https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7526

Republic v Shem & another (Criminal Case 8 of 2023) [2026] KEHC 7526 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 7526 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Case 8 of 2023 JN Kamau, J June 3, 2026 Between Republic Prosecutor and Fredrick Afuya Shem 1st Accused Mathias Alembi 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 17th August 2018 at Ekwanda Location, Luanda Sub-County, within Vihiga County jointly murdered Kevin Otiato.” 2.The Prosecution’s case was heard on diverse dates between 19th June 2019 and 18th December 2024 when it closed its case. On 25th February 2025, this court found that the Prosecution had established a prima facie case against the Accused persons and thereby put them on their defence. The defence case was heard on 16th July 2025. 3.This matter was partly heard by Musyoka J. The learned judge took the evidence of Esther Awiti Chiteri (hereinafter referred to as “PW 1”), Kevin Amunya (hereinafter referred to as “PW 2”), Donald Ernest Akhunza (hereinafter referred as “PW 3”), Rebecca Ambasa Obunaka (hereinafter referred to as “PW 4”), Clifford Awiti Druwela (hereinafter referred as “PW 5”), Aggrey Alukuba Angatia (hereinafter referred to as “PW 6”) and Dr Dixon Mchana (hereinafter referred to as “PW 7”). 4.This court became seized of this matter on 17th October 2023. On 4th April 2024, the Accused persons and the State indicated that they wished to proceed with the matter from where it had reached. This court then took the evidence of No 67638 Sgt Francis Matheka (hereinafter referred to as “PW8”) and the Accused persons. 5.The Prosecution’s Written Submissions were dated 22nd October 2025, and filed on 27th October 2025, while those of the Accused persons were dated and filed on 31st October 2025. The Judgment herein is based on the said Written Submissions, which the parties relied upon in their entirety. Legal Analysis 6.The issues that were put before this court for consideration were as follows:-a.Whether or not “Kevin Otiato” (hereinafter referred to as the “deceased”) died?b.If so, was his 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’s death? 7.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 8.Both the Accused persons and the Prosecution submitted that there was no dispute as to whether the deceased died. 9.As both the Prosecution and Defence did not dispute the fact of death, it was not necessary to seek further proof. This court found and held that the deceased’s death was proved without an iota of doubt. II. Proof of Cause of the Deceased’s Death 10.The cause of the deceased’s death was a pertinent issue. The Accused persons did not specifically dispute that the deceased died as was set out by the Prosecution witnesses. On its part, the Prosecution submitted that the deceased’s death was due to severe head injury secondary to blunt force trauma following assault. It stated that the deceased suffered a depressed skull fracture on the right forehead, which led to his death. It asserted that the injuries were physical harm, which was unlawfully executed and led to the deceased’s death. 11.It relied on the case of Republic vs Njora (2007) eKLR and Republic vs Gusambisi s/o (1948) 15 EACA 65, where the common thread was that homicide was unlawful unless it was rebutted by evidence to showing that it was either justifiable or excusable. 12.PW 7 tendered a Post-mortem Report dated 25th August 2018 as an exhibit in this matter. He testified that after conducting the post-mortem examination, he formed an opinion that the cause of the deceased’s death was head injury as a result of assault. 13.It was therefore clear from his evidence that the deceased’s death was not the result of natural causes. It was therefore crucial to establish how the deceased sustained the injuries that caused his death. III. Identification of the Perpetrator of the Deceased’s Death 14.The Accused persons denied having murdered the deceased. They submitted that there was no eyewitness account placing them at the scene. They pointed out that only two (2) people mentioned them, PW 3 who averred that he had earlier been assaulted by a group of people that included PW 1 (sic), and the 1st Accused person’s girlfriend, one Irene Oyiera, who was seeing someone else known as Deno, but she never testified yet it was the basis of her statement that led to their arrest. They pointed out that she was the only one who mentioned the 2nd Accused person. 15.They were emphatic that the Prosecution’s evidence was based on suspicion and that no matter how strong, the same could not form the basis of a conviction as was enunciated in Sawe vs Republic (2003) KLR 364 and Abanga alias Onyango vs Republic Cr App No 32 of 1990(UR) where it was held that before an inference of guilt based on circumstantial evidence could be made, the court had to ensure that there were no other co-existing circumstances which could weaken or destroy the inference. 16.They submitted that there was no continuous chain of events connecting them to the death because the reason for their arrest was the 1st Accused person’s alleged bad reputation of peddling bhang while the 2nd Accused person’s arrest was because of associating with him. 17.On its part, the Prosecution submitted that its witnesses had linked the Accused persons to the murder of the deceased which was proven on circumstantial evidence. It cited Abanga alias Onyango vs Republic (Supra) and Sawe vs Republic (Supra) on conditions to be met in circumstantial evidence. 18.It was categorical that the chain of events was cumulative and showed that the Accused persons were the perpetrators, as PW 8’s evidence placed them at the disco where they attacked PW 3 and at the same time and night, attacked the deceased. It added that there was no intervening factor or person who could have committed the offence except the Accused persons. 