https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12563

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **CRIMINAL CASE NO. E001 OF 2024(MURDER)** **REPUBLIC…………………………………………………PROSECUTION** **-V/S-** **WYCLIFFE KIMTAI KEMEI………………………………….ACCUSED** **JUDGMENT** 1. The accused person, Wycliffe Kimtai Kemei, faces a charge of murder contrary to Section 203 as read together with Section 204 of the Penal Code. The particulars of the offence are that on the 9th day of December 2023 at Bondeni Kongit area, Kongit Location, Mt. Elgon Sub-County within Bungoma County, the accused murdered Naomi Celestine. 2. The prosecution called 8 witnesses to support its case. The accused gave a sworn statement in his defence. **PROSECUTION CASE** 1. PW1, David Kipsisei, testified that he was a farmer residing in Kapsokwony and that he knew the accused not as a neighbour or village mate, but because they frequently met at local chang’aa drinking dens. He also brews chang’aa. On 8th December 2023 at about 6.30 p.m., he was at his home, where the accused, the accused’s wife, and another person identified as Jared were drinking chang’aa. He did not know the deceased’s name and only knew her as the accused’s wife. According to him, the accused arrived carrying bread, which he gave to his wife. The couple continued drinking together before leaving his home at about 8.00 p.m. He observed that they left together in good condition and did not notice any quarrel or disturbance between them. Although they had been drinking, he could not tell whether they were intoxicated. 2. PW1 further testified that the following morning he learnt that the accused’s wife had died at their home. Together with the deceased’s brothers and another person known as Mosobo, he proceeded to the deceased’s home but found the body had already been removed. He stated that he did not know what had caused the deceased’s death and confirmed that he had not been arrested in connection with the incident. 3. During cross-examination, PW1 reiterated that the accused and his wife frequently visited his home to drink chang’aa and that he had never witnessed them quarrelling on any of those occasions, including on the material evening. He maintained that the accused had brought bread for his wife and categorically stated that he had not witnessed the accused kill the deceased. 4. PW2, Scholastica Chepkemoi Chelukhe, testified that she was an instructor at Masaek Teachers Training College in Kapsiro and that she resided in Kongit. She knew the deceased, Naomi Celestine, as a neighbour and knew the accused as both a neighbour and an in-law, confirming that the deceased was the accused’s wife. 5. She testified that on the night of 9th December 2023, while asleep, she was awakened by screams at about 3.00 a.m. The screams came from the accused’s home. When she went outside, she met Mama Jackie, who was crying and told her she had heard the accused, Wycliffe, crying. Mama Jackie then led her to the accused’s house, where they found the deceased unconscious. 6. PW2 stated that, believing the deceased’s condition was due to excessive alcohol consumption, she went to fetch milk to administer as first aid, as the deceased was known to drink heavily. Meanwhile, Mama Jackie went to call a doctor. When the doctor arrived, he advised that the deceased be taken to hospital. A boda boda rider gotten , and the accused accompanied his wife to the hospital. PW2 then returned to her house and went back to sleep. Later, at about 8.00 a.m., she learnt that the deceased had died. 7. She further testified that, to her knowledge, the accused and the deceased lived well together, and that the deceased habitually consumed alcohol and often became intoxicated. She also confirmed that she was aware the accused had subsequently been arrested. 8. During cross-examination, PW2 reiterated that she had known the couple for a long time as husband and wife and had never witnessed them fighting. She confirmed that although she ordinarily worked and stayed at Kapsiro, she was at her home on the material night. She stated that when she responded to the screams, she found both Mama Jackie and the accused crying, and emphasised that she did not witness the accused kill the deceased. 9. PW3, Jackline Cheptoek Kinyoo, testified that she was a milk vendor living at Kongit Market in Mt. Elgon. She stated that she knew both the accused and the deceased, Celestine, as neighbours. On 9th December 2023 at about 3.00 a.m., she was asleep when she heard what sounded like a child crying. Upon waking and going outside, she found the accused seated at his mother’s house, wearing only a pair of trousers and crying. When she asked him what had happened, he told her that Celestine was not breathing properly. She then went to the couple’s house and found the deceased breathing with difficulty. 