1. Harun Mwombe Makokha, 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 17th and 18th February 2022 at Musembe Village, Ndalu Location in Bungoma North Sub-County within Bungoma County, he murdered Peter Simiyu.
2. The accused denied the charge. The prosecution called nine (9) witnesses to prove its case. The accused, when placed on his defence, gave a sworn statement and did not call any witness.
PROSECUTION CASE
3. Victor Mayama Wamalwa (Pw1) testified that he lives in Muliro Sub-location, Ndalu Location, and is a farmer. The deceased, Peter Simiyu, was employed by their family to look after cattle. According to him, Peter was employed in January 2022. In February 2022, Peter sought permission to attend a burial and, upon returning, brought the accused. Peter informed him that the accused would stay briefly while looking for employment. Pw1 later learnt that the accused was Harun Mwombe Makokha.
4. Pw1 testified that on 17th February 2022 he gave Peter and the accused work loading trees onto a tractor and paid both of them for the day. They assisted in offloading the trees at about 6.00 p.m. and thereafter went to the house where Peter was sleeping, while Pw1 went to his own house. On the morning of 18th February 2022, between about 6.30 a.m. and 7.00 a.m., he did not find Peter at the dairy as usual. He went to the house where Peter slept, found the door locked from the outside with a padlock, opened it, and found Peter on the bed, covered with a blanket. He removed the blanket and saw blood on Peter's head and on the wall. He called his brother, and later the chief and the police came. He also testified that the accused was not there and that some of Peter's items, including a solar panel, torch, bag and plastic shoes, were missing. During cross-examination, he stated that he did not see the accused kill the deceased.
5. Christine Majuma (Pw2), the accused's sister, testified that on the material morning the accused called her to say he had left work and was going home. He arrived at her place at about 9.00 a.m. She stated that the accused appeared happy and said he had reached where he wanted. After receiving a call from their mother that Peter had died, she asked the accused questions. She also stated that the accused had left a bag at her place. The police later collected the bag and the items found therein, including solar panels, a torch and clothes, which she stated belonged to Peter. During cross-examination, she stated that she did not see the accused kill the deceased.
6. Berita Nafula Makokha (Pw3), a sister of the accused, testified that on 18th February 2022 at about 6.00 a.m. she saw the accused pass by on a motorbike. She further testified that he had a bag with red thread on the sides, which she said was Peter's bag. She heard him say that he had reached his home and that people would know who he was. He asked for the house keys, entered, and then left again. She later learnt that Peter had died. She also testified that the police later came and collected items, including the bag. During cross-examination, she confirmed that she did not see the accused kill Peter.
7. Ibrahim Wamalwa Khayemba (Pw4) testified that he attended the post-mortem and identified the deceased's body. He stated that he observed blood from the deceased's ears, nose and mouth.
8. Milka Masika Wamalwa (Pw5) testified that Peter was their worker. She received a call on 18th February 2022 informing her that the herdsman had died. She went home and found Peter dead. She further testified that Peter had head injuries and that his teeth were missing. She identified in court a rungu, a whip, solar panels and a torch as items used or supplied at her home. She also testified that Peter and the accused had stayed together in the same house for about a week. She did not witness the killing.
9. Yonah Muyemba Wamalwa (Pw6) testified that he had assisted Milka in securing Peter as a worker. On 18th February 2022, Victor called him to inform him that Peter had died. He went to the home and found Peter lying dead on the bed. He saw blood on the head. He identified the house in the photographs shown to him as Milka's home, where Peter had been staying.
10. Doctor Dennis Nanyungi (Pw7), a senior medical officer, testified that he conducted the post-mortem examination of the body of Peter Simiyu on 25th February 2022 at Kiminini Cottage Hospital. The body was identified by Nahashon Kwara and Aggrey Masinde. On external examination, the head was deformed, with bruises on the face, neck and right shoulder, and dried blood from the right ear. Internally, there were clots between the skull and the brain, a hematoma in the right temporal, mandibular and maxillary areas, and multiple fractures involving the right mandible, maxilla and temporal bones. He opined that the cause of death was a head injury secondary to assault by a blunt object. He produced the post-mortem report as an exhibit.
