https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9878

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **CRIMINAL CASE NO. 89 OF 2014** **REPUBLIC…………………………………………………………….............PROSECUTION** **VERSUS** **SIMON SAMORA KAMAU……………………………………….........................ACCUSED** **JUDGMENT** 1. The accused was charged with the offence of murder contrary to **Section 203** as read with **Section 204** of the **Penal Code**. The particulars are that on 10/12/2014 at Mwanzo estate in Eldoret West District within Uasin Gishu County, he murdered one **James Wanyoike Gikonyo**. 2. I laid out the chronology of events of this case in my Ruling on case to answer which I delivered on 19/07/2024 as follows: ***“1. The Accused is represented by Mr. Mwaka, Advocate. He was arraigned on 18/12/2014 and took plea on 31/12/2014 before Hon. Githua J. He pleaded not guilty and was granted bond. The matter then proceeded to trial in which the prosecution called 6 witnesses before closing its case on 13/07/2022.*** ***2. The evidence of the first 5 witnesses was taken before Hon. Sewe J and that of the 6th witness was taken before Hon. Ogola J. By the time that I took over the conduct of the case on 15/02/2023 therefore, the Prosecution had already closed its case. As the matter was part-heard therefore, the parties requested, and I agreed, to proceed with the matter from where it had stopped. Accordingly, the provisions of Section 200(1) of the Criminal Procedure Code were complied with and the Defence informed the Court that it would not seek recall of any of the witness for examination. Upon the Court’s directions, the proceedings were typed to enable the Court “write” and deliver this Ruling.”*** 1. Regarding the evidence presented at the trial, I had, in my same Ruling, also recounted the testimonies of the Prosecution’s respective witnesses, but which I will again recount. 2. **PW1** was **Sarah Wanyoike**. She stated that the deceased was her nephew, that on 10/12/2014 at about 3.00 pm, she received a telephone call informing her that the deceased had been stabbed, and she rushed to the scene where she found him lying on the road with a stab wound on his chest. She testified further that the deceased was rushed to hospital but was pronounced dead on arrival, and that they then went to the police station to report the incident. She added that they found the accused at the station and many other people who stated that the deceased had been stabbed by the accused. 3. **PW2** was **Martin Chahazi Arusei**. He stated that on 10/12/2014, he was drinking alcohol with the accused and the deceased when the deceased and the accused left together but the deceased later returned and asked **PW2** to take him to the accused’s house. He testified that he (**PW2**) then showed the deceased the accused’s house and left. He stated that he later heard that the accused had stabbed the deceased with a knife, that he went to the scene where he found the deceased bleeding from a stab wound on the chest and that the accused had locked himself in his house. He stated that the deceased was rushed to hospital and that he later learnt that the accused had been arrested. 1. **PW3** was **Antipas Njuguna Njenga**. He stated that on 10/12/2014 he was in his house when at around 3.00 pm, heard somebody banging on the outer door, when he opened, he found that it was a girl whom he did not know, and told him that her boyfriend was quarrelling with some people over money. **PW3** stated that he then opened the gate and found 4 very drunk people in an altercation, among whom he identified the accused as he was his immediate neighbour, and whom two others were holding by the hands. He stated that when he intervened, the 2 let go of the accused but then the accused stabbed 1 of them and who fell down. He added that an unruly mob then gathered upon which he retreated back into the compound and locked the gate but the mob broke down the gate and started destroying doors and windows in the building. He testified further that the police came, and he also learnt that the deceased had died. In cross-examination, he stated that the 4 people had been drinking in the accused’s house before they began quarrelling. He also stated that the accused had blood all over him, and it appeared that his chest and forehead had been cut with a razor, and that things happened so fast that he did not see the weapon that the accused used to stab the deceased but that one of the 3 people had a knife. He testified further that after stabbing the deceased, the accused locked himself in his house until the police came. 2. **PW4** was **Darling Wanyoike**. He stated that on 10/11/2014, he was on the road in a group which comprised the deceased and 2 others when one of them told the deceased that his friends wanted to talk to him, that the deceased then went to look for the people who had asked for him and that they followed the deceased. He stated that when they reached the gate of the compound, a young man stabbed the deceased with a knife, that he (**PW4**) too, was scratched by the knife, and that the deceased collapsed and he was rushed to hospital. He stated that he he could not identify the person who stabbed the deceased. In cross-examination, he stated that the person who stabbed the deceased came out of the compound but he did not see the knife. He also denied that the deceased, or all of them, had attacked the person who stabbed the deceased. 3. **PW5** was **Dr. Macharia Benson**, a Pathologist. He referred to the Post-Mortem Form relating to the deceased and prepared by a colleague of his who had since been transferred. He stated that the autopsy was performed on 15/12/2014, that the body had stab wounds on both sides of the chest, that the left stab wound penetrated the chest causing laceration on the ventricle of the heart, and that there was accumulation of blood in the left chest cavity. He gave the opinion that the cause of death was bleeding due to the stab wounds on the chest. 