https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11630

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **CRIMINAL CASE NO. E049 OF 2022** | | | | | --- | --- | --- | | **REPUBLIC** | .................... | **PROSECUTOR** | | | **VERSUS** | | | **MOSES KIREMA MOGAKA** | .................... | **ACCUSED** | | | | | **JUDGMENT** **INTRODUCTION** 1. The accused, Moses Kirema Mogaka, is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that, on the night of 2nd and 3rd March 2019 at Riokindo Market in Kenyenya Sub-County within Kisii County, he murdered Joash Juma Nyaisu (the deceased). 2. The accused pleaded not guilty. The prosecution called eleven witnesses and produced, among other exhibits, the arms movement register for Riokindo Police Post, two G3 rifles, exhibit memo forms, a fired cartridge case, test-fired cartridge cases, the ballistic examination report, the post-mortem report, hospital correspondence and occurrence-book extracts. Upon being placed on his defence , the accused adduced sworn evidence and called two witnesses. 3. The accused was a police officer stationed at Riokindo Police Post at the material time. He was the deputy in-charge of the post and the officer in charge of the armoury. It is common ground that he was at Riokindo Centre on the material night, that he was armed with a G3 rifle and that a shooting occurred close to Framo Central Pub. What is disputed is whether he is the one who fired the shot that struck the deceased or whether, as he contends, he was attacked by a group attempting to seize his firearm and only discharged his own rifle into the air in self-defence. B. THE PROSECUTION CASE 4. PW1, Sergeant Elijah Mogire, was the officer in charge of Riokindo Police Post. He was not present when the shooting occurred. He testified on the information he received from officers at the post, the visit to the scene and the steps taken after the incident. His evidence was material on the accused’s position at the post, his responsibility over the armoury and the immediate report made after the shooting. 5. PW2, Esther Mogoi, was the deceased’s mother. She testified that she was informed during the night that her son had been shot. At Kisii Teaching and Referral Hospital she found him in pain and bleeding. According to her, the deceased said that he had been shot by a police officer called Mogaka from Riokindo. PW2 did not know the accused before the trial and was not at the scene. Her evidence was therefore an alleged dying declaration, and not direct evidence of the shooting. 6. PW3, Police Constable David Ogega Kombo, his testimony was that he had spent the material evening drinking alcohol with the deceased and a friend at Riokindo. He said about 10.00 p.m. he heard one gunshot, rushed outside and found a large crowd. He noted had a severe abdominal injury and his intestines were protruding. He and his companion administered first aid to deceased and arranged transport to hospital. PW3 said he did see the assailant of deceased , the firearm being discharged or the circumstances immediately preceding the shot. 7. PW4, Sergeant Alfred Ruto, was among the first investigating officers to attend to the Riokindo scene . He said that Joseph Mutimba (Pw7) reported a shooting incident at Riokindo trading centre, and he accompanied the Kenyanya Sub- county Police Officer and OCS Kenyanya and found the in-charge of Administration police Kenyenya and other officers and the accused . Accused reported to them that there was a scuffle between him and a person to tried to snatch his fire arm and he shot the said person as a result thereof . PW4 obtained an arms movement register and a G3 rifle, serial number J41563, which the register indicated had been issued to the accused. They arrested the accused and took him to Kenyenya police station. He recovered one fired 7.62 mm cartridge case from a ditch near the reported scene and forwarded the rifle, register and cartridge case for further investigation. He later learnt from the ballistic report that the recovered cartridge case had not been fired from rifle J41563 but from a different G3 rifle, serial number 394172, which the arms register showed had been issued to PW5. 