https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12564

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **CRIMINAL CASE NO. E018 OF 2025 ( MURDER)** **REPUBLIC …………….…………………………………….PROSECUTOR** **VERSUS** | | | | --- | --- | | **DENNIS WEKESA BARASA ALIAS ISAIAH..............** | **ACCUSED** | **JUDGMENT** 1. Dennis Wekesa Barasa, alias Isaiah, the accused, is charged with the offence of murder contrary to section 203 read with section 204 of the Penal Code. The particulars of the information are that on 23rd March 2025 at about 14230 hours at Kasosi Sub-Location, Sirare Location, Bungoma Central Sub-County, within Bungoma County, he murdered Nelson Tofiko, an infant aged about eight months. 2. The accused pleaded not guilty. The prosecution called seven witnesses. The accused gave sworn evidence and called his father as a witness. # PROSECUTION CASE 1. The prosecution case arose from the death of Nelson Tofiko on Sunday, 23rd March 2025. The child’s mother, Melvin Barasa Nanjala (Pw1), testified that she met the accused in 2023 and became pregnant during their relationship. Nelson was born on 15th July 2024. After his birth, Pw1 lived for periods with her mother, an aunt and her grandmother. Towards the end of 2024, she informed the accused that Nelson was his child. In January 2025, she moved with the infant to the accused’s home at Mabanga, where they lived in the accused’s house within his father’s homestead. 2. Pw1 stated that the accused initially treated the child well. Over time, however, he began to handle the child harshly and to assault him, particularly when the child cried or refused food. She described occasions when the accused slapped, pinched or beat the child and used insulting language towards him. When she intervened, the accused would turn on her. On one occasion, the child developed swelling around the neck and was taken to a person known as Sister Ruth for treatment. According to Pw1, the accused stopped assaulting the child for about one week but later resumed. 3. Pw1 gave a detailed account of events on Friday, 21st March 2025. She stated that the accused returned home in the evening after a disagreement involving members of his family. The child was asleep in the bedroom while she washed clothes outside. Looking through an open wooden window, she saw the accused beating the child. She went to her grandmother and was advised to report the matter to a village elder known as Mukasa. She returned for the child, found him covered up to the face, and took him to Mukasa’s home. Mukasa was absent, but she reported the matter to his wife and showed her marks on the child. 4. The accused later found Pw1 and compelled her to return home. Pw1 testified that he told her that if she wished to leave, she had to leave the child behind. When she insisted on leaving with Nelson, the accused slapped her, called for a whip, and threatened to break her legs or do something she would regret. She therefore remained in the home. She said that Saturday passed without further incident. 5. On Sunday, 23rd March 2025, Pw1 was asked by her grandmother to help plant maize. At about 9.00 a.m., she told the accused she wished to take the child with her. The accused refused and kept Nelson in his care. Pw1’s evidence was that when she left, the child was well. She intended to return around noon to breastfeed him. 6. Pw1 returned shortly after noon, accompanied by her cousin, Mike. She entered the house and found Nelson breathing slowly. When she asked what had happened, the accused first said that porridge had entered the child’s nose while he was feeding him. A short while later, he said that the child had fallen from a small seat and injured his private parts. Pw1 wanted to examine the child, but the accused told her not to do so and instructed her to cook first. 7. After the accused left the house, Pw1 examined Nelson. She observed swelling around the genital area, fresh scratch or pinch marks on the chest, and an inability to hold the neck steady. A neighbour who saw the child told her that the injuries did not appear normal. Pw1 decided to take him to Sister Ruth. She informed the accused, who initially insisted that she take the child back home. Pw1 refused and proceeded. Sister Ruth referred them to a health facility. 8. The accused then joined Pw1. He sent her to collect the child’s clinic card and carried Nelson as they sought transport. They travelled by motorcycle to Nalondo Model Health Centre. The child was taken to the treatment area. After resuscitation efforts, Pw1 and the accused were informed that he had died. The medical staff recommended a post-mortem examination. The body was nevertheless taken back to the family home while arrangements were made to obtain a burial permit. 9. On the following morning, relatives of Pw1 went to the home and examined the body. Pw1 stated that the body was swollen and that the family offered differing explanations for the child’s condition. Her relatives insisted that the matter be reported. The accused and his family, on the other hand, began the process of obtaining a burial permit. Pw1 maintained that she had no grudge against the accused or his family and that her evidence was based on what she had witnessed while living with him and on the child’s condition when she returned on 23rd March 2025. 