REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL CASE NO. E031 OF 2023
REPUBLIC……………………………………………….……PROSECUTION
VERSUS
EDWIN WAFULA SIMIYU……………..…………………...…….ACCUSED
JUDGEMENT
1. The Accused person herein, EDWIN WAFULA SIMIYU was charged with the offence of murder contrary to Section 203 and 204 of the Penal Code. The particulars were that on the11th August 2023, at Kamukuywa Location, Kimilili Sub-County, within Bungoma County, murdered MATTHEW WEKESA MASIBAI.
2. The Accused persons denied the charge and Prosecution presented Six (6) witness in support of its case. The defence is represented by Ms. Wakoli.
3. At the close of the parties’ cases, they filed their final 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 12th August 2023. The witness account in Court establishes that the deceased indeed died and the cause of death was established by PW6, Dr. Edward Wafula Simiyu, as severe head injury (intracranial hemorrhage) due to blunt force trauma. He produced in Court the post mortem form filled on 21st August 2023, marked as PEXH.1
7. As to whether the Accused person was responsible for his death, PW3, Kevin Wanjala, who testified that on 11th August 2023, he went to the bus stage and met up with the deceased (who happens to be his cousin). He told the Court that the deceased accompanied him to pick up his wife and while enroute they met somebody who was talking on his phone only for the deceased to start a scuffle with the said person and when he tried to intervene the Accused Person herein arrived to the scene and got hold of the deceased person who was still fighting with the other person. He told the Court that the Accused Person herein hit the deceased with a timber plank on the head and the deceased person fell down, unconscious. Sensing the gravity of his action, the Accused Person then quickly suggested that they should proceed to the Police Station, only for him to later board a motor bike with join his colleague who had been fighting with the deceased and they rode off the scene of the incident. This witness testified that he then called his uncle who later organized a vehicle to take the deceased person to the hospital. PW3 told the Court that the Accused Person herein is someone well known to him as he is a mechanic and he mostly refers to him with his moniker “Edu”and that he is the one who hit the deceased person on the head. He told the Court that the incident occurred around 9.00 p.m. and there were electricity lights.
8. In his defence, the Accused person told the Court that while on his way home from a bike he found 3 people pulling at each other and one by the name Amos held a stick while the deceased person herein sat down. He told the Court that Amos called him when arrived at the scene and told him he had been attacked. Further, he told the Court that he never assaulted the deceased person herein and did not witness the assault of the deceased and could not know the cause of death of the deceased. He told the Court when he arrived at the scene the deceased was already lying down and that he was not acquainted with Amos. DW2 on the other hand claimed that on the date of the incident at 8.00 p.m. he was at the stage when the Accused Person came and requested him to take him to his house and on nearing his house they witnessed about 5 people arguing in the neighbouring house and one person was lying down. He told the Court that these people appeared drunk and Amos who is a neighbor to the Accused person called the Accused Person. He told the Court that Amos was holding a piece of firewood in his hand and that Amos and the Accused Person left for the Police Station. He told the court that he did not witness any fight and arrived at the scene after the event. I find the Accused person’s defence was a poor attempt at creating an alibi. It did not dislodge the Prosecution’s evidence (PW3) that he was at the scene at the date of the incident and that he is the one who delivered the strike, with the plank of timber, that caused the death of the deceased person herein.
9. 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 tendered by the prosecution places the accused person at the scene of the crime. The accused person testified that his neighbor Amos had summoned him to help him out as he had been attacked by the persons at the scene. The accused indeed confirms that he had alighted from the motor cycle and went to towards Amos with a view of establishing what was happening. PW3 testified that the accused arrived at the scene and struck the deceased with a timber plank. The evidence presented before the court indicated that there was a timber yard about 50 meters from the scene.
11. This case turns on identification by a single witness. The English case of R v Turnbull & Others (1976) 3 ALL ER 549 is of relevance on this issue, as the Court rendered itself as hereunder:
“....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.”
12. 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.”
13. 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.
14. PW3 stated that the affray had occurred in a well lit area and when the accused person joined in, he easily recognized him as “ Edu”, a mechanic from the neighborhood. I am inclined to believe the testimony of PW3. This witness did not attribute the attack of the deceased to the boda boda operator who was also at the scene but to the “ Edu”, the accused person herein. I do find that actus reus has been proved.
15. 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.
16. 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.”
17. 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.
18. 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.”
19. The post-mortem form produced by PW6 as PEXH1indicated that the injuries observed on the deceased person were: bruises on both sides of the face and both lips of the mouth and fracture surgital part of the skull exposing brain matter and was swollen. There was a pool of blood on the surface of the skull. This witness formed the opinion that the cause of death of the deceased was due to severe head injury (intracranial hemorrhage) secondary to blunt force trauma.
20. 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.
21. 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……”
22. In this case, the choice of weapon and the part of the body targeted, leads me to believe that the blow was intended to kill the deceased and in fact did kill the deceased. The accused person had malice aforethought.
23. On the balance I do find that the prosecution has proved the offence of murder against the accused person beyond any reasonable doubt and I thus find the accused person guilty of murder contrary to section 203 as read with 204 of the Penal Code.
