https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10761

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MARALAL** **HIGH COURT CRIMINAL CASE NO. 2 OF 2023** **REPUBLIC……………………………………………………..PROSECUTION** **VERSUS** **SAMUEL LEDUDA….………………………………………………..ACCUSED** **JUDGMENT** 1. Samuel Leduda (the Accused) has been charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. 2. The particulars of the offence are that between 16th February, 2023 and the 23rd day of February, 2023 at Kirimon Area in Samburu Central Sub County within Samburu County he murdered Annah Regina Leduda. 3. The Accused person pleaded not guilty on 23rd July 2023. The summary of the evidence is as follows. 4. **PW1** was **Andela Lasachore**. He testified that on the 13th February, 2023, he was at home Kirimon where there was a wedding of his brother. They had called Annah to come and assist them. She did not come. They called and there was no response. They started doing investigations to find out what was happening. On the following Wednesday, he went to Annah’s home in company of his brother, Kalasinga. 5. They called the accused who was her husband and he said he had given Annah Kshs 1000 to go to the wedding. 6. Upon reaching the home, the door was locked with a padlock and was painted with a red paint. He had visited the home before but the door was not painted. The door was wooden. He went to the toilet and saw it has a fresh slab. It was a pit latrine. The latrine had a door. He entered and encountered a strong smell. He looked inside and I saw a body inside. He had a torch which he used to shine inside. The body was lying and there was something looking like a sack. The sack was covering the body up to the shoulders. 7. PW1was able to identify the body as that of the deceased. Matter was reported to the chief. The chief called police officers. Police officers came with the chief and they found accused had now returned home. The accused was arrested. He was escorted to Maralal. We returned to the scene and removed the body. It is police who removed the body. The home was the accused’s. He used to live there with Annah and his two children. The children were 3 and 5 years old. The nearest home is around one kilometre away. The compound was fenced. 8. **PW2** was **Josephat Lerosion Ltanyala. He** testified that on 23.2.2023 he was called by a village elder (Nyumba Kumi) at 5:00pm and was told that a suspect had been found. He went to the scene and found police digging out a latrine at accused’s home. The latrine was broken into and they retrieved the body of the wife to the accused. The body was taken to the mortuary. 9. **PW3** was **PC Benard Cheptoo** andwho stated that on 23.2.2023 at 12:50pm, the chief came in company of two young men, Kalasinga and Lesachore and told me that their sister Annah Leduda had gone missing from 16.2.2023. They took steps in searching for her. At her home they found blood stains on the door. They suspected foul play. He booked the report in the OB. The chief called a vehicle from the conservancy to go to home of the accused, the suspect then. They found the accused at home and arrested him and brought him to Maralal police station. He was booked in the cell and OCS contacted the DCI to go the scene, home of the accused. DCI officers working with him scrutinized the house. They went to a pit latrine and shone a light using a torch. There was a foul smell. They suspected there was a body inside. They demolished the pit latrine and removed the body which was taken to the mortuary. A post mortem was to be conducted. The witness identified the accused in dock as the person he arrested. 10. **PW4** was **Joseph Mureibie Leduda,** who testified that on 19.2.2023, he was called by the accused asking him me if I was home. On visiting his home, the Accused told him that he did not know the whereabouts of his wife. He said she went missing from 16.2.2023. He said that she was to go to her home where there was a function. That he gave her fare of Kshs 1,000. PW4 directed him to report to Chief and the police. On 23.2.2023, he was called by the area chief who told him that two brothers of the deceased had a complaint. The two were Kalasinga and Lesachore. The two reported that they had seen something untoward at the home of the accused. PW4 accompanied them to the police station and they reported. He also assisted to call for transport. PW4 later went to the scene where the police came. The toilet was demolished and a body retrieved and PW4 confirmed it was the deceased. He later attended post mortem where the Doctor said deceased had injury on the head and neck. He had not witnessed any disputes between the deceased and the accused. 11. **PW5** was **Kalasinga Lesachore,** who testified that on 14.2.2023, they had a ceremony at home. They had requested the accused to allow the deceased to attend. The deceased did not come. The ceremony went on. They called Samuel (the Accused). He said he had given her Kshs. 1000 to attend. On 23.2.2023, they went to the home and found no one. On looking at the toilet, it looked to have been interfered with. Using a torch, they saw a body inside. They called the chief. Together with the chief, they reported incident at Kirimoni police post. They sent PW4 to go look for the accused and PW4 confirmed accused was at home. The accused was arrested at the home by officers from Kirimon and was taken to Mararal police station. The police went to the scene and their presence they demolished the toilet and retrieved the body of the deceased. The body was taken to the mortuary. PW5 later witnessed the post mortem examination. He knew the accused who was the husband to the deceased. He was living together with her. 12. **PW6 Dr. Cyrus Lodeke,** who testified on behalf of Dr. Kuria who filled the post mortem. The Postmortem report was produced in evidence (PExhibit 1). The cause of death was cardiopulmonary arrest secondary to severe head injury and asphyxiation due to C1 and C2 spinal cord compression. 