10. Pw1 was cross-examined at length. She accepted that she had not previously reported the alleged assaults to the police, had no medical records documenting an assault on herself, and did not produce the child’s clinic book. Her grandmother, Mukasa or his wife, Sister Ruth, her cousin Mike, and the neighbour who saw the child were not called. She maintained that Nelson was well when she left him with the accused on the material morning and that she found him critically injured upon her return. 11. Janet Wanduli (Pw2), the clinical officer in charge of Nalondo Model Health Centre, was not at the facility when the child was brought in. She received a telephone call from a member of staff informing her that an eight-month-old child had been brought in without signs of life and that the family was pressing for a burial permit. She directed that no permit be issued until the circumstances of death were clarified and a post-mortem examination conducted. 12. On 24th March 2025, the accused went to the facility to seek a permit. Pw2 explained the required process and, together with a member of staff, accompanied him to the family home. She found the child’s body lying on a sofa. On physical examination, she observed marks of varying ages on the face, chest, back and buttocks, together with swelling of the genital area. The accused told her that the child had fallen. Pw2 further stated that the accused asked her what she wanted so the matter could be concluded without raising questions. She did not issue a burial permit. Instead, she persuaded the accused to accompany her to the police station, where a report was made. 13. In cross-examination, Pw2 accepted that she was not a pathologist and could not determine the precise cause of death or identify the person who inflicted the injuries. Her observations were made after death and were limited to the body's external condition. She maintained that some marks appeared fresh, while others were older. She also maintained that, in the circumstances, the request for a burial permit required further inquiry. 14. Derrick Wanjala Simiyu (Pw3), a clinical officer at the health centre, attended to the emergency. At about 3.30 p.m. on 23rd March 2025, an eight-month-old child was brought by his parents. The mother told him that she had left the child well when she went to work and found him unwell on her return. The child had no breathing, heartbeat or pulse; the pupils were fixed and dilated, and the extremities were cold. Pw3 and his colleagues performed cardiopulmonary resuscitation for approximately thirty minutes without success and declared the child dead. 15. Pw3 observed swelling of the genital area and marks on the forehead, cheek, shoulder and buttocks. Some appeared recent, while others appeared older. He stated that some of the superficial marks were consistent with pressure from fingernails. He advised that the body be taken to a mortuary for a post-mortem examination. In cross-examination, he accepted that he could neither establish the cause of death nor identify the person responsible. 16. Christopher Khaemba (Pw4), the village elder, testified that at about 7.00 a.m. on 24th March 2025, the accused reported that his child had died at a health facility after an illness and sought assistance in obtaining a burial permit. Pw4 went to the homestead and saw the body on a chair or sofa. He warned the family not to bury the child without a permit. The accused later returned with two medical personnel, who examined the body. The matter was then reported to the police. Pw4 had known the accused since childhood. He had not previously received any complaint that the accused had assaulted the child or Pw1. He stated that an unreported act would not have come to his attention. 17. No. 108323 PC Kiplagat Willy Kipkemba (Pw5), the investigating officer, received a report on 24th March 2025 that preparations were underway to bury an eight-month-old child who had died under unclear circumstances. He proceeded to the homestead with other officers. The body was lying naked on a sofa and bore visible marks on the forehead, chest and lower back or waist. Initial inquiries indicated that the child had been left in the accused’s care while Pw1 went to work. The accused was arrested, and the body was removed to the Bungoma County Referral Hospital mortuary. 18. Pw5 recorded statements and attended the post-mortem examination on 3rd April 2025. He stated that the examination revealed serious injuries to the head and chest. Fingernail samples were taken from the child. A DNA comparison, initially contemplated during the investigation, was not undertaken after advice that the biological relationship between the accused and the child was not the issue for determination. Pw5 admitted that no alleged murder weapon was recovered, no prior clinical records for the child were obtained, and no forensic comparison of fingernail material was conducted. 19. Pw5 also produced or identified photographs of the body and the homestead. The exhibit memo initially contained a typed reference to 2023. After the defence objected, the court allowed the witness, as the maker, to correct the obvious year to 2025. The occurrence, the photographic processing certificate and the remaining entries all related to 2025. The defence reserved the right to cross-examine the witness about the correction. 