https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8241

Republic v Kimula alias Mwalimu (Criminal Case E014 of 2022) [2026] KEHC 8241 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEHC 8241 (KLR) Republic of Kenya In the High Court at Makueni Criminal Case E014 of 2022 TM Matheka, J May 29, 2026 Between Republic State and Nicholas Katua Kimula alias Mwalimu Accused Judgment 1.The accused person, Nicholas Katua Kimula alias Mwalimu is charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code.The particulars are that on 17th June, 2022 at Masalami village in Kyale Sub-location within Kiboko Location, Makindu Sub-County, Makueni County he murdered his father Julius Kimula Kisulu. 2.He took plea on 22nd March, 2023 and pleaded not guilty. 3.PW1, was Dr. Emmanuel Laiposha who produced the Post-Mortem prepared by his colleague Dr. Makali. The post-mortem examination was conducted on 24th June, 2020 at 3:30 p.m. at Makindu Sub-County Hospital. It was the body of a male burnt beyond recognition. He said the body had 4th and 5th degree burns, 100% total surface area was exposed, small intestines were also burnt, 4.There were arrow stab wounds:- In the right lung, with an arrow head lodged in the each of the lungs. Through arrow stab wound in the heart. 5.Burnt genitals, 4th degree burns in the head, nervous system, spinal column, spinal cord – all burnt. 6.Cause of death – cardio pulmonary failure caused by arrow stab wounds in the heart and lungs. 7.On Cross-examination as to whether any arrow heads were recovered from the body he told the court that the report showed that there was an arrow head lodged in the left lung – in the through and through arrow head injury he told the court it meant that the wound had arrow entry and an exit – but the exit wound was not indicated. 8.He said the pathologist determined that cause of death was the arrow heads and not the fire because with the lungs and the heart both punctured one would not survive – that the deceased died, the burning was secondary. 9.PW2, Florence Mwikali Kimula testified that the deceased was her husband, the accused was her step son – the son of her co-wife. She told the court that on 17th June, 2020 at 11:00 p.m. she and her husband had gone to sleep – and the sons – were sleeping in the boy’s room which was separate from their house. She named the boys as Boniface Mutie Kimula, Stephen Kituli, Muendo Kimuli. She heard shouts – screams – the boys were calling out to their father – they were screaming for him to run quickly to their rescue as Katua had arrived and was killing them.She and her husband rushed there and found the boys inside – one of them was holding onto the door from inside – but he let go when he heard them. 10.On entry, she said they found Boniface had been cut on the head, hands was lying on the bed bleeding. Stephen told them that Katua had cut Boniface. While they were taking Boniface to take him to her room, her husband went out to look for the person who had injured Boniface – he stood at the door of the boy’s room. Then she heard him shout “mama Mbithe! Amenidunga mshale.” They carried Boniface to her room and her husband walked with them but when he opened the door he fell down. 11.She wrapped Mutie’s head with a lesso as he was bleeding – but when she was done she noticed that her husband was dead. 12.She rang the assistant chief and reported that Katua had come and killed their father and injured Mutie. She also rang neighbours. Mutie was put in a neighbour’s car and was taken to hospital at Makindu. 13.She, three other women, and son Stephen Kimula, sat outside the house but at some point Stephen told them Katua was back. They rushed back into the house – but Katua came, poured petrol into the house through a gap in the door and lit a match. There was a big fire which she putt off with clothes. The women neighbours who stayed with her began to scream, begging him not to kill them. He shouted back – that anyone who did not belong to the Kamula family to leave. 14.That they all left and went to the house of Tumbo Mutua – but when she looked back – she saw the house on fire – her house was burning with her deceased’s husband inside. 15.She rang the assistant chief who came back with Sirikali (the government, police) When they went there, everything was burnt, but her husband was still burning. 16.They left with the police while she went to hospital where she stayed with Boniface for 4 days.After the post-mortem, they buried her husband. 17.She testified that in Katua’s house they were 8 children, 3 boys, 5 girls – that among them, he was the only one in the problems with his father. That they were always quarrelling that the clan would settle their differences – that even the assistant chief had also tried to reconcile them. 18.She told the court that the accused shot some arrows through the house – they all flew past her – she also said the arrow that was removed from her husband – she said the police picked a whole arrow at the scene. 