https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11632

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **CRIMINAL CASE NO. 52 OF 2022** | | | | --- | --- | | **REPUBLIC…………………………………………………** | **PROSECUTION** | | **VERSUS** | | | **1. JOSEPHINE MOKEIRA KENNEDY…………………** | **1ST ACCUSED** | | **2. FAITH NYANGARA OBURE………………………....** | **2ND ACCUSED** | **JUDGMENT** # A. INTRODUCTION 1. The two accused persons herein, Josephine Mokeira Kennedy and Faith Nyangara Obure, are charged jointly with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on 20th January 2019 at Gakero village in Bomachoge, within Kisii County, they jointly murdered Kennedy Obure (the deceased). 2. The 1st accused was the deceased’s wife, while the 2nd accused was his adult daughter. They denied the charge. The prosecution called four witnesses. Upon being placed on their defence, each accused elected to give sworn evidence. . # B. THE PROSECUTION CASE 3. PW1, Michael Onyimbo Obure, was the deceased’s younger brother and neighbour. On the morning of 20th January 2019, he was harvesting maize on land adjoining the deceased’s homestead. He saw the deceased at about 8.00 a.m. and again at about 10.00 a.m. when the deceased came alone to collect maize stalks for his cows. The deceased then returned towards his homestead. 5. PW1 completed his harvesting at about noon and briefly went to assist his mother. At about 1.00 p.m, he heard screams from the direction of the deceased’s home. He rushed there and found the accused persons and other neighbours screaming. He was informed that the deceased was in the bathroom. 6. The deceased was naked, kneeling and leaning against the iron-sheet wall of the bathroom. PW1 moved him outside because he initially thought that he had fainted. He noticed a depression or injury on the head and blood at the penis. He and other villagers placed the deceased under a shade and later dressed him. PW1 alerted the police and accompanied the body, together with the 2nd accused, to Ogembo Police Station and thereafter to Hema Hospital Mortuary. 7. PW1 testified that he was working approximately 20 to 50 metres from the deceased’s home on the material day he but heard no commotion. He also did not see either accused assault the deceased, did not see any weapon at the scene, and had never heard of any disagreement between the deceased and the accused persons. According to him, the deceased had cordial relations with his family. 8. PW2, Corporal Lilian Nyaboke, was among the officers who visited the scene at about 4.30 p.m. The deceased’s body had already been removed from the bathroom and placed under a shade. Members of the public had removed parts of the iron-sheet bathroom while extricating the body, and the scene had therefore been disturbed before police arrival. 9. PW2 observed a cut wound near the deceased’s left ear, but it appeared to have been cleaned. The 2nd accused informed the officers that the deceased had gone to bathe and that she found his body when she went to collect soap from the bathroom. PW2 found the 2nd accused and PW1 at the home. The 1st accused was not present when PW2 arrived. No forensic samples were collected in PW2’s presence and she said she was not aware of any DNA analysis. 10. PW3, Dr Benjamin Ndilibe, conducted the post-mortem examination on 22nd January 2019. The deceased was a 49-year-old man. Externally, he had multiple bruises on the hands and elbows, which the doctor described as defence injuries, as well as bruises on the chest and left side of the abdomen. There was clotted blood on the urethra. 11. Internally, the deceased had fractures of the 5th, 6th and 7th ribs on the left side and the 5th rib on the right. He also had deep lacerations on the left side and a swollen brain. Dr Ndilibe formed the opinion that death was caused by multiple injuries due to blunt-force trauma. He classified the manner of death as homicide. The post-mortem report was produced as Prosecution Exhibit 1. 12. PW4, Inspector Daniel Mutua, co-investigated the matter with Corporal Albert Okumu. He testified that the 2nd accused reported the death at Ogembo Police Station on 20th January 2019. Following the post-mortem findings, the investigators revisited the scene on 24th January 2019 and prepared a sketch plan, which was produced as Prosecution Exhibit 2. 13. PW4 candidly stated that the investigators found no witness who could testify as to what had happened to the deceased and therefore recommended a public inquest. Following the inquest, the trial court recommended that the accused persons be charged with murder. 14. According to PW4, the accused persons were the only people who lived with the deceased and were therefore the persons who could explain what happened. On cross-examination, however, he confirmed that there was no eyewitness, no murder weapon was recovered, the accused persons had a cordial relationship with the deceased, the 1st accused was not on the run, and the 2nd accused was the person who reported the matter. He further accepted that the 1st accused said she had been at the market at the material time. # C. THE DEFENCE CASE 15. The 1st accused, Josephine Mokeira Kennedy, testified as DW1. She stated that she had been unwell and had received treatment at Lenmek Hospital a few days before the incident. She told this court that on the material morning, she prepared breakfast for the deceased and the family. She later left for the market and, upon feeling unwell, went to hospital before returning home. 16. On reaching home, she found the 2nd accused at home and ate the bananas the 2nd accused had prepared. The 2nd accused asked whether she had brought soap. When the 1st accused said she did not know where the soap was, the 2nd accused went to the bathroom to look for it and returned asking what had happened to her father. The 1st accused went to the bathroom, found the deceased dead and screamed. She denied killing him and stated that they had not quarrelled. 