https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8902

Republic v Naut (Criminal Case E003 of 2023) [2026] KEHC 8902 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 8902 (KLR) Republic of Kenya In the High Court at Lodwar Criminal Case E003 of 2023 PJO Otieno, J June 12, 2026 Between Republic Prosecutor and Christopher Etabo Naut Accused Judgment 1.The accused person herein is charged with the offence of murder contrary to section 203 as read together with section 204 of the Penal Code. The particulars of the charge are that on 25th December 2022, at Hewani B Village in Kanamkemer Location, Turkana Central Sub-County within Turkana County, the accused murdered one Anne Agule Ekitela. 2.The accused person pleaded not guilty to the charge and a full trial then ensued. At the case conference attended by both counsel, the learned counsel for the accused, Mr. Ondabu, informed the court that the defence would develop and advance the defense of alibi. 3.In its opening address, the prosecution, through learned counsel Mr. Kakoi, outlined its case and stated that the accused and the deceased were in a romantic relationship and had been drinking at a wines and spirits establishment. It was the prosecution’s contention that the accused became agitated after the deceased was bought alcohol by a former boyfriend. It was further alleged that the accused thereafter dragged the deceased to a friend’s house, where he assaulted her, as a result of which she succumbed to her injuries. Counsel indicated that there was no eyewitness to the alleged assault and that the prosecution would rely on the doctrine of last seen with. 4.In an effort to discharge the burden of proof placed upon it under section 107(1) of the Evidence Act, the prosecution called seven (7) witnesses. The Evidence 5.At the commencement of the trial, a voire dire examination was conducted on Deilan Nangiro (PW1), a minor born in July 2013. Upon due inquiry, the court was satisfied that he was possessed of sufficient intelligence and understood the duty of speaking the truth, and he was accordingly allowed to testify on oath. He testified that the deceased was his aunt. It was his evidence that on 25th December 2022 at about 10:00 a.m., he was at home in the company of the deceased, her sister, and a younger sibling. 6.PW1 stated that the deceased’s boyfriend, whom he identified as Omoke, arrived at their home in the company of another man while carrying alcohol branded Chrome. According to him, Omoke and the deceased thereafter proceeded to a nearby shop and returned with a doughnut, which they consumed. Subsequently, Omoke left with the deceased, who did not return thereafter. 7.He further testified that he dressed his siblings and they proceeded to where their mother was, after which they were taken to Turk Rift Hotel for swimming. While there, their mother received a phone call, prompting them to proceed to a house situated behind a bar. Upon arrival at the compound, they found the deceased lying in a carton, holding a jerrycan. PW1 observed that the deceased had visible injuries on her face and neck and was already dead. He stated that he had known Omoke prior to the incident and that their respective homes were separated by a road. He further testified that he did not see the accused person on that day. 8.On cross-examination, PW1 stated that he did not know the identity of the person who had accompanied Omoke. He testified that the alcohol brought by Omoke and his companion was consumed at their homestead. He reiterated that he knew the accused person and confirmed that the accused was not in the company of Omoke on the material day. He further stated that since the incident, he has not seen either Omoke or his companion. 9.In response to questions from the court, PW1 stated that he knew the accused person by the name Arome, but was unaware of his place of residence, although he would occasionally visit their home to see the deceased. 10.PW2, Esther Elibit Ewalan, testified on oath and stated that she is a teacher based in Loima at Napeilem School. She further testified that the deceased was her daughter. It was her evidence that she was not aware of any romantic relationship between the deceased and the accused person. She stated that one Amoke, whom she described as her relative, had previously been in a relationship with the deceased, but that she had reprimanded them upon learning of it, following which the relationship ceased. 11.PW2 recalled that on 24th December 2022 she had travelled to Kitale. At about 10:00 p.m., she received information that her daughter had been killed. She later proceeded to the mortuary, where she identified the body of the deceased for purposes of post-mortem examination. 12.Upon being questioned by the court, PW2 stated that she did not know the accused person prior to the proceedings and had only come to know him in court. She further stated that although Amoke is her relative, she had not seen him since the incident, though she had heard that he was within the Kanam area. 13.PW3, Simon Lonokol Ewoi, testified on oath and recalled that on 25th December 2022 at about 8:00 a.m., he was at home before leaving to visit his aunt, one Sarah Ebei. On his way, the deceased called him and informed him that she was with her sister’s children, who had not eaten, and requested him to buy them mandazi. He stated that he informed her that he did not have money. He further testified that he informed her that he was going to fetch water for bathing, whereupon the deceased indicated that she also required water, and they proceeded to fetch water together. 