https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12305

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VIHIGA** **CRIMINAL CASE NO 12 OF 2021** **REPUBLIC** **VERSUS** **ASWANI HASSAN MAKUTWA………..…………………………………1ST ACCUSED** **FRANCIS OTIENO FATI…………………………..……………………2ND ACCUSED** **JUDGMENT** **INTRODUCTION** 1. The Accused persons herein were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 (Laws of Kenya). The particulars of the Charge were that: - **“On the 4th June 2016 at Ekhavala village, Emuhaya Sub-County within Vihiga County, jointly murdered Sammy Muhanji”** 1. The Prosecution’s case was heard on diverse dates between 23rd October 2023 and 28th February 2024 when it closed its case. On 29th April 2024, this court found that the Prosecution had established a *prima facie* case against the Accused persons herein and thereby put them on their defence. The defence cases were heard on 29th April 2025. 2. The Prosecution’s Written Submissions were dated 9th June 2025 and filed on 10th November 2025 while those of the Accused persons were dated 26th January 2026 and filed on 28th January 2026. The Judgment herein is based on the said Written Submissions which the parties relied upon in their entirety. **LEGAL ANALYSIS** 1. The issues that had been placed before this court for determination were as follows: - 2. **Whether Sammy Muhanji (hereinafter referred to as the “deceased”) died?** 3. **If so, was his death caused by an unlawful action(s) and/or omissions?** 4. **If so, who caused the unlawful action(s) and/or omissions?** 5. **Was there malice aforethought in the causation of the deceased’s death?** 6. This court, therefore, found it prudent to deal with the said issues under the following distinct and separate headings. 7. **PROOF OF DEATH OF THE DECEASED** 8. The Prosecution submitted that there was no dispute that the deceased died. It relied on the evidence of the Prosecution’s witnesses, particularly that of the Investigating Officer No 17041 PC Philip Cheruiyot (hereinafter referred to as “PW 8”) who produced the Post-Mortem Report, which attributed the cause of the deceased’s death to exsanguination from intra-abdominal bleeding and intracranial bleeding leading to cardiorespiratory arrest. 9. Although the Accused persons challenged the evidential weight of the Post-Mortem Report on the basis that it was produced by PW 8 instead of the Pathologist, they did not dispute that the deceased died. They questioned the credibility of circumstances relating to the deceased’s death. They asserted that the Prosecution failed to establish a nexus between them and the cause of the deceased’s death. 10. The evidence of the deceased’s father, Simon Omusambai (hereinafter referred to as “PW 1”), Beatrice Omukazia (hereinafter referred to as “PW 4” and Rispa Inyundu Buyengo (hereinafter referred to as “PW 7”) established that the deceased was rushed to Yala Hospital after sustaining serious injuries and later succumbed while undergoing treatment. Further, the Post-Mortem Report confirmed that indeed the deceased died. In addition, the Accused persons acknowledged that the deceased died. Without belabouring the point, this court found and held that the death of the deceased was proved beyond any reasonable doubt. The cause of his death was a different matter altogether. 11. **PROOF OF CAUSE OF THE DECEASED’S DEATH** 12. The Accused persons did not contend that the deceased died of natural causes. On the other hand, the Prosecution submitted that the deceased’s death resulted from an unlawful act. It relied on the Post-Mortem Report, which showed that the deceased sustained multiple injuries, including blunt head, chest and abdominal trauma, a ruptured gut, a depressed skull fracture and several cuts and lacerations. It argued that the nature, extent and location of those injuries demonstrated that the deceased died as a result of a violent assault. 13. The Prosecution relied on the cases of **Republic vs Joseph Chege Njora [2007] eKLR** and **Antony Njue Njeru vs Republic Criminal Appeal No 77 of 2006** (KLR citation not given)where the court held that a killing could only be justified where the accused's actions causing the death were undertaken to avert a felonious attack and no greater force than was reasonably necessary was used for that purpose. The court further held that, for the plea of self-defence to succeed, the accused had to demonstrate, on a balance of probabilities, that he or she was in immediate danger arising from a sudden and serious attack by the deceased, and that only reasonable force was used to avert or forestall the attack. 14. Upon considering the evidence on record, this court was satisfied that the deceased’s death was not attributable to natural causes. The Post-mortem Report disclosed multiple traumatic injuries which were consistent with violent assault. The court therefore found and held that the deceased’s death resulted from an unlawful act. 15. The remaining question for determination was whether the Prosecution proved beyond reasonable doubt, that the unlawful act was committed by the Accused persons. 