https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7283

Republic v Ambuka (Criminal Case 2 of 2021) [2026] KEHC 7283 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7283 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Case 2 of 2021 JN Kamau, J May 28, 2026 Between Republic Prosecutor and Silas Siboye Ambuka Accused Judgment Introduction 1.The Accused person herein was 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 Charge were that:-“On 3rd August 2020 in Emayoka village, Ebusikhale Sub Location, Luanda Sub-County within Vihiga County jointly with others not before court murdered Wycliffe Akute Ambuko.” 2.The Prosecution’s case was heard on diverse dates between 29th November 2023 and 27th October 2024 when it closed its case. On 29th April 2025, this court found that the Prosecution had established a prima facie case against the Accused person and thereby put him on his defence. The defence case was heard on 23rd October 2025. 3.The Prosecution’s Written Submissions were dated 8th December 2025and filed on 10th December 2025 while those of the Accused person were dated 14th January 2026 and filed on 15th January 2026. The Judgment herein is based on the said Written Submissions, which the parties relied upon in their entirety. Legal Analysis 4.The issues that were put before this court for consideration were as follows:-a.Whether or not Wycliffe Akute Ambuko (hereinafter referred to as the “deceased”) died?b.If so, was his death caused by an unlawful action(s) and/or omission(s)?c.If so, who caused the unlawful action(s) and/or omissions?d.Was there malice aforethought in the causation of the deceased’s death? 5.This court therefore found it prudent to deal with the said issues under the following distinct and separate headings. I. Proof of Death of the Deceased 1.The Accused person submitted that there was no dispute as to the fact of the death of the deceased. The Prosecution also submitted that there was no dispute as to whether the deceased died. 2.As both the Prosecution and Defence alluded to the deceased’s death, it was not necessary to seek further proof. This court found and held that the deceased’s death was proved without an iota of doubt. II. Proof of Cause of the Deceased’s Death 8.The Accused person submitted that there was no dispute that the deceased’s death was caused by an unlawful act or omission, as was evidenced by the autopsy report. On its part, the Prosecution submitted that the deceased’s death was proved through the Post mortem report. It cited Republic vs Joseph Chege Njora 2007 eKLR and Antony Njue Njeru vs Republic CR. Appeal No 77 of 2006 where the court held that the killing of a person could only be justified and excusable where the accused's action, which caused the death, was in the course of averting a felonious attack and no greater force than was necessary was applied for that purpose. 9.It pointed out that the deceased was injured on the head, upper and lower limbs, and it was clear that the deceased succumbed to the injuries, which were as a result of the assault. 10.Dr Dixon Mchana (hereinafter referred to as “PW1”), was the Pathologist. He tendered a Post-mortem Report dated 7th August 2020 in respect of the deceased herein as an exhibit in this matter. After conducting the post-mortem examination, he formed an opinion that the cause of the deceased’s death was shock secondary to extensive blunt force trauma following assault. He confirmed that the deceased’s death was not as a result of natural death. 11.It was therefore clear from his evidence that the deceased’s death was not as a result of natural causes. Rather, it was due to having been assaulted. It was therefore crucial to establish how the deceased sustained the injuries that caused his death. III. Identification of the Perpetrator of the Deceased’s Death 12.The Accused person submitted that there was no eye-witness and the evidence relied on was hearsay. Additionally, the Prosecution witnesses testified that the Accused person was drunk and looked tired at the time and could not have assaulted the deceased in that state. He pointed out that the evidence by the Prosecution was circumstantial which the criteria of assessing such evidence was set out in Republic vs Kipkering Arap Koske & Another (1949) 16 ECA 135 where the court stated that circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established, must be of definite tendency unerringly pointing towards guilt of the accused and when taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and no one else. 13.He also cited Sawe vs Republic (2003) KLR, where the court opined that where circumstantial evidence was being considered, there had to be no other co-existing circumstances weakening the chain of circumstances relied on. 14.The Accused person asserted that he was intoxicated and could not have been able to assault the deceased, which evidence was corroborated by PW 2 and PW 3, and no evidence was produced in rebuttal. He, therefore, submitted that the Prosecution failed to prove its case to warrant a conviction. 15.On its part, the Prosecution submitted that the conditions for inference of guilt were proper as the chain of events was cumulative and showed that the Accused person, jointly with others, committed the offence. It pointed out that PW 2’s evidence was clear that she was informed by her son, Kennedy Osome, that the Accused person had killed the deceased. 16.It placed reliance on the case of Abanga alias Onyango vs Republic CR App No 32 of 1990 and Sawe vs Republic (Supra) on the conditions to be met in circumstantial evidence. 17.The Accused person denied committing the offence. He testified that on 3rd August 2020 in the evening, he was drinking at somebody’s house at Luanda centre and that when he got home, he found many people at their home since his three (3) brothers, including the deceased, had fought. He said that he did not know why they were fighting, and that he never intervened. He stated that at about 10.00am, DCI officers arrived and removed the deceased’s body. He averred that his mother, Margaret Ambuko (hereinafter referred to as “PW 2”), volunteered to write a statement. He added that he accompanied PW 2 at the request of the Police Officers. He stated that he was then put in cell and informed that they were investigating the matter. 