10. PW3 stated that she raised an alarm by screaming and woke the couple’s eldest child, while another neighbour came to assist. The neighbour fetched milk, which they administered to the deceased by holding her head up and forcing the milk into her mouth. She testified that the deceased swallowed approximately one cup of milk. Thereafter, the accused instructed her to call George, who advised that the deceased be taken to hospital. The accused then accompanied the deceased to hospital. The following morning, as PW3 was leaving for work, the accused informed them that Celestine had passed away. 11. She testified that she did not know the cause of the deceased’s death and did not attend the post-mortem examination. She further stated that she had never witnessed the accused and the deceased fighting. According to her, the deceased frequently consumed alcohol, often became disorderly when intoxicated, and at times failed to return home after drinking. She added that both the accused and the deceased drank alcohol, and that the accused would often go to look for his wife whenever she became intoxicated. 12. During cross-examination, PW3 reiterated that the deceased habitually drank alcohol and sometimes failed to return home because of her drinking. She stated that she did not know whether that had occurred on the material day. She maintained that she did not know what caused the deceased’s death, had never seen the accused assault or beat the deceased, and had never witnessed the couple fighting. She also confirmed that when she found the accused on the material night, he was inside the house, wearing only a pair of trousers and no shirt. 13. PW4, George Karach, testified that he was a pharmacist operating a private clinic and lived in Kongit. He stated that he knew the accused as a neighbour and knew the deceased, Celestine, as the accused’s wife. On 9th December 2023 at about 3.00 a.m., he was called by two women, Scholastica and Jackline, who asked him to check on a neighbour lying on a bed. He stated that on a previous occasion, the accused and the deceased had had a disagreement and had asked those present to leave them alone. Upon arriving at the house, he found the deceased lying on the bed with milk still in her mouth, which had been administered by those present. He examined her by holding her hand and found that she was still breathing, although her body was not warm. He advised that she be taken to hospital immediately, after which a motorcycle was obtained to transport her. He then returned to his home and later learnt that the deceased had been pronounced dead at about 6.00 a.m. 14. PW4 further testified that they used a D-light to examine the deceased and that he did not observe any visible injuries on her body. He stated that he did not conduct a detailed examination and did not attend the post-mortem examination. 15. During cross-examination, PW4 maintained that he did not know what caused the deceased’s death and had not witnessed the accused’s alleged assault or murder of her. He reiterated that the deceased was still alive when he saw her, but could not explain what had led to her condition. He detected a smell of alcohol on her breath, indicating she had been given a drink, but stated that he was unable to determine the cause of her death. 16. PW5, Martin Mosobo, testified that he was from the Kapsokwony area and knew the deceased, Naomi Celestine, who referred to him as ‘Baba’. He stated that he believed the deceased had been beaten to death by her husband, the accused, because she had been found lying dead in her house. He attended the post-mortem examination and stated that the findings revealed blood in the deceased’s stomach, small injuries on her forehead, and an injury at the back of her head. He identified the post-mortem report. 17. PW5 further testified that the accused and the deceased frequently quarrelled. According to him, whenever they quarrelled, the deceased would seek refuge at his home before later returning to live with the accused. He added that both the accused and the deceased consumed alcohol, and that the deceased drank heavily. 18. During cross-examination, PW5 maintained his assertion that the accused had killed the deceased. However, he acknowledged that he had only gone to the accused’s home the following morning and was not present on the night of 9th December 2023. He reiterated his understanding that the post-mortem showed the deceased had been struck. He confirmed that both the accused and the deceased had consumed alcohol, but stated that he was unaware that the deceased sometimes failed to return home because of drinking. He further stated that the deceased was killed at her home and disputed the suggestion that she was still alive when she was taken to hospital, insisting that such a claim was untrue. 19. PW6, CPL Silas Kiplagat Tum, No. 77233, testified that he was attached to Kongit Police Post under Kaptama Police Station. He stated that on 9th December 2023 at about 9.00 a.m., while on duty at the report office, three men, namely the accused, Wycliffe Kimtai Kemei, Musa Kapkum, and Tony Kones, arrived at the police post. 20. According to PW6, the accused reported that he had left for Kapsokwony the previous day to undertake quarry work, leaving his wife and children at home. Upon returning, he found only the children, who informed him that their mother had left earlier that day and had not returned. The accused further reported that he went to sleep and, at about 3.00 a.m., woke to relieve himself, when he found his wife lying outside near an avocado tree. He stated that the accused observed injuries to her head and the front of her face, sought assistance from a boda boda rider, and took her to Kapsokwony Hospital. 