https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11305

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **CRIMINAL CASE (MURDER) NO. E018 OF 2022** **REPUBLIC…………………………………..………..….. PROSECUTOR** **VERSUS** **SIWA WAFULA KHISA………………………………………. ACCUSED** **JUDGMENT** 1. Siwa Wafula Khisa, the accused, is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the night between 15th and 16th June 2022 at Mbakalo Location in Bungoma North Sub-County within Bungoma County, murdered Mark Simiyu Makhanu. 2. The accused denied the charge. The prosecution called ten (10) witnesses to prove its case. When put on his defence, the accused gave sworn evidence and called one witness, Samuel Mukhebi Khisa (DW2). **PROSECUTION CASE** 3. Gideon Litoyo Karani (PW1), a farmer and neighbour of the accused, testified that he knew both the accused and the deceased. The deceased, Mark Simiyu Makhanu, was his close friend. On 16th June 2022 at about 6.00 a.m., PW1 was on his way to work when he met the accused and the deceased walking together. The accused was holding the deceased by the shoulder. The deceased appeared unwell, with injuries to the forehead, near the right ear, and at the back of the head, and looked as though he had been beaten. 4. PW1 asked the accused where he had found the deceased. The accused left the deceased and went away. While he was still there, Protus, the accused's brother, asked the deceased where he had come from. The deceased said that he had drunk alcohol with the accused until about 11.00 p.m. and that the accused had asked him to sleep at his house because it was late. The accused had beaten him throughout the night. PW1 later learnt that the deceased had died. 5. In cross-examination, PW1 accepted that he did not see the accused assault the deceased. He also accepted that he did not immediately raise an alarm and that certain matters in his oral evidence were not recorded in detail in his written statement. He maintained that he saw the accused with the injured deceased at about 6.00 a.m. and that the deceased was alive and able to speak. In re-examination, he stated that Protus was present when the deceased gave an account of where he had spent the night. 6. Fred Mahino Sirandofu (PW2), a village elder at Kananachi Village, testified that on the morning of 16th June 2022 he received a telephone call informing him that a man had been found badly injured. He went to the scene and found the deceased sitting by the road. The deceased had injuries to the head, neck and hands and was in poor condition. Other persons, including Gideon and Protus, were present. 7. PW2 testified that the deceased told him he had been drinking alcohol at the accused's house, that the accused had locked him inside the house and assaulted him. The deceased was first taken to the Police Post to make a report and then to hospital. PW2 observed marks on the path that appeared to show that a person had been dragged from the direction of the accused's house towards the place where the deceased was found. 8. PW2 further testified that on the night of 17th June 2022, the accused telephoned him while drunk and asked why they had implicated him in the deceased's death. PW2 advised him to report to the area chief. On 18th June 2022, police officers entered the accused's house. PW2 stated that there were blood stains near the door and inside the house, and that the police recovered trousers, blankets, a panga and a hammer. 9. During cross-examination, PW2 admitted that he had not witnessed the assault. He maintained that the deceased was conscious, spoke to him, and identified the accused as the person who had assaulted him. In re-examination, he stated that he had understood the accused's telephone call to relate to the allegation that the accused had killed the deceased. 10. Jeremiah Sichangi Makokha (PW3), a brother of the deceased, testified that on 16th June 2022 he received information that his brother had been injured and admitted to hospital. He went to hospital at about 2.00 p.m. and found the deceased unable to speak. He observed injuries to the head, hands and back. The deceased died the following day. PW3 later identified the body for the post-mortem examination. In cross-examination, he confirmed that he had not witnessed the incident that caused the injuries. 11. Protus Bakasa Webuye (PW4), a younger brother of the accused, testified that on the morning of 16th June 2022 he was working in a shamba when he was informed that an injured person had been found near the road. He went there and found the deceased lying in a poor condition. The deceased had injuries to the head and other parts of the body, and his clothes were dirty. PW4 sought assistance from the village manager and others. The deceased was later taken to the police post and the hospital. 