https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8901

Republic v Nguen (Criminal Case E001 of 2024) [2026] KEHC 8901 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 8901 (KLR) Republic of Kenya In the High Court at Lodwar Criminal Case E001 of 2024 PJO Otieno, J June 12, 2026 Between Republic Prosecutor and Taniem Mor Nguen Accused Judgment 1.The accused person 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 given to be that on 17th February 2024, at Kakuma Refugee Camp in Turkana West Sub-County within Turkana County, he murdered one JAL CHUOL GAI (hereinafter referred to as “the deceased”). 2.The accused person pleaded not guilty to the charge. In an effort to discharge the burden of proof placed upon it under section 107(1) of the Evidence Act, the prosecution called six (6) witnesses. 3.PW1 was Nyuon Gany who gave sworn evidence and testified that he resided at Kakuma 4, Block 1 Zone, within Kakuma Refugee Camp. He recalled that on 17th February 2024 at about 7:00 a.m., two football teams; Tiger and Simba, were playing a match at the Kakuma 4 playground. He was among the players and was in the company of his two brothers, including the deceased. 4.He testified that the match ended in a draw and proceeded to penalties, during which the deceased scored the winning goal for Team Tiger. Thereafter, the deceased moved to the edge of the field to change his clothes. It was at that point that he was attacked by four individuals who had been watching the match. 5.PW1 stated that the attackers were armed with machetes and knives. He described one of them as wearing a dotted hat, a yellow T-shirt, and yellow trousers. He further stated that there was sufficient sunlight and that he was able to recognize some of the attackers, including the accused person. He specifically testified that he saw the accused cut the deceased on the head, side, and back using a machete and a knife. Upon witnessing the attack, he ran away while screaming and later informed the elders but the assailants had fled. He added that he learnt the following day that the accused had been arrested by the police. 6.On cross-examination, PW1 stated that he knew the accused by the name Taniem Nguen prior to the date of the incident. He also stated that the attackers had hats and hoods, though he clarified that the hats only covered the top of the head. He testified that he was approximately 15 meters away from the scene and maintained that he was able to see the face of the accused and the clothes he was wearing, although he was unable to identify the other three attackers. 7.He further testified that he ran away upon seeing the deceased lying on the ground and maintained that he saw the accused cut the deceased on the right side of the head more than once. 8.PW2, Chuol Both Lam, also gave sworn evidence and testified that he was a resident of Kakuma 4, Block 1, and a Form Two student at Vision Secondary School, Kakuma. He recalled that on 17th February 2024 at about 7:00 a.m., he was at the football pitch to play football. The players were divided into two teams, namely Team Tiger and Team Simba, and he was playing for Team Simba. 9.He stated that his team initially scored one goal while the opposing team had none, but the other team then equalized after which the match proceeded to a penalty shootout. It was a rule of the game that any player who missed a penalty would pay Kshs. 10/=. He testified that he was responsible for recording the players who missed their penalties, and that the deceased was among those who missed. 10.He further stated that the deceased briefly left the playing area to collect and wear his clothes, after which he returned and stood next to him at the penalty area. After the penalty session ended, the deceased left the pitch but returned shortly thereafter. It was at this point that PW2 heard people shouting that the deceased was being beaten. 11.PW2 testified that he was about three (3) meters away from the scene and observed the accused person attack the deceased. He stated that the accused stabbed the deceased twice, once at the back and once on the chest, and further cut him multiple times on the head, including on the right side. He added that the deceased was attacked by a total of four individuals, all of whom were armed, one with a knife and the others with machetes. 12.He testified that after the attack, the people fled from the scene. He further stated that he knew the accused prior to the incident, having seen him within the community, although the accused was not a player but rather a spectator at football matches. He confirmed that the accused resided within the same locality. PW2 maintained that he witnessed the incident clearly as it occurred during daytime. He also testified that the body of the deceased was subsequently collected by the police. 13.On cross-examination, PW2 reiterated that he was able to clearly see the accused as he was only about three meters away. He added that the accused was dressed in a white shirt at the time of the incident. 