19.She said she saw accused in torch light. She said her son said Katua – you want to finish us completely? On cross-examination she testified that there was no electricity in her homestead. 20.Her statement to the police was put to her – it said that the night was very dark – and she could not see where the attacker was, that her husband was looking for the attacker and she heard her shout he had been shot in the stomach by an arrow that she and her sons escaped from that house – and she confirmed that it was not in her statement that her son told her that Katua had attacked them. 21.She confirmed it was a very dark night, asked where it was written in her statement that she had a torch, she told the court that it was not written. 22.Asked at what point the accused poured petrol into the house she said as soon as they entered her house. She said she rang the assistant chief and told him. 23.Asked where the accused was living then, she said that the accused lived in their own homestead about 1 km from her house. She insisted that he was not at Loitoktok but at home on that day. 24.She said she was with Martha Mutuku, Mary Mulei, Mueni Mutuku, but they were not witnesses in the case. 25.She said she did not see the accused shoot his father – but she was inside the house when he poured petrol with into the house. She said she did not see who set the house on fire. 26.On re-examination, she said the boys were screaming ‘Katuaa is killing us’ yet her statement said that they were shouting that “they had been attacked by Nicholas Katua Kimuli…” 27.PW3, Boniface Mutie Kimula told the court that Julius Kimula Kisulu was his dad, and Nicholas Katua his elder brother. He said his mother (accused’s) was Mama Mkubwa, his own, Mama Mdogo – that he had 2 brothers – Stephen and Benjamin. 28.He testified that on 17th June, 2020 at around 9:00 a.m. he was in his house when he heard Nicholas and his father quarrelling – Nicholas had created a boundary between their shambas and they were quarrelling over this boundary. He went there – Nicholas was armed with bows and arrows. He was telling mzee – ‘I will kill you today!’ He said that he and his brothers chased him – 29.That night as he and his brothers were sleeping, he heard the door being broken. He took out his torch and lit it. Nicholas knocked the door and got in – he, PW3 was standing there with his torch. Nicholas cut him on the face both hands, legs. Stephen who was hiding behind the door pushed it, pushing Nicholas out. 30.He told the court that his father came in, then went out to check for the attacker, he heard him scream he had been shot with an arrow and he said they all leave – He was carried by his brothers, they got to his father’s house, his father collapsed. He was bleeding seriously, his mother wrapped his head – that it is they saw a bottle pouring petrol into the house – his brother asked bro, ‘leo umeamua kutumaliza?’ and that he respondent – ‘leo mpaka niwamalize.’ 31.He testified that he knew it was his brother, he knew his voice, he was his elder brother, who had raised him. He said he was taken to hospital where he remained for 3 weeks. He said he later learnt that the house was burnt together with his father. 32.He produced the P3, and a medical report from Makindu Hospital. 33.He said he had witnessed quarrels between his brother and his father from when he was little. He said accused’s elder brother, also had issues but was spoken to and had no issues. 34.On cross-examination, he said when the door was knocked, he took his torch – that accused also had a torch. 35.His statement was put to him where he said that the door was broken, and Nicholas Katua walked in with phone torch and a panga. That he saw him in the light of his own mobile phone. He confirmed that it was not in his statement that he had a mobile phone. He said he was not asked in his statement whether the accused had bows and arrows – that he was not asked about what had happened earlier in the day. 36.He said when his mother came he was not lying on the bed – and when he was hit with an arrow, their father said they go to his house but upon reaching there he collapsed. 37.PW4, Muendo Kimula told the court that he was 19 years old at the time of the hearing.He said on the material night between 11 – 1:30 p.m., he was sleeping with his brothers. He was sleeping in the middle. His brother Boniface was sleeping nearest to the door, Kituli, to the wall. He heard the door being pushed – suddenly a person entered – and he went under the bed. He heard the sound of Mutie being cut – that Kituli jumped off the bed – pushed Nicholas who fell out, and they screamed for help. 38.He said as their father was responding to their screams, he heard him say he had been shot with an arrow and he told them to leave. They entered their father’s house, while there, the brother’s house they had just left went up in flames. 