https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12521

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CRIMINAL CASE NO. 55 OF 2015** **REPUBLIC …………………….……..……………………………..……………. PROSECUTOR** **VERSUS** **PATRICK SHITANDA ..………………………………………………….………….. ACCUSED** **JUDGEMENT** 1. The Accused, Patrick Shitanda, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars were that on 22/8/2015 at Chegulo Location, Chebwai Sub-Location, Timbito Village, he murdered Moses Shitanda. 2. The Accused denied the charges and the prosecution adduced evidence through five (5) witnesses. PW1 was Jonah Mula Mukhwala who testified that on 23/8/2015, he received news from one of his nephews who informed him that Moses Shitanda, who was his brother’s son, had been killed at Timbito. He proceeded to Timbito and on the way, met a police vehicle carrying the deceased’s body. The body was taken to Webuye Hospital Mortuary, and later he went to the mortuary where he identified it. The body had three (3) injuries. After the post-mortem was done, the body was released to them for burial. 3. PW2, Caleb Wandongo was the Assistant Chief, Chebwai Sub-Location. He testified that on 22.8/2015, at 10.00 p.m., he was at home when he heard shouts, then received a call from Lukaya Lobari, a village elder, who informed him that there was a fight at Moses Shitanda’s home. He went to the home and found people standing aside. He and the village elder entered the house and found Moses Shitanda seated while being supported by one of his sons. He had a cut on the head. His wife, Sarah Shitanda, was there. She informed them that the deceased wanted to cut up his children that night. He called the police and gave them the report, then directed the deceased’s sons to take him to hospital, then returned to his home. The next day at 4.00 a.m., he received a call from the deceased’s wife that her husband had died. He called the police, and they went and picked up the body and arrested the deceased’s three sons and his wife. He recalled that at night, Sarah had given him a panga and a rungu, saying that the deceased wanted to use the said weapons to kill his family members. He identified the said weapons as well as the Accused in court. 4. Jason Anzemo Gavole, the Secretary of the Nyumba Kumi, testified as PW3 and said that on 22/8/2015, at about 8.00 p.m., he was at home when he heard noise from Mzee Shitanda’s home. He went there and found the mother and children surrounding the old man. He flashed a torch and the deceased was bleeding from the nose. The deceased kept asking his wife why she made the children kill him. He did not know the children’s names since they were new in the village. He went and called the village elder, and they went to the scene together. The Assistant Chief found them at the scene. He later went home to sleep, and the next day, the police collected the body. The witness identified the Accused as one of the deceased’s sons that he saw on that night. 5. PW4 was Zakayo Lunani Wemanya, a village elder. He said that on 22/8/2015 he was at home when he heard noise from Mzee Shitanda’s home. Shortly thereafter, PW3 went to his home and reported that he had found the deceased lying on the ground. They went to the home and found the deceased in his house, crying. His wife and sons were standing outside. The wife told him that the deceased was beating her and the Accused intervened and beat him. The witness said that they stayed until midnight and left after notifying the Assistant Chief. The next day, they heard that the deceased had died. 6. On cross-examination, PW4 said that he got to know the Accused on the night of the incident. He said he saw that the deceased had a cut on the face between the nose and eyes, but the deceased was not talking. 7. PW5 was IP Caleb Onyango who took over as the Investigating Officer from one IP James Kerario. He recounted the Investigating Officer’s statement dated 23/8/2015 which indicated that a report had been received from the Assistant Chief that the Accused had a quarrel with his father and got into a fight which resulted in the father’s death. The statement indicated that the police went to the scene and found the body lying on a mattress inside the house. They took photographs of the body and recovered a blood-stained panga from the scene. An interrogation established that the Accused quarreled with the father. On 23/8/2015 the suspect was arrested and charged with the instant offence. A post-mortem was carried out on 26/8/2015, and the Doctor formed the opinion that the death was caused by cardiovascular failure secondary to multiple injuries to the head. PW5 produced the post-mortem report and the five photographs taken at the scene as exhibits, and the defence did not object. 8. The witness further said that the blood-stained panga that was recovered from the scene was never taken for forensic analysis. He also produced it as an exhibit. He further stated that investigations revealed that the quarrel between the Accused and the deceased was within the compound. 