REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL CASE NO. E022 OF 2023 ( MURDER)
REPUBLIC……………………..…………………….……..PROSECUTOR
VERSUS
PETER MASIKA WEKESA
ALIAS DENNIS KUNDU ALIAS DENNO……..............….ACCUSED
JUDGMENT
Peter Masika Wekesa alias Dennis Kundu alias Deno ( the accused) is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are; on the 5 th day of May 2022 at Chwele Market in Bungoma Central Sub-county within Bungoma Central County murdered Stephen Wafula Kalibo.
The accused denied the offence. The prosecution called eleven (11) witnesses to prove their case.
PROSECUTION CASE
George Makona Maindi (Pw1), testified that on the 5 th May 2022 at 6.00pm they were at the Posta stage in Chwele area. He is a boda boda rider. He knows the accused person, he is from within their area. The accused came carrying campaign posters he was distributing. They asked him for Ruto’s posters and he kept quiet. The deceased, Stephen, requested a poster from the accused. The accused approached the deceased, held him, and hit the deceased on the head with his forehead. He went where they were to separate them. On reaching them, Deno, the accused, removed a knife and stabbed the deceased in the stomach. The accused threatened them using the knife, telling them that if anyone went near him, the person would die. The accused left in a boda boda thereafter. The deceased later died. During cross-examination, Pw1 told the court that he knew the accused as Dennis Kundu. The accused was giving people posters. The persons he did not provide posters to did not abuse the accused. The deceased had no intention of fighting the accused. He saw Graham trying to separate the accused and the deceased. Aggrey Wafula was also at the stage. The deceased did not have a knife. The deceased did not want to stab the accused. The deceased cried that he was in pain. He did not call Deno’s name.
Doctor Eric Kiplimo Kosgei (Pw2) testified that on the 19 th May 2022, he performed a post-mortem on the body of Stephen Wafula. The deceased had a stab wound on the left side of the stomach and he had been stitched. He had been operated on the chest, and a tube had been inserted in his chest. He formed the opinion that the cause of death was from respiratory arrest and haemorrhage shock. The stab wound was a recent one.
Aggrey Wafula Wekesa, Pw3, testified that on 5th May 2022, he was at the Chwele market stage. At 6:00 pm, he saw Deno (the accused) distributing posters. Stephen (the deceased) asked the accused for a poster, but Deno did not stop. Then Steve told the accused that if he refused, he could leave with them. Deno returned. Shortly after, he heard people shouting, and he saw Steve on the ground. Steve said he had been stabbed. The accused had already run away by then. Steve was bleeding heavily. He rushed Steve to hospital. He did not witness the fight. He heard the deceased say that Deno had stabbed him. During cross-examination, he told the court he did not see the accused stab the deceased, nor did he hear that the deceased intended to stab the accused. He saw the deceased lying down and still talking. As boda boda riders, they do not carry knives for protection. The accused was at the stage at that time and was not looking after cows elsewhere.
Graham Wangila Wanyama ( Pw4) testified that on the 5 th May 2022 he was at the boda boda stage. He knows the accused person. The accused had posters. His colleague, the deceased, asked the accused for a poster. Someone said, “You have refused with your posters, are you going to eat them?”. The accused gave the posters to another person, and then he went where the deceased was and started giving him blows. The accused stabbed the deceased. The fight was over a poster. He tried to separate them. The accused stabbed him in the left arm. He was told by the people there that the accused is called Dennis Kundu. The accused left on a motorbike. During cross-examination, he told the court that the accused and the deceased were fighting, giving each other blows. He did not hear the deceased mention Dennis's name. Aggrey took the deceased to the hospital. He saw Dennis stab the deceased once. He did not hear the deceased abuse the accused.
No.78066 Cpl Johana Tanui ( Pw5) testified that he was asked to process photos from a disc given to him by P. C Mulonge of DCI Chwele. He processed five photographs, P exhibits 1 (a) to ( e). He did not take the photos he only processed them.
Joseph Matongiwa Mabonga (Pw6) testified that the deceased was a boda boda rider. On 5th May 2022, between 3.00 pm and 4.00 pm, they were given posters to distribute. On his way to get more posters, he met Dennis Kundu, who asked him for some posters to distribute. Around 5.30 pm to 6.30 pm, he heard people say they were putting up posters, yet their people were stabbing people with knives. They went to Chwele Market, and they were told Dennis had stabbed someone. The deceased was not present, nor was the accused. Steve later died.