8. PW5, Police Constable Xavier Simiyu Wanjala, was on night duty at Riokindo Police Post on the material night and his evidence was that rifle serial number 394172 had been issued to him by accused on the material day at about 6.00 p.m. He stated that at about 11.00 p.m. the accused, who was in civilian clothes, required him to surrender that rifle to him on the explanation that he was going on patrol and was pursuing a person suspected of possessing cannabis. After a short while , PW5 heard a gunshot and, together with another officer, went towards the disturbance. He found the accused holding a rifle in or near a culvert while several people were around him. The officers took the rifle from the accused and escorted him to the post. 9. He acknowledged that he had made several statements and that, in Kisii Inquest case no. 1 of 2019 relating to the cause of death of the deceased herein , he had given a different version and had not said that the accused took his rifle from him. He claimed that his earlier statements and inquest evidence were given under t pressure from senior officers who asked him to protect accused and that his later account to the Independent Policing Oversight Authority was the truth. On cross-examination he nevertheless confirmed that he had seen about five people struggling with the accused over the gun and that the shooting occurred before the responding officers reached them. 10. PW6, Police Constable Vincent Ochoki, was called by Sergeant Mogire at about 11.30 p.m on the material night and asked to go rescue the accused had been attacked near Framo Central Pub. By the time PW6 reached the area it was calm. He found the accused at the police post in the presence of senior officers. PW6 did not see the shooting, the deceased or the alleged attack. He said that he did not observe any obvious injury on the accused, although he did not examine him. 11. PW7, Joseph Cresa Mutimba, testified that he was with the deceased for the better part material day. He said that they had visited several bars where they took alcohol before arriving at Framo Central Pub. He further testified that they left Framo pub at night and while at the door deceased and a man carrying a long firearm exchanged words in Ekegusii, a language which he did not understand. He identified that man as the accused. He testified that the confrontation was brief and that the accused fired the shot which struck the deceased in the abdomen. 12. On cross-examination, PW7 gave a detailed account of the alcohol he had consumed from late morning and throughout the day till the time the left Framo pub . He admitted that in his statement used in the Inquest and his testimony therein , he stated that he heard a blast and did not expressly state that he saw the accused pull the trigger or shoot the deceased. He maintained before this Court that he had in fact seen the shooting and that the phrase “in the blink of an eye” referred to the speed with which it occurred. 13. PW8, Police Constable Dennis Mugambi, testified on the initial DCI investigation, the recovery and forwarding of the firearm exhibits and the first recommendation that the accused be charged with manslaughter. His evidence also confirmed that the first rifle submitted for examination was J41563 and that subsequent ballistic inquiries required the submission of five additional G3 rifles from the post. He said the office of the Director of Public Prosecutions directed that the matter be disposed of by way of a public inquest after he made his recommendations and Kisii Inquest no 1 of 2019 was opened but was later withdrawn upon the Independent Police Oversight Authority (IPOA) taking over the matter . 14. PW9, Chief Inspector Reuben Kiptum Bett, was the firearms examiner. He examined six G3 rifles, ammunition, magazines and the fired cartridge case recovered from the scene. He said that his microscopic comparison established that the fired cartridge case (pexh 7 ) had been discharged from G3 rifle serial number 394172(Pexh 6). but not G3 rifle serial number J41563(Pexh 2). The arms movement register showed that rifle 394172 had been issued to PW5, while J41563 was recorded as having been issued to the accused. 15. PW10, Dr Leah Obosi, performed the post-mortem examination. She found an entry wound on the anterior abdominal wall and an exit wound on the left lateral chest wall. Internally, the deceased had injuries to the left kidney, stomach, diaphragm and a rib. She formed the opinion that the cause of death was multiple organ injuries caused by a single penetrating gunshot wound to the abdomen. She considered the shot to have been fired at close range, although she could not state the exact distance or the person who fired the shot. 16. PW11, Godfrey Chelasya, was the investigating officer from the Independent Policing Oversight Authority. He said he investigated the case and concluded that the accused issued PW5’s rifle serial number 394172 on the material day and later at 11: 00 pm that night he went to the post where Pw5 was no duty and took it from him on allegation that he was going for an arrest mission and he returned to the direction of Framo Central Pub, shot the deceased and thereafter produced rifle J41563 and made an entry in the arms register in order to divert the investigation. He also rejected the accused’s allegation that he had been stabbed. 