https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6704

Republic v Leserpeno (Criminal Case 7 of 2021) [2026] KEHC 6704 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 6704 (KLR) Republic of Kenya In the High Court at Maralal Criminal Case 7 of 2021 AK Ndung'u, J May 15, 2026 Between Republic Prosecutor and Tyson Leserpeno Accused Judgment 1.The accused, Tyson Leserpeno, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars were that on the 12th day of August, 2021 at Longewan Village in Samburu Central Sub-County within Samburu County, murdered Celestine Leserpeno. 2.The accused pleaded not guilty to the charge and the matter proceeded for hearing wherein a total of (7) witnesses were called by the prosecution in support their case. When placed on his defence, the accused gave sworn testimony and chose not to call any witness. Prosecution Case 3.PW1, Neema Ledo recalled that on 12/08/2021, she was herding goats when the accused came to her and demanded her child whom she was with and he took away her child Celestine Leserpeno. She testified that she continued to herd till 3:00 pm and went home and the child was not home. She stated that the child was 1 ½ years old. She testified that the accused was her husband and the father of the child. She further testified that she looked for the child and found her lying on a sack in the bush. She stated that the child was crying and she took her to hospital where she died shortly after and she was taken to Maralal mortuary. It was her evidence that the accused used to beat the child. She added that they later buried the child. 4.In cross-examination, PW1 testified that she did not see the accused beat the child on that day. She added that before he used to beat her and that he used to beat her despite being small. She testified that he used to use a stick. 5.PW2, Kipngetich Koech was a nurse. He stated that he is the in charge at Longewan Health Centre. He testified that on 12/08/2021, he received a call from one Amos who inquired about his whereabouts. He stated that he was informed of an emergency of a sick child. He stated that it was past 5:00 pm. He testified that Amos had a motorbike and he came with a lady holding a child. He stated that he checked the baby who was gasping for air and he suggested that they go to the clinic. He testified that they tried to do first aid to save the baby who was in bad shape. He stated that he was informed that the child was sick for about 3 days. On examination the baby had bruises on the face, neck, stomach leg and thighs even though the baby was said to have been vomiting. He testified that he asked about the bruises and before long after resuscitation and drugs, the baby passed on. 6.He further stated that when he questioned the lady about what had happened, she was economical with the truth and he asked Amos to inquire in their language. He further noticed bruises on the private parts and that there was discharge. He testified that the mother kept quiet. He then called the police who came after 1 hour and collected the body. 7.In cross-examination PW2 stated that most of the injuries were old and some of the injuries were fresh. 8.PW3, Dr. Robert Nato stated that he works at Samburu County Referral Hospital. He testified that the postmortem was conducted by Dr. Kuria, his colleague at the same hospital who was currently attending Rehab and is unable to attend Court. He stated that the postmortem of the body of Celestine Leserpeno was conducted on 19/8/2021 at 12:30 pm. He testified that the findings were that the clothes were with hospital linen, the apparent age was 1 ½ years, height was 200cm. The body had rigour mortis. He further testified that there was laceration on the left face. There was were bruises on left leg, laceration on right forearm, there were laceration marks on the outer vulva region, outer system was normal, there were multiple bruises and lacerations on external genitalia, there was vagina tear extending to upper part vagina, there were multiple bruises and laceration on the neck and fracture of the neck. He stated that the cause of death was due to cardiopulmonary arrest secondary to manual strangulation and defilement. He produced the post-mortem report as Pexhibit1. 9.In cross-examination PW3 stated that the victim was strangulated. He referred to the condition as hypoxia. 10.PW4, Julia Lendonyo testified that she knew Celestine (deceased) who was a child to her younger sister. She stated that she knows the accused who is the husband to her younger brother. She testified that she went to look for Neema, her sister and found her herding goats. She stated that she asked her about Shadrack and she stated that he had left in the morning and has not returned, that she told her Celestine her child was very sick. She testified that they went to the house and Celestine was not there. She stated that she found the child outside the boma sleeping in her sack and she carried her to the house. 