11. No. 70715 Sergeant Joseph Gatimu (Pw8), the investigating officer, testified that on 18th February 2022 he received a report of a murder at Musembe Village, Ndalu. He went to the scene and found the body of Peter Simiyu lying on the bed with head injuries. He further testified that beside the body was a wooden club or rungu, which he suspected had been used to kill the deceased. He took the blanket and mattress cover, which had blood stains. He also testified that he later recovered a black bag, solar panels, a torch, plastic shoes, a belt, clothes, documents and other items. He forwarded the exhibits, together with blood samples from the deceased and the accused, to the Government Chemist for DNA analysis. He produced several exhibits, including the wooden club, solar panels, torch, mattress cover, blue jeans, grey shirt, white vest, plastic shoes, bag, identity card and the accused's written consent for taking his blood sample.
12. During cross-examination, Pw8 stated that he went to the scene on the same day. He confirmed that he did not record statements from neighbours. He also stated that some items were recovered from the sister's house and that the accused was brought to the police by his sister and brother-in-law. He denied planting the accused's identity card or any exhibit on the accused.
13. Polycarp Lutta Kweyu (Pw9), an assistant Government Chemist, testified that he received several exhibits from Sergeant Joseph Gatimu. The items included a mattress cover, a blanket, a grey shirt, blue jeans, a white vest, blue plastic shoes, a wooden club, and blood samples from the deceased and the accused. His findings were that the mattress cover, blanket, plastic shoes, and wooden club were heavily stained with human blood, while the grey shirt and blue jeans were moderately stained with human blood. The stains on the white vest tested negative for blood and yielded a partial, inconclusive DNA profile. He concluded that the DNA profiles generated from the mattress cover, blanket, shoes, shirt, jeans, and wooden club matched the DNA profile generated from the blood sample of Peter Simiyu, the deceased. The DNA profile generated from the blood sample of the accused did not match any of the profiles generated. He produced his report as an exhibit.
DEFENCE CASE
14. The accused gave a sworn statement. He testified that he did not kill Peter Simiyu. He knew Peter, who, according to him, was the son of his brother and whom he called father or uncle. He stated that Peter had taken him to Ndalu when he was looking for work. He stated that the employer told him she wanted a worker with a wife and that he was asked to go back home and wait to be called.
15. The accused testified that he left the place on 17th February 2022 at about 5.00 p.m. and went to his home in Webuye. He later went to his sister Christine's place. He stated that Christine called Peter, and when Peter could not be reached, his brother-in-law took him to the place where Peter worked. On reaching the boma, they found no one. A neighbour informed them that the worker had been found dead and that people had gone to Ndalu Police Station. They went to Ndalu Police Station, where he was later detained.
16. He denied that the bag and the items produced in court were recovered from him or from his house. He stated that only the identity card and the phone belonged to him. He also denied signing the consent form for the blood sample. In cross-examination, he stated that he had no witness to prove he was at home on 17th February 2022. He also admitted that he knew the deceased and had once slept at the house where Peter stayed. He maintained that he did not know who killed the deceased.
SUBMISSIONS
17. The prosecution submitted that the deceased’s death had been proved and that sufficient evidence had been adduced to show that the accused had caused the unlawful death of the deceased. Reliance was placed on the evidence of Pw1, Pw2, Pw3, the investigation officer’s evidence, and the exhibits recovered soon after the incident. It was further submitted that the defence raised by the accused did not shake the overwhelming evidence against him. Reliance was also placed on the doctrine of recent possession and the holding in the case of Erick Otieno Arum vs Republic Criminal Appeal 85 of 2025 [2006] eKLR, where the court stated that, before a court of law can rely on the doctrine of recent possession as a basis for criminal conviction, the possession must be positively proved.
18. The defence filed written submissions. It was submitted that although the deceased’s death was not disputed, there was no direct evidence linking the accused to the unlawful act causing it. Counsel argued that no witness saw the accused assault the deceased and that the prosecution case was based on suspicion arising from the fact that the accused had gone to the place of work with the deceased, had left shortly thereafter, and was allegedly found with items said to belong to the deceased.
