https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12711

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CRIMINAL CASE NO.019 OF 2024** **REPUBLIC PROSECUTION** **VERSUS** **BRIAN ALUMASA AMADI. ………ACCUSED** **Coram: Before Justice R. Nyakundi** **M/s Leina for the State** **Mr. Wekesa, Advocate, for the Accused persons** **JUDGMENT** **INTRODUCTION** 1. The accused person, Brian Alumasa Amadi, 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. The particulars of the offence are that on the 29th day of November 2024, at around 1730 hours, at Majengo Market, Central Maragoli Location, Vihiga Sub-County within Vihiga County, he murdered Samson Mwanzo Luta (hereinafter “the deceased”). 2. The accused person pleaded not guilty to the charge. The Prosecution called five (5) witnesses in support of its case and thereafter closed its case. Upon being found to have a case to answer, the accused was placed on his defence. In his defence, the accused gave sworn evidence as DW1 and called no witnesses. His defence was a denial, and his account was materially consistent with his charge and cautionary statement recorded upon his arrest. 3. Both parties filed written submissions which I have read and taken into account in arriving at this decision. **THE PROSECUTION CASE** **Background** 1. The facts surrounding the case are that on 29th December 2024 at around 1730 hrs. A group of friends including Samson Luta (the deceased), Willis Mogesi, Brian Alumasa Amadi, Daniel Kiprotich (Dante) and others met at Gen Z Club, Majengo for a game of pool and drinks. A dispute arose between Willis Mogesi and Samson Luta (deceased) over money which Willis Mogesi owed the deceased after selling the deceased hard disc computer, during this argument the Accused Brian Alumasa Amadi, a friend of Willis Mogesi, felt his friend was being harassed by the deceased, and he hit the deceased on the head with a pool table cue stick, the deceased Samson Luta fell down, following this and lost consciousness. The people who were in the pool table area of the club gave out first aid to Luta but they realized the situation was serious, they organized for the injured to be taken to Mungoma hospital then Vihiga County Referral Hospital Mbale, the doctors referred the injured to Jaramogi Oginga Odinga teaching and referral hospital (Russia) Kisumu, later Luta succumbed to the injuries while undergoing treatment in the said facility. As a result of this on 30th November 2024 the first suspect Brian Alumasa was arrested and later Willis Mogesi was arrested on 10/12/2024 but was later made a Prosecution witness. 2. **PW1, Willys Mogesi Gitari**, testified that on 29th November 2024 at around 1000 hours he went to Gen-Z bar within Majengo for refreshments and meals, and remained there into the evening. At around 1700 hours, the accused came in and began taking his drinks, and PW1 later joined him at the pool table. The deceased then arrived in the company of one Daniel Kipngetich, approached PW1 and demanded money which PW1 owed him. PW1 answered the deceased rudely, whereupon the deceased head-butted PW1, who started bleeding and lost a tooth in the commotion. PW1 testified that the accused, who was unknown to him, then picked a cue stick and hit the deceased once on the head. The deceased fell down, the accused followed him and kicked him, and thereafter fled from the scene. On cross-examination, PW1 stated that he was to be on duty on the material day but did not go, and that the cue stick used was a short one. On re-examination, he stated that he was drunk and was feeling high. 3. **PW2, Browlin Omondi Ochieng**, the owner of the club, testified that he was doing accounting in a room within the premises when he heard noise coming from the pool table area. He quickly stepped out and saw the accused holding a cue stick, which he grabbed and placed in another room. He saw PW1 bleeding from his mouth, and lying on the floor was the deceased, who had a swelling on the head and was unconscious. Being a Clinical Officer, PW2 administered first aid to the deceased and organized his transfer to Mungoma Vihiga Hospital, and later to Jaramogi Oginga Odinga Teaching and Referral Hospital, Kisumu, where the deceased later succumbed. On cross-examination, PW2 stated that he did not witness the fight, that the injuries were at the back of the head, that the cue stick he took from the accused was a short one as the others were long, and that the club had CCTV which was not functional. 4. **PW3, No. 243707 PC Douglas Mwebi**, testified that on 30th November 2024, in the company of other Officers, he visited and processed the scene at Gen-Z bar, where they recovered the cue stick, broken glasses and shoes believed to belong to the deceased. He was later informed that the accused had been arrested by members of the public, whereupon he and Sergeant Kemei took the suspect to Vihiga Police Station. 