19.It added that the evidence that was adduced proved a common intention of the 1st and 2nd Accused persons by their conduct. It argued that their actions pointed to their guilt. It relied on the case of Republic vs Ongowo & 2 Others (Criminal Cause No 11 of 2018)(2022)HHHCIO KLB (21st July 2022) where the court therein held that when tow or more people formed a common intention to prosecute an unlawful purpose with another and in the prosecution of such purpose an offence was committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them was deemed to have committed the offence. 20.The 1st Accused testified that before August 2018, he used to do jua kali work at Nairobi. He denied knowing the deceased and denied ever recording a statement with the police. He stated that no weapon was recovered from his house. He said that he used to return home and that he was Mathias in March 2018. He testified that he had not gone home since March 2018 and had only met the 2nd Accused person in jail. He asserted that he was arrested on 7th October 2018 and not 14th October 2018. 21.When he was cross-examined, he stated that he had a witness who could confirm that he was in Nairobi at the material time of the incident, but that he could not trace the said witness as he had been in jail for a long time. 22.The 2nd Accused denied committing the offence. He stated that on 17th August 2018, he was at home the whole day and never attended any disco that night. He explained that the metal rod that was found in his house was for mjengo (construction), the knife was for cutting vegetables, the solar panel for lighting and listening to music, as he had no power in his house, while the bhang was for sale when he had no mjengo (construction) work. 23.He told the court that he was arrested for being in possession of bhang and that it was one, Irene Oyiera, who was like his girlfriend, who made him to be arrested. He stated that he differed with her when he married someone else. He stated that they had an argument on 10th August 2018 and on 21st August 2018, she went to his home accompanied by Police Officers, who she told that he used to sell bhang. He denied knowing the deceased or meeting him. 24.When he was cross-examined, he stated that on 17th August 2018, he was at home with his wife, Gladys, but he never saw her again after he was arrested. He conceded that he did not have proof that he was in the house on the material date. 25.PW 1, who was the deceased’s mother, testified that on the material day, the deceased left for Ekwamba Secondary school for computer classes. She called him at 5.00pm, but he never picked up his call. She said that she texted him at about 10.00pm-11.00pm seeking to know if he had arrived home safely. She testified that the following day, his teacher and someone else came to her home and informed her that the deceased was found on the road unconscious and that she was required to go to a hospital in Ivona. She stated that she found out that he had died, whereafter she moved his body to Coptic Hospital Mortuary. 26.PW 2 told the court that on the material night, he met with the deceased, Tevin, Hillary, and Clifford. He stated that they were all classmates. He stated that they went home, where his companions took beer while he drank soda. He told the court that there was a disco nearby and Tevin, Clifford, and the deceased left. 27.He said that he was left alone at home and at around midnight, he heard the footsteps of people running outside the house. He averred that someone who he did not know who it was, called him. He stated that he checked to see who that person was, but he could not see anyone. He testified that at 1.00pm, his mother called him and told him that a boy who had been beaten was at their house. He said that he went to check and found that it was the deceased who had been hit on the head, which was swollen and bleeding. He contended that the deceased could not speak. 28.He said that he reported the matter to the Village Elder, who contacted the Principal of their school, and the deceased was taken to the hospital. He stated that Aggrey texted him and informed him that his friend Ernest was also assaulted. 29.On cross-examination, he testified that Tevin, the deceased, and Clifford left for the disco at 10.00 pm. He stated that he had never seen the Accused persons and that he did not know who assaulted the deceased. 30.PW 3 testified that on the material night, he went to a disco at Ali Baba Bar and at midnight, he left. He stated that five (5) meters from the disco, he met a group of eight (8) people. He said that the 2nd Accused hit him with the handle of a jembe. He averred that he had known the 2nd Accused for about two (2) years and since there was moonlight, he was able to identify him. He said that he reported the incident to the Village Elder, who in turn reported to the police. 31.When he was cross-examined, he admitted that he never saw the Accused persons attacking the deceased. He said that he did not know the 2nd Accused person (sic) but only knew the 1st Accused person(sic). He said that Alembi was not armed with a jembe but the eight (8) people hit him and he ran. He stated that he did not know why the 1st Accused person hit him. 32.PW 4 was PW 2’s mother. She testified that she was sleeping and at 12.00 midnight, she heard a child crying outside saying,“ You are killing me at my own home.” She said that she screamed, and those who were outside escaped. It was her further testimony that the deceased entered the house, and she gave him first aid. She averred that she then called PW 2, who cleaned the deceased. 