https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10387

Republic v Obura (Criminal Case E013 of 2025) [2026] KEHC 10387 (KLR) (14 July 2026) (Judgment) Neutral citation: [2026] KEHC 10387 (KLR) Republic of Kenya In the High Court at Siaya Criminal Case E013 of 2025 DK Kemei, J July 14, 2026 Between Republic Prosecution and Francis Ochieng Obura Accused Judgment 1.The accused herein, Francis Ochieng Obura is charged with an offence of murder contrary to section 203 as read with section 204 of Penal Code. The particulars are that on the night of the 19th day of March, 2025 at Ugunja Township, Ugunja Sub-County within Siaya County, he murdered one Linet Adhiambo Murumba. 2.The accused denied the charges and thus warranting a trial wherein the prosecution called eight witnesses in support of its case. 3.Dinah Leonora Murumba (PW1) who is the sister to the deceased testified that she is a businesswoman from Bondo. That she identified the deceased as her sister and went ahead to indicate that she knew the accused. That on 19.03.2025 at 8:38 PM, she received a call from her sister's phone number and that the caller introduced herself as Diana, but the line went dead shortly after. At 12:38 AM, her former mother-in-law called to inform her that her sister’s husband was informed that she had been rushed to the hospital after an incident. She later found out that her sister had passed away at Ambira Hospital. On cross examination, she admitted that she did not personally see the accused assaulting her sister and could not definitively identify who was speaking on the phone before the line was disconnected. 4.Mary Anyango Nyaudo (PW2) testified that she knew both the deceased (a fellow market trader) and the accused. That on 19.03.2025 at around 11:30 PM, she was at her stall when a youth representative named Moses informed her to step outside near Pramukh Stores. There, she found a motorcycle rider and the accused who appeared heavily intoxicated and incoherent. That the accused told them he was escorting the deceased home when they were attacked. The deceased was lying on the ground, unresponsive with blood oozing from a chest wound. They tried to call the OCS Ugunja but the call went unanswered. It was raining heavily. They reported to the police station, retrieved the victim’s mother-in-law and confirmed the victim died around 1:30 AM before being taken to Ambira Hospital. On cross examination, she re-iterated that the accused was extremely drunk, slurring his speech, and carried no visible weapons. She did not witness the stabbing incident. 5.Boaz Zuma (PW3) a market warden at Ugunja Township stated that on 19.03.2025, there was a power blackout in parts of the town. While walking home in the heavy rain at around 11:00 PM, his flashlight illuminated a human body lying on the ground. He approached and found the accused standing quietly over the deceased who was wearing a miniskirt pulled up and bleeding profusely from the chest. When asked what happened, the accused claimed that they had been drinking together and were ambushed by other unidentified people. He raised an alarm and called PW2 (Mary). On cross examination, he confirmed that the accused was highly intoxicated, had facial cuts (suggesting a fall), possessed no weapon and claimed that an external attack occurred when two persons joined them at the scene. He did not see the accused stabbing the victim. That he could not doubt the version of events as narrated by the accused. 6.Celine Achieng Olam (PW4) a hotelier within Ugunja Township and the proprietor of St. Monica Hotel testified that the accused worked as a cook. On 19.03.2025, the accused performed his kitchen duties, left briefly and returned at 4:00 PM. The deceased came to check on him and left. Later, around 10:00 PM, the accused requested for a kitchen knife to cut something outside. The hotel closed at 10:30 PM and the accused retired to his room behind the building. She later learned the lady had been killed. Police searched his room but found nothing. The kitchen knife was recovered months later in the hotel store during school holidays. On cross examination, she confirmed that she did not see the accused leave the hotel with the deceased or witness any assault. That there was nothing strange for a cook to request for a knife. That the de eased did not leave the hotel with the accused. That she did not have anything to link the accused to the death of the deceased. 7.John Rohame (PW5) was stood over by leave of the Court and did not offer any oral or documentary testimony in this matter. 8.Charles Olukakha Nandwa (PW6) who worked near St. Monica Hotel stated that he saw the accused working on 19.03.2025. Later that night during the rain, he saw the accused covered in mud and what looked like blood stains walking back to his quarters. He later heard the accused had been arrested for the murder of the lady. That he had earlier seen the accused and the lady enter his room and they left together but could not tell where the duo went. That he did not know how the incident took place. 