https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10376

Republic v Cherutich & 3 others (Criminal Case E005 of 2024) [2026] KEHC 10376 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10376 (KLR) Republic of Kenya In the High Court at Kabarnet Criminal Case E005 of 2024 TM Matheka, J July 10, 2026 Between Republic Prosecution and Ezekiel Kipkoech Cherutich 1st Accused Alex Kipkorir Koech 2nd Accused Shadrack Kibet Koech 3rd Accused Elijah Kipchirchir Lagat 4th Accused Judgment 1.The accused persons Ezekiel Kipkoech Cherutich, Alex Kipkorir Koech, Shadrack Kibet Koech And Elijah Kipchirchir Lagat have been jointly charged with two counts of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge on count I were that on the 15th day of April,2024 at Emom Location within Baringo Central in Baringo County they jointly murdered Richard Chumba. 2.The particulars of the charge on count II were that on the 15th day of April,2024 at Emom Location within Baringo Central in Baringo County, they jointly murdered Patrick Komen. 3.Each of the accused persons pleaded not guilty to the charge and the matter was set down for full trial where the prosecution called 10 witnesses in support of the charge preferred against the accused. Prosecution evidence 4.PW 1 one Duncan Kipkasi Kibet testified that he was a resident of Kipsaa village in Sotik Sub-location, Tenges and was a watchman at Hon. Lessonet’s home. That on the 27th March,2019, he was on duty when he received a call at 7:00P.M from his sister Felistus, informing him that his mother had been cut on the leg and head were identified as Ezekiel Koech, Patrick Kiprop Koech and Kiplagat Koech, whose home was about 800metres from his home. 5.He came to Kabarnet Hospital and confirmed that she had cuts on the head and leg . She was treated for about a week and was discharged. The matter was reported at Tenges Police Post. That Ezekiel Cherutich and Kiplagat Koech were arrested and brought to court. That Ezekiel was released while Emmanuel Kiplagat Koech was sentenced to 3 ½ years. 6.He testified that on the 15th April,2024, they were planting in their land in Tenges as Ezekiel Cherutich with others were slashing in a neighbours land. That at midday Ezekiel’s group came and started throwing stones on them. That Ezekiel Cherutich, was with Kibet Koech, Kipkorir Koech, Elija Kiprop Koech and Patrick Kiprop Koech. 7.That before throwing stones at the home Ezekiel had ordered them to leave the land. That their father who is Richard Chumba deceased where they were to go as they were on their own land. 8.Richard Chumba told them that they were in their farm. The accused persons began hitting them with stones, one stone hit Richard Komen on the head. All the accused persons were throwing stones at them. As he was leaving the scene he saw that Patrick had been hit and had fallen down. He saw that after Patrick had fallen down Ezekiel, the 1st accused went and cut him with a panga on the shoulder. 9.That after that, Richard Kibet Chumba was hit with a stone, he fell down then they cut him with a panga. He said that he was 20 metres away where he was able to see what was happening. 10.That he called neighbours and good Samaritans That people in the neighbouring farms arrived, on arrival, they found Richard Kibet Chumba and Patrick Komen in bad condition. 11.That Richard Kibet Chumba died at the scene and Patrick Komen was taken to Kabarnet Hospital by the crowd who came .He said that they waited for the police who arrived at 6p.m and took the body to Kabarnet mortuary. That Patrick was referred to Eldoret Moi Teaching and referral hospital but he died on the way and was returned to Kabarnet Hospital mortuary. 12.he identified those who had cut the 2 deceased persons as the accused persons accused 1, accused 2, accused 3 and accused 4. That the 5th person was Patrick Kiprop Koech is not in court. He said that all the four in court had panga That they cut Patrick on the leg and severally, and also cut Richard Kibet Chumba on the neck, shoulder and back of the fingers, chin and mouth in the middle. 13.On cross examination he said that they had a land dispute. they did not pick any stones from the scene. 14.PW2 Fairly Chepngetich Kiget said that she was a resident of Emom Location, and she knew the accused persons who were their neighbours. 15.She testified that on 15th April,2024, between 8 and 9:00a.m, she was with her father Richard Kibet, Patrick Komen, Duncan Kibet, Sudan planting on their farm while the accused persons were slashing their farm about 50 meters away. The accused persons ordered them to leave they were planting. 