1. The accused persons, John Bwile Wakwabubi (1st Accused), Emmanuel Simiyu Wamalwa, alias Leaky (2nd Accused), Zablon Wafula Nyukuri (3rd Accused), and Lilian Mikasia Namema (4th Accused), face a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on the 7th day of March 2023, at around 1930 hours, at Ndarangu village, Bulondo Sub-Location, East Bukusu Location, in Bungoma South Sub-County, within Bungoma County, the accused persons murdered Hewitt Peter John.
2. The prosecution called 14 witnesses to support its case. Each accused person gave a sworn statement in their defence.
PROSECUTION CASE
3. Clapperton Mbuya Wafula, Pw1, testified that he was a farmer and had been employed by the deceased, John Peter Hewitt, as a caretaker from 1st March 2023. He stated that the deceased, who was his director, used to teach them the word. He knew the 4th accused, the deceased’s wife, prior to the incident, but did not know the 1st, 2nd and 3rd accused persons before 7th March 2023. He testified that during the week preceding the incident, the 4th accused visited the deceased’s home on several occasions. He recalled that on one occasion the deceased informed him that he and the 4th accused had disagreed because of alleged infidelity and that she had only returned to ask for money. Nevertheless, she continued to visit the homestead.
4. PW1 stated that on the evening of 7th March 2023, at about 7.30 p.m., after feeding the dogs, the 4th accused asked him to escort her to an upper house within the compound. The deceased asked where they were going and accompanied them. Along the way, the 4th accused excused herself, saying she wanted to relieve herself. PW1 and the deceased waited for her before she rejoined them. They then abandoned the trip and walked back towards the main house. PW1 went to his house, leaving the deceased and the 4th accused outside. About ten minutes later, he heard cries for help. On stepping outside, he saw the deceased lying on the ground while two men were assaulting him. When another man ran towards him, he retreated into his house and locked the door. The man demanded that he surrender his phone and threatened to burn the house if he failed to comply. PW1 handed over his black Itel phone through the window. He then remained inside as the assault continued until the deceased’s cries ceased.
5. He further testified that he heard one of the assailants make a telephone call, saying, “Hello Mama, we have beaten and killed him and put him in his house”. Shortly thereafter, he heard neighbours shouting that the ‘mzungu’ had been killed. He emerged from his house only after hearing women speaking the local Bukusu language, which convinced him that the people outside were neighbours. He found the deceased lying dead inside the house, wearing only trousers. He informed the Assistant Chief of what had transpired. He also saw the 4th accused join the gathering, and members of the public accused her of being responsible for the deceased’s death.
6. PW1 testified that the Assistant Chief later took him to view the arrested suspects. He stated that DCI officers subsequently arrived with three male suspects in a vehicle. He identified them as the 1st, 2nd and 3rd accused persons after they alighted from the vehicle. He testified that the 1st accused was the person to whom he had surrendered his phone, while the 2nd and 3rd accused were the men he had seen assaulting the deceased. He later identified his recovered black Itel phone in court as the phone taken from him on the night of the incident.
7. During cross-examination, PW1 admitted that although he saw two people assaulting the deceased, he did not recognise or identify them at the time because he had never seen them before. He stated that he learnt the name of the 1st accused later and identified the accused persons after they were brought back in the police vehicle. He confirmed that there were lights within the compound but explained that he locked himself in his house out of fear when one of the assailants approached him. He reiterated that the deceased had always welcomed the 4th accused during her visits and that nothing suggested she was unwelcome. He also stated that when he eventually viewed the deceased’s body, he observed injuries to the head and ribs, although he did not examine the body closely because he was still shaken. Finally, he acknowledged that the three accused persons were already in police custody when he saw them again and conceded that he could not positively state that they were the persons he had seen attacking the deceased, as he only identified them after members of the public indicated that they were the suspects.
8. Zacharia Masika Khisa, Pw2, testified that he was the Assistant Chief of Bulondo Sub-Location and that he knew the deceased, Peter Hewitt, as a resident of his area. He also knew the 4th accused, Lilian Mikasia, before the incident, but stated that he first saw the 1st, 2nd and 3rd accused on the night of the offence.
9. He stated that on 7th March 2023 at about 8.30 p.m., he received a telephone call from Robert Wanjala, a Nyumba Kumi elder, informing him that Peter Hewitt had been murdered. He immediately alerted the police, proceeded to Namwacha Police Station, and, together with police officers Victor Omuga, PC Mwaura and PC Langat, went to the deceased’s home. Upon arrival, he found a large crowd gathered at the homestead. The deceased was lying at the doorway of his house, his head facing outwards, wearing only shorts and bearing head injuries and bruises on the arms. He found the 4th accused, Lilian, seated under the watch of members of the public who were questioning her.
10. He testified that while at the scene, PC Omuga received a telephone call from PC Collins Wesonga, who reported that three suspicious men had been detained at a chang’aa den after news spread that a white man had been killed. PW2 spoke to PC Wesonga and instructed him to hold the suspects until they arrived. He then proceeded with other officers to the location, where they found the three suspects tied together with ropes by members of the public. He identified them in court as the 1st, 2nd and 3rd accused persons.
11. PW2 stated that, using phone flashlights, the officers searched and recovered a black bag containing blood-stained ropes and two mobile phones, including an Oppo phone. As the crowd turned hostile, the suspects were quickly removed from the scene. The OCS later arrived with additional officers and conducted a further search, during which a black wallet containing the deceased’s Equity ATM card, a foreigner’s certificate and other documents was recovered from the 1st accused. The suspects and the recovered exhibits were then taken back to the deceased’s homestead, and all four accused persons, including the 4th accused, were escorted to Namwacha Police Station.
