REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL CASE NO E002 OF 2023( MURDER)
REPUBLIC……………………………….…..….………..PROSECUTOR
VERSUS
SHADDY KIPROTICH CHEPKONDOL
ALIAS SHADRACK …………………………………..……1ST ACCUSED
SAMMY KIBET MATEYA………………………….……..2ND ACCUSED
JUDGMENT
1. Shaddy Kiprotich Chepkondol Alias Shadrack, 1st accused and Sammy Kibet Mateya, 2nd accused are charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that; on the 22nd day of December 2022 at Kopsiro Model Health Centre in Kopsiro Sub-county within Bungoma County jointly with others not before the court murdered David Mungong Kiprotus alias David Sirwo.
2. The accused persons denied the offence and the prosecution called seven (7) witnesses. Pw1 ‘X’ was a witness under witness protection.
PROSECUTION CASE
3. Pw 1, “X”, testified that on 21.12.2023, they were at a circumcision ceremony until 5. 00am. As they left the ceremony, a girl called Dorcas came out, being chased by Abuid. She took cover behind Abel. Abel asked Abuid why he was chasing the girl. Abel and Abuid fought, and Abuid stabbed Abel in the right hip. They took Abel to the hospital. David held Abel at the front, and he was behind. They were on one motorcycle. They took Abel to the Kopsiro hospital. They found a doctor who told them to take Abel to Bungoma. He left David and ‘Doctor’ at the hospital to stay with Abel. On his way to Abel' s place to get money to take him to hospital, he met Shaddy and Sammy, and Sammy Ndiema, going to the hospital to check on Abel. Shaddy, Abel and Sammy are friends. The three were using one motorbike. They asked him how Abel was doing. Sammy Mateya took the motor bike which he had. He was on one motor bike with the two Sammy' s. The other motor bike carried Job and Shaddy. They proceeded to the hospital. They arrived ahead of Shaddy and Job. They found that Abel had died. They went outside. He was David. Shaddy and Job arrived. David asked Shaddy if they had found the person who stabbed Abel. Shaddy did not reply. Shaddy had a fimbo he began beating David. David ran out. Shaddy chased him. Sammy Mateya joined the fight. Sammy took out a knife and stabbed David at the right hip. Shaddy continued to beat David. He tried to separate them. David told him he had been stabbed. Shaddy and Sammy left. Shaddy and Samuel are persons he knows well. They do boda boda work. This incident happened between 8am and 9am. During cross- examination, Pw 1 told the court that Abel was stabbed at 5. 00am. David, too, was at the ceremony. David came as a good Samaritan to assist after Abel was stabbed. Abel was taken to hospital by ‘doctor’, a boda person. The fight began inside the hospital and David was stabbed inside the compound. The doctor and watchman were present. He held Shaddy and David fell, saying he had been stabbed. He has known Sammy for the past five years.
4. Doctor Graham Masika Makokha testified that he performed a post-mortem on the body of David Mungong Kiprotus on 27.12.2022. On external examination, the body had bruises on the lower lip, forehead and the secrarum area he had brusies of 4 cms. He also had a stab wound in the medial right thigh, 3 cms by 1 cm. There was also a stab wound on the lateral thigh, 5 cms from the hip joint, measuring 5 cms by 1 cm. The stab wound went through the thigh. The femoral vessels, both artery and vein, were severed. On internal examination, the respiratory, cardiovascular, genito-urinary, head and nervous systems were normal. The spinal column was intact. He formed the opinion that the cause of death was severe haemorrhage secondary to a stab wound by a sharp object that severed the femoral vein and artery. He took a specimen of nail clippings and grass from the deceased’s hand for further examination. He filed and signed the post-mortem form, Pext. 1.
5. David Kasi Masai (Pw3) testified that he was a security guard at Kopsiro Model Health Centre in December 2022. On 22.12.2022, he was on duty. Between about 5.00 am and 6.00 am, a patient was brought into the hospital by a boda boda. The rider told him that the patient had been stabbed in the thigh. The doctor administered first aid. The patient was bleeding heavily. The doctor informed him that the patient needed to be taken to the referral hospital. He then saw a motorbike enter with four (4) people. The patient had a caretaker. The four people attacked the caretaker. He told them not to fight in the hospital. They threw stones at him. He ran to seek help from the police and was given an officer from the DO’s place. When he returned, the people had left, and he found the caretaker had been killed. He did not know the people who attacked the caretaker and could not identify them. The caretaker was beaten with a fimbo, pext2. The place had little light, and it was not possible to identify anyone.
6. Tallan Titus (Pw4), a nurse at Kopsiro Model Health Centre, testified that on 22.12.2022 he was on duty. At 4.00am, he was called to attend to an emergency case. He found a person who had been stabbed and was bleeding. He could not attend to the wound. He asked the person with him to get money so that the injured person could be taken to a referral hospital. They left the person, who was bleeding heavily. Then 2 motor bikers arrived. Two of them entered the room and said the person had died. Shortly thereafter, a fight broke out. The fight was between the six who had come with the first person. He moved away. They fought for five minutes. The one who was stabbed woke up and ran to the police gate, and he was followed by the person who had a muffin on. The fight continued. David, who was stabbed. He did not identify the one who stabbed David. He was forced to write a statement. He did not tell the police that one of the people was called Shaddy. He saw the accused persons for the first time in court. During cross-examination, he testified that the fight took place around 5am to 6am and that David was stabbed at 6am.
