https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11589

Republic v Bwana (Criminal Case 4 of 2020) [2026] KEHC 11589 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 11589 (KLR) Republic of Kenya In the High Court at Garsen Criminal Case 4 of 2020 JN Njagi, J July 17, 2026 Between Republic Prosecutor and Bwana Mohamed Bwana Accused Judgment 1.The accused is charged with the murder contrary to Section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the 13th March 2016 at about 1630 hours at Maweni, Tchundwa village in Faza Division Lamu East sub county within Lamu County he murdered Suleiman Badi Suleiman (herein referred to as the deceased). 2.The prosecution called 6 witnesses in the case while the Accused defended himself upon being placed to his defence and did not call any witness. Case for Prosecution 3.The evidence of Badi Mohamed PW1 was that he is a resident of Kiunga village in Faza island. He was a palm wine seller. That he was on the material day selling liquor at his liquor den at around 4pm when the deceased went there in the company of a person called Bakari. He sold liquor to them. They took the liquor and went away. That after some time he heard a woman screaming. He went to check and he found the Accused and a person called Fahad cutting the deceased with pangas. A person called Sheikh tried to stop them but he did not manage to do so. A report was made to the chief and he went to the place. 4.Mohamed Chakale PW2 testified that he on that day was taking alcohol at the pub of PW1. That while there he heard woman screaming. He stepped out of the pub to check what was happening. He saw the deceased screaming for help. He had suffered multiple injuries. The deceased went to where he PW2 was with other people seeking for assistance. 5.The father to the deceased PW3 testified that he was on the material day at 5pm at his home when he heard screams that his son had been killed. He rushed to the police station and reported. He went to the scene where he found the body of the deceased. There were many people and policemen. The body was taken to Tchundwa dispensary where a post mortem was conducted. The body was released to him for burial. 6.It was further evidence of PW3 that the deceased had earlier on been charged in court with the murder of the brother of the accused called Abud Umuro. That the deceased after being charged was released on bond. 7.A police officer then of Faza DCI office, Cpl Peter Ewoi, PW4 testified that he on that day at 7pm received a report of the killing from the then OCS Kizingitini police station, CI Oliech. He and other police officers went to the scene. They found other police officers and villagers at the scene. At the place was the body of the deceased covered in a bedsheet. He checked the body and found it with cuts on the head, back, hands ribs and on the leg. They took the body for post mortem. 8.The post mortem was conducted by a clinical officer PW5 then of Faza sub county Hospital. He however feared producing the report in court as he is related to the accused and feared revenge attack by members of the accused`s family. The report was produced in the case by Dr.Tariq Sherman PW6 of Faza sub county hospital. He said that the post mortem was completed by a clinical officer Mohamed Saiyanga at Tchundwa dispensary. That according to the report the body had three deep cut wounds on the head, deep cut wound on the mouth exposing the teeth, bilateral wrist amputation that was hanging by the skin, degloving of right tricep, amputation of left small finger, bilateral medial foot arc amputation, cut through the shoes, stab wound on the right abdomen, deep wound on the head and facial cuts and deep cut wound on the back. That as a result of the examination, the clinical officer formed the opinion that the cause of death was due to reduction of blood in the body. The doctor PW6 produced the report as exhibit, P.Exh.1. Defence case 9.When the Accused was placed to his defence he stated that he was living at Tchundwa village in Lamu. That he was a farmer. That between 2016 and 2017 he was at a shamba at Tchundwa. That he never knew the deceased in this case and only used to hear about him. That on 13/3/2019 he was at his shamba in the company of a young man called Mohamed Fulush. He heard people saying that the deceased had died. That he was arrested towards the end of 2020. He said that he knew that the deceased was charged with killing his brother who was killed in 2012. Analysis and determination 10.This being a criminal appeal the standard of proof is that of beyond reasonable doubt. The defence counsel made submissions in the case which I have considered. 11.The accused is facing a charge of murder contrary to section 203 as with 204 of the Penal Code. The section defines murder in the following terms:“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.” 12.The elements of the offence of murder were stated in the case of Republic v Andrew Omwenga (2009) eKLR where the court held:“It is clear from this definition that for an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or omission – there are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are:(a)The death of the deceased and the cause of the death,(b)That the accused committed the unlawful act which caused the death of the deceased and(c)That the accused had the malice aforethought”. 13.This court has therefore a duty to analyze the evidence in light of these essential elements required to be proved by the state against the accused person. I will deal with the ingredients of the charge as hereunder. 