https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11056

Republic v Nyapietho (Criminal Case E005 of 2023) [2026] KEHC 11056 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 11056 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Case E005 of 2023 JM Omido, J July 16, 2026 Between Republic Prosecution and Kevin Omondi Nyapietho Accused Judgment A. Information And Charge. 1.Vide the Information dated 7th March, 2023, Kevin Omondi Nyapietho, the accused person herein, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 Laws of Kenya. It is alleged in the particulars of the offence that on the 21st day of February, 2023 at Kapuonja Sublocation in Kisumu West Subcounty within Kisumu County, the accused person murdered Gaudencia Otieno Aoko. 2.The accused person denied the charge and a plea of “not guilty” was entered, following which his trial commenced. B. The Prosecution Case. 3.The prosecution called a total of six (6) witnesses. 4.The first prosecution witness (PW1) was Dr. Tobias Jude Masawa. The witness testified and told the court that he was a pathologist by profession. He stated that he attended Vena University in Cuba in 2009 and subsequently obtained a Master’s degree in Pathology from the University of Nairobi. He had thereafter been practising as a pathologist. 5.The witness testified that he conducted a post-mortem examination on the body of Gaudencia Aoko Otieno at Masaba Hospital on 27th February, 2023 at 1.00 p.m. He stated that the deceased was an African female aged approximately 65 years, of good nutrition and well built, measuring 166 centimetres in height. The body was well preserved through embalming and exhibited normal post-mortem changes, including lividity and rigidity. It was covered with blue linen and had a bracelet on the left wrist. 6.On external examination, the witness observed multiple deep lacerative wounds on the face extending into the brain. The longest laceration involved the left maxillofrontal and temporal bones of the skull and was associated with massive spillage of brain matter. He also observed six other lacerative wounds on the right eye and chin, as well as multiple abrasive wounds and bruises on the neck and anterior chest. There was also a undisplaced fracture of the right elbow joint and a fracture of the lower part of the left femur, associated with internal injury to the left leg. The body also exhibited marked pallor. 7.On internal examination, the respiratory system, liver, spleen and pancreas were unremarkable. The kidneys were examined. Examination of the head revealed a displaced skull fracture associated with the deep lacerative wounds, while the brain had suffered extensive injury with spillage of brain matter. The spinal column was intact and the spinal cord was not exposed. 8.Based on his examination, the witness formed the opinion that the cause of death was severe head injury due to multiple lacerative wounds to the head. He identified the post-mortem form bearing the death certificate No. 1484661, which he had signed on 27th February, 2023, and produced it in evidence as PExh1. 9.On cross-examination, the witness stated that he was unable to determine whether the injuries sustained by the deceased had been inflicted by one person or by several persons. 10.Police Constable Ng’etich Kipkorir Weldon testified as PW2 and told the court that he was a police officer attached to Nyamasaria Police Patrol Base. He stated that on 24th February, 2023 at about 12.30 p.m., while at the police station, Police Constables Jacob Magut and Mathew Kiprotich, together with a male member of the public, sought assistance in arresting a murder suspect within the Nyamasaria area. 11.The witness testified that he proceeded to the Batatoast area in the company of Police Constables Kiprotich and Magut and the said member of the public. They found the suspect walking towards the Kasawino direction. The member of the public pointed out the suspect, whom they arrested and escorted to the police station. The suspect was identified as a male adult of Luo ethnicity named Kevin Omondi, whom the witness identified in court as the accused. The accused was booked at the police station vide OB No. 20 of 24th February 2023. The witness stated that he was informed that the accused had committed the offence of murder. 12.On cross-examination, the witness clarified that he was not the investigating officer. 13.The prosecution called Dorcas Auma Oriedo as PW3. In her testimony, the witness stated that she was a farmer residing at Kapuonja South. She testified that the deceased, Gaudencia Atieno, was her husband’s sister. 14.The witness told the court that on 27th February, 2023, she travelled to Masaba Hospital together with her brother-in-law, Aloice Omondi Nyapiedho, to identify the deceased’s body during the post-mortem examination. She stated that she identified the deceased by her facial features and legs, as well as by her long toenails. She confirmed that she was present when the post-mortem examination was conducted and recognized the post-mortem report produced in evidence as PExh1. 15.The witness testified that the deceased ordinarily resided in Nairobi but had returned home on Saturday, 18th February, 2023, to attend a burial in Kano. She stated that the accused, Kevin Omondi, was the deceased’s son and identified him in court as the person in the dock. She further testified that, at the time of her death, the deceased lived in the same home with the accused, one Benson and one Everlyn. The witness also stated that, sometime in the preceding year, the accused had confronted her and thrown a stone at her. 16.On cross-examination, the witness stated that she had previously lived with the deceased in Nairobi in 1987 but was not living with her at the time of her death. She confirmed that she knew the deceased was living with the accused at the time of her death but stated that she did not know how the deceased died. 17.On re-examination, the witness clarified that she was not with the accused on 21st February, 2023. She reiterated that she knew the deceased was then living with Benson, Everlyn and the accused. She added that the deceased had previously visited her home, where she cooked githeri and the deceased requested her to give her some of the food to take to Benson, Everlyn and the accused. 18.PW4, Ben Ochieng Omondi testified that he resided at Nyamasaria and was unemployed. He stated that the accused, Kevin Omondi Nyapietho, was his elder brother and identified him in court as the person in the dock. He further testified that the deceased, Gaudencia Otieno Aoko, was his aunt. 19.The witness testified that on 21st February, 2023 at about 10.45 p.m., he was in the house together with the accused, the deceased and his sister, Everlyne. They had taken supper. After the meal, the accused scolded the deceased about the food and accused them of intending to poison him. He then left the house and went to another house within the homestead, there being two houses. Before leaving, he locked the house from the outside. 20.The witness stated that the accused thereafter made a lot of noise outside, repeatedly saying that “hawa watu wanataka kuniua.” The deceased called the police, but officers at Daraja Mbili Police Station informed her that it was too late for them to attend and advised them to seek help elsewhere. 21.The witness testified that the accused subsequently returned to the house and was hostile. While the witness was in the bedroom, he heard a sound resembling a slap, followed by a scream from Everlyne. He left the bedroom to find out what had happened and proceeded towards the next room. He then exited the house through a window in order to call for help. He alerted neighbours, including one Nick and one Gordon, who joined him. Together, they entered the house, where the witness found the deceased lying on her back, facing upwards. She had an injury to the head and there was a lot of blood, including blood on the walls. The witness stated that he was shocked by what he saw. 22.The witness testified that he then proceeded to Daraja Mbili Police Station to report that his aunt had been killed. He stated that, upon arrival, the police station had not yet been opened. He went to the centre and informed a person known as Ayoke of what had happened. He thereafter returned to the police station with one Hillary and knocked on the door. The station was opened, and he reported to the police that Gaudencia had been killed. 