7. Doctor Kimati Ngeiywo (Pw5) testified that on 21.12.22 he was at the home of Mzee Emmanuel for a celebration. He is a boda boda rider. He was called at 6am and told that people had fought. He knows the persons who fought. He found a boda boda rider, whom they used to call Kwemoi, beaten and stabbed with a knife. He took him to Kopsiro hospital. He left the person there with the boy he was with. He later learnt that Kwemoi had been murdered. During cross-examination, he told the court that he left Kwemoi being treated by the doctor. He does not know who stabbed David. The accused persons were not at the hospital.
8. Peter Kwemoi Tonoshio (Pw6) testified that on 21.12.2022 at 6.00am he was at his place. A circumcision ceremony was in progress. He later heard from Nyumba Kumi that a fight had occurred at Emmanuel’s place. He does not know who was injured or who died. He does not know the accused persons.
9. No. 77098 Cpl. Geoffrey Too (Pw7) of DCI Cheptais testified as follows. On 22.12.2022, he received word from the OCS Kopsiro that there were 2 bodies at Kopsiro Health Centre. P C John Karisa was the initial investigating officer. He was transferred to DCI Lunga Lunga. Together with his colleagues, he proceeded to the health centre. On arrival, he found many people. One body was outside the hospital and had injuries. They also found a rod, Pext 2, placed in a flower bed within the hospital. They found another body in the consultation room, which also had injuries. They took the bodies to Delight Hospital and recorded witness statements. The witnesses named the two accused persons. They were later arrested and charged. During cross-examination, Pw7 recalled that he was with P C Karisa when they went to the health centre. The bodies they found belonged to Abel and David. To date, the person who killed Abel has not been found. A witness told them that the attackers had the white rod as they chased the deceased. The rod was not taken for forensic examination. He wrote the statement of David Masai (Pw3). Shaddy was arrested in Uganda, and Sammy in Kopsiro.
DEFENCE CASE
10. Shaddy Kiprotich Chepkondol, the 1st Accused, gave a sworn statement in his defence. He currently stays in Uganda and previously lived in Mt. Elgon. It is a lie that they murdered David Sirwo. He does not know David Sirwo, nor does he know the 2nd accused who is in court. He did not know the 2nd accused before. In December 2022, he was in Uganda and was there on 21.12.2022. His parents died, and he stayed there with his uncle, his mother’s brother. He learnt of the death of David here in court. He was arrested in Uganda. He does not know Abel Kemoi. He heard the evidence; he does not know Pw1; he just heard his voice. He does not know Emmanuel. He was not with Batmayo on the 21st; maybe the witness was mistaken. There may have been a reason the witness testified against him. He was not on a motor bike. He does not know Pw3, Pw4 and Pw5. The witnesses did not say he was there on the 21st or 22nd. Pw7 brought him to Kenya; officer Karisa took his statement. None of the witnesses saw him kill the deceased. He was not at Kopsiro hospital, and he was not seen beating the deceased. During cross-examination, the 1st Accused told the court that he is not lying. He does not know whether the revenge was a result of an earlier murder. He was not near Kopsiro. He has evidence that he was in Uganda from a relative he was staying with.
11. Benson Kwalia Musituni (Dw2) testified that he also stays in Kenya and Uganda. He knows Shaddy Kiprotich, the sister’s son who died in 2004. Shaddy was placed under his care, and he has stayed with Shaddy since 2006. He stayed with him until 28.12.2022, when he was arrested. Police from Uganda and Kenya went to his place and said they needed the boy to help with investigations. He accompanied them, and they came to Kenya to find out why he was arrested. On 21 and 22, he was with Shaddy in Uganda. It is a lie that he was in Kenya on the 22nd. He does not know the boy who was murdered. He still stays with Shaddy. During cross-examination, Dw2 told the court that he does not know the 2nd accused person. He is sure that Shaddy came from his home when attending this case. He is sure Shaddy was with him on 22.12.2022.
12. Sammy Kibet Moteya, the 2nd accused, testified that he did not murder David Sirwo. On 21 & 22.12.2022, he was at home with his father, mother and brother. On 21.12.2022, he was at the shamba until 1.00 pm. On 22.12.2022, he was with Joshua, where he sleeps. On the 22nd, he woke up, went to the shamba as usual, returned home for lunch, and thereafter went to look after the cows. He lives in Changei, which is far from Kopsiro. He did not know the deceased, David Sirwo. He does not know Abel Kemoi. He does not know the 1st accused person. He met him in court. He did not see Batmayo when he testified; he only heard his voice. He does not know him. He does not ride a motor bike. No boda boda can get to the place where they live. He was not at Emmanuel’s place with Batmayo. He does not know Emmanuel. He was not with the accused at Emmanuel’s place. He did not beat the deceased. He did not know Pw3 nor Pw4. None of them identified him as being at the scene. He knows Pw5. He carries luggage for them. He is a boda person and has a motor bike. Pw5 did not say he saw him at the scene. He does not know why Batmayo would testify against him. Pw7 did not arrest him. He saw the white fimbo in court. Only Pw1 testified that he saw him at the place. He learnt of David Sirwo’s death after being brought to court. On 21 & 22.12.2022, he was just at home. During cross-examination, the 2nd accused told the court that he saw the 1st accused when they were brought to court. He was not at the place where David was murdered. He does not know Batmayo Kimongei. There is no such person at their place.
