Republic v Mulongo alias Longo (Criminal Case E010 of 2024) [2026] KEHC 13190 (KLR) (31 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **CRIMINAL CASE NO. E010 OF 2024 ( MURDER)** **REPUBLIC…………………………………………………….** **PROSECUTOR** **VERSUS** **JOSEPH MULONGO alias LONGO………………………………** **ACCUSED** **JUDGMENT** 1. Joseph Mulongo alias Longo, the accused, is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars in the amended information dated 20th January 2025, are that on 7th February 2024 at Nambalayi Village, Kibisi Location, Bungoma North Sub-County within Bungoma County, he murdered Derrick Barasa. 2. The accused pleaded not guilty. The prosecution called eight witnesses. The accused elected to give sworn evidence and did not call any witness. 3. Three prosecution witnesses had testified before the information was amended. On 20th January 2025, the amended information was read and explained to the accused in Kiswahili, and he pleaded not guilty. The court drew Counsel's attention to the witnesses who had already testified. Counsel stated that it was not necessary to recall them and elected to proceed with the hearing. The remaining prosecution witnesses thereafter testified on the amended information. 4. Before I set out the evidence, I need to address the issue of the accused's mental fitness. The proceedings of 20th February 2024 indicate that a mental assessment found the accused fit to plead; the accused then entered a plea of not guilty. The plea was subsequently taken afresh on 20th January 2025. A later mental status examination dated 16th October 2025 recorded no psychopathology, with good orientation, memory, judgment and insight, and concluded that the accused was fit to take a plea and participate in the proceedings. The trial proceeded thereafter without any objection to fitness, and the accused did not raise insanity as a defence. I have considered the earlier entry together with the subsequent proceedings, and I am satisfied that it does not establish incapacity at the time of the offence or prejudice the trial that followed. # PROSECUTION CASE 1. The prosecution case arose from events shortly after 1.00 p.m. on 7th February 2024, when pupils who had gone home for lunch were returning to school at Musembe. Elcay Mukhwe Khisa (PW1) testified that she was seated outside her home when she saw the accused pass along the road towards the market. He was carrying a sharpened panga. The road was close to her home, and it was daytime. 2. PW1 knew the accused before the material day. His family lived in the locality, and she had known him for several years. She also knew the deceased, who lived about ten minutes from her home and was a friend of her children. Shortly after the accused passed, the deceased came along the same road on his way back to school. He greeted PW1, and they spoke briefly before continuing along the road. 3. PW1 testified that shortly thereafter she heard the deceased cry out, in substance, 'stop killing me' and 'wacha kuniua'. She stood up and saw the accused cutting the deceased with the panga. The deceased fell to the ground. PW1 saw the accused continue cutting him and cut the deceased at the back of the neck. She went into her compound, picked up three bricks, returned, and told the accused not to kill the deceased. 4. According to PW1, the assault continued until the panga broke into two pieces. As she moved closer, the accused turned towards her and attempted to cut her. She bent, and the blow missed. She threw bricks at him. The accused then ran away, and PW1 pursued him, screaming for help. 5. PW1 followed the accused towards a sugarcane plantation and saw him discard part of a broken panga. Further along the road, she met a motorcycle ridden by someone she knew as James. The accused boarded the motorcycle and was driven towards Lunyu. PW1 returned to the scene and found the deceased lying on the road. He was dead. When police officers later arrived, PW1 showed them the sugarcane area where she had seen the accused discard part of the panga. That part was recovered. 6. PW1 identified the two pieces of the broken panga in court. She also identified the bloodstained clothes worn by the deceased and the clothes she said the accused was wearing at the material time. In cross-examination, she maintained that she had known both the deceased and the accused before the incident and that she had seen the accused attack the deceased in broad daylight and at close range. She was unaware of any earlier quarrel between them and said she did not know of any mental illness affecting the accused. 7. Peninah Nangondu Njuya (PW2) was at home at about 1.00 p.m. when she heard screams coming from the direction of Musembe. She went towards the screams. On the road, she saw a motorcycle pass. James was riding it, and the accused was the passenger. PW2 knew both men before that day. When she reached the scene, she found a crowd around the deceased's body and saw a lot of blood around the head. 8. PW2 did not witness the assault. She identified the accused in court and described the shirt she said he was wearing. In cross-examination, she accepted that she could not say what had happened before she reached the scene. 