19. It was further submitted that the prosecution relied on circumstantial evidence that did not meet the legal threshold. Counsel submitted that circumstantial evidence must be incompatible with the accused's innocence, incapable of explanation by any other reasonable hypothesis than guilt, and must form an unbroken chain pointing to the accused. The defence also submitted that the forensic evidence did not place the accused at the scene, as the accused's DNA profile did not match any of the DNA profiles generated from the exhibits. It was also contended that there were procedural irregularities in the preparation of the exhibit memo and in the taking of samples. Counsel urged the court to acquit the accused.
ANALYSIS AND DETERMINATION
20. In a case of murder, the prosecution has the duty of proving the following ingredients beyond reasonable doubt; the fact and cause of the deceased's death, that the death was caused by an unlawful act or omission on the part of the accused, and that the accused acted with malice aforethought as defined under section 206 of the Penal Code.
21. The fact of death is not in dispute. Pw1, Pw4, Pw5 and Pw6 saw the deceased's body. Pw7 performed the post-mortem on the body of Peter Simiyu. His evidence was that the deceased had head injuries, bruises on the face, neck and shoulder, dried blood from the right ear, clots between the skull and the brain, and multiple fractures involving the right mandible, maxilla and temporal bones. He opined that the cause of death was a head injury secondary to assault by a blunt object. I find that the death and its cause were proved.
22. The next issue is whether the accused caused the deceased's unlawful death. There was no eyewitness to the accused's assault on the deceased. The prosecution's case is therefore based on circumstantial evidence. In Musili v Republic, Criminal Appeal No. 30 of 2013, the Court of Appeal stated that for circumstantial evidence to sustain a conviction, the chain of events must be so complete that it establishes the guilt of the accused and no one else. The circumstances from which the inference of guilt is drawn must also be firmly established and of a definite tendency unerringly pointing towards the accused.
23. The evidence on record shows that the accused came to the home where the deceased was working. Pw1 testified that the accused and the deceased worked together on 17th February 2022 and that after work they went to the house where the deceased slept. Pw5 testified that the deceased and the accused stayed together in the same house. The next morning, the deceased was found dead in that house. The door was locked from the outside, and the accused was not there.
24. There is also evidence that, on the same morning, the accused went to his relatives' home. Pw3 saw him with a bag, which she said belonged to Peter. Pw2 testified that the accused went to her place and that the police later collected the bag and the items found therein. The items included clothes, solar panels and a torch. The investigating officer gave evidence on the recovery of the exhibits and their forwarding to the Government Chemist. The items included the wooden club recovered from the scene, the mattress cover, blanket, grey shirt, blue jeans trousers and plastic shoes.
25. Pw9 testified that the mattress cover, blanket, plastic shoes and wooden club were heavily stained with human blood, while the grey shirt and blue jeans were moderately stained with human blood. The DNA profiles generated from those exhibits matched the DNA profile from the deceased's blood sample. This evidence places the deceased's blood on the wooden club, bedding and clothes recovered during the investigation.
26. The defence submitted that the accused's DNA was not found on any of the exhibits. That argument does not, in my view, address the prosecution case. The relevant evidence was not that the accused's blood was on the exhibits. The prosecution case was that the deceased's blood was found on the items recovered, including the wooden club, the clothes linked to the accused, and the bag recovered after the accused had left the place where the deceased had been killed. The failure to find the accused's DNA on those items does not displace the evidence that the deceased's blood was found on them.
27. The accused denied that the items were recovered from him or from his house. He also alleged that the case was planted on him. I have considered that defence. The accused did not call any witness to support his assertion that he left the deceased's house on 17th February 2022 and went home. He also failed to explain sufficiently why he left the place where he had gone with the deceased and why he was seen with a bag said to belong to the deceased early the following morning. His explanation does not displace the evidence of Pw1, Pw2, Pw3, Pw8 and Pw9. Further, his defence that there were bad relations with his sisters was not persuasive. I saw the witnesses and believe they were truthful.