13. **PW 7, CPL Cyrus Keter,** testified that on 23rd February 2023, while at Maralal Police station, he received a call from OCS Maralal who informed him that there was an incident of murder which had happened at Kirimoni and officers for the Kirimoni post had come with a murder suspect. The victim was the suspect’s wife. PW7 was briefed on the matter by OCS and other officers. They proceeded to an area called Kirimoni. They reached there around 6pm. They went to the home of the accused and there were many people. Inquiries were done. The people present said a body had been spotted. This was confirmed using a spotlight. The body was in a latrine 10 metres from the house of the suspect. They demolished the latrine and officers from DCI and Kirimoni helped in retrieving the body. The body had decomposed and there was a smell. 14. The body was retrieved at around 1930hrs. It was of a female adult. She was positively identified as the deceased wife to the accused herein. The scene was secured and processed. The the body was moved to Maralal county Referral hospital and body was put in the morgue. The suspect was held at Mararal Police station for his safety. On interrogation of the suspect, he informed us that the deceased was his wife with 2 children. He added that the reason why he killed her was due to suspicion that the deceased had an affair with a neighbour. A post mortem examination was done and a decision to charge the Accused was made. 15. Upon the winding up of prosecution’s evidence and after submissions on a case to answer, the court made a finding that a prima facie case had been made out and placed the Accused on his defence. 16. **DW1** (the Accused) gave sworn testimony. He stated that on 14/2/2023, he was with the deceased and they were headed to Kirimon market. At the market they were buying usual household items. He was going to Lowangiro on Safari to collect his debt from one Peter Lesakei. At the market the brother to the deceased by the name Andela Lasachore came. He called his sister, the deceased. He asked the Accused to give permission to deceased to go for a function at their home where there was a wedding. The Accused agreed to the request. He told the deceased to pick Kshs 1,000 for the function. This was money from their petrol business. The Accused left the deceased talking with her brother. The Accused set off on his safari. He arrived at Peter Lesakei’s place in the evening and spent in town in a lodging and the next morning, he went to Peter Lesakei. His home was far from the town. It was dangerous to go there in the night as there were wild animals. 17. He further stated that on reaching Peter Lesakei, Peter gave him a cow in place of his money. He declined the cow and told Peter to sell the cow and give him the money. The Accused was owed Kshs 30,000. Peter sold the cow the same day and got Kshs 27,000. The Accused did not return home on the 15th. He stayed at Peter’s until 17th when he was paid his money by Peter. 18. The Accused added that he was called by Andera, a brother to the deceased, at 2pm on 17th who informed him that the deceased had not gone for the wedding. The Accused went home and arrived at 10pm on the 17th. He spent there and went to look for his wife among neighbours. On 19th he went to Joseph Leduda’s (his brother’s) home at 12pm and reported that his wife was lost. He then went to police station Kirimon and reported. He was given an OB. It is lost. On 23rd he was arrested at his place and taken to Maralal Police. On 21st and 22nd he was at his home still looking for my wife. He added that he had been told that Peter moved from his abode and that is why he has not called him as his witness. He did not produce a receipt to confirm where he slept at the time since the outlet does not issue receipts. He added that he was surprised by the turn of events. He had no dispute with the deceased. He had no grudge. **Accused person’s submissions** 1. Counsel for the Accused person recounted the testimonies of the witnesses whose evidence was that the deceased was supposed to attend a brother’s wedding on 15.2.23 and that the Accused informed the witnesses that he had given the deceased Kshs. 1000 to travel. 2. Counsel submitted that suspicion alone cannot be a basis for a conviction. He placed reliance on the case of **Sawe v Republic [2003] KLR 364** and **Abanga alias Onyango v Rep CR. A No. 32 of 1990(UR).** 3. Counsel submits that the chain in this case is irreparably broken for reasons that no forensic or scene documentation. There was no documentation/photographs of any bloodstained walls or DNA profiling and the retrieval of the body was not documented photographically and this raises serious doubts as to the integrity of the scene of crime and the credibility of the investigation. 4. It is further stated that the circumstantial evidence herein did not exclude all other reasonable hypotheses as the deceased was on transit to attend a wedding and there was possibility of involvement of 3rd parties. 