https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6890

Republic v Abuli (Criminal Case 26 of 2019) [2026] KEHC 6890 (KLR) (18 May 2026) (Judgment) Neutral citation: [2026] KEHC 6890 (KLR) Republic of Kenya In the High Court at Kakamega Criminal Case 26 of 2019 S Mbungi, J May 18, 2026 Between Republic Prosecution and Justus Opeywa Abuli Accused Judgment 1.The accused person herein, Justus Opeywa Abuli, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on the 17th day of April 2019, at Emukinzi Village, Emukanga Location, Emuhaya Sub-County within Vihiga County, the accused person murdered one Jacktone Masava. 2.The accused pleaded not guilty, thereby placing upon the prosecution the duty to prove every essential ingredient of the charge beyond reasonable doubt. To establish its case, the prosecution called a total of seven (7) witnesses. Prosecutions Case 3.PW1 – Teresia Katumbi Zablon testified that on 17th April 2019 at about 5:00 p.m., while brewing busaa at her home, the deceased, known to her as Moi, and the accused, Ajusto, came to her home quarrelling. The deceased held the accused by the shirt as if to fight him. PW1 intervened and told them to leave, which they did. The following morning, she learnt that Moi had been killed and his body found near his home. She informed the area chief that Ajusto ought to be traced. During the arrest of the accused, she was present and observed that his clothes and a stick (produced as PMFI–1) had bloodstains. She noted injuries on the deceased’s left eye, shoulders, and head, and that there was blood all over where the body lay. 4.On cross-examination, PW1 stated that both the accused and the deceased were her neighbours and regular busaa customers. She could not recall the colour of the accused’s clothes that day but confirmed that the stick was recovered from his house. 5.PW2 – Tony Anyika, a nephew to both the deceased and the accused, testified that on the material evening, he been sent by his mother to the shop to buy onions and tomatoes. He met the deceased, who accompanied him. As they walked back, under the moonlight, he saw someone ahead of them whom he recognised as the accused. The accused, who was armed with a rungu, suddenly struck the deceased on the neck and head. The deceased tried to ask, “Ni nini mbaya?” but the accused did not respond. PW2 ran home in fear and informed his mother, who advised him to report to the village elder the next morning. On his way to report, he learnt from a boda boda rider that someone had been found dead on the road, and he found the body surrounded by villagers and the chief. He identified the weapon as the same rungu used during the assault. He recalled that the deceased was a little drunk but could not tell whether the accused was drunk as well. It was his evidence that Justus killed the deceased after they disagreed over some money. 6.On cross-examination, PW2 maintained that he knew both men very well and clearly recognised the accused as there was moonlight. He denied being shown the stick before testifying and confirmed that the accused was wearing a black jacket and trousers. 7.PW3 – Mabel Auko, the wife of the deceased, stated that her husband left home on 17th April 2019 after planting a tree and did not come back home. The next morning, his body was found near their home. She identified the accused as Justus Opeywa, a friend of the deceased. She stated that PW1 told her that the deceased and accused had a dispute over Kshs. 60/- firewood that they had sold. She added that the deceased had injuries on the head and the head was crushed. 8.On cross-examination, she stated that the body was discovered by a child heading to the river and was found lying by a footpath. She confirmed that she neither removed any items from the scene nor witnessed the attack. She submitted that she recorded her statement before the burial, and that the deceased did not tell her of any dispute with the accused. 9.PW4 was PC Edward Kirwa NO 255654. He testified that on 18th April 2019 at 7:00 AM while at the station, a reportee informed him that the there was a call regarding a body lying on the road. He went to the scene together with a colleague. They found the body and came back to the station. Thereafter a lady called Teresia came and reported that the previous day, the deceased and Justus had been quarreling at her home on account of money. Acting on this information, the accused was apprehended and a rungu was found at his home. Upon questioning, he denied committing the crime and said he was with Evans who was also apprehended. He recalled that they found the deceased lying on his back and there was an injury on his face. They picked the body at around 11:00 am. He was initially told that the accused was called ‘Justo’. he stated that the accused was apprehended about four kilometers from where the body was found and the rungu had blood stains. 