https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6785

Republic v Sitienei alias Franline Moila (Criminal Case E005 of 2020) [2026] KEHC 6785 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KEHC 6785 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Case E005 of 2020 JM Nang'ea, J May 14, 2026 Between Republic Prosecutor and Danson Kobirio Sitienei alias Franline Moila Accused Judgment Charge facing the accused person 1.This is a very long pending case instituted way back in 2020. The above named (hereinafter referred to as “the Accused’’) was on 29th September 2020 arraigned in court on information of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence state that on the 30th day of July 2020 at Kapkarang Village, Molo Sub County, within Nakuru County he murdered Vincent Kipyegon Kirui (hereinafter referred to as “the Deceased’’). 2.The Accused denied the offence. The Prosecution case. 3.Part of the prosecution evidence was recorded before my brothers (Honourable Justices J. M Ngugi (as he then was) and H.M Nyaga J) who have since transferred to other work stations. This court took over the case on 26th November 2024 and directed that hearing would continue from the point the immediate former trial court left off. 4.The prosecution case is that on the date in question at around 7:30 a.m. PW1, a resident of Marioshoni area, heard screams emanating from his neighbours’ home about a kilometer from his home. The witness said he was also a village elder. Together with two brothers named Nicholas (PW2) and Vincent Kipyegon (the Deceased), he went to find out what the matter was. On the way they learnt that there were clashes between two communities, the Kipsigis and Ogiek, and that one person had been injured using arrows. For their safety they decided to turn back. On getting to the home of a village elder called Harrison Moila, they found him with his children who included one known as Frankline, the Accused herein. Mr. Moila advised them to observe peace in light of the disturbances going on. The Accused is then said to have emerged from a maize plantation and stabbed the Deceased with an arrow in the neck before fleeing. PW1 had earlier seen him entering the farm but he was not armed at the time. PW1 told the court that he knew the Accused before and pointed at his image on a screen in court, apparently during virtual hearing of the case. The witness and others transported the Deceased on a boda boda for his safety. He later heard that the Deceased succumbed to the injury on his way to hospital. PW1 claimed to have also seen another injured person being taken to hospital that day. 5.The witness further testified that he had also given evidence in two other similar cases involving members of the Ogiek Community. One of the cases involved a person called Festus Moila who is the Accused’s brother. The court was told that PW1, PW2, PW3 and PW4 and the Deceased hail from Kipsigis Community. PW1 denied harbouring any grudge against the Accused or his relatives despite his discomfort about the feud between their two communities. He had even leased land from the Deceased’s father. 6.PW2 confirmed PW1’s evidence. When they learnt of the clashes between the two communities, they had turned back to go home fearing for their security on advice of PW2’s father. They met the Accused who was with his other relatives. Then the Accused got into a maize farm before aiming at the Deceased, who was the witness’ brother, with an arrow injuring him in the neck. The Deceased is said to have bled profusely and died on the way to hospital. PW2 also pointed at the Accused he called Frankline, on a screen in court during hearing of this case. 7.According to PW2, they never got to the scene of the fight pitting the two communities against each other, because of safety concerns. 8.PW3 is the father of the Deceased and PW2. Reiterating his sons’ evidence, the witness stated that he did not see the Deceased being injured saying that he was behind him and PW2 as they were going to the place from which the screams emanated. He had, however, heard someone shouting; “Frankline has killed me!” PW3 then saw the Deceased being carried on a motor cycle escorted by PW1 and PW2, nursing an arrow around. The Deceased could not speak by the time he got home after he was injured. 9.PW4 is the Deceased’s sister. She too found the Deceased having already been injured. According to her the Deceased named the Accused as the one who injured him. 10.PW5 testified as the Investigating Officer. He confirmed receipt of a report about the clashes at the Molo Police Station. It was a general report of a fight between the Kipsigis and Ogiek Communities. Together with other officers, he stated that he visited the scene. PW1 recorded a statement with them and told them he knew the killer. PW2 is said to have also related that he witnessed the attack. PW5 further allegedly related that the attacker reportedly went into hiding. An officer called Biwott (PW6) arrested him on 16/9/2020 and he was charged upon completion of investigations. The witness told the court that the name “Frankline” was explained to them to be the Accused person’s alias. 11.PW5 continues to testify that the doctor who conducted autopsy on the body of the Deceased extracted arrow parts from the body, wooden and metal ones. The exhibits were shown to the court and marked for identification. 12.PW6 confirmed having arrested the Accused. He testified that on 12/9/2020 while he was based at Elburgon Police Station, clashes erupted at Marioshoni in Elburgon. On 16/9/2020 at around 6:00 a.m. screams were heard proclaiming an invasion. He and other officers responded and saw about 20 male youth armed with bows and arrows who entered a maize farm upon seeing the officers. The officers called for reinforcement and laid a siege on the farm in order to flush out the suspected raiders. Two of them, one of whom was called Frankline Moila, were apprehended as they attempted to escape. The officers did not find arrows and bows they were reportedly armed with. Area residents who had raised alarm identified the said Frankline as the one who had earlier shot his neighbour using an arrow. PW1 is said to be among those who identified Frankline as the assailant. The fact is not, however, stated in the officer’s statement. The officer denied having arrested the Accused at his home. The second suspect arrested with the Accused was escorted to Molo Police Station for investigation over reported arson cases. 