https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11230

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CRIMINAL CASE NO. 2 OF 2018** **REPUBLIC …………………….……..……………………………..……………. PROSECUTOR** **VERSUS** **MORRIS LIGALE SHIKOKOTI ..…………………..………………….………….. 1ST ACCUSED** **THOMAS LUTESHI MWOLE .………………………………………..………….. 2ND ACCUSED** **JUDGEMENT** 1. The Accused persons Morris Ligale Shikokoti and Thomas Luteshi Mwole are jointly charged with murder contrary to Section 203 as read with Section 204 of the Penal Code in that it is alleged that on 6th January 2018 at Macyenze Village, Savana Sub-location, Iguhu Location in Kakamega South Sub-County within Kakamega, jointly with others not before court, they murdered Emmy Imari Agoi. 2. The case proceeded for hearing before Hon. Chirchir J. before she was transferred. When the court took directions under Section 200 of the Criminal Procedure Code, the parties expressed the wish to have the matter proceed from where it had reached. 3. This Court is now tasked to write a Judgement pursuant to Section 200. 4. The prosecution called two (2) witnesses. PW1 was Naphtali Mulinya Mutsotso who testified that he is the Senior Assistant Chief of Macyenze Sub-location and that on 5.1.2018, he was sleeping at about 10.00 p.m. when he received a telephone call from Kigari, a boda boda operator, who informed him that there was an injured woman near the school who was crying for help. He phoned Chief Kennedy Amwayi and Mr. Koriati to inform them of the incident. He then summoned the village elder, and they went to the scene near Macyenze Primary School on the Maseno-Kaimosi road. When they got there at 11.00 p.m., they found a woman lying down on her stomach. She was crying for help and was bleeding. Her clothes had been pulled up to the chest and were blood-stained. She had blood on the lower side of her body. 5. PW1 said that he went to the woman’s home to fetch a blanket since her condition was bad and she was unable to stand on her own. He had recognized her as Emmy Agoi and he woke up her son Eugene at their home which was 200 metres from the scene. Eugene woke up and went to his mother’s house where he found the door ajar. They collected a blanket and asked a neighbour John for help. He introduced himself to the victim, who then informed him that she was killed because of a shamba. She named her in-laws, Tom and Ligale, as having killed her because of land. She told him that they had removed her from her house. They got a vehicle and took her to Kakamega General Hospital, where she was attended to but died at 4.00 a.m. After he was informed of her death, he recorded an incident report and handed it over to his seniors. 6. PW1 identified Tom and Morris Ligale as the 2nd and 1st Accused respectively. He said that he had known them since birth and they had schooled together. He said that the deceased’s husband and the 2nd Accused were brothers and that the 1st Accused had an assault case with the deceased which she had reported to him. He had then directed her to the police station, and the matter was pending in the Magistrate’s Court. 7. On cross-examination, PW1 said that the deceased and the Accused persons were not cordial with each other. He said there was a criminal case in court and squabbles over land as the 1st Accused held a title deed to the land that was occupied by the deceased. He further said that the 1st Accused is the deceased’s immediate neighbour while his house is 600 metres away from their houses. He said that he was with Isaac Khaminwa when they visited the scene and did not find anyone else. He said that Eugene was surprised that his mother had been assaulted and informed him that Morris and Tom had visited his mother for a talk and picked her from the house at 9.00 p.m. to go and talk with her. He said that Eugene kept crying that the Accused persons had killed his mother. The witness said that the deceased mentioned Morris as she said the Accused persons had killed her. 8. Eugene Khasiala Ligare, who was recorded as PW3, recalled that on 6/1/2018 at 9.00 p.m., he was with his mother in the kitchen; then, after supper, he went to sleep with his brother in the kitchen while the mother went to sleep in the main house. After about 45 minutes, he heard a knock on his mother’s door which was about 1½ metres away. He got out to find that his mother had already opened the door. He found Tom and Ligale with his mother. One of them was his step-uncle and his father's cousin. He inquired what was going on, but his mother assured him that there was no issue, so he went back to sleep. 