12. PW2 identified in court the black bag, sisal ropes, the Oppo and Tecno phones, the black wallet, the deceased’s Equity ATM card, and the foreigner’s certificate as items recovered during the search. He further testified that he had previously dealt with disputes between the deceased and the 4th accused. He stated that the 4th accused had earlier complained that the deceased was living with her allegedly underage daughter and intended to report a defilement case. On another occasion, the deceased had complained that one of his vehicles had been burnt and suspected the 4th accused’s involvement. PW2 advised both parties to report their complaints to the police and concluded that the couple had ongoing domestic disagreements. He later recorded his witness statement.
13. During cross-examination, PW2 acknowledged that he had not witnessed the murder and had only been informed of it by Robert Wanjala. He confirmed that when he arrived at the chang’aa den, the suspects had already been tied by members of the public, and the black bag was lying at their feet. He conceded that he did not know whether the bag belonged to them. He stated that PC Mwaura recovered two phones from the 1st accused and that he had taken photographs of the suspects for identification purposes, although the photographs were not produced in court. He maintained that the ropes he observed had blood stains. He further testified that the deceased and the 4th accused had not been living harmoniously, as both had previously lodged complaints against each other with him. He also confirmed that the area where the suspects were found was dark and that he had not recovered any motorcycle from them or investigated the ownership of the recovered items before handing the suspects over to the police.
14. Mary Naliaka Sitati, Pw3, testified that she resides in Ndakalu and that she did not know the accused persons before 7th March 2023. She stated that at about 7.00 p.m., she saw three men arrive at her home on a motorcycle. Two of them alighted and sat on a bench, while the rider remained on the motorcycle. She further testified that the rider, whom she identified in court as the 1st accused, told the others to go and smoke cigarettes. She explained that she used to brew busaa and assumed they were customers who had come to drink.
15. PW3 testified that at about 9.00 p.m., two of the men, whom she identified as the 2nd and 3rd accused persons, returned first. She asked them where they had been, as they had taken longer than expected. They told her they had been smoking cigarettes. She stated that when they attempted to start the motorcycle, it failed to start. Becoming suspicious, she called her children to observe them and then called PC Collins Barasa, who happened to be passing by, to check on them.
16. She testified that PC Collins detained the three men and made them sit on a bench. She stated that the 1st accused was carrying a bag that emitted a strong chemical odour. Upon opening the bag, PC Collins recovered a rope, a maroon cap, a cloth or bedcover, and a striped T-shirt. She identified the rope, maroon cap, and striped T-shirt in court. She further testified that the 2nd accused was found in possession of a panga, while the 3rd accused had a rope around his neck, part of which was tucked into his pocket. She stated that police officers and the area chief later arrived, after which the recovered items were displayed. She further testified that the 1st accused removed several mobile phones and dropped them on the ground in the presence of the chief. The three accused persons, together with the recovered items and the motorcycle, were then taken away by the police. She subsequently recorded a statement.
17. On cross-examination, PW3 reiterated that she had initially believed the three men were customers because they had stopped at her premises and said they were going to buy cigarettes. She testified that she noticed a chemical smell coming from the bag and that PC Collins opened it, after which she saw two empty bottles that had previously contained chemicals. She stated that the 1st accused said he had already used the contents of the bottles. She further testified that she saw one rope in the bag and another around the 3rd accused’s neck. She also stated that, after the bag was opened, blood-stained items were observed, although she could not clearly recall whether it was PC Collins or the chief who removed and displayed the exhibits. She confirmed that many members of the public were present and that she heard someone say, “They have killed mzungu.” She also maintained that she saw the 1st accused remove and drop about three mobile phones on the ground before the police arrested the suspects.
18. On re-examination, PW3 testified that PC Collins was the first to open the bag and remove the rope and cap, although she could not state with certainty whether it was he or the chief who subsequently removed the remaining items from the bag.
19. Humphrey Omanyo Wilson, Pw4, testified that he was a teacher at Munami Primary School and lived in Onga Village, Matungu. He stated that he knew the 1st accused, John Bwile Wakwabubi, and the 4th accused, Lilian Mikasia, having seen them before. He further testified that the 4th accused rented one of his rooms and that the 1st accused was seen with her on one occasion.
20. PW4 testified that on 17th March 2023, while at Ejinja market, he was informed by a boda boda rider that people had been arrested at his rental premises. Upon returning home, he found that the police had already left, but he was shown the room rented by the 4th accused from 19th February 2023. He stated that he noticed several missed calls because he had left his phone charging while away. He further testified that the room had been rented by the 4th accused, who had not occupied it for long. He stated that she paid Kshs. 2,000 as rent through M-Pesa on 17th February 2023, for which he issued her a receipt. He identified the M-Pesa statement and the rent receipt produced in court. He further testified that the 4th accused lived in the rented house together with the 1st accused, although he had never spoken to the 1st accused personally. After being contacted by the police, he travelled to Bungoma and recorded a statement.
21. On cross-examination, PW4 clarified that Lilian Mikasia, not the 1st accused, was his tenant. He stated that she occupied the room from 19th February 2023 until the police visited the premises on 17th March 2023, at which time she was still his tenant. He testified that he had seen the 1st accused at the premises only twice, including once when he saw him fetching water with the 4th accused. He acknowledged that he assumed they were living together, but had never spoken to the 1st accused and had not seen him again thereafter. He also stated that the 4th accused had not disclosed any personal background to him and that there was no written tenancy agreement between them.
22. James Ndungu Gachoka, Pw5, testified that he lived in Nakuru and was a director of the World Health and Humanitarian Foundation. He stated that he had known the deceased, Peter John Hewitt, for over 18 years and that they had served together as directors of the same organization. He further testified that he identified the deceased’s body during the post-mortem examination after being authorised by the deceased’s family in Australia to attend the procedure. He also stated that he was the person who called the police on the material day, although they arrived after some delay.
23. On cross-examination, PW5 testified that he had known the fourth accused, Lilian Mikasia, for about ten years and recognised her as the deceased’s wife. He reiterated that his role was limited to identifying the deceased’s body and attending the post-mortem examination. He stated that he observed marks on the deceased’s neck and that the pathologist explained that the deceased had died from strangulation. He further testified that he detected an odour resembling livestock medication in the deceased’s stomach during the post-mortem examination.
