https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8330

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **CRIMINAL CASE NO. E015 OF 2025** **REPUBLIC……………………………………………………………………………..DPP** **VERSUS** **ZACHARIA SIGAWA MATIKO………………………………………..……..ACCUSED** **JUDGMENT** The Accused person in this matter is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on the 23rd day of April, 2025, at Gibarori village, Nyaitara Sub-Location, Maeta Location, Kuria East Sub-County in Migori County within the Republic of Kenya murdered Matiko Mwita. The prosecution tendered evidence of 8 witnesses to support the charge against the Accused person. The Accused however opted to remain silent when placed on defence. PW1 Reuben Marwa from Gibarori village Nyantara Sub Location testified that he was a pupil at Gebarore Junior Secondary School in grade 8. He said he was 15 years old. He said the accused Zacharia was known to him as the father’s younger brother. He said his father Mwita Matiko was the deceased herein. He recalled that on 23rd April 2025 at 7.30pm he was at home with his sister Esther Gati and his elder brother Samuel Muniko watching television in their grand-parents house which is not far from their house. He said they were watching a programme known as Neema. While watching television their father came. He said they were also with their younger sister Sarah who is disabled. That their father came and told them that they should go back home as it was getting dark. That on their way home they passed by Zacharia’s house which is not far from their grand father’s house. That Zacharia hit their father with a stone and when their father went to ask why Zacharia had hit him, Zacharia cut him with a panga on the neck- left side and on the face. When Zacharia cut their father, he ran to go and call his mother. He reported to her that the uncle was cutting their father. That he remained at home as the mother proceeded to the scene. PW1 said their house is about 30 meters from the grandparents’ house. That when he later went back to the scene, he found the father had died. That Zacharia also chased after the mother threatening to cut her also. That the grandfather went to call police. Later he recorded his statement with the police. PW1 said his grand parents’ house had light from battery. He said Zacharia’s house also had sensor lights for security. In cross-examination by Mr. Otieno Advocate PW1 said that prior to the father going to call them he had not seen him. He said the father had just returned home when he went to call them from the grand father’s house. He said the deceased was wearing a cap. He also said there was security light at Zacharia’s house and they were passing on the path besides Zacharia’s house. There was security light besides Zachariah’s house. When PW1’s father approached Zacharia to find out why he had been hit with a stone he did not hear what they said as Zacharia cut him immediately we reached where Zacharia was armed with a panga. I recorded my statement with police. Zacharia had a phone that he used to flash. Zacharia stood against the wall to his house. Zacharia carried a panga and torch. Zacharia was not near the sensor lights. Zacharia was standing away from sensor. He said he did see light from torch which Zacharia was holding and that made him see him. Zacharia’s sister in law was in his house. PW1 said that he did not go into Zacharia’s house. He said Zacharia house came from the house. That when his mother went to where the father had fallen, he did not hear any matter being talked about. The accused person threw a stone at his father from his home. He said he did not see Zacharia pick stones or even throw it but a stone fell where they were. In re-examination by Mr. Oimbo PW1 said that the security light at Zacharia’s home is sensor. It lights up on sensing people pass by. By the time stone was thrown at my father the sensor had lit the area and there was light. PW2 Samuel Muniko Mwita 16 years old grade 8 pupil from Gibaroni village in Nyaitara sub location testified that the accused was known to him as younger brother to his father Mwita Matiko the deceased herein. On 23rd April 2025 he recalled he was at the grandmother’s house with Reuben Esther and Nyange watching television programme known as Neema. While watching television their father went and told them to go home as it was late. While they were on the way home, they got to Zacharia’s house and Zacharia hit the father with a stone. That when the father went to ask why he had been hit with a stone Zacharia cut him on the neck and head with a panga. I ran to go and call my grandfather when my grandfather came to the scene, Zacharia chased him with a panga and my grandfather went to call police. There is security light at Zachariah’s home that has sensor. The accused also had torch from his torch. When my father went to inquire why he had been hit with