9. Tom Sifuma Koliai (PW3), a relative of the deceased, attended the post-mortem examination at Webuye County Hospital on 14th February 2024 and identified the body to the doctor. He observed injuries, including a deep cut on the left side of the neck and injuries to the hand and head. 10. Ben Waswa (PW4), an uncle of the deceased, also attended the post-mortem examination and identified the body. He observed cuts to the hands and head. He did not witness the assault and did not know the accused. 11. Jennifer Musieni Bukokhe (PW5), aged 77, testified that the deceased had lived with her for many years and that she was responsible for his schooling. On the morning of 7th February 2024, the deceased went to school, returned home for lunch, and then left to return to school. PW5 was unwell and resting at home when she heard commotion and screams that the deceased had been killed. She went towards the road and met the accused moving away while carrying a panga. She knew him well from the locality. She followed him, screaming to prevent his escape, and another woman joined the pursuit. PW5 saw the accused throw the panga into a sugarcane plantation. Members of the public later restrained him, and, because the crowd appeared likely to harm him, he was taken away on a motorcycle towards the police station. 12. PW5 returned to the scene and found the deceased already dead. She observed cuts at the back of the head and on the hands, and noted part of a broken panga at or near the scene. In cross-examination, she accepted that she had not witnessed the actual assault. She maintained that she knew the accused before the incident and had seen him immediately afterwards carrying the panga, after which she followed him. She had only heard that the accused had previously suffered mental problems and had no personal knowledge of that matter. 13. Dr David Wanikna (PW6), a medical doctor and medical superintendent, produced the post-mortem report following the examination of the deceased's body on 14th February 2024 by Dr Vilembewa. He testified that the deceased had multiple sharp-force injuries. The external examination recorded penetrating and cut wounds around the upper back and head, and a severe cut involving the left wrist and major blood vessels. The internal examination disclosed serious vascular injury with extensive bleeding and a penetrating injury to the left temporal region involving the brain. PW6 further testified that the injuries were consistent with a sharp weapon. In his opinion, death resulted from severe sharp-force injuries, fatal haemorrhage, and the penetrating head injury. The post-mortem report was produced as PExhibit 8. 14. No. 88038 IP Shadrack Marangu (PW7), the investigating officer attached to DCI Bungoma North at the material time, investigated the death. He attended the scene, received and preserved the exhibits, and followed up on the recovery of the broken panga. The two portions of the weapon were marked separately. He also took custody of the deceased's clothing and of the clothing and sandals attributed to the accused. He prepared an exhibit memo and forwarded the exhibits to the Government Chemist in Kisumu for biological examination. The items were identified as follows: A1, a bloodstained white short-sleeved shirt belonging to the deceased; A2, a bloodstained green T-shirt belonging to the deceased; A3, black long trousers belonging to the deceased; B1, bloodstained grey khaki long trousers belonging to the accused; B2, a grey and purple Real Madrid jersey belonging to the accused; B3, a pair of black or grey sandals belonging to the accused; C1 and C2, the two pieces of the broken panga; and D1, a reference blood sample from the deceased. 15. The physical exhibits were produced in evidence. The broken panga, with its handle, was PExhibit 1, and the separate blade portion was PExhibit 2. The deceased's clothes were PExhibits 3 to 5. The accused's jersey and trousers were PExhibits 6 and 7, the sandals were PExhibit 9, and the exhibit memo was PExhibit 10. PW7 explained how the exhibits were moved from the scene and from the persons from whom they were obtained to the Government Chemist. 16. David Kiara Muthoni (PW8), a Government Analyst based at the Government Chemist in Kisumu, received the exhibits on 12th February 2024 in accordance with the exhibit memo prepared by PW7. He examined the bloodstains and generated DNA profiles. Human blood was detected on the deceased's clothing, on the trousers, jersey and sandals attributed to the accused, and on both pieces of the broken panga. 17. PW8 testified that the DNA profiles generated from the bloodstains on A1, A2, A3, B1, B2, B3, C1 and C2 were identical to and matched the DNA profile generated from the reference blood sample D1 of the deceased. That evidence showed that the blood detected on the clothes and sandals attributed to the accused, and on both pieces of the broken panga, was the deceased's blood. PW8 produced his report as PExhibit 11. 