REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL CASE NO. E039 OF 2023 ( MURDER)
REPUBLIC …………………….………………………PROSECUTOR
VERSUS
GEOFFREY KIRUI KIMRONG………..……….….……ACCUSED
JUDGMENT
1. Geoffrey Kirui Kimrong, the accused, is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that, on the night of 13th September 2023, at Kamunguk village in Chepkube Location, Cheptais Sub-County within Bungoma County, the accused murdered James Chsebe Kisach.
2. The accused denied the offence. The prosecution called nine (9) witnesses to prove their case.
PROSECUTION CASE
3. Pw1, Jantrix Nakumicha Kisach, is the deceased’s wife. Pw2, Marion Chepkwemoi, is the deceased’s daughter. Pw3, Dan Kemboi, is the deceased’s son. Pw4, Laban Chemiat, is a clan elder and an uncle of the deceased. Pw5, Gladys Nabonya, is a village elder. Pw6, Noleak Kiso, is a relative of Pw1. Pw7, No. 53234 Sgt. Maurice Mulwa, was the arresting officer. Pw8, Doctor Elly Kosgei, performed the post-mortem on the deceased. Pw9, No. 252733 P.C Simon Powon, was the investigator who took over from Pw7.
PROSECUTION CASE
4. On 13 September 2023, Pw1 and Pw2 were at a funeral gathering (matanga) in their area. Pw2 left the matanga and went home. On reaching home, she entered the house. She then heard her father, the deceased, asking her to open the door. Her father went to the kitchen door. She heard her father being asked, “Huyo ni bibi yako?” She opened the door. She had her mother’s phone. She switched on its torch and shone its light on the accused. The accused hit her father, and he fell. Her father was struck on the forehead with a hammer. She ran away shouting towards her uncle’s place, where she was advised to call her mother. Pw1 was still at the matanga. She called her brother, Pw3. Pw2 left her father with Abel and Pw3 as she went to look for her mother. By then, Geoffrey had left. She heard her father say that Geoffrey had killed him.
5. Pw1 arrived at their home that same night and found her husband injured. Before they reached home, Pw2 told her that Geoffrey, the Nyumba Kumi representative, had cut her father. She had seen Geoffrey at the matanga. Pw1 called Geoffrey and told him what Pw2 had told her, but he took no action. Pw1 saw Geoffrey with a panga, a short fimbo and a Somali sword. Whilst attending to her injured husband, she told him that Geoffrey had injured him. Her husband was injured on the forehead, leg, ankle joint, back, shoulder and the front part of his hip. They placed him on a motor bike and took him to Chepkube police station. They were received at the police station by Pw7. Pw1 testified that the deceased kept saying that Geoffrey had killed him and that he had small children. Her husband, the deceased, died at 4.15 am.
6. Pw3 went home after being called by Pw2. He found his father injured. When asked what had happened, his father told him that Geoffrey had beaten him and killed him, and that he was leaving his children behind.
7. Pw4 received a call from his cousin on 13.9.2023 at 11.30 pm, informing him that Geoffrey had beaten the deceased and that the deceased was bleeding heavily. He received another call at 5.00 am informing him that the deceased had died. He knew that the accused and the deceased had differences following the accused’s arrest of the deceased’s son.
8. Pw5 received a call at 2200 hours and heard screams from the deceased’s home. Pw2 went to her home and told her that her father had been attacked. She accompanied Pw2 to their home and found the deceased injured, with cuts to the forehead and back. He was in pain, crying, saying “I am dead’ and “this person has killed me. I have left my children.” He mentioned Geoffrey. At 4.00am, she was told that he had died. She knew that the deceased and the accused had a dispute in August 2023, when it was alleged that Pw3 had stolen a phone. She knew the accused as nyumba kumi. Pw6 was informed of the deceased’s death on 14.9.2023 at 4.00 am by Pw1. The accused did not attend the deceased’s burial. During cross-examination, Pw5 admitted that she did not write in her statement that the deceased mentioned Geoffrey.
