https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8891

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT GARSEN** **CRIMINAL CASE NO.7 OF 2020** **REPUBLIC……………………………..….….…………..PROSECUTOR** **VERSUS** **ARAFAT ABDALLAH…..….…………………………………..ACCUSED** **JUDGMENT** 1. The accused herein is facing a charge of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the night of 8th June 2020 at about 2030 hours within Tchundwa area of Faza island within Lamu County he murdered Rodgers Odhiambo (herein referred to as the deceased). 2. The prosecution called 5 witnesses in the case while the Accused defended himself upon being placed to his defence and called 3 witnesses. **Case for Prosecution** 1. The case for the prosecution was that the deceased was at the material time a police officer based at Tchundwa police post in Faza Island of Lamu county. PC Langat Erick PW1 was at the material time a police officer at the same police post. 2. It was the evidence of PC Langat PW1 that on the material day at around 6.45 pm he was at Tchundwa shopping centre with the deceased. That they went to a shop to buy food. They found the accused at the gate to the shop. He, PW1, entered into the shop and when he came out, he found the deceased talking to the accused. He and the deceased returned to their camp at around 8pm. That after a while the deceased told him that he had received a phone call from the accused. The deceased left the camp. He PW1 left the camp for another village where he stayed upto around 8.30pm. That he went to a shop to buy airtime. That while there he heard a commotion. He flashed a torch and saw three people who were armed with machetes and other weapons. They were about 10 meters away. One of them was wearing military uniform. He identified him as the accused. The people flashed a torch back at him. They advanced towards him. He sensed danger and fled. The people chased him. He reached a place of safety and entered a certain house. A lady who was in the house assisted him to call PC Langat PW5 who went to the place in company of other police officers. He briefed them on what had happened. They proceeded to the place he had been confronted by the gang. They found the body of the deceased lying outside the rented house of the Accused. It had multiple cuts. His colleagues entered into the house of the accused but they did not find him. 3. It was further evidence of PW1 that the accused went into hiding and resurfaced after several months when he was handed over to the police by a human rights body, MUHURI. 4. Among the officers who went to the scene of the killing were PC Nicholas Baru PW2, IP Ronoh PW3 and PC Erick Langat PW5. IP Ronoh was assigned to investigate the case. It was his evidence that he found out from Safaricom data that the accused made a phone call to the deceased on the material day at 1944 hours. That he charged the accused with the offence after the Appellant surrendered to the police. 5. A post mortem of the body of the deceased was conducted by a government pathologist, Dr.Oduor PW4. He found the body with injuries caused by sharp object on the head, face, left cheek, neck, chest and both legs below the knees. Internally he had fractures of the skull and jaw. The brain was injured. During the hearing of the case in court the pathologist PW4 produced the post mortem report as exhibit, P.Ex.2. **Defence case** 1. When placed to his defence, the accused stated in a sworn statement that he was living at Totongwe village in Tchundwa. That in the month of May 2020 his wife gave birth and went to stay with her parents. He was left in his house with another person who had rented the house with him. That on 8/6/2020 he was out into sea fishing. He returned at 2pm and went to the home of his mother where he stayed upto 4pm when he went to play football. That after playing for one hour he passed by the shop of Bwana Posta around 5pm. He found the deceased there in the company of PC Wafula. He was known to the deceased as he had previously worked at a construction site at the police post. They exchanged greetings. He left the place and went to the home of his father-in-law where his wife was. He arrived there at 6pm and stayed there upto 9pm when he left for his house. That on reaching near his house he saw some people outside his house. A neighbour DW4 checked and found that the people were policemen. He feared and went to sleep at the house of a friend. A certain woman then told them that a police officer had been killed at Kwa Bwana Posta. People started to run. He feared and went into hiding for over two months. He later surrendered to the police after intervention by MUHURI 2. The evidence of the Appellant that he was on the evening of the material day at the home of his father-in-law was supported by his wife, DW2 and his father-in-law DW3. His wife DW2 however stated that the Accused arrived at her parents’ home at 9pm while the Accused`s father-in-law DW3 testified that the accused arrived there at 7pm and left at 9pm. **Submissions** 1. The Accused through counsel made submissions in the case while the state did not tender in submissions. 