14.PW3, Boat Pouk, gave sworn evidence and testified that he was a resident of Kakuma 4, Zone 3, Block 1, and a student at Vision Secondary School. He recalled that on 17th February 2024, he was at the football pitch where a match was played between 7:00 a.m. and 8:30 a.m. 15.He stated that after the match, the players proceeded to a penalty shootout, with a rule that any player who missed a penalty would pay Kshs. 10/=. He testified that the deceased was among those who missed and that he left to change his clothes. As the deceased returned to the pitch, PW3 heard a commotion and people began to flee out of fear. He stated that he initially heard noise before realizing that the deceased had been attacked. He added that the deceased later died and was subsequently buried. 16.On cross-examination, PW3 stated that he had not known the accused prior to the incident and that he did not witness the accused stab the deceased. 17.On re-examination, he reiterated that he had not seen the accused before the date of the incident. Upon further questioning by the Court, he clarified that he did not see the accused at the football pitch on the material day. 18.PW4, Kueth Kuol, gave evidence on oath. He testified that he resided at Kakuma 4, Zone 1, Block 3, and was a Sudanese national living in Kenya as a refugee. He was also a Form Two student at Vision Secondary School. 19.He recalled that on 17th February 2024, a Saturday, he left home to play football at the local pitch. The players were divided into two teams; Team Simba and Team Tiger. The match ended in a draw and proceeded to a penalty shootout, during which it was agreed that any player who missed a penalty would pay Kshs. 10/=. 20.He testified that the deceased missed his penalty and thereafter went to change his clothes about fifteen (15) meters from where PW4 was standing. As the deceased was returning to the pitch, he was attacked by four individuals. PW4 stated that three of the attackers were armed with machetes, while one was armed with a knife. He testified that the assailant armed with a knife stabbed the deceased on the chest and side, and as the deceased attempted to flee, he fell down and was further cut with a machete. 21.PW4 stated that he knew all four attackers as members of the community. He specifically identified the accused as the individual who was armed with a knife and whom he saw stab the deceased. He further testified that he was able to see clearly as the incident occurred in the morning when there was sufficient sunlight. He added that after the attack, the assailants fled and the deceased fell to the ground. The police were later called and subsequently collected the body. 22.On cross-examination, PW4 stated that he had known the accused prior to the incident as they were neighbors within the same community. He further stated that at the time of the incident, the accused was dressed in a red vest. He also confirmed that he had not seen any altercation between the accused and the deceased prior to the attack. 23.PW5 was No. 235140, IP Lawrence Omondi, who testified that he was at the material time the Officer Commanding Station (OCS), Kakuma. He recalled that on 5th March 2024 at about 4:00 p.m., he conducted an identification parade at the request of the investigating officer in respect of one Taniem Nguen, the accused herein. 24.He testified that he assembled eight (8) persons of similar physical appearance to the suspect and constituted an identification parade. He informed the suspect of the purpose of the parade, and the suspect indicated his willingness to participate. The suspect was further informed of his right to have a friend, relative, or advocate present during the parade, which he declined. 25.PW5 stated that the members of the parade were lined up and the suspect was given the opportunity to choose his position, whereupon he elected to stand between positions number three (3) and four (4). The first identifying witness was then called and identified the accused by touching him. 26.He testified that the parade was subsequently rearranged. On the second occasion, the suspect again chose his position within the line and was identified by the second witness. 27.The exercise was repeated a third time, during which the suspect stood between positions number four (4) and five (5), and he was identified by the third witness. 28.On the fourth occasion, the suspect chose to stand between positions number two (2) and three (3). The parade was again reshuffled, and on the fifth occasion, the suspect elected to stand between positions number one (1) and two (2), whereupon he was identified by the fifth witness who stated that he knew him personally. 29.At the conclusion of the exercise, the suspect was asked whether he had any complaints regarding the manner in which the parade had been conducted, to which he responded in the negative. The identification parade forms were duly signed, and the suspect was thereafter returned to the cells. PW5 produced the identification parade form as PEXH 1. 30.On cross-examination, PW5 clarified that only two witnesses were able to identify the suspect, namely Nyuon Gany and Nhial Gatluoth. 31.Upon further questioning by the Court, he stated that Nyuon Gany participated in the first, second, and third identification parades, while Nhial Gatluoth participated in the fourth and fifth parades. He clarified that the same two witnesses were used across all five parades. 32.PW6, No. 111778 PC Harrison Sesi, formerly attached to Turkana West and currently stationed at Thika West, testified as the investigating officer. He recalled that on 17th February 2024 at about 9:00 a.m., he received instructions from Corporal Muli to join other officers from Kakuma Police Station under the command of IP Nzoia. They proceeded to the scene of the incident at Kakuma 4, Zone 1, Block 1, where they found the body of a young man lying dead with visible injuries. 33.Upon making inquiries at the scene, he established that the deceased was one Tal Chuol Gai. On examining the body, he observed multiple injuries, including wounds to the abdomen and back, as well as a deep cut on the cheek. The scene was processed and the body was subsequently removed to the Lodwar Mortuary. 34.PW6 testified that preliminary investigations revealed that the deceased had been playing football prior to the incident and was thereafter attacked by a group of individuals armed with machetes and knives, as a result of which he sustained fatal injuries. He further stated that one of the alleged attackers, identified as Taniem Nguen (the accused), was arrested by officers from Kakuma Police Station within Kakuma 4 Refugee Camp, following intelligence gathered at the scene. 35.He further testified that a post-mortem examination was conducted on the body of the deceased, which confirmed that the cause of death was the injuries sustained during the attack. He produced the post-mortem report as PEXH 2. He also stated that an identification parade was conducted during which several witnesses reportedly identified the accused. 36.On cross-examination, PW6 stated that although the post-mortem report indicated that the deceased died as a result of stab wounds, no weapon was recovered from the accused. He further testified that his investigations suggested that the deceased and the accused had previously been at a camp in Uganda, where it was alleged that the deceased had killed the accused’s brother. He conceded, however, that this information had not been formally recorded in any witness statement. 37.The evidence of PW6 marked the close of the prosecution’s case. Upon consideration thereof, the trial court found that a prima facie case had been established against the accused and accordingly placed him on his defence. 38.The accused person, Taniem Nguen, testified as the sole defence witness and gave sworn evidence. He stated that he is a South Sudanese national residing at Kakuma Refugee Camp, Kakuma 1, Block 7, where he is a student. He further stated that he was, at the material time, a Form Three student. He denied the charge in its entirety. 39.He recalled that on 17th February 2024, between 9:00 a.m. and 10:00 a.m., he was at home in the company of two minors and one adult, engaged in household chores, when he was arrested by police officers. He testified that he was taken to Kakuma Police Station, where he was held for several days before being presented in court. 40.He denied any prior knowledge of the deceased and further denied wearing a white top on the material day. He challenged the prosecution evidence, noting inconsistencies in the witnesses’ descriptions of his clothing, with some stating that he wore a white top while others stated that he wore a red one. He further stated that no weapon was recovered from him at the time of his arrest. He also denied ever having lived in Uganda and stated that his siblings reside in South Sudan. 41.On cross-examination, he stated that he was a Grade Three pupil at Jebel Marra Primary School in Kakuma, adding that the school taught in English and Kiswahili, which he did not fully understand, although he had been promoted to the next grade. He testified that he only learnt of the alleged killing while at the police station following his arrest. He further stated that he was arrested on a Saturday and had therefore not attended school on that day. He maintained that at the time of his arrest, he was in the company of his step-brother and the latter’s three children. He also alleged that the identification parade was influenced. 42.On re-examination, he stated that the identification parade was conducted on 5th March 2024 and that, prior to the parade, he had been held in an ordinary cell together with other remandees. 43.In response to questions from the Court, he stated that he had never been a football player, but only a spectator who enjoyed watching football. That evidence marked the close of the defence case. The court then directed the parties to file written submissions. 44.As at the time of preparing this judgment, only the accused person had filed submissions which the court has had the benefit of reading and appreciating. 45.The accused, in the submissions, identifies two issues for determination by the Court. The first is whether the prosecution discharged its burden of proof beyond reasonable doubt. 46.On that first issue, it is submitted that no evidence was adduced to demonstrate any prior relationship between himself and the deceased, nor was there evidence of any grudge, motive, or conduct indicative of intention to cause death. He further contends that he was arrested at his home and that no murder weapon was recovered from him. 47.Reliance was placed on the decision in Republic v Kibutha Makwalu & Another [2019] eKLR, where the Court held that the prosecution had failed to establish that the death of the deceased was caused by the unlawful act or omission of the accused, noting, inter alia, the absence of the murder weapon and lack of forensic linkage such as footprints connecting the accused to the offence. 48.The second issue raised is whether the accused was sufficiently linked to the offence. He argues that the only evidence connecting him to the charge is the identification parade, yet most of the witnesses had indicated that they did not know him prior to the incident. He submits that such evidence ought to be treated with caution. 49.In this regard, he relies on Juma & Another v Republic [2023] eKLR, wherein the Court emphasized that evidence of identification must be examined with the greatest care so as to avoid the risk of wrongful conviction. 50.The accused further submits that the identification parade was compromised and contends that he was held in police custody for over two weeks prior to the parade and that his photograph had been circulated on WhatsApp before the parade was conducted, thereby prejudicing the fairness of the process. 51.He relies on the decision of the Court of Appeal in Samuel Kilonzo Musau v Republic [2014] eKLR, where it was held that strict precautions must be taken during identification parades to ensure that a witness’s attention is not drawn specifically to the suspect, but rather to all members of the parade equally. 52.He also challenges the manner in which the identification parade was conducted, contending that no evidence was tendered to demonstrate compliance with the Police Force Standing Orders. Further, he argues that the investigating officer did not explain who pointed him out as a suspect, the circumstances leading to his arrest, or the chain of events linking him to the offence. 53.In support of such submissions, the decision in Peter Muthui Mwenga & Another v Republic [2018] eKLR, is cited where the Court underscored the importance of an unbroken chain of events connecting the accused person to the commission of the offence. 54.In conclusion, the accused submits that the prosecution case is riddled with doubt, which ought to be resolved in his favour. He relies on Philip Osendo Mlefu v Republic [2023] eKLR, where the Court reiterated that where reasonable doubt exists, it must be resolved in favour of the accused person. He accordingly urges the Court to acquit him. 55.That the prosecution may not have filed its written submission does not in any way lessen the court’s duty to anxiously evaluate the entire material presented and to be satisfied that the duty of the prosecution to prove the case and the right of the accused to benefit from every reasonable doubt is respected and upheld. With that obligation in mind the court must now execute its mandate as an obligation vested on the judiciary. Issues, Analysis and Determination 56.Having carefully considered the charge, the evidence on record, and the submissions by the accused, the Court identifies the following issues for determination:a.Whether the fact of death of the deceased was proved to the requisite standards?b.Whether the death was caused by any unlawful act or omission attributable to the accused?c.If (b) above be answered in the affirmative, Whether the accused acted with malice aforethought within the meaning of section 206 of the Penal Code? Whether the Fact of Death Was Proved 57.The fact of death of the deceased, JAL CHUOL GAI, is not in dispute. PW1, PW2 and PW4, all testified to witnessing the violent attack on the deceased, who subsequently succumbed to the injuries sustained. Even the accused himself, alluded to the fact that the deceased indeed died and was buried. The fact of theft is thus not disputed but common place 58.The cause of death was established through the evidence of PW6, the investigating officer, who produced the post-mortem report (PEXH 2). The report indicated that the deceased died as a result of multiple stab- wound injuries, massive bilateral hemothorax, a stab wound to the heart, and perforated intestines. 59.In the premises, the Court is satisfied that the prosecution has proved, beyond reasonable doubt, both the fact and cause of death. Whether the death was caused by any unlawful act or omission attributable to the accused? 60.Article 26(1) of the Constitution guarantees every person the right to life, which right may only be limited in accordance with the law. The nature and extent of the injuries sustained by the deceased, as disclosed in the post-mortem report, were severe, targeted, and inflicted through the use of dangerous weapons. Such injuries were neither accidental nor natural, but were clearly the result of a deliberate and violent assault. 61.In the circumstances, the Court finds that the death of the deceased was occasioned by unlawful acts, as it amounted to an unjustifiable deprivation of the deceased’s constitutionally protected right to life. 62.The next sub-issue is whether the death of the deceased was caused by the unlawful acts attributable to the accused. The evidence on record demonstrates that the deceased was attacked by a group of four individuals armed with machetes and a knife. The nature of the injuries inflicted, as described by PW1, PW2 and PW4, clearly points to a violent and unlawful assault. The eye witnesses positively recognised and identified the accused, at the scene and later at an identification parade. 