' REPUBLIC OF KENYA
IN THE HIGH COURT OFN KENYA
AT BUNGOMA
CRIMINAL CASE NO. E024 OF 2023
REPUBLIC…………………………………………………….PROSECUTOR
VERSUS
STEPHEN MUNJOSI WASIKE…………………….….ACCUSED PERSON
JUDGEMENT
A. Introduction
1. STEPHEN MUNJOSI WASIKE, the Accused Person herein was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
2. The particulars are that:
“On the night of 23rd June 2023, at Lunyu area of Kibisis Location in Bungoma North Sub-County within Bungoma County jointly with others not before Court murdered JOSEPH WANAJALA”
3. The Prosecution summoned a total of 8 (eight) witnesses in support of its case while the defence called the Accused Person.
B. Evidence
4. PW1, Juma Masinde, the brother to the deceased testified that on 30th June 2023, while at work he received a call notifying him of his brother’s killing. He rushed to the scene of the crime and found the deceased corpse lying near the Accused Person’s house. On his observation, he noted that the deceased had cuts all over his head, face, his eyes were gouged out and he had been skinned. He went on to testify that the Accused Person herein is their neighbor and that they had no issues with him. He proceeded to identified the clothes of the deceased which he recovered at the scene of crime. The same were marked for identification as PMFI-1
5. On cross-examination, he told the Court that he did not witness the incident.
6. On re-examination, he told the Court that the clothes which were before the Court where worn by the deceased and that he recovered them at the scene where the deceased body was found.
7. PW2, Kennedy Sitati Soita, testified that he is a teacher by profession and a resident of Lunyu area. He recalled that on 23rd July 2023, he had heard noises and on following up on the same he met one mzee Alfayo who told him that there was a thief who had stolen a mobile phone and the next day he learnt that someone had been murdered. Upon visiting the scene, he was not able to identify the deceased as his face had been skinned. Further, he testified that the Accused Person herein is his neighbor and that the noises he had heard emanated from his house.
8. On cross-examination, he told the Court that he did not witness the incident and that he only heard that the deceased herein was killed by a mob. He told the Court that the deceased’s body was about 200 meters from the house of the Accused Person.
9. On re-examination, he told the Court that he was not present when the incident occurred.
10. PW3, Peter Murenga Wangila, testified that the deceased herein is his brother-in-law. He recalled on 30th June 2023, his wife alerted him of the death of the deceased and they rushed to the scene of the crime. He told the Court that he is not aware of the circumstances leading to the death of the deceased and that the deceased herein is a neighbor.
11. On cross-examination, he told the Court that he did not witness the incident and that the deceased herein had a love affair with the daughter of the Accuse Person.
12. On re-examination, he reiterated that girl mentioned by the defence counsel on cross examination is the daughter of the Accused Person herein.
13. PW4, Gladys Nahone Waimoi, testified that on the night of 23rd and 24th June 2023 she had been asleep when she was woken up by screams which prompted her to investigate the same. She told the Court that she exited her house and as she approached her neighbour’s house, she found a young man being assaulted. On inquiry, she established that the victim was alleged to be a criminal and the person who was assaulting him with a stick was the Accused Person herein, who claimed that the deceased had stolen a phone and a power bank from his home. She told the Court that the Accused Person had a torch with him and the torchlight enabled her to identify him very well.
14. PW4 went on to testify that the son of the Accused Person who was also present at the scene, held the recovered mobile phone and a power bank and that she had advised them to take the matter to the police. That the next day she learnt that the deceased had been found dead along the road. She then went to the scene and noticed the jacket that the deceased had worn the previous night, and she established that the deceased person hailed from the neighbourhood.
15. On cross-examination, she told the Court the Accused Person was her neighbor and that she had heard noises of someone being assaulted and on following the noises she found a large crowd numbering 15-20 people at the home of the Accused Person herein. She told the Court that she saw all the children of the Accused Person herein at the scene and it was alleged that the deceased had stolen a mobile phone and a power bank, and that the body of the deceased was found 500 meters from the home of the Accused Person.
16. On re-examination, she told the Court that the Accused Person herein was her neighbor and she heard noises at night while at her home. The screams insinuated that someone was being assaulted at the home of the Accused Person which she reiterated was about 30 meters away from hers. She reiterated that when she followed the noise she was led to the house of the Accused Person and found the deceased lying on the ground having been assaulted for allegedly stealing by the Accused Person and his family members. Finally, she told the Court that she saw the deceased person leave the Accused Person’s home.
