https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8031

Republic v Kiprotich (Criminal Case 44 of 2023) [2026] KEHC 8031 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 8031 (KLR) Republic of Kenya In the High Court at Iten Criminal Case 44 of 2023 JRA Wananda, J June 5, 2026 FORMERLY ELDORET HIGH COURT CRIMINAL CASE NO. 5 OF 2016 Between Republic Prosecutor and Laban Chepkonga Kiprotich Accused Judgment 1.The accused is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on 8/08/2015 at around 2300 hours together with others not before Court, in Tononongoi Village, Emsea sub-Location, Kibargoi Location, within Elgeyo Marakwet County, he murdered one Frankline Kiprop Koima. 2.As indicated by the title above, the case was initially commenced and conducted as Eldoret High Court Criminal Case No. 5 of 2016 since it is the Eldoret High Court that used to preside over the subject territory at the material time. 3.The accused was arraigned on 15/01/2016 and took plea on 20/01/2016 before Githua J, upon which he pleaded not guilty. He is represented by Mr. G.K. Okara as his pro bono Counsel while the Prosecution Counsel currently appearing for the State is Ms. Rachel Mwangi. After lengthy delays caused by various reasons, including application for bond/bail (which was granted), and adjournments caused by both sides, the matter eventually took off for hearing on 2/06/2021, more than 4 vears later when PW1 testified. PW2 testified later on 10/11/2021. Thereafter, after further delays caused by various circumstances, and the matter having been transferred to Iten, the State, on 1/02/2024, being unable to trace further witnesses, applied to close its case, which closure I finally formally accepted on 3/10/2024, 8 months later. 4.In his testimony, PW1, Philomen Cheserek, testified that on 8/08/2015 at around 8.00 pm when he had just driven back home from Iten and while still at his gate, he heard screams from across the road and then saw the deceased running towards him screaming and calling out for help. According to PW1, the accused told him that he had been beaten by his brothers, who then also emerged running after the accused, and that he also saw them with the assistance of his car headlights which he had not yet switched off. PW1 testified that he knew the brothers as they were his cousins, and one of them by the name Gilbert, told him that they were annoyed with the accused because he had beaten their parents. He stated that after discussions with the brothers, it was agreed that he phones and informs the Chief about the incident, which he did, upon which the Chief advised that the brothers go to him. PW1 stated that he then entered his home and slept. He stated that he learnt on the next day from the Chief that the deceased had died. He described the accused, whom he identified in Court, as only a village-mate, and not a brother of the deceased. He also clarified that he only identified the said Gilbert and it is he (Gilbert) who told him (PW1) that the others were his brothers. He also admitted that he could not tell whether the accused was among the people who emerged running after the deceased. 5.PW2, William Kibii Chemwok, introduced himself as the area Chief, Baragoi Location. He narrated how on 9/08/2018 at around 8.00 am, he received a phone call from the Officer Commanding the area Police Station (OCS) inquiring whether he knew the deceased and the fact of his death. PW2 stated that he did not know the deceased but knew his home, and that the OCS told him that the deceased had been killed by his brothers, and then asked him to investigate the matter and arrest the suspects. He narrated how he conferred with the area village-elder and later obtained the assistance of police officers with whom he went to the home of the deceased but they did not make any arrests as they did not find the suspects. He testified that he later heard that the accused had been arrested. Regarding the motive of the killing, he testified that he heard that the deceased was beaten by his brothers because he had beaten their parents. 6.As aforesaid, unable to trace further witnesses, the State, on 1/12/2024, applied to close its case. However, before accepting the request, I insisted that the State traces and invites the victim’s relatives to attend Court to give their views on the application. It is when the relatives failed to attend that I eventually, on 3/10/2024, formally accepted the closure of the Prosecution case and allowed the matter to proceed to the stage of “case to answer”. This was however again delayed because the accused consistently failed to attend Court. Noting his previous cases of similar non-attendance, I issued warrants of arrest against him, and also summoned the surety who turned up and promised to trace the accused. The accused eventually showed up but not persuaded with the excuses he gave, I cancelled his bond/bail, and he was accordingly taken back into custody. 