https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10940

Republic v Naibei alias Vandame (Criminal Case (Murder) E002 of 2024) [2026] KEHC 10940 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10940 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Case (Murder) E002 of 2024 REA Ougo, J July 16, 2026 Between Republic Prosecution and Richard Naibei alias Vandame Alias Doctor Alias Gavinoh Accused Judgment 1.The accused, Richard Naibei, alias Vandame, alias Doctor, and alias Gavinoh, faces a charge of murder contrary to Section 203 read together with Section 204 of the Penal Code. The particulars of the offence are that on the 12th day of December 2023, at Kostoi area, Kaboywo Location, Mt. Elgon Sub-County, within Bungoma County, the accused murdered Kennedy Kibet Musa. 2.The prosecution called 11 witnesses to support its case, and the accused gave a sworn statement in his defence. Prosecution Case 3.PW1, Felista Kelim Mali, testified that she was a farmer living in Kostoi, Kaboywo, and that she knew the accused, who was her relative by marriage. She stated that on 12th December 2023, she went to the home of Emily, Mama Silas, after being asked to take milk to Emily’s sick daughter, Brenda, and cooked for the family. She remained at the homestead until the evening. 4.She testified that at about 9.00 p.m., the accused arrived carrying a bag and later quarrelled with the deceased over their ages after the deceased told him to show respect as the elder. She stated that the accused removed a knife from his bag and stabbed the deceased once in the chest. She identified the accused’s bag, knife, and jacket. According to her, the deceased collapsed at the kitchen door and died at the scene, while the accused fled towards Uganda before he was later arrested. She identified the accused in court as the person who stabbed the deceased. 5.During cross-examination, PW1 admitted that she and the deceased had been drinking chang’aa that evening and that the accused appeared drunk upon arrival. She also conceded that she did not witness the accused stab the deceased, but only heard the deceased say he had been stabbed. She testified that the accused fled with the bag and knife, although the bag was allegedly recovered outside by the owner of the homestead. She further stated that there was electric lighting inside the house but none outside, where many people had gathered with flashlights. 6.PW2, Dr. Edward Wafula Simiyu, testified that he served as Medical Officer, Medical Superintendent, and Medical Officer of Health at Bokoli Sub-County Hospital. He further gave evidence that he performed a post-mortem examination on the body of Kennedy Kibet Musa on 23rd December 2023 at Sannte Funeral Home, after the body had been identified by Kennedy Kemoi and James Naibei in the presence of a police officer. He observed a 6-centimetre stab wound on the right side of the chest, penetrating the right lung and causing bleeding into the chest cavity. He concluded that the cause of death was a stab wound to the lung. The post-mortem report was produced and admitted as Prosecution Exhibit 1. 7.During cross-examination, PW2 maintained that he had personally conducted the post-mortem and explained that he could not identify the specific weapon used, stating that the injury could have been caused by any sharp, pointed object, such as a sharp stick, a panga, or a similar stabbing instrument. 8.PW3, Silas Ndiema Musa, testified that he was a store attendant and a neighbour of the accused, whom he had known for about 30 years. He stated that on the night of 12th December 2023, at about 10.30 p.m., he saw an unidentified person leave his kitchen and, shortly thereafter, heard the deceased shout, “Vandame, you have killed me.” He chased the fleeing person, struggled with him and recovered a bag the person had abandoned before escaping. 9.He testified that he returned to assist the deceased, who was bleeding from a stab wound to the chest and did not respond to first aid. He informed the village elder that the accused, known as Vandame, was responsible for the attack. The abandoned bag was found to contain a blood-stained knife and a jacket. He stated that the scene was lit by a portable solar light, torches, and mobile phone flashlights. Police later arrived and conducted an investigation. He also testified that he had no grudge against the accused and that the gathering at his home was for preparations for a traditional circumcision ceremony. 10.During cross-examination, PW3 admitted that he did not witness the stabbing and had only heard the deceased say, “Vandame had stabbed him” and “Vandame, you have killed me.” He further confirmed that there was no electricity at his home, that many people had gathered for the ceremony, and that alcohol was being consumed by those present, including the accused. 