https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8940

Republic v Adembesa (Criminal Case 17 of 2021) [2026] KEHC 8940 (KLR) (23 June 2026) (Judgment) Neutral citation: [2026] KEHC 8940 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Case 17 of 2021 JN Kamau, J June 23, 2026 Between Republic Accused and Maxwel Jaika Adembesa Accused Judgment 1.The Accused person herein was charged with two (2) counts of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 (Laws of Kenya). The particulars for Count I were that:-“On the 29th day of October 2020 at around 5:00am at Vigina village Sabatia Sub-County within Vihiga County, murdered Esther Musimbi.” 2.The particulars for Count II were that:-“On the 29th day of October 2020 at around 5:00am at Vigina village Sabatia Sub-County within Vihiga County, murdered Ethel Mengesa Jaika” 3.The Prosecution’s case was heard on diverse dates between 6th May 2022 and 19th February 2025 when it closed its case. On 28th February 2025, this court found that the Prosecution had established a prima facie case against the Accused person and thereby put him on his defence. The defence case was heard on 9th July 2025. 4.This matter was partly heard by P.O Otieno J. He took the evidence of Violet Mbone Kabwoya (hereinafter referred to as “PW 1”), Dr Masika Collins Were (hereinafter referred to as “PW2”), Sophia Aiti Owola (hereinafter referred to as “PW 3”), Aggrey Mudaki (hereinafter referred to as “PW4”) and No 79667 Corporal Mark Arawo (hereinafter referred to as “PW5’). 5.This court became seized of this matter on 19th February 2025 and took the evidence of James Tali (hereinafter referred to as “PW 6”) and the Accused person. Notably, both the Accused person and the Prosecution took the directions under Section 200 of the Criminal Procedure Code Cap 75 (Laws of Kenya) before the court proceeded from where the matter had reached. 6.The Prosecution’s Written Submissions were dated 26th September 2025 and filed on 29th September 2025 while those of the Accused person were dated 26th February 2026 and filed on 27th February 2026. The Judgment herein is based on the said Written Submissions which the parties relied upon in their entirety. Legal Analysis 7.The issues that were put before this court for consideration were as follows:-a.Whether or not Esther Musimbi and Ethel Mengesa Jaika (hereinafter referred to as the “deceased persons”) died?b.If so, was their death caused by an unlawful action(s) and/or omissions?c.If so, who caused the unlawful action(s) and/or omissions?d.Was there malice aforethought in the causation of the deceased persons’ death? 8.This court therefore found it prudent to deal with the said issues under the following distinct and separate headings. I. Proof Of Death Of The Deceased 9.The Accused person did not submit on this issue. On its part, the Prosecution submitted that there was no dispute as to whether the deceased persons died since it was proved through the evidence of Dr Masika Collins (hereinafter referred to as “PW 2”) and No 79667 Sgt Mark Arawo (hereinafter referred to as “PW 5”) who produced the Post-mortem Reports. 10.As both the Prosecution and Defence alluded to the deceased persons’ death, it was not necessary to seek further proof. This court found and held that the deceased persons’ death was proved without an iota of doubt. II. PRoof Of Cause Of The Deceased Persons’ Death 11.The Accused person did not submit on the question of proof of the deceased persons’ death. On its part, the Prosecution submitted that the deceased persons’ death was proved by the Post- mortem Reports. It cited the case of Republic vs Joseph Chege Njora (2007) eKLR where the court held that the killing of a person could only be justified where the accused person’s action was in course of averting a felonious attack and the case of Republic vs Gusambisi s/o Wesonga (1948) 15 EACA 65 where the court stated that every homicide was unlawful. 12.The cause of the deceased persons’ death was a pertinent issue. PW 2 tendered a Post-mortem Report dated 5th November 2020 in respect of Esther Musumbi (hereinafter referred to as “the Accused person’s wife”) as an exhibit in this matter. He stated that the deceased’s body had burnt wounds which were approximated at seventy (70%) per cent. He said that he observed a slit on the neck going through the trachea, oesophagus and the jugular. He averred that there was a separation of Cervical vertebrae 1 & 2. 13.He also stated that the deceased also had a dislocated right shoulder joint and a fracture of the left femur. He added that the respiratory system showed collapsed lungs while there was a cut wound on the head. He formed the opinion that the cause of death was separation of the cervical vertebral secondary to cut wound. 14.PW 5 produced the Post-mortem Report dated 25th November 2020 in respect to Ethel Mengesa Jaika(hereinafter referred to as “the Accused person’s child”) as an exhibit in this matter on behalf of Dr Eddy Owuor who prepared the said Report but was away on study leave. He averred that the said Dr Eddy Owuor formed the opinion that the cause of death of the said Ethel Mengesa Jaika was complications due to burn wounds. 15.It was therefore clear from the evidence that the deceased persons’ death was not as a result of natural causes. It was therefore crucial to establish how the deceased persons sustained the injuries that caused their death. III. IDentification Of Perpetrator Of Deceased’s Death 16.The Accused person submitted that the burden of proof rested solely on the Prosecution throughout the trial. He placed reliance on the case of Woolmington vs DPP [1935] AC 462 and Miller vs Minister of Pensions [1047] 2 ALL ER 372 where the common thread was that the Prosecution was required to prove its case beyond reasonable doubt. 