13. Kipmutai Joshua Mateya (Dw4) testified that the 2nd accused is his brother. He does not know the 1st accused person. He does not know David Sirwo. On 21.12.2022, he was at home at work. They went to the river to pour water on the vegetables and to guard them. Thereafter, they went home, slept, and woke up on the 22nd. They slept in one house. They did not leave that night to go anywhere. They went out to check on the cows at 1.00am and went back into the house. They were together on the night of the 21st and 22nd. On the 22nd, he woke up at 7.00am to finish watering the vegetables, and then they went to look after the cows. He was with his brother on the 21st and 22nd. He was not at Kopsiro. After 4 days, his brother was arrested by the police. His brother does not ride a motor bike. During cross-examination, Dw4 told the court that the 2nd accused is his follower. He does not know the accused person. He was with the 2nd accused on 22.12.2022. Whoever says he committed an offence is lying.
SUBMISSIONS
14. The prosecution submitted that they proved their case beyond reasonable doubt through seven witnesses. Pw1 gave a clear account of what happened on the material day. The deceased’s death was established, and proof of death was also provided by Pw1, Pw4 and Pw2, respectively. There was sufficient evidence from Pw1, Pw3 and Pw4 that the accused persons participated in assaulting the deceased. Identification of the accused persons was by recognition and therefore free from error. The witnesses remained consistent, and the deceased’s death was an act of revenge for Abel’s death. The omission to prove Abel’s death is not significant, and the court must look for the proximate cause which gave rise to the termination of the right to life under Article 26 of the Constitution, which is not excusable or justified. Regarding malice aforethought, it was submitted that, from the evidence of the witnesses, it was proved beyond reasonable doubt. The defence tendered does not significantly challenge the incontrovertible prosecution evidence.
15. The defence reiterated the evidence adduced by the prosecution and defence and submitted that the prosecution had not proved their case that the accused persons directly or indirectly participated in the commission of the alleged offence. The fact and cause of death of the deceased is not disputed. It is submitted that the only evidence linking the accused person to the offence is that of Pw1, who testified under protective measures pursuant to the Witness Protection Act 2006, and that his identity was concealed. It was submitted that the protection accorded to Pw1 should not curtail the accused person's constitutional right to a fair hearing under Article 50(2) of the Constitution, particularly the right to challenge evidence adduced against him in cross-examination. The defence argued that the evidence of Pw1 has serious credibility issues, for instance, inconsistencies between the time and place and circumstances of the alleged offence, contradictions with the evidence of the other prosecution witnesses on the time at which the offence occurred, the people who were with him, recording of his witness statement at a later time. Reliance was made on the case of Abdalla Bin Wendo & Another vs R (1953), in which the Court of Appeal held that the evidence of a single identifying witness must be tested with the greatest care and can only be relied upon if absolutely watertight. It was submitted that the extent of witness protection prejudiced the accused’s right to a fair trial; the court and the defence were denied an opportunity to observe the witness's demeanour, an essential fact in assessing truthfulness. In the case of R vs Dave (2008) UKHL, the court held that the anonymity and protective measures must never be allowed to compromise the fairness of the trial of the accused’s right to effectively challenge evidence. That apart from Pw1’s evidence, there was no independent corroboration linking the accused persons to the murder, no forensic, medical or circumstantial evidence. Reliance was also made in the case of Kiarie vs R (1984) KLR 739 where the court of appeal stated that it is unsafe to base a conviction solely on the identification evidence of a single witness unless the court is satisfied that the identification is absolutely reliable. The absence of corroboration renders the prosecution evidence inherently weak and unsafe, as no witness testified to having the accused persons at the circumcision ceremony or at the hospital, except. Pw1. Pw5, who carried the victim to the hospital, testified that he did not see the accused persons. Pw3 and Pw4 did not see the accused persons during the fight. Pw1said the fight took place at 7am to 8.00 am yet Pw3 and Pw4 said it took place around 6.00 am. Reliance was made in the case of Karanja & Another vs R 2004 eKLR, where the court of appeal held that where a conviction is based solely on the evidence of a single witness, such evidence must be clear, consistent and free from the possibility of error and that the said test fails in this case. The defence urged this court to find that the protected evidence without corroboration or reliability does not meet the threshold of proof beyond a reasonable doubt. It was further submitted that the prosecution failed to establish malice aforethought as no evidence was adduced of premeditation, prior quarrel, or any conduct manifesting intent to kill or cause grievous harm. It was also submitted that Pw1 communication with the investigating officer could have influenced his testimony. The defence argued that Pw7's failure to submit the weapon for forensic examination breaks the evidentiary chain between the accused and the weapon, and thus no scientific tests link the accused to the commission of the offence.
16. It was further submitted that suspicion, however strong, cannot provide a basis for inferring guilt, which must be proved beyond reasonable doubt (see Sawe vs Republic (2003) eKLR). It was argued that Pw7 recorded his statement on 17.3.2025 and testified on 24.4.2025, barely a month before the hearing, which is prejudicial to the accused persons and offends the principles of a fair trial as set out in Article 50 of the Constitution. Pw7 did not participate in the initial investigations, and therefore his evidence remains hearsay, as it is information he obtained from another officer (see Republic vs Daniel Musyoka Mutuku (2008) eKLR).