1. Counsel urges that the doctrine of last seen is not applicable as the prosecution did not establish that the Accused was the person last seen with the deceased. 2. It is the defence case that the Accused raised a credible alibi stating that he went to the market with the deceased where he gave her Sh. 1000 to attend a brother’s wedding and that he left on the same day for Lowa Ngiro. Further that the Accused never attempted to flee from home at material time. **Prosecution’s submissions** 1. Counsel for the state reiterated the submissions made on a case to answer and made a short response to the defence statement/testimony during the defence hearing. 2. In the earlier submissions, the prosecution maintained that the chain of circumstantial evidence adduced points irresistibly to the accussed as the perpetrator of the offence. The Accused was the last person seen with the deceased and the circumstances exclude any other hypothesis except that of guilt. 3. It is submitted that the alibi defence was an afterthought quickly made out at the defence stage and which turned out as extremely inconsistent. It is urged that the accused who had legal representation throughout never raised the alibi earlier contrary to the legal principle that an alibi should be raised at the earliest in a trial. 4. It is urged that despite stating that he was with one Peter for 3 days, the Accused never found it necessary to call him to support the alibi. He never sought court’s intervention through summons or more time to locate the witness. He also did not give details of the owner of the motor bike he used for travel. This was a necessary witness for him. Further, he offered no evidence of his accommodation where he had allegedly travelled to by way of a receipt or otherwise. Finally, counsel urges that the Accused failed to call any village mate or family member to offer evidence that he had travelled. 5. Counsel placed reliance on the case on **Victor Mwendwa Mulinge v R [2014] Eklr** where the Court of Appeal restated the law as in **Karanja v R 1983 KLR 501** for the proposition that an alibi ought to be raised early in the trial. 6. I have considered the charge, the evidence on record and learned submissions by counsel including case law cited. I have taken into account the applicable law. The issue for determination is Whether the prosecution proved its case to the required standard. 7. Section 203 as read with 204 of the Penal Code under which the accused is charged provide for the offence of murder and the punishment therefor. The provisions are premised 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.”*** 1. To secure a conviction, the prosecution bears the burden and duty to prove, beyond reasonable doubt, that the accused, by an unlawful act or omission, caused the death of the deceased through “malice aforethought”. 2. The applicable threshold was explained in the leading case of **Woolmington v Republic 1935 AC 462**, as follows: ***“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’*** 1. For the Court to make a finding that an accused person committed the offence of murder, the Prosecution must therefore establish the following elements; 2. **Death of the deceased,** 3. **Proof that the accused person committed the unlawful act which resulted in the death of the deceased: and,** 4. **Malice aforethought.** 5. In this case, the death of the deceased and cause thereof are not disputed. **PW6 Dr. Cyrus Lodeke** produced in evidence (PExhibit 1) which clearly showed that the cause of death of the deceased was cardiopulmonary arrest secondary to severe head injury and asphyxiation due to C1 and C2 spinal cord compression. 6. On whether there is proof that the accused is the person who committed the unlawful act which resulted in the death of the deceased, it is not in dispute that there was no witness who claimed to have seen the accused inflict the injuries that resulted in the death of the deceased. The evidence available is thus circumstantial and an application of the doctrine of last seen. 7. As to what constitutes “circumstantial evidence” and in what manner it can sustain a conviction, the Court of Appeal, in the case of **Ahamad Abolfathi Mohammed & 2 others v Republic (2018) eKLR**, stated the following: ***“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. As to the manner in which “circumstantial evidence” ought to be established such that it can sustain a conviction, the Court of Appeal, in the case of **Abanga alias Onyango v Republic Criminal Appeal No. 32 of 1990**, guided as follows: ***“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:*** * + 1. ***the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;*** 2. ***those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused;*** 3. ***the circumstances taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within all******human probability the crime was committed by the Accused and none else."*** 1. The Court of Appeal, again, in the case *of* ***Joan Chebichii Sawe v Republic [2003] eKLR****,* the Court observed that: ***“…….. 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 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 accused.”