24. Jane Nabututu Waya, Pw6, testified that she is a Government Analyst at the Government Chemist in Kisumu. On 17th March 2023, she received exhibits from DCI Bungoma South via CPL Anthony Kirimi, together with an exhibit memo bearing OB No. 3/8/2023, requesting toxicological analysis. The exhibits comprised the deceased’s stomach contents, liver, and kidneys, as well as three containers: a Triatix bottle containing a white liquid, an empty Gradometer bottle, and another bottle containing a whitish substance. She stated that the request was to determine whether the bottles contained poisonous substances and whether any such substances were present in the deceased’s stomach contents, liver, and kidneys.
25. PW6 testified that her analysis established that the Gradometer bottle contained an organophosphate pesticide, while the Triatix bottle and the bottle containing the whitish substance contained organochloride pesticides. However, she found no poisonous substances in the deceased’s stomach contents, liver or kidneys. She explained that both organophosphate and organochloride pesticides are potentially fatal if ingested. She prepared and signed her toxicology report dated 28th July 2023, which she produced together with the exhibit memo. She also identified photographs of the Triatix bottle and the bottle containing the whitish substance. She added that the exhibits were not returned after analysis because they contained toxic substances.
26. On cross-examination, PW6 confirmed that she had analysed the five exhibits submitted to her and reiterated that the three bottles contained poisonous substances. She stated that although the chemicals were capable of causing death if ingested, it was beyond her expertise as a Government Analyst to determine whether a particular person would survive after ingesting them, explaining that such a determination fell within the expertise of a medical doctor.
27. Doctor Dickson Muchana, PW7, testified that he was a consultant pathologist based in Kakamega County, providing forensic pathology services throughout the Western region. He stated that on 15th March 2023, he conducted a post-mortem examination of the body of John Peter Hewitt at the Bungoma County Referral Hospital Mortuary, after the body had been identified by James Gachoka and John Njoroge Njuguna in the presence of the investigating officer, PC Felix Mbuvi. The deceased was an elderly white male, moderately obese, approximately 6 feet 1 inch tall. The body was well preserved, and he estimated that the deceased had died about eight days earlier. Externally, he observed that the nails and lips were dark bluish in colour. He noted multiple grazes and bruises on the forehead, the backs of both shoulders, the back of the left wrist, the front of the right leg near the ankle, and the right rib margin. He also observed post-mortem changes on the face, body and limbs, including streak-like markings, but found no evidence of chronic illness. Internally, he found two blood clots over the breastbone, fractures of the second to sixth right ribs, bruising of the upper lobe of the right lung, blood clots beneath the scalp, swelling of the brain, bleeding beneath the skin on the front of the neck, and a fracture of the right horn of the hyoid bone. He further observed that the stomach contained digested food with a strong smell, indicating that the deceased had died within about four hours of his last meal. He stated that there was no fracture of the skull bones. Based on these findings, PW7 formed the opinion that the deceased died from respiratory failure secondary to manual strangulation. He issued a burial permit and collected samples of the stomach, liver, kidney, nail clippings and rib cartilage for toxicological and forensic analysis at the request of the investigating officer. He produced the post-mortem report dated 15th March 2023 as an exhibit.
28. On cross-examination, PW7 reiterated that the deceased had been manually strangled with the hands. He explained that if a rope had been used to strangle the deceased, he would have expected to observe and record characteristic rope marks in the post-mortem report. He confirmed that the hyoid bone fracture occurred during the strangulation and that the stomach contained food. He further testified that he had recorded all significant findings, including bleeding beneath the skin of the neck.
29. On re-examination, PW7 explained that manual strangulation is ordinarily carried out with the hands, whereas rope strangulation usually leaves a distinct ligature mark or imprint on the neck. He stated that no such marks were present in this case, reinforcing his conclusion that the deceased had been manually strangled.
30. P. C. Collins Barasa Wesonga, Pw8, testified that he was attached to Lafey Police Station in Mandera County but hailed from Butende Village in Bungoma County. He stated that on 7th March 2023, while attending his maternal uncle’s funeral in Butende, he visited his stepmother, Mary Naliaka Sitati, at about 7.30 p.m. While there, he heard commotion outside and went to investigate. He found three men, strangers to him, surrounded by members of the public who suspected them because they were unknown in the area. As a police officer, he questioned them about their identities and where they had come from, but they did not produce any identification documents. He stated that one of the men had a black-handled panga tucked into his trousers, while another carried a black shoulder bag.
31. PW8 testified that upon inspecting the bag, he recovered two joined sisal ropes, a green cloth, and a beige striped T-shirt. He further stated that during the search, one of the suspects dropped a black wallet, an Oppo mobile phone, and a Tecno mobile phone. Inside the wallet, he found two ATM cards and an identification card. He also testified that a report was then received that a person had been killed near Kichinjiyo by the Khalaba River. Fearing that members of the public might lynch the suspects, he contacted PC Victor Omuga, who arrived with PC Mwaura and the area Sub-Chief, Zacharia. He stated that the officers took the three suspects into custody, together with the recovered exhibits.
32. PW8 identified the 1st, 2nd and 3rd accused persons in court as the three men he had found that evening. He also identified the black bag, the two ropes, the Oppo and Tecno phones, the wallet, the beige striped T-shirt and the black-handled panga as items recovered from the suspects. He referred to photographs of the place where the suspects had been found and to photographs showing the suspects seated after their arrest.
33. On cross-examination, PW8 confirmed that the photographs shown to him depicted only two of the accused, although three suspects had been arrested. He acknowledged that, although the photographs were taken during the day, he encountered the suspects at about 7.00 p.m., when it was dark. He testified that there was solar lighting at the homestead where the suspects were found. He admitted that he did not ask the suspects why they were at the homestead or whether they were visitors. He reiterated that the ropes appeared to have been joined together but stated that he did not count how many ropes there were. He further testified that he recovered one small 25 ml bottle bearing a label and containing traces of a whitish substance, although it appeared to have already been used. On re-examination, PW8 testified that he had not taken the photographs shown to him in court and was unaware of the circumstances under which they had been taken.