12. PW4 testified that he asked the deceased who had assaulted him, and the deceased said it was Siwa, the accused. PW4 later went to hospital and learnt that the deceased had died. During the investigation, he identified a pair of blue trousers and a pair of black trousers as belonging to the accused. He stated that he knew the accused's clothes because the accused was his brother and had, on occasion, given him clothes to wear. 13. During cross-examination, PW4 admitted that he did not witness the assault and detected no smell of alcohol on the deceased. He maintained that the deceased named the accused as his assailant. During re-examination, PW4 stated that he had no grudge against the accused and that he had reported what the deceased told him. 14. Moses Ngaira Liundi (PW5) testified that on 16th June 2022 at about 6.00 a.m., he was walking to Gideon Karani's home so they could go to work. At a road junction, he saw two persons about thirty meters away. One was holding and pulling the other. He recognized the accused as the person pulling the deceased. It was morning, there was sufficient light, and PW5 knew both men. When the accused saw PW5 and the persons with him, he left the deceased and ran towards a maize plantation. 15. PW5 went to the deceased. The deceased had injuries to the head, neck, back and legs and was in serious condition. PW5 testified that the deceased said he had been in the accused's house, that they had consumed alcohol, that a disagreement had arisen and that the accused had assaulted him. PW5 and others assisted the deceased to Nyange Police Post and later to Naitiri Hospital, where he was admitted. PW5 remained with him for part of his treatment. The deceased died the following day. 16. PW5 stated that he later accompanied police officers to the accused's home. He saw stains in the house and items recovered during the search. In cross-examination, he maintained that he saw the accused holding and pulling the injured deceased at about 6.00 a.m. and that the accused left upon seeing them. He denied having any grudge against the accused. 17. Michael Wafula Makhanu (PW6), a village manager and the deceased's brother, testified that on 16th June 2022 at about 7.00 a.m. he was called and informed that his brother had been found seriously injured. He went to the scene and found the deceased lying on the ground. The deceased had injuries to the head, neck and legs, including a deep cut to the head. 18. PW6 testified that people at the scene told him the deceased and the accused had been drinking together. The deceased also told him that the accused had assaulted him. PW6 went to the accused's house and found the door locked. He saw what appeared to be blood near the door and a trail from the house towards the road. He assisted in taking the deceased first to Nyange Police Post and then to Naitiri Hospital. The deceased was admitted but died the next morning. 19. PW6 returned to Nyange Police Post and recorded a statement. He later identified the deceased's body and the accused's house in photographs. In cross-examination, PW6 admitted he did not witness the assault. He maintained that the deceased named the accused as the person who assaulted him. 20. On re-examination, PW6 stated that the road was a narrow village path and that not all details from the oral testimony were included in his statement. He maintained that the deceased was conscious and spoke to him before being taken to hospital. 21. No. 70715, Sergeant Joseph Gatimu (PW7) testified that he was attached to DCI Bungoma North at the material time and took over the investigation after the deceased had been assaulted and taken to hospital. The deceased died on 17th June 2022. On 18th June 2022, PW7 visited the scene where the deceased had been found. He observed stains and marks along the path leading to the accused's house. 22. PW7 testified that the accused's house was locked. The officers entered the house and found stains on the floor and around the sleeping area. They recovered two trousers, blankets, a panga and a hammer. Photographs were taken. PW7 recorded witness statements, attended the post-mortem examination, and later arrested the accused after he was traced at another place. The accused was charged with murder. 23. During cross-examination, PW7 accepted that the matter was initially reported as an assault, that he did not personally take the photographs, and that there were gaps in the inventory and in the documentation of the exhibits. He also admitted that no Government Analyst gave evidence and that no forensic report was produced identifying the stains on the recovered items. **24**. On re-examination, PW7 stated that the photographs accurately depicted the scene and that the witnesses had identified the accused and his house. He maintained that the investigation established that the deceased had been taken from the accused's house to the place where he was found. **25**. No. 110883 PC Geoffrey Maina (PW8), a crime scene investigator, testified that he received twenty-two photographs from the investigating team, processed them, and prepared a certificate of photographic evidence. He produced the photographs and the certificate as evidence. **26**. During cross-examination, PW8 admitted that he had