https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12231

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VIHIGA** **CRIMINAL CASE NO 3 OF 2023** **REPUBLIC** **VERSUS** **PATRICK LIDOYA………………………….…………………………………ACCUSED** **JUDGMENT** **INTRODUCTION** 1. The Accused person herein was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 (Laws of Kenya). The particulars of the charge were that:- **“On 6th November 2016 at Inyali village in Kigama sub-location within Vihiga County, murdered George Indiaga.** 1. The Prosecution’s case was heard on diverse dates between 6th November 2018 and 14th November 2024 when it closed its case. On 24th February 2025, this court found that the Prosecution had established a *prima facie* case against the Accused person and thereby put him on his defence. The defence case was heard on 6th October 2025 and 25th November 2025. 2. This matter was partly heard by Njagi J and P. J Otieno J. Njagi J who took the evidence of Dinah Imali Indiaga (hereinafter referred to as “PW 1”) and Jesca Egeliza Lidoya (hereinafter referred to as “PW 2”) while P.J. Otieno J took the evidence of Mary Ajemba Mushila (hereinafter referred to as “PW 3”) and Henry Ingwero Lidoya (hereinafter referred to as “the Accused person’s father’). 3. This court became seized of this matter on 18th April 2023. On 29th June 2023, the parties asked this court to continue from where the matter had reached It took the evidence of Maureen Ambogo (hereinafter referred to as “PW 5”), Wycliffe Chanzu Luvandari (hereinafter referred to as “PW 6”), Kelvin Abere (hereinafter referred to as “PW 7”), David Adori Akaliche (hereinafter referred to as “PW 8”), No 61065 Corporal Daniel Chepkwony (hereinafter referred to as “PW 9”), the Accused person and his father, Henry Ingwero Lidoya (hereinafter referred to as “DW 2”). 4. The Prosecution’s Written Submissions were dated 5thJanuary 2026 and filed on 9th January 2026 while the Accused person’s Written Submissions dubbed “Defence Submissions” were dated 19th February 2026 and filed on 20th February 2026. The Judgment herein was based on the parties’ Written Submissions, which they relied upon in their entirety. **LEGAL ANALYSIS** 1. The issues that were put before this court for consideration were as follows:- 2. **Whether or not George Indiaga (hereinafter referred to as the “deceased”) died?** 3. **If so, was his death caused by an unlawful action(s) and/or omissions?** 4. **If so, who caused the unlawful action(s) and/or omissions?** 5. **Was there malice aforethought in the causation of the deceased’s death?** 6. This court therefore found it prudent to deal with the said issues under the following distinct and separate headings. 7. **PROOF OF DEATH OF THE DECEASED** 8. The Prosecution submitted that there was no dispute as to whether the deceased died since it was proved through the evidence of PW 8 who produced the Post- mortem Report. 9. The Accused person equally did not dispute the fact of the deceased's death. It submitted that its case was not directed at challenging the fact or cause of death but rather whether the Prosecution had proved beyond reasonable doubt that it was the Accused person who unlawfully caused the deceased's death. 10. As both the Prosecution and Accused person alluded to the deceased’s death, it was not necessary to seek further proof. This court found and held that the deceased death was proved without an iota of doubt. 11. **PROOF OF CAUSE OF THE DECEASED DEATH** 12. The Prosecution cited the case of **Republic vs Joseph Chege Njora (2007) eKLR** where the court held that killing of a person could only be justified where the Accused person’s action was in course of averting a felonious attack. On his part, the Accused person did not challenge the medical evidence regarding the cause of the deceased's death. 13. The cause of the deceased’s death was a pertinent issue. PW 8 testified that the deceased’s body had two (2) stab wounds on the chest and there was bilateral collapsed lungs and a fracture of the 3rd rib. He concluded that the cause of death was respiratory failure secondary to bilateral collapsed lungs associated with penetrating chest injury following assault. 14. It was clear from PW 8’s evidence that the deceased’s death was not as a result of natural causes. It was, therefore, crucial to establish how the deceased sustained the injuries that caused his death. 15. **IDENTIFICATION OF PERPETRATOR OF DECEASED’S DEATH** 16. The Prosecution submitted that its witnesses identified the Accused person as the perpetrator as they were able to see him well and he was well known to them. It asserted that PW 1 testified that the deceased informed her that the Accused person had killed him while PW 6 and PW 7 told this court that they saw the Accused person assaulting the deceased. It was emphatic that, the dying declaration by the deceased to PW 1 pointed to the Accused person having been the perpetrator. 17. On the other hand, the Accused person submitted that the Prosecution failed to positively identify him as the person who inflicted the fatal injuries on the deceased. He argued that although PW 6 claimed to have witnessed the stabbing, his testimony stood in isolation and was contradicted by PW 3, PW 4 and PW 5, all of whom testified that they did not see him stab the deceased. He further urged the court to treat PW 1's evidence on the alleged dying declaration with caution as she did not witness the incident herself. 