13.The Pathologist who conducted post-mortem on the Deceased’s body testified as PW7. Examining the body on 5/8/2026 at Egerton University Funeral Home, he noted that the body was smeared with blood and showed signs of blood loss. A stab wound was on the right back. Another stab wound was the chest. Doctor further testified that he found an arrow fragment hanging from the stab wounds. The cause of death is opined to be severe chest and vascular injury leading to massive haemothorax due to arrow stab injury to the chest. The autopsy report dated 5/8/2020 was tendered and admitted in evidence. The Defence Case 14.The Accused was put on his defence at the close of the prosecution evidence. He offered sworn evidence and called one witness as well. 15.The Accused testified that on the date of the alleged attack on the Deceased, he was at his father’s home in Kapkarang Village. Earlier on 11/7/2020 Forest Officers removed him and others from Kiptunga Forest they had allegedly trespassed into. That was when he went to stay with his father. 16.The Accused further stated that on 30/7/2020 in the morning while still at his father’s home, screams were heard in the area. They could not establish the cause and remained indoors for safety. The Accused said he was in his father’s home until September 2020 when he went to the forest to harvest potatoes he had planted. Then on 16/9/2020 police officers arrested him for allegedly killing someone. 17.The Accused claimed that PW1 maliciously implicated him because his father had refused to lease land to him as related to him by his father. He reiterated his denial of the charge, adding that he did not know the Deceased. 18.The Accused’s father (DW2) confirmed his son’s evidence. He suspects PW1 to have been the one who falsely implicated his son in the crime. DW2 claimed that PW1 was unhappy when he declined to lease his land to him. The witness also told the court that he did not know the Deceased and PW2. Analysis and Determination. 19.Learned Counsel for the Accused filed final written submissions. It would appear that the Prosecution side has not put in submissions. 20.The sole issue for determination is whether the prosecution has proved beyond reasonable doubt that the Accused murdered the Deceased, actuated by malice aforethought. 21.Section 206 of the Penal Code provides that malice aforethought is proven by one or more of the following circumstances;-a.Intention to cause death or do grievous harm whether the death actually occurs or not.b.Knowledge that the act or omission causing death will probably cause the death or grievous harm to a person, whether the death is actually caused or not.c.An intention to commit a felony.d.An intention by an act or omission to facilitate flight or escape from custody of any person who attempts to commit a felony. 22.The prosecution does not have to prove the motive for commission of any crime, and neither is the evidence of motive sufficient by itself to prove commission of a crime by a person who possesses the motive (see Case law in Robert Onchiri Ogeto vs Republic (2004) KLR (1a) 23.In homicide cases, death is presumed to have been unlawfully caused unless it is otherwise accidentally caused in circumstances that make it excusable. The Ugandan cases to wit; Uganda vs Lydia Draru Alias Atim HCT-00-CR-SC-0404 High Court of the Republic of Uganda and Akol Patrick & Others vs Uganda (2006) HCB (Vol. 1) 06 and the Court of Appeal for East Africa in R vs Gusambiza s/o Wesonga 1948 15 EACA 65 underscore this legal position . 24.Case law in Republic vs Gideon Wambua Kioko & 2 Others (2019) eKLR lists three essential elements of the offence of murder as hereunder;i.The death and cause of death of the deceased.ii.That the accused caused the death through an unlawful act or omission.iii.The accused possessed the intention to cause harm, or kill, or malice aforethought. 25.In the circumstances of this case there is no doubt that the deceased was intentionally murdered given the weapon used and the part of the body targeted. The question to be answered is whether the Accused was the culprit. 26.The Accused raises an alibi defence which is a strong rebuttal of the prosecution case if not disproved. The judicial determination in Charles Kasena Chogo vs Republic [2019] eKLR and R vs Mahoney (1979) 50 CCC among many other cases, however, holds that failure to disclose an alibi defence at a sufficiently early opportunity may determine the weight to be given to it. It is underscored that early disclosure enables the police to investigate the veracity of the defence and avoid prejudice that may otherwise be occasioned to the Prosecution. The Defence Counsel also correctly states the same guiding principles governing consideration of an alibi defence. 27.It seems to be undisputed that there were clashes in the material period between the Ogiek and Kipsigis communities. The Deceased, PW1, PW2, PW3 and PW4 are members of the Kipsigis community while the Accused and DW2 hail from the Ogiek community. The prosecution relies on purported eye witness evidence by PW1 and PW2. 28.PW1 said they found the accused with his siblings near their home. PW2 also confirmed this testimony. Rather inconsistently, these witnesses also seemed to say that the Accused was hiding in a nearby maize farm from which he emerged to attack the Deceased. It is also unclear as to who reported the incident to the police. PW1 denied making the report saying he only recorded a statement during investigations. In fact he denied an invasion by a group of youth as claimed by other witnesses stating that it was an isolated case of murder. PW2 appeared to contradict this evidence by stating that it was in fact PW1 who made the report to the police. 29.PW5 (Investigating Officer) said a general report about a fight between the Kipsigis and Ogiek was made to them and no individual was implicated. According to PW5, the report was that a group of attackers assaulted and injured many people including the deceased. The report is also said to indicate that the attackers were unknown. This contradicts PW1’s account. 30.The prosecution evidence is therefore riddled with material inconsistencies with respect to the Accused’s culpability. The evidence does not therefore displace the Accused’s alibi defence. It is the duty of the prosecution to prove falsity of such a defence as put forth by the Accused. If PW1 and PW2 indeed saw the Accused attacking the deceased, it is not explained why they did not lodge the complaint at the earliest opportunity and give his name to the police. 31.The charge is not therefore proven beyond reasonable doubt. The Accused is acquitted thereof under Section 215 of the Criminal Procedure Code. Any bond/bail security deposited in court be released to the owner. JUDGEMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAKURU THIS 14TH DAY OF MAY, 2026.J. M. NANG’EA, JUDGE.In the presence of:Mr. Wakasyaka for the DPP.Mr Mong’eri Advocate for the Accused.The Accused.The Court Assistant – Jeniffer