https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8526

Republic v Chitavi & another (Criminal Case E022 of 2024) [2026] KEHC 8526 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 8526 (KLR) Republic of Kenya In the High Court at Mombasa Criminal Case E022 of 2024 WM Kagendo., J May 15, 2026 Between The Republic Republic and Wilson Patani Chitavi Accused and Rosemary Interested Party Judgment 1. The Offence 1.The accused person, Wilson Patani Chitavi, was charged with the offence of murder contrary to section 203 as read together with section 204 of the Penal Code. The particulars of the charge are that on 30th August 2024 at Kolewa Village, Junju Location, Kilifi South Sub-County within Kilifi County, he murdered one Mwaka Chitavi Mwachizi. 2.Upon arraignment, the accused pleaded not guilty, thereby placing upon the prosecution the burden of proving all the essential ingredients of the offence of murder beyond reasonable doubt. 3.In support of its case, the prosecution, led by learned counsel Mr. Ngiri, called seven (7) witnesses who were cross-examined by learned counsel Mr. Wairagu for the accused. The evidence adduced is summarised as follows. 2. Prosecution Evidence 4.PW1, Lucky Patani, testified that the accused is his father and that they lived together with the deceased, his grandmother. He stated that on 30th August 2024, upon returning home from school, he opened the door and found the deceased lying on the floor of the house in an injured state. 5.PW1 testified that upon calling out to the deceased, she responded and stated that it was the accused person who had assaulted her. He further stated that he immediately sought assistance from a neighbour known as Mariam and together with others they arranged for the deceased to be taken to hospital. 6.PW1 also testified that he had seen the accused at home on the night of 29th August 2024 but did not see him on the material day. He further stated that there had been prior disagreements between the accused and the deceased relating to coconut leaves used by the deceased for weaving brooms. 7.PW2, Thomas Shehele Kiti, testified that the accused is his cousin and the deceased was his aunt. He stated that on 30th August 2024 he received information that the deceased had fallen and died, prompting him to proceed to the scene. 8.Upon arrival, PW2 observed the deceased lying face down with visible injuries including a stab wound near the rib cage and injuries to the head. He also stated that police later arrived and the body was taken to Kijipwa Mortuary. 9.PW2 further testified that PW1 informed him that the deceased had stated that it was the accused who had inflicted the injuries upon her. He also attended the postmortem examination where multiple injuries including deep cut wounds and fractures were confirmed. 10.PW3, Jackson Kiti Chigil, testified that the deceased was his grandmother. He stated that upon receiving information of her death, he proceeded to the home and found the body lying on the ground with visible injuries including fractures and sharp force trauma to the ribs. 11.PW4, Mwachizi Madani Machizi, testified that the accused is his brother and the deceased was their mother. He stated that upon being informed of the incident, he proceeded to the scene and found the deceased with multiple injuries including head cuts, abdominal stab wounds and a fractured hand. 12.PW5, Police Constable John Nyagah, produced photographic exhibits and accompanying certification documents confirming the documentation of the scene of crime. He clarified that he was not the Investigating Officer but merely the custodian of the exhibits. 13.PW6, Dr. Ruth Nyagi, testified that she conducted a postmortem examination on the deceased. She formed the opinion that the cause of death was penetrating chest injury due to sharp force trauma and produced the postmortem report in evidence. 14.PW7, Police Constable George Mutikowe Nangowe, testified that he was the Investigating Officer. He stated that upon receiving instructions, he proceeded to the scene where he found the deceased already dead with visible blood stains. He commenced investigations which led to the arrest and charging of the accused person. 3. Defence Case 15.At the close of the prosecution case, the accused was placed on his defence in accordance with sections 306 and 307 of the Criminal Procedure Code. 16.The accused gave sworn testimony in which he denied committing the offence. He stated that he had relocated to live with the deceased in Kolewa and that on the material day he was at work when he was informed of her death. 17.He further testified that he left home at about 9:30 am and that the deceased was alive and well at that time. He denied any hostility with the deceased and stated that they had a close relationship. 