https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9046

Republic v Kibai alias Daddy (Criminal Case E020 of 2024) [2026] KEHC 9046 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 9046 (KLR) Republic of Kenya In the High Court at Homa Bay Criminal Case E020 of 2024 JR Karanja, J June 11, 2026 Between Republic Prosecutor and Collins Onyango Kibai alias Daddy Accused Judgment 1.Pursuant to the information dated and filed herein on 11th July 2024, the accused, Collins Onyango Kibai alias Daddy was charged with murder, contrary to section 203 as read with section 204 of the Penal Code in that on the 13th June 2024 at around 1900hours at Chabera area, Rachuonyo East, Homa Bay county, he willfully and unlawfully murdered Brian Matekwa Avelia alias Waingo. 2.The case for the prosecution was that the deceased resided at the Chabera area in Homa Bay county where he lived with Sharon Awuor (PW1) as his wife. On the material date and time Sharon was in the course of her normal business of selling edibles known as “Mutura” within the local trading center when the accused and his friends approached her and purchased a piece of the edible selling at kshs.10 and after consuming it seemingly feigned having paid for it by alleging that the money had fallen under the cooking burner (jiko). 3.As at that time, the deceased had joined his wife (PW1) in carrying out their business. He noticed the accused and his friends being rude to his wife and sought to know from the accused why they were being rude. The response uttered by the accused provoked him(deceased) such that he removed his sweater and challenged the accused to a fight. This led to a brawl between them culminating in the accused stabbing the deceased in the chest with a knife in his (accused’s) possession. 4.The deceased suffered serious injury and was rushed to Nyabondo hospital where he was examined and pronounced dead. Prior to that, a trader Samuel Omondi Odongo (PW2) was at his area of business when he was attracted by frightening noises from motorcycle taxi (bodaboda)operators and saw the accused being chased by a crowd of people. He moved close to the deceased’s neighboring stalls and found the deceased commonly referred to as “Waingo” lying down on the ground in a blood stained shirt. As the crowd chased the accused, the witness (PW2) joined them. He saw the accused running away while brandishing a knife, fall down a ditch and eventually enter a banana plantation from where he was apprehended. 5.A company employee, Lucas Odongo (PW3), joined those who were chasing the accused whom they apprehended in the banana plantation and took him to the local police station at Chabera where he was handed over to PC Richard Matunda (PW4), before being moved to Othoro police station. A hotel worker, Brian Otieno Oduor(PW5) was at work when he heard noises between 6.30 and 7.00pm on the material date and then proceeded to the scene where he found a young man lying down while bleeding on the chest. He implied that this Youngman was the deceased and stated that another Youngman whom he identified to be the accused was standing near the deceased carrying a knife. 6.He (accused) started walking away as a crowd was gathering at the scene. 7.The witness (PW5) reflected his torch on the face of the accused who reacted by attempting to stab him (PW5) with the knife before running away with a crowd of people including the witness(PW5) in hot pursuit. He (accused) was eventually nabbed inside a banana plantation and handed over to the police at Chabera. 8.A farmer, Peter Otieno (PW6), was attracted by noises emanating from the banana plantation and he went there only to find the accused, his cousin appearing stranded after encountering a fence. Two people carrying rungus (clubs) appeared at the scene and were joined by others. This group set upon the accused but were restrained by the witness (PW6) who directed them to take him to the police station at Chabera. 9.The post mortem carried out on the body of the deceased by Dr. Bernadette Achieng (PW7) as per the post mortem report (PEXh3) revealed that the cause of death was excessive bleeding into the thoracic cavity due to penetrating chest injury. 10.Cpl. Shem Ondieki Mogaka (PW8) of the Forensic Crime Scenes section within the DCI received a compact disc on 20th June 2024 from which he printed photographs (PEXh4(a) of the scene of the offence and the body of the deceased showing the injuries suffered. 11.PC. Ruth Amoit (PW9) of the DCI Rachuonyo East Homa Bay county investigated this matter after which the present charge was preferred against the accused who denied the charge and defended himself in court to the effect that the deceased was not very well known to him but that he proceeded to his business place with friends and ordered for a piece of “Mutura” for which they paid a sum of kshs.10/-. However, the deceased disputed the payment. 12.He (accused), indicated that he witnessed the payment, but the deceased appeared annoyed by his instability arising from being intoxicated. He(deceased) then hit the accused on the face causing him to fall down. He (deceased) then charged at the accused with the knife he was using to cut the “Mutura” into pieces. He threatened to kill the accused for eating his food without paying for it. The knife was black in colour and was used by the deceased to scratch the accused’s face after which the two engaged in a physical struggle over the knife. In the process the deceased was stabbed on the abdomen with the knife before the two were separated. The deceased was taken to hospital while he (accused) was taken to the nearby police post before eventually being arraigned in court. 13.The foregoing evidential facts from both sides give rise to the critical issue for determination in this case and that is whether the deceased was murdered and if so, whether the accused was responsible for the unlawful act. 14.Murder, in terms of Section 203 of the Penal Code denotes causing the death of another person with malice aforethought. This therefore entails proof of the act causing death and guilty mind i.e the intention to cause death, otherwise known as malice aforethought. 