https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8943

Republic v Gukaa & another (Criminal Case E017 of 2023) [2026] KEHC 8943 (KLR) (23 June 2026) (Judgment) Neutral citation: [2026] KEHC 8943 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Case E017 of 2023 JN Kamau, J June 23, 2026 Between Republic Prosecutor and Alex Luvisha Alias Gukaa 1st Accused Dancan Lulamba 2nd Accused Judgment 1.The Accused persons herein were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 (Laws of Kenya). The particulars of the Charge were that:-“On the night of 22nd October 2023 at Musunji village, Shiru Sub-Location, Shaviringa Location in Hamisi Sub-County within Vihiga County, jointly murdered Clinton Mugasia” 2.The Prosecution’s case was heard on diverse dates between 30th January 2025 and 28th February 2025 when it closed its case. On 17th July 2025, this court found that the Prosecution had established a prima facie case against the Accused persons and thereby put them on their defence. The defence cases were heard on 20th November 2025. 3.The Prosecution’s Written Submissions were dated 19th February 2026 and filed on 24th February 2026 while those of the Accused persons were dated 3rd March 2026 and filed on 4th March 2026. The Judgment herein is based on the said Written Submissions which the parties relied upon in their entirety. Legal Analysis 4.The issues that were put before this court for consideration were as follows:-a.Whether or not Clinton Mugasia (hereinafter referred to as the “deceased”) died?b.If so, was his death caused by an unlawful action(s) and/or omissions?c.If so, who caused the unlawful action(s) and/or omissions?d.Was there malice aforethought in the causation of the deceased’s death? 5.This court, therefore, found it prudent to deal with the said issues under the following distinct and separate headings. I. Proof Of Death Of The Deceased 6.The Accused persons and the Prosecution submitted that there was no dispute as to whether the deceased died. 7.As both the Prosecution and Defence witnesses alluded to the deceased’s death, it was not necessary to seek further proof. This court found and held that the deceased’s death was proved without an iota of doubt. II. Proof Of Cause Of The Deceased’s Death 8.The Accused persons submitted that Dr Masika Collins Were (hereinafter referred to as “PW 5”) stated on cross-examination that he could not tell whether the injuries sustained by the deceased was as a result of an assault. They argued that based on that, it could not be concluded that the deceased did not die from natural causes. 9.On its part, the Prosecution submitted that the post-mortem confirmed that the deceased died due to lung collapse and excessive haemorrhage secondary to penetrating injury to the chest which indicated that the deceased did not die from natural causes. 10.The cause of the deceased’s death was a pertinent issue. PW 5 tendered a Post-mortem Report dated 24th October 2023 in respect of the deceased herein as an exhibit in this matter. After conducting the post-mortem examination, he formed an opinion that the cause of the deceased’s death was collapsed lung due to excess haemorrhage secondary to penetrating wound to the chest. 11.The Accused persons argument that PW 5 could not tell whether the injuries were as a result of assault was incorrect. What he stated during cross-examination was that he could not tell whether the injury was intentional or not as that could only be determined by the DCI. 12.It was therefore clear from PW 5’s evidence that the deceased’s death was not as a result of natural causes. It was, therefore, crucial to establish how the deceased sustained the injuries that caused his death. III. Identification Of Perpetrator Of Deceased’s Death 13.The Accused persons denied having murdered the deceased. They submitted that the Prosecution submitted that the deceased had shared what he had encountered on the night of the 21st October 2023 to Douglas Ayodi (hereinafter referred to as “PW 3”), and Bravin Masika (hereinafter referred to as “PW 7”) yet none of them were with the deceased on the said night to confirm that indeed what he had told them was true. They asserted that the deceased had also not reported the incident of the 21st October 2023 to any police station, a fact that the Investigating Officer CPL Nicholas Warui (hereinafter referred to as “PW 9”) and consequently, this court could not tell whether anything happened between them and the deceased on the said night leading to the offence being committed on 22nd October 2023. 14.They further submitted that there was no evidence that the deceased had taken the knife that was produced in court from the 2nd Accused since the said knife was recovered in the deceased’s house. They stated that there was also contradicting evidence as to how the knife was recovered since the Investigating Officer told the court that they recovered it from deceased’s house whereas PW 3 and PW 7 testified that they were the one who took it to police station. They submitted that the purported narration to PW 3 and PW 7 by the deceased could not be guaranteed. 