34. Edwin Waliama Khamala, Pw9, testified that he is a Government Analyst based in Kisumu. He conducted DNA analysis at the request of CPL Anthony Kirimi of DCI Bungoma South on 17th March 2023, pursuant to a court order and an exhibit memo. He stated that the order authorised the collection of DNA samples from the four accused persons, namely John Bwile Wakwabubi, Emmanuel Simiyu Wamalwa, Zablon Wafula Nyukuri and Lilian Namema Mikasia. After confirming their identities, he collected buccal swab samples from each of them.
35. PW9 testified that, in addition to the reference samples, he received four exhibits for analysis: a panga marked A16, a green bedcover marked A17, a striped black-and-cream short-sleeved T-shirt marked A18, and nail clippings from the deceased, John Peter Hewitt, marked B. He stated that the purpose of the examination was to determine the presence and origin of any biological material on the exhibits.
36. He testified that the DNA examination was carried out on 7th February 2024 and established that the panga, bedcover and T-shirt were all moderately stained with human blood. DNA profiles generated from the blood stains on those exhibits matched the DNA profile generated from the deceased’s reference sample. He further testified that none of the DNA profiles obtained from the buccal swabs of the four accused persons matched the DNA profiles recovered from the blood-stained exhibits. He prepared and signed his report dated 7th February 2024 and produced it in evidence.
37. On cross-examination, PW9 testified that no rope had been submitted for DNA analysis and confirmed that the Government Chemist Department did not conduct fingerprint examinations. He reiterated that the DNA profiles from the blood-stained exhibits did not match those of any of the four accused persons. He also identified the bedcover (Exhibit A17) and the striped T-shirt (Exhibit A18) that had been submitted for examination.
38. P.C. Victor Omuga, Pw10, testified that he was attached to Namwache Patrol Base. On 7th March 2023 at about 8.49 p.m., while on duty with PC Johnson Mwaura, they received a report from the Area Chief of Bulondo Sub-location, Zacharia Khisa, about an incident at Ndarangu Village. They made an occurrence book entry and proceeded to the scene. Upon arrival, they found the area chief and villagers at the deceased’s home. He entered the house and found the deceased’s lifeless body lying on a carpeted floor. Shortly thereafter, the Assistant Chief received information that three suspicious men carrying a black bag and crude weapons had been spotted nearby. He stated that the area chief and PC Johnson Mwaura proceeded to investigate while he remained behind to secure the scene.
39. PW10 testified that the OCPD and the OCS arrived at the scene later while he continued to guard it. He stated that they then received information that three suspects had been arrested by members of the public at Bulondo Dispensary. He accompanied the officers to the dispensary, where they found the three suspects tied with ropes. Acting on the OCPD’s instructions, he and PC Johnson Mwaura escorted the three suspects to Namwache Patrol Base for further interrogation, while the OCPD and OCS remained behind. He later returned to the deceased’s homestead on the OCS’s instructions, where he spent the night securing the scene and the deceased’s property.
40. PW10 stated that although it was night, he was able to see the three suspects using the light from his mobile phone, the lights from the police vehicle, and the light from the mobile phones of numerous members of the public present. He identified the 1st, 2nd and 3rd accused persons in court as the three men arrested that night.
41. On cross-examination, PW10 acknowledged that the area chief and assistant chief were already at the scene before his arrival and accepted that they could have interfered with it before the police arrived. He confirmed that the OCPD and OCS first attended the scene before proceeding to Bulondo Dispensary, and that other police officers remained behind to secure it. He also confirmed that he did not see any of the accused persons at the actual scene of the murder and that he identified them using the torch on his mobile phone.
42. On re-examination, PW10 stated that he spent approximately 10 to 20 minutes with the three accused persons following their arrest.
43. Sergeant Johanna Tanui, Pw11, testified that he was attached to the Scenes of Crime Office in Bungoma County and was a gazetted Scenes of Crime officer under Gazette Notice No. 407 dated 18th January 2010. On 7th March 2023 at about 10.30 p.m., he and other police officers proceeded to the deceased’s home at Namwacha following the reported incident. Upon arrival, they found the body of John Peter Hewitt lying on his back at the main entrance, with visible injuries. He stated that, because it was dark, they returned to the scene on 8th March 2023 at about 9.40 a.m. to conduct a more thorough examination.
44. PW11 testified that during the second visit, they recovered broken spectacles believed to belong to the deceased, blood samples from the scene, and a plastic bottle containing a whitish liquid with a strong odour resembling a chemical used to wash livestock. He stated that the bottle was located approximately 30 feet from the deceased’s door. He swabbed the blood stains and preserved the samples for further examination.
45. He further testified that on 10th March 2023, they revisited the scene and recovered a blood-stained stick from the deceased’s garden near the house. He also visited the location where the accused persons had been arrested by members of the public and photographed the area. He stated that on 15th March 2023, he attended the post-mortem examination at Bungoma District Referral Hospital, which was conducted by Dr. Muchana.
46. PW11 testified that he took 56 photographs documenting the investigation. He explained that the photographs depicted the deceased’s homestead and body; exhibits recovered from the accused persons; the crime scene and additional exhibits recovered on 8th March 2023; the blood-stained stick; the place where the accused persons were arrested; the motorcycle allegedly used by the accused persons; the rented house at Ejinja allegedly occupied by the accused persons; and the cash recovered from the first accused, John Wakwabubi. He produced the photographic report, the collection of 56 photographs, and the certificate of photographic prints dated 21st March 2023 as exhibits.