4. **PW6** was **Police Constable (PC) Laban Ronoh**, the Investigating Officer in this case. He testified that he received information on 10/12/2024 that there was a fight at Mwanzo area, which information was reported by the Landlord of the building in which the incident had occurred, and that he went to the scene together with other officers. He stated that when they reached, they found the accused, that he (**PW6**) interviewed witnesses, and that he conducted investigations which revealed that the deceased was stabbed by the accused. In cross-examination, he stated that the Report he received was that 2 people were fighting. He also stated that the accused had locked himself in his house as a hostile crowd outside wanted to lynch him. 5. As aforesaid, upon close ofthe Prosecution case, by my Ruling dated 19/07/2024,I found the accused as having a case to answer and put him to his defence. The accused then opted to give sworn testimony in his defence, which he then did as **DW1** on 2/12/2025. He did not call any other witness. 6. In his defence, the accused, led by **Mr. Mwaka**, his Counsel, testified that his name is “***Simon Njoroge Kamau***”. He stated that on the said 10/12/2014, he was from college and from buying lunch with his girlfriend, which they were carrying home at around 2.00 pm when 4 young men attacked them at the gate to his residence, who first punched him then cut him with a razor blade on the nose, while others were holding his hands. He stated that he asked his girlfriend to run outside, that the attackers did not demand for anything from him, that the attack took about 5 minutes, and that **PW3**, a neighbour came out. He stated that one of the attackers tried to stab him with a knife but since he defended himself, the attacker, instead, ended up stabbing his own co-attacker. He claimed that **PW3**, in his testimony, had confirmed that he (accused) did not have any knife or any weapon. He also refuted **PW2’s** testimony that himself, **PW2**, and the deceased were drinking together before the attack. He stated further that the attacker who had tried to stab him, again tried to do so a second time, and he (accused) then ran into the compound and locked himself in his house. He stated that the attackers ran away bur returned after about 15-20 minutes, started throwing stones into the compound, later gained access thereto and broke some window panes and tried to break the accused’s door, and that the police later came and took him and his girlfriend away. He stated that the police conducted a search in his house but did not recover any weapon. He also asserted that he gave the police his nickname as “***Saimo***” and he wondered where they got the name “***Samora***” from. He claimed further that one potential witness, one “***Jeff***”, who was mentioned by other witnesses was not called to testify, and also that although he requested to be taken for treatment for his injuries, that was never done. He denied knowing the assailants before the incident. Under cross-examination by **Ms. Muriithi**, he conceded that it was in his defence that he had for the first time disowned the name “***Samora***”. He also stated that he had lived in the area for about 4 years before the attack, and it was the first time that he had been attacked, and that the attackers did not disguise themselves in any manner. He insisted that **PW2** was not being truthful ibn claiming that he (accused) was with the accused and the deceased drinking alcohol before the incident. In re-examination, he insisted that he did not know the motive of the attack. 7. Upon close of the defence case, and thus the whole trial, I granted the parties leave to file written Submissions. However, only the State supplied a copy of its Submissions dated 4/02/2026. The same is however not filed in the online **Judiciary Case Tracking System (CTS)** portal as required. I will nevertheless, in the interest of justice, consider the Submissions, but with the strict directions that the same be now so filed in the **CTS**. **Prosecution’s Submissions** 1. Counsel for the Staterestated the ingredients that the Prosecution must prove to secure a conviction on the charge of murder, and cited the case of **Anthony Ndegwa Ngari vs. Republic [2014] eKLR**. On the issue of the death of the deceased, she submitted that the same is not disputed as the Post-Mortem Form was produced, and also that **PW1**, **PW2**, and **PW3** saw the body at the scene with stab wounds. On the issue of the unlawful act by the accused which caused the death of deceased, Counsel narrated the testimony of **PW3**, who stated that he saw the accused stab the deceased, and also the testimonies of **PW2**, and **PW6**, and urged that the witnesses corroborated each other on the accused person’s involvement in the murder. On the issue of a single identifying witness, she cited the case of **Maitanyi vs Republic [1986] KLR 198**, and pointed out, ***inter alia***, that **PW3** was a neighbour of the accused and as such, well known to him, and also that the incident occurred in broad daylight. He also highlighted **PW3’s** testimony that there were 4 men at the scene, a number which, according to Counsel, was not too large to obscure **PW3** from witnessing the stabbing. She also pointed out **PW3’s** testimony that he even conversed with the people in an attempt to find out what the issue was. According to Counsel therefore, **PW3’s** testimony that he did not see the knife or non-recovery of the knife are not fatal to the Prosecution case. Regarding the accused person’s defence, she termed it a mere denial, and submitted that although the accused denies knowing the deceased, **PW2** testified that they were all friends. In her view, the defence did not shake the strong, cogent, and credible evidence adduced. On “***malice aforethought***”, she cited **Section 206** of the **Penal Code**, and submitted that the accused targeted a very vital part of the body and also stabbed the deceased, not once, but twice, on the chest and then left him to die. She contended that clearly, the accused person’s intention was to cause death of the deceased **Determination** 1. **Section 203** as read with **204** of the **Penal Code** under which the accused is charged provide for the offence of murder and the punishment therefor. The provisions are premised as follows: **203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.