Republic v Bosire (Criminal Case E024 of 2022) [2026] KEHC 13209 (KLR) (28 May 2026) (Judgment)

Republic v Bosire (Criminal Case E024 of 2022) [2026] KEHC 13209 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 13209 (KLR) Republic of Kenya In the High Court at Nyamira Criminal Case E024 of 2022 TW Cherere, J May 28, 2026 Between Republic Prosecutor and Wycliffe Kabaka Bosire Accused Judgment 1.The accused person, Wycliffe Kabaka Bosire, was arraigned before this court facing a charge of murder contrary to Section 203 as read together with Section 204 of the Penal Code. It was alleged that on 06th November 2022 at Miruka Market, Miruka Sublocation, West Mugirango Location within Nyamira South Sub-County in Nyamira County, he unlawfully caused the death of one Job Onderi Mokaya. When the charge was read out and explained to him, the accused denied the allegation and a plea of not guilty was entered. 2.In an effort to establish its case, the prosecution called four witnesses whose testimonies pieced together the events surrounding the death of the deceased. The prosecution narrative principally began with the evidence of PW1, Kevin Oluoch, a motorcycle repairer residing at Miruka, who testified that on the material night at about 10.00 p.m., he was walking home from a recreation place when he approached Miruka Guest House Bar situated near a petrol station. As he passed by, he encountered a violent scene. He found the accused person together with another man known as Tembu assaulting the deceased, Job Onderi Mokaya. PW1 narrated that the deceased was lying helplessly on the ground facing upwards while Tembu stepped on him as the accused beat him. According to PW1, the accused person was armed with a knife. Alarmed by what he had witnessed, PW1 intervened and questioned the assailants as to why they were beating the deceased. His intervention was met with hostility. He testified that he held the accused person’s hand and screamed for help, thereby attracting members of the public to the scene. Upon realizing that people were gathering, the accused person and his accomplice fled from the scene leaving the deceased behind. 3.PW1 further testified that although the deceased did not appear to have visible bleeding injuries at the time, he was in a helpless state. He assisted him back to the guest house where there were lodging rooms and thereafter contacted the police to report the incident. He later learnt that the deceased had been taken to hospital for treatment and was subsequently transferred to Nyamira County Hospital where he eventually succumbed to his injuries. 4.The events following the incident were narrated by PW2, Dominic Ongwenyi Oyaro, a boda boda rider from Miruka. PW2 testified that on 07th November 2022 at about 4.00 p.m., he went to Miruka Guest House where one David Nyaribo informed him that one of his workers was unwell and lying in a room behind the bar. PW2 proceeded to the room and found the deceased lying on the floor in pain. He thereafter transported him on a motorcycle to Rakaden Hospital before later, together with David Nyaribo, transferring him to Nyamira County Hospital where he was admitted for further treatment. PW2 stated that he did not know how the deceased had sustained the injuries. He later learnt that the deceased had died while undergoing treatment. 5.To establish the cause of death, the prosecution called PW3, Oganga Rodgers, a Senior Registered Clinical Officer, who produced the post-mortem report prepared by Dr. Goga Fredrick. The medical evidence revealed that upon examination of the body, the deceased was found to have suffered hematoma on the left temporal region accompanied by internal bleeding within the head. According to the doctor’s findings, the deceased died as a result of blunt trauma to the head. 6.The prosecution case was concluded through the testimony of PW4, Police Constable James Mtira, who testified on behalf of the investigating officer. PW4 informed the court that according to the witness statements contained in the investigation file, the deceased had been assaulted by the accused person together with another individual who was not before the court. He further testified that the deceased later succumbed to head injuries sustained during the assault. 7.At the close of the prosecution case, the court found that the prosecution had established a prima facie case sufficient to warrant the accused being placed on his defence. 8.In his sworn defence, the accused denied assaulting or killing the deceased and further denied being present at the scene on the material night. 9.I have carefully considered the evidence tendered before this court together with the defence advanced by the accused person. The burden rests throughout upon the prosecution to prove the charge against the accused beyond reasonable doubt and such burden never shifts to the accused. 10.The ingredients of the offence of murder are now settled. In Musili Tulo v Republic [2014] KECA 412 (KLR) the Court of Appeal reiterated that for the offence of murder to be established, the prosecution must prove beyond reasonable doubt that: the deceased died; that the death resulted from an unlawful act or omission attributable to the accused person; and that in causing the death, the accused acted with malice aforethought. 