39.He said a hand started pouring petrol inside the house they were in, his brother hit the hand, the bottle fell in, that person threw in a lit match. 40.He said in the house he was there with his father, mother, brothers and sister.That his brother (accused) said he wanted to ensure that Mutie was dead, he wanted Kituli – that he had a phone and he saw him. His father died. His mother began to call neighbours. Mutie was taken to hospital some neighbours remained with them. 41.That the accused ordered anyone not belonging to the Kimula family to leave – as he was going to finish them. It was then that one of those neighbours opened the door – he left for the home of one Salim, Kituli went to another neighbor while his mother went to the home of the father of the said Salim and while there he saw their home in flames. 42.He said the following day he saw that the 2 houses were burnt, he learnt that his father had died. 43.The police took the body away. He said that when he was a child, he saw Nicholas cut their father’s bicycle with a panga. He said the issue was that accused wanted land, that he identified the accused by his voice. 44.On cross-examination he told the court that the accused wanted to kill their father as he had told their father he would; he said he heard the brother order the neighbours to leave so he could finish the family. 45.He said the fire that accused had set with the petrol while they were inside was put off by his mother with clothes. 46.He said he overheard a phone call between the accused and his mother where the accused’s mother tell him to finish them. He said that their house was not very good as there was a big space above the door. He said accused cut the brother. 47.He said that while they were leaving their house to their father’s, he overheard a conversation between accused and his mother who encouraged him to finish them. He said at that time he was 15 years old, the accused set fire also to his brother’s house. He said the incident took about 1 hour.He said the accused chased the brother, while he was running a different direction. 48.On re-examination he said he was able to identify his brother’s voice. He said the accused used stone, machete, arrows – that a stray arrow was found in the shamba. 49.PW5, Richard Kisuna testified that the accused person was his nephew, and the deceased his brother. He said on 17th June, 2020 he received a call that his brother had been killed. He went home – he found his nephew in hospital – the deceased had been burnt and looked like a burnt log. He said during post-mortem he saw the sharp arrow head that shot her brother, broke his 2 ribs and penetrated his heart. 50.PW6, Shadrack Musembi Muna was the assistant chief. He said that on 17th June, 2020 – at around 2:00 p.m. he met Boniface brother to Katua (accused) he told him that there had been a fight a fight between Katua, their father , his brothers Mutie and Kituli. 51.He went to the home of the accused ; he found his mother Veronica Kimula. She told him, that earlier in the day she had seen Mutie and Kimuli chasing Katuaa. He asked where he was. She told him that Katua was in the house. She sent for Katua. the accused refused to come to where the chief was. He told her to report at Kavete Police Post. 52.He then went to where Kimula was at the the home of the 2nd wife, Florence. he found him alone. He asked him what had happened. Kimula told him that Katua had been cutting his grass without his permission. He asked him about the complaint made by the mother of the accused that Katua was chased by his step brothers Kituli and Mutie. he told him that the brothers; The accused and the step brothers had disagreed. He asked him why he had not reported this disagreement , he said that it was because he was sickly at that time. He said that he told him that if he quarreled his children he would assist him. 53.This witness told the court he then went to his office and rang Veronica – the mother to Katua to find out if she had gone to report the incident to Kavete police post. She told him she was waiting for a boda boda to go to Kavete. 54.At 11:51 p.m. that night he, was rang by Florence who told him that the accused had killed the father and injured his brother. He rang the village elder and went to the scene. He found Florence and her children seated on the bed. Mzee was lying on the floor. Mutie had injuries. He rang the chief, and requested him to ring the D.O. He also rang the OCS, and one Mutie Kimeu to take Mutie to hospital. 55.he rang the village elder to accompany him to the scene. They took Mutie to hospital leaving the others there – while at the hospital Florence rang and said that her house was on fire. They went back and found the place had been burnt down and the mzee too. The next day the police came, took the body. They also searched the place and recovered some arrows He said that this was all about land dispute about land between the 2 wives of Kimula (the deceased). 