23.The witness further testified that the accused subsequently arrived at the police station carrying a television set and claiming that people wanted to kill him. A crowd then gathered and, according to the witness, some people appeared intent on attacking the accused. The accused ran away and left the television set behind. 24.PW4 testified that on his way back, he encountered Everlyne but did not speak to her. He stated that the house had solar lighting, which provided illumination. The accused was later arrested at Nyamasaria, several days after the incident. 25.On being cross-examined, the witness confirmed that they had taken supper in the house and that he had been in the bedroom when the deceased called the police after the accused had scolded her. He stated that when he went outside and subsequently returned to the house, he found the deceased dead. He also testified that there was a small jembe which the accused used but stated that he did not know whether the deceased had fallen on it. 26.On re-examination, the witness clarified that he had not seen the deceased fall on the jembe. 27.The fifth witness that the prosecution called was Everlyne Adhiambo (PW5), whose testimony was that she resided at Kano Kasule and was a student at Ongeche Mixed Secondary School, where she was in Form Two. She testified that the accused, Kevin Omondi, was her elder brother and the first-born in their family, and identified him in court as the person in the dock. She further stated that the deceased, Gaudencia Otieno, was her aunt. 28.The witness testified that on 21st February, 2023, she attended school and returned home at about 5.00 p.m. She prepared tea for the deceased, cleared the table and washed the dishes. The deceased thereafter sent Ben Ochieng Omondi (PW4) to buy food from the market and asked the witness to pack clothes in a bag because she intended to travel to Nairobi that night. The deceased subsequently changed her mind and decided to travel the following morning. 29.The witness testified that they later had dinner in the living room, comprising herself, the accused, PW4 and the deceased. During the meal, the accused claimed that the food was poisoned and that it smelled of poison, although he continued eating. The deceased also ate the food but complained that it contained too much salt. 30.PW5 told the court that after dinner, she cleared the table. PW4 went to the bedroom to sleep, while the witness, the accused and the deceased remained in the living room. The witness stated that she was selecting secondary schools and asked the deceased for her full names. The deceased stated that she was Gaudencia Aoko Otieno and gave the full names of the witness’s mother as Catherine Akinyi Nyapeitho. 31.The witness testified that the accused then began complaining that the name Nyapietho belonged to his father. He stood up and went outside. When the deceased asked him why he had left his shoes behind, he did not respond. The accused then locked the door from outside, while the witness locked it from inside. When the accused returned, he found that the door was locked from inside. He struck the door with a jembe and forced it open. 32.The witness testified that the accused thereafter attacked the deceased with the jembe, striking her on the shoulder and head with its sharp side. The deceased told the witness to run away, whereupon the witness escaped through a bedroom window. She stated that she left the deceased bleeding from the shoulder and head. She screamed and observed blood splashed on the seat, on the accused and within the house. The witness stated that she was confused, ran away and hid near a tree. 33.The witness testified that she subsequently saw the accused leaving while carrying a television set. There was solar lighting outside, which enabled her to see him clearly. He proceeded into a thicket. The witness thereafter met Ben Ochieng Omondi (PW4) together with his friends. PW4 asked her whether the deceased had been killed, but she told him that she did not know. He directed her to go to one Nickson’s house. At that house, one Mama Nickson asked her what had happened, and the witness told her to go and see for herself, stating that she was unable to explain what had occurred. Nickson later went to call her and assured her that it was safe to return. 34.The witness testified that she returned home and found her uncle, Aloyce Omondi, together with other people. She was informed that the police had taken the deceased’s body to the mortuary. The jembe used by the accused was not recovered. She was also informed that the accused had fled and that he was arrested several days later. The witness stated that she recorded a statement with the police. 35.On cross-examination, the witness confirmed that the jembe was not recovered and that the deceased died in the house. 36.On re-examination, the witness reiterated that the accused struck the deceased on the shoulder and head and that she saw blood coming from the deceased’s shoulder. 37.The last prosecution witness was Police Sergeant Richard Lang’at. The witness testified that he was attached to the Directorate of Criminal Investigations, Kisumu West, and was the investigating officer in the matter. He stated that on 22nd September, 2023 he was instructed to investigate the murder which had allegedly been committed on 21st February, 2023. 38.The officer told the court that on 22nd February, 2023, he visited the scene together with other officers. They interviewed members of the deceased’s family, who informed them that the deceased had been attacked and killed on 21st February, 2023 and that the person who had attacked her was Kevin Omondi Nyapietho, the deceased’s nephew. The suspect had, however, fled. 39.The witness testified that he recorded statements from witnesses. On 24th February, 2023, the suspect was arrested, following which the police obtained custodial orders from the Maseno Court. A post-mortem examination was conducted on 27th February, 2023 and a report prepared. 40.The witness further testified that the scene was a semi-permanent house comprising a living room and a bedroom. The deceased had been attacked in the living room, where blood stains were splashed on the wall. He stated that the deceased had been cut with a jembe, but the weapon was not recovered. He identified the accused, Kevin Omondi, as the suspect in the case and as the person in the dock. 41.On cross-examination, the witness confirmed that he visited the scene of crime when the deceased’s body had already been taken to the mortuary. He stated that some police officers had visited the scene on the previous day. No photographs of the scene were taken, and no clothes were examined. C. Ruling On Prima Facie Case. 42.The prosecution closed its case at that stage and in the court’s considered ruling rendered on 31st July, 2024, a finding was made that the prosecution had established a prima facie case against the accused and he was placed on his defence. D. The Defence Case. 43.In his defence, the accused testified on oath as DW1 and told the court that he resided at Kapuonja and was a casual worker. He stated that he understood the charge facing him. 44.The accused testified that on 21st February 2023 he was at home in the deceased’s house. They ate together, after which he went to sleep. He later heard the deceased making a telephone call and asking for help, stating that someone was disturbing her. He returned to his house, having left PW4 and PW5 there with the deceased. 