REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL CASE NO E029 OF 2023
PROSECUTOR…………………………………………………..REPUBLIC
VERSUS
EMMANUEL MATUYA NDIEMA………………………….…ACCUSED
JUDGMENT
1. The accused, EMMANUEL MATUYA NDIEMA , was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code . The particulars are that on 26 th July 2023 at Chemoge sub-location, Mt. Elgon Sub- County within Bungoma County, the accused murdered ANDREW NDIEMA MASAI.
2. The prosecution called 12 witnesses to prove its case. Haggai Kipsang Bokosa (Pw1), a businessman who found the deceased lying on the road; Edwin Kiprotich Mwachar (Pw2), the deceased’s nephew; Patricia Cherotich Masai (Pw3), the deceased’s widow; Mercy Nekesa Simiyu (Pw4), the wife of Pw2; Clara Chemutai Ngeiywo (Pw5), an employee at Bridge Bar; Amos Kipsang Simwoto (Pw6); Martin Imon Kapehanga (Pw7); Joseph Ndiema Mwecher (Pw8); No. 70814 PC Samuel Koech (Pw9); Dr. Edward Wafula Simiyu (Pw10); Martin Masika Mandila (Pw11); and No. 87087 PC Kennedy Kipsoz (Pw12). Emmanuel Matuya Ndiema gave sworn testimony, testifying as Dw1.
3. Pw5 testified that she works at Bridge Bar in Chemoge. On 26/7/2023 at about 7.00 p.m., while at work, the deceased came to the bar and asked for his drink. As he drank, the accused, who did not drink, told him they should go home. They left the bar between 7.00 p.m. and 8.00 p.m. She further testified that the bar had lights and that the security lights were on.
4. On 26/7/2023 at 6:30 p.m., Pw6 went to buy uji from Lydia at the centre. Whilst at the shop, the accused approached and asked whether he had a cigarette. Pw6 told him he didn’t have any and that he could ask Yona. Yona bought 3 cigarettes, and they smoked inside the Bridge Bar compound. After smoking, Pw6 sat outside Lydia’s shop, and the accused entered the bar. Shortly afterwards, the accused came and stood beside him, and the deceased came and spoke to the accused.
5. Pw6 testified that the accused then tried to stop a boda-boda.
6. Pw7, who is in the boda boda business, recalled that on the material day at 7:30 p.m., he had a passenger and was heading to Kapelegon. However, Pw7 stopped at a shop to deposit his money into his M-Pesa. As he left the shop, the accused called out to him and asked for a ride, but Pw7 already had a passenger. Pw7 testified that he did not look to see him but recognized his voice.
7. Pw6 then saw the accused and the deceased leave together. Pw6 testified that it appeared the accused was escorting the deceased towards Kiptama. However, after 5 minutes, the accused returned and bought an avocado.
8. Pw1 testified that on the material day at 7:00 p.m., he was riding his bike home. At Chepsoigei, where there is a river, he saw a person lying on his stomach in the middle of the road. He could see using the headlights. After about 50 metres, he met Pw2 and his wife, Pw4. Pw1 asked them if they could all go back and check. They went back, turned him, and Pw2 recognised the deceased as his uncle.
9. Pw2, who testified on 26/7/2023, said he met the accused and the deceased walking towards Kaptama. Pw2 dropped his wife, and when he was at the shop near the bridge, his wife, Pw4, was there. They were then approached by Pw1, who told them that a person was lying on the road and that he could not recognize him. They went to the scene and turned the deceased over. He recognised him as his uncle. He recalled that 5 minutes had not lapsed when he saw the accused and the deceased. When they found the deceased lying on the road, he was not talking. He couldn’t walk or stand, and he was drunk. Pw2 asked the accused why he had left the deceased alone, yet the deceased was lying on the road. The accused told him he had been sent to the bar by the deceased.
