https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8141

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT KERICHO** **CRIMINAL MURDER CASE NO. E031 OF 2021** **REPUBLIC ...................................................... PROSECUTION** **VERSUS** **PETER KIPKORIR MARITIM .................................... ACCUSED** **JUDGMENT** 1. The Accused person, **PETER KIPKORIR MARITIM**, stands charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap 63, Laws of Kenya). 2. The particulars of the offence are that on the 30th day of May 2019, at Sogobet Village, Chepseon Ward, Londiani Sub-County within Kericho County, he murdered **ROBERT KORIR KIPRONO**. 3. The accused pleaded not guilty to the charge. 4. The trial proceeded before this court. The Prosecution called eight (8) witnesses. The defence called three (3) witnesses, including the accused himself. 5. At the time of writing this judgment, the prosecution had not filed their written submissions. I have carefully considered the evidence tendered, the exhibits, the defence submissions, and all other documents placed before this court. 6. The following issues arise for determination; 1. ***Whether the death of ROBERT KORIR KIPRONO occurred.*** 2. ***Whether the death was caused by an unlawful act or omission of the accused.*** 3. ***Whether the unlawful act was committed with malice aforethought.*** 4. ***Whether the Prosecution proved its case against the Accused beyond reasonable doubt*.** 7. The Prosecution case is anchored on the testimony of PW1, **KEVIN KIPROTICH**, the only eyewitness to the incident. The Prosecution called eight witnesses in total, but it is the evidence of PW1 that forms the cornerstone of the case against the Accused. 8. PW1 testified that on the evening of 30th May 2019 at approximately 7:00 PM, he was going to fetch a torch which he had charged at the Accused's home. As he walked, he found himself following behind the Accused and the deceased, who were walking ahead of him going home. 9. PW1 told the court that the accused and the deceased were quarrelling. They were both drunk. As PW1 watched from behind, the quarrel escalated into a fight. The two men fell on the Accused's gate, and the gate swung open. PW1 then heard the accused, PETER KIPKORIR MARITIM, ask the deceased what he wanted. The deceased did not reply. They started fighting. The deceased fell down. While the deceased was lying on the ground, defenceless, the Accused hit him. The Accused then took a stick and hit the deceased three times on the head. 10. PW2 – **PURITY CHEPNGETICH** testified that she is the wife of the deceased. She was called by PW1 at approximately 7:30 PM and informed that her husband was being beaten by the accused person. She went to the scene. She did not find anyone beating her husband, but she found him lying on the ground, drunk and was injured on the head and the head was swollen. He was not talking or speaking. She took him home with the assistance of Sharon. She thought she was drunk and waited. That she called the neighbours who wanted to take the deceased to the hospital but some said he had already died. 11. PW2's evidence confirms that the deceased was injured, that he was drunk, and that he died thereafter. Her evidence does not directly implicate the accused, but it does not contradict PW1 either. The fact that she did not see anyone beating her husband when she arrived is explained by the simple fact that the beating had already stopped. The accused had gone. 12. **PW3 – AUGUSTINE KIBET CHEPKWONY** testified that he was called on 30th May 2019 to take the deceased to hospital. He found that the deceased was lying down and was told that he had died. He called the area chief and the police. On cross-examination, he admitted he did not know who murdered the deceased. 13. **PW4 – RICHARD KIPSANG LANGAT** testified that he is the father-in-law of the deceased. He was informed by one Cosmas, his son in law, that the deceased had died. He witnessed the post-mortem. On cross-examination, he admitted he did not know who killed the deceased, and he did not know the accused. 14. **PW5 – PHILIP CHERUIYOT TOBON** testified that he is a cousin of the deceased. He witnessed the post-mortem. On cross-examination, he admitted he did not know the accused and only heard that the accused killed the deceased. 15. **PW6 – PHILIP KIPROTICH CHIRCHIR** testified that he is a relative of the deceased. PW1 told him the accused had injured the deceased. He went to the scene and found the deceased had been hit on the right side of the head. The head was bleeding. He helped take the deceased home. 16. **PW7 – DR. WESLEY ROTICH** produced the Post-Mortem Report (Exhibit 1). He stated that the cause of death was a severe head injury due to trauma to the head by a blunt object. 