7.It is under the above circumstances that I now proceed to determine whether the accused has a case to answer. Determination 8.At this stage, the Court is only considering whether the accused has a case to answer, which was described by G. Dulu J in the case of Republic vs Joseph Shitandi & Another (2014) eKLR as follows:“A case to answer is a case where if the accused keeps quiet, the evidence of the prosecution should be such that a conviction will result.” 9.The procedure in determining whether an accused person has a case to answer was discussed in the case of Republic vs Samuel Karanja Kiria (2009) eKLR in which J.B Ojwang J (as he then was) stated the following:“The question at this stage is not whether or not the accused is guilty as charged but whether there is cogent evidence of his connection with the circumstances in which killing of deceased occurred. That the concept of prima facie case dictates as a matter of law that an opportunity created by this court for the accused to state his own case regarding the killing. The governing law on this point is well settled ... The Court of Appeal is Criminal Appeal No. 77/2006 expressed that too detailed analysis of evidence stage at no case to answer stage is undesirable it the court is going to put accused on his defence as too much details in the trial court’s ruling could then compromise the evidentiary quality of the defence to be mounted.” 10.The trial Court is however cautioned that, at this stage, it should not make definitive findings should it conclude that the accused has a case to answer. In this regard, E. Trevelyan J, in the case of Festo Wandera Mukando vs Republic [1980] KLR 103, stated as follows:“...we draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the court and, and an extreme case, may require an appellate court to set aside an otherwise sound judgment. Where a submission of “no case” to answer is rejected, the court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned.” 11.Section 203 and 204 of the Penal Code under which the accused is charged provide for the offence of murder and the punishment for it. Under these provisions, the Prosecution has a duty to prove, beyond reasonable doubt, that the accused, by an unlawful act or omission caused the death of the deceased through “malice aforethought”. The sections read as follows:203.Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.204.Any person who is convicted of murder shall be sentenced to death.” 12.For the Court to therefore make a finding that an accused person committed the offence of murder, the Prosecution must establish that; (a) death of the deceased; (b) proof that the accused person(s) committed the unlawful act which resulted in the death of the deceased; and, (c) malice aforethought. 13.In this case, no post-mortem report, or any other evidence of the death of the deceased was produced. Neither of the witnesses also stated that they saw the body. It cannot therefore be said that the death or even its cause has been established. There is therefore nothing on record to even establish that the deceased was killed, and did not die out of natural causes. 14.On evidence that the accused committed the unlawful act which resulted in the death of the deceased, neither of the two witnesses testified that they witnessed the deceased being killed. PW1 testified that he witnessed the accused being chased by 6 people, who the deceased told him were his brothers, and one of whom PW1 alleged that he recognized as being indeed a brother of the deceased, who then told him that they were pursuing PW1 because he had beaten up their parents. PW1 however stated that the deceased was still alive when he left him with the pursuing team, and he did not witness any actual beating of the deceased. PW1 also testified that he could not tell whether the accused was among the pursuing party as it was at night. He could not therefore tell what the cause of death of the deceased was, or who, if at all, killed the deceased. There is therefore nothing on record to indicate that the accused committed any unlawful act which resulted in the death of the deceased. 15.In the circumstances, determination of whether there was “malice aforethought” does not even arise. 16.In light of the foregoing, it is clear that the evidence tendered falls short and fails to establish sufficient prima facie evidence of culpability on the part of the accused to the required standard. My finding is therefore that the Prosecution has failed to discharge its burden of proof. Considering the entirety of the evidence presented, I am persuaded that the accused has no case to answer as none of the witnesses tendered any kind of evidence to implicate him in the alleged death of the deceased. Final Orders 17.In the end, I find that the accused has no case to answer and has no reason to be called upon to defend himself. I therefore enter a finding of not guilty, and accordingly acquit him at this stage under Section 306(1) of the Criminal Procedure Code. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 5TH DAY OF JUNE 2026…………………..WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:Accused present virtually from Eldoret Main PrisonN/A for Counsel for accusedMs. Mwangi for the StateCourt Assistant: Rodgers Tshombe