9. PW3 recounted that at about midnight, he was woken up by a knock and found the Assistant Chief, who asked him to take a blanket. He picked up a blanket and followed the Assistant Chief, and after a distance, they got her mother, who was lying down, bleeding profusely. He asked her what happened. She struggled to speak and said, “Likale ameniuwa.” He asked her again, and she said, “Likale ameniuwa”. PW1 organized for transport, and they took her to Kakamega County Hospital where his mother passed away. 10. PW3 said that the distance from their home to the scene of incident was less than one kilometre and was 10 minute walk away. He found her with a broken arm, broken leg, and blood. He said he used the flashlight on his phone because the incident occurred at night. He said he had no grudge against the two Accused persons, although they were not close; one was a step-uncle, and the other was a cousin. He identified the two Accused persons. He said that the Chief was with two other people and he did not see any weapon at the scene. He said that his father had died earlier. 11. When cross-examined, PW3 said that he was born in 1998 and had known the Accused persons for 24 years. He said he knew the 2nd Accused well and that at home they referred to him as “Tom” and to the 1st Accused as “Ligale”. He said that the main house was close and he heard a knock on its door. According to him, the Accused persons rarely visited, and he could not recall when they last visited his home before the incident. He said that the Assistant Chief's words were “take a blanket,” “wameuwa!” Wameuwa!” in exclamation. He said that the Chief had a flashlight but he did not see him with a phone. He insisted that his mother told him “Ligale ameniuwa” and he recorded her words but lost the phone after he joined campus. He said that he had heard Morris tell his mother that he had something to discuss with her privately. 12. PW3 further said that he knew Elfas Machiti and he knew that his uncle uses the name Mashiti. He said that Elfas Machiti was his mother’s boyfriend and he did not know whether Machiti brought his mother home that evening. He said he saw Ligale, not Elfas. He further said that he had no problem with his mother leaving with Ligale as she was with his uncle. He said that he heard the Chief saying, “wameuwa! Wameuwa!” to the phone and that whatever differences were in his written statement were minor. 13. At the close of the prosecution’s case due to failure to secure more witnesses, the Accused persons were found to have a case to answer and placed on their defence. 14. The 1st Accused testified on oath as DW1. In his defence, he denied killing the deceased. He said that on 6/1/2018, he was asleep at home at about 10.00 p.m. when he was woken by the sound of a motorbike. He heard someone knocking and woke up to find Elvis Mikunda. He opened the door and saw two motorbikes with their lights directed at it. They told him to get out so they could give him some news. He went to check who was on the motorbikes and found it was Elvis Mukambi, Elvis Zneiza, Calistus Miheso, and the chairman of the boda boda by the name Kinya. Elvis informed him that they had found an injured woman by the road. They said that when they asked her who had attacked her, she said that she did not know and only needed help. They told him the woman’s name was Evaline. He directed them to the Assistant Chief as he did not get along with them. The Chairman called the Chief, but he did not pick up. He directed them to look for the man who stays with the woman, one Elias Machiti. They left, and he went back to sleep. 15. It was DW1’s case that at 6.30 a.m. he heard the deceased’s child crying that the deceased had died. He claimed that his wife was chased away by the Assistant Chief when she went to sell milk as they were accused of killing the deceased. On 10th, he was in his brother’s house when his wife brought the police over. The police took him to Kakamega Police Station where he found Thomas. Later, they were charged with killing the deceased. DW1 said that he had not met the 2nd Accused for over 50 years and he only came to realize that he knew him after their arrest. He claimed that he did not know if the 2nd Accused killed the deceased. 16. DW1 admitted that there was a dispute over land after they disagreed with the deceased’s decision to sell the land. He said that the deceased was his sister-in-law and the land dispute began after her husband’s demise. During cross-examination, the 1st Accused said that the village Chairman informed him that the deceased wanted to sell. He denied assaulting the deceased before but admitted that he had been charged with assault. He denied having been the last person seen with the deceased. 17. The 2nd Accused defended himself as DW2. He denied killing the deceased. He said he is a night watchman and at about 10.00 p.m., his sister Violet Mateshi called him to inform him that Emily had been injured and that when she received the news, she asked mom (sic) (DW1) to accompany her to check on her to go and pick the deceased and she disconnected. At about 2.00 am., his sister called again and told him that the deceased had been taken by the police. He did not go because he and the deceased used to fight. 