10. Pw2’s wife testified as Pw4. She recalled that at 7:00 p.m., she had closed to go home. She met her husband with a passenger, and he waved at her and said he would return for her. She entered a shop to buy a card and found the accused sitting on the bench. Pw4 met her husband, but before she got on the motorcycle, Pw1 told them that a person was lying on the road. Upon arrival, they found the deceased bleeding from the back of his head. Since Pw2 had seen the deceased with the accused, Pw4 returned to the shop and asked the accused why he had been in the deceased’s company, as the deceased had now been found lying on the road. The accused told him that the deceased could have fallen. Pw4 informed him that the deceased had a head injury and therefore couldn’t have fallen. The accused person was hesitant, but Pw4 waited until he accompanied her to the scene.
11. Pw2 and Pw4 both testified that they placed the deceased on the bike and took him to hospital.
12. Pw2 also explained that they have disputes with the accused. In the first case, he was charged with the murder of a neighbor called Mbaya. He was acquitted for lack of witnesses. Later, the accused also beat his brother, called Alex Ndiema, and knifed him. He also has a case at home where he was beating people.
13. The Court administrator, Pw11, produced the file in respect of Criminal case No. E215 of 2021, in which the accused was charged and convicted of assaulting Alex Ndiema.
14. The deceased’s wife, Pw3, testified that she received a call from Pw2 informing her that the deceased had been found lying on the road and was not speaking. She later received a call from the accused, who told her the deceased had died.
15. Pw8 was present when the post-mortem of the deceased was carried out. He testified that he was the deceased’s brother.
16. No. 70814 PC Samuel Koech (Pw9) was the arresting officer. He testified that on 27/7/2023 at 9.00 a.m., they received a report from someone in the area at Sikatia Medical Centre of the deceased’s death. He went to the clinic and observed that the accused had been with the deceased before his death and had disappeared with the deceased’s phone. A mob wanted to kill the accused. He tried to reach the accused using the deceased’s number and also called him using his own number. The accused told him that he was at Sosoi river. Pw9 arrested the accused near Kiptiroko Primary School at 10:00 a.m.
17. Pw12 was the investigating officer. He testified that, based on his investigations, the deceased left with the accused. He explained that the distance from the bar to the main gate was 25 metres, and from the gate to where the deceased was found was 50 metres. The accused and the deceased left together. The accused then returned. He further testified that when the accused was arrested, his jacket was torn, indicating a struggle with the deceased.
18. In his defence, the accused testified that on the material day he was at the Bridge around 8:00 p.m. Silas told him the deceased was in the club and wanted to see him. He entered the club and greeted the deceased. The deceased told him he was still drinking and that he should wait for him. After 20 minutes, the deceased came out, and the accused told him his motorcycle was not working. The accused told him they could use the pastor’s. However, the pastor declined to carry three people. The deceased told him they would get another bike along the road. The deceased then sent him to get the liquor inside the bar. However, he was told there wasn’t any liquor. He did not find the deceased when he left and was told he had crossed the road and left. He was there for 30 minutes before Pw4 came and told him the deceased was lying on the road. They took him to the hospital, and he stayed with the deceased in the hospital. When he died, he called the deceased’s wife. He testified that he walked with the deceased for about 25 metres and left him. The deceased was not very drunk, and he had no reason to kill him. He testified that after he was arrested, he was asked to wear the jacket, which Pw4 did not even identify. No weapon was discovered at the scene. On cross-examination, he testified that he had a grudge with Pw2, who cut his mabatis in 2019, and that he reported him to the chief.
SUBMISSIONS
19. The prosecution submitted that the evidence is purely circumstantial, supported by the deceased’s character as shown by his previous conviction. In addition, the accused’s conduct after the deceased’s death was questionable. The accused went into hiding. He was the last person seen with the deceased, and given the deceased’s cause of death, he was responsible for the injuries sustained.
20. The accused person argued that the person who killed the deceased had not been proved. None of the witnesses identified the accused as responsible. There was no proof of any unlawful act or omission on the part of the accused. The prosecution also failed to prove that the accused had the motive and intention to kill the deceased.