16. **IDENTIFICATION OF PERPETRATOR OF DECEASED’S DEATH** 17. The Prosecution submitted that the Accused persons were positively identified as members of the mob that assaulted the deceased. It argued that PW 1 heard the 1st Accused person state that they had finished with the deceased and would proceed to another person. It further submitted that PW 2 identified both Accused persons using the light from his torch, having known the 1st Accused by name and the 2nd Accused as his neighbour. 18. The Prosecution also relied on the evidence of PW 4 who recognised the 1st Accused person's voice, and PW 7, who also recognised the 1st Accused person's voice during the attack because he was a friend of the deceased and frequently visited their home. It, therefore, submitted that the direct and voice identification evidence placed both Accused persons at the scene and established that they participated in the assault that resulted in the deceased's death. 19. On their part, the Accused persons submitted that the Prosecution failed to prove that they were the persons who inflicted the fatal injuries on the deceased. They argued that PW 1 did not witness the assault and only found the deceased lying on the ground after the incident. They further contended that although PW 1 and Felistas Awinja (hereinafter referred to as “PW 5”) purported to identify the 1st Accused person by voice, such evidence was merely suspicious and insufficient to sustain a conviction. 20. They further argued that much of the evidence that was adduced related to the assault on Joseph Ingati, who was not the deceased in the present case and who was not called as a witness despite being a material witness. They also contended that the lighting at the scene was insufficient for positive identification, that no weapon was recovered from either of them, and that the investigations were incomplete as PW 8 failed to identify or charge the other members of the mob. It, therefore, urged the court to find that the Prosecution had failed to establish their identity beyond reasonable doubt. 21. This court had due regard to the provisions of Sections 107(1) and 109 of the Evidence Act Cap 80 (Laws of Kenya) that provided that the burden of proving the identity of the perpetrators rested on the Prosecution and never shifted to the accused persons. 22. Section 107(1) of the Evidence Act states that:- **“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”** 1. Further, Section 108 of the Evidence Act provides as follows:- **“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”** 1. The burden of proof, therefore, lay on the Prosecution to prove that the Accused persons were properly identified as the perpetrators of the deceased’s death. Towards this end, this court had due regard to the case of **Wamunga vs Republic [1989] KLR 424** where the Court of Appeal held that evidence of visual identification under difficult conditions had to be examined with the greatest care before it could safely sustain a conviction. 2. Similarly, in the case of **Roria vs Republic [1967] EA 583,** the court observed that a witness could be honest yet mistaken, and courts were, therefore, called upon to exercise caution before acting upon such evidence. 3. It was generally established that the evidence of recognition was more reliable rather than identification of a stranger because it was based on prior acquaintance. That principle was affirmed in the case of **Anjononi & Others vs Republic [1980] KLR 59** where the Court of Appeal held that recognition was usually more satisfactory and more dependable than identification of a stranger, while recognising that mistakes in recognition remained possible. 4. The law equally recognised voice identification as capable of sustaining a conviction where a witness was familiar with the accused's voice, and the prevailing circumstances excluded the possibility of error. This principle was affirmed in the cases of **Choge vs Republic** **[1985] KLR 1 and** **Libambula vs Republic** **[2003] KLR 683** where the common thread was that the evidence of voice identification was admissible where the witness was familiar with the voice of an accused person and recognised it without any possibility of mistake. 5. The 1st Accused person testified that he was the deceased’s neighbour and equated him to a family member. He averred that he had never had any disagreement with him or his family. He stated that on 4th June 2016, he attended a funeral in the neighbourhood together with the PW 1. He said that he escorted PW 1 home after the funeral, checked on him and only later learnt of the deceased's death. 6. His evidence was that the deceased had been assisting the 2nd Accused person with work at the funeral but that he did not speak to him on that day. He denied assaulting the deceased or being the first person to attack him. He further stated that he heard there had been a phone-snatching incident and later received reports that the deceased had been found with injuries in a maize plantation. 