5. **PW4, Dr. Ombok Lucy**, conducted the post-mortem examination on the body of the deceased on 3rd December 2024. She observed a swelling on the neck, a fractured neck, bruises on the right hand and a lacerated wound on the right leg. She formed the opinion that the cause of death was severe head injury as a result of blunt force trauma consistent with assault, and produced the post-mortem report as PEXH 2. She acknowledged that some alterations had been made on the report. 6. **PW5, No. 68414 CPL Wycliffe Mbitie**, the Investigating Officer, testified that on 30th November 2024 he was informed of a serious assault at Gen-Z bar and that the victim had been taken to Jaramogi Oginga Odinga Teaching and Referral Hospital, Kisumu. On visiting the hospital, the team confirmed that the victim had passed away, and upon viewing the body, he observed a bad dent on the head. He investigated the case and recommended that the accused be charged with murder, and produced the cue stick as PEXB 1. On cross-examination, he acknowledged that corrections had been made on the post-mortem form, that dusting for fingerprints was not done, that the bar had CCTV which was not functional, that the deceased had fought, and that five witnesses, including the Forensic Examiner, a Government Officer, could not be traced. **THE DEFENCE CASE** 1. **The Accused, DW1**, testified that on 29th November 2024 at around 1730 hours he went to Gen-Z bar to have a drink, where he took his favourite drink, county whisky. While there, his friend Willis Mogesi (PW1) entered, ordered another drink, and asked the accused to accompany him to the pool table room, where they began playing pool. Shortly thereafter, *mwalimu* Samson Mwanzo Luta (the deceased) and another person came in and requested to join the game, proposing that they play for money, with the winner being paid. The accused observed that the newcomers were also drunk. As they continued playing, the accused lost and dropped out of the game, as did Daniel Kiprotich (Dante), leaving the deceased and Willis Mogesi playing. 2. The accused testified that he then stepped out for a short call. On his return, he found Willis Mogesi and the deceased quarrelling, Willis claiming that he had won the game but that the deceased had refused to give him his money. Suddenly, Willis grabbed the deceased and Dante, and hit Dante on the forehead. Willis then continued to fight the deceased as the accused tried to separate them, while Dante went outside as he had started bleeding. According to the accused, Willis overpowered the deceased and pushed him, whereupon the deceased fell against the plywood on the walls of the room, landed on his side (ribs) and fell down. While on the ground, the deceased said, *“Willis unanifanya aje?”* and continued, *“unanipiga kwa sababu ya shilingi mia moja?”* *(“Willis, what are you doing to me? You are beating me over one hundred shillings?”).* 3. The accused further testified that as Willis started walking away after pushing the deceased against the wall, the accused reached out to him and asked whether they could help the deceased get to hospital, as he looked injured. Willis threatened to slap him and told him to leave the deceased alone. The accused stated that he quickly rushed outside to look for a motorcycle to help the deceased find medication, but on his return he found that the deceased had already been taken to hospital. He then decided to go to his house. He was arrested the following day by members of the public and Police Officers from Vihiga Police Station and charged with the present offence. 4. The essence of the defence, therefore, is a total denial; the accused states that he never struck the deceased at all, and that the injuries sustained by the deceased were inflicted by PW1, Willis Mogesi, in the course of a fight over gambling money. **SUBMISSIONS** 1. For the accused, Learned Counsel M/S Wekesa S. Wekesa & Co. Advocates submitted, *first*, that the post-mortem report was altered and should be rendered inadmissible, the alterations offending the rules of natural justice and depriving the accused of a fair hearing contrary to Article 50 of the Constitution; *secondly*, that the evidence of PW1 and PW2 that the deceased sustained injuries to the back of the head contradicts the evidence of a swelling on the head and of other visible injuries, yet the only eyewitness, PW1, spoke of a single blow to the head, raising the question of where the other injuries came from; and *lastly*, that the failure to avail the Forensic Examiner denied the accused a fair trial, that witness being the right person to speak to whether the CCTV was functional. 2. For the Republic, Learned Prosecution Counsel submitted that the death of the deceased is not in dispute; that the accused's unlawful act caused the death, as established by the direct evidence of PW1 and supported by PW2; and that malice aforethought is established under Section 206 of the Penal Code and on the authority of *Republic v Tubere s/o Ochen [1945] 12 EACA 63*, having regard to the weapon used, the part of the body targeted, the manner of the attack and the conduct of the accused, the attack on the deceased's head being an attack on his life. Counsel urged that the case has been proved beyond reasonable doubt. **THE LAW AND ISSUES FOR DETERMINATION** 1. The burden of proving the guilt of the accused rests on the Prosecution throughout, and the standard of proof is beyond reasonable doubt: *Woolmington v Director of Public Prosecutions [1935] AC 462*. The accused bears no burden of proving his innocence, and any reasonable doubt must be resolved in his favour. 2. To secure a conviction for murder, the Prosecution must prove: (a) the fact and cause of death of the deceased; (b) that the death was caused by an unlawful act or omission of the accused; and (c) that the accused acted with malice aforethought as defined in Section 206 of the Penal Code. I shall consider each element in turn. **ANALYSIS AND DETERMINATION** ***(i) Whether the death of the deceased and its cause were proved*** 1. The fact of death is not in dispute. PW2 testified to the condition of the deceased at the scene and to his hospitalization; PW5 confirmed that the deceased passed away while undergoing treatment at Jaramogi Oginga Odinga Teaching and Referral Hospital and observed a bad dent on his head upon viewing the body; and PW4 produced the post-mortem report (PEXH 2) giving the cause of death as severe head injury resulting from blunt force trauma consistent with assault. 2. The defence urged the Court to disregard the post-mortem report on account of the alterations apparent on its face. I have considered this submission carefully. The report was produced by its maker, PW4, who testified in person, was cross-examined by the defence, and candidly acknowledged the alterations. In my view, alterations on a document produced by its maker, who is available and is tested on them in cross-examination, go to the weight and probative value of the document rather than to its admissibility. The accused's right under Article 50(2) of the Constitution to challenge the evidence was fully exercised. That said, the Court approaches the contents of PEXH 2 with appropriate caution on account of the alterations. 3. Even exercising that caution, the medical evidence as to the cause of death does not stand alone. It is consistent with the observations of PW2, a Clinical Officer, who found the deceased unconscious with a swelling on the head immediately after the incident, and with the observation of PW5 of a dent on the head of the deceased. I therefore find that the Prosecution proved beyond reasonable doubt that the deceased died, and that the cause of death was severe head injury occasioned by blunt force trauma. ***(ii) Whether the death was caused by an unlawful act of the accused*** 1. The Prosecution's case on this element rests principally on the direct evidence of PW1, who testified that he saw the accused pick a cue stick and strike the deceased once on the head, upon which the deceased fell down. Under Section 143 of the Evidence Act, no particular number of witnesses is required for the proof of any fact, and a Court may found a conviction on the evidence of a single witness where that evidence is cogent and credible. 2. I have anxiously considered the reliability of PW1. He admitted in re-examination that he was drunk and feeling high, and he was himself a participant in the altercation, having been head-butted by the deceased moments earlier. His evidence therefore calls for careful scrutiny. Having done so, I note that the incident occurred in the early evening in a well-lit bar, at close range, at a pool table where PW1 was standing; the events he described were simple and dramatic and not of a kind easily mistaken; and his account has remained consistent in its essentials. 3. More significantly, the evidence of PW1 does not stand alone. PW2, upon hearing the commotion, stepped out immediately and found the accused holding a cue stick, with the deceased lying on the floor with a swelling on the head. He disarmed the accused of the cue stick there and then. The cue stick was recovered and produced as PEXB 1. The accused thereafter fled the scene and was subsequently arrested by members of the public. The conduct of the accused in fleeing, the fact that he was found holding the very instrument consistent with the injury and the immediacy of PW2's observations, all corroborate the direct account of PW1 in its material particulars. 4. Against this, I have weighed the defence. The accused's account, which he has maintained since his charge and cautionary statement, is that he never struck the deceased at all, and that it was PW1, Willis Mogesi, who fought the deceased and pushed him against the plywood wall in a quarrel over gambling money. The duty of the Court is not to choose which of the two versions it prefers, but to ask whether, upon a consideration of the whole of the evidence, the defence account is or might reasonably be true, in which case the accused would be entitled to an acquittal on this element. 