17. On cross-examination, PW11 conceded that he had not reviewed the full DCI file or the inquest proceedings before reaching his conclusion. Also that had not interviewed Victor Mose Msesi or Victor Oyunge Okerosi, who had recorded statements with the DCI shortly after the incident. He further admitted that PW5’s first accounts did not say that the accused had taken rifle 394172 from him, and that the allegation of the accused taking his rifle appeared in a later statement. PW11 also admitted that a P3 form produced by the defence recorded an injury to the accused, although the hospital correspondence obtained by IPOA referred to treatment for hypertension and diabetes and did not record a stab wound. C. THE DEFENCE CASE 18. The accused testified as DW1, he denied killing the deceased. He testified that he issued rifles to the two night-duty officers at 6.00 p.m., returned home and later went back to the post to commence a night patrol. He recorded the issue to himself of G3 rifle serial number J41563 at about 11.00 p.m. and left the post to wake two officers who were to accompany him. While on the way, about five men approached him a short distance from the post, three men surrounded him, grabbed the rifle and pushed him into a culvert. He said that he was stabbed on the right buttock and fearing that the group would seize the firearm, discharged two rounds into the air. He denied ever taking rifle 394172 from PW5 and denied firing at the deceased. He relied on treatment notes, a P3 form, the inquest proceedings and the statements of DW2 and DW3 made to police in this matter . 19. DW2, Victor Mose , testified that he was walking home at about 11.00 p.m on the material day when he saw approximately five people struggling with the accused and trying to seize his gun. He attempted to intervene. He heard two shots and another shot later. When he returned, he saw a man bleeding from the abdomen. He could not identify the source of any of the shots or say who fired the shot that struck the deceased. He said that he had recorded a statement with the DCI on 5th March 2019 but was neither called by the prosecution as a witness nor was he interviewed by IPOA. 20. DW3, Victor Oyunge Okerosi said he saw five or six people struggling with the accused and attempting to take his firearm on the material night . He tried to assist by taking a stick from one of the men and striking another. He heard shots, ran for cover and later saw that a man had been injured. He did not know which firearm discharged the fatal round. He also said that he recorded a statement with the DCI on 5th March 2019 also neither called as a prosecution witness nor for interview by IPOA . D. THE PARTIES’ SUBMISSIONS 21. The prosecution submitted that the death and its cause were proved by the medical evidence; that PW7 directly saw the accused shoot the deceased; that PW5 established how the accused obtained rifle 394172; that the ballistic evidence linked the recovered cartridge case to that rifle; and that the later production of rifle J41563 and the entry in the arms register demonstrated an attempt to conceal the true weapon. The State argued that the deceased was unarmed and posed no threat and that the shooting was therefore unlawful and actuated by malice aforethought. 22. The defence submitted that the prosecution evidence contained material contradictions; that PW7’s assertion that he saw the shooting was absent from his earlier statement and inquest evidence; that PW5 had given irreconcilable accounts and admitted giving false evidence at the inquest; that the rifle recorded as issued to the accused did not discharge the recovered cartridge case; and that the prosecution failed to exclude the contemporaneous evidence that several people attempted to seize the accused’s firearm. The defence urged the Court to find that the charge had not been proved beyond reasonable doubt. E. ISSUES FOR DETERMINATION 23. The issues arising for determination are: whether the death and cause of death were proved; whether the accused fired the shot that caused the death; whether the fatal shooting, if attributed to the accused, was unlawful or occurred in lawful self-defence; whether malice aforethought was proved; and whether, if murder is not proved, the evidence supports a conviction for the lesser offence of manslaughter. F. APPLICABLE LAW 24. Section 203 of the Penal Code defines murder as the causing of the death of another person by an unlawful act or omission with malice aforethought. The prosecution must therefore prove the fact and cause of death, the accused’s unlawful act or omission causing that death, and malice aforethought. Section 206 identifies