JUDGMENT
Introduction
1. The accused persons herein were jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence allege that on the 19th day of December 2020, at Rikenye sub-location, Mwakibagendi Location within Marani sub-county in Kisii County, they murdered Alex Gichana Nyamora (the deceased).
2. The accused persons pleaded not guilty. The prosecution called six (6) witnesses. Upon being placed on their defence, each accused person gave sworn testimony and called no additional witnesses.
3. This court is now called upon to determine whether the prosecution has proved the charge of murder against the accused persons beyond reasonable doubt.
Issues for Determination
4. The issues that arise for determination are:
- a. Whether the death of the deceased and its cause were proved;
- b. Whether the prosecution proved that the accused persons committed an unlawful act or omission that caused the death of the deceased; and
- c. Whether malice aforethought on the part of the accused persons was established.
Applicable Law
5. Section 203 of the Penal Code defines murder as the unlawful killing of a person with malice aforethought. For a conviction to stand, the prosecution must prove the following elements beyond reasonable doubt:
- a. The fact and cause of death of the deceased;
- b. That the death was caused by an unlawful act or omission of the accused; and
- c. That the accused acted with malice aforethought as defined under section 206 of the Penal Code.
6. The burden of proof in murder cases lies with the prosecution and never shifts to the accused. This principle was long settled in Woolmington v DPP (1935) AC 462 and is entrenched in section 107(1) of the Evidence Act.
Analysis of Evidence
(a) Proof of Death and Cause of Death
7. The death of the deceased is not in dispute. A post-mortem report was produced indicating that the cause of death was asphyxia due to manual strangulation.
(b) Whether the Accused Caused the Death
8. PW1, Roseline Bwari, the mother of the deceased, was not present at the scene on the material day. Her testimony was based entirely on what she was told by third parties. She did not know the accused persons prior to this case.
9. PW2, Anthony Mokaya, testified as the brother of the deceased. His evidence revolved around an alleged confession by the 2nd accused made during a meeting arranged by family members before police intervention.
10. PW3, Duncan Mokaya Miruka, testified to having facilitated a meeting aimed at luring the accused persons under the pretext of forgiveness, after which the police arrested them.
11. PW4, Walter Mayaka, was not present at the alleged party and did not witness any assault or the finding of the deceased next to the road. He merely received a report from Accused No. 1 that a person had been found lying on the road next to his home.
12. PW5, Samuel N. Karanja (Investigating Officer), testified that the deceased was allegedly beaten in the home of Accused No. 1 after being suspected of theft.
Defence Case
13. Each accused person gave sworn evidence stating that on the material day, the 1st accused hosted a circumcision ceremony for his son, which was attended by the 2nd accused and many others.
14. They testified that they only learned of the deceased being found unconscious near the road the following morning and that the 1st accused reported the matter to the area chief, who in turn alerted the police.
15. The accused persons denied knowing the deceased prior to the incident and denied any involvement in his death. Their evidence remained largely unshaken on cross-examination.
16. Upon careful consideration of the prosecution's case and the defence, the evidence of PW1 was hearsay and of no probative value in establishing the participation of the accused persons in the alleged offence.
17. The evidence of PW2 and PW3 regarding the alleged “confession” by Accused No. 2 was not made in a manner prescribed by law. Section 25A (1) of the Evidence Act stipulates that a confession must be made in court before a judge, a magistrate, or a police officer not below the rank of Inspector, and in the presence of a third party of the person's choice. The purported confession was not made in accordance with this requirement.
18. The evidence of PW4 was derivative and based on information received from others. He did not place the accused persons at the scene of the crime nor link them to the death of the deceased in any direct manner.
19. PW5, the investigating officer, stated that the deceased was assaulted in the home of Accused No. 1 based on allegations of theft. However, the alleged stolen items were not produced, no murder weapon was recovered, and no forensic evidence linked the accused persons to the death.
20. The investigating officer did not call crucial witnesses, including persons last seen with the deceased and the children alleged to have accused the deceased of theft. There is no direct evidence linking any of the accused persons as the assailants of the deceased.
Circumstantial Evidence
21. On circumstantial evidence, it is well established that such evidence must exclude all reasonable hypotheses of innocence. In Republic v Kipkering Arap Koske & Another (1949) 16 EACA 135, it was held that the circumstances must be incompatible with innocence; they must irresistibly point to the accused and no one else.