20. No. 239389 Sergeant Johance Taru (Pw6), a scenes-of-crime officer, testified that on 1st August 2025 he processed photographs transferred from the investigating officer’s Samsung mobile telephone to a computer and printed them. He produced seven photographs taken before the post-mortem examination, six taken during the examination, and photographs of the homestead, together with the required certificate. In cross-examination, he accepted that he did not personally take the photographs and could not testify to the events depicted. His role was to process and certify the electronic material supplied to him. 21. Dr Elly Kiplimo Kosgei (Pw7), a senior medical officer, performed the post-mortem examination. The deceased was a well-nourished male infant, approximately eight months old. Externally, the doctor observed bruises on the anterior chest wall, forehead and chin, together with a right-sided scalp hematoma. Internally, there was blood in the right side of the chest and a massive frontotemporal subdural hematoma. He opined that the cause of death was severe head injury from blunt trauma, accompanied by blunt chest injury. He prepared the post-mortem report. 22. During cross-examination, Pw7 accepted that he could not identify the assailant or the specific object that caused the blunt trauma. He explained that fingernail pressure could cause superficial injury, but the fatal injuries were the blunt head and chest trauma. **DEFENCE CASE** 1. The accused gave sworn evidence. He acknowledged his relationship with Pw1 and accepted that Nelson was his child. He said that Pw1 and the infant moved into his home in January 2025. He stated that the child had been unwell since Pw1 lived in Nairobi and that Pw1 had a clinic or Linda Mama book, which she did not produce. He denied mistreating the child and said that he supported Pw1 and Nelson through his farming and other work. 2. He stated that on a Sunday, which he referred to as 23rd February 2025, he was working at the home of a person known as Mwalimu Charles when Pw1 brought the child to him, struggling to breathe. He gave her Kshs.300 for treatment. She returned after consulting Sister Ruth, who had referred them to Malando or Nalondo. The accused said that he joined them, arranged motorcycle transport, and accompanied the child to the health facility. 3. According to the accused, the child was placed on oxygen and died after approximately forty-five minutes. He telephoned relatives, and the body was taken home. He then attempted to obtain a burial permit. He stated that Pw2 demanded Kshs.10,000, although in another answer he referred to Kshs.15,000. He had not put that allegation to Pw2 when she testified. He denied assaulting the child and refusing treatment, and maintained that the case arose from difficulties encountered in obtaining a burial permit. 4. In cross-examination, the accused accepted that there was no treatment record showing the child had a pre-existing illness. He also accepted that the doctor’s evidence did not attribute the death to illness. He had no prior disagreement with Pw2, Pw3, Pw4, or the investigating officer. He said that Pw4 and the investigating officer had spoken the truth, but described the evidence of Pw2 and Pw3 as false. He accepted that he and Pw1 were the only adults living in his house with the child. 5. Martin Wanjala Wekesa (Dw2), the accused’s father, testified that Pw1 and Nelson moved into the homestead in January 2025. The child sometimes cried at night, and the couple said he was sick. Dw2 advised them to seek treatment. On the material Sunday, the accused telephoned him to say that the child had died at the health facility. Dw2 did not go to the facility. He later saw the body when it was brought home. 6. Dw2 stated that he had not previously received any report that the accused mistreated Pw1 or the child. In cross-examination, he accepted that he left the homestead during the day to work and would not know what occurred inside the accused’s separate house. He was unaware of any demand for money for a burial permit and said that such a permit was issued without charge. He could not give direct evidence about the events of 23rd March 2025. # SUBMISSIONS 1. The prosecution submitted that the evidence, drawn from the testimonies of all prosecution witnesses, fully incriminated the accused and that he should be convicted. The prosecution reiterated the evidence of all the witnesses and submitted that the evidence adduced had established the deceased’s death, that the deceased succumbed due to an unlawful act, and that the deceased, a toddler, was under the sole care of the accused on the day he died. Regarding malice aforethought, the prosecution submitted that it was clear there was malice aforethought on the part of the accused, given the injuries sustained by the deceased, in line with the definition of malice aforethought under section 206 of the Penal Code. There is direct evidence from Pw1 that the accused person had assaulted the deceased. That, to crown it all, the accused’s conduct in trying to silence Pw2 from disclosing the deceased’s condition infers guilt on the part of the accused. 