28. The defence also raised issues regarding the exhibit memo and the procedure for taking samples. The evidence of the investigating officer and the Government Chemist was that the exhibits were received, analysed, and the report prepared. Pw9 explained the condition of the exhibits and gave the results of his analysis. No evidence was placed before this court to show that the exhibits were contaminated or that the DNA results were unreliable. In my view, the complaints raised do not break the chain of evidence.
29. The chain of circumstances established by the prosecution is that the accused went with the deceased to the place where the deceased worked, stayed with him in the same house, was with him shortly before he was found dead, left the place before the body was discovered, was seen with a bag identified as the deceased's, and that items recovered during the investigations contained the deceased's blood. Taken together, these circumstances point to the accused as the person who caused the injuries that led to the deceased's death. I find no other co-existing circumstances that weaken or destroy that inference.
30. I therefore find that the prosecution has proved that the deceased's death was caused by an unlawful act of the accused.
31. Under section 206 of the Penal Code, malice aforethought is deemed established by evidence showing, among other things, an intention to cause death or grievous harm to any person, whether or not that person is the one actually killed, or knowledge that the act or omission causing death will probably cause death or grievous harm. In Rex v Tubere s/o Ochen [1945] 12 EACA 63, the court held that, in determining malice aforethought, the court considers the weapon used, the manner of its use, and the part of the body injured.
32. The deceased sustained severe injuries. The deceased had a deformed head, bruises on the face, neck and shoulder, dried blood from the right ear, clots between the skull and the brain, and multiple fractures of the head. The cause of death was a head injury secondary to assault with a blunt object. The head is a vulnerable part of the body. The nature of the injuries and the force used indicate an intention to cause grievous harm, if not death. I find that malice aforethought was proved.
33. In conclusion, I find that the prosecution has proved its case beyond reasonable doubt. I find the accused person, Harun Mwombe Makokha, guilty of the offence of murder and convict him accordingly.
Dated, signed and delivered virtually on this 15th Day of July 2026.
R. E. OUGO
JUDGE
In the presence of:
Harun Mwombe Makokha/ Accused
Miss Matere - For the State
Miss Natwati for Accused- Absent
Wilkister/Minah - C/A
2. The accused denied the charge. The prosecution called nine (9) witnesses to prove its case. The accused, when placed on his defence, gave a sworn statement and did not call any witness.
PROSECUTION CASE
3. Victor Mayama Wamalwa (Pw1) testified that he lives in Muliro Sub-location, Ndalu Location, and is a farmer. The deceased, Peter Simiyu, was employed by their family to look after cattle. According to him, Peter was employed in January 2022. In February 2022, Peter sought permission to attend a burial and, upon returning, brought the accused. Peter informed him that the accused would stay briefly while looking for employment. Pw1 later learnt that the accused was Harun Mwombe Makokha.
4. Pw1 testified that on 17th February 2022 he gave Peter and the accused work loading trees onto a tractor and paid both of them for the day. They assisted in offloading the trees at about 6.00 p.m. and thereafter went to the house where Peter was sleeping, while Pw1 went to his own house. On the morning of 18th February 2022, between about 6.30 a.m. and 7.00 a.m., he did not find Peter at the dairy as usual. He went to the house where Peter slept, found the door locked from the outside with a padlock, opened it, and found Peter on the bed, covered with a blanket. He removed the blanket and saw blood on Peter's head and on the wall. He called his brother, and later the chief and the police came. He also testified that the accused was not there and that some of Peter's items, including a solar panel, torch, bag and plastic shoes, were missing. During cross-examination, he stated that he did not see the accused kill the deceased.
5. Christine Majuma (Pw2), the accused's sister, testified that on the material morning the accused called her to say he had left work and was going home. He arrived at her place at about 9.00 a.m. She stated that the accused appeared happy and said he had reached where he wanted. After receiving a call from their mother that Peter had died, she asked the accused questions. She also stated that the accused had left a bag at her place. The police later collected the bag and the items found therein, including solar panels, a torch and clothes, which she stated belonged to Peter. During cross-examination, she stated that she did not see the accused kill the deceased.