45.The accused testified that on returning to the deceased’s house, he used the handle of a jembe to break open the door and found the deceased lying on the floor in a still position and not breathing. He stated that he was the one who opened the door and that PW4 and PW5 were not in the house at the time. He checked the house but did not find anyone else. He pulled the deceased and realized that she was lifeless. 46.The accused testified that he then rushed to Daraja Mbili Police Station to make a report. He knocked at the station and a female police officer came out, to whom he made his report. Another officer also arrived. While he was reporting, a person known as Apuot arrived and told the police officer that the accused was the person who had killed the deceased. The accused stated that members of the public then wanted to lynch him, causing him to run away. He remained at large until he was arrested. 47.The accused testified that the deceased had been like a mother to him and that he had lived with her after the death of his parents. He stated that PW4 and PW5 were one Catherine’s children and that Catherine had also been like a mother to him. He stated that he was arrested on 24th February, 2023 and denied being the person who had assaulted and killed the deceased. 48.On cross-examination, the accused confirmed that the deceased was his aunt and that he knew her well. He stated that he did not go to work on the day of the incident and was at home together with PW4, PW5 and the deceased. He testified that the four of them were the only people at home. He stated that PW5 called him to go and eat at the deceased’s house, where he ate and watched television. He heard the deceased tell PW5 that the food was too salty. 49.The accused denied hearing the deceased refer to PW5 as Everlyne Nyapietho or mention his father’s name, Nyapietho. He denied becoming annoyed when the deceased allegedly mentioned his father’s name. He stated that he went to sleep, but later heard the deceased calling for help and rushed to the house. He stated that he used a jembe to break open the door and found the deceased lying on the ground. He stated that he did not see anyone else in the house and denied hitting the deceased with the jembe. 50.The accused stated that PW5 was like a sister to him and that she had testified that he hit the deceased with a jembe. He also referred to PW4’s testimony that he had seen the accused hitting the deceased with a jembe. The accused denied having any differences with the deceased and reiterated that he was not annoyed when she allegedly mentioned his father’s name. He confirmed that the deceased did not have a weapon on the material day. 51.The accused further testified that he went to the police to make a report and was told by the police to go far away. He denied fleeing but confirmed that he was arrested in the Nyamasaria area. He also admitted that he removed a television set from the wall after finding the deceased dead. He stated that he did not know whether PW4 and PW5 had gone to hide in a nearby farm. He confirmed that he had a jembe. 52.The accused did not call any witness and closed the defence case at that stage. E. The State’s Submissions. 53.The prosecution submits that the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code has been proved against the accused beyond reasonable doubt. It submits that the evidence of the six prosecution witnesses, together with the documentary evidence tendered, established all the essential elements of the offence and that the accused should accordingly be found guilty and convicted. 54.The prosecution submits that the evidence of PW1, Dr. Tobias Jude Masawa, established the fact and cause of the deceased’s death. The post-mortem examination revealed multiple deep lacerative wounds extending into the brain, including a major laceration involving the left maxillofrontal-temporal region of the skull with massive spillage of brain matter, additional lacerative wounds to the right eye and chin, bruising and abrasions, fractures and a displaced skull fracture. 55.The prosecution asserts that the cause of death was certified as severe head injury due to multiple lacerative wounds to the head and that the post-mortem form produced as PExh1 proves as much. 56.The prosecution submits that PW1’s inability to determine whether the injuries were inflicted by one person or several persons did not assist the defence, since the identity of the perpetrator was, in its submission, established by direct eyewitness evidence. 57.The prosecution further submits that PW2, Police Constable Ngetich Kiprotich Weldon, established the arrest of the accused on 24th February 2023 at Nyamasaria and recorded the arrest in OB No. 20 of 24th February, 2023. It submits that the defence did not challenge the substance of that evidence. 58.With respect to PW3, Dorcas Auma Oriedo, the prosecution submits that she positively identified the deceased’s body during the post-mortem examination and confirmed that the deceased had been living with the accused at the time of her death. 59.The prosecution submits that PW4, Ben Ochieng Omondi, placed the accused, the deceased and PW5 together in the house on the material night. According to the prosecution, PW4 testified that after supper the accused became agitated about the food, alleged that there was an attempt to poison him, locked the door from outside and made alarming utterances. The accused later returned in a hostile mood. 60.The prosecution further submits that PW4 heard a sound resembling a slap followed by PW5’s screams and, after seeking assistance from neighbours, found the deceased lying on her back with a severe head injury and blood on the walls. 61.The prosecution further submits that the accused later appeared at the police station carrying a television set and fled when members of the public turned against him. The prosecution relies on PW4’s evidence concerning the jembe to submit that the evidence did not support an accidental fall by the deceased. 62.The prosecution submits that PW5, Everlyne Adhiambo Omondi, was the crucial eyewitness. It submits that she was present in the house during the events leading to the deceased’s death and witnessed the accused return armed with a jembe, break open the door and attack the deceased with the implement. 63.According to the prosecution, PW5 saw the accused strike the deceased on the hands, shoulders and head, after which the deceased instructed her to flee. PW5 escaped through a window and subsequently saw the accused leave the compound carrying the television set. The prosecution submits that her evidence was detailed, consistent and corroborated by the evidence of PW4 and the medical and scene evidence. 64.The prosecution submits that PW6, Sergeant Richard Lang’at, investigated the matter, visited the scene, interviewed the family members, established that the deceased had been attacked in the living room of the semi-permanent house and observed blood stains on the walls. He further established that the deceased had been attacked with a jembe, although the weapon was not recovered. The prosecution submits that the accused was arrested on 24th February, 2023 and that a post-mortem examination was subsequently conducted. 65.The prosecution submits that the accused’s defence did not raise a reasonable doubt. It submits that although the accused claimed to have returned to the deceased’s house after hearing her call for help and to have found her already dead, he admitted being present at the scene, possessing a jembe, using it to break open the door and not seeing any other person at the compound. 66.The prosecution further submits that the accused’s account was inconsistent with the evidence of PW5, who testified that she was present during the attack and escaped through the window. It argues that the accused’s possession of the jembe, his presence at the scene, his subsequent removal of the television set and his flight from the area were circumstances that corroborated the prosecution case. 67.On the ingredients of murder, the prosecution submits that Section 203 of the Penal Code requires proof that the accused caused the death of another person by an unlawful act or omission and that the act or omission was accompanied by malice aforethought. It identifies the essential matters for proof as the fact of death, the cause of death, the unlawfulness of the act or omission, the fact that the unlawful act or omission was attributable to the accused and the presence of malice aforethought. 