56.He told the court that he recalled on 10th March, 2020, the deceased had complained about Katua having invaded his shamba – telling him he needed to divide the shamba between his 2 wives. He (deceased ) told him he refused completely. The matter was supposed to be heard by the clan but COVID 19 struck and no meetings were held. 57.On 15th June, 2020 he said the deceased went to him requested that veronica and her son Katua be summoned to his office. Veronica came but Katua did not – Kamula said that Katua was threatening him. The chief told him to report at Makindu Police station about the threat. he said, later this happened. 58.On cross examination he said the phone call about the death of deceased came around 11:57 p.m. He reached there past midnight when he went to the home of the deceased – he did not see the accused person there. He said mzee’s house was a single room which was both the store and bedroom. he confirmed that the wife of Mutuku and the wife of Mulei. he said he had advised the deceased to report to the police. 59.PW7, No.86187 Cpl. Peter Ndambuki, scene of Crime personnel. He visited the scene on 18th June, 2020 his retired colleague sergeant Paul Kiilu visited the house took photos and processed the scene. He produced the photos and the report on his behalf. 60.PW8, No.86232 PC. Moses Mungai was the investigating officer. On 18th June, 2020, he received a call from one Shadrack Musembi Muia the assistant chief Kyale Sub-location that he had received a call from one Florence Mwikali that her husband had been killed. 61.On visiting the scene, he learnt that there was a person in the burning house. He interviewed Florence she was still in shock. She narrated to him what had happened from 17th June, 2020 to the early morning of 18th June, 2020. He said at the scene there were some arrows and a panga, and a badly burned person whom they took to Makindu Hospital Mortuary. When the post-mortem was conducted an arrow head was retrieved from the body – that the Pathologist said that the arrow hit the liver and aorta of the heart leading to instant death. 62.He visited the injured victim at hospital. 63.That after recording all the statements, it emerged that Nicholas Katua, 3rd child of the 1st wife Veronica had attacked his father and brother – killing one, causing the other grievous harm. 64.He produced in court the arrow head, arrow stick, unused arrow and panga. 65.he testified that Nicholas did not attend his father’s funeral. He began to look for him. To arrest him he had to monitor calls of family members and from June, 2020 – the accused was on the run for 2 years. 66.In December, 2022 he was traced to Loitoktok near Amboseli National Park. He was arrested and taken to Loitoktok Police Station, then to Makindu Police Station. 67.According to his investigations accused was full of hatred. He caused his step brother 8 deep cuts, killed his father and torched his father’s home, using petrol and fled to Kajiado. He planned the crime, then escaped. 68.On cross-examination, he confirmed that there was no electricity in that home, he said there was no need for DNA to be collected from deceased because the body was identified as that of Julius – he said that offence was committed at night: that there was no need for finger prints. He said that Boniface said he saw accused that day – 69.The prosecution closed. The accused was put to his defence pursuant to Section 306 (2) of the Criminal Procedure Code. The Defence: 70.In his sworn statement of defence the accused person denied the charge. He said hayo mashtaka mimi siyajui. He told the court that on 17th June, 2020 he was at his home in Loitoktok where he moved to in 2018. 71.He denied any grudge with his father, or even disagreed with his father – that his father, even gave him Ksh.150.000/= to start his business. He said that PW2, PW3, PW4 were present and were angry that he had been given that money. 72.He said that because of his excellent academic performance his father would gift his goats, cows, money –That PW2 told him that his education would never help him. That when he was in school PW2, PW3, PW4 really desired to put him in the place he was. 73.That on 21st April, 2019 at 800am there was a harsh argument between his father and PW3 that they argued, a fight broke out between the 2 of them. They fought, until PW2 and PW4 joined them. That they beat his father, hurt his leg until he could not walk properly. 