ANALYSIS AND DETERMINATION
21. I have considered the evidence adduced herein by the prosecution witnesses and the defence proffered by the accused person. The main issue for determination is whether the prosecution has proved its case against the accused person to the required standard, namely beyond a reasonable doubt. The accused is charged under sections 203 and 204 of the Penal Code, which read as follows:
“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
204. Any person who is convicted of murder shall be sentenced to death.”
22. The prosecution is required to prove the deceased's death, that the accused person caused the unlawful death, and that the accused was actuated by malice.
23. The death of the deceased was sufficiently proved. Pw10 testified that he works at Bokoli Sub–County Hospital as the medical superintendent. He conducted the post-mortem. The deceased had a large bruise on the right side of the back, about 4x16 cms. Both sides of the skull were swollen, and blood was oozing from the right ear. Internally, there was blood on the top of the skull and a pool of blood on the surface of both sides of the brain. He formed an opinion that the cause of death was severe head injury due to blunt trauma, with extensive bleeding from the brain, a subdural haemorrhage. The head was hit on both sides, and both sides were swollen. He had bruises on the back.
24. I now turn to consider whether the prosecution proved that the accused caused the unlawful death.
25. The prosecution seeks to rely on circumstantial evidence and the doctrine of ‘last seen’. In Moingo & Another v Republic (Criminal Appeal No 90 of 2018) [2022] KECA 6, this Court addressed the application of the “last seen with” doctrine in Kenya as follows:
“The fact that the deceased was last seen in the hands and restraint of the appellants, a prima facie case was established to require the appellants to give a reasonable explanation as to what befell him. Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the Last Seen doctrine in the prosecution of murder or culpable homicide cases is that, where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his/or her death. In the absence of any explanation, the court is justified in drawing an inference that the accused killed the deceased (see the Nigerian case of Moses Jua v the State [2007] PELR- CA/11 42/2006).”
26. The court in Republic v Irungu & another [2024] KEHC 1493 (KLR) stated:
“The person last seen doctrine stands as negation or an exception to the doctrine of “presumption of innocence”, as it is the law that where the victim was last seen by the accused, and is found dead, it will be presumed that the last person that he was last seen with is responsible for his death.”
27. The accused's explanation was that he merely escorted the deceased for 25 metres and then returned to the bar. In his defence, he testified that Pw2 had a grudge because he reported them to the chief for cutting his mabatis. In Francis Kimani Karanja v Republic [2016] eKLR, the court observed that:
“[20] However, the evidence on the injuries need to be examined together with the rest of the evidence and circumstances of the case and this leads to the next issue, namely, the admitted existence of a grudge or possibility of a grudge caused by the land dispute between the parties. It is not in dispute that the parties had an active and acrimonious land dispute and in fact on the material day, they had just returned from the local chief's office where they had been summoned by the chief in connection with the said dispute. As was held in the case of DPP v Hester [21] evidence emanating from a witness who holds a grudge or could potentially hold a grudge against the accused person needs to be treated with care and caution because such persons may have an agenda of their own. A similar position was held in R v Knowlden [22] where family members tendered evidence implicating one another.”
28. It is common ground that Pw2’s family held a grudge against the accused person. This was evident from Pw2’s testimony, in which he accused the accused person of killing a relative and assaulting others. The accused person also testified that he took Pw2 to the chief after they destroyed his mabatis. Therefore, the evidence of Pw2 and Pw4 ought to be treated with caution.
29. However, Pw5 and Pw6, independent witnesses, testified that the deceased left with the accused persons and returned shortly thereafter. Thereafter, Pw1 found the deceased’s body lying on the ground. Pw10’s evidence was that the deceased had been hit on both sides of the head, as evidenced by visible swelling. Pw6 further testified that the accused was reluctant to go to the scene with Pw4.
30. When arrested, the accused was wearing a black jacket with torn pockets and tears at the armpits. Pw12 testified that this was a sign of a struggle between the deceased and the accused. The accused left with the deceased, only for the deceased to be found dead shortly thereafter. The accused was therefore required to explain how the deceased met his death. Consequently, in the absence of this explanation, I find that the accused caused the unlawful death of the deceased.