17.He was emphatic that the Prosecution failed to prove its case beyond reasonable doubt as no witness saw him with the deceased on the material night. He asserted that that Violet Mbone Kabwoya (hereinafter referred to as “PW 1”) only assumed that he was together with the deceased persons but did not place him at the scene of the incident. He pointed out that when she was cross-examined, she told this court that the Accused person’s wife never complained of having been threatened. He was emphatic that her assumption could not form the basis of criminal liability. 18.He further stated that Aggrey Mudaki (hereinafter referred to as “PW 4”) and PW 5 confirmed that he was not at the scene, and consequently, if no one placed him at the scene, the doctrine of the last seen was not applicable. He cited the case of Ahmed Abolfathi Mohammed & Another vs Republic (2018) eKLR where the court opined that the doctrine only applied where the accused was positively and conclusively shown to be the last person seen with the deceased. 19.He added that the Prosecution did not produce any forensic report, DNA Analysis, finger print evidence or fire investigation report. He contended that there was a possibility of an accidental fire or third-party involvement. He relied on the case of Republic vs Kipkering arap Koske & Another (1949) 16 EACA 135 where it was held that circumstantial evidence had to exclude every reasonable hypothesis other than the guilt of an accused person. 20.He was emphatic that the confession allegedly recorded by PW 6 was null and void as it was not written by the Accused person, he was tortured and it did not comply with the legal requirements of Section 25A of the Evidence Act Cap 80 (Laws of Kenya). He placed reliance on the case of Paul Ilumo vs Republic [2011] eKLR where it was held that a confession that had been obtained through torture was not admissible. 21.On its part, the Respondent submitted that even if no one saw the Accused person kill the deceased persons, he was the last person to be seen with the deceased persons prior to their death. It also stated that the case was based on circumstantial evidence and relied on the case of Abanga alias Onyango vs Republic Cr App No 32 of 1990, Sawe vs Republic (2003) eKLR and GMI vs Republic Cr App No 38 of 2011 where the common thread was that where a case rested solely on circumstantial evidence, the circumstances had to be cogent, the facts had to unerringly point towards the guilt of an accused person, and that the circumstances taken together formed a complete chain to point to the accused person as the perpetrator of the offence. 22.It further argued that PW 6 produced a confession as evidence on how the Accused person carried out the murder. It added that the Accused person’s defence was a mere denial as he failed to offer an explanation as to how the deceased persons might have met their death. It was emphatic that the chain of events was cumulative and showed clearly that the Accused person was the perpetrator. 23.The Accused person elected to adduce unsworn evidence pursuant to Section 211 of the Criminal Procedure Code. His evidence was that he used to mine gold and that the deceased persons were his wife and child. He said that on 29th October 2020, he left home at 5.00 am and at around 6.00 pm and 6.30 pm, he went to a club at Chavakali to drink. He contended that he left the deceased persons at his house and they were well and they had not differed the previous night. 24.He stated that on 30th October 2020 in the morning, he returned home and found police and members of the public who were demanding to know what happened to the deceased persons. He was emphatic that he did not know what caused the fire that burnt his house. He further stated that he was not arrested on 30th October 2020 but that he could also not remember the date he was arrested since he was confused after he was beaten by members of the public. 25.He stated that between 30th October 2020 and the day he was arrested, he had run away for his safety. He denied ever recording a confession and stated that he was given a paper to sign or be shot on the mouth. He testified that he was confused after being subjected to mob justice and that Oscar Chunguli was with him when he signed the papers. He denied killing the deceased persons. 26.Notably, PW 1 who was the Accused person’s wife’s sister and aunty to the Accused person’s child. She testified that when the Accused person’s wife gave birth, she stayed with her and the Accused person until 28th October 2020 when the Accused person requested her to go back home as he would take care of the deceased persons himself. She contended that the Accused person even called PW 1’s mother telling them not to worry as he would take the deceased to hospital for check-up. 27.She stated that on the morning of 19th October 2020 (sic), they received a call from aunty Jesca who informed them that the deceased had died and she rushed there and saw the Accused person’s wife’s body which had been burnt. When the police arrived, they discovered a cut wound on the throat and there were two knives wrapped on the body. 28.She further testified that the Accused person’s child was taken to hospital. She said that she went to see her and found her with burns which had been bandaged. She stated that the Accused person’s child later died. She pointed out that the deceased persons were living with the Accused person and for the period she stayed with them, she did not see any strange thing except the day he quarrelled with her younger sister. 