*** 1. Therefore, it is generally agreed that for “circumstantial evidence” to carry the day, the Prosecution must establish that there are no other co-existing circumstances which could weaken or destroy the inference of guilt. It is also agreed that in a case reliant on “circumstantial evidence”, each link in the chain must be closely and separately examined to determine its strength before the whole chain can be put together and a conclusion drawn that the chain of evidence as proved is incapable of explanation on any other reasonable hypothesis except the hypothesis that the accused is guilty of the charge **(see Mwangi & Another V Republic (2004) 2 KLR 32).** 2. In this case there is evidence that the brothers of the deceased got concerned when the deceased their sister did not turn up for a wedding at home. They called the Accused who in explanation stated that he had given the deceased Kshs. 1000 to travel home. It is then that the brothers mounted a search heading to the Accused’s home where they found a freshly painted door and a freshly cemented pit latrine and a pungent smell within. On checking, they found a body in the latrine and alerted authorities. The body was retrieved and identified as the deceased’s. 3. Tellingly, the deceased was the wife of the Accused. They lived in the home in company of 2 very young children. The Accused in defence asserted that at the material time he went to a distant place at the home of one Peter who owed him money. He only returned after he was paid. He spent at a place which did not issue receipts for accommodation services. He states he reported to the police but his OB entry got lost. 4. I have weighed the evidence from both divides. It is not in dispute that the body of the deceased was retrieved from a latrine in the home which she shared with the Accused. There is evidence of an attempt to conceal the presence of the body through a freshly made slab at the latrine and painting on the door. There was the presence of a strong pungent smell from the latrine. Even assuming the Accused had left the home earlier on as alleged in his defence evidence (a fact not supported by evidence), he had returned home and in his evidence is oblivious of these obvious manifestations of something amiss and further he talks of a report to the police whose abstract was lost, a fact that is not sustainable since a police record in an OB is not unavailable merely on the basis that one has lost the extract given to him. These observations are inconsistent with the innocence of the Accused in this matter. The circumstantial evidence herein is such that it points irresistibly to the guilt of the Accused. Even assuming, for purposes of argument, that the Accused travelled to Lowangiro as alleged, that fact alone would not exonerate him. The issue is not merely where he claimed to have travelled but whether his explanation is reasonably capable of displacing the overwhelming circumstantial evidence connecting him to the murder. It does not. The alleged journey was unsupported by any independent evidence. More importantly, it entirely failed to explain how the deceased's body came to be hidden in the latrine situated within his own homestead. 1. Further, the deceased and the Accused were husband and wife residing together with their two young children in an isolated homestead. The evidence establishes that the deceased was last known to be alive while under the company and control of the Accused. Once the prosecution established those facts, and once the deceased's body was subsequently recovered concealed within the Accused's own compound, an evidential burden arose requiring the Accused to offer a plausible explanation as to how the deceased met her death. His explanation must be weighed against the totality of the prosecution evidence. In the present case, his account does not reasonably explain how his wife's body came to be concealed within his own latrine. The conduct of the Accused after the disappearance is equally telling. A husband whose wife had genuinely disappeared would reasonably be expected to actively participate in searching for her, alert neighbours, revisit the matrimonial home with relatives and authorities, and cooperate fully in locating her. Instead, the Accused's conduct was marked by unusual passivity despite the obvious presence of a decomposing body within his own compound. Such conduct is inconsistent with innocence. 2. The submission by counsel for the defence that the chain of events is irreparably broken is not sustainable. The available facts point to the contrary. Paradoxically, it is the defence that falls flat on its face lacking any iota of credibility. The Accused purports to have hired a bike for travel to a long distance. He does not identify no avail the rider as a witness. He spends in a lodging where again no evidence is offered on this accommodation by way of receipts or otherwise. Surely, it was not an insurmountable feat to summon the business operator to give this vital evidence even where receipts were not offered. The Accused had gone to pick his money from One Peter. Again he makes no efforts to present Peter as a witness only putting it as a by the way that Peter relocated. 3. This offhand approach to the defence case gives credence to the prosecution’s submission that the alibi defence was an afterthought. I so find. 4. The law does not impose upon an accused person any obligation to prove the alibi. The burden throughout remains upon the prosecution to displace the alibi by adducing cogent and credible evidence placing the accused at the scene of the crime beyond reasonable doubt. An accused who raises an alibi assumes no evidential or legal burden, and the mere fact that the defence is raised late in the proceedings does not relieve the prosecution of its duty to investigate it and to prove the accused's presence at the scene. 