she knew the Accused physically as “mama fire's” husband. She informed her sister, PW2, the mother of the deceased, to warn the deceased that the mob had threatened to kill him. She learnt thereafter that the deceased had been killed and she recorded her statement at the police station.
7. PW2, Evaline Mayani Mbeta, the mother of the deceased, testified that she was at Luanda market when PW1 informed her to warn the deceased not to leave home because certain persons whom PW1 could identify physically had said that they would kill him. She relayed the warning to the deceased, but he nevertheless left home. She later learnt through PW6 that he had been killed. At the scene she identified the body of her son, and the police thereafter removed the body to the mortuary.
8. PW3, Dr. Masika Collins, conducted the post mortem examination on the body of the deceased. On external examination he found head injuries on the scalp and four deep cut wounds. Internally, the head injury had penetrated the cranium with visible brain matter. He formed the opinion that the cause of death was severe head injury secondary to trauma caused by a sharp object. He produced the post mortem report dated 20th December 2023 as an exhibit. The report was not opposed.
9. PW4, Geoffrey Ng'eno, the Assistant County Commissioner, Luanda SubCounty, testified that on 8th December 2023 at 1400 hours the deceased, who was his informer and also a member of community policing, told him that there was a den within Luanda town where bhang was being sold to school children. Having just concluded a public baraza, he proceeded with Chiefs and Assistant Chiefs to the den, said to be owned by “mama fire” alias Jennifer Malele.
10. On arrival, the partakers scampered and “mama fire” was found in the house rolling bhang. The team confiscated what was on the table. She resisted arrest, and as the team left the compound the Accused blocked their way and grabbed the bhang that had been confiscated. “Mama fire” then shouted “nimewapatia kazi”, whereupon members of the public, described as youth, pelted stones at the team and forced them to flee. PW4 reported the incident at Luanda Police Station. On 11th December 2023 at 1845 hours he received information that a person had been murdered along the road at Ebusakami. He proceeded there and established that the deceased was Shem Omoko alias Kangethe. The deceased's motorcycle was a few metres from the body and there was a large crowd at the scene.
11. PW6, Chief Inspector Josephat Muya (also recorded in the proceedings as Josephat Mwai), No. 240074, was the investigating officer. He testified that on 11th December 2023, while at Luanda Police Station, he was informed by the OCS Luanda that a person had been killed at a place known as Mombasa Raha. He proceeded to the scene with other officers and realised that the deceased was known to him as an informer. The body had injuries to the front and back of the head which appeared to have been caused by a sharp object. The deceased's motorcycle was also at the scene. The body was removed to Coptic Hospital Mortuary.
12. He stated that in the course of investigations he learnt that on 8th December 2023 PW4 had led a team of NGAO officers to curb bhang consumption at the house of Jennifer Malele alias “mama fire” following
a tip-off from the deceased, and that PW4 and his team had been attacked by youth from that house led by the Accused. He further stated that he learnt that the youth had warned the deceased severally against reporting them to the police, and that PW1 had informed him that she heard the youth in the mob say that they would kill the deceased and that the Accused was in that mob. He arrested the Accused and charged him with the offence before the Court. He identified the Accused in Court.
13. The evidence of PW5 is contained in the record of the proceedings. It is convenient to note at this stage that the Republic's written submissions summarise the evidence of PW1, PW2, PW3, PW4 and PW6 only, and do not address the evidence of PW5. I have nevertheless considered the whole of the record, as I am bound to do.
C. THE DEFENCE CASE
14. DW1, Derrick Mayabi Makutsa alias Dero, the Accused, gave sworn evidence in Kiswahili. He testified that he comes from Emuli village, Luanda, Vihiga County and is engaged in the building and construction (jua kali) business. He stated that on 11th December 2023 he was at home at Emuli with his mother, Jane Amanya Atich, and his sister, Doreen Mayabi.
15. He testified that on that day he was farming at his mother's farm, which is next to the house. He began cultivating at 9.00 a.m. and continued until about 1.00 p.m. going towards 2.00 p.m., while his sister did household chores such as mopping and sweeping. He then ate the lunch prepared by his sister. He untied the cow he had been grazing in the compound and continued grazing it there until about 5.00 p.m., when he returned it to its shed and milked it. He thereafter bathed and watched television. Supper was cooked at 7.00 p.m. and he retired to bed at about 8.00 p.m. He stated that he slept in his mother's house and that his mother, his sister and himself were in the house that night.