** **204. Any person who is convicted of murder shall be sentenced to death.”** 1. The Prosecution, to secure a conviction, therefore has the duty to prove, beyond reasonable doubt, that the accused, by an unlawful act or omission, caused the death of the deceased through “***malice aforethought***”. For the Court to make a finding that an accused person committed the offence of murder, the Prosecution must therefore establish the following elements; **(a)** **death of the deceased, (b) proof that the accused person committed the unlawful act which resulted in the death of the deceased:** and, **(c) malice aforethought.** 2. In this case, the death of the deceased and cause thereof are not disputed. According to the testimony of the Pathologist, **PW5**, **Dr. Benson Macharia**, who conducted the autopsy on the body of the deceased, the cause of death was “***bleeding due to stab wound to the chest***”. 3. As aforesaid, being a criminal case, the Prosecution bore the duty to prove the charge beyond any reasonable doubt. The term “***beyond reasonable doubt***” was described and/or explained in the leading case of **Woolmington v Republic 1935 AC 462**, as follows: **“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’** 1. On whether there is proof that the accused is the person who committed the unlawful act which resulted in the death of the deceased, **PW2** stated that he was drinking alcohol with both the accused and the deceased when the deceased and the accused left together but the deceased later returned and asked **PW2** to take him to the accused’s house. He testified that he (**PW2**) then showed the deceased the accused’s house and left but he later learnt that the accused had stabbed the deceased with a knife, that he went to the scene where he found the deceased bleeding from a stab wound on the chest and that the accused had locked himself in his house. **PW3** stated that at around 3.00 pm, he was in his house when he heard somebody banging on the outer door, when he opened, he found that it was a girl whom he did not know, who told him that her boyfriend was quarrelling with some people over money. **PW3** stated that he then opened the gate and found 4 very drunk people in an altercation, that among them, he identified the accused as he was his immediate neighbour, and whom two others were holding by the hands. He stated that when he intervened, the 2 let go of the accused but then the accused stabbed 1 of them and who fell down. In cross-examination, he stated that the 4 people had been drinking in the accused’s house before they began quarrelling. He also stated that the accused had blood all over him, and it appeared that his chest and forehead had been cut with a razor, and that things happened so fast that he did not see the weapon that the accused used to stab the deceased. **PW4** stated that he was on the road in a group which comprised the deceased and 2 others when one of them told the deceased that his friends wanted to talk to him, that the deceased then went to look for the people who had asked for him and that they followed the deceased. He stated that when they reached the gate of the compound where the person was supposed to be, a young man who came out of the compound stabbed the deceased with a knife, that he (**PW4**) too, was scratched by the knife, and that the deceased collapsed and he was rushed to hospital. He stated that he did not identify the person who stabbed the deceased. 2. The accused, in his defence, confirmed being present at the scene of crime, and being involved in the altercation or confrontation alleged by **PW3** and **PW4**. The accused also confirmed that **PW3** was indeed a neighbour and came to the scene from his house during the confrontation. He also confirmed the presence of a knife during the confrontation. He also confirmed that he was cut with a razor during the altercation. To this extent, the accused corroborated the testimony of **PW3** and **PW4**,which corroboration thus paints **PW3** and **PW4** as truthful and credible witnesses. 3. Considering the above testimonies closely, I note that **PW2** stated that he was drinking alcohol with the accused and the deceased, **PW3** stated that the girl who came banging his door told him that her boyfriend was quarrelling with some people over money, and that when he (**PW2**) opened the gate, he found 4 very drunk people in an altercation. **PW4** also stated that he was with the deceased and 2 others accompanying the deceased to go and look for the person who had allegedly asked for the deceased, and that when they reached the gate to the compound where the person resided, or was supposed to be, a young man who came out of the compound stabbed the deceased with a knife, and that he (**PW4**) too, was scratched by the same knife. 