2. Counsel for the Accused submitted that the witness for the prosecute PW1 claimed that he identified the accused with a torch light at night at a distance of about 10 metres in a brief moment while he was fleeing away in fear and panic. It was submitted that the conditions were not favourable for positive identification. Counsel relied on the case of **Wamunga v Republic (1989) 424** where it was held that identification evidence made under difficult conditions must be approached with greatest caution and the court must be satisfied that the conditions were sufficient to exclude the possibility of mistaken identity. 3. It was submitted that PW1 did not inform the officers who went to the scene that he had identified Arafat, the accused, among the people who confronted him. That failure to mention his name meant that he did not know any of the people. 4. It was submitted that PW1 contradicted himself in his evidence in that he initially stated that he saw 3 people, one of whom was in military uniform whom he identified as the Accused, but stated in cross-examination that he saw one person and that he identified him by his clothes. That the witness said that he did not see the deceased being attacked and only saw his body later on when other policemen arrived. His evidence does not establish that the accused committed the offence. 5. It was submitted that the evidence that the accused called the deceased was heresy and cannot be used against him. That the evidence of PW4 established that it is the deceased who called the accused which contradicts the prosecution theory that it is the Accused who lured the Dcd to his death. That the Safaricom liaison officer did not testify in the case and therefore there was no evidence of communication between the accused and the deceased. 6. Counsel submitted that the conduct of the Accused disappearing into the forest for several months was not evidence of guilt consciousness but that of a frightened person. 7. It was submitted that the investigating officer did not testify in the case nor was the murder weapon recovered. That there was no malice aforethought established in the case. Counsel urged the court to acquit the Accused of the charges. **Analysis and determination** 1. This being a criminal case, the standard of proof is that of beyond reasonable doubt. Lord Denning in **Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372** stated this degree to be as follows: “**That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”** 1. In **Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR, Mativo J. (as he then was)** expressed himself as hereunder on the subject: **“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”** 1. The accused is facing a charge of murder contrary to section 203 of the Penal Code. The section defines murder in the following terms: **“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”** 1. The elements of the offence of murder were stated in the case of **Republic v Andrew Omwenga (2009) eKLR** where the court held: **“It is clear from this definition that for an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or omission – there are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are:** **(a) The death of the deceased and the cause of the death,** **(b) That the accused committed the unlawful act which caused the death of the deceased and** **(c) That the accused had the malice aforethought”.** 21. This court has therefore a duty to analyze the evidence in light of these essential elements required to be proved by the state against the accused person. I will deal with the ingredients of the charge as hereunder. 22. As pertains to the death of the deceased, a post mortem was conducted on the body of the deceased by a pathologist doctor, PW4 who found it with multiple cuts on the head, neck and chest with fractured skull and left jaw. 23. The doctor opined that the cause of death was due to multiple cut wounds. The findings and conclusion of the pathologist were not challenged. I therefore accept that the cause of death of the deceased was as opined by the doctor. 24. The second issue is whether the Accused is the one who committed the unlawful act that caused the death of the deceased. The prosecution in this respect relied on the evidence of PC Langat Erick PW1 that he saw and identified the Accused at the place where the deceased was attacked. The incident was said to have occurred at night at around 830pm. Evidence was adduced that it was a dark night. The law is that before the court can convict on the evidence of identification at night it must be satisfied that such evidence is free from the possibility of error. In **Francis Karuiki and 7 others vs. Republic**Cr. Appeal No 6 of 2001 [200] eKLR it was held that; “**The law on identification is well settled and this court has from time to time said that the evidence relating to identification must be scrutinized carefully and should only be accepted and acted upon if satisfied that the identification is positive and free from possibility of error.”