14.As pertains to the death of the deceased, a post mortem was conducted on the body of the deceased by a clinical officer PW5 who found it with multiple deep cuts all over the body that caused his death due to loss of blood. The report was produced in curt by PW6 without any objection from the defence. There is then no doubt on the death and the cause of death of the deceased. The same was due to loss of blood as a result of multiple deep cuts. 15.The second issue is whether the Accused is the one who committed the unlawful act that caused the death of the deceased. The prosecution in this respect relied on the evidence of Mohamed Badi PW1 who said that he was attracted to the scene by the screams of a woman. That when he went to check he found the accused and another cutting the deceased with pangas. The other witness who said that he went to the scene after hearing screams, Mohamed Chakale PW2 did not say whether he saw the people who attacked the deceased. It then remains that Badi Mohamed PW1 is the only eye witness in the case. The question is whether he identified the accused as the person who attacked and killed the deceased. 16.The law is that before a court can convict on the evidence of identification, it must be satisfied that such evidence is free from the possibility of error. In Francis Karuiki and 7 others v Republic Cr. Appeal No 6 of 2001 [200] eKLR it was held that;“The law on identification is well settled and this court has from time to time said that the evidence relating to identification must be scrutinized carefully and should only be accepted and acted upon if satisfied that the identification is positive and free from possibility of error.” 17.Badi PW1 said that he had by that time known the accused for a long time. That he used to go to his liquor den to partake palm wine. That they made attempt to rescue the deceased but they did not manage. 18.I have carefully examined the evidence of Badi PW1 and find that though he was the only witness who gave evidence that he saw the accused and another cutting the deceased with pangas, I am convinced that he was telling the truth. He had known the accused for a long time. The accused was a customer at his liquor den. He cannot have mistaken him for another person. 19.The court is aware of the danger of convicting on the evidence of identification from a single witness. It is trite law that a court before convicting on such evidence witness should warn itself of the danger of basing a conviction on such evidence. In Roria vs Republic (1967) EA 583 the Court of Appeal stated at page 584 that:“A conviction resting entirely on identity invariably causes a degree of uneasiness…That danger is, of course, greater when the only evidence against an accused person is identification by one witness and though no one would suggest that a conviction based on such identification should never be upheld it is the duty of this court to satisfy itself that in all circumstances it is safe to act on such identification.” 20.In Kiilu & Another v Republic [2005] eKLR, 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 in respect of identification especially when it is known that the conditions favoring a correct identification were difficult. In such circumstances, what is needed is some other independent evidence, whether it be circumstantial or direct, pointing to guilt, from where a judge or jury can reasonably conclude that the evidence of identification although based on the testimony of a single witness can be safely accepted as free from possibility of error.” 21.The deceased in this case was attacked during the day at around 5pm. Badi PW1 was a credible witness that he identified the accused as one of the attackers. There is no danger in relying on his evidence to convict the accused of the offence. 22.The accused said that he did not know the deceased and that he only used to hear of him. That he heard in 2019 that the deceased had died. 23.Badi PW1 said that both the accused and the deceased used to visit his liquor den to drink wine. They were all from the same village. The accused said that he knew that the deceased had been charged with killing his brother. I find that the accused knew the deceased as they hailed from the same village. I find that he is one of the people who hacked the deceased to death by cutting him with pangas. The killing of the deceased was unlawful. The accused thereby committed the unlawful act that caused the death of the deceased. 24.The third issue is whether the accused caused the death of the deceased with malice aforethought. The same is defined in section 206 of the Penal Code as follows: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;c.an intent to commit a felony;d.…….. 25.It is clear from the evidence that at the time the deceased was killed he was facing a charge of murder at Malindi High Court for killing a brother to the accused called Aboud Umuro. He was on bond. The inevitable conclusion is that the accused killed the deceased as a revenge to the killing of his brother. The attack was savage that left the deceased with deep cuts that caused his immediate death. The killing was premeditated. Malice aforethought was therefore proved against the accused. 26.In view of the foregoing, I find that the charge of murder has been proved against the accused beyond reasonable doubt. I find him guilty of the offence as charged and convict him accordingly. DELIVERED, DATED AND SIGNED AT GARSEN THIS 17TH DAY OF JULY 2026J. N. NJAGIJUDGEIn the presence of:Mr. Muli for accusedMr. Oluoch for RepublicAccused – present at GK Prison MalindiCourt Assistant - Rahma