https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8516

Republic v Namon (Criminal Case E011 of 2022) [2026] KEHC 8516 (KLR) (16 June 2026) (Judgment) Neutral citation: [2026] KEHC 8516 (KLR) Republic of Kenya In the High Court at Nyahururu Criminal Case E011 of 2022 LN Mutende, J June 16, 2026 Between Republic Prosecution and Jackson Sitinei Namon Accused Judgment 1.The court was informed by the Director of Public Prosecutions (DPP) on behalf of the Republic, that Jackson Sitinei Namon, the Accused, committed the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. 2.The particulars of the offence are that on the 23rd day of April, 2022, at Mutitu Ward in Nyahururu Sub-County within Laikipia County, he murdered Joseph Kowum Kwaka. 3.The Accused denied having committed the offence hence he was subjected to full trial. To prove the case the prosecution availed five(5) witnesses. 4.PW1 Dr. Florence Mutisya conducted the autopsy on the body of the deceased so as to determine the cause of death. 5.PW2 Christopher Lochuchi Mgorem had employed the Accused who worked for him for three(3) months. He stated that on the night of 23rd April, 2022, the Accused woke him up at abut 10.30pm. He asked to be paid his salary. He told him to wait until the following day. On observation he noticed the Accused was drunk and he had blood on his left hand. The Accused had also asked to be given his identity card that was in his possession. 6.He went to Kwa Wanjiku Police Station and reported the matter to the Chief who instructed the Village Elder to mobilize people who arrested the Accused and escorted him to the police station. They went to the home of the deceased but he had already been taken to the hospital. However, they recovered a knife, a suspected murder weapon from the scene as it was blood stained. 7.PW3 Latuai Ngasike stated that it was about 9.30pm on the 23rd, they were drinking traditional liquor at a home when he heard noise and on checking he saw someone stabbing another. He was aided by the delight lamp that they were using. It turned out that he knew both the victim and assailant. That they were arguing in Kalenjin language and as the assailant left, he also stabbed him. That he knew the assailant as an individual employed as a herdsman. 8.On cross – examination, he stated that the assailant was the Accused and although he did not know his name, he knew him by physical appearance as he had been seeing him for about one(1) month. That the deceased was Turkana but he could not tell the tribe of the Accused and he was stabbed on the leg. 9.PW4 Simon Mojong Kowom was informed by Boniface Iyanae that his brother had been stabbed by the Accused with a knife. He went to the home of Namune and found the deceased, his brother bleeding profusely. He told him that he had been stabbed by Jackson Sitinei. He rang a boda boda operator, James Kathurima and his sister Regina arrived. They took the deceased to hospital but on arrival at the hospital, he was pronounced dead. His body was taken to the mortuary. 10.Further, he stated that PW2 the employer of the Accused rang and informed him that the Accused was asking for his money and identity card so as to leave and he told him that he injured his brother. In the company of other people, they went to PW2’s home and arrested the Accused. He had a black sheath and belt featuring the Kenyan flag (colours). 11.On cross – examination, he said he knew the Accused for about one(1) year as a herdsman for they used to graze animals together in the fields. That even if the weapon and sheath are like any other he could identify what the Accused used to have. 12.PW5 No. 54127 Corporal Julius Kibowen, the Investigating Officer, recorded statements of witnesses and found the Accused already in the cells having been arrested by members of public. A suspected murder weapon had been recovered by members of public and handed over to the officer on duty. He established that the individuals were at a drinking spree and after the deceased was stabbed the Accused also attacked other people. 13.Upon being placed on his defence, the Accused stated that on the 23rd April, 2022, he went to graze animals with Josphat Ekale and returned home in the evening, cooked ate and slept at 8.00pm. That he woke up in the morning and his neighbour Christopher went over with other people and they claimed that he was required. They took him to the police station amidst allegations that Christopher had warned him to leave alone his wife. That the OCS upon arrival alleged that he had killed someone. 14.Further, he urged that among the people it is only PW2 that he knew and there was a grudge between them. That when he met PW2 in 2023, the 9th of March, at Rumuruti market he requested if he could allow him to graze his animals near the forest and he agreed and when he moved to stay there he met Josphat whom he lived with. That PW2 showed him where to construct a house and in the course of their stay PW2 found him taking tea at his house having been offered by his wife. He accused him of having an extra marital affair with his wife and vowed to do something to him that he would regret. 15.He denied knowing the deceased or Mama Jane. He also stated that he does not partake alcohol, and, he saw Simon Emojong (PW4) for the first time in court. He denied ownership of the exhibits produced in court. He denied the allegation that clothes were recovered from his house, and claim that he injured his left palm while being taken to the police station. 16.On cross – examination, he stated that PW2 allowed him to say at his home and he even kept some of his properties at his store. That he was arrested the following day at 9.00am contrary to the allegations that he was arrested at 1.00am. he denied that he called PW2 asking for his identity card alleging that he wanted to leave as he had killed someone. He stated that the grudge between him and PW2 because of his alleged affair with his wife had no connection with the deceased. 