68.The prosecution reiterates that the burden of proof rests upon it and submits that the standard of proof beyond reasonable doubt has been met. 69.On the question of unlawfulness, the prosecution submits that the severe and multiple injuries sustained by the deceased, including the extensive head injuries and displaced skull fracture, were inconsistent with an accidental fall or a natural cause of death. It submits that the medical evidence, the evidence of the blood stains at the scene and the evidence that the deceased was attacked with a jembe established that her death resulted from an unlawful act. 70.On the identity of the person who caused the death, the prosecution submits that the evidence rested principally on three pillars. 71.First, it relies on PW5’s direct eyewitness account that the accused armed himself with a jembe, broke open the door and repeatedly struck the deceased. 72.Secondly, it relies on PW4’s evidence concerning the events before and after the attack, including the accused’s conduct, the sound he heard, PW5’s screams and the discovery of the deceased with severe injuries. 73.Thirdly, it relies on what it characterizes as the accused’s self-incriminating admissions concerning his presence at the scene, possession of a jembe and use of the implement to break open the door. 74.The prosecution submits that the accused’s account that he broke into the house and found the deceased already dead was untenable in the circumstances. It argues that the accused had been at the scene, had possession of the jembe and was the person who broke open the door. The prosecution further submits that no credible third-party assailant was identified or suggested by the evidence. 75.On malice aforethought, the prosecution submits that the same is defined under Section 206 of the Penal Code and may be inferred from the intention to cause death or grievous harm, knowledge that the act will probably cause death or grievous harm, or an intention to commit or facilitate the commission of a felony. 76.In support of that submission, the prosecution relies on Republic v Benjamin Kyalo Mulonzi [2019] eKLR, where the Court stated that malice aforethought is a conscious and premeditated intention to kill and may be established by considering the weapon used, the manner in which it was used, the part of the body targeted, the nature of the injuries inflicted and the conduct of the accused before, during and after the attack. 77.The prosecution also relies on Nzuki v Republic [1993] KLR 171, in which the Court of Appeal held that malice aforethought may be inferred from the nature of the weapon used, the part of the body targeted, the manner of the attack and the multiplicity and severity of the injuries inflicted. 78.The prosecution further relies on State v Opondo [2025] KEHC 940 (KLR), which it submits affirmed that where an accused person repeatedly strikes a victim on the head with a heavy implement, the inference that the accused intended to cause death or grievous harm may be irresistible. 79.Applying those principles, the prosecution submits that malice aforethought was established by the nature of the weapon, namely a jembe; the targeting of the deceased’s head, a vital and vulnerable part of the body; the repeated blows inflicted on the deceased; the ferocity and severity of the attack, which resulted in a displaced skull fracture and massive spillage of brain matter; the accused’s conduct before the attack, including the dispute concerning the food, his threatening conduct and his return armed with the jembe; and his conduct after the attack, including removing the television set, leaving the compound and remaining at large until his arrest. 80.The prosecution submits that its evidence was mutually corroborative. In its view, the post-mortem findings were consistent with PW5’s account of the attack; PW4 corroborated the events preceding and following the assault; PW6’s observations of blood stains at the scene corroborated the physical consequences of the attack; and the accused’s own admissions confirmed material aspects of the prosecution’s timeline and placed him at the scene with the jembe. 81.The prosecution submits that the defence theory of a third-party attack or accidental discovery of the deceased’s body was untenable. It argues that PW5 directly witnessed the accused attacking the deceased; that the accused was the person who broke open the door; that the accused’s denial of PW5’s presence was contradicted by her evidence; that his possession and removal of the television set was consistent with PW5’s account; and that his subsequent flight and arrest three days later were inconsistent with an innocent explanation. 82.The prosecution consequently submits that it proved beyond reasonable doubt each element of the offence of murder against the accused, Kevin Omondi Nyapietho, and urges the Court to find him guilty of murder contrary to Section 203 as read with Section 204 of the Penal Code and convict him accordingly. F. The Accused’s Submissions. 83.On his part, the accused submits that the prosecution proved that the deceased died and sustained serious injuries but failed to prove beyond reasonable doubt that the accused was responsible for the fatal assault or that he acted with malice aforethought. 84.The defence relies on Article 50(2)(a) of the Constitution and Section 107 of the Evidence Act for the proposition that the burden of proving the accused’s guilt beyond reasonable doubt rests throughout on the prosecution. 85.The accused submits that the evidence of the prosecution established the fact of death and the occurrence of an unlawful assault but did not sufficiently establish the identity of the perpetrator. He contends that the evidence of the eyewitnesses was contradictory and that the witnesses were close relatives of both the accused and the deceased, thereby raising the possibility of bias. 86.The accused further submits that no independent witness saw the accused inflict the fatal injuries and that the investigating officers merely relied on information obtained from witnesses. 87.The accused relies on Maitanyi v Republic [1986] KLR 198, in which the Court of Appeal emphasized that identification evidence must be examined with the greatest care, particularly where the circumstances of identification are difficult. The accused submits that the evidence of PW5, whom the defence characterizes as a juvenile eyewitness, ought to have been treated with caution and that the alleged inconsistencies in her account, when considered alongside the evidence of PW4, rendered the identification unsafe. 88.The accused further relies on Wamunga v Republic [1989] KLR 424, in which the Court of Appeal cautioned that evidence of visual identification in criminal cases can result in a miscarriage of justice if it is not carefully tested. On the basis of that principle, the accused submits that the alleged contradictions in the evidence, the familial relationship between the witnesses and the accused, and the absence of independent corroboration created a reasonable doubt as to whether he was the person who inflicted the fatal injuries. 89.The accused submits that the prosecution also failed to link him to the alleged murder weapon. Although the prosecution alleged that a jembe was used in the attack, the weapon was neither recovered nor produced as an exhibit. No fingerprints, DNA evidence or other forensic evidence was presented to connect the accused to the weapon or to the scene. 