https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13050

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CRIMINAL CASE NO. E002 OF 2022** **REPUBLIC…………………………………………………………………..PROSECUTION** **VERSUS** **GEOFFREY KIBUNJA………………………………………………………1ST ACCUSED** **LUCY LOZENJA……………………………………………………………..2ND ACCUSED** **CHARLES NDORI…………………………………………………………..3RD ACCUSED** **PATRICK OSUKU…………………………………………………………..4TH ACCUSED** **Coram: Before Justice R. Nyakundi** **Mr. Leina Davies for the ODPP** **Mr. Edaki Advocate for the 1st and 4th Accused Persons** **Mrs. Repha Advocate for the 2nd and 3rd Accused Persons** **JUDGMENT** 1. The Accused persons herein were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. The particulars of the offence were that Geoffrey Kibunja, Lucy Lozenja, Charles Ndori and Patrick Osuku on the 21st day of December 2021 at Elwanda Village, Sabatia Sub-County within Vihiga County, jointly murdered Deina Kavosi. 2. The Accused persons pleaded not guilty for the offence during plea taking vesting the burden of proof upon the Prosecution under Article 157 (6) & (7) as read with Article 50 (2)(a) of the Constitution on the presumption of innocence to adduce evidence to establish every element of the offence of murder. The Prosecution marshalled seven (7) witnesses who testified as follows: - **Prosecution Case Summary** 1. **PW1 – Alice Kanguha** testified that she is a 63-year-old farmer and a daughter of the deceased, Deina Kavosi. She stated that on 21st December 2021 at about 7.00 a.m., she received a telephone call from Florence Mandu, a neighbour of the deceased, informing her that her mother had been strangled inside her house. PW1 immediately proceeded to her mother's homestead where she found several people gathered within the compound and the house. Upon entering the house, she observed the deceased lying motionless with her face covered by a blanket, her hands and legs tied from behind, and a sweater tied around her neck. She inquired whether the authorities had been informed and was informed that the area Chief had already notified the police. Police officers arrived shortly thereafter, secured the scene, confirmed that the deceased had died and subsequently facilitated the removal of the body to Kaimosi Mortuary. PW1 further testified that while at the mortuary, she received a telephone call through the deceased's mobile phone from a person who identified himself as a Pastor. The caller informed her that he had been receiving and disconnecting her calls made to the deceased's phone. He inquired whether she had arrived at her mother's home and whether the deceased was still alive. The caller allegedly stated that there had been four men involved in the incident and claimed that although he did not participate in killing the deceased, he witnessed what transpired and recorded a video of the events. He offered to provide the names of the perpetrators and the video recording on condition that PW1 paid him Kshs. 10,000. He directed her to send the money to a Safaricom number 0701743631 registered in the name of Phylloice Kayalo Lichungu and advised her not to send the money through the deceased's line. PW1 testified that she pretended to have the money and contacted the caller again, whereupon he informed her that the initial number had expired and promised to provide another number. However, he never called back or furnished the promised information. PW1 confirmed that she never sent any money to the caller. 1. **PW2- Florence Ingishia Mandu** testified that she is a 63-year-old married woman, a peasant farmer and a neighbour of the deceased, Deina Kavosi. She recalled that on 21st December 2021 at about 7.00 a.m., while at her home preparing her granddaughter for school, she was informed by her neighbour, Jane Khamadi, that the deceased had allegedly been killed by unknown persons and that her body had been found inside her house with her hands and legs tied and her head covered with a blanket. PW2 stated that she had last seen the deceased alive on 20th December 2021 at about 3.00 p.m. walking within her compound, having earlier assisted her at around 11.00 a.m. by tying her cows. PW2 testified that she immediately proceeded to the deceased’s homestead together with her children where they found a large crowd gathered. Upon entering the house, she observed the deceased lying lifeless with her hands and legs tied. Being a former village elder, she contacted the deceased’s daughter, Alice, and informed her of the incident before notifying the area Chief, Evans Indeshit. PW2 further testified that one Ndori, who regularly milked the deceased’s cows, narrated that on the evening of 20th December 2021 he had come to milk the cows, found the back door slightly open and, after receiving no response from the deceased, entered the house, collected a jug, milked the cows and left the milk on the kitchen table. The following morning at about 6.30 a.m., he returned and found the previous day’s milk untouched, prompting suspicion. He then called Jane Khamadi and together they searched the house and discovered the deceased’s body in the bedroom with her hands and legs tied. PW2 further stated that the area Chief arrived at the scene, confirmed the incident and subsequently summoned Police Officers who attended the scene and removed the deceased’s body. She remained at the deceased’s home until the deceased’s daughters and other relatives arrived before returning home. On 22nd December 2021, Officers from the Directorate of Criminal Investigations (DCI), Sabatia, visited her home and later recorded her statement concerning the incident. 2. **PW3- Evans Endesia** testified that he is the Chief of Izara Location within Sabatia Sub- County Vihiga, County. He stated that he knew Dianah Kavosi as she was living in his area and that he knew only one (1) accused person. He testified that he knew Lucy Lozenja, the 2nd Accused because she lived in his area. He stated that on 21st December 2021 at about 6.05 p.m, he got a call from one of the Nyumba Kumi people being Florence Mandu (PW2) who told him that the deceased had been covered with a blanket and her legs had been tied and she was dead. He stated that he found a crowd of people both inside and outside the house where he removed them from the house and confirmed that the deceased had been covered with a blanket, the hands and legs had been tied to the back with a red and yellow manilla and there was a blood stained rolling pin for chapatis. He further added that there were blood stains on the tiles and notified the OCS of Kilingili Police Station and the ACC Chavakali followed and he showed them the deceased. It was his testimony that the deceased was lying on the floor and she had been covered with a checked blanket which had several colors, red boxes. He testified that he could remember the blanket marked as MF1-A, rolling pin that was blood stained marked as MF1- 2 A and B. PW3 testified that there were manilla strings that had been used to tie the deceased and he looked at the deceased body before he called the others. He added that the deceased was very old and there was no tussle. He stated that that is the way the deceased has been tied and made reference to the deceased home, the injury that he saw on the deceased body and how the floor was blood stained. It was his testimony that it was long time ago and the deceased was dressed because it was in the morning and that he only saw her barefoot. He added that the police and their normal investigators took photos, untied the deceased and took her to Kaimosi Mortuary and that he did not accompany them. It was PW3’s testimony that he recorded his statement. 3. **PW4- Clarance Luvai Mudanya** testified that on 21st December 2021, while attending to his transport business in Kakamega, he received a telephone call from his mother, Alice, informing him that his grandmother, Deina Kavosi, had been found murdered at her home in Elwanda Village. He immediately travelled to the deceased’s home where he found a crowd gathered and local administrators, including the Assistant Chief and Chief, together with police Officers and DCI Officers at the scene. Before the police commenced their investigations, PW4 entered the deceased’s house and observed the body lying in the bedroom with both hands and legs tied using red and yellow sisal-like strings. He further observed that the deceased’s head had been covered with a blanket, there were blood stains on the floor, wall and mosquito net, and a rolling pin stained with blood was lying near the body. He stated that after the police processed the scene and removed the blanket, he saw that the deceased’s neck had been tied with a leso and a sweater, suggesting that she had been strangled, and that there were visible injuries on her forehead and head. The body was thereafter removed to Kaimosi Jumuia Hospital Mortuary. PW4 further testified that while at the mortuary, his mother received a call from an individual using the deceased’s mobile phone number. The caller identified himself as a Pastor and claimed that he had been present during the murder together with three other individuals. According to the caller, he had not participated in the killing but had recorded a video of the incident and demanded Kshs. 10,000/= in exchange for the video and other information concerning the perpetrators. The caller further alleged that one “Lucy” was the mastermind of the murder and mentioned two other individuals, namely Charles, the milkman, and a former servant known as Patty. PW4 stated that after the call, the caller sent a Safaricom number, 0701743631, through which the money was to be sent, and the family relayed this information to the DCI Officers for investigation. He further testified that he later attended the post-mortem examination and burial of the deceased and subsequently learned from investigators that a suspect had been arrested in possession of the deceased’s mobile phone and electoral identification card, leading to the arrest of other suspected accomplices. He thereafter recorded his statement with the DCI officers concerning the incident. 