the circumstances from which malice aforethought may be inferred, including an intention to cause death or grievous harm and knowledge that the act will probably cause death or grievous harm. 25. The burden of proof rests throughout upon the prosecution and the standard is proof beyond reasonable doubt. The accused bears no burden to establish his innocence. As restated by the Court of Appeal in Republic v Kudate & another [2025] KECA 837 (KLR), the Court must weigh the evidence pointing towards guilt against the evidence indicative of innocence, account for the strengths and weaknesses on both sides and determine whether the case for the State excludes every reasonable doubt. (i) The fact and cause of death 26. There is no dispute that Joash Juma Nyaisu died after being shot. PW3 saw and assisted him immediately after the injury. PW2 found him in hospital. PW10 performed the post-mortem examination and documented the entry and exit wounds and the resulting internal injuries. I accept the medical opinion that death was caused by multiple organ injuries resulting from a single penetrating gunshot wound to the abdomen. The first ingredient is proved beyond reasonable doubt. (ii) Whether the accused fired the fatal shot 27. The prosecution case who fired the fatal shot rests upon four interlocking propositions: PW7 saw the accused shoot the deceased; the deceased named “Mogaka” to PW2; PW5 surrendered rifle 394172 to the accused shortly before the shooting; and the recovered cartridge case was fired from that rifle. Prosecution thus seek to rely on circumstantial evidence and direct evidence . Where a case depends in whole or in part on circumstantial evidence, the proved facts must be incompatible with innocence and incapable of explanation on any other reasonable hypothesis. The chain must be complete and there must be no co-existing circumstances weakening the inference of guilt: Kipkering arap Koske & another v Republic (1949) 16 EACA 135; Sawe v Republic [2003] KLR 364; and Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR). Each proposition must be considered both separately and cumulatively. 28. PW7 placed the accused face-to-face with the deceased and stated before this Court that he saw the accused fire. He said thaqt scene was well illuminated, the encounter was at close range and PW7 knew the accused was as a police officer whom he had previously seen. 29. There are, however, two serious qualifications of the evidence of PW7 . First, PW7 had consumed alcohol over many hours and at several establishments. Consumption of alcohol does not automatically make a witness unreliable, but it is a relevant circumstance when assessing perception and recollection. Secondly, and more importantly, his earlier statement and inquest testimony did not contain the critical assertion that he saw the accused pull the trigger. They recorded that he heard a blast. An omission of the central act in an earlier account is not a minor discrepancy of time or detail. It concerns the very fact that transforms a witness from a person who heard the shot into the sole eyewitness to the shooting. It is trite law that conviction may rest on the testimony of a single witness, but where the circumstances call for caution the Court must test the evidence with particular care. In Wamunga v Republic [1989] KLR 424, the Court of Appeal warned of the danger of relying on identification evidence without examining the conditions and any material weaknesses. Credibility is equally central. In Mutwiri v Republic [2026] KECA 123 (KLR), the Court of Appeal reiterated that minor discrepancies are expected, but material contradictions which touch the core of the case erode the assurance required for a conviction. 30. PW7’s explanation that the shooting occurred “in the blink of an eye” does not satisfactorily explain why the fact of seeing the shot was absent from the earlier accounts. The Court is not entitled to select the later, more incriminating version merely because it supports the charge. The evolution of the account, viewed together with the witness’s admitted alcohol consumption, requires substantial independent assurance before it can safely ground a conviction. 