90.The defence contends that the medical evidence established the nature and cause of the injuries but did not conclusively establish that they were inflicted with the particular jembe allegedly associated with the accused. 91.In support of that argument, the accused relies on Kiarie v Republic [1984] KLR 739, which he submits establishes that where identification evidence is weak, recovery of stolen property or other physical evidence may provide important corroboration. The accused argues that, in the present case, the absence of recovery of the alleged weapon or other independent physical evidence materially weakened the prosecution case. 92.On malice aforethought, the accused submits that Section 206 of the Penal Code requires proof of the intention to cause death or grievous harm, knowledge that death or grievous harm will probably result from the act, or an intention to commit or facilitate the commission of a felony. He argues that the mere fact of death or the existence of serious injuries does not, by itself, establish malice aforethought. 93.The accused relies on Nzuki v Republic [1993] KLR 171, for the proposition that malice aforethought is not established merely by proof that a person died, but must be inferred from clear circumstances demonstrating the requisite intention. 94.The accused further relies on Republic v Tubere s/o Ochen [1945] 12 EACA 63, which he submits requires the Court, in determining whether malice aforethought existed, to consider matters such as the weapon used, the manner in which it was used, the part of the body targeted, the nature of the injuries inflicted and the conduct of the accused before and after the attack. 95.Applying those principles, the accused submits that the evidence disclosed a sudden quarrel or confrontation rather than a premeditated intention to kill. He contends that the dispute arose in the context of a family disagreement, that he became irritated, left the house and subsequently returned. His alleged utterances that people wanted to kill him, the defence submits, suggested confusion, paranoia or provocation rather than a settled intention to cause death. 96.The accused consequently relies on Sections 207 and 208 of the Penal Code and submits that, where a killing occurs in circumstances amounting to provocation, the absence of malice aforethought reduces criminal liability from murder to manslaughter. The defence contends that the evidence, at its highest, established circumstances of a sudden quarrel and provocation and not the premeditated intention required for a conviction for murder. 97.On the burden and standard of proof, the accused reiterates that Section 107 of the Evidence Act and Article 50(2)(a) of the Constitution place the burden of proving guilt upon the prosecution. He submits that the alleged contradictions between the evidence of the eyewitnesses, the absence of recovery of the alleged weapon, the alleged shortcomings in the investigation and the absence of forensic evidence linking him to the weapon or the scene created reasonable doubt. 98.The accused relies on Sawe v Republic [2003] KLR 364, in which the Court of Appeal held that suspicion, however strong, cannot be the basis of a conviction. The accused submits that the prosecution case, in the circumstances of the present matter, rests on suspicion and inconsistent testimony rather than conclusive proof beyond reasonable doubt. 99.The accused therefore submits that although the prosecution established the deceased’s death and the occurrence of an unlawful assault, it failed to prove beyond reasonable doubt that he was the person who caused the fatal injuries and, in particular, failed to prove the element of malice aforethought under Section 206 of the Penal Code. 100.The accused accordingly urges the Court to find that the prosecution failed to discharge the burden imposed by Section 107 of the Evidence Act and Article 50(2)(a) of the Constitution. 101.The accused consequently prays that he be acquitted under Section 215 of the Criminal Procedure Code. In the alternative, and without prejudice to the foregoing submission, he urges the Court to consider substituting the charge with one of manslaughter under Section 202 of the Penal Code, on the basis that the evidence established provocation and an absence of malice aforethought. G. Issues For Determination. 102.From the evidence on record, and the rival submissions by both the prosecution and the defence, the following issues arise for determination by this court:a.Whether the deceased, Gaudencia Aoko Otieno, died and, if so, what was the cause of her death.b.Whether the death of the deceased was caused by an unlawful act or omission.c.Whether the unlawful act or omission that caused the deceased’s death was committed by the accused person, Kevin Omondi Nyapietho.d.If the accused person caused the death of the deceased, whether the prosecution has proved beyond reasonable doubt that he did so with malice aforethought as defined under Section 206 of the Penal Code.e.Depending on the determination of the foregoing issues, whether the accused person is guilty of murder as charged, manslaughter, or is entitled to an acquittal. H. Analysis And Findings. 103.I will proceed to address, consider and determine the issues I have set out above. 104.The first issue for determination is whether the deceased died and the cause of her death. This issue is not seriously in dispute. The prosecution bears the burden of proving the fact of death and its cause. In the present case, the fact of death was established by the evidence of PW1, Dr. Tobias Jude Masawa, the pathologist, as well as the evidence of PW3, Dorcas Auma Oriedo, who identified the deceased’s body before the post-mortem examination. 105.PW1 conducted the post-mortem examination on 27th February, 2023 at Masaba Hospital. His evidence was that the deceased had sustained multiple deep lacerative wounds on the face extending into the brain. 106.The most serious wound involved the left maxillofrontal and temporal bones of the skull and was associated with massive spillage of brain matter. There were also several other lacerative wounds, abrasions and bruises, together with fractures of the right elbow and lower part of the left femur. Internally, there was a displaced skull fracture and extensive injury to the brain. 107.The pathologist formed the opinion that the cause of death was severe head injury due to multiple lacerative wounds to the head. He produced the post-mortem report as PExh1. PW3, who was related to the deceased by marriage, identified the body by reference to the deceased’s facial features, legs and long toenails. 108.The evidence of PW1 was not materially challenged. His qualification and expertise as a pathologist were not disputed, and no competing medical evidence was tendered by the defence. 109.The fact that, during cross-examination, the witness stated that he could not determine whether the injuries had been inflicted by one person or several persons does not detract from his evidence regarding the fact of death or its medical cause. 110.The question whether the accused was the person who inflicted the injuries is not a medical question. It is a question to be determined from the totality of the evidence. 111.I therefore find, beyond reasonable doubt, that Gaudencia Aoko Otieno died and that the cause of her death was severe head injury resulting from multiple lacerative wounds to the head. The first issue is accordingly answered in the affirmative. 112.The second issue to be addressed is whether the death was caused by an unlawful act or omission. Section 203 of the Penal Code provides that:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 113.The requirement of an unlawful act or omission is an essential component of the actus reus of murder. 114.In the present case, the deceased did not die from natural causes. The post-mortem evidence disclosed multiple deep lacerative wounds to the head, a displaced skull fracture, extensive brain injury and massive spillage of brain matter. The deceased also sustained other injuries to the body. The evidence therefore demonstrates not merely that the deceased died, but that she suffered severe and violent physical trauma before her death. 