neither taken the photographs nor been at the scene. He could not, from personal knowledge, state when each photograph was taken or identify the persons and substances depicted. He stated that his role was limited to processing and certifying the images supplied to him. **27**. Dr. Ruben Nyongesa Kerre (PW9), a medical officer, testified that he performed the post-mortem examination of the body of Mark Simiyu Makhanu on 25th June 2022. The deceased was an African male, about fifty years of age. The body was identified by Rosemary Nasimiyu and Jeremiah Makokha. He found defensive injuries on both hands, an injury to the left shoulder, subcutaneous hematoma on the front and back of the neck consistent with strangulation, an unstable base of the skull, an abrasion on the scalp, and bleeding in the brain extending towards the ears. He formed the opinion that the cause of death was a critical head injury associated with strangulation and physical assault by a blunt object. He produced the post-mortem report. 29. In cross-examination, PW9 accepted that samples of blood, nails and hair had been taken for analysis, but no Government Analyst's report had been produced. He explained that the neck injuries were consistent with strangulation and that the head injury was severe and fatal. He maintained that a medical officer was qualified to conduct the post-mortem examination. 30. Rosemary Nasimiyu Makhanu (PW10), a sister of the deceased, testified that she was informed that her brother had been injured and taken to hospital. She was later informed that he had died. She attended the post-mortem examination and identified the body alongside Jeremiah. In cross-examination, she confirmed that she did not witness the assault and that her evidence concerned the identification of the body and the information she received after the incident. **DEFENCE CASE** 31. The accused, Siwa Wafula Khisa (DW1), gave sworn evidence. He stated that he lived in Maitiri and worked as a casual labourer on building sites. He denied killing Mark Simiyu Makhanu. He further stated that on the night of 15th and 16th June 2022 he was in Maitiri, not in Kananachi or Mbakalo. He stated that police officers arrested him on 18th June 2022 at his place of work and later charged him with murder. 32. The accused denied drinking with the deceased or assaulting him. He stated that his house in Kananachi had been closed after he moved with his wife in 2020. He denied ownership of the panga, hammer and blankets allegedly recovered, and complained that no inventory or forensic report was produced. He also stated that the deceased and some prosecution witnesses had been drinking at another person's home, and that the police had planted the case against him. 33. In cross-examination, the accused admitted that he knew the deceased, who was his cousin, and that both of them used to drink alcohol. He also admitted that he kept a home at Kananachi and would return there to plough, weed or undertake work, although he maintained that he slept at Maitiri on the material night. He stated that his wife had moved with him. He denied carrying or dragging the deceased and denied that any prosecution witness had seen him assault the deceased. 34. On re-examination, the accused maintained that he was in Maitiri throughout the material night and that he was neither at the accused's house nor with the deceased. He further stated that he did not know who had assaulted the deceased. 35. Samuel Mukhebi Khisa (DW2), an elder brother of the accused, testified that the accused worked and stayed at Maitiri. He stated that on 18th June 2022, police officers arrived and asked the family to accompany them to the accused's house. According to him, the accused was not present. The police broke into the house and removed two blankets. DW2 further stated that he did not see the police recover a panga or a hammer. 36. DW2 testified that the accused had moved out of the home with his wife in 2020 but would return to Kananachi from time to time, particularly when doing shamba work. In cross-examination, he admitted that he had not spent the night with the accused and had not seen him on the night of 15th and 16th June 2022. He also accepted that the accused's house remained near his own home and that the accused sometimes returned and stayed in the area. He denied having any disagreement with the prosecution witnesses. **SUBMISSIONS** 37. The prosecution filed written submissions. It submitted that the death and its cause were established by the post-mortem evidence, that the deceased consistently identified the accused as his assailant, and that PW1 and PW5 placed the accused with the deceased shortly after the assault. It further relied on the trail leading to the accused's house, the items recovered there, the accused's conduct after the incident, and the nature of the injuries to establish malice aforethought. 