11.PW4, Brian Kipyego, is from Kostoi Village and has known the accused, also known as Vandame, all his life as a neighbour. He stated that on the night of 12th December 2023, he returned home, had supper with the deceased, Kennedy Kibet, and later went to sleep. At about midnight, he was awakened by Silas’s screams and found the deceased lying on the ground, bleeding from the chest. Silas informed him that the accused had stabbed the deceased. He further testified that a bag and jacket belonging to the accused were recovered near the scene, and a knife was found inside the bag. He identified the bag, jacket, and knife in court and stated that the police later collected the deceased’s body. He also recognised the accused’s voice from the circumcision songs he sang that night. 12.During cross-examination, PW4 confirmed that many people had gathered at the homestead for circumcision celebrations and that alcohol was being consumed. He admitted that he had not witnessed the stabbing and learnt only from Silas that the accused was the assailant. He also stated that although he had seen the accused carrying a bag earlier that evening, he had not seen him carrying a knife. 13.PW5, David Makota Matayo, testified that he was the village elder of Kostoi Village. He stated that on the night of 12th December 2023, after hearing screams and receiving a call from the Assistant Chief, he went to Silas’s home, where he found the deceased, Kennedy Kibet, lying dead with a stab wound to the chest. He further stated that Silas informed him that the accused, also known as “Doctor” or “Vandame,” had quarrelled with the deceased and stabbed him. 14.PW5 further testified that Silas handed him a black bag containing a blood-stained knife and a jacket, which he later surrendered to the police after informing the Assistant Chief and other local leaders. He identified the recovered bag, knife, and jacket in court and confirmed that the deceased's body had been taken for post-mortem examination. 15.During cross-examination, PW5 admitted that he had not witnessed the stabbing, the alleged struggle between Silas and the accused, or the recovery of the bag. He acknowledged that his evidence of the accused’s involvement was based entirely on Silas’s account. 16.PW6, James Naibei Limo, testified that he was a teacher employed by the Teachers Service Commission and lived at Kaptama Market. He stated that on the night of 12th December 2023, he received a call from the village elder informing him that his cousin, Kennedy Kibet Musa, had been killed by the accused, also known as Vandame. He then proceeded to Kaptama Police Station and later accompanied police officers to the scene at Silas Musa’s home. 17.He testified that the deceased was found lying on his back with a chest wound and bleeding, with a black bag, a jacket, and a knife beside the body. He stated that the police processed the scene, removed the body to Sannte Funeral Home, and recorded statements. He identified the recovered bag, knife, and jacket in court and confirmed that he attended the post-mortem examination on 23rd December 2023. He also testified that he had known the accused for over 30 years, as they came from the same village. 18.During cross-examination, PW6 admitted that he did not witness the stabbing and learnt of the incident only by telephone before proceeding to the scene. 19.PW7, Godwin Khamala Waliama, testified that he was a Government Analyst in the Government Chemist Department in Kisumu. He stated that he prepared a DNA analysis report dated 20th May 2024 after examining exhibits submitted by the Directorate of Criminal Investigations, including a knife, a soil sample, wood peelings, a black ICPAK-branded bag, a red jacket, and reference blood, fingernail, and hair samples from the deceased, Kennedy Kibet Musa. 20.He testified that DNA analysis established that the knife was heavily stained with human blood, while the soil sample, wood peelings, bag, and jacket were lightly stained with human blood. He concluded that the DNA profiles from all the blood-stained exhibits matched the DNA profile of the deceased. The DNA report was produced and admitted as Prosecution Exhibit 5, and he identified the bag, knife, and jacket in court. 21.During cross-examination, PW7 stated that he did not collect the exhibits himself and received them about a month after the incident. He maintained that the DNA samples had not degraded and confirmed that fingerprint analysis was not conducted because it fell outside the scope of the Government Chemist’s work. Upon re-examination, he explained that only part of the soil sample was used for analysis, and the remainder was returned to the investigating officer, if sufficient. 