74.He said that no one was taking him to hospital. His mother Veronica called him and he came from Loitoktok. He said he took his father with him to Loitoktok took him to hospital and he stayed for several months – and he said he did not want to go home. 75.That on 16th May, 2020, PW2, PW3, PW4, PW5 went to his home. They told his father to go back with them. He refused. That PW2 told him that one day – she would ensure that he and his father were separated Kabisaa! They left. 76.On 15th June, 2020 – at 12 noon PW2, PW5, PW6 went to his home in Loitoktok they persuaded his father to go with them to Makindu He said that they left with him. in the evening he rang PW2 to confirm whether they had arrived – she did not pick. That his father did not have a phone.That on 17th June, 2020 around 10:30 p.m. his mother Veronica called him to say that she had been rang by Pw2 who told him that his father had been burnt in his house to death(babangu amechomekea kwa nyumba akafa ). He rang PW2 twice but he did not receive the call. that on the 3rd call pw2 received and told him that he would never see his father in Loitoktok again because amechomekea kwa nyumba akafa he had been burnt in the house to death. he said PW4 told him the same thing on phone. 77.He said the following day on 18th June 2020 he and his family went to Makindu, saw the body at the mortuary. He said it was alleged that the body burnt beyond recognition was that of his father. he said that when burial arrangements began, the 1st family proposed the DNA be conducted to confirm that body belonged to his father as alleged. That PW2, PW3, PW4, PW5 and PW6 objected . 78.He said after conversations, the elders intervened and it was agreed that due to the gharama of the DNA – that families agreed to bury the body as that of his father. The after the burial, he left for Loitoktok. 79.That on 14th December, 2022 PW2,PW3, PW4 went to his home on Loitoktok saying they were coming to visit PW5 who was living in Loitoktok. they passed by his shop bought water and left. 80.That on 15th December, 2022, at 10:00 a.m. he told the court that he was at his shop counting his money to go to purchase stock. He had Ksh.117,000/=. Suddenly PW8 entered his shop pointing a gun at him. He handcuffed him, took the Ksh.117,000/= and pocketed it. He was put in a motor vehicle where he found PW2 and 2 other men. He said they handcuffed his feet too, that the 2 men beat him, covered his face with plastic paper bag and he could not breathe – they used that to tell him to confess that he had killed someone. He refused, and they covered him till he lost consciousness. He came to at Makindu Police Station – where he says he was beaten again and forced to sign some documents – and PW8 told him that the money was to be an exhibit. 81.He told the court that his phone data would show that on 17th June, 2020 he was at home in Loitoktok. 82.He testified that PW8 did not conduct any investigations at the scene. He wondered why the neighbours who were at the scene were not called. 83.He testified that PW2, PW3, PW4 really hated his father that is why they planned and planted all these things against him. He said he did not do any of the things he was accused of and urged the court to set him free. 84.On cross-examination he told the court that he had an excellent Academic background – Class 8, 410/500, Form 4, A-, joined TUK registered for B.Com (Finance) but changed to B.Ed. He said his father was living in his mother’s house and visiting the other mother’s house. He said his shop in Loitoktok was operational and he had the permits. 85.He said growing up he never lived at home – but their parcels of land were 2 km apart. He said he went to Loitoktok in 2018. He said the rest of the time he was not at home. He said during the school holidays he spoke to the principal and stayed in school. He said he would only go home to greet people. That he had no interest in the size of the family land. 86.He said between 2018 and 2022 he went home on 1st April, 2019 to collect his father – after he was assaulted by PW2, PW3, PW4 but he did not report the matter because his father told him not to report. He said he did not have any documentary evidence.He said his father treated him in a special way and cited the story of Joseph, Jacob and his brothers. 87.He denied recording a statement saying that his father discriminated against him. He denied recording any statement. He said the evidence about land problem was a lie. He said he did not know that his father died. He said he saw a body burnt beyond recognition. He said his mother told him his father had burnt beyond recognition. 88.He said that he attended the funeral – he said he did not know much about the other family and whether they were present. He said only his siblings could say whether they had any problems with the 2nd family – that his brothers had not gone to school. That it was his academic excellence that drew hatred to him. 89.He said he saw Mutie at the funeral but he did not see any injuries on him. He testified that the other family hated his father and him. He also said that he could not say his father was not killed. He said he had elder brothers who could have followed up the DNA issues – that he came home on 18th June, 2020, and could not have started a follow up. Asked how far the neighbours’ houses where he told the court that he could not go to the other family to calculate distances of neighbors’ houses. 