7. On his part, the 2nd Accused person testified that on 3rd June 2016, he was occupied with preparations for his grandfather's funeral and that on that night, he learnt that someone had been injured and reported the incident to the Assistant Chief. He further stated that on 4th June 2016, while attending his grandfather's funeral service, the Assistant Chief summoned him to assist with investigations into the incident, whereupon he was arrested. 8. He denied having been with the 1st Accused person at the material time, maintaining that he remained at the funeral throughout. He also denied being part of the mob that assaulted the deceased and contended that the incident arose from the incident of theft. 9. PW 1 testified that members of the mob restrained him as they continued assaulting the deceased. He further told the court that the 1st Accused person intervened and ordered the mob to leave him alone, informing them that he was his brother who ordinarily lived in Mombasa and had only recently returned. Following those instructions, the mob released him. He added that he saw the 1st Accused person’s face and heard him instruct the mob that since they had finished with the deceased, they would proceed to another person. 10. PW 2 stated that he illuminated the members of the mob with his torch and was able to recognise four (4) people despite the crowd comprising approximately fifty (50) people. He specifically identified the 1st Accused person, whom he knew well, and the 2nd Accused person, who was his neighbour. He further testified that after the incident he led the police to the respective homes of the persons he had recognised, including those of the Accused persons. He asserted that the 1st Accused person was the gang leader. 11. PW 4 testified that although it was dark and she was unable to see the faces of the persons outside her house, she unmistakably recognised the 1st Accused person’s voice because he was her in-law and she had known his voice for a long time. She recalled hearing him instruct the crowd to leave PW 1 alone because he had come from Mombasa and did not ordinarily reside in the area. During cross-examination, she reiterated that she did not see the faces of the persons making the noise owing to the darkness but firmly maintained that she recognised the 1st Accused person's voice. 12. PW 5 explained that the 1st Accused person was like a brother to his family and that she had known his voice for many years. Although she did not hear precisely what the 1st Accused person said, she stated that she heard him speaking from a short distance. She further testified that members of the mob carried torches and that it was not completely dark, thereby enabling her to appreciate the events unfolding around her. 13. PW 7 also recognised the 1st Accused person's voice. She testified that he heard members of the mob repeatedly refer to the 1st Accused person by his name, **"Aswani."** She further averred that she heard him instruct the group to leave one person alone while another member of the mob suggested that they should assault PW 1's wife so that she could reveal her husband's whereabouts. He stated that he also heard another voice urge the group to accomplish the mission that had brought them there. She maintained that the only voice she personally recognized throughout the incident was that of the 1st Accused person. 14. This court noted that the Prosecution relied on both visual recognition and voice identification. Upon re-evaluating the evidence of PW 1, PW 2, PW 4, PW 5 and PW 7, this court found that their evidence consistently placed the 1st Accused person at the scene. PW 1’s evidence amounted to both visual recognition and voice recognition of the 1st Accused person, whom he had known before the incident. PW 5 equally testified that she only recognised the 1st Accused person’s voice but did not see his face. This court found that candor that she never saw the faces of the attackers and only heard the 1st Accused person’s voice, enhanced rather than diminished the credibility of her testimony. PW 7 independently recognised the 1st Accused person’s voice. 15. More significantly, each witness consistently portrayed the 1st Accused person as actively communicating with and directing members of the mob. Their evidence was mutually corroborative and substantially diminished the possibility of mistaken identity despite the lighting conditions being diminished. 16. The evidence against the 2nd Accused person, though comparatively less extensive, was not entirely absent. PW 2 expressly testified that he recognised him among the members of the mob by the light from his torch and thereafter led the police to his residence. 