16.She said that shortly, the 2nd accused Kipkorir picked a stone and threw it at her brother Duncan Kibet Kipkazi but Duncan evaded the stone. That Elijah the 4th accused picked a big stone and hit her brother Patrick Komen on the head and he fell down. Ezekiel the 1st accused entered the farm and cut Patrick on the back and neck using a panga and Richard on the jaw and neck. That the other 3 accused persons joined the 1st accused and cut her father Richard Kibet. She said that she screamed and ran away from the scene as she could not help them. 17.She said that they were also threatened but they ran away to hide while screaming until their neighbours arrived. They all went back to the scene together and found her father had died and Patrick was in a serious condition. She said that he was taken to the hospital but he succumbed before reaching hospital. She said that the accused persons used to threaten them over land boundary which threats they reported to the police. She said that the people who caused injury to her father Richard and his brother Patrick are the accused persons in the dock. 18.On cross examination she said that each of the accused persons had a panga at the time of the attack but she did not know where they took the pangas. On re exam she said the police recovered the panga that was in court 19.PW 3 Samuel Lagat said that he resided at Lelbatai in Tenges. He said that he knew the accused persons that the 1st accused was his cousin while the 2nd and 3rd accused were sons of the 1st accused, whereas the 4th accused was a son to the brother of the 1st accused 20.That on the 15th April,2024, he was at the home of the deceased Richard Chumba with Sharon, Chepngetich, Kiprotich, Duncan, Francis and later Richard Chumba and Kiprotich. They were planting maize while the accused persons who were about 7 in number were on a neighbouring land slashing the land using pangas. . 21.That the 1st accused followed by the 2nd, 3rd and 4th accused came and ordered them to stop planting. That they told them to leave then started cutting Kiprotich. That Patrick fell and the 1st accused started cutting him on the neck,. That Richard inquired why he was cutting his son, accused 1 and his sons accused 2 and 3 started cutting Richard. He said that it is the 4th accused who hit Patrick with a stone. That Richard was cut on the neck, shoulder and stomach and on the mouth. He insisted that it was the 1st accused and his 2 sons the 2nd and 3rd accused who cut him. That he tried to run with a jembe but the 3rd accused threatened him. He said that they screamed and people came including the chief but the accused persons seeing them, they ran away. That Richard relieved himself and died at the scene. 22.He said that the incident arose due to land dispute where the land belongs to Richard but the 1st accused wanted to take it from him. That the land dispute had been resolved earlier but the 1st accused was not satisfied. 23.PW 4 Sharon Kiptui testified that she lived Soruk in Tenges in the same village with the accused persons. That on the 15th April,2024, she was in Richard’s land with Eliud and others planting maize and beans . She said that Ezekiel and his sons who were slashing their land with pangas threw stones and ordered them to leave the land but they declined. That the 1st and 4th accused threw stones at them and they ran away. 24.She said that the 4th accused hit Patrick on the head with a stone and he fell down then the 1st accused cut him. That after Patrick fell down the 2nd and 3rd accused persons cut Richard. She said that they ran away and came back later when Patrick was being taken to the Hospital. 25.PW 5 Eliud Kiprotich Rono testified that he resided at Sorok in Tenges and that he knew the accused persons. That he was working for Richard and the accused persons were Richard’s neighbours. He said that he worked for Richard for 4 years and that on the 15th April,2024, he was at Richard’s land spraying land from 6:00a.m, and finished at 10:00a.m then went to Richard’s house but he did not find him. he went to his land where he was planting maize and beans with Kipkazi, Christopher, Patrick and Chepngetich. 26.That the accused persons were on their land on the upper side . That the 4th accused hit Patrick with a stone and he fell down. He said that the 1st accused came and cut Patrick on the back. That Richard was also cut by the 2nd and 3rd accused. 27.He said that it was the 3rd accused who started cutting Richard then the 3rd accused. That the 1st accused was where Patrick was attacking him. He said that the 4th accused was throwing stones at them and they ran away as they screamed. 28.PW 6 Felista Cherono Kibet testified that she resident of Emo Location Sorok Sub-location in Tenges where she taught at the ECD at Sorok Primary. That she knew all the accused persons as they were their neighbours. 29.She gave a history of threats from the accused persons . That on the 25th February,2024, the 1st and 2nd accused went to drink then came to abuse them while armed with a panga. That they also came on the 5th March,2024, 7th March,2024 and 6th April,2024 to threaten them saying that if they did not leave where they lived, they would come to kill them especially her and her brother Kipkazi . That reported at Tenges where they were given OB No.06/12/04/2024. That while the police were preparing to arrest them for the offence of threatening , they killed on the 15thApril ,2024. 30.She said that they had a land dispute but the chief and the elders had resolved in 2019That they assaulted and beat up her mother , they uprooted crops on their land , and kept threatening them saying they would kill them if they did not vacate the land . 