9.Dr. Don Otowa (PW7) a medical officer at Ambira Sub-county hospital stated that he conducted the autopsy on 21.03.2025. The deceased was an adult female between 30–45 years old. In his findings he discovered a massive hematoma and a deep penetrating stab wound to the chest that punctured the respiratory/cardiovascular system. That there was a collapse of the lung.. He established the cause of death of the deceased as multifactorial hemorrhage due to a penetrating chest wound. That he noted a clerical error on the initial stamp date (listed as 20.03.2025 instead of 21.03.2025). He produced the autopsy report as an exhibit. 10.No.68614 Michael Ogony (PW8) a DCI Investigator at Ugunja stated that he took over the file from a colleague. That he received the initial report on 20.03.2025 via OB 03/20/03/2025. That he investigated the scene at Pramukh Store where the deceased was found stabbed. He established that the accused worked as a cook at St. Monica Hotel and had taken a kitchen knife under false pretenses, met the deceased, went to room No. 4 and left together. That the accused was the last person seen alive with her and was caught standing over her body without raising an alarm. That he preferred the accused with a murder charge. On cross examination, he admitted that no murder weapon was found directly on the accused at the scene. That he acknowledged the accused claimed they were ambushed, but stated the circumstantial chain strongly pointed to the accused. That his former colleague stated that the deceased had been stabbed by an unknown persons. That the statement by accused is that they had been attacked by unknown people. That he has no reason as to why the accused should answer to a murder charge. That it is not strange for one to ask for a knife at the hotel. That the knife was recovered after two months but the same was not handed over by the accused’s employer. That the suspect had no motive in the crime. That he had no evidence that the accused murdered the deceased although he blamed him for the murder. 11.At the close of the Prosecutor's case, this court established that a prima facie case had been made out against the accused herein to require him to be put on his defence. The accused person opted to tender a sworn testimony and called four witnesses. 12.Francis Ochieng Obura (DW1) stated that the allegations are false. He stated that the deceased was a regular business customer who sold smoked fish to him at the hotel. On the night of 19.03.2025, she visited him at the hotel and asked him to accompany her to collect a debt from someone. They walked together in the heavy rain and in the dark. Suddenly, they were ambushed by unknown attackers near Pramukh Store. That someone flashed a bright light at them, and he was struck down. When he got up, he found her already stabbed, thrashing on the ground. He stayed by her side out of shock and panic until passersby arrived. He denied stealing or using any kitchen knife for an assault. On cross examination, he confirmed that he was alone with her when she was fatally wounded but adamantly denied being the assailant, blaming the sudden brutal actions of the fleeing thugs. That he was the last person to be with the deceased. That he was already drunk during the incident. That he worked at a hotel as a cook and thus the issue of a knife was not unusual. 13.After the close of the defence case, learned counsels made oral submissions. 14.Mr Soita for the prosecution argued that the circumstantial chain of events encompassing the borrowed kitchen knife, the heavy rain, the dark night and the mud and blood found on the Accused points irresistibly to his guilt. The Prosecution maintained that the Accused failed to discharge his burden under the "Last Seen Doctrine," gave an unbelievable, inconsistent narrative of a third-party ambush and failed to intervene to protect his companion. He further submitted that the State was under no legal compulsion to subject the weapon to forensic evaluation given the otherwise watertight nature of the circumstantial evidence. That the conduct of the accused in failing to intervene during the incident is suspect and that he was placed at the scene of crime. Reliance was placed in the case of R Vs Kipkering Arap Koske [1949] EA 135 as well as Abanga Vs R Criminal Appeal No. 32 of 1990 to support that circumstantial evidence placing the accused at the scene of crime and as the culprit. 