17. It was submitted that the accused persons raised an alibi defence, and their evidence was corroborated by their witnesses. The burden lies on the prosecution to prove that the accused was at the scene of the crime. The prosecution must disprove the alibi and show that the accused was at the scene beyond reasonable doubt (see Kiare vs Republic (1984) KLR 39). Therefore, the prosecution failed to prove their case beyond reasonable doubt.
ANALYSIS AND DETERMINATION
18. I have considered the evidence adduced by the prosecution and the defence, as well as the submissions. In a charge of murder, the prosecution has the duty to prove the following three elements to secure a conviction: that the death of the deceased has occurred; that the death was caused by an unlawful act of commission or omission by the person accused of the offence; and that the accused had malice aforethought when he committed the act. (see Chiragu & Another vs. Republic (Criminal Appeal 104 of 2018) [2021] KECA 342 (KLR))
19. The occurrence of a death is not disputed; Pw1, Pw4, and Pw7 confirmed seeing the deceased. Pw2 conducted a post-mortem examination and concluded that the cause of death was severe haemorrhagic shock secondary to a stab wound from a sharp object that severed the femoral vein and artery.
20. On whether the accused persons caused the unlawful death of the deceased. The only evidence linking the accused persons to the deceased’s death is that of Pw1. Pw1 was a witness who testified under the Witness Protection cover. The defence has challenged his evidence and argues that the accused persons’ rights have been curtailed under Article 50(2) of the Constitution, in particular the right to challenge evidence adduced against them through cross-examination. There is no dispute that the defence was supplied with the statements of the witnesses who testified. The defence was also given the opportunity to cross-examine Pw1, and no issue was raised regarding his conduct on the material day, nor that the defence could not sufficiently cross-examine him, nor that they were hindered in any way in fully cross-examining him. I therefore find that no rights of the accused persons were curtailed as alleged.
1. I have already stated that the only evidence linking the accused persons to the murder of the deceased is Pw1. I warn myself of the dangers of convicting on the evidence of a single witness. Pw1 testified that he took Abel for treatment at the health centre and, on the way to obtain money to transport Abel to Bungoma, met the accused persons. He knows the accused persons. They are all boda boda riders. They rode back to the hospital, and it was then that all hell broke loose when Shaddy and Sammy found out that Abel had died. Shaddy began chasing the deceased, hitting him with a white rod, and then he saw Sammy take out a knife and stab the deceased in the thigh. This happened in his presence, in the morning between 8am and 9 am. Although the other witnesses did not identify the accused persons, the evidence of Pw4, the nurse, and Pw6, who were within the premises, confirms that there was a fight within the compound and that the deceased’s caretaker was stabbed. The evidence of these two witnesses corroborates Pw1’s account of what happened within the health centre. I heard Pw1 and believe his evidence that he saw the accused persons beat and injure the deceased. The said injury was confirmed by Pw2. The evidence of Pw1 was clear, consistent, and free from the possibility of error. The defence has mentioned the variance in the time in the evidence of Pw1, Pw4 and Pw6. In MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) (15 March 2022) (Judgment), the court cited with approval the case of Twehangane Alfred v Uganda, Crim. App. No 139 of 2001, [2003] UGCA, 6 as follows: -
“With regard to contradictions in the prosecution’s case, the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”
In my view, the variance in time is very minor and not fatal to the prosecution's case. It did not, in any way, point to deliberate untruthfulness or affect the main substance of the prosecution's case.
21. The accused persons raised an alibi defence and even called witnesses to support it. I have reviewed the evidence in its entirety and find that throughout the prosecution there was no hint or allegation that the accused persons were not at the scene. In my view, the alibi raised by the accused persons is an afterthought. The fact that the recovered weapon was not taken for analysis is not fatal to the prosecution case. The prosecution relied on the evidence of an eyewitness, Pw1, who knew the deceased and the accused persons. Their two witnesses gave evidence to support their alibi defence, which I have found does not in any way challenge the incontrovertible prosecution evidence. The evidence of Pw1 was clear, consistent and free from any possibility of error. The evidence of Pw1 was sufficiently corroborated.
22. As to whether malice aforethought has been established, Section 206 of the Penal Code sets out the circumstances which constitute malice aforethought as follows:
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:
(a) An intention to caused death or to do grievous harm to any person whether such 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 such person is the person actually killed or not, although such knowledge is accomplished by indifference whether death or grievous harm is caused or not, or by a wish that it may be caused or not, or by a wish that it may not be caused.
(c) An intention to commit a felony.
(d) An intention by an act or omission to facilitate the flight or escape from custody of any person who attempt to commit a felony.
23. On the evidence adduced, it is clear that the accused persons intended to cause grievous harm to the deceased. The weapon used and the location of the injury clearly show that they had no intention of leaving the deceased alive. Malice aforethought was proved.
24. In conclusion, I find that the prosecution has proved its case beyond reasonable doubt. I find the accused persons, Shaddy Kiprotich Chepondol, alias Shadrack, and Sammy Kibet Mateya, guilty and convict each of them of the murder of David Mugong Kiprotus, alias David Sirwo, as charged.
Dated, signed, and delivered virtually this 9th day of April 2026.
