https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9822

Republic v Otieno (Criminal Case E008 of 2025) [2026] KEHC 9822 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 9822 (KLR) Republic of Kenya In the High Court at Mombasa Criminal Case E008 of 2025 WM Kagendo., J June 18, 2026 Between Republic Prosecutor and Selman Otieno Accused Judgment 1.The accused person, Selman Atieno Otieno, was charged with the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code. 2.The particulars of the charge were that on 24th April 2025 at Kipevu-Migadini area within Changamwe Sub-County, Mombasa County, she murdered Kenneth Shaki Njule. 3.The accused pleaded not guilty and the matter proceeded to full trial. The burden therefore rested upon the prosecution to prove each ingredient of the offence beyond reasonable doubt. 4.The prosecution called ten (10) witnesses in support of its case. 5.PW1 Charles Wanjie Njuguna testified that he had known the deceased for approximately ten years as a friend and workmate. He stated that on 16th April 2025 he left work with the deceased's elder brother, Conrad Njule, and proceeded to Kipevu where they consumed palm wine. The deceased later joined them, and thereafter they proceeded to Apollo Bar in Changamwe in the company of several other persons. 6.PW1 testified that they eventually left the deceased behind at the bar and proceeded elsewhere. He stated that the deceased had a tendency to become violent when intoxicated, and this influenced their decision to leave him behind. 7.On the following morning, PW1 received information that the deceased had been injured. He proceeded to the deceased's residence and found him lying outside the house. Together with others, they arranged for him to be taken to Port Reitz Hospital for treatment. 8.PW1 further testified that on 18th April 2025 Conrad informed him that the deceased had allegedly implicated the accused person in the injury and that a recording had been made. He however, conceded that he was not present when the alleged statement was made and did not personally hear the deceased implicate the accused. 9.PW1 further confirmed that he was present when Conrad chased the accused person away from the hospital ward. 10.PW2 David Kibiti Kilinzo testified that he was the deceased's neighbour. He stated that at approximately 1.00 a.m. on 17th April 2025 he heard the deceased arrive home while drunk. He was making noise as he approached their shared plot. According to PW2, the deceased first knocked on the metallic door and thereafter began knocking on the windows. 11.PW2 testified that he subsequently heard glass panes shattering. He did not leave his house at the time. When he later emerged in the morning he found the deceased lying outside. 12.PW2 did not witness any confrontation between the accused and the deceased. Neither did he hear screams, cries for help or sounds suggestive of a struggle. 13.PW3 Holliness Njue, a sister to the deceased, testified that she received information from the accused that the deceased had been admitted to the hospital. She visited him and found him unconscious. 14.PW3 later revisited the deceased when he had regained consciousness. She testified that before the deceased could narrate what had happened, Conrad directed the accused to leave the ward. 15.PW3 further testified that she left the ward after receiving a telephone call. Upon her return, she found that a video recording had already been made. 16.She stated that she later watched the video in which the deceased allegedly stated that the accused had cut him with a knife. However, she confirmed that she did not personally hear the deceased make the allegation outside the contents of the video. 17.PW4 Conrad Shima Njule, the deceased's elder brother, testified regarding the events preceding the injury and the subsequent hospitalization of the deceased. 18.He testified that on 18th April 2025, he recorded a video statement from the deceased in hospital. 19.According to PW4, the deceased informed him that after arriving home, he knocked on the door and later on the windows, whereupon the accused emerged from the house armed with a knife and cut him on the forearm. 20.PW4 further testified that the accused had informed him that the deceased injured himself on broken window louvers. 21.PW5 Dr. Ngali Meduuko produced the post-mortem report on behalf of the pathologist. 22.The report established that the deceased died from multiple organ failure due to severe haemorrhage following severed arteries on the right forearm in the background of early cirrhotic liver disease. 23.The doctor testified that the wound had smooth edges and expressed the opinion that the injury was unlikely to have been caused by broken glass. 24.PW6 Agatha Chima, an aunt of the deceased, testified regarding the relationship between the deceased and the accused and identified the body for post-mortem purposes. 25.PW7 Corporal Guylord Amayumu testified that upon visiting the scene he found broken window louvers and blood stains on the wall adjacent to the window. 26.PW7 confirmed that the accused consistently maintained that the deceased had injured himself while striking the window. 27.PW7 further confirmed that despite visiting the scene, the broken glass pieces were not collected for forensic examination. 28.PW8 Joseph Mwai Munyatta, a digital forensic examiner, analysed the mobile phone used by PW4 and confirmed that the extracted video files had not been altered. 29.PW9 PC John Nyaga produced the photographic evidence relating to the scene. 30.PW10 PC Mary Uchi was the investigating officer. She testified that the accused consistently maintained that the deceased arrived home drunk, became violent, struck the windows and thereafter sustained the injury. 