6. Berita Nafula Makokha (Pw3), a sister of the accused, testified that on 18th February 2022 at about 6.00 a.m. she saw the accused pass by on a motorbike. She further testified that he had a bag with red thread on the sides, which she said was Peter's bag. She heard him say that he had reached his home and that people would know who he was. He asked for the house keys, entered, and then left again. She later learnt that Peter had died. She also testified that the police later came and collected items, including the bag. During cross-examination, she confirmed that she did not see the accused kill Peter.
7. Ibrahim Wamalwa Khayemba (Pw4) testified that he attended the post-mortem and identified the deceased's body. He stated that he observed blood from the deceased's ears, nose and mouth.
8. Milka Masika Wamalwa (Pw5) testified that Peter was their worker. She received a call on 18th February 2022 informing her that the herdsman had died. She went home and found Peter dead. She further testified that Peter had head injuries and that his teeth were missing. She identified in court a rungu, a whip, solar panels and a torch as items used or supplied at her home. She also testified that Peter and the accused had stayed together in the same house for about a week. She did not witness the killing.
9. Yonah Muyemba Wamalwa (Pw6) testified that he had assisted Milka in securing Peter as a worker. On 18th February 2022, Victor called him to inform him that Peter had died. He went to the home and found Peter lying dead on the bed. He saw blood on the head. He identified the house in the photographs shown to him as Milka's home, where Peter had been staying.
10. Doctor Dennis Nanyungi (Pw7), a senior medical officer, testified that he conducted the post-mortem examination of the body of Peter Simiyu on 25th February 2022 at Kiminini Cottage Hospital. The body was identified by Nahashon Kwara and Aggrey Masinde. On external examination, the head was deformed, with bruises on the face, neck and right shoulder, and dried blood from the right ear. Internally, there were clots between the skull and the brain, a hematoma in the right temporal, mandibular and maxillary areas, and multiple fractures involving the right mandible, maxilla and temporal bones. He opined that the cause of death was a head injury secondary to assault by a blunt object. He produced the post-mortem report as an exhibit.
11. No. 70715 Sergeant Joseph Gatimu (Pw8), the investigating officer, testified that on 18th February 2022 he received a report of a murder at Musembe Village, Ndalu. He went to the scene and found the body of Peter Simiyu lying on the bed with head injuries. He further testified that beside the body was a wooden club or rungu, which he suspected had been used to kill the deceased. He took the blanket and mattress cover, which had blood stains. He also testified that he later recovered a black bag, solar panels, a torch, plastic shoes, a belt, clothes, documents and other items. He forwarded the exhibits, together with blood samples from the deceased and the accused, to the Government Chemist for DNA analysis. He produced several exhibits, including the wooden club, solar panels, torch, mattress cover, blue jeans, grey shirt, white vest, plastic shoes, bag, identity card and the accused's written consent for taking his blood sample.
12. During cross-examination, Pw8 stated that he went to the scene on the same day. He confirmed that he did not record statements from neighbours. He also stated that some items were recovered from the sister's house and that the accused was brought to the police by his sister and brother-in-law. He denied planting the accused's identity card or any exhibit on the accused.
13. Polycarp Lutta Kweyu (Pw9), an assistant Government Chemist, testified that he received several exhibits from Sergeant Joseph Gatimu. The items included a mattress cover, a blanket, a grey shirt, blue jeans, a white vest, blue plastic shoes, a wooden club, and blood samples from the deceased and the accused. His findings were that the mattress cover, blanket, plastic shoes, and wooden club were heavily stained with human blood, while the grey shirt and blue jeans were moderately stained with human blood. The stains on the white vest tested negative for blood and yielded a partial, inconclusive DNA profile. He concluded that the DNA profiles generated from the mattress cover, blanket, shoes, shirt, jeans, and wooden club matched the DNA profile generated from the blood sample of Peter Simiyu, the deceased. The DNA profile generated from the blood sample of the accused did not match any of the profiles generated. He produced his report as an exhibit.