4. These above accounts demonstrate that contrary to the accused person’s claim that the deceased was not known to him, the accused and the deceased were well-known to each other, and had in fact been drinking together before their quarrel escalated. The accounts also demonstrate that, contrary to the accused person’s claim that he did not know the motive of the altercation, he very well knew that it was in fact a quarrel with a friend about money. Lastly, the accounts demonstrate that indeed the deceased was not stabbed by a colleague, as alleged by the accused, but by the person who came out of the compound, whom the evidence overwhelmingly points to have been none other than the accused. To this extent, **PW3’s** testimony that he did not see the knife, or the fact that the knife was never recovered cannot be said to be fatal to the Prosecution case. 5. Regarding identification of the accused, **PW3** who testified that he saw the accused stabbing the deceased testified, as aforesaid, that the accused was well-known to him as they were immediate neighbours. Indeed, the accused confirmed that he was well-known to **PW3** and also that **PW3** came out of his house during the confrontation and arrived at the scene during the confrontation. According to **PW3**, the incident took place around 3.00 pm, which timing the accused basically confirmed since his estimate was 2.00 pm, thus within the same timing. It is therefore not in dispute that the incident occurred in broad daylight. I therefore find that the identification of the accused was one of recognition, rather than that of a stranger. In respect to this nature of identification and its reliability, the Court of Appeal, in the case of **Reuben Tabu** **Anjononi & 2 Others v Republic [1980] eKLR**, stated that: **“……. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. …………………….”** 1. Regarding the defence offered by the accused, I agree with the Prosecution that it was a mere denial, and did not cast doubt on the clear and consistent evidence tendered by the Prosecution witnesses, which, in my view, remained unshaken even in cross-examination. The testimony of the Prosecution witnesses remained credible, cogent and irresistible to point at the accused as the culprit. It is therefore my finding that the evidence on record sufficiently establishes that the accused is the one who committed the act that resulted in the death of the deceased. 2. The Prosecution having proved the ***actus reus***, the next issue is whether “***malice aforethought***” can be inferred from the actions of the accused person. This is because the offence of “***murder***” is only complete when “***malice aforethought***” is established if, as prescribed in **Section 206** of the **Penal Code**, the evidence proves 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) An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”** 1. In the case of **Hyam v DPP {1974} A.C.** the Court held ***inter alia*** that: **“Malice aforethought in the crime of murder is established by proof beyond reasonable doubt when during the act which led to the death of another the accused knew that it was highly probable that, that act would result in death or serious bodily harm.”** 1. The Court of Appeal, in the case of **Bonaya Tutu Ipu & Another v Republic [2015] eKLR**, stated further as follows: **“.......... In the persuasive decision of *Chesakit v Uganda, CR App No 95 of 2004*, the Court of Appeal of Uganda stated that in determining a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person.”** 1. Further, the Court of Appeal, in the case of **Morris Aluoch v Republic [1997] eKLR)**, quoted **Rex vs Tubere S/O Ochen (1945) 12 EACA 63** guidedthat: **“If repeated blows inflicted the injury then malice aforethought could well be presumed but in this case we have to contend with one single blow which caused perforation of the intestine which led to internal bleeding which did not become apparent until the death of the deceased some four days late.** 1. From the evidence tendered in this case, it is clear that the accused stabbed the deceased, not once, but twice, using a knife or a similar sharp object, and the areas of the body he targeted, included the chest. Anyone who uses a weapon of any nature to strike the chest and/or any other such vulnerable part of the body of another repeatedly, as the accused did in this case, ought to know that the injuries to be suffered out of that act are capable of causing the death of that person. The accused cannot therefore be said not to have been aware of the probable impact of the injuries he was inflicting on the deceased. The severity and ferocity of the attack is also demonstrated by the Pathologist’s finding that one of the wounds penetrated the chest to the extent that it caused laceration on the ventricle of the heart. The force used was therefore also clearly excessive and must have been intended to cause maximum harm. The fact that he targeted the chest of the deceased, a delicate part, which when attacked in that manner could easily lead to death, establishes that the accused had, at least at that point, premeditated his actions. To my mind, the above facts and conduct easily establish the existence of “***malice aforethought***” on the part of the accused. 2. I therefore find that the accused, apart from committing the act that resulted in the death of the deceased, was in doing so, also actuated with “***malice aforethought***”. Under these circumstances, I am satisfied that the Prosecution has through facts and evidence presented, proved the charge of murder beyond reasonable doubt. 3. For the above reasons, I find the accused person, **Simon Samora Kamau**, guilty of the charge of murder contrary to **Section 203** of the **Penal Code** and as a consequence, I convict him accordingly. 4. As I have now proceeded on transfer, this file shall be placed before the Judge who has taken over from me, to continue with sentencing proceedings to conclusion of the case. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JULY 2026** **…………………..** **WANANDA JOHN R. ANURO** **JUDGE** **Delivered in the presence of:** | | | | --- | --- | | **The Accused (present physically in open Court)** | | | **N/A for Advocate for the accused** | | | **Ms. Muriithi for the State** | | | **Court Assistant: Brian Kimathi** | |