31.PW10 conceded during cross-examination that no knife was recovered during investigations. 32.Upon being placed on her defence, the accused gave sworn testimony. She stated that the deceased arrived home heavily intoxicated, shouted outside the house and repeatedly struck the door and window panes. 33.She testified that after the deceased became silent, she later discovered him lying outside and observed blood flowing from the broken window pane down the wall and onto the ground. She immediately alerted neighbours and relatives. 34.DW2 Chrispin Kisaka Mbeche testified that while in hospital he observed PW4, Conrad, allegedly directing the deceased on what to say regarding the incident. According to DW2, the deceased repeated words suggested by PW4 and appeared unable to independently recall what had happened. DW2 maintained that the allegation against the accused originated from PW4 rather than the deceased. Analysis And Determination 35.The accused person is charged with the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code. Section 203 provides that:“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.” 36.The burden of proof in criminal proceedings rests throughout upon the prosecution and never shifts to the accused person. The prosecution bears the duty of proving every ingredient of the offence beyond reasonable doubt. This principle was firmly established in Woolmington v DPP [1935] AC 462 and remains one of the cornerstones of criminal justice. 37.Article 50(2)(a) of the Constitution further guarantees every accused person the right to be presumed innocent until the contrary is proved. Consequently, where doubt exists, such doubt must be resolved in favour of the accused. 38.In Joseph Kimani Njau v Republic [2014] eKLR, the Court of Appeal stated that both the actus reus and the mens rea of the offence charged must be proved beyond reasonable doubt before a conviction can be entered. 39.Similarly, in Anthony Ndegwa Ngari v Republic [2014] eKLR, the Court of Appeal identified the essential ingredients of the offence of murder as:a.Proof of the death of the deceased and the cause thereof;b.Proof that the accused committed the unlawful act which caused the death; andc.Proof of malice aforethought. 40.I shall therefore consider each of the above ingredients against the evidence on record. Proof of death and cause of death 41.There is no dispute regarding the fact of death. The post-mortem report produced by PW5 established that the deceased died from multiple organ failure due to severe haemorrhage following severed arteries on the right forearm in the background of early cirrhotic liver disease. 42.The defence did not challenge either the fact of death or the medical cause thereof. I am therefore satisfied that the prosecution proved beyond reasonable doubt the death of the deceased and the cause thereof. Whether the prosecution proved that the accused inflicted the fatal injury 43.The principal issue in dispute is whether it was the accused person who inflicted the injury which ultimately led to the deceased's death..On this element, every homicide is presumed unlawful unless authorized, justified or excused by law. See Sharm Pal Singh v Republic [1962] EA 13 and Guzambizi Wesonga v Republic (1948) 15 EACA 63 where the Court held that every homicide is presumed unlawful unless circumstances render it excusable or authorized by law. 43.The post-mortem report established that the deceased died from multiple organ failure due to severe haemorrhage following severed arteries on the right forearm. There is therefore no dispute that the deceased sustained a serious injury which ultimately led to his death. 44.The critical issue is whether the prosecution proved beyond reasonable doubt that it was the accused person who inflicted that injury. 45.It is noteworthy that no witness testified to having seen the accused stab the deceased. No witness saw the accused armed with a knife. The prosecution case therefore rests principally upon the video recording allegedly made by PW4 while the deceased was admitted in hospital and the medical opinion that the injury could not have been caused by broken glass. 46.The law regarding circumstantial evidence is settled. In Kipkering Arap Koske & Another v Republic (1949) 16 EACA 135, the Court held that before an inference of guilt can be drawn, the inculpatory facts must be incompatible with innocence and incapable of explanation upon any other reasonable hypothesis than that of guilt. The same principle was reiterated in Sawe v Republic [2003] eKLR where the Court emphasized that suspicion, however strong, cannot form the basis of a conviction. 47.Upon evaluating the entire evidence on record, I find that several significant circumstances capable of supporting an alternative explanation were not satisfactorily addressed by the prosecution. 48.PW2 David Kibiti Kilinzo, an independent neighbour, testified that at about 1. 00 a.m. he heard the deceased arrive home while drunk. He heard him banging the metallic door before proceeding to knock and hit the windows. Shortly thereafter, PW2 heard glass panes shattering. Significantly, PW2 did not hear any quarrel, screams, confrontation or sounds suggestive of a physical assault. 43.The evidence of PW2 materially supports the defence account that the deceased was violently striking the windows immediately before sustaining the injury. His evidence was not shaken in cross-examination and remained one of the few independent accounts of the events immediately preceding the injury. 44.PW1 similarly testified that the deceased tended to become violent whenever intoxicated. Indeed, PW1 candidly admitted that he and his companions, including PW4, left the deceased behind because of his drunken behaviour. The evidence of PW1 and PW4 shows that the deceased began drinking with his companions, including his brother Conrad, at about 7.00 p.m. and continued drinking for several hours thereafter. 