14.Thereafter, they went with the children to a shop where PW3 bought mandazi for them. He stated that they subsequently left the children behind and proceeded to Five Star, where he intended to buy for the deceased some alcohol. While at the counter preparing to make payment, the accused person joined them and confronted him, questioning what he was doing with his girlfriend. PW3 stated that he informed the accused that he had no ill intentions and, as a result, did not proceed with the purchase, opting instead to return home. 15.He further testified that the accused and the deceased left together, heading in the direction of Kadoda. Upon returning home, he met his uncle, Isaac Ebei, to whom he gave Kshs. 200/=. At about 3:00 p.m., he left for Cherinas Hotel, where he remained until 6:00 p.m., after which he returned home and learnt of the deceased’s death. He stated that the last time he saw the deceased, she was in the company of the accused person. 16.PW3 further testified that he had previously intended to pursue a romantic relationship with the deceased; however, they were advised by their parents that they were related, and the relationship did not materialize. He stated that he knew the accused as the deceased’s boyfriend and that he had known him for over ten years. 17.On cross-examination, PW3 stated that although he had indicated in his police statement that the deceased had been his girlfriend between 2015 and 2017, that assertion was not true. He admitted that he had been arrested and remanded for two days in connection with the death of the deceased and was only released after recording his statement. He clarified that he had intended to buy the deceased a drink and that he had been at Five Star Bar for about ten minutes, leaving at about 9:00 a.m. 18.He further testified that the accused and the deceased left him at Five Star Bar and that he did not see either of them consume alcohol at the premises. He stated that other persons present at the bar included one Eka Juma alias “Preso,” with whom he had been arrested and remanded. He added that the accused only quarreled with him and that he did not witness any quarrel between the accused and the deceased. 19.On re-examination, PW3 confirmed that the statement contained in the police file was his. He further stated that he had been summoned by the police on 29th December 2022 to record an additional statement, which he had not seen. 20.PW4, Dr. Ekiru James, testified on oath. He introduced himself as a medical doctor by profession adding that he was currently serving as the Director of Medical Services at the County Government of Turkana. He further stated that he had previously served as the Deputy Director at the County Referral Hospital. 21.He testified that on 29th December 2022, while stationed at Lodwar County Referral Hospital, he conducted a post-mortem examination on the body of an African female adult. Upon general examination, he observed multiple injuries, including lacerations on the lower jaw, lacerations on the lateral aspects of the face, lacerations on the lateral trunk, and a cut wound on the lower hip. He further noted fluid oozing from the nostrils, lacerations behind the left ear, and a cut wound on the right lateral malleolus. He also observed that the vaginal area was soiled with stool. 22.Upon internal examination, PW4 noted pulmonary oedema and emphysema, with a collapsed left lung. He stated that there were no remarkable findings in the cardiovascular and digestive systems. Examination of the head revealed a frontal scalp hematoma and a frontal subdural hematoma extending to the temporal regions. He stated that there were no fractures and no notable findings in the spinal column or the nervous system. 23.Based on his findings, he formed the opinion that the cause of death was severe head injury and pulmonary oedema. He produced the post-mortem report as PEXH 1. 24.On cross-examination, PW4 stated that at the time of conducting the post-mortem examination, the body had been dead for several days and he was unable to determine the exact duration. He testified that the body was identified by relatives, whose particulars he did not record. He further stated that he had recommended toxicological analysis and had taken samples, although he did not receive the results thereof. 25.He further opined that a collapsed lung could be caused by conditions such as tuberculosis or decomposition of the body. He also stated that the head injury could have resulted from a fall, and that a collapsed lung could, in turn, lead to a fall. He clarified that there is a distinction between a pathologist and a general medical practitioner, and that he is not a pathologist. 26.On re-examination, PW4 stated that in circumstances where a specialist pathologist is not available, a general medical practitioner may conduct a post-mortem examination. 27.PW5 was Yvonne Adhiambo Ashoya who testified on oath and stated that on 25th December 2022, she was working as a sales attendant at a wines and spirits shop. It was her evidence that the deceased visited the premises in the company of a young man and a child, where they purchased alcohol and left with it. She further testified that about two hours later, the deceased returned in the company of the same young man. She added that while the deceased and her companion were at the counter, the accused person arrived and confronted them, questioning the deceased as to why she was in the company of the young man, whom he referred to as her “uncle.” According to PW5, the deceased responded that no one had paid her dowry and, therefore, no one had a claim over her. She identified PW3 as the young man who had accompanied the deceased. 