5. Notably, the defence account is in agreement with the Prosecution case on several material particulars: the accused places himself at the scene, at the pool table, at the material time; he confirms that the parties had been drinking; he confirms that a quarrel arose between PW1 and the deceased over money; and he confirms that a violent fracas ensued in which the deceased ended up injured on the floor. He also testified that PW1 was his friend who had invited him to the pool table, which contradicts PW1's assertion that the accused was unknown to him. I have taken that discrepancy into account in assessing PW1's evidence. 6. The determining consideration, in my view, is the independent evidence of PW2. PW2 was not a participant in the quarrel; he is the owner of the premises, a Clinical Officer, and no motive was suggested, nor is any apparent, for him to falsely implicate the accused as opposed to PW1 or anyone else. PW2 responded to the commotion immediately, and the person he found holding the cue stick, and whom he personally disarmed, was the accused, not PW1. The cue stick was recovered and produced as PEXB 1. That contemporaneous, disinterested observation corroborates PW1's direct account in its most material particular and is irreconcilable with the accused's claim that he took no part in the violence. 7. The accused's version is further undermined by the medical evidence. The cause of death was severe head injury resulting from blunt force trauma, and PW5 observed a pronounced dent on the head of the deceased. The accused's account, that PW1 pushed the deceased against the plywood wall and that he landed on his side (ribs) and fell down, may well account for some of the secondary injuries noted at post-mortem, namely the fractured neck, the bruises on the right hand and the lacerated wound on the right leg, but it wholly fails to account for the fatal injury: a severe blunt trauma to the head. On no version, including the accused's own, did the deceased strike his head in a manner capable of causing such an injury. The blow to the head described by PW1, delivered with the very cue stick found in the accused's hands moments later, does account for it. In that respect the defence account, far from explaining the evidence, is contradicted by it. 8. The accused's conduct after the event also does not sit comfortably with his account. A man who, on his own version, was an innocent good Samaritan seeking a motorcycle to take the injured man to hospital, did not return to the bar, did not report to the police, and went home, only to be arrested the following day by members of the public. While flight alone proves nothing, this conduct is more consistent with the Prosecution's account of a man who fled the scene after striking the fatal blow than with the accused's account of himself. 9. The defence pointed to the additional injuries noted at post-mortem and asked where they came from if the accused struck only one blow. As set out above, the violent commotion described by all the witnesses, including the accused himself, and the deceased's heavy fall, are reasonably capable of accounting for the secondary injuries. What matters is that the fatal injury, the severe head injury, is directly attributable on the evidence to the blow with the cue stick delivered by the accused. The discrepancy as to whether the injury was to the back or another part of the head is a minor discrepancy of description, not of substance, and does not go to the root of the Prosecution case. 10. As to the failure to call the Forensic Examiner, PW5 explained that the witness, together with others, could not be traced. Both PW2 and PW5 testified without contradiction that the CCTV at the bar was not functional; the Forensic Examiner could therefore have added little on that score. The Prosecution is obliged to call witnesses necessary to establish the truth, not every conceivable witness, and I am not persuaded that the omission was calculated to conceal evidence favourable to the accused or that it occasioned any prejudice amounting to an unfair trial. 11. Having considered the defence alongside the whole of the evidence, I find that the accused's denial is not reasonably true and I reject it, save to the extent that it corroborates the Prosecution on the setting, the drinking, the money quarrel between PW1 and the deceased, and the ensuing commotion. Striking another person on the head with a cue stick is not an act authorized by law, and no lawful justification or excuse was established on the evidence. I accordingly find that the Prosecution proved beyond reasonable doubt that the death of the deceased was caused by the unlawful act of the accused. ***(iii) Whether the accused acted with malice aforethought*** 1. Section 206 of the Penal Code provides that malice aforethought shall be deemed to be established by evidence proving, *inter alia,* an intention to cause death or grievous harm, or knowledge that the act causing death will probably cause death or grievous harm, accompanied by indifference whether death or grievous injury is caused. 