18. DW1 said that after work, he left to sleep and about 9.00 a.m., two people came and took him to Ilesi Police Station on the allegation that there were items stolen at his workplace. At the Police Station, he was interrogated and later taken to Court, where he was charged with killing his in-law. He said that the deceased’s husband was his brother. He said he left when he was young and was not upset because Emily wanted to sell the land. He said that his sister’s house and the 1st Accused’s house are close. 19. When questioned by the court, DW2 said that the deceased’s husband was his blood brother as their fathers are brothers. 20. At the close of the defence case both parties filed written submissions. **Submissions by the Prosecution** 1. The State submitted that they had proven their case beyond reasonable doubt. They submitted that the post-mortem report that had been produced by consent confirmed that the deceased died and that the cause of death was unlawful. They submitted that the Accused persons had been positively identified as the people who assaulted the deceased, as there was circumstantial evidence that the Accused persons were last seen with the deceased and the deceased made a dying declaration that the Accused persons had killed her. They relied on **Marita v. Republic [2023] KECA 580 (KLR), Philip Nzaka Watu v. Republic [2016] KECA 696 (KLR)**, and **Kiiti v. Republic [2023] KECA 1192 (KLR)**. The State further submitted that they had proven that there was implied malice aforethought and extent of injuries on the deceased and relied on **R v. Stephen Kiprotich Leting [2009] eKLR**. **Accused Persons’ Submissions** 1. In their written submissions dated 26/2/2026, the Accused persons highlighted the inconsistencies and contradictions in the prosecution’s case. They submitted that the prosecution had failed to prove its case beyond reasonable doubt. **Analysis and Determination** 1. In a criminal case, the burden lies with the prosecution to prove its case beyond reasonable doubt. This was well settled in **Woolmington v. DPP [1935] AC 462,** which was quoted with approval by the Court of Appeal in **Moses Nato Raphael v. Republic [2015] KECA 787 (KLR)** as follows:- ***“The principle of law to the effect that the burden of proof in criminal matters lies with the prosecution is now old hat. There are of course, a few instances where the law provides for the converse, and shifts this duty to the accused, but that is not the case here. This Principle is well captured in the time honored English case of Woolmington v. DPP (1935) A. C 462 where the court stated:-*** ***“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject [to the qualification involving the defence of insanity and to any statutory exception].If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”*** 1. The evidentiary threshold in criminal cases was considered in **Miller v. Minister of Pensions [1947] 2 ALL ER 372** when Lord Denning stated that:- **“…That degree is well settled. It need not reach certainty, but it must carry a degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect community if it admitted fancily possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case if proved beyond reasonable doubt but nothing short of that will suffice…”** 1. Section 203 of the Penal Code provides:- ***“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”*** 1. The elements to be proven in a charge of murder as derived from Section 203 are:- 2. The death of a human being. 3. That the cause of death was unlawful. 4. That the killing was done with malice aforethought. 5. That the accused persons participated in the unlawful act. 6. Regarding the question as to whether the person named Emmy Imali Agoi died, there is no doubt regarding that. The post-mortem in respect of the deceased was produced by consent, and it indicates that the estimated date of death was two days before the post-mortem was done on 8/1/2018. Post-mortem is only done on a dead body. The Accused persons did not dispute the fact of death. 7. The killing of a person is generally forbidden save under exceptional circumstances where it is allowed by law or otherwise justified. 8. In **Guzambisi S/o Wesonga v. Republic [1948] 15 EACA 65**, the Court held that:- ***“Every homicide is presumed to be unlawful except where circumstances make it excusable or where it has been authorized by law. For a homicide to be excusable, it must have been under justifiable circumstances, for example in self-defence or in defence of property.”*** 1. In **Republic v. Kipkemei [2024] KEHC 2388 (KLR)**, the Court, considering the ingredients of an unlawful act in the context of murder, held that:- ***“The elements of unlawful Acts in homicide cases have this common features;1.A deliberated act which is unlawful (e.g. an assault)2.The act is a dangerous act in that it is, from an objective standpoint, one which as sober, reasonable and responsible person of the perpetrator’s age and gender, would inevitably realise in an act which is likely to cause the deceased some physically harm, albeit no serious harm, and3.The unlawful, dangerous act cause death (even though death or harm or any kind is not intended).”