9. Cross-examined, PW5 said that the date of the photographs was not indicated and although the reference on the photograph was the date of certification, he had not seen the certificate by the photographer. He confirmed that five people were arrested and charged for the murder, but the charges against the others were withdrawn after it was realized that only the Accused committed the offence. 10. Upon being placed on his defence, the Accused gave a sworn statement in which he said that on the material night, he was at home with his mother, sister and two younger brothers. They were shelling maize when he heard the deceased calling from outside. The deceased had panga cut injuries on his body. He demanded food, but nobody answered him. When his sister Christine passed near him, he cut her on the left arm. The Accused stated that he decided to push the deceased out of the house, then locked the door from outside. The deceased continued to make noise, alleging that his children wanted to kill him. After a while, a neighbour, PW3, arrived and told them to open the door, which they did. The deceased requested his mother to give him first aid as he was bleeding on the head. She cleaned the deceased and put him on the bed to sleep. 11. The Accused said that they continued to shell the maize after closing the bedroom to prevent the Accused from going out. At midnight, he went to sleep in his house while his mother and siblings slept in the same house with his father. The next morning, he and his mother went to check the deceased and found him dead. His mother informed the village elder by phone, and later the Assistant Chief came and called the police, and thereafter he, his mother and two brothers were arrested. According to him, the father arrived home drunk that night. 12. On cross-examination, the Accused said that his brothers were aged 12 years and 15 years respectively and that when the deceased, who was already bleeding, asked for food, nobody answered him. He denied cutting the deceased and said they did not take him to hospital due to lack of means of transport as they were new in the area. 13. Since the entire hearing was conducted before a different Judge, directions were taken that this court do proceed to write and deliver a Judgement. **Prosecution’s Written Submissions** 1. The Prosecution submitted that they had proved that the person named as deceased died and that the cause of death was unlawful as confirmed by the post-mortem evidence. 2. The Prosecution further submitted that there was circumstantial evidence that the Accused was the one who assaulted the deceased in that PW4 said that when he went to the deceased’s place, he found the deceased and his wife. The deceased’s wife said that the deceased was beating her and their son intervened and beat him. It was their submissions that the Accused’s defence did not cast doubt on the prosecution’s case as the only people who were at the scene on the date of the incident were the deceased’s immediate family members. It was argued that the evidence of PW4 irresistibly points to the Accused as the person who assaulted the deceased. On the issue of malice aforethought, the Prosecution posited that the existence of malice could be inferred from the circumstances, including the multiple injuries inflicted on the deceased. 3. On his part, the Accused submitted that since there was no eyewitness or direct evidence linking him to the murder, the evidence of the prosecution was circumstantial. Relying on **Chiragu & Another v. Republic [2021] KECA 342 (KLR)** and **Sawe v. Republic [2003] KLR 364**, the Accused contended that there was no evidence linking him to the murder. **Analysis and Determination** 1. For the Accused to be convicted of the offence of murder, the prosecution was required to establish the vital elements beyond reasonable doubt. In **Woolmington v DPP [1935] AC,** the Court discussed the standard of proof in criminal cases and held as follows:- ***“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability; proof of beyond reasonable doubt does not mean proof beyond a shadow of doubt. The Law would fail to protect the community if it admitted fanciful possibilities to defect 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, then the case is proved beyond reasonable doubt, but nothing short of that will suffice.”*** 1. The elements of murder under Section 203 of the Penal Code are:- proof of death, the cause of the death, proof that the death was due to an unlawful act or omission, proof that the Accused was the person responsible for the act or omission, and proof that the killing of the deceased was premeditated or driven by malice. 2. There was no doubt at the end of the hearing that the person named as Moses Shitanda was dead. All the witnesses agreed that he was the one who died. PW5 produced the post-mortem report that indicated that the body was identified by Jonah Mula Mukhwana and Jafred Mwanje Saul, after which an autopsy was conducted and a death certificate No. 779217 issued. 