17. The 2nd accused, Faith Nyangara Obure, testified as DW2. She stated that she, the deceased, the 1st accused and her child had breakfast together. She later went to the farm and thereafter worked on a scheme of work which the deceased, a teacher, had given her. She said that she had a house was about five metres from her parents’ house. 18. She further stated that the 1st accused went to the market. She prepared lunch for her child and herself. When the 1st accused returned, she also ate. The later on went to the bathroom to look for soap and found the deceased naked and kneeling, with a head injury. She raised an alarm, reported the matter and accompanied the body to the police station and mortuary. She denied killing the deceased and stated that the homestead had no perimeter wall and could be accessed from different points. 19. On cross-examination, the 2nd accused admitted that she had been within the compound before the body was discovered and had not heard any noise. She stated that the bathroom had a basin containing water and that she and the 1st accused were the only adults present when the body was discovered. Her children were aged about seven and three years. # D. THE DEFENCE SUBMISSIONS 20. In their written submissions dated 26th February 2026, learned counsel for the accused argued that the prosecution had established the death and its cause cause but had not linked either accused to the fatal injuries. Counsel emphasized that there was no eyewitness, no recovered weapon, no evidence of motive or prior conflict, and no forensic evidence connecting the accused persons to the assault. 21. Counsel further submitted that the accused persons’ presence at or near the homestead, without more, could not satisfy the strict test for circumstantial evidence, and that the burden of proof remained throughout with the prosecution. The Court was urged to acquit both accused persons. # E. ISSUES FOR DETERMINATION 22. Section 203 of the Penal Code defines murder as the causing of the death of another person by an unlawful act or omission with malice aforethought. The Court of Appeal has consistently stated that the prosecution must prove: the fact and cause of death; that the death resulted from an unlawful act or omission attributable to the accused; and malice aforethought. See Mola & another v Republic (Criminal Appeal No. 125 of 2017) [2024] KECA 1652 (KLR). 23. The issues for determination are therefore: (i) whether the death of the deceased and its cause were proved; (ii) whether the prosecution proved that either or both accused persons caused the death; and (iii) if causation was proved, whether the act was accompanied by malice aforethought. # F. ANALYSIS AND DETERMINATION # (i) Death and cause of death 24. The fact of death was proved by PW1 and PW2, who saw and handled the deceased’s body, and by PW3, who performed the post-mortem examination. The medical evidence established extensive blunt-force injuries involving the head, chest, abdomen, limbs and ribs. I accept Dr Ndilibe’s opinion that the deceased died from multiple injuries due to blunt-force trauma. 25. The distribution and severity of the injuries, including defence injuries and multiple rib fractures, are inconsistent with an ordinary accidental fall in a bathroom. I am satisfied that the deceased was unlawfully assaulted by a person or persons and died from the injuries sustained. The first element of the offence is proved beyond reasonable doubt. 26. The doctor’s medical classification of the death as homicide, however, did not identify the perpetrator. It proved the nature and cause of death, but it did not connect either accused person to the fatal assault. **(ii) Whether the accused persons caused the death** 1. There was no eyewitness to the assault. No weapon was recovered, and no forensic evidence directly linked either accused person to the fatal injuries. The prosecution’s case therefore rests entirely on circumstantial evidence. 2. It is settled that a conviction may properly be founded on circumstantial evidence. Such evidence must, however, satisfy a strict legal test. In **Abanga alias Onyango v Republic**, Criminal Appeal No. 32 of 1990, the Court of Appeal held that the circumstances relied upon must be firmly established, must unerringly point towards the guilt of the accused, and must cumulatively form a chain so complete that there is no escape from the conclusion that the offence was committed by the accused and no other person. 3. Similarly, in **Sawe v Republic (Criminal Appeal No. 2 of 2002) [2003] KECA 182 (KLR)**, the Court emphasized that the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than guilt. Any co-existing circumstance capable of weakening or destroying the inference of guilt must be taken into account. 4. The burden of proof remained throughout upon the prosecution. Sections 107 and 108 of the Evidence Act, together with the principle in **Woolmington v Director of Public Prosecutions [1935] AC 462**, require the prosecution to prove every essential ingredient of the offence beyond reasonable doubt. The accused persons were not required to prove their innocence. 5. Though the accused persons were charged jointly, the evidence against each of them must be considered separately. Criminal responsibility is personal unless the prosecution establishes a common intention within the meaning of section 21 of the Penal Code. **(a) The case against Accused No. 1** 1. Accused No. 1 testified that she was at home during the morning but later left for the market. She stated that, because she was unwell, she also went to hospital before returning home shortly before the deceased’s body was discovered. 2. PW4 acknowledged that Accused No. 1 had stated during the investigations that she had been at the market at the material time. The prosecution did not call any evidence from the market, the hospital or any other source to controvert that account. 3. PW1 testified that both accused persons were among those screaming when he arrived at the homestead at about 1.00 p.m. That evidence placed Accused No. 1 at the scene after the alarm had been raised. It did not establish that she had been present when the deceased was assaulted. 4. No witness saw Accused No. 1 with the deceased during the critical period between approximately 10.00 a.m. and 1.00 p.m. No bloodstained clothing, weapon, forensic material or other incriminating object was recovered from her. There was equally no evidence of prior hostility, motive, concealment, flight or any conduct suggesting consciousness of guilt. 5. To the extent that the account of Accused No. 1 amounted to an alibi, she bore no legal burden to prove it. In **Kiarie v Republic [1984] KLR 739**, the Court of Appeal affirmed that an accused person who raises an alibi does not thereby assume the burden of proving that alibi. It remains the duty of the prosecution to displace it. 6. The mere fact that Accused No. 1 was the deceased’s wife and ordinarily lived in the homestead is not proof that she participated in his death. The prosecution also failed to prove that Accused No. 1 acted pursuant to a common intention with Accused No. 2. There was no evidence of an agreement, shared purpose, prior plan or concerted conduct between them. 7. I therefore find that the circumstantial evidence against Accused No. 1 does not meet the required legal threshold. Her presence at the homestead after the body was discovered and her relationship with the deceased raise no more than suspicion. 8. Accordingly, I find that the prosecution failed to prove beyond reasonable doubt that Accused No. 1 caused, participated in or otherwise shared a common intention to cause the death of the deceased. **(b)The case against Accused No. 2** 1. The position of Accused No. 2 is materially different. By her own sworn testimony, she remained within the homestead during the period within which the deceased sustained the fatal injuries. She said that her house was approximately five metres from her parents’ house, and she stated that she spent the material period working on a scheme of work and preparing lunch for herself and her child. 2. PW1 last saw the deceased alive at about 10.00 a.m. The deceased was alone when he collected maize stalks and thereafter returned towards his homestead. The alarm was raised at approximately 1.00 p.m. The medical evidence established that, by then, the deceased had sustained multiple severe injuries to the head, chest, abdomen, ribs and limbs. 3. The relevant period was therefore confined to approximately three hours. During that period, Accused No. 2 was the only other adult shown by the evidence to have remained continuously within the immediate homestead. Accused No. 1 had left for the market, while the children present were aged approximately seven and three years. 4. The Court is alive to the evidence that the homestead had a kei apple fence, was near a public road and could be accessed from different points. The theoretical possibility that another person could have entered the compound must, however, be distinguished from a reasonable hypothesis arising from the evidence. 5. No witness testified to seeing any stranger enter or leave the homestead during the relevant period. There was no evidence of forced entry, theft, confrontation with an outsider or any other circumstance suggesting the presence of an intruder. PW1 was working on adjoining land approximately 20 to 50 metres away and did not observe any unusual activity. 6. The injuries sustained by the deceased were extensive. They included multiple rib fractures, deep lacerations, bruises to several parts of the body, a swollen brain and injuries which the doctor described as defence injuries. The nature and distribution of those injuries demonstrated a sustained and violent assault rather than a single accidental blow. 7. Accused No. 2 was within a few metres of the place where the deceased was found. She nevertheless stated that she neither heard nor noticed anything unusual throughout the material period. Her evidence concerning precisely what she was doing during that period and the sequence preceding the discovery of the body was not entirely consistent. 8. The Court does not treat those inconsistencies in isolation as proof of guilt. Nevertheless, when considered together with her continuous presence, her immediate proximity to the bathroom, the narrow period within which the assault occurred and the absence of any evidential basis for the intervention of a third party, they materially weaken her explanation. 9. Section 111(1) of the Evidence Act provides that where a fact is especially within the knowledge of an accused person, the burden of explaining that fact lies upon that person. The provision does not relieve the prosecution of its primary burden under section 111(2)(a), nor does it permit a conviction merely because an accused person has failed to explain an offence. 10. In the instant case, the prosecution first established the foundational circumstances independently of Accused No. 2’s defence: the deceased returned alive to the homestead; he was violently assaulted within a limited period; Accused No. 2 remained within the immediate compound throughout that period; and she was the first person who claimed to have discovered him in the bathroom. 11. Those circumstances called for a reasonable explanation of facts peculiarly within the knowledge of Accused No. 2. Her general assertion that she remained occupied in her house, heard nothing and knew nothing of the assault did not, when tested against the proved circumstances, provide a reasonable explanation. 12. I have also considered the fact that Accused No. 2 raised the alarm, reported the death to the police and accompanied the body to the police station and mortuary. That conduct is relevant and must be weighed in her favour. It is not, however, necessarily inconsistent with guilt and does not displace the otherwise complete chain of circumstantial evidence. 13. The absence of an established motive is equally not decisive. Motive is not an essential ingredient of murder where. Its absence is merely one circumstance to be considered together with the rest of the evidence. 14. I have considered the evidence on record cumulatively and I find the following circumstances firmly established: a. The deceased was alive at approximately 10.00 a.m. and returned alone towards his homestead; b. He was found fatally injured in the bathroom at approximately 1.00 p.m.; c. The fatal injuries were inflicted within that limited period; d. Accused No. 2 remained within the immediate homestead throughout the material period; e. Her residence was only about five metres from the place where the deceased was found; f. No evidence established the presence or intervention of an outsider during the material period; g. Accused No. 1 had left the homestead and her account was not displaced by the prosecution; and h. The explanation offered by Accused No. 2 did not reasonably account for the proved circumstances. 1. I am satisfied that these circumstances form a complete chain which is incompatible with the innocence of Accused No. 2 and incapable of reasonable explanation upon any other hypothesis than that she was the person who inflicted the fatal injuries upon the deceased. 2. I therefore find that the prosecution proved beyond reasonable doubt that Accused No. 2 unlawfully caused the death of Kennedy Obure. **(iii) Whether malice aforethought was proved** 1. Section 206 of the Penal Code sets out the circumstances from which malice aforethought may be inferred. They include an intention to cause death or grievous harm and knowledge that the act causing death would probably result in death or grievous harm. 2. In **Republic v Tubere s/o Ochen [1945] 12 EACA 63**, the Court identified the nature of the weapon used, the manner in which it was used, the part of the body targeted, the severity of the injuries and the conduct of the accused as relevant considerations in determining whether malice aforethought was established. 3. In this case, the deceased suffered numerous injuries to several vulnerable parts of his body, including the head, chest and abdomen. Several ribs were fractured, the brain was swollen, and the deceased sustained deep lacerations and defence injuries. 4. The multiplicity, severity and distribution of the injuries demonstrate that considerable force was repeatedly applied. The assault was not accidental or spontaneous in the sense of involving a single unintended blow. Whoever inflicted those injuries must have intended either to cause death or, at the very least, grievous harm. 5. I consequently find that malice aforethought was proved beyond reasonable doubt against Accused No. 2. **Disposition** 1. In respect of **Accused No. 1, Josephine Mokeira Kennedy**, I find that the prosecution failed to prove beyond reasonable doubt that she caused or participated in the death of Kennedy Obure. 2. I accordingly return a verdict of **not guilty** in respect of Accused No. 1 and acquit her of the offence of murder contrary to section 203 as read with section 204 of the Penal Code pursuant to section 322(1) of the Criminal Procedure Code. 3. Accused No. 1 shall be set at liberty forthwith unless she is otherwise lawfully held. If she is on bond, her bond is hereby discharged and any surety is released from further obligation. 4. In respect of **Accused No. 2, Faith Nyangara Obure**, I find that the prosecution proved beyond reasonable doubt that she unlawfully caused the death of Kennedy Obure with malice aforethought. 5. I therefore find Accused No. 2 **guilty of murder contrary to section 203 as read with section 204 of the Penal Code**, and convict her accordingly pursuant to section 322(2) of the Criminal Procedure Code. 6. The matter shall be mentioned for mitigation and sentencing after receipt and consideration of a pre-sentence report. 7. Orders accordingly. **T. A ODERA.** **JUDGE** **21.7.26** **DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 21ST DAY OF JULY 2026 IN THE PRESENCE OF:** **Mr Koima for the State.** **Ms Nduhukire for the Accused Persons.** **Court Assistant: Kipchirchir.**