2. In *Republic v Tubere s/o Ochen [1945] 12 EACA 63*, it was held that malice aforethought may be inferred from the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used, and the conduct of the accused before, during and after the attack. These factors must, however, be weighed against the totality of the circumstances of the particular case. 3. The circumstances here are these; the accused had no prior quarrel with the deceased and no stake in the money dispute, which on all the evidence was between PW1 and the deceased; whether the accused was a stranger to PW1, as PW1 claimed, or PW1's friend, as the accused testified, his intervention was on the side of PW1 in a quarrel that was not his own. The incident erupted suddenly when the deceased head-butted PW1, drawing blood and knocking out a tooth, and a violent commotion, confirmed by every witness including the accused, broke out at the pool table. The accused reacted in the heat of that moment. The weapon was not carried to the scene; it was a pool cue stick, an item lying to hand at the pool table where the parties were playing, and on the evidence of PW1 and PW2 it was the short cue stick, not the long one. A single blow was struck. There is no evidence of premeditation, of the accused lying in wait, or of a sustained or repeated attack with the weapon. The parties, including the accused on his own testimony, had all been drinking. 4. It is true that the blow was aimed at the head, a vulnerable part of the body, and that the accused kicked the deceased after he fell and thereafter fled the scene, conduct which the Prosecution rightly says is relevant. Flight, however, is as consistent with panic at the consequences of a sudden act as it is with a guilty intention formed beforehand, and a kick, deplorable as it was, was not shown to have contributed to the fatal injury. 5. Weighing all these circumstances, I entertain a reasonable doubt as to whether the accused, in striking a single spontaneous blow with a pool cue stick in the heat of a sudden bar-room fracas, intended to kill the deceased or to cause him grievous harm, or acted with the knowledge and indifference contemplated by Section 206 of the Penal Code. That doubt must be resolved in favour of the accused. I therefore find that the Prosecution did not prove malice aforethought beyond reasonable doubt. ***(iv) The appropriate verdict*** 1. Where, on a charge of murder, the evidence establishes an unlawful killing but malice aforethought is not proved, the accused may, pursuant to Section 179 of the Criminal Procedure Code, be convicted of the lesser cognate offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code, although he was not charged with it. The evidence in this case establishes precisely such an unlawful killing without malice aforethought. **DISPOSITION** 1. In the result, I find the Accused person, Brian Alumasa Amadi, not guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code but the elements lean towards the offence of manslaughter contrary to Section 202 as punishable under Section 205 of the Penal Code which are hereby substituted as expressly provided for under Section 179 of the Criminal Procedure Code. And what follows is a conviction for that offence. 1. Further are that a pre-sentence report shall be filed by the Probation Office before sentencing. The matter shall be mentioned for receipt of the report and for mitigation, and aggravating factors for sentencing to be held on 5th of August 2026. It is so ordered. **VERDICT ON SENTENCE** 1. The above record is very clear that the Accused now convict was found guilty of the offence of manslaughter contrary to Section 202 of the Penal Code as punishable under Section 205 of the same Code. The Legislature as provided for the death penalty for any person found guilty of having killed another unlawfully and with malice aforethought under Section 204 of the Penal Code. However, the convict in this case circumstances were that the Prosecution established a lesser offence of manslaughter which will the subject matter for the sentencing proceedings. In so far as Section 204 of the Code is concerned, the primary landmark decision establishing the modern principles of sentencing for murder cases is *Francis Karioko Muruatetu & Another v Republic [2017] eKLR* in which the Supreme Court Ruled that the mandatory death penalty is unconstitutional and established a clear set of discretionary mitigating and aggravating guidelines. 2. Notwithstanding that finding in *Muruatetu* decision the key principles on sentencing do apply mutatis mutandis which include inter alia; 3. *Discretionary Sentencing*: The prescriptive sentences by the Legislature under Section 204 and 205 of the Penal Code for homicide offences are no longer applicable automatically but they remain to be the maximum for the category of the two offences. The judicial discretion is exercised to individualize each facts of the case with a view to impose a fair and proportionate sentence for each case. 4. *Maximum Punishment*: The life penalty is the maximum discretionary punishment for the offence of manslaughter and it is not mandatory 5. *Mitigating Guidelines*: Judges must consider factors such as the offender’s age, first offender status, guilty plea, character, remorse, potential for reform and whether the act occurred in response to gender-based violence. 