15.They further contended that the testimony of Celestine Mmaitsi (hereinafter referred to as “PW 2”) was contradicted by PW 3 who stated that there was nobody at the scene at the time they allegedly attacked the deceased and that PW 2 also confirmed having not seen the 2nd Accused person at the scene. They also pointed out that PW 1 also stated that he only saw the 1st Accused person but did not see the 2nd Accused person. 16.They averred that PW 7 also stated that he did not see the 2nd Accused person and when he was asked where he got the knife, he stated that he had collected it, which confirmed that neither of them was found with the knife. They asserted that although John Shemeni (hereinafter referred to as “PW 8”) testified that he chased the 2nd Accused person, he did not witness what had happened. They added that he told this Honourable Court that the 1st Accused person fell down and hit his forehead on the stone and suffered injuries and, hence the injuries were not because he was beaten by members of the public as some witnesses had alleged. 17.On its part, the Prosecution submitted that on 21st October 2023, the deceased shared with PW 3 and PW 7 on what happened on the said date and showed them the bite marks. It averred that on 22nd October 2023, the Accused persons stabbed the deceased killing him. 18.The 1st Accused person testified that on the material day of 22nd October 2023 at about 5.00pm, he was at his home sleeping. At about 8.00pm, he left for supper at the house of his uncle, Arlington Mmbono at Musunji but that on his way, he was attacked by a crowd of people who beat him until he lost consciousness. He stated that when he gained consciousness, he found himself at Cheptulu Police Station and he informed them of the said beating whereupon they took him to hospital. He stated that the police then informed him that he was being suspected of murder, but they never informed him who had died. 19.He further testified that he used to see the 2nd Accused person at Musunji but denied ever meeting him, the deceased, PW 2 or PW 3 on 22nd October 2023 because he slept the whole day as he was not feeling well. He stated that he last saw the deceased in September 2023 when he was going to school. He stated that there was no bad blood between him and the deceased since the deceased was a student while he was running his small business, hence there was no motive for him to have attacked him. 20.He further stated that on the Friday after his arrest, he was removed from his cell by DCI officers who handcuffed him and tied his legs with a rope and beat him forcing him to confess. He added that that morning, he was taken to Jumuiya Kaimosi mortuary and two (2) DCI officers alighted from the police vehicle and that when they came back, they had an envelope. He asserted that told him that if he did not agree with them, he was going to die the same way the deceased did. He stated that he was forced to carry the knife that was in the envelope and that is why the report that was submitted was as a result of him being forced to carry the knife. 21.On cross examination, he denied knowing PW 7 and maintained that he was a passer-by when he was attacked. He stated that he was forced to carry the knife with both his hands so that he could be taken to Government Chemist. 22.The 2nd Accused person testified that on the material day of 22nd October 2023 at about 6.00 pm, he left his house and went to the Centre where he bought Sukuma and also went to a barber to cut his hair. His evidence was that at about 7.00 pm while on his way home, he was attacked by people he did not know, but that he managed to flee and went to his house. He said that he heard noise outside his house and ran to the forest from where he saw the people burn his house and that of his parents. He stated that he stayed in the forest until 23rd October 2025 (sic) when he went to report at police station, but he was placed in the cell. 23.He stated that he never met the 1st Accused person on 22nd October 2023 although he used to see him. He further stated that they were in the same school and, hence there was no bad relationship between them. He denied knowing PW 2 and PW 3 and he stated that he saw them for the first time in court. He further testified on cross-examination that he did not have any association with the deceased and he did not know what caused his death. 24.On his part, Dominic Mukavi (hereinafter referred to as “PW 1”) who was the deceased’s father testified that he knew the 2nd Accused person who was a son, though not a biological son, and the 1st Accused person who was the 2nd Accused person’s friend. His testimony was that on the material day of 22nd October 2023 at about 7.00 pm, he heard noises and when he went outside the gate, he found a crowd of people who had forced the 1st Accused person, who was bleeding, to lie down. He said that he pleaded with them not to kill him at his gate. 25.He averred that a person informed him that the deceased was dead and he took him to see him. He stated that since the deceased was breathing, he took him to Tumaini hospital where he was pronounced dead. He said that he went to report at police station. He stated that when his wife went to the police station with the knife that killed the deceased, he told her that the deceased had died. He contended that she threw the knife at police station and the same was found in the police station in the morning. 26.PW 2 stated that she knew the Accused persons. She said that on the material day of 22nd October 2023 at about 7.00 pm, as she was going to the shop, she saw the deceased and PW 7 ahead of her. She said that they were standing outside a shop and since there was bulb, she could see them well. 27.She contended that before she could reach them, the Accused persons approached the deceased from behind and started punching him. She said that they struggled up to deceased neighbour’s fence where they pinned the deceased to the ground. Her evidence was that PW 7 chased the 2nd Accused person while the 1st Accused removed a knife from his trouser and stabbed the deceased on the left side of the chest. 28.She said that she ran to the deceased’s home screaming that the 1st Accused person had killed the deceased and people emerged. She stated that after the 1st Accused person stabbed the deceased, he ran away but fell on the knife cutting him on the face. She averred that people thought that he was the one who had died since he fainted after he fell. She said that she took PW 1 to where she had left the deceased with her friend Jackline Lipesa. She identified the knife. 29.She further stated on cross-examination that the 2nd Accused person was not there when the 1st Accused person stabbed the deceased because PW 7 had chased him away. She pointed out that the light from the bulb had reached the fence where the scuffle was. 30.PW 3 stated that the deceased was his cousin. He said that he also knew the Accused persons who were his friends. He testified that on the material day at around 6.30 pm, he met with deceased and PW 7 and they went to deceased’s house where he told them that on 21st October 2023, he had gone to see a girl who used to stay near the 2nd Accused person’s house. He stated that as the deceased was talking to the girl, the 2nd Accused person emerged and the girl ran away. He said that the 2nd Accused started fighting with the deceased and he bit the deceased on the left side of the chest. He said that the 1st Accused person had a black knife which the deceased snatched from him and the fight stopped. 31.He contended that about 8. 00 pm, he met with the two (2) Accused persons and as they talked, the 2nd Accused person informed him that he fought with deceased and he bit him. He also told him that he was waiting for deceased to react and if he reacted, the situation would be very bad. The 1st Accused person also said that there was no way someone could beat the 2nd Accused if he was there. They left and went towards the direction of the Centre. He said that he could see PW 7 and deceased who were behind him near a shop where there was a light bulb that was illuminating the area. 32.His further testimony was that the Accused persons left to go towards the Centre, but they did not take long. He said that when they passed him, he heard someone say "He has a knife, he has a knife, he has stabbed him". He stated that he ran to where the deceased and PW 7 were and found that the deceased had fallen in a trench and had lost consciousness. He said that he ran to deceased’s home and found that PW 2 had already informed his parents of the incident. His further testimony was that he helped the deceased’s father take the deceased to the hospital and then informed the police about the knife which he went and got from the deceased’s house. He explained that PW 2 gave him the knife which he took to the Police Station. He identified the said knife in the court. 33.When he was cross-examined, he stated that the 1st Accused person attacked the deceased first although he was not sure how he attacked him. He said that the 1st Accused person removed a knife and stabbed the deceased, but they did not do anything to him before stabbing him. He stated that it would be a lie if someone said that the Accused persons punched the deceased before stabbing. 34.He further stated that he did not see anyone else at the scene save for PW 7, the deceased and the Accused persons but that he heard someone say "Guka has a knife. He has stabbed him." He further stated that the 1st Accused person was lying on the ground bleeding on the face. He said that he did not find the 2nd Accused person at the scene after he went to inform the deceased’s parents. He confirmed that he saw PW 2 at the scene when they were taking the deceased to hospital but he did not see her before the incident. 35.Catherine Liani (hereinafter referred to as “PW 4”) was the deceased’s mother. She told the court that she knew the 1st and 2nd Accused persons. She stated that on the material day at about 7.30 pm, she heard PW 2 calling her and screaming that the 1st Accused person had stabbed the deceased. She said that she found the deceased lying down while the 1st Accused person was also lying down bleeding from the face. 36.She added that PW 1 took the deceased to the hospital and that they retrieved knife the 1st Accused person had used to stab the deceased from the home of PW 8 who had taken it from the scene. 37.She told this court that when she got to the Police Station, the deceased’s father informed her that the deceased had died. She said that she threw the knife away but police told her that they recovered it where she had thrown it. She also identified two (2)knives, which included the knife that she had recovered from the deceased’s house. She stated that she heard that the 2nd Accused person had wanted to stab the deceased with the said knife but the deceased overpowered him and grabbed the knife. 38.On cross- examination, she stated that when she got to the scene, she saw PW 8 take away the knife the 1st Accused person had at the material time and take it to his house. She confirmed that she never saw the 2nd Accused person at the scene. 39.Salvine Cheruto Katukoi (hereinafter referred to as “PW 6”) was a Government Chemist. She informed the court that she received a knife with a green handle marked as “A”, finger nail clippings of the deceased in a white plastic container marked "B" and three (3) buccal swabs of the 1st Accused in a container marked "C " from one Corporal Wamae on 1st November 2023. 40.She observed that the knife marked "A" had moderate staining with blood of human origin and the outcome of her analysis was that the DNA profile generated from the blood stains in item marked "A" matched the DNA profile generated from the finger nail clippings of the deceased, the DNA profile generated from the blood stains in the knife marked "A" matched the DNA profile generated from the buccal swabs obtained from the 1st Accused person. Her further testimony was that the DNA profile generated from that of the deceased was at a percentage of seventy (70%). 41.She further told the court that the DNA profile generated from the handle of the knife matched the DNA profile of the 1st Accused person. She produced her report as an exhibit in this case. 42.She maintained on cross-examination that the DNA profile of 1st Accused person matched the DNA profile generated from the handle of the knife. She stated that the probability of the DNA profile belonging to the 1st Accused person was above seventy (70%) per cent. 43.PW 7 testified that he was with the deceased on the material day of 22nd October 2023 where they had gone to watch a football match at Gidereri Primary school. He stated that after they left the match, PW 3 joined them at the deceased’s house, but he later left. He said that at about 6.00 pm, while in a shop they had gone to, he saw the Accused persons approaching. 44.His evidence was that the 1st Accused person held the deceased, they had a scuffle and fell down after the deceased overpowered him. He further stated that when the deceased fell down, the 1st Accused person stabbed him with a knife. He said that the 2nd Accused person approached him with a slasher and he picked a stone then he ran away. He further stated that the 1st Accused person chased him to the shop as people thronged there to see what was going on. He said that the 1st Accused person tried to run away, but he fell down and people started beating him. 45.He testified that he went to where the deceased was lying down and saw that he was not well. He contended that the deceased had also told him that the 2nd Accused person bit him and he grabbed the knife from the 2nd Accused person. He said that PW 2 went to call his mother while he took a motor bike and went to Cheptulu Police Station. 46.He identified the two (2) knives and told the court that the deceased had the knife he had showed him the previous night while at his house. He stated that he did not know where the knife was recovered after deceased’s death and asserted that PW 3 knew where the knife was. 47.His further testimony on cross- examination was that no one else was present at the time of the incident. He maintained that the 2nd Accused person chased him with a slasher before the 1st Accused person stabbed the deceased. He also confirmed that the deceased and the 1st Accused person were fighting. He added that when he got back to where the deceased was lying, the 1st Accused person started chasing him. He reiterated that he found the deceased and the 1st Accused person struggling whereupon the 1st Accused person chased him, but started running away when he saw people coming. He further stated that the 2nd Accused person did not do anything to the deceased. 48.PW 8 stated that he came to know the 1st and 2nd Accused persons after the incident. His evidence was that on the material day at around 8.15 pm, he took his D light lamp and went outside after he heard screams. He contended that he saw two (2) groups of people, with one (1) group appearing like it was fighting. He said that when he looked closer, he saw a knife on the ground and since someone was coming for the knife, he stepped on it. He said that he took the knife and threw it in a nearby bush. He averred that when PW 4 asked him for the knife, he removed it from the bush and gave it to her and she went with it to the Police Station. The knife had a rubber band in the handle and he identified the knife. 49.When he was cross-examined, he confirmed that he did not see bot the 1st and 2nd Accused persons at the scene. He maintained that he picked the knife from the ground and he did not take it from anyone's hands. He also stated that it was dark and that if someone did something to another, one could not see. He was emphatic that he did not take the knife to his house. 50.No 74848 Sgt Nicholas Warui (hereinafter referred to as “PW 9”) was the Investigating Officer. He informed the court that he was notified of the incident and that he learnt that the deceased had died and that one (1) suspect who had been subjected to mob justice was in the Police Station. He said that he was also given a knife which he was told was dropped by PW 4 at the Police Station and it was retrieved outside the Police Station. He stated that they also went to Tumaini hospital where they observed the deceased’s body had a wound on the left side of the chest, which injury, had been caused by a sharp weapon. He also stated that there were teeth marks above the stab wound. 51.His testimony corroborated that of PW 2, PW 3, PW 4, PW 6, PW 7 and PW 8. He also told the court that on 23rd October 2023, he got information from the In charge of Cheptulu Police Station that the 2nd Accused person had surrendered himself and was in the cell at the said Station. He stated that he established from PW 3 that the 2nd Accused person had attacked the deceased the previous day because the deceased had tried to snatch the 2nd Accused person’s girlfriend. 52.He further testified that both 1st and 2nd Accused persons had a common intention to kill the deceased. He pointed out that the 2nd Accused person wanted to kill him first on 21st October 2023, but that when he did not manage to do so, he sought the assistance of the 1st Accused person. He stated that he established that they planned the attack and the 1st and 2nd Accused person armed themselves with a knife and slasher respectively and that they actually attacked the deceased. 53.He said that he established that the 1st Accused person was the one who stabbed the deceased. He produced the knife with a black handle that was recovered from the deceased’s house and the knife with a green handle that the 1st Accused person used to stab the deceased , the Exhibit Memo and photos taken at the scene, as exhibits. 54.On being cross-examined, he confirmed that there was a shop near the scene. He further stated that no report was made at the Police Station showing that the 2nd Accused person attacked the deceased with a knife on 21st October 2023. 55.This court noted the Accused persons defence of alibi in which they completely denied killing the deceased or even seeing him on the material day. In ascertaining whether the Accused persons’ defence of alibi had value, this court had due regard to the definition of “alibi” in the Black’s Law Dictionary, 10th Edition. It was defined as:-“A defence based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time”. 56.It was also trite law that once a respondent raised an alibi defence, the onus shifted to the Prosecution to displace the same as was held by the Court of Appeal in the case of Victor Mwendwa Mulinge vs Republic [2014] eKLR. 57.In this case, the defence of alibi was raised at the defence hearing and not at the beginning of the trial. The Prosecution did not rebut the same despite having the option of doing so as provided in Section 309 of the Criminal Procedure Code Cap 75 (Laws of Kenya) that provides that:-“If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it.” 58.Be that as it may, after carefully analysing the evidence that was adduced by the Prosecution witnesses, it was evident that PW 2 saw the 1st Accused person stab the deceased on the material date. She was also able to see PW 7 and the 2nd Accused person chasing each other. She also saw the 1st Accused person fall as he tried to run away and injured himself on the face with the said knife. PW 7 also confirmed the scuffle that ensued between the 1st Accused person and the deceased how the 2nd Accused person chased him with a slasher. PW 3 also confirmed that the Accused persons were at the scene. 59.It was evident that PW 8 recovered the murder knife the 1st Accused person used to stab the deceased from the scene which was later taken to Police Station by PW 4. In addition, upon analysis, the samples that were taken from the 1st Accused person matched the blood on the knife, which blood belonged to the deceased. This corroborated PW 2’s evidence that the 1st Accused person fell on the said knife and hurt himself. 60.Other witnesses confirmed that the 1st Accused person was at the scene and they took him to Police Station. PW 9 said that the 2nd Accused person surrendered himself at police station. 61.This court was thus persuaded to find and hold that the 1st and 2nd Accused persons were positively identified by the Prosecution’s witnesses as aforesaid. They were placed at the scene of crime and they were well known hence this could not have been a case of mistaken identity. The 1st Accused persons did not demonstrate that there was any motive for PW 2 to have framed him as the person who stabbed the deceased on that material date. 62.Consequently, it was this court’s finding that the Accused persons’ defences were a mere denial and did not displace and/or dislodge the consistent and cogent evidence that was adduced by the Prosecution’s witnesses. 63.As PW 9 testified, both the 1st and 2nd Accused persons had a common intention to attack the deceased and cause him injury. The fact that the 2nd Accused person never physically attacked the deceased did not mean that he was less guilty than the 1st Accused person. It was sufficient that the 1st and 2nd Accused persons were together at the time the offence was committed and had the intention of the deceased suffering some injury or loss. 64.This was in line with Section 21 of the Penal Code Cap 63 (Laws of Kenya) that provides as follows:-“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” 65.To that extent, this court found that the Prosecution proved its case to the required standard of prove beyond reasonable doubt, which in criminal cases was proof beyond reasonable doubt that indeed, the 2nd Accused person was present when he stabbed the deceased on the material night of 22nd October 2023 and his injuries led to his death, which injuries they caused while in a concert with each other, and whose actions were intended to injure the deceased. 66.Their actions were incompatible with their innocence as they did not discharge the burden of proof by providing alibi after being placed at the scene of the incident. Weighed against the evidence that was adduced by the Prosecution witnesses, this court did not find the evidence of the 1st and 2nd Accused persons to have been watertight enough to have weakened the inference of guilt on their part. IV. Malice Aforethought 67.Having found and held that the Accused persons’ defence were not sustainable as they were positively identified as the perpetrator of the deceased’s death, the next pertinent question that arose was whether or not they had malice aforethought in causing his death. 68.The 1st and 2nd Accused persons submitted that the Prosecution failed to prove that the death of the deceased was caused by their acts and omissions. 69.On its part, the Prosecution submitted that it proved that the death of the deceased was as a result of the acts and omissions of the Accused persons. 70.This court had due regard to the case of Morris Aluoch vs Republic [1997] eKLR which cited the case of Rex vs Tubere s/o Ochen[1945] 12 EACA 63 where the East Africa Court of Appeal held that malice aforethought could be presumed where repeated blows were inflicted. 71.The seriousness of the injuries the deceased sustained was confirmed by PW 5. He observed that there was sphered left vertical and blood clots around the heart. He formed an opinion that the cause of the deceased’s death was lung collapse due to excessive haemorrhage secondary to penetrating wound on the chest. This showed that when the 1st Accused person was stabbing the deceased on the left side of the chest, he was targeting the heart and hence this could not be said to have been bereft of malice aforethought on their part. 72.Having analysed the evidence that was adduced by both the Prosecution and the 1st and 2nd Accused persons and their respective Written Submissions, this court came to the firm conclusion that the Prosecution established to the required standard, which in criminal cases, was proof beyond reasonable doubt that the act of unlawful killing of the deceased herein was by the 1st and 2nd Accused persons herein and that the same was with malice aforethought. 73.This court was persuaded to find and hold that the Prosecution had demonstrated the ingredients that had been set out in Section 203 of the Penal Code being:-a.Proof of the deceased’s death;b.Proof that the deceased’s death was a result of unlawful actions and/or omissions; andc.Proof of malice aforethought in the unlawful actions and/or omissions. Disposition 74.For the foregoing reasons, the upshot of this court’s decision was that the Accused persons herein be and are hereby convicted of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 (Laws of Kenya) under Section 215 of the Criminal Procedure Code Cap 75 (Laws of Kenya). 75.It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 23RD DAY OF JUNE 2026J. KAMAUJUDGE