P.C Edward Mulongo (Pw7) testified he is the investigating officer. On 14.5.2022, he was assigned this case to investigate. A report had been made at Chwele police station that Stephen Makona Kalibo had been attacked by one Dennis Kundu and that he had succumbed to the injuries whilst being treated at Bungoma Referral Hospital. He sought to have the deceased’s medical notes through a court, as the case had earlier been reported as an assault. On the 19.5. 2022 a post mortem was done and on the 6 th he forwarded the photos to the scenes of crime for processing. He recorded the statement Pw4 Graham Wangila who had been injured, together with other statements. During his investigations, he sent requests on mobile numbers which were being used by the accused, mobile numbers 0751973477 and 0788735846. Out of the investigation, the accused was traced in Laikipia, and he was arrested on 16.6.2023 by officers in Nyahururu County. On being arrested the accused had an identity card No. 27605507 bearing the names Peter Masika Wekesa. He knew the accused as Dennis Kundu. The accused used to visit their police station as a person seeking services. He also lived near the DCI’s offices. He knew the accused from 2020 to 2022.
No. 14126 NPR Richard Murage (Pw8), is attached to Weumeririe Police Station. He testified that on 16.6.2023, they were called by Inspector Mumina and informed that there was a person called Dennis alias Simiyu alias Waingo who DCI Nyahururu was looking for. He was with his colleague Patrick Nayagah. They knew the person, he is the accused. They found the accused at Kona Mbaya shopping centre and arrested him. The accused was very violent at the time of his arrest. They accompanied the accused to where he was working, and on searching his place, they found an identity card bearing the name Dennis Kundu.
No. 14049R Patrick Nyagah (Pw9)testified that on the 16 th June 2023, he was at his business at Kona Mbaya Centre. He got a call from the Inspector of the police post. She introduced them to the police from Nyahururu, who told them that they were looking for a suspect called Waingo Wekesa Simiyu. He had interacted with him at the Centre. He was with Pw8. They found the accused standing near his place of business and they arrested him. They escorted the accused to the home he was guarding and recovered an ID card bearing the names Dennis Kundu. The DCI officer took the ID card.
No. 57067 Cpl Daniel Chacha , Pw10, testified that on the 5 th May 2022 he was at Chwele police station. He received a report from George Makona that Dennis Kundu had stabbed Stephen in the stomach. On the 13 th May 2022 he was informed by OCS Mutwala that Stephen had died. He handed over the matter to the DCIO as it was no longer a serious assault case but murder. Dennis Kundu was a person he knew before as he used to go to their police camp. He had known him for one year.
Doctor David Wanikina (Pw11) testified that he is the Medical Superintendent at Bungoma Referral Hospital. He produced the medical records of Stephen Wafula Kalicho, who was received in their hospital at 8.05 pm with a history of penetrating abdominal injury following a stab wound. He was referred to the hospital so that they could do imaging and a general surgeon to review him. On the general exam, he was sick-looking and unstable. They did a fast ultrasound which was positive with minimal fluid in the left peritoneal cavity. There was blood in the abdomen and chest. The surgical team found a penetrating abdominal injury within the haemothorax and blood in the chest. The surgery was done on the 6 th of May, 2022. The intraoperative findings revealed penetration of the right lower costal wound. In the theatre, they inserted a chest tube, and the stab wound was repaired. He was still unstable after the operation done on the 6 th, and the patient was referred to Moi Teaching Referral Hospital. There was no space at the said hospital, and the patient died on the 13 th May 2022 as a result of penetrating abdominal and chest injuries following a stab wound. During cross-examination, he denied that the deceased died as a result of mismanagement.
DEFENCE CASE
The accused gave a sworn statement. He testified that his name is Peter Masika Wekesa, ID Card No. 27645007. He stated that he did not kill anyone on 5th May 2022. On that day, he was at home because his father-in-law had died. His wife had left him with the child. After the burial, he did not go anywhere. He was arrested in Laikipia on 16th June 2023. He had been working in Laikipia since 2020. Police arrived with three people. The third person was handcuffed. They asked him where he was from. He said he was from Bungoma. The other person, who was also handcuffed, told him he was from Kitale. He was also Luhya. He gave them his ID card and was arrested. He asked who would look after the home, and they led him away. He was told he would be taken to his house. He was brought to the OCS Chwele police station, who asked his name. He said his name was Peter Wekesa. The OCS told him he was Dennis. He was shocked. He has never killed anyone. He is not Deno. He knows nothing about the campaign. He saw the investigating officer here in court, but he does not know him and he does not work with him.