2. Counsel for the accused submitted that the prosecution had failed to prove the charge beyond reasonable doubt. It was argued that there was no eyewitness to the fatal assault, no weapon was recovered, no video or forensic evidence placed the accused at the scene, and the fingernail samples were not analysed. Counsel further submitted that the case rested on suspicion arising from the family’s attempt to obtain a burial permit. 3. The defence criticised Pw1’s credibility. It was submitted that she had moved with the child among several relatives, had not produced the child’s clinical records, and had not reported earlier assaults to the police or the village elder. The failure to call her grandmother, Mukasa’s wife, Sister Ruth, Mike and the neighbour was said to leave gaps in the prosecution case. Counsel suggested that the child may have been injured while in Pw1’s care or while being carried from place to place. 4. Counsel further submitted that Pw2’s evidence was hearsay and that she had an undisclosed interest arising from the alleged demand for money. Pw3 and Pw7 could not identify the assailant. Pw5 recovered no weapon and conducted no conclusive forensic investigation. Pw6 merely processed photographs taken on a private telephone. Reliance was placed on the presumption of innocence, the prosecution’s continuing burden of proof, and authorities cautioning against a conviction founded on suspicion. The court was urged to acquit the accused. # ANALYSIS AND DETERMINATION 1. I have considered the evidence adduced by the prosecution, the accused’s sworn statement, the evidence of Dw2, and the written submissions. In this case, the prosecution must prove every ingredient of murder beyond reasonable doubt. Section 203 of the Penal Code defines the offence of murder as follows: ***“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”*** 1. The prosecution is therefore required to prove the cause of death, the unlawful act or omission that caused it, the accused’s responsibility for that act or omission, and malice aforethought. ## The fact and cause of death 1. The death of Nelson Tofiko is not in dispute. Pw1 and the accused took him to Nalondo Model Health Centre. Pw3 examined him, attempted resuscitation, and declared him dead. Pw4 and Pw5 later saw the body at the homestead. Pw6 took photographs of the body, and Pw7 conducted the post-mortem examination. The accused identified the child in the photographs and acknowledged that he died on the material day. 2. The medical evidence establishes that this was not a death from an unexplained childhood illness. Pw7 found a right-sided scalp hematoma, massive frontotemporal subdural bleeding, and a blunt chest injury with blood in the chest cavity. He attributed death to severe head injury from blunt trauma, accompanied by a blunt chest injury. Those findings were consistent with the serious condition observed by Pw1 on her return, and with the external marks seen by Pw2, Pw3 and Pw5. 3. Pw7’s reference during cross-examination to dates of 23rd and 24th March 2025 was inconsistent with the signed post-mortem report and with Pw5’s evidence that the examination was conducted on 3rd April 2025. I have considered that discrepancy. It does not affect the identity of the body, the documented injuries, or the medical opinion on the cause of death. The body was preserved at the mortuary, and no alternative post-mortem report or medical cause was suggested. The injuries were not shown to have arisen from lawful treatment or any other lawful cause. An eight-month-old child sustained severe blunt trauma to the head and chest. I find that the fact and cause of death were proved beyond reasonable doubt. **Whether the unlawful act was attributable to the accused** 1. No witness testified to seeing the blow that caused the fatal head and chest injuries. The prosecution's case is therefore circumstantial. Circumstantial evidence must be examined with care. 2. In **Musili Tulo v Republic [2014] KECA 412 (KLR),** the Court of Appeal restated the governing tests as follows: ***“The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.”*** ***“Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.”*** 1. The Court further stated that the circumstances, taken cumulatively, must form a complete chain leaving no reasonable escape from the conclusion that the offence was committed by the accused and no other person. 2. The first factor is the child’s custody and condition. Pw1 left Nelson in the accused’s care at about 9.00 a.m. Her evidence was that the child was well. When she returned around noon, the child was breathing slowly, could not hold his head, and had fresh marks and swelling. Pw3 confirmed that by about 3.30 p.m. the child had no signs of life. Pw7 subsequently found fatal blunt trauma. The interval during which the fatal injuries were sustained was therefore narrow. 3. The second circumstance concerns the accused’s conduct and the explanations attributed to him before the child was taken for treatment. Pw1 stated that he first said porridge had entered the child’s nose and later said the child had fallen from a small seat. He discouraged her from examining Nelson and told her to cook. The accused did not adopt either explanation in his sworn defence. Instead, his evidence was that Pw1 brought the child to him at his place of work, already struggling to breathe. 