21. PW6 testified that while he was recording the report, a crowd of about thirty members of the public gathered at the police post, accusing the accused of having killed his wife. Fearing for the accused’s safety, he placed him in the police cells and informed the OCS. The accused was then transferred to Kapsokwony Police Station. He identified the accused in court as the person who had made the report, adding that he had not known him before that date. 22. During cross-examination, PW6 stated that he detained the accused solely because his life was in danger from the hostile crowd. He confirmed that the accused reported that his wife had been killed but did not identify the person responsible. He acknowledged that a person who had committed an offence could report the matter to the police, but maintained that the accused appeared worried rather than shaken. He clarified that the accused became worried when members of the public accused him of killing his wife, and that, according to his statement, the accused also appeared to want to run away. PW6 further testified that he recorded his formal statement on 13th December 2023, four days after the accused’s arrest, after first entering the report in the OB. He stated that he did not know whether the OB extract had been produced in court, did not visit the deceased’s homestead, was unaware whether the deceased habitually consumed alcohol, and acknowledged that a drunken person could sustain injuries after falling. 23. Upon re-examination, PW6 reiterated that the accused appeared worried at the police post and referred to his statement, which indicated that the accused “started looking worried and wanted to run away”. 24. PW7, Dr. Graham Masika Makokha, testified that he was a medical doctor employed by the County Government of Bungoma and stationed at Chwele Sub-County Hospital. He further testified that he performed a post-mortem examination on the body of Naomi Celestine at 5.30 p.m. on 20th December 2023, after the body had been identified by Martin Mosobo and Julius Kwemoi. He observed that the deceased was a well-built female, approximately 28 years old, measuring 165 cm in height, and that the body was well preserved. The external examination revealed bruises measuring 4 cm by 3 cm on the frontal aspect of the face, a 2 cm bruise on the left side of the neck, and a 2 cm bruise on the anterior chest wall. On internal examination, he found the respiratory and cardiovascular systems to be normal. However, the digestive system showed massive haemoperitoneum and contusions of the large intestines, with a significant amount of blood within the abdominal cavity. He further observed that the genital and urinary systems, including the uterus, were normal. Examination of the head revealed scalp hematoma in both the frontal and occipital regions, while the nervous system showed cerebral oedema and a mild subdural hematoma, indicating swelling of the brain. The spinal column and spinal cord were intact. 25. Based on these findings, PW7 formed the opinion that the cause of death was a severe head injury secondary to blunt force trauma. He identified the post-mortem report as the one he had prepared, confirmed that it bore his signature and the stamp of Sannte Funeral Home, and produced it in evidence as PExh. 1. He explained that the section relating to identification of the body was ordinarily completed by the investigating officer and that discrepancies in the copies could have arisen because the post-mortem forms were completed using carbon copies. 26. During cross-examination, PW7 stated that he had performed numerous post-mortem examinations before this one and had commenced further studies in August 2025. He explained that the investigating officer, Mr. Limo, had provided him with the post-mortem report, and that the copy in his possession contained the names of those who identified the body. He was not surprised that another copy did not reflect those names, given the carbon-copy process. He acknowledged that he had not preserved or analysed the deceased’s intestinal contents for toxicological examination, and was therefore unable to state whether the deceased was intoxicated or a habitual alcohol user. He accepted that a heavily intoxicated person could stagger, fall, or even roll on the rocky terrain common in the Mt. Elgon area. However, he rejected the suggestion that the deceased’s injuries resulted from falling onto a stone, although he conceded that a person could sustain injuries if they fell and rolled down a rocky hill. 27. Upon re-examination, PW7 clarified that it was highly unlikely the injuries were caused by rolling on the ground, explaining that such an event would ordinarily produce injuries to both the anterior and posterior aspects of the body and might also result in fractures, findings that were absent in the deceased. He further