45.The deceased was ultimately left behind by his companions. Although they parted ways with him much earlier in the night, he only arrived home at approximately 1.00 a.m. No evidence was led as to where he had been during the intervening period or the quantity of alcohol he may have consumed. What emerges clearly, however, is that he arrived home heavily intoxicated. 46.The physical evidence at the scene raises further doubt regarding the prosecution theory. PW7 testified that upon visiting the scene he found broken window louvers. He further observed blood stains on the wall adjacent to the broken window. The accused similarly testified that she observed blood flowing from the broken window pane down the wall and onto the ground. 47.The photographic evidence produced by PW9 confirms those observations.The photographs clearly depict blood concentrated around the broken window area, extending from the windowsill down the adjacent wall. The blood pattern is plainly visible in the photographs admitted as exhibits before the court. 43.If indeed the deceased was cut by the accused with a knife and thereafter pushed away from the window area, as suggested in the prosecution's case, no satisfactory explanation was offered as to how substantial quantities of blood came to be concentrated on the windowsill and wall immediately adjacent to the shattered glass. 44.In the court's view, that physical evidence was capable of supporting the defence contention that the injury occurred at or near the broken window. At the very least, it raised a reasonable line of inquiry that required proper forensic investigation. 45.Unfortunately, the investigation left critical gaps. Although the investigating officer visited the scene and observed the broken louvers, no effort was made to collect or preserve the broken glass fragments. The glass was never subjected to forensic examination and no attempt was made to establish whether the injury could have been caused by the shattered panes. 46.Equally significant is the fact that the alleged knife was never recovered. No witness saw the accused armed with a knife. No knife was recovered from the scene, from the accused, or from any location associated with the offence. No forensic evidence connected any knife to the injury sustained by the deceased. 47.While recovery of a weapon is not mandatory in every prosecution, the absence of the alleged weapon becomes important where, as here, the nature of the weapon is itself the central issue in dispute. The prosecution sought to prove that the injury was caused by a knife and not by broken glass, yet neither recovered the alleged knife nor scientifically excluded the broken glass as the source of the injury. 48.The court has also considered the evidence of PW5, who expressed the opinion that the injury could not have been caused by broken glass because the wound edges were smooth. Respectfully, that opinion must be considered alongside the totality of the evidence. The doctor did not examine the broken glass fragments because they were never recovered. Consequently, the opinion remained a medical assessment unsupported by any forensic examination of the actual objects present at the scene. 49.When viewed together, the deceased's prolonged drinking, his intoxicated and violent conduct, the evidence of PW2 regarding the shattering glass, theblood concentrated on the windowsill and wall, the failure to preserve the broken glass, and the failure to recover the alleged knife constitute co-existing circumstances which were never satisfactorily excluded by the prosecution. 43.In those circumstances, the court is unable to conclude at this stage that the prosecution eliminated every reasonable possibility consistent with innocence. The court must therefore proceed to carefully examine the reliability of the video recording and the alleged statement made by the deceased before determining whether the burden of proof has been discharged. 44.In the final analysis on this element, the court reiterates that the burden remained at all times upon the prosecution to prove, beyond reasonable doubt, that the deceased’s death resulted from an unlawful act or omission attributable to the accused person, and to exclude any reasonable alternative hypothesis consistent with innocence. 45.While it is not disputed that the deceased suffered a fatal injury and that his death resulted from severe haemorrhage leading to multiple organ failure, the evidential gap lies in the identity of the perpetrator and the mechanism by which the injury was inflicted. The law is clear that proof of death alone, however tragic, is insufficient without proof linking the accused to the unlawful act that caused itThe other key piece if evidence relied upon by the state was the video recording by PW4, Conrad. Statutory Basis of Dying Declarations in Kenya 46.The law on dying declarations is found in Section 33(a) of the Evidence Act, Cap. 80 Laws of Kenya. The provision creates an exception to the hearsay rule by allowing statements made by a deceased person concerning:1.The cause of his or her death; or2.The circumstances of the transaction leading to that death. 47.Courts must, however, exercise caution and in the casePius Jasunga s/o Akumu The former East African Court of Appeal emphasized that dying declarations should be received cautiously because: The maker cannot be cross-examined. The statement is made in circumstances that may affect perception or memory. 