9. Pw7 received Pw1 at the police station. Pw1 was with the deceased, who had injuries to his forehead and hand and was unconscious. They rushed the deceased to Cheptais sub-county hospital. He visited the scene at 5.00 am and found a broken torch and a jacket. Pw2 described what had happened and how she saw the accused. They went to the accused’s home and found him. They searched his house. Pw2 had told them the accused had a hammer and an axe. They did not find the two items in the house. In one of the rooms, they found a hole and, inside it, a khaki envelope with blood stains. The blood stains were fresh. He took it as an exhibit and arrested the accused. Later, the DCI Cheptais took over the case. He handed over the envelope, broken torch and jacket to the DCI. The accused is someone he knows well.
10. Pw8 testified that on 29.9.2023, he performed a post-mortem on the deceased, James Chesebe. On external examination, the deceased had a stitched cut wound on the forehead measuring 12 cm by 1 cm. He also had an anterior chest wound, a bruise, and a haematoma in the right hip. On internal examination, he had fractures of the 2nd and 10th ribs on the right side of the chest and a massive haematoma. Both lungs had collapsed. On the digestive system, he had an anterior abdominal haematoma and a large cut wound on the forehead. As a result of the examination, he formed the opinion that the cause of death was respiratory arrest from collapsed lungs due to blunt trauma to the chest. He produced the post-mortem report as Pext No.1.
11. Pw9 testified that he was assigned the case on 14.9.2026, after the deceased's death and the accused's arrest. He recorded the witnesses' statements. Following the investigation, the accused was charged, and a post-mortem was conducted. The items recovered from Pw7 were sent to the government analyst. He rearrested the accused. He produced a cloth, a grey blood-stained jumper, and a torch as exhibits 2 and 3.
12. The accused person gave a sworn statement and called two witnesses. The accused person testified as follows: on 13.9.2023, he was at a funeral gathering for Oscar Kamwanja, his elder brother's son. He is the secretary of the clan. He is also a plumber and, if water disappeared, he would address it. He was also a security guard because his brother had died. He is a revenue clerk at Chepkube Community Water Supply, a member of the Nyumba Kumi, and he settles disputes. On 14.9.23, he left to guard the meat prepared for the guests. The meat was cooked and served to the guests. He was also providing security in the home. He was there with Jentrix, his daughter-in-law. While cooking, Pw2 went and told Pw1 that the father had been beaten. Pw1 asked him to assist with the motorbike. He told her that he did not have fuel. Pw1 left. He stayed to guard the meat and food. They stayed till morning. He took the food and locked it in the store. At 1.00 am, his wife left, and he went home and slept. The next morning he heard screams at his child’s place. They went to the deceased’s home. James had been beaten by people he did not know. Police went to his place at 8.00 am. He allowed them to search his house. They did not find anything. They took what women wear when they are bleeding, saying it was evidence. It was a kiraka. He was asked to accompany them to the police station. At the police station, he was told that he had killed the deceased. He found that impossible, as he had been at the funeral gathering. He was taken to Cheptais and then to the lab in Kisumu.
13. Catherine Chemutai, Dw2, testified as follows; the accused is her husband. On 13.9.2023, there was a funeral gathering for Oscar, their neighbour. She was with her husband. He was serving as security and also cooked. They stayed there until 1.00am. Pw2 told them that their father had been beaten. She was with her husband at the catering place; he did not leave the place. They went home between 12 and 11.00 am. They slept, woke up, and went back to the matanga. They heard screams that Geoffrey had killed a person. She decided to go back home, and the police later went to their home. Juliana Nyakiri Barkacha, Dw3, testified as follows; the deceased is her neighbour. On 13.9.2023, she had been asked to deliver firewood (kuni). The accused was the one organising the cooking. He took the firewood to the accused, and she decided to stay on because she comes from far. They stayed together; there were many people. The accused was there. At about 11.00pm, a child came and called her mother and told her something. The mother returned and told the accused something. The accused did not leave. He declined to go because he had work at the place. The lady returned and asked him to assist with the bike, and he told her it had no lights. The accused did not leave. She left the place at 5.00am. All that time she was with the accused. By the time he left, the incident had happened.