testified that he observed no signs of intoxication during the post-mortem examination and reaffirmed that the fatal head injury had been caused by blunt force trauma to the head. 28. PW8, PC Kipchumba Ruto, No. 246222, testified that he was attached to the DCI, Mt. Elgon, and served as the investigating officer in the case. He stated that on 9th December 2023 at about 10.00 a.m., he received instructions from the OCS, Kapsokwony, to investigate a report about the accused, who had presented himself at Kongit Patrol Base but had been placed in custody after members of the public accused him of killing his wife, Naomi Celestine, and threatened to attack him. 29. PW8 testified that, accompanied by the area chief, he visited the accused’s home and found neighbours and family members gathered. By the time he arrived, the deceased had already been taken to Mt. Elgon Sub-County Hospital. After obtaining permission from the family and those present, he entered the accused’s house to conduct investigations. Inside the house, he recovered a light green bedsheet spread on the bed, which had visible blood stains. He seized the bedsheet as an exhibit and thereafter recorded statements from witnesses who reported to the DCI office. 30. He further testified that on 20th December 2023 he attended the post-mortem examination at Sannte Funeral Home alongside the deceased’s family. He stated that the doctor informed those present that the deceased had sustained extensive internal bleeding and a head injury caused by a blunt object, and then completed the post-mortem report. PW8 thereafter re-arrested the accused at Kongit Police Station and transferred him to Kapsokwony Police Station for further investigation. 31. PW8 also testified that outside the accused’s house, beneath an avocado tree, investigators observed signs of a struggle and recovered a black wristband. He stated that the couple’s child identified the wristband but later declined to testify against the accused, which explained why it was not produced in court. He acknowledged that although the blood-stained bedsheet was preserved as an exhibit, it was not submitted to the Government Chemist for forensic analysis. He identified the bedsheet as PMFI 2 and sought to produce it in evidence. 32. Regarding the post-mortem documentation, PW8 testified that he possessed the original post-mortem report, which identified Martin Mosobo and Julius Kanumoi as the individuals who identified the body. He explained that the investigating officer was responsible for completing that section of the form and produced the original post-mortem report as PExh. 3. He confirmed that the post-mortem report identified the cause of the deceased’s death and identified the accused in court as the person he had investigated. 33. During cross-examination, PW8 acknowledged that Dr. Graham Masika had performed the post-mortem examination and confirmed that they had spoken on the day of the examination, though not about his court testimony. He explained that post-mortem forms were ordinarily prepared in triplicate and conceded that PExh. 1 and PExh. 3 were both post-mortem reports relating to the same examination. He stated that PExh. 1, which had been supplied to the defence, omitted the names of the persons who identified the body, whereas PExh. 3 contained those names. He attributed the discrepancy to the manner in which the forms had been completed, explaining that one copy had been completed by his colleague, PC Martin Mutunga, who had not testified, and that another had been filed with the Office of the Director of Public Prosecutions and the hospital. 34. PW8 further testified that he had visited the scene and prepared a sketch plan of the homestead, but neither the sketch plan nor photographs of the scene had been produced in evidence. He admitted that the blood found on the recovered bedsheet had never been subjected to forensic examination, so its source was unknown, although only the accused and the deceased were said to sleep on that bed. He confirmed that he had not witnessed the murder and that the prosecution’s case was based on circumstantial evidence. He further acknowledged that the deceased’s child, aged about 11 or 12 years, could have testified if she had wished to do so. 35. PW8 also stated, based on witness statements, that the deceased habitually consumed alcohol and that an intoxicated person could lose balance and fall. He accepted that even a sober person could fall and sustain injuries, particularly in the rocky terrain of Mt. Elgon. Nevertheless, he rejected the suggestion that the deceased had inflicted the injuries upon herself and maintained that the accused was the last person seen with the deceased before her death. **DEFENCE CASE** 1. DW1, Wycliffe Kimtai Kemei, the accused, testified that he was a stonemason residing in Kaptama Ward. He denied murdering his wife, Naomi Celestine, on 9th December 2023, stating that they had been married and had four children, the eldest of whom was then in Grade 7. 