1. The accused person herein, Joseph Momanyi Nyakaba alias Boi, was brought before this court facing the grave charge of murder contrary to Section 203 as read together with Section 204 of the Penal Code. The prosecution alleged that on 19th May 2023 at Bosagara Kanyanja Village within Bukurati II Sublocation, Nyamira North Sub-County in Nyamira County, the accused unlawfully caused the death of one Peter Gecheo Nyaosi. When the charge was read out and explained to him, the accused denied the accusation and a plea of not guilty was accordingly entered.
2. In an effort to prove the charge against the accused person, the prosecution presented the testimony of seven witnesses whose collective evidence sought to demonstrate that the deceased sustained fatal injuries following an unlawful assault allegedly committed by the accused person.
3. The prosecution narrative principally began with the testimony of PW1, Zachariah Nyamongo Ajiera, who testified that he was a neighbour to both the accused and the deceased. He recalled that on the morning of 19th May 2023 at about 10.00 a.m., he was walking along a footpath adjacent to the accused’s home when he encountered the accused and the deceased engaged in what appeared to be a heated confrontation near a house that was under construction.
4. According to PW1, the two men were loudly arguing and exchanging harsh words. In the course of the confrontation, he heard the deceased tell the accused that he intended to do to him what he had allegedly done to his wife until she left him. The witness testified that moments later, the confrontation escalated into violence. He saw the accused pick up a metal rod, locally known as “tarimbo,” and strike the deceased twice on the face and head area. PW1 stated that the blows caused the deceased to collapse to the ground, after which the accused stepped on his chest. The witness observed the incident from a short distance and stated that it was broad daylight and visibility was clear at the time.
5. PW1 further testified that after witnessing the assault, he proceeded to his home. On the following day, however, he received information that a body had been seen in a nearby river situated close to the accused’s home. He proceeded to the scene where he found members of the public gathered around the river. Upon observing the body, he recognized it as that of the deceased, Peter Gecheo Nyaosi. He testified that the body bore visible injuries on the head. He later recorded a statement with the police regarding the events he had witnessed on the previous day.
6. The circumstances surrounding the recovery of the deceased’s body were narrated by PW2, Eric John. He testified that on 20th May 2023 at about 09.00 a.m., he was together with PW3 near the river searching for yams when they noticed what appeared to be a human hand protruding from the water. Alarmed by the sight, they called out to other people who were nearby and, upon closer examination, they realized that the object submerged in the river was in fact a human body. Members of the public soon gathered at the scene and the body was eventually identified as that of the deceased herein.
7. PW3, Eric Maina Omwoyo Obed, equally testified that while in the company of PW2 they discovered a human body submerged in the river and that the same body was later identified as belonging to the deceased, Peter Gecheo Nyaosi.
8. The prosecution also tendered medical evidence through PW4, Dr. Marube Peter Momanyi, a Senior Medical Officer attached to Kisii Teaching and Referral Hospital. The doctor testified that he conducted a post mortem examination on the body of the deceased on 30th May 2023 at Our Lady of Mercy Ibara Hospital Mortuary. Upon examination, he observed multiple bruises spread across the body, bilateral haemothorax within the chest cavity and bleeding within the brain. In his professional opinion, the deceased died from severe head injury and chest injury caused by blunt force trauma. He produced the post mortem report as an exhibit before the court.
9. PW5, Jackson Nyakundi Morori, testified that he identified the body of the deceased to the doctor prior to the post mortem examination. He confirmed that the body bore visible injuries particularly on the head and chest area.
10. Further evidence was tendered by PW6, Police Constable Kennedy Otieno attached to Ekerenyo Police Station. He testified that on ..20th May 2023 he received information concerning the discovery of a body at River Kehancha. He proceeded to the scene and recovered the body of the deceased from the river. According to the witness, he observed injuries on the head of the deceased before transferring the body to the mortuary pending post mortem examination.
