https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9739

Republic v Ajowi (Criminal Case 8 of 2020) [2026] KEHC 9739 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 9739 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Case 8 of 2020 JM Omido, J June 18, 2026 Between Republic Prosecution and Jared Otieno Ajowi Accused Judgment A. Information And Charge. 1.Vide the Information dated 9th April, 2020 Jared Otieno Ajowi, the accused person herein, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 Laws of Kenya. It is alleged in the particulars of the offence that on the night of 18th March, 2020, at Kadero Village in Nyakach Subcounty within Kisumu County, the accused person murdered Guya Omollo Odhiambo alias Aukot. 2.The accused person denied the charge and a plea of “not guilty” was entered, following which his trial commenced. B. The Prosecution Case. 3.The prosecution called a total of nine (9) witnesses. 4.The first prosecution witness was Alloys Juma Aoga (PW1). In his testimony, he told the court that he was the Chief of Kogut Location in Nyakach Sub-County, Kisumu County, and that he knew both the deceased, Guya Akuot Omollo, and the accused person, Jared Otieno Ajowi, as residents of his area. He stated that on 18th March 2020 at about 10.30 a.m., while at his office, he received a report from the village elder, Mary Awili, that a fight had occurred between the deceased and the accused. He proceeded to the scene, which was approximately 300 metres from his office, where he found the deceased seated on the ground and surrounded by members of the public, including the village elder and a cousin of the deceased named John Olal Ngonga. 5.PW1 testified that the deceased was conscious and able to speak. Upon inquiring what had happened, the deceased informed him that he had been assaulted by the accused, whom he referred to by the nickname “Samba.” The deceased further explained that the altercation arose from a land boundary dispute involving a sisal plant situated on the boundary between their respective parcels of land. According to the deceased, the accused had attempted to cut down the sisal plant, prompting a disagreement between them. The deceased stated that although the accused initially left after the exchange, he later returned carrying a machete and a cane. The deceased, who was also armed with a panga, stated that the accused threatened to kill him before attacking him. He further reported that he fell to the ground after being struck and that the accused continued assaulting him with a cane while he lay on the ground until members of the public gathered at the scene, causing the accused to flee. 6.PW1 stated that efforts to help the deceased stand were unsuccessful as he appeared to have sustained fractures to his legs and one arm. He consequently arranged for the deceased to be transported to Nyabondo Hospital by a motorcycle rider. He also contacted the officer in charge of Nyagot Health Centre and was informed that the accused had likewise sustained injuries and was receiving treatment there. PW1 further testified that on the following day, he received information that the deceased had succumbed to his injuries while undergoing treatment in hospital. 7.PW1 further told the court that he was aware of a longstanding land boundary dispute between the deceased and the accused. He stated that the dispute had previously been handled by a former area chief, one Ezekiel Okano, and that he himself had also made efforts to resolve it. He explained that a surveyor had been engaged to establish the boundary and facilitate access to the deceased’s homestead, but the process remained incomplete due to the hostility that existed between the parties. He stated that the matter was intended to be revisited after tensions had subsided, but this did not occur due to the subsequent events. 8.PW1 identified the accused in court and stated that he had known him for approximately fifteen years. During cross-examination, PW1 clarified that he did not witness the actual fight between the deceased and the accused and that his account of the incident was based on what the deceased told him at the scene. He further stated that the deceased had informed him that both he and the accused had been armed with pangas during the confrontation. He also reiterated that he had been informed that the accused had sustained minor injuries. No exhibits were produced through this witness. 9.The prosecution called Mary Awili (PW2) as its second witness. In her testimony, she told the court that she was a resident of Koguta Village in Nyakach and worked as a farmer as well as a village elder. She stated that she knew the deceased, Guya Akuot Omollo, prior to the events in question. 10.PW2 testified that on 18th March 2020, she heard noise emanating from within the village and proceeded to the source to ascertain what had happened. Upon arrival, she found the deceased lying on the ground. She immediately contacted the area Chief, who responded promptly and came to the scene. 11.According to PW2, upon the Chief's arrival, arrangements were made for the deceased to be taken to hospital for treatment. She stated that the deceased later died while receiving treatment. PW2 further testified that when she found the deceased, he was lying face down on the ground and appeared to be curled up. She stated that she did not speak to him and did not examine or investigate the nature of the injuries he had sustained. 12.PW2 was not cross-examined by the defence and no questions were put to her in re-examination. No exhibits were produced through this witness. 13.The third prosecution witness was Kennedy Otieno Odiga (PW3), who testified that he was a teacher at Ochol Primary School and a resident of Koguta Kagero Village in Nyakach Division. He further stated that the deceased, Guya Akuot Omollo, was his uncle. 