22.PW8, Kennedy Kwemoi, testified that on the night of 13th December 2023, he received information from James Naibei and later from Silas that Kennedy Musa had been stabbed. He accompanied police officers to Silas Musa’s home in Kostoi Village, where they found the deceased lying on the ground, having bled profusely. He further testified that the OCS questioned witnesses before the deceased’s body was removed to the funeral home. He also stated that he attended the post-mortem examination on 23rd December 2023, identified the deceased’s body as that of his cousin, and was informed by the doctor that the cause of death was stab wounds. 23.During cross-examination, PW8 admitted that he had not witnessed the incident and had learnt of it only from Silas. He confirmed that the incident occurred during the circumcision season, when chang’aa was being consumed at Silas’s home. He further testified that, upon arriving at the scene, he found the deceased lying face down with a stab wound to the right side of the chest. 24.PW9, No. 118168, P.C Geoffrey Wanjala, testified that he was attached to Chepareria Police Station. He stated that on 22nd December 2023, acting on information from the OCS, he accompanied the OCS to Chepareria Centre, where they arrested the accused, Richard Naibei alias Vandame, as he walked along the road. The accused was taken to Chepareria Police Station, placed in custody, and later re-arrested by officers from the DCIO, Mt. Elgon, after the arrest was communicated to them. PW9 identified the accused in court as the person they had arrested. 25.During cross-examination, PW9 confirmed that he participated in the arrest but stated that it was the OCS who identified the accused. He could not recall what the accused was wearing at the time of arrest. He acknowledged that his statement contained an incorrect service number. During re-examination, he explained that the error was typographical and confirmed that he personally recorded the statement. 26.PW10, No. 80128, P. C Samwel Kipkemei, testified that he was attached to Kaptama Police Station. He stated that on the night of 13th December 2023, he accompanied the OCS and another police officer to Kostoi Village after receiving a report of a murder. At the scene, they found the body of Kennedy Kibet Musa lying in a pool of blood, with a stab wound to the chest. He further testified that a villager informed them that the deceased had quarrelled with the accused, Richard Naibei, alias Doctor, Vandame, or Gavinoh, who allegedly stabbed him with a knife. 27.PW10 further testified that members of the public handed over a black bag, allegedly abandoned by the accused as he fled. The bag contained a blood-stained knife and a red jacket, which he identified in court. He stated that the deceased’s body was taken to Sannte Funeral Home and that the recovered exhibits were handed to officers of the Directorate of Criminal Investigations for further investigation. 28.During cross-examination, PW10 acknowledged that the incident occurred at a chang’aa drinking place and admitted that he did not personally know whether the accused and the deceased had quarrelled. He stated that the village elder had provided this information to the police and that the investigating officer was best placed to explain whether the knife had undergone forensic analysis. 29.PW11, No. 86606, P. C Joseph Omete, the investigating officer attached to the DCIO Office, Mt. Elgon, testified that he was assigned to investigate the murder of Kennedy Kibet Musa on 13th December 2023. He received from PC Samuel Kipkemei a black bag containing a blood-stained knife and a red jacket, which had allegedly been abandoned by the accused, Richard Naibei, alias Vandame, after the incident. At the scene at Silas Musa Ndiwa’s home, he observed blood inside the house and a pool of blood outside, from which he concluded that the deceased had been stabbed inside the house before collapsing outside. He collected blood-stained wood chippings and soil for forensic analysis. 30.PW11 testified that witnesses informed him that the accused and the deceased had been drinking chang’aa together when they quarrelled. After the quarrel, the accused allegedly took a knife from his bag, stabbed the deceased, and fled. He stated that Silas pursued the accused, recovered the abandoned bag, and handed it to the village elder. He attended the post-mortem examination, during which the doctor concluded that the deceased had died from excessive bleeding caused by a stab wound. He further testified that the accused was arrested on 22nd December 2023 in West Pokot County, with assistance from Chepareria Police Station, after allegedly fleeing the area. 31.He testified that the exhibits, including the knife, bag, jacket, blood-stained soil, and wood chippings, were submitted to the Government Chemist for DNA analysis, which confirmed that the blood on all exhibits matched the deceased's DNA profile. He produced the recovered exhibits and the exhibit memo form in court. 32.During cross-examination, PW11 admitted that he had not witnessed the incident and that his account of the stabbing was based on witness statements. He confirmed that the accused and the deceased had been drinking chang’aa together before the incident and that the recovered bag had been handled by members of the public before it was handed over to the police. He also acknowledged that he had not obtained the accused's fingerprints for comparison with the recovered exhibits. Defence Case 33.DW1, Richard Naibei, the accused, testified that he was a farmer and small-scale businessman living in Kaboywo Sub-location. He denied any involvement in the murder and stated that on 12th and 13th December 2023 he was at his farm in the Kaboywo forest, spraying potatoes with Eric Naibei, and remained there until 15th December 2023. He denied knowledge of the offence and urged the court to dismiss the case against him. 34.During cross-examination, DW1 maintained that the prosecution witnesses had lied, particularly Kennedy, though he could not say whether the medical doctor and the Government Analyst had given false evidence. He admitted knowing the deceased, who came from a neighbouring village, and confirmed that circumcision ceremonies were common in the area. 35.The court gave directions for the parties to file submissions, but as at the time of writing the judgment herein, no submissions had been filed. Analysis and Determination 36.This court is to determine whether the ingredients of the offence of murder, as set out in Section 203 of the Penal Code Chapter 63, have been proved beyond reasonable doubt by the prosecution. 37.Section 203 of the Penal Code, Chapter 63, under which the accused persons were charged, provides as follows: -Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 38.The section sets out the elements of the offence of murder that the prosecution must prove beyond reasonable doubt. The Court of Appeal in Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) set out the elements of the offence of murder as follows: -“For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.” Whether the death of Kennedy Kibet Musa and its cause were proved 39.There is no dispute that Kennedy Kibet Musa died on the night of 12th December 2023. PW2, Dr. Edward Wafula Simiyu, performed the post-mortem examination and found a penetrating stab wound measuring approximately 6 centimetres on the right side of the chest, extending into the right lung and causing massive bleeding into the chest cavity. He opined that the cause of death was a lung injury from a stab wound. The prosecution has proved both the fact and the cause of death. Whether it was the accused who unlawfully caused the death of the deceased 40.Although PW1 initially stated in examination-in-chief that she saw the accused stab the deceased, she candidly admitted during cross-examination that she had not actually witnessed the stabbing but had heard the deceased exclaim that he had been stabbed. Her evidence must therefore be treated with caution. 41.PW3 also admitted that he did not witness the stabbing. However, immediately after hearing the deceased cry out, “Vandame, you have killed me” and “Vandame has stabbed me,” he chased the fleeing person, struggled with him about fifty metres away, and later recovered the bag, which was found to contain the knife and the jacket. 42.PW4, PW5, PW6, PW8, PW10 and PW11 did not witness the stabbing. Their evidence regarding the identity of the assailant was based on what they were told after the incident and is therefore hearsay to the extent that it sought to prove who stabbed the deceased. 43.Nevertheless, the deceased’s statements identifying the accused immediately after sustaining the fatal injury constitute a dying declaration within the meaning of Section 33(a) of the Evidence Act. 44.The law is settled that a conviction may be based on a dying declaration, although courts ordinarily seek corroboration because the maker is unavailable for cross-examination. In Simon Kiptum arap Choge & 3 others v Republic [1984] KECA 4 (KLR), the Court of Appeal held that:“… the Court of Appeal for Eastern Africa in Pius Jasanga s/o Akumu v R (1954) 21 EACA 331 at 333:…The question of the caution to be exercised in the reception of dying declarations and the necessity for their corroboration has been considered by this court in numerous cases, and a passage from the 7th Edition of Field on Evidence has repeatedly been cited with approval:… The test of cross examination may be wholly wanting; and … the particulars of the violence may have occurred under circumstances of confusion and surprise calculated to prevent their being accurately