3. Regarding the cause of death, the post-mortem report indicated that the Doctor formed the opinion that the cause of death was cardiovascular failure secondary to multiple injuries to the head. 4. During autopsy, it was established that the deceased had suffered an occipital cut wound, deep nasal cut wound, 3 cut wounds to the left upper hand, cut wound to the hand wrist, stab wound to the left flank, bruised left knee joint and bilateral bruises to the lower leg. Internally, the deceased suffered a deep cut wound to the head on the frontal region, and it is the head injuries that led to his death. The evidence by the witnesses was that the deceased had wounds on the head and was bleeding. Additionally, they were informed by the deceased’s wife that the deceased had been beaten by his son. PW3 said that the deceased kept asking his wife why she made the children kill him. Moreover, the photographs that were produced clearly showed that the deceased had cut wounds that were inflicted by a sharp object on his face and head. Put together, all the evidence points to the deceased having been assaulted. Assault is a criminal offence and hence unlawful unless demonstrated to have been excusable or justifiable. No evidence was led to prove that the homicide was caused under justifiable circumstances such as self-defence or defence of property. In the circumstances, I find that the prosecution did prove that the cause of death was unlawful. 5. The third element to prove is that the Accused was properly identified as the person who assaulted the deceased. On this element, the Prosecution relied on circumstantial evidence. To convict the Accused based on circumstantial evidence, it has been held that the inculpatory facts must be incompatible with the innocence of the Accused and incapable of explanation through any other reasonable hypothesis than that of his guilt. In **Sawe v. Republic [2003] KECA 182 (KLR)**, the Court of Appeal held:- ***“To justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of Iris guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden, which never shifts to the party accused.”*** 1. In applying circumstantial evidence, the court must be persuaded that the circumstantial evidence points unerringly to the guilt of the Accused and that the circumstances, taken cumulatively, form such a complete chain that there is no other conclusion that can be drawn other than the fact that the Accused is guilty. In **Chiragu & Another v. Republic (Supra)**, the Court of Appeal, while quoting in approval the holding in **Abunga Alias Onyango v. Republic CR. APP. No. 32 of 1990 (UR)**, stated that:- ***“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”*** 1. Although none of the witnesses saw the deceased being assaulted, it was common ground that when the neighbours responded to the noise from the deceased’s home, they headed there and found the deceased’s wife, his daughter and three (3) sons. None of the deceased’s family members were called to give evidence. What the prosecution relied on was the testimony of the witnesses who went to the scene the night of the incident.PW3 ‘s testimony was that he found the deceased talking and severally asking the wife why she made the children kill him. PW4 said that the deceased’s wife told him that the deceased wanted to beat them, but the son intervened and beat the deceased. He did not name the son who beat the deceased, and in the absence of the wife’s evidence, the identity of the perpetrator was not clearly established. 2. Apart from the failure to call the deceased’s family members to give evidence, the panga that was recovered from the scene was not subjected to forensic evidence to establish whether it was the murder weapon and whether the Accused’s fingerprints were present. 3. In his defence, the Accused denied that he assaulted the deceased and claimed that by the time the deceased arrived, he was already injured. His defence was doubtful. However, the circumstantial evidence that was adduced by the prosecution was not cogent and did not point irresistibly to the Accused’s guilt as it was based on hearsay and speculation. What the court can deduce is that the deceased was not on good terms with his wife and children. Why else would they let a grievously injured person sleep on his own the whole night without any effort to seek medical help for him? 4. Be that as it may, any of the deceased’s family members, including his four children and wife, could have been responsible for the assault. There is no evidence that points unerringly to the Accused being the culprit. The hearsay evidence certainly raises suspicion that the Accused is culpable, but the hearsay evidence alone is insufficient in the absence of any other inculpatory evidence. 5. I have painstakingly weighed the evidence on record and have no option but to find that the same falls short of the required standard for a safe conviction. 6. In the end, I find that the prosecution has failed to prove its case beyond reasonable doubt. The Accused is hereby acquitted of the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code under Section 322 (1) of the Criminal Procedure Code. He is therefore ordered to be set at liberty unless otherwise lawfully held. Dated, signed, and delivered at Kakamega this 31st July 2026. **A. C. BETT** **JUDGE** **In the presence of:** Ms. Chala for the Prosecution/State Ms. Muthami holding brief for Ms. Luseno for the Accused Court Assistant: Polycap