** 25. It was the evidence of PC Langat PW1 that he knew the accused before the date of the incident as he had worked at the police post as a casual. That he flashed a torch at him and identified him. That he was about 10 meters away from him when he identified him. He saw that the people were armed. They flashed a torch back at him. They then advanced towards him. He sensed danger and fled. He did not identify the other two but only saw their clothes. It was his evidence that he identified the accused by the clothes he was wearing and physical description. He said that it was a dark night. 26. Inthe case of **Kimea v Republic (Criminal Appeal 010 of 2020) [2022] KEHC 104 (KLR) (18 February 2022)** **(Judgment)** the court pointed out the factors to be considered in identification at night as to include such factors as the lighting conditions under which the witness made his/her observation; the distance between the witness; the period of time the witness actually observed the perpetrator and whether the witness had an unobstructed view of the perpetrator. 27. In my assessment, PC Langat PW1 did not have sufficient time to keenly observe the people as the people flashed a torch back at him when he flashed his torch at them. The person he claimed to have identified, the accused, was not close enough to him for clear identification as the person was about 10 meters away. Though he said it was a dark night, he did not tell the court how strong the light from his torch was. He did not say which part of the body of the accused he saw, such as his face, that made him believe that the person he saw wearing military fatigues was the accused. 28. It was the evidence of the investigating officer IP Ronoh that the Safaricom data indicated that the accused called the deceased over his mobile phone at 1944 hours. However, no witness from the said company testified to ascertain whether this was true or not. That part of the evidence therefore remained heresy. 29. In addition to the foregoing, PC Langat PW1 is the sole identifying witness in the case. It is trite law that a court before convicting on the evidence of a single identifying witness should warn itself of the danger of basing a conviction on such evidence. In **Roria vs Republic (1967) EA 583** the Court of Appeal stated at page 584 that: **“A conviction resting entirely on identity invariably causes a degree of uneasiness…That danger is, of course, greater when the only evidence against an accused person is identification by one witness and though no one would suggest that a conviction based on such identification should never be upheld it is the duty of this court to satisfy itself that in all circumstances it is safe to act on such identification.”** 30. In **Kiilu & Another v Republic [2005] eKLR,** the Court of Appeal held that; **“Subject to well-known exceptions, it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness in respect of identification especially when it is known that the conditions favoring a correct identification were difficult. In such circumstances, what is needed is some other independent evidence, whether it be circumstantial or direct, pointing to guilt, from where a judge or jury can reasonably conclude that the evidence of identification although based on the testimony of a single witness can be safely accepted as free from possibility of error.”** 31. PC Langat said that it was a dark night and though he said that he flashed a torch light at the accused, I am not satisfied that his evidence was free from the possibility of error. There was no other independent evidence pointing to the guilt of the accused. 32. The accused raised an alibi that he was at the material time at the home of his father-in-law DW3. The burden of proving the falsity of an alibi defence raised by an accused person rests with the prosecution, see **Karanja v Republic (1983) KLR 501**. In view of the insufficiency of evidence of identification by PC Langat PW1, the accused`s alibi was not dislodged. 33. Evidence was adduced that the deceased was killed outside the house of the accused. The accused went into hiding immediately after the killing of the deceased. The accused explained that he went into hiding because he received information that he was being suspected of killing the police officer and he feared retaliation by the police. This, in my view, is a reasonable explanation. It could only be dispelled by strong evidence from the prosecution that the accused was indeed the killer. 34. The third issue of malice aforethought does not arise in view of my finding that there was no sufficient evidence that the accused is the person who killed the deceased. 35. In view of the foregoing, it is my finding that the case against the Accused was not proved beyond reasonable doubt. The accused is entitled to the prevailing benefit of doubt. Consequently, I find the accused not guilty of the offence charged and acquit him accordingly. **Delivered, dated and signed at GARSEN this 19th day of June 2026** **J. N. NJAGI** **JUDGE** **In the presence of:** **Mr. Nyamweya for accused** **Mr. Oluoch for Republic** **Court Assistant - Rahma**