https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11587

 **REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **CRIMINAL CASE NO. 18 OF 2018** **REPUBLIC ………………...………………………………. PROSECUTION** **VERSUS** **JOHN NDUMIA THEURI ……………………...……….... RESPONDENT** **JUDGMENT** 1. The accused herein was charged on 17.12.2018 with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, the particulars of the offence being that on the night of 27th and 28th November 2018 at Biricha village in Kieni west subcounty murdered Isaac Githinji Gachuri. 2. He was medically examined on 5.12.2018 and found to be mentally fit to stand trial. He was arraigned in court on 17.12.2018 before the Hon. J Ngaa J, wherein plea was deferred to 20.12.2018. The matter was placed before Mshila J, who conducted plea and the accused pleaded not guilty. 3. The accused was not released on bond at first. However, pursuant to the pre-bail report was filed in 10.4.2019. He was later granted bond on bond on 7.10.2019 but was released on 17.01.2020. Evidence 1. PW1, Benard Kibaya Gachari, testified before Mshila J. on 17.07.2019. He stated that on 27.11.2018, he was riding motorcycle registration number KMDK 760N on his way to his employer's home at Kiawara when the deceased, Isaac Githinji, requested a lift. He carried the deceased and dropped him at the entrance to his home. 2. He stated that, immediately after the deceased alighted from the motorcycle, a person emerged and said, "It is John," before striking the deceased. He did not see the object used to inflict the blow. Upon hearing the deceased scream, the witness restrained the assailant and, in the process, recognized him as John, the accused. The witness managed to calm him down and escorted him to his house, where the accused's wife came out and took him inside. The witness did not know her name. 3. Thereafter, the deceased's brother, Mwaura, arrived and took the deceased home. Having observed the seriousness of the injuries sustained by the deceased, arrangements were made for him to be taken to hospital for treatment.the deceased was taken to Kiawara Centre for treatment. They returned him home. He later learnt that the deceased died. It was his testimony that john and the witness went to the same church. He stated that the deceased, the accused the witness were friends. 4. On cross examination, he stated that he had known the accused since school days. He stated that he left school in 2001 and was born in 1985 having left in Class 8. The accused was a class ahead of him. He stated that the boss lives in Kiawara Centre, where he had a club, butchery and a club. He stated that he found the boss at the bar but did not drink. He stated that he did not drink at the said bar as he had drunk elsewhere. When he left the place of work, he left with Isaac from the bar. Isaac had been sacked hence was not working with him. He stated that they met Isaac at 10.00 pm at night and had not met elsewhere. He stated that the accused went to the bar from the back door and did not know what they were discussing with the boss. The boss told the accused to leave the bar. 5. PW1 stated that the accused’s motorcycle initially failed to start, prompting him to push it before it eventually started. He testified that he did not know whether the accused spoke to the deceased before the assault and was unaware of any prior disagreement involving the deceased, the accused, his employer, or himself. He further stated that he had never telephoned the accused and did not know whether the deceased had done so. PW1 testified that he did not hear any screams emanating from the deceased's home. 6. He explained that the homes of the accused and the deceased were separated by a road. According to him, the accused later went to a bar and caused a disturbance. He denied the suggestion that he and the deceased had threatened the accused. Instead, he stated that the accused arrived at the bar while drunk and hungry, and that the proprietor told him to leave because he had been drinking elsewhere. The witness further denied the defence allegation that he and the deceased went to the accused's home and challenged him to come outside. He also denied striking the deceased and causing him to fall. He testified that other people rose from the scene and that the accused armed himself with a log, which he used in what appeared to be an act of self-defence. 7. On re-examination, PW1 stated that he did not know to whom the deceased had been speaking on the telephone and that he had not listened to the conversation. 8. PW2 was Mary Wanjiku Wamaitha. She is from Biricha, and a housewife. On 12.11.2018 the deceased husband, Isaac Githinji left for work in the morning. She had been married to the deceased for 6 years and had three children. At 8 pm he called and told her that he was waiting for payment. At 8 pm, he heard someone shouting that *‘I will stab someone 8 times and will be taken to court on Monday’*. He went to the house and called on the husband Isaac Githinji. He asked who it was and she stated that it was John. She knew it was John, the neighbour. The witness testified that she thereafter telephoned the deceased and informed him about John. The deceased told her that he was in the company of PW1, Benard Kibaya. The deceased then handed the telephone to PW1, who spoke to the witness and assured her that everything was well. She then called Isaac and told him about John. Isaac told her that he was with PW1. 9. The witness testified that at about 11.00 p.m., she was awakened by the sound of dogs barking. Her mother-in-law switched on the outside lights, enabling her to see two people carrying another person towards their home. As they drew closer, she recognized them as Muthui and PW1 carrying the deceased. 10. Further, that the deceased told her that he had been beaten like a snake. Her mother-in-law then called her brothers-in-law, namely Elijah, Muthui and Maina, together with their wives, who lived within the same compound. They came, observed the deceased's condition, and thereafter left. The witness further testified that the deceased stated that it was John who had assaulted him. 11. The witness then called a neighbour, Benson, who arrived with a motor vehicle. The deceased was subsequently taken to Kiawara Clinic for medical attention. The deceased was admitted at PGH and taken to Mathari Hospital for X-Ray. The deceased was later taken to IC before succumbing to the injuries. The accused was arrested. It is recorded that the witness became emotional and another hearing date was taken. 