The prosecution and defence submitted written submissions. The prosecution asserted that their case has been proven beyond a reasonable doubt, as all elements of murder have been established, including both the death of the deceased and the cause of death. Through prosecution witnesses, they demonstrated that the accused murdered the deceased, with the motive stemming from disagreements over campaign posters. Pw1 and Pw4 witnessed the stabbing in broad daylight and recognised the accused as Deno, with identification made through recognition. The accused went missing from his home and was arrested in Laikipia by Pw8 and Pw9, police officers who were familiar with him. Pw10, who knew the accused, testified that the accused disappeared after the murder. The defence's claim that there was confusion after two Luhyas were arrested is without evidential basis and must be rejected. Regarding malice aforethought, it was submitted that the accused's act of stabbing the deceased indicates that he had malice aforethought. Concerning the accused’s defence, it was argued that it constituted merely a denial and should be dismissed by the court. The accused’s defence did not reasonably challenge the evidence provided by Pw1 and Pw4, who witnessed the accused stab the deceased. The prosecution presented overwhelming evidence against the accused.
The defence submitted that the circumstances leading to the arrest of the accused involved two Luhya men apprehended in Laikipia, one of whom, the accused, was mistakenly detained, taken to Chwele, and charged with an offence he did not commit. No identification parade was conducted to recognise the accused, and the witnesses identified him in court as he was the only one in the dock. The witnesses who testified that they knew the accused were strangers to him, and the absence of an identification parade raises doubt. Since the witnesses identified the accused using different names, conducting an identification parade would have been appropriate. The defence further submitted that the arresting officers recovered an ID card for Dennis Kundu, and the investigating officer another ID card for Peter Masika Wekesa. Counsel wondered why the charge sheet initially referred to Dennis Kundu as the first charge, and when the case proceeded to almost the last witness, the prosecution amended it and added Peter Masika Wekesa, despite the investigating officer having two ID cards. It was submitted that the accused was a victim of circumstances. It is possible that the accused person may be innocent and that the court should recognise that the glaring issues in the prosecution's case raise doubt.
ANAYLSIS AND DETERMINATION
Section 203 defines the offence of murder. It requires proof of the following elements beyond reasonable doubt to establish the offence of murder: proof of death, the cause of that death, that the death resulted from an unlawful act or omission, that the unlawful act or omission was committed by the accused, and that there was malice aforethought.
The first issue is the proof and cause of death. Pw7, the investigating officer, informed the court that a post-mortem on the body of the deceased was conducted on 19th May 2022. Pw1, George Makona Maindi, and one Noah Wanyonyi Kalibo attended the post-mortem on 19th May 2022. According to Pw2 who performed the post-mortem, the deceased had a stab wound on the left side of the stomach, and his opinion was that the cause of death was respiratory arrest and haemorrhage shock. The death and its cause was established.
The next issue is whether the unlawful death of the deceased was caused by the accused. The deceased died as a result of a stab wound. How did the deceased sustain the said stab wound? The Prosecution called witnesses who testified that on the 5 th May 2022 at 6.00 pm, they were with the deceased around Chwele area. Pw1 testified that the accused, whom he knew as Dennis Kundu or Deno, was a disturbing posters. Pw1 saw the accused hit the deceased on the forehead and stab the deceased. The accused threatened to knife them. Pw3 testified that he was also at the stage with the deceased. He heard the deceased ask Deno for a poster, and shortly thereafter, he saw the accused run away. The deceased was down bleeding, and he rushed the deceased to the hospital. He heard the deceased say Deno had stabbed him. Pw4 testified that after the deceased asked for a poster, the accused and deceased exchanged blows, and then the accused stabbed the deceased. The accused stabbed him in the left arm. He saw the accused leave using a motorbike. Pw6 saw the accused between 3:00 and 4:00 pm on the material day. The accused met him and asked for posters to distribute. He gave the accused posters to distribute. Later, he was told that Dennis stabbed the deceased. These witnesses testified that the accused person was a person they knew very well. They knew him as Dennis Kundu or Deno. They each testified that the accused was in the area where the deceased was stabbed. Pw1 and Pw3 saw the accused stab the deceased. The defence has submitted that the police should have conducted an identification parade.