6. The offence of manslaughter in which the Accused/Convict has been find guilty involves causing harm by omission. It is therefore a crime of violence and from the evidence admitted in court there is an element of knowing or intentional causation of bodily injury which involve the use of physical force. This is supported by the Post Mortem Report in which the deceased was found by the Pathologist to have suffered severe head injury as a result of a blunt force trauma consistent to assault. 7. During the sentencing hearing, learned Counsel for the defence filed written submissions on mitigation in which he alluded to the following factors; 1. *Absence of Malice Aforethought* *That in view of the findings of the Court of a lesser offence of manslaughter it means that there was premeditation to kill the deceased and that influence exercise of discretion for a lesser sentence as provided for under the principles in Republic Vs John Kyalo Musau eKLR.* * 1. *Provocation and Mutual Combat* *Learned Counsel submitted that the evidence showed both parties were drunk and both participated in the fight. The deceased was not a passive victim. This was a mutual combat in a bar setting. The alcohol impaired judgement on both sides. He therefore contended that this level of culpability and responsibility should be taken into account.* * 1. *First Offender* *According to learned Counsel’s contention the convict before Court is a first offender, with no previous convictions and a young adult 30 years old who still has potential to reform and contribute to society.* * 1. *Remorse and Repentance* *Learned Counsel in his submissions argued that the convict is remorseful from what happened and that he never intended to cause the death of the deceased. According to leaned Counsel the incident arose from provocation at that particular scene which ruled out any design or plan to execute the killing.* * 1. *Family and Social Obligations* *Learned Counsel went further to argue and submit that the convict is a family man married with two children and if incarcerated their welfare will be jeopardized.* * 1. *Employment and Contribution to the Society* *Similarly Learned Counsel argued and submitted that the convict is a small scale farmer and also boda boda rider. He is a productive member of the society. A custodial sentence will render his family distortable and they will lose their livelihood* * 1. *Time already served* *Counsel also implored the Court to take cognizance the period spent in remand custody under Section 333(2) of the Criminal Procedure Code.* 1. On the other hand Mr. Leina Learned Prosecution Counsel filed brief submissions on aggravating factors in which he gave specific details for the Court to consider that the crime was a serious one which calls for harsher penalty. He was also of the view that there was high degree of planning, plot preparation before the unlawful act was committed against the deceased. In his view, though the Court made a finding for a lesser offence of manslaughter the level of culpability was higher than the one which falls under the doctrine of self defence and provocation. 2. As I approach the issue of sentencing under Section 205 of the Penal Code which provides for life imprisonment, I take cognizance of the fact that the offences of homicide committed under Section 202 and 203 of the Penal Code remain to be one of the most dangerous crimes in every modern State. This is in view of the fact that the right to life under Article 26 of the Constitution is sacred and requires immense protection from every citizen. The Constitution address the right to life as a divine right protected by strict penalties since the harm in this nature of crime is irreversible cessation of the victim’s life. The danger of this crime and its threat to individuals and societies means that formal legal institutions must consider it to be one of the most dangerous crimes requiring grave punishment against the perpetrator in keeping with ill-will of the accused now convict. 3. From this analysis and in context applying the legislative scheme under Section 205 of the Penal Code, the Sentencing Guidelines of the Judiciary 2023 and the violation of Article 26 of the Constitution on the right to life and weighing one factor after another deterrence and retribution on objectives of sentencing carries more weight and does tilt the scale to a custodial sentence. To the best of my appreciation of the circumstances of the case at hand I impose a sentence of eighteen (18) years imprisonment taking into account that the convict has been in custody since 16th December 2024 and his case was finalized on 5th August 2026. Given the letter of the law under Section 333(2) of the Criminal Procedure Code being a total of 597 days which shall be discounted from the overall sentence and the same be indicated in the Committal Warrant. 14 days Right of Appeal explained. **DATED, SIGNED AND DELIVERED AT VIHIGA THIS 6TH DAY OF AUGUST 2026.** **………………………………………..** **R. NYAKUNDI** **JUDGE**