*** 1. The post-mortem report indicates that the cause of death of the deceased was circulatory collapse secondary to mixed tissue injuries following assault. The autopsy revealed that the deceased sustained multiple lacerations to the scalp, right cheek, nose, and arm. She also suffered a closed fracture to the mid right and left humerus, compound fracture to the mid tibia and fibula, and extensive soft tissue injuries to other areas of the body. The injuries, having been attributed to an assault by the Pathologist, point conclusively to an unlawful killing. 2. There was no direct evidence linking the two Accused persons to the deceased. Hence, the prosecution relied on circumstantial evidence which flowed from statements allegedly made by the deceased and claims that the deceased was last seen with the Accused persons. 3. Where the Prosecution seeks to rely on the last seen doctrine, it must prove that the accused is the last person seen with the deceased, that there is no other reasonable explanation for the deceased’s death and that there exists no intervening event that could have caused the demise of the deceased. Once the prosecution establishes the aforesaid, the Court will draw an inference that the accused was responsible for the death subject to the circumstantial evidence being cogent and consistent thereby leading to no other conclusion. 4. The Prosecution’s case was founded on the basis that since the deceased was last seen with the Accused persons, the inference that should be drawn is that they are responsible for what happened to the deceased. Hence, the evidential burden shifted to the Accused persons to explain what happened after they were last seen with the deceased. 5. In the case of **Marita v. Republic [2023] KECA 580 (KLR)**, the Court of Appeal held that:- ***“The Last Seen Doctrine essentially provides that if a person is the last one seen with the deceased just before his death or within a reasonable period of his death and no other person could have intervened in between them, then the presumption can be taken that he (the person who was last seen with the deceased) is the author of the crime causing the deceased’s death. In such a case, the burden of proof shifts to the person last seen with the deceased to negate this fact and if he is not able to give a lucid and sufficient explanation about his innocence then the presumption becomes even stronger. Ideally, for the Last Seen Doctrine to safely apply, the duration of the accused and deceased last seen together and the recovery of the dead body should be minimal. This rules out the possibility that another person intervened…”*** 1. For the last seen doctrine to sustain a conviction, the Prosecution must establish the following circumstances:- 2. That the deceased was last seen alive with the accused. 3. That the interval between the time the two were last seen together is so short that no one else could reasonably have intervened. 4. That the accused has failed to tender a reasonable explanation, noting that silence on a false explanation allows the Court to draw the inference of guilt. 5. The inference must be supported by other circumstantial evidence to strengthen the case. 6. Once the evidential burden shifts, it is incumbent, under Section 111 (1) of the Evidence Act, to profer a satisfactory explanation that would cast reasonable doubt on the prosecution’s case. Section 111 provides:- ***“111 (i) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:*** ***Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist.”*** 1. PW3, the deceased’s son, testified that he last saw the Accused persons after they had come to fetch her from her house at night, and he believed her when she said there was no issue because the Accused persons were her in-laws. His evidence was not corroborated despite his claim that he and his brother were sleeping together in the kitchen on the material date. This left a gap in the prosecution’s case that needed to be filled. 2. In their defence, the 1st Accused gave a bare denial and did not seek to explain his whereabouts at 9.00 p.m. when he was alleged to have gone to pick the deceased from her home. The 2nd Accused raised an alibi in his defence which he never raised during cross-examination of the prosecution witnesses. An alibi defence must be raised early in the case for it to be accepted by Court and where it is not, it is rejected. However, since PW3’s claim that the deceased was last seen with the Accused persons was not corroborated, the burden of proof did not shift to the Accused persons. 3. The prosecution’s case was that when the deceased was found lying with fatal injuries, she informed PW1 that she was killed because of a shamba, and it was by her in-laws, Tom and Ligale. PW3 was more definite in his testimony, saying that the deceased said “*Ligale ameniuwa*”. 4. For a dying declaration to sustain a conviction, it must relate to the cause of death and to the circumstances surrounding it, the declarant must have believed the injuries are grave, and the declarant must be dead, and the cause of death must be in issue. 