14.PW3 told the court that on 18th March 2020 at about 10.00 a.m., he received a telephone call from one George Ogola informing him that the accused, Jared Ajowi, had assaulted his uncle. Upon proceeding to the scene, he found the deceased lying on the ground and complaining of pain in the chest. He observed that the deceased had sustained injuries to the head, leg and arm. He further stated that the village elder, Mary Awili, was present at the scene, and that the area Chief later arrived together with another relative, John Olal. 15.According to PW3, the Chief directed that the deceased be taken to hospital for treatment. The deceased was initially taken to Sigoti Health Centre before being referred to Nyabondo Hospital. PW3 testified that the deceased succumbed to his injuries at about 2.00 a.m. while undergoing treatment. He stated that John Olal had remained with the deceased at the hospital at the time of his death. 16.PW3 further testified that after receiving news of the deceased’s death, the family notified the area Chief, who advised them to make a report to the police. He stated that officers from Ogoro Police Station subsequently visited the scene, after which the family proceeded to the mortuary at Nyabondo Hospital. He further stated that they later reported the matter at Pap Onditi Police Station, where the Officer Commanding Station referred them to officers from the Directorate of Criminal Investigations. According to PW3, investigators visited the scene on 22nd March 2020 and witness statements were recorded at Pap Onditi Police Station on 23rd March 2020. 17.PW3 identified the accused in court and stated that he had known him for approximately forty years. He further testified that there had existed a longstanding boundary dispute between the deceased and the accused. According to him, the immediate cause of the quarrel was that the accused had cut down the deceased’s sisal plants. 18.During cross-examination, PW3 clarified that he did not witness the actual fight between the deceased and the accused. He stated that when he arrived at the scene, he found the deceased already lying on the ground and that the deceased informed him that he had fought with the accused. He further stated that the deceased complained about an injury to his hand and acknowledged that the accused had also sustained a cut injury to his hand. No exhibits were produced through this witness. 19.George Otieno Olal (PW4) was the prosecution’s fourth witness. In his testimony, the witness told the court that he was a driver from Nyakach and that the deceased, Guya Omollo, was his uncle. He stated that on 18th March 2020, he had left home and gone to an area known as Dr. Cheki to supervise workers who were constructing a septic tank. 20.PW4 testified that while at the site, he heard commotion and proceeded towards the road leading to Sigoti to establish what had transpired. Along the way, he encountered the accused, Jared Ogot, whose hand had been bandaged and was bleeding. Upon inquiring about the injury, the accused informed him that the deceased had cut him. PW4 advised the accused to seek medical treatment. 21.PW4 further testified that approximately 200 metres from where he had met the accused, he found the deceased seated near his gate. He asked the deceased who had assaulted him, and the deceased responded that it was the accused. PW4 stated that he attempted to assist the deceased to stand up, but the latter was unable to do so because his hands and legs appeared fractured. 22.According to PW4, he immediately contacted the area Chief and informed him of the incident. The Chief subsequently arrived at the scene and directed that the deceased be taken to Sigoti Health Centre. The deceased was thereafter transferred to Nyabondo Hospital for further treatment. PW4 stated that he later visited the deceased at Nyabondo Hospital in the company of John Omondi and observed that plaster of paris had been applied to the deceased’s right hand and right leg. 23.PW4 testified that the deceased passed away at about 2.00 a.m. while undergoing treatment. He informed the area Chief of the death, and on the following morning the Chief advised the family to report the matter to Kagoro Police Station. He stated that the police subsequently visited the scene and later directed the family to Pap Onditi Police Station, where they recorded statements with officers from the Directorate of Criminal Investigations. He specifically recalled that an officer by the name of Rotich recorded his statement. 24.PW4 identified the accused in court as the person he knew as Jared and stated that he had known him for approximately ten years. During cross-examination, PW4 stated that when he found the deceased, the latter was not in possession of any weapon. No exhibits were produced through this witness. 25.The State called John Olal Ndonga (PW5) as the fifth witness. The witness testified that he was a farmer residing in Koguta Sub-location, Nyakach, and that the deceased was his uncle. He stated that on 18th March 2020 at about 10.00 a.m., he was summoned by the village elder, Mary Awili, who informed him that a dispute had arisen between the deceased and the accused, Jared Otieno. 26.PW5 testified that upon proceeding to the scene, he found the deceased seated on the ground. According to him, the deceased informed him that it was the accused who had assaulted him. He stated that upon examining the deceased, he observed that the deceased’s right leg appeared fractured and that his right hand was bleeding. 27.The witness further testified that they contacted the area Chief, who advised them to take the deceased to hospital for treatment. They subsequently secured the services of a motorcycle rider who transported the deceased to Sigoti Health Centre. PW5 stated that the deceased was later referred to Nyabondo Hospital, where he was admitted and treated. He recalled that a plaster of paris was applied to the deceased’s injuries. 