https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9387

**REPUBLIC OF KENYA** **IN THE HIGH COURT KENYA** **AT NAKURU** **CRIMINAL CASE NO. E033 OF 2022** REPUBLIC …………………………………..……..…….. PROSECUTOR VERSUS PATRICK SITIENEI KIBORO ……………………….………..ACCUSED **JUDGMENT** 1. **Patrick Sitenei Kiboro,** the accused person herein, is before this court on trial on the information of murder contrary to section 203 as read with 204 of the Penal Code. The particulars of the offence are that on the 4th day of June, 2022 at Mariashoni Trading Centre in Molo sub-county within Nakuru County, he murdered **Newton Magut Bargetuny.** The prosecution summoned nine witnesses to testify in support of the prosecution’s case while the accused gave sworn testimony without summoning independent witnesses to testify in support of his defence. 2. The first witness to take the witness stand is **Dennis Chumba** (PW1). He told this court that on 4th February, 2022 he visited a club to have a drink at 9.00pm and ordered for some drinks. PW1 said that before he was served, he heard a commotion in a private room and shortly he saw the **deceased** being assaulted by the **accused**. PW1 claimed he saw the accused stepping on the deceased’s neck and head. 3. PW1 said he tried to help but he was pushed out by the accused and he had to leave. He said there were 30 people present in the bar. PW1 pointed out that Patrick (Accused) was a bouncer at the club/bar. PW1 said he did not know why the deceased was being assaulted. PW1 further stated that the deceased was his friend who used to get transport on his *boda boda.* PW1 also said he knew the accused who worked as a bouncer. PW1 claimed that the accused appeared to be drunk though he did not witness him drink alcohol. PW1 said he saw blood oozing from the deceased’s mouth. 4. **Duncan Kipkurui Maritim** (PW5) told this court that on 4th June, 2022 he operated a bar business in Mariashoni Centre. PW5 said that on the foresaid date his two employees namely **Prilian** and **Chepkonge** were present and working in his bar. PW5 also said he was on the material date with **Patrick Sitienei** (accused) and 4 old men drinking from 5.00pm to 8.00pm in a private room at the back of the bar. He further stated that there were many other customers who were drinking. 5. PW5 further stated that at 7.30pm while drunk he went to the front of the bar because a certain woman came there to quarrel a certain girl. He said the accused went there and removed the noisy woman by taking her outside. PW5 said he then went to sleep in a room within the bar but was woken up when the bar was being closed. PW5 said that a man who was wounded was found lying outside the bar. PW5 said he was woken up at 10.00pm and that he went outside at the back of the bar where the person was lying and found people there. 6. PW5 stated that the injured man was a customer and was called **Newton Bargetuny.** He said the deceased had blood oozing from the nose. PW5 said he did not know the cause of the deceased’s injury. 7. **David Lang’at Jackson** (PW9) stated that on 4th June, 2022 he was at Mariashoni centre and that at 9.00pm he went to buy a cigarette. He said as he passed by the bar corridor and he heard people fighting in a room. PW9 said he opened the door of that room and found three (3) people namely **Newton** and two others who were the bar owner and a worker in the bar. 8. PW9 said that he saw the bar owner holding Newton’s coat from the back while the worker was holding Newton from the front. PW9 said that he saw Newton fall on the top of the table. PW9 said that he left the bar when he was ordered to leave. He said that the next day he heard that Newton had died. 9. In cross-examination PW9 said that the people in the room were fighting and hitting the deceased against the wall. He however admitted that he did not witness the deceased being hit on the wall. PW9 said the deceased was drunk and looked tired. 10. **Robert Lel** (PW8) said he was at Westgate bar in Mariashoni at 10.00pm on 4th June, 2022. He said he went and saw the deceased lying down at the back of the bar and that he was bleeding from the nose. PW8 said the deceased was his neighbour. PW8 said that he and one **Victor** held the deceased and took him to a nearby dispensary and was later taken to Elburgon sub-county hospital. 11. **David Kiprop Bangei (PW3)** stated that on 8th June, 2022 he identified the deceased’s body before the post mortem was done. He said that the body had no visible physical injuries. 12. **P. C Shadrack Mumo (PW4)** the investigating officer said he visited the scene and carried our investigations and got information that the accused who was a bouncer at Westgate Bar had been seen dragging the deceased outside. PW4 further stated that the accused was responsible for the deceased’s death as he was the last person seen dragging the deceased. PW4 confirmed that PW1 saw the accused dragging the deceased. 13. **Dr. George Biketi** (PW2) said he did the post mortem on the deceased’s body and formed the opinion that the cause of death was head injury due to a blunt object. 