16. He testified that he was subsequently arrested along the road by police officers as he was going to work and was taken to Luanda Police Station, where his mobile telephone, an Oppo A92020, was taken from him and he was placed in the cells. The telephone was returned to him at Vihiga Court on 23rd October 2024 by an officer from Luanda Police Station. He signed a document acknowledging the return; the police officer also signed, and his sister Doreen Mayabi was present. He produced the telephone, IMEI 860028046239844, blue in colour, together with a sim card, which was marked as Defence Exhibit 1.
17. He further testified that he does not know how to drive; that from his home to Luanda town is about 10 kilometres and from Ebusakami to his home is about 20 kilometres; that he is not married and has no wife; that he never threatened the deceased; that he does not know Jennifer; and that he did not kill the deceased.
18. On cross-examination, DW1 stated that he does not know the deceased and does not know “Fire Mama”, who had been mentioned in the proceedings. He maintained that on 11th December 2023 he was with his mother and Doreen, that only Doreen would be his witness because his mother was unwell at home, and that they were all together in the sense that he was at the shamba and they could see one another. He denied the evidence adduced against him. On re-examination he stated that he had been sworn to tell the truth, that he was in the shamba while his sister Doreen and his mother were seated in the shed next to the shamba, and that Doreen was assisting their mother to bask in the sun.
19. DW2, Doreen Mayabi, the sister of the Accused, also gave sworn evidence in Kiswahili. She testified that she comes from Emuli village, Luanda township, Vihiga County and is presently unemployed. On 11th December 2023 she was at home at Emuli with her mother, Jane Amanya Atich, and her brother Derrick Mayabi Makutsa, the Accused. Her mother is at home, unwell and paralysed; her father died in 2009.
20. She testified that on that day she was doing household chores as she looks after her mother, and that the Accused was also at home. He woke up, took tea and went to the shamba, where he cultivates vegetables. He began digging at about 9.00 a.m. and left between 1.00 p.m. and 2.00 p.m., when he came and ate the lunch she had cooked. He rested a while and suggested that they take their mother outside to bask. He then untied the cow and began grazing it, and it was about 3.00 p.m. when he was grazing the cow. She could see him herding the cow in the compound, taking care that it did not eat his vegetables.
21. She further testified that he took the cow to its shed at 5.00 p.m., milked it, then bathed and watched television. He waited for supper and ate when it was ready. They watched the news and all went to sleep, sleeping in their mother's house. She stated that the Accused has no wife and has not constructed a house at home.
22. She testified that on 12th December 2023 they woke the Accused, took tea, and he told her he wanted to go out on some errands. After he left he telephoned her and informed her that he had been arrested along the road. She followed him to Luanda Police Station and spoke to him physically. He told her his telephone had been taken. She knew his telephone; it was an Oppo and was the one he had been using. She next saw the telephone in Court. The police returned it to him on 23rd October 2024 at about 2.00 p.m. She signed the acknowledgement (Defence Exhibit 1), showed the Court her signature and read out the identity card number appearing thereon as 32638841. The police officer who signed the document was recorded as Joseph, No. 240074, indicated as C.I. Josephat Mwai.
23. DW2 stated categorically that the Accused never left home on 11th December 2023 and that he left home on 12th December 2023, when he was arrested. It is a matter of record that learned counsel for the Republic did not cross-examine DW2 at all. The defence thereafter closed its case.
D. SUBMISSIONS
(i) For the Republic
24. Learned Principal Prosecution Counsel, Miss F. Koech, submitted that the Prosecution called six witnesses and established a prima facie case. She candidly and properly conceded that none of the Prosecution witnesses actually saw the Accused assault the deceased and that the case rests on circumstantial evidence.
25. On death and unlawfulness, counsel relied on the evidence of PW3 and the post mortem report, and cited R v Joseph Chege Njora [2007] eKLR and Antony Njue Njeru v R, Criminal Appeal No. 77 of 2006, on the circumstances in which a killing may be justified or excused. On the acts of the Accused, counsel relied on Abanga alias Onyango v R, Criminal Appeal No. 32 of 1990, Sawe v Republic [2003] eKLR and GMI v Republic, Criminal Appeal No. 38 of 2011, and submitted that the chain of events is cumulative and shows clearly that the Accused, jointly with others, was the perpetrator.
26. On malice aforethought, counsel relied on Section 206 of the Penal Code, Republic v Tubere s/o Ochen (1945) 12 EACA 63 and Hyam v DPP [1974] A.C., and submitted that the nature of the injuries to the head, together with the threats spoken to by PW1, establish malice aforethought. Counsel concluded that the Accused gave no tangible defence, did not dislodge the Prosecution case, and should be convicted and sentenced accordingly.