11. The prosecution case was concluded through the testimony of PW7, Police Constable Anthony Kamande of Nyamira North DCI offices, who investigated the matter following the recovery of the deceased’s body. He testified that in the course of investigations he recorded witness statements and established that prior to his death, the deceased had engaged in a confrontation with the accused person near the accused’s home. Investigations further revealed that the deceased had allegedly gone to demand money from the accused, thereby triggering the altercation between the two men. Upon completion of investigations, the accused person was arrested and subsequently charged with the present offence.
12. At the close of the prosecution case, the court found that a prima facie case had been established against the accused person and he was accordingly placed on his defence.
13. In his sworn defence, the accused denied any involvement in the death of the deceased. He testified that he was a boda boda rider and that on 19th May 2023 at about 6.30 a.m. he ferried customers to Nyamaiya and remained away from home throughout the day, only returning at about 7.00 p.m. He maintained that he was not at the scene of the incident and denied assaulting or killing the deceased.
14. I have carefully considered the evidence adduced by the prosecution together with the defence advanced by the accused person. The burden of proof in criminal cases rests throughout upon the prosecution and never shifts to the accused person except in circumstances specifically provided by law. The prosecution was therefore under a duty to establish beyond reasonable doubt all the ingredients constituting the offence of murder.
15. For the prosecution to secure a conviction for murder, it was required to prove beyond reasonable doubt the fact and cause of death of the deceased, that the death resulted from an unlawful act or omission attributable to the accused person and that in causing such death the accused acted with malice aforethought.
16. There is no dispute regarding the fact of death of the deceased. The evidence of PW2, PW3, PW5 and PW6 consistently established that the body of the deceased was recovered from the river on 20th May 2023. The medical evidence tendered by PW4 conclusively established that the deceased died from severe head injury and chest injury occasioned by blunt force trauma. The prosecution therefore satisfactorily proved both the fact and cause of death.
17. The central issue falling for determination is whether it was the accused person who inflicted the fatal injuries upon the deceased.
18. I am alive to the fact that the prosecution case substantially rests on the evidence of a single eye witness. The law is however settled that a fact may be proved by the testimony of a single witness provided the court warns itself of the danger attendant to such evidence and carefully examines whether the prevailing circumstances were favourable for positive identification or recognition.
19. In Maitanyi v Republic [1986] KECA 39 (KLR), the Court of Appeal held that: -
“Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult.”
20. PW1 testified that both the accused and the deceased were his neighbours and that he knew them well prior to the incident. His evidence was therefore one of recognition as opposed to identification of a stranger. Further, the incident occurred at about 10.00 a.m. in broad daylight and PW1 gave a coherent and detailed account of the manner in which the accused assaulted the deceased using a metal rod before stepping on his chest after he fell down. I am therefore satisfied that the prevailing circumstances favoured proper recognition.
21. I have equally considered whether there existed any possibility of false implication and I find none. No evidence was placed before the court to suggest the existence of any grudge, ill motive or prior disagreement between PW1 and the accused that would have motivated the witness to falsely implicate the accused in the offence herein. I am therefore satisfied that PW1 was a truthful witness and that his testimony was worthy of belief.
22. The testimony of PW1 was materially corroborated by the medical evidence tendered by PW4. Whereas PW1 testified that the accused struck the deceased on the head using a metal rod before stepping on his chest after he fell down, the post mortem examination revealed severe head and chest injuries occasioned by blunt force trauma. The medical findings were therefore wholly consistent with the account given by PW1 regarding the manner in which the deceased was assaulted.
23. The accused raised an alibi defence contending that on the material day he had ferried customers to Nyamaiya at about 6.30 a.m. and only returned home at about 7.00 p.m., thereby denying being at the scene of the incident. The law regarding the defence of alibi is now well settled.