31. The law on dying declaration is clear that a dying declaration is admissible under section 33(a) of the Evidence Act. Unlike the strict English common-law position, its admissibility in Kenya does not depend on proof that the maker believed death was imminent or had abandoned all hope of recovery . In the case of Choge & 3 others v Republic [1984] KECA 4 (KLR) and Watu v Republic [2016] KECA 696 (KLR), the Court of Appeal held that such evidence must be received with caution because it is not tested by cross-examination and may have been made in circumstances of pain, confusion or surprise. It is ordinarily unsafe to base a conviction solely on an uncorroborated dying declaration. The dying declaration made to PW2 provides some evidence on identification. The deceased is said to have named a police officer called Mogaka from Riokindo. PW2 was consistent that her son spoke while conscious and in pain. Yet she had not known the accused and could not independently connect the name to the person in the dock. The declaration did not explain the circumstances of the shooting, the struggle alleged by other witnesses or the weapon used. It is admissible to the extent that accused was at the scene , but caution is necessary. Its probative value depends upon the reliability of the other evidence said to corroborate on the issue of whether accused is the one who pulled the trigger and whether he acted in self defence . 32. The ballistic evidence scientifically proved that the fired cartridge case recovered by PW4 was discharged from G3 rifle serial number 394172 and not from J41563. It does not, by itself, establish who possessed rifle 394172 when it was discharged. That link depends upon whether PW5’s assertion that he surrendered the rifle to the accused is true . 33. PW5’s evidence cannot be regarded as an ordinary inconsistency as he gave several statements, acknowledged a materially different account at the inquest and admitted that the evidence he gave there was false. In his earlier accounts he did not say that the accused took rifle 394172 from him. The transfer of the rifle emerged in a later version. His explanation was that senior officers pressured him to protect the accused does not hold any water . He said he saw people attempting to seize the firearm, that he found approximately five persons struggling with the accused and that the shot was fired before the officers could intervene. That evidence supports the occurrence of a violent struggle. It does not support the prosecution’s simpler account of an unarmed deceased engaged only in a verbal exchange and then deliberately shot without any intervening threat. Pw5 gave contradictory and jumbled up evidence on the issue of the 4 riffle but was truthful on the issue of attack of accused by about 5 people and thus his credibility is not totality in doubt . PW11 admitted that he did not examine the complete DCI and inquest record before charging accused with the offence herein. The alleged substitution of rifles and the register entry are suspicious circumstances. The register shows that J41563 was recorded against the accused at about 11.00 p.m., while rifle 394172 stood issued to PW5. If the accused had used PW5’s rifle and later presented J41563, that conduct would be consistent with concealment. But the inference depends on first admitting PW5’s disputed transfer account. The accused, who was the armoury custodian, denied altering the register. The entry itself was not subjected to forensic handwriting, ink or document examination to determine whether it was made after the shooting or altered. 34. There were also significant limitations in the scene investigation. No scene-of-crime officer documented the scene. No photographs or measurements were produced. No bloodstain pattern or gunshot-residue evidence was collected. Only one cartridge case was recovered from a ditch, at a point where PW4 saw no blood, and the body had already been removed. The fatal projectile passed through the deceased and was not recovered. Consequently, the Court can infer that rifle 394172 was discharged in the vicinity, but it cannot conclude that particular discharge as the shot that traversed the deceased, especially in the face of evidence that more than one shot was heard. 35. The prosecution witnesses PW3 and PW7 spoke of one shot. PW5’s account was less clear but referred to the shot before the officers reached the scene. DW1 said accused fired twice into the air. DW2 and DW3 each spoke of three shots, though they could not identify their source. The recovery of a single cartridge case is not a reliable resolution of that conflict because the scene was not secured or comprehensively processed. The absence of the other cartridge cases may weaken the defence account, but it equally illustrates the incompleteness of the forensic investigation. 