17. PW5, Zachariah Luchevekeleli Litoyi, testified that he is a tailor. He recalled on the night of 23rd and 24th June 2023, while in asleep he was woken up by the screams of someone getting assaulted. He went out to investigate the issue and found that the screams emanated from the house of the Accused Person herein as he was a neighbor and that on proceeding to the scene, he found most of the villagers present. He testified that the deceased herein was being beaten by one Alex and the accused person herein on allegations that he had stolen a mobile phone and other gadgets. Further, he testified that the deceased person kept on pleading with the Accused Person and his son to cease the assault to no avail. The villagers advised the Accused Person to stop assaulting the deceased person as they had already punished him enough and had recovered the stolen items, recommending that they take him to the police station but the accused did not heed that advice. Finally, he told the Court that after the incident he went back to his house and the following day he established that the body of the deceased person had been discovered about 100 meters from the home the Accused Person. He stated that the Accused Person herein is his neighbor and is well known to him.
18. On cross-examination, he told the Court that he did not know the deceased person prior to the incident and could not testify to how the deceased person ended up at the home of the Accused Person. He stated that the Accused Person was armed with a stick and he did not have any weapon with him, and that he witnessed the Accused Person herein assault the deceased person on the back and all parts of his body, and that he left after the deceased person stood up ready to walk away. He stated that he could not tell if the deceased was attacked by other persons later on.
19. PW6, Alfayo Khaemba Odwane, recalled on the date of the incident he heard PW4 calling out to him alerting him of the incident and they rushed to the house of the Accused Person herein wherein they found him and his family members assaulting the deceased herein. The Accused Person was armed with pieces of firewood and a wire and the deceased was pleading to be spared while the Accused Person demanded that he produces the mobile phone and power bank.
20. He went on to testify that he advised the Accused Person to take the deceased person to the police station and he left the scene as the deceased walked along the road. The next day he learnt that the deceased person died. He rushed to the scene and found the deceased person with his face disfigured.
21. On cross-examination, he told the Court that he was woken up by PW4 but prior to that he did not hear any screams, and that the attackers had torches and were 3 in number. He stated that he saw the deceased stand up and walk away, but he did not see the injuries on his face and could not tell if the deceased was further attacked after leaving the Accused Person’s home.
22. On re-examination, he told the Court that he witnessed the assault of the deceased herein from 10 meters away and the assailants had torches and he was able to see them.
23. PW7, Dr. Edward Wafula Simiyu, a pathologist at Bokoli Sub-County Hospital stated that he performed an autopsy on the body of the deceased Joseph Wanjala on 30th June 2023, at Webuye Hospital. Upon conducting a physical examination, he noted that the body of the deceased had wounds on the face and body; had multiple bruises of various sizes and shapes on both upper limbs and parts of the right lower limbs. There was a large wound on the face spanning to the left side of the skull. The nose and left ear were missing. On internal examination, he observed that the left side of the brain was crushed. This witness formed the opinion that the cause of death was brain injury due to blunt trauma due to assault. He signed the postmortem form and stamped it on 30th June 2023. He produced the post mortem report as PEXH7.
24. Upon cross examination, PW7 stated that he had conducted the post mortem 7 days after the incident and that the right lower limb was decomposed..
25. PW8, Sgt. Joseph Gatimu, testified that on 24th June 2023, he received a report of murder and proceeded to the scene. He established that the body was found by the road side at Lunyu area and proceeded to the homestead where the deceased had been assaulted, and found lots of blood at the house of the son of the Accused person herein.
26. He went on to testify that he recovered a torn t-shirt part of which was covered with blood, an O-king handset that had no battery and a cap of the deceased at the gate of the Accused person’s homestead. He told the Court that he arrested the Accused person while he was hiding in a maize plantation about 20 meters from his house and took him to the station. He recorded the witness statements. He identified the blood covered t-shirt, the cap of the deceased, an O-king handset, blood-stained vest and a yellow blood-stained jumper all belonging to the deceased and produced them in Court as follows: PEXH2, PEXH6, PEXH5, PEXH3 and PEXH1 respectively.
27. On cross-examination, he testified that he was the investigating officer in this matter and that all the recovered clothes belonged to the deceased person. Further that the incident occurred on the night of 23rd to 24th June 2023 and that he was informed that the deceased hailed from Lunyu area. He testified that he h ad upon conducting the investigations learnt that the deceased used to visit his girlfriend in the Accused Person’s homestead and that the deceased was assaulted at the Accused Person’s homestead.
28. On re-examination, he told the Court that the investigations commenced with the 1st report and that the allegations that the deceased was a thief were false. He told the Court that there were rumors that the deceased person had put the Accused Person’s daughter on family way and that the she had already given birth. That the deceased was lured to go and see the child when the Accused Person’s and his sons used the opportunity to attack him.
Defence Case
29. At the close of the Prosecution case, this Court ruled that the Accused person had a case to answer and placed him on his defence.
30. The Accused Person gave a sworn testimony. He denied committing the offence. He testified that on 23rd to 24th June 2023, he was in his house at night and at 11 p.m. he heard noises as someone was shouting “thief! thief!” with people running towards his compound. That a crowd gained access into his compound and they assaulted the person who they were chasing. Thereafter they left with the person and he proceeded to leave his house to check on what had happened but did not see anyone. He went on to testify that the next day he heard people saying that someone had been killed by the road side and he went to view the body which was about 500 meters away from his house. He stated that the deceased did not hail from his village and he was afraid of the fact that the deceased was mobbed in his compound and hence his going into hiding in a maize farm.
31. On cross-examination, he told the Court that the deceased was suspected to be a thief and he was chased into his compound and he was in his compound when the deceased was assaulted.
32. On re-examination, he told the Court that he did not witness the assault.
Submissions
33. The Prosecution did not file submissions.
34. Learned Counsel Wattangah for the Accused Person submitted that the prosecution has failed to prove the ingredients of the offence of murder against the Accused Person. He submitted that the prosecution has relied on the contradictory evidence of the Prosecution witnesses. For example, they did not witness the Accused Person beat and frog match the deceased person from his compound to the road where he was found face skinned out, eyes removed and ear cut off. Further, he submitted that the kind of light used to identify the accused was insufficient to ensure positive identification. It is also submitted the Prosecution witnesses’ evidence is fraught of gaps that casts doubt as to whether they saw the Accused Person murder the deceased herein. He placed reliance on the cases of Republic vs Daniel Musau & Another (2025) eKLR and Mary Wanjiku Gichira vs Republic (1998) eKLR.
Determination
35. Upon my analysis and consideration the evidence of both the prosecution and the defence, and the submissions of the latter, the issue that arises for determination is whether the death of the deceased can be attributable to the actions of the Accused Person.
36. In order for the prosecution to secure a conviction on the charge of murder, it has to prove three ingredients against an Accused Person as outlined in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR, as follows:-
(a) That the death of the deceased occurred;
(b) That that the accused committed the unlawful act which caused the death of the deceased; and
(c) That that the accused had malice aforethought.
Proof of death
37. The evidence on the death of the deceased has been proved by PW1, and 7 who saw deceased’s body that was lifeless and by the postmortem form PEXH7 produced by PW7 that confirms that deceased died of brain injury due to blunt trauma secondary to assault.
The unlawful act of killing/causing death (actus rea)
38. None of the witnesses saw the deceased being killed. The Prosecution has therefore relied on circumstantial evidence to prove its case.
39. What then is circumstantial evidence? This is evidence that is indirect that does not on its face, prove a fact in issue but gives rise to a logical inference that the fact exists. Such evidence requires the drawing of additional reasonable inferences in order to support the claim. It is evidence that relies on inference to connect it to a conclusion of fact.
40. The main evidence which the Prosecution linked the Accused Person to the offence herein was that of the evidence of PW4 to PW6 which identified him and placed him at the scene of crime. PW5 Zachariah Lucheveleli Litoyo was categorical that the accused person and one of his sons identified as Alex were the ones who were assaulting the deceased. That the accused was using a stick while Alex was using a wire and a piece of firewood.
41. PW6 Alfayo Khaemba Odwani also testified that he saw the accused person whie assaulting the deceased using a piece of firewood and wire. This witness testified that the assailants had torches wherefore he was able to identify them as his neighbour and his sons. PW4 to 6 all testified that they had tried to implore the accused person, who had accused the deceased of theft of a handset and a power bank, to stop the assault to no avail.
42. The Accused Person also testified that he was inside his house while a mob assaulted the deceased herein and that he did not participate in the assault.
43. The evidence availed by PW8 showed that some of the clothes recovered in the compound of the Accused Person belonged to the deceased herein.
44. Premised upon the foregoing analysis of the evidence, I find that the Prosecution has proved beyond reasonable doubt that the Accused person was responsible for the unlawful act which caused the death of the deceased which constitutes the ‘actus reus’ of the offence.
45. The Accused Person is a neighbor and PW4 to PW6 knew him very well, and were able to recognize him with the aid of the torchlight as the accused and his sons had torches during the assault. The accused was thus identified through recognition.
46. The Court must determine whether Accused Person, with malice aforethought inflicted the injuries that resulted in the death of the deceased. There is of course no requirement in the Penal Code that one must have motive for murder which is the unlawful killing of another with malice aforethought under Section 203 of the Penal Code. The ingredients of murder were explained in the case of Roba Galma Wario v Republic [2015] eKLR where the Court held that;
“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”
47. On the issue of malice aforethought, Courts consider the nature of the weapon used, the parts of the body attacked, the number of times the weapon is used on the victim and the conduct of the assailant before, during and after the attack. As it transpired from the evidence the manner of the attack upon the deceased left no doubt that the assailant intended to inflict upon the deceased grievous injuries which led to the death. It can safely be inferred that death was the desired outcome of the assault of the deceased by the accused person and his son Alex. I have considered the injuries occasioned to the deceased. The post mortem report (PEXH7) indicated that the deceased died of brain injury due to blunt trauma due to assault.
48. I am satisfied that the Prosecution has proved malice aforethought against the Accused Person.
49. On the balance I find that all the three (3) ingredients of murder have been established. I therefore find the Accused Person Stephen Munjosi Wasike guilty of the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code and I convict him accordingly.
It is hereby so ordered
Dated and delivered at Bungoma this 27Th day of November 2025.
M.S.Shariff
Judge
In the presence of:
MR WATTANGA FOR ACCUSED PERSON
MS KIBET FOR THE STATE
PETER MACHONI COURT ASSISTANT
'
IN THE HIGH COURT OFN KENYA
AT BUNGOMA
CRIMINAL CASE NO. E024 OF 2023
REPUBLIC…………………………………………………….PROSECUTOR
VERSUS
STEPHEN MUNJOSI WASIKE…………………….….ACCUSED PERSON
JUDGEMENT
A. Introduction
1. STEPHEN MUNJOSI WASIKE, the Accused Person herein was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
2. The particulars are that:
“On the night of 23rd June 2023, at Lunyu area of Kibisis Location in Bungoma North Sub-County within Bungoma County jointly with others not before Court murdered JOSEPH WANAJALA”
3. The Prosecution summoned a total of 8 (eight) witnesses in support of its case while the defence called the Accused Person.
B. Evidence
4. PW1, Juma Masinde, the brother to the deceased testified that on 30th June 2023, while at work he received a call notifying him of his brother’s killing. He rushed to the scene of the crime and found the deceased corpse lying near the Accused Person’s house. On his observation, he noted that the deceased had cuts all over his head, face, his eyes were gouged out and he had been skinned. He went on to testify that the Accused Person herein is their neighbor and that they had no issues with him. He proceeded to identified the clothes of the deceased which he recovered at the scene of crime. The same were marked for identification as PMFI-1
5. On cross-examination, he told the Court that he did not witness the incident.
6. On re-examination, he told the Court that the clothes which were before the Court where worn by the deceased and that he recovered them at the scene where the deceased body was found.
7. PW2, Kennedy Sitati Soita, testified that he is a teacher by profession and a resident of Lunyu area. He recalled that on 23rd July 2023, he had heard noises and on following up on the same he met one mzee Alfayo who told him that there was a thief who had stolen a mobile phone and the next day he learnt that someone had been murdered. Upon visiting the scene, he was not able to identify the deceased as his face had been skinned. Further, he testified that the Accused Person herein is his neighbor and that the noises he had heard emanated from his house.
8. On cross-examination, he told the Court that he did not witness the incident and that he only heard that the deceased herein was killed by a mob. He told the Court that the deceased’s body was about 200 meters from the house of the Accused Person.