24. Sentence will be after records and mitigation.
Delivered, Signed and Dated at Bungoma this 30th day of July 2025
M.S. SHARIFF
JUDGE
IN THE PRESENCE OF:
MS KIBET FOR PROSECUTION
MS WAKOLI FOR ACCUSED PERSON
PETER MACHONI- COURT ASSISTANT
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL CASE NO. E031 OF 2023
REPUBLIC……………………………………………….……PROSECUTION
VERSUS
EDWIN WAFULA SIMIYU……………..…………………...…….ACCUSED
JUDGEMENT
1. The Accused person herein, EDWIN WAFULA SIMIYU was charged with the offence of murder contrary to Section 203 and 204 of the Penal Code. The particulars were that on the11th August 2023, at Kamukuywa Location, Kimilili Sub-County, within Bungoma County, murdered MATTHEW WEKESA MASIBAI.
2. The Accused persons denied the charge and Prosecution presented Six (6) witness in support of its case. The defence is represented by Ms. Wakoli.
3. At the close of the parties’ cases, they filed their final 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 12th August 2023. The witness account in Court establishes that the deceased indeed died and the cause of death was established by PW6, Dr. Edward Wafula Simiyu, as severe head injury (intracranial hemorrhage) due to blunt force trauma. He produced in Court the post mortem form filled on 21st August 2023, marked as PEXH.1
7. As to whether the Accused person was responsible for his death, PW3, Kevin Wanjala, who testified that on 11th August 2023, he went to the bus stage and met up with the deceased (who happens to be his cousin). He told the Court that the deceased accompanied him to pick up his wife and while enroute they met somebody who was talking on his phone only for the deceased to start a scuffle with the said person and when he tried to intervene the Accused Person herein arrived to the scene and got hold of the deceased person who was still fighting with the other person. He told the Court that the Accused Person herein hit the deceased with a timber plank on the head and the deceased person fell down, unconscious. Sensing the gravity of his action, the Accused Person then quickly suggested that they should proceed to the Police Station, only for him to later board a motor bike with join his colleague who had been fighting with the deceased and they rode off the scene of the incident. This witness testified that he then called his uncle who later organized a vehicle to take the deceased person to the hospital. PW3 told the Court that the Accused Person herein is someone well known to him as he is a mechanic and he mostly refers to him with his moniker “Edu”and that he is the one who hit the deceased person on the head. He told the Court that the incident occurred around 9.00 p.m. and there were electricity lights.
8. In his defence, the Accused person told the Court that while on his way home from a bike he found 3 people pulling at each other and one by the name Amos held a stick while the deceased person herein sat down. He told the Court that Amos called him when arrived at the scene and told him he had been attacked. Further, he told the Court that he never assaulted the deceased person herein and did not witness the assault of the deceased and could not know the cause of death of the deceased. He told the Court when he arrived at the scene the deceased was already lying down and that he was not acquainted with Amos. DW2 on the other hand claimed that on the date of the incident at 8.00 p.m. he was at the stage when the Accused Person came and requested him to take him to his house and on nearing his house they witnessed about 5 people arguing in the neighbouring house and one person was lying down. He told the Court that these people appeared drunk and Amos who is a neighbor to the Accused person called the Accused Person. He told the Court that Amos was holding a piece of firewood in his hand and that Amos and the Accused Person left for the Police Station. He told the court that he did not witness any fight and arrived at the scene after the event. I find the Accused person’s defence was a poor attempt at creating an alibi. It did not dislodge the Prosecution’s evidence (PW3) that he was at the scene at the date of the incident and that he is the one who delivered the strike, with the plank of timber, that caused the death of the deceased person herein.
9. 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 tendered by the prosecution places the accused person at the scene of the crime. The accused person testified that his neighbor Amos had summoned him to help him out as he had been attacked by the persons at the scene. The accused indeed confirms that he had alighted from the motor cycle and went to towards Amos with a view of establishing what was happening. PW3 testified that the accused arrived at the scene and struck the deceased with a timber plank. The evidence presented before the court indicated that there was a timber yard about 50 meters from the scene.
11. This case turns on identification by a single witness. The English case of R v Turnbull & Others (1976) 3 ALL ER 549 is of relevance on this issue, as the Court rendered itself as hereunder:
“....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.”
12. 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.”
13. 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.
14. PW3 stated that the affray had occurred in a well lit area and when the accused person joined in, he easily recognized him as “ Edu”, a mechanic from the neighborhood. I am inclined to believe the testimony of PW3. This witness did not attribute the attack of the deceased to the boda boda operator who was also at the scene but to the “ Edu”, the accused person herein. I do find that actus reus has been proved.
15. 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.
16. 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.”
17. 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.
18. 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.”
19. The post-mortem form produced by PW6 as PEXH1indicated that the injuries observed on the deceased person were: bruises on both sides of the face and both lips of the mouth and fracture surgital part of the skull exposing brain matter and was swollen. There was a pool of blood on the surface of the skull. This witness formed the opinion that the cause of death of the deceased was due to severe head injury (intracranial hemorrhage) secondary to blunt force trauma.
20. 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.
21. 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……”
22. In this case, the choice of weapon and the part of the body targeted, leads me to believe that the blow was intended to kill the deceased and in fact did kill the deceased. The accused person had malice aforethought.
23. On the balance I do find that the prosecution has proved the offence of murder against the accused person beyond any reasonable doubt and I thus find the accused person guilty of murder contrary to section 203 as read with 204 of the Penal Code.
24. Sentence will be after records and mitigation.
Delivered, Signed and Dated at Bungoma this 30th day of July 2025
M.S. SHARIFF
JUDGE
IN THE PRESENCE OF:
MS KIBET FOR PROSECUTION
MS WAKOLI FOR ACCUSED PERSON
PETER MACHONI- COURT ASSISTANT