47. On cross-examination, PW11 acknowledged that he had not witnessed the incident and arrived only after the deceased had died. He stated that he did not know the cause of death. He confirmed that photographs numbered 10 to 16 depicted exhibits recovered from the accused persons, including a striped shirt, bedcover, socks, a panga, a bulb and a black bag, while another photograph showed the deceased. He testified that additional photographs documented exhibits recovered on 8th and 9th March 2023, including cash. He clarified that he was not the investigating officer in the case and that none
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2. The prosecution called 14 witnesses to support its case. Each accused person gave a sworn statement in their defence.
PROSECUTION CASE
3. Clapperton Mbuya Wafula, Pw1, testified that he was a farmer and had been employed by the deceased, John Peter Hewitt, as a caretaker from 1st March 2023. He stated that the deceased, who was his director, used to teach them the word. He knew the 4th accused, the deceased’s wife, prior to the incident, but did not know the 1st, 2nd and 3rd accused persons before 7th March 2023. He testified that during the week preceding the incident, the 4th accused visited the deceased’s home on several occasions. He recalled that on one occasion the deceased informed him that he and the 4th accused had disagreed because of alleged infidelity and that she had only returned to ask for money. Nevertheless, she continued to visit the homestead.
4. PW1 stated that on the evening of 7th March 2023, at about 7.30 p.m., after feeding the dogs, the 4th accused asked him to escort her to an upper house within the compound. The deceased asked where they were going and accompanied them. Along the way, the 4th accused excused herself, saying she wanted to relieve herself. PW1 and the deceased waited for her before she rejoined them. They then abandoned the trip and walked back towards the main house. PW1 went to his house, leaving the deceased and the 4th accused outside. About ten minutes later, he heard cries for help. On stepping outside, he saw the deceased lying on the ground while two men were assaulting him. When another man ran towards him, he retreated into his house and locked the door. The man demanded that he surrender his phone and threatened to burn the house if he failed to comply. PW1 handed over his black Itel phone through the window. He then remained inside as the assault continued until the deceased’s cries ceased.
5. He further testified that he heard one of the assailants make a telephone call, saying, “Hello Mama, we have beaten and killed him and put him in his house”. Shortly thereafter, he heard neighbours shouting that the ‘mzungu’ had been killed. He emerged from his house only after hearing women speaking the local Bukusu language, which convinced him that the people outside were neighbours. He found the deceased lying dead inside the house, wearing only trousers. He informed the Assistant Chief of what had transpired. He also saw the 4th accused join the gathering, and members of the public accused her of being responsible for the deceased’s death.
6. PW1 testified that the Assistant Chief later took him to view the arrested suspects. He stated that DCI officers subsequently arrived with three male suspects in a vehicle. He identified them as the 1st, 2nd and 3rd accused persons after they alighted from the vehicle. He testified that the 1st accused was the person to whom he had surrendered his phone, while the 2nd and 3rd accused were the men he had seen assaulting the deceased. He later identified his recovered black Itel phone in court as the phone taken from him on the night of the incident.
7. During cross-examination, PW1 admitted that although he saw two people assaulting the deceased, he did not recognise or identify them at the time because he had never seen them before. He stated that he learnt the name of the 1st accused later and identified the accused persons after they were brought back in the police vehicle. He confirmed that there were lights within the compound but explained that he locked himself in his house out of fear when one of the assailants approached him. He reiterated that the deceased had always welcomed the 4th accused during her visits and that nothing suggested she was unwelcome. He also stated that when he eventually viewed the deceased’s body, he observed injuries to the head and ribs, although he did not examine the body closely because he was still shaken. Finally, he acknowledged that the three accused persons were already in police custody when he saw them again and conceded that he could not positively state that they were the persons he had seen attacking the deceased, as he only identified them after members of the public indicated that they were the suspects.
8. Zacharia Masika Khisa, Pw2, testified that he was the Assistant Chief of Bulondo Sub-Location and that he knew the deceased, Peter Hewitt, as a resident of his area. He also knew the 4th accused, Lilian Mikasia, before the incident, but stated that he first saw the 1st, 2nd and 3rd accused on the night of the offence.
9. He stated that on 7th March 2023 at about 8.30 p.m., he received a telephone call from Robert Wanjala, a Nyumba Kumi elder, informing him that Peter Hewitt had been murdered. He immediately alerted the police, proceeded to Namwacha Police Station, and, together with police officers Victor Omuga, PC Mwaura and PC Langat, went to the deceased’s home. Upon arrival, he found a large crowd gathered at the homestead. The deceased was lying at the doorway of his house, his head facing outwards, wearing only shorts and bearing head injuries and bruises on the arms. He found the 4th accused, Lilian, seated under the watch of members of the public who were questioning her.
10. He testified that while at the scene, PC Omuga received a telephone call from PC Collins Wesonga, who reported that three suspicious men had been detained at a chang’aa den after news spread that a white man had been killed. PW2 spoke to PC Wesonga and instructed him to hold the suspects until they arrived. He then proceeded with other officers to the location, where they found the three suspects tied together with ropes by members of the public. He identified them in court as the 1st, 2nd and 3rd accused persons.
11. PW2 stated that, using phone flashlights, the officers searched and recovered a black bag containing blood-stained ropes and two mobile phones, including an Oppo phone. As the crowd turned hostile, the suspects were quickly removed from the scene. The OCS later arrived with additional officers and conducted a further search, during which a black wallet containing the deceased’s Equity ATM card, a foreigner’s certificate and other documents was recovered from the 1st accused. The suspects and the recovered exhibits were then taken back to the deceased’s homestead, and all four accused persons, including the 4th accused, were escorted to Namwacha Police Station.
12. PW2 identified in court the black bag, sisal ropes, the Oppo and Tecno phones, the black wallet, the deceased’s Equity ATM card, and the foreigner’s certificate as items recovered during the search. He further testified that he had previously dealt with disputes between the deceased and the 4th accused. He stated that the 4th accused had earlier complained that the deceased was living with her allegedly underage daughter and intended to report a defilement case. On another occasion, the deceased had complained that one of his vehicles had been burnt and suspected the 4th accused’s involvement. PW2 advised both parties to report their complaints to the police and concluded that the couple had ongoing domestic disagreements. He later recorded his witness statement.