18. In cross-examination, PW8 was questioned about a discrepancy between the date at the head of his report and the date in the execution portion. He identified the report as his work, gave evidence of the examinations he carried out, and identified the exhibits by their marks. No evidence was placed before the court suggesting substitution, contamination or tampering with the samples. # DEFENCE CASE 1. Joseph Mulongo, the accused (DW1), gave sworn evidence. He stated that he was twenty-four years old and gave an account of his family background, schooling, and the places where he had lived and worked. He said that he had undertaken casual work and small-scale trading within the locality. On the charge before the court, the accused denied killing the deceased. He said he heard screams and was confronted by members of the public, who chased and beat him. He said he did not know why they were assaulting him and denied attacking the deceased with a panga. 2. The accused stated that a motorcycle was used to take him away from the crowd and that he was eventually taken into police custody and transferred through police facilities. He complained that he had been beaten before he reached the police. He denied possessing the panga used in the killing and denied knowing what had happened to the deceased. 3. In cross-examination, the accused did not identify any grudge between himself and PW1, PW2 or PW5 that would have led them to falsely implicate him. He maintained his denial. He also denied possessing the panga and rejected PW1's evidence that she saw him discard part of it, as well as PW5's evidence that she followed him while he was carrying it. 4. At the close of the defence case, both parties informed the court that they would rely on the evidence on the record. # ANALYSIS AND DETERMINATION 1. I have considered the evidence adduced by the prosecution and the accused's defence. The issue for determination is whether the prosecution proved the charge of murder against the accused beyond reasonable doubt. 2. Section 203 of the Penal Code provides as follows: ***“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”*** 1. The prosecution therefore had to prove the deceased's death and its cause, that the unlawful act which caused the death was committed by the accused, and that, in committing that act, the accused had malice aforethought. **Death and cause of death** 1. There is no dispute that the deceased died. PW1 returned to the scene immediately after the assault and found him dead on the road. PW3 and PW4 identified the body for post-mortem examination. PW5, who had lived with and cared for the deceased for many years, also saw the body at the scene. PW6 produced the post-mortem report. 2. The medical evidence was clear. The deceased sustained multiple sharp-force injuries, including penetrating and cut wounds to the head and upper body, a severe cut affecting major blood vessels, and a penetrating injury to the left temporal region involving the brain. PW6 gave evidence that death resulted from severe sharp-force injuries, fatal haemorrhage, and a penetrating head injury. I find that the deceased's cause of death was proved. # Whether the accused caused the fatal injuries 1. The prosecution's case on who caused the injuries rests first on the evidence of PW1. This was evidence of recognition, not identification of a stranger. PW1 knew the accused before the material day. She saw him pass her home carrying a panga. A short while later, she spoke to the deceased as he returned to school. She then heard the deceased cry out, stood up, and saw the accused cutting him. The incident occurred at about 1.00 p.m. in broad daylight. 2. PW1 gave a clear account of what she saw. She saw the deceased fall. She saw the accused continue cutting him. She saw the panga break. When she intervened, the accused turned the panga towards her. She thereafter pursued him and saw him throw part of the broken panga into the sugarcane plantation. Her evidence on these material facts was not shaken in cross-examination. 3. In **Longole & another v Republic (Criminal Appeal 5 of 2016) [2024] KECA 483 (KLR) (9 May 2024) (Judgment), the Court of Appeal, citing Anjononi & Others v Republic [1980] KLR 59**, stated: ***“Recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.”*** 1. Recognition can still be mistaken, and the court must examine the surrounding circumstances. In this case, PW1 knew the accused, saw him before the assault, observed him at close range in daylight during the assault, and pursued him immediately afterwards. I am satisfied that PW1 positively recognised the accused, and mistaken identity is ruled out. 2. PW1's evidence did not stand alone; it was corroborated. PW2 heard the screams and, on approaching the scene, saw the accused leaving the area on James's motorcycle. PW5 met the accused immediately after the incident, carrying a panga, and followed him while screaming. She saw him throw the panga into a sugarcane plantation. Both PW2 and PW5 knew the accused before that day. Their evidence places him at the scene immediately after the killing and supports PW1's account. 