33.She added that she contacted the police, who came to her house the following day, whereafter the deceased’s teacher took the deceased to the hospital. She averred that the deceased did not mention who attacked him. She said that she did not know the Accused persons. 34.PW 5 corroborated PW 2’s evidence that they went to PW 2’s house together with the deceased and that they left to attend a disco. He testified that he followed the deceased and Telvin to the disco, and he found them at the gate. He stated that at around 11.00pm, the deceased left them at the gate where they were talking to the ladies. He said that they were informed the next day that the deceased had been beaten at night. 35.He testified on cross-examination that the last time he saw the deceased was at the gate of the resort as they waited to go in. He said that he did not know who assaulted the deceased and that he did not know the Accused persons. 36.PW 6 said he was working at the home of Joseph Ashurunda at the material time. He was informed that PW 4 had reported that a school child had been assaulted and he went there and found the deceased, who was not talking. On 21st August 2018, the police picked him to take them to Alembi’s (2nd Accused). They found bhang, a metal rod, and a sword at his house. He testified that PW 3 had informed him that he met three (3) people and he was attacked by 2nd Accused person who hit him with a fimbo (club) when he was going home from a disco, and he advised him to report. He said that he did not know the 2nd Accused person (sic) and he heard that he was ousted from Nairobi. 37.He stated that the metal bar recovered was in the 2nd Accused person’s sitting room at a corner. He stated that he also had a metal bar in his house. He conceded that a metal bar can be used for many purposes. PW 3 told him that he only saw fimbo. He averred that the 2nd Accused person as a nuisance and that it was not the first time he had been arrested. He stated that the 2nd Accused person was arrested because he was in possession of bhang. 38.PW 8 was the Investigating Officer in this case. He reiterated the evidence of PW 1, PW 2, PW 3, PW 4, PW 5, and PW 6. He testified that he established that the deceased left the disco without informing his friend. He stated that he also ascertained that PW 3 and the deceased were attacked by a group of five (5) people and ran to PW 4’s house. He said that PW 3 identified the 2nd Accused person as he knew him. He added that on 21st August 2018, they found the 2nd Accused person in the house with his girlfriend, the said Irene Ayiera. He pointed out that they recovered bhang, one (1) sharp sword, and a metal rod, which they suspected was used to hit the deceased. 39.He said that they arrested the 2nd Accused person and the said Irene Ayiera, but the 2nd Accused person denied having gone to the disco. He stated that the said Irene Ayiera told them that she and the 2nd Accused person smoked bhang and went to the disco with four (4) others. He said that he also verified from one Kuya Joseph and the said Irene Ayiera that the 1st and 2nd Accused persons were at the disco and were taking bhang. He averred that he recorded the statement of the said Kuya Joseph, but that it appeared that he had changed his number, and could not be traced. 40.He stated that he established from the said Irene Ayiera that they all entered the disco, but that the 1st Accused person was outside. He added that the 1st Accused person escaped to Nairobi when he heard that the 2nd Accused person had been arrested. He produced a metal rod and a sharp sword as exhibits in this matter. 41.When he was cross-examined, he admitted that Clinton Omworo never saw the five (5) people who were chasing the deceased since there was no light. He stated that PW 3 knew the 2nd Accused since they hailed from the same village. He averred that PW 3 never mentioned any light in his statement. He stated that they arrested the 1st Accused since he was mentioned by the said Irene Ayiera and that the 2nd Accused was arrested because PW 3 and the said Kuya Joseph saw him at Ali Baba Bar. 42.He averred that there was no blood on the weapons they recovered. He agreed that there was no offence of one owing a metal rod and a sword. He stated that although the said Irene Ayiera and the said Kuya Joseph recorded their statements, they never testified. He admitted that they never stated that they saw 2nd Accused person hit the deceased. He testified that there was nothing else that connected the 2nd Accused person to the murder apart from the metal rod and the sharp sword. 43.This court noted the Accused persons’ defence of alibi, in which they completely denied killing the deceased. The 1st Accused person pointed out that on the material day, he was in Nairobi where he worked. The 2nd Accused person stated that he was at home on the material day and night and never left his house. 44.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”. 45.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. 46.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.” 47.After carefully analysing the evidence that was produced by the Prosecution witnesses, it was evident that no one witnessed the Accused persons assaulting the deceased. The Prosecution relied on PW 3’s evidence that he was attacked and hit with the handle of a jembe by the 2nd Accused person, whom he recognised. PW 3 asked the 2nd Accused person, “Madete, tabuu gani?” (Madete, what’s the problem?) to which the 2nd Accused person, who was accompanied by eight (8) others, also responded by asking him who “Beshte.” The 2nd Accused person then hit him and ran away. 48.PW 3 said that he had known the 2nd Accused person for about two (2) years. He said that there was moonlight, and so he was able to recognise the 2nd Accused person. He recognised the 2nd Accused person in the dock by pointing at him. It was clear to this court that the lighting conditions were sufficient for PW 3 to have identified the 2nd Accused person. Identification was by way of recognition. The fact that the 2nd Accused person did not call a witness to confirm his alibi weakened his case, as he had already been placed at the scene of the incident. 