2. He testified that on the material day he left home at about 6.00 a.m. for work at Kapsokwony, where he worked until 6.00 p.m. Before returning home, he shopped in town and arrived at his home at about 7.30 p.m. He found only the children at home, as his wife had earlier informed him that she intended to visit her parental home and that, should she fail to return, he should assume she had remained there. He stated that the eldest daughter prepared potatoes for supper and that he remained at home throughout the evening before retiring to bed. He explained that the family occupied a two-room house, with him and the deceased sharing one room while the children slept in the sitting room. 3. The accused further testified that at about 4.00 a.m., his daughter, Shalom, woke him after noticing their dog was barking unusually. He accompanied her outside, and near an avocado tree they found the deceased lying on the ground. They attempted to wake her without success, raised an alarm, and attracted neighbours, including Mama Kecha, Scholastica, the local doctor, and Carlos. According to him, they carried the deceased into the house and attempted to administer first aid, including giving her milk, but her condition did not improve. They then hired a boda boda and took her to Kapsokwony Hospital, where a doctor examined her and informed them that she had died. 4. DW1 testified that he went to the deceased’s parental home and informed her father of her death. He stated that his father-in-law told him that the deceased had been drinking alcohol in another valley before the incident. Thereafter, on the advice of neighbours, he reported the matter to Kongit Police Post, where he was placed in the police cells before eventually being charged with the present offence. 5. The accused denied PW1 David’s testimony that they had been drinking together the evening before the deceased’s death, asserting that David belonged to the deceased’s clan and that no other witness had placed him at the chang’aa den. He maintained that no witness had seen him assault the deceased or had testified to any grudge between them. He stated that he loved his wife, had never beaten her, and that when he found her, she smelt of alcohol. He further testified that the deceased habitually consumed excessive alcohol, describing her as a drunkard, and that he did not know what she had consumed or with whom she had been drinking before her death. 6. During cross-examination, DW1 maintained that he and the deceased had lived peacefully and that he enjoyed a good relationship with her family. He acknowledged that the deceased often drank at places different from those where he drank and, at times, stayed away from home for as long as two days. He reiterated that he did not know what caused her death and denied that the prosecution witnesses had any legitimate basis for implicating him. He stated that he did not know why they had testified against him. He also testified that he had no other criminal case pending before any court and denied ownership of the blood-stained bedsheet produced as an exhibit. 7. Upon re-examination, DW1 reiterated that the doctor had not stated that he had caused the deceased’s death and maintained that he could not explain the motives of the prosecution witnesses who had testified against him. 8. DW2, Shalom Jebet, the accused’s daughter, testified that she was a Grade 7 pupil at Kawabura School and resided in Laini Moja. She identified the accused as her father, Wycliffe Kimtai, and the deceased, Celestine, as her mother. 9. She testified that on 8th December 2023, her father left home in the morning to work at Kapsokwony, where he shaped stones. Her mother was at home before leaving to visit her grandmother, who was also the deceased’s mother, and did not return that day. According to DW2, her father returned home at about 8.00 p.m., ate potatoes she had prepared, and the family retired to bed. She explained that their house had two rooms, with her father sleeping in the bedroom while she and the younger children slept in the sitting room. She stated that her father locked both the main door and the bedroom door before going to sleep. 10. DW2 further testified that at about 3.00 a.m., she was awakened by the family’s dog barking. She knocked on her father’s bedroom door to wake him, after which they went outside and noticed something lying beneath an avocado tree. On approaching, they discovered it was her mother. She stated that her father tried to wake the deceased by touching and calling her, but she did not respond. He then screamed, attracting neighbours, including Scholastica, Mama Kaja, and the local doctor. According to her, the neighbours used Mama Kaja’s leso to carry the deceased into the house, then arranged for a boda boda to take her to hospital, accompanied by her father. 11. She testified that her father returned the following morning, informed the family that their mother had died, and said he was going to report the matter to the police. He did not return home thereafter, and she later learnt that he had been arrested. 