18. The Accused person testified that he returned home on the material day at around 5.00 pm and found the deceased throwing soil on their roof and that when he asked him what he was doing, the deceased held him as if he wanted to beat him, but he freed himself. He stated that at 7.30 pm, he left to the video **(sic)** to watch football and that at around 8.00 pm, he heard screams and rushed home only to find that his father had been stabbed on his eye and the rib and the deceased was following his mother threatening to stab her. 19. He stated that he followed the deceased who turned on him and cut his finger. He added that together with his brother, they struggled with the deceased and recovered the knife form him. He said that he pushed the deceased to the ground. He said that he took his parents to hospital and reported the matter at Mudete police station. He asserted that while in hospital, they found people from Mbale and they informed them that they had brought the deceased who had been stabbed. He denied having stabbed the deceased and stated that he would not have known what happened to him as he had taken his father to hospital. 20. DW 2 was the Accused person’s father. His evidence was unique. He testified for both the State and the Defence. This meant that he was a both State witness as well as a defence witness. This court was not aware of any provision of law that allowed State witnesses to also testify as defence witness. This court was of the view that it could not attach too much weight to the testimony of PW 4 who also testified as DW 2. 21. PW 1 was the deceased’s daughter. She stated that at around 7.00 pm, her sister asked her to go home to check on their father, the deceased herein, as he was being problematic. She stated that she found him at his uncle’s home, leaning on a toilet. His uncle was called Henry Ingweso. . She averred that she asked him what had happened, he informed her that the Accused person, who was her cousin, had stabbed the deceased,. 22. She said that they assisted the deceased to board a motorcycle and on their way to hospital, he requested them to return home as the Accused person had killed him. She further testified that the deceased was pronounced dead on arrival at the hospital. Her further evidence was that they reported the matter and that when she went to the mortuary, she noticed that that the deceased had stab wound on the left side of the chest. 23. PW 2 was the deceased’s sister. She told this court that she was informed by her cousin that the deceased had died after being attacked by the family of Ingweso. She stated that she travelled to Mbale and she met the Accused person’s father, who was in hospital, and he informed her that the Accused person had killed the deceased. 24. PW 3 was the Accused person’s mother. She testified that she was at the Accused person’s at home on the material day when at around 7.00 pm, the deceased went to her home and quarrelled with children but that they took him to his house. She said that the deceased went back to her house with a knife and knocked on the door, She said that when the Accused person’s father opened the door, the deceased attacked him with a knife but people who were watching video came and separated them. 25. She stated that she and the Accused person they took the Accused person’s father to hospital while the deceased remained on her door, seated. She added that they passed by police station to report and that when they got to the hospital, they found PW 1 there and she informed that the deceased had died. She identified the knife the deceased had and she stated that the Accused person was arrested while in the hospital. 26. She testified on cross examination that she did not see the deceased knocking on the door as she was in the kitchen and that she did not see him stab the Accused person’s father. She said that by the time she got home from the shop, the Accused person’s father was bleeding in the house while the deceased had been taken out by the youth. She testified on re-examination that the Accused person was among the youth. When she was examined by the court, she stated that she did not see the deceased emerge from his house with a knife. 27. PW 5 was the Accused person’s sister. She said that the deceased was her uncle. She informed the court that on the material day, she was at home at around 6.00 pm when some youth came, took and locked the deceased in his house as he was creating disturbance. She stated that when they were having supper, the deceased knocked on the door and the Accused person’s father opened the door. She averred that the deceased then pulled him outside. Her evidence was that when she stepped out, she found the deceased already on top of the Accused person’s father. She said that she screamed and neighbours separated them. 28. She asserted that the Accused person’s father was bleeding and he was taken to hospital by PW 3. She stated that the deceased was beaten by a mob. She confirmed that although she was there, she never saw the Accused person beat the deceased. 29. PW 6 told the court that the Accused person and the deceased were his neighbours. He said that on the material day at about 7.00 pm, he was at the shops near the Accused person’s home when he heard screams from the Accused person’s compound. When he got there, he found the Accused person had stepped on the deceased’s head and was stabbing him with a knife on the chest. He asserted that the Accused person stabbed the deceased four times. 30. He contended that people came from the video **(sic)** and stopped the Accused person from further harming the deceased. He said that he later heard that the deceased’s daughter took him to the hospital where he was pronounced dead. He identified the knife which he stated said was one used for chopping vegetables. 