a stone Zachariah hid besides/against the wall and that is why he cut him. PW2 said that his grandfather was in the house when the incident happened. He said that when neighbours responded to the alarm Zacharia chased them away. That even his mother was chased from scene by the Accused. Later he recorded his statement with the police. When cross-examined by Mr. Otieno Advocate PW2 said he saw Zacharia before he hit his father with a stone. He said Zacharia stood against the wall to his house and he was armed with a panga. He picked a stone from the ground. He also had a knife. He carried panga on left hand. The stones were on right hand. The knife was tucked on his waist. The security lights were hoisted on the wall. It is when his father approached Zacharia that he used light from torch to shine on him. The security light at accused house was not very bright. PW2 said he arrived back at the scene with Barbie. The accused person wore white long trouser but he could not remember what top he wore. PW3 Rhoda Robi Mwita testified that the accused was younger brother to her late husband. It was her evidence that on 23rd April 2025 at 7.30pm she was at her my house when the deceased returned and asked where the children were and she told him the children were at their grandparents’ house. The children were Reuben Marwa, Samuel Muniko, Esther Gati and Sarah Nyangi. The children had gone to watch television programme known as Neema at their grand parents’ house. That the deceased left to go and bring the children as she remained at home. In a short while Reuben went and reported to her that their father had died. He said Baba Sigawa had killed their father. She rushed to scene and found her husband had been cut on the left side of the neck and on the face and was lying down dead. The accused stood while still armed with panga and when she went to check if the deceased was alive, Sigawa chased her with panga threatening to kill me also. She raised alarm but the people who responded were also chased by the accused. PW3 said the Accused person’s house has sensor security light which enabled her to see the accused at the scene. Later police went to the scene and took photographs and took the body away. Later she recorded her statement with the police. When cross-examined by Mr. Otieno Advocate PW3 said she didn’t go with her husband to where the children were. She said Zachariah’s house is in between their house and the house of their parents. She said she didn’t know what transpired until Reuben went to call her. When she went to scene and tried to confirm if the deceased was alive, when she bend down to hold the deceased, Zachariah started chasing her. She said she found the Accused was standing and it is when she arrived and wanted to see if my husband was still alive that the accused started running towards me threatening to kill me also. It is Reuben who went to inform her that Sigawa had cut the deceased In re-examination PW3 said that the accused chased her from the scene and threatened to kill her also. PW3 also said that her father-in-law is threatening to curse her and her children if his son is jailed. He had threatened to take a loan using the plot they stay on or sell it. He is not concerned that her children have lost their father. PW4 Isaack Matiko from Gibarori village in Kehancha said he was a driver but currently a farmer. He said the accused was his son and the deceased was also his son. He said that after the accused was charged, he went to the prosecution office seeking that charge against the accused be withdrawn as he had lost the deceased. He said he recorded his statement with the police after the murder incident. He said he is the one who went to call police after the murder incident. He reported at Maeta Police Post. It was his testimony that on 23rd April 2025 at about 8.00pm he was with his grandchildren Reuben, Samuel Esther and Sarah in his house watching television. That after they had had supper, they heard screams and the children ran and found their father lying on the ground at Sigawa’s homestead. Muniko went and told him their father had fallen at Sigawa’s home. When he arrived at scene and found the deceased lying down at Sigawa’s home Sigawa was not at the scene. The deceased had injuries on the head. PW4 went to call the police. That he reported to police to come and collect the body of the deceased. He said he did record his statement and said that Mwita had died. His statement stated that when he arrived at scene Sigawa asked what he wanted and he abused him saying he was a dog. It is his grandsons who called him. PW4 confirmed that his son’s house had sensor security lights. There was light and he was able to see the injuries on the deceased. In cross examination by Mr. Otieno Advocate, PW4 said that he saw the deceased lying down at Sigawa’s home with injuries. The deceased went to his house to take his children