12. She discussed the issue of postmortem but did not attend. It is Elijah and Meshack Muthui who attended. She stated that the deceased and PW1 were drinking buddies. They had gone to Kiawara centre and that PW1 used to ferry the deceased on his motor cycle. There has never been a dispute between the duo. The accused identified himself to her from outside. She did not get out of the house but called the husband. He only interacted with the accused though his wife. 13. On cross examination, she stated that the accused is a neighbour and their parcels of land is separated by a fence. He stated that 5 brothers and mother in-law live on the same compound. Which had only one gate. She stated that the accused was shouting on the road on foot and she did not hear the accused’s motor cycle probably heading home. She stated that she called the deceased when he indicated that he was still at Kiawara. The deceased told her that the deceased had called him and told him that they meet at home. He was with Kibanya but did not say the exact place (I thought she stated earlier and very earlier on that the husband indicated that they were in Kiawara). She stated that she did not know where PW1’s bike was. The deceased was carried with the same person who was with the deceased at the bar. 14. PW3 was Stephen Kibichi Mureithi of Kaiwara. He recalled that on 27.11.2018 he was selling at his bar at Kiawara trading Centre, as her lady employee did not come on that day. PW1 and the deceased were drinking in the bar and there were other customers. 15. The accused came from the rear of the bar and was drinking alone. He had not taken any drink. He stated that PW1, the deceased and the accused were having a discussion thought they were in different tables. He did not hear the discussion. They changed into noise bordering on a fracas that may ensue. He decided to as the accused leave as he was not sober. He escorted the accused to the door. Customers including PW1 and the deceased took the accused outside. 16. He stated that the following morning, at 8.30 he met PW1 at the place of work where he told the witness that they met the accused at home who beat the deceased and he was taken to hospital. He later heard the deceased had died. PW1 and the deceased were working together at Gatarakwa water project and the deceased left employment. 17. On cross examination, he stated that he was a farmer and chair of Gatarakwa police station. The deceased had asked for reinstatement and the witness advised him to write a letter to the commit the witness was chairing. The witness was serving customers and also drinking. There was a third person on the table the deceased and PW1 were sitting on when the deceased ordered. The third customer was a stranger to the witness. 18. He continued that when the witness requested the accused to leave, he agreed to leave but on reaching the door he became violent and wanted to punch the witness. The witness stated that he did not have a witness. He did not know whether the accused left by a motor cycle, or by other means. the bar was 10 x 12, which he rented form his father, but he could not hear the conversations. He threw out the accused since he was idle but had started a hot argument with pw1 and the deceased. He did not PW1 and the deceased as they were customers, were buying and drinking. He denied that PW1 and the deceased threatened the accused as h did not hear such a conversation. 3 to 4 men out of 7 customers stood up to restrain the witness but get the accused out. PW1 was an employee at Gatarakwa but went to the bar to drink as an adult. The deceased also went to drink but had their own table. 19. PW4 Was Meshack Muthui Wachira, the deceased’s brother. He testified that on 27.11.2018, at 10.00 pm, he heard dogs barking from the deceased’s side of the house. He headed and found the deceased down on the road and was with PW1. On enquiry, is not true that it is the witness have considered the fact that the deceased not only injured the convict’s family but also did whatever he wanted to do in his house. He was 5m from his house. They carried the deceased to his house. When the wife, PW2 asked, they told her that it was John who hit him. The deceased confirmed. He then went to hospital with the deceased, PW1 and PW2. The deceased later died. 20. He recalled that he saw injuries on the head. He recognized this inside the house where there was electricity. There was blood in the middle of the head though there was no blood. He stated that other brothers who live in the same compound but he did not see them. He stated that the appellant and the deceased’s home are 10m apart. There are no boundaries between the brothers’ houses. He did not know where the deceased had been. The witness did not meet the accused on that day. He also attended the postmortem conducted at PGH. He identified the accused in the dock. 21. On cross examination he stated that he heard the barking of dogs and they were running towards the road. When he stepped out he saw only PW1 and no other person at all. Where the deceased was lying was 5 m from the deceased’s house. He knew the accused’s motorcycle but on the said night it was not thee. He found pw1 and he deceased 5 m from the accused’s house and no-one lese. They did not call the accused, though they were metres from his house. He never heard any noises before the dogs started barking because his house is far. The last one was a conceited, showing a lie since, no-one knows why they have not heard something. 22. PW5 was Dr. John Muthuri, the pathologist, who had worked at Nyeri PGH for 3 years. He produced the deceased’s postmortem showing he was assaulted by a person known to him on the night of 27.11.2018. The deceased was taken to a nearby hospital and passed away on 2911.2018. He had right head injury characterized by abrasion and contusion measuring 3x3cm. There was extensive peri-orbital hematoma, right temporal region and right frontal region extending to the peri orbital, skull fractures involving right parietal and frontal regions. It was one injury externally on the head. There was a lot of force used to kill the deceased. 23. On cross examination, it was reported that it was indicated that the deceased was assaulted by John. Externally, there was only a single injury. This can arise from anything including an accident. 24. PW6 was C.I. Simeon Kemboi Ndiwa, of Kiawara DCI in Kieni west Subcounty. He recorded a statement on request of PC Harun Omenge. The accused elected to call his brother Stephen Karuku. He had no objection in being present. The rest of the evidence will be dealt with in analysis as it appears to be a confession. There was need to meet compliance with section 25 A of the evidence act, before determining whether it is evidence. 