https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12573

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT BUNGOMA** **CRIMINAL CASE (MURDER) NO. E048 OF 2024** **REPUBLIC……………………………………………….……. PROSECUTION** **VERSUS** **CAREN NYANSIABOKA NYABUKU……….……………….…..ACCUSED** **JUDGEMENT** 1. **Introduction** 2. The accused person herein **CAREN NYANSIABOKA NYABUKU** has been charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that on the 23rd day of November 2024 at Maina Friends area, Bungoma Sub-County within Bungoma County, he murdered **GODFRID MASINDE SIMATI.** 3. The accused pleaded not guilty to the charge. The Prosecution called eight (8) witnesses in support of its case. 4. **Prosecution’s Case** 5. **PW1, Mary Stella Simati,** a sister of the deceased Godfrid Masinde Simati, told this court that on 24.11.2024 she was informed by her brother Wolfram Simati who resides in the United States of America, through a call, that the accused had burnt the deceased. While in the company of her brother Winslaus Simati and Everlyne, they traced the deceased at the Intensive Care Unit of Bungoma County Referral Hospital. The deceased was then unconscious with no skin which had all been burnt and he appeared pinkish. 6. **PW1** told the court that while at the said hospital she encountered other relatives, one of whom was **Kevin Simati**. That the latter told her that Godfrid had been burnt. This witness stated that upon visiting the residence of Godfrid, they found the house in a mess with clothes scattered everywhere in the veranda. She also saw a soiled duvet. 7. **PW1** testified that on 25.11.2024 police officers went to Godfrid’s house and recovered some clothes and Godfrid’s Identity card from Kevin’s house and that Kevin revealed that he had recovered the clothes from his father when he was burning**.** This witness identified several photographs that were marked as “P MFI1 a-y”. 8. On cross examination, PW1 stated that she did not witness the incident and was not aware of what burnt the deceased. 9. PW2 one Everlyne Okero was on 24.11.2024 at 1a.m informed through a call by Jentrix a sister of the deceased, that he had been burnt. This witness told the court that she visited Bungoma County Referral Hospital on at 6 a, and found Godfrid in the I.C.U. She admitted during cross examination that she did not witness the incident. 10. PW3, Jane Nabututu Waya, attached to Kisumu Government Chemist testified that Police Constable Cosmas Musembi had submitted to her the following 6 samples extracted from the body of the deceased; - 11. Gastric content in a syringe marked 12. Blood in a glass vile marked as B2 13. Lungs in a plastic container marked as B3 14. Liver in a plastic container marked as B4 15. Skin in a plastic container marked as B5 16. Kidney in a container marked as B6 17. PW3 told this court that she had been tasked to establish the presence of poison and the type of chemical used to burn the deceased. That upon subjecting the samples to investigations she did not find any presence of chemicals in any of the samples. She produced the Government analyst report as P Exhibit 2a and the Exhibit Memo form as P Exhibit 2b respectively. 18. PW4 Kevin Simati, a son of both the accused and the deceased who ordinarily resides in Nairobi told this court that he sales electronic goods. That on 23.11.2024 he had been at his rural home taking super when a client summoned him. Whilst he was still attending to his client who was desirous of purchasing a laptop, his mother Caren (accused) called him and instructed him to meet her at the railway line. It was his evidence that he complied and went to the railway line whereat he met his mother and also found his father (the deceased) seated on the railway line. His father informed him that he had been robbed of his money by a woman known as Teresia, who had pushed him onto the railway line and had then escaped. That his father then requested him to chase after Teresia in his vehicle. 1. PW4 testified that he endeavored to search for Teresia in vain. He then went searching for her while in the company of his parents to no avail. Whereat his advised his parents that they should go home. His witnesses told this court that whilst he was driving his parent back home, his mother stated wailing and both parents started arguing. That he then pleaded with them to refrain from quarreling until they were alone. 2. PW4 testified that upon reaching home, he retired in his room only to hear someone calling him with information that his car was on fire. Upon going outside his room, he found that his motor vehicle and his father’s motor cycle were on fire and his mother gave him some water which he used to extinguish the fire. He maintained that he did not know of the cause of the fire. That he then took his father to hospital using his vehicle and thereafter lodged a report at Bungoma Police Station. That police officers from the station accompanied him to his home and they then apprehended the accused person. 3. PW4 told this court that upon recording his statement at the next day, he was also apprehended and was detained for 21 days. That his father died on the 14th day after the incident. 4. On cross examination, PW4 testified that when his mother called him out of his room, he found he tried to extinguish the fire by her own hands and he then requested her to bring some water. At the material time his father had been laying down between his vehicle and the motor cycle while on fire. Further that at the hospital his father had sort his confirmation on whether he had witnessed all that had happened but the deceased did not explain to him any further on how the fire was started. 5. PW5 one Calvin Kepha a male minor was subject to *voire dire* examination and was then allowed to tender sworn testimony. It was his evidence on 24/11/2024 he had been asleep when he was awaken by noise emanating from outside. Upon venturing out he found a crowd that was beaten up Caren (the accused) who eventually managed to escape and locked herself inside the main house. 1. PW6 one Dickson Ombogo only witness the mob vandalizing the house of the deceased. He did not witness the fire incident. 2. PW7 Doctor Elly Kiplimo Kosgey attached to Bungoma County Referral Hospital testified that he had conducted a post mortem examination on the body of the deceased Godfrid Masinde on 10/12/2024 and he opined that the cause of death was multiple organ failure from 3rd degree burns at 35% burn surface area. He produced the post mortem report as P Exhibit No. 3. 3. PW8 Police Constable Cosmas Musembi testified that upon receiving a report from Kevin Simati that a mob had wanted to lynch his mother, he commenced investigations. That he visited the homestead of the accused in the company of other officers and rescued her from the mob. He recorded statements of witnesses and interrogated the accused. He processed the scene of the fire and photographs were taken. This witness told the court that the accused had admitted to setting the motor cycle registration No. KMDG 428U on fire but maintained that the deceased used his jacket to try and spread the fire onto their son Kevin’s motor vehicle and on the process caught fire. Further that he had visited the deceased at Bungoma County Referral hospital and found him at the emergency area while in critical condition. That Godfrid later succumbed to the injuries. This witness produced Pexhibit 1a – 1g which were photographs of the scene the accused and the deceased. He also produced the exhibit memo as P Exhibit 1z, match box as P Exhibit 4 and the pesticide as P Exhibit 5. 4. On cross examination this witness stated that the witnesses had told him that the deceased had been drunk and had used his jacket to rub the fire into his son’s motor vehicle wherefore he too caught fire and sustained burns. Further that Kevin had stated that the accused had tried to extinguish the fire. 5. **Defence case** 6. Upon being on her defence the accused Caren Nyansiaboka Nyabuku gave sworn testimony. She testified that in the night of 23/11/2024 her husband had returned home, had parked his motor cycle and had then gone across the railway line to a drinking den. That at 9.30 pm while she was asleep, she was awaken by screams from her husband who was calling out her name. That upon her venturing out to establish what was happening, she found her husband drunk while laying down at the railways and he told her that one Teresa had stolen Kshs. 17,000/= from him and had pushed him down on the railway. It was the accused person’s testimony that her husband then requested her to assist him in tracing Teresa. She said that it was the third time that her husband had reported to her that Teresa had stolen from him; the first time he had reported the loss of a handset and the second time a sum of Kshs. 15,000/=. 7. The accused testified she had then requested her husband to allow her go back to their home and put on a pair of shoes, as she had rush to the railway bare feet. That she then went home put on a pair of shoes and went to their son’s ( Kevin’s) house to summon him but she did not find him whereupon she made a telephone call to him and requested him to go to the railway where his father was. 8. It was the accused person’s testimony that she then returned to the railway and Kevin came whereupon they all boarded Kevin’s vehicle and at the instance of the deceased, they went to search for Teresa at Christ the King area. Further that upon reaching a location where the deceased had told them was Teresa’s house, the deceased telephoned Teresa who responded and the deceased summoned her out of her house. That Teresa did not comply and when the deceased tried to call her twice, Teresa was unreachable whereafter Kevin advised them to home. 9. The testified that upon their return to their residence, Kevin parked his vehicle near the motor cycle and retired to his house, the deceased remained outside standing near his motor cycle and he then moved to the guava tree, while the accused got into their house and started to wail in anguish and frustration; that while other people were sleeping the accused was up going round chasing after women who had stolen from her husband. That the deceased then called the accused and informed her that he was taking his motor cycle and going after Teresa so as to recover his money. That the accused attempted to dissuade the deceased by telling him that it was late and that he was nursing a wound from a previous fall from the motor cycle, further that he could be attacked but the deceased was adamant that he would still go after Teresa. The accused testified that she then got angry, went into the house, picked some spirit that was on the table, picked a match box, went out and told her husband that she was destroying the motor cycle as it was the source of their problems and she then poured the spirit onto the motor cycle and lit a match stick and the motor cycle started to burn. 10. The accused further testified that her husband then moved from the guava tree and he started to rub the fire with his jacket so as to extinguish it and his sleeves caught fire. That she then started to scream “fire,” “fire,” “while also calling Kevin, who came out and asked the accused to bring some water which he then used to extinguish the fire. Thereafter the accused requested Kevin to assist his father with a change of clothes and they then put him on board Kevin’s vehicle and the accused supported him. The accused testified that while they were exiting their compound they encountered a group of drunks from the local brew drinking den who had been attracted by her screams and she then realized that she had not locked the house door wherefore she requested Kevin to let her alight and go lock the door, but when she returned she found that Kevin had already rushed her husband to hospital. 11. The accused stated that the drunkards then confronted her and sought for an explanation on what had happened to their friend with whom they had been drinking with earlier on. That she could not respond and she then got into her house and locked herself in. That the drunkards moved into her compound and they demanded that she should go out and furnish them with an explanation and when she declined so to do, they started to bang on her door and pelted the windows with stones, until police officers arrived and rescued her. She was then detailed for three weeks. That her children kept updating her with the condition of her husband who was still on oxygen and later succumbed to the fire injuries. (At this point the accused broken down in tears). 12. The accused maintained that she did not torch her husband with whom she her bore four children with and had cohabited with for 30 years. She stated that her intentions were to destroy the motor cycle as it had been the cause of the deceased injury and their domestic problems; that instead of earing them money, the deceased had been habitually giving it out to the local brew vendor who used it to transport the local brew. 13. It was the accused person’s testimony that the deceased habitually came home drunk and many a times, her children and her would go and carry him home. 14. On cross examination by Ms Kibet for the prosecution, the accused person conceded that she was not pleased by her husband’s drinking habit but maintained that she had become accustomed to it over the 30 years of their marriage. She said that she was the deceased person’s second wife and that the first wife was deceased. That save for the women at the drinking den who the deceased kept accusing of stealing from him, the deceased had no other wife. That on the material night the deceased had been drunk and had been walking with a lot of money and that sadden her but she did not torch her husband. 15. **Analysis and determination** 16. After consideration of the evidence of the 8 Prosecution witnesses and the defence put forth by the accused person, this Court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the Prosecution. 17. **Section 203** and **204** of the **Penal Code** under which the accused person is charged provide for the offence of murder and the punishment therefor. The said sections read as follows: **“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.** **204. Any person who is convicted of murder shall be sentenced to death.”** 1. It is incumbent upon the Prosecution to prove beyond reasonable doubt, four elements of the offence of murder as was held in the case of **Anthony Ndegwa Ngari v Republic [2014] eKLR**, thus: - 2. **That the deceased died;** 3. **That the death was caused by an unlawful act or omission;** 4. **That the accused person directly or indirectly participated in the commission of the alleged offence; and** 5. **That there was malice aforethought.** 6. **The fact of death of the deceased** 7. The evidence of Doctor Elly Kiplimo Kosgei was that the deceased died as a result of multiple organs failure due to third degree burns at 35% burnt surface area. The post -mortem form dated 10.12.2024 confirmed the fact of death of Godfrid Masinde Simati on 9.12.2024. 8. **Proof that the accused person committed the unlawful act which caused the death of the deceased** 9. The court must look for the proximate cause which led to the infringement of the deceased person’s right to life under Art 26 of the Constitution, which is not excusable or justified. The court has also to bear in mind the legal ingredients of Section 213 of the Penal Code on causation issues and proof on homicide category of offences. 10. It is clear that this whole case rests on circumstantial evidence since no single witness saw the commission of the act that caused the deceased’s death. In such a scenario, this Court is called upon to closely examine the evidence on record, not only as its normal calling as the trial Court, but also to ascertain whether the evidence satisfies the following requirements: - 11. **The circumstances from which an inference of guilt is sought to be drawn, must be congently and firmly established;** 12. **The circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;** 13. **The circumstances taken cumulatively should form 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.** 14. The foregone principles were set out in the locus classicus case of **R -vs- Kipkering Arap Koske & Another (1949) 16 EACA 135** and have repeatedly been used in subsequent cases including the Court of Appeal cases of **GMI -vs- Republic (2013) eKLR, Musii Tulo vs. Republic (2014) eKLR** among many others. 15. The Court of Appeal in **Musii Tulo** (supra) in expounding the above principles expressed itself as follows:- **“4. In order to ascertain whether or not the inculpatory facts put forward by the prosecution are incompatible with the innocence of the appellant and incapable of explanation upon any other reasonable hypothesis than that of guilty, we must also consider a further principle set out in the case of Musoke v. R (1958) EA 715 citing with approval Teper v. R (1952) AL 480 thus: -** **‘It is also necessary before drawing the inference of accused's guilty from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.’”