15.Mr Okanda, learned Counsel for the Accused contended that the essential ingredients of malice aforethought were completely absent and that the Prosecution's case was plagued by fatal logical contradictions. He argued that because the Accused worked as a professional cook, borrowing a kitchen knife was a routine incident of his employment that could not directly implicate him in a homicide. Furthermore, he raised two primary grounds for acquittal: first, that the recovered kitchen knife was never subjected to forensic examination to confirm whether it was indeed the weapon used in the crime; and second, that the Prosecution's chronological timeline was physically impossible, as the Accused could not have executed a violent crime, returned the weapon to a closed hotel store and retraced his steps to the scene within a meager 30-minute window during a torrential downpour and absolute blackout. Counsel urged the Court to find that the police failed to conduct a wide-scoped investigation, leaving a gaping chasm of reasonable doubt and that the accused gave a cogent explanation as to what had really happened to the deceased. 16.I have considered the evidence adduced by both prosecution and defence as well as submissions presented. The issue for determination is whether the prosecution has proved its case against the accused herein beyond reasonable doubt. 17.It is noted that the accused has been charged under Section 203 as read with Section 204 of the Penal Code, which provide as follows:Section 203Any person who of malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.Section 204 –Any person convicted of murder shall be sentenced to death. 18.The burden of proof in all criminal cases is always upon the prosecution to discharge and that the standard is one of beyond any reasonable doubt. See Woolmington vs DPP [1935] AC 462 which laid down the guiding principles regarding the issue of burden of proof which is placed on the shoulders of the prosecution to discharge and that the standard is one of beyond any reasonable doubt. The court stated in the Woolmington case as follows:“Throughout the web of the English criminal law, one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner's guilt, subject to the qualification involving the defence of insanity and to any statutory exception. If at the end and on the evidence of the case, there is a reasonable doubt created by the evidence given either by the prosecution, or the prisoner fails to rebut the defence was committed by him, the prosecution has not made out a case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained." 19.In order to sustain a charge of murder, the prosecution is under obligation to prove certain essential ingredients inter alia; that there was death of the deceased; that the death was caused by an unlawful act or omission; that there was malice aforethought; that the accused is/are the perpetrator/s of the crime. 20.As regards the aspect of death, this is a straightforward question of fact. In this case, the death of the deceased is established beyond any doubt. Her body was identified by her sister, PW1. It was discovered at the scene by PW2 and PW3 and subsequently examined by Dr. Don Otowa (PW7) who performed a post-mortem examination and formed the opinion that the cause of death as multifactorial hemothorax with lung collapse secondary to penetrating chest wound. I find the ingredient on the issue of death of the deceased was proved by the prosecution beyond any reasonable doubt. 21.As regards the unlawfulness of the death, it is trite law that all homicides are unlawful unless circumstances exist to render it excusable or justified as was established in the case of R vs Guzambizi S/o Wesonga 2 [1948]15 EACA 65. I find no such circumstance has been demonstrated in this case.The medical evidence presented by Dr. Don Otowa (PW7) revealed that the deceased suffered a deep penetrating stab wound to the chest that punctured her cardio-respiratory system causing lung collapse. A targeted stab wound with a sharp object to a vital organ can never be classified as an accident or a lawful act. It is a violent, criminal assault. The deceased was then aged around 35-45 years old and in good health and looked to live more years. She did not deserve to die in the manner that she did. Hence, I find that this ingredient was proved beyond any reasonable doubt by the prosecution. 22.On whether there was malice aforethought, section 206 of the Penal Code provides the appropriate explanation of what constitutes the same as the intention or knowledge of causing death or grievous harm and can be inferred from circumstances inter alia; an intention to cause death of any person; an intention to cause grievous bodily harm which leads to the death of such person; reckless disregard of life where a perpetrator is aware of the possibility that their actions could lead to death of such a person; intentional commission of a criminal act where death is a natural consequence of the act; evidence of prior planning or premeditation. Under Section 203 of the Penal Code, murder is described as the unlawful killing of a person with malice aforethought and that the perpetrator had the intention, knowledge or recklessness which indicates his awareness that his/her actions are likely to result in death or serious bodily harm. 23.The medical evidence from PW7 establishing a penetrating chest wound certainly confirms that the act itself was committed with malice aforethought. However, the Prosecution seeks to pin this malice on the Accused by citing his retrieval of a kitchen knife at 10:00 PM. This is where the Prosecution's legal logic fractures. For an act to constitute preparation under malice aforethought, the item secured must have no other reasonable or ordinary utility in the hands of the holder at that given moment. 