9. On re-examination, he told the Court that he was not present when the incident occurred.
10. PW3, Peter Murenga Wangila, testified that the deceased herein is his brother-in-law. He recalled on 30th June 2023, his wife alerted him of the death of the deceased and they rushed to the scene of the crime. He told the Court that he is not aware of the circumstances leading to the death of the deceased and that the deceased herein is a neighbor.
11. On cross-examination, he told the Court that he did not witness the incident and that the deceased herein had a love affair with the daughter of the Accuse Person.
12. On re-examination, he reiterated that girl mentioned by the defence counsel on cross examination is the daughter of the Accused Person herein.
13. PW4, Gladys Nahone Waimoi, testified that on the night of 23rd and 24th June 2023 she had been asleep when she was woken up by screams which prompted her to investigate the same. She told the Court that she exited her house and as she approached her neighbour’s house, she found a young man being assaulted. On inquiry, she established that the victim was alleged to be a criminal and the person who was assaulting him with a stick was the Accused Person herein, who claimed that the deceased had stolen a phone and a power bank from his home. She told the Court that the Accused Person had a torch with him and the torchlight enabled her to identify him very well.
14. PW4 went on to testify that the son of the Accused Person who was also present at the scene, held the recovered mobile phone and a power bank and that she had advised them to take the matter to the police. That the next day she learnt that the deceased had been found dead along the road. She then went to the scene and noticed the jacket that the deceased had worn the previous night, and she established that the deceased person hailed from the neighbourhood.
15. On cross-examination, she told the Court the Accused Person was her neighbor and that she had heard noises of someone being assaulted and on following the noises she found a large crowd numbering 15-20 people at the home of the Accused Person herein. She told the Court that she saw all the children of the Accused Person herein at the scene and it was alleged that the deceased had stolen a mobile phone and a power bank, and that the body of the deceased was found 500 meters from the home of the Accused Person.
16. On re-examination, she told the Court that the Accused Person herein was her neighbor and she heard noises at night while at her home. The screams insinuated that someone was being assaulted at the home of the Accused Person which she reiterated was about 30 meters away from hers. She reiterated that when she followed the noise she was led to the house of the Accused Person and found the deceased lying on the ground having been assaulted for allegedly stealing by the Accused Person and his family members. Finally, she told the Court that she saw the deceased person leave the Accused Person’s home.
17. PW5, Zachariah Luchevekeleli Litoyi, testified that he is a tailor. He recalled on the night of 23rd and 24th June 2023, while in asleep he was woken up by the screams of someone getting assaulted. He went out to investigate the issue and found that the screams emanated from the house of the Accused Person herein as he was a neighbor and that on proceeding to the scene, he found most of the villagers present. He testified that the deceased herein was being beaten by one Alex and the accused person herein on allegations that he had stolen a mobile phone and other gadgets. Further, he testified that the deceased person kept on pleading with the Accused Person and his son to cease the assault to no avail. The villagers advised the Accused Person to stop assaulting the deceased person as they had already punished him enough and had recovered the stolen items, recommending that they take him to the police station but the accused did not heed that advice. Finally, he told the Court that after the incident he went back to his house and the following day he established that the body of the deceased person had been discovered about 100 meters from the home the Accused Person. He stated that the Accused Person herein is his neighbor and is well known to him.
18. On cross-examination, he told the Court that he did not know the deceased person prior to the incident and could not testify to how the deceased person ended up at the home of the Accused Person. He stated that the Accused Person was armed with a stick and he did not have any weapon with him, and that he witnessed the Accused Person herein assault the deceased person on the back and all parts of his body, and that he left after the deceased person stood up ready to walk away. He stated that he could not tell if the deceased was attacked by other persons later on.
19. PW6, Alfayo Khaemba Odwane, recalled on the date of the incident he heard PW4 calling out to him alerting him of the incident and they rushed to the house of the Accused Person herein wherein they found him and his family members assaulting the deceased herein. The Accused Person was armed with pieces of firewood and a wire and the deceased was pleading to be spared while the Accused Person demanded that he produces the mobile phone and power bank.
20. He went on to testify that he advised the Accused Person to take the deceased person to the police station and he left the scene as the deceased walked along the road. The next day he learnt that the deceased person died. He rushed to the scene and found the deceased person with his face disfigured.
