https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8448

Republic v Kiberenge (Criminal Case E039 of 2021) [2026] KEHC 8448 (KLR) (16 June 2026) (Judgment) Neutral citation: [2026] KEHC 8448 (KLR) Republic of Kenya In the High Court at Kitale Criminal Case E039 of 2021 RK Limo, J June 16, 2026 Between Republic Prosecutor and Jacob Simiyu Kiberenge Accused Judgment 1.Jacob Simiyu Kiberenge, the accused herein is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on 11/9/2021 at Nakhosi Village, Sango Sub location within Trans Nzoia County jointly with others not before court murdered Carolyne Nangila (hereinafter to be referred to as deceased). 2.The accused denied committing the offence and prosecution has called a total of 6 witnesses to support their case which is anchored on circumstantial evidence and dying declaration. Below is the evidence tendered by both sides. 3.Dr Dennis Nanyingi (PW1), the doctor who conducted autopsy on the body of deceased stated that he did so on 27/9/2021 and that the body was identified by Michael and Moses Kiberenge. 4.The doctor testified that he made the following findings upon Post Mortem examination;i.That externally he noted multiple bruises on the face and deformed scalp.ii.That internally on the head he noted hematoma in the area covering the whole head between the skull and scalp.iii.Skull fracture at the right and left parietal bone.iv.Subdural hematoma on parietal area with compressed brain.v.Multiple ultra-brain hematoma. 5.The doctor concluded that the cause of death was traumatic head injury secondary to a blunt force. He produced the Post Mortem report as PExhibit 1. 6.Pauline Nafula Muricho Wekesa (PW2) testified that on 29/8/2021 at around 4-5pm while she was in her shop, she heard screams from the deceased who was drunk at the time. That she was abusing one Caro Isesi accusing her of snatching people’s husbands. She stated that she saw Carol come out of her room and she asked the deceased why she was abusing someone at her home but she did not answer. 7.She stated that Carol Isesi wanted to beat the deceased but some people intervened and escorted the deceased away. She added that the deceased did not live in that neighbourhood but used to go there to drink. She stated that she later learnt that the deceased had died but did not know what killed her. She further stated that she knew the accused well as the husband to the deceased. 8.Benson Barasa (PW3), a brother to the deceased recalled that on 9/9/2021 at around 8am he went to see his sister (deceased) and on reaching her home, he was welcomed by the accused who was husband to the deceased. That he ushered him in and disappeared. 9.He stated that when he called out his sister she responded faintly. That she was on a bed inside a single room. He stated when he moved near her, he was shocked to see her with wounds on her head and swellings all over her body. That he asked her what had happened and the deceased told him that the husband (accused) had beaten her badly. 10.He stated that he went out and tried looking for the accused in vain and reported the matter to the village elders before returning home to inform his parents. 11.He stated that his mother asked him to organize to take the deceased to hospital and sought funds from neighbours who managed to raise Kshs.500/-. That he returned on 10/9/2021 to the deceased’s home to take her to hospital but was informed that she died on the way to hospital. He stated that he then reported the matter to the police and recorded a statement. He insisted that the deceased told him that the accused beat her. That the accused was then arrested by boda boda riders as he attempted to escape the area. He stated that the accused and deceased lived alone with no children and that they used to drink alcohol and had tried reconciliation between the two on previous occasions in vain. 12.He stated under cross-examination that the deceased used to visit them weekly and when the week passed without a visit, he decided to go and check on her. That the deceased reported to him that she had been beaten by accused and when he saw her condition, he went back the following day to take her to hospital but found the accused and a neighbour had already taken her there. 13.Protus Wabwile (PW4) on his part testified that on 11/9/2021 at around 8am the accused went to his house and requested for his help in taking his wife (deceased) to hospital in Kiminini. That he agreed and drove with the accused in his car to the accused’s house where he found the ailing wife (deceased). That the deceased had thrown up/vomited and was unconscious and that they carried her in that state in his car. He stated that they were five people in the car with two people seated at the back of the car with the deceased and the accused seated at the front. That when he reached at the gate of the hospital, he stopped to buy face masks as security at the gate could not allow them into the hospital without face masks. That when he returned to the car after buying face masks those in the car told him that the deceased had already died. 14.He stated that he took the body of the deceased to Kiminini Cottage Mortuary. He stated that the body was undressed at the time and he saw bruises all over the body caused by a blunt object. That the bruises were on the head, hands and legs/limbs. 15.He stated that he returned the accused to his home and later recorded a statement with the police. He further clarified that the accused was a neighbour because he lived around 600 metres away from where the accused and deceased lived as husband and wife. That he knew the couple had no children and used to patronize a bar he ran in the neighbourhood. That the accused was a neighbour and a friend. 