25. The matter was taken over by Nyagah J, who complied with section 200(3) of the Criminal Procedure Code. The accused opted to proceed from where the matter had reached. However, the good judge was transferred and the matter was placed before Muya J. There was a bit of a reed dance from 31.05.2022 to 2.10.2024, when PW7 and PW8 were heard and the prosecution case was closed. 26. PW7, was PC Haron Ochanda, of DCI Nairobi formerly of Kieni West. He recalled that on 30.11.2018, he received a call from PW6 to investigate the matter. He proceeded to Kiawara and found the accused had been arrested. He was informed that the deceased was assaulted taken to hospital, treated and discharged but later deteriorated and died. 27. He found that the police from Kiawara arrested the accused. He sought for more time, and detained the accused for 14 more days. He recorded a statement, and visited the scene. He collected wooden blank (exhibit 5). The postmortem report was conducted. 28. On cross examination he stated that he was not aware who called the deceased from his house. He stated that the accused laid an ambush on the way. He stated that the accused took him to the kitchen for recovery of the murder weapon. He only interrogated those in the company the accused but not the family of the accused. From the accused’s home to that of the deceased is 30 m. The assault took place in a public road, 10 m from the accused’s house. He stated that in the statement, the accused is attempting to exonerate himself. The accused left the deceased in the bar. There was nothing showing that the accused was assaulted. The accused did not state that he was helped by one Wahome. 29. On re-examination, he stated that there was no formal report made by the accused. He produced an inventory signed by the brother and sister. 30. PW 8 was Corporal Godwill Guthi. He stated that he went to the accused’s home and arrested him for murder. He was initially the investigating officer but he handed over to the DCI, when Circumstances changed. He had recorded statements from PW4 and PW2 by the time of handing over. 31. The prosecution case was closed, and parties agreed to file submissions for mention on 12.11.2024. The accused had not filed submissions and as such the parties took another date, being 22.1.2025. On the next date, the advocate for the accused was absent. He had not filed submissions. The court gave notice directions on 19.02.2025. He was again absent on 19.02.2025. The matter was fixed for mention on 8.05.2025. He was absent on that day and the next. The court also went on transfer. 32. The matter found itself before me on 22.1.2025, where I gave directions on the matter pursuant to section 200(3). The accused preferred that the matter proceeds from where it had reached. After a bit of reed dance with the accused’s advocate finally decided to give a ruling date with the accused filing submissions if they wished. These were never filed. I gave my ruling on 11.02.2026. 33. The court complied with section 306(2) of the criminal procedure code. The same provides as follows: (2) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact. 1. The accused opted to give sworn evidence and was to call two witnesses. The prosecution did not call any evidence in rebuttal pursuant to section 309 of the criminal procedure code. 2. The accused testified as DW1. He testified that on 27.11.2018 he was at Kiawara market, and had a motor cycle. Between 1900 hours and 2100 hours he left where he was and went to Kibicha Bar in Kiawara. He met the owner of the bar and 2 other people, that is PW1 and the deceased. The waiter was Muthoni. As he was sitting, the owner of the bar told him to leave and go to where he was drinking. He refused to go. The owner entered the counter and got a rungu (traditional mace cum walking button) and hit the accused. The accused intercepted the rungu and held to it. As they were struggling, the deceased and PW1 stood up and pushed the accused outside the bar. He pushed his motor cycle and left. The deceased told him ‘*unajua hapa ni Biricha na kuna wenyewe*’. This means roughly that “You know, Biricha has its own established owners.” 3. DW1 stated that Biricha was his home area, approximately 7 kilometres from the bar. He testified that PW1 and the deceased were his neighbours and fellow residents of Biricha. According to him, after leaving the bar, he rode directly home without making any stop. Upon arriving, he parked his motorcycle and was served food by his wife, DW2. 4. While at home, the deceased called him and informed him that he and PW1 were coming to his house. During the conversation, he was warned that he would soon discover that *"Biricha ina wenyewe,"* implying that Biricha had people who exercised control or authority over the area, and the accused was not one of them. He testified that he had no intention of going anywhere and, because the deceased and PW1 kept calling and bothering him, he switched off his mobile phone. 5. He further stated that, since it was dark, his wife wanted to use the phone's torch to fetch water so that he could wash his hands before taking supper. He therefore switched the phone back on. Upon doing so, he noticed a missed call from the deceased. Shortly thereafter, the deceased called again and informed him that they had arrived at his home. At the same time, he could hear not only the deceased's voice over the phone but also the voices of the deceased and PW1 from outside in the compound. 6. He testified that he stepped outside to meet them, whereupon PW1 immediately began assaulting him. According to him, PW1 held him as he repeatedly pleaded with them to stop beating him. His wife began screaming for help during the altercation. As PW1 released the accused, he heard the deceased exclaim that he had been hit. DW1 maintained that it was PW1 who struck the deceased. He added that, because it was dark, he could not tell whether it was PW1 or the deceased who had assaulted him, as he was only able to hear their voices during the confrontation. 7. DW1 denied ever going to PW2's house, contrary to PW2's allegations. He testified that the distance from his home to Githinji's house was approximately 700 metres. He further stated that he had never been to the deceased's house. According to him, he only left his house after learning that the deceased and PW1 were already in his compound. 8. He testified that, following the commotion, several neighbours came out of their houses, including his nephew, Wambugu, members of the deceased's family, and Muthui. The neighbours had torches, which they used to illuminate the area. He stated that he saw Muthui and David Kibanya leave the scene, although he did not know where they were going. 