28.She further testified that the deceased thereafter left the premises in the company of the accused person, while PW3 left with the child. About twenty minutes later, the accused returned to the premises alone. Upon being asked by persons seated outside about the whereabouts of the deceased, the accused responded that he had left her sleeping. About ten minutes later, information was received that there was a dead woman nearby. PW5 stated that upon going to the scene, she observed that the deceased was the one who had died, after which she returned to her place of work. She stated that she did not know how the deceased met her death. She further testified that the police later collected the body and that she was subsequently summoned to the police station to record her statement. 29.On cross-examination, PW5 denied having been detained in police cells. She stated that the first time the deceased visited the wines and spirits shop was in the morning hours, in the company of a female child aged nearly three to four years, and that they purchased alcohol and a soft drink for the child. She further testified that when the deceased returned about an hour later, she did not personally serve them. 30.PW5 further stated that there were other persons present at the premises, including one Preso, who was in the company of three to four other individuals. She testified that Preso left roughly one (1) hour later to go and sleep, because he worked as a night guard, and that by the time he left, the accused person had not returned. She further stated that the distance between her position and where the customers were seated was around six meters. 31.PW6, James Ekai Chuma, testified on oath that he is a casual labourer working at construction sites. He recalled that on 25th December 2022, the accused person, in the company of the deceased, went to his house and requested to be allowed to use a room to rest. PW6 acceded to the request and left them in the room as he proceeded to work. 32.He testified that on his way, he decided to pass by Five Star Wines and Spirits, where he found the accused, the deceased, one Omoke (whom he described as a former boyfriend of the deceased), and PW3. He stated that at some point, the deceased began dancing with PW3, which angered the accused, who confronted PW3. PW6 intervened and separated them. 33.He further testified that the accused thereafter took the deceased by the hand and led her back to the room PW6 had earlier provided. The accused subsequently returned alone to Five Star Wines and Spirits, where they continued drinking. At about 1:00 p.m., PW6 decided to go for lunch at his aunt’s home and, on his way, passed by his house. He found the door closed but not locked. He called out to both the accused and the deceased, but there was no response. 34.PW6 stated that he peeped through the door and observed the deceased lying on the mattress with her tongue protruding. Alarmed by what he saw, he proceeded to inform the deceased’s sister, one Karen. On his way, he encountered one Asinyen, who inquired why he appeared distressed. He informed her to go and verify what he had seen as he proceeded to look for the deceased’s sister. He later went to Nabulon, where his employer took him to the Directorate of Criminal Investigations (DCI), where he was detained in police cells for two nights before being released. 35.On cross-examination, PW6 stated that his police statement did not reflect that the accused and the deceased had come to his house at about 6:00 a.m., explaining that he may have been confused at the time due to alcohol consumption. He noted that his statement instead indicated the time as 10:00 a.m. He further confirmed that his statement did not record that he had provided the accused and the deceased with a room to rest. 36.He testified that following the incident, he, Omoke, and another individual who worked at a garage were arrested and taken to the DCI offices to record statements. He stated that he had been at the wines and spirits premises from about 9:00 a.m. and that he left at about 1:00 p.m., before the accused. He clarified that although he had initially stated that he left home together with the accused and the deceased, he had in fact gone to the wines and spirits alone and found them already there in the company of PW3. 37.He denied assertions that he had been locked in a room by the police or that he had informed the police that there were individuals armed with machetes who intended to attack him. 38.On re-examination, PW6 stated that the accused had gone to his house at about 6:00 a.m. and that he left him there with the deceased. He further stated that he was not intoxicated on that day. 39.In response to questions from the court, PW6 stated that when he found the accused and the deceased at Five Star Wines and Spirits, there was no child present. He further stated that from the wines and spirits premises, one could see the room he had provided to the accused and the deceased. 40.PW7, No. 241878 IP Optat Nyanges, testified on oath. He stated that he is currently stationed at DCI Mlolongo and was previously attached to DCI Lodwar, where he performed investigative duties. He recalled that on 25th December 2022 at about 6:00 p.m., he received a call from IP Baraza, the Officer Commanding Crime, informing him of a reported murder incident at Kanamkemer Location. 41.He thus proceeded to the scene at Hewani B, which comprised several business premises with a single room used by a caretaker. He stated that the scene was dark and was illuminated using the headlights of their station vehicle. At the scene, they observed the body of a young woman, who was identified to them as Anne Akitela. The body was lying in a carton box, facing upwards. He observed that the deceased had a swollen face with visible bruises. 