13. During cross-examination, PW2 acknowledged that he had not witnessed the murder and had only been informed of it by Robert Wanjala. He confirmed that when he arrived at the chang’aa den, the suspects had already been tied by members of the public, and the black bag was lying at their feet. He conceded that he did not know whether the bag belonged to them. He stated that PC Mwaura recovered two phones from the 1st accused and that he had taken photographs of the suspects for identification purposes, although the photographs were not produced in court. He maintained that the ropes he observed had blood stains. He further testified that the deceased and the 4th accused had not been living harmoniously, as both had previously lodged complaints against each other with him. He also confirmed that the area where the suspects were found was dark and that he had not recovered any motorcycle from them or investigated the ownership of the recovered items before handing the suspects over to the police.
14. Mary Naliaka Sitati, Pw3, testified that she resides in Ndakalu and that she did not know the accused persons before 7th March 2023. She stated that at about 7.00 p.m., she saw three men arrive at her home on a motorcycle. Two of them alighted and sat on a bench, while the rider remained on the motorcycle. She further testified that the rider, whom she identified in court as the 1st accused, told the others to go and smoke cigarettes. She explained that she used to brew busaa and assumed they were customers who had come to drink.
15. PW3 testified that at about 9.00 p.m., two of the men, whom she identified as the 2nd and 3rd accused persons, returned first. She asked them where they had been, as they had taken longer than expected. They told her they had been smoking cigarettes. She stated that when they attempted to start the motorcycle, it failed to start. Becoming suspicious, she called her children to observe them and then called PC Collins Barasa, who happened to be passing by, to check on them.
16. She testified that PC Collins detained the three men and made them sit on a bench. She stated that the 1st accused was carrying a bag that emitted a strong chemical odour. Upon opening the bag, PC Collins recovered a rope, a maroon cap, a cloth or bedcover, and a striped T-shirt. She identified the rope, maroon cap, and striped T-shirt in court. She further testified that the 2nd accused was found in possession of a panga, while the 3rd accused had a rope around his neck, part of which was tucked into his pocket. She stated that police officers and the area chief later arrived, after which the recovered items were displayed. She further testified that the 1st accused removed several mobile phones and dropped them on the ground in the presence of the chief. The three accused persons, together with the recovered items and the motorcycle, were then taken away by the police. She subsequently recorded a statement.
17. On cross-examination, PW3 reiterated that she had initially believed the three men were customers because they had stopped at her premises and said they were going to buy cigarettes. She testified that she noticed a chemical smell coming from the bag and that PC Collins opened it, after which she saw two empty bottles that had previously contained chemicals. She stated that the 1st accused said he had already used the contents of the bottles. She further testified that she saw one rope in the bag and another around the 3rd accused’s neck. She also stated that, after the bag was opened, blood-stained items were observed, although she could not clearly recall whether it was PC Collins or the chief who removed and displayed the exhibits. She confirmed that many members of the public were present and that she heard someone say, “They have killed mzungu.” She also maintained that she saw the 1st accused remove and drop about three mobile phones on the ground before the police arrested the suspects.
18. On re-examination, PW3 testified that PC Collins was the first to open the bag and remove the rope and cap, although she could not state with certainty whether it was he or the chief who subsequently removed the remaining items from the bag.
19. Humphrey Omanyo Wilson, Pw4, testified that he was a teacher at Munami Primary School and lived in Onga Village, Matungu. He stated that he knew the 1st accused, John Bwile Wakwabubi, and the 4th accused, Lilian Mikasia, having seen them before. He further testified that the 4th accused rented one of his rooms and that the 1st accused was seen with her on one occasion.
20. PW4 testified that on 17th March 2023, while at Ejinja market, he was informed by a boda boda rider that people had been arrested at his rental premises. Upon returning home, he found that the police had already left, but he was shown the room rented by the 4th accused from 19th February 2023. He stated that he noticed several missed calls because he had left his phone charging while away. He further testified that the room had been rented by the 4th accused, who had not occupied it for long. He stated that she paid Kshs. 2,000 as rent through M-Pesa on 17th February 2023, for which he issued her a receipt. He identified the M-Pesa statement and the rent receipt produced in court. He further testified that the 4th accused lived in the rented house together with the 1st accused, although he had never spoken to the 1st accused personally. After being contacted by the police, he travelled to Bungoma and recorded a statement.
21. On cross-examination, PW4 clarified that Lilian Mikasia, not the 1st accused, was his tenant. He stated that she occupied the room from 19th February 2023 until the police visited the premises on 17th March 2023, at which time she was still his tenant. He testified that he had seen the 1st accused at the premises only twice, including once when he saw him fetching water with the 4th accused. He acknowledged that he assumed they were living together, but had never spoken to the 1st accused and had not seen him again thereafter. He also stated that the 4th accused had not disclosed any personal background to him and that there was no written tenancy agreement between them.
22. James Ndungu Gachoka, Pw5, testified that he lived in Nakuru and was a director of the World Health and Humanitarian Foundation. He stated that he had known the deceased, Peter John Hewitt, for over 18 years and that they had served together as directors of the same organization. He further testified that he identified the deceased’s body during the post-mortem examination after being authorised by the deceased’s family in Australia to attend the procedure. He also stated that he was the person who called the police on the material day, although they arrived after some delay.
23. On cross-examination, PW5 testified that he had known the fourth accused, Lilian Mikasia, for about ten years and recognised her as the deceased’s wife. He reiterated that his role was limited to identifying the deceased’s body and attending the post-mortem examination. He stated that he observed marks on the deceased’s neck and that the pathologist explained that the deceased had died from strangulation. He further testified that he detected an odour resembling livestock medication in the deceased’s stomach during the post-mortem examination.