observed …The deceased may have stated inferences from facts concerning which he may have omitted important particulars, from not having his attention called to them …Particular caution must be exercised when an attack takes place in darkness when identification of the assailant is, usually, more difficult than in daylight … It is not a rule of law that, in order to support a conviction, there must be corroboration of a dying declaration … and there may be circumstances which go to show that the deceased could not have been mistaken in his identification of the accused … But it is, generally speaking, very unsafe to base a conviction solely on the dying declaration of a deceased person, made in the absence of the accused and not subject of cross-examination, unless there is satisfactory corroboration …” 45.In this case, the deceased’s dying declaration was substantially corroborated by independent evidence. First, PW3 immediately pursued the fleeing person after hearing the deceased identify ‘Vandame’. During the pursuit, the fleeing person abandoned a black bag. Secondly, the abandoned bag contained a knife and a jacket. Thirdly, PW7, the Government Analyst, established through DNA analysis that human blood found on the knife, the bag, the jacket, the soil and the wood chippings all matched the deceased’s DNA profile. The forensic evidence therefore established a scientific nexus between the recovered exhibits and the deceased. 46.During cross-examination, the accused argued that the exhibits had been handled by members of the public and that fingerprints had not been lifted from the knife or the bag. 47.While it is true that fingerprint evidence was not obtained, fingerprint evidence is not a mandatory prerequisite for sustaining a conviction where other credible evidence establishes guilt. The DNA findings remained unchallenged, and no evidence was led to suggest contamination or fabrication of the exhibits. 48.The accused also fled immediately after the incident and was arrested about ten days later in Chepareria, West Pokot County. Flight is not conclusive proof of guilt, but when considered alongside the entire evidence, it may constitute conduct consistent with consciousness of guilt, as held in Republic v Tubere s/o Ochen (1945) 12 EACA 63. 49.The accused raised an alibi, asserting that he was on his farm from 12th to 15th December 2023. 50.An accused person bears no burden of proving an alibi. The burden always rests with the prosecution. In Kiarie v Republic [1984] KLR 739, the court held that:“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge preferred against him does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable; Said v Republic [1963] EA 6.” 51.However, where the prosecution adduces credible evidence placing the accused at the scene, the court rejects the alibi defence. 52.Further, the accused’s alibi was not supported by any independent witness. Although he claimed to have been with Eric Naibei throughout the relevant period, Eric Naibei was not called to give evidence. The prosecution’s evidence placed the accused at Silas’ homestead that night. Even PW1 acknowledged that the accused arrived at the gathering carrying the very bag later recovered after the incident. PW4 similarly testified that he had seen the accused earlier carrying the same bag and wearing the same jacket. The recovery of the accused’s bag immediately after the attack, together with the deceased’s dying declaration and the DNA evidence linking the exhibits to the deceased, completely displaced the accused’s alibi. 53.The court is satisfied that the accused stabbed the deceased, thereby causing the deceased's unlawful death. Whether the prosecution proved malice aforethought 54.Malice aforethought is defined in Section 206 of the Penal Code. The court in Republic v Tubere S/O Ochen [1945] 12 EACA 63 held that:“An inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before, during and after the attack.” 55.The accused armed himself with a knife, removed it from his bag during the quarrel, and stabbed the deceased in the chest, penetrating the lung. The chest is an extremely vulnerable part of the human body, housing vital organs. A person who intentionally drives a knife into another’s chest must be taken to have intended either to cause death or grievous harm. This court finds that the prosecution proved malice aforethought beyond reasonable doubt. 56.Accordingly, this court finds Richard Naibei, alias Vandame, alias Doctor, and alias Gavinoh, guilty of the offence of murder, and he is hereby convicted as charged. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF JULY 2026.R. E. OUGOJUDGEIn the presence of: -Richard Naibien alias Doctor alias Gavinoh/AccusedMr. Shikhu -For the Accused/ AbsentMiss Matere - For the StateWilkister/ Minah - C/A