In the case of Mungania & 2 others v Republic & 2 others (Criminal Appeal 21 of 2020 & E003 & E068 of 2021 (Consolidated)) [2022] KEHC 167 (KLR) Justice Mativo ( as he then was ) stated as follows on the subject of identification ;
To determine whether identification is truthful, that is, not deliberately false, the court must evaluate the believability of the witness who made an identification. In doing so, the court may consider the various factors for evaluating the believability of a witness's testimony. Regarding whether the identification is accurate, that is, not an honest mistake, the court must evaluate the witness's intelligence, and capacity for observation, reasoning and memory, and be satisfied that the witness is a reliable witness who had the ability to observe and remember the person in question. Further, the accuracy of a witness's testimony identifying a person also depends on the opportunity the witness had to observe and remember that person, and whether the victim knew the accused before.”( Emphasis mine)
The prosecution witnesses testified that the accused was a person they were familiar with previously. They identified him by means of recognition. The prosecution witnesses were consistent, reliable, and truthful. Each was able to identify the accused as someone they knew well. He lived in Bungoma, and they saw him in the area. None of these witnesses harboured any grudges against the accused. The incident occurred at 6.00 pm in broad daylight. Additionally, there was evidence from Pw7, the investigating officer, who stated that he knew the accused and that the accused would visit their police station seeking assistance. The accused resided near the DCI’s offices and had known him from 2020 to 2022. Pw10 was also familiar with the accused. Therefore, the accused was a resident of Bungoma and not Laikipia, as he claimed. In my opinion, an identification parade was unnecessary under the circumstances. Identification parades are intended to assess the accuracy of a witness’s identification of a suspect. In this case, the witnesses were well-acquainted with the accused, and they saw him stab the deceased. Regarding the issue of different names, each witness stated the name by which they knew the accused. At the time of his arrest, he possessed an identification card bearing the names with which he was first charged in the initial information dated 27th June 2023. The prosecution made an application to amend the information to include the alias names Dennis Kundu alias Deno. This application was not challenged by the defence. The accused was given an opportunity to recall any of the witnesses and he chose not to.
The accused has raised a defence that he did not kill the deceased and that he was arrested for being a Luhya in Laikipia, where he was working. His counsel has also brought up the issue that two individuals were arrested, and that it is possible the other person was Deno. I find this defence to be an afterthought, and it does not challenge the evidence presented by the prosecution in any way. He admitted to being in Bungoma on 5 May 2022. His conduct during the arrest was quite revealing. Pw8 and Pw9 testified that he was very violent. He must have known the reason for his arrest. I am not convinced that the accused is a victim of circumstances. Identification was based on recognition and not dock identification. The prosecution witnesses were present at Chwele market on 5 May 2022, and each testified on what they saw, the accused was a person well-known to each one of them. Their evidence sufficiently placed the accused at the scene. I find that the prosecution has proven that the accused person stabbed the deceased on 5 May 2022 and that the deceased succumbed to those injuries.
On whether there was malice aforethought on the part of the accused, Section 206 of the Penal Code defines Malice aforethought as follows:
“206. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony .”
The Court of Appeal in the case of Joseph Kimani Njau v R (2014) eKLR, held as follows:
“Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual subject;
i) The intention to cause death;
ii) The intention to cause grievous bodily harm;
iii) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.
It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed……”
Pw2, who carried out the post-mortem on the deceased’s body, testified that the cause of death was respiratory arrest and haemorrhage shock. The deceased had a stab wound. The accused must have intended to cause the deceased grievous harm or death. I am persuaded that the prosecution also proved this limb of the presence of malice aforethought on the part of the accused.
In conclusion, I find that the prosecution has proven beyond reasonable doubt a case of murder against the accused, Peter Masika Wekesa, alias Dennis Kundu, alias Deno. I find the accused guilty of the charge of murder and convict him accordingly.
Dated, signed and delivered at Bungoma this 12 th day of June 2025.