R.E.OUGO
JUDGE
In the presence of:
Shaddy Kiprotich /1st Accused
Sammy Kibet Mateya/ 2nd Accused
Miss Matere - For the State
Miss Natwati - For the Accused persons
Wilkister - C/A
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL CASE NO E002 OF 2023( MURDER)
REPUBLIC……………………………….…..….………..PROSECUTOR
VERSUS
SHADDY KIPROTICH CHEPKONDOL
ALIAS SHADRACK …………………………………..……1ST ACCUSED
SAMMY KIBET MATEYA………………………….……..2ND ACCUSED
JUDGMENT
1. Shaddy Kiprotich Chepkondol Alias Shadrack, 1st accused and Sammy Kibet Mateya, 2nd accused are charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that; on the 22nd day of December 2022 at Kopsiro Model Health Centre in Kopsiro Sub-county within Bungoma County jointly with others not before the court murdered David Mungong Kiprotus alias David Sirwo.
2. The accused persons denied the offence and the prosecution called seven (7) witnesses. Pw1 ‘X’ was a witness under witness protection.
PROSECUTION CASE
3. Pw 1, “X”, testified that on 21.12.2023, they were at a circumcision ceremony until 5. 00am. As they left the ceremony, a girl called Dorcas came out, being chased by Abuid. She took cover behind Abel. Abel asked Abuid why he was chasing the girl. Abel and Abuid fought, and Abuid stabbed Abel in the right hip. They took Abel to the hospital. David held Abel at the front, and he was behind. They were on one motorcycle. They took Abel to the Kopsiro hospital. They found a doctor who told them to take Abel to Bungoma. He left David and ‘Doctor’ at the hospital to stay with Abel. On his way to Abel' s place to get money to take him to hospital, he met Shaddy and Sammy, and Sammy Ndiema, going to the hospital to check on Abel. Shaddy, Abel and Sammy are friends. The three were using one motorbike. They asked him how Abel was doing. Sammy Mateya took the motor bike which he had. He was on one motor bike with the two Sammy' s. The other motor bike carried Job and Shaddy. They proceeded to the hospital. They arrived ahead of Shaddy and Job. They found that Abel had died. They went outside. He was David. Shaddy and Job arrived. David asked Shaddy if they had found the person who stabbed Abel. Shaddy did not reply. Shaddy had a fimbo he began beating David. David ran out. Shaddy chased him. Sammy Mateya joined the fight. Sammy took out a knife and stabbed David at the right hip. Shaddy continued to beat David. He tried to separate them. David told him he had been stabbed. Shaddy and Sammy left. Shaddy and Samuel are persons he knows well. They do boda boda work. This incident happened between 8am and 9am. During cross- examination, Pw 1 told the court that Abel was stabbed at 5. 00am. David, too, was at the ceremony. David came as a good Samaritan to assist after Abel was stabbed. Abel was taken to hospital by ‘doctor’, a boda person. The fight began inside the hospital and David was stabbed inside the compound. The doctor and watchman were present. He held Shaddy and David fell, saying he had been stabbed. He has known Sammy for the past five years.
4. Doctor Graham Masika Makokha testified that he performed a post-mortem on the body of David Mungong Kiprotus on 27.12.2022. On external examination, the body had bruises on the lower lip, forehead and the secrarum area he had brusies of 4 cms. He also had a stab wound in the medial right thigh, 3 cms by 1 cm. There was also a stab wound on the lateral thigh, 5 cms from the hip joint, measuring 5 cms by 1 cm. The stab wound went through the thigh. The femoral vessels, both artery and vein, were severed. On internal examination, the respiratory, cardiovascular, genito-urinary, head and nervous systems were normal. The spinal column was intact. He formed the opinion that the cause of death was severe haemorrhage secondary to a stab wound by a sharp object that severed the femoral vein and artery. He took a specimen of nail clippings and grass from the deceased’s hand for further examination. He filed and signed the post-mortem form, Pext. 1.
5. David Kasi Masai (Pw3) testified that he was a security guard at Kopsiro Model Health Centre in December 2022. On 22.12.2022, he was on duty. Between about 5.00 am and 6.00 am, a patient was brought into the hospital by a boda boda. The rider told him that the patient had been stabbed in the thigh. The doctor administered first aid. The patient was bleeding heavily. The doctor informed him that the patient needed to be taken to the referral hospital. He then saw a motorbike enter with four (4) people. The patient had a caretaker. The four people attacked the caretaker. He told them not to fight in the hospital. They threw stones at him. He ran to seek help from the police and was given an officer from the DO’s place. When he returned, the people had left, and he found the caretaker had been killed. He did not know the people who attacked the caretaker and could not identify them. The caretaker was beaten with a fimbo, pext2. The place had little light, and it was not possible to identify anyone.
6. Tallan Titus (Pw4), a nurse at Kopsiro Model Health Centre, testified that on 22.12.2022 he was on duty. At 4.00am, he was called to attend to an emergency case. He found a person who had been stabbed and was bleeding. He could not attend to the wound. He asked the person with him to get money so that the injured person could be taken to a referral hospital. They left the person, who was bleeding heavily. Then 2 motor bikers arrived. Two of them entered the room and said the person had died. Shortly thereafter, a fight broke out. The fight was between the six who had come with the first person. He moved away. They fought for five minutes. The one who was stabbed woke up and ran to the police gate, and he was followed by the person who had a muffin on. The fight continued. David, who was stabbed. He did not identify the one who stabbed David. He was forced to write a statement. He did not tell the police that one of the people was called Shaddy. He saw the accused persons for the first time in court. During cross-examination, he testified that the fight took place around 5am to 6am and that David was stabbed at 6am.