28.PW5 further told the court that he remained with the deceased at the hospital as his attendant. He stated that the deceased succumbed to his injuries at about 2.50 a.m. on 19th March 2020 while undergoing treatment. He further testified that on 25th March 2020, he attended and witnessed the post-mortem examination conducted on the body of the deceased and that he was the person who identified the body to the pathologist before the examination commenced. 29.PW5 identified the accused in court as the person he knew to have assaulted the deceased and stated that he had known him for a long time as they hailed from the same village. The witness was not cross-examined by the defence and no questions were put to him in re-examination. No exhibits were produced through this witness. 30.In his evidence before the court, Polycarp Lutta Kweya (PW6) testified that he was a Principal Government Analyst attached to the Government Chemist Department in Kisumu, a position he had held for approximately twelve years. He stated that he held a Master of Science degree in Chemistry from Jomo Kenyatta University of Agriculture and Technology (JKUAT), obtained in the year 2008. 31.PW6 testified that on 29th April 2020, he received from the Directorate of Criminal Investigations, Nyakach, through Corporal Josiah Rotich, an exhibit memo form together with two exhibits for purposes of DNA analysis. The exhibits comprised a blood sample collected from the accused, Jared Ajowi Otieno, and a blood-stained panga that had been submitted in a sealed exhibit bag. 32.The witness stated that he carried out DNA profiling and analysis on the submitted items using physical, chemical and instrumental methods. Upon examination, he established that the panga was stained with human blood. He further generated DNA profiles from the blood sample taken from the accused and from the blood stains recovered from the panga. 33.According to PW6, a comparison of the generated DNA profiles revealed that the DNA profile obtained from the blood stains on the panga matched the DNA profile generated from the blood sample of the accused, Jared Ajowi Otieno. He consequently concluded that the blood found on the panga originated from the accused. 34.PW6 informed the court that he prepared and signed a Government Analyst Report dated 9th February 2021 containing his findings. He produced the exhibit memo form dated 29th April 2020 as Prosecution Exhibit 1 and the Government Analyst Report dated 9th February 2021 as Prosecution Exhibit 2. 35.During cross-examination, PW6 confirmed that the blood stains detected on the panga matched the accused’s DNA profile. He further stated that he had not been supplied with any blood sample from the deceased for purposes of comparison and analysis. No questions were put to him in re-examination. 36.The seventh prosecution witness was Moses Odhiambo Owiti (PW7), a student at the University of Nairobi undertaking postgraduate training in pathology. He testified that he held a degree in Medicine from Sechenov University in Russia and was, at the material time, undergoing specialist training as a pathologist. 37.PW7 testified that on 25th March 2020 at about 2.00 p.m., he conducted a post-mortem examination on the body of an African male adult identified to him as Guya Omollo Odhiambo. He stated that the body was unclothed, measured approximately 5.6 feet in height, and was in a good nutritional state. Upon external examination, he noted post-mortem changes including pallor mortis, algor mortis, rigor mortis, livor mortis, and early signs of putrefaction characterized by a foul smell. 38.The witness further testified that he observed multiple injuries on the body. These included bruises on the chest, an injury around the right eye, a right supraorbital laceration, and a penetrating elliptical stab wound located above the right eye measuring approximately 2 centimetres in diameter. He also observed a laceration measuring approximately 4 centimetres on the right knee and another laceration measuring about 20 centimetres below the knee. He noted that the wounds had been sutured. Additionally, he observed a mid-shaft fracture of the left tibia and a similar mid-shaft fracture of the right tibia. 39.PW7 stated that he proceeded to conduct an internal examination of the body. He found the respiratory system to be normal, with both lungs appearing normal and the ribs intact. He testified that the heart showed no evidence of disease or physical injury. Examination of the digestive system revealed no abnormalities, and the stomach contained remnants of digested food. He further found the liver to be of normal size and free from injury. The genitourinary system was also normal, including the prostate gland and urinary bladder. 40.With regard to the head, PW7 testified that he observed a massive right-sided subdural haemorrhage together with areas of gross hyperaemia of the brain tissue around the occipital region on both sides. He stated that the spinal cord and vertebral column appeared normal. 41.Based on his findings, PW7 formed the opinion that the cause of death was massive intracranial haemorrhage secondary to severe head trauma. He informed the court that the post-mortem findings were documented in a Post-Mortem Examination Report and referred to Death Certificate No. 1407309. He produced the Post-Mortem Examination Report as Prosecution Exhibit 3. 42.The witness was not cross-examined by the defence and no questions arose in re-examination. 43.The prosecution called John Odhiambo Ooro (PW8) as its eighth witness. In his testimony, he told the court that he was a businessman residing in Kisumu and hailed from Koguta East, Kadero Village. He stated that he had known the deceased, Guya Omollo Adhiambo, for many years and regarded him as both a father figure and a brother. He explained that in 2006 he purchased a portion of land from the deceased, which was subsequently subdivided and registered as Land Parcel No. Kisumu/Koguta East/2939. 