https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/609

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE'S COURT AT BUNGOMA** **PUBLIC INQUEST NO. E 003 OF 2025** **IN THE MATTER OF THE PUBLIC INQUEST INTO THE DEATH OF KELVIN WANYAMA WAWIRE** **RULING** **Introduction** 1. Kelvin Wanyama Wawire (“the deceased”) was involved in a road traffic accident on 30th November 2022 along Bungoma – Chwele road when his motorcycle registration number KMGF 745 D (“the motorcycle”) reportedly lost control and hit motor vehicle registration number KDA 083 J (“the lorry”). 2. Upon conclusion of investigations into the circumstances under which the fatal accident occurred, the Office of the Director of Public Prosecutions (ODPP) directed that this matter be disposed of by way of a public inquest in accordance with section 386 of the Criminal Procedure Code. **EVIDENCE** 1. The state called two (2) witnesses whose testimony is summarized hereunder. 2. **IW1 No. 811XXX PC Aaron Sang** of Bungoma Police Station testified on behalf of the accident’s investigating officer Ssgt. Nasia Mbwana, who was transferred to Taita Taveta. His testimony was that the accident occurred when the deceased hit the lorry after he had lost control of the motorcycle. He blamed the deceased for causing the accident. 3. He admitted that he did not visit the scene. He produced the accident’s sketch plan as an exhibit. 4. **IW2 Dr. Eliud Kiplimo Kosgey** conducted the deceased’s postmortem examination at Bungoma County Referral Hospital on 01st October 2025. He produced the deceased’s postmortem form dated 01st October 2025 showing that the deceased’s death was caused by a severe head injury from a crush injury to the head as an exhibit. 5. **IW3 No. 20142009 Fredrick Kisika** is a motor vehicle inspector. He produced the motorcycle and the lorry’s Certificates of Examination and Test of Vehicles, both dated 02nd December 2022, showing that the motor vehicle and the motorcycle did not have any pre-accident defects before the occurrence of the accident as exhibits. The said certificates also showed that the motor vehicle and the motorcycle front parts were damaged as a result of the accident. **ANALYSIS AND DETERMINATION** 1. This court has already stated earlier in this ruling that this court derives its power to conduct an inquest from section 386 of the Criminal Procedure Code. The nature of inquest proceedings was well explained in **Domascewicz vs. State Coroner [2004] VSC 528** as follows: *“An inquest is not a proceeding inter partes. It is part of an investigative process which is concerned, inter alia, to set the public mind at rest where there are unanswered questions about a reportable death.”* 1. A reading of the authority above reveals that a court in Kenya conducting an inquest per section 386 of the Criminal Procedure Code sits not as a silent umpire as is common in our adversarial system but sits as an investigator, just like in adversarial legal systems. A court in inquest proceedings is thus mandated to carry out further investigations on the circumstances under which the deceased died. 2. The scope of an inquest has been the subject of many judicial pronouncements, including **Re Joyce Mumo Makenzie (Deceased) [2009] eKLR** and **Re Estate of Phillip Otieno Odhiambo (Deceased) [2015] eKLR**. The common thread running through the said authorities is that the scope of this court’s powers in an inquest is to establish the cause of the deceased’s death and whether the evidence on record supports a proposition of criminal culpability by some known or unknown person. 3. It is against this backdrop that this court finds and holds that the issues for determination are the cause of the deceased’s death and whether the evidence on record supports a proposition of criminal culpability by some known or unknown person. 4. **Cause of the deceased’s death** 5. There is no dispute that the deceased died as a result of a road traffic accident. The deceased’s postmortem form dated 01st October 2025 shows that the deceased’s death was caused by a severe head injury from a crush injury to the head. 6. Given the foregoing, this court finds and holds that the deceased’s death was caused by a severe head injury from a crush injury to the head arising from the road traffic accident herein. **(b)Whether the evidence on record supports** **a proposition of criminal culpability by some known or unknown person** 1. IW1’s testimony was that the deceased caused the accident by losing control of his motorcycle and hitting the lorry. He produced a sketch plan which did not aid this court in resolving the question of whether anyone was criminally culpable for causing the deceased’s death since the said sketch plan does not show the lorry’s position before or after the accident. 2. Further, whereas IW1 purported to blame the deceased for the accident, he admitted that he neither visited the scene nor investigated the circumstances under which the accident occurred. He stated that he was testifying on behalf of the accident’s investigating officer one Ssgt. Nasra Mbwana who proceeded on transfer. 3. Majanja J (as he then was) in **Dikir & another v Kimary (Civil Appeal 316 of 2013) [2022] KEHC 12733 (KLR) (Civ)**stated as follows on the evidential value of the evidence led by a police officer who did not investigate an accident on the circumstances under which an accident occurred: *“Since the Investigating Officer was not called as testify as to the circumstances of the accident, the reports produced amount to hearsay evidence and cannot be proof of how the accident took place. At the very least, the report is only proof that the accident involving several motor vehicles took place on the material date (see Peter Kanithi Kimunya v Aden Guyo Haro NRB HCCA No. 307 of 2008 [2014] eKLR). As to which party was to blame for the accident is a question of evidence and the remarks in the OB about blameworthiness is hearsay as the investigating officer was not called a witness. The conclusion therein are matters of opinion which are inadmissible to prove facts.”(Emphasis added)* 1. The authority above is abundantly clear that any information in an OB extract or a police document on the circumstances under which an accident occurred, if not produced by the accident’s investigating officer, remains hearsay evidence. Therefore, the evidence led by IW1 before this court on the circumstances under which the accident herein occurred is inadmissible hearsay evidence. 2. Given the advent of virtual court sessions, the mere fact that an accident’s investigating officer was transferred to another jurisdiction does not lessen the burden placed upon the state to avail to court the makers of the documents they sought to rely on for the said makers to speak to the contents of the documents they prepared. 3. It is also perplexing that the state chose not to call the pillion passenger the deceased was carrying on the date of the accident and the lorry driver to testify on the circumstances under which the accident occurred. 4. This court cannot tell whether the state inadvertently or by design chose to ensure that this inquest inevitably collapses. However, it is evident from the record that the state conducted this inquest casually in breach of the public trust placed on it to ensure justice for all. 5. In the circumstances, this court finds and holds that the evidence on record is barely adequate for this court to make a finding on whether or not anyone is criminally culpable for causing the deceased’s death. **DETERMINATION** 1. The upshot of the foregoing is that the following findings and orders commend to this court: 2. *The deceased died as a result of a severe head injury from a crush injury to the head arising from the road traffic accident herein* 3. *The evidence on record is barely adequate for this court to make a finding on whether or not anyone is criminally culpable for causing the deceased’s death* 4. *The inquest file be remitted back to the ODPP to cause the attendance of all available witnesses capable of unravelling the circumstances under which the deceased died* 5. *The ODPP is at liberty to reopen this inquest file per section 388(2) of the Criminal Procedure Code for further action* 6. *This inquest file is hereby closed as per section 387 (5) of the Criminal Procedure Code, for now.* 7. Orders accordingly. **Ruling read, signed and delivered in open Court at Bungoma this 27th day of July 2026** **T. O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. Achieng and Ms. Mulwa for ODPP C/A: Mr. Rioba