SUBMISSIONS
14. The prosecution submitted that there was sufficient evidence that the accused person was the one who attacked and physically injured the deceased, resulting in the deceased's death. Pw2 witnessed the accused assault the deceased on 13.9.2023. Identification was by recognition, as he knew the accused prior to the date of the murder. There was evidence of a dying declaration from Pw3, and both prosecution and defence witnesses placed the accused within the area where the offence was committed. The accused was even seen at the funeral armed with a panga and a walking stick. The defence tendered by the accused person and his witnesses was marred by significant and material contradictions. The defence witnesses were unreliable and unrealistic. The defence that both Pw2 and Pw3 kept their eyes on the accused throughout is logically impossible.
15. The accused person's submissions were as follows: the prosecution failed to prove its case beyond a reasonable doubt. Regarding whether the accused was identified as the perpetrator, it was submitted that the prosecution has not adduced sufficient evidence to positively identify the accused as the perpetrator. No witness testified to seeing the accused attack or even being at the scene of the crime. The accused was at the matanga. Pw2 could not properly identify the accused, despite alleging she saw him, as it was dark and at night. Pw2 came out with a torch, and it was dark, so it's possible the deceased could not have identified the perpetrator. Reliance was placed on the case of Wamunga vs Republic [1989] KLR 424, where the Court of Appeal warned that evidence of identification under unfavourable conditions must be approached with caution and can only be relied upon if absolutely watertight. It was submitted that Pw2’s evidence could not be considered credible, bearing in mind that it was at night, it was dark, she was using a torch, and at the same time trying to rescue her father. It was also submitted that the prosecution has failed to establish a clear motive and has failed to provide the court with a murder weapon. The witness statements are circumstantial and riddled with evidentiary gaps due to the lack of any concrete evidence linking the accused to the deceased at the crime scene. It was further submitted that the accused had raised a defence that sufficiently rebuts the prosecution case.
ANALYSIS AND DETERMINATION
16. In murder cases, the prosecution has the duty to prove the following three elements to secure a conviction; that the deceased died and cause of death; that the death was caused by an unlawful act of commission or omission by the person accused of the offence; and that the accused had malice aforethought when he committed the act (see Chiragu & Another vs Republic Criminal Appeal 104 of 2018) [2021] KLR.
17. The fact that a death occurred is not in dispute. Pw1 told the court that her husband died at 4 am the same night. Doctor Elly Pw8 conducted a post-mortem on the deceased and stated the cause of death.
18. Regarding the cause of death, Pw8 stated that it was respiratory arrest resulting from collapsed lungs due to blunt trauma to the chest. The deceased also had injuries to the forehead, chest, and hip.
19. On whether the deceased’s death was caused by an unlawful act by the accused. The only evidence linking the accused to the deceased’s death is the evidence of Pw2 and Pw1. Pw2 testified that when she heard her father call her to open, she went out and found the accused with her father. She shone light from her phone and saw the accused hit the deceased, who then fell. Identification is vital, as the incident occurred at night. Pw1 and Pw2 stated that they knew the accused, who is a relative. The incident happened at night. After Pw2 saw the accused hit the deceased on the forehead, she left, then returned with her mother. From the events as narrated, the accused left the place. I have considered this evidence alongside the cause of death of the deceased. Pw8 stated that the cause of death was respiratory arrest from collapsed lungs due to trauma to the chest. Pw2’s evidence is that the deceased was hit on the forehead, and then he fell down. The issue that bothers me is when did the deceased sustained the other injuries on the chest, the bruises which the doctor talked about. Did Pw2 really see the person who hit the deceased? Was it really the accused person? The evidence adduced by Pw2 that the deceased was hit on the forehead and the cause of death are at variance. It was not the evidence of Pw8 that the deceased died as a result of the injury on the forehead. The injuries the deceased sustained were several and not just one; the cause of death was not the injury on the forehead, but injuries to the chest.