44.PW8 testified that he later purchased another parcel of land, namely Land Parcel No. Kisumu/Koguta East/2132, from one Jack Ajowi. According to him, the acquisition of the latter parcel had the effect of placing the deceased’s land behind it, thereby affecting the deceased’s direct access to the road. He stated that disputes subsequently arose concerning access and boundaries involving various neighbouring parcels of land, including Land Parcel No. Kisumu/Koguta East/2177. 45.The witness further testified that after the deceased’s death, he learned that the immediate dispute between the deceased and the accused arose when the accused allegedly cut down a sisal plant situated on or near the disputed boundary. He stated that the accused was a brother to Jack Ajowi and a neighbour of the deceased. According to PW8, the accused had persistently claimed that the parcel he had purchased from the deceased actually belonged to him and had continued raising complaints regarding the ownership and boundaries of the land. 46.PW8 identified the accused in court, whom he referred to by the nickname “Samba.” He produced a survey map obtained from the Survey Office in Kisumu for purposes of illustrating the location and boundaries of the parcels in question. The survey map, which had initially been marked for identification, was subsequently produced as Prosecution Exhibit 4. 47.During cross-examination, PW8 stated that he had been informed that the incident occurred on a road situated in front of Land Parcel No. Kisumu/Koguta East/2132, which he claimed belonged to him. He further stated that the sisal plant in question stood on that land and that, in his view, the deceased had a right to protect it. He acknowledged that he did not personally witness the accused cutting the sisal plants and that his knowledge of that fact was based on information he had received from others, including the deceased before his death. He also stated that photographs relating to the incident had been sent to him. 48.PW8 further testified that although he had provided copies of his title documents to the investigating officer, he had not produced either the title deed or an official search certificate before the court. He maintained, however, that his ownership of the land was demonstrated by his testimony and by the survey map he had produced. In re-examination, PW8 clarified that he had attended court to testify regarding the death of Guya Omollo Adhiambo. 49.The last prosecution witness was Corporal Josiah Rotich, a police officer attached to the Directorate of Criminal Investigations, Nyakach, who testified as PW9. The witness told the court that he was the lead investigating officer in the case and conducted the investigations jointly with Police Constable Musyoki, who had since been transferred from the station. 50.PW9 testified that on 19th March 2020, while attending court at Ahero, he received a telephone call from the Officer Commanding Station informing him of a fatal assault that had occurred in the Sigoti area. He was informed that the accused, Jared Ajowi Otieno, and the deceased, Guya Omollo Adhiambo, had been involved in a fight on 18th March 2020. He further stated that the deceased had been taken to Nyabondo Hospital for treatment but succumbed to his injuries on 19th March 2020. He testified that the accused had been arrested on the same day by officers from Sigoti Patrol Base and was subsequently detained at Pap Onditi Police Station. 51.PW9 further testified that on 22nd March 2020, he proceeded to Nyabondo Hospital where he observed the body of the deceased. He stated that the deceased had injuries to the head and that the leg and arm had been immobilised with Plaster of Paris. He thereafter proceeded with PC Musyoki to Kadero Village, the scene of the incident. At the scene, they were shown three sisal plants located along a boundary, which were said to have been the subject of the dispute that led to the fight. He observed that one sisal stem had been cut and was missing, while the remaining two plants had their leaves cut. 52.According to PW9, upon inquiry regarding the missing sisal stem, they were directed to the accused’s home, where the stem was recovered. He further testified that at the police station he interrogated the accused. He stated that one panga was recovered and brought by the arresting officers, which he retained as an exhibit. He further stated that the accused indicated there was another machete at his home and instructed his wife to produce it, which was subsequently brought to the station. PW9 testified that this second panga bore visible blood stains. He collected a blood sample from the accused and forwarded both the blood sample and the blood-stained panga to the Government Chemist for forensic analysis. 53.PW9 further testified that on 28th March 2020, he and PC Musyoki attended the post-mortem examination conducted on the body of the deceased, which was also attended by relatives of the deceased, namely John Olal Ndonga and Kennedy Otieno Odiga. He stated that upon completion of investigations, he prepared the investigation file and recommended that the accused be charged with the offence of murder, and that the Office of the Director of Public Prosecutions concurred with his recommendation. He further produced the two pangas as exhibits, namely P. Exhibit 4 (black handle panga) and P. Exhibit 4(b) (panga with black rubber band tied on the handle). He also referred to OB No. 3 of 19th March 2020 at Sigoti Police Post. 54.During cross-examination, PW9 stated that the disputed sisal plants were located on land belonging to John Odhiambo. He confirmed that he had spoken to both the Chief and John Odhiambo during the investigations and that he was informed that both the accused and the deceased were armed with pangas during the incident. He further stated that he could not conclusively rule out the possibility that the incident would not have occurred had the deceased not attacked first. He also confirmed that the accused sustained a cut injury during the altercation. PW9 stated that although he had recommended that the matter be treated as manslaughter in his initial report, he was later directed that the accused be charged with murder. He maintained that, in his assessment, the case disclosed elements of manslaughter. 