115.The circumstances in which the injuries were sustained are equally significant. PW5 testified that the accused returned to the house armed with a jembe, broke open the door and attacked the deceased. 116.PW4 testified that he heard a disturbance and a scream from PW5 and, upon returning to the house with others, found the deceased lying on her back with a severe head injury and blood on the walls. 117.PW6 observed blood stains splashed on the wall of the living room. 118.The accused himself admitted that he had a jembe, that he used it to break open the door and that he subsequently found the deceased lying on the floor. The issue is not, therefore, whether the deceased’s death resulted from a natural event. The evidence overwhelmingly establishes that she sustained a violent assault which caused the fatal injuries. 119.The accused suggested that he may have found the deceased already injured or dead. That suggestion does not transform the injuries into an accident or a natural occurrence. Nor is there any evidence that the deceased’s injuries were self-inflicted. The multiplicity, severity and distribution of the wounds, particularly the deep lacerations extending into the brain and the displaced skull fracture, are inconsistent with an ordinary fall. 120.The defence placed some emphasis on the fact that the alleged jembe was not recovered. That fact may be relevant to the question of the identity of the assailant, but it does not negate the medical evidence that the deceased suffered fatal lacerative head injuries caused by a violent external force. The absence of recovery of the actual weapon does not mean that the injuries were not unlawfully inflicted. 121.I therefore find that the deceased’s death was caused by an unlawful act. The second issue is answered in the affirmative. 122.The third issue for determination is whether the unlawful act causing death was committed by the accused. This is the central issue in the case. 123.The accused submits that the prosecution failed to prove his identity as the perpetrator, relying principally on the fact that the prosecution witnesses were relatives, that the jembe was not recovered and that there was no forensic evidence linking him to the scene or weapon. The prosecution, on the other hand, relies principally on the direct evidence of PW5, the surrounding evidence of PW4, the accused’s own admissions and his conduct before and after the incident. 124.The starting point is that the burden of proving that the accused was the person who committed the unlawful act rests throughout upon the prosecution. The accused is not required to prove his innocence. The prosecution must establish his guilt beyond reasonable doubt. 125.The defence relied on Maitanyi v Republic [1986] KLR 198 and Wamunga v Republic [1989] KLR 424. Those authorities state important and settled principles. In Maitanyi, the Court of Appeal emphasized that, although a fact may be proved by the testimony of a single witness, that does not lessen the need to test with the greatest care the evidence of a single witness concerning identification, particularly where the conditions favouring correct identification are difficult. 126.The Court stated that what is required is other evidence, whether circumstantial or direct, pointing to guilt from which the court may safely conclude that the identification evidence is free from the possibility of error. 127.Similarly, in Wamunga, the Court of Appeal cautioned that where the evidence against an accused is identification or recognition evidence, the trial court must carefully examine the circumstances of identification and satisfy itself that they were favourable and free from the possibility of error. 128.The Court further recognized that although recognition may ordinarily be more reliable than identification of a stranger, mistakes in the recognition of close relatives and friends can occur. 129.Those principles are entirely applicable. However, the present case is not one of identification of a stranger during a fleeting encounter in difficult conditions. The accused was the deceased’s nephew and was known to PW4 and PW5. More importantly, the evidence of PW5 was not based upon a brief observation of an unknown person. She testified that she was in the same house with the accused, that she observed him before, during and after the assault, and that he was illuminated by solar lighting as he left the compound. 130.The question is therefore not whether the Court should mechanically accept PW5’s testimony merely because she knew the accused. The question is whether, having carefully scrutinized her evidence, the Court is satisfied that it is reliable and free from a reasonable possibility of error. In my view, it is. 131.PW5 gave a coherent account of the material events. She testified that she was in the house with the deceased, PW4 and the accused. During supper, the accused complained that the food was poisoned. Later, a discussion arose concerning the name Nyapietho. The accused became agitated, left the house and locked the door from outside. The door was also locked from inside. When the accused returned, he found it locked. He then used a jembe to force it open. 132.PW5 then gave direct evidence that the accused attacked the deceased with the jembe, striking her on the shoulder and head. She testified that the deceased instructed her to run away. PW5 escaped through the bedroom window. She observed blood on the deceased, on the accused and within the house. She later saw the accused leaving the compound carrying the television set. 133.The defence has not identified any material contradiction in that account which destroys its core. The accused’s submissions characterize PW5 as a juvenile and suggest that her evidence should be treated with particular caution. However, the evidence before the Court is that PW5 was a form two student. The defence did not establish that she was so young or incapable of understanding the events as to render her testimony inherently unreliable. More importantly, the Court is concerned with the quality and reliability of the evidence actually given. 134.The evidence of PW5 is also not standing alone. PW4 placed the accused, the deceased and PW5 together in the same house shortly before the attack. He testified that the accused became agitated, accused those present of intending to poison him, left and locked the door from outside, and later returned. PW4 heard a sound resembling a slap and then heard PW5 scream. When he subsequently returned with others, he found the deceased with a severe head injury and blood on the walls. 135.PW4 did not purport to have seen the actual fatal blows. That does not make his evidence worthless. His evidence corroborates material parts of the events immediately preceding and following the attack. Evidence need not be identical in every detail to be corroborative. Indeed, the fact that PW4 did not claim to see what he did not see may, in appropriate circumstances, enhance rather than diminish the reliability of his evidence. 136.There is also the evidence of the accused himself. The accused admitted that he was present in the homestead. He admitted that he was with the deceased, PW4 and PW5. He admitted that he possessed a jembe. He admitted that he used the jembe to break open the door. He further admitted that he removed the television set from the wall after allegedly finding the deceased dead and that he thereafter left the scene. He also confirmed that he was arrested at Nyamasaria. 137.These admissions do not, by themselves, amount to an admission that he killed the deceased. The Court must therefore be careful not to treat them as such. Their significance is that they place the accused at the scene, with the very type of implement which the eyewitness said he used, and in circumstances in which he admits breaking into the room immediately after the deceased was calling for help. 138.The accused’s account, however, is materially inconsistent with the evidence of PW5. He testified that he returned to the house after hearing the deceased call for help and found the deceased already lying on the floor, not breathing. He said that PW4 and PW5 were not in the house at that time. He further stated that he did not see anyone else there. 