9. On cross examination by the learned prosecution counsel Mr. Kihara, DW1 stated that there were many people in the bar where DW2 had gone to drink. This was a place he had gone to many times. He recalls that in 2018, he was carrying on *boda boda* business. He had attended and partaken services of another bar, before going to Biricha’s bar. He could not recall the names of bars he was in. He entered the first bar at 2000 hours. He partook Senator® Keg, about 4 cups. He was not drunk when he went to Biricha’s bar. He just left the first bar, went and fueled his motor cycle and went to Biricha’s bar. The bar owner directed him not to drink there. This was the first time he was asked not to drink. 10. DW1 testified that PW1 was his agemate and former schoolmate at Rurigi Primary School. He stated that the deceased was also his former schoolmate, although much younger than him. He maintained that he had neither a business nor a familial relationship with either PW1 or the deceased. According to him, he did not converse with either of them at the bar and asserted that the bar owner's testimony to the contrary was false. He stated that, although he had a disagreement with the bar owner, he had no prior differences with PW1 or the deceased. 11. He further testified that the deceased had previously worked at the local water project, where the bar owner served as the chairperson, but had since been dismissed. PW1, however, remained an employee of the project. He stated that he did not know why the bar owner did not want him in the bar and denied insulting anyone. According to him, PW1 and the deceased intervened in support of the bar owner during the confrontation because they were assisting in order be given free alcohol. According to DW1, PW1 and the deceased were effectively the bar owner's "goons", who, in his view, assisted the bar owner and were to be compensated with free alcohol. He maintained that, while he was struggling with the bar owner, PW1 and the deceased joined in to assist the bar owner. 12. DW1 testified that, had he known what would transpire, he would not have gone to the bar. He stated that he and the deceased had not had any disagreement before that day and that the establishment was a bar he frequented regularly. He further testified that the bar owner struck him on the face with a walking stick. He grabbed the stick to prevent the bar owner from hitting him a second time and warned him not to strike him again. He stated that he sustained a mark on his face but did not seek medical treatment. 13. He further testified that he did not know what the deceased meant when he stated that he would come to his home. According to him, he had already been at his house for more than 30 minutes before the altercation occurred there. 14. DW1 testified that he did not see PW1 and the deceased when they arrived at his home but recognized them by their voices. He denied ever going to their residence and maintained that it was PW1 and the deceased who came to his house. According to him, PW1 attempted to wrestle him to the ground while both PW1 and the deceased assaulted him. 15. He further testified that there was no lighting at home and that illumination only came from the torches carried by neighbours who responded after his wife screamed for help. He stated that he recorded his statement at Mwega Police Station within hours of the incident. 16. DW1 also testified that he had switched on the torch on his mobile phone to enable his wife to use it as a source of light while fetching water for him to wash his hands before taking supper. He did not know which injuries were on the deceased. It was his evidence that he had never had differences with the duo but both the deceased and PW1 were drunk. 17. DW2 was Elizabeth Nagiro Ndumia, the accused’s wife. She recalled that on 27.11.2018, she was in the house, in Biricha 2 village. The accused arrived at 2130 hours and stored his motor cycle, in the house. He was served food and then called for water. The witness took his phone, put it on, switched on the torch and went to the kitchen. Then the phone rang. It was a call from the deceased. She took the phone and gave to the husband. The accused talked to the deceased, however, as they were talking, they were already in the compound. The deceased called the accused to come out with all the knives he had. The accused went out though the witness told him not to go. 18. DW2 testified that, despite her advice that he should remain indoors, the accused insisted on going outside, stating that when people came into one's compound, it was necessary to go out and find out what they wanted. She stated that the accused left the house empty-handed and did not carry any weapon when he went out to meet the two visitors. 19. According to her, immediately after he stepped outside, the two men in the compound attacked him. During the struggle, she heard the accused pleading, *"Kibanya, niachilie,"* meaning, "Kibanya, release me." She screamed three times, attracting the attention of neighbours, who responded and went to the scene. She remained inside the house until the neighbours had entered the compound, after which she also went outside. 20. DW2 recalled that when the accused first arrived home that evening, he parked his motorcycle and did not leave the compound again until PW1 and the deceased came to his home. She had already served him food by then. 21. She further testified that the night was very dark and there was no lighting outside, although there was light inside the house. She described the compound as being enclosed by a simple barbed-wire fence with a gate secured by wire. She maintained that the people calling upon the accused to come outside were already inside the compound. After the neighbours arrived, she saw PW1, PW4, Maina and the deceased in the compound. 22. On cross-examination, she testified that when the accused returned home, he had consumed some alcohol but was not excessively intoxicated. She stated that the accused did not explain much to her about the earlier incident involving Githinji. She knew both PW1 and the deceased as neighbours and stated that they previously had a good relationship with the accused. However, she was unhappy when they came to the accused's home that night, which is why she advised him not to go outside. According to her, the accused nevertheless insisted that he wanted to find out what was happening, while she remained inside the house. She maintained that it was PW1 and the deceased who attacked the accused. She further testified that, after the incident, the accused informed her that there had earlier been a dispute at Kiawara. She confirmed that she screamed while still inside the house. Submissions 1. They submitted that that the issue of the accused being called by the deceased neve arose in the prosecution case. Secondly they submitted that the accused had maintained that he was in his house when he was attacked in the proximity of his house. It was dark but the accused. 