90.On cross-examination by court:- he said that he only lived at home from class 4 downwards. That he lived with his grandmother from when he was 7 years old. That before he left home he had not known his step siblings. That he got to know his step siblings in 2004 when his father called him to gift him a goat. He said his father called the family meetings in his mother’s house occasionally where both families would attend. 91.On re-examination he said that he went home after receiving the report of his father’s death – that the last gift he was given was in 2018 at his mother’s house in a family gathering, Ksh.150,000/=. 92.At the close of the case for the defence – the defence sought time to file submissions. Analysis And Determination: 93.I have carefully considered the evidence on record. There are no submissions on record – from the defence on the State.a.Has the prosecution proved the case against the accused person beyond a reasonable doubt?b.The ingredients of Murder are set out under Section 203 as read with Section 204 and Section 206 of the Penal Code. Is there proof of death of a person? Has the cause of death been established? Was death caused unlawfully by the actor omission of the accused? Did the accused have malice aforethought? What is the accused person’s defence ?. 94.The case for the prosecution is that there was a dispute between the accused and his father over the family land – and the accused quarreled with his father. that there were there quarrels between the accused and his step siblings . That a report was made to the chief that the accused was threatening the deceased. That the issue of land was not resolved . That the chief offered to settle the issue – summoned the accused and his mother – his mother attended, he did not. 95.That because of these disagreements – in a typical polygamous family – that accused attacked his step brother’s that shot his father with an arrow – he collapsed in the house, which the accused set on fire – the rest of the family escaped – except the father who was already dead. 96.The accused’s defence is that this is all a set up – brought by hatred from the step family – that they planned all this and set him up because of jealousy of their (his father’s and his) relationship. He said he was at this place in Loitoktok on the material night. 97.The accused attempted to raise doubt that there was no evidence that the body burnt beyond recognition was not his father – because no DNA test was conducted. 98.There is no doubt that there was death of a person. The postmortem proved that the death was caused by arrows that shot into both lungs and the heart. the fire was secondary. So clearly there was an unlawful death. 99.Was this the body of the deceased? 100.This case turns on circumstance evidence 101.The evidence before me points clearly that there was no doubt that that the body that was recovered at the scene was that of the deceased, father of the accused, and his step siblings husband to PW2. The family members – PW2, PW3, PW4, PW5 testified how – the attacks happened – and how the deceased ended up in that house. He was shot with arrows while outside the house of the boys and shortly after the shooting he collapsed and died. The is no evidence of any other person ending up in the fire. The family was cooped up in the house with the deceased lying on the floor. They escaped. The deceased could not escape because he was already dead. Between their escape and the setting the house ablaze was The time between their escape from the house and when the house went up in flames was immediate. 102.There is evidence that deceased was killed by the arrow shot that went to his heart, and the fire was secondary. I have no doubt from the evidence of the family members who were present that this was their father and husband. In any event, even the accused person’s house , accepted the same and they proceeded to bury the deceased. To date there is no evidence that the deceased person was none other than John Kimula. 103.The post-mortem report confirmed that the cause of death was by arrows. So, both death of the person and the cause were established. Did The Accused Cause The Death Of His Father? 104.The evidence given by the family over the disagreements between the accused and his father was corroborated by that of the assistant chief – who told the court that he received complaints just a day before the incident. 105.He also told the court that the deceased complained to him about the acts of the accused of cutting his grass without permission. He also complained that the accused had threatened him. he testified of a dispute over the land of the two houses where the accused wanted the same demarcated. 