29.On cross examination, she stated that the relationship between the Accused person and the deceased was good and she was told about the quarrel by her younger sister. She pointed out the deceased never called to say that the Accused person had beaten her. She contended that the Accused person lived in the same homestead with his parents. When she was re-examined, she stated that she did not see the Accused person at the scene of the incident. 30.PW 3 told the court that on 29th October 2020 after taking breakfast, she saw smoke coming from the Accused person’s house and she contacted the Accused person’s mother who went to check and started shouting that the house was burning. She told this court that neighbours started breaking the earthen wall as the Accused person’s mother entered the house. She stated that she followed the Accused person’s mother to the sitting room and she gave her the child who was wrapped in a towel. She averred that they rushed the child to the hospital and that when she returned home, she found police and learnt that the Accused person’s wife had been burnt and killed. She explained that when she saw the smoke, there was nobody nearby. 31.When she was cross-examined, she said that when she was given the Accused person’s child, the Accused person’s child was crying but was breathing out smoke and had burnt hands and legs. 32.PW 4 was the Senior Assistant Chief and Accused person’s neighbour. He told the court that on 29th October 2020, he received a call that a lady had burnt herself in the house. He said that he went to the scene and established that a child had been taken to hospital and the lady was dead. He averred that he contacted the OCS who in turn contacted the DCI who exposed the body and discovered that the lady’s throat had been slit and there was a blood stained knife beside the body near the slit neck. He further stated that the Accused person was not in the house or at his place of work for the next two (2) days and was arrested in a different Sub-County. 33.PW 5 was the Investigating Officer. He testified that when they arrived at the scene, there was a crowd who had managed to put out the fire and break part of the wall for people to gain entry. He further stated that people gained entry through the front door since the back door had a padlock. He said that they found the body of a female which was partly burnt and partly naked on a mattress with a heap of clothes on it, in the bedroom. 34.He said that he noted that the mouth of the Accused person’s wife was covered with a cloth and the throat was slit. His testimony was that there was a kitchen knife which was blood stained and partly burnt on the handle beside the body. He stated that they formed the opinion that the deceased was killed before the house was set on fire. He also established that the fire was started in the bedroom and the gas cylinder which was in the kitchen was intact. He stated that they established that the Accused person’s two (2) months old baby had been rescued with extensive burns and had been rushed to hospital. 35.He pointed out that they recovered the Accused person’s phone in the sitting room but he could not be located. His testimony corroborated that of PW 1 and PW 3 and established from PW 1 that the deceased and the Accused person would quarrel for no apparent reason but she would intervene and issues would be settled. He stated that they suspected that the Accused person released PW 1 so as to get an opportunity to commit the offence. 36.He further testified that on 11th November 2020, he learnt that the Accused person was arrested after he was rescued from a mob who wanted to lynch him. He produced the kitchen knife as an exhibit and photographs of the scene. He also produced the statements of Alfayo Mamba, Greshon Maroba, Oscar Chuguli and Walter Ombimu who identified the bodies of the deceased persons and the witness statement of PC Calvin Muhindi who was the arresting officer. He pointed out that the Accused person confessed and his confession was recorded by SP James Tali. 37.PW 6 recorded a confession from the Accused person on 11th November 2020. He stated that he informed the Accused person the procedure of recording confession in Kiswahili language that he said he understood. He also asked him whether he had a witness and he chose his uncle Oscar Chunguli who was contacted and went to their office and he asked him whether the Accused person needed a translator but he insisted that he understood Kiswahili. He also informed him his right to legal representation but he said that he did not have a counsel at the time. He contended that he asked the Accused person whether he was coerced, threatened, tortured or unwell but he replied in the negative. The Accused person informed him that he had pains on the head and legs due to the beating he had received but he had been treated at Sabatia Sub County hospital. 38.He pointed out that the Accused person signed the rules and insisted that he wanted to confess. He stated that he read to him the offence and warned him that he was not being compelled to say anything about the charge. He also told him that whatever he would say would be used against him as evidence. He then signed and explained how he killed the deceased persons, which information was recorded. He stated that after recording the statement, he read it out to him and after confirming that it was correct, he signed the statement. He stated that he then prepared a Certificate showing that the Accused person voluntarily recorded the statement. He produced the statement as an exhibit in this matter. 