17. This is critical corroboration of PW1's testimony. PW1 said the accused struck the deceased on the head with a stick. The Post-Mortem Report confirms that the deceased died of blunt trauma to the head. 18. On cross-examination, PW7 admitted that he is not a pathologist. He admitted that there is no Medical Reference Number on the Report. He admitted that no toxicology report was conducted. He admitted that the post-mortem was conducted on 9 days after the death. 19. **PW8 – PC KENGA** was the Investigating Officer in this matter. He simply narrated the events leading to the death of the deceased. He stated that he did not secure any other evidence to show that the death was caused by anything else other than the assault by the accused. He admitted that he did not visit the scene of the alleged incident. 20. The defence called three witnesses. 21. **DW1 – PETER KIPKORIR MARITIM** testified anddenied assaulting the deceased. He testified that he was at a bar until 6:30 PM, returned home, heard a knock on his gate, and later went out to find the deceased being helped by his wife. He claimed that he did nothing to the deceased. On cross examination, he admitted that he saw one Annah and Kevin, PW1, when he came out of his house. He admitted that he went to Kuresoi after the incident but could not summon anyone from Kuresoi. He admitted that there was a quarrel between him and Kelvin’s uncle. 22. I have considered the accused's denial. It is self-serving. He has every reason to lie to save himself. His denial is directly contradicted by PW1, who saw him beat the deceased. He disappeared after the incident from May 2019 until when he was arraigned in this court on 11th March 2021. 23. **DW2 – JOSEPH KIBII ARAP LANGAT** testified that he was drinking with the deceased on 30th May 2019. He said Peter, the accused, shortly entered the bar. That he went home with the deceased. When they reached the accused's gate, the deceased told him to leave him alone. He admits seeing Kelvin, PW1, at the scene. He said the Accused was not at the scene at that time. 24. **DW3 – ANNAH CHEROTICH** testified that she saw some drunk people staggering. One of them fell at the accused's gate. She heard a bang and saw the deceased holding his head. She said the Accused was not present. She acknowledged the presence of Kelvin, PW1. 25.I have carefully considered the defence written submissions. The defence submitted that PW1 was a juvenile a submitted that PW1 was a juvenile at the time of the incident and that he is the brother of PW2 (the deceased's wife). The defence argued that his evidence should be treated with caution and that he had a motive to lie. This court has warned itself of the danger of relying on the evidence of a juvenile witness and a relative of the deceased's family. However, this court finds that PW1 was a credible witness. There is no evidence that PW1 had any motive to lie. He was present at the scene; all the defence witnesses admit this fact. He told the court what he saw. His core testimony has remained consistent. I thus reject this submission. 26. The defence also submitted that PW1 admitted on cross-examination that he could not tell who was hitting the deceased and that he assumed it was the accused because the deceased had fallen on the accused's gate. This court has carefully reviewed the evidence. PW1's testimony was that he saw the accused beating the deceased. The fact that it was dark does not mean he could not see. He knew both the accused and the deceased before the incident. He was following behind them at a short distance. His identification is reliable. This submission is also rejected. 27. The defence further submitted that PW1 became emotional and shaky during cross-examination, and the defence applied for his demeanor to be noted. I note that PW1's emotional reaction was not a sign of dishonesty. It was the reaction of a young person being pressed hard about a traumatic event he witnessed. His demeanor does not discredit his testimony. I reject this submission. 28. The defence also submitted that PW8 (the Investigating Officer) never visited the scene of the incident, and that this is a fundamental investigative failure. I agree that the failure to visit the scene is a serious flaw. This court condemns that failure. However, the failure to visit the scene does not erase the eyewitness testimony of PW1. A conviction can be based on credible eyewitness evidence even when the investigation is flawed. I reject the submission that this flaw entitles the accused to an acquittal. 29. The defence furthermore submitted that no toxicology report was conducted despite the deceased being described as extremely drunk. This court agrees that a toxicology report would have been helpful. However, its absence is not fatal to the prosecution case. The fact that the deceased was drunk does not negate the testimony of the accused beating the deceased. The eyewitness testimony of PW1 places the accused at the scene beating the deceased. This court also rejects this submission. 