5. Should the Court admit the evidence of PW1 and PW3 as a dying declaration? Section 33 (a) of the Evidence Act provides:- ***“(1)In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say—*** ***(a)if the maker of the statement either—*** ***(i)had personal knowledge of the matters dealt with by the statement; or*** ***(ii)where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters.”*** 1. In **Kihara v. Republic [1986] KECA 41 (KLR)**, the Court of Appeal held that:- ***“…Though there is no rule that dying declaration must be corroborated, the court needs to caution itself that to obtain conviction on a dying declaration, it must be satisfactorily corroborated…”*** 1. More recently in **David Kiilu Kiiti v. Republic [2023] KECA 1192 (KLR)**, the Court considered the test to be applied when dealing with dying declarations and pronounced itself as follows:- ***“Additionally, the case of***[***Henry Mulamba Bwire & another v Republic***](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/163)***[2019] eKLR cited the Supreme Court of India in the case of P.V. Radhakrishna v State (AIR 1989 SC of Kamataka) on the principles for admission of a dying declaration thus;*** ***“The principle on which a dying declaration is admitted in evidence is indicated in latin malent, “nemo morturus procsomitur mentri, a man will not meet his maker with a lie in his mouth.”*** ***The court then went on to detail the tests to be applied for admissibility of evidence of a dying declaration as whether;*** ***(1)there is any possibility of any concoction or distortion in the narrative.*** ***2.The event forming the narrative was so unusual, startling or dramatic that it gave rise to a likelihood of the victim misapprehending the correct position and therefore made in error; and lastly.*** ***3.The statement must be closely connected with the event causing the death of the deceased”.”*** 1. The Court notes that although the evidence of PW1 was vague as he did not say exactly what the deceased said, his evidence captured the deceased’s communication to him that the two Accused persons had killed her because of a land dispute. PW3’s evidence, which was more explicit, was inconsistent with that of PW1 because it named only one person as the killer. Furthermore, PW3’s evidence suggests that the deceased was too weak to say much. In the premises, the claim by PW1 that the deceased told him that the Accused killed her because of land and that she told him that they had removed her from her house is inconsistent with PW3’s evidence in a material way. The inconsistencies in the evidence of the two key witnesses of the prosecution call for caution regarding the dying declaration. 2. In **Republic v. Peter Olango Osingo & 2 others [2015] KEHC 8460 (KLR)**, the Court found it unsafe to convict the accused persons because the deceased was alleged to have made different declarations to the two witnesses. 3. There were several issues left unresolved at the end of the trial. As submitted by the defence, there was, admittedly, a history of bad blood and animosity between the deceased and the Accused persons. It was therefore unlikely that the deceased would voluntarily follow the Accused persons at such an hour or that PW3 himself, would allow them to go with her without question. 4. Additionally, PW3 agreed that in his statement to the police, he did not state the exact words he claimed the deceased uttered to him in her dying declaration. 5. The prosecution’s case was further weakened by the failure of the other prosecution witnesses notably, the village elder and the neighbour John, to attend court and give evidence. Perhaps the said witnesses would have corroborated the claim that the deceased named the two Accused persons as her killers as they were said to have been at the scene when the deceased made the dying declaration. 6. In the final analysis, bearing in mind the fact that I did not have the privilege of observing the witnesses as they gave evidence, I find it unsafe to convict the Accused persons based on the evidence on record. The failure to secure witnesses sounded a death knell to the prosecution’s case. If their failure to attend court to testify was because they wanted to cover up for their kith and kin, and if the Accused persons did kill the deceased as alleged, a Higher power will judge them. 7. The upshot is that I find that the prosecution failed to prove its case in entirety as there is some reasonable doubt as to whether the Accused persons were responsible for the murder. I therefore acquit the Accused persons of the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. 8. I order that the Accused persons be set free forthwith unless otherwise lawfully held. Dated, signed, and delivered at Kakamega this 21st day of July 2026. **A. C. BETT** **JUDGE** **In the presence of:** Ms. Chala for the Prosecution/State Mr. Mukavale J. for the Accused persons Court Assistant: Polycap