11.On the first ingredient, there is no dispute regarding the fact and cause of death of the deceased. PW2 testified that he escorted the deceased to hospital where he was admitted for treatment before later learning of his death. The post-mortem report produced by PW3 confirmed that the deceased died as a result of blunt head trauma occasioned by internal bleeding in the head. The prosecution therefore satisfactorily proved both the fact and cause of death. 12.The next issue for determination is whether the prosecution proved beyond reasonable doubt that it was the accused person who unlawfully assaulted the deceased thereby causing the fatal injuries. 13.The prosecution case rested principally on the evidence of PW1, Kevin Oluoch, who testified that on the material night at about 10.00 p.m. while walking home, he reached Miruka Guest House Bar near a petrol station and found some people fighting. According to PW1, the persons involved were the accused person, one Tembu and the deceased. He testified that the deceased was lying on the ground while Tembu stepped on him as the accused beat him. The accused person denied involvement in the assault and raised an alibi defence contending that he was not present at the scene on the material night. 14.The prosecution evidence regarding identification must therefore be examined with great care, particularly because the alleged incident occurred at night and the case substantially rests on the testimony of a single identifying witness. 15.In Maitanyi v Republic [1986] KECA 39 (KLR), the Court of Appeal held that: -“Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult.” 16.I have carefully re-evaluated the evidence of PW1 regarding the circumstances under which he allegedly recognized the accused person. PW1 testified that the incident occurred at about 10.00 p.m. outside Miruka Guest House Bar near a petrol station. However, he did not describe the nature or source of lighting at the scene or explain how visibility was sufficient to enable positive recognition at that hour of the night. Although he mentioned the presence of the guest house and petrol station, no evidence was led regarding whether there was electricity lighting, security lighting, moonlight or any other form of illumination. 17.During cross-examination, PW1 stated that he was merely passing by the guest house when he found the people fighting. He did not indicate the duration for which he observed the assailants, the distance from which he made the observations or the specific circumstances that enabled him to positively recognize the accused person. He further admitted that he did not know where the trio had come from or whether they had been drinking at the guest house. 18.Whereas PW1 stated that he knew the accused person beforehand and referred to him as “Wicky,” the court must nevertheless exercise caution because mistakes in recognition are still possible, particularly where an incident occurs at night and the surrounding conditions are not clearly described. 19.The court is alive to the danger of relying on visual identification evidence under difficult conditions without careful scrutiny. In the present case, the evidence of PW1, though possibly honest, was not free from the possibility of error. The prosecution failed to establish the surrounding circumstances necessary to eliminate the danger of mistaken recognition. 20.Further, no other witness placed the accused person at the scene of the alleged assault. PW2 candidly testified that he did not know how the deceased sustained his injuries or who inflicted them. The investigating officer who testified before court equally had no personal knowledge of the investigations and merely relied on statements recorded by other officers. The prosecution case therefore rested solely upon the uncorroborated evidence of PW1 regarding the identity of the assailant. 21.In criminal law, proof of the actus reus is fundamental. Before a conviction for murder can issue, the prosecution must establish beyond reasonable doubt that it was the accused person who committed the unlawful act that caused the death of the deceased. In the present case, that crucial ingredient was not proved to the required legal threshold. The chain connecting the accused person to the fatal injuries remained uncertain and incomplete. 22.Having found that the prosecution failed to prove that it was the accused person who unlawfully assaulted the deceased, it becomes unnecessary for this court to consider whether malice aforethought was established. The question of malice aforethought can only arise once the unlawful act attributable to the accused person has first been proved. 23.Consequently, I find that the prosecution failed to prove its case against the accused person, Wycliffe Kabaka Bosire, beyond reasonable doubt. The accused is accordingly found not guilty of the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code and is acquitted under Section 322(1) of the Criminal Procedure Code. He shall be set at liberty unless otherwise lawfully held.Top of FormBottom of Form DELIVERED AT NYAMIRA THIS 28TH DAY OF MAY 2026WAMAE.T. W. CHEREREJUDGEAppearancesCourt Assistant - AnitaAccused - PresentFor Accused - Mr. Onyancha AdvocateFor the DPP - Mr. Chirchir (SADPP)