17. In addition, the 1st Accused person testified in his defence that the deceased had been assisting the 2nd Accused person with work during the funeral on the material day. The 2nd Accused person, however, denied that assertion and maintained that he remained occupied with his grandfather's funeral and was never with either the deceased or the 1st Accused person. 18. The Accused persons therefore contradicted each other on a material aspect concerning their movements and interaction with the deceased immediately before the incident. Although such inconsistency did not of itself establish guilt, it was a factor this court was entitled to consider in assessing the credibility of the Accused persons’ defence. 19. The Accused persons criticised the investigations, contending that one Joseph Ingati was not called as a witness, that no weapon was recovered from either of them and that PW 8 failed to identify or charge the other members of the mob. 20. This court was mindful of Section 143 of the Evidence Act which provides as follows:- **“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”** 1. Further, in the case of **Bukenya & Others vs Uganda** **[1972] EA 549**, it was held that although the prosecution was required to call all material witnesses necessary to establish the truth, failure to call a witness was not necessarily fatal where the evidence adduced was sufficient to prove the charge. 2. This court noted that the deceased was attacked by a mob rather than by a single assailant. In such circumstances, the law did not require the prosecution to prove which member of the group inflicted the fatal injury where the evidence establishes joint participation in the unlawful assault. 3. In the case of **Mwaura & 2 Others vs Republic** **[2002] 2 KLR 274**, the Court of Appeal held that where several persons jointly assault a deceased, each participant was criminally liable once his participation in the unlawful enterprise was proved. That principle accorded with Section 21 of the Penal Code Cap 63 (Laws of Kenya) that stipulates as follows:- **“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”** 1. Although the deceased was attacked by a mob, in the present case, the evidence of the witnesses who testified was sufficient for this court to determine that the Accused persons actively participated in the unlawful assault of the deceased as they were positively identified. 2. The respective defences of the 1st and 2nd Accused persons amounted to mere denials. Indeed, the 1st Accused person’s assertion that he escorted PW 1 home and only later learnt of the deceased's death was inconsistent with the consistent evidence of PW 1, PW 2, PW 4, PW 5 and PW 7, all of whom placed him at the scene through visual and voice recognition. Equally, the 2nd Accused person's denial was undermined by PW 2's recognition evidence which put him at the scene and further enhanced by the fact of inconsistency between his account and that of the 1st Accused person regarding his interaction with the deceased during the funeral. 3. The absence of the weapon, as the Accused persons had argued, was not fatal to the Prosecution's case. Indeed, a murder could be proved without production of the murder weapon where there was credible eyewitness evidence and medical evidence establishing that the deceased died as a result of an unlawful assault. The totality of the evidence before this court established beyond reasonable doubt that the deceased sustained fatal injuries during the assault perpetrated by the Accused persons and others acting in concert. 4. Accordingly, this court found and held that the Prosecution established beyond reasonable doubt that both Accused persons participated in the unlawful assault upon the deceased that led to his death. The court, therefore, proceeded to determine whether, from their conduct and the circumstances of the attack, the Prosecution proved the existence of **malice aforethought** within the meaning of **Section 206 of the Penal Code**. 5. **MALICE AFORETHOUGHT** 6. The Prosecution submitted that the Accused persons acted with malice aforethought. It argued that the they assaulted the deceased and inflicted grievous injuries to his head, chest and abdomen, resulting in his death. It further submitted that the eyewitness evidence placed the Accused persons at the scene and that the 1st Accused person was heard stating that they had finished with the deceased and would proceed to "finish another person." It contended that the nature of the injuries inflicted, the vulnerable parts of the body targeted and the conduct of the Accused persons before, during and after the attack demonstrated an intention to cause death or grievous harm, thereby establishing malice aforethought. 7. The Prosecution relied on the case of **Nzuki vs Republic (1993) KLR 171** where the Court of Appeal held that malice aforethought was drawn from the actions of a person disclosing an intention to cause harm, grievous bodily harm, where the person knew there existed a risk of death or grievous harm occurring unlawfully from his actions and an intention to commit a felony. 