2. The State filed written submissions dated 28.04.2026. It submitted that it had proved its case beyond reasonable doubt through credible and consistent evidence. Counsel reiterated the factual matrix as presented by the prosecution witnesses. 3. The State further submitted that the allegation that the deceased had telephoned the accused before proceeding to his home did not arise from the prosecution's case and was merely part of the defence narrative. Secondly, it was submitted that the accused maintained that he was attacked while at or near his house during the hours of darkness. Despite his assertion that it was dark, the accused nevertheless claimed to have identified the persons involved and attributed responsibility for the fatal injury to PW1, a position the State contended was inconsistent with his own account. 4. They submitted that there is no doubt that the fight gave rise to the fatal injuries and there were only three people involved and stated that it was not possible to inflict injuries to deceased. They submitted on an outdated thought that failure to shed light on clarity earlier means it is an afterthought. They also submitted, rather wrongly that the defence did not produce evidence that the deceased called the accused before the attack. Generally, the prosecution discussed only the defence case and did not address any part of the prosecution case. Reliance was placed on the case of **Guzambizi Wesonga v. Republic [1948] 15 EACA 63**, where the former court of appeal for east Africa stated as follows: **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. They submitted, without pointing to the evidence that the accused was the aggressor. As is now customary, the accused did not file any submissions, despite being given several chances to do so. Analysis 1. The offence to which the accused us charged is set out in section 203 of the Penal Code as follows: *Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.* 1. Punishment of murder is set out in section 204 of the penal code as modified by various judicial pronouncement. We shall not deal with section 204 at this stage of trial. The elements of murder, which the state was duty bound to prove are 4: 1. Malice aforethought 2. *actus reus* 3. The accused is the perpetrator 4. And, as part of *actus reus*, there is no defence. 2. The elements of malice aforethought is defined in section 206 of the penal code as follows: Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances- 1. an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; 2. knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; 3. an intent to commit a felony; 4. an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony. 5. On the other hand, causing death is defined as follows: A person is deemed to have caused the death of another person although his act is not the immediate or the sole cause of death in any of the following cases- 1. If he inflicts bodily injury on another person in consequence of which that other person undergoes surgical or medical treatment which causes death. In this case it is immaterial whether the treatment was proper or mistaken, if it was employed in good faith and with common knowledge and skill; but the person inflicting the injury is not deemed to have caused the death if the treatment which was its immediate cause was not employed in good faith or was so employed without common knowledge or skill; 2. If he inflicts bodily injury on another which would not have caused death if the injured person had submitted to proper surgical or medical treatment or had observed proper precautions as to his mode of living; 3. If by actual or threatened violence he causes such other person to perform an act which causes the death of such person, such act being a means of avoiding such violence which in the circumstances would appear natural to the person whose death is so caused; 4. If by any act or omission he hastened the death of a person suffering under any disease or injury which apart from such act or omission would have caused death; 5. If his act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other person 6. The accused enters these proceedings clothed with the presumption of innocence. That presumption remains throughout the trial and can only be displaced if the prosecution proves, by the evidence adduced, beyond reasonable doubt that the accused is guilty of the offence charged. If any reasonable doubt remains, the accused is entitled to the benefit of that doubt and must be acquitted. In the case of *R vs. Lifchus {1997}3 SCR 320* the Supreme court of Canada [Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter De Carteret; Mclachlin, Beverley; Lacobucci, Frank; Major, John C] explained the standard of proof as doth: 39. Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along these lines The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression “beyond a reasonable doubt” mean? The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt. 40. This is not a magic incantation that needs to be repeated word for word. It is nothing more than a suggested form that would not be faulted if it were used. For example, in cases where a reverse onus provision must be considered, it would be helpful to bring to the attention of the jury either the evidence which might satisfy that onus or the absence of evidence applicable to it. Any form of instruction that complied with the applicable principles and avoided the pitfalls referred to would be satisfactory. 1. The legal burden refers to the burden of proof, which remains constant throughout the trial. It is the obligation of a party to establish the facts and contentions necessary to support its case, in this case the prosecutor. According to *Halsbury’s Laws of England, 4th Edition*, Volume 17, paras 13 and 14: “The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.” 1. The standard of proof required in such cases was addressed by Brennan, J. in the United States Supreme Court decision of *In re Winship* 397 U.S. 358 (1970), at pages 361–364, where he stated that: **“The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatised by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”** 1. Reasonable doubt need not reach certainty, but it must carry a high degree of probability. It was held by the Court of Appeal in **Moses Nato Raphael vs. Republic [2015] eKLR** as doth: “What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful 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 is proved beyond reasonable doubt, but nothing short of that will suffice.’” 