20. The prosecution also relied on the deceased’s last words. In Kihara V. Republic [1986] KLR 473 the court held that -
“1. Even though there is no rule that a dying declaration must be corroborated, a court needs to caution itself that in order to obtain a conviction upon a dying declaration, it must be satisfactorily corroborated and particular caution must be exercised as to when the attack took place, the identification of the assailant and the weapon used.”
21. Pw1, Pw2 and Pw3 stated that they heard the deceased say that Geoffrey had killed me. I note that this family had a dispute with the accused a month before this incident, and, according to Pw1, she also saw the accused and the deceased disagree that same night. The only independent witness to the dying declaration was Pw5. She stated that when she arrived at Pw1’s home, she heard the deceased say that this person had killed me and that I had left children. She admitted during cross-examination that she never heard the deceased mention Geoffrey while she was there. Her evidence would have helped me dispel the doubt I have about whether the deceased named the accused as the perpetrator. In addition, Pw7 spoke of items found at the place where the deceased was and at the accused’s house. The whereabouts of these items, including an envelope said to have blood stains, were not brought to court. Further, the Investigation Officer's evidence was that, if he had known that the family had a grudge, he would not have charged the accused. I therefore find that the evidence adduced by the prosecution is insufficient, taken as a whole, to establish that the accused was the perpetrator. The accused raised a plausible defence based on the events as narrated.
22. With the above finding, I need not make a finding on malice aforethought.
23. On the basis of the above analysis, the prosecution has failed to prove its case against the accused beyond a reasonable doubt. I give him the benefit of the doubt. I find Geoffrey Kirui Kimorong not guilty and acquit him of the offence of murder. He is free to go unless lawfully detained.
Dated, signed and delivered virtually this 8 th Day of May 2026.
R.E.OUGO
JUDGE
In the presence of:
Geoffrey Kirui Kimorong/Accused
Miss Matere -For State
Mr. Muyala – For the Accused
Wilkister – C/A
HCCRC NO.E039 OF 2023- JUDGMENT 2
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL CASE NO. E039 OF 2023 ( MURDER)
REPUBLIC …………………….………………………PROSECUTOR
VERSUS
GEOFFREY KIRUI KIMRONG………..……….….……ACCUSED
JUDGMENT
1. Geoffrey Kirui Kimrong, the accused, is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that, on the night of 13th September 2023, at Kamunguk village in Chepkube Location, Cheptais Sub-County within Bungoma County, the accused murdered James Chsebe Kisach.
2. The accused denied the offence. The prosecution called nine (9) witnesses to prove their case.
PROSECUTION CASE
3. Pw1, Jantrix Nakumicha Kisach, is the deceased’s wife. Pw2, Marion Chepkwemoi, is the deceased’s daughter. Pw3, Dan Kemboi, is the deceased’s son. Pw4, Laban Chemiat, is a clan elder and an uncle of the deceased. Pw5, Gladys Nabonya, is a village elder. Pw6, Noleak Kiso, is a relative of Pw1. Pw7, No. 53234 Sgt. Maurice Mulwa, was the arresting officer. Pw8, Doctor Elly Kosgei, performed the post-mortem on the deceased. Pw9, No. 252733 P.C Simon Powon, was the investigator who took over from Pw7.
PROSECUTION CASE
4. On 13 September 2023, Pw1 and Pw2 were at a funeral gathering (matanga) in their area. Pw2 left the matanga and went home. On reaching home, she entered the house. She then heard her father, the deceased, asking her to open the door. Her father went to the kitchen door. She heard her father being asked, “Huyo ni bibi yako?” She opened the door. She had her mother’s phone. She switched on its torch and shone its light on the accused. The accused hit her father, and he fell. Her father was struck on the forehead with a hammer. She ran away shouting towards her uncle’s place, where she was advised to call her mother. Pw1 was still at the matanga. She called her brother, Pw3. Pw2 left her father with Abel and Pw3 as she went to look for her mother. By then, Geoffrey had left. She heard her father say that Geoffrey had killed him.
