https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11036

Republic v Ndombi (Criminal Case E028 of 2017) [2026] KEHC 11036 (KLR) (21 July 2026) (Judgment) Neutral citation: [2026] KEHC 11036 (KLR) Republic of Kenya In the High Court at Kakamega Criminal Case E028 of 2017 S Mbungi, J July 21, 2026 Between Republic Prosecutor and John Ndombi Accused Judgment 1.The accused, John Ndombi, was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge were that on 30th July 2017 at Imbumbi Village, Malinya Sub-location, Kakamega South Sub-County within Kakamega County, he murdered Dennis Ingosi Luka. 2.The accused pleaded not guilty. The prosecution called four witnesses before closing its case. The court subsequently ruled that the accused had a case to answer under section 306(2) of the Criminal Procedure Code. The accused elected to give sworn evidence and called no witnesses. Issues For Determination 3.Having considered the evidence, submissions and the applicable law, the issues for determination are:a.Whether the death of the deceased and its cause were proved.b.Whether the deceased’s death resulted from an unlawful act.c.Whether it was the accused who committed the unlawful act.d.Whether the accused acted with malice aforethought. Analysis And Determination 4.Section 203 of the Penal Code provides:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 5.The prosecution must therefore prove beyond reasonable doubt:i.the fact of death;ii.the cause of death;iii.that the accused caused the death by an unlawful act; andiv.that the accused acted with malice aforethought. 6.This principle was reiterated by the Court of Appeal in Anthony Ndegwa Ngari v Republic [2014] eKLR.‘The burden throughout remains upon the prosecution and never shifts to the accused except in circumstances expressly provided by law. Whether death and cause of death were proved 7.PW1, Dr. Dickson Mchana, a consultant pathologist, conducted the post-mortem examination. He observed numerous injuries including; two deep cut wounds to the head; a stab wound on the face; several cut wounds on both upper limbs; fractured jaws; fractured hand bones; bruises;whip marks; severed major blood vessels of the neck, face and upper limbs. 8.He formed the opinion that death resulted from external blood losssecondary to mixed force injuries following assault. The post-mortem report was produced as Exhibit 1. 9.PW3 and PW4 identified the body and confirmed that the deceased died shortly after the assault. The medical evidence was neither challenged nor contradicted. 10.The court therefore finds that both the fact and cause of death were proved beyond reasonable doubt. Whether the death resulted from an unlawful act 11.Nothing in the evidence suggests that the deceased died accidentally or from natural causes. The extensive injuries inflicted using a sharp weapon clearly demonstrate an unlawful assault. 12.In Republic v Andrew Mueche Omwenga [2009] eKLR, the court observed that where death results from deliberate assault with a lethal weapon, unlawfulness is presumed unless justified by law. There was no evidence of lawful justification. 13.This ingredient is proved. Whether the accused caused the deceased’s death 14.This is the central issue. The prosecution principally relied on the evidence of PW2 who testified that after hearing screams he proceeded to the accused’s premises. He found people fighting and he saw the deceased emerge from the accused’s house while bleeding. 15.He further testified that: the accused followed the deceased; the accused was armed with a panga; he saw the accused cut the deceased several times; the deceased fell down; the accused walked back home. 16.PW2 knew both the accused and the deceased before the incident. His identification therefore amounted to recognition. In Anjononi & Others v Republic [1980] KLR 59, the Court of Appeal held that recognition of a person previously known to the witness is generally more reliable than identification of a stranger. 17.PW2 was extensively cross-examined. Although he admitted he did not know what transpired inside the accused’s shop, he remained firm that he personally witnessed the accused chase and repeatedly cut the deceased outside. His testimony remained consistent. 18.The evidence of PW2 is corroborated by several surrounding circumstances. First, PW3 testified that he received information immediately after the incident that the deceased had been attacked and found him with multiple cut wounds. 19.Secondly, PW4 testified that upon reporting to the police she learnt that the accused had surrendered himself. Thirdly, PW4 testified that the murder weapon was recovered from the accused’s pit latrine after the accused directed police to it. 20.Although the officer who recovered the weapon was not called, the evidence that the accused surrendered immediately after the incident is a relevant piece of circumstantial evidence consistent with the prosecution case. 21.More importantly, the medical evidence perfectly matches PW2’s account that the deceased was repeatedly cut using a panga. 22.The accused denied cutting the deceased. He claimed: the deceased entered his shop; people were discussing football; a fight ensued; he merely attempted to separate them; he found a panga lying on his legs; he did not know who cut the deceased. 23.This version is wholly implausible. If indeed another person had inflicted the fatal injuries inside his shop, the accused would reasonably have identified or at least described that assailant. He did neither. 24.His account is also inconsistent with PW2’s direct eyewitness testimony that he saw the accused pursue and cut the deceased outside until he collapsed. 25.The accused also alleged he sustained injuries but produced no treatment notes or medical evidence. The court finds the defence to be a mere denial incapable of displacing the cogent prosecution evidence. 26.As was stated in Republic v Ismail Hussein Ibrahim [2018] eKLR, a mere denial does not rebut credible and consistent prosecution evidence. 27.The court is therefore satisfied that the prosecution proved beyond reasonable doubt that it was the accused who inflicted the fatal injuries. Whether malice aforethought was established 28.Section 206 of the Penal Code provides that malice aforethought is established where there is intention to cause death or grievous harm, or knowledge that death or grievous harm will probably result. 29.The Court of Appeal in Rex v Tubere s/o Ochen (1945) 12 EACA 63 stated that malice aforethought may be inferred from: the nature of the weapon used; the manner in which it was used; the part of the body targeted; the nature and severity of injuries. 30.The accused used a panga, repeatedly struck the deceased on the neck, the head, and both hands. The injuries included fractured jaws, severed blood vessels and multiple deep cuts. These were not defensive or accidental injuries.The attack was prolonged and vicious. 31.PW1 even expressed the opinion that the injuries suggested involvement of more than one assailant owing to their multiplicity and severity. Nevertheless, whether others participated does not absolve the accused because the evidence establishes that he personally inflicted several fatal injuries. 32.The repeated targeting of vulnerable parts of the body demonstrates a clear intention at the very least to cause grievous bodily harm. 33.In Bonaya Tutu Ipu & Another v Republic [2015] eKLR, the Court of Appeal reiterated that repeated blows directed at vital parts of the body using dangerous weapons are sufficient proof of malice aforethought. 34.The court therefore finds malice aforethought proved. 35.The prosecution evidence consisted of direct eyewitness testimony, medical evidence fully corroborating the assault, immediate conduct of the accused after the incident and the recovery of the suspected murder weapon from the accused’s homestead. Against this, the accused offered only an unsupported denial. 36.The court is satisfied that the prosecution proved beyond reasonable doubt that:i.Dennis Ingosi Luka died.ii.He died from massive haemorrhage due to multiple sharp force injuries.iii.The injuries were unlawfully inflicted by the accused.iv.The accused acted with malice aforethought as defined under section 206 of the Penal Code. 37.Accordingly, I find the accused John Ndombi Guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. 38.He is hereby convicted under section 322(2) of the Criminal Procedure Code. 39.Right of Appeal 14 days. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 21ST DAY OF JULY, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Angog’a/VelmaMs. Emily Kiu for ODPP.Mr. Khayumbi for the accused absent though aware of the Judgment date; the accused says he said he doesn’t have fuel to come to court.