31. I now turn to consider whether the prosecution has proven malice aforethought. Section 206 of the Penal Code defines malice aforethought, and in determining whether the prosecution has proven this essential element, the court must examine both the circumstances of the incident and the context in which it occurred. The locus classicus case of R v Tubere s/o Ochen (1945) 12 EACA 63 provides guidelines on when malice may be inferred. The court stated as follows:
“The weapon used i.e. whether it was a lethal weapon or not;
The part of the body that was targeted i.e. whether it is a vulnerable part or not;
The manner in which the weapon was used i.e. whether repeatedly or not, or number of injuries inflicted; and
The conduct of the accused before, during and after the incident i.e. whether there was impunity.”
32. The evidence from Pw10 was that the deceased sustained head injuries due to blunt trauma. This indicated that he was beaten in the head with the intention of causing him grievous harm. The injuries were severe. Pw1, Pw2 and Pw3 testified that when they found him, he could not speak or walk. Pw3 further testified that he died the following day.
33. In the circumstances, I find that malice aforethought was established as the accused person knew that his actions would cause grievous harm or death to the deceased. Consequently, I find that the prosecution has proved its case beyond reasonable doubt. The accused, EMMANUEL MATUYA NDIEMA , is guilty of the murder of ANDREW NDIEMA MASAI, and he is convicted accordingly as charged.
Dated, Signed and Delivered at BUNGOMA this 11 th day of December 2025
R.E. OUGO
JUDGE
In the presence of:
Emmanuel Matuya Ndiema/ Accused
Mr. Wanjala – For the Accused
Miss Kibet for the State
Mr. Wanjala for the accused
HCCRC NO E029 OF 2023 - JUDGMENTHCCRC NO E029 OF 2023 - JUDGMENT HCCRC NO E029 OF 2023 - JUDGMENTHCCRC NO E029 OF 2023 - JUDGMENT 2222
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL CASE NO E029 OF 2023
PROSECUTOR…………………………………………………..REPUBLIC
VERSUS
EMMANUEL MATUYA NDIEMA………………………….…ACCUSED
JUDGMENT
1. The accused, EMMANUEL MATUYA NDIEMA , was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code . The particulars are that on 26 th July 2023 at Chemoge sub-location, Mt. Elgon Sub- County within Bungoma County, the accused murdered ANDREW NDIEMA MASAI.
2. The prosecution called 12 witnesses to prove its case. Haggai Kipsang Bokosa (Pw1), a businessman who found the deceased lying on the road; Edwin Kiprotich Mwachar (Pw2), the deceased’s nephew; Patricia Cherotich Masai (Pw3), the deceased’s widow; Mercy Nekesa Simiyu (Pw4), the wife of Pw2; Clara Chemutai Ngeiywo (Pw5), an employee at Bridge Bar; Amos Kipsang Simwoto (Pw6); Martin Imon Kapehanga (Pw7); Joseph Ndiema Mwecher (Pw8); No. 70814 PC Samuel Koech (Pw9); Dr. Edward Wafula Simiyu (Pw10); Martin Masika Mandila (Pw11); and No. 87087 PC Kennedy Kipsoz (Pw12). Emmanuel Matuya Ndiema gave sworn testimony, testifying as Dw1.
3. Pw5 testified that she works at Bridge Bar in Chemoge. On 26/7/2023 at about 7.00 p.m., while at work, the deceased came to the bar and asked for his drink. As he drank, the accused, who did not drink, told him they should go home. They left the bar between 7.00 p.m. and 8.00 p.m. She further testified that the bar had lights and that the security lights were on.
4. On 26/7/2023 at 6:30 p.m., Pw6 went to buy uji from Lydia at the centre. Whilst at the shop, the accused approached and asked whether he had a cigarette. Pw6 told him he didn’t have any and that he could ask Yona. Yona bought 3 cigarettes, and they smoked inside the Bridge Bar compound. After smoking, Pw6 sat outside Lydia’s shop, and the accused entered the bar. Shortly afterwards, the accused came and stood beside him, and the deceased came and spoke to the accused.