21. On cross-examination, he told the Court that he was woken up by PW4 but prior to that he did not hear any screams, and that the attackers had torches and were 3 in number. He stated that he saw the deceased stand up and walk away, but he did not see the injuries on his face and could not tell if the deceased was further attacked after leaving the Accused Person’s home.
22. On re-examination, he told the Court that he witnessed the assault of the deceased herein from 10 meters away and the assailants had torches and he was able to see them.
23. PW7, Dr. Edward Wafula Simiyu, a pathologist at Bokoli Sub-County Hospital stated that he performed an autopsy on the body of the deceased Joseph Wanjala on 30th June 2023, at Webuye Hospital. Upon conducting a physical examination, he noted that the body of the deceased had wounds on the face and body; had multiple bruises of various sizes and shapes on both upper limbs and parts of the right lower limbs. There was a large wound on the face spanning to the left side of the skull. The nose and left ear were missing. On internal examination, he observed that the left side of the brain was crushed. This witness formed the opinion that the cause of death was brain injury due to blunt trauma due to assault. He signed the postmortem form and stamped it on 30th June 2023. He produced the post mortem report as PEXH7.
24. Upon cross examination, PW7 stated that he had conducted the post mortem 7 days after the incident and that the right lower limb was decomposed..
25. PW8, Sgt. Joseph Gatimu, testified that on 24th June 2023, he received a report of murder and proceeded to the scene. He established that the body was found by the road side at Lunyu area and proceeded to the homestead where the deceased had been assaulted, and found lots of blood at the house of the son of the Accused person herein.
26. He went on to testify that he recovered a torn t-shirt part of which was covered with blood, an O-king handset that had no battery and a cap of the deceased at the gate of the Accused person’s homestead. He told the Court that he arrested the Accused person while he was hiding in a maize plantation about 20 meters from his house and took him to the station. He recorded the witness statements. He identified the blood covered t-shirt, the cap of the deceased, an O-king handset, blood-stained vest and a yellow blood-stained jumper all belonging to the deceased and produced them in Court as follows: PEXH2, PEXH6, PEXH5, PEXH3 and PEXH1 respectively.
27. On cross-examination, he testified that he was the investigating officer in this matter and that all the recovered clothes belonged to the deceased person. Further that the incident occurred on the night of 23rd to 24th June 2023 and that he was informed that the deceased hailed from Lunyu area. He testified that he h ad upon conducting the investigations learnt that the deceased used to visit his girlfriend in the Accused Person’s homestead and that the deceased was assaulted at the Accused Person’s homestead.
28. On re-examination, he told the Court that the investigations commenced with the 1st report and that the allegations that the deceased was a thief were false. He told the Court that there were rumors that the deceased person had put the Accused Person’s daughter on family way and that the she had already given birth. That the deceased was lured to go and see the child when the Accused Person’s and his sons used the opportunity to attack him.
Defence Case
29. At the close of the Prosecution case, this Court ruled that the Accused person had a case to answer and placed him on his defence.
30. The Accused Person gave a sworn testimony. He denied committing the offence. He testified that on 23rd to 24th June 2023, he was in his house at night and at 11 p.m. he heard noises as someone was shouting “thief! thief!” with people running towards his compound. That a crowd gained access into his compound and they assaulted the person who they were chasing. Thereafter they left with the person and he proceeded to leave his house to check on what had happened but did not see anyone. He went on to testify that the next day he heard people saying that someone had been killed by the road side and he went to view the body which was about 500 meters away from his house. He stated that the deceased did not hail from his village and he was afraid of the fact that the deceased was mobbed in his compound and hence his going into hiding in a maize farm.
31. On cross-examination, he told the Court that the deceased was suspected to be a thief and he was chased into his compound and he was in his compound when the deceased was assaulted.
32. On re-examination, he told the Court that he did not witness the assault.
Submissions
33. The Prosecution did not file submissions.
34. Learned Counsel Wattangah for the Accused Person submitted that the prosecution has failed to prove the ingredients of the offence of murder against the Accused Person. He submitted that the prosecution has relied on the contradictory evidence of the Prosecution witnesses. For example, they did not witness the Accused Person beat and frog match the deceased person from his compound to the road where he was found face skinned out, eyes removed and ear cut off. Further, he submitted that the kind of light used to identify the accused was insufficient to ensure positive identification. It is also submitted the Prosecution witnesses’ evidence is fraught of gaps that casts doubt as to whether they saw the Accused Person murder the deceased herein. He placed reliance on the cases of Republic vs Daniel Musau & Another (2025) eKLR and Mary Wanjiku Gichira vs Republic (1998) eKLR.