16.He stated under cross-examination that he saw the injuries on the deceased at the mortuary and that some of the injuries were old. He denied any knowledge of any possibility that the deceased may have suffered injuries from a fall or from other person(s). 17.Simon Wanyonyi Wekhomba (PW5) a village elder from Nakhosi area testified that on 11/9/2021 one Cacius Wamalwa, an employer of the accused called him from Nairobi and informed him that the accused had notified him of the death of the deceased and had rushed her to hospital. 18.That the employer requested him to go and inform the family of the deceased as the accused reportedly feared doing so. He stated that he went and informed the deceased’s mother who confirmed to him that her son Benson Barasa had gone to take her to hospital. That he went back to the house of the accused but did not find anyone there. He stated that at around 3pm he received a call from the accused but the caller was not talking and that he later learnt that the boda boda riders had arrested the accused after some women reported that he had killed someone. 19.He further stated that the boda boda riders escorted the accused to his home in a convoy and he took him to the police who re-arrested him and placed him in custody. He stated that the accused and his wife (deceased) lived alone in the employer’s farm. That the accused and deceased used to drink alcohol and used to fight every time. He said that he had to intervene on several occasions and that it is the accused who used to assault the wife (deceased). 20.He insisted under cross-examination that the accused and deceased used to fight a lot when they got drunk. That he lived around 600 metres from where the 2 lived. 21.Senior Superintendent of police Samson Kataka (PW6) the investigating officer in the case testified that he was based at DCI Trans Nzoia West and recalled that on 13/9/2021 the DCIO called him to his office and informed him of a murder incident at Nakhosi area and that the report was made at Sango police post where the accused was placed in custody. He stated that he proceeded to Sango police post and commenced investigations and recorded statements from witnesses. 22.He testified that the statements indicated that the accused assaulted the deceased using a rungu (club). That on 23/9/2021 he attended a Post Mortem examination on the body of the deceased at Kiminini Cottage Mortuary where the doctor performed autopsy and made his report. 23.He stated that he visited the home of the deceased with a view to recovering the rungu or the murder weapon but he was not successful. He stated that he interrogated the accused who denied committing the offence. He stated that he noted the injuries on the body of the deceased when he attended Post Mortem examination. That she had a scar on the head, had bruises on the hands and legs. 24.He stated that after completing his investigations, he arraigned the accused. 25.When placed on his defence, the accused stated that he had lived with the deceased since 2014. He stated that on 27/8/2021 the deceased asked to go to their home and he released her. He stated that on 2/9/2021 he went to a place known as Msalaba where some women shouted pointing to him that he was the husband of the deceased. That he saw two people fighting with his wife (deceased) and when one Caroline Masese saw him, she ran away and that he asked the deceased to return home the following day. 26.He stated that the deceased did not return until 9/9/2021 when she went back using a boda boda. He stated that the deceased had no shoes and had an injury on the head. That the deceased reported to him that the cause of the injury was a fall but he was dissatisfied with the explanation and told her to go back to her home. That at 6pm she returned back using a boda boda and told him her people would visit them the following day. 27.He stated that the following day at 6pm his brother in law arrived and denied knowledge of what happened to the deceased. That the deceased then was in bad state of health and was not eating. 28.He stated that the following day on 11/9/2021 he took the deceased to hospital but she died on arrival. He denied killing his wife stating that she was beaten in their home. 29.He stated under cross-examination that his wife (deceased) had previously fought with a lady called Caro over a man he did not know. He stated that his wife (deceased) was an alcoholic but denied being one himself. 30.Alice Wamalwa (DW2) stated that she was a milk seller and the accused was a neighbour and one of her customers. She recalled that on 9/9/2021 she went to sell milk to the accused and did not see the deceased. She recalled seeing the deceased later looking dirty and sick and that when she inquired the deceased told her she had ulcers. 31.She stated that she accompanied the deceased to hospital where she was pronounced dead on arrival. She stated that she did not know how the accused and deceased lived and could not tell if the deceased was beaten. She stated that the deceased used to drink but the accused was a teetoler. 32.Fredrick Wafula Kiberenge (DW3), a brother to the accused stated he knew the deceased as a wife to the accused. That he recalled that on 11/9/2021 his brother, the accused called him and informed him that he had taken his wife (deceased) to hospital but unfortunately she died on arrival. That he immediately went to his home and the accused arrived shortly thereafter and told him what had happened. 33.He stated that he told the accused to take him to the mortuary but as they went they met boda boda people who began shouting and got hostile. That they proceeded to the police station to report. 