1. The cause of death was blunt injury to the head. The only question is who caused it. The first attempt is to demystify the crime and the crime scene to establish *mens rea* and then find if there was malice aforethought. PW1 was with the deceased in a bar drinking. According to him, he saw the accused hit the deceased but does not know with what the deceased was hit. He was with the deceased throughout. He lied that he did not drink as he had drunk elsewhere. The employer, PW5, maintained that PW1 and the deceased bought drinks. He allegedly left the club and came back at 10.00 am to pick the deceased. He however alleged that the accused went to the bar through back door and was talking to PW5. He also allegedly pushed a motorbike for the accused. Therefore, according to him there were no chaos or fracas at the bar/club. He stated that the deceased made calls while at the same time received calls but he did not know to whom. He denied threatening the accused with death. This was contradicted with PW2. She stated that the deceased talked to the wife and gave the phone to PW1 who assured the deceased of his safety. PW1 had no reason to forget the phone call to PW1’s one. It means it was never there. 2. Unfortunately, the court did not hear the witnesses. This has been addressed in the case of **Sugut v Jemutai & 3 others (Civil Appeal 110 of 2018) [2023] KECA 202 (KLR**) (where Kiage J, stated as doth: I have carefully considered those rival submissions by counsel in light of the record and the bundles of authorities placed before us. I have done so mindful of our role as a first appellate court to proceed by way of re-hearing and to subject the entire evidence to a fresh and exhaustive re-evaluation so as to arrive at our own independent conclusions. See Rule 29(1) of the Court of Appeal Rules 2010; Selle Vs Associated Motor Boat Co [1968] EA 123). I do accord due respect to the factual fndings of the trial court out of an appreciation that it had the advantage, which we do not, of having seen and heard the witnesses as they testified. I am, however, not bound to accept any such findings if it appears that the judge failed to take any particular circumstance into account or they were based on no evidence or were otherwise plainly wrong. I note from the record before us that the learned Judge may not have been in a fully advantageous position in that regard having taken up the case when it was already half-way heard. Her conclusions on the evidence and findings of fact were therefore from a reading of what was recorded by the previous judge.” 1. The prosecution raised the question of the deceased and PW1 challenging the accused to come out. Unfortunately, it appears the prosecution did not address the entire gamut of evidence. PW1 indicated as follows: *It is not true that I and Isaac went to John’s home and challenged him to come out.* 1. In spite of this clear challenge the prosecution never cross-examined the accused on this aspect. In real terms, the deceased, PW1 and the accused were fighting. All parties placed the fight 5-10m from the accused’s home. I note that from the evidence of PW4, Shadrack, he was at home but did not hear the noises. This then agrees with the appellant’s evidence that the deceased’s home was about 700m from the accused’s home. 5 brothers were in the compound and only PW4 came out. It is after event that others came in. If the houses were this close, the other brothers could have heard John howling that he will stab the deceased 8 times. 2. However, all in all the evidence of PW2 was not believable. There is no reason for the accused to identify himself, and start looking for the deceased when he already left them in the bar. PW2 contracted PW1 who said that the accused waylaid them. Surprisingly, someone was shouting at 9 pm when all other prosecution witnesses maintained that the accused was in the bar between 9.00 am and 10.00 am. This must have been a different person. To know who shouted, if at all PW2 ought to have given evidence on how she identified the deceased. Recognition was addressed in the case of *Reuben Taabu Anjononi ,Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR*), where the court of appeal [ Madan, Law & Potter JJ A)] posited as follows: The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported). 1. The case depends entirely whether the accused waylaid the deceased and PW1 or the duo went to his home. This will depend solely whether the accused was shouting that he will kill the deceased. No one ever heard the shouting. This was heard by only PW2. She allegedly called the deceased. There was no record of that call being made. The call was allegedly made and shared with PW1. He had absolutely no recollection of the court. Every other witness heard of dogs barking at the time the fight was ongoing. They brought out PW4. Being a sole witness, the county must warn itself of the danger of relying on a single witness. 2. The court may also be handicapped having not seen the witnesses and watched her demeanor. In the case of **Abdulla Bin Wendo and company & Another vs Republic [1953] 20 EACA166**, the Court there addressed the manner in which the evidence of a single identifying witness should be treated and stated thus: Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known the conditions favouring a correct identification were difficult. 1. The case of [**Maitanyi v Republic** [1986] KECA 39 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/1986/39/eng%401986-09-19), where the court of appeal [Nyarangi, Platt & Gachuhi JJA] addressed the question of a single identifying witness as follows: Although the lower courts did not refer to the well-known authorities Abdulla Bin Wendo & Another vs Reg (1953) 20 EACA 166 followed in Roria vs Rep (1967) EA 583, it may be that the trial court at least did have them in mind. It is important to reflect upon the words so often repeated and yet bear repetition: “Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.” 1. The court had to assess the probability of error. In this case, the conditions based on which the accused could be clearly identified as offender were difficulty. PW2 had to inquire who it is. She relied solely on the name John. Nothing else connected the accused to the shouting. It could as well be that the deceased was having a couple of enemies any of who wanted to kill him. It does not make sense to threaten to stab and go to the war zone unarmed. In **Kiilu & Another V. Republic** [2005] 1 KLR 174 the Court of Appeal held: “Subject to certain well known exceptions, it is trite law that a fact may be proved by testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances, what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the probability of error. 