24. Jane Nabututu Waya, Pw6, testified that she is a Government Analyst at the Government Chemist in Kisumu. On 17th March 2023, she received exhibits from DCI Bungoma South via CPL Anthony Kirimi, together with an exhibit memo bearing OB No. 3/8/2023, requesting toxicological analysis. The exhibits comprised the deceased’s stomach contents, liver, and kidneys, as well as three containers: a Triatix bottle containing a white liquid, an empty Gradometer bottle, and another bottle containing a whitish substance. She stated that the request was to determine whether the bottles contained poisonous substances and whether any such substances were present in the deceased’s stomach contents, liver, and kidneys.
25. PW6 testified that her analysis established that the Gradometer bottle contained an organophosphate pesticide, while the Triatix bottle and the bottle containing the whitish substance contained organochloride pesticides. However, she found no poisonous substances in the deceased’s stomach contents, liver or kidneys. She explained that both organophosphate and organochloride pesticides are potentially fatal if ingested. She prepared and signed her toxicology report dated 28th July 2023, which she produced together with the exhibit memo. She also identified photographs of the Triatix bottle and the bottle containing the whitish substance. She added that the exhibits were not returned after analysis because they contained toxic substances.
26. On cross-examination, PW6 confirmed that she had analysed the five exhibits submitted to her and reiterated that the three bottles contained poisonous substances. She stated that although the chemicals were capable of causing death if ingested, it was beyond her expertise as a Government Analyst to determine whether a particular person would survive after ingesting them, explaining that such a determination fell within the expertise of a medical doctor.
27. Doctor Dickson Muchana, PW7, testified that he was a consultant pathologist based in Kakamega County, providing forensic pathology services throughout the Western region. He stated that on 15th March 2023, he conducted a post-mortem examination of the body of John Peter Hewitt at the Bungoma County Referral Hospital Mortuary, after the body had been identified by James Gachoka and John Njoroge Njuguna in the presence of the investigating officer, PC Felix Mbuvi. The deceased was an elderly white male, moderately obese, approximately 6 feet 1 inch tall. The body was well preserved, and he estimated that the deceased had died about eight days earlier. Externally, he observed that the nails and lips were dark bluish in colour. He noted multiple grazes and bruises on the forehead, the backs of both shoulders, the back of the left wrist, the front of the right leg near the ankle, and the right rib margin. He also observed post-mortem changes on the face, body and limbs, including streak-like markings, but found no evidence of chronic illness. Internally, he found two blood clots over the breastbone, fractures of the second to sixth right ribs, bruising of the upper lobe of the right lung, blood clots beneath the scalp, swelling of the brain, bleeding beneath the skin on the front of the neck, and a fracture of the right horn of the hyoid bone. He further observed that the stomach contained digested food with a strong smell, indicating that the deceased had died within about four hours of his last meal. He stated that there was no fracture of the skull bones. Based on these findings, PW7 formed the opinion that the deceased died from respiratory failure secondary to manual strangulation. He issued a burial permit and collected samples of the stomach, liver, kidney, nail clippings and rib cartilage for toxicological and forensic analysis at the request of the investigating officer. He produced the post-mortem report dated 15th March 2023 as an exhibit.
28. On cross-examination, PW7 reiterated that the deceased had been manually strangled with the hands. He explained that if a rope had been used to strangle the deceased, he would have expected to observe and record characteristic rope marks in the post-mortem report. He confirmed that the hyoid bone fracture occurred during the strangulation and that the stomach contained food. He further testified that he had recorded all significant findings, including bleeding beneath the skin of the neck.
29. On re-examination, PW7 explained that manual strangulation is ordinarily carried out with the hands, whereas rope strangulation usually leaves a distinct ligature mark or imprint on the neck. He stated that no such marks were present in this case, reinforcing his conclusion that the deceased had been manually strangled.
30. P. C. Collins Barasa Wesonga, Pw8, testified that he was attached to Lafey Police Station in Mandera County but hailed from Butende Village in Bungoma County. He stated that on 7th March 2023, while attending his maternal uncle’s funeral in Butende, he visited his stepmother, Mary Naliaka Sitati, at about 7.30 p.m. While there, he heard commotion outside and went to investigate. He found three men, strangers to him, surrounded by members of the public who suspected them because they were unknown in the area. As a police officer, he questioned them about their identities and where they had come from, but they did not produce any identification documents. He stated that one of the men had a black-handled panga tucked into his trousers, while another carried a black shoulder bag.
31. PW8 testified that upon inspecting the bag, he recovered two joined sisal ropes, a green cloth, and a beige striped T-shirt. He further stated that during the search, one of the suspects dropped a black wallet, an Oppo mobile phone, and a Tecno mobile phone. Inside the wallet, he found two ATM cards and an identification card. He also testified that a report was then received that a person had been killed near Kichinjiyo by the Khalaba River. Fearing that members of the public might lynch the suspects, he contacted PC Victor Omuga, who arrived with PC Mwaura and the area Sub-Chief, Zacharia. He stated that the officers took the three suspects into custody, together with the recovered exhibits.
32. PW8 identified the 1st, 2nd and 3rd accused persons in court as the three men he had found that evening. He also identified the black bag, the two ropes, the Oppo and Tecno phones, the wallet, the beige striped T-shirt and the black-handled panga as items recovered from the suspects. He referred to photographs of the place where the suspects had been found and to photographs showing the suspects seated after their arrest.
33. On cross-examination, PW8 confirmed that the photographs shown to him depicted only two of the accused, although three suspects had been arrested. He acknowledged that, although the photographs were taken during the day, he encountered the suspects at about 7.00 p.m., when it was dark. He testified that there was solar lighting at the homestead where the suspects were found. He admitted that he did not ask the suspects why they were at the homestead or whether they were visitors. He reiterated that the ropes appeared to have been joined together but stated that he did not count how many ropes there were. He further testified that he recovered one small 25 ml bottle bearing a label and containing traces of a whitish substance, although it appeared to have already been used. On re-examination, PW8 testified that he had not taken the photographs shown to him in court and was unaware of the circumstances under which they had been taken.