11.It was her evidence, that she saw injuries on the face and back and that they were bruises. She stated that she gave a sugar solution. She further stated that she screamed and parents of the accused came. Amos, a relative of the accused came and they took the child to Lamak Private Hospital. She testified that the doctor tried to intervene by putting water but the water could not go through and the doctor said that the child had been strangled. She stated that the child died at the hospital. 12.In cross-examination, PW4 stated that the child was found behind the house in a bush. 13.PW5, Amos Lekiya Leserpeno, was the accused brother. He recalled that on 12/08/2021 at around 3:00 pm, he was at Longewan headed home. He stated that he found the wife of accused and her sister crying and that they were holding a child. That he sent for milk to be given to the child and he was asked to take the child to hospital. He testified that when they took the child to hospital at a private clinic called Namyani medical clinic he left and went and they were later called and told the child had died. 14.PW6. Sharon Chelimo a Clinical Officer testified that on 12/08/2021 at 5:30 pm she was within the clinic when her boss called her and asked her to return to the facility as a child had been brought seeking assistance. She stated that she saw a female child about 2 years who was having difficulties breathing and gasping for air. She further testified that they tried to resuscitate the body as they planned a referral to Maralal hospital but they did not make it and the baby lost her life. 15.She stated that on general examination, the child had bruises (healing) on the face, she was well cleaned and dressed, there was no bleeding, she was severely pale, the capillary review was so low. She added that she did not see any other injury initially as the baby was dressed. She further stated that later, they saw bruises on the buttocks and thighs, there was clear vagina penetration and there was no active bleeding at the moment. She testified that they, interrogated the mother and she told them that the child was allegedly defiled by the father and that the case was then reported to the police and the police came to the scene. 16.In cross-examination, PW6 stated that the patient had an injury at the vagina involving both the labia majora and minora but she did not measure. She further stated that it was a major tear. She further stated that the mother informed them that the child was defiled by the father. 17.PW7, CPL Samuel Waithaka recalled in 2021 on 12th August at 1100hrs, he was instructed by his boss to attend a suspected murder scene at Longewan area, Samburu County. He testified that he went to Longewan village accompanied by a driver and that at Longewan dispensary, he found the victim, a 1 ½ years old child who was suspected to have been murdered by her father. He stated that he went to the scene of the murder and came back to the dispensary. He testified that he saw visible injuries on the face and back and in her private parts. He added that she was pronounced dead. 18.He further testified that they moved the body to Maralal County Referral Hospital and he recorded statements. He stated that a postmortem was conducted and the Doctor confirmed that the cause of death was pulmonary arrest. He stated that that on 20/08/2021 the suspect was arrested. 19.In cross-examination, PW8 stated that the accused was the last person with the child. Defence Case 20.DW1, Tyson Leserpeno, the Accused testified that the victim is his child. He denied killing the deceased on 12/08/2021. He stated that he was interrogated by the police and he recorded a statement wherein he stated that he is a herder and that he had one child who is now deceased. He testified that on 12/08/2021 at 2:00pm he was at home with his wife and that his wife took cows to graze. He stated that he asked her to leave the child behind to be minded by an elder brother and that he went the home of his brother and he took the child to hospital and that the child died while at hospital. 21.He recalled that the child was vomiting when she was taken to hospital. He testified that one Shadrack who was to look after the child ran away. He denied killing the child and denied being at home with his wife. 22.He further testified that on 12/08/2021, the date of the incident, the child was having a running stomach. He stated that he went to look for unga and his wife called him and told him that Shadrack had disappeared and when he returned home, he found his father had returned from grazing and he told him that one child had disappeared and another had been taken to hospital. He added that his brother Amos went to hospital with wife. He told the Court that Shadrack is a child from his wife’s side and that he was living with him. 23.In cross-examination, DW1 stated it is not possible to beat a child aged 1 year. 24.That was totality of evidence before this court. Submissions 25.Counsel on record for both parties filed written submissions which I summarize as hereunder. 