DEFENCE CASE
14. The accused gave a sworn statement. He testified that he did not kill Peter Simiyu. He knew Peter, who, according to him, was the son of his brother and whom he called father or uncle. He stated that Peter had taken him to Ndalu when he was looking for work. He stated that the employer told him she wanted a worker with a wife and that he was asked to go back home and wait to be called.
15. The accused testified that he left the place on 17th February 2022 at about 5.00 p.m. and went to his home in Webuye. He later went to his sister Christine's place. He stated that Christine called Peter, and when Peter could not be reached, his brother-in-law took him to the place where Peter worked. On reaching the boma, they found no one. A neighbour informed them that the worker had been found dead and that people had gone to Ndalu Police Station. They went to Ndalu Police Station, where he was later detained.
16. He denied that the bag and the items produced in court were recovered from him or from his house. He stated that only the identity card and the phone belonged to him. He also denied signing the consent form for the blood sample. In cross-examination, he stated that he had no witness to prove he was at home on 17th February 2022. He also admitted that he knew the deceased and had once slept at the house where Peter stayed. He maintained that he did not know who killed the deceased.
SUBMISSIONS
17. The prosecution submitted that the deceased’s death had been proved and that sufficient evidence had been adduced to show that the accused had caused the unlawful death of the deceased. Reliance was placed on the evidence of Pw1, Pw2, Pw3, the investigation officer’s evidence, and the exhibits recovered soon after the incident. It was further submitted that the defence raised by the accused did not shake the overwhelming evidence against him. Reliance was also placed on the doctrine of recent possession and the holding in the case of Erick Otieno Arum vs Republic Criminal Appeal 85 of 2025 [2006] eKLR, where the court stated that, before a court of law can rely on the doctrine of recent possession as a basis for criminal conviction, the possession must be positively proved.
18. The defence filed written submissions. It was submitted that although the deceased’s death was not disputed, there was no direct evidence linking the accused to the unlawful act causing it. Counsel argued that no witness saw the accused assault the deceased and that the prosecution case was based on suspicion arising from the fact that the accused had gone to the place of work with the deceased, had left shortly thereafter, and was allegedly found with items said to belong to the deceased.
19. It was further submitted that the prosecution relied on circumstantial evidence that did not meet the legal threshold. Counsel submitted that circumstantial evidence must be incompatible with the accused's innocence, incapable of explanation by any other reasonable hypothesis than guilt, and must form an unbroken chain pointing to the accused. The defence also submitted that the forensic evidence did not place the accused at the scene, as the accused's DNA profile did not match any of the DNA profiles generated from the exhibits. It was also contended that there were procedural irregularities in the preparation of the exhibit memo and in the taking of samples. Counsel urged the court to acquit the accused.
ANALYSIS AND DETERMINATION
20. In a case of murder, the prosecution has the duty of proving the following ingredients beyond reasonable doubt; the fact and cause of the deceased's death, that the death was caused by an unlawful act or omission on the part of the accused, and that the accused acted with malice aforethought as defined under section 206 of the Penal Code.
21. The fact of death is not in dispute. Pw1, Pw4, Pw5 and Pw6 saw the deceased's body. Pw7 performed the post-mortem on the body of Peter Simiyu. His evidence was that the deceased had head injuries, bruises on the face, neck and shoulder, dried blood from the right ear, clots between the skull and the brain, and multiple fractures involving the right mandible, maxilla and temporal bones. He opined that the cause of death was a head injury secondary to assault by a blunt object. I find that the death and its cause were proved.
22. The next issue is whether the accused caused the deceased's unlawful death. There was no eyewitness to the accused's assault on the deceased. The prosecution's case is therefore based on circumstantial evidence. In Musili v Republic, Criminal Appeal No. 30 of 2013, the Court of Appeal stated that for circumstantial evidence to sustain a conviction, the chain of events must be so complete that it establishes the guilt of the accused and no one else. The circumstances from which the inference of guilt is drawn must also be firmly established and of a definite tendency unerringly pointing towards the accused.
23. The evidence on record shows that the accused came to the home where the deceased was working. Pw1 testified that the accused and the deceased worked together on 17th February 2022 and that after work they went to the house where the deceased slept. Pw5 testified that the deceased and the accused stayed together in the same house. The next morning, the deceased was found dead in that house. The door was locked from the outside, and the accused was not there.
