https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9821

Republic v Murunga (Criminal Case E011 of 2025) [2026] KEHC 9821 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 9821 (KLR) Republic of Kenya In the High Court at Mombasa Criminal Case E011 of 2025 WM Kagendo., J June 18, 2026 Between Republic Prosecutor and Swaleh Ali Hassan Murunga Accused Judgment 1. Introduction 1.The accused, Swalleh Ali Hassan Murunga, was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. 2.The particulars of the charge were that on 16th December 2024 at Swalihina Area, Nyali Sub-location, Mombasa County, jointly with others not before the court, he murdered Salim Said Saidi alias “Zola”. 3.The accused pleaded not guilty and the matter proceeded to full hearing. 4.The prosecution called six (6) witnesses while the accused gave sworn testimony in his defence and denied the charge. 5.The duty of this Court is to evaluate the evidence afresh, weigh it, and determine whether the offence of murder has been proved beyond reasonable doubt. 2. Factual Background And Detailed Evidence The Deceased and Events Prior to the Attack 6.The deceased, Salim Said Saidi alias “Zola”, was a carpenter working at a workshop within Swalihina/Kongowea area. 7.On 16th December 2024, he left his home in the morning and proceeded to his place of work as usual. 8.The evidence shows that he briefly returned home for lunch and later went back to the workshop, where he continued working. Discovery of the Incident 9.Shortly thereafter, information reached his family that he had been injured. 10.PW1, Mwanahamisi Ali Salim (sister to the deceased), testified that she received a distress call and rushed to the scene. 11.She found the deceased lying on the ground bleeding profusely from injuries to the neck and chest area. 12.PW1 assisted in transporting him to hospital but he later succumbed to his injuries. 13.PW1 confirmed that she did not witness the attack and that the deceased did not utter any dying declaration identifying his attackers. 14.PW2, Halima Halako, the mother of the deceased, testified that she only learnt of the incident after the deceased had already been injured. 15.She did not witness the attack and stated that she heard rumours from members of the public that the assailants were allegedly “twins”, but she could not confirm their identity. 16.PW3, Mbarak Buya, a cousin of the deceased, also arrived after the incident. 17.He found the deceased injured and assisted in taking him to hospital. 18.He confirmed that he did not see the attackers and could not identify anyone responsible for the assault. Key Prosecution Witness (PW4) 19.PW4, Ngumbao Buya, testified that he worked at the same workshop as the deceased. 20.He stated that on the material day, he found the deceased in the company of two young men within or near the workshop area. 21.According to PW4, the deceased accused the two men of stealing his mobile phone . he whispered to PW4 that they must remain alert. “tukae macho” to avert any other attack. 22.The two young men demanded to know what was being whispered. 23.PW4 testified that a confrontation ensued between the deceased and the two men. 24.PW4 stated that one of the young men produced pepper spray and discharged it, which caused irritation to his eyes and those nearby. 25.He testified that due to the effects of the pepper spray, his visibility was impaired and he ran away from the scene. 26.Importantly, PW4 stated that he did not witness what transpired after he fled. 27.During cross-examination, PW4 conceded that after the pepper spray was discharged, he could not see what happened thereafter and therefore did not witness the assault that caused the death of the deceased. 28.PW4 further gave inconsistent accounts regarding: where exactly the deceased was found after the incident; whether he saw him in a tuk-tuk or at the workshop; and the exact sequence of events. 29.He also appeared uncertain about the physical layout of the scene despite claiming to work there. Investigating Officer (PW5 30.PW5 testified that he conducted investigations into the death of the deceased. 31.He confirmed that: no weapon was recovered from the accused; no forensic or scientific evidence linked the accused to the offence; no identification parade was conducted; the accused was arrested at Kadzandani and not at the scene. 32.PW5 further confirmed that the investigation relied largely on witness accounts rather than direct physical evidence. Medical Evidence (PW6) 33.PW6 produced the post-mortem report on behalf of the pathologist. 34.The report indicated that the cause of death was haemorrhagic shock secondary to penetrating injuries involving the lung and heart. 35.The injuries were consistent with trauma caused by a sharp or penetrating object. 36.The fact of death and its medical cause were not seriously disputed. Defence Case 37.The accused gave sworn testimony denying involvement. 38.He stated that he was a beach operator residing at Kadzandani. 39.He testified that he was arrested during a police operation and initially told he was being investigated for a mobile phone theft. 40.He denied knowing the deceased or being present at the scene. 41.He further stated that he first saw the prosecution witnesses in court. 3. Issues For Determination 42.The issues for determination are: (a) Whether the fact and cause of death were proved; (b) Whether the death was caused by an unlawful act; (c) Whether the accused was positively identified as the perpetrator; (d) Whether malice aforethought was proved. 4. The Law 43.Section 203 of the Penal Code defines murder. 44.The prosecution must prove beyond reasonable doubt: death; unlawful act; causation; malice aforethought. 45.See Anthony Ndegwa Ngari v Republic [2014] eKLR. 46.The burden of proof lies on the prosecution throughout: Woolmington v DPP [1935] AC 462. 47.The Court of Appeal in Republic v Andrew Omwenga [2009] eKLR reiterated that causation and malice must be strictly proved. 5. Fact And Cause Of Death 48.The medical evidence confirms death from haemorrhagic shock due to penetrating injuries. 49.The fact and cause of death were therefore proved beyond reasonable doubt. 6. Analysis Of Identification And Link To The Accused 50.The central issue is whether the accused was the person who inflicted the fatal injuries. 51.None of PW1, PW2, or PW3 witnessed the attack. 52.The prosecution case depends primarily on PW4. Weakness of PW4’s Evidence 53.PW4 admitted he did not witness the actual assault. 54.He stated that after pepper spray was discharged, he lost visibility and fled. 55.The law is clear that identification evidence must be treated with extreme caution. 56.In Abdalla Bin Wendo v R (1953) 20 EACA 166, the Court warned of the danger of mistaken identity. 57.In Roria v Republic [1967] EA 583, the Court held that conviction on such evidence must be free from the possibility of error. 58.In Wamunga v Republic [1989] KLR 424, it was emphasized that courts must test identification evidence carefully. 59.In Anjononi & Others v Republic [1980] KLR 59, while recognition is more reliable than identification of strangers, caution is still required. 60.In the present case, PW4 did not see the assailant during the crucial moment of the attack. Credibility of PW4 61.Credibility is key to proof beyond reasonable doubt. 62.In Ndungu Kimanyi v Republic [1979] KLR 282, the Court held that a witness must be credible, consistent, and reliable. 63.PW4 gave inconsistent accounts regarding: location of the deceased after the attack; sequence of events; and his observations before fleeing. 64.These inconsistencies undermine his reliability. 7. Circumstantial Evidence 65.The prosecution case is also circumstantial. 66.The law requires that circumstantial evidence must form a complete chain pointing only to the accused. 67.In Sawe v Republic [2003] KLR 364, the Court held that suspicion, however strong, cannot form the basis of conviction. 68.In Musili Tulo v Republic [2014] eKLR, the Court stated that circumstantial evidence must exclude all other reasonable hypotheses. 69.In Abanga alias Onyango v Republic CR. A No. 32 of 1990, it was held that such evidence must be cogent and complete. 70.In this case, the chain is broken due to lack of direct identification and forensic linkage. 8. Investigative Deficiencies 71.PW5 confirmed: no weapon was recovered; no forensic evidence linked the accused; no identification parade was conducted; arrest was not at the scene. 72.These gaps weaken the prosecution case materially. 9. Whether Prosecution Proved Case Beyond Reasonable Doubt 73.The standard is proof beyond reasonable doubt. 74.In Sawe v Republic [2003] KLR 364, suspicion was held insufficient. 75.The evidence does not irresistibly point to the accused. 76.The prosecution has therefore failed to discharge its burden. 77.Malice aforethought under section 206 of the Penal Code does not arise. 10. Conclusion 78.The Court finds that while the death and cause of death were proved, the prosecution failed to prove that the accused caused the death. 79.The identification evidence is unreliable and uncorroborated. 80.The accused is entitled to the benefit of doubt. 11. Final Orders 81.The accused, Swalleh Ali Hassan Murunga, is hereby Not Guilty of murder contrary to section 203 as read with section 204 of the Penal Code. 82.He is acquitted under section 322(1) of the Criminal Procedure Code. 83.Unless otherwise lawfully held, he shall be set at liberty forthwith. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 18TH DAY OF JUNE 2026.WENDY KAGENDO MICHENIJUDGEIn The Presence OfThe Accused Person And His Advocate Mr MwawasiMr Sirima For The StateMas Bebora Court AssistantSigned By/for:HON. LADY JUSTICE WENDY MICHENIMombasa High Court