5. Pw6 testified that the accused then tried to stop a boda-boda.
6. Pw7, who is in the boda boda business, recalled that on the material day at 7:30 p.m., he had a passenger and was heading to Kapelegon. However, Pw7 stopped at a shop to deposit his money into his M-Pesa. As he left the shop, the accused called out to him and asked for a ride, but Pw7 already had a passenger. Pw7 testified that he did not look to see him but recognized his voice.
7. Pw6 then saw the accused and the deceased leave together. Pw6 testified that it appeared the accused was escorting the deceased towards Kiptama. However, after 5 minutes, the accused returned and bought an avocado.
8. Pw1 testified that on the material day at 7:00 p.m., he was riding his bike home. At Chepsoigei, where there is a river, he saw a person lying on his stomach in the middle of the road. He could see using the headlights. After about 50 metres, he met Pw2 and his wife, Pw4. Pw1 asked them if they could all go back and check. They went back, turned him, and Pw2 recognised the deceased as his uncle.
9. Pw2, who testified on 26/7/2023, said he met the accused and the deceased walking towards Kaptama. Pw2 dropped his wife, and when he was at the shop near the bridge, his wife, Pw4, was there. They were then approached by Pw1, who told them that a person was lying on the road and that he could not recognize him. They went to the scene and turned the deceased over. He recognised him as his uncle. He recalled that 5 minutes had not lapsed when he saw the accused and the deceased. When they found the deceased lying on the road, he was not talking. He couldn’t walk or stand, and he was drunk. Pw2 asked the accused why he had left the deceased alone, yet the deceased was lying on the road. The accused told him he had been sent to the bar by the deceased.
10. Pw2’s wife testified as Pw4. She recalled that at 7:00 p.m., she had closed to go home. She met her husband with a passenger, and he waved at her and said he would return for her. She entered a shop to buy a card and found the accused sitting on the bench. Pw4 met her husband, but before she got on the motorcycle, Pw1 told them that a person was lying on the road. Upon arrival, they found the deceased bleeding from the back of his head. Since Pw2 had seen the deceased with the accused, Pw4 returned to the shop and asked the accused why he had been in the deceased’s company, as the deceased had now been found lying on the road. The accused told him that the deceased could have fallen. Pw4 informed him that the deceased had a head injury and therefore couldn’t have fallen. The accused person was hesitant, but Pw4 waited until he accompanied her to the scene.
11. Pw2 and Pw4 both testified that they placed the deceased on the bike and took him to hospital.
12. Pw2 also explained that they have disputes with the accused. In the first case, he was charged with the murder of a neighbor called Mbaya. He was acquitted for lack of witnesses. Later, the accused also beat his brother, called Alex Ndiema, and knifed him. He also has a case at home where he was beating people.
13. The Court administrator, Pw11, produced the file in respect of Criminal case No. E215 of 2021, in which the accused was charged and convicted of assaulting Alex Ndiema.
14. The deceased’s wife, Pw3, testified that she received a call from Pw2 informing her that the deceased had been found lying on the road and was not speaking. She later received a call from the accused, who told her the deceased had died.
15. Pw8 was present when the post-mortem of the deceased was carried out. He testified that he was the deceased’s brother.
16. No. 70814 PC Samuel Koech (Pw9) was the arresting officer. He testified that on 27/7/2023 at 9.00 a.m., they received a report from someone in the area at Sikatia Medical Centre of the deceased’s death. He went to the clinic and observed that the accused had been with the deceased before his death and had disappeared with the deceased’s phone. A mob wanted to kill the accused. He tried to reach the accused using the deceased’s number and also called him using his own number. The accused told him that he was at Sosoi river. Pw9 arrested the accused near Kiptiroko Primary School at 10:00 a.m.