43.In Choge v Republic ;The Court stated:There need not be corroboration for a dying declaration to support a conviction. Still, caution must be exercised because it is generally unsafe to found a conviction solely upon such evidence. Weight depends on surrounding circumstances 43.In Republic v Muyovya bin Msuma , the court observed that because Kenyan law does not require expectation of death, the evidential weight attached to dying declarations may be less than in England. Consequently, courts must be even more cautious when relying on them. 44.When evaluating a dying declaration, Kenyan courts commonly ask:1.Did the statement relate to the cause of death or the circumstances leading to death?2.Was the deceased mentally and physically capable of making a reliable statement?3.Was the identification of the assailant free from possibility of mistake?4.Is there corroborative evidence?5.Is it safe to rely on the statement despite the absence. 43.In the present case, the video recording was made by PW4, who exhibited a lot of hostility towards the deceased. This hostility was based on the strained relationship between the deceased and the accused person. The two had separated variously but always ended back together. We got this from their auntie PW6, and sister Pw3. On the fateful day that PW4 made the recording, he not only chased the accused from the hospital, but he also involved the hospital administration and security team to keep her out. The evidence, however, does not paint the accused person as the sole villain in the rocky marriage. PWI, and pw2, mentioned the deceased’s drinking habits, which would degenerate into violence. Conrad’s ire towards the accused was, therefore biased. That makes his evidence, including the recording, incredible. 44.The most worrying aspect, however, was that none of the other relatives wanted to be associated with the recording. Pw1 and pw3 were present at the hospital at the material time, but somehow, they got busy elsewhere, attending to other patients or making calls. They did everything else, but listen to what their brother, who had come to after several days, had to say as, to what had befallen him. The court finds that as extremely suspicious, especially when weighed against the evidence of DW2, who testified that Conrad dictated to the deceased what to say. 45.The version by DW2 appears more credible, and no wonder, Hollines, true to her name, disassociated herself from the alleged dyeing declaration . 43.Having carefully evaluated the totality of the evidence, the court finds that the prosecution's evidence on causation and attribution does not attain the threshold of certainty required in criminal cases. The circumstantial evidence relied upon is not so tightly woven as to irresistibly point to the guilt of the accused to the exclusion of all other reasonable explanations. 44.On the contrary, the evidence on record reveals material unresolved doubts as to whether the fatal injury was caused by a knife wielded by the accused or whether it may have been occasioned by the shattered glass at the scene during the deceased’s intoxicated and violent conduct. These doubts are not speculative but arise directly from the objective evidence of PW2, the scene observations, and the unexplained forensic gaps identified earlier. 45.In accordance with the principles in Kipkering Arap Koske & Another v Republic (1949) 16 EACA 135 and Sawe v Republic [2003] eKLR, where circumstantial evidence is capable of supporting more than one inference, the inference most favourable to the accused must be adopted. Suspicion, however strong, cannot substitute proof beyond reasonable doubt. 46.Accordingly, the court finds that although an unlawful death is established, the prosecution has failed to prove to the required standard that the accused committed the unlawful act which caused the death of the deceased. This element of the offence is therefore not proved. Final Verdict And Disposal 69.Having carefully re-evaluated the entire evidence on record, the court has reached the conclusion that the prosecution has failed to prove beyond reasonable doubt that the accused person committed the unlawful act which caused the death of the deceased. Although the court has found that an unlawful death occurred, the critical element of attribution remains unproven. 70.In criminal proceedings, the standard of proof is not one of probabilities or suspicion, however strong, but proof beyond reasonable doubt. Where, as in this case, there exists a reasonable possibility consistent with innocence that has not been excluded by the prosecution, the benefit of doubt must necessarily be resolved in favour of the accused. 71.The court is therefore not satisfied that the circumstantial evidence, taken cumulatively, forms a complete and unbroken chain pointing irresistibly to the guilt of the accused. Material gaps in the investigation, particularly the failure to recover and examine the alleged weapon and the failure to forensicallyassess the broken glass, leave unresolved doubts that are central to the prosecution case. 69.In the circumstances, the court finds that the prosecution has failed to prove the offence of murder against the accused person as charged. Disposition 69.Accordingly, the accused person is hereby found Not Guilty of the charge of murder. 70.The accused is hereby acquitted of the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code undersection 322(1) of the Criminal Procedure Code and shall be set at liberty forthwith unless otherwise lawfully held. 69.Any security deposited or cash bail shall be refunded to the depositor. It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY THIS 18TH DAY OF JUNE 2026WENDY KAGENDO JUDGEIn The Presence OfThe Accused Person And Mr Pail Magolo Holding Brief For Mr Magolo For The Accused PersonMr Sirima For The State Bebora Court AssistantSigned By/for: