https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8413

Republic v Khachina (Criminal Case E036 of 2021) [2026] KEHC 8413 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 8413 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Case E036 of 2021 JRA Wananda, J May 22, 2026 Between Republic Prosecution and Dancon Tongolo Khachina Accused Ruling 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 17/04/2022 at Milimani village, Lugari sub-County within Kakamega County, he murdered one Christine Changero. 2.The accused, who is represented by Ms. Monda as the pro bono Advocate, took plea before O. Sewe J on 6/05/2023, denied the charge and a plea of not guilty was entered. The trial then commenced before me on 6/02/2025, in which the Prosecution called 8 witnesses before closing its case on 15/12/2025. 3.PW1 was Jones Nekesa Khaemba. Led by Prosecution Counsel Mr. Okaka, she introduced herself as a distant aunt of the deceased who was also her neighbour. She narrated how on 17/04/2021 around 6.00 pm, a neighbour’s son went to her house and told her that the deceased had been slashed and had been taken to Mautuma sub-County Hospital, how she rushed to the hospital and saw the deceased who was under treatment but in a coma, how she noted that the deceased had been slashed on the head and was bleeding, how at around 8.00 pm, the deceased was transferred to the Moi Teaching and Referral Hospital (MTRH), Eldoret, and how she accompanied the deceased in the same ambulance. She then testified that the deceased however died at around 8.00 pm on the same night, and she was given the body which she returned with and took it to a local mortuary, where a post-mortem was conducted after she identified it 4.PW2 was Miriam Mugasia Keya, who introduced herself as a neighbour of the deceased both at home and at their workplaces as the deceased used to sell cereals and groceries outside the shop next to which PW2 used to work in. She narrated how on 17/04/2021 at around 5.00-6.00 pm she left her home and went to join the deceased at her place of work where they were with 2 other of their friends, making up a total of 4 of them, and how the accused suddenly emerged brandishing an axe. She then identified the accused person in Court but stated that she was not certain whether he was the one because she had been in the area for only about 5-6 months, and that she knew him because she had once brought him firewood. She narrated how when the accused appeared with the axe, he brandished it menacingly at them scaring them and they all ran inside the shop veranda at which point herself and one of the friends fell down after which they rose up and locked themselves inside the shop, but the deceased ran out of the veranda through the back gate with the accused in hot pursuit, and she then heard screams. She stated that she came out after about 5 minutes to find a crowd had formed nearby, she went there and saw the deceased lying down on the ground bleeding from the head but the accused was nowhere to be seen. She narrated how herself and others raised the deceased and put her on a motor-cycle which took her to hospital. On being shown an axe in Court, she stated that she could not confirm whether it was the one the deceased had on the fateful day. In re-examination, she stated that among the 4 of them, herself and one friend ran inside the shop while the deceased and one friend ran out to the back. 5.PW3 was Samuel Igulu Khachina, who introduced himself as the accused person’s brother. He stated that he is a boda boda rider and that on 17/04/2021 around 5.00 pm, while on his way home, he found the deceased, whom she recognized, lying by the roadside, and when he moved closer, he noticed that she was bleeding from the head and she was not speaking. He testified that he tried to assist her to rise up but she could not do so, and with the assistance of some passers-by, they put her on his motor-cycle and rushed her to Mautuma Hospital. He testified further that at the scene, a crowd had formed and it was being alleged that it is his brother who had attacked the deceased but whom he did not find at the scene, nor any weapon. 6.PW4 was Sergent Gilbert Otando, who introduced himself as a police officer formerly attached at the Lumakanda Police Station. He stated that on 18/04/2021, he was at the station when at about 0650 hours, he saw his two colleagues engaged in a conversation with the accused whom he knew as he (PW4) had previously worked at Milimani Police Post under Turbo Police Station where the accused resided. He testified that when he moved closer and inquired from the accused why he had come to the station that early, he informed PW4 that on the previous day, 17/04/2021 at about 1500 hours, he picked a quarrel with one Christine Changera, the wife of one Juma, that he got angry, picked an axe and cut her on the head, and that she fell down and died. He stated that the accused told him that he had run away to the police station because he feared for his own safety. He testified that he then phoned the Officer Commanding Milimani Police Station in Turbo within whose jurisdiction the incident had occurred, who confirmed receipt of a report of the incident made at the station and told him that they were pursuing the accused. PW4 stated that he then arrested the accused and put him in the cells awaiting further investigations, that the case was later handed over to the Directorate of Criminal Investigations (DCI) 7.PW5 was Amina Abdi, who stated that she used to live in Milimani, Mautuma at the time of the incident. She stated that the deceased was her friend with whom they used to sell cereals and plastic merchandise next to each other, that on 17/04/2021, herself, the deceased and 2 other friends, Miriam and Brenda, were seated at the veranda of the building where the deceased used to sell her stuff when at around 5.00 pm, a man emerged brandishing an axe, they all rose and ran to the back of the shop but herself, Brenda and the deceased tripped and fell down before they reached the inside, however the deceased managed to rise up and slipped away out of the compound through the gate, She testified that she, too, stood up and tried to follow the deceased while Brenda and Miriam ran inside the shop, that the assailant was however not interested in the 3 of them but only the deceased whom he ran after outside the shop through the back gate. She stated that when she reached the outside, she saw the deceased had fallen down while the assailant was walking away still holding the axe, that the deceased bleeding profusely from the head, a crowd began forming, a brother of the assailant was also there holding the deceased trying to support her, and that with the help of good Samaritans, the deceased was taken to hospital. She stated that later, the mother of the deceased informed her on phone that the deceased had died. She stated that she knew the assailant as a neighbour but only knew his first name, Dancun, whom she then identified in Court as the accused. In cross-examination, she stated that throughout the ordeal, the accused did not utter a word. In re-examination, she stated that she knew the accused person’s brother because he used to live in the home of the accused person’s family, and that she did see any weapon at the scene. 8.PW6 was Brenda Chelimo, who testified that on 17/04/2021 at around 5.00 pm, she was seated at the shop operated by the deceased with, Amina, Miriam and the deceased, when the accused suddenly appeared and approached them while brandishing an axe, the deceased screamed then stood up, upon which they all fled towards the back of the shop, the deceased slipped away outside through the back door but herself, Mariam and Amina tripped and fell down, the accused reached them and looked at them but passed them, and went through the gate while pursuing the deceased, while herself and Miriam locked themselves inside the shop. She testified that they then heard people screaming, they opened and went out through the same back gate only to see the deceased lying down on the ground bleeding, Amina was also there with the deceased but she did not see the accused, and the deceased was then taken to hospital. In cross-examination, she stated that the accused was a resident of the neighbourhod. 9.PW7 was Dr. John Kiberenge Wanambisi, who introduced himself as the doctor who performed the post-mortem on the body of the deceased on 20/04/2021. He testified that externally, the body had an obvious brain herniaton (pressure on the skull) by way of a scalp fracture on the right side of the head (parietal region) with sharp edges, and a cut on the frontal area measuring about 5 cm also with sharp edges. He stated that there were two fractures, and skull hematoma on the right side. Internally, she testified that there was a massive blood clot in the subdural region, and that he formed the opinion that the cause of death was severe head injury from a sharp object. He then produced the Report. 10.PW8 was Police Constable Francis Awiti, who introduced himself as the Investigating Officer in this case, formerly attached to the Directorate of Criminal Investigations (DCI), Lugari. He testified that he was tasked with the task of investigating the murder incident that was reported at the Milimani Police Patrol Base on 17/04/2021 to have occurred at Milimani village. He narrated that he established, during his investigations, that 4 ladies, including the deceased, were seated at the veranda of the shop operated by the deceased chatting when the accused person suddenly emerged brandishing an axe and menacingly advanced towards them causing them to scamper away for safety and dashed towards inside the shop with the accused following in hot pursuit, the deceased ran out and exited through the rear door of the shop towards the road but fell down about 40 metres away, and the accused person, upon catching up with her, hacked her on the head twice and fled from the scene. He testified that the deceased was rushed to hospital where she however died, a post-mortem was later conducted, the deceased, subsequently on 18/04/2021 resurfaced by surrendering himself at the Lumakanda Police Station, and he was then arrested and charged, on 21/04/2021 the accused led him and other police officers to the banks of River Nzoia within Mautuma location, about 4 kilometres from the crime scene, where he showed them the spot where he had thrown the axe (murder weapon), which they recovered. He then produced the axe. In cross-examination, he agreed that no forensic examination had been conducted on the axe to link it to the accused. Regarding the motive of the murder, he stated that he gathered from relatives that there was a perception that the deceased used to bad-mouth the accused for not getting married. 11.At the close of the Prosecution case, I gave the parties leave to file written Submissions on the issue of “case to answer”. However, only Prosecution Counsel Ms. Muriithi handed over in Court a copy of her Submissions dated 4/02/2026. The same, however, does not appear in the Judiciary Case Tracking System (CTS) online portal. Counsel is advised to ensure the Submissions is so filed in the CTS as now required, otherwise the same may be deemed as not forming part of the record. Prosecution Submissions 12.Prosecution Counsel Ms. Muriithi, after restating the law, submitted that the death of the accused and cause of death were established by way of the post mortem in respect to which the body of the deceased was identified by an aunt. On whether the accused persons committed the murder, she recited the evidence of witnesses, and urged that while none of the Prosecution witnesses saw the accused person inflict the injuries that caused the death of the deceased, the evidence against the accused is to a large extent “circumstantial”. She cited the case of Judith Achien’g Ochien’g v Republic, Criminal Appeal 128 of 2006, and pointed out that if the accused person intended to attack the rest of the ladies who were seated with the deceased he would have done so but the act of following them inside the shop and not attacking any other person shows that his intended victim was the deceased as he followed her outside the shop while still armed with the axe. She also highlighted the accused person’s act of surrendering at a police station far away from where the incident occurred, and his subsequent leading of police officers to the spot where they recovered the axe (murder weapon). According to Counsel, these facts form a chain so complete which can only lead to the conclusion that it was the accused who attacked the deceased and inflicted the injuries that caused her death. Regarding “malice aforethought”, she submitted that the act of the accused of arming himself with an axe, a lethal weapon, advancing towards the deceased while armed with it, and proceeding to use it to hack the deceased on the head, not once, but twice, indicated that his action was very deliberate and intended to cause grievous harm upon the deceased. She therefore urged that the Prosecution has made out a prima facie case against the accused. Determination 13.Under Section 306 of the Criminal Procedure Code, this Court is obligated, upon close of the Prosecution’s case, to rule on whether a case to answer has been established against the accused. Section 306(1) and (2) provide as follows;(1)When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit recording a finding of not guilty.(2)When the evidence of the witnesses for the prosecution has been concluded the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court on his own behalf or make unsworn statement and to call witnesses in his defence …..” 14.In view thereof, at this juncture, what the Court is called upon to do is simply to determine whether, at this stage, based on the evidence adduced by the 8 witnesses, the Prosecution has established a prima facie case to warrant the accused to be placed on his defence to answer to the charge of murder. Needless to state, the burden of proof to establish the case against the accused lies on the Prosecution throughout the trial. At no point does that burden shift to the accused reason being that an accused person’s constitutionally guaranteed rights include the right to remain silent, the right to adduce and challenge evidence, and the right not to give any incriminating evidence. However, at this stage, the Prosecution is not expected to have proved the case beyond reasonable doubt. The measure is for a prima facie case to be established. 15.At this stage therefore, the Court is only considering whether the accused person has “a case to answer”, which term was aptly described by G. Dulu J in the case of Republic vs Joseph Shitandi & Another (2014) eKLR as follows:“A case to answer is a case where if the accused keeps quiet, the evidence of the prosecution should be such that a conviction will result.” 16.The procedure in determining whether an accused has a case to answer was discussed in the case of Republic vs Samuel Karanja Kiria (2009) eKLR where J.B Ojwang J (as he then was) stated the following:“The question at this stage is not whether or not the accused is guilty as charged but whether there is cogent evidence of his connection with the circumstances in which killing of deceased occurred. That the concept of prima facie case dictates as a matter of law that an opportunity created by this court for the accused to state his own case regarding the killing. The governing law on this point is well settled ... The Court of Appeal is Criminal Appeal No. 77/2006 expressed that too detailed analysis of evidence stage at no case to answer stage is undesirable it the court is going to put accused on his defence as too much details in the trial court’s ruling could then compromise the evidentiary quality of the defence to be mounted.’” 17.The trial court is however cautioned that, at this stage, it should not make definitive findings should it conclude that the accused has a case to answer. In this regard, in Festo Wandera Mukando vs Republic [1980] KLR 103, E. Trevelyan Jstated as follows:“...... we draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the court and, and an extreme case, may require an appellate court to set aside an otherwise sound judgment. Where a submission of “no case” to answer is rejected, the court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned.” 18.Upon considering the evidence on record and testimonies of the witnesses as recounted above, and without delving deeply into the merits thereof, all I would state for now is that there is testimony believably establishing the death and cause thereof. Although there is no eye-witness to the actual attack committed against the deceased, there is testimony allegedly placing the accused at the scene of crime at the material time, and also alleged witness’ accounts of the chain of events before and after the alleged attack implicating the accused. There is also testimony alleging that the accused surrendered himself at a police station far away from his home area within which the scene of crime is situated fearing for his safety, and also alleging that he admitted to hacking the deceased because he had picked a quarrel with her. There is also testimony alleging that he later led the police to the banks of River Nzoia, about 4 kilometres from the scene of crime, where he allegedly threw the axe suspected to have been used to hack deceased, and where it was actually so recovered. The evidence on record may therefore be deemed to implicate the accused person in the commission of the attack. I will therefore only state my finding to be that the Prosecution has established that the accused has a case to answer. Needless to state, this does not at all indicate that he has been found guilty, it merely means that there is some evidence of his possible connection with the circumstances in which the death occurred, which calls upon him to be afforded an opportunity to give his side of the story, should he wish to do so. 19.The accused is therefore put on his defence. 20.Pursuant to my findings above, the accused is now informed of his rights under Article 50(2)(i) and (k) of the Constitution, and also under Section 306(2) as read with Section 307 of the Criminal Procedure Code, to address the Court. Accordingly, he is informed, and it is explained to him, that he has a right to address the Court either personally, or by his Advocate, and to give evidence on his own behalf or to give unsworn statements, and to call witnesses in his defence. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF MAY 2026……………..…..……..WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:Accused (present physically in open Court)Ms. Muriithi for the StateMs. Monda for the AccusedC/A: Rodgers Tshombe