30. The defence further submitted that the Prosecution did not establish any motive for the accused to kill the deceased, who was his neighbour and friend. This court finds that motive is not an essential ingredient of murder. The Court of Appeal in ***Gachie v Republic [2005] eKLR*** held that the absence of motive does not entitle an accused to an acquittal. Murder can arise from a sudden quarrel or fight, as happened here. I also reject this submission. 31. The defence in addition submitted that the Post-Mortem Report is procedurally flawed; it was conducted by a non-pathologist, has no reference numbers, no toxicology report, and was conducted 9 days after death. I agree that the Post-Mortem Report has procedural flaws. I have given it reduced weight. However, the fact that the deceased died of blunt trauma to the head is not disputed. That finding is consistent with PW1's account. I therefore reject the submission that the Report should be disregarded entirely. 32. The defence in furtherance of their case submitted that DW2 and DW3 provided a consistent account that the deceased fell while extremely drunk, and that the accused was not at the scene. I note that DW2 was drunk at the time, as he admitted. His recollection may be impaired. DW3 was walking behind the two men; her view may have been limited. More importantly, both are contradicted by PW1, who was present at the scene and saw the accused beat the deceased. This court prefers the evidence of PW1. This line of submission is rejected. 33. Finally, the defence submitted that the Prosecution has not proved its case beyond reasonable doubt and that the Accused should be acquitted under Section 215 of the Criminal Procedure Code. I disagree with this. The evidence of PW1, a credible eyewitness, corroborated by the Post-Mortem Report, proves that the accused hit the deceased on the head with a stick, causing blunt trauma that led to the deceased's death. The defence alternative narrative, that the deceased simply fell, is not supported by the evidence when viewed as a whole. I therefore, reject this submission. 34. It is not disputed that **ROBERT KORIR KIPRONO** died. The Post-Mortem Report confirms the death. PW2, PW3, PW4, PW5, and PW6 all testified to the death. This court finds that this ingredient of murder is proved. 35. The Post-Mortem Report states that the cause of death was trauma to the head by a blunt object. 36. PW1 testified that the accused struck the deceased on the head with a stick. A stick is a blunt object. The consistency between the eyewitness account and the medical evidence is powerful. I find that this ingredient is proved. There is no evidence of self-defence. The deceased was lying on the ground, defenceless. There is no evidence that the accused was acting in any lawful capacity. He hit the deceased while the deceased was defenceless. This was a brutal, unlawful act. 37. Section 206 of the Penal Code defines malice aforethought. It includes an intention to cause grievous harm to any person. The accused struck the deceased on the head with a stick. The head is the most vulnerable part of the human body. He hit the deceased not once, but three times, while the deceased was lying on the ground unable to defend himself. 38. A reasonable person knows that striking someone on the head with a stick can cause death or grievous harm. The accused intended to cause grievous harm to the deceased This court finds that this ingredient of murder is proved. 39. The defence argues that the deceased fell while drunk and that his death was accidental. 40. I reject that narrative for several reasons. First, PW1, who was there, saw the accused beat the deceased. His testimony is direct and credible. There is no reason for PW1 to lie. He is a young person who witnessed a violent event. He told the court what he saw. Secondly, the Post-Mortem Report is consistent with an assault. The finding of blunt trauma to the head is consistent with being hit with a stick, not merely falling to the ground. Thirdly, the defence witnesses who claimed the accused was not present are contradicted by PW1. More importantly, all these witnesses admitted the presence of PW1 at the scene. Fourthly, the fact that the deceased was drunk does not mean he fell. Drunk people can be assaulted. Drunk people can be beaten. The defence uses the deceased's intoxication as a shield for the accused, but the evidence shows that the accused took advantage of the deceased's vulnerable state to beat him. This defence narrative does not hold any water. 41. The burden of proof in criminal cases rests squarely on the Prosecution. It never shifts to the accused. The standard of proof is beyond reasonable doubt. If any reasonable doubt exists, the accused is entitled to an acquittal. 42. In the case of ***Miller v Minister of Pensions [1947] 2 All ER 372,*** Lord Denning stated that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. If the evidence is so strong against a man as to leave only a remote possibility in his favour, that possibility can be dismissed as not being reasonable doubt. If, however, the evidence is such that a reasonable man might entertain a reasonable doubt, then the accused is entitled to be acquitted. 