https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11295

Republic v Makori (Criminal Case E049 of 2023) [2026] KEHC 11295 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 11295 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Case E049 of 2023 JM Nang'ea, J July 16, 2026 Between Republic Prosecution and Peter Isande Makori Accused Judgment 1.The accused is charged with Murder Contary to Section 203 as read with Section 204 of the Penal Code. The particulars of the information relating to the charge state that on 20th August 2023 at Kibindu area, Molo Sub-County, within Nakuru County he murdered Peter Onderi Bonuke. The accused entered plea of “Not Guilty” to the offence. The Prosecution Evidence 2.On the material date at about 7.30 PM, PW1 was walking home from their local shopping centre together with the deceased who was her husband. It was very dark and the place was not lit. The deceased who was walking behind her raised alarm, shouting that he was dying. PW1 turned around and saw the Accused holding a jembe while the deceased lay down bleeding from the head. The Accused was about 5 metres from the deceased standing by his fence. PW1 feared to go near him and raised alarm. She stated that the Accused had been hiding in a thicket from which he emerged to attack the deceased. The witness stated that she was walking 10 metres ahead of the deceased at the time. 3.According to PW1, members of the public who included those she named as Philip Mandela (PW3), Rose Morara and Gitua answered her screams. The Accused left the scene while taunting PW1 to scream louder for police officers to come. 4.The deceased is said to have been taken to Molo Sub County Hospital and "Nakuru General Hospital" for medical attention. He was admitted in the latter hospital for 5 days. While at home, the left side of his body got paralysed and he would not communicate clearly. He was taken back to hospital twice. Unfortunately, he died on 7/4/2023 while at home, 3 months after the incident. The deceased had testified over the case before the court before his demise. 4.PW1 further told the court that the Accused and the deceased were involved in a land boundary dispute which had been reported to the area chief. 5.PW2 testified that she knew the deceased and the Accused as her neighbours. On 20/8/2022 at around 7.30 pm she was going home when, near the Accused's property, she heard screams. The witness rushed to the source of the noise and found the Accused near his homestead. A huge crowd gathered there. She allegedly heard the Accused muttering, "wacha serikali ichukue". PW2 also saw the deceased lying on the ground bleeding from the head and could not talk. Together with others, they got a motorcycle that transported him to Molo Sub-County Hospital for treatment, but he passed on later. There was no lighting at the scene but it was not very dark. PW2 added that he did not see a jembe there. 6.PW2 further told the court that she was aware of a boundary dispute between the Accused and the deceased which was being handled by the local leadership. 7.PW3 also stated that the Accused and the deceased were his neighbours. He fully confirmed PW2's testimony saying that he had also rushed to the scene upon hearing screams. He too didn't see a jembe at the scene. 8.PW4 testified that he was among those who went to the scene. He, however, did not find the deceased there as he was said to have been rushed to Hospital. Telling the court that the Accused and the deceased were his villagers, he too testified to the existence of a boundary dispute between the two. 9.PW5 is a doctor who conducted autopsy on the deceased's body on 14/11/2022 at Molo Sub-County Hospital Mortuary. The body was identified for him by the deceased's relatives. The doctor observed an old scar on the head evidencing a head injury. There was collection of blood in the brain. The cause of death was opined to be "severe head injury secondary to assault". 10.Another doctor (PW8) based at Nakuru County Teaching & Referral Hospital also produced a Medical Examination Report on the deceased dated 31/8/2023. The report was made by the doctor's colleague (Dr. Adhiambo) with whom he had worked at the Hospital for 2 years and hence conversant with her handwriting and signature. This report also notes head injury on the deceased's body. The deceased's treatment and discharge records were exhibited as well in support of the prosecution case. 11.PW 6 (Investigating Officer) confirmed that the assault report was made to Molo Police Station by one Philip Mandela (PW3). After the deceased's discharge from Hospital, he was issued with a Medical Examination Form (P3 form) which was later returned to the Station duly filled out and showing that he suffered grievous harm. Although he suffered paralysis of the right side of his body, the deceased was able to testify before the lower court where the Accused person was initially charged with attempting to murder him. He testified on 26/10/2023 but died thereafter on 7/1/2023, adds PW6. 12.PW6 continued to testify that with the help of a member of the public they arrested the Accused at Landy Trading Centre and charged him in the Molo Chief Magistrate's Court with attempted murder. He had lodged a complaint at Chandera Police Post alleging that he was attacked and got injured while defending himself. Among other exhibits, PW6 tendered proceedings in Molo Chief Magistrate's Criminal Case No. E1971/2023 showing evidence adduced by the deceased who testified therein as PW1, in the attempted murder case against the Accused. The deceased had testified that on 20/8/2022 at around 7.30 pm as he walked home in the company of his wife (PW1), he was suddenly hit from behind as a result of which he fell down. They screamed for help attracting their neighbours, who took him for treatment. According to the deceased, his wife as well as some of their neighbours identified or recognized the Accused as the assailant. 13.The deceased's wife also testified as PW2 in the lower court giving similar evidence implicating the Accused in the attack. 