42.PW7 further testified that from the information gathered at the scene, the accused person was reported to have been the last person seen with the deceased. The body was thereafter removed to the mortuary. He also stated that in the caretaker’s room, belonging to one James Ekai, they established that the accused and the deceased would occasionally meet, they observed clothes scattered all over the room and noted the presence of bloodstains. He further testified that on 26th December 2022, the accused was taken to the police station by his father, one Peter Waut, and upon examination, the accused was found to have bruises on the neck and a bite mark on the shoulder. 43.PW7 testified that the investigating team revisited the scene with a view to establishing the deceased’s last movements. From their investigations, they established that the deceased had been at Five Star Wines and Spirits when the accused arrived and found her drinking in the company of other men, including a former boyfriend. He stated that a confrontation ensued, after which the accused took the deceased to the caretaker’s room, where he allegedly locked himself in with her and assaulted her. 44.He further testified that Inspector Nyanke recorded a statement from the accused, in which the accused stated that he had left the house and, upon returning, found the deceased with a swollen face. According to the accused, he then took her outside with the intention of taking her to hospital, only to realize that she was already dead. 45.PW7 further testified that on 29th December 2022, a post-mortem examination was conducted in the presence of the deceased’s relatives. The medical officer formed the opinion that the cause of death was severe head injury. Based on this finding, the police preferred a charge of murder against the accused. 46.He added that samples of bloodstained clothing belonging to both the deceased and the accused were collected and forwarded to the Government Chemist for analysis, although the results had not been received at the time of his testimony. 47.On cross-examination, PW7 stated that he recorded a statement from Simon Lomokor alias Omoke, who informed him that the deceased had been his girlfriend between 2015 and 2017. He further stated that, according to his investigations, the accused found the deceased at the wines and spirits establishment. He also testified that the scene comprised several business premises operating under one roof, though separated by partitions. 48.In response to questions from the court, PW7 stated that one cannot see Hewani B from Five Star Wines and Spirits due to the presence of intervening buildings. 49.The evidence of PW7 marked the close of the prosecution’s case. Upon considering the totality of the evidence on record, the court found that a prima facie case had been established against the accused and accordingly placed him on his defence. 50.The accused person, Christopher Etabo Naut, when given the chance to establish his defence testified as the sole defence witness and gave sworn evidence. 51.He stated that he is aged twenty-nine (29) years and is a student at Lodwar Vocational Training College, where he is pursuing a course in agriculture. He denied the charge in its entirety. 52.He testified that on 25th December 2022, being Christmas Day, he left his home at about 9:00 a.m. to visit a friend who had invited him. On his way, he passed by Five Star Wines and Spirits, where he observed four people seated on the veranda. As he approached, he recognized the deceased among them, together with others, including one Omoke. He stated that they appeared intoxicated and that he did not engage with them. 53.He further testified that adjacent to Five Star Wines and Spirits was another establishment known as Uptown Wines and Spirits, where there were other young men. He proceeded to his destination and arrived at about 11:00 a.m., where he found his host, one Ekal, together with her brother, who later left to purchase soft drinks. He stated that he remained at his host’s residence until about 8:00 p.m., when he decided to return home. Upon arrival, he bathed and went to sleep. 54.He testified that he later woke up at about 4:00 p.m., when a neighbor informed him that the deceased had been seen surrounded by people. He stated that he remained at home until the following day, when officers from the Directorate of Criminal Investigations (DCI) visited their home, met his father, and informed him that the accused was required at the station to record a statement. He stated that after the officers left, he and his father followed them to the station, where he recorded a statement and was thereafter detained. 55.He further testified that on 28th December 2022, other persons, including PW3 and PW4, were released from custody. He was thereafter taken to Kanamkemer by police officers to assist in tracing the released individuals, but they were unable to locate them. He reiterated that on the material day, he was at his host’s residence and not with the deceased. That evidence marked the close of the defence case. 56.Parties thereafter filed their respective submissions, which may be summarized as follows: Prosecution’s Submissions 57.In its submissions, the prosecution contends that it has proved all the ingredients of the offence of murder against the accused person. It submits that the evidence on record establishes that the deceased was last seen alive in the company of the accused shortly before she was found dead. In this regard, reliance is placed on the testimony of PW3, who stated that he last saw the deceased in the company of the accused person. 