(ii) For the Accused
27. Learned counsel Mr. Lugadiru submitted that the Accused gave a detailed and coherent account of his movements on 11th December 2023, that his alibi was never challenged or shaken by the Prosecution, and that the evidence of DW2 corroborated that of DW1 and was itself unshaken.
28. Counsel emphasised the Prosecution's own concession that none of its witnesses saw the Accused assault the deceased. He submitted that the three tests in Abanga (supra) and the further requirement in Sawe (supra) were not met; that the investigating officer confiscated the Accused's mobile telephone for the purpose of investigation and found nothing in it linking the Accused to the offence, the telephone having been returned to the Accused on 23rd October 2024 under the handingover note produced as Defence Exhibit 1; and that no circumstance was established placing the Accused at the scene.
29. Counsel submitted that, the actus reus not having been established, the question of malice aforethought under Section 206 of the Penal Code does not arise, and urged the Court to acquit the Accused under Section 215 of the Criminal Procedure Code.
E. ISSUES FOR DETERMINATION
30. The elements of the offence of murder are settled. In Anthony Ndegwa Ngari v Republic [2014] eKLR (see also Nyambura & Others v Republic [2001] KLR 355), the Court of Appeal identified them as: (a) the death of the deceased and the cause of that death; (b) that the Accused committed the unlawful act which caused the death of the deceased; and (c) that the Accused had malice aforethought.
31. Arising from the pleadings, the evidence and the rival submissions, the issues that fall for determination in this case are:
a. Whether the deceased, Shem Omoko alias Kangethe, is dead and the cause of his death;
b. Whether the death was caused by an unlawful act or omission;
c. Whether it was the Accused person who committed the unlawful act which caused the death of the deceased;
d. If so, whether the Accused was actuated by malice aforethought;
e. Whether the defence of alibi raised by the Accused has been displaced; and
f. What orders should issue.
F. THE BURDEN AND STANDARD OF PROOF
32. Before turning to the issues, I remind myself of the governing principle. The burden of proving the guilt of the Accused rests upon the Prosecution throughout and never shifts. It is discharged only by proof beyond reasonable doubt. In Woolmington v Director of Public Prosecutions [1935] AC 462, Viscount Sankey L.C. described this as the golden thread running through the web of the English criminal law, and the principle applies with full force in this jurisdiction.
33. This principle is reinforced by Article 50(2)(a) of the Constitution of Kenya, 2010, which guarantees every Accused person the right to be presumed innocent until the contrary is proved, and by Article 50(2)(l), which provides that an Accused person shall not be compelled to give self-incriminating evidence. Sections 107 and 108 of the Evidence Act likewise place the legal burden on the party who asserts.
34. It follows that the Prosecution case must stand or fall on its own strength. The Prosecution cannot found a conviction upon the weakness of the defence, and the rejection of a defence, even wholly, does not by itself supply the proof which the Prosecution is required to furnish. As was emphasized in Okethi Okale v Republic [1965] EA 555, the evidence for the Prosecution and the evidence for the defence must not be considered in isolation from one another; the Court must consider the case as a whole.
35. I bear in mind, finally, that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt or proof to a mathematical certainty. It means that the evidence must be of such cogency that the Court is left with no reasonable doubt as to the guilt of the Accused. Where a reasonable doubt exists, it must be resolved in favour of the Accused.
G. ANALYSIS AND DETERMINATION
Issue (a): The fact and cause of death
36. The fact of death is not in dispute. The Republic and the defence are agreed on this point, the Accused expressly conceding in his submissions that the death of Shem Omoko alias Kangethe was proved by the post mortem report and the evidence of PW1, PW2 and PW3.
37. PW2 identified the body of the deceased as that of her son at the scene. PW4 and PW6 attended the scene and confirmed the identity of the deceased. PW3, Dr. Masika Collins, conducted the post mortem examination, found head injuries on the scalp and four deep cut wounds, observed that the head injury had penetrated the cranium with visible brain matter, and opined that the cause of death was severe head injury secondary to trauma caused by a sharp object. He produced the post mortem report dated 20th December 2023, which was not opposed.
38. I am accordingly satisfied, and I find as a fact, that Shem Omoko Alias Kangethe is dead and that the cause of his death was severe head injury secondary to trauma caused by a sharp object. The first element is proved beyond reasonable doubt.