32.She said that on the 15th April,2024, she was not at home as she was on her way to Nandi when she received a call that her father had been killed and her cousin had been cut. She said that the accused persons fulfilled the threats they had made earlier. 33.PW 7 Dr. Pius Amdany Barmokong testified that he was a medical officer attached to Baringo County Hospital. He said that he held a Bachelor of Medicine and Masters in Surgery 2021. He said that he performed postmortem on the bodies of Richard Kipchumba and Patrick Komen on the 25th April,2024. 34.That with respect to Richard Chumba, he found multiple cut wounds on the face and thorax region, cut on the neck, chin(lower part of the face), cut on behind the neck veins that take blood to the head, cervical spine, cut on the right shoulder involving the chest from right shoulder to the chest about 36cm, fracture of the clavicle and a cut on the upper side of the hand(dossal). 35.He concluded that the cause of death was bleeding secondary to multiple cut wounds to the neck and chest He produced the postmortem report P exhibit 3. 36.With respect to Patrick Komen, he testified that on examination of the body, there was evidence of bleeding from nose and mouth, big cut on the scalp 4cm in diameter, deep cut on his back about 25cm in length with damages to his scapular, mild depressed skull fracture on the head with no bleeding in the brain. 37.he concluded that the cause of death was excessive bleeding as a result of deep cut wounds to the back. He said that a sharp object was used to cause the injuries. He produced the postmortem report as P Exhibit 4. 38.PW 8 Lilian Beth testified that she resided at Kapsegon where the incident occurred. She said that she knew all the accused persons because they are her neighbours. She said that they were ploughing the land and the 1st accused’s family came and abused them while throwing stones. That they reported to the chief and the boundary was determined where they fixed posts but the accused persons removed the same. That their brother had been jailed for injuring her. 39.She said that after a week the 3rd and 4th accused persons came and the 3rd accused told her he wanted them to finalize the issues since he wanted his brother to be released. That saw the 1st accused with a panga, she got scared because she had been injured earlier. 40.She said that on the 15th April,2024 her husband and the deceased Richard Chumba informed her that they were going to the farm and she should remain at home to prepare food. That while preparing food her daughter Chepngetich came running from the farm where she then informed her that her father and Patrick had been killed. She said that she tried running towards the farm screaming but she was advised not to go there. She screamed and collapsed. She said that she did not go to the farm. 41.She said that Chepngetich informed her that it was the 1st 2nd 3rd and 4th accused and Kiprop who had cut them . That they are all from one family the 1st accused being the father of the 2nd and 3rd, the 4th accused is the 1st accused’s brother. She confirmed that the accused persons had been threatening to kill them and on the 15th April,2019 they actualized it by killing the deceased persons. 42.PW 9 Paul Korir stated that he was the Chief of Kisonei Location and that he knew the accused persons who he said were from his location. He also confirmed that he knew one of the deceased persons one Richard Chumba who lived at the border of his location. He confirmed that in the year 2023 he had dealt with land boundary dispute between the 1st accused and Richard Chumba (deceased) which they concluded but the 1st accused was not satisfied 43.That on the 16th April,2023 after he had been informed that the 1st accused had killed and he was looking for the 1st accused when a village elder Kimetto informed him that the 1st accused had been seen in a place called Sore. He did not find him. That he went up to Sirwo and saw the 1st accused who informed him that he was going to surrender to the police in Sirwo. That he accompanied him and he surrendered himself to the police. He stated that he did not witness the incident but he received the report that the 1st accused had killed the deceased persons. 44.He said that when he met the 1st accused, he had no weapon and later on he looked for the village elder of the area where they went to the 1st accused’s house and found a panga in his house under a bed which they took to Tenges police station. 45.PW 10 No.78351 PC Kipkorir Ngeno Michael stated that he was attached to Kasarani Sub-county but was previously attached to Baringo Central Sub-county where he was the investigating officer in this case. 46.He testified that on the 15th April,2024 he was in the office when the DCI0 received a call informing him that an incident of murder had occurred at Tenges. That he requested him to accompany him to Tenges police station where they found the OCS who informed them that the incident had occurred at Sorok. He said that they were given two police officers who joined them to the scene. 47.He said that the road was impassable and they were forced to abandon the vehicles on the way and they found an injured person in a probox vehicle. He said that they instructed that he be taken to hospital as they proceeded to the scene which was in a ploughed land with maize. That at the scene, they found hoes/jembes which they took photos and took the body to the mortuary. He said that they brought the body the vehicle with the help of members of the public and took it to Baringo County Referral Hospital. and while at the hospital, they inquired about the one who had been injured. They were informed that he was in the same hospital. He said that Patrick Komen died the following day while being taken to Eldoret Hospital for treatment. 48.That the 1st accused was arrested by the chief, while he arrested the 4th accused was arrested at Kampi ya moto.. That the 2nd and the 3rd accused were arrested by the chief. He said that he and I.P Sitati recorded witness statements. That the 1st accused said that he left the weapon he used in his house leading to the panga being recovered. 49.The evidence of PW 10 marked the close of the prosecution’s case. 50.The whole matter was heard by the Hon Ngetich J as she then was . The Judge also found that the accused persons had a case to answer and directed that they be put on the defence in accordance with Section 306(2) of the criminal procedure code. Accused’s Defence case 51.The accused persons upon being placed on their defence each chose to remain silent. Prosecution’s Submissions 52.For the Prosecution it is submitted that the evidence presented by the prosecution was cogent enough and had proved the case beyond any reasonable doubt against all the four accused. that indeed the four accused persons were connected to the murder of the deceased persons. 54.T 55.On whether the accused persons committed unlawful acts or omissions causing the two deaths, it is submitted that PW1, PW2, PW3 and PW4 were all present at the scene of the murder, and their evidence corroborated each other. That they all placed the accused persons who were well known to them at the scene of murder. That PW 1 narrated how the 1st accused came while armed with a panga in company of the other 3 accused persons who were also armed and confronted the deceased Patrick Komen. He was first hit with a stone thrown by 4th Accused and when he fell down the 1st accused cut him at the back and the other 3 accused joined him before they all turned to Richard Chumba cutting him on the neck, right shoulder, chin and knuckles. 56.They submit that PW2 was specific enough and stated that he saw 3rd and 4th accused persons pelting stones towards them and she saw the 4 accused persons attack her father by cutting him as he lay down on the ground. That Pw 3 stated that he witnessed the 4 accused persons first attack Richard Chumba and thereafter 2nd and 3rd accused persons ran after the deceased Patrick Komen who fell down and they caught up with him and started cutting him with pangas before they were joined by the 2 other accused persons. 57.On the issue of Malice aforethought, it is submitted that Section 206 of the Penal Code defines malice aforethought as an intention to cause the death of or to do grievous harm to a person. The prosecution relies on Republic vs Tubere S/0 Ochen (1975) 12 EACA 63 where the court held that an inference of malice aforethought can be established by considering 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. 58.There is also reliance on Ogeto vs Republic (2004) 2 KLR 14, in support of their case. 59.The court is urged to find that the prosecution has proved its case beyond reasonable doubt and to find all the four accused persons guilty of the charge of Murder and hand them the prescribed death sentence. Accused persons’ submissions 60.The accused persons submit that the prosecution has failed to prove its case beyond reasonable doubt. The defence submits, that the prosecution’s case is not merely weak, the evidence tendered is riddled with inconsistencies, evidentiary gaps, and fails to establish the essential ingredients of the offence of murder, therefore it is legally incapable of sustaining a conviction for murder. 61.They submit that the issues for Determination thus are:a.Whether the prosecution has proved the actus reus of the offence of murder against the accused persons;b.Whether the prosecution has established mens rea (malice aforethought);c.Whether the totality of the evidence meets the threshold of proof beyond reasonable doubt. 62.They submit that the onus is on the prosecution to prove their case and the burden never shifts and must be discharged beyond reasonable doubt as affirmed in, R v Ademi (Criminal Case E023 of 2023) [2026] KEHC 1358 (KLR) (12 February 2026)(Judgment), where the judge relied on Woolmington v DPP 1935 A C 462 and held that a criminal conviction requires that the prosecution proves the guilt of the accused beyond any reasonable doubt. .” 63.On whether actus reus has been proved, they submit that the prosecution failed to link the Accused to the murder weapon. They argue that the prosecution produced a single panga as Exhibit 2 alleged to be the murder weapon. However; the panga was merely blood-stained, there was no DNA analysis linking it to any of the deceased persons or the accused persons, there was no evidence of recovery from any specific accused and that there was no forensic chain connecting the weapon to the fatal injuries which renders the alleged weapon evidentially weak. 64.They submit that the prosecution failed to establish a nexus between the alleged murder weapon and any of the accused persons. 65.The prosecution submits that there was a “Single Weapon – Multiple Deaths” Gap, they invited the court to interrogate a fundamental evidentiary gap where it was alleged that two persons were allegedly killed, and only one panga produced when the four accused persons charged. 66.They submit that there is no clarity as to who wielded the weapon, who inflicted which fatal injuries and whether more than one assailant was involved which creates irreconcilable doubt in the prosecutions’ case. 67.They submit that the prosecution relies on eye witnesses PW1-PW5 whose evidence shows that they all fled the scene before the incident concluded, all did not witness the fatal injuries being inflicted and their testimony only establishes presence and confrontation, not the act of killing. 68.That both scenarios as told by the PW 1 -PW4 seem narrated to the conclusion of the aftermath of the confrontation, that all of them fled the scene and none points to the conclusion of the confrontation effectively. 69.They place reliance in the decision of the Court of Appeal in Wamunga v Republic (Criminal Appeal 20 of 1989) [1989] KECA 47 (KLR) (22 June 1989) (Judgment) where the court cautioned that evidence of visual identification must be examined with the greatest care. The question of who did what is what the defence is asking. 70.They further place reliance in Sawe v Republic (Criminal Appeal 2 of 2002) [2003] KECA 182 (KLR) (6 June 2003) (Judgment).] on circumstantial evidence 71.They submit that the prosecution relies on circumstantial evidence, it fails the test set out in, namely that the circumstances must be incompatible with innocence of the accused person, they must exclude any other reasonable hypothesis. 72.That there are , several alternative explanations remain being the involvement of unknown persons, chaotic confrontation where roles were unclear and lack of clarity on the cause and infliction of fatal injuries. 73.On whether mens rea has been proved, they submit that malice aforethought must be strictly proved under Section 206 of the Penal Code. That circumstances herein negate such intention simply because the incident arose from a pre-existing land dispute, the encounter appears spontaneous rather than premeditated and there is no evidence of prior planning, deliberate targeting and coordinated lethal conduct attributable to any specific accused. 74.They submit that Malice aforethought is not to be inferred lightly and it must be proved as it was held in Nzuki v Republic [1993] KECA 83 (KLR). 75.They submit that the prosecution has failed to demonstrate intention to kill or cause grievous harm attributable to each accused. That furthermore there is no proof of a prior meeting of minds, a shared plan to kill and coordinated execution of a criminal design. 76.That the mere presence at the scene does not amount to common intention. That the accused persons’ mere presence on disputed land cannot be elevated to a shared intention to commit murder. 77.On the irrelevance of collateral assault evidence, they submit that one witness testified that she was cut on the arm by one of the accused persons. The defence submits that this evidence, even if true, establishes a separate and distinct offence, does not prove participation in the killing of the deceased persons and lastly criminal liability must be determined individually, not collectively. The court must guard against prejudicial reasoning. 78.They submit that the prosecution’s case is characterized by lack of forensic linkage, absence of direct evidence of the killing, weak and incomplete eye witness testimony, failure to establish who inflicted the fatal injuries, absence of proof of malice aforethought and failure to establish common intention. 79.That the cumulative effect is overwhelming doubt and in conclusion, the prosecution has failed to discharge its burden of proof. That it has not established, who caused the death of the deceased persons, that the accused persons acted with malice aforethought and that there was any common intention among the accused. That what remains is speculation and suspicion. 80.That in line with the principles set out in Woolmington v DPP, the accused persons are entitled to the benefit of doubt. The accused persons humbly pray that this Honourable Court finds that the prosecution has failed to prove the charge of murder beyond reasonable doubt and Acquits the accused persons. ANALYSIS AND DETERMINATION 81.The accused persons are jointly charged with two counts of the offence of murder. Section 203 defines the offence of murder and requires proof of the following elements beyond reasonable doubt, to establish the offence of murder: proof of death, the cause of that death, proof that the death was due to an unlawful act or omission, that the unlawful act or omission was on the part of the suspect and that the unlawful killing was with malice aforethought. 82.Section 203 of the Penal Code under which the Accused persons were changed reads as follows:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder." 83.From this section the prosecution is obligated to prove the following elements:a.The death of the deceased.b.That the death of the deceased was unlawful.c.That in the causing death of the deceased the Accused had malice aforethought.d.That it was the Accused who killed the deceased. 84.This is what was determined Anthony Ndegwa Ngari vs Republic [2014] eKLR, in which the elements of the offence of murder were listed as follows:i.The death of the deceased occurred;ii.That the Accused committed the unlawful act which caused the death of the deceased; andiii.That the Accused had malice aforethought. 85.Similarly, in the case of Republic Versus Andrew Omwenga (2009) eKLR the court held that:“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". 86.Accordingly, this being a murder charge the prosecution must prove mens rea and actus reus. 87.It is trite law that the burden of proof in criminal cases rests on the prosecution. The Accused has no burden to prove his innocence. In of Joseph Kimani Njau V Republic [2014] eKLR the Court of Appeal stated:“In all criminal trials, both the actus reus and the mens rea are required for the offence charged; they must be proved by the prosecution beyond reasonable doubt. The trial court is under a duty to ensure that before any conviction is entered, both the actus reus and mens rea have been proved to the required standard. In the instant case, the trial court erred in failing to evaluate the evidence on record and to determine if the specific mens rea required for murder had been proved by the prosecution " 88.On proof of death , the death of each of the deceased persons is not in doubt. All the prosecution witnesses testified that the deceased Richard Chumba died on the spot while Patrick Komen died while being taken for treatment. The postmortem report of each deceased person was produced as exhibits 3 and 4 by Doctor Pius Amdany Barmokong.; 89.On whether the Accused persons committed the unlawful act which caused the death of the deceased PW1, PW2, PW3 and PW4 were all present at the scene of the murder. Their testimony placed each of the accused persons at the scene. The incident happened during the day. These people were neighbours. They hand an ongoing land dispute .. 90.The fatal attack was preceded by threats and attacks to different family members of the family of the deceased by members of the family of the accused persons. That is on record and it was not disputed. Those incidents cannot be separated from this attack because they were all about the land. 91.On 15t April 2024 it began with threats with the accused persons telling the deceased and their family members to leave the shamba. 92.Then followed stone throwing. The stone thrown by 4th Accused hit Patrick Komen who fell down . PW2 was stated that 3rd and 4th accused persons pelted them with stones. 93.The 1st accused armed with a panga attacked Patrick while he was down and was joined by the other accused persons who were also armed. 94.When Richard Chumba went to ask why they were cutting his brother they also cut him on the neck, right shoulder, chin and knuckles. 95.. Pw 3 saw the four accused persons attack Richard Chumba. he also saw the 2nd and 3rd accused persons ran after Patrick Komen cut him with pangas before they were joined by the 2 other accused persons 96.That from the foregoing it is therefore not in dispute that the accused persons first attacked the deceased persons by throwing stones. They then used pangas to cut the deceased inflicting serious injuries which caused their deaths . 97.The injuries as established by the postmortem reports. 98.it is argued by the defence that there is the single weapon multiple accused and victims. The evidence on record is that both sides were working on the shamba . There were pangas and jembes which are tools of work. The accused persons were slashing , the deceased and their team were planting. So, the weapons used were those for tools the accused persons were working with. It is noteworthy none of the side of the accused sustained any injuries yet even the deceased had their tools. That goes to show that the attack was in the mind of the accused persons. 99.On the argument that the witnesses did not see the end of the outcome of the attack, and therefore cannot say with certainty that the accused persons killed the deceased persons. 100.it was established that the accused persons had already inflicted the injuries as at the time the witnesses were running away . The deceased persons were being cut as they were running away. There was no other intervention between the accused persons attacking and cutting the deceased persons to create the doubt that there was any break in the circumstantial evidence that the injuries inflicted by the accused persons led to the deaths. 101.It is true that the prosecution did not get the recovered panga to forensic examination for DNA examination to connect it to the murder. That was a failure on the part of the I.O and the DPP for not demanding the same. However, the evidence by those who witnessed the incident is that the deceased persons were attacked with pangas, the postmortem spoke of sharp object causing the Cut wounds. There is evidence on how the panga was recovered and the 1st accused did not challenge that evidence. 