14. The accused (DW1) was the only witness who testified in support of the defence case. DW1 said that on 4th June, 2026 he was with **Duncan Marim** (PW5) in Westgate bar having drinks between 6.00 pm and 8.00pm. He said the bar crowded. He said he left for home having heard anything else. He further stated that he visited the centre the next day and heard people saying that someone had been beaten at the bar where he had been and that he had been taken to hospital. DW1 said that the deceased was his in-law. He said he did not see him the previous night. He also said that he left the bar at 8.00pm and therefore he did not know what happened at 9.00pm. 15. DW1 also denied having been employed at the bar. In cross-examination DW1 said that he was at the bar with **Duncan Kipkurui Maritim** (PW5) and that he never saw the deceased at the bar. He further stated that PW1 and PW9 lied to court. DW1 said PW9 had a grudge against him since he has a dispute over land with him. The accused further denied that there was a fight in the bar. DW1 said that he was very drunk when he left the bar. 16. At the close of evidence, the parties were invited to file final submissions. This court had considered the rival written submissions and the authorities supplied. The following issues arose for determination: 17. Whether the prosecution established the offence of murder as against the accused. 18. Whether the accused should be convicted for the offence of murder. 19. On the first issues as to whether the offence of murder was established against the accused, it is important to at this stage to examine the definition of the offence of murder. Under section 203 of the Penal Code, the offence of murder is said to be established if it is shown that a person with malice aforethought caused the death of another person by an unlawful act or omission. 20. In the case of **Republic Vs Gideon Wambua Koko and 2 others,** it was held ***inter-alia*** that in order to prove a charge of murder the prosecution has a duty to establish the following elements: 21. **The death and cause of the death of the deceased.** 22. **That the accused caused the death through an unlawful at or omission** 23. **The accused possessed the intention to cause harm or kill or malice aforethought.** 24. It is the submission of the defence that the prosecution failed to tender evidence to establish all the ingredients of the offence of murder and link the accused person with the offence. The defence further submitted that it was never established whether the accused person had any motive to kill the deceased. It is also argued that there was no evidence to show that the accused beat the deceased and whether the beating caused the deceased’s death. The first ingredient for the offence of murder is the evidence of death and the cause of death. 25. **Dr. George Biketi** (PW3), a pathologist produced in evidence a post mortem report indicating that the cause of death of the deceased is **head injury due to massive blunt force trauma** to the head. It is therefore clear that the deceased did not die of natural causes. The element of **actus reus** was therefore established. The question as to who inflicted the fatal injuries can be discerned from the evidence. The evidence of **Dennis Chumba** (PW1) is very critical. He said that he visited a club in Mariashoni Trading Centre to have drinks at around 9.00pm on 4th June, 2022. 26. PW1 said before he was served, he heard a commotion in a room nearby and shortly he saw the deceased being assaulted by the accused. PW1 said he saw the accused step on the deceased’s neck and head. PW1 also stated that he knew **Patrick,** the accused as a bouncer at that bar. 27. The other witness who was also present in the bar is **David Lang’at Jackson** (PW9) who told this court that on 4th June, 2022 at around 9.00 pm, he visited the club where the deceased was killed to buy cigarettes. He said as he passed the bar corridor, he heard people fighting in a room. He said he opened that room and found three people namely Newton (deceased), bar owner (PW5) and a worker of the club (accused). PW9 said he saw PW5 holding the deceased’s coat from the back while the accused (DW1) held the deceased from the front. PW9 said he saw the deceased fall on the top of the table. 28. It is clear from the evidence of PW1 and PW9 that the accused is placed at the scene of crime. It is also clear from the evidence of PW1 and PW9 that the accused actually assaulted the deceased. The evidence of PW9 also show that the deceased fell on top of a table after being assaulted thus getting injured. 29. This court is satisfied that the injuries the deceased sustained as a result of assault and fall is consistent with what **Dr. Biketi** (PW2) noted in the post mortem report. 30. I am satisfied that the accused is the one who inflicted the fatal injuries to the deceased. He was squarely placed at the scene of crime and was seen assaulting and making the deceased fall. The accused was also seen stepping on the neck and head of the deceased. The defence of *alibi* set up by the accused therefore falls by the wayside. 31. The other ingredient which must be established is malice aforethought. It is clear from the evidence tendered that no malice aforethought can be attributed to the accused. It would appear the fighting which took place in that club was spontaneous and involved persons who had taken alcohol and were probably intoxicated. 32. In the absence of prove of proof of malice aforethought, the offence of murder cannot be said to have been established. 33. Considering the evidence in its totality, I find that the offence of **manslaughter contrary to section 202 as read with section 205 of the Penal Code has been proved.** **Consequently, the accused namely Patrick Sitienei Kiboro is instead found guilty and convicted for the offence of Manslaughter.** **Dated, signed and delivered this 29th day of June, 2026 at Nakuru.** **J. K. SERGON** **JUDGE** **In presence of:** Rutto C/A Esang holding brief for Mongeri for the Accused Anyumba for the ODPP