12. DW2 further stated that if her father had left the house during the night, she would have known, as he would have had to open the door. She maintained that he did not leave the house before she woke him. She also testified that the deceased habitually consumed chang’aa and sometimes brought alcohol home. In her 13 years, she had never witnessed her parents quarrelling or seen her father assault her mother. She added that her mother would occasionally stay with the family for a short period before returning to her own mother's home. 13. During cross-examination, DW2 maintained that she was telling the truth, denied that anyone had coached her, reiterated that her mother drank alcohol, and stated that her parents lived together peacefully. **SUBMISSIONS** 1. The prosecution filed submissions dated 27th March 2026 and argued that it had proved the charge of murder against the accused beyond reasonable doubt, relying on the testimony of seven witnesses. Relying on the decision in Wanjala v Republic (Criminal Appeal E073 of 2021) KECA 2298 (KLR) (19 December 2023 [Judgment]), it argued that the essential ingredients of murder: proof of death; proof that the death resulted from an unlawful act by the accused; and proof of malice aforethought, had all been established. 2. On the fact of death, the prosecution submitted that the evidence of PW5, who identified the deceased’s body, was corroborated by the testimony of PW7, the pathologist who conducted the post-mortem examination. They further noted that both the accused, DW1, and his daughter, DW2, admitted that the deceased, Naomi Celestine, had died. 3. Regarding whether the deceased died as a result of an unlawful act by the accused, the prosecution relied on PW1’s evidence that the deceased and the accused were together drinking chang’aa on the evening of 8th December 2023 before leaving together. It also relied on PW3’s evidence that the deceased was later found unconscious in her home and taken to hospital, where she was pronounced dead. The prosecution emphasised the medical evidence of PW7, who concluded that the deceased died from severe head injuries caused by blunt force trauma. It submitted that the external bruises on the deceased’s face, neck, and chest demonstrated that she had been assaulted. 4. The prosecution contended that the accused’s defence failed to account for the incriminating circumstances, particularly the fact that he was the last person seen with the deceased while she was still alive. They argued that the accused’s assertion that the deceased had visited her mother’s home was not put to the prosecution witnesses during cross-examination and was therefore an afterthought. They further submitted that there was no evidential link between the deceased’s alcohol consumption and the fatal injuries established by the post-mortem examination. 5. On malice aforethought, the prosecution relied on section 206 of the Penal Code, submitting that the nature and extent of the deceased's injuries, including scalp hematoma and cerebral oedema, demonstrated an intention to cause death or grievous harm. They argued that the severity of the head injuries was sufficient to establish the requisite malice aforethought. 6. Accordingly, the prosecution maintained that all the ingredients of the offence of murder had been proved beyond reasonable doubt and urged the court to find the accused guilty as charged and to impose the appropriate sentence. 7. The defence filed submissions dated 29th April 2026, contending that the prosecution failed to prove the charge of murder beyond reasonable doubt. Relying on JOO v Republic (2015) eKLR, counsel emphasised that although murder is a serious offence, the prosecution bears the burden of proving every element of the charge beyond reasonable doubt. Counsel also cited Miller v Ministry of Pensions (1974) 2 ALL ER 372 on the meaning of proof beyond reasonable doubt, arguing that the prosecution's evidence fell short of the required standard. 8. Regarding proof of the offence, the defence submitted that although the deceased’s death was not disputed, the prosecution failed to establish who caused it. They argued that there were no eyewitnesses to the alleged murder and that the case rested entirely on circumstantial evidence. The defence challenged PW1’s testimony that the accused had been drinking chang’aa with the deceased on the material evening, noting that the accused denied ever being at the drinking den and maintained that PW1 was aligned with the deceased’s family. It was further submitted that the prosecution failed to call other persons allegedly present at the drinking den to corroborate PW1’s account, leaving a significant gap in the evidence. 9. The defence further argued that the remaining prosecution witnesses merely responded after hearing screams and did not witness the events that led to the deceased’s injuries or death. 10. In support of the defence case, counsel submitted that the accused gave a consistent account of his movements on the material day, explaining that he left for work in the morning, returned home in the evening to find the deceased absent, retired to bed, and was later awakened by his daughter after their dog barked during the night. According to the defence, the accused and his daughter discovered the deceased lying beneath an avocado tree, sought assistance from neighbours, and took her to hospital. Counsel further submitted that this account was corroborated by the evidence of DW2, the accused’s daughter, and that the prosecution failed to rebut that evidence. 