10.On cross examination, he stated that his duty was to arrest the accused and that he did not record anywhere that he had taken the exhibits, neither was he the one who recorded the accused’s statement. He stated that they handed over both Evans and Justus to the police station. He stated further that he did not know if Evans recorded a statement. 11.PW5 was Dr. Mchana, a government pathologist. He produced the postmortem report of the deceased which he conducted on 24th April 2019. He stated that the cause of death was severe head injury secondary to blunt force following an assault. 12.On cross examination, he stated that there were lacerations on the deceased’s head, with brain substance oozing through skull. He formed the opinion that the cause of death was severe head injury secondary to blunt force trauma following an assault. He stated that there were no injuries on the neck. 13.PW6 , Dalmas Kibet, a Government Analyst based in Kisumu, recalled that he received exhibits from DCI Emuhaya namely a rungu labelled ‘C’, and fingernails from the deceased’s body in a clear polythene bag marked ‘B’. Upon examination, he found that the rungu was having stains of blood. In his findings, the DNA profile generated from blood stains from the rungu had the DNA profile of the deceased. He signed the report on 20th November 2019 and the same was produced in court. 12.On cross examination by Mr. Otsyeno, advocate for the accused, he confirmed that the exhibits were properly sealed and labelled, ruling out any contamination. 14.PW7 CPL Kenneth Mugabe (No. 77811) of DCI Bungoma (previously attached in Vihiga), recalled that on 26th April 2019 he was instructed by the DCIO to conduct investigations on a murder case that had occurred on 17th April 2019. He stated that he recorded statements from PW1 who stated that the deceased and the accused had an argument in her home where she sold chang’aa (illicit brew), over 60 shillings from a firewood sale. He also recorded statements from PW2 who was with the deceased when the accused attacked him. PW2 informed PW7 that he was able to identify the suspect because of the moonlight. PW7 then prepared the exhibits and took them to the government analyst at Kisumu. The accused was taken for mental assessment then charged upon completion of investigations. 15.On cross examination, he denied that there was another suspect in the investigations. He ascertained that the weapon was picked from the accused person’s house and that the accused was present at the time the exhibit was collected. 16.That marked the close of the prosecution case. This court presided over by Hon. Lady Justice S.C. Chirchir found that a prima facie case had been established against the accused person. The accused was called to give his defence under Section 306 as read with section 307 of the Criminal Procedure Code. Defence case 17.In his defence, the accused elected to give a sworn statement and in denying the offence gave an account of events of the material day as follows: That he was arrested when planting maize at his home and taken to the police car where he saw the body of the deceased whom he recognized as Moi. He stated that he met the deceased in a drinking den and the deceased demanded for Kshs 40/- , money which the accused owed him .He stated that he gave the deceased Kshs. 100/- shilling note to deduct his money but when he demanded for the balance the deceased became violent. He stated that he went away to his home. The following day, he heard that the deceased had been found dead. He stated that he only saw a rungu when at the police post and insisted that he did not know who killed the deceased. 18.On cross examination he stated that there was a report made to the police that a rungu was found in his house. H e reiterated that the primary dispute with the deceased arose from him demanding his Kshs. 60/- balance. That marked the end of the defence case. 19.Parties were at liberty to file submissions. At the time of writing this judgment, no submissions are on record. Analysis & Determination 20.With this background from both the prosecution and the defence, it is now my singular duty to assess the evidence to establish whether the prosecution has discharged the burden of proof beyond reasonable doubt to warrant conviction of the accused. 21.The prosecution’s mandate is to discharge this burden of proof of establishing that the accused person in this case committed the offence of murder beyond reasonable doubt. (See section 107(1), 108 and 109 of the Evidence Act). In such serious cases, the evidence must carry a high degree of probative weight. 