58.The prosecution further relies on the evidence of PW2, who testified as to the condition of the deceased’s body, observing visible injuries on the face and neck. Additionally, reliance is placed on the medical evidence of PW4, who conducted the post-mortem examination and formed the opinion that the cause of death was severe head injury, specifically a frontal subdural hematoma, coupled with pulmonary oedema. 59.The prosecution submits that the foregoing evidence, being circumstantial in nature, irresistibly points to the accused as the person who caused the death of the deceased, to the exclusion of any other reasonable hypothesis. It is therefore contended that the chain of circumstantial evidence is complete and sufficient to sustain a conviction. Accused Person’s Submissions 60.The accused person, in his submissions, contends that the prosecution’s case is riddled with material contradictions and inconsistencies, thereby rendering the evidence unreliable. He submits that, with the exception of PW1, the prosecution witnesses were intoxicated at or around the time of the alleged incident and consequently gave divergent accounts before the court. He further points to the evidence of PW3, who admitted that he becomes mentally unstable when under the influence of alcohol, and argues that his testimony ought not to be relied upon. 61.The accused also relies on the medical evidence, submitting that PW4, during cross-examination, conceded that intoxication followed by a fall on a hard surface could occasion injuries capable of causing death. 62.The accused further submits that no witness placed him at the scene of the alleged offence at the material time, nor did any witness testify to having seen him engage in any altercation with the deceased. He adds that no screams or distress calls were reported from the room where the deceased’s body was later discovered, thereby casting doubt on the prosecution’s theory of assault. 63.The accused also highlights what he terms as inconsistencies in the prosecution’s evidence. He submits that PW1 testified that the deceased left home in the company of Omoke and that he did not see the accused on the material day. PW2, on her part, testified that she did not know the accused. He further points out that PW3 stated that the deceased had not consumed alcohol, whereas PW1 testified that she had been drinking, and PW6 similarly testified that the deceased had been drinking with Omoke. Additionally, he notes that PW5 testified that the deceased was in the company of a young child, a fact not corroborated by other witnesses. 64.On the basis of the foregoing contradictions and alleged weaknesses in the prosecution’s case, the accused urges the court to find that the prosecution has failed to prove its case beyond reasonable doubt and to acquit him of the charge of murder. Issues, Analysis and Determination 65.The court has carefully considered the entirety of the evidence adduced by the seven prosecution witnesses, the sworn defence of the accused person, as well as the submissions filed by the parties. The issues that arise for determination are as follows:a.Whether the fact of the deceased was proved;b.Whether the death was caused by an unlawful act or omissionc.Whether the the unlawful act or omission is attributable to the accused; andd.Whether the accused acted with malice aforethought within the meaning of section 206 of the Penal Code. 66.The offence of murder is defined under section 203 of the Penal Code as the unlawful killing of a person with malice aforethought. Section 204 then prescribes the penalty for one found guilty for the offense. 67.The burden of proof in every criminal case always rests upon the prosecution to establish each of these elements of the offence beyond reasonable doubt. Whether the fact of death was proved? 68.The fact of death of the deceased is not in dispute. PW1, PW3, PW5, PW6, PW7 and even the accused all testified to having seen the lifeless body of the deceased lying on the ground, while PW2, the deceased’s mother, identified the body at the mortuary for purposes of post-mortem examination. The court is thus fully satisfied that the deceased is indeed dead. 69.As regards the cause of death, PW4, Dr. Ekiru James, who conducted the post-mortem examination, testified that the deceased sustained multiple injuries, including a frontal subdural hematoma and pulmonary oedema. He formed the opinion that the cause of death was severe head injury and pulmonary oedema. This evidence was not controverted. 70.The court is therefore satisfied that both the fact and cause of death of the deceased were proved beyond reasonable doubt. Whether the death was caused by an unlawful act or omission? 71.The post-mortem findings revealed multiple injuries on the body of the deceased, particularly to the head, face, and other parts of the body. These injuries are indicative of trauma and are consistent with the application of external force. 72.Although PW4 conceded on cross-examination that some of the injuries could result from a fall, there was no evidence to suggest that the extensive injuries observed could have arisen from a mere accidental fall. In the absence of any lawful justification, the court finds that the injuries leading to the death of the deceased were unlawfully inflicted. 73.Accordingly, the court finds that the death of the deceased was caused by an unlawful act. Whether the unlawful acts leading to death was caused by the accused? 