24. In Kimotho Kiarie v Republic [1984] KECA 65 (KLR), the Court of Appeal held that an accused person who raises an alibi assumes no burden of proving the same and that the burden remains upon the prosecution to disprove the alibi and place the accused at the scene of crime. Similarly, in Joseph Waiguru Wang’ombe v Republic [1980] KECA 6 (KLR), the Court held that where an accused raises an alibi defence, the court is required to weigh the same against the prosecution evidence in order to determine whether the prosecution has displaced the alibi beyond reasonable doubt.
25. Applying the foregoing principles to the present case, I find that the accused’s alibi defence was effectively displaced by the prosecution evidence. PW1 gave direct evidence placing the accused at the scene of the incident and clearly described the manner in which the accused assaulted the deceased. PW1 knew the accused beforehand as a neighbour and the incident occurred in broad daylight. I therefore find the evidence of recognition to have been free from the possibility of error.
26. On the question whether the accused acted with malice aforethought, Section 206(a) of the Penal Code provides that malice aforethought shall be deemed to be established by evidence proving an intention to cause death or grievous harm.
27. In Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR), the Court of Appeal held that for the offence of murder to be proved, the prosecution must establish beyond reasonable doubt not only the unlawful act causing death but also that the accused possessed the requisite malice aforethought as defined under Section 206 of the Penal Code. The Court further observed that in determining whether malice aforethought has been established, the court ought to consider the nature of the weapon used, the manner in which it was used, the part of the body targeted and the circumstances surrounding the attack.
28. In the present case, the accused repeatedly struck the deceased on the head using a metal rod before stepping on his chest after he had fallen down. The weapon used was clearly capable of causing death or grievous harm and the injuries were directed at vulnerable parts of the body, namely the head and chest. Coupled with the medical evidence confirming severe head and chest injuries occasioned by blunt force trauma, I am satisfied that the manner in which the assault was executed demonstrates a clear intention on the part of the accused either to cause death or grievous harm to the deceased.
29. I therefore find that the prosecution proved beyond reasonable doubt that the accused acted with malice aforethought within the meaning of Section 206(a) of the Penal Code.
30. Having carefully analysed the entire evidence on record, I am satisfied that the prosecution proved beyond reasonable doubt that it was the accused person who unlawfully assaulted the deceased thereby causing the fatal injuries from which the deceased died.
31. Consequently, I find the accused person, Joseph Momanyi Nyakaba alias Boi, guilty of the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code and I accordingly convict him.
2. In an effort to prove the charge against the accused person, the prosecution presented the testimony of seven witnesses whose collective evidence sought to demonstrate that the deceased sustained fatal injuries following an unlawful assault allegedly committed by the accused person.
3. The prosecution narrative principally began with the testimony of PW1, Zachariah Nyamongo Ajiera, who testified that he was a neighbour to both the accused and the deceased. He recalled that on the morning of 19th May 2023 at about 10.00 a.m., he was walking along a footpath adjacent to the accused’s home when he encountered the accused and the deceased engaged in what appeared to be a heated confrontation near a house that was under construction.
4. According to PW1, the two men were loudly arguing and exchanging harsh words. In the course of the confrontation, he heard the deceased tell the accused that he intended to do to him what he had allegedly done to his wife until she left him. The witness testified that moments later, the confrontation escalated into violence. He saw the accused pick up a metal rod, locally known as “tarimbo,” and strike the deceased twice on the face and head area. PW1 stated that the blows caused the deceased to collapse to the ground, after which the accused stepped on his chest. The witness observed the incident from a short distance and stated that it was broad daylight and visibility was clear at the time.
5. PW1 further testified that after witnessing the assault, he proceeded to his home. On the following day, however, he received information that a body had been seen in a nearby river situated close to the accused’s home. He proceeded to the scene where he found members of the public gathered around the river. Upon observing the body, he recognized it as that of the deceased, Peter Gecheo Nyaosi. He testified that the body bore visible injuries on the head. He later recorded a statement with the police regarding the events he had witnessed on the previous day.