11. The defence also challenged the post-mortem evidence, contending that two post-mortem reports had been produced in court. They argued that the doctor’s report did not include the names of the persons who identified the deceased’s body, whereas the investigating officer’s report did. According to the defence, this discrepancy suggested the existence of two separate post-mortem reports and cast doubt on the integrity of the medical evidence. Counsel further submitted that, under sections 48 and 50 of the Evidence Act, the investigating officer was not competent to produce a post-mortem report, and urged the court to disregard the report produced by the police. It was also argued that the omission of the identifiers’ names from the doctor’s copy raised the possibility that the post-mortem may have been conducted on the wrong body. 12. In conclusion, the defence submitted that the prosecution had failed to discharge its burden of proof beyond reasonable doubt and urged the court to acquit the accused and to unconditionally discharge him. **ANALYSIS AND DETERMINATION** 1. This court is to determine whether the ingredients of the offence of murder, as provided for under Section 203 of the Penal Code, have been proved beyond reasonable doubt by the prosecution. 2. Section 203 of the Penal Code, Chapter 63 of the Laws of Kenya, under which the accused person is charged, provides as follows: - Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 1. The provision sets out the elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt. The Court of Appeal in Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) set out the elements of the offence of murder 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.” **Whether the death and cause of death were proved** 1. The prosecution proved that Naomi Celestine died and that her death resulted from severe head injuries caused by blunt force trauma. The post-mortem evidence from PW7 established the cause of death as severe head injury secondary to blunt force trauma, with bruises on the face, neck and chest, scalp hematoma, cerebral oedema and massive internal bleeding. The defence did not dispute the fact of death. Consequently, the first ingredient of the offence of murder was proved. **Whether it was the accused who unlawfully inflicted the fatal injuries** 1. There was no direct eyewitness to the assault. The prosecution's case therefore rests entirely on circumstantial evidence. The principles governing circumstantial evidence are now settled. In Sawe v Republic [2003] KECA 182 (KLR), the Court of Appeal held that: “In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of Iris guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden, which never shifts to the party accused. … The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this Court made clear in the case of Mary Wanjiku Gichira v Republic (Criminal Appeal No 17 of 1998) (unreported), suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence.” 1. In *Abanga alias Onyango v Republic,* Cr. App. No. 32 of 1990, the Court of Appeal held that: - “It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” 1. The prosecution also invoked the doctrine of ‘last seen alive’. The Court of Appeal in Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR) reiterated that where an accused is the last person seen with the deceased, an evidential burden may arise, requiring an explanation, provided the prosecution has first established the surrounding circumstances beyond reasonable doubt. 2. PW1 testified that on the evening before the deceased’s death, the accused and the deceased were together drinking chang’aa before leaving at about 8.00 p.m. PW1 observed no quarrel or disagreement between them. 3. PW2 and PW3 responded to screams at about 3.00 a.m. and found the accused crying and seeking assistance for the deceased, who was still alive but unconscious. Both witnesses confirmed that the accused accompanied the deceased to hospital. Neither witnessed any assault nor observed any quarrel between the couple. Both further testified that the deceased habitually consumed alcohol and that they had never seen the accused assault her. 4. PW4, a pharmacist, similarly found the deceased alive though in critical condition. He observed no visible injuries upon his limited examination and equally did not witness any assault. 5. PW5 asserted that the accused frequently quarrelled with the deceased and believed the accused had killed her. However, his opinion was not based on personal observation but on inference drawn after learning of the death. During cross-examination, he admitted that he had not been present on the night of the incident. His evidence on the alleged assault therefore amounts to opinion rather than direct evidence. 