31. He testified on cross- examination that it was not very dark and there was a crowd at the scene. He maintained that he saw the Accused person step on the deceased and stab him and that after stabbing him, some people took the knife from him. 32. PW 7 stated that the deceased was his friend although they were not neighbours while the Accused person was his school mate. He stated that on the material date at about 7.00 pm, he was watching football at the video **(sic)** when one Sheddy went there and asked them why they were watching football when people were killing each other outside. He went to the scene and found a crowd of people. He said he saw the Accused person talking loudly saying, “Remove this person from here” referring to the deceased. 33. He said that the Accused person then hit the deceased who fell near a toilet and stepped on him with both his legs on the cheek. He averred that he held the Accused person and asked him why he was fighting with the deceased who was already not responding. He told the court that he later heard that the deceased had passed on. He pointed out that it was dark though there was light from the video **(sic)** which was about 40 meters away. 34. When he was cross-examined, he stated that he never separated the Accused person and the deceased but that he only held the Accused person to stop him. He added that he never saw the Accused person stab the deceased and he never saw the knife. His further evidence was that he that he never saw PW 6 at the scene. He added that there were some people from the scene and he never establish whether they were family members. 35. PW 9 was the Investigating Officer. He informed the court that the file was handed to him when the previous Investigating Officer, Corporal Joel Sigilai (now retired), was transferred. He stated that they visited the scene at the Accused person’s father’s house whey they found a knife at the veranda. He pointed out that investigations established that two (2) brothers had fought, the deceased and the Accused person’s father. He stated that the Accused person who was operating a video nearby went to rescue his father after an alarm was raised. He further stated that the deceased had a knife which the Accused person snatched from the deceased and stabbed him. 36. He added that further investigations revealed that that the deceased was taken to hospital while the Accused person was arrested at Mbale hospital. He produced the knife that was recovered from the scene as an exhibit in this case. 37. On cross- examination, he told this court that he only saw two (2) stab wounds. He, however, said that he did not know the exact time of the deceased death or the exact time when he was stabbed. He also stated that he did not also know the exact time when the deceased was taken to hospital since they were given the case the following day. He confirmed that the knife was not dusted for finger prints. 38. The Defence further submitted that the Prosecution failed to establish a proper chain of custody in respect of the alleged murder weapon. It contended that the Investigating Officer did not explain how the knife was recovered or handled before being produced in court, that no forensic examination linked the knife to the Accused person, and that the failure to secure the scene weakened the evidential value of the exhibit. 39. After carefully analysing the evidence that was adduced by the Prosecution witnesses, it did appear to this court that PW 3 and PW 5, who the Accused person’s mother and sister were shielding the Accused person from the accusations that had been levelled against him as they denied having seen the Accused person attack the deceased. Their evidence was clear that he deceased pulled out the Accused person’s father from the house and attacked him. 40. It was, however, evident that PW 6 saw the Accused person stab the deceased. He also saw him stepping on the deceased as he stabbed him. Although he stated that he saw the Accused person stab the deceased four (4) times, the evidence of PW 8 was that the deceased had two (2) stab wounds. However, this did not negate the fact that he saw the Accused person stab the deceased. 41. PW 7 corroborated PW 6’s evidence. He saw the Accused person quarreling the deceased, stepping on him on his cheek, hitting him which led to the deceased falling in a nearby the toilet. This was corroborated by PW 1 who confirmed that when she arrived at the scene, she found the deceased leaning against the toilet. 42. Notably, PW 6 and PW 7 placed the Accused person at the scene at the time of the incident. Their evidence showed that the Accused person was aggressive towards the deceased. Further, they both knew the Accused person and the deceased well as they confirmed. This court was, therefore, satisfied that they positively identified the Accused person as the perpetrator and it could not have been a case of mistaken identity. 43. The Accused person did not demonstrate that there was any motive for PW 6 to have framed him as the person who unlawfully caused the deceased’s death on that material date. 44. Going further, PW1 testified that when she found the deceased at the scene, he told her that the Accused person had killed him. On their way to hospital, he asked them to return home since the Accused person had killed him. The Prosecution submitted that this amounted to a dying declaration. 45. The Accused person submitted that the alleged dying declaration was unreliable and incapable of sustaining a conviction without credible corroboration. It argued that considering the severity of the injuries sustained by the deceased, the court ought to exercise the greatest caution before relying on the statement allegedly made to PW 1 and urged the court to apply the principles set out in the case of **Musili v Republic [1991] eKLR and Pius Jasunga s/o Akuku v Republic (1954) 21 EACA 331**. 