4. The third circumstance is evidence of prior violence towards the child. Pw1 described repeated assaults and an incident two days before the death, when she saw the accused beat the sleeping infant. Previous misconduct cannot, by itself, prove the charge. It is relevant here because it forms part of the relationship in the home, explains Pw1’s concern when she saw fresh injuries, and is consistent with the presence of marks of different ages noted by the medical witnesses. 5. The fourth circumstance concerns the medical consistency of the prosecution account. The child sustained severe head and chest injuries, not merely superficial fingernail marks. The description of slow breathing, loss of neck control and rapid deterioration was consistent with serious trauma. The medical evidence did not support the accused’s suggestion that the child died from a long-standing illness. Pw7 described the child as well-nourished and identified trauma as the cause of death. 6. The fifth circumstance is that no independent evidence placed the child in the care of another person at the material time. The accused and Pw1 were the adults who lived with him. Pw1 was away. Dw2 was at work and accepted that he did not know what occurred inside the accused’s house. The defence’s suggestion that Pw1 or another person may have caused the injuries was not supported by evidence. A court cannot replace proof with speculation, whether for the prosecution or for the defence. 7. Section 111(1) of the Evidence Act is relevant, but it must be applied without shifting the legal burden. It provides, in part: ***“When a person is accused of any offence, the burden of proving any fact especially within the knowledge of such a person is upon him.”*** 1. The provisos to that section reserve the accused’s entitlement to an acquittal where the evidence as a whole creates reasonable doubt. In **Ng’ethe & another v Republic [2025] KECA 1549 (KLR),** the Court of Appeal reaffirmed that an accused ordinarily bears no legal burden but may bear a limited evidential burden on facts peculiarly within his knowledge. The prosecution must first establish the foundational facts. 2. The evidence adduced is that a healthy infant was left in his exclusive care, was found within hours with fatal traumatic injuries, and that the accused gave different explanations for the child’s condition. What occurred inside the house during that period was within his knowledge. His explanation, when considered against the prosecution evidence, is not persuasive and does not challenge the prosecution evidence. 3. The accused stated that Pw1 brought the child to his place of work already ill, contrary to Pw1’s evidence that she found him in the house in the accused’s care. He alleged that the child had a long medical history but produced no clinic records and called no person who had treated the alleged illness. Most importantly, his account did not explain the massive subdural hematoma and the blunt chest injury. 4. The allegation that Pw2 demanded Kshs.10,000 or Kshs.15,000 was not put to her during cross-examination. The two amounts were inconsistent, and Dw2 stated that the accused never told him of any such demand. I attach no weight to that allegation. It does not explain the fatal injuries or create a reasonable doubt about the events before the child reached the health facility. 5. Dw2’s evidence did not support the accused on the material facts. He was away during the day, did not observe the child’s condition when Pw1 left or returned, and did not accompany the child to hospital. His evidence that no complaint had previously been made was truthful to the extent of his knowledge, but it could not disprove events that occurred inside a separate house while he was absent. 6. Considering the circumstances collectively, I find no co-existing factor that weakens or destroys the inference arising from them. The chain begins with the child being left well in the accused’s care, continues through his unexplained traumatic condition and shifting accounts, and ends with medical evidence of fatal blunt injuries. It points unerringly to the accused as the person who inflicted those injuries. 7. Pw1’s account remained consistent. She left the child with the accused, returned to find him in a grave condition, and the accused offered conflicting explanations and discouraged immediate examination. The child died shortly thereafter from trauma. The failure to report earlier domestic violence is not uncommon and must be evaluated in context. Pw1 was nineteen years old, dependent on the accused’s home, and said she had been threatened when she tried to leave with the child. The case does not depend solely on proof of previous assaults. The key evidence concerns the child’s condition before and after the period in the accused’s care. 8. The differences over whether the health facility was called Malando or Nalondo, the precise time relatives arrived, and the oral date references made by Pw7 do not alter the substance of the case. The Court of Appeal has repeatedly held that ordinary discrepancies arising from human recollection do not vitiate a case unless they are material to the ingredients of the offence. The discrepancies identified here do not affect the identity of the deceased, the accused’s custody of the child, or the medical cause of death. 