R.E.OUGO
JUDGE
In the presence of:
Peter Masika Wekesa alias Dennis Kundu alias Deno
Miss Matere -For the State
Mr. Wattangah -For the Accused
Wilkister - C/A
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL CASE NO. E022 OF 2023 ( MURDER)
REPUBLIC……………………..…………………….……..PROSECUTOR
VERSUS
PETER MASIKA WEKESA
ALIAS DENNIS KUNDU ALIAS DENNO……..............….ACCUSED
JUDGMENT
Peter Masika Wekesa alias Dennis Kundu alias Deno ( the accused) is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are; on the 5 th day of May 2022 at Chwele Market in Bungoma Central Sub-county within Bungoma Central County murdered Stephen Wafula Kalibo.
The accused denied the offence. The prosecution called eleven (11) witnesses to prove their case.
PROSECUTION CASE
George Makona Maindi (Pw1), testified that on the 5 th May 2022 at 6.00pm they were at the Posta stage in Chwele area. He is a boda boda rider. He knows the accused person, he is from within their area. The accused came carrying campaign posters he was distributing. They asked him for Ruto’s posters and he kept quiet. The deceased, Stephen, requested a poster from the accused. The accused approached the deceased, held him, and hit the deceased on the head with his forehead. He went where they were to separate them. On reaching them, Deno, the accused, removed a knife and stabbed the deceased in the stomach. The accused threatened them using the knife, telling them that if anyone went near him, the person would die. The accused left in a boda boda thereafter. The deceased later died. During cross-examination, Pw1 told the court that he knew the accused as Dennis Kundu. The accused was giving people posters. The persons he did not provide posters to did not abuse the accused. The deceased had no intention of fighting the accused. He saw Graham trying to separate the accused and the deceased. Aggrey Wafula was also at the stage. The deceased did not have a knife. The deceased did not want to stab the accused. The deceased cried that he was in pain. He did not call Deno’s name.
Doctor Eric Kiplimo Kosgei (Pw2) testified that on the 19 th May 2022, he performed a post-mortem on the body of Stephen Wafula. The deceased had a stab wound on the left side of the stomach and he had been stitched. He had been operated on the chest, and a tube had been inserted in his chest. He formed the opinion that the cause of death was from respiratory arrest and haemorrhage shock. The stab wound was a recent one.
Aggrey Wafula Wekesa, Pw3, testified that on 5th May 2022, he was at the Chwele market stage. At 6:00 pm, he saw Deno (the accused) distributing posters. Stephen (the deceased) asked the accused for a poster, but Deno did not stop. Then Steve told the accused that if he refused, he could leave with them. Deno returned. Shortly after, he heard people shouting, and he saw Steve on the ground. Steve said he had been stabbed. The accused had already run away by then. Steve was bleeding heavily. He rushed Steve to hospital. He did not witness the fight. He heard the deceased say that Deno had stabbed him. During cross-examination, he told the court he did not see the accused stab the deceased, nor did he hear that the deceased intended to stab the accused. He saw the deceased lying down and still talking. As boda boda riders, they do not carry knives for protection. The accused was at the stage at that time and was not looking after cows elsewhere.
Graham Wangila Wanyama ( Pw4) testified that on the 5 th May 2022 he was at the boda boda stage. He knows the accused person. The accused had posters. His colleague, the deceased, asked the accused for a poster. Someone said, “You have refused with your posters, are you going to eat them?”. The accused gave the posters to another person, and then he went where the deceased was and started giving him blows. The accused stabbed the deceased. The fight was over a poster. He tried to separate them. The accused stabbed him in the left arm. He was told by the people there that the accused is called Dennis Kundu. The accused left on a motorbike. During cross-examination, he told the court that the accused and the deceased were fighting, giving each other blows. He did not hear the deceased mention Dennis's name. Aggrey took the deceased to the hospital. He saw Dennis stab the deceased once. He did not hear the deceased abuse the accused.
No.78066 Cpl Johana Tanui ( Pw5) testified that he was asked to process photos from a disc given to him by P. C Mulonge of DCI Chwele. He processed five photographs, P exhibits 1 (a) to ( e). He did not take the photos he only processed them.
Joseph Matongiwa Mabonga (Pw6) testified that the deceased was a boda boda rider. On 5th May 2022, between 3.00 pm and 4.00 pm, they were given posters to distribute. On his way to get more posters, he met Dennis Kundu, who asked him for some posters to distribute. Around 5.30 pm to 6.30 pm, he heard people say they were putting up posters, yet their people were stabbing people with knives. They went to Chwele Market, and they were told Dennis had stabbed someone. The deceased was not present, nor was the accused. Steve later died.