46. Section 33 (a) of the Evidence ActCap 80 (Laws of Kenya) provides that: - **“Statements, written or oral, of admissible facts made by a person who is dead …… are themselves admissible in the following cases:** **(a)When the statement is made by a person as to the cause of his death, or as to any circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question and such statements are admissible whether the person who made them was or was not at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;”** 1. In the case of **Philip Nzaka Watu vs Republic [2016] KECA 696 (KLR)-CA,** the Court of Appeal observed that a dying declaration had to be admitted with caution since it was not subject to cross- examination and circumstances leading to death may have caused confusion and surprise to render the deceased’s perception questionable. It also held that there was no need for corroboration of a dying declaration. It cautioned the trial court to find a conviction on a dying declaration when it was only safe to do so. 2. Further, in the case of **Pius Jasunga s/o Akumu v Republic [1954] EACA 333, the court emphasised that although there was no need of corroboration for dying declaration, it was also very unsafe to base a conviction solely on the dying declaration made in the absence of the Accused** person and not subject to cross- examination unless there was satisfactory corroboration. 3. In the instant case, there was corroboration of the deceased’s dying declaration by PW 6 who saw the Accused person stab him and further, corroborated by PW 1 who said the deceased informed her that the Accused person had killed him. 4. Weighed against the evidence that was adduced by the Prosecution witnesses, this court did not find the evidence of the Accused person to have been watertight enough to have weakened the inference of guilt on his part. While he denied stabbing the deceased, he admitted to the fact that he was at the scene and even pushed the deceased on the ground so that the deceased could not wake up. 5. Consequently, it was this court’s finding that the Accused person’s defence did not displace and/or dislodge the consistent and cogent evidence that was adduced by the Prosecution witnesses. 6. **MALICE AFORETHOUGHT** 7. Having found and held that the Accused person’s defence was not sustainable, the next pertinent question that arose was whether or not he had malice aforethought in causing the deceased’s death. 8. The Prosecution invoked Section 206 of the Penal Code and submitted that the Accused person action of stabbing the deceased on the chest was an attack on his life. It asserted that the nature of injury and the weapon used showed that his actions were propelled by extreme malice. It relied on **Republic vs Tubere S/O Ochen (1945) 12 EACA 63** where the court held that malice could be established from the nature of the weapon used, the part of the body targeted and the conduct of the Accused person before, during and after the attack. 9. The Accused person asserted that the Prosecution failed to prove beyond reasonable doubt that it was him who inflicted the fatal injuries and that he did so with malice aforethought. He submitted that the Prosecution failed to establish malice aforethought within the meaning of Section 206 of the Penal Code. 10. He argued that the evidence disclosed a sudden confrontation precipitated by the deceased's attack on his father and that, if the court were to find that the Accused person participated in the struggle, his actions were in defence of another as contemplated under Section 17 of the Penal Code. In the alternative, it submitted that the circumstances were more consistent with the offence of manslaughter than murder. 11. This court had due regard to the case of **Morris Aluoch vs Republic [1997] eKLR** which cited the case of **Rex vs Tubere s/o Ochen [1945] 12 EACA 63** where the East Africa Court of Appeal held that malice aforethought could be presumed where repeated blows were inflicted. 12. Notably, the deceased had attacked the Accused person’s father and according to PW 3 and PW 5, he had stabbed him. This could have also made the Accused person to be angry hence, the brutal attack on the deceased. 13. The deceased had two (2) stabs wounds in the chest which were clearly intended to cause him fatal injuries. The seriousness of the injuries that the deceased sustained leading to the collapse of his lung could not be said to have been bereft of malice aforethought on his part. 14. Having analysed the evidence that was adduced by both the Prosecution and the Accused person and parties’ Written Submissions, this court came to the firm conclusion that the Prosecution established to the required standard, which in criminal cases, was proof beyond reasonable doubt that the act of unlawful killing of the deceased herein was by the Accused person and that the same was with malice aforethought the ingredients that had been set out in Section 203 of the Penal Code as having been:- 15. **Proof of the deceased’s death;** 16. **Proof that the deceased’s death was a result of unlawful actions and/or omissions; and** 17. **Proof of malice aforethought in the unlawful actions and/or omissions.** **DISPOSITION** 1. For the foregoing reasons, the upshot of this court’s decision was that the Accused person herein be and is hereby convicted of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 (Laws of Kenya) under Section 215 of the Criminal Procedure Code Cap 75 (Laws of Kenya). 2. It is so ordered. **DATED** and **DELIVERED** at **VIHIGA** this **27th** day of **July** 2026 **J. KAMAU** **JUDGE**