https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7495

Republic v Ndung’u (Criminal Case E012 of 2023) [2026] KEHC 7495 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 7495 (KLR) Republic of Kenya In the High Court at Kitale Criminal Case E012 of 2023 RK Limo, J June 3, 2026 Between Republic Prosecutor and Simon Kefue Ndung’U Accused Judgment 1.Simon Kefue Ndung’u, the accused herein is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars in the charge are that on the 26/2/2023 at Gituamba within Trans-Nozia County murdered Everlyne Chebet (the deceased herein). 2.The accused denied committing the offence and the prosecution has presented 5 witnesses to prove their case which mainly is hinged on circumstantial evidence. 3.John Kijabi (PW1) a neighbour to the deceased stated that his house was adjacent to that of the accused and the deceased who was married to the accused. He stated that on 7/12/2022 at around 9pm as he was taking tea with his 2nd wife, the wife told him that the accused and the deceased were quarrelling and fighting. That when the wife (deceased) came out of their house at around 10am, he noticed that she was weak and walking with difficulty due to beatings. 4.He stated that he watched her go to a neighbour named Baba Kafu and stayed there for a while. That the wife of Baba Kafu went and told him and his wife that the condition of the deceased was getting worse. He stated that he went there and saw that the deceased had a swollen leg and looking very weak. That she could not talk. That they tried giving her some tea in vain. He stated that he then mobilized neighbours to raise funds for medical attention. That they raised funds and rushed the deceased to Gituamba Dispensary where the nurse there referred the deceased to Kapsokwony hospital due to her bad condition. 5.He stated that they arranged for boda boda transport to ferry the deceased to Kapsokwony Hospital for treatment and that that was the last time he save her alive. 6.He clarified under cross-examination that the deceased was beaten on the night of 6/12/2022 and he arrived at his house on 7/12/2022 in the morning upon which his wife told him that the deceased had been beaten the previous night. He stated that his wife however did not record a statement. 7.Dr. Dennis Nanyingi (PW2) the doctor who conducted Post Mortem examination on the body of the deceased stated that he did so on 10/3/2023. The doctor stated that he made the following observations upon autopsy;a.Externallyi.Peripheral cyanosis of the finger nails (nails darkened because of lack of oxygen).ii.Bed sores grade II.b.Internallyi.Lungs were in semi-collapse state.ii.Heart darkened with blood clots (indicative of heart failure).iii.Scalp hematoma on the frontal head and right temporal parietal area.iv.Right temporal skull fracture.v.Blood clots between skull and brain (brain compressed). 8.The Doctor concluded that the deceased’s cause of death was a head injury/heart failure with clots secondary to assault by a blunt object. He stated that he signed Post Mortem and he tendered it as PExhibit 1 and that he issued a Burial Permit serial number 0151542. 9.Stephen Kimutai Chesiro (PW3) testified that he was a security officer at Kapsokwony primary school and that he was a brother in law to the deceased. That on 8/12/2022 at around 5pm while he was working at the said primary school, the deceased was taken to him in bad state of health by Kijabi (PW1) using a boda boda. He stated that he was informed that his sister in law (deceased) had been beaten by her husband and was unable to stand on her own. He stated that he knew that his sister in law (deceased) was living with the accused as husband and wife. 10.He stated that the deceased was then taken to Kapsokwony District Hospital and paid the medical charges required but doubted if she could make it. 11.He stated that he later took her to his home where his wife was afraid to feed her forcing him to feed her himself. He stated that the following day he called his father in law and together they went to Gituamba police station to report but the police officers were uncooperative. That he proceeded to Saboti police station where he sought and got help. 12.He stated that the accused person was arrested and he escorted the deceased to Kitale Referral Hospital where she later succumbed. 13.He conceded under cross-examination that the deceased used to drink alcohol though moderately and that she was taken to him when she was very weak. 14.Morris Ijaka (PW4), the father to the deceased recalled that on 9/12/2022 he received reports that his daughter (deceased) was admitted in hospital. That he went to hospital and found her in bad state as she was not eating or talking. That he proceeded to report to the police and proceeded home. 15.He stated that he was later informed that his daughter had died. He recalled that when he last saw her in hospital her leg was injured and oozing pus. He stated that deceased used to live with accused as his wife and saw him going to hospital taking food to her. 16.PC Joseph Magari Watida (PW5) testified that on 22/12/022 he received a report of assault causing actual bodily harm to Everlyne Chebet (deceased). He stated that the deceased was accompanied by Morris Ijaka (PW4) and was in bad shape as she could not talk or walk. That the report made was that she had been assaulted by her husband. He stated that after booking the report he directed that the deceased be taken to health centre. 17.He stated that he took statements of witnesses and issued to a P3 Form to the father of the deceased since they were then investigating a case of grevious harm. 18.He stated that the accused was arrested on 30/1/2023 and arraigned with a holding charge of assault. He stated that the deceased succumbed to the injuries on 26/2/2023 upon which they applied to have the charge of assault withdrawn so that he could face murder charge. 19.He clarified under cross-examination that when the deceased was taken to the police station to report, she was unconscious. He stated that he recorded statements from witnesses. 