P.C Edward Mulongo (Pw7) testified he is the investigating officer. On 14.5.2022, he was assigned this case to investigate. A report had been made at Chwele police station that Stephen Makona Kalibo had been attacked by one Dennis Kundu and that he had succumbed to the injuries whilst being treated at Bungoma Referral Hospital. He sought to have the deceased’s medical notes through a court, as the case had earlier been reported as an assault. On the 19.5. 2022 a post mortem was done and on the 6 th he forwarded the photos to the scenes of crime for processing. He recorded the statement Pw4 Graham Wangila who had been injured, together with other statements. During his investigations, he sent requests on mobile numbers which were being used by the accused, mobile numbers 0751973477 and 0788735846. Out of the investigation, the accused was traced in Laikipia, and he was arrested on 16.6.2023 by officers in Nyahururu County. On being arrested the accused had an identity card No. 27605507 bearing the names Peter Masika Wekesa. He knew the accused as Dennis Kundu. The accused used to visit their police station as a person seeking services. He also lived near the DCI’s offices. He knew the accused from 2020 to 2022.
No. 14126 NPR Richard Murage (Pw8), is attached to Weumeririe Police Station. He testified that on 16.6.2023, they were called by Inspector Mumina and informed that there was a person called Dennis alias Simiyu alias Waingo who DCI Nyahururu was looking for. He was with his colleague Patrick Nayagah. They knew the person, he is the accused. They found the accused at Kona Mbaya shopping centre and arrested him. The accused was very violent at the time of his arrest. They accompanied the accused to where he was working, and on searching his place, they found an identity card bearing the name Dennis Kundu.
No. 14049R Patrick Nyagah (Pw9)testified that on the 16 th June 2023, he was at his business at Kona Mbaya Centre. He got a call from the Inspector of the police post. She introduced them to the police from Nyahururu, who told them that they were looking for a suspect called Waingo Wekesa Simiyu. He had interacted with him at the Centre. He was with Pw8. They found the accused standing near his place of business and they arrested him. They escorted the accused to the home he was guarding and recovered an ID card bearing the names Dennis Kundu. The DCI officer took the ID card.
No. 57067 Cpl Daniel Chacha , Pw10, testified that on the 5 th May 2022 he was at Chwele police station. He received a report from George Makona that Dennis Kundu had stabbed Stephen in the stomach. On the 13 th May 2022 he was informed by OCS Mutwala that Stephen had died. He handed over the matter to the DCIO as it was no longer a serious assault case but murder. Dennis Kundu was a person he knew before as he used to go to their police camp. He had known him for one year.
Doctor David Wanikina (Pw11) testified that he is the Medical Superintendent at Bungoma Referral Hospital. He produced the medical records of Stephen Wafula Kalicho, who was received in their hospital at 8.05 pm with a history of penetrating abdominal injury following a stab wound. He was referred to the hospital so that they could do imaging and a general surgeon to review him. On the general exam, he was sick-looking and unstable. They did a fast ultrasound which was positive with minimal fluid in the left peritoneal cavity. There was blood in the abdomen and chest. The surgical team found a penetrating abdominal injury within the haemothorax and blood in the chest. The surgery was done on the 6 th of May, 2022. The intraoperative findings revealed penetration of the right lower costal wound. In the theatre, they inserted a chest tube, and the stab wound was repaired. He was still unstable after the operation done on the 6 th, and the patient was referred to Moi Teaching Referral Hospital. There was no space at the said hospital, and the patient died on the 13 th May 2022 as a result of penetrating abdominal and chest injuries following a stab wound. During cross-examination, he denied that the deceased died as a result of mismanagement.
DEFENCE CASE
The accused gave a sworn statement. He testified that his name is Peter Masika Wekesa, ID Card No. 27645007. He stated that he did not kill anyone on 5th May 2022. On that day, he was at home because his father-in-law had died. His wife had left him with the child. After the burial, he did not go anywhere. He was arrested in Laikipia on 16th June 2023. He had been working in Laikipia since 2020. Police arrived with three people. The third person was handcuffed. They asked him where he was from. He said he was from Bungoma. The other person, who was also handcuffed, told him he was from Kitale. He was also Luhya. He gave them his ID card and was arrested. He asked who would look after the home, and they led him away. He was told he would be taken to his house. He was brought to the OCS Chwele police station, who asked his name. He said his name was Peter Wekesa. The OCS told him he was Dennis. He was shocked. He has never killed anyone. He is not Deno. He knows nothing about the campaign. He saw the investigating officer here in court, but he does not know him and he does not work with him.