5. Pw1 arrived at their home that same night and found her husband injured. Before they reached home, Pw2 told her that Geoffrey, the Nyumba Kumi representative, had cut her father. She had seen Geoffrey at the matanga. Pw1 called Geoffrey and told him what Pw2 had told her, but he took no action. Pw1 saw Geoffrey with a panga, a short fimbo and a Somali sword. Whilst attending to her injured husband, she told him that Geoffrey had injured him. Her husband was injured on the forehead, leg, ankle joint, back, shoulder and the front part of his hip. They placed him on a motor bike and took him to Chepkube police station. They were received at the police station by Pw7. Pw1 testified that the deceased kept saying that Geoffrey had killed him and that he had small children. Her husband, the deceased, died at 4.15 am.
6. Pw3 went home after being called by Pw2. He found his father injured. When asked what had happened, his father told him that Geoffrey had beaten him and killed him, and that he was leaving his children behind.
7. Pw4 received a call from his cousin on 13.9.2023 at 11.30 pm, informing him that Geoffrey had beaten the deceased and that the deceased was bleeding heavily. He received another call at 5.00 am informing him that the deceased had died. He knew that the accused and the deceased had differences following the accused’s arrest of the deceased’s son.
8. Pw5 received a call at 2200 hours and heard screams from the deceased’s home. Pw2 went to her home and told her that her father had been attacked. She accompanied Pw2 to their home and found the deceased injured, with cuts to the forehead and back. He was in pain, crying, saying “I am dead’ and “this person has killed me. I have left my children.” He mentioned Geoffrey. At 4.00am, she was told that he had died. She knew that the deceased and the accused had a dispute in August 2023, when it was alleged that Pw3 had stolen a phone. She knew the accused as nyumba kumi. Pw6 was informed of the deceased’s death on 14.9.2023 at 4.00 am by Pw1. The accused did not attend the deceased’s burial. During cross-examination, Pw5 admitted that she did not write in her statement that the deceased mentioned Geoffrey.
9. Pw7 received Pw1 at the police station. Pw1 was with the deceased, who had injuries to his forehead and hand and was unconscious. They rushed the deceased to Cheptais sub-county hospital. He visited the scene at 5.00 am and found a broken torch and a jacket. Pw2 described what had happened and how she saw the accused. They went to the accused’s home and found him. They searched his house. Pw2 had told them the accused had a hammer and an axe. They did not find the two items in the house. In one of the rooms, they found a hole and, inside it, a khaki envelope with blood stains. The blood stains were fresh. He took it as an exhibit and arrested the accused. Later, the DCI Cheptais took over the case. He handed over the envelope, broken torch and jacket to the DCI. The accused is someone he knows well.
10. Pw8 testified that on 29.9.2023, he performed a post-mortem on the deceased, James Chesebe. On external examination, the deceased had a stitched cut wound on the forehead measuring 12 cm by 1 cm. He also had an anterior chest wound, a bruise, and a haematoma in the right hip. On internal examination, he had fractures of the 2nd and 10th ribs on the right side of the chest and a massive haematoma. Both lungs had collapsed. On the digestive system, he had an anterior abdominal haematoma and a large cut wound on the forehead. As a result of the examination, he formed the opinion that the cause of death was respiratory arrest from collapsed lungs due to blunt trauma to the chest. He produced the post-mortem report as Pext No.1.
11. Pw9 testified that he was assigned the case on 14.9.2026, after the deceased's death and the accused's arrest. He recorded the witnesses' statements. Following the investigation, the accused was charged, and a post-mortem was conducted. The items recovered from Pw7 were sent to the government analyst. He rearrested the accused. He produced a cloth, a grey blood-stained jumper, and a torch as exhibits 2 and 3.