39.His further testimony, on cross examination, was that he was an Assistant Superintendent of Police at the time. He contended that he explained to the Accused person that he could write the confession himself but he told him to record it as he spoke. He admitted that it was not written anywhere that the Accused person requested him to record. He pointed out that the confession was written on the day the Accused person was arrested and at the time, he was in pain since he had been beaten though he had been treated at the hospital. 40.This court also noted the statement by the Arresting Officer, PC Kelvin Muhindi whose statement was produced by PW 5. The said statement indicated that they were informed that someone was being subjected to mob justice and they went to Visiru area within Central Maragoli. It was indicated that they rescued him and members of the public informed them that the Accused person had committed murder within Sabatia Sub County so he was a wanted man. It was also reported that the Accused person also informed them that he had killed his wife and they took him to police station. 41.Notably, the Prosecution’s case was based on the confession that was recorded by PW 6. The law governing taking of confessions is provided under Section 25A(1) of the Evidence Act which provides that:-“A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Chief Inspector of Police, and a third party of the person’s choice.” 42.The Rules of Confession of 2009 also buttress this provision and further state that a confession had to be recorded in writing, the accused person ought to be given an opportunity to clarify the content of the said confession and it must contain a certificate at the end as was enunciated by the Court of Appeal in John Kipsesat Chepyator vs Republic [2019] KECA 268 (KLR). 43.Section 26 of the Evidence Act also states that a confession had to be extracted voluntarily without any threat, duress, torture, promise or influence of any kind. Besides, Article 49(1)(d) of the Constitution provides that nobody is to be compelled to make a confession nor admission. 44.Section 26 of the Evidence Act also states that a confession must be extracted voluntarily without any threat, duress, torture, promise or influence of any kind. Section 26 of the Evidence Act states as follows:-“A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible in a criminal proceeding if the making of the confession or admission appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.” 45.Besides, Article 49(1)(d) of the Constitution provides that nobody is to be compelled to make a confession nor admission. Its states that:-“An arrested person has the right not to be compelled to make any confession or admission that could be used in evidence against the person.” 46.A perusal of the confession and the certificate which were produced by PW 6 showed that confessions rules were read to the Accused person. He indicated his preferred language was Kiswahili and that he had not been subjected to any form of coercion, duress, threat or torture. It was indicated that he was no deprived of food and he was given some minutes to rest and that he elected Oscar Chunguli as his witness. PW 6 was the recording officer and he was not the investigating officer. He also testified that he was an Assistant Superintendent of Police. 47.From the foregoing, it was clear that the rules for recording a confession were followed in accordance with section 25A of the Evidence Act. However, the Accused person repudiated his confession in his defence. He denied committing the offence and even denied recording a confession. He stated that he was forced to sign some papers. The court in Wambunya vs Republic [1993] KLR 133 stated that a trial court could accept any confession, which had been repudiated or retracted with caution and must before founding a conviction on such a confession be satisfied in all the circumstances of the case that the confession was true. 48.This court noted the Accused persons defence of alibi in which he stated that he left his house at 5.00 am. and at around 6.00 pm and 6.30 pm, he was at Chavakali in a club drinking. He returned home the following morning of 30th October 2020 where he found people and police. He stated that he fled for his safety. 49.In ascertaining whether the Accused persons’ defence of alibi had value, this court had due regard to the definition of “alibi” in the Black’s Law Dictionary, 10th Edition. It was defined as:-“A defence based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time”. 50.It was also trite law that once a respondent raised an alibi defence, the onus shifted to the Prosecution to displace the same as was held by the Court of Appeal in the case of Victor Mwendwa Mulinge vs Republic [2014] eKLR. 51.In this case, the defence of alibi was raised at the defence hearing and not at the beginning of the trial. The Prosecution did not rebut the same despite having the option of doing so as provided in Section 309 of the Criminal Procedure Code Cap 75 (Laws of Kenya) that provides that:-“If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it.” 52.Be that as it may, after carefully analysing the evidence that was adduced by the Prosecution witnesses, it was evident that there was circumstantial evidence that showed that the Accused person committed the offence since he fled after committing the offence only to be re-arrested by police on 11th November 2020 after being subjected to mob justice. The fact that his phone was found in the house showed that he was at the scene at the time of murder. Also, the fact that he could not be traced on 29th and 30th November and the fact that he told PW 1 on 28th November 2020 to go home and that he will take care of the deceased persons himself showed that he had planned to commit the offence. 