https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12199

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT …** **CRIMINAL CASE NO.EO20 OF 2023** **REPUBLIC………………………………………………………………………….PROSECUTOR** **VERSUS** **ALEX OKUSIMBA SHIUNZU alias DOCTOR…………………………...……1ST ACCUSED** **ROBUSTONE MAKOKHA SHIUNZI alias FRANCO………………………….2ND ACCUSED** **JUDGMENT** 1. The accused 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 the night of 20th and 21st March 2023 within Kakamega County, jointly with others not before the court, he murdered **Zainabu Nasimiyu**. 2. The prosecution called six witnesses. The accused’s defence has been considered together with the prosecution evidence. **ISSUES FOR DETERMINATION** 1. The issues for determination are: 2. Whether the death of the deceased and its cause were proved. 3. Whether the death was caused by an unlawful act. 4. Whether the accused persons were positively identified as the perpetrators. 5. Whether the prosecution proved malice aforethought beyond reasonable doubt. **ANALYSIS AND DETERMINATION** 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 prosecution bears the burden of proving all the ingredients beyond reasonable doubt as stated in the case of **Woolmington v DPP [1935] AC 462**. 2. In **Anthony Ndegwa Ngari v Republic [2014] eKLR**, the Court of Appeal stated that the prosecution must establish: * the fact and cause of death; * that the death resulted from the unlawful act of the accused; and * that the accused acted with malice aforethought. 1. **Whether the death of the deceased and its cause were proved.** 1. PW5, the investigating officer, found the deceased lying in a pool of blood inside her house with deep cut wounds on the head. 2. PW6, Dr. Dickson Mchana, performed the postmortem examination and concluded that the cause of death was penetrating head injury secondary to sharp force trauma following assault. 3. This medical evidence corroborates the observations made by PW5 and other witnesses who saw the body shortly after the incident. 4. The court therefore finds that the fact and cause of death were proved beyond reasonable doubt. 1. **Whether the death resulted from an unlawful act** 5. The evidence shows that the deceased sustained multiple cut wounds on the head inflicted by a sharp object.There is no evidence suggesting accident, suicide or lawful justification. 6. The attack was clearly unlawful. 1. **Whether the accused persons were positively identified as the perpetrators** 7. The prosecution principally relied upon the evidence of PW1, Patience Makokha. 8. PW1 testified that she had been sleeping in the same house as the deceased on the material night. At about 8.00 p.m., she was awakened by the sound of someone banging on the door. Upon waking, she saw a man armed with a panga attack the deceased. 9. She stated that the assailant had a bright spotlight, which enabled her to see him clearly, and she recognized him as “Doctor,” her uncle, whom she had known prior to the incident. 10. She further testified that the 1st accused had previously visited the deceased in the company of Franco and Zeddy, during which they threatened the deceased over a dispute concerning a parcel of land. 11. PW1’s evidence was therefore one of recognition by a witness familiar with the accused, rather than the identification of a stranger. 12. In **Anjononi & Others v Republic [1980] KLR 59**, the Court of Appeal held that recognition is more reliable than identification of a stranger because it depends upon prior knowledge. 13. Nevertheless, even recognition may be mistaken and courts must exercise caution. In **Wamunga v Republic [1989] KLR 424**, the Court of Appeal held that evidence of visual identification must be carefully examined because honest witnesses may still be mistaken. 14. Similarly, in **Roria v Republic [1967] EA 583**, the Court warned that mistaken identity has caused many miscarriages of justice. The court has therefore carefully examined PW1’s evidence. 15. PW1 stated that the attacker had a bright spotlight enabling her to see him. She knew him as her uncle before the incident. There is no suggestion that the attack lasted only a fleeting moment. She consistently identified the accused from the earliest opportunity. 16. Her evidence is corroborated by the testimony of PW2, PW3 and PW4 regarding repeated threats made by the accused’s brothers and relatives over the disputed parcel of land. Although those witnesses did not witness the killing, their testimony establishes the background leading to the murder. 17. The investigating officer (PW5) also established during investigations that there had been repeated threats shortly before the killing. 18. The court therefore finds that PW1’s recognition evidence was credible and free from material inconsistency. 19. PW2 testified that Setty and Franco had threatened the family, stating that if they did not vacate the land they would next meet during a funeral.PW3 similarly testified that on 12th March 2023 the deceased informed him that Zedekiah, Franco and another relative threatened that next time they would come for a funeral and not discussions. 20. PW4 confirmed that on 19th March 2023 Franco, Zeddy and his wife threatened the deceased while she was cultivating the land, warning that the next visit would be for a funeral. 21. Although motive is not an essential ingredient of murder, it strengthens the prosecution case. Section 9(3) of the Penal Code provides that motive is generally immaterial, although evidence of motive may assist the court. 22. The repeated threats made only one day before the killing strongly support the prosecution case. 23. Having carefully evaluated PW1’s testimony, this court is satisfied that the prevailing circumstances favored positive recognition. The witness had known the 1st accused before the incident as her uncle, the assailant, had a bright spotlight, and her evidence remained consistent throughout. 24. Accordingly, the court finds that the 1st accused was positively recognized as the person who fatally attacked the deceased. 25. With regard to the 2nd accused, however, no witness placed him at the scene of the murder.PW1 did not testify that she saw him inside the deceased house or participating in the attack. The evidence of PW2, PW3 and PW4 was that the 2nd accused, together with others, had previously threatened the deceased over a land dispute. While those threats establish the existence of hostility and may demonstrate motive, this do not, without more, prove that the 2nd accused participated in the murder. 26. Suspicion however strong cannot form a basis of a criminal conviction and cannot form the basis of a criminal conviction, this was reiterated by the court of appeal **in Sawe v Republic{2003}KLR 364,** 1. **Whether the prosecution proved malice aforethought beyond reasonable doubt.** 27. Section 206 of the Penal Code defines malice aforethought.The deceased sustained repeated panga cuts directed at the head, one of the most vulnerable parts of the human body. 28. In **Rex v Tubere s/o Ochen [1945] 12 EACA 63**, the court held that malice aforethought may 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 and after the attack. 1. The 1st accused used a panga and repeatedly cut the deceased on the head. Those injuries were clearly intended to cause death or grievous harm. 2. The court therefore finds that malice aforethought was established. 3. The defence did not raise any evidence sufficient to cast doubt upon the prosecution case. The prosecution evidence was internally consistent. The eyewitness account by PW1 was corroborated by medical evidence, scene evidence, previous threats, evidence of the land dispute and the investigations conducted by PW5. 4. The court is satisfied that the chain of evidence points irresistibly to the 1st accused and leaves no reasonable doubt. 5. Having considered the entire evidence, the court is satisfied that the prosecution proved beyond reasonable doubt that the first accused unlawfully caused the death of the deceased with malice aforethought. The first accused is therefore found guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and is convicted accordingly. 6. As regards the second accused, the evidence on record raises suspicion arising from the previous land dispute and threats made to the deceased. However, suspicion alone cannot found a conviction. The prosecution failed to prove beyond reasonable doubt that the second accused participated in the murder or shared a common intention with the first accused to commit the offence. The second accused is accordingly found not guilty and is acquitted under section 322(1) of the Criminal Procedure Code unless otherwise lawfully held. It is so ordered. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA 28TH DAY OF JULY, 2026.** **S.MBUNGI** **JUDGE** **In the presence of:-** CA: Zilda/Velma Accused present. Mr. Amasakha for the accused persons present online. Ms. Emily for ODPP present online.