55.In re-examination, PW9 clarified that he had initially recommended a charge of manslaughter, while the Office of the Director of Public Prosecutions ultimately directed that the accused be charged with murder. 56.The prosecution closed its case at that stage and in its considered ruling rendered on 27th February, 2025, the court (Shariff J.) found that the prosecution had established a prima facie case against the accused and he was placed on his defence. C. The Defence Case. 57.In his defence, the accused testified on oath and told the court that he resided at Kadero Village in Nyakach, where he worked as a mechanic. He stated that he recalled the events of 18th March 2020 when he was at his home and later proceeded to cut sisal from what he described as his own land, which he took home before proceeding to work. 58.The accused testified that while on his way, he encountered the deceased, Guya Omollo, who was allegedly waiting for him while armed with a panga. He stated that the deceased questioned him as to why he had cut the sisal plants. According to the accused, he responded that the sisal belonged to him. He further stated that the deceased, who was wearing an overcoat, suddenly produced a panga from beneath the coat and attempted to strike him. 59.The accused testified that he blocked the attack using his left hand, sustaining an injury on his thumb, which he demonstrated in court as a scar between the thumb and forefinger. He stated that he then struck the deceased on the right hand using a stick, causing the deceased to drop the panga and fall to the ground. He further stated that he himself sustained injuries in the course of the confrontation and subsequently left the scene and went to Sigoti Health Centre for treatment. He produced treatment notes from the hospital as Defence Exhibit 1. 60.The accused further testified that after receiving treatment, he reported the matter at Sigoti Police Station, where he was advised to return the following day for a P3 form. He stated that on the next day, he returned to the police station, where he later met the area Chief, who spoke with the police officers. He testified that he was subsequently taken into police custody and later informed that the deceased had died. He further stated that while in custody, he was also taken to hospital for further treatment. 61.During cross-examination, the accused stated that he knew the deceased as his neighbour but denied that there existed any boundary dispute between them. He maintained that he had cut the sisal plants on his own land and not on land belonging to the deceased or John Odhiambo. He further stated that he had not seen the survey plan produced in court by PW8. The accused denied cutting or assaulting the deceased on the head, legs, or arm, and maintained that he only struck the deceased on the right hand using a stick. He also disputed the findings of the post-mortem report indicating multiple injuries on the deceased. 62.In re-examination, the accused reiterated that it was the deceased who was armed with a panga at the time of the incident. D. The Parties’ Submissions. 63.The prosecution did not tender any submissions and opted to rely on the evidence on record. 64.In his submissions, the accused asserted that the burden of proof remained throughout on the prosecution and never shifted to the accused, as guaranteed under Article 50(2) of the Constitution, and that failure to discharge this burden entitled the accused to an acquittal. 65.He maintained that the prosecution evidence was materially contradictory, inconsistent, and in several respects amounted to hearsay, and therefore incapable of sustaining a conviction for murder. 66.In particular, it was submitted that the testimonies of PW1 (Alloys Aoga), PW2 (Mary Awili), and PW3 (Keneth Adiga) were inconsistent on whether the deceased was awake or asleep at the material time, whether any conversation took place at the scene, and the sequence of narration of events. PW1, who was the area chief, did not witness the incident and conceded as much in cross-examination, yet purported to relay a version allegedly informed by the deceased. PW2 testified that she found the deceased asleep upon arrival, making it improbable that any alleged conversation occurred. PW3’s evidence was further attacked as hearsay and inconsistent with the accounts of PW1 and PW2, thereby rendering it unreliable. 67.It was further submitted that PW4 (George Otieno Olal), who was said to be the first person at the scene, testified that he encountered both the accused and the deceased, both of whom had sustained injuries, and that the accused informed him he had been cut by the deceased. It was argued that this pointed to a mutual confrontation involving machetes rather than a premeditated attack, thereby negating malice aforethought. 68.It was additionally argued that PW5 (John Olal Ndonga), who allegedly relayed information said to have come from the deceased regarding a boundary dispute, gave evidence that was not based on direct observation and was uncorroborated. His testimony was therefore said to be of limited probative value and inconsistent with PW4’s account of the first responders at the scene. 