17.DW2 Josphat Ekale introduced himself as a herdsman and neighbour to the Accused. He stated that on the 23rd April, 2022 both of them were at the forest grazing animals until 6.00pm. They returned home, ensured all animals were in the cattle shed, cooked, ate supper then slept. At 6.00am PW2 who was with other people called out the Accused. That there was a commotion then when he went outside he found the Accused injured and bleeding. He further stated that the Accused does not take alcohol, he carries a panga to wade off animals and that there was a time when PW2 accused him of having an affair with his wife. 18.On cross – examination, he stated that the Accused had an injury on the hand but he could not have sustained it while killing the deceased as he believed it must have been PW2 who cut him. 19.At the close of the defence case submissions were tendered by the defence counsel. While admitting that death did occur, it is urged that the Accused was not the perpetrator. On the question whether identification was apt, reliance was placed on the case of Joseph Muchangi Nyagah & Another [2013] eKLR where the court stated that;“Evidence of visual identification should always be approached with great care and caution (see Waithaka Chege – v- R {1979} KLR 271). Greater care should be exercised where the conditions for a favourable identification are poor. (Gikonyo Karume & Another – v – R {1900} KLR 23). Before a court can return a conviction based on identification of any accused person at night and in difficult circumstances, such evidence must be water tight. (See Abdalla bin Wendo & Another – v- R, {195} 20 EACA 166; Wamunga – v- R, {1989} KLR 42; and Maitanyi – v- R, 1986 KLR 198). Before acting on such evidence, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him…” 20.Further, the case of Elius William Tete v Republic [2020] KEHC 987 (KLR) was cited where the court stated that;“On the issue of lighting, the source of light was established to be electricity security lights. However, the size or intensity of the security lights was not stated. Were the security lights a simple bulb that illuminated a small area or were they of high voltage that could illuminate a wide area? This would have enabled the court to assess whether the light being 12-15 meters away was sufficient enough for the complainant to clearly see his attackers.Furthermore, on the position of the security lights PW1 explained that was heading to his house when he came across his purported attackers. This means that PW1 was facing the source of light while the source of light was behind the three men and not on their faces. There is no evidence that there were other sources of light in the area that illuminated upon them. I find it hard to believe that PW1 would have been able to identify the Appellant late at night while he was facing the source of light.Additionally, the evidence of PW7, the investigating officer, was that there was a corner before PW1’s house. He never explained the positioning of the security lights in relation to the path and the corner. He never produced a sketch of the scene of crime. The court is unable to ascertain whether the light indeed illuminated the path considering that there was a bend in the path.Even if there is a possibility that there was some source of light, the time under which PW1 observed the Appellant was fleeting and no more than a passing glance.” 21.That no evidence was led relating to the nature of light, strength, size that could make PW3 positively identify the Accused as the Assailant. That the type of lighting should be gauged by the standards explained by the Court of Appeal in Maitanyi v Republic [1986] KECA 39 (KLR) where it was stated that;“It must be emphasized that what is being tested is primarily the impression received by the single witness at the time of the incident. Of course, if there was no light at all, identification would have been impossible. As the strength of the light improves to great brightness, so the chances of a true impression being received improve. That may sound too obvious to be said, but the strange fact is that many witnesses do not properly identify another person even in daylight. It is at least essential to ascertain the nature of the light available. What sort of light, its size, and it position relative to the suspect, are all important matters helping to test the evidence with the greatest care. It is not a careful test if none of these matters are known because they were not inquired into. In days gone by, there would have been a careful inquiry into these matters, by the committing magistrate, state counsel and defence counsel. In the absence of all these safeguards, it now becomes the great burden of senior magistrates trying cases of capital robbery to make these enquiries themselves. Otherwise who will be able to test with the “greatest care” the evidence of a single witness?There is a second line of inquiry which ought to be made and that is whether the complainant was able to give some description or identification of his or her assailants, to those who came to the complainant’s aid, or to the police. In this case no inquiry of any sort was made. If a witness receives a very strong impression of the features of an assailant, the witness will usually be able to give some description. If on the other hand the witness says that he or she could not identify or recognize the person, then a later identification or recognition must be suspect, unless explained. It is for the magistrate to inquire into these matters.” 22.That the knife recovered was not forwarded to the government chemist for DNA analysis. That there was no evidence adduced to prove that the Accused acted with malice aforethought to prove that the Accused acted with malice aforethought hence the prosecution did not discharge the burden of proof required of proof beyond reasonable doubt which calls for his acquittal. 23.I have considered evidence on record as well as submissions by the defence. The offence of murder is created by Section 203 of the Penal Code that defines it thus;Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 24.In Omwenga Mueche Omwenga [2009] KEHC 1573 (KLR) the court stated that;“There are therefore three ingredients of murder 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.” 25.In Republic v David Ruo Nyambura & 4 Others [2001] KEHC 826 (KLR) it was held that;“It is our cardinal principle of law that in a criminal case the legal onus is always on the prosecution to prove the guilt of an accused person, and the standard of proof is proof beyond reasonable doubt. The burden of proof therefore lies on the prosecution throughout to prove the guilt of an accused.”