36. DW2 and DW3 were not late comers disclosed for the first time at trial. Each had recorded a statement with the DCI on 5th March 2019, three days after the incident. Their accounts are not identical in every detail, but both consistently described a group struggling with the accused and attempting to seize his rifle. PW11 did not interview them. The prosecution was entitled to assess them critically, but it could not simply leave their contemporaneous accounts unexplored and then invite the Court to treat the scene as a mere verbal quarrel between two men. 37. I have also considered the accused’s own evidence with caution. His assertion that he fired two shots into the air is not corroborated by recovered cartridge cases from J41563, and the medical documents regarding the alleged stab wound are not entirely consistent. His treatment notes were undated and PW11 obtained separate hospital correspondence that did not record a stab wound. These weaknesses prevent the Court from admitting every detail of the defence as proved fact. They do not, however, relieve the prosecution of its burden or cure the material weaknesses in the State’s case. 38. On the whole of the evidence, the Court is left with two plausible versions. The prosecution version is that the accused deliberately obtained PW5’s rifle, confronted the deceased and shot him. The competing version, supported not only by the accused but by PW5’s account of a struggle and by the contemporaneous statements and testimony of DW2 and DW3, is that the accused was surrounded in a violent attempt to seize his firearm and that shots were discharged in the course of that struggle. The evidence does not establish, with the certainty required in a criminal trial, which version is true or which discharge struck the deceased. 39. The dying declaration, PW7’s later eyewitness account, the ballistic match and the suspicious rifle entry generate a grave and compelling suspicion against the accused. But the material prior inconsistencies of PW5 and PW7, the evidence of a struggle, the uninvestigated contemporaneous witnesses and the deficient scene reconstruction leave co-existing circumstances which weaken the inference of guilt. I am therefore not satisfied beyond reasonable doubt that the accused deliberately fired the fatal shot. (iii) Unlawfulness and self-defence 40. The accused was a police officer. Section 61 of the National Police Service Act and the Sixth Schedule require non-violent means to be attempted first, restrict force to what is necessary and proportionate, and permit the use of firearms only when less extreme means are inadequate, including to save or protect life or in self-defence against an imminent threat of death or serious injury. In I.P. Veronica Gitahi & another v Republic [2017] KECA 787 (KLR), the Court of Appeal emphasized that these statutory requirements govern the use of force and firearms by police officers. 41. The defence of self-defence does not shift the legal burden to an accused. Once evidence capable of raising it emerges, the prosecution must prove beyond reasonable doubt that the force was unlawful. The Court of Appeal restated that principle in Musa v Republic [2023] KECA 262 (KLR) and Benson Mbugua Kariuki v Republic [1979] eKLR. The question is not whether the accused has established his account on a balance of probabilities, but whether the prosecution has excluded the reasonable possibility that he acted to repel an imminent threat. Even assuming, for purposes of analysis, that the accused’s firearm discharged the fatal shot, the prosecution was still required to prove that the use of force was unlawful. A police officer cannot resort to a firearm merely because a person is argumentative or uncooperative. 42. It is thus clear that the schedule 6 makes use of a firearm a measure of last resort and demands necessity and proportionality. The Court must assess the circumstances as they reasonably appeared during the crisis, while maintaining the statutory requirements of necessity and proportionality. PW5 testified that he saw approximately five people struggling with the accused. DW2 and DW3 gave similar accounts to DCI of the same struggle 43. PW6 was summoned on the express report that the accused had been attacked. PW4 recorded that the accused complained of injury. The P3 form was some evidence of injury, notwithstanding the conflicting hospital documents. There was no sketch plan showing the relative positions of the accused, the deceased and the other persons, or whether the shot was aimed, accidental or discharged while the rifle was being pulled in different directions. 