22.Section 203 of the penal code defines murder as follows:“Any person who of malice aforethought causes death of another person by any unlawful act or omission is guilty of murder” 23.In the case of Anthony Ndegwa Ngari v Republic (supra), the Court of Appeal identified the following crucial ingredients of the offence of murder as essential for a conviction: -“For the offence of murder, there are three elements 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 that 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.” 24.It therefore follows that for a conviction to suffice, the prosecution ought to prove beyond reasonable doubt that the following:a.The death of the deceased,b.The death was unlawfully caused(actus rea)c.That in causing death of the deceased accused’s unlawfully acts were accompanied with malice aforethought. (mens rea)d.That additionally the accused was the person who committed the offence on the material day as against the deceased. 25.The death of Jacktone Masava is not disputed. PW3, his wife, identified his body, and PW5, Dr. Mchana, confirmed that the cause of death was severe head injury from blunt force trauma. 26.As to whether the cause of death was unlawful, It is a well-settled presumption in criminal law that, in the absence of justification, all homicides are presumed unlawful. This presumption stands unless the accused raises a credible explanation. The post-mortem findings by PW5 revealed extensive skull fractures and lacerations inconsistent with any lawful cause. The death was therefore caused unlawfully. On whether the accused was the perpetrator, The eyewitness evidence is compelling. PW2, who knew both parties, testified that under moonlight he saw the accused strike the deceased on the head and neck with a rungu. His evidence on identification was direct, consistent, and unaffected by cross-examination. 27.PW1 testified that earlier that evening, the accused and deceased quarrelled, and later the accused was arrested and a bloodstained stick/rungu recovered from his house. The recovery of a rungu with bloodstains matching the deceased’s DNA as reported by PW6 linked the accused to the fatal assault. 28.The defence that the accused left the scene and was uninvolved is not supported by any corroboration and is inconsistent with the prosecution’s overwhelming evidence. It is noteworthy, that from PW4’s testimony, the accused initially claimed to have an alibi, stating that he was with ‘Evans’. However, the accused did not raise this in his defence in court. 29.In the case of Republic v Sukha Singh s/o Wazer Singh & others (1939) 6 EACA 145 the Court of Appeal held thus:“If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards, there is naturally a doubt as to whether he had been preparing it in the interval and secondly, if he brings it forward at the earliest possible moment it will give the prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness, proceedings will be stopped”. 30.The accused’s defence, denying involvement and claiming to have parted ways peacefully, is unsupported by any credible counter-evidence. A bare denial, in face of cogent and unshaken evidence, cannot raise reasonable doubt.Taken together, the evidence excludes other plausible hypotheses of innocence and points irresistibly to the accused as the perpetrator. 31.As to whether the unlawful act of assault was actuated by malice aforethought, section 206 of the Penal Code defines it 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 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;c.An intent to commit a felony; ord.an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.” 32.The question is whether the accused in hitting the deceased intended to cause death or new that the manner and degree of assault will probably cause death. Applying the above principles to this instant case, this court notes that the accused used a rungu, a blunt weapon, directed at the deceased’s head, a delicate and vital part of the body. The force was sufficient to crush the skull of the deceased. 33.The nature of the injuries and the part of the body targeted indicate that the accused intended either to cause death or grievous harm. The court therefore finds that malice aforethought is proved. Conclusion 34.Upon evaluating the evidence wholly, the court is satisfied that the prosecution has proved all the ingredients of the offence of murder beyond reasonable doubt ; that the accused, Justus Opeywa Abuli, unlawfully caused the death of Jacktone Masava. 35.Accordingly, the accused is found guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and is hereby convicted accordingly. 36.Right Appeal 14 days. DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 18THDAY OF MAY, 2026.S.N. MBUNGIJUDGEIn the presence of:Court Assistant: Elizabeth Agong’a.Mr. Otsyeno for the Accused, absent.Mention for mitigation and pre-sentence report on 28.7.2026.