26.On the question whether the Accused was involved in the murder, Learned Counsel for the state submitted that the testimony of PW1 clearly places the accused person as the last person to be seen with the deceased alive and thus he solely is responsible for what transpired to the deceased person. Counsel relied on the doctrine of the last seen. 27.Regarding malice, Counsel cited Section 206 of the Penal Code and submitted that it is evident that the accused had malice aforethought because he intentionally caused injury to the deceased by assaulting and defiling her. 28.On identification, Counsel reiterated that the testimony of PW1 clearly places the accused as the person who and picked her daughter while she was still alive in the grazing field. 29.Regarding the cause of death, Counsel submitted that PW3, Dr. Nato testified on behalf of Dr. Kuria who filled the postmortem report. Counsel added that he clearly stated that deceased’s cause of death was due to cardiopulmonary arrest secondary to generalized hypoxia state due to manual strangulation and defilement. 30.Counsel further submitted that the prosecution availed the testimonies of seven witnesses in addition to documentary evidence produced as exhibits in this matter. Counsel urged that the prosecution has proved its case beyond reasonable doubt. 31.On his part, Counsel for the Accused person argued that the prosecution failed to prove its case beyond reasonable doubt. Counsel recounted the evidence of the Prosecution witnesses urging that the said witnesses contradicted themselves. Counsel thus urged that what is presented before Court is, at best, evidence of a sick child with old injuries, an inconclusive medical history and speculative police investigation that cannot be transmuted to malice aforethought. Determination 32.I have considered the charge, the evidence adduced and learned submission by Counsel on record. Of determination is whether the prosecution has proved the ingredients of the offence of murder against the Accused to the threshold set in law. 33.Section 203 of the Penal Code defines murder in the following terms:“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.” 34.The ingredients of murder were explained in the case of Republic vs. Mohammed Dadi Kokane & 7 Others [2014] eKLR as follows:-“1)The fact of the death of the deceased.2)The cause of such death.3)Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly4)Proof that said unlawful act or omission was committed with malice aforethought.” 35.Thus, the central ingredients of the offence of murder are malice aforethought and an unlawful act or omission on the part of the accused. 36.Section 206 defines malice aforethought in the following terms:“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstancesa.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.” 37.The Prosecution, thus has the duty to prove, beyond reasonable doubt, that the accused, by an unlawful act or omission, caused the death of the deceased through “malice aforethought”. For the Court to make a finding that an accused person committed the offence of murder, the Prosecution must therefore establish the following elements; (a) death of the deceased, (b) proof that the accused person committed the unlawful act which resulted in the death of the deceased: and, (c) malice aforethought. 38.In criminal cases, it is trite law that the burden of proof lies with the prosecution and the standard of such proof is beyond reasonable doubt. Viscount Sankey L.C in Woolmington vs. DPP [1935] A.C 462 pp 481 stated the law on legal burden of proof in criminal matters, that;“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.’’ 39.In JOO vs. Republic [2015] eKLR, the court held that:“It is not lost to this Court that the offence which the Appellant faced was such a serious one and ought to be denounced in the strongest terms possible. However, it also remains a cardinal duty on the prosecution to ensure that adequate evidence is adduced against a suspect so as to uphold any conviction. The standard of proof required in criminal cases is well settled; proof beyond any reasonable doubt hence this case cannot be an exception. This Court holds the view that it is better to acquit ten guilty persons than to convict one innocent person.” 40.There is no doubt as to the fact of death of the deceased. According to the testimony of the Pathologist, PW3, Dr. Nato, who testified on behalf of Dr. Kuria conducted an autopsy on the body of the deceased, the cause of death was due to cardiopulmonary arrest secondary to generalized hypoxia state due to manual strangulation and defilement. 41.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 prosecution’s case is clearly hinged on circumstantial evidence and the doctrine of last seen. 42.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.” 43.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:(i)the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;(ii)those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused;(iii)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." 44.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.” 45.It is therefore 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). 46.Regarding the doctrine of “last seen with deceased” the Court of Appeal in the case of Moses Jua vs. The State (2007) LPELR-CA/IL/42/2006 (Nigeria) while considering the ‘last seen alive with’ doctrine explained in simple terms that:“Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, the court is justified in drawing the inference that the accused killed the deceased.” 