34. Edwin Waliama Khamala, Pw9, testified that he is a Government Analyst based in Kisumu. He conducted DNA analysis at the request of CPL Anthony Kirimi of DCI Bungoma South on 17th March 2023, pursuant to a court order and an exhibit memo. He stated that the order authorised the collection of DNA samples from the four accused persons, namely John Bwile Wakwabubi, Emmanuel Simiyu Wamalwa, Zablon Wafula Nyukuri and Lilian Namema Mikasia. After confirming their identities, he collected buccal swab samples from each of them.
35. PW9 testified that, in addition to the reference samples, he received four exhibits for analysis: a panga marked A16, a green bedcover marked A17, a striped black-and-cream short-sleeved T-shirt marked A18, and nail clippings from the deceased, John Peter Hewitt, marked B. He stated that the purpose of the examination was to determine the presence and origin of any biological material on the exhibits.
36. He testified that the DNA examination was carried out on 7th February 2024 and established that the panga, bedcover and T-shirt were all moderately stained with human blood. DNA profiles generated from the blood stains on those exhibits matched the DNA profile generated from the deceased’s reference sample. He further testified that none of the DNA profiles obtained from the buccal swabs of the four accused persons matched the DNA profiles recovered from the blood-stained exhibits. He prepared and signed his report dated 7th February 2024 and produced it in evidence.
37. On cross-examination, PW9 testified that no rope had been submitted for DNA analysis and confirmed that the Government Chemist Department did not conduct fingerprint examinations. He reiterated that the DNA profiles from the blood-stained exhibits did not match those of any of the four accused persons. He also identified the bedcover (Exhibit A17) and the striped T-shirt (Exhibit A18) that had been submitted for examination.
38. P.C. Victor Omuga, Pw10, testified that he was attached to Namwache Patrol Base. On 7th March 2023 at about 8.49 p.m., while on duty with PC Johnson Mwaura, they received a report from the Area Chief of Bulondo Sub-location, Zacharia Khisa, about an incident at Ndarangu Village. They made an occurrence book entry and proceeded to the scene. Upon arrival, they found the area chief and villagers at the deceased’s home. He entered the house and found the deceased’s lifeless body lying on a carpeted floor. Shortly thereafter, the Assistant Chief received information that three suspicious men carrying a black bag and crude weapons had been spotted nearby. He stated that the area chief and PC Johnson Mwaura proceeded to investigate while he remained behind to secure the scene.
39. PW10 testified that the OCPD and the OCS arrived at the scene later while he continued to guard it. He stated that they then received information that three suspects had been arrested by members of the public at Bulondo Dispensary. He accompanied the officers to the dispensary, where they found the three suspects tied with ropes. Acting on the OCPD’s instructions, he and PC Johnson Mwaura escorted the three suspects to Namwache Patrol Base for further interrogation, while the OCPD and OCS remained behind. He later returned to the deceased’s homestead on the OCS’s instructions, where he spent the night securing the scene and the deceased’s property.
40. PW10 stated that although it was night, he was able to see the three suspects using the light from his mobile phone, the lights from the police vehicle, and the light from the mobile phones of numerous members of the public present. He identified the 1st, 2nd and 3rd accused persons in court as the three men arrested that night.
41. On cross-examination, PW10 acknowledged that the area chief and assistant chief were already at the scene before his arrival and accepted that they could have interfered with it before the police arrived. He confirmed that the OCPD and OCS first attended the scene before proceeding to Bulondo Dispensary, and that other police officers remained behind to secure it. He also confirmed that he did not see any of the accused persons at the actual scene of the murder and that he identified them using the torch on his mobile phone.
42. On re-examination, PW10 stated that he spent approximately 10 to 20 minutes with the three accused persons following their arrest.
43. Sergeant Johanna Tanui, Pw11, testified that he was attached to the Scenes of Crime Office in Bungoma County and was a gazetted Scenes of Crime officer under Gazette Notice No. 407 dated 18th January 2010. On 7th March 2023 at about 10.30 p.m., he and other police officers proceeded to the deceased’s home at Namwacha following the reported incident. Upon arrival, they found the body of John Peter Hewitt lying on his back at the main entrance, with visible injuries. He stated that, because it was dark, they returned to the scene on 8th March 2023 at about 9.40 a.m. to conduct a more thorough examination.
44. PW11 testified that during the second visit, they recovered broken spectacles believed to belong to the deceased, blood samples from the scene, and a plastic bottle containing a whitish liquid with a strong odour resembling a chemical used to wash livestock. He stated that the bottle was located approximately 30 feet from the deceased’s door. He swabbed the blood stains and preserved the samples for further examination.
45. He further testified that on 10th March 2023, they revisited the scene and recovered a blood-stained stick from the deceased’s garden near the house. He also visited the location where the accused persons had been arrested by members of the public and photographed the area. He stated that on 15th March 2023, he attended the post-mortem examination at Bungoma District Referral Hospital, which was conducted by Dr. Muchana.
46. PW11 testified that he took 56 photographs documenting the investigation. He explained that the photographs depicted the deceased’s homestead and body; exhibits recovered from the accused persons; the crime scene and additional exhibits recovered on 8th March 2023; the blood-stained stick; the place where the accused persons were arrested; the motorcycle allegedly used by the accused persons; the rented house at Ejinja allegedly occupied by the accused persons; and the cash recovered from the first accused, John Wakwabubi. He produced the photographic report, the collection of 56 photographs, and the certificate of photographic prints dated 21st March 2023 as exhibits.
47. On cross-examination, PW11 acknowledged that he had not witnessed the incident and arrived only after the deceased had died. He stated that he did not know the cause of death. He confirmed that photographs numbered 10 to 16 depicted exhibits recovered from the accused persons, including a striped shirt, bedcover, socks, a panga, a bulb and a black bag, while another photograph showed the deceased. He testified that additional photographs documented exhibits recovered on 8th and 9th March 2023, including cash. He clarified that he was not the investigating officer in the case and that none
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