4. **PW5- Dr. Adori Akalicha** testified that he is a Medical Officer at Vihiga County Referral Hospital with nine years’ experience as a medical doctor and holds a Bachelor of Medicine and Bachelor of Surgery degree from Egerton University. He stated that he conducted a post-mortem examination on the body of **Doina Kavesi** on 23rd December 2021. Upon examination, he observed that the deceased was an African female of fair nutrition with post-mortem changes including rigor mortis and algor mortis. Externally, he noted multiple injuries comprising a sharp cut wound on the forehead, several rough-edged cuts on the head consistent with blunt force trauma, a nail-knee injury on the right knee, and lacerations on the labia. Internally, he observed scalp vessel injuries, bilateral labial lacerations, a fracture involving the parietal and occipital regions of the skull, brain contusion, mild extradural hematoma and subluxation of the cervical vertebrae C3 and C4. He formed the opinion that the cause of death was **asphyxia secondary to severe head and cervical injuries resulting from an assault**. He produced the post-mortem report dated 23rd December 2021 as an exhibit, which was marked **Exhibit 9**. 5. **PW6- Alvin Mukilwa Mudanya** testified that he is a teacher by profession and on 6th January 2022 at about 3:52 p.m., while attending a staff meeting at his school where he was serving as the Secretary, he received a telephone call from an unfamiliar number, 0762455645. Since he was occupied with the meeting, he did not answer the call but instead sent a text message informing the caller that he was in a meeting and would call back later. He thereafter switched off his phone to avoid interruptions. Upon completion of the meeting at around 5:46 p.m., he switched on his phone and noticed a text message indicating that the caller had attempted to reach him earlier. Shortly thereafter, the same caller telephoned him and addressed him by his name, Alvin Mugilwa. The caller informed him that he wished to reveal the identities of the persons responsible for the murder of his grandmother. As the caller began mentioning a person known as “Lucy,” PW6 interrupted him and demanded to know his identity. However, the caller declined to identify himself and instead asked PW6 whether he genuinely wished to know who had murdered his grandmother. PW6 responded that he did not wish to endure any further emotional pain arising from the incident, whereupon the caller expressed sympathy by saying “pole” and abruptly terminated the conversation. PW6 further testified that following the call, he reflected on past conversations he had had with his late grandmother during school holidays. He recalled that his grandmother had previously informed him that a woman known as Lucy, whom he described as his aunt from his step-grandmother’s side, had on several occasions attempted to harm her and had allegedly even consulted witch doctors against her. According to PW6, his grandmother had told him that it was only through her strong faith that she had survived those alleged attempts. After the telephone conversation, PW6 contacted his brother, Dr. Nixon Serede Mugilwa, informed him of the call and forwarded the caller’s number to him. He also informed his mother, Alice, of the incident. His mother advised him that should the caller contact him again, he should remain calm, listen carefully to the information being provided and, if possible, record the conversation. However, the caller never contacted him again. PW6 further stated that after the call ended, he sent a text message to the caller at about 6:08 p.m. on the same day, which read: “Mungu tunaye mwamini halali, yeye ndio muweza yote na atatupigania.” He later accompanied his family members to the DCI Offices at Sabatia on 21st January 2022, where he recorded a statement concerning the foregoing events. 6. **PW7 – No 79667 Sergent Mark Arawo** testified that he was the Investigating Officer attached to DCI Sabatia and was assigned to investigate the murder of Deina Kavosi. He stated that on 21st December 2021, after receiving information from the then DCIO and OCS Kilingili, he proceeded to the deceased’s home at Elwanda Village, Munoywa Sub-location, where he found the scene secured by Police Officers and Local Administrators. Upon entering the deceased’s bedroom, he observed the deceased lying on the floor with her hands and legs tied behind her back using orange and maroon ropes, her neck tied with a leso and sweater, and her upper body covered with a blanket. He further observed blood stains on the floor, walls, and mosquito net, clothes scattered on the floor, and a blood-stained chapati rolling pin beside the body. Photographs of the scene were taken before the body was untied and removed to Kaimosi Mortuary. During investigations, he established that the deceased’s phone, Safaricom No. 0727704463, had been stolen from the scene. While at the mortuary, the deceased’s daughter, Alice Kanguha (PW1), received a call from a person using the deceased’s phone who introduced himself as a Pastor and claimed that he was among four individuals present during the murder. The caller alleged that they had been hired by Lucy Lozenja to obtain the deceased’s title deed and demanded Kshs. 10,000 in exchange for information, a video recording of the incident, blood samples, and the deceased’s phone. Subsequently, the caller directed PW1 to send the money through Safaricom No. 0701743631, which investigations revealed had been registered in the name of Phylloice Kayalo Lichienga. PW7 testified that through mobile phone tracking and analysis, police traced the deceased’s line 0727704463, the Safaricom line 0701743631 and an Airtel line 0762455645, which had also been used to contact Alvin Mugilwa Mudanya (PW6) and another family member while demanding money in exchange for information concerning the murder. Investigations led Officers to Viyalo where they arrested the 1st Accused, Geoffrey Kibunja Vunziru and recovered from his possession the deceased’s mobile phone, the deceased’s SIM card 0727704463, the Airtel line 0762455645, the deceased’s voter’s card, and the identity card used to register 0701743631. Upon interrogation, the 1st Accused implicated his co-accused namely Lucy Lozenja (2nd Accused), Charles Ndori (3rd Accused), and Patrick Osuku alias Patty (4th Accused), alleging that Lucy had orchestrated the murder due to a land dispute involving the deceased’s title deed. The witness subsequently arrested the other accused persons and subjected the male accused persons to DNA sampling following the post-mortem findings suggesting possible sexual assault. However, the Government Chemist’s Report dated 13th October 2022 ruled out the allegation of gang rape. PW7 further testified that he recovered and produced numerous exhibits before the Court including the blanket covering the deceased (Exhibit 1); orange and maroon ropes used to tie the deceased (Exhibits 2A and 2B); blood-stained leso (Exhibit 3); brown checked sweater used in strangulation (Exhibit 4); blue blood-stained dress (Exhibit 5); black petticoat (Exhibit 6); blood-stained chapati rolling pin (Exhibit 7); photographs of the crime scene and the deceased (Exhibits 8A–8F); the deceased’s Nokia 7A mobile phone (Exhibit 10); the deceased’s voter’s card (Exhibit 11); the 1st Accused’s identity card (Exhibit 12); Airtel SIM card No. 0762455645 (Exhibit 13); the deceased’s SIM card No. 0727704463 (Exhibit 14); the inventory form dated 9th January 2022 signed by the 1st Accused and his wife (Exhibit 15); exhibit memo forms relating to vaginal swabs, fingernail samples and buccal swabs (Exhibits 16A–16D); and the Government Chemist Report dated 13th October 2022 (Exhibit 17). He concluded that the investigations, witness statements, telephone communication analysis, recovered exhibits and forensic evidence connected the four accused persons to the murder of the deceased, leading to their arrest and Prosecution before the Court. 7. This Court vide its Ruling dated 16th July 2025 found that the having considered the evidence of the Prosecution witnesses, a *prima facie* case had been established against the 1st, 2nd, 3rd and 4th Accused Persons herein to warrant them being put on their defence. Consequently, the Accused Persons were put on their defence. 8. The Defence called 4 witnesses against their charges of murder of one Deina Kavosi. **Defence Case Summary** 1. **DW1- Geoffrey Kibunja Onziru** testified that he was a casual labourer who occasionally worked for the deceased, Deina Kavosi, whenever she required assistance. He stated that on the evening of 20th December 2021, the deceased called him and requested him to report to her home the following morning to assist with some work. Consequently, on 21st December 2021 at dawn, he proceeded to the deceased’s homestead where he found two cows outside, the door open and the radio playing. Upon knocking severally and receiving no response, he entered the house and observed a jug of milk beside the radio and the deceased’s mobile phone inside a pouch. He then peeped into an adjacent room and saw blood stains on the walls and floor and a person lying on the floor covered with a blanket from the head to the stomach area. He became alarmed and, fearing the implications of the situation, took the deceased’s mobile phone with the intention of contacting her relatives. He testified that he first attempted to call a number saved as “Serede” (0720406051) but the call did not go through. He then called another contact saved as “Elvini,” who informed him that he was in a school meeting before disconnecting the call. Thereafter, he called Alice Mudanya through mobile number 0726161677 and informed her that her mother, Deina Kavosi, had been killed. He stated that Alice instructed him not to switch off the deceased’s phone and promised to contact him after reaching her mother’s home. Later, at around noon, he again spoke with Alice, who informed him that the deceased’s body had been taken to Kaimosi Mortuary and requested him to retain the phone for collection. He maintained that he never demanded money from the deceased’s family and denied making any requests for payment in exchange for information regarding the deceased’s death. DW1 further testified that on 9th January 2022, two individuals visited his home, identified themselves as children of the deceased and requested him to narrate what had transpired. He handed over the deceased’s mobile phone to them, after which they gave him Kshs. 200 to buy sugar. However, after his physically challenged wife entered the room, the visitors