24.The Accused was employed as a professional cook at St. Monica Hotel. The act of a cook handling, requesting or keeping a kitchen knife is largely natural as it is a routine facet of his work and livelihood. To deduce homicidal intent from a culinary worker handling a knife amounts to speculation based on mere suspicion, which violates the strict threshold set in R v Kipkering Arap Koske (1949) 16 E.A.C A 135. The act of borrowing the knife is entirely swallowed by his normal employment context and cannot be used to establish the requisite mens rea. 25.A critical and often overlooked component of this trial is the element of intoxication which directly challenges the formation of malice aforethought. PW2 testified that upon finding the Accused at the scene, he was heavily intoxicated and slurring in his words. 26.Under Section 13(4) of the Penal Code (Cap 63)“Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise to commit the offense." 27.Malice aforethought requires a calculated or specific intent to kill or cause grievous bodily harm. Where an individual is proved to be in a state of advanced intoxication such that his cognitive capacity to comprehend the immediate lethal consequences of his actions is severely impaired and that the law dictates that he cannot safely be said to have formed a specific intent. 28.Even if this Court were to entertain the Prosecution's highly improbable timeline, the confirmed state of the Accused's severe intoxication at the scene legally negates the safe finding of premeditation or a deliberate homicidal mind (mens rea). At most, such an omission of cognitive capability would reduce the offense to manslaughter under Section 202. However, given that the underlying identity of the perpetrator is unproven, the issue of intent falls away completely. 29.While the Prosecution is not statutorily mandated to prove motive to satisfy malice aforethought (Section 9(3) of the Penal Code), the total absence of any grudge, hostility or disagreement between the Accused and the deceased is an essential factor when weighing a case built wholly on circumstantial evidence. 30.The evidence shows a peaceful commercial relationship: the deceased supplied smoked fish to the Accused's kitchen. The Accused's narrative that he was merely escorting her to collect a debt when they were ambushed in the pitch-dark blackout stands as a highly plausible alternative hypothesis that perfectly explains the presence of mud, shock and panic without invoking a homicidal mens rea on his part. 31.The Prosecution has successfully proved that someone killed the deceased with malice aforethought based on the brutality of the chest stab wound. However, they have failed to prove that this specific Accused formed that malice. His possession of the knife was professional, his state of mind was heavily intoxicated and his presence at the scene was explanatory, leaving the element of subjective malice entirely unproven. 32.On whether the accused person herein was the perpetrator of the crime.it is apt to cite the case of R v Turnbull & Others [1976] 3 ALL ER 549, where Lord Widgery CJ held as follows:“First, whether the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of one identification or other. In addition, he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the Judge need not use any particular form of words. Secondly, the Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation?At what distance? Was the observation impeded in any way, as for example by passing traffic or a crowd of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reasons for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the alleged accused given to the police by the witness when first seen by them and his actual appearance. In any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy, they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases, if the accused asks to be given particulars of such description, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger in our judgement when the quality is poor, as for example when the identification is made after a long period of observation, or in unsatisfactory conditions by a relative, a neighbor, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it, provided always however that an adequate warning has been given about the special need for caution. In evaluating identification evidence, particularly when it emanates from a single witness, the court must exercise great caution.’’ 