49.Turning to the 1st Accused person, the Prosecution connected the 2nd Accused person to the offence through the said Irene Oyiera and the said Kuya Joseph. In his investigations, PW 8 established from the 2nd Accused person’s girlfriend, the said Irene Oyiera, that the 1st Accused person and the said Kuya Joseph were together when they smoked bhang and went to the disco on the material night. 50.Notably, the said Irene Oyiera and the said Kuya Joseph were not called as witnesses to confirm that indeed the Accused persons were at the disco on the material night. 51.It was trite law that the Prosecution was not bound to call numerous witnesses to prove a fact. This was in line with section 143 of the Evidence Act, which provides that;“In the absence of a provision of the law, no particular number of witnesses is required to prove a fact.” 52.However, if the prosecution failed to call crucial witnesses, an inference could be made that their evidence would have been averse to its case. Having said so, the fact that the said Irene Oyiera and Kuya Joseph were not called as witnesses was not fatal to the Prosecution’s case. In this case, PW 8 testified on what he established in his investigations. His evidence was not hearsay, but rather it was direct evidence of what the said Irene Oyiera and the said Kuya Joseph told him happened. Their importance as crucial witnesses was further watered down due to the fact that PW 3 saw the 1st Accused person at the scene in a group of other people. 53.The 1st Accused person denied having killed the deceased. However, he did not deny knowing the 2nd Accused person. He said that he was with the 1st Accused person in March 2018 and was away on the material night. He did not bring the witness who would have confirmed his alibi. The fact that he was arrested in Nairobi after the incident pointed to his guilty mind. 54.It was a settled principle of the law that when a case rest on circumstantial evidence, the circumstances taken cumulatively should form a chain so complete that there will be no escape from the conclusion that, within all human probability, the crime was committed by the accused persons and no one else. Additionally, for the court to find the accused persons guilty, the inculpatory facts had to be incompatible with innocence and incapable of explanation upon any other hypothesis than that of guilt. This was enunciated in Simon Musoke vs Republic [1958] EA 715 and Abanga Alias Onyango vs. Republic (Supra). 55.Although no one witnessed the deceased being hit by the 1st and 2nd Accused persons, circumstantial evidence showed that the 1st and 2nd Accused persons were together with others around the environs of where the deceased was, and where the 2nd Accused person hit PW 3 on that material night. Indeed, PW 3 testified that he had been warned that there was a gang that was attacking people that night. This court was, therefore, satisfied that the Prosecution proved their case based on circumstantial evidence that was adduced during trial. 56.This court was further satisfied that the Prosecution established that there was common intention by the 1st and 2nd Accused persons to commit the offence while they were in a group of other people. It did not matter who hit the deceased or if people in the group were bystanders. It was sufficient that they were together at the time the offence was committed and had the intention of the deceased suffering some injury or loss. 57.This was in line with Section 21 of the Penal Code Cap 63 (Laws of Kenya) that provides 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.” 58.To that extent, this court found that the Prosecution proved its case to the required standard of prove beyond reasonable doubt, which in criminal cases was proof beyond reasonable doubt that indeed, the 1st and 2nd Accused persons assaulted the deceased on the night of 17th August 2018 and his injuries led to his death, which injuries they caused while in a concert with others, and whose actions were intended to injure the deceased. 59.Their actions were incompatible with their innocence as they did not discharge the burden of proof by providing alibi after being placed at the scene of the incident. IV. Malice Aforethought 60.Having found and held that the Prosecution proved its case that the 1st and 2nd Accused persons murdered the deceased, this court agreed with its submissions that there was malice aforethought on the part of the 1st and 2nd Accused persons as there was both actus reus and mens rea showing a guilty mind. The nature of the injuries that the deceased sustained leading to his death was proof of the malice that they had when they injured him. 61.Through the circumstantial evidence that the Prosecution adduced in court, this court was satisfied that the following ingredients that had been set out in Section 203 of the Penal Code had been demonstrated:-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 62.For the foregoing reasons, the upshot of this court’s decision was that the 1st and 2nd Accused persons herein be and are hereby convicted of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 (Laws of Kenya) pursuant to Section 215 of the Criminal Procedure Code Cap 75 (Laws of Kenya). 63.It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 3RD DAY OF JUNE 2026J. KAMAUJUDGE