6. The circumstances surrounding the recovery of the deceased’s body were narrated by PW2, Eric John. He testified that on 20th May 2023 at about 09.00 a.m., he was together with PW3 near the river searching for yams when they noticed what appeared to be a human hand protruding from the water. Alarmed by the sight, they called out to other people who were nearby and, upon closer examination, they realized that the object submerged in the river was in fact a human body. Members of the public soon gathered at the scene and the body was eventually identified as that of the deceased herein.
7. PW3, Eric Maina Omwoyo Obed, equally testified that while in the company of PW2 they discovered a human body submerged in the river and that the same body was later identified as belonging to the deceased, Peter Gecheo Nyaosi.
8. The prosecution also tendered medical evidence through PW4, Dr. Marube Peter Momanyi, a Senior Medical Officer attached to Kisii Teaching and Referral Hospital. The doctor testified that he conducted a post mortem examination on the body of the deceased on 30th May 2023 at Our Lady of Mercy Ibara Hospital Mortuary. Upon examination, he observed multiple bruises spread across the body, bilateral haemothorax within the chest cavity and bleeding within the brain. In his professional opinion, the deceased died from severe head injury and chest injury caused by blunt force trauma. He produced the post mortem report as an exhibit before the court.
9. PW5, Jackson Nyakundi Morori, testified that he identified the body of the deceased to the doctor prior to the post mortem examination. He confirmed that the body bore visible injuries particularly on the head and chest area.
10. Further evidence was tendered by PW6, Police Constable Kennedy Otieno attached to Ekerenyo Police Station. He testified that on ..20th May 2023 he received information concerning the discovery of a body at River Kehancha. He proceeded to the scene and recovered the body of the deceased from the river. According to the witness, he observed injuries on the head of the deceased before transferring the body to the mortuary pending post mortem examination.
11. The prosecution case was concluded through the testimony of PW7, Police Constable Anthony Kamande of Nyamira North DCI offices, who investigated the matter following the recovery of the deceased’s body. He testified that in the course of investigations he recorded witness statements and established that prior to his death, the deceased had engaged in a confrontation with the accused person near the accused’s home. Investigations further revealed that the deceased had allegedly gone to demand money from the accused, thereby triggering the altercation between the two men. Upon completion of investigations, the accused person was arrested and subsequently charged with the present offence.
12. At the close of the prosecution case, the court found that a prima facie case had been established against the accused person and he was accordingly placed on his defence.
13. In his sworn defence, the accused denied any involvement in the death of the deceased. He testified that he was a boda boda rider and that on 19th May 2023 at about 6.30 a.m. he ferried customers to Nyamaiya and remained away from home throughout the day, only returning at about 7.00 p.m. He maintained that he was not at the scene of the incident and denied assaulting or killing the deceased.
14. I have carefully considered the evidence adduced by the prosecution together with the defence advanced by the accused person. The burden of proof in criminal cases rests throughout upon the prosecution and never shifts to the accused person except in circumstances specifically provided by law. The prosecution was therefore under a duty to establish beyond reasonable doubt all the ingredients constituting the offence of murder.
15. For the prosecution to secure a conviction for murder, it was required to prove beyond reasonable doubt the fact and cause of death of the deceased, that the death resulted from an unlawful act or omission attributable to the accused person and that in causing such death the accused acted with malice aforethought.
16. There is no dispute regarding the fact of death of the deceased. The evidence of PW2, PW3, PW5 and PW6 consistently established that the body of the deceased was recovered from the river on 20th May 2023. The medical evidence tendered by PW4 conclusively established that the deceased died from severe head injury and chest injury occasioned by blunt force trauma. The prosecution therefore satisfactorily proved both the fact and cause of death.
17. The central issue falling for determination is whether it was the accused person who inflicted the fatal injuries upon the deceased.
18. I am alive to the fact that the prosecution case substantially rests on the evidence of a single eye witness. The law is however settled that a fact may be proved by the testimony of a single witness provided the court warns itself of the danger attendant to such evidence and carefully examines whether the prevailing circumstances were favourable for positive identification or recognition.