44. The Court is not making a positive finding that every element of the accused’s account was true, or that the use of the firearm necessarily complied with the National Police Service Act. The the evidence raises a reasonable possibility that the discharge occurred in the course of an imminent struggle for control of a loaded firearm, and the prosecution has not disproved that possibility beyond reasonable doubt as required by law . The element of unlawfulness has therefore not safely proved. (iv) Malice aforethought 1. It is trite law that **actus reus non facit reum nisi mens sit rea**, meaning that the act itself does not constitute an offence unless it is accompanied by a guilty mind . Section 206 of the Penal Code sets out the circumstances from which malice aforethought may be inferred. They include an intention to cause death or grievous harm and knowledge that the act causing death would probably result in death or grievous harm. In **Republic v Tubere s/o Ochen [1945] 12 EACA 63**, the Court identified the nature of the weapon used, the manner in which it was used, the part of the body targeted, the severity of the injuries and the conduct of the accused as relevant considerations in determining whether malice aforethought was established. 2. If a person deliberately aims a G3 rifle at another’s abdomen and fires at close range, an intention to cause death or grievous harm would ordinarily be readily inferred from the weapon, the body part targeted and the probable consequences. That principle is reflected in section 206 of the Penal Code and the factors identified in Republic v Tubere s/o Ochen (1945) 12 EACA 63. The difficulty in this case is factual rather than doctrinal. The prosecution did not prove beyond reasonable doubt that the accused deliberately aimed and fired at the deceased. Nor did it prove its theory that, after a prior quarrel, the accused went to the post to arm himself for retaliation. PW11’s account of such a sequence depended upon the later versions of PW5 and PW7. There was no proved prior hostility between the accused and the deceased, and the subject of the brief exchange was unknown to PW7. 3. Motive is not an essential ingredient of murder, but where the prosecution seeks to prove a deliberate retaliatory shooting through circumstantial evidence, the absence of a proved motive or prior relationship assumes some relevance. The evidence of a sudden and confused struggle is inconsistent with a safe inference of a settled intention to kill or cause grievous harm. Malice aforethought has not been proved beyond reasonable doubt. (v) Whether manslaughter was proved 48. Section 179 of the Criminal Procedure Code permits conviction for a lesser offence where the proved facts reduce the offence charged. Manslaughter would be available if the prosecution proved beyond reasonable doubt that the accused unlawfully caused the death but failed to prove malice aforethought. As the court found in the case of Mungai v Republic [1984] KECA 27 (KLR) explains, facts arising from an unsuccessful plea of self-defence may in an appropriate case negate malice and support manslaughter, but there is no automatic rule that every case of alleged excessive force must result in that conviction. 49. The prosecution has not proved beyond reasonable doubt that the accused fired the fatal shot unlawfully. The Court cannot use section 179 to fill gaps in causation or to presume that any force used was excessive. A conviction for manslaughter would therefore be no safer than a conviction for murder. H. CONCLUSION AND ORDERS 50. The death of Joash Juma Nyaisu was tragic and was caused by a firearm discharged in circumstances that demanded a prompt, independent and meticulous investigation. The record reveals a compromised sequence of statements, contradictory accounts by key witnesses and a scene that was not forensically documented to the standard necessary to resolve those contradictions. The Court’s duty is not to choose the more disturbing possibility, but to determine whether the charge has been proved beyond reasonable doubt. 51. The evidence raises strong suspicion that the accused may have possessed rifle serial number 394172 and may have fired the fatal shot. It is trite law that suspicion however strong cannot form basis of a conviction. The prosecution did not close the evidential gaps concerning possession of that rifle, the reliability of alleged the sole eyewitness and evidence PW5, the circumstances of the struggle, the number and source of the shots and the lawfulness of the accused’s response. 52. Accordingly, I find that the prosecution has failed to prove the offence of murder contrary to section 203 as read with section 204 of the Penal Code, or the lesser offence of manslaughter, beyond reasonable doubt. 53. In the upshot i find the accused herein MOSES KIREMA MOGAKA, NOT GUILTY and is hereby ACQUITTED under section 322(1) of the Criminal Procedure Code. He shall be set at liberty forthwith unless otherwise lawfully held. 54. Security be released to depositor. **T. A. ODERA** **JUDGE** **23.7.26** **DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 23RD DAY JULY 2026:** **In the presence of:** Mr Koima for the State Mr Ochoki Miss Oloo acting alongside Mr Ochoki for the Accused Accused: Present Court Assistant: Kipchirchir