34.He stated that he knew his brother (accused) used to drink alcohol and a drunkard and tried to speak to him severally to quit the habit and later learnt that he had done so. 35.The accused as observed above is charged with the offence of murder contrary to Section 203 of the Penal Code. For a charge of murder to be sustained the prosecution is required to establish and prove beyond reasonable doubt through evidence the following ingredients namely;i.The fact of death and its cause.ii.Actus reus or that the unlawful act or omission causing death was caused by the accused.iii.Mens rea or malice aforethought. 36.(i)The fact of death and its cause.This fact is uncontested in this case. The evidence of PW3 (Benson Barasa) and PW4 (Protus Wabwile) with regard to the fact of death was corroborated by the medical evidence tendered by Dr.Dennis Nanyingi (PW1) who tendered Post Mortem report (PExhibit 1) that indicated that the deceased died as a result of traumatic head injury secondary to a blunt force. The fact of death and its cause is clearly established and proved beyond reasonable doubt. 37.(ii)Actus reusThis element is contested in this case, while the prosecution’s case points to the accused as the person who committed the act that eventually caused the death of the deceased, the accused on the other hand has pointed fingers to other persons he did not name. 38.The prosecution’s case in regard to this element as highlighted above is hinged on circumstantial evidence and a dying declaration. 39.It is now well settled that circumstantial evidence can be as reliable as direct evidence and even better in some circumstances and can found a conviction. This court is well guided by the observations made in that regard in the famous case of R –vs- Taylor, Weaver & Donovan (1928) Cr App. R 21 where the court made the following observations;“It has been said that the evidence against the accused is circumstantial. So it is but circumstantial evidence is very often the best. It is evidence surrounding circumstances which, by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial”. 40.It is also well settled now that before a court can rely on circumstantial evidence as a basis of conviction, the evidence must satisfy the following conditions well illustrated in the case of Mohamed Abolfathi & Anor –vs- Republic (2018) KECA 743 (KLR) which referenced the case of Abanga Alias Onyango –vs- Republic (Cr App No.32 of 1990) by stating the conditions as follows. That when a case entirely relies on circumstantial evidence, such evidence must satisfy 3 tests namely;a.The circumstances from which inference of guilt is drawn must be cogent and firmly established.b.Those circumstances should be of a definite nature tendency unerringly pointing towards the guilt of the accused.c.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.The court also found that the prosecution should establish that there are no co-existing circumstances that would weaken or destroy the inference of guilt. 41.Now turning to the evidence tendered in this case, it is clear from PW2, PW3 and PW4 that the accused and the deceased lived alone as husband and wife. 42.The evidence of PW3, a brother to the deceased is quite material in this case. He says he visited his sister (deceased) on 9/9/2021 and found her in a bad state of health. That he had visited her after she failed to visit them for a while and that he found her with the accused alone. That when he entered the house, he found her swollen all over the body with wounds on the head. The deceased told him she had been assaulted by the husband (accused). The accused was in the meantime outside but when the he went out, he found him having vanished. This clearly shows that he was afraid and guilty of what he had done. 43.The evidence of the village elder (PW5) is also a pointer. He says the accused used to beat the deceased and that it had become the order of the day to resolve their differences largely contributed by alcohol. 44.The defence put forward by the accused that the deceased arrived home injured is unsupported by evidence he tendered. 45.This court finds that the evidence of PW2 regarding an altercation between the deceased and one Caro Isesi on 29/8/2021 owing to suspicions of infidelity by the accused is a pointer that the differences may have escalated to their matrimonial home leading to assault by the accused. 46.The other significant evidence pointing to the accused is what PW3 stated he heard the deceased saying. PW3 stated that the deceased told him that it was the accused who had inflicted the serious injuries he saw. That in my view amounted to dying declaration because the deceased died a day after uttering the words that implicated the accused. 47.This court on the basis of the above finds that the prosecution’s case with respect to the element of actus reus has been proved beyond reasonable doubt. The evidence adduced implicates the accused and no one else as the assailant. 48.(iii)Malice aforethought.There was no concrete evidence indicating that the accused harboured ill motive against the deceased save for evidence of PW5 that shows that the accused was a habitual wife batterer. This court finds that in view of serious injuries noticed by the doctor in his Post Mortem report (Pexhibit 1) the person who inflicted those injuries intended to cause death or grievious harm to the deceased. Either way under Section 206 of Penal Code malice can be inferred. This court therefore finds that the element of mens rea has been established and proved beyond doubt. 49.The long and short of this is that this court finds that the prosecution’s case against the accused has been proved beyond any reasonable doubt. The accused ought to have resolved his issues with his wife (deceased) in a civil manner but chose to end her life which is highly regrettable. He is found guilty of murder as charged and accordingly he is convicted. DELIVERED, DATED AND SIGNED AT KITALE THIS 16THM DAY OF JUNE , 2026.HON JUSTICE R.K. LIMOKITALE HIGH COURTJudgment delivered in open courtIn the presence ofMugun for the StateNo appearance for M/s Ruto for the accusedDuke/Chemosop – Court assistants