106.Benjamin saw him, and the others heard him because they spoke. They identified him by seeing him, and by hearing him speak and the accused was placed at the scene from the day before. 107.The accused person’s alibi came at the last minute. 108.In Eric Otieno Meda –vs- Republic, Kisumu CR. Appeal No.55 of 2015. The court reviewed several decisions on alibi.“A successful alibi defence entirely rules out the accused as the perpetrator of the offence. There is no burden on the accused to prove his alibi and if there is the possibility that it could be true then – the prosecution has failed to discharge its burden of proof and the accused must be given the Benefit of Doubt.”The court cited Kiarie –vs- Republic [1984] KLR – where the court said:-“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving than answer and if an alibi introduces into mind of a court a doubt that is not unreasonable…”The Court further stated : 3.The comparative decisions cited above are persuasive and espouse good law which we adopt herein. In considering an alibi, we observe that:(a)An alibi needs to be corroborated by the other witnesses, and not just a mere regurgitation of the events from the accused’s point of view.(b)An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial.(c)The alibi defence or evidence may often rest on the credibility of the accused and the reliability of the evidence that he or she has presented in court.(d)The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt so as to allow the alibi to fail. (See Mhlungu - v - S (AR 300/13) [2014] ZAKZPHC 27 (16 May 2014) 109.Did it shake the case for the prosecution? 110.The accused’s alibi did not come in good time to be tested on cross examination. The issues raised in the defence were not put to any of the witnesses during cross examination, giving the defence an aura of afterthought. He did not call any witness to corroborate his alibi, not his mother nor his wife, or siblings, no one. 111.For instance, the evidence of the family and the police is that the accused did not attend the burial of his father. The accused says he attended, saw Benjamin without injuries; but the evidence of eye witnesses, the police, the assistant chief is clear that Benjamin sustained serious panga cuts and the assistant chief arranged for his being taken to hospital. 112.There is nothing to show that he took his father away, that his father needed medical attention and he took him to live with him He was admitted for some time. in there without any injuries– however the undoubtable evidence from his siblings is that during that night he was at home in the village. 113.The accused was seen at home that day by his siblings and his father. His father reported him to the assistant chief. He was summoned but did not go. His alibi has not stood in the way of all the circumstantial evidence that points to him. 114.They saw him, they heard him – and he had anger, expressed earlier in the day. The assistant chief told the court the clan had intended to deal with the land dispute. That earlier in the day there had been issues. 115.Did the accused have malice aforethought? This is now settled that it is as defined at s. 2016 of the Penal Code. The act of shooting arrows that hit the deceased in the chest puncturing his lings and heart could not have had any other intent other than to cause grievous harm or death 116.His defence that they planned all this and planted in against him because of his academic brilliance and the love his father had for him is not believable. There is evidence of bad blood between the accused and his father – and the step family. True, no one actually saw him shoot the arrows that killed his father – however at the circumstantial evidence point towards him. I take guidance in Sawe v Republic (Criminal Appeal 2 of 2002) [2003] KECA 182 (KLR) (6 June 2003) (Judgment)– where the court statedAs we have already pointed out. the evidence in this case was entirely circumstantial. 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 Iris guilt. There must be no other co-existing 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 accusedI find that having considered the accused’s statement of the defence and the prosecution’s case all the evidence points at the guilt of the accused person. The inculpatory facts are incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of Iris guilt and there are no other co-existing circumstances weakening the chain of circumstances.I the circumstances I find that the prosecution has proved the charge of murder/s 203 as read with s. 206 and 204 of the Penal CodeThe accused person I convicted accordingly. JUDGMENT DATED SIGNED AND DELIVERED ON 29TH MAY 2026MUMBUA T MATHEKAJUDGEAccused presentCA ChrispolHassan for accusedMusyoki for state