47.In the case of Ramreddy Rajeshkhanna Reddy & Anr vs. State of Andhra Pradesh, JT 2006 (4) SC 16 the court added some caution stating that;“that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.” 48.In Anjan Kumar Sarma vs. State of Assam, Criminal Appeal No. 560 of 2014 cited in the case of Republic vs. Elizabeth Anyango Ojwang [2018] eKLR, the court stated as follows:“The circumstances of last seen cannot by itself form the basis of holding the accused guilty of the offence…There must be something more establishing connectivity between the accused and the crime…It is clear from the above that in a case where the other links have been satisfactorily made out and circumstances point to the guilt of the accused, the circumstances of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstances of last seen together and absence of satisfactory explanation cannot be made the basis of conviction.” 49.According to PW1 who was the mother to the deceased, the accused was the one who was last seen with the deceased. She testified that while she was out grazing, the accused came and demanded to go with the child (deceased). She stated that when she later got home, the child was not there and upon searching for her, she found the child lying on a sack in the bush. She further stated that the child was crying and she took the child to hospital and that the child died shortly thereafter. It was PW1’s testimony that the accused used to beat the child. 50.In countering this evidence, the accused says that on the material dated at 2:00pm he was at home with his wife, that his wife took cows to graze and he asked her to leave the child behind to be taken care of by an elder brother. He states that Shadrack who was to look after the child ran away. He also states that on the date of the incident, the child was having a running stomach. However, on cross-examination, the accused states that on the material date, they were home in the morning, he then left while child was still sleeping. He confirmed that it was his wife who used to graze the animals and that on the said day, she was the one grazing. He testified that he had gone to town and when he returned he found that his wife had gone to hospital. 51.The accused had the opportunity to rebut the presumption created by the doctrine of last seen but his evidence that he left home is not convincing. The accused confirmed that indeed on the date on the incident, his wife PW1 was out grazing the animals. The accused alleges to have left home for town but does provide an alibi to support his narrative on his whereabouts on that fateful day. Throughout, his defence, the accused draws an unsubstantiated theory of one, Shadrack having fled the home but he does not tender any evidence to prove that it was him who committed the crime. The court finds the defence account not cogent to displace the presumption so created. 52.PW1’s evidence is further collaborated by the evidence PW2, PW3 and PW6 who, all had the opportunity of examining the deceased’s body and noted the child had injuries all over body including her private parts indicating that she had also been defiled. 53.The evidence analyzed above when looked at from the prism of both circumstantial evidence and the doctrine of last seen unerringly place the accused at the precise position to have a good explanation how the deceased met her death. The same goes well beyond mere suspicion. 54.Has malice aforethought been proved? 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.” 55.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.” 56.Further, the Court of Appeal, in the case of Morris Aluoch v Republic [1997] eKLR), quoted Rex vs Tubere S/O Ochen (1945) 12 EACA 63 guided as follows:“If repeated blows inflicted the injury then malice aforethought could well be presumed but in this case we have to contend with one single blow which caused perforation of the intestine which led to internal bleeding which did not become apparent until the death of the deceased some four days late.” 57.The medical evidence reveals a pattern of extreme violence by the accused. The combination of extensive genital trauma and the fracture of the neck via strangulation precludes any possibility of accidental injury. The nature of the injuries to a child of such tender years, only 1 ½ years demonstrates a clear, calculated intent to violate and subsequently kill the victim. I therefore find that, apart from the accused person being the one who committed the act that resulted in the death of the deceased, there was also “malice aforethought” in his actions. 58.Accordingly, having found that the prosecution has proved all the ingredients of the offence of murder, beyond reasonable doubt, I find the Accused guilty as charged and convict him accordingly. DATED SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF MAYA.K. NDUNG’UJUDGEin absence of the Accused who escaped from custody but in the presence of the Dpp and Mr Mbugua for the Accused.