8. Further it relied on the case of **Republic vs Hancock and Shankard (1985) 3WLR 1014** where the House of Lords held that the probability of a particular consequence resulting from an act was relevant in determining intention, and that where the likelihood of death or injury was high, such probability constituted overwhelming evidence from which the requisite intent could be inferred and the case of **Republic vs Tubere S/O Ochen (1945) 12 EACA 63** where the former Court of Appeal for Eastern Africa held that malice aforethought could be inferred from the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used, and the conduct of the accused before, during and after the attack. 9. The Accused persons had argued that as the Prosecution failed to prove that they were responsible for the deceased's death, it failed to establish the existence of malice aforethought. It argued that as the identification evidence was unreliable, that no weapon was recovered from either Accused person, that the investigations were inconclusive and that the Prosecution failed to place the Accused persons at the scene beyond reasonable doubt, the essential ingredient of malice aforethought had not been proved. 10. This court had due regard to the case of **Bonaya Tutu Ipu & Another vs Republic [2015] eKLR**, where the Court of Appeal held that malice aforethought was a question of fact to be inferred from the surrounding circumstances, including the nature of the injuries sustained, the weapon used, the part of the body targeted and the conduct of the accused person. Similarly, in the case of **Republic vs Stephen Kiprotich Leting & 3 Others [2009] eKLR**, it was held that repeated assaults directed at vulnerable parts of the body are sufficient to demonstrate an intention to cause death or grievous harm within the meaning of Section 206 of the Penal Code. 11. Notably, Section 206 of the Penal Code states as follows:- **“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—** 1. **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;** 2. **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;** 3. **an intent to commit a felony;** 4. **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.”** 5. These ingredients were reiterated in the case of **Rex v Tubere s/o Ochen (1945) 12 EACA 63** where the Court of Appeal held that malice aforethought may be inferred from the nature of the weapon used, the manner in which it was used, the part of the body targeted, the nature and extent of the injuries inflicted and the conduct of the accused person before, during and after the attack. Those principles had consistently been applied by Kenyan courts in determining whether the requisite *mens rea* for the offence of murder had been established. 6. Evidently, the Post-mortem Report established that the deceased sustained multiple traumatic injuries that were injuries were inflicted on vulnerable parts of the body. The injuries were clearly not superficial. Their nature and severity demonstrated that considerable force was used during the assault. The fact that the 1st Accused person uttered the words of finishing the deceased and another immediately clearly demonstrated that the assault on the deceased was deliberate and not accidental. It revealed a common resolve on the part of the attackers to inflict serious harm upon their victims. 7. The court further observed that the assault was neither spontaneous nor momentary. The deceased was subjected to a sustained attack by several persons, resulting in multiple injuries to different parts of his body. Such a vicious assault, directed at vulnerable organs including the head, chest and abdomen, could only have been intended to cause death or, at the very least, grievous harm. Any reasonable person participating in such an assault would have known that death or grievous bodily injury was a probable consequence of those acts. The conduct of the Accused persons, therefore, fell squarely within the ambit of **Section 206(a) and (b) of the Penal Code.** 8. Accordingly, this court found and held that the Prosecution proved beyond reasonable doubt that the Accused persons acted with **malice aforethought**, thereby establishing the final ingredient of the offence of murder under **Sections 203 and 204 of the Penal Code**. 9. 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: - 10. **Proof of the deceased’s death;** 11. **Proof that the deceased’s death was a result of unlawful actions and/or omissions; and** 12. **Proof of malice aforethought in the unlawful actions and/or omissions.** **DISPOSITION** 1. For the foregoing reasons, this court found the **1st and 2nd Accused persons** were guilty of the offence of **murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 (Laws of Kenya)**, and they are hereby convicted under **Section 215 of the Criminal Procedure Code Cap 75 (Laws of Kenya)**. 2. It is so ordered. **DATED** and **DELIVERED** at **VIHIGA** this **29th** day of **July** 2026 **J. KAMAU** **JUDGE**