22. Although the deceased was said to have attended the party in the home of Accused No. 1 a day before he was found unconscious, the defence maintains that they did not know the deceased and that they learned of his plight only upon him being found near the road. The party was attended by many people, yet no eyewitness was called to corroborate PW5's account that the deceased was assaulted in the home of Accused No. 1 for stealing.
23. The circumstances of this case weaken the inference of guilt of the accused due to gaps in the prosecution’s case. A possibility of another person being responsible for the death cannot be ruled out. The accused were not placed at the scene.
(c) Malice Aforethought
24. Malice aforethought is a crucial ingredient of the offence of murder. It is established that the act itself does not constitute an offence unless accompanied by a guilty mind. Malice aforethought is defined in Section 206 of the Penal Code as evidence proving any one or more of the following circumstances:
- a. An intention to cause death or grievous harm to any person;
- b. Knowledge that the act or omission causing death will probably cause death or grievous harm;
- c. An intent to commit a felony.
25. In the present case, there is no evidence that the accused persons knew the deceased, harbored any grudge against him, or had any motive to harm him. No prosecution witness testified to seeing the accused assault, strangle, or otherwise unlawfully harm the deceased. The evidence on record does not disclose any conduct from which malice aforethought can be inferred.
Determination
26. Upon careful evaluation of the totality of the evidence, this court finds that:
- a. Although the death of the deceased was proved,
- b. The court finds that the investigations were superficial and left critical gaps in the prosecution case.
27. There is no credible, direct, or circumstantial evidence placing the accused persons at the scene of the crime or linking them to the unlawful act that caused the death.
28. Mere suspicion, however strong, cannot be a basis for a criminal conviction, as held in Sawe v Republic [2003] KLR 364. The gaps, inconsistencies, and lack of corroboration in the prosecution's case create reasonable doubt that must be resolved in favor of the accused persons.
Conclusion and Orders
29. The evidence on record is insufficient to convict the accused persons of the charge of murder.
30. Accordingly, both accused persons are hereby found not guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and are acquitted under section 215 of the Criminal Procedure Code.
31. Security to be released to the depositors.
32. The accused are informed of their right to appeal within 14 days.
T.A. ODERA
JUDGE
17.02.26
Dated, Signed and delivered at Kisii this 17th day of February 2025 in the presence of:
The accused
Miss Nduhukire for the accused
Mr. Koima for the state, and court assistant Mr. Kipchirchir
Introduction
1. The accused persons herein were jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence allege that on the 19th day of December 2020, at Rikenye sub-location, Mwakibagendi Location within Marani sub-county in Kisii County, they murdered Alex Gichana Nyamora (the deceased).
2. The accused persons pleaded not guilty. The prosecution called six (6) witnesses. Upon being placed on their defence, each accused person gave sworn testimony and called no additional witnesses.
3. This court is now called upon to determine whether the prosecution has proved the charge of murder against the accused persons beyond reasonable doubt.
Issues for Determination
4. The issues that arise for determination are:
- a. Whether the death of the deceased and its cause were proved;
- b. Whether the prosecution proved that the accused persons committed an unlawful act or omission that caused the death of the deceased; and
- c. Whether malice aforethought on the part of the accused persons was established.
Applicable Law
5. Section 203 of the Penal Code defines murder as the unlawful killing of a person with malice aforethought. For a conviction to stand, the prosecution must prove the following elements beyond reasonable doubt:
- a. The fact and cause of death of the deceased;
- b. That the death was caused by an unlawful act or omission of the accused; and
- c. That the accused acted with malice aforethought as defined under section 206 of the Penal Code.
6. The burden of proof in murder cases lies with the prosecution and never shifts to the accused. This principle was long settled in Woolmington v DPP (1935) AC 462 and is entrenched in section 107(1) of the Evidence Act.
Analysis of Evidence
(a) Proof of Death and Cause of Death
7. The death of the deceased is not in dispute. A post-mortem report was produced indicating that the cause of death was asphyxia due to manual strangulation.
(b) Whether the Accused Caused the Death
8. PW1, Roseline Bwari, the mother of the deceased, was not present at the scene on the material day. Her testimony was based entirely on what she was told by third parties. She did not know the accused persons prior to this case.
9. PW2, Anthony Mokaya, testified as the brother of the deceased. His evidence revolved around an alleged confession by the 2nd accused made during a meeting arranged by family members before police intervention.
10. PW3, Duncan Mokaya Miruka, testified to having facilitated a meeting aimed at luring the accused persons under the pretext of forgiveness, after which the police arrested them.
11. PW4, Walter Mayaka, was not present at the alleged party and did not witness any assault or the finding of the deceased next to the road. He merely received a report from Accused No. 1 that a person had been found lying on the road next to his home.