identified themselves as Police Officers, handcuffed him and conducted a search of his house. The officers recovered his identity card, mobile phone and Inua Jamii card before escorting him to the DCI offices at Sabatia. He alleged that while at the DCI offices he was interrogated by the Investigating Officer, Sergeant Rao PW7, who subjected him to threats and coercion and demanded that he admit involvement in the offence. He stated that he was presented with the names LucyLozenji, Charles Ndori and Patrick Usuku and was compelled to acknowledge knowing them, though he insisted that he never witnessed any of them kill the deceased. He explained that he knew Charles Ndori as a neighbour, Lucy Lozenji as the deceased’s daughter from another home and Patrick Usuku as a person who had previously worked at the deceased’s home. He testified that the three accused persons were later brought before him individually by the police. DW1 maintained that he arrived at the deceased’s home after the offence had already been committed and that the only link between him and the incident was the deceased’s mobile phone, which he had retained solely to notify her family members. He denied participating in the murder, denied sexually assaulting the deceased, denied making any confession voluntarily and denied demanding money in exchange for information. He further denied knowledge of any voter’s card belonging to the deceased as alleged by PW7 and reiterated that he had worked at the deceased’s home for approximately two years as a casual labourer but was not sufficiently familiar with all aspects of her homestead. He concluded by asserting that he was innocent, that he had merely acted as a good Samaritan in attempting to contact the deceased’s relatives, and that he continued to deny all the charges preferred against him. 2. **DW2- Lucy Lozenja** testified that she was a resident of Ilunada Village and earned a living through casual labour. She stated that on 20th December 2021, she spent the day attending to her household chores and later attended a committee meeting at the home of Joseph Ngereso from about 2.00 p.m. until 7.00 p.m. in preparation for a teacher’s retirement ceremony scheduled for the following day. After the meeting, she returned home, had supper and retired to bed. On the morning of 21st December 2021, while sweeping outside her house, she heard Charles Ndori and Jane Khamadi discussing an incident involving the deceased, Deina Kavosi. Upon inquiring, Charles informed her that they had received information that Mama Deina had been killed. Together with Charles and Jane, she proceeded to the home of Florence Ingishia Mandu PW2, who was a village elder and her neighbour. Florence intended to travel to inform the deceased’s daughter, Alice, but DW2 advised her that Chavakali was far and offered to provide Alice’s telephone number. Florence subsequently called Alice and informed her of the incident, although she had not yet confirmed the death personally. DW2 testified that she, Charles Ndori, Jane Khamadi and Florence Mandu thereafter proceeded to the deceased’s home where they found a large crowd gathered. Upon entering the house, she observed the deceased lying in her bedroom covered with a blanket from the head to the waist, with only the legs visible. She noticed that the deceased’s legs were tied with a rope. She stated that Florence Mandu immediately contacted Chief Evans Indesia (PW3), who instructed them not to interfere with the scene and informed them that police officers had already been notified. Shortly thereafter, Alice PW1 arrived at the scene screaming and distressed. The Assistant Chief, the Chief and police officers from Kilingili subsequently arrived, entered the house and commenced investigations. DW2 further testified that on 9th January 2022, after returning from church at about 7.00 p.m., she was arrested by police officers who were accompanied by Charles Ndori, who was already handcuffed. She was taken to Mudete Police Station, where she was informed that she was suspected of having planned the murder of the deceased and was allegedly captured in a video committing the offence. She denied the allegations and stated that she had never participated in, planned or conspired with anyone to kill the deceased. She acknowledged knowing the 1st Accused person, whom she knew as a former worker in a neighbouring home, but denied any involvement with him in the commission of the offence. Regarding the issue of land, DW2 testified that she had been accused because of a land dispute involving the deceased. She explained that Geoffrey Kibunja DW1 had alleged that she had sent him to obtain a title deed. She denied the allegation and stated that after her father's death, succession proceedings were necessary to establish ownership of the family land and address a dispute involving a neighbour claiming part of the property. She conducted an official search at the Lands Registry and produced a Certificate of Official Search dated 23rd December 2011, which showed that the title deed remained at the Lands Registry. The said Certificate of Official Search dated 23rd December 2011 was produced as Defence Exhibit 1 DExh-1. She further testified that the deceased had requested her to remove a caution she had lodged against the land and that both of them appeared before the Land Registrar to explain their respective positions. The Land Registrar subsequently referred them to the area Chief, Zakaria Mwangala, for resolution of the dispute. DW2 maintained that no evidence had been presented before the Court linking her to the murder of the deceased and urged the Court to find that she had been falsely implicated due to the underlying land dispute. 3. **DW3- Charles Ndori** testified that he was a resident of Iluanda Village in Sabatia Sub-County, Vihiga County, and earned his livelihood through poultry keeping and small-scale business activities. He stated that in December 2021, the deceased, Deina Kavosi, visited his grandfather’s home and requested that he assist her in milking her cows because of her advanced age and until she could secure a permanent worker. He agreed and thereafter milked her cows every morning and evening. He testified that on the evening of 20th December 2021, at about 7.00 p.m., he went to the deceased’s home to milk the cows. He did not find the deceased but, as was customary, he entered the house through the kitchen, milked the cows and left the milk on the kitchen table before departing. He stated that he did not see the deceased that evening. DW3 further testified that on the following morning, 21st December 2021, he returned to milk the cows and found that the milk he had left on the table the previous evening was still untouched. This aroused his suspicion that something was amiss. He then went to the home of Jane Ondisa Khamadi, a neighbour of the deceased, and informed her that he had not seen Mama Deina and that the milk left the previous evening remained untouched. Jane informed him that she had not seen the deceased either but agreed to accompany him to the deceased’s home. Upon arriving there, Jane entered the deceased’s bedroom and shortly thereafter informed him that Mama Deina had died. The two then proceeded to the home of Florence Ingishia Mandu PW2, who was the area Nyumba Kumi elder, to report the incident. On the way, they encountered Lucy Lozenja DW2 near her home and informed her of what had happened. DW3 testified that Florence Mandu sought to notify the deceased’s children, and Lucy Lozenja provided the telephone number of Alice Mudanya PW1. Florence subsequently contacted Alice and informed her of the incident. Thereafter, DW3, Jane Khamadi, Lucy Lozenja and Florence Mandu returned to the deceased’s homestead, where the incident was reported to the area Chief. Police officers later arrived, processed the scene and removed the deceased’s body to the mortuary. He stated that after the death of the deceased, he continued milking the cows and looking after them until 1st January 2022, when one of the deceased’s children sent him Kshs. 1,000/= as appreciation for his assistance. DW3 further testified that on 9th January 2022, he was arrested in connection with the death of the deceased. He informed the Court that Jane Ondisa Khamadi, who had accompanied him to the deceased’s home and witnessed the events of 21st December 2021, had since passed away after recording a statement with the police. He requested the Court to consider her statement in support of his defence. He similarly referred to the statement of Florence Ingishia Mandu PW2 and urged the Court to consider it as it corroborated his account of how the deceased’s body was discovered and the subsequent reporting of the incident. Throughout his testimony, DW3 maintained that he merely discovered the unusual circumstances surrounding the deceased’s disappearance, reported the matter through the appropriate channels and had no involvement whatsoever in the death of the deceased. 