14.The Accused was put on his defense and gave sworn evidence. While confirming that the deceased was his neighbour, he denies attacking him and causing his death. He stated that on the material date at around 8.30 pm he was at his home when he heard threats to kill him being issued by people flashing torches. He got out of the house and reported the threats to Chandera Police Station. Later he was arrested at Landy Trading Centre for allegedly attacking the deceased, which accusation he denied. 15.The Accused claimed that he lived peacefully with the deceased who was his neighbour. Although he confirmed that they had a land dispute, the Accused told the court that the issue was resolved by the area Chief. He stated that it was the deceased who trespassed upon his land and planted crops thereon. Analysis and Determination 16.Learned Counsel for the Prosecution and the Defence filed their final written submissions which the court has carefully perused against the record. 17.The Prosecution Counsel submits that in homicide cases, death is presumed to have been unlawfully caused unless it is otherwise accidentally caused in circumstances that make it excusable. The Ugandan cases to wit; Uganda vs Lydia Draru Alias Atim HCT-00-CR-SC-0404 High Court of the Republic of Uganda and Akol Patrick & Others vs Uganda (2006) HCB (Vol. 1) 06, as well as the Court of Appeal for East Africa’s decision in R vs Gusambiza s/o Wesonga 1948 15 EACA 65 are cited in the Prosecution submissions inter alia to underscore the legal position . 18.The Defence Counsel in their submissions correctly state the law regarding circumstantial evidence the Prosecution relies upon. 19.Case law in Republic vs Gideon Wambua Kioko & 2 Others (2019) eKLR lists three essential elements of the offence of murder as hereunder;i.The death and cause of death of the deceased.ii.That the accused caused the death through an unlawful act or omission.iii.The accused possessed the intention to cause harm, or kill, or malice aforethought. 20.The sole issue for determination is whether the prosecution has proved beyond reasonable doubt that the Accused persons murdered the Deceased, actuated by malice aforethought. 211.There is no direct evidence linking the accused to the killing as none of the witnesses testified to seeing the accused burning his house or otherwise commit the offence. Determination of the case therefore wholly depends on circumstantial evidence. In Mwangi vs Republic (Criminal Appeal No. E054 of 2023) [2024] KEHC 3113 (KLR) 15 March 2023) (Judgment) this court explained that for circumstantial evidence to be reliable it must be inconsistent with the Accused person’s innocence. 22.In the case of Ahamad Abolfathi & Another vs Republic (2018) eKLR also cited by the Prosecution Counsel, it was elaborated that;“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.” 23.In a much older case (Republic vs Taylor, Weaver & Donoram (1928) Cr. Application R 21), it was observed that;“Circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable or proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that is circumstantial.” 24.In the often quoted case of Sawe vs. Republic (2003) KLR 364, it was stated that circumstantial evidence must satisfy three tests, namely;-“the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; the circumstances taken cumulatively should form 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.” 25.As in the case of R vs Kipkering Arap Koskei (1949) EACA 135 Counsel further made reference to, the prosecution must also show that there existed in-culpatory facts that were incompatible with the innocence of the Accused and incapable of any explanation upon any other reasonable hypothesis other than that of guilt. 26.Section 206 of the Penal Code provides that malice aforethought is proven by one or more of the following circumstances;-a.Intention to cause death or do grievous harm whether the death actually occurs or not.b.Knowledge that the act or omission causing death will probably cause the death or grievous harm to a person, whether the death is actually caused or not.c.An intention to commit a felony.d.An intention by an act or omission to facilitate flight or escape from custody of any person who attempts to commit a felony. 27.The prosecution does not have to prove the motive for commission of any crime, and neither is the evidence of motive sufficient by itself to prove commission of a crime by a person who possesses the motive {(see Case law in Robert Onchiri Ogeto vs Republic (2004) KLR (1a).} Determination 28.Circumstantial evidence herein is strong and implicates the Accused. The Accused was at the scene soon after the deceased had been struck and caused to fall down, as per undiscredited evidence of the Prosecution witnesses. According to PW1 who was the first to see him, he was armed with a jembe. 29.The Accused is said to have taunted PW1 and those who went to the deceased's rescue that they could take or report him to the police if they had to. This conduct is not consistent with his innocence. The fact that he was not concerned with the deceased’s injury further proves his guilt. 30.He is well known to the witnesses (PW1, PW2 and PW3) and they could not have been mistaken in their recognition of the Accused. Contrary to the defence submissions that these witnesses told the court that the boundary dispute had been resolved, this is not borne out by the dispute evidence. On the contrary, PW3 and PW4 said the Accused was disgruntled over the boundary issue. The motive for the attack could therefore be the land dispute. 311.I find on the evidence and in the circumstances of the case that the Prosecution proved the Accused’s guilt beyond reasonable doubt and he is hereby convicted as charged pursuant to section 215 of the Criminal Procedure Code. J. M. NANG’EA, JUDGE.JUDGMENT DELIVERED THIS 16TH DAY OF JULY, 2026 IN THE PRESENCE OF:The Prosecution Counsel, Mr Wakasyaka.The Defence Counsel, Ms Kimotho Advocate for Ms Wairimu.The Accused.The Court Assistant, Jeniffer. J. M. NANG’EA, JUDGE.