20.When placed on his defence the accused denied being married to the deceased or having any relationship with her. He further denied assaulting her. He stated that he knew Kijabi (PW1) and had never differed with him and therefore he could not be having any reason to lie. 21.At the close of the trial both counsels on record opted not to put in any final submissions and left the matter to this court for determination. 22.The accused person as observed above is charged with the offence of murder contrary to Section 203 of the Penal Code and for a charge of murder to be sustained, prosecution is required to establish prove the following ingredients;i.Fact of death and its cause.ii.Actus reus or that the unlawful act causing death was caused by acts of omission or commission of the accused.iii.Mens rea or malice afterthought. 23.(i)Fact of death and its cause.This element is clearly established in this case. The evidence of PW1, PW3 and PW4 regarding death and its cause is clearly corroborated by the medical evidence tendered by Dr Nanyingi (PW2). The doctor tendered the Post Mortem Form (PExhibit 1) which shows that the cause of death of the deceased was head injury/heart failure with clots caused by a blunt object secondary to assault. 24.It is clear therefore that the deceased did not die of natural causes but the death was deliberately caused by unlawful acts of a person. The deceased’s body was said to have bed sores but that probably was caused by long hospitalization and probably lack of proper medical care. She was assaulted on 22/12/2022 and succumbed on 26/2/2023 which is a period of two months. This court finds that the element of fact of death and its cause is well established and proved to the required standard. 25.(ii)Actus reusThe prosecution’s case on the overall was poorly investigated right from the moment the initial report was made at Gituamba Patrol Base. It is apparent from the evidence tendered by Stephen Chesiro and deceased’s father Morris Ijaka (PW4) that the police for unknown reasons never took the matter seriously when they received the initial report. 26.It is quite apparent that perhaps owing to the humble background of the deceased and her family the police never took the matter seriously so much that in the entire investigations, the DCI office was not involved which this court found a bit strange. 27.The way the information was drawn also shows a pattern of lack of diligence because the information indicates that the incident occurred on 26/2/2023 rather than 7/12/2022 when the assault took place. This was perhaps caused by the police as a cover up for their failure to take up the matter seriously when it was reported. 28.The evidence of PW1 however shows that the assault took place on the night of 6/12/2022 because he says he saw the deceased in bad condition in the morning of 7/12/2022. That evidence is consistent with the evidence of PW3 who stated that the deceased, who was a sister in law was taken to him on 8/12/2022 and that when they took her to Gituamba police post to report, the police there were uncooperative forcing him to go to Saboti police station where he eventually got help. 29.That perhaps is the cause of the inconsistencies regarding the actual date of the incident. What cannot be denied however is that the deceased was living with the accused as a wife and as narrated by PW1 there was a fight on night of 6/12/2022 between the accused and the deceased and the following day the deceased was seen walking with difficulty with a swollen leg. The circumstances surrounding the assault clearly points to the accused. 30.When placed in his defence, the accused simply denied assaulting the deceased or even living with her contrary to the evidence of a neighbour (PW1), PW3 and (PW4) the deceased’s father. The prosecution witnesses were categorical that the deceased and the accused lived as a husband and wife. Given the evidence of PW1, this court despite the discrepancies noted which were caused by lackluster police officers at Gituamba, finds that the circumstances obtaining points to none else but the accused as the person who caused the fatal injuries from which the deceased later died. 31.This court finds that every person under Article 27(1) of the Constitution is entitled to equal protection and equal benefit of the law regardless of status. The deceased’s family may be from a humble background but have a right to access justice under Article 48 of the Constitution and unfortunately the police in this matter owing to indifference failed to facilitate that right. This court finds that under the provisions of Section 382 of Criminal Procedure Code the errors with respect to the anomalies on the date of incident on the charge sheet are curable because there is no prejudice or miscarriage of justice occasioned to the accused person. 32.This court finds that from the evidence tendered including belated police reports (PExhibit 3), the evidence of actus reus is proved beyond any reasonable doubt. The accused lived alone with the deceased and he is the only one who caused the fatal injuries that made the deceased unable to walk or talk the following day. The element of actus reus has been proved beyond any doubt. 33.(iii)Malice aforethoughtThere is no evidence adduced indicating that the accused haboured ill motive against the deceased. However given the serious injuries sustained by the deceased malice can be inferred under Section 206 of the Penal Code. Section 206 Penal Code provides 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”.The injuries noted by PW1, PW3 and PW4 and corroborated by medical evidence (Pexhibit 1) Post Mortem shows that the person causing injuries intended to cause grevious harm to the deceased. 34.This court is satisfied that the prosecution’s case against the accused has been proved beyond reasonable doubt. He caused the murder of his wife or partner for reasons best known to him and he is hereby found guilty and convicted accordingly. DELIVERED, DATED AND SIGNED AT KITALE THIS 3RD DAY OF JUNE , 2026.HON JUSTICE R.K. LIMOKITALE HIGH COURTJudgment delivered in open courtIn the presence ofWekhuyi for the accusedMugun for the StateDuke/Chemosop – court assistants