4. **DW4 - Patrick Osuku** testified **that** he was the fourth accused person in the case and denied any involvement in the murder of the deceased. He stated that he had worked for the deceased from August 2018 until 7th January 2020 when he left her employment and relocated to Kabras in Kakamega County in search of better opportunities. According to him, after leaving the deceased’s homestead, he neither visited her nor communicated with her by telephone. He testified that he was arrested on 18th January 2022 at Kagoi Corner and only came into contact with his co-accused persons after his arrest. He stated that he knew the second accused, Lucy Lozenja, as the deceased’s stepdaughter who occasionally visited the deceased but did not reside at her homestead. He also knew the first accused, Geoffrey Kibunja, as a casual labourer who had previously worked at the deceased’s home harvesting maize and undertaking other farm duties, though they were not friends. He further testified that he knew the third accused, Charles Ndori, as a neighbour of the deceased who had been a student between 2018 and 2019 and had no established family relationship with him. DW4 maintained that on 20th December 2021, the day preceding the deceased’s death, he was in Kabras, Kakamega County, carrying out his work and had no communication whatsoever with either Charles Ndori or Lucy Lozenja. He denied participating in any plan, agreement, or act leading to the death of the deceased and stated that he was unaware of any allegations concerning the tracking of his mobile phone or any padlock allegedly connected to the investigations. He therefore urged the Court to find that he had no connection with the offence and maintained his innocence throughout the proceedings. **Prosecution Written Submissions** 1. The Prosecution filed its Written Submissions dated 12th May 2026 through the Learned Prosecution Counsel Mr. Leina Davies. Counsel submitted that the four accused persons should be found guilty of murder contrary to Section 203, as read with Section 204 of the Penal Code, for the death of the deceased on 21st December 2021. The Prosecution argued that all essential ingredients of murder have been proven beyond reasonable doubt, starting with the undisputed fact of the deceased's death, which was confirmed by a postmortem report (Prosecution Exhibit No. 9) and the testimony of witnesses PW1, PW2 and PW3, who were present at the scene. The Prosecution Counsel submitted that the death was established as unlawfully caused through the testimony of the Pathologist PW5, who observed multiple cuts to the head, fractures and injuries to the brain tissue and neck. The cause of death was determined to be asphyxia and brain injury secondary to assault which clearly indicates the death was not accidental but unlawfully caused. 2. Regarding the element of malice aforethought, the Prosecution Counsel relied on Section 206 of the Penal Code and the principle established in *Republic vs Nedrick HL 1986 HL,* which holds that a person is deemed to have intended the natural and probable consequences of their actions if those actions are virtually certain to result in death or serious harm. The Learned Prosecution Counsel submitted that although there were no direct witnesses to the assault, the nature of the injuries demonstrated a clear intent to cause death or grievous harm. To establish that the accused persons were responsible for this death, the Prosecution relied on the principles of circumstantial evidence as outlined in *Ahamad Abdoldathi Mohammed and Another Vs Republic (2018) eKLR.* 3. Counsel submitted that the primary link to the crime is Accused No. 1, Geofrey Kibunja, who was found in possession of the deceased’s Nokia phone, Electors ID card and Safaricom SIM card. Testimony from PW1 and PW6 revealed that Accused No. 1 used the deceased's phone to contact them while disguising himself as a Pastor and demanding money to reveal the killer's identity. Citing the case of *Andrea Obongo & Anor Vs Republic (1962) E.A 542*, the Prosecution argued that being found in possession of a deceased person's property shortly after a crime, without a valid explanation, was a strong basis for conviction. Furthermore, Accused No. 2, 3, and 4 were arrested following information provided by Accused No. 1. 4. The Prosecution further submitted that the defenses offered by the other accused persons were insufficient to create reasonable doubt. Accused No. 4 raised an alibi defense only at the trial stage, which remained uncorroborated. In line with *Uganda Vs Abdu Kiyimba (1975),* the state maintained that an alibi must be supported by corroborating evidence to be effective. Consequently, the Prosecution concluded that the evidence collectively points to the guilt of all four the accused persons. **Defence Submissions** 1. A look at the record and the Case Tracking System (CTS) indicates that the Accused persons had not filed their written submissions at the time of writing this judgment. **Analysis and Determination** 1. Having given that background and having considered the evidence tendered and the submissions filed, it is my singular duty to establish whether the Prosecution has mounted a case against the accused persons within the required standard of proof of beyond reasonable doubt as the one who killed Deina Kavosi. The Prosecution’s evidence is appraised as against the provisions of Section 107(1),108 and 109 of the Evidence Act, which provides as follows: - *107: (1) Whoever desires any Court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.* *(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.* *108: The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.* *109: The burden of proof as to any particular facts lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.* 1. The Court in *[Mbugwa Kariuki Vs The Republic](http://kenyalaw.org/caselaw/cases/view/36840/%22%20%5Ct%20%22_blank) [1976-80] 1 KLR 1085* emphasized: - *“That the burden of proof remains on the state throughout to establish the case against the accused beyond reasonable doubt. Where the defence raises an issue such as provocation, alibi, self-defence, the burden of proof does not shift to the accused, instead the Prosecution must negate that the defence beyond reasonable doubt and the accused assumes no onus in respect of any such defence.* 1. The standard of proof is the extent to which a party ought to prove its case in order to succeed. This standard is simply a measuring point and is determined by examining the quantity and quality of the evidence presented. This Court should therefore examine whether the Prosecution has discharged such a legal onus. This initial burden of proof that the state bears to proof all the ingredients of beyond reasonable doubt in order for the accused persons to be convicted may only appear to be shifted to the accused persons only in two circumstances. First, is in the exceptional circumstances formulated under Section 111 of the Evidence Act. Secondly, where the defence raised falls within the rubric of insanity, justification, excusable, self-defence or any other presumptions known in law. When an accused person raises any of these defences, more so the ones on self-defence, provocation, he/she is not denying the facts rather he/she affirms the action or omission asserted by the Prosecution but invokes justification or excuses against criminal liability. The other defences like insanity are to have him/her exonerated from liability for reasons of mental infirmity such as in this case. 2. Under Article 50 (2) (a) of [the Constitution](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution), the accused is presumed innocent until the contrary is proved either by direct or circumstantial evidence. The superior Courts in passing judgment on the standard and burden of proof of beyond reasonable doubt which is vested wholly with the Prosecution and never shifts to the accused person have articulated the fundamental guidelines in the following case law: In the locus clasicus case of Denning J, as he then was in *Miller v Ministry of Pensions [1947] 2 AII ER 372* he stated as follows: - *“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 the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to defect 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.”* 1. The Supreme Court of Nigeria in *Bakare v State [1985] 2 NWLR* stated as follows: *“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the Prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says, not admit of plausible possibilities and fanciful possibilities but it does admit a high degree of cogency consistent with an equally high degree of probability.”* 1. The issue before this Court is whether the Prosecution has discharged the burden of proof of beyond reasonable doubt in respect with the charge of murder against the accused person. In Criminal Appeal No. 352 of 2012 *Anthony Ndegwa Ngari Vs Republic [2014] eKLR*, the Court of Appeal established the elements that, if proved, constitute the offence of murder. It enumerated them as follows: - 2. The death of the deceased and its cause; 3. That the accused committed the unlawful act which caused the death of the deceased; and 4. That the accused had malice aforethought. 5. This Court will determine the issues above sequentially. **Whether the fact and cause of death of the deceased were proved** 1. The first ingredient of the offence of murder under Section 203 of the Penal Code is proof that the deceased died. This element is ordinarily proved through direct evidence identifying the deceased's body and medical evidence establishing the cause of death. In the present case, there is absolutely no dispute regarding the death of Deina Kavosi. Indeed, all the parties, including the Accused Persons during their defence, acknowledged that the deceased died on the material night. 2. PW1, Alice Kanguha, who is the deceased's daughter, testified that after receiving information from PW2, she rushed to her mother's home where she found the deceased lying motionless inside her bedroom. She described the horrifying condition in which she found the body, namely that the deceased's hands and legs had been tied behind her back, a sweater had been tied around her neck and a blanket covered her face. PW2, Florence Ingishia Mandu, corroborated the testimony of PW1. She equally entered the deceased's bedroom and found the deceased lying lifeless with both her hands and legs tied. She immediately informed the area Chief before police officers visited the scene. PW3, Chief Evans Endesia, similarly confirmed that upon entering the deceased's house he found the deceased lying on the floor with her hands and legs tied using manila ropes while blood stains were visible on the floor. His testimony substantially corroborated that of PW1 and PW2. Moreover, PW4, Clarance Mudanya, another close relative of the deceased, equally visited the scene and confirmed the condition in which the deceased's body was found before it was removed to Kaimosi Mortuary. 3. The testimonies of PW1, PW2, PW3 and PW4 therefore consistently establish that the deceased was found dead inside her own house on the morning of 21st December 2021. Medical evidence was tendered by PW5, Dr. Adori Akalicha, a Medical Officer attached to Vihiga County Referral Hospital. PW5 testified that he conducted a post-mortem examination upon the body of the deceased on 23rd December 2021. His findings were extensive and deeply disturbing. Externally, he observed: - a sharp cut wound on the forehead; several rough-edged cut wounds on the scalp; bruises; injuries on the knee; bilateral labial lacerations. Internally, he established: - fracture of both the parietal and occipital bones; brain contusion; mild extradural haemorrhage; scalp vessel injuries and subluxation involving cervical vertebrae C3 and C4. 4. Having considered all these findings, PW5 formed the professional opinion that the deceased died as a result of: ***"****Asphyxia secondary to severe head and cervical injuries due to assault.****"*** The Post Mortem Report was produced in evidence as Prosecution Exhibit 9. The defence did not challenge either the qualifications of PW5 or the contents of the post-mortem report. Consequently, this Court has no reason whatsoever to doubt the medical findings. The Court therefore finds that both the fact of death and the medical cause of death were proved beyond reasonable doubt. **Whether the death was caused by an unlawful act** 1. The second ingredient that the Prosecution is required to establish is whether the deceased's death resulted from an unlawful act or omission. The starting point will be to lay the legal foundation as provided for Section 213 of the Penal Code which defines causing death to include acts which are not the immediate or sole causes of the death. The accused would be held responsible for another person’s death although his act is not the immediate or sole cause under the following circumstances: (a) He inflicts bodily injury on another person and as a consequence of that injury the injured person undergoes a surgery or treatment which causes his death; (b) he inflicts injury on another which would not have caused death if the injured person had submitted to proper medical or surgical treatment or had proper precautions as his mode of living: (c) He by actual or threatened violence causes such other person to perform an act which causes the death of such person, such an act being a means of avoiding such violence which in the circumstances appear natural to the person whose death is so caused: (d) He by an act hastens the death of a person suffering under any disease or injury which apart from such an act or omission would have caused the death; and (e) His act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons. 2. It is trite law that every homicide is unlawful unless justified or excusable as contemplated in Article 26(4) of the Constitution. The landmark case of *Guzambizi Wesonga v Republic [1948] 15 EACA 63* addressed this element as follows: - *“Every homicide is presumed to be unlawful except where circumstances make it excusable or where it has been authorized by law. For a homicide to be excusable, it must have been under justifiable circumstances, for example in self-defense or in defense of property.”* 1. Like all elements of the offence of homicide, the element of actual causation must be proved beyond reasonable doubt by way of evidence. That is, it must be shown that it was more likely than not that the fatal injuries would not have occurred but for the accused person’s breach of the duty of care. It is also the contemplation of the law that in terms of Section 203 of the Penal Code as read with Article 26(4) of the Constitution, this offence may be justified or excusable if the threshold provided for in Section 17, 207 and 208 of the Penal Code is established by the accused person. 2. However, it must not be lost by this Court that the burden of proof is on the Prosecution to prove beyond reasonable doubt that the case is not one of provocation or self-defence. The defence of self is clearly articulated in the following case law. The common law position as regards the defence of self-defence was well articulated by the Court of Appeal in *Ahmed Mohammed Omar & 5 others v Republic [2014] eKLR* as follows: *“25. The common law position regarding the defence of self-defense has changed over time. Prior to the decision of the House of Lords in DPP v Morgan [1975] 2 ALL ER 347, the view was that it was an essential element of self-defense not only that the accused believed that he was being attacked or in imminent danger of being attacked but also that such belief was based on reasonable grounds. But in DPP v Morgan (supra) it was held that:* *26. “...........if the appellant might have been labouring under mistake as to the facts, he was to be judged according to his mistaken view of facts, whether the mistake was, on an objective view, reasonable or not. The reasonableness or unreasonableness of the appellants' belief was material to the question whether the belief was held, its unreasonableness, so far as guilt or innocence was concerned, was irrelevant.”* 1. In *R v Williams [1987] 3 ALL ER 411,* Lord Lane, C J held: - *“In case of self-defence, where self-defence or the prevention of crime is concerned, if the jury come to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the Prosecution have not proved their case. If, however, the defendant's alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected. Even if the jury come to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely on it.”* 1. In the instant case, the evidence overwhelmingly demonstrates that the deceased died as a result of an extremely violent assault. PW1 found the deceased's hands and legs tied. PW2 equally confirmed that both the hands and legs had been tied. PW3 observed that the deceased had been tied using manila ropes and that there were blood stains within the bedroom. PW4 similarly testified that after police officers removed the blanket they discovered that the deceased had been strangled using both a leso and a sweater. The Investigating Officer, PW7, confirmed these observations upon visiting the scene. 2. The medical findings of PW5 completely corroborated the observations made by the civilian witnesses. The deceased sustained: - numerous head injuries; fractures involving the skull; brain injuries; cervical injuries; strangulation injuries and extensive bodily trauma. These injuries were neither accidental nor self-inflicted. Indeed, the tying of the deceased's hands and legs behind her back completely incapacitated her before the fatal injuries were inflicted. This was therefore a calculated and deliberate attack directed at a vulnerable elderly woman inside her own home. 3. No evidence was adduced suggesting that the deceased provoked her attackers. Neither was there any evidence that the injuries resulted from accident. Equally, there is no suggestion that the killing occurred in circumstances recognized by law as lawful homicide. The Court therefore has absolutely no hesitation in finding that the deceased died as a result of an **unlawful act.** **Whether the Prosecution proved that the accused persons caused the death of the deceased** 1. This issue forms the central question in the present case. Whereas the fact of death and its unlawful cause are not in dispute, the real question is whether the Prosecution has established beyond reasonable doubt that it was the four Accused Persons, acting either individually or jointly, who committed the offence. A careful examination of the record reveals that **there was no eyewitness who testified that he or she saw any of the Accused Persons assault the deceased.** Similarly: - no witness testified to having seen any accused enter or leave the deceased's house; no murder weapon was recovered from any accused person; no fingerprints were recovered placing any accused at the scene; no DNA evidence connected any of the accused persons to the assault; no confession was recorded in accordance with **Section 25A of the Evidence Act.** It follows therefore that the Prosecution case rests **entirely on circumstantial evidence.** 2. Circumstantial evidence is often the only available evidence in homicide cases committed in secrecy. The law is now firmly settled that a conviction may properly be found entirely upon circumstantial evidence provided the circumstances satisfy the strict legal tests established over decades by the superior Courts. In such a scenario, this Court is called upon to closely examine the evidence on record, not only as its normal calling as the trial Court, but also to ascertain whether the evidence satisfies the following requirements. In ***Abanga alias Onyango v Republic Cr. Appeal No. 32 of 1990,*** the Court of Appeal laid down the three essential tests governing reliance upon circumstantial evidence, namely: - 3. *The circumstances from which the inference of guilt is sought to be drawn must be firmly established.* 4. *Those circumstances should unerringly point towards the guilt of the accused.* 5. *The circumstances taken cumulatively should form a complete chain leaving no escape from the conclusion that within all human probability the offence was committed by the accused and none else.* 6. The foregone principles were set out in the locus classicus case of *R -vs- Kipkering arap Koske & Another (1949) 16 EACA 135*and have repeatedly been used in subsequent cases including the Court of Appeal cases of *GMI -vs- Republic (2013) eKLR, Musii Tulo vs. Republic (2014) eKLR* among many others. The Court of Appeal in Musii Tulo (supra) in expounding the above principles expressed itself as follows: - *In order to ascertain whether or not the inculpatory facts put forward by the Prosecution are incompatible with the innocence of the appellant and incapable of explanation upon any other reasonable hypothesis than that of guilty, we must also consider a further principle set out in the case of* Musoke v. R (1958) EA 715 *citing with approval* Teper v. R (1952) AL 480 *thus: -* *'It is also necessary before drawing the inference of accused's guilty from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.'* 1. Further, the Court of Appeal in *Sawe- Vs- Republic [2003] KLR 364 at page 372* had this to say regarding circumstantial evidence: - *…. In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other coexisting circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the Prosecution and always remains with the Prosecution. It is a burden, which never shifts to the party accused…...* 1. Later, the Court of Appeal in *Ahamad Abolfathi Mohammed and Another vs. Republic [2018] eKLR* had this to say on circumstantial evidence: - *…. However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a Court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21:* *It has been said that the evidence against the Applicant is circumstantial. So, it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial….* 1. Consequently, before convicting on circumstantial evidence, this Court must examine whether every link in the evidential chain has been firmly established and whether the chain excludes every reasonable hypothesis consistent with innocence. It is therefore necessary to analyze separately the evidence against each accused person before determining whether the chain of circumstantial evidence is complete. 2. **Whether the evidence against the 1st accused person was sufficient** 3. The Prosecution case against the 1st Accused Person is substantially stronger than that against the remaining Accused Persons. PW7, the Investigating Officer, testified that investigations led to the recovery of the deceased's mobile phone, SIM card and voter's card from the possession of the 1st Accused Person shortly after the murder. The evidence of PW1 and PW6 established that while family members were mourning the deceased, they received telephone calls from a person using the deceased own mobile phone. PW1 testified that the caller introduced himself as a pastor and informed her that he knew the people who had murdered her mother. The caller demanded a sum of **Kshs. 10,000/=** before he could disclose the identities of the killers. PW6 equally confirmed receiving a similar telephone call from the same number. The caller similarly demanded money while claiming to possess crucial information concerning the murder. 4. PW7 testified that investigations subsequently traced the deceased's phone to the 1st Accused Person. The 1st Accused admitted during his defence that he was indeed found in possession of the deceased's phone. His explanation was that he had allegedly found the phone near the deceased's body after discovering that she had already died and retained it merely to enable him notify the deceased's relatives. 5. The Court has anxiously considered this explanation. In the Court's view, the explanation is wholly implausible and inconsistent with ordinary human conduct. If indeed the 1st Accused innocently recovered the phone for purposes of notifying relatives, there would have been absolutely no reason to retain the deceased's SIM card, voter's card and mobile phone long after the incident. Even more telling is the evidence that the person using the deceased's phone sought financial gain by demanding Kshs. 10,000/= from grieving family members. 6. The conduct exhibited by the user of the deceased's phone demonstrates not an intention to assist the family but rather an intention to exploit the deceased's death for personal benefit. The Court finds that such conduct is inconsistent with innocence. 7. The Prosecution further relied upon the **Doctrine of Recent Possession**. The doctrine of recent possession is a well-established rule of evidence. It permits a Court to infer that a person found in possession of recently stolen property is either the thief or participated in the offence in which the property was stolen unless he offers a reasonable explanation consistent with innocence. In ***Andrea Obonyo v Republic [1962] EA 542***, the Court held that where an accused person is found in possession of recently stolen property and fails to give a reasonable explanation, a presumption arises that he either stole the property or participated in the offence leading to its theft. Similarly, in ***Malingi v Republic [1989] KLR 225,*** the Court of Appeal held that before the doctrine can be invoked, the Prosecution must establish: - 8. *that the property was found with the accused;* 9. *that the property positively belonged to the complainant;* 10. *that the property had been recently stolen; and* 11. *that the accused failed to offer a reasonable explanation for such possession.* 12. The guidelines for reaching a conviction on recent possession were succinctly set out by this Court in *Isaac Ng'ang'a Kahiga alias Peter Ng'ang'a Kahiga vs. Republic – [2006] eKLR*, where it was stated thus: - *“…. It is trite that before a Court of law can rely on the doctrine of recent possession as a basis for conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first: that the property was found with the suspect, secondly that the property is positively the property of the complainant; thirdly, that the property was stolen from the complainant and lastly, that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other.”* 1. Applying these principles to the present case, this Court finds that all the necessary ingredients were established. First, PW7 recovered the deceased's mobile phone, SIM card and voter's card from the possession of the 1st Accused. Secondly, PW1 positively identified the recovered phone as belonging to the deceased. Thirdly, the phone had only recently been taken from the deceased immediately after her murder. Fourthly, the explanation advanced by the 1st Accused does not satisfactorily account for his prolonged possession of the phone or for its subsequent use to solicit money from the deceased's relatives. 2. In the Court's considered view, the conduct of the 1st Accused after the murder is incapable of reconciliation with innocence. His possession of the deceased's property shortly after the murder, when considered together with the telephone calls made using the deceased's handset, constitutes a strong incriminating circumstance linking him to the offence. Although the doctrine of recent possession is ordinarily applied to offences involving theft or robbery, Kenyan Courts have held that where property is stolen during the commission of a homicide and is found in the possession of an accused person shortly thereafter, such possession becomes an important link in the chain of circumstantial evidence connecting the accused to the killing. 3. Accordingly, this Court finds that the Prosecution established a significant evidential link between the 1st Accused Person and the murder of the deceased. 4. **Whether the evidence against the 2nd, 3rd and 4th accused persons was sufficient** 5. The Court now turns to the evidence against the 2nd, 3rd and 4th Accused Persons. Unlike the 1st Accused Person, no incriminating exhibit was recovered from any of them. No witness testified to having seen any of them entering or leaving the deceased's compound on the material night. No forensic evidence connected them with the crime scene. No DNA evidence linked them to the deceased. No fingerprints were recovered from the scene connecting them to the offence. No blood samples matching any of them were recovered. No murder weapon was recovered from their possession. No call data records were produced demonstrating communication between them immediately before or after the murder. 6. The Prosecution case against these three accused persons’ rests almost entirely upon the statements allegedly made by the **1st Accused Person** after his arrest and the telephone calls allegedly received by PW1 and PW6. PW7 testified that during investigations, the 1st Accused implicated the 2nd, 3rd and 4th Accused Persons by alleging that the murder had been planned by the 2nd Accused over a family land dispute. However, beyond that allegation, no independent evidence was adduced to corroborate the alleged involvement of the 2nd, 3rd and 4th Accused Persons. 7. The law is settled that the implication of a co-accused by another accused person, without independent corroborative evidence, is generally insufficient to found a conviction. The Court of Appeal in ***Anyangu & Others v Republic [1968] EA 239*** emphasized that evidence implicating a co-accused must be approached with great caution because an accused person may seek to shift blame or minimize his own culpability. Similarly, in ***Kinyua v Republic [2002] 1 KLR 256***, the Court held that where the Prosecution relies upon the evidence of an accomplice or co-accused, such evidence should ordinarily be corroborated by independent material evidence connecting the other accused persons to the offence. In the present case, no such corroboration exists. The alleged telephone caller who purportedly implicated the 2nd Accused was never identified. His identity remains completely unknown. Neither the alleged audio recordings nor any electronic evidence identifying the caller was produced before Court. No expert evidence was adduced to establish that the caller was any of the Accused Persons. 8. Consequently, the Court finds that the evidence against the 2nd, 3rd and 4th Accused Persons remains largely speculative and is unsupported by independent evidence capable of completing the chain of circumstantial evidence. While the circumstances surrounding the murder undoubtedly raise suspicion regarding several individuals, it is trite law that suspicion, however grave or compelling, cannot take the place of legal proof. As the Court of Appeal observed in ***Sawe v Republic (supra):*** - "Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt." 1. The Court therefore concludes that, on the evidence presently before it, the circumstantial evidence directly implicates only the 1st Accused Person. As regards the 2nd, 3rd and 4th Accused Persons, the evidential chain remains incomplete and is weakened by the absence of independent corroborative evidence linking them to the commission of the offence. **Whether the Prosecution proved malice aforethought** 1. The final ingredient that the Prosecution must establish is that the unlawful killing of the deceased was accompanied by **malice aforethought** as contemplated under Section 206 of the Penal Code. Malice aforethought is the distinguishing element between the offence of murder and other forms of unlawful homicide. It denotes the mental element accompanying the unlawful act and may be inferred from the circumstances surrounding the commission of the offence. 2. Section 206 of the Penal Code provides that 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 whether that person is the person actually killed or not;* ***(b)*** *knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or by a wish that it may not be caused;* ***(c)*** *an intent to commit a felony;* ***(d)*** *an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony."* 1. The Court of Appeal has also dealt with the issue of malice aforethought on several occasions. In *Joseph Kimani Njau vs Republic (2014) eKLR,* the Court of Appeal in concurring with an earlier finding of that Court (but differently constituted) in *Nzuki vs Republic (1993) KLR 171*, held as follows: - *Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused; -* 1. *The intention to cause death;* 2. *The intention to cause grievous bodily harm;* 3. *Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.* *It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed The mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into a crime of murder. (See Hyman vs. Director of Public Prosecutions (1975) AC 55”. (emphasis added).* 1. The factors in which such inference can be drawn, were laid out in the case of *R v Tubere S/o Ochen [1945] 1 E.A.C.A. 63;* when the deceased had been beaten to death with a stick. Justice Sir Sheridan stated that: - *“With regard to the use of a stick in cases of homicide, this Court has not attempted to lay down a hard and fast rule. It has a duty to perform in considering the weapon used, the manner in which it is used, and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an interference of malice will flow more readily from the use of say, a spear or knife than from the use of a stick; that is not to say that the Court take a lenient view where a stick is used. Every case has of course to be judged on its own facts”* 1. In addition, the *Tanzanian Court in Enock Kipela v Republic, Criminal Appeal No. 150 of 1994 (unreported)* on the same principles to manifest malice aforethought stated: - *“Usually an attacker will not declare his intention to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various factors including the following: (1) the type and size of weapon, if any used in the attack; (2) the amount of force applied in the assault; (3) the part or parts of the body the blows were directed at or inflicted on; (4) the number of blows, although one blow may, depending on the facts, of a particular case, be sufficient for this purpose; (5) the kind of injuries inflicted; (6) the attacker’s utterances, if any, made before, during or after the killing and (7) the conduct of the attacker before and after the killing.”* 1. Applying the foregoing principles to the present case, the evidence tendered by the Prosecution leaves no doubt that whoever attacked the deceased acted with the requisite malice aforethought. PW1, PW2, PW3 and PW4 all testified that the deceased was found lying inside her house with both her hands and legs tied. PW1 further testified that a sweater had been tied around the deceased's neck while PW3 recovered blood stains and other exhibits from the scene. The evidence of PW5, the pathologist, was particularly instructive. He established that the deceased sustained multiple severe injuries including skull fractures, brain contusions, cervical spine injuries, multiple cut wounds on the scalp and evidence of strangulation. The cause of death was certified as **asphyxia secondary to severe head and cervical injuries due to assault**. 2. The multiplicity and severity of these injuries demonstrate a sustained, vicious and deliberate attack. The deceased was first rendered helpless by having her hands and legs tied before being subjected to repeated blows to the head and eventually strangled. Such acts cannot reasonably be construed as accidental or reckless. They reveal a clear intention either to cause death or, at the very least, grievous bodily harm, both of which fall squarely within Section 206(a) and (b) of the Penal Code. 3. Accordingly, this Court is satisfied that the Prosecution proved beyond reasonable doubt that whoever assaulted the deceased acted with malice aforethought. **Whether the Prosecution established common intention** 1. The Prosecution charged all the four Accused Persons jointly and thereby invited this Court to invoke the doctrine of **common intention** under **Section 21 of the Penal Code**. Section 21 of the Penal Code provides that: - "When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the Prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the Prosecution of such purpose, each of them is deemed to have committed the offence." 1. The doctrine of common intention is founded on the principle that where several persons deliberately combine to pursue an unlawful purpose, each participant bears criminal responsibility for acts committed in furtherance of that common design. The ingredients of the doctrine of common intention were enunciated in *Eunice Musenya Ndui versus Republic, Criminal Appeal No. 534 of 2010 (2011) eKLR.* In a nutshell, they are: - 2. *There must be two or more persons;* 3. *The persons must form a common intention;* 4. *The common intention must be towards prosecuting an unlawful purpose in conjunction with one another;* 5. *An offence must be committed in the process;* 6. *The offence must be of such a nature that its commission was a probable consequence of the Prosecution of the unlawful purpose.* 7. However, the doctrine does not arise merely because several persons are jointly charged. The Prosecution must establish, by cogent evidence, that there existed a prior meeting of minds, a common design or concerted action directed towards the commission of the offence. In ***Njoroge v Republic [1983] KLR 197***, the Court of Appeal held that common intention may develop in the course of events, but there must nevertheless be evidence from which the Court can infer that the accused persons acted in concert in pursuit of a shared unlawful purpose. Similarly, in ***Dickson Mwangi Munene & Another v Republic [2014] eKLR*,** the Court of Appeal observed that common intention cannot be inferred merely from presence at the scene or association with other suspects. Rather, there must be evidence demonstrating participation, encouragement, facilitation or conduct from which a common design may reasonably be inferred. 8. Earlier, in ***R v Tabulayenka s/o Kirya (1943) 10 EACA 51***, the former Court of Appeal for Eastern Africa held that common intention is a question of fact to be inferred from the conduct of the accused persons and the surrounding circumstances. In the present case, the Prosecution contended that all the four Accused Persons jointly participated in the murder of the deceased. The Court has carefully re-evaluated the entirety of the Prosecution evidence with this doctrine in mind. 9. The evidence reveals that the principle basis upon which the 2nd, 3rd and 4th Accused Persons were implicated was the statement allegedly made by the **1st Accused Person** after his arrest. PW7 testified that during investigations, the 1st Accused alleged that the 2nd Accused orchestrated the murder because of a land dispute and that the 3rd and 4th Accused Persons participated in its execution. However, beyond that allegation, the Prosecution did not place before this Court any independent evidence linking the 2nd, 3rd or 4th Accused Persons to the offence. 10. It is on record that no witness testified to having seen them at or near the deceased's home on the material night. No call data records were produced demonstrating communication between the accused persons before or after the offence. No forensic evidence, fingerprints, DNA evidence, mobile phone analysis or recovery of incriminating exhibits connected them to the crime scene. Equally, no confession recorded in accordance with Section 25A of the Evidence Act was produced. The Court further notes that the alleged telephone calls received by PW1 and PW6 were made by an unidentified caller whose identity was never established. The caller was never traced, no voice analysis was undertaken and no electronic evidence was tendered linking any of the Accused Persons to those calls. 11. The Court is alive to the principle that the implication of a co-accused by another accused person is evidence that must be treated with considerable caution. Such evidence, standing on its own, is generally insufficient to sustain a conviction unless it is corroborated by independent evidence. The reason is obvious: an accused person may seek to exculpate himself by shifting blame to others. In the instant case, the only direct implication of the 2nd, 3rd and 4th Accused Persons emanated from the 1st Accused Person. That allegation remained wholly uncorroborated by any independent evidence. In the absence of such corroboration, this Court is unable to safely rely upon it as proof of a common design. 12. This Court therefore finds that, although the Prosecution attempted to invoke the doctrine of common intention under Section 21 of the Penal Code, the evidence tendered fell short of the legal threshold. The chain of evidence establishing a prior meeting of minds, coordinated participation or concerted execution of the offence was not completed. Consequently, the doctrine of common intention was significantly weakened by the absence of independent corroborative evidence. Mere implication by the 1st Accused Person, without more, cannot establish criminal liability against the remaining Accused Persons beyond reasonable doubt. 13. This Court therefore declines to invoke Section 21 of the Penal Code against the 2nd, 3rd and 4th Accused Persons. **Analysis of the Defence** 1. The accused persons being placed on their defence each elected to give sworn testimony. The Court has carefully considered each defence alongside the Prosecution evidence. The 1st Accused admitted that he was found in possession of the deceased's mobile phone. His explanation that he merely recovered the phone from the scene for purposes of contacting relatives is, in the Court's view, untenable. It fails to explain why he retained not only the phone but also the deceased's SIM card and voter's card, or why the deceased's phone was subsequently used to demand money from her relatives. His defence is therefore displaced by the Prosecution evidence. 2. Conversely, the defences advanced by the 2nd, 3rd and 4th Accused Persons were never effectively displaced by the Prosecution. Their involvement was not supported by eyewitness testimony, forensic evidence or any other independent material. Their explanations therefore raised reasonable doubt which the Prosecution failed to eliminate. It bears repeating that suspicion, however strong, cannot substitute proof beyond reasonable doubt. While the circumstances surrounding the murder undoubtedly generated suspicion against the 2nd, 3rd and 4th Accused Persons, criminal liability cannot be founded upon conjecture or suspicion. The Prosecution must prove its case by credible and cogent evidence and where doubt exists, that doubt must be resolved in favour of the accused. 