43. Applying this principle to the present case, this court finds that the evidence against the accused is so strong that it leaves only a remote possibility in his favour. The testimony of PW1, an eyewitness who saw the accused beat the deceased with a stick, is direct and credible. The remote possibility that the deceased simply fell while drunk is dismissed as not being reasonable doubt. 44. In the case of ***R v Turnbull [1976] 3 All ER 549***, the English Court of Appeal laid down guidelines for evaluating eyewitness identification evidence. The court held that when the case depends wholly or substantially on the correctness of one or more identifications of the accused, the trial court must warn itself of the special need for caution before convicting the accused. The court must examine the circumstances of the identification, including the length of time the witness had to observe, the distance, the lighting, and whether the witness had any reason to be mistaken. 45. This court has carefully applied the Turnbull guidelines. PW1 had the opportunity to observe the incident. He was following behind the accused and the deceased at a short distance. The incident happened at 7:00 PM, not in complete darkness. PW1 knew both the accused and the deceased before the incident. He had no reason to mistake the accused for someone else. There is no evidence that PW1 had any motive to lie. His identification of the accused as the assailant is reliable. 46. In the case of ***Gunga Baya v Republic [2015] eKLR***, the Court of Appeal of Kenya held that a conviction can be based on the evidence of a single eyewitness provided the witness is credible and the court warns itself of the danger of relying on uncorroborated evidence. The court stated that the evidence of a single witness, if believed, can be sufficient to prove the guilt of the accused beyond reasonable doubt. 47. This court has warned itself of the danger of relying on the uncorroborated evidence of a single witness. However, this court finds that PW1 is a credible witness. His testimony is consistent, detailed, and unshaken in its core account. The Post-Mortem Report corroborates his account that the deceased died of blunt trauma to the head. I therefore find that the evidence of PW1 is sufficient to sustain a conviction. 48. In the case of ***Republic v Mohamed Dadi Kokane & 7 Others [2014] eKLR***, the court listed the elements of the offence of murder as follows: the fact of the death of the deceased, the cause of such death, proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused person, and proof that said unlawful act or omission was committed with malice aforethought. 49. This court has found that all four elements have been proved against the Accused. The death occurred. The cause of death was blunt trauma to the head. The trauma was caused by the accused striking the deceased with a stick, an unlawful act. The accused hit the deceased on the head three times while the deceased was defenceless, demonstrating malice aforethought. 50. In the case of ***Ernest Asami Bwire v Republic [2012] eKLR***, the Court of Appeal held that malice aforethought can be inferred from the nature of the weapon used, the part of the body targeted, and the force of the blows. The court stated that the use of a dangerous weapon on a vulnerable part of the body is evidence of an intention to cause grievous harm. 51. Applying this principle, this court infers malice aforethought from the following facts. The accused used a stick, which is a dangerous weapon. He targeted the head, which is the most vulnerable part of the body. He struck the deceased three times while the deceased was defenceless on the ground. The force of the blows caused fatal trauma. This court finds that the accused intended to cause grievous harm to the deceased. 52. In the case of ***Joseph Kimani Mwangi v Republic [2019] eKLR***, the Court of Appeal held that intoxication is not a defence to murder unless it negates malice aforethought. The court stated that where the accused voluntarily consumed alcohol, he is still responsible for his actions unless the intoxication was so extreme that he did not know what he was doing. 53. The accused was drunk at the time of the incident. However, his level of intoxication did not negate his ability to form intent. He was able to walk, to fight, to ask a question what do you want, to take a stick, and to strike the deceased three times on the head. These are deliberate, purposeful actions. The accused knew what he was doing. His intoxication does not excuse his conduct. 54. Consequently, this court finds that the prosecution has proved its case beyond reasonable doubt. The accused is found guilty of Murder contrary to Section 203 as read with section 204 of the Penal Code and is hereby convicted accordingly. **Dated, signed and delivered at Nakuru this 11th day of June 2026.** .................................. **J.K. SERGON** **JUDGE** **In presence of:** Rutoh C/A Mwita for Accused Maundu for the ODPP