https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10528

Republic v Ndiwa (Criminal Case (Murder) E016 of 2024) [2026] KEHC 10528 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10528 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Case (Murder) E016 of 2024 REA Ougo, J July 9, 2026 Between Republic Prosecution and Peter Chebii Ndiwa Accused Judgment 1.The accused, Peter Chebii Ndiwa, was charged with the offence of murder contrary to Section 203 read together with Section 204 of the Penal Code. The particulars of the offence are that on various dates between 22nd February 2024 and 25th February 2024, at Chisinende Village, Kaptama Location, in Mt. Elgon Sub-County, within Bungoma County, the accused murdered Judith Cherotich. 2.The accused denied the charge, and the prosecution called 6 witnesses to support its case. The accused person gave a sworn in his defence. Prosecution Case 3.Phance Chebet, PW1, testified that the deceased, her sister, telephoned her on 22nd February 2024, informing her that the accused, her husband, had assaulted her by striking her on the head and the back of the neck. The deceased allegedly advised PW1 not to visit because the accused was also looking for her, and requested that PW1 contact Mary. PW1 neither visited the deceased immediately nor reported the matter to the police. 4.She further testified that on 24th February 2024 she learnt from the accused’s brother that the deceased’s condition had worsened. On visiting, she found the accused and Mary taking the deceased to Kapsokwony Hospital. She observed that the deceased was unable to speak and later learnt that she had died on 25th February 2024. Although she did not attend the post-mortem examination, she noticed swelling at the back of the deceased’s head. She also stated that when she confronted the accused, he asked how she had learnt that he had beaten the deceased. 5.During cross-examination, PW1 admitted that the deceased had not stated the exact date of the alleged assault and that PW1 had not asked. She also conceded that she had not immediately visited or reported the incident, nor had she produced any phone records or the deceased’s phone number to verify the alleged telephone conversation. She further acknowledged that the deceased had consumed alcohol and that the deceased and the accused had been married for about thirty years and had seven children. 6.PW2, Mary Chepkwemoi Chebor, testified that the deceased, her sister, telephoned her on 22nd February 2024, informing her that the accused, her husband, had struck her on the head and asking her to come. On 24th February 2024, PW2 visited the deceased's home and found her unable to speak. Despite repeatedly asking what had happened, the deceased only pointed to her head. PW2 observed a small injury on the deceased's head and, together with the accused, accompanied the deceased to Kapsokwony Hospital. She later identified the accused in court as the person the deceased had named as her assailant. 7.During cross-examination, PW2 admitted there were no visible injuries, despite the deceased repeatedly pointing to her head. She remained with the deceased in hospital until her death and confirmed that the deceased had called her on 22nd February 2024 to report she had been beaten. However, she acknowledged that she neither visited the deceased immediately nor reported the matter to the police, and did not produce the deceased's phone number or phone records to verify the alleged conversation. 8.PW2 further testified that the deceased and the accused had seven children and occasionally quarrelled, although she did not know the cause of their disagreements. She acknowledged that the deceased consumed alcohol, that the accused was present at the deceased’s home and at the hospital, and that she did not witness the alleged assault. She conceded that her belief that the accused was responsible was based on suspicion and that the family reported the matter to the police for investigation. 9.PW3, Rodgers Nsamburi, testified that the deceased was his sister and the accused was his brother-in-law. He stated that he received information from his sisters that the deceased had been admitted to Kapsokwony Hospital in critical condition. He proceeded to the hospital, where the deceased later died at about 4.00 p.m. 10.He further testified that his sisters informed him that the deceased had been assaulted, prompting the family to report the matter to the police. PW3 attended the post-mortem examination, during which head injuries were observed, and identified the Post-Mortem Form (Prosecution Exhibit 1). He also identified the accused in court. 11.During cross-examination, PW3 admitted that he had not witnessed the alleged assault and had attended the post-mortem examination only after the deceased’s body had been placed on the examination table. He further acknowledged that the deceased’s liver was green in colour and that she was a habitual drinker. 12.PW4, Dr. Edward Simiyu Wafula, a Medical Officer at Bokoli District Hospital, testified that he conducted the post-mortem examination of the deceased's body on 9th March 2024 at Sannte Funeral Home. He observed skull swelling, blood in the front part of the brain, brain swelling, a moderately enlarged heart, and a greenish liver. He concluded that the cause of death was a brain injury resulting from blunt force trauma and produced the post-mortem report as Prosecution Exhibit 1 (PMFI 1). 13.During cross-examination, PW4 acknowledged that the deceased's enlarged heart and greenish liver were abnormal and could have resulted from prolonged alcohol use, medication, or hypertension, and that these conditions were capable of causing death. He further stated that the skull swelling could have resulted from blunt trauma, including a fall. 14.Upon re-examination, PW4 maintained that the deceased died from a brain injury caused by blunt force trauma. He explained that the injury was consistent with blunt force rather than a penetrating wound and could occur if a person fell after being pushed. He emphasized that although the deceased may have had underlying medical conditions, including hypertension and liver abnormalities, those conditions did not cause her death, which, in his expert opinion, resulted from blunt force trauma to the brain. 15.PW5, Titus Maywa Chepkerui, an Administration Police Officer and the deceased’s brother-in-law, testified that on 9th March 2024 he attended Sannte Mortuary, where he identified the body of Judith Cherotich before Dr. Edward Simiyu Wafula conducted the post-mortem examination. 16.During cross-examination, he reiterated that the deceased was his sister-in-law and neighbour. He confirmed that the deceased’s body had been placed on the examination table and that they assisted in carrying it before the post-mortem examination commenced. 17.PW6, P.C. Martin Mutunga, the investigating officer, testified that on 26th February 2024 he arrested the accused, Peter Chebii alias Bonoi, at Kapsokwony Hospital after receiving instructions that the accused was a murder suspect. His investigations revealed that on 22nd February 2024 the accused had allegedly assaulted the deceased during a domestic dispute. He stated that the deceased’s sisters informed him that the deceased had told them about the assault and had complained of head and chest pain before her death. PW6 further testified that he attended the post-mortem examination, which concluded that the deceased died from a brain injury caused by blunt force trauma. Based on the investigations, the accused was charged with murder. 18.During cross-examination, PW6 acknowledged that the accused denied assaulting the deceased and that the sole alleged eyewitness to the incident could not be traced. He admitted that he neither obtained the deceased’s phone number nor retrieved call records to verify the alleged conversations between the deceased and her sisters. He also conceded that he did not investigate the deceased’s medical history or obtain her medical records, nor did he establish the duration of the marriage or the number of the couple’s children. 19.Upon re-examination, PW6 stated that the prosecution was at liberty to call the deceased's sisters as witnesses. He confirmed that the post-mortem report disclosed only a brain injury and acknowledged that, being neither a doctor nor in possession of the deceased's medical records, he could not determine whether the deceased had any underlying illness. DEFENCE CASE 20.DW1, Peter Chebii Ndiwa, denied murdering his wife, Judith Cherotich, and testified that they had been married since 1987 and had seven children. He stated that they had lived peacefully throughout their marriage and that he loved the deceased. He further testified that when the deceased fell ill on 23rd February 2024, he took her to Kaptama Hospital for treatment and returned with her for review the following day. As her condition deteriorated, he rushed her to Kapsokwony Hospital, where she later died. He maintained that he paid her hospital bill and denied ever assaulting her. 21.DW1 further testified that the deceased had been HIV-positive since 2015, had consumed excessive alcohol, and had not consistently adhered to her antiretroviral medication. He produced her HIV treatment records and medical documents to support his defence. He denied confiscating her phone or preventing her from contacting her family, maintaining that she did not own a phone. He asserted that allegations of assault emerged only after her death. 22.During cross-examination, DW1 reiterated that he had never assaulted the deceased and dismissed the prosecution witnesses’ allegations as fabricated. He suggested that the deceased’s sisters stood to benefit from his imprisonment by gaining access to his land. He acknowledged that the deceased had suffered from headaches, back pain and high blood pressure before her death, and admitted that head swelling could result from an assault. He also accepted the doctor’s conclusion that the deceased died from a brain injury caused by blunt force trauma, but denied inflicting the injury. He conceded that he was not medically qualified to interpret the deceased’s treatment records. 23.DW1 further testified that the deceased was conscious, able to speak and dress herself when they went to hospital, and was not intoxicated. He denied that neighbours had gathered because he was assaulting her, maintaining that they had merely come to visit the deceased and to request the use of his motorcycle. He insisted that he never assaulted the deceased. 24.DW2, Alice Sam Mutali, a Clinical Officer at Mt. Elgon Sub-County Hospital, testified that she treated the deceased on 24th February 2024 after admission with severe headache, back pain, vomiting, confusion, weakness, dehydration and neck stiffness. She assessed the deceased using the Glasgow Coma Scale, assigning a score of 14/15, which suggested either a head injury or an advanced disease process. Based on her examination and laboratory investigations, she diagnosed the deceased with cerebral malaria. Tests also confirmed syphilis, and further inquiries established that the deceased was a known HIV-positive patient. Despite treatment, the deceased’s condition deteriorated, and she died on 25th February 2024. A Death Notification Form recorded cerebral malaria as the cause of death. 25.DW2 testified that she observed no external injuries to the deceased's head during the examination. She explained that cerebral malaria, neurosyphilis, trauma and hypertension could all cause brain swelling and blood clots, and opined that the pathologist did not have access to the deceased’s complete medical history when conducting the post-mortem examination. She produced the deceased’s admission notes, inpatient records, laboratory results, nursing records, treatment sheets and death notification form as defence exhibits. 26.During cross-examination, DW2 stated that the deceased told her the headache and back pain had developed gradually over several days and that she had not reported being assaulted. She acknowledged that although victims of domestic violence may fail to disclose abuse, she found no visible injuries on the deceased. She maintained that while the deceased’s condition could have been consistent with a head injury, only the pathologist was qualified to determine the cause of death. She also accepted that a person who had been assaulted could exhibit symptoms such as vomiting, confusion and bleeding in the brain, but stated that she could not determine whether the deceased had been assaulted. 27.Upon re-examination, DW2 reiterated that she could not challenge the post-mortem findings and could only testify to her clinical observations and treatment records. She maintained that she observed no signs of physical assault, that the deceased had never informed her of being beaten, and that the Glasgow Coma Scale score of 14/15 indicated neurological impairment that could result from either physical trauma or physiological illness. Thereafter, the defence closed its case. Submissions 28.The prosecution, in their submissions dated 2nd December 2025, argued that they had proved the charge of murder against the accused beyond reasonable doubt. They submitted that the death of the deceased was established through the evidence of PW5, who identified the deceased’s body before the post-mortem examination, as well as PW1, PW2 and PW3, who all confirmed that the deceased had died. 29.Regarding the cause of death, the prosecution relied on the evidence of PW4, Dr. Edward Simiyu Wafula, who testified that the post-mortem examination revealed swelling of the skull, swelling of the brain and blood clots, leading to the conclusion that the deceased died from a brain injury secondary to blunt force trauma. They submitted that although the deceased had a greenish liver, which could have resulted from prolonged medication or alcohol consumption, those conditions did not cause her death. The prosecution further argued that the accused's defence, attributing the death to alcohol abuse or illness, was displaced by the medical evidence linking the death to blunt force trauma. 30.Regarding the accused’s involvement, the prosecution submitted that PW1 and PW2 testified that the deceased had telephoned them, stating that the accused had assaulted her and that she later succumbed to the injuries. They argued that these statements constituted dying declarations, corroborated by the surrounding circumstances, including the deceased’s deteriorating condition, the medical evidence, and the investigations conducted by PW6. The prosecution relied on the decision in R v Leonida Mongina Kebane, HCCR No. 15 of 2020 (Nyamira), to support the proposition that statements made by a deceased person concerning the cause or circumstances of his or her death are admissible as dying declarations. 31.The prosecution further submitted that the accused’s allegation that PW1 and PW2 had falsely implicated him to benefit from his land was an afterthought, unsupported by any evidence. They also argued that DW2's attempt to attribute the deceased’s death to illness was undermined during cross-examination, particularly because she had not conducted the post-mortem examination and acknowledged that the pathologist was best placed to determine the cause of death. 32.The prosecution therefore urged the court to find that the offence of murder had been proved beyond reasonable doubt, to convict the accused, and to sentence him accordingly. 33.In their submissions dated 9th December 2025, the defence argued that the prosecution failed to prove the offence of murder beyond reasonable doubt. They submitted that under Sections 203 and 206 of the Penal Code, the prosecution was required to prove the deceased’s death, that the accused caused it by an unlawful act, and that he acted with malice aforethought. Relying on constitutional provisions, the Evidence Act, and authorities including Woolmington v DPP (1935) A.C. 462, Republic v Silas Magongo Onzere alias Fredrick Namema (2017) eKLR, Mwangi v Republic (Criminal Appeal E009 of 2023) [2024] KEHC 4728 (KLR), Moses Nato Raphael v Republic (2015) eKLR, and Joseph Githua Njuguna v Republic (2016) eKLR, the defence maintained that the burden of proof rested entirely with the prosecution throughout the trial. 34.The defence conceded that the deceased died but challenged the prosecution's case on the cause of death. They submitted that although the pathologist concluded that the deceased died from a brain injury due to blunt force trauma, he also acknowledged an enlarged heart and a greenish liver, both associated with prolonged alcohol use, medication or hypertension. The defence relied on DW2's evidence that the deceased suffered from cerebral malaria, HIV and syphilis, all of which could cause brain injury, swelling and death. They argued that the medical evidence did not conclusively exclude these underlying illnesses as the cause of death and therefore failed to establish beyond reasonable doubt that the deceased died from injuries sustained in an assault. 35.Regarding whether the accused caused the deceased’s death, the defence submitted that there was no direct evidence linking him to the alleged assault. They argued that the evidence of PW1 and PW2, who claimed the deceased telephoned them alleging she had been assaulted, was unsupported by phone records or call logs and therefore lacked corroboration. The defence further contended that the alleged statements did not qualify as reliable dying declarations, relying on Choge v Republic (1985) KLR 1, and emphasised that no eyewitness to the alleged assault was traced. The defence maintained that the prosecution’s case rested solely on circumstantial evidence, which failed to form a complete chain pointing irresistibly to the accused’s guilt, citing Victor Owich Mbogo v Republic (2020) eKLR, Republic v R M (2018), Republic v Victoria Mueni Kioko, and Mary Wanjiku Gichira v Republic, Criminal Appeal No. 17 of 1998. The defence argued that the evidence amounted to mere suspicion and speculation, which could not sustain a criminal conviction. 36.Regarding malice aforethought, the defence submitted that the prosecution adduced no evidence demonstrating that the accused intended to cause the deceased’s death or grievous harm. They argued that none of the prosecution witnesses established the existence of malice aforethought and relied on Nzuki v Republic [1993] KLR 171 and Joan Chebii Sawe v Republic (2003) KECA 182 to contend that material evidentiary gaps and suspicion alone could not support a conviction for murder. 37.The defence submitted that the prosecution had failed to prove the offence of murder beyond reasonable doubt and urged the court to acquit the accused. Analysis And Determination 38.In a case of murder, this court is to determine whether the ingredients of the offence of murder, as provided for under Section 203 of the Penal Code, have been proved beyond reasonable doubt by the prosecution. 39.Section 203 of the Penal Code Chapter 63 of the Laws of Kenya 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. 40.The section sets out the elements of the offence of murder that must be proved by the prosecution 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.” Death of the Deceased 41.The deceased’s death was not disputed. PW1, PW2 and PW3 all testified that Judith Cherotich died on 25th February 2024 while undergoing treatment at Kapsokwony Hospital. PW5 identified the deceased’s body before the post-mortem examination, which was conducted by PW4. Death was caused by an unlawful act or omission 42.PW4, the pathologist, observed skull swelling, blood in the frontal part of the brain, and brain swelling. Although he also noted a greenish liver and a moderately enlarged heart, he categorically concluded that the cause of death was brain injury secondary to blunt force trauma. During cross-examination, he acknowledged that the liver and heart abnormalities were capable of causing death, but upon re-examination he remained firm that those conditions did not cause the deceased's death. 43.On the other hand, DW2, the Clinical Officer who treated the deceased, diagnosed cerebral malaria and testified that laboratory tests confirmed malaria, HIV infection and syphilis. She explained that these conditions could also cause neurological symptoms and brain swelling. However, she candidly admitted that she was not qualified to contradict the pathologist's findings and repeatedly acknowledged that only the pathologist could conclusively determine the medical cause of death. 44.The law is settled that, where post-mortem evidence is available, the pathologist's opinion ordinarily carries greater evidential weight on the cause of death than clinical observations made before death. In Chengo Nickson Kalama v Republic [2015] KECA 196 (KLR), the Court of Appeal observed that:“The position then appears to be that save in very exceptional cases …, it is absolutely necessary that death and the cause thereof be proved beyond reasonable doubt and that can only be achieved by production of medical evidence and in particular, a postmortem examination report of the deceased.” 45.Although DW2 suggested alternative medical explanations, she neither conducted the post-mortem nor disputed the pathological findings. Her evidence merely showed that the deceased had significant underlying illnesses. PW4 considered those illnesses but nevertheless concluded that they did not cause death. 46.This court therefore finds that the prosecution proved beyond reasonable doubt that the deceased died and that the immediate cause of death was a brain injury secondary to blunt force trauma. Whether the accused caused the unlawful death of the deceased. 47.There was no eyewitness to the alleged murder. The prosecution relied primarily on the alleged statements made by the deceased to PW1 and PW2, the medical evidence and the surrounding circumstances. 48.Regarding the alleged dying declaration, PW1 and PW2 testified that on 22nd February 2024 the deceased telephoned them separately, informing them that the accused had beaten her by striking her head. Section 33(a) of the Evidence Act renders admissible statements made by a deceased person regarding the cause or circumstances of his death. 49.The Court of Appeal in Simon Kiptum arap Choge & 3 others v Republic [1984] KECA 4 (KLR) held that: -“This opinion of the learned authors receives support from the following portion of the judgment of the Court of Appeal for Eastern Africa in Pius Jasanga s/o Akumu v R (1954) 21 EACA 331 at 333:‘… It is not a rule of law that, in order to support a conviction, there must be corroboration of a dying declaration (R v Eligu s/o Odel and another (1943) 10 EACA 9; Re Guruswani[1940] Mad 158 … 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.’…As regards the probative force of a dying declaration the court said:‘Although there is no rule of law that to support a conviction there must be corroboration of such statements, it is generally recognized that it is very unsafe to base a conviction solely on them.’ 50.In the present case, several matters undermine the reliability of the alleged dying declarations. First, neither PW1 nor PW2 produced any call data, mobile phone number or call records, despite admitting they possessed mobile phones. Secondly, the investigating officer (PW6) admitted that he never attempted to retrieve call data or even establish the deceased’s telephone number. Thirdly, neither witness immediately reported the alleged assault to the police, despite allegedly learning of it on 22nd February 2024. Fourthly, PW2 candidly admitted during cross-examination that she never witnessed the assault and that her belief that the accused assaulted the deceased was based on suspicion. These omissions substantially diminish the evidential value of the alleged telephone conversations. 51.Since there was no direct evidence, the prosecution case rests substantially on circumstantial evidence. The applicable principles are well settled. In Sawe v Republic [2003] KECA 182 (KLR), the Court of Appeal held that: -“… suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence.” 52.In Abanga alias Onyango v Republic, Cr. App. No. 32 of 1990, the court stated that: -“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and none else.” 53.In the present case, significant gaps exist. The investigating officer admitted that no eyewitness was identified, no call records were obtained, no investigation was conducted into the deceased's medical history, and no independent witness linked the accused to the alleged assault. Equally significant is that the accused himself took the deceased for treatment, accompanied her to hospital, and remained there until after her death. Such conduct is not necessarily inconsistent with guilt, but neither does it strengthen the prosecution case. DW2 also testified that the deceased never reported being assaulted, despite being privately interviewed away from her husband. While victims of domestic violence may indeed fail to disclose abuse, the absence of such disclosure is nevertheless a relevant circumstance. Therefore, the chain of circumstantial evidence is incomplete. 54.Regarding whether the prosecution excluded other reasonable hypotheses, the defence produced substantial medical evidence showing that the deceased suffered from cerebral malaria, HIV infection, syphilis, hypertension, an enlarged heart, and an abnormal liver. Although the pathologist did not accept these illnesses as the immediate cause of death, they remained relevant to determining whether the prosecution proved beyond reasonable doubt that the accused inflicted the fatal injury. 55.PW4 accepted that blunt force trauma could result from a fall. However, no evidence established when, where, how, or by whom the injury occurred. 56.In Republic v Kipkering Arap Koske & another (1949) 16 EACA 135, the court held that: -“In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused.” 57.Though the court accepts that the deceased died from blunt force trauma, it is not persuaded beyond reasonable doubt that the prosecution proved it was the accused who inflicted that injury. Malice aforethought 58.Section 206 of the Penal Code defines malice aforethought as follows: -Malice aforethought shall be deemed to be established by evidence proving anyone 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 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 act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony. 59.Since the prosecution has failed to prove that the accused inflicted the fatal injury, the question of malice aforethought does not arise. 60.In conclusion, this court finds that the prosecution failed to prove the charge of murder against the accused beyond reasonable doubt. The accused, Peter Chebii Ndiwa, is found not guilty of the offence of murder of Judith Cherotich and is accordingly acquitted. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF JULY 2026R.E. OUGOJUDGEIn the presence of: -Peter Chebii Ndiwa/ AccusedMiss Wakoli -For the for the AccusedMiss Matere -For the State/ ODPPWilkister /Minah -C/A