The prosecution and defence submitted written submissions. The prosecution asserted that their case has been proven beyond a reasonable doubt, as all elements of murder have been established, including both the death of the deceased and the cause of death. Through prosecution witnesses, they demonstrated that the accused murdered the deceased, with the motive stemming from disagreements over campaign posters. Pw1 and Pw4 witnessed the stabbing in broad daylight and recognised the accused as Deno, with identification made through recognition. The accused went missing from his home and was arrested in Laikipia by Pw8 and Pw9, police officers who were familiar with him. Pw10, who knew the accused, testified that the accused disappeared after the murder. The defence's claim that there was confusion after two Luhyas were arrested is without evidential basis and must be rejected. Regarding malice aforethought, it was submitted that the accused's act of stabbing the deceased indicates that he had malice aforethought. Concerning the accused’s defence, it was argued that it constituted merely a denial and should be dismissed by the court. The accused’s defence did not reasonably challenge the evidence provided by Pw1 and Pw4, who witnessed the accused stab the deceased. The prosecution presented overwhelming evidence against the accused.
The defence submitted that the circumstances leading to the arrest of the accused involved two Luhya men apprehended in Laikipia, one of whom, the accused, was mistakenly detained, taken to Chwele, and charged with an offence he did not commit. No identification parade was conducted to recognise the accused, and the witnesses identified him in court as he was the only one in the dock. The witnesses who testified that they knew the accused were strangers to him, and the absence of an identification parade raises doubt. Since the witnesses identified the accused using different names, conducting an identification parade would have been appropriate. The defence further submitted that the arresting officers recovered an ID card for Dennis Kundu, and the investigating officer another ID card for Peter Masika Wekesa. Counsel wondered why the charge sheet initially referred to Dennis Kundu as the first charge, and when the case proceeded to almost the last witness, the prosecution amended it and added Peter Masika Wekesa, despite the investigating officer having two ID cards. It was submitted that the accused was a victim of circumstances. It is possible that the accused person may be innocent and that the court should recognise that the glaring issues in the prosecution's case raise doubt.
ANAYLSIS AND DETERMINATION
Section 203 defines the offence of murder. It requires proof of the following elements beyond reasonable doubt to establish the offence of murder: proof of death, the cause of that death, that the death resulted from an unlawful act or omission, that the unlawful act or omission was committed by the accused, and that there was malice aforethought.
The first issue is the proof and cause of death. Pw7, the investigating officer, informed the court that a post-mortem on the body of the deceased was conducted on 19th May 2022. Pw1, George Makona Maindi, and one Noah Wanyonyi Kalibo attended the post-mortem on 19th May 2022. According to Pw2 who performed the post-mortem, the deceased had a stab wound on the left side of the stomach, and his opinion was that the cause of death was respiratory arrest and haemorrhage shock. The death and its cause was established.
The next issue is whether the unlawful death of the deceased was caused by the accused. The deceased died as a result of a stab wound. How did the deceased sustain the said stab wound? The Prosecution called witnesses who testified that on the 5 th May 2022 at 6.00 pm, they were with the deceased around Chwele area. Pw1 testified that the accused, whom he knew as Dennis Kundu or Deno, was a disturbing posters. Pw1 saw the accused hit the deceased on the forehead and stab the deceased. The accused threatened to knife them. Pw3 testified that he was also at the stage with the deceased. He heard the deceased ask Deno for a poster, and shortly thereafter, he saw the accused run away. The deceased was down bleeding, and he rushed the deceased to the hospital. He heard the deceased say Deno had stabbed him. Pw4 testified that after the deceased asked for a poster, the accused and deceased exchanged blows, and then the accused stabbed the deceased. The accused stabbed him in the left arm. He saw the accused leave using a motorbike. Pw6 saw the accused between 3:00 and 4:00 pm on the material day. The accused met him and asked for posters to distribute. He gave the accused posters to distribute. Later, he was told that Dennis stabbed the deceased. These witnesses testified that the accused person was a person they knew very well. They knew him as Dennis Kundu or Deno. They each testified that the accused was in the area where the deceased was stabbed. Pw1 and Pw3 saw the accused stab the deceased. The defence has submitted that the police should have conducted an identification parade.