69.With regard to PW6 (Polycarp Luta), the Government Chemist analyst, it was submitted that although he testified that blood stains on a panga allegedly linked to the accused matched the accused’s DNA profile, the evidential value of this finding was weakened by the fact that no samples were taken from the deceased for comparison. In the context of an alleged mutual fight involving machetes, it was argued that the forensic evidence was insufficient to establish guilt beyond reasonable doubt. 70.It was further submitted that PW7 (Dr. Owiti), the pathologist, confirmed that the deceased died from massive intracranial haemorrhage secondary to severe head trauma. However, while the fact of death was not disputed, it was argued that the prosecution failed to establish malice aforethought, and that the circumstances pointed to a spontaneous fight rather than an intentional killing. 71.It was also urged that PW8 (John Odhiambo Ooko), who testified regarding an alleged boundary dispute and ownership of land, failed to produce documentary proof such as a title deed or official search. His testimony was therefore described as unsupported, unreliable, and insufficient to establish motive or context for the offence. 72.It was further submitted that PW9 (PC Josiah Rotich), the investigating officer, confirmed that investigations revealed a mutual fight involving machetes and that no eyewitness testified to the actual incident. It was also noted that an alleged eyewitness, one Caroline, was not called by the prosecution, and that this omission weakened the prosecution case. The investigations were therefore said to be inadequate and insufficient to establish malice aforethought or a clear evidential chain linking the accused to murder. 73.The accused further maintained that the prosecution failed to prove the essential ingredients of the offence of murder, namely unlawful killing and, more critically, malice aforethought. While the death of the deceased was not disputed, it was argued that the evidence disclosed a mutual confrontation in which both parties sustained injuries, thereby negating intent. 74.Reliance was placed on the case of Republic v Andrew Omwenga [2009] eKLR, for the proposition that where the prosecution fails to discharge the burden of proof beyond reasonable doubt, an acquittal must follow. 75.It was further stated that at the defence hearing the accused produced treatment notes showing that he also sustained injuries during the incident. He denied possession of the alleged murder weapon and maintained that there had been no prior disagreement with the deceased. He further stated that he was engaged in cutting sisal on his farm at the material time, and that the alleged boundary dispute was unsupported by evidence. 76.In conclusion, it was submitted that the prosecution case was founded on contradictory, hearsay, and uncorroborated evidence; that investigations were inadequate; that key witnesses were not called; and that malice aforethought was not proved beyond reasonable doubt. The accused therefore prayed that the court finds him not guilty of the offence of murder and acquits him accordingly. E. Issues For Determination. 77.Having considered the information, the evidence tendered by the prosecution and the defence, as well as the totality of the circumstances of the case, the court is of the view that the following issues arise for determination.a.Whether the prosecution has proved beyond reasonable doubt the fact of the death of the deceased, Guya Omollo Adhiambo, and the cause of that death as alleged in the Information.b.Whether the prosecution has proved beyond reasonable doubt that the deceased met his death as a result of an unlawful act or omission, and in particular whether the injuries sustained were inflicted by the accused person in the manner alleged by the prosecution witnesses, or whether, as suggested by the defence, the incident arose from a mutual confrontation or lawful self-defence.c.Whether the accused person was positively identified as the perpetrator of the fatal injuries suffered by the deceased.d.Whether malice aforethought as defined under Section 206 of the Penal Code has been proved beyond reasonable doubt against the accused person.e.Whether the defence of self-defence as raised by the accused has been established on a balance of probabilities or, at the very least, whether it raises a reasonable doubt in the prosecution case sufficient to entitle the accused to an acquittal.f.Whether the evidential material, including forensic and circumstantial evidence such as the recovery of the panga and the DNA analysis linking blood stains to the accused, corroborates the prosecution version of events or whether it is consistent with an alternative explanation consistent with innocence.g.Finally, and dependent on the determination of the foregoing issues, whether the accused person is guilty of the offence of murder as charged under Section 203 as read with Section 204 of the Penal Code. F. Analysis And Findings. 78.The court is guided by the fundamental principle of criminal law that the burden of proof rests entirely upon the prosecution and never shifts to the accused person. This principle is constitutionally anchored under Article 50(2)(a) of the Constitution and statutorily reinforced under Section 107 of the Evidence Act. 79.In the case of Woolmington v DPP [1935] AC 462, a decision consistently applied in our courts, it was reaffirmed that it is the duty of the prosecution to prove the prisoner’s guilt beyond reasonable doubt. 80.The court further notes that the offence of murder under Section 203 of the Penal Code is only established where the prosecution proves beyond reasonable doubt the following ingredients: the fact and cause of death of the deceased; that the death was caused by an unlawful act or omission; that the accused person was positively identified or linked to the unlawful act; and that the act was accompanied by malice aforethought as defined under Section 206 of the Penal Code. 81.These ingredients have been restated in Republic v Andrew Mueche Omwenga [2009] eKLR, where the court held that for a conviction of murder to stand, the prosecution must prove both actus reus and mens rea beyond reasonable doubt, and in Sawe v Republic [2003] KLR 364, where the Court of Appeal emphasized that suspicion, however strong, cannot form the basis of a criminal conviction. 