38. The defence relied on the evidence on record. The defence's submission was that no witness saw the accused inflict the injuries; the alleged blood-stained exhibits were not scientifically analysed; the photographic evidence was processed long after the event; and the investigation contained material gaps. The defence further relied on the accused's alibi and the evidence of DW2, and urged the court to find that the prosecution case did not exclude reasonable doubt. **ANALYSIS AND DETERMINATION** 39. The accused is charged with murder under section 203 as read with section 204 of the Penal Code. Section 203 provides as follows: *“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”* 40. The prosecution must therefore prove beyond reasonable doubt that the deceased died; that his death was caused by an unlawful act or omission; that the accused caused that unlawful act or omission; and that the accused acted with malice aforethought. **Whether the death and cause of death were proved** 42. The death of Mark Simiyu Makhanu is not in dispute. PW3, PW5, PW6 and PW10 saw the deceased after he was injured and after his death. PW3 and PW10 identified the body for post-mortem examination. PW9 performed the post-mortem examination and produced the report. PW9 found defensive injuries on both hands, an injury to the shoulder, severe injuries to the head and neck, bleeding in the brain, and features consistent with strangulation. He opined that the cause of death was a critical head injury associated with strangulation and physical assault by a blunt object. I find that the death and its cause were proved. **Whether the accused caused the unlawful death of the deceased** 44. No witness testified to seeing the accused deliver the fatal blows. The prosecution's case rests on evidence of the immediate events, the deceased's statements before his death, and the surrounding circumstances. The court must consider that evidence cumulatively, not in isolation. 45. The law on circumstantial evidence is settled. In Kirimi v Republic (Criminal Appeal 105 of 2016) [2025] KECA 410 (KLR), the Court of Appeal restated that the circumstances from which an inference of guilt is drawn must be cogently and firmly established, must point unerringly to the accused, and, when taken cumulatively, must form a complete chain that excludes any reasonable hypothesis other than the accused's guilt. 46. The statements made by the deceased are admissible under section 33(a) of the Evidence Act. The section provides: *“Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead ... are themselves admissible ... when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death.”* 47. A dying declaration must be approached with caution because the maker is not available for cross-examination. In Maina & another v Republic (Criminal Appeal 339 of 2019) [2025] KECA 2296 (KLR), the Court of Appeal emphasized that the court must examine the maker's mental and physical condition, the consistency of the statement, and the independent evidence supporting it. 48. In this case, the deceased spoke to several people at different times shortly after he was found. PW2, PW4, PW5 and PW6 gave evidence that the deceased identified the accused as the person who assaulted him. PW1 heard the deceased say that he had been drinking with the accused and had spent the night at the accused's house. The accounts were not identical in every detail, but they were consistent on the material fact that the deceased had been with the accused at the accused's house and that the accused had assaulted him. 49. There is no evidence that the deceased was unconscious or incapable of speaking when he made those statements. He was able to answer questions, explain where he had been, identify his assailant, travel to the police post, and thereafter be taken to hospital. The statements were made before the dispute, and there was no evidence of a prior grudge between the deceased and the accused that would reasonably explain a false accusation. 50. The evidence was sufficiently corroborated. PW1 saw the accused holding the injured deceased by the shoulder at about 6.00 a.m. PW5 saw the accused holding and pulling the deceased and stated that the accused left towards a maize plantation when PW5 saw them. Both witnesses knew the accused before the incident, and the encounter occurred in daylight. Their evidence was based on recognition. 51. The deceased was found near the accused's home shortly thereafter. PW2, PW6 and PW7 described marks and stains leading from the place where the deceased was found towards the accused's locked house. A search of the house disclosed stains and items which the investigating officer considered relevant. The accused's own witness, DW2, accepted that the house belonged to the accused and was within the family compound. 