Issue (b): Whether the death was caused by an unlawful act
39. The law presumes every homicide to be unlawful unless it is excused or authorized by law. In Gusambizi s/o Wesonga v Republic (1948) 15 EACA 63, it was held that every homicide is presumed to be unlawful except where circumstances make it excusable or where it has been authorised by law. Article 26(1) and (3) of the Constitution guarantees the right to life and provides that a person shall not be deprived of life intentionally save to the extent authorised by the Constitution or other written law.
40. Nothing on the record suggests accident, lawful authority, self-defence or provocation. The deceased was found lying along a public road at Ebusakami with his motorcycle nearby, having sustained four deep cut wounds to the head penetrating the cranium. Injuries of that character, inflicted with a sharp object upon a person going about his business, admit of no lawful explanation.
41. I therefore find that the death of the deceased was caused by an unlawful act. The second element is proved beyond reasonable doubt.
Issue (c): Whether the Accused committed the unlawful act which caused the death
42. This is the decisive issue in this trial, and it must be approached with care.
43. The Republic frankly and properly concedes in its submissions that none of the Prosecution witnesses actually saw the Accused assault the deceased. There is therefore no direct evidence whatsoever connecting the Accused to the death of the deceased. There is no eyewitness. There is no confession. There is no forensic evidence. The Prosecution case rests entirely upon circumstantial evidence.
44. Circumstantial evidence is, of course, perfectly capable of founding a conviction, and is frequently the best evidence available. But because it proceeds by inference rather than by observation, the law has long imposed strict conditions before an inference of guilt may be drawn from it.
45. The classic statement is that of the Court of Appeal for Eastern Africa in R v Kipkering Arap Koske & Another (1949) 16 EACA 135:
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 his guilt, and the burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the Prosecution and never shifts to the Accused.
46. Both parties have cited Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990, in which the Court of Appeal set out the three tests which circumstantial evidence must satisfy: first, the circumstances from which an inference of guilt is sought to be drawn must be cogent and firmly established; secondly, those circumstances must be of a definite tendency unerringly pointing towards the guilt of the Accused; and thirdly, the circumstances, taken cumulatively, must 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 by no one else.
47. To these must be added the fourth requirement stated in Sawe v Republic [2003] eKLR and Simoni Musoke v R [1958] EA 715, namely that the Prosecution must establish that there are no other co-existing circumstances which would weaken or destroy the inference of guilt. The Court of Appeal in Sawe added a caution which is directly in point in this case:
Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.
48. Against that framework, I turn to examine the strands of circumstantial evidence upon which the Republic relies. As I understand the Prosecution case, they are three: motive arising from the events of 8th December 2023; threats allegedly uttered in the presence of PW1 on that date; and the death of the deceased three days later.
I. The events of 8th December 2023 and the question of motive
49. PW4 gave direct evidence of the raid on the bhang den on 8th December 2023 and stated that as the team left the compound, the Accused blocked their way and grabbed the confiscated bhang. If accepted, that evidence establishes that the Accused had an interest in the deceased's activities as an informer, and therefore a possible motive.
50. Two observations must, however, be made. First, motive is not an ingredient of the offence of murder. Its presence may strengthen a case otherwise established; its presence alone can never constitute proof of the act charged. Many persons have a motive to commit a crime; very few of them commit it.
51. Secondly, and more importantly, the evidence of PW4 goes to an incident which occurred on 8th December 2023, at a different place, and which had nothing to do with the killing. It establishes, at most, an antecedent quarrel. It does not place the Accused at Ebusakami on 11th December 2023, nor does it connect him with the assault upon the deceased. The chain, on this strand, does not even begin to close.
52. I would add that the record should be examined carefully on the question whether PW4 knew the Accused before 8th December 2023 and by what means he came to name him, and whether PW4 identified the Accused in the dock. The Republic's submissions record a dock identification only by PW6, the investigating officer, whose identification is of no evidential value on this question since he merely identified the man he had himself arrested.
II. The alleged threats spoken to by PW1
53. The evidence of PW1 is the load-bearing pillar of the Prosecution case. It is therefore necessary to examine it closely.
54. PW1's evidence, as summarized by the Republic itself, is that she heard “the mob” saying that they had warned the deceased several times and that they would kill him, and that the Accused was in that mob. Elsewhere in the same submissions it is put slightly differently, namely that she heard “the youth among them the Accused” state that they would kill the deceased. These are not the same proposition. The first attributes the words to an undifferentiated crowd; the second attributes them to the Accused.