103.Hence even without the forensic evidence on the weapon there is eye witness evidence , and corroboration by the postmortem report. 104.On issue of identification the case of Wamunga is distinguishable because in this case the incident happened in day time. The attackers were not strangers . 105.On the question of whether the accused had malice aforethought, section 206 of the Penal Code defines the circumstances that constitute malice aforethought as;“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)…;(d)….” 106.In R vs Tubere S/O Ochen (1945) 12 EACA 63 the Court set out the prerequisites for establishing malice aforethought thus;“To determine whether malice aforethought has been established to consider the weapon used, the manner in which it is used, the part of the body targeted, the nature of injuries inflicted, the conduct of the accused before, during and after the incident”. 107.And Nzuki vs Republic [1993] KLR 171 the court of Appeal specified the basis upon which malice aforethought is established when it stated thus;“a)Intention to cause death;b)Intention to cause grievous bodily harm;c)Where accused knows that there is a risk that death or grievous bodily harm will ensue from his acts and commits them without lawful excuse. It doesn’t matter whether the accused desires those to ensue or not. The mere fact that the accused conduct is one in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into a crime of murder.” 108.No doubt malice aforethought has been established in the present case. The kind of force used and the weapons used against the deceased persons namely pangas was a clear indication that the accused persons were determined to cause serious injuries that could cause death. 109.The evidence on record is that the family of the deceased persons and that of the accused were in constant dispute over a land boundary hence the cause of the killings. There was bad blood between the deceased persons family and that of the accused. The evidence establishes that the circumstances leading to the death of the deceased persons and the nature of the injuries inflicted by the accused, conclusively established malice afore thought. 110.I therefore find that the prosecution proved malice aforethought within the meaning of section 206 of the Penal Code, beyond reasonable doubt.The Penal Code provides for the various participants in the commission of an offence. At s. 20. Principal offenders(1)When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—(a)every person who actually does the act or makes the omission which constitutes the offence;(b)every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;(c)every person who aids or abets another person in committing the offence; 111.Having considered the totality of the evidence on record, I find that the prosecution established that the two deceased persons died following injuries that were inflicted by the accused persons, through their various acts /and or omissions. The weapons used, and the kind of injuries inflicted establish malice aforethought. And it is my finding that each count has been proved beyond a reasonable doubt. 112.I find each accused guilty as charged. 113.The 1st, 3rd and 4th accused persons each is convicted accordingly. 114.Since the 2nd accused was found to below the age of 18 years at the time of the offence and pursuant to Children Act s. 221. which statesCriminal liability of a child(1)A person under the age of twelve years shall not be criminally responsible for any act or omission.(2)A child who commits an offence while under the age of fourteen years shall be presumed not to be capable of differentiating between right and wrong, unless the Court is satisfied on evidence to the contrary.(3)The provisions of this Part shall apply to a person who reaches the age of eighteen years before proceedings instituted against them pursuant to the provisions of this Act have been concluded. 115.and section 237 which states Words "conviction" and "sentence" not to be used of child(1)The words "conviction" and "sentence" shall not be used in relation to a child being dealt with by the Children’s Court. 114.Section 91 clarifies this further stating(7)Where any conviction or sentence made or passed by a Court other than a Children's Court is appealed against, or is brought before the High Court for confirmation or revision, and it appears that the person convicted was at the time of commission of the offence under the age of eighteen years, the High Court shall have power to substitute for the conviction a finding of guilt in accordance with section 221. 115.In the circumstances with regard to the 2nd accused subject I make a finding of guilt for the offence of murder c/s 203 s read with s. 204 of the Penal Code.Orders Accordingly. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT KABARNET HIGH COURT THIS 10TH JULY 2026MUMBUA T MATHEKAJUDGEPresent virtuallyCA MomanyiAccused 1Accused Subject 2Accused 3Accused 4Ms. Kogo for accused in open courtMr. Koech for stated in open court