18.When he was cross-examined, he testified that there were other people at the drinking place. His testimony was that the people he found at their home were the ones who informed him that his brothers had fought. He stated that he did not know why his brothers fought. 19.PW 2 evidence was that the deceased and the Accused person were her sons. She told the court that on the material day, she was at her home and at around 5.00 am, her son Kennedy Osome (now deceased) knocked on her door and informed her that there was a domestic disagreement between Osome and the Accused person and that the Accused person had killed the deceased. Osome told her that the deceased was beaten and died at 3.00 pm. She said that she found the Accused person in the home. She stated that the deceased died in her home behind her house. She averred that she was not there and only heard that the Accused person killed the deceased. She said that she was not aware if any other person beat the deceased apart from the Accused person. 20.Her statement was read to her, where it was stated that she told the police that the deceased was beaten by his three (3) brothers and that Kennedy Osome and Daniel Okiri Ambuko fled after noticing that they had killed him. 21.On cross-examination, she stated that she was told that the person who beat the deceased was Kennedy Osome, and he who ran away. She told this court that her other son, Daniel Okiri Ambuko, disappeared. She told the court that the Accused person could not have been involved in the deceased’s death since he was very drunk at the time. She testified that the police took the deceased’s body at about 10.00 am. 22.When asked by the court who informed her as to who beat the deceased, she testified that it was Osome who told her that he had beaten the deceased. She was categorical that Osome was the one who beat the deceased and not the Accused person. 23.David Asila (hereinafter referred to as “PW3”) was at the material time an Assistant Chief. He testified that he was informed of the incident and went to the scene at around 6.00 am, whereafter he contacted the police. He said that he was informed that the Accused person assisted his brothers in killing the deceased. He stated that the Accused person was in his father’s house, and he restrained him from leaving. He averred that the Accused person looked tired, and that he was drunk and looked haggard. 24.He further testified that two (2) clubs, which appeared fresh, were recovered from the scene. He contended that he established that the deceased had a disagreement with his mother, PW 2, and his brothers took action to silence him. He further stated that the deceased always quarrelled with PW 2, which led her to flee the home. 25.It was his testimony on cross-examination that PW 2 and the deceased’s sister told him that the Accused person killed the deceased. He maintained that the Accused person was drunk, and he looked weak. He stated that the Accused person used to take alcohol. He testified that the Accused person did not have any club or weapon. He pointed out that he was contacted at 6.00 am and the incident may have happened that morning. He further told the court that he was informed that the incident occurred at about 3.00 am. 26.No xxxxxx PC Selphine Ajiambo (hereinafter referred to as “PW4”) testified on behalf of one Baraza, the initial Investigating Officer, who was away on training. He testified that he was with the said Investigating Officer during the investigations of this case. He stated that a report was made at around 9.05 hours by the Area Chief, and they went to the scene where they established that the deceased was assaulted by his three (3) brothers, including the Accused person. 27.He said that the other two (2) brothers escaped after they realised that they had killed the deceased. He further testified that one Rose Awinja Ambuko, who was yet to testify, informed them that the deceased had gone home armed with a panga and had threatened to kill their mother. He said that she told him that when the other brothers heard of this, they assaulted him and left him. He stated that she also informed him that when she went to check on him to give him food, she realised that he was no more, and then called PW 2. He produced the two (2) clubs, which he said were recovered at the scene. 28.When he was cross-examined, he stated that the Accused person was arrested at the scene and was not arrested by members of the public. He told the court that Sgt Baraza relied on what he was told by PW 2 and PW 3 and that there was no eye-witness. He averred that the rungus were not recovered from the Accused person, but they were recovered at the scene. 29.His further evidence was that the Accused person was totally drunk and unable to move. He admitted that no investigations were done to establish his conduct before his arrest, and especially his drinking habit. He denied that the Accused person was too drunk not to have committed the offence. 30.This court noted the Accused person's defence of alibi. He pointed out that on the material day in the evening, he was in somebody’s house drinking, and when he returned home, he found a crowd of people and established that his brothers had fought and as a result, the deceased lost his life. 31.In ascertaining whether the Accused person's defence of alibi had value, this court had due regard to the definition of “alibi” in the Black’s Law Dictionary, 10th Edition. It was defined as:-“A defence based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time”. 32.It was trite law that once a respondent raised an alibi defence, the onus shifted to the prosecution to displace the same as was held by the Court of Appeal in the case of Victor Mwendwa Mulinge vs Republic [2014] eKLR. 33.In this case, this court noted that PW 2, PW 3, and PW 4 affirmed that the Accused person was very drunk at the time of his arrest. To some extent, this corroborated the Accused person's defence of alibi that he was on a drinking spree. 