12. PW5, Samuel N. Karanja (Investigating Officer), testified that the deceased was allegedly beaten in the home of Accused No. 1 after being suspected of theft.
Defence Case
13. Each accused person gave sworn evidence stating that on the material day, the 1st accused hosted a circumcision ceremony for his son, which was attended by the 2nd accused and many others.
14. They testified that they only learned of the deceased being found unconscious near the road the following morning and that the 1st accused reported the matter to the area chief, who in turn alerted the police.
15. The accused persons denied knowing the deceased prior to the incident and denied any involvement in his death. Their evidence remained largely unshaken on cross-examination.
16. Upon careful consideration of the prosecution's case and the defence, the evidence of PW1 was hearsay and of no probative value in establishing the participation of the accused persons in the alleged offence.
17. The evidence of PW2 and PW3 regarding the alleged “confession” by Accused No. 2 was not made in a manner prescribed by law. Section 25A (1) of the Evidence Act stipulates that a confession must be made in court before a judge, a magistrate, or a police officer not below the rank of Inspector, and in the presence of a third party of the person's choice. The purported confession was not made in accordance with this requirement.
18. The evidence of PW4 was derivative and based on information received from others. He did not place the accused persons at the scene of the crime nor link them to the death of the deceased in any direct manner.
19. PW5, the investigating officer, stated that the deceased was assaulted in the home of Accused No. 1 based on allegations of theft. However, the alleged stolen items were not produced, no murder weapon was recovered, and no forensic evidence linked the accused persons to the death.
20. The investigating officer did not call crucial witnesses, including persons last seen with the deceased and the children alleged to have accused the deceased of theft. There is no direct evidence linking any of the accused persons as the assailants of the deceased.
Circumstantial Evidence
21. On circumstantial evidence, it is well established that such evidence must exclude all reasonable hypotheses of innocence. In Republic v Kipkering Arap Koske & Another (1949) 16 EACA 135, it was held that the circumstances must be incompatible with innocence; they must irresistibly point to the accused and no one else.
22. Although the deceased was said to have attended the party in the home of Accused No. 1 a day before he was found unconscious, the defence maintains that they did not know the deceased and that they learned of his plight only upon him being found near the road. The party was attended by many people, yet no eyewitness was called to corroborate PW5's account that the deceased was assaulted in the home of Accused No. 1 for stealing.
23. The circumstances of this case weaken the inference of guilt of the accused due to gaps in the prosecution’s case. A possibility of another person being responsible for the death cannot be ruled out. The accused were not placed at the scene.
(c) Malice Aforethought
24. Malice aforethought is a crucial ingredient of the offence of murder. It is established that the act itself does not constitute an offence unless accompanied by a guilty mind. Malice aforethought is defined in Section 206 of the Penal Code as evidence proving any one or more of the following circumstances:
- a. An intention to cause death or grievous harm to any person;
- b. Knowledge that the act or omission causing death will probably cause death or grievous harm;
- c. An intent to commit a felony.
25. In the present case, there is no evidence that the accused persons knew the deceased, harbored any grudge against him, or had any motive to harm him. No prosecution witness testified to seeing the accused assault, strangle, or otherwise unlawfully harm the deceased. The evidence on record does not disclose any conduct from which malice aforethought can be inferred.
Determination
26. Upon careful evaluation of the totality of the evidence, this court finds that:
- a. Although the death of the deceased was proved,
- b. The court finds that the investigations were superficial and left critical gaps in the prosecution case.
27. There is no credible, direct, or circumstantial evidence placing the accused persons at the scene of the crime or linking them to the unlawful act that caused the death.
28. Mere suspicion, however strong, cannot be a basis for a criminal conviction, as held in Sawe v Republic [2003] KLR 364. The gaps, inconsistencies, and lack of corroboration in the prosecution's case create reasonable doubt that must be resolved in favor of the accused persons.
Conclusion and Orders
29. The evidence on record is insufficient to convict the accused persons of the charge of murder.
30. Accordingly, both accused persons are hereby found not guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and are acquitted under section 215 of the Criminal Procedure Code.
31. Security to be released to the depositors.
32. The accused are informed of their right to appeal within 14 days.
T.A. ODERA
JUDGE
17.02.26
Dated, Signed and delivered at Kisii this 17th day of February 2025 in the presence of:
The accused
Miss Nduhukire for the accused
Mr. Koima for the state, and court assistant Mr. Kipchirchir