“There are three ingredients of murder which the prosecution must prove beyond reasonable doubt so as to earn a conviction, namely: (a) The death of the deceased, and cause of that death. (b) that the accused committed the unlawful act which caused the deceased’s death and (c) that the accused had malice aforethought. The issue for determination in this case is whether these three ingredients of murder have been proved by the prosecution beyond reasonable doubt.” 26.On the question of the death of the deceased, PW4 found the deceased having been injured. He made an effort of taking him to hospital but upon arrival he was pronounced dead. A postmortem examination was later conducted by PW1 Dr. Wangari on his body of the deceased. And she concluded that the cause of death was severe head injury secondary to a stab wound. This was evidence of death and the cause of death. 27.As to whether the Accused was the perpetrator of the unlawful act that caused the death. This is a case where alcohol was being sold. There were patrons who were not willing to divulge evidence of who the seller was. The scene of crime was not secured by the police who visited the scene, the area was hence contaminated to the extent that no physical evidence was gathered for purposes of forensic examination. It was alleged a suspected murder weapon was collected but it was not subjected to DNA analysis. Therefore, the court has to base the findings on the witness statement of the eye witness. 28.PW3 the eye witness stated that he saw the victim and assailant. He identified the assailant as the Accused herein. He heard them arguing prior to the unlawful act being committed. This was direct evidence of what PW3 perceived. The act was committed at 9.30pm or thereabout. Evidence of PW3 must therefore be credible. 29.In Cleophas Otieno Wamunga v Republic [1989] KECA 47 (KLR) the court stated that;“Where the only evidence against a defendant was evidence of identification or recognition, a trial court was enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it could safely make it the basis of a conviction.” 30.In Anjononi & Others v Republic [1980] KECA 23 (KLR) it was stated that;“….recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.” 31.The question this court must grapple with is whether PW3 had the opportunity to make a proper observation of the assailant. I do appreciate that in such a case there could be a possibility of a mistake being made. But, on the issue of visibility, PW3 stated that the source of lighting was a delight lamp, which can have a good lighting output. PW3 stated that after stabbing the ‘Turkana individual’ he also stabbed him on the leg and disappeared. That he had known the individual for a month as a herdsman. 32.PW2 testified to have employed the Accused. He stated that on the fateful night the Accused wanted to leave employment. He sought to be paid his salary and also the identity card that the witness retained as he did not know him very well. In his defence, the Accused claims that he had disagreed with PW2 who claimed he was having an affair with his wife. That he was not his employer although he allowed him to erect a structure where he lived near his home and even kept his property at his store. 33.To be believed that there could have been such a problem, the allegation must be credible. This is a suggestion that he could have been framed, an allegation that came up during defence. What is surprising is the question of such an allegation having not been presented at the earliest to enable the prosecution interrogate it appropriately. 34.The credibility is questionable as it does not connect the allegation to the evidence adduced by the eye witness. The Accused called a witness who alleged that he was with him throughout the night an allegation that did not come up while PW2 was being cross – examined. 35.It was stated by PW4 that on arrival at the scene, his brother told him that he had been stabbed by Jackson Sitinei. However, it was established that the statement recorded soon thereafter at midnight, was silent on the allegation. The prosecution did not explore the question of establishing the threshold required for such evidence to be relied on. 36.The only evidence that this court would uphold is that of PW3 whom this court finds to have been reliable as he proved to have been honest. The Accused was not a stranger to him. He not only demonstrated that the Accused was familiar to him, but he also had an opportunity of observing him as he also assaulted him. He heard him speak which would bring in the question of voice identification which was not disputed. I therefore find and hold that the witness recognized the Accused as the assailant. He was the perpetrator of the act that caused the death of the Accused. 37.To be guilty of murder, the Accused must have acted of malice aforethought which is defined in Section 206 of the Penal Code as follows;Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—a.an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;b.knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;c.an intent to commit a felony;d.an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony. 38.In the case of Tebere s/o Ochien v Republic [1945] 12 EACA 63 it was stated that;“It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick…” 39.It is in evidence that the Accused had been drinking alcohol. The allegation is denied as he claims to be a teetotaler. This means that he was in proper control of his senses even as he went seeking to be paid for work done and demanding for his identification document so as to leave the area. 40.Looking at the injuries sustained. The deceased was injured both externally and internally. He suffered a severe pallor of conjunctiva and tongue deep cut wound on the left groin; deep cut on the forehead; deep penetrating wound through the left area with severe damage to the femoral vein, femoral artery and femoral nerve; penetrating wound on the frontal region going through the skull into the frontal region of the brains; massive subdural haematoma extending to the entire surface of the brain. These injuries were caused by a stab wound. 41.Injuries sustained were serious. They were deliberately inflicted therefore malice aforethought was present. In the upshot, I find and hold that the prosecution but proved the case of murder against the Accused. Accordingly, I find him guilty and convict him for the offence as charged, contrary to Section 203 as read with Section 204 of the Penal Code. 42.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF JUNE, 2026.……………………L.N. MUTENDEJUDGE