34.Notably, the Prosecution did not rebut the same despite having the option of doing so as provided in Section 309 of the Criminal Procedure Code Cap 75 (Laws of Kenya) that provides that:-“If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it.” 35.After carefully analysing the evidence that was produced by the Prosecution witnesses, it was evident that no one witnessed the Accused person assaulting the deceased. The only evidence the Prosecution relied on was the fact that PW 2 testified that she was informed by her son, Kennedy Osome that the Accused person had killed the deceased. 36.It was clear that PW 2’s evidence was contradictory. At first, during examination in chief, she told the court that Kennedy Osome informed her that the Accused person had killed the deceased. She stated that Osome informed her that there was a disagreement between Osome and the Accused person. She said that she was not there and only heard that the Accused person had killed the deceased. 37.When her statement was read to her, she testified that she remembered telling the police that the deceased was beaten by his three (3) brothers, and Kennedy Osome and Daniel Okiri fled after noticing they had killed their brother. 38.On cross-examination, however, she testified that she was told that the one who beat the deceased to death was Kennedy Osome and that the Accused person was very drunk at the time and could not have been involved. When asked by the court to clarify her contradictory testimony as to who killed the deceased, she told the court that Osome was the one who told her that the Accused person killed the deceased. She maintained that it was Osome who killed the deceased. 39.Courts have held again and again that a witness in criminal cases should not create an impression in the mind of the court that he is not a straightforward witness. This was enunciated in Ndungu Kimanyi vs Republic [1979] KLR 283 where the court opined that a witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he was a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence. 40.Going by her evidence, it was difficult to discern who killed the deceased because at first, she said it was the Accused person, then the three brothers, and then Osome. Her credibility of PW 2 was seriously eroded and this court could not rely on the same to convict the Accused person herein. 41.PW 3’s and PW 4’s evidence was hearsay as they never witnessed the offence. PW 4 testified that they were informed by one Rose Awinja, who was the sister, that her three (3) brothers informed her that they had beaten the deceased, and they asked her to go and check on him. 42.However, the Rose Awinja was not called as a witness despite PW 4 confirming that they recorded her statement and that she was yet to testify. It is trite law that the Prosecution was not bound to call numerous witnesses to prove a fact. This was in line with Section 143 of the Evidence Act, which provides that;“In the absence of a provision of the law, no particular number of witnesses is required to prove a fact.” 43.Although there was no requirement that the Prosecution had to call a number of witnesses to prove a fact, if it failed to call crucial witnesses, an inference could be made that their evidence would have been in adverse to their case. It was the view of this court that Rose Awinja was a crucial witness as she would have confirmed as to who among the three (3) brothers approached her and clarified if the Accused person was among the three (3) brothers who assaulted the deceased. 44.As seen earlier, the Accused person's defence was that he was on a drinking spree at the time of the incident. It was confirmed by the Prosecution witnesses that he was too drunk to the extent that he could not move, as PW 4 testified. The time of the incident was not clearly pointed out by the Prosecution to confirm whether the Accused person participated in the killing and then proceeded to his drinking spree or indeed, the Accused person was not at all at the scene of crime at that time. It was upon the Prosecution to fill these gaps and failure to do so left glaring gaps as to whether the Accused person participated in the killing. 45.Further, the court noted that the two other brothers, Kennedy Osome and Daniel Okiri, fled after they realised that they had killed their brother. PW 2 testified that Kennedy Osome later died in a road accident, but Daniel Okiri was still at large. The Accused person was, however, at home drunk. His behavior was not compatible with that of a guilty mind as he did not flee like his brothers. 46.It is a settled principle of the law that when a case rested on circumstantial evidence, the circumstances taken cumulatively should form a chain so complete that there will be no escape from the conclusion that within all human probability, the crime was committed by the Accused person and no one else. Additionally, for the court to find the Accused person guilty, the inculpatory facts must be incompatible with innocence and incapable of explanation upon any other hypothesis than that of guilt. This was enunciated in Simon Musoke vs. Republic [1958] EA 715 and Abanga Alias Onyango vs Republic (Supra). 47.It was the view of this court that the Prosecution failed to establish a chain that connected the Accused person to the commission of the offence. The Prosecution failed to prove its case to the required standard of proof beyond reasonable doubt that indeed, the Accused person assaulted the deceased on 3rd August 2020, which led to his death. IV. Malice Aforethought 48.Having found and held that the Prosecution failed to prove without an iota of doubt that the Accused person murdered the deceased, this court did not belabour on the issue of malice aforethought since actus reus was not proved. Disposition 49.For the foregoing reasons, the upshot of this court’s decision was that the Accused person herein be and is hereby acquitted of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 (Laws of Kenya) under Section 215 of the Criminal Procedure Code Cap 75 (Laws of Kenya). 50.It is hereby directed that the Accused person be and is hereby set free and released from custody forthwith unless he be held for any other lawful cause. 51.It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 28TH DAY OF MAY 2026J. KAMAUJUDGE