7. Doctor Kimati Ngeiywo (Pw5) testified that on 21.12.22 he was at the home of Mzee Emmanuel for a celebration. He is a boda boda rider. He was called at 6am and told that people had fought. He knows the persons who fought. He found a boda boda rider, whom they used to call Kwemoi, beaten and stabbed with a knife. He took him to Kopsiro hospital. He left the person there with the boy he was with. He later learnt that Kwemoi had been murdered. During cross-examination, he told the court that he left Kwemoi being treated by the doctor. He does not know who stabbed David. The accused persons were not at the hospital.
8. Peter Kwemoi Tonoshio (Pw6) testified that on 21.12.2022 at 6.00am he was at his place. A circumcision ceremony was in progress. He later heard from Nyumba Kumi that a fight had occurred at Emmanuel’s place. He does not know who was injured or who died. He does not know the accused persons.
9. No. 77098 Cpl. Geoffrey Too (Pw7) of DCI Cheptais testified as follows. On 22.12.2022, he received word from the OCS Kopsiro that there were 2 bodies at Kopsiro Health Centre. P C John Karisa was the initial investigating officer. He was transferred to DCI Lunga Lunga. Together with his colleagues, he proceeded to the health centre. On arrival, he found many people. One body was outside the hospital and had injuries. They also found a rod, Pext 2, placed in a flower bed within the hospital. They found another body in the consultation room, which also had injuries. They took the bodies to Delight Hospital and recorded witness statements. The witnesses named the two accused persons. They were later arrested and charged. During cross-examination, Pw7 recalled that he was with P C Karisa when they went to the health centre. The bodies they found belonged to Abel and David. To date, the person who killed Abel has not been found. A witness told them that the attackers had the white rod as they chased the deceased. The rod was not taken for forensic examination. He wrote the statement of David Masai (Pw3). Shaddy was arrested in Uganda, and Sammy in Kopsiro.
DEFENCE CASE
10. Shaddy Kiprotich Chepkondol, the 1st Accused, gave a sworn statement in his defence. He currently stays in Uganda and previously lived in Mt. Elgon. It is a lie that they murdered David Sirwo. He does not know David Sirwo, nor does he know the 2nd accused who is in court. He did not know the 2nd accused before. In December 2022, he was in Uganda and was there on 21.12.2022. His parents died, and he stayed there with his uncle, his mother’s brother. He learnt of the death of David here in court. He was arrested in Uganda. He does not know Abel Kemoi. He heard the evidence; he does not know Pw1; he just heard his voice. He does not know Emmanuel. He was not with Batmayo on the 21st; maybe the witness was mistaken. There may have been a reason the witness testified against him. He was not on a motor bike. He does not know Pw3, Pw4 and Pw5. The witnesses did not say he was there on the 21st or 22nd. Pw7 brought him to Kenya; officer Karisa took his statement. None of the witnesses saw him kill the deceased. He was not at Kopsiro hospital, and he was not seen beating the deceased. During cross-examination, the 1st Accused told the court that he is not lying. He does not know whether the revenge was a result of an earlier murder. He was not near Kopsiro. He has evidence that he was in Uganda from a relative he was staying with.
11. Benson Kwalia Musituni (Dw2) testified that he also stays in Kenya and Uganda. He knows Shaddy Kiprotich, the sister’s son who died in 2004. Shaddy was placed under his care, and he has stayed with Shaddy since 2006. He stayed with him until 28.12.2022, when he was arrested. Police from Uganda and Kenya went to his place and said they needed the boy to help with investigations. He accompanied them, and they came to Kenya to find out why he was arrested. On 21 and 22, he was with Shaddy in Uganda. It is a lie that he was in Kenya on the 22nd. He does not know the boy who was murdered. He still stays with Shaddy. During cross-examination, Dw2 told the court that he does not know the 2nd accused person. He is sure that Shaddy came from his home when attending this case. He is sure Shaddy was with him on 22.12.2022.
12. Sammy Kibet Moteya, the 2nd accused, testified that he did not murder David Sirwo. On 21 & 22.12.2022, he was at home with his father, mother and brother. On 21.12.2022, he was at the shamba until 1.00 pm. On 22.12.2022, he was with Joshua, where he sleeps. On the 22nd, he woke up, went to the shamba as usual, returned home for lunch, and thereafter went to look after the cows. He lives in Changei, which is far from Kopsiro. He did not know the deceased, David Sirwo. He does not know Abel Kemoi. He does not know the 1st accused person. He met him in court. He did not see Batmayo when he testified; he only heard his voice. He does not know him. He does not ride a motor bike. No boda boda can get to the place where they live. He was not at Emmanuel’s place with Batmayo. He does not know Emmanuel. He was not with the accused at Emmanuel’s place. He did not beat the deceased. He did not know Pw3 nor Pw4. None of them identified him as being at the scene. He knows Pw5. He carries luggage for them. He is a boda person and has a motor bike. Pw5 did not say he saw him at the scene. He does not know why Batmayo would testify against him. Pw7 did not arrest him. He saw the white fimbo in court. Only Pw1 testified that he saw him at the place. He learnt of David Sirwo’s death after being brought to court. On 21 & 22.12.2022, he was just at home. During cross-examination, the 2nd accused told the court that he saw the 1st accused when they were brought to court. He was not at the place where David was murdered. He does not know Batmayo Kimongei. There is no such person at their place.