but he was drunk. He said he didn’t see Zacharia throw stone at Mwita or even cut him. He said it is Muniko his grandson who told him Sigawa had cut their father. He said he met Muniko on the way when he was going to call and report his father had been cut. He said he had a torch which enabled him to see the injuries on the deceased. He said it is his phone which had torch. He said he did not see Sigawa at the scene when he arrived but his in-law Samuel and Daniel Chacha his son were at the scene. In re-examination, PW4 said the deceased went and took the child Sarah and he left. It is Muniko who went to call and reported their father had been cut. He said he used his torch to see the injuries on the deceased. The accused persons house has sensor security light. He said he heard screams after the deceased had taken his child from his house. PW5 Dr. Mark Oduor Medical Officer at Migori County Teaching and Referral Hospital Surgical Department examined the body of Matiko Mwita after it was identified by Isaac and Daniel Matiko. The post mortem done on 28th April 2025 in Kuria West Hospital (Kehancha Sub County Hospital) at 3.00pm Externally body had multiple deep cut wounds on neck and head. On the head there was left temporal region cut wound 14cm by 2cm by 4cm in depth with fractures of temporal and parietal skull bone with bleeding. On left side of neck there was deep cut wound which cut through skin, muscles, blood vessels, carotid artery and left jagular vein. The trachea and oesophagus were cut through. Body had central and peripheral parlour. Dr. Oduor formed opinion that cause of death was excessive bleeding secondary to assault with sharp object.He issued Certificate of Death No. 1418659. He produced the Post Mortem Report as exhibit P1. In cross examination by Mr. Otieno Advocate PW5 said that there were cuts on left temporal lateral region which is left side of the head. The extent of the measurement of cuts covered the left part of the face. There were two major cut wounds on the head and neck region. PW6 Tabitha Murunga Magoiga Chief of Maeta Location Kuria East Sub County testified that on 5th April 2025 Mzee Isaka Matiko Muniko went and complained about his son Sigawa. Mzee Matiko reported that Sigawa had drained his fish pond and he lost fish. Some fish died and Sigawa took some fish to his home. When Mzee Matiko inquired why Sigawa had destroyed his pond, Sigawa insulted him. When she advised him to report to police, Mzee Matiko told her that she should summon Sigawa to the office over the weekend as he was a truck driver and could not be found during the week. That she obtained Sigawa’s telephone number and made phone call. When she spoke to Sigawa on phone he agreed to come on 6th April 2025 but he didn’t come. Later Sigawa’s father went and requested her give a written notice for meeting on 11th April 2025 but upon being served Sigawa didn’t come. That when Sigawa received the written notice he made a phone call and asked why she was calling him to the office. He questioned, whom he had killed or whether he had stolen. He then insulted her that she had not been circumcised. PW6 said she didn’t respond to the insult. That she disconnected the call and called Sigawa’s father and advised him to go and report to police and record statement. Sigawa’s father did not go to record statement. On 23rd April 2025 at 8.44pm PW6 received a phone call from a village elder Joseph Moherai (who is since deceased). He told her that Sigawa had cut his brother Mwita whose condition was bad. That he dragged Mwita towards his doorstep to prevent anyone from assisting Mwita. He stood guard still holding the panga and threatening anyone who approached to help. PW6 called the in charge of Maeta Police Post to come and assist save the life of Mwita. However, since Maeta Police Post doesn’t have a car, the deceased succumbed to injuries at 9.52pm before they arrived. In turn she reported the death to the O/I Maeta Police Post. The OCS of Kegonga police station went to scene and took body to the mortuary. That on the same night she got report that Sigawa went to the parents’ house and knocked demanding that they open so that he could cut them the way he had cut Mwita and banana trees. PW6 said Sigawa had been known to her since his childhood. He is like a son to her as his father and her husband are related. When cross examined by Mr. Otieno Advocate PW6 said Sigawa cut down bananas on the same night after Mwita had died at around 9.00pm. Accused person kept guard so that no one could assist Mwita. She said she was not at the home of the accused on the material night. The village elder told her he was at scene. The village elder’s home is very close to accused person’s home and he responded to the noise that was being made. Mzee Isaack Matiko reported that accused had damaged his fish pond. IPW6 said she called the accused for a meeting twice but he