82.On the first issue, there is no dispute that the deceased, Guya Omollo Adhiambo, died. The evidence of PW7, the pathologist, was clear, consistent and unchallenged on this point. 83.PW7 conducted a post-mortem examination and concluded that the cause of death was massive intracranial haemorrhage secondary to severe head trauma. This medical finding was neither shaken on cross-examination nor contradicted by any defence evidence, and therefore stands uncontroverted. 84.The legal position in our jurisdiction is that medical evidence is the most reliable proof of cause of death unless the circumstances are obvious. In Ndungu v Republic [1985] KLR 487, the Court of Appeal held that although death may in some cases be inferred from circumstantial evidence, post-mortem examination remains the best evidence of the cause of death. 85.Similarly, in Republic v Cheya & Another [1973] EA 500, the court emphasized that where medical evidence is available and unchallenged, it forms a firm basis for establishing cause of death. 86.Accordingly, the court finds that the prosecution has proved beyond reasonable doubt both the fact and medical cause of death of the deceased. 87.The second issue is whether the deceased met his death as a result of an unlawful act attributable to the accused person, and whether the prosecution has discharged its burden of linking the accused to that act beyond reasonable doubt. 88.The prosecution case is largely circumstantial and rests on the testimonies of PW1, PW3, PW4, PW5, PW8 and PW9, none of whom witnessed the actual assault. Their evidence is primarily based on what they were allegedly told by the deceased or on inferences drawn after the incident. 89.The law is clear that while circumstantial evidence is capable of sustaining a conviction, it must meet the strict threshold that it irresistibly points to the guilt of the accused and excludes any other reasonable hypothesis. In Sawe v Republic (supra), the Court of Appeal, as we have seen above, held that even strong suspicion cannot be the foundation for a finding of guilt, which must instead be established through evidence proving the charge beyond reasonable doubt. 90.PW1 testified that the deceased named the accused as his attacker and narrated the circumstances of the assault. However, PW1 candidly admitted that he did not witness the incident. PW3 and PW5 similarly relayed accounts allegedly made by the deceased. The court observes that such evidence constitutes hearsay in so far as it is offered to prove the truth of the contents of the statements, and although admissible to some extent as part of the res gestae or dying declaration, it must be treated with extreme caution. 91.The admissibility and probative value of dying declarations has been firmly settled. In Pius Jasunga s/o Akumu v Republic [1954] 21 EACA 331, the Court held that while dying declarations are admissible, courts must exercise caution before basing a conviction solely upon them, particularly where they are uncorroborated or inconsistent. The same caution was reiterated in Choge v Republic [1985] KLR 1, where the Court of Appeal emphasized that a dying declaration, though admissible, must be received with the greatest care and should not be the sole basis of conviction unless corroborated by other independent evidence. 92.In the present case, the alleged dying declaration is not consistent across the prosecution witnesses. PW1 suggests a detailed narration by the deceased implicating the accused and describing a sustained assault. PW3 and PW5, however, provide different and less detailed versions. PW2, on the other hand, did not speak to the deceased at all and found him in a distressed physical state. This lack of consistency weakens the reliability of the alleged dying declaration and reduces its probative value. 93.The evidence of PW4 introduces a further dimension of material significance. PW4 testified that he encountered both the accused and the deceased separately, both of whom had sustained injuries, and each attributed blame to the other. 94.PW4’s account therefore supports the inference of a mutual confrontation rather than a unilateral assault. The Court notes that where evidence is consistent with two reasonable hypotheses, one pointing to guilt and the other to innocence, the court is bound to adopt the inference favourable to the accused. 95.The investigating officer, PW9, further confirmed during cross-examination that both parties were armed with pangas and that the incident arose from a confrontation linked to a boundary dispute. He also conceded that he could not conclusively exclude the possibility that the deceased may have been the initial aggressor. This admission significantly weakens the prosecution’s attempt to present a clear narrative of an unprovoked attack. 96.The Court of Appeal in Sawe v Republic (supra) further held that:“In order to justify a conviction on circumstantial evidence, the inference of guilt must be the only reasonable inference that can be drawn from the facts.” 97.In the present case, the evidence on record does not exclude the reasonable possibility that the incident occurred during a sudden mutual fight between two armed individuals. The prosecution has therefore failed to prove beyond reasonable doubt that the unlawful act resulting in death was exclusively committed by the accused in the manner alleged. 98.The third issue for determination is whether the accused person was positively identified as the perpetrator of the fatal injuries suffered by the deceased. This issue is closely tied to the foregoing analysis. 