15.A finding that murder has been committed must invariably be based on cogent and credible evidence availed by the prosecution because in law, it shoulders the burden of proving its case against an accused person beyond any reasonable doubt. 16.Malice aforethought would be imputed where it is proved that the offender harbored the intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not (see, Section 206 of the penal Code). 17.It is a cardinal principle of law that it is the duty of the prosecution to prove any offence against an accused person and it is a general rule that an accused person assumes no legal burden of establishing his innocence except in certain limited cases where the law places a burden on the accused to explain matters peculiarly within his personal knowledge (see, Kioko Vs Republic (1983)KLR 289 and Mkendeswho Vs Republic [2002] 1KLR, 461). 18.The Court of Appeal in the Kioko case (Supra) held that:-“In a murder or manslaughter charge the burden never shifts from the prosecution; it is not for the accused to establish his innocence. To refer to certain acts of omissions by an accused person as being inconsistent with his innocence would be to shift the burden from the prosecution and to require the accused to prove his innocence.” 19.In Criminal cases, the term “proof beyond reasonable doubt” would have the meaning assigned to it in the decision of the Court of Appeal in Stephen Nguli Mulili Vs Republic[2014] KECA 408 [KLR] in which the observation of Lord Denning M.R in the case of Miller Vs Ministry of Pensions]1947] 2ALLER were applied to the effect that:-“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted Fanciful probabilities to deflect the course of justice.If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice”. 20.In this case, it is evidently clear that no dispute and/or substantial dispute arose that the deceased suffered fatal injuries after a deadly attack upon him with the usage of a sharp offensive weapon. 21.The unfortunate attack appears to have been provoked or agitated by the alleged misbehavior of the assailant towards the spouse of the deceased victim as was indicated by the testimony of the spouse (PW1). On the other hand, as indicted by the accused in his evidence, the attack was provided by the deceased when he allegedly confronted the accused and occasioned minor injuries upon him using his tool of trade (a knife) for reasons that he was unstable due to intoxication. 23.The fact of provocation from either side notwithstanding, the fatal attack against deceased was excessive and most unreasonable in as much as it was clearly intended to cause grievous harm upon the deceased if not to cause his death. 24.The nature of the injury inflicted upon the deceased as may be deciphered from the post mortem report (PExh 3) was sufficient proof that the assailant intended to actually cause death of the deceased. The intensity of the attack with a sharp weapon aimed at the chest into the thoracic cavity of the deceased was undoubtedly intended to cause instant death. 25.The prosecution evidence both directly and indirectly clearly established and proved beyond reasonable doubt that the culprit assailant was none other than the accused. He suggested in his defence that the deceased suffered fatal injury by his own hand and weapon but that was clearly overruled by the degree of injury occasioned to him which strongly implied that there was no way that the deceased would have inflicted such magnitude of injury upon himself as a result of an accidental act of assault arising from a struggle between himself and the assailant while he was holding his tool of trade. 26.In any event, there was cogent evidence from the wife of the deceased (PW1) that it was the accused who actually attacked and fatally injured the deceased using a knife in his possession. There was also sufficient evidence that after the fact the accused was seen in possession of a knife, the suspected murder weapon which was never recovered. This was pointed out in the testimonies of Samuel (PW2) and Brian (PW5). 27.Indeed, the accused did not actually deny that he was the person who assaulted and caused fatal injury to the deceased. However, he indicated that he did so as an act of self defence or as a result of being intoxicated at the material time. But, there was ample evidence from the prosecution through Sharon (PW1), Samuel (PW2), Lucas (PW3) and Brian(PW5) disproving the fact and rendering that line of defence as an afterthought. 28.The prosecution evidence was generally credible and sufficient enough it inferring strongly that the accused was not intoxicated on the material date and time and even if he was, that fact did not deprive him of the ability to form a specific intent to kill. As to the fact that the accused acted in self defence when he grievously injured the deceased, the evidence clearly indicated that there was no danger posed to the accused by the deceased. Indeed the accused was not in imminent danger of suffering bodily harm. 29.There was nothing placed in evidence to show that the accused was placed in a position which exposed him to imminent danger such that he had to use force to protect himself from bodily harm. And, even if the accused was in such a position that he had to use force, the evidence suggested that he used unnecessary, unreasonable and excessive force against the deceased, if indeed he (deceased) was the aggressor. 30.The nature of the injuries suffered by the deceased were incompatible with those that may be occasioned accidentally while engaging in a brawl or struggle with another person and compatible with those occasioned by an aggressor with intent to cause grievous harm or death to another. Indeed, there was sufficient evidence from the prosecution proving that the accused was the aggressor and the deceased his unfortunate victim. 31.In essence, the defence of self defence or intoxication or even provocation were in the circumstances of this case unavailable to the accused. 32.Consequently, it is the finding of this court that the deceased was indeed murdered and that the person responsible for the unlawful act was the accused who must now and is hereby adjudged guilty as charged and convicted accordingly. DELIVERED, DATED THIS 11TH DAY OF JUNE 2026 __________________________________HON. J.R. KARANJAHJUDGE