Determination
35. Upon my analysis and consideration the evidence of both the prosecution and the defence, and the submissions of the latter, the issue that arises for determination is whether the death of the deceased can be attributable to the actions of the Accused Person.
36. In order for the prosecution to secure a conviction on the charge of murder, it has to prove three ingredients against an Accused Person as outlined in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR, as follows:-
(a) That the death of the deceased occurred;
(b) That that the accused committed the unlawful act which caused the death of the deceased; and
(c) That that the accused had malice aforethought.
Proof of death
37. The evidence on the death of the deceased has been proved by PW1, and 7 who saw deceased’s body that was lifeless and by the postmortem form PEXH7 produced by PW7 that confirms that deceased died of brain injury due to blunt trauma secondary to assault.
The unlawful act of killing/causing death (actus rea)
38. None of the witnesses saw the deceased being killed. The Prosecution has therefore relied on circumstantial evidence to prove its case.
39. What then is circumstantial evidence? This is evidence that is indirect that does not on its face, prove a fact in issue but gives rise to a logical inference that the fact exists. Such evidence requires the drawing of additional reasonable inferences in order to support the claim. It is evidence that relies on inference to connect it to a conclusion of fact.
40. The main evidence which the Prosecution linked the Accused Person to the offence herein was that of the evidence of PW4 to PW6 which identified him and placed him at the scene of crime. PW5 Zachariah Lucheveleli Litoyo was categorical that the accused person and one of his sons identified as Alex were the ones who were assaulting the deceased. That the accused was using a stick while Alex was using a wire and a piece of firewood.
41. PW6 Alfayo Khaemba Odwani also testified that he saw the accused person whie assaulting the deceased using a piece of firewood and wire. This witness testified that the assailants had torches wherefore he was able to identify them as his neighbour and his sons. PW4 to 6 all testified that they had tried to implore the accused person, who had accused the deceased of theft of a handset and a power bank, to stop the assault to no avail.
42. The Accused Person also testified that he was inside his house while a mob assaulted the deceased herein and that he did not participate in the assault.
43. The evidence availed by PW8 showed that some of the clothes recovered in the compound of the Accused Person belonged to the deceased herein.
44. Premised upon the foregoing analysis of the evidence, I find that the Prosecution has proved beyond reasonable doubt that the Accused person was responsible for the unlawful act which caused the death of the deceased which constitutes the ‘actus reus’ of the offence.
45. The Accused Person is a neighbor and PW4 to PW6 knew him very well, and were able to recognize him with the aid of the torchlight as the accused and his sons had torches during the assault. The accused was thus identified through recognition.
46. The Court must determine whether Accused Person, with malice aforethought inflicted the injuries that resulted in the death of the deceased. There is of course no requirement in the Penal Code that one must have motive for murder which is the unlawful killing of another with malice aforethought under Section 203 of the Penal Code. The ingredients of murder were explained in the case of Roba Galma Wario v Republic [2015] eKLR where the Court held that;
“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”
47. On the issue of malice aforethought, Courts consider the nature of the weapon used, the parts of the body attacked, the number of times the weapon is used on the victim and the conduct of the assailant before, during and after the attack. As it transpired from the evidence the manner of the attack upon the deceased left no doubt that the assailant intended to inflict upon the deceased grievous injuries which led to the death. It can safely be inferred that death was the desired outcome of the assault of the deceased by the accused person and his son Alex. I have considered the injuries occasioned to the deceased. The post mortem report (PEXH7) indicated that the deceased died of brain injury due to blunt trauma due to assault.
48. I am satisfied that the Prosecution has proved malice aforethought against the Accused Person.
49. On the balance I find that all the three (3) ingredients of murder have been established. I therefore find the Accused Person Stephen Munjosi Wasike guilty of the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code and I convict him accordingly.
It is hereby so ordered
Dated and delivered at Bungoma this 27Th day of November 2025.
M.S.Shariff
Judge
In the presence of:
MR WATTANGA FOR ACCUSED PERSON
MS KIBET FOR THE STATE
PETER MACHONI COURT ASSISTANT
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