17. Pw12 was the investigating officer. He testified that, based on his investigations, the deceased left with the accused. He explained that the distance from the bar to the main gate was 25 metres, and from the gate to where the deceased was found was 50 metres. The accused and the deceased left together. The accused then returned. He further testified that when the accused was arrested, his jacket was torn, indicating a struggle with the deceased.
18. In his defence, the accused testified that on the material day he was at the Bridge around 8:00 p.m. Silas told him the deceased was in the club and wanted to see him. He entered the club and greeted the deceased. The deceased told him he was still drinking and that he should wait for him. After 20 minutes, the deceased came out, and the accused told him his motorcycle was not working. The accused told him they could use the pastor’s. However, the pastor declined to carry three people. The deceased told him they would get another bike along the road. The deceased then sent him to get the liquor inside the bar. However, he was told there wasn’t any liquor. He did not find the deceased when he left and was told he had crossed the road and left. He was there for 30 minutes before Pw4 came and told him the deceased was lying on the road. They took him to the hospital, and he stayed with the deceased in the hospital. When he died, he called the deceased’s wife. He testified that he walked with the deceased for about 25 metres and left him. The deceased was not very drunk, and he had no reason to kill him. He testified that after he was arrested, he was asked to wear the jacket, which Pw4 did not even identify. No weapon was discovered at the scene. On cross-examination, he testified that he had a grudge with Pw2, who cut his mabatis in 2019, and that he reported him to the chief.
SUBMISSIONS
19. The prosecution submitted that the evidence is purely circumstantial, supported by the deceased’s character as shown by his previous conviction. In addition, the accused’s conduct after the deceased’s death was questionable. The accused went into hiding. He was the last person seen with the deceased, and given the deceased’s cause of death, he was responsible for the injuries sustained.
20. The accused person argued that the person who killed the deceased had not been proved. None of the witnesses identified the accused as responsible. There was no proof of any unlawful act or omission on the part of the accused. The prosecution also failed to prove that the accused had the motive and intention to kill the deceased.
ANALYSIS AND DETERMINATION
21. I have considered the evidence adduced herein by the prosecution witnesses and the defence proffered by the accused person. The main issue for determination is whether the prosecution has proved its case against the accused person to the required standard, namely beyond a reasonable doubt. The accused is charged under sections 203 and 204 of the Penal Code, which read as follows:
“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
204. Any person who is convicted of murder shall be sentenced to death.”
22. The prosecution is required to prove the deceased's death, that the accused person caused the unlawful death, and that the accused was actuated by malice.
23. The death of the deceased was sufficiently proved. Pw10 testified that he works at Bokoli Sub–County Hospital as the medical superintendent. He conducted the post-mortem. The deceased had a large bruise on the right side of the back, about 4x16 cms. Both sides of the skull were swollen, and blood was oozing from the right ear. Internally, there was blood on the top of the skull and a pool of blood on the surface of both sides of the brain. He formed an opinion that the cause of death was severe head injury due to blunt trauma, with extensive bleeding from the brain, a subdural haemorrhage. The head was hit on both sides, and both sides were swollen. He had bruises on the back.
24. I now turn to consider whether the prosecution proved that the accused caused the unlawful death.
25. The prosecution seeks to rely on circumstantial evidence and the doctrine of ‘last seen’. In Moingo & Another v Republic (Criminal Appeal No 90 of 2018) [2022] KECA 6, this Court addressed the application of the “last seen with” doctrine in Kenya as follows:
“The fact that the deceased was last seen in the hands and restraint of the appellants, a prima facie case was established to require the appellants to give a reasonable explanation as to what befell him. Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the Last Seen doctrine in the prosecution of murder or culpable homicide cases is that, where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his/or her death. In the absence of any explanation, the court is justified in drawing an inference that the accused killed the deceased (see the Nigerian case of Moses Jua v the State [2007] PELR- CA/11 42/2006).”
26. The court in Republic v Irungu & another [2024] KEHC 1493 (KLR) stated:
“The person last seen doctrine stands as negation or an exception to the doctrine of “presumption of innocence”, as it is the law that where the victim was last seen by the accused, and is found dead, it will be presumed that the last person that he was last seen with is responsible for his death.”