** 1. Further, the Court of Appeal in **Sawe- Vs- Republic [2003] KLR 364** at page 372 had this to say regarding circumstantial evidence: - **“…. In order to justify, on circumstantial evidence, 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. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other 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…...”** 1. The evidence of PW4 Kevin Wekesa Simati is relevant in this case. He is a son of both the accused person and the deceased. He testified that after their unsuccessful search for Teresa he drove his parent’s home. While enroute, they started an argument which he quelled and advised them not to quarrel in his presence. That when they reached their residence, he retired to his room only for him to hear a voice calling him with information that his vehicle was aflame at which point he ventured out and found his motor vehicle on fire. His father’s clothes were also on fire and his hands were burnt. The motor cycle was also aflame. His mother, the accused person was frantically trying to put off the fire by hand and he then requested her to fetch some water and she duly complied whereafter he used the water to extinguish the fire. 2. PW4 was categorical that he did not know of what had happened. 3. The accused person admitted to causing the fire by torching the motor cycle. It was her testimony that her intentions were to destroy the motor cycle as it was the source of their marital issues. She was categorical that she burnt the motor cycle out of frustration. She did not torch her husband. 4. The doctrine of last seen applies in this case. The doctrine states that the last person seen with the deceased will be presumed to have killed the deceased unless evidence to the contrary is adduced. 5. The said doctrine was discussed by the Court of Appeal in the case of; **Kimani vs Republic (Criminal Appeal 41 of 2022) [2023] KECA1390 (KLR)(24November 2023)(Judgment)** where the Court stated that: **31.“...The doctrine of ‘last seen alive’ is based on circumstantial evidence where the law prescribes that the person last seen with the deceased before their death was responsible for his or her death and the accused is expected to provide an explanation as to what happened…”** **33.In the Nigerian Case of Achie vs State (1993), the Court relied on the case of Ismeni vs State (2011) Kuktan JSC on the doctrine of ‘last seen’ and expressed itself as follows:** **“In a case of culpable homicide as in the present one where the doctrine of last seen has been applied, the law presumes that the person last seen with the deceased before the death was responsible for his death and the accused** **is expected to provide an explanation of what happened.”** 1. The last seen doctrine stands as negation or an exception to the doctrine of “presumption of innocence”, as it is the law that where the victim was last seen by the accused, and is found dead, it will be presumed that the last person that he was last seen with is responsible for his death. 2. The burden of explaining that events that led to the demise of the deceased shifts to the accused person when the prosecution tenders evidence that establishes that the deceased was last seen in the company of the accused person. In this case PW4 has established that fact, which is corroborated by the accused person. 3. I have analyzed the evidence as a whole and I find that defence put forth by the accused person offers a credible explanation of how the deceased got burnt; he attempted put extinguish the fire by rubbing it with his jacket. The accused person also tried to put off the fire with her bare hands and she also sustained burns on her left hand. 4. **Malice aforethought**. 5. The offence of murder is incomplete without the proof of malice aforethought. The prosecution is duty bound under the provisions of section 206 of the Penal Code to led evidence which proves 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;** **(c) An intent to commit a felony;** **An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”** 1. When none of the aforesaid elements are proved but there is otherwise an unlawful killing of another human being, the person commits the felony of manslaughter under Section 202 Penal Code which is punishable under Section 205 of the Penal Code by a term of imprisonment extending up to life imprisonment. 2. The accused person and the deceased had cohabited for 30 years and got four children. The accused person admitted that she was angry hence her decision to burn the motor cycle. I find that she could not have foreseen the reaction of the deceased after she torched his motor cycle. I thus fail to find any malice aforethought on her part. 3. The deceased had sustained severe burns and underwent a fortnight of pain and suffering while undergoing treatment. That notwithstanding, no evidence of malice afore thought was tendered. The deceased was said to have been a habitual drunkard and was even drunk at the material time; his thinking capacity must have been diminished hence his decision to put off the fire using his jacket. 4. It is instructive to note that the report by the government chemist indicated that all the tissue and organs samples that were submitted for testing did not yield any presence of a chemical substance. 5. **Conclusion** 6. In conclusion, this Court finds that save for the fact of death, the prosecution failed to prove the other ingredients of the offence of murder. I thus hereby find the accused person not guilty of the offence of murder. 7. Orders 8. The accused person is hereby acquitted unless otherwise lawfully held. Orders accordingly. **Dated and delivered at Bungoma this 20th day of May 2026.** **Mwanaisha .S. Shariff** **Judge** **In the presence of:** **Accused** **Mr Wattanga for Accused** **Mr Minish for Prosecution** **Peter Machoni - Court Assistant**