6. The evidence of PW6 is particularly significant. The accused voluntarily presented himself at Kongit Police Post and reported the incident. He stated that he had found his wife lying outside near an avocado tree with injuries, and that he had taken her to hospital. PW6 confirmed that the accused was initially detained not because investigations had implicated him, but because an angry crowd threatened to lynch him. Such conduct is generally inconsistent with that of a person attempting to evade detection, although it is not, by itself, conclusive of innocence. 7. The medical evidence conclusively established that the injuries were inconsistent with an accidental fall. PW7 rejected the suggestion that rolling on rocky terrain could have produced the pattern of injuries and explained that such an accident would ordinarily result in injuries to both the anterior and posterior aspects of the body and fractures, neither of which was present. His opinion that death resulted from blunt force trauma remained unshaken. 8. PW8, the investigating officer, relied entirely on circumstantial evidence. He recovered a blood-stained bedsheet from the accused's house but conceded that no forensic examination was conducted to determine whose blood was on the sheet. Likewise, although a wristband was recovered and a sketch plan prepared, neither was produced in evidence. No DNA analysis, fingerprint evidence, photographs of the scene, or other scientific evidence connected the accused with the fatal assault. PW8 further admitted that the prosecution’s case was based on circumstantial evidence and that the deceased’s child, who might have provided material evidence, was not called. 9. This court acknowledges the principle stated in *Bukenya & others v Uganda* [1972] EA 549, that: - “(i) The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent. (ii) That Court has right and the duty to call witnesses whose evidence appears essential to the just decision of the case. (iii) Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tendered to be adverse to the prosecution.” 1. Although the prosecution was not obliged to call a multiplicity of witnesses, the absence of evidence from the child, who was present in the home, together with the failure to subject the bedsheet to forensic examination, left significant gaps in the evidence. 2. The defence presented a coherent account through both DW1 and DW2. Their evidence was that the deceased had not returned home before they went to bed; that they discovered her lying outside beneath an avocado tree after the family dog barked during the night; that neighbours were summoned immediately; and that the accused took her to hospital before reporting the matter to the police. DW2 consistently maintained that her father never left the house during the night before she awakened him. Her testimony remained substantially unshaken during cross-examination. 3. The prosecution argued that the accused was the last person seen with the deceased. However, the evidence does not firmly establish that proposition. PW1 merely confirmed that the couple left the drinking den together. The accused’s evidence, supported by DW2, was that the deceased never returned home before bedtime. Importantly, no witness saw the deceased enter the accused’s house after leaving PW1’s home. The prosecution therefore failed to establish the factual foundation required for the application of the ‘last seen’ doctrine. 4. The prosecution also relied on the accused’s failure to explain the deceased’s injuries. However, the burden of proof never shifts to the accused. As stated by the Court of Appeal in Woolmington v DPP [1935] AC 462, the burden remains throughout with the prosecution to prove guilt beyond reasonable doubt. **Whether malice aforethought was established** 1. Section 206 of the Penal Code provides that malice aforethought may be inferred from the nature of the injuries inflicted. The injuries sustained by the deceased were undoubtedly severe, and, had the identity of the assailant been proved, they would readily establish malice aforethought. The court in Republic v Tubere S/O Ochen [1945] 12 EACA 63 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.” 1. Nevertheless, proof of malice aforethought cannot substitute for proof of identity. Before the court can consider whether the accused acted with malice aforethought, it must first be satisfied beyond reasonable doubt that he inflicted the injuries. That foundational fact has not been established. 2. The discrepancies between the two copies of the post-mortem report do not, in this court’s view, invalidate the medical evidence. PW7 satisfactorily explained that the differences arose from the use of carbon-copy forms, and both reports consistently recorded the same injuries and the cause of death. 3. Accordingly, this court finds that the charge of murder contrary has not been proved beyond reasonable doubt. The accused, Wycliffe Kimtai Kemei, is found not guilty of the offence of murder and is acquitted. He is free to go unless otherwise lawfully held. **Dated, Signed** and **Delivered** **virtually** this **30th** day of **July 2026.** **R.E. OUGO** **JUDGE** **In the presence of: -** **Wycliff Kimtai Kemei/ Accused** **Miss Matere for the State - Absent** **Mr. R. Wamalwa For the Accused** **Wilkister/ Minah C/A**