3. Having carefully re-evaluated the entire evidence on record, this Court reaches the following conclusions: - 4. The Prosecution proved beyond reasonable doubt the fact and cause of the deceased's death. 5. The Prosecution established that the deceased died as a result of an unlawful act. 6. The Prosecution proved that the assailant acted with malice aforethought within the meaning of Section 206 of the Penal Code. 7. The chain of circumstantial evidence, particularly the recovery of the deceased's property from the 1st Accused Person, his conduct after the murder and the absence of a credible explanation for his possession of the deceased's belongings, irresistibly points to his participation in the offence. 8. However, the Prosecution failed to establish beyond reasonable doubt that the 2nd, 3rd and 4th Accused Persons participated in the murder. The evidence against them rested principally on allegations made by the 1st Accused Person, which were not corroborated by any independent evidence. The Prosecution equally failed to establish the existence of a common intention under Section 21 of the Penal Code. 9. Accordingly, this Court is satisfied that the Prosecution proved the charge of murder against the **1st Accused Person** beyond reasonable doubt but failed to do so against the **2nd, 3rd and 4th Accused Persons**. **Determination** 1. Having carefully reconsidered the entire evidence adduced before this Court, the documentary exhibits produced by the Prosecution, the sworn testimony of the four Accused Persons, the submissions of counsel, the applicable constitutional and statutory provisions, and the relevant judicial precedents, this Court now proceeds to render its final determination. 2. It is trite that in criminal proceedings, the burden of proof rests entirely upon the Prosecution throughout the trial and never shifts to an accused person. This burden must be discharged beyond reasonable doubt. Where any reasonable doubt exists, such doubt must invariably be resolved in favour of the accused person. This principle finds expression under *Article 50(2)(a) of the Constitution, Sections 107, 108 and 109 of the Evidence Act*, and has consistently been reaffirmed by our superior Courts. 3. From the evidence on record, this Court has already found that the Prosecution successfully established the first and second ingredients of the offence of murder. The death of the deceased, Deina Kavosi, was proved by both eyewitness testimony and medical evidence. The post-mortem examination conducted by PW5 conclusively established that the deceased died from asphyxia secondary to severe head and cervical injuries due to assault. There is equally no doubt that the death resulted from an unlawful act, the deceased having been violently assaulted, tied up and strangled. 4. The central issue has always been whether the Prosecution established, beyond reasonable doubt, the identity of the person or persons responsible for the commission of that unlawful act. Upon an exhaustive analysis of the evidence, this Court is satisfied that the Prosecution proved a complete chain of circumstantial evidence against the 1st Accused Person, Geoffrey Kibunja Vunziru. 5. First, the deceased's mobile phone, SIM card and voter's card were recovered from his possession shortly after the murder. Secondly, the same mobile phone was used to contact PW1 and PW6 while falsely purporting to provide information concerning the murder in exchange for money. Thirdly, the explanation offered by the 1st Accused regarding his possession of the deceased's property was found to be implausible, inconsistent and incapable of displacing the inference arising under the doctrine of recent possession. 6. The Court has carefully considered whether there exist any co-existing circumstances capable of weakening the chain of circumstantial evidence against the 1st Accused. None has been demonstrated. The cumulative effect of the evidence presented leaves this Court satisfied that the chain is complete and points irresistibly to the guilt of the 1st Accused Person to the exclusion of any other reasonable hypothesis. 7. The Prosecution therefore discharged the burden of proving beyond reasonable doubt that the 1st Accused Person participated in the unlawful killing of the deceased with malice aforethought. The position of the 2nd, 3rd and 4th Accused Persons, however, stands on an entirely different footing. Although the Prosecution alleged that the offence was jointly committed pursuant to a common intention within the meaning of Section 21 of the Penal Code, the evidence tendered before this Court fell considerably short of establishing that legal doctrine. 8. With regard to the 2nd, 3rd and 4th Accused Persons, the Prosecution case rested substantially on the alleged implication made by the 1st Accused Person after his arrest. The Investigating Officer (PW7) testified that the 1st Accused informed the police that the 2nd Accused had orchestrated the murder over a family land dispute and that the 3rd and 4th Accused Persons participated in its execution. However, beyond this allegation, the Prosecution failed to adduce any independent evidence connecting the said Accused Persons to the commission of the offence. No witness placed them at the scene of the crime, no forensic evidence linked them to the deceased, no DNA or fingerprint evidence was recovered, no call data records or electronic evidence established communication among them before or after the murder, and no incriminating exhibits were recovered from any of them. The Prosecution also failed to produce any confession recorded in accordance with Section 25A of the Evidence Act. 9. The implication of the 2nd, 3rd and 4th Accused Persons by the 1st Accused Person raises the issue of accomplice evidence. Although the 1st Accused was not formally tendered as an accomplice witness, his attempt to implicate his co-accused persons after his arrest must be approached with the same degree of caution that the law requires in relation to accomplice testimony. The rationale is that a person implicated in the commission of an offence may seek to exonerate himself or lessen his culpability by shifting blame to others. The Court of Appeal in *Anyangu & Others v Republic [1968] EA 239* held that while a conviction may, in appropriate circumstances, be based on accomplice evidence, it is dangerous to do so unless such evidence is corroborated in material particulars implicating the accused. Similarly, in *Kinyua v Republic [2002] 1 KLR 256*, the Court emphasized that evidence of an accomplice or co-offender should be treated with great caution and ordinarily requires independent corroboration connecting the accused person to the offence. 10. In the present case, the allegations made by the 1st Accused Person against the 2nd, 3rd and 4th Accused Persons remained wholly uncorroborated. There was no independent evidence placing them at the scene, demonstrating their participation in the planning or execution of the offence, or establishing that they acted in concert with the 1st Accused Person. The Prosecution did not call any witness to corroborate the alleged involvement of the three Accused Persons, nor did it produce any scientific or electronic evidence linking them to the murder. Consequently, the allegations by the 1st Accused Person remained no more than unsubstantiated assertions, which this Court cannot safely rely upon as the basis for a conviction. 11. The Court is equally mindful that criminal liability cannot be founded upon mere suspicion, however compelling that suspicion may appear. It is evident that the Prosecution suspected the 2nd, 3rd and 4th Accused Persons of participating in the murder, particularly in light of the alleged family land dispute and the allegations made by the 1st Accused Person. However, suspicion, irrespective of its strength, is not evidence and cannot satisfy the constitutional threshold of proof beyond reasonable doubt. In *Sawe v Republic [2003] KLR 364*, the Court of Appeal emphatically stated that *"suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt."* Likewise, in *Mary Wanjiku Gichira v Republic, Criminal Appeal No. 17 of 1998*, the Court reiterated that however strong the suspicion against an accused person may be, it cannot be a substitute for legal proof. 12. This Court finds that the evidence against the 2nd, 3rd and 4th Accused Persons amounted to no more than suspicion founded principally upon the allegations of the 1st Accused Person. In the absence of independent corroborative evidence establishing their participation in the commission of the offence, the Prosecution failed to prove beyond reasonable doubt that they shared a common intention with the 1st Accused Person or otherwise participated in the murder of the deceased. The evidential gaps identified by this Court are fatal to the Prosecution's case against them. To convict them on the basis of such evidence would offend the constitutional presumption of innocence under Article 50(2)(a) of the Constitution and the settled principles governing proof in criminal proceedings. Accordingly, the benefit of doubt must be resolved in their favour. **Final Orders** 1. In the premises, and for the reasons set out in this Judgment, this Court makes the following orders: - 2. *That the Court finds that the Prosecution has proved beyond reasonable doubt all the ingredients of the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code against the* ***1st Accused*** *Person, Geoffrey Kibunja Vunziru.* 3. *That accordingly, the 1st Accused Person, Geoffrey Kibunja Vunziru be and is hereby found GUILTY of the offence of Murder and is convicted accordingly pursuant to Section 203 of the Penal Code for the offence of murder of the deceased.* 4. *That the Court finds that the Prosecution has failed to prove beyond reasonable doubt the charge of murder against the 2nd Accused Person, Lucy Lozenja, the 3rd Accused Person, Charles Ndori and the 4th Accused Person, Patrick Osuku and as a consequence they stand acquitted unless otherwise lawfully held.* 5. *That each party be at liberty to file an appeal within 14 days in the Court of Appeal.* Orders accordingly*.* **DATED, SIGNED AND DELIVERED VIRTUALLY AND PUBLISHED VIA CTS THIS 20TH DAY OF AUGUST 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **R. NYAKUNDI** **JUDGE**