74.There is no direct evidence linking the accused person to the act that caused the death of the deceased. The prosecution’s case is therefore founded entirely on circumstantial evidence, particularly the doctrine of last seen with. 75.The law on circumstantial evidence is well settled since Sawe v Republic (Criminal Appeal 2 of 2002) [2003] KECA 182 (KLR), when the Court of Appeal held that for such evidence to sustain a conviction, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. Similarly, in Abanga alias Onyango v Republic Cr. App. No. 32 of 1990, the same Court of Appeal set out the guiding principles, namely: that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete and unbroken that there is no escape from the conclusion that within all human probability the offence was committed by the accused and none else; and, lastly, that there must be no co-existing circumstances which would weaken or destroy the inference of guilt. 76.The prosecution relies on the doctrine of last seen, contending that the accused was the last person seen in the company of the deceased prior to her death. In Daniel Munyui Chiragu & Another v Republic (Criminal Appeal No. 104 of 2018) [2021] KECA 342 (KLR), the Court of Appeal, while addressing the doctrine of last seen, observed that where a deceased person is last seen alive in the company of an accused person, there arises a duty upon the accused to offer an explanation as to how the deceased met his or her death. In the absence of such explanation, the court may draw an inference that the accused is responsible for the death, provided that the evidence on record forms a complete chain pointing irresistibly to the accused. 77.In the present case, PW3 testified that he last saw the deceased in the company of the accused as they left together from Five Star Wines and Spirits. This evidence was corroborated by PW5, who stated that the deceased left the premises in the company of the accused, and that the accused later returned alone and informed those present that he had left the deceased sleeping. 78.PW6 further testified that the accused took the deceased to a room which he had availed to them, and that upon returning later, he found the deceased lying lifeless in that room. PW7, the investigating officer, also testified that the accused was identified as the last person seen with the deceased and that the room in question bore signs of disturbance and bloodstains. 79.While the defence view the prosecutions case to be riddled with inconsistencies concerning the sequence of events, the presence of other individuals such as Omoke, and whether the deceased had consumed alcohol, the court views the same be be flimsy and immaterial. Immaterial because while the evidence irresistibly place the accused at the scene of murder. 80.When given a chance to controvert that evidence by the prosecution, the accused advanced a defence of alibi which was rather bare and uncorroborated. The court considers the defence evidence bare and lacking in cogency because he chose to give unsworn statement and thus evaded the credibility test by way of cross examination. Since the decision by the Court of Appeal in the case Amber May v. Republic [1979] eKLR it has remained trite that unsworn statement is not evidence and that it does not have probative value. 81.The court find the defence to lack probative value and thus incredible to controvert the otherwise cogent evidence by the prosecution. While the accused alleged having been hosted by friend he totally failed to call that friend to confirm that he was indeed in his company at the time the prosecution witnessed placed him at the scene of murder. The court finds the defence evidence to lack cogency and reliability and finds it incapable of displacing the otherwise cogent and succinct evidence by the prosecution. It is the view of the court that while the accused has no burden to prove the defence of alibi strictly1, once a prima facie case is established, the evidential burden rests on the accused to displace the prosecution’s case.1Kiarie v Republic [1984] KLR 739). 82.In the circumstances, the court finds that the prosecution has proved, beyond reasonable doubt, that it is the the accused person caused the death of the deceased. Whether the accused acted with malice aforethought 83.As defined in the statute, the offence of murder is incomplete when the element of malice aforethought is not proved. For completeness, malice aforethought is defined under section 206 of the Penal Code and may be inferred from, inter alia, the nature and extent of the injuries inflicted, the weapon used, and the conduct of the accused before, during, and after the incident. see Republic v Tubere s/o Ochen [1945] 12 EACA 63. 84.In the absence of evidence of the weapon the accused person employed to assault the deceased, the court finds that there is no proof of malice aforethought and therefore the offence of murder has not been proved. 85.However the evidence on record proves beyond any reasonable double that the accused indeed caused the death of the deceased unlawfully. For that unlawful termination of death, the accused escapes the charge of murder but cannot escape the lesser charge of manslaughter. Rendition and Final Orders 86.Consequently, the court finds that the prosecution failed to prove the charge of murder against the accused person beyond reasonable doubt but did prove the offence of manslaughter. The accused person is therefore adjudged guilty of manslaughter contrary to section 202 of the Penal Code and is accordingly convicted. DATED, SIGNED AND DELIVERED AT LODWAR THIS 12TH DAY OF JUNE 2026PATRICK J O OTIENOJUDGE