18.On cross-examination, the accused maintained that he was not present at the time of death and suggested that other individuals who were in the homestead could have been responsible 4. Issues for Determination 19.The court is called upon to determine whether the prosecution has proved beyond reasonable doubt the following elements: the death of the deceased and its cause, whether the accused unlawfully caused the death, and whether malice aforethought can be inferred. 5. Analysis and Determination a. Proof of death and cause of death 20.The fact of death is not in dispute. PW6, the Pathologist, confirmed that the deceased died as a result of penetrating chest injury due to sharp force trauma. This medical evidence is consistent with the observations of PW1, PW2, PW3 and PW4 who all described multiple serious injuries on the body of the deceased. 21.The court therefore finds that the prosecution has proved beyond reasonable doubt both the fact and cause of death. b. Whether the accused caused the death 22.The critical issue is whether the prosecution has established that it was the accused who caused the fatal injuries. None of the witnesses directly saw the accused inflict the injuries. The case therefore largely rests on circumstantial evidence together with a dying declaration. 23.PW1 testified that shortly after finding the deceased injured, she stated that it was the accused who had assaulted her. This statement constitutes a dying declaration admissible under section 33(a) of the Evidence Act. 24.The Court of Appeal in Choge v Republic and Philip Nzaka Watu v Republic has held that dying declarations are admissible but must be treated with caution, as they are not subjected to cross-examination. However, corroboration, while desirable, is not a strict legal requirement. 25.In the present case, the dying declaration is not standing alone. It is supported by circumstantial evidence showing prior hostility between the accused and the deceased. Evidence was led that the accused and deceased had disagreed over coconut leaves, that the deceased relocated from Bale to Kolewa, and that the accused later followed her to the same locality. 26.The court further notes that the accused was residing within the same homestead and had opportunity to access the deceased shortly before the incident. The injuries inflicted were severe, repeated, and consistent with a deliberate assault rather than an accident. 27.The law on circumstantial evidence is well settled in R v Kipkering arap Koske & Another and Sawe v Republic, where it was held that inculpatory facts must be incompatible with innocence and incapable of explanation upon any other reasonable hypothesis than guilt. 28.In this case, the chain of circumstantial evidence, when considered together with the dying declaration and established animosity, forms a complete and unbroken chain pointing irresistibly to the accused. There exists no reasonable alternative explanation. 29.The defence of alibi raised by the accused is not supported by credible evidence capable of displacing the strong circumstantial case presented by the prosecution. 30.The court therefore finds that the prosecution has proved beyond reasonable doubt that the accused caused the death of the deceased. c. Malice aforethought 31.Malice aforethought may be inferred from the nature of injuries and conduct of the accused under section 206 of the Penal Code. 32.The deceased suffered multiple deep injuries, including penetrating chest wounds, head injuries, abdominal stab wounds, and fractures. The severity and multiplicity of these injuries demonstrate an intention to cause death or grievous harm. 33.The prior hostility between the accused and the deceased further strengthens the inference of malice aforethought. His evidence that they were close with the mother was discounted by his own son (PW1) and his brothers, especially PW4, who narrated how he relocated the mother from Bale to Kolewa because of the disputes between the accused person and their now deceased mother, and how the accused person followed her to Kolewa. He continued to harass and threaten her, and shortly thereafter, she was dead. The court is satisfied that the injuries were not accidental but inflicted with unlawful intent. 6. Findings 34.The court finds that the prosecution has proved all the essential ingredients of murder beyond reasonable doubt. The dying declaration is admissible and credible in the circumstances of this case, and the circumstantial evidence forms a complete chain pointing to the accused. 35.The accused person, Wilson Patani Chitavi, is hereby found guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and is convicted accordingly under section 322 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY, 2026.WENDY KAGENDOJUDGEIn the presence of:Accused person.Mr. Waigwa for the accused - absent.Mr. Sirima for the State.Bebora - Court Assistant.SIGNED BY/FOR:HON. LADY JUSTICE WENDY MICHENI