53.After carefully analysing the evidence that was adduced by the Prosecution witnesses, it was evident that although there was no eye witness in this particular case, evidence established that the Accused person was linked to the murder of the deceased persons. His evidence that was unsworn was also of little or no probative value as the same was not subjected to cross-examination. 54.Consequently, it was this court’s finding that the Accused person’s defence was a mere denial and did not displace and/or dislodge the consistent and cogent evidence that was adduced by the Prosecution’s witnesses. 55.Weighed against the evidence that was adduced by the Prosecution witnesses, this court did not find the evidence of the Accused person to have been watertight enough to have weakened the inference of guilt on his part. This court was thus persuaded to find and hold that he was responsible for the death of the deceased persons. IV. Malice Aforethought 56.Having found and held that the Accused person’s defence was not sustainable, the next pertinent question that arose was whether or not he had malice aforethought in causing their death. 57.He submitted that according to PW 1’s testimony, the relationship between the him and the deceased was good. He contended that no witness testified to prior quarrels, threats or violence hence motive was not established. He cited Nzuki vs Republic (1993) KLR 171 where he stated that the court held that malice could not be inferred merely from the nature of injuries. 58.On its part, the Prosecution invoked Section 206 of the Penal Code and submitted that the Accused person’s action of slitting his wife throat and setting them on fire showed that his actions were propelled by extreme malice. It relied on Republic vs Tubere s/o Ochen (1945) 12 EACA 63 where the court held that malice could be established from the nature of the weapon used, the part of the body targeted and the conduct of the Accused before, during and after the attack. 59.It contended that there was evidence that showed that the Accused person’s aim was to cause grievous harm which was established from the nature of injuries he inflicted on the deceased persons. It pointed out that his conduct before and after the incident showed malice as he went to hiding until 11th November 2020 when he was arrested. It was emphatic that malice was therefore established from the injuries the deceased persons sustained, the weapon used, the evidence of PW 1 and his conduct. 60.This court had due regard to the case of Morris Aluoch vs Republic [1997] eKLR which cited the case of Rex vs Tubere s/o Ochen[1945] 12 EACA 63 where the East Africa Court of Appeal held that malice aforethought could be presumed where repeated blows were inflicted. 61.The seriousness of the injuries the Accused person’s wife sustained was confirmed by PW 2. He observed that the body of the deceased’s wife had burnt wounds which were approximated at seventy (70%) per cent. She had a slit on the neck going through trachea, oesophagus and the jugular, a fracture of the left femur, collapsed lungs and separation of the Cervical vertebrae 1 and 2. 62.The Accused person’s child died as a result of complications from burn wounds. It was evident from the Post-mortem Report that the child’s legs and hands had to be amputated due to the injuries and even after that, the child who was barely two weeks old did not survive. 63.The fact that the Accused person’s wife also had a cloth stuffed in her mouth and was covered with a heap of clothes was intended to endure that she was engulfed in tongues of flames. The extensive injuries sustained by the deceased persons were evident that they suffered greatly before they died. There was a blood stained knife which showed that there could not be said to have been bereft of malice aforethought on the part of the Accused person. The murders that he committed were most foul. 64.He was not even remorseful as at the time he testified as he continued to deny the offences. His evidence that his wife and child die due to an accidental fire was a fantasy and was intended to mislead this court as his wife’s throat had been cut through and through. 65.Having analysed the evidence that was adduced by both the Prosecution and the Accused person and their respective Written Submissions, this court came to the firm conclusion that the Prosecution established to the required standard, which in criminal cases, was proof beyond reasonable doubt that the act of unlawful killing of the deceased persons herein was by the Accused person herein and that the same was with malice aforethought. 66.This court was persuaded to find and hold that the Prosecution had demonstrated the ingredients that had been set out in Section 203 of the Penal Code being:-a.Proof of the deceased’s death;b.Proof that the deceased’s death was a result of unlawful actions and/or omissions; andc.Proof of malice aforethought in the unlawful actions and/or omissions. Disposition 67.For the foregoing reasons, the upshot of this court’s decision was that the Accused person herein be and is hereby convicted on Count I and Count II for the offences of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 (Laws of Kenya) under Section 215 of the Criminal Procedure Code Cap 75 (Laws of Kenya). 68.It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 23RD DAY OF JUNE 2026J. KAMAUJUDGE