https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7137

Republic v Hukicha (Criminal Case E007 of 2022) [2026] KEHC 7137 (KLR) (13 May 2026) (Judgment) Neutral citation: [2026] KEHC 7137 (KLR) Republic of Kenya In the High Court at Garsen Criminal Case E007 of 2022 JN Njagi, J May 13, 2026 Between Republic Prosecutor and Salim Hukicha Accused Judgment 1.The accused is facing a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on the 4th day of September 2022 at about 1020hours at Kipao village, Kipao location. Tana Delta Sub-County within Tana River County he murdered Hassan Roba Algi (herein referred to as the deceased). 2.The case for the prosecution was that the deceased and the accused were residents of Kibao village. That the accused had divorced his wife at the Kadhi’s Court at Garsen and she was married by the deceased. That on the material day at around 10am the accused attacked the deceased with a knife and stabbed him on the chest. He then ran away with the knife. The assault was witnessed by Madila Galgalo Omar PW1 who was a neighbour to the deceased and Mumina Amni Kuno PW2 who was a sister-in-law to the deceased and a neighbour to the accused. People who were around picked the deceased and took him to his house. The aera chief PW3 who was holding a meeting in the area heard screams in the village. He went to check where the screams were coming from. He found the deceased outside his home with a stab wound below the ribs. He called for a vehicle but by the time the vehicle arrived the deceased had died. He went to Tarasaa police station and made a report. He went back to the scene with policemen. The body was taken to Malindi Sub-County Hospital for postmortem. 3.A post mortem was conducted by Dr. John Gayo PW2. It was his evidence that he found the body with a stab wound on the left side of the chest below the nibble that penetrated into the heart and severed the heart muscles. The body had a second stab wound on the frontal region of the head scalp that broke the scalp and exposed the brain tissue. The doctor formed the opinion that the case of death was due to cardio-vascular arrest due to the stab wound on the chest and on the head. The doctor completed a post mortem report to that end. 4.The case was investigated by IP Matunda PW5 then stationed at DCI office Tana Delta. His evidence was that he was informed of the death of the deceased by the OCS Tarasaa police station. He went to the home of the deceased where he found the body of the deceased. A postmortem was conducted on the body. PW 5 recorded statements of witnesses. 5.It was further evidence of the chief that the Accused went underground and resurfaced after 6 days. They arrested him and took him to the police station. The investigating officer PW5 charged him with the offence of murder. 6.During the hearing of the case in court, the doctor who performed the post mortem PW 4 produced the post mortem report as exhibit, P.Exeh.1. Defence case 7.The Accused stated in a sworn statement that he is a herder and lives at Odha village. That on the 4/9/2022 he was at his village when he was arrested by a village elder and two other people. He was not told the reason for his arrest. He was taken to Tarasaa police station. He was told that he had killed the deceased herein who was a person not known to him. He was told that the person hailed from Kipao village. It was his evidence that he never went to Kipao village on the day the deceased was said to have been killed. He denied in cross examination that he had a wife called Hobona Hukicha whom he divorced at Kadhi`s Court at Garsen. He further said that he was not known to the prosecution witnesses PW1 and PW2. He denied that he was previously married to the sister of PW2. Submissions 8.Counsel for the Accused submitted that the ingredients of the offence oof murder are proof that the death of the deceased occurred; proof that the accused committed the unlawful act which caused the death of the deceased and proof that the accused had malice aforethought. The case of Anthony Ndegwa Ngari v Republic (2014) eKLR was cited in this respect. 9.Counsel submitted that the fact of the death of the deceased is not in dispute. That on the other two ingredients of the offence, none of the prosecution witnesses saw the Appellant commit the offence. That no evidence was produced showing that the Accused was ever married to a lady called Habona Idi and that they had divorced under Islamic law at the Kadhi`s court. 10.It was submitted that the Accused offered a defence that he did not know the deceased and the lady called Habona. Neither did he know PW2 who claimed to be his sister-in -law. That no evidence was adduced that the Accused had the intention of causing the death of the deceased person. It was submitted that the charge against the Accused was not proved beyond reasonable doubt. Counsel urged the court to dismiss the charge. 11.The state did not tender in submissions in the case. Analysis and determination 12.This being a criminal case, the standard of proof is that of beyond reasonable doubt. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 stated this degree to be as follows:“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 13.In Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR, Mativo J. (as he then was) expressed himself as hereunder on the issue:“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.” 14.The accused is facing a charge of murder contrary to section 203 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.” 15.The Court of Appeal in the case of Ndegwa Ngari v Republic (supra) set out the elements of the offence of murder to be as follows:For the offence of murder, there are three elements 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 that 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. (See Nyambura & Others-vs-Republic, [2001] KLR 355). 17.As pertains to the death of the deceased, the body of the deceased was examined by Dr. John Gayo PW4 who found it with a stab wound that penetrated the heart and severed the heart muscles and another stab wound on the frontal side of the head that exposed the brain tissue. The doctor formed the opinion that the cause of death was due to cardio pulmonary failure as a result of the two injuries. The opinion of the doctor was not challenged. I therefore accept the findings of the doctor. The death and cause of death of the deceased was proved as opined by the doctor. 18.On whether the Accused is the one who occasioned the death of the deceased, there is overwhelming evidence from Galgalo Omar PW1 and Mumina Amni Kuno PW2 that he is the one who did so. Both witnesses saw the Accused stabbing the deceased with a knife. They knew him before as he is from their village. The incident occurred on the road in broad daylight at around 9 -10 am. PW1 said that he was about 10 m away when he saw the Accused stabbing the deceased. PW2 said that she came out of her house after hearing noise on the road. That she saw the deceased on the ground before the Accused stabbed him with a knife. I have no reason to doubt the evidence of the two witnesses. The defence by the Accused that he did not know them before cannot be true as they are from the same village. No questions were put to the two witnesses in cross-examination that they were not known to the Accused. The Accused even said that he did not know the area chief PW3. The accused must have been lying. He is the one who stabbed the deceased with a knife and caused his death. The assault on the deceased was unlawful. The Accused thereby committed the unlawful act that caused the death of the deceased. 19.The third issue is whether the Accused killed the deceased with malice aforethought. 20.Malice aforethought 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—i.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;ii.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;iii.an intent to commit a felony;iv.…….. 21.In stabbing the deceased on the chest to the extent that the stab penetrated the heart and severed the heart muscles and also stabbing him on the head to the extent of exposing the brain matter shows that the attack was exerted with a lot of force. This was a clear indication that the Accused intended to kill the deceased. In Republic vs Tebere s/o Ochen (1945) 12 EACA 63, 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. The accused used a knife to stab the deceased on the chest and on the head. In aiming at the two parts, makes it clear that the intention of the Accused was to kill the deceased. 22.The motive to kill the deceased was given more weight by the evidence of Mumina PW2 and the area chief PW3 that the Accused had divorced his wife who got married to the deceased. The accused must have been incensed by the act of the deceased in marrying his former wife. Though the accused denied that he had a wife by the name of Habona, it is evident that he had such a wife whom he divorced at the Kadhi`s court. There was no reason for PW2 and PW3 to lie on the issue. There was no truth in the accused`s defence that he did not know the deceased. His defence was just a mere denial. The accused must have killed the deceased for marrying his former wife. Malice aforethought was therefore proved against the accused. He murdered the deceased. 23.The upshot is that I find the prosecution to have proved the case 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 13TH DAY OF MAY 2026.J. N. NJAGIJUDGEIn the presence of:Mr. Oluoch for prosecutionMiss Mwania for accusedAccused present virtually at GK Prison MalindiCourt Assistant: Rahma