In the case of Mungania & 2 others v Republic & 2 others (Criminal Appeal 21 of 2020 & E003 & E068 of 2021 (Consolidated)) [2022] KEHC 167 (KLR) Justice Mativo ( as he then was ) stated as follows on the subject of identification ;
To determine whether identification is truthful, that is, not deliberately false, the court must evaluate the believability of the witness who made an identification. In doing so, the court may consider the various factors for evaluating the believability of a witness's testimony. Regarding whether the identification is accurate, that is, not an honest mistake, the court must evaluate the witness's intelligence, and capacity for observation, reasoning and memory, and be satisfied that the witness is a reliable witness who had the ability to observe and remember the person in question. Further, the accuracy of a witness's testimony identifying a person also depends on the opportunity the witness had to observe and remember that person, and whether the victim knew the accused before.”( Emphasis mine)
The prosecution witnesses testified that the accused was a person they were familiar with previously. They identified him by means of recognition. The prosecution witnesses were consistent, reliable, and truthful. Each was able to identify the accused as someone they knew well. He lived in Bungoma, and they saw him in the area. None of these witnesses harboured any grudges against the accused. The incident occurred at 6.00 pm in broad daylight. Additionally, there was evidence from Pw7, the investigating officer, who stated that he knew the accused and that the accused would visit their police station seeking assistance. The accused resided near the DCI’s offices and had known him from 2020 to 2022. Pw10 was also familiar with the accused. Therefore, the accused was a resident of Bungoma and not Laikipia, as he claimed. In my opinion, an identification parade was unnecessary under the circumstances. Identification parades are intended to assess the accuracy of a witness’s identification of a suspect. In this case, the witnesses were well-acquainted with the accused, and they saw him stab the deceased. Regarding the issue of different names, each witness stated the name by which they knew the accused. At the time of his arrest, he possessed an identification card bearing the names with which he was first charged in the initial information dated 27th June 2023. The prosecution made an application to amend the information to include the alias names Dennis Kundu alias Deno. This application was not challenged by the defence. The accused was given an opportunity to recall any of the witnesses and he chose not to.
The accused has raised a defence that he did not kill the deceased and that he was arrested for being a Luhya in Laikipia, where he was working. His counsel has also brought up the issue that two individuals were arrested, and that it is possible the other person was Deno. I find this defence to be an afterthought, and it does not challenge the evidence presented by the prosecution in any way. He admitted to being in Bungoma on 5 May 2022. His conduct during the arrest was quite revealing. Pw8 and Pw9 testified that he was very violent. He must have known the reason for his arrest. I am not convinced that the accused is a victim of circumstances. Identification was based on recognition and not dock identification. The prosecution witnesses were present at Chwele market on 5 May 2022, and each testified on what they saw, the accused was a person well-known to each one of them. Their evidence sufficiently placed the accused at the scene. I find that the prosecution has proven that the accused person stabbed the deceased on 5 May 2022 and that the deceased succumbed to those injuries.
On whether there was malice aforethought on the part of the accused, Section 206 of the Penal Code defines Malice aforethought as follows:
“206. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony .”
The Court of Appeal in the case of Joseph Kimani Njau v R (2014) eKLR, held as follows:
“Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual subject;
i) The intention to cause death;
ii) The intention to cause grievous bodily harm;
iii) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.
It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed……”
Pw2, who carried out the post-mortem on the deceased’s body, testified that the cause of death was respiratory arrest and haemorrhage shock. The deceased had a stab wound. The accused must have intended to cause the deceased grievous harm or death. I am persuaded that the prosecution also proved this limb of the presence of malice aforethought on the part of the accused.
In conclusion, I find that the prosecution has proven beyond reasonable doubt a case of murder against the accused, Peter Masika Wekesa, alias Dennis Kundu, alias Deno. I find the accused guilty of the charge of murder and convict him accordingly.
Dated, signed and delivered at Bungoma this 12 th day of June 2025.
R.E.OUGO
JUDGE
In the presence of:
Peter Masika Wekesa alias Dennis Kundu alias Deno
Miss Matere -For the State
Mr. Wattangah -For the Accused
Wilkister - C/A