didn’t attend. She said she believed that what Matiko said was true. She said that on 11th April 2025 the accused person called and questioned why she was calling him to the office. He inquired whether he had killed somebody or he had stolen. She said she had no information by then that the accused had committed murder. She said she didn’t include what Isaack told her in her statement. The deceased died at the scene before the police from Kegonga arrived. The village elder is the one who told me the deceased had died at scene. PW6 said her home is far from scene and she didn’t go to the scene. She said her evidence arises out of the village elder’s report and Isaacks’ report. In re-examination, PW6 said that the village elder’s home is less than 50 metres from accused person’s home. When accused defied to attend the first time she wrote a letter. The accused had cut bananas. He also closed the road. PW7 No. 74134 Corporal Daniel Limo from Kegonga police station testified that he is the one who arrested the accused person in company of his colleagues on 24th April 2025, at about 9.58am. He said when they got information a suspect who had killed his brother was at Kegonga market he and Inspector Dominic Mwinzi together with PC Mate, PC Bore and PC Kaibo proceeded to Kegonga market. We used APS vehicle and proceeded to the market. On arrival they found the accused was seated at the front passenger seat in a vehicle at the center. They introduced themselves and informed him that he was under arrest. They explained that he was suspected of murder and escorted him to the police station and placed him in cells. They then informed DCI Ntimaru. Later PW7 recorded his statement. PW8 No. 82960 PC Julius Tum DCI Kuria East Sub-County testified that on 23rd April 2025 at about 8.00pm he received phone call from Corporal Oloo, who informed him that there was murder incident in Kibarori area in Kuria East Sub County Maeta Division. In company of Corporal Oloo and PC driver Owino they proceeded to Kegonga Police Station where they found IP Mwinzi the Officer in Charge of anti-crime. IP Mwinzi briefed them that suspect Zakaria Sigawa had murdered his brother Matiko Mwita. They proceeded to Kibarori and on arrival they found a large crowd gathered and the body of the deceased lay on the ground. At the scene the body lay at the main entrance to the house of Zacharia. The scene was in a homestead. There is a road that came from the house of accused persons parents through Sigawa’s house and to the house of the deceased which is in the lower part of the home. The house of the deceased was around 60m from where the body lay. The deceased had a deep cut on the left side of the cheek and neck. There was a pool of blood at scene. Members of public were enraged and we had a hard time to document the scene. That after documenting the scene they removed the body to Kehancha Sub-County Hospital for preservation. PW8 said they didn’t find the accused at the scene. PW8 reiterated what PW1, PW2, PW3 and PW4 said in regard to what transpired and led to the murder of the deceased. PW8 established that he accused and the deceased had a land dispute. When accused hit the deceased with a stone, he gave out the child to Esther and went to inquire from Zacharia why he had been hit. That on arrival they spoke but suddenly the accused cut him with a panga and he fell one of the children on seeing this ran back to their grandfather’s house to report and another went to call the mother. The father and wife of the deceased rushed to the scene but the accused was threatening to cut anyone who approached the scene. On 24th April 2025 they got information that Zakaria had been arrested in Kegonga township by police officers from Kegonga and he was placed in cells. On 25th April 2025 he filed an application for custodial orders so that he could conduct investigations and it was granted. On 28th April 2025 post mortem was conducted after the father of the deceased identified the body. The father of the deceased is Isaack Matiko. The cousin of the deceased also identified the body. The pathologist was of the opinion death was caused by massive bleeding as a result of assault by sharp object. At the scene they conducted search but did not recover the murder weapon. In cross examination by Mr. Otieno Advocate, PW8 said that when they arrived at the scene, there was an irate crowd. Some were near the body of the deceased and they were not ready to allow them to process the scene. The body was not moved. From the scene to the deceased house was 60m. From the accused house to the father’s house is about 50m. There is a live fence separating the homes. The accused persons house is in between his father’s house and the deceased’s house. The accused hit the deceased with a stone. It is the witness Reuben Marwa and Samuel Matiko who were with the father who said the accused hit the father with a