33.In the case of Wamunga v R [1989] KLR 424 the court held that where the only evidence against a defendant is evidence of identification, the court must examine such evidence carefully and be satisfied that the circumstances of identification were favorable and free from the possibility of error. The court went on to state as follows:‘’It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favorable and free from possibility of error before it can safely make it the basis of a conviction. 34.In the case of Maitanyi Vs. Republic [1986] KLR 198 the court held as follows“1.1. Although this court has held that a fact may be proved by the testimony of a single witness, this does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is known that the conditions favoring a correct identification were difficult.2.When testing the evidence of a single witness, a careful inquiry ought to be made into the nature of the light available and the conditions and whether the witness was able to make a true impression and description.3.The trial court must warn itself of the danger of relying on the evidence of a single identifying witness. It is not enough for the court to warn itself after deciding. It must do so when the evidence is being considered and before the decision is made.” 35.The Prosecution relies heavily on the testimony of PW4 that the Accused borrowed a kitchen knife at 10:00 PM. However, the record shows that the Accused was employed as a professional cook at St. Monica Hotel. In the ordinary course of human affairs, a cook handling or borrowing a kitchen knife within his workplace is a normal non-nefarious event. As established in R v Kipkering Arap Koske & Another (1949) 16 EACA 135 intermediate inferences drawn from circumstantial facts must be grounded in strict logic not suspicion. The act of a culinary worker borrowing a knife cannot directly implicate him as having committed a homicide. 36.Crucially, the knife recovered months later was never subjected to forensic examination. There is no DNA profiling, no blood-grouping analysis and no fingerprint data linking this specific knife to the biological material of the deceased or the hands of the Accused. In Chila & Another v R [1967] EA 722, the East African Court of Appeal held that where the Prosecution relies on a specific weapon to secure a conviction, the failure to scientifically connect that weapon to the crime scene or the victim introduces an incurable gap. This Court cannot engage in judicial guesswork to assume this was the murder weapon. 37.The Prosecution's timeline is structurally untenable. The hotel closed at 10:30 PM and the Accused left with the deceased. By 11:00 PM, a mere 30 minutes later the Accused was discovered standing quietly by the deceased near Pramukh Stores during a torrential downpour and absolute power blackout. For the Prosecution's theory to hold, the Accused must have isolated the deceased, subjected her to a violent sexual and physical assault, delivered the fatal stab wound, ran back to the hotel store, cleaned and returned the knife and then walked back through the mud and storm to stand passively next to her body all within 30 minutes. This sequence is a logistical and physical impossibility. The chronological facts strongly point to the conclusion that he is not the perpetrator and heavily support his consistent narrative of a swift third-party ambush. 38.The DCI investigator (PW8) admitted to a narrow focus, arresting the Accused simply because he was present at the scene. No wider investigations were conducted in Ugunja Township to rule out local criminal gangs operating during the blackout. The Accused's explanation that he stayed by his companion's side out of sheer shock, panic and heavy intoxication following a sudden ambush is a plausible explanation that the state has failed to dismantle. The law dictates that where two plausible hypotheses exist, the one favoring the innocence of the accused must be adopted. The Prosecution has failed to establish the fourth and most vital ingredient: the identity of the Accused as the perpetrator. I find that the several doubts created must be resolved in favour of the accused in any event. 39.In view of the foregoing observations, it is my finding that the prosecution has not proved its case against the accused herein Francis Ochieng Obura beyond any reasonable doubt. I find him not guilty of the charge of murder and that he is ordered to be set at liberty forthwith unless otherwise lawfully held. DATED AND DELIVERED AT SIAYA THIS 14TH DAY OF JULY 2026D.KEMEIJUDGEIn the presence of:Francis Ochieng Obura .....AccusedOkanda ........... for AccusedSoita .....for ProsecutionMaurine ....Court Assistant