27. The accused's explanation was that he merely escorted the deceased for 25 metres and then returned to the bar. In his defence, he testified that Pw2 had a grudge because he reported them to the chief for cutting his mabatis. In Francis Kimani Karanja v Republic [2016] eKLR, the court observed that:
“[20] However, the evidence on the injuries need to be examined together with the rest of the evidence and circumstances of the case and this leads to the next issue, namely, the admitted existence of a grudge or possibility of a grudge caused by the land dispute between the parties. It is not in dispute that the parties had an active and acrimonious land dispute and in fact on the material day, they had just returned from the local chief's office where they had been summoned by the chief in connection with the said dispute. As was held in the case of DPP v Hester [21] evidence emanating from a witness who holds a grudge or could potentially hold a grudge against the accused person needs to be treated with care and caution because such persons may have an agenda of their own. A similar position was held in R v Knowlden [22] where family members tendered evidence implicating one another.”
28. It is common ground that Pw2’s family held a grudge against the accused person. This was evident from Pw2’s testimony, in which he accused the accused person of killing a relative and assaulting others. The accused person also testified that he took Pw2 to the chief after they destroyed his mabatis. Therefore, the evidence of Pw2 and Pw4 ought to be treated with caution.
29. However, Pw5 and Pw6, independent witnesses, testified that the deceased left with the accused persons and returned shortly thereafter. Thereafter, Pw1 found the deceased’s body lying on the ground. Pw10’s evidence was that the deceased had been hit on both sides of the head, as evidenced by visible swelling. Pw6 further testified that the accused was reluctant to go to the scene with Pw4.
30. When arrested, the accused was wearing a black jacket with torn pockets and tears at the armpits. Pw12 testified that this was a sign of a struggle between the deceased and the accused. The accused left with the deceased, only for the deceased to be found dead shortly thereafter. The accused was therefore required to explain how the deceased met his death. Consequently, in the absence of this explanation, I find that the accused caused the unlawful death of the deceased.
31. I now turn to consider whether the prosecution has proven malice aforethought. Section 206 of the Penal Code defines malice aforethought, and in determining whether the prosecution has proven this essential element, the court must examine both the circumstances of the incident and the context in which it occurred. The locus classicus case of R v Tubere s/o Ochen (1945) 12 EACA 63 provides guidelines on when malice may be inferred. The court stated as follows:
“The weapon used i.e. whether it was a lethal weapon or not;
The part of the body that was targeted i.e. whether it is a vulnerable part or not;
The manner in which the weapon was used i.e. whether repeatedly or not, or number of injuries inflicted; and
The conduct of the accused before, during and after the incident i.e. whether there was impunity.”
32. The evidence from Pw10 was that the deceased sustained head injuries due to blunt trauma. This indicated that he was beaten in the head with the intention of causing him grievous harm. The injuries were severe. Pw1, Pw2 and Pw3 testified that when they found him, he could not speak or walk. Pw3 further testified that he died the following day.
33. In the circumstances, I find that malice aforethought was established as the accused person knew that his actions would cause grievous harm or death to the deceased. Consequently, I find that the prosecution has proved its case beyond reasonable doubt. The accused, EMMANUEL MATUYA NDIEMA , is guilty of the murder of ANDREW NDIEMA MASAI, and he is convicted accordingly as charged.
Dated, Signed and Delivered at BUNGOMA this 11 th day of December 2025
R.E. OUGO
JUDGE
In the presence of:
Emmanuel Matuya Ndiema/ Accused
Mr. Wanjala – For the Accused
Miss Kibet for the State
Mr. Wanjala for the accused
HCCRC NO E029 OF 2023 - JUDGMENTHCCRC NO E029 OF 2023 - JUDGMENT HCCRC NO E029 OF 2023 - JUDGMENTHCCRC NO E029 OF 2023 - JUDGMENT 2222