55. The distinction matters. Words spoken by an unidentified member of a mob are not admissible against the Accused merely because he is said to have been present in the mob. Such words are, as against him, hearsay. They become admissible against him only if he himself uttered or adopted them, or if a common intention or conspiracy is first independently established, in which case Section 10 of the Evidence Act may render the statements of one conspirator admissible against another. Neither foundation was laid here.
56. There is a further and more fundamental difficulty. PW1's ability to place the Accused in that mob rests entirely on her recognition of him as “mama fire's husband”. The Accused testified on oath that he is not married, that he has no wife, and that he does not know Jennifer Malele or “mama fire” at all. DW2 confirmed that her brother has no wife. That evidence was put squarely in issue in cross-examination and the Accused maintained it. The Prosecution neither recalled PW1 nor applied under Section 309 of the Criminal Procedure Code to adduce evidence in rebuttal. The very basis upon which PW1 claimed to recognise the Accused therefore stands contradicted on oath and unanswered.
57. No identification parade was conducted. In a case where the identity of the offender is the sole live issue, that omission is not a technicality. The evidence of identification remains, on this record, of the weakest description.
58. Even taking PW1's evidence at its highest, it establishes no more than that on 8th December 2023 a threat was uttered by someone in a crowd in which the Accused is said to have been present. Utterances made in the heat of a confrontation, by persons in a crowd, three days before a killing, cannot without more be elevated into proof that the person who made them, still less a person who merely stood among those who made them, carried them into execution.
III. The death of the deceased on 11th December 2023
59. The third strand is temporal proximity. The deceased was killed three days after the confrontation. But proximity in time, standing alone, proves nothing about who did the killing. Not a single witness places the Accused at Ebusakami, or on the road where the deceased was found, or anywhere near the deceased, on 11th December 2023. No witness saw him travelling to or from the scene. Nothing recovered at the scene is linked to him.
60. On the contrary, there are co-existing circumstances which materially weaken any inference of guilt, and which the Prosecution was obliged, but has failed, to exclude:
(i) The deceased was, on the evidence of both PW4 and PW6, a police informer and a member of community policing who had caused a bhang den to be raided. By the nature of that role he was exposed to hostility from a wide and indeterminate class of persons. PW4's own evidence is that a crowd of youth stoned a team of Government administrators. Any one or more of that crowd, or of the wider community of persons whose trade the deceased had disrupted, had the same motive attributed to the Accused.
(ii) The Information itself charges the Accused “jointly with others not before Court”. The Prosecution therefore acknowledges the existence of other perpetrators. None of them was identified, investigated or charged, and no evidence was led as to the part, if any, played by the Accused as distinct from those others.
(iii) The proprietor of the den, Jennifer Malele alias “mama fire”, was on PW4's evidence the person who shouted the words which precipitated the stoning. She was neither charged nor called as a witness.
(iv) There is no evidence excluding the possibility that the deceased, who was found on a public road at night with his motorcycle beside him, met his death at the hands of persons wholly unconnected with the events of 8th December 2023.
IV. The lacunae in the investigation
61. The state of the investigation gives this Court real disquiet. No murder weapon was recovered. No blood, fingerprint, DNA or other forensic examination was undertaken or produced. No scene-of-crime report or sketch plan was tendered. No witness from the locality of the killing was called to speak to what was seen or heard on the road at Ebusakami that evening, notwithstanding PW4's evidence that a large crowd had gathered there.
62. Most strikingly, the investigating officer seized the Accused's mobile telephone on arrest in December 2023 and retained it until 23rd October 2024, a period of some ten months. That telephone was the one item of potentially objective evidence in the entire case. It was capable of yielding call data records, cell-site information locating the handset on 11th December 2023, message content and contact associations. No such analysis was produced. The defence submits, and the Republic does not contradict, that the investigating officer found nothing in the telephone linking the Accused to the offence. The handset was simply returned to the Accused under the handing-over note produced as Defence Exhibit 1.
63. In Bukenya & Others v Uganda [1972] EA 549, the Court of Appeal for Eastern Africa held that the Prosecution has a duty to call or make available all witnesses necessary to establish the truth, even where their evidence may be inconsistent; that the Court itself has not merely the right but the duty to call any person whose evidence appears essential to the just decision of the case; and that where the evidence called is barely adequate and it appears there was other evidence available, the Court is entitled to infer that such evidence would have been adverse to the Prosecution. That principle, endorsed by our Court of Appeal in Erick Onyango Ondeng' v Republic [2014] eKLR, applies with particular force where, as here, the evidence actually led is
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