52. The investigation had shortcomings. No Government Analyst gave evidence, and no report was produced to prove that the stains on the trousers, blankets, panga, hammer, or inside the house were the deceased's blood. PW8 did not take the photographs and could not testify to the circumstances in which they were taken. I therefore place no reliance on the recovered items as scientific proof that the deceased's blood was in the accused's house. The photographs are considered only as an illustration of the scene and not as proof of the identity of any stain. In my view, these omissions do not weaken the evidence of PW1 and PW5, who saw the accused with the deceased, or the consistent statements made by the deceased to PW2, PW4, PW5 and PW6. The deceased was still alive and repeatedly named the accused as the person who had attacked him. The accused was also seen leaving the deceased in an injured condition at dawn. 53. The accused stated that he was at Maitiri on the material night. An accused person who raises an alibi bears no burden of proving it. In Kiarie v Republic [1984] KLR 739, the Court of Appeal held that an alibi is sufficient if it introduces a doubt that is not unreasonable. The burden remains on the prosecution to displace it. 54. I have considered the alibi in light of the prosecution evidence. PW1 and PW5 saw the accused with the deceased at about 6.00 a.m. on 16th June 2022. They knew him before the incident and were not accused of any motive to falsely place him at the scene. PW5 was firm that the accused left upon seeing them. The deceased then independently identified the accused to several people. 55. DW2 did not see the accused at Maitiri or elsewhere on the material night. His evidence was limited to the accused's usual work and living arrangements. He admitted that the accused retained a house at Kananachi and returned there from time to time. Accordingly, his evidence did not establish where the accused was during the material period and did not displace the evidence of PW1 and PW5. 56. The accused's assertion that he had abandoned the house was also inconsistent with his admission that he returned to Kananachi for shamba work and with DW2's evidence that he returned periodically. The defence raised did not challenge the evidence that the deceased was seen with the accused in an injured condition, nor did it challenge the evidence that the deceased named him as the assailant. The accused’s alibi defence was an afterthought. 57. The evidence adduced proved that the deceased spent the night with the accused; he was seen at dawn, severely injured, in the accused's company; the accused left him as others approached; and the deceased repeatedly stated that the accused had assaulted him. The medical evidence was consistent with a sustained violent assault. Taken together, these circumstances form a complete chain and point to the accused as the person who caused the injuries from which the deceased died. **Whether malice aforethought was proved** 58. Section 206 of the Penal Code provides, in part, that malice aforethought is established by evidence showing an intention to cause death or grievous harm, or knowledge that the act causing death will probably result in death or grievous harm. *“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances— (a) an intention to cause the death of or to do grievous harm to any person ...; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person ...”* 59. In Rex v Tubere s/o Ochen [1945] 12 EACA 63, the court held that malice aforethought may be inferred from the weapon used, the manner of its use, the part of the body targeted, and the nature of the injuries inflicted. 60. The deceased sustained defensive injuries to both hands, severe head injuries, a neck injury consistent with strangulation, and injuries to several parts of the body. The assault was not a single accidental blow. The head and neck are vulnerable parts of the body. The nature and distribution of the injuries indicate substantial force and a sustained attack. 62. The evidence that the deceased and the accused had consumed alcohol does not, by itself, reduce the offence to manslaughter. The accused did not raise intoxication or provocation as a defence, and there was no evidence of sudden provocation capable of negating malice. A person who strangles another and inflicts the head injuries described by PW9 must know that death or grievous harm will probably result. I find that malice aforethought was proved. 63. Having considered the totality of the evidence, I find that the prosecution has proved beyond reasonable doubt that Siwa Wafula Khisa unlawfully caused the death of Mark Simiyu Makhanu with malice aforethought. The deficiencies in the forensic treatment of the recovered exhibits do not create reasonable doubt, as the conviction does not depend on them. It rests on the consistent evidence of PW1 and PW5, the surrounding circumstances and the medical evidence. 65. I find that the prosecution has proved its case beyond reasonable doubt. I find the accused, Siwa Wafula Khisa, guilty of the murder of Mark Simiyu Makhanu and, accordingly, convict him as charged. **Dated, signed and delivered virtually this 23rd Day of July 2026.** **R. E. OUGO** **JUDGE** **In the presence of:** **Siwa Wafula Khisa/ Accused** **Miss Matere - For the State** **Mr. Onkangi - For the Accused** **Filister/Minah - C/A**