13. Kipmutai Joshua Mateya (Dw4) testified that the 2nd accused is his brother. He does not know the 1st accused person. He does not know David Sirwo. On 21.12.2022, he was at home at work. They went to the river to pour water on the vegetables and to guard them. Thereafter, they went home, slept, and woke up on the 22nd. They slept in one house. They did not leave that night to go anywhere. They went out to check on the cows at 1.00am and went back into the house. They were together on the night of the 21st and 22nd. On the 22nd, he woke up at 7.00am to finish watering the vegetables, and then they went to look after the cows. He was with his brother on the 21st and 22nd. He was not at Kopsiro. After 4 days, his brother was arrested by the police. His brother does not ride a motor bike. During cross-examination, Dw4 told the court that the 2nd accused is his follower. He does not know the accused person. He was with the 2nd accused on 22.12.2022. Whoever says he committed an offence is lying.
SUBMISSIONS
14. The prosecution submitted that they proved their case beyond reasonable doubt through seven witnesses. Pw1 gave a clear account of what happened on the material day. The deceased’s death was established, and proof of death was also provided by Pw1, Pw4 and Pw2, respectively. There was sufficient evidence from Pw1, Pw3 and Pw4 that the accused persons participated in assaulting the deceased. Identification of the accused persons was by recognition and therefore free from error. The witnesses remained consistent, and the deceased’s death was an act of revenge for Abel’s death. The omission to prove Abel’s death is not significant, and the court must look for the proximate cause which gave rise to the termination of the right to life under Article 26 of the Constitution, which is not excusable or justified. Regarding malice aforethought, it was submitted that, from the evidence of the witnesses, it was proved beyond reasonable doubt. The defence tendered does not significantly challenge the incontrovertible prosecution evidence.
15. The defence reiterated the evidence adduced by the prosecution and defence and submitted that the prosecution had not proved their case that the accused persons directly or indirectly participated in the commission of the alleged offence. The fact and cause of death of the deceased is not disputed. It is submitted that the only evidence linking the accused person to the offence is that of Pw1, who testified under protective measures pursuant to the Witness Protection Act 2006, and that his identity was concealed. It was submitted that the protection accorded to Pw1 should not curtail the accused person's constitutional right to a fair hearing under Article 50(2) of the Constitution, particularly the right to challenge evidence adduced against him in cross-examination. The defence argued that the evidence of Pw1 has serious credibility issues, for instance, inconsistencies between the time and place and circumstances of the alleged offence, contradictions with the evidence of the other prosecution witnesses on the time at which the offence occurred, the people who were with him, recording of his witness statement at a later time. Reliance was made on the case of Abdalla Bin Wendo & Another vs R (1953), in which the Court of Appeal held that the evidence of a single identifying witness must be tested with the greatest care and can only be relied upon if absolutely watertight. It was submitted that the extent of witness protection prejudiced the accused’s right to a fair trial; the court and the defence were denied an opportunity to observe the witness's demeanour, an essential fact in assessing truthfulness. In the case of R vs Dave (2008) UKHL, the court held that the anonymity and protective measures must never be allowed to compromise the fairness of the trial of the accused’s right to effectively challenge evidence. That apart from Pw1’s evidence, there was no independent corroboration linking the accused persons to the murder, no forensic, medical or circumstantial evidence. Reliance was also made in the case of Kiarie vs R (1984) KLR 739 where the court of appeal stated that it is unsafe to base a conviction solely on the identification evidence of a single witness unless the court is satisfied that the identification is absolutely reliable. The absence of corroboration renders the prosecution evidence inherently weak and unsafe, as no witness testified to having the accused persons at the circumcision ceremony or at the hospital, except. Pw1. Pw5, who carried the victim to the hospital, testified that he did not see the accused persons. Pw3 and Pw4 did not see the accused persons during the fight. Pw1said the fight took place at 7am to 8.00 am yet Pw3 and Pw4 said it took place around 6.00 am. Reliance was made in the case of Karanja & Another vs R 2004 eKLR, where the court of appeal held that where a conviction is based solely on the evidence of a single witness, such evidence must be clear, consistent and free from the possibility of error and that the said test fails in this case. The defence urged this court to find that the protected evidence without corroboration or reliability does not meet the threshold of proof beyond a reasonable doubt. It was further submitted that the prosecution failed to establish malice aforethought as no evidence was adduced of premeditation, prior quarrel, or any conduct manifesting intent to kill or cause grievous harm. It was also submitted that Pw1 communication with the investigating officer could have influenced his testimony. The defence argued that Pw7's failure to submit the weapon for forensic examination breaks the evidentiary chain between the accused and the weapon, and thus no scientific tests link the accused to the commission of the offence.
16. It was further submitted that suspicion, however strong, cannot provide a basis for inferring guilt, which must be proved beyond reasonable doubt (see Sawe vs Republic (2003) eKLR). It was argued that Pw7 recorded his statement on 17.3.2025 and testified on 24.4.2025, barely a month before the hearing, which is prejudicial to the accused persons and offends the principles of a fair trial as set out in Article 50 of the Constitution. Pw7 did not participate in the initial investigations, and therefore his evidence remains hearsay, as it is information he obtained from another officer (see Republic vs Daniel Musyoka Mutuku (2008) eKLR).