99.It is not disputed that the accused and deceased knew each other well. However, knowledge of identity is not equivalent to proof of criminal liability. The prosecution was still required to establish a clear causal link between the accused and the fatal injuries. 100.None of the prosecution witnesses witnessed the actual assault. The case therefore rests on circumstantial inference and alleged statements made after the incident. In Anjononi & Others v Republic [1980] KLR 59, the Court of Appeal held that recognition may be more reliable than identification of a stranger, but the court must still be satisfied that the evidence is free from error and firmly establishes participation in the offence. 101.In the present case, the absence of an eye witness, coupled with inconsistent accounts and evidence of mutual injury, leaves a gap in the prosecution case. The court is not satisfied that the accused has been positively and exclusively identified as the perpetrator of the fatal injuries beyond reasonable doubt. 102.The fourth issue for me to address is whether malice aforethought as defined under Section 206 of the Penal Code has been proved beyond reasonable doubt against the accused person. 103.Section 206 of the Penal Code defines malice aforethought to include intention to cause death or grievous harm, knowledge that death or grievous harm will probably result, or intent to commit a felony. 104.Malice aforethought is a matter of inference from the circumstances of each case. In Tubere s/o Ochen v Republic [1945] 12 EACA 63, the Court laid down the guiding factors for such inference, namely the nature of the weapon used, the part of the body targeted, the manner of its use and the conduct of the accused before, during and after the attack. 105.This principle was affirmed in Nzuki v Republic [1993] KLR 171, where the Court of Appeal held that for murder to be established, there must be clear evidence of intention to cause death or grievous harm, or knowledge of the likelihood of such consequences. 106.The Court further notes the holding in Republic v Andrew Mueche Omwenga (supra), where it was stated that where a killing occurs in the course of a sudden fight without clear evidence of premeditation or intention, the appropriate inference may be manslaughter rather than murder. 107.In the present case, the evidence points strongly to a sudden confrontation between two individuals who were both armed and who both sustained injuries. PW9’s testimony, in particular, supports the existence of a spontaneous altercation arising from a boundary dispute. There is no evidence of prior planning, premeditation or sustained pursuit of the deceased by the accused. 108.The injuries sustained by both parties, as well as the absence of clear evidence of intent to kill or cause grievous harm, militate against a finding of malice aforethought. The Court is guided by the principle in Nzuki v Republic (supra) that mere suspicion of intention or the fact of death following a violent encounter is not sufficient to establish malice aforethought. 109.The accused raised the defence of self-defence, asserting that he was attacked by the deceased and acted in response to an imminent threat. The legal threshold for self-defence was set out in Ahmed Mohammed Omar & 5 Others v Republic [2014] eKLR, where the Court of Appeal held that the test is whether the accused honestly believed himself to be in imminent danger and whether the force used was reasonable in the circumstances. 110.Although the court does not make a definitive finding that self-defence has been fully established on a balance of probabilities, the evidence on record raises a reasonable possibility that the accused may have acted in response to an unlawful attack. This possibility, when weighed against the prosecution evidence, further strengthens the doubt in the prosecution case. 111.The DNA evidence adduced by PW6 shows that blood on a panga recovered in the investigation matched the accused. However, no comparative DNA from the deceased was analyzed and the forensic evidence does not independently establish the circumstances under which the blood was deposited. 112.In Mutonyi v Republic [1982] KLR 203, the Court of Appeal held that expert evidence must always be considered alongside the totality of the evidence and cannot on its own sustain a conviction where other evidence raises doubt. 113.In this case, the forensic evidence is consistent with both the prosecution theory and the defence version of a mutual struggle, and therefore does not conclusively establish guilt. 114.Having evaluated the totality of the evidence, the court finds that while the fact and cause of death have been proved beyond reasonable doubt, the prosecution has failed to establish that the accused unlawfully caused the death in the manner alleged, or that he did so with malice aforethought. 115.The evidence on record is consistent with a sudden mutual confrontation between the accused and the deceased, both of whom sustained injuries, and does not exclude a reasonable hypothesis of innocence. 116.In criminal law, any doubt must be resolved in favour of the accused. As stated in Sawe v Republic (supra), suspicion, however strong, cannot substitute proof beyond reasonable doubt. 117.Accordingly, the offence of murder under Section 203 as read with Section 204 of the Penal Code has not been proved to the required standard. 118.The accused is therefore entitled to the benefit of doubt and is hereby found not guilty of murder and is acquitted accordingly. DELIVERED, DATED & SIGNED IN OPEN COURT THIS 18TH DAY OF JUNE, 2026.JOE M. OMIDOJUDGEAccused: Present.Ms. Muema, Prosecution Counsel for the State.Ms. Arekula for Mr. Abira, Defence Counsel.Mr. Juma & Mr. Ngoge, Court Assistants.Ms. Muema: I pray for a copy of the judgement.Court: A copy of the judgement to be supplied to the prosecution and the defence.The surety is discharged. The security that was deposited in court to be released to the surety.