24. There is also evidence that, on the same morning, the accused went to his relatives' home. Pw3 saw him with a bag, which she said belonged to Peter. Pw2 testified that the accused went to her place and that the police later collected the bag and the items found therein. The items included clothes, solar panels and a torch. The investigating officer gave evidence on the recovery of the exhibits and their forwarding to the Government Chemist. The items included the wooden club recovered from the scene, the mattress cover, blanket, grey shirt, blue jeans trousers and plastic shoes.
25. Pw9 testified that the mattress cover, blanket, plastic shoes and wooden club were heavily stained with human blood, while the grey shirt and blue jeans were moderately stained with human blood. The DNA profiles generated from those exhibits matched the DNA profile from the deceased's blood sample. This evidence places the deceased's blood on the wooden club, bedding and clothes recovered during the investigation.
26. The defence submitted that the accused's DNA was not found on any of the exhibits. That argument does not, in my view, address the prosecution case. The relevant evidence was not that the accused's blood was on the exhibits. The prosecution case was that the deceased's blood was found on the items recovered, including the wooden club, the clothes linked to the accused, and the bag recovered after the accused had left the place where the deceased had been killed. The failure to find the accused's DNA on those items does not displace the evidence that the deceased's blood was found on them.
27. The accused denied that the items were recovered from him or from his house. He also alleged that the case was planted on him. I have considered that defence. The accused did not call any witness to support his assertion that he left the deceased's house on 17th February 2022 and went home. He also failed to explain sufficiently why he left the place where he had gone with the deceased and why he was seen with a bag said to belong to the deceased early the following morning. His explanation does not displace the evidence of Pw1, Pw2, Pw3, Pw8 and Pw9. Further, his defence that there were bad relations with his sisters was not persuasive. I saw the witnesses and believe they were truthful.
28. The defence also raised issues regarding the exhibit memo and the procedure for taking samples. The evidence of the investigating officer and the Government Chemist was that the exhibits were received, analysed, and the report prepared. Pw9 explained the condition of the exhibits and gave the results of his analysis. No evidence was placed before this court to show that the exhibits were contaminated or that the DNA results were unreliable. In my view, the complaints raised do not break the chain of evidence.
29. The chain of circumstances established by the prosecution is that the accused went with the deceased to the place where the deceased worked, stayed with him in the same house, was with him shortly before he was found dead, left the place before the body was discovered, was seen with a bag identified as the deceased's, and that items recovered during the investigations contained the deceased's blood. Taken together, these circumstances point to the accused as the person who caused the injuries that led to the deceased's death. I find no other co-existing circumstances that weaken or destroy that inference.
30. I therefore find that the prosecution has proved that the deceased's death was caused by an unlawful act of the accused.
31. Under section 206 of the Penal Code, malice aforethought is deemed established by evidence showing, among other things, an intention to cause death or grievous harm to any person, whether or not that person is the one actually killed, or knowledge that the act or omission causing death will probably cause death or grievous harm. In Rex v Tubere s/o Ochen [1945] 12 EACA 63, the court held that, in determining malice aforethought, the court considers the weapon used, the manner of its use, and the part of the body injured.
32. The deceased sustained severe injuries. The deceased had a deformed head, bruises on the face, neck and shoulder, dried blood from the right ear, clots between the skull and the brain, and multiple fractures of the head. The cause of death was a head injury secondary to assault with a blunt object. The head is a vulnerable part of the body. The nature of the injuries and the force used indicate an intention to cause grievous harm, if not death. I find that malice aforethought was proved.
33. In conclusion, I find that the prosecution has proved its case beyond reasonable doubt. I find the accused person, Harun Mwombe Makokha, guilty of the offence of murder and convict him accordingly.
Dated, signed and delivered virtually on this 15th Day of July 2026.
R. E. OUGO
JUDGE
In the presence of:
Harun Mwombe Makokha/ Accused
Miss Matere - For the State
Miss Natwati for Accused- Absent
Wilkister/Minah - C/A