19. In Maitanyi v Republic [1986] KECA 39 (KLR), the Court of Appeal held that: -
“Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult.”
20. PW1 testified that both the accused and the deceased were his neighbours and that he knew them well prior to the incident. His evidence was therefore one of recognition as opposed to identification of a stranger. Further, the incident occurred at about 10.00 a.m. in broad daylight and PW1 gave a coherent and detailed account of the manner in which the accused assaulted the deceased using a metal rod before stepping on his chest after he fell down. I am therefore satisfied that the prevailing circumstances favoured proper recognition.
21. I have equally considered whether there existed any possibility of false implication and I find none. No evidence was placed before the court to suggest the existence of any grudge, ill motive or prior disagreement between PW1 and the accused that would have motivated the witness to falsely implicate the accused in the offence herein. I am therefore satisfied that PW1 was a truthful witness and that his testimony was worthy of belief.
22. The testimony of PW1 was materially corroborated by the medical evidence tendered by PW4. Whereas PW1 testified that the accused struck the deceased on the head using a metal rod before stepping on his chest after he fell down, the post mortem examination revealed severe head and chest injuries occasioned by blunt force trauma. The medical findings were therefore wholly consistent with the account given by PW1 regarding the manner in which the deceased was assaulted.
23. The accused raised an alibi defence contending that on the material day he had ferried customers to Nyamaiya at about 6.30 a.m. and only returned home at about 7.00 p.m., thereby denying being at the scene of the incident. The law regarding the defence of alibi is now well settled.
24. In Kimotho Kiarie v Republic [1984] KECA 65 (KLR), the Court of Appeal held that an accused person who raises an alibi assumes no burden of proving the same and that the burden remains upon the prosecution to disprove the alibi and place the accused at the scene of crime. Similarly, in Joseph Waiguru Wang’ombe v Republic [1980] KECA 6 (KLR), the Court held that where an accused raises an alibi defence, the court is required to weigh the same against the prosecution evidence in order to determine whether the prosecution has displaced the alibi beyond reasonable doubt.
25. Applying the foregoing principles to the present case, I find that the accused’s alibi defence was effectively displaced by the prosecution evidence. PW1 gave direct evidence placing the accused at the scene of the incident and clearly described the manner in which the accused assaulted the deceased. PW1 knew the accused beforehand as a neighbour and the incident occurred in broad daylight. I therefore find the evidence of recognition to have been free from the possibility of error.
26. On the question whether the accused acted with malice aforethought, Section 206(a) of the Penal Code provides that malice aforethought shall be deemed to be established by evidence proving an intention to cause death or grievous harm.
27. In Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR), the Court of Appeal held that for the offence of murder to be proved, the prosecution must establish beyond reasonable doubt not only the unlawful act causing death but also that the accused possessed the requisite malice aforethought as defined under Section 206 of the Penal Code. The Court further observed that in determining whether malice aforethought has been established, the court ought to consider the nature of the weapon used, the manner in which it was used, the part of the body targeted and the circumstances surrounding the attack.
28. In the present case, the accused repeatedly struck the deceased on the head using a metal rod before stepping on his chest after he had fallen down. The weapon used was clearly capable of causing death or grievous harm and the injuries were directed at vulnerable parts of the body, namely the head and chest. Coupled with the medical evidence confirming severe head and chest injuries occasioned by blunt force trauma, I am satisfied that the manner in which the assault was executed demonstrates a clear intention on the part of the accused either to cause death or grievous harm to the deceased.
29. I therefore find that the prosecution proved beyond reasonable doubt that the accused acted with malice aforethought within the meaning of Section 206(a) of the Penal Code.
30. Having carefully analysed the entire evidence on record, I am satisfied that the prosecution proved beyond reasonable doubt that it was the accused person who unlawfully assaulted the deceased thereby causing the fatal injuries from which the deceased died.
31. Consequently, I find the accused person, Joseph Momanyi Nyakaba alias Boi, guilty of the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code and I accordingly convict him.