5. The Court of Appeal in **Karanja v Republic [1983] KLR 501** emphatically restated this principle by holding that an accused person who puts forward an alibi does not thereby assume the burden of proving it. The Court observed that: ***"The burden of proving the falsity, if at all, of an accused's alibi lies on the prosecution."*** 1. Similarly, in **Victor Mwendwa Mulinge v Republic [2014] eKLR**, the Court of Appeal reaffirmed that an alibi must be considered alongside the totality of the prosecution evidence and cannot be rejected merely because it was raised at the defence stage. The Court held that the decisive question is whether the prosecution evidence irresistibly places the accused at the scene of the offence and thereby displaces the alibi beyond reasonable doubt. 2. The trial court must weigh the alibi against the entirety of the prosecution evidence. I have painstakingly undertaken this duty and weighed the evidence and I am satisfied that the alibi put forth by the Accused cannot, in light of the evidence on record be true. 3. On the submission by the defence on lack of photographic evidence showing the retrieval of the body and the absence of forensic evidence in support of the prosecution case, i am not persuaded that the absence of DNA analysis, fingerprint examination or photographic documentation is fatal to the prosecution case. Such evidence would undoubtedly have been desirable. However, the law does not prescribe any particular number or type of witnesses or scientific evidence necessary to prove a criminal charge. Where credible circumstantial evidence forms a complete chain pointing irresistibly to the accused, a conviction may properly rest upon such evidence alone. **See Section 143 of the Evidence Act and Musili Tulo v Republic [2014] eKLR.** 4. Am satisfied it is an unlawful act by the Accused that caused the death of the deceased. 5. The Prosecution having proved the actus reus, the next issue is whether “malice aforethought” can be inferred from the actions of the accused person. This is because the offence of “murder” is only complete when “malice aforethought” is established if, as prescribed in Section 206 of the Penal Code, the evidence proves any one or more of the following circumstances: 1. ***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;*** 2. ***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;*** 3. ***An intent to commit a felony;*** 4. ***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.”*** 6. In the case of **Hyam v DPP {1974} A.C.** the Court held inter alia that: ***“Malice aforethought in the crime of murder is established by proof beyond reasonable doubt when during the act which led to the death of another the accused knew that it was highly probable that, that act would result in death or serious bodily harm.”*** 1. The Court of Appeal, on its part, in the case of **Bonaya Tutu Ipu & Another v Republic [2015] eKLR**, stated as follows: ***“.......... In the persuasive decision of Chesakit v Uganda, CR App No 95 of 2004, the Court of Appeal of Uganda stated that in determining a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person.”*** 1. In this case, it is clear from the evidence tendered, that the deceased died from injuries inflicted on her by the use of a blunt object. The testimony given by PW6 confirms that the injuries that led to the death of the deceased were due to cardiopulmonary arrest secondary to severe head injury and asphyxiation due to C1 and C2 spinal cord compression. Thus there was the use of a blunt object and asphyxiation. 2. Malice aforethought is established primarily from the nature of the injuries sustained. The deceased suffered severe blunt force trauma to the head together with asphyxiation arising from cervical spinal compression at C1 and C2. Such injuries were directed at vulnerable parts of the body and could only have been inflicted with the intention to cause death or grievous harm within the meaning of Section 206(a) and (b) of the Penal Code. 3. The attack was therefore brutal and intended to cause maximum grievous harm to the deceased. To my mind, these facts easily stablish the presence of ‘malice aforethought’. 4. In addition, the concealment of the body after the fact is also a clear demonstration of malice aforethought. 5. Upon evaluating each proved circumstance individually and collectively, I am satisfied that they form one continuous and unbroken chain. The facts are incompatible with the innocence of the Accused and incapable of explanation upon any reasonable hypothesis other than that he unlawfully killed the deceased. There are no co-existing circumstances capable of weakening or destroying that inference. Consequently, I find that the prosecution has proved beyond reasonable doubt that it was the Accused who unlawfully caused the death of the deceased with malice aforethought. 6. The cumulative effect of the above analysis is that this court is satisfied that the prosecution has proved its case beyond reasonable doubt. I hereby convict the Accused person of the offence of murder contrary to section 203 as read with Section 204 of the Penal Code. **DATED SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF JULY 2026** **A.K . NDUNG’U** **JUDGE**