139.PW5, however, testified that she was present when the accused broke open the door and attacked the deceased, and that she escaped through the window. The accused was therefore confronted with a direct account placing him in the act of attacking the deceased. His response was a denial. The Court must determine which account is credible. 140.In doing so, I have considered the accused’s evidence as a whole. His version contains matters that are difficult to reconcile with the objective circumstances. He admits that he was in the homestead. He admits that he had a jembe. He admits that he used the jembe to break open the door. He admits that he removed the television set after finding the deceased dead. He admits that he left the area and was subsequently arrested at Nyamasaria. 141.The accused denied fleeing, but his own evidence was that he ran away after members of the public allegedly attempted to lynch him. The Court does not treat flight as conclusive proof of guilt. A person who believes that he is about to be attacked may indeed flee whether innocent or guilty. However, the accused’s conduct remains a circumstance to be considered together with all the other evidence. 142.The accused also sought to suggest that another person could have attacked the deceased. Yet no such person was identified by the evidence. The prosecution was not required to prove that no conceivable third person could have been present. It was required to prove that the accused was the person who committed the unlawful act. That proof may be established by direct evidence and corroborating circumstances. 143.I also reject the submission that the familial relationship between PW4, PW5, the deceased and the accused necessarily renders their evidence unreliable. A family relationship may require careful scrutiny of the evidence, particularly where there is evidence of hostility or an improper motive. But relationship, without more, is not a basis for rejecting otherwise credible evidence. The Court must examine the evidence on its merits. 144.There is no evidence before the Court of any established motive on the part of PW5 to falsely accuse her own elder brother of killing their aunt. The defence suggested the possibility of family disputes but did not establish any specific dispute capable of explaining a fabricated account of such gravity. 145.The accused further argued that the failure to recover the jembe weakened the prosecution case. I do not agree that it was fatal. The prosecution case was based principally on direct eyewitness testimony. The weapon was not the accused himself. The fact that the jembe was not recovered does not make it impossible for the Court to find, on credible evidence, that it was used and that the accused was the person who used it. 146.The defence relied on Kiarie v Republic [1984] KLR 739 for the proposition that where identification evidence is weak, recovery of physical evidence may provide corroboration. That proposition is unexceptionable. However, the converse does not follow: namely, that where the weapon is not recovered, otherwise credible direct evidence must necessarily fail. The strength of the prosecution case must be assessed as a whole. 147.In this case, the evidence of PW5 was direct and was supported by the surrounding circumstances. The medical evidence demonstrated severe head injuries. PW4 placed the accused and the deceased together immediately before the attack, heard the disturbance and PW5’s scream, and shortly thereafter found the deceased severely injured. The scene evidence confirmed blood splashes on the walls. The accused admitted possession and use of a jembe to break open the door and admitted removing the television after the deceased had been injured. 148.I have also considered the authorities on circumstantial evidence, including Sawe v Republic [2003] KLR 364. In that case, the Court of Appeal held that inculpatory facts relied upon in a circumstantial evidence case must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. 149.The Court further held that the burden of proving those facts remained on the prosecution and that “suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.” 150.The present case, however, is not founded merely upon suspicion or a chain of weak circumstantial evidence. The prosecution produced direct eyewitness evidence from PW5. The surrounding circumstances are therefore not being used to replace proof of the act of assault; they are being used to test and assess the credibility of the direct evidence and to determine whether the accused’s denial raises a reasonable doubt. 151.Having carefully considered the evidence, I find PW5 to be a credible witness. Her evidence was consistent on the material aspects of the attack. It was not materially shaken in cross-examination. It was corroborated in material respects by PW4, by the medical evidence and by the physical scene evidence. The accused’s own evidence placed him at the scene with a jembe and confirmed several surrounding circumstances. 152.I therefore find, beyond reasonable doubt, that the accused was the person who unlawfully assaulted the deceased and inflicted the injuries that caused her death. 153.The fourth issue for determination is whether malice aforethought was proved. Section 206 of the Penal Code provides that malice aforethought is established by evidence proving 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; ord.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. 154.The prosecution does not necessarily have to prove a direct verbal declaration by the accused that he intended to kill. In most cases, the mental state of an accused person is proved by inference from the surrounding circumstances. However, the inference must be founded on evidence and not on mere speculation. 155.The Court of Appeal in Nzuki v Republic [1993] KLR 171 gave important guidance on the nature of malice aforethought. The Court held that malice aforethought is a term of art and may consist of an express intention to kill or an intention to cause grievous bodily harm. The Court further explained that the relevant test is subjective to the actual accused person. It identified the relevant forms of intention as the intention to cause death, the intention to cause grievous bodily harm, or the deliberate commission of an act in the knowledge that there is a serious risk that death or grievous bodily harm will ensue, without lawful excuse, with the intention of exposing the victim to that risk. 156.The Court also emphasized that the mere fact that conduct is undertaken with knowledge that grievous harm is likely or highly likely is not, by itself, sufficient unless the requisite intention or knowledge contemplated by the law is established. 157.The prosecution also relied on Republic v Benjamin Kyalo Mulonzi [2019] eKLR and State v Opondo [2025] KEHC 940 (KLR). In State v Opondo, the High Court, relying on Republic v Tubere s/o Ochen [1945] 12 EACA 63, stated that the inference of malice aforethought may be drawn by considering the nature of the weapon used, the manner in which it was used, the part of the body targeted, the nature of the injuries inflicted and the conduct of the accused before, during and after the attack. 158.The classic authority remains Republic v Tubere s/o Ochen. The principle from that decision is that, in determining whether malice aforethought existed, the Court should consider the weapon used, the manner in which it was used, the part of the body injured or targeted and the conduct of the accused before and after the attack. The Court must, however, consider the facts of each case and should not apply any rigid formula. The principle has continued to be applied by our courts. 