12. The accused person gave a sworn statement and called two witnesses. The accused person testified as follows: on 13.9.2023, he was at a funeral gathering for Oscar Kamwanja, his elder brother's son. He is the secretary of the clan. He is also a plumber and, if water disappeared, he would address it. He was also a security guard because his brother had died. He is a revenue clerk at Chepkube Community Water Supply, a member of the Nyumba Kumi, and he settles disputes. On 14.9.23, he left to guard the meat prepared for the guests. The meat was cooked and served to the guests. He was also providing security in the home. He was there with Jentrix, his daughter-in-law. While cooking, Pw2 went and told Pw1 that the father had been beaten. Pw1 asked him to assist with the motorbike. He told her that he did not have fuel. Pw1 left. He stayed to guard the meat and food. They stayed till morning. He took the food and locked it in the store. At 1.00 am, his wife left, and he went home and slept. The next morning he heard screams at his child’s place. They went to the deceased’s home. James had been beaten by people he did not know. Police went to his place at 8.00 am. He allowed them to search his house. They did not find anything. They took what women wear when they are bleeding, saying it was evidence. It was a kiraka. He was asked to accompany them to the police station. At the police station, he was told that he had killed the deceased. He found that impossible, as he had been at the funeral gathering. He was taken to Cheptais and then to the lab in Kisumu.
13. Catherine Chemutai, Dw2, testified as follows; the accused is her husband. On 13.9.2023, there was a funeral gathering for Oscar, their neighbour. She was with her husband. He was serving as security and also cooked. They stayed there until 1.00am. Pw2 told them that their father had been beaten. She was with her husband at the catering place; he did not leave the place. They went home between 12 and 11.00 am. They slept, woke up, and went back to the matanga. They heard screams that Geoffrey had killed a person. She decided to go back home, and the police later went to their home. Juliana Nyakiri Barkacha, Dw3, testified as follows; the deceased is her neighbour. On 13.9.2023, she had been asked to deliver firewood (kuni). The accused was the one organising the cooking. He took the firewood to the accused, and she decided to stay on because she comes from far. They stayed together; there were many people. The accused was there. At about 11.00pm, a child came and called her mother and told her something. The mother returned and told the accused something. The accused did not leave. He declined to go because he had work at the place. The lady returned and asked him to assist with the bike, and he told her it had no lights. The accused did not leave. She left the place at 5.00am. All that time she was with the accused. By the time he left, the incident had happened.
SUBMISSIONS
14. The prosecution submitted that there was sufficient evidence that the accused person was the one who attacked and physically injured the deceased, resulting in the deceased's death. Pw2 witnessed the accused assault the deceased on 13.9.2023. Identification was by recognition, as he knew the accused prior to the date of the murder. There was evidence of a dying declaration from Pw3, and both prosecution and defence witnesses placed the accused within the area where the offence was committed. The accused was even seen at the funeral armed with a panga and a walking stick. The defence tendered by the accused person and his witnesses was marred by significant and material contradictions. The defence witnesses were unreliable and unrealistic. The defence that both Pw2 and Pw3 kept their eyes on the accused throughout is logically impossible.
15. The accused person's submissions were as follows: the prosecution failed to prove its case beyond a reasonable doubt. Regarding whether the accused was identified as the perpetrator, it was submitted that the prosecution has not adduced sufficient evidence to positively identify the accused as the perpetrator. No witness testified to seeing the accused attack or even being at the scene of the crime. The accused was at the matanga. Pw2 could not properly identify the accused, despite alleging she saw him, as it was dark and at night. Pw2 came out with a torch, and it was dark, so it's possible the deceased could not have identified the perpetrator. Reliance was placed on the case of Wamunga vs Republic [1989] KLR 424, where the Court of Appeal warned that evidence of identification under unfavourable conditions must be approached with caution and can only be relied upon if absolutely watertight. It was submitted that Pw2’s evidence could not be considered credible, bearing in mind that it was at night, it was dark, she was using a torch, and at the same time trying to rescue her father. It was also submitted that the prosecution has failed to establish a clear motive and has failed to provide the court with a murder weapon. The witness statements are circumstantial and riddled with evidentiary gaps due to the lack of any concrete evidence linking the accused to the deceased at the crime scene. It was further submitted that the accused had raised a defence that sufficiently rebuts the prosecution case.