63.PW1 testified that he saw the accused cut the deceased on the head, side and back using a machete and a knife. PW2, who was about three (3) meters from the scene, testified that he saw the accused stab the deceased on the chest and back and cut him on the head. PW4 equally testified that he saw the accused carry out the attack. The three witnesses knew the accused as a neighbor in the community of refugees from one country. 64.These accounts are consistent in material particulars, particularly as to the presence of the accused at the scene and his active participation in the attack. The incident occurred at about 7:00 a.m., during daylight, and the witnesses were in close proximity to the scene. In particular, PW2 was only three meters away, thereby enhancing the reliability of his observation. 65.The Court further notes that the accused was not a stranger to the witnesses. PW1, PW2 and PW4 all testified that they knew him as a member of the community. PW2 further stated that the accused was a regular spectator at football matches, a fact the accused himself confirmed in his defence. This was therefore a case of recognition rather than identification of a stranger. The Court of Appeal in Reuben Taabu Anjononi & 2 Others v Republic [1980] KECA 23 (KLR) held that recognition of an assailant is more reliable than identification of a stranger. 66.The accused challenged the prosecution’s case on the basis of inconsistencies in the description of his clothing. However, PW1 merely described one of the attackers as wearing yellow T-shirt and trousers and did not attribute that description to the accused. In addition, PW2, on cross-examination, stated that the accused was wearing a white T-shirt, while PW4 described him as wearing a red vest. In the Court’s view, these variations are minor, flimsy and do not go to the root of material discredit of the prosecution’s case. 67.As was observed in Twehangane Alfred v Uganda [2003] UGCA 6, minor discrepancies in witness testimony are inevitable and do not necessarily render the evidence unreliable. 68.The defence also challenged the circumstances of the accused’s arrest. PW6 testified that the accused was arrested on the basis of intelligence gathered at the scene. While the details of such intelligence were not elaborated, it is evident that it led to the identification and subsequent apprehension of the accused shortly after the incident. 69.With regard to the identification parade, PW5 testified that the parade was conducted in accordance with procedure. The accused was informed of his rights, including the right to have a friend, relative, or advocate present, which he declined. He was allowed to choose his position in the parade, and the parade was conducted multiple times with re-arrangements. The parade forms were duly signed, and no complaint was raised by the accused at the time. 70.Although it emerged that only two witnesses participated across the multiple parade sessions, the Court is satisfied that the essential safeguards under the National Police Service Standing Orders were substantially complied with. In any event, the identification of the accused did not rest solely on the parade, but was corroborated by the consistent and direct evidence of recognition by PW1, PW2 and PW4 at the scene. 71.In the premises, this Court finds that the prosecution has proved, beyond reasonable doubt, that the death of the deceased was caused by the unlawful acts of the accused, acting in concert with others not before the Court. Whether the accused acted with malice aforethought within the meaning of section 206 of the Penal Code? 72.Malice aforethought is defined under section 206 of the Penal Code and may be inferred from, inter alia, the nature of the weapon used, the manner in which it was used, and the nature and severity of the injuries inflicted. 73.In the present case, the attackers were armed with machetes and a knife, which are inherently dangerous weapons. The deceased sustained multiple stabs and cut wounds to vital parts of the body, including the head and chest. The attack was sustained, brutal, and directed at vulnerable parts of the body, demonstrating a clear intention to cause death or at the very least, grievous harm. 74.The Court of Appeal in Republic v Tubere s/o Ochen [1945] 12 EACA 63 held that malice aforethought may be inferred from the nature of the weapon used, the part of the body targeted, and the manner in which the injuries are inflicted. Applying those principles to the present case, the requisite malice aforethought is clearly established. 75.Accordingly, this Court finds that the prosecution has proved, beyond reasonable doubt, that the accused acted with malice aforethought and thus occasioned the death of the deceased. Rendition and Final Orders 76.Flowing from the foregoing analysis, discussions and conclusions. the Court is satisfied that the prosecution has proved all the ingredients of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. 77.The accused person, Taniem Nguen, is hereby found guilty of the offence of murder and is accordingly convicted. DATED, SIGNED AND DELIVERED AT LODWAR THIS 12TH DAY OF JUNE 2026.PATRICK J O OTIENOJUDGE