159.Applying those principles to the present case, the first consideration is the weapon. The evidence of PW5 was that the accused used a jembe. As we have seen above, the accused himself admitted that he possessed a jembe and used it to break open the door. A jembe is an agricultural implement which, depending on the manner in which it is used, is capable of inflicting serious bodily injury or death. 160.The second consideration is the manner in which the weapon was used. PW5 testified that the accused used the jembe to attack the deceased and struck her on the shoulder and head. The medical evidence revealed multiple deep lacerative wounds extending into the brain and a displaced skull fracture. The attack was therefore not a single inadvertent contact with an object. It involved a violent assault with a potentially lethal implement. 161.The third consideration is the part of the body targeted. The head is one of the most vulnerable parts of the human body. The medical evidence demonstrated that the injuries to the head were catastrophic. The deepest laceration involved the skull and extended into the brain, with massive spillage of brain matter. 162.The fourth consideration is the nature and severity of the injuries. The deceased sustained multiple deep lacerative wounds, a displaced skull fracture and extensive brain injury. The injuries were not minor, superficial or accidental. Their gravity is powerful evidence of the force with which the weapon was used. 163.The fifth consideration is the conduct of the accused before, during and after the attack. Before the attack, according to PW4 and PW5, the accused became agitated during the evening, accused those present of intending to poison him and left the house. He then returned with a jembe and forced open the door. 164.During the attack, he struck the deceased with the implement. After the attack, he left the scene carrying the television set and remained away until he was arrested. 165.I do not, however, find it necessary to conclude that the accused had a long-standing or carefully premeditated plan to kill the deceased. That is not the statutory requirement. The prosecution need not prove a prolonged plan or motive. The question is whether, at the time he committed the unlawful act, the accused possessed one of the forms of intention or knowledge set out in Section 206 of the Penal Code. 166.On the evidence, I am satisfied that he did. A person who deliberately uses a jembe to inflict severe blows to another person’s head must, at the very least, know that the act will probably cause death or grievous harm. The evidence establishes more than the mere fact of death. It establishes the deliberate use of a potentially lethal implement in a manner that caused multiple deep wounds and a fractured skull. 167.The accused argued that the incident arose from a sudden quarrel and that the alleged dispute concerning the name Nyapietho, together with his utterances that people wanted to kill him, indicated confusion or provocation rather than malice aforethought. 168.The law recognizes provocation. Section 207 of the Penal Code provides that where a person who unlawfully kills another, in circumstances which would otherwise constitute murder, does the act causing death in the heat of passion caused by sudden provocation and before there is time for his passion to cool, he is guilty of manslaughter only. 169.Section 208 defines provocation in terms of a wrongful act or insult of such a nature as would be likely to deprive an ordinary person of self-control and induce an assault of the kind committed. 170.The defence of provocation is therefore not established merely because an accused person was angry or that there was a quarrel. The Court must consider whether there was a wrongful act or insult capable of amounting to provocation in law, whether the accused acted in the heat of passion, whether there was time for the passion to cool and whether the act causing death was committed in those circumstances. 171.In the present case, the evidence does not establish provocation in the legal sense. The evidence concerning the name Nyapietho is, at most, evidence of an argument or irritation. There was no evidence that the deceased committed a wrongful act or offered an insult of the nature contemplated by Section 208 of the Penal Code. Nor is there evidence sufficient to establish that the accused was deprived of self-control in the legal sense. 172.More importantly, the circumstances disclosed by the evidence are inconsistent with the proposition that the fatal assault was a spontaneous and momentary act arising immediately from a single insult. The accused left the house, the door was locked, and he subsequently returned with a jembe. He then forced open the door and attacked the deceased. 173.Whatever emotional state he may have been in, the evidence does not establish that the killing occurred in circumstances which reduce the necessary malice aforethought under Section 207 of the Penal Code. 174.I have also considered the accused’s utterance that people wanted to kill him. That utterance may be relevant to his state of mind generally, but it does not, without more, establish that he lacked the capacity to form the intention required by Section 206 of the Penal Code. Nor does it, by itself, establish provocation. 175.The prosecution has therefore proved malice aforethought. I reach that conclusion principally under Section 206(b) of the Penal Code, namely that the accused knew that the act causing death would probably cause death or grievous harm. I am also satisfied that the evidence supports an inference of an intention to cause grievous harm within Section 206(a) of the Penal Code. 176.The fourth issue is accordingly answered in the affirmative. 177.The fifth and final question is whether, having regard to the findings above, the accused is guilty of murder, manslaughter or is entitled to an acquittal. Section 203 of the Penal Code requires the prosecution to prove that the accused caused the death of another person by an unlawful act or omission and that he did so with malice aforethought. 178.The prosecution has proved the fact and cause of death. It has proved that the death resulted from an unlawful act. It has further proved beyond reasonable doubt that the accused was the person who committed the unlawful assault. Finally, it has proved that the accused acted with malice aforethought within the meaning of Section 206 of the Penal Code. On the totality of the evidence, I am satisfied that the prosecution evidence is reliable. 179.The principle in Sawe v Republic (supra) remains that suspicion, however strong, cannot form the basis of a conviction. That principle is not offended by the present conclusion. The findings that I have reached are not founded on suspicion. They are founded on direct eyewitness evidence supported by the surrounding circumstances and by the accused’s own admissions. 180.I have also considered whether the evidence could reasonably support a conviction for manslaughter on the basis of provocation. For the reasons already given, I find that the evidence does not establish the statutory ingredients of provocation under Sections 207 and 208 of the Penal Code. I. Disposition. 181.I accordingly find that the prosecution has proved, beyond reasonable doubt, all the essential ingredients of the offence of murder contrary to Section 203 of the Penal Code. 182.The accused, Kevin Omondi Nyapietho, is therefore guilty of the murder of Gaudencia Aoko Otieno contrary to Section 203 as read with Section 204 of the Penal Code and is accordingly convicted. 183.It is so ordered. DELIVERED, DATED & SIGNED THIS 16TH DAY OF JULY, 2026.JOE M. OMIDOJUDGEAccused: Present.Ms. Muema, Prosecution Counsel.Mr. Okoth Oluoch, Defence Counsel.Mr. Ngoge & Mr. Juma, Court Assistants.Ms. Muema: The accused has no previous criminal records. He maybe treated as a first offender.Court: Mitigation on 21st July, 2026.