stone. There is a path that passes from the father of the deceased house to the deceased house. The road/path is 6m from the accused person’s house. The incident happened on the deceased person’s way back to his home. The father to the accused told PW8 that the accused and the deceased had land dispute. The Chief also told PW8 that the 2 had dispute over family land and it had not been reported to police and she tried to resolve in vain. PW8 did not however investigate the land dispute. The Chief told PW8 that Sigawa had blocked the way that was being used by the family and had drained water from the father’s fish pond. PW8 said he didn’t recover murder weapon. It is Reuben and Samuel who saw the accused use panga to cut their father. In re-examination by Ms. Ikol, PW8 said the underlying cause of dispute was boundary dispute. At the close of prosecution case the court found Accused had a case to answer and he was placed on his defense. The Accused however, opted to remain silent after the court explained to him the options he had in defending himself. The Accused having opted to remain silent this court will have no option but to determine the charge based on the evidence tendered by the prosecution only as no submissions were made by either party. **Analysis and determination.** Having considered the evidence on record for the prosecution the issues identified for determination are:- 1. Whether the death of the deceased was proved 2. Whether the death was caused by an unlawful act 3. Whether the accused committed the unlawful act 4. Whether the accused acted with malice aforethought The fact of death is not disputed. The post‑mortem examination conducted by **PW5**, a medical officer, confirmed that the deceased sustained **multiple deep cut wounds to the head and neck**, severing major blood vessels and the airway. The cause of death was certified as **excessive bleeding due to assault with a sharp object.** This court finds that the **death and its cause were proved beyond reasonable doubt**. Whether the cause of death was unlawful, the deceased suffered fatal injuries inflicted by a sharp weapon. There is no evidence suggesting accident, suicide, or lawful justification. The use of a panga to inflict severe injuries to the neck and head rendered the killing clearly unlawful. Whether the Accused was properly identified as having caused the death of the deceased, the prosecution relied primarily on **direct eyewitness evidence** from **PW1 and PW2,** both minor children of the deceased, who were present at the scene and well acquainted with the accused, their paternal uncle. Their evidence was consistent that the accused threw a stone at the deceased and when the deceased approached to inquire, the accused **cut him with a panga.** The attack occurred at close range and identification was by **recognition,** aided by security lighting and a torch. Their testimony was corroborated by PW3 the widow of the deceased, who found the accused at the scene armed and threatening to cut anyone who moved near the deceased who was lying helpless on the ground in a pool of blood. **PW6**, the area Chief, who received a contemporaneous report that the accused guarded the body and threatened rescuers. **PW8,** the investigating officer, found the body at the accused’s homestead with injuries consistent with the eyewitness accounts. It is without a doubt that the evidence of identification was **positive, credible, and free from error**. The failure to recover the murder weapon does not weaken the prosecution case in light of this testimony. Whether the prosecution proved malice aforethought, this may be inferred from the circumstances of the case. The accused used a **deadly weapon, t**argeted **vital parts of the deceased’s body, i**nflicted **multiple severe cuts, p**revented assistance to the deceased, threatened further violence after the incident and had a history of hostility and disputes with family members. The court is satisfied that the accused intended to cause death or grievous harm within the meaning of Section **206 of the Penal Code**. The accused elected to remain silent. The court notes that this is a constitutional right and draws**no adverse inference.** Nonetheless, the prosecution evidence remains unchallenged and sufficient to sustain a conviction. In conclusion, having carefully considered the evidence and the applicable law, the court finds that the prosecution proved **all the ingredients of the offence of murder beyond reasonable doubt**. The court hereby finds the accused **Zacharia Sigawa guilty** of the offence of **murder contrary to Section 203 as read with Section 204 of the Penal Code**and **convicts him accordingly** under Section 322(1) of the Criminal Procedure Code. **DATED, SIGNED AND DELIVERED AT MIGORI THIS 7TH DAY OF MAY, 2026.** **HON. ANNE ADWERA- ONG’INJO** **JUDGE** **In the Presence of:** Calvince – Court Assistant