3. There is further evidence. The exhibit memo listed the deceased's clothes separately from the trousers, jersey and sandals attributed to the accused. PW8 found human blood on those items and on both pieces of the broken panga. The DNA profiles from each of those bloodstains matched the deceased's blood sample. The blood on the accused's clothes and sandals, and on the two pieces of the panga, was therefore the deceased's blood. 4. The forensic evidence is consistent with PW1's account of a close-range panga assault and with PW5's account that she saw the accused carrying the panga immediately afterwards. I have considered the accused's denial. The burden of proof remained with the prosecution throughout. However, his denial did not displace the direct evidence from PW1 or the independent forensic evidence. 5. I have also considered the discrepancy in the dates in PW8's written report, which was raised during cross-examination. PW8 nevertheless attended court, identified the report as his work, identified the exhibits by their marks, and gave evidence of the examinations he conducted. The exhibit memo and the identifying marks remained consistent, and there was no evidence of substitution or tampering. I find that the discrepancy in the dates does not affect the substance or reliability of the DNA findings. 6. The panga was recovered in two pieces. PW1 testified that it broke during the assault and that she saw the accused discard one piece as he fled. Both pieces were stained with the deceased's blood. That evidence supports PW1's account of the weapon used and the manner of the attack. 7. Having considered PW1's evidence, together with the evidence of PW2 and PW5, the recovery of the panga, the medical findings and the DNA evidence, I find that the prosecution has proved beyond reasonable doubt that the accused attacked the deceased with the panga, thereby causing the fatal injuries. 8. The accused's defence was a denial. He said he heard screams, was chased and beaten by members of the public, and was later taken away on a motorcycle before being placed in police custody. The prosecution's evidence shows that there was a pursuit and that members of the public became involved. That part of his defence is therefore not inconsistent with what happened after the assault. It does not explain the events that led to the pursuit. I have weighed the defence against the prosecution's evidence and find that it did not raise a reasonable doubt. 9. There are minor discrepancies in the evidence regarding the description of clothing and the precise location of some injuries. PW2, PW3, PW4 and PW5 were also clear about the limits of what each personally witnessed. I do not find those matters to be contradictions in the material facts. The evidence of PW1 regarding the assault is supported by the medical evidence, the recovery of the weapon and the DNA evidence. 10. I have considered the evidence that some persons in the locality had heard that the accused had previously experienced mental difficulty. That evidence was hearsay and was not supported by a diagnosis relating to the time of the offence. The later mental status examination found the accused fit to participate in the proceedings. The accused gave sworn evidence and did not contend that, at the time of the offence, he did not understand what he was doing or that it was wrong. 11. The final issue is whether malice aforethought was proved. Section 206 of the Penal Code provides, in the material part: ***“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances— (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.”*** 1. In **Republic v Tubere s/o Ochen [1945] 12 EACA 63**, the former Court of Appeal for Eastern Africa stated, when considering whether malice aforethought had been established: ***“It has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established...”*** 1. In this case, the weapon was a sharpened panga. PW1's evidence was that the accused did not strike the deceased once and stop. He continued cutting the deceased after the deceased had fallen. The panga broke during the assault. The injuries were to vulnerable parts of the body, including the head and neck, and one cut involved major blood vessels. The medical evidence shows the severity of the force used and the fatal nature of the injuries. 2. I find that the prosecution has proved, beyond reasonable doubt, that the accused, Joseph Mulongo alias Longo, unlawfully caused the death of the deceased and that he did so with malice aforethought. I therefore find Joseph Mulongo alias Longo guilty of the offence of murder and convict him accordingly. **Dated, signed and delivered virtually this 31st Day of August 2026.** **R.E.OUGO** **JUDGE** **In the presence of:** **Joseph Mulongo/Accused** **Miss Matere - For the State** **Mr. Maloba - For the Accused** **Minah/ Fredrick - C/A**