ANALYSIS AND DETERMINATION
16. In murder cases, the prosecution has the duty to prove the following three elements to secure a conviction; that the deceased died and cause of death; that the death was caused by an unlawful act of commission or omission by the person accused of the offence; and that the accused had malice aforethought when he committed the act (see Chiragu & Another vs Republic Criminal Appeal 104 of 2018) [2021] KLR.
17. The fact that a death occurred is not in dispute. Pw1 told the court that her husband died at 4 am the same night. Doctor Elly Pw8 conducted a post-mortem on the deceased and stated the cause of death.
18. Regarding the cause of death, Pw8 stated that it was respiratory arrest resulting from collapsed lungs due to blunt trauma to the chest. The deceased also had injuries to the forehead, chest, and hip.
19. On whether the deceased’s death was caused by an unlawful act by the accused. The only evidence linking the accused to the deceased’s death is the evidence of Pw2 and Pw1. Pw2 testified that when she heard her father call her to open, she went out and found the accused with her father. She shone light from her phone and saw the accused hit the deceased, who then fell. Identification is vital, as the incident occurred at night. Pw1 and Pw2 stated that they knew the accused, who is a relative. The incident happened at night. After Pw2 saw the accused hit the deceased on the forehead, she left, then returned with her mother. From the events as narrated, the accused left the place. I have considered this evidence alongside the cause of death of the deceased. Pw8 stated that the cause of death was respiratory arrest from collapsed lungs due to trauma to the chest. Pw2’s evidence is that the deceased was hit on the forehead, and then he fell down. The issue that bothers me is when did the deceased sustained the other injuries on the chest, the bruises which the doctor talked about. Did Pw2 really see the person who hit the deceased? Was it really the accused person? The evidence adduced by Pw2 that the deceased was hit on the forehead and the cause of death are at variance. It was not the evidence of Pw8 that the deceased died as a result of the injury on the forehead. The injuries the deceased sustained were several and not just one; the cause of death was not the injury on the forehead, but injuries to the chest.
20. The prosecution also relied on the deceased’s last words. In Kihara V. Republic [1986] KLR 473 the court held that -
“1. Even though there is no rule that a dying declaration must be corroborated, a court needs to caution itself that in order to obtain a conviction upon a dying declaration, it must be satisfactorily corroborated and particular caution must be exercised as to when the attack took place, the identification of the assailant and the weapon used.”
21. Pw1, Pw2 and Pw3 stated that they heard the deceased say that Geoffrey had killed me. I note that this family had a dispute with the accused a month before this incident, and, according to Pw1, she also saw the accused and the deceased disagree that same night. The only independent witness to the dying declaration was Pw5. She stated that when she arrived at Pw1’s home, she heard the deceased say that this person had killed me and that I had left children. She admitted during cross-examination that she never heard the deceased mention Geoffrey while she was there. Her evidence would have helped me dispel the doubt I have about whether the deceased named the accused as the perpetrator. In addition, Pw7 spoke of items found at the place where the deceased was and at the accused’s house. The whereabouts of these items, including an envelope said to have blood stains, were not brought to court. Further, the Investigation Officer's evidence was that, if he had known that the family had a grudge, he would not have charged the accused. I therefore find that the evidence adduced by the prosecution is insufficient, taken as a whole, to establish that the accused was the perpetrator. The accused raised a plausible defence based on the events as narrated.
22. With the above finding, I need not make a finding on malice aforethought.
23. On the basis of the above analysis, the prosecution has failed to prove its case against the accused beyond a reasonable doubt. I give him the benefit of the doubt. I find Geoffrey Kirui Kimorong not guilty and acquit him of the offence of murder. He is free to go unless lawfully detained.
Dated, signed and delivered virtually this 8 th Day of May 2026.
R.E.OUGO
JUDGE
In the presence of:
Geoffrey Kirui Kimorong/Accused
Miss Matere -For State
Mr. Muyala – For the Accused
Wilkister – C/A
HCCRC NO.E039 OF 2023- JUDGMENT 2