17. It was submitted that the accused persons raised an alibi defence, and their evidence was corroborated by their witnesses. The burden lies on the prosecution to prove that the accused was at the scene of the crime. The prosecution must disprove the alibi and show that the accused was at the scene beyond reasonable doubt (see Kiare vs Republic (1984) KLR 39). Therefore, the prosecution failed to prove their case beyond reasonable doubt.
ANALYSIS AND DETERMINATION
18. I have considered the evidence adduced by the prosecution and the defence, as well as the submissions. In a charge of murder, the prosecution has the duty to prove the following three elements to secure a conviction: that the death of the deceased has occurred; that the death was caused by an unlawful act of commission or omission by the person accused of the offence; and that the accused had malice aforethought when he committed the act. (see Chiragu & Another vs. Republic (Criminal Appeal 104 of 2018) [2021] KECA 342 (KLR))
19. The occurrence of a death is not disputed; Pw1, Pw4, and Pw7 confirmed seeing the deceased. Pw2 conducted a post-mortem examination and concluded that the cause of death was severe haemorrhagic shock secondary to a stab wound from a sharp object that severed the femoral vein and artery.
20. On whether the accused persons caused the unlawful death of the deceased. The only evidence linking the accused persons to the deceased’s death is that of Pw1. Pw1 was a witness who testified under the Witness Protection cover. The defence has challenged his evidence and argues that the accused persons’ rights have been curtailed under Article 50(2) of the Constitution, in particular the right to challenge evidence adduced against them through cross-examination. There is no dispute that the defence was supplied with the statements of the witnesses who testified. The defence was also given the opportunity to cross-examine Pw1, and no issue was raised regarding his conduct on the material day, nor that the defence could not sufficiently cross-examine him, nor that they were hindered in any way in fully cross-examining him. I therefore find that no rights of the accused persons were curtailed as alleged.
1. I have already stated that the only evidence linking the accused persons to the murder of the deceased is Pw1. I warn myself of the dangers of convicting on the evidence of a single witness. Pw1 testified that he took Abel for treatment at the health centre and, on the way to obtain money to transport Abel to Bungoma, met the accused persons. He knows the accused persons. They are all boda boda riders. They rode back to the hospital, and it was then that all hell broke loose when Shaddy and Sammy found out that Abel had died. Shaddy began chasing the deceased, hitting him with a white rod, and then he saw Sammy take out a knife and stab the deceased in the thigh. This happened in his presence, in the morning between 8am and 9 am. Although the other witnesses did not identify the accused persons, the evidence of Pw4, the nurse, and Pw6, who were within the premises, confirms that there was a fight within the compound and that the deceased’s caretaker was stabbed. The evidence of these two witnesses corroborates Pw1’s account of what happened within the health centre. I heard Pw1 and believe his evidence that he saw the accused persons beat and injure the deceased. The said injury was confirmed by Pw2. The evidence of Pw1 was clear, consistent, and free from the possibility of error. The defence has mentioned the variance in the time in the evidence of Pw1, Pw4 and Pw6. In MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) (15 March 2022) (Judgment), the court cited with approval the case of Twehangane Alfred v Uganda, Crim. App. No 139 of 2001, [2003] UGCA, 6 as follows: -
“With regard to contradictions in the prosecution’s case, the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”
In my view, the variance in time is very minor and not fatal to the prosecution's case. It did not, in any way, point to deliberate untruthfulness or affect the main substance of the prosecution's case.
21. The accused persons raised an alibi defence and even called witnesses to support it. I have reviewed the evidence in its entirety and find that throughout the prosecution there was no hint or allegation that the accused persons were not at the scene. In my view, the alibi raised by the accused persons is an afterthought. The fact that the recovered weapon was not taken for analysis is not fatal to the prosecution case. The prosecution relied on the evidence of an eyewitness, Pw1, who knew the deceased and the accused persons. Their two witnesses gave evidence to support their alibi defence, which I have found does not in any way challenge the incontrovertible prosecution evidence. The evidence of Pw1 was clear, consistent and free from any possibility of error. The evidence of Pw1 was sufficiently corroborated.
22. As to whether malice aforethought has been established, Section 206 of the Penal Code sets out the circumstances which constitute malice aforethought as follows:
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:
(a) An intention to caused death or to do grievous harm to any person whether such 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 such person is the person actually killed or not, although such knowledge is accomplished by indifference whether death or grievous harm is caused or not, or by a wish that it may be caused or not, or by a wish that it may not be caused.
(c) An intention to commit a felony.
(d) An intention by an act or omission to facilitate the flight or escape from custody of any person who attempt to commit a felony.
23. On the evidence adduced, it is clear that the accused persons intended to cause grievous harm to the deceased. The weapon used and the location of the injury clearly show that they had no intention of leaving the deceased alive. Malice aforethought was proved.
24. In conclusion, I find that the prosecution has proved its case beyond reasonable doubt. I find the accused persons, Shaddy Kiprotich Chepondol, alias Shadrack, and Sammy Kibet Mateya, guilty and convict each of them of the murder of David Mugong Kiprotus, alias David Sirwo, as charged.
Dated, signed, and delivered virtually this 9th day of April 2026.
R.E.OUGO
JUDGE
In the presence of:
Shaddy Kiprotich /1st Accused
Sammy Kibet Mateya/ 2nd Accused
Miss Matere - For the State
Miss Natwati - For the Accused persons
Wilkister - C/A