9. The defence also relied on witnesses who were not called. Section 143 of the Evidence Act provides: ***“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”*** 1. The prosecution is obliged to call witnesses necessary to establish the truth, but is not required to call a superfluity of witnesses. See **Keter v Republic [2007] 1 EA 135**. The evidence adduced was sufficient as the circumstances were clearly explained. 2. No weapon was recovered. The nature of the fatal force was, however, established by the post-mortem evidence. In Keino v Republic [2024] KECA 710 (KLR), the Court of Appeal confirmed that the failure to recover or produce a murder weapon is not necessarily fatal where the remaining evidence sufficiently establishes the assault and the nature of the injuries. The absence of a weapon in this case is an investigative gap, but it does not undermine the complete circumstantial chain. 3. The failure to analyse the child’s fingernail samples was also criticised. Pw5’s explanation that the proposed test concerned biological relationship was unsatisfactory because paternity was not disputed. Even so, Pw7 was clear that the superficial marks associated with fingernails were not the cause of death. The fatal injuries were blunt trauma to the head and chest. A fingernail comparison could not, by itself, have identified the person who inflicted that internal trauma. Its absence does not create a reasonable doubt when the remaining evidence is considered. 4. The photographs were taken on the investigating officer’s mobile phone and processed by Pw6, who issued a certificate. There was no evidence that they were altered or that they depicted a different child or scene. I have treated them as corroborative visual material only. The finding on the cause of death rests on the post-mortem evidence, while the finding on responsibility rests on the entire circumstantial chain. The result would be the same even if the photographs were given less weight. 5. Attempts to obtain a burial permit require investigation, but they are not, in themselves, proof of murder. A bereaved family must make burial arrangements. I therefore do not infer guilt merely because the accused sought a permit or returned the body home. The case against him rests on what happened before the child was taken to hospital, the child's condition, the medical findings and the explanations given. The burial-permit evidence is relevant only to the chronology and to the manner in which the death came to the attention of the authorities. ## Malice aforethought 1. Section 206 of the Penal Code sets out the circumstances from which malice aforethought may be established. In so far as relevant, it provides: ***“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances— (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.”*** 2. In determining malice aforethought, the court considers the nature of the force used, the part of the body targeted, the severity of the injuries, the vulnerability of the deceased and the conduct surrounding the act. See **Republic v Tubere s/o Ochen [1945] 12 EACA 63 and Keino v Republic [2024] KECA 710 (KLR)**. 3. Nelson was an eight-month-old infant. He was incapable of defending himself or posing any threat. The force used caused a massive frontotemporal subdural hematoma, a scalp hematoma and a blunt chest injury with internal bleeding. These were not minor injuries arising from ordinary handling. They were grave injuries to vital parts of a very young child. 4. The accused’s knowledge of the child’s vulnerability is evident from his having lived with the child and participated in feeding and caring for him. A person who applies force sufficient to cause massive bleeding around the brain and a blunt injury to an infant’s chest must know that death or grievous harm will probably result. The repeated harsh treatment described by Pw1, together with the accused’s efforts to prevent her from examining the child, further support that inference. 5. I have considered whether the evidence supports the lesser offence of manslaughter by accident, loss of control, or absence of malice. No evidential foundation was laid for provocation, accident, or lawful correction. The accused denied inflicting any force and offered an illness account, which was displaced by the medical evidence. The nature and multiplicity of the fatal injuries exclude an innocent or trivial act. Malice aforethought was proved. 6. The prosecution proved that Nelson Tofiko died from severe blunt trauma to the head and chest. It further established a complete chain of circumstances showing that the injuries were inflicted while the child was in the accused’s exclusive care. The accused’s explanation did not account for those injuries and was inconsistent with the credible evidence and the medical findings. The evidential gaps identified by the defence, considered individually and collectively, do not create reasonable doubt. 7. I am satisfied that the prosecution has proved beyond reasonable doubt that the accused caused Nelson Tofiko's death by an unlawful act and that the accused did so with malice aforethought. 8. I therefore find Dennis Wekesa Barasa, alias Isaiah, guilty of the offence of murder and convict him accordingly. **Dated, signed and delivered virtually on this 29th Day of July 2026.** **R. E. OUGO** **JUDGE** **In the presence of:** **Dennis Barasa Wekesa/ Accused** **Miss Matere - For the State** **Mr. Wekesa P. – For the Accused** **Wilkister / Minah - C/A**