1. The witness, PW2, under the circumstances, could be sure but truly mistaken on the voice. In the case of [**Joseph Hare Mumba v Republic [2019] KECA 829 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/829/eng%402019-03-20)**,** the court of appeal [Visram, Karanja & Koome, JJ.A)] addressed the question of voice identification as follows: 17. Was the above caution taken into account with respect to BK’s recognition evidence? We believe it was. This is because the trial court, which had the opportunity of observing the witnesses as they gave their evidence, found BK to be a truthful witness and we see no reason to depart from that observation. See Nelson Julius Karanja Irungu vs. R [2010] eKLR. The trial court also observed, and rightly so, that despite the incident occurring at night it took a period of almost two hours, that is, from the time the appellant went to BK’s house and took her to his house up until he defiled her. Moreover, during the incident BK was in close proximity with the appellant, who was well known to her, thus negating any possibility of a mistaken identity. Further, contrary to the appellant’s contention, BK named him as the perpetrator to her mother and the police. 18. In as much as it is important for evidence to be led with regard to the exact words upon which a suspect is recognized, we, like the two courts below, are satisfied that in the circumstances of this case that BK was familiar with the appellant’s voice. Our position is fortified by the case of Yaa Baya vs. R [2017] eKLR wherein this Court expressed: “With regard to voice recognition, it has been stated time without number that voice identification is just as good as visual identification. However, just like visual identification, care has to be taken to ensure that the voice was that of the appellant, that the person testifying as to the voice recognition was familiar with the voice and recognized it, the conditions prevailing at the time of the recognition were favourable.. 1. The legal maxim *Falsus in uno, falsus in omnibus*, meaning that false in one thing, false in everything comes in handy. It is not an absolute rule. However, the court is unable to reconcile the two positions. Was the deceased waylaid or was he shouting waiting for the accused. Given the entire gamut of evidence, even prosecution evidence alone, I find the evidence of PW2 as unbelievable. It shall be totally disregarded. 2. Where was the locus in quo? The deceased was about 5 metres from the accused’s house when PW4 found him. What was he doing there? The altercation from the evidence from all witnesses did no irk the accused, deceased and PW1 as per the evidence of the accused, PW1, PW3, and DW1. The altercation in the bar was between PW3 and the accused. The only role PW1 and the deceased did was to help their boss to get rid of the accused from the bar. He let for home. I do not believe that the accused had a reason to attack PW1 and the deceased. Therefore, he had no reason to waylay them. The correct version was that they went to the deceased’s home. 3. DW2 was very candid and gave very natural evidence. Her evidence in a rather coincidental way was partly corroborated by the evidence of PW1. He did not see the weapon that hit the deceased. This confirmed it was very dark. The sequence of events appears that PW1 was holding the accused on being released, Either PW1 or the accused hit the deceased. The fatal blow may have been meant for the accused, but unfortunately it landed on the deceased. That is the misfortune of fighting in the dark. It is irrelevant from the evidence, on who inflicted the fatal blow. ### The law provides for defence of person or property under section 17 of the penal code as follows: **Subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.** 1. The principles of English Common Law provide that for self defence to be justified, the force must be necessary and proportionate to the perceived threat, and the defense fails if you were the initial aggressor. In the case of [**Bethwel Wilson Kibor v Republic [2009] KECA 143 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2009/143/eng%402009-09-25), the court of appeal [E. O. O’Kubasu, E. M. Githinji, D. K. S. Aganyanya] posited as follows: Although the appellant has abandoned his appeal against conviction, nevertheless, this being a first appeal the Court must re-evaluate the evidence and make its own findings as was stated in OKENO v. R. [1972] E.A. 32 and subsequent judgments of this Court. Since the appellant did not raise any defence of intoxication or self defence as a result of the fight between him and the deceased we think the learned Judge was entitled to convict the appellant on a lesser charge of manslaughter. In any case the appellant now appeals against sentence only. 1. In the case of [**Abraham Kibet Chebukwa v Republic [2020] KECA 745 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2020/745/eng%402020-04-24), the court of appeal [Githinji, Okwengu & J. Mohammed, JJ.A.] stated as follows: It is trite law that self defence is an absolute defence on a charge of murder provided that, the accused person did not in the circumstances of the case apply excessive force. This was reiterated by this Court, in the case of *Mokwa vs Republic,* *[1976-80] 1 KLR 1337 where the Court rendered*itself as follows:- “…the judge correctly directed himself that where a person in the legitimate right of self-defence of person or property uses excessive force or more force than was necessary in the circumstances (always providing that all other elements of self-defence are present) he should not be convicted of murder but of manslaughter; **Manzi Mengi v R** [1964] EA 289,292.” 1. From the evidence, there was only one blow to the head. It was meted out in the course of a viscous attack by two persons, in darkness. The two persons, that is the deceased and PW1. They went to his house and called him out. He fought back. It is unclear whether he is the one who meted out the fatal blow. However, whether he did or did not, it was in self defence. Who meted the fatal blow was evidence between the accused and PW1. The force used was proportionate to the circumstances and not excessive. 2. Further, in the case of [**Chepus v Republic [2023] KECA 129 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2023/129/eng%402023-02-10), the court of appeal addressed the question of self defence as follows: In [Ahmed Mohammed Omar & 5 others v Republic](http://kenyalaw.org/caselaw/cases/view/99100)[2014] eKLR, this Court addressed itself to the common law principles of self- defence as follows: “The classic pronouncement on this issue and which has been severally cited by this Court is that of the Privy Council inPalmerv R [1971] A.C. 814. The decision was approved and followed by the Court of Appeal in R v McINNES, 55 Cr. App. R. 551. Lord Morris, delivering the judgment of the Board, said: “It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances.…..Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may be no longer any link with a necessity of defence. …..The defence of self-defence either succeeds so as to result in an acquittal or it is disproved, in which case as a defence it is rejected. In a homicide case the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking, then the matter would be left to the jury. ”According to Archbold– Criminal Pleading, Evidence and Practice 2002, paragraph 19-42, the test of whether force used in self defence was reasonable is not purely objective. “There is no rule of law that a man must wait until he is struck before striking in self defence.” R v Deana,2 Cr. APP. R. 75, CCA.” 1. In this regard, I find that where there is a dispute as to whether a fact is proved or not proved, it is not proved. Section 3(4) of the Evidence Act provides as follows: **A fact is not proved when it is neither proved nor disproved.** 1. Other than the direct evidence discussed there are two aspects I must deal with, that is the alleged confession and circumstantial evidence. The court will address the aspect of the alleged confession, first. Section 25 of the Evidence Act, provides as follows: *A confession comprises words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence.* 1. This means if the admission of guilt is not made, then it is not an admission. From the evidence by PW6, the same was exculpatory evidence. Indeed, it displaces the state submissions that the calling out was not done. Given that he does not admit guilt, it is not a confession. 2. Further, section 25 A of the Evidence Act provides as follows: A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Inspector of Police, and a third party of the person’s choice.(2)The Attorney-General shall in consultation with the Law Society of Kenya, Kenya National Commission on Human Rights and other suitable bodies make rules governing the making of a confession in all instances where the confession is not made in court. 1. The statement under inquiry was not a confession. It did not meet tenets of section 25. It is accordingly useless piece of whatever it is. It is not worthy further consideration. The evidence of PW6 was therefore improperly admitted. 2. The statement under inquiry did not amount to a confession within the meaning of section 25 of the Evidence Act, as it failed to satisfy the statutory requirements of confessions. It was therefore devoid of any probative value and cannot be relied upon in determining the issues before the Court. Consequently, it is not deserving of any further consideration. The evidence of PW6 relating to that statement was improperly admitted and is hereby disregarded. 3. The next question is circumstantial evidence. In criminal cases, the standard of proof is beyond reasonable doubt, even where circumstance is involved. Mativo, J (as he then was) in **Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR** expressed himself as hereunder: “To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.” 1. The threshold for circumstantial evidence was dealt with in the case of **R vs Kipkering Arap Koske** [1949] 16 EACA 135, that such evidence must exclude co-existing circumstances which would weaken or destroy the inference of guilt. In *Sawe vs Rep [2003] KLR 364*, the Court of Appeal expressed that: **“In order 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 his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. 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 remain with the prosecution. It is a burden which never shift to the party accused.** 1. Circumstantial evidence must be inconsistent with the accused’s innocence. In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, [P. KIHARA KARIUKI, PCA, M’INOTI & MURGOR, JJ.A]Court had this to say on circumstantial evidence: “However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.” 1. There was no evidence that shows that there was malice aforethought or the accused had a reason to start the fight. The distance from the accused’s house shows PW1 and the deceased as the aggressors both in the first fight in the bar and the subsequent one. PW1 confirmed that the accused person did not discuss with the two, PW1 and the deceased only came in to push the accused out of the bar. He even stated that he pushed the motor cycle to start. It is only PW3 who could have retreated and restarted the fight through sending of goons. The accused did not have any duty to prove his innocence. The state wrongly submitted that accused should have proved that there was a call to the deceased. This is not the law. 2. The accused does not assume the role of proving his defence. Further, this court is under duty to analyse all contradictions. In **Philip Nzaka Watu vs. Republic [2016] eKLR**, the Court of Appeal held that: The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question. 1. Consequently, the court should determine which version of evidence it could prefer, on the basis of judicial reason. In **Erick Onyango Ondeng’ vs. Republic [2014] eKLR**, the Court of Appeal held that: The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See OKENO VS REPUBLIC (1972) EA 32). It is in the above context that this Court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses. This Court will therefore not interfere with findings of fact by the two courts below unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law. 1. The magnitude of contractions, unless satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected. As was noted in **Twehangane Alfred vs. Uganda**, Crim App. No. 139 of 2001, [2003] UGCA, 6: **With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.** 1. The evidence of PW2 and PW6 was found unsatisfactory. The contradictions are enormous and led to one conclusion, the state’s evidence did not prove murder. 2. Lastly none of the witnesses identified the alleged murder weapon. In any case, the court has already found that the defence of self defence was established. 1. Before departing from this judgment, and in order to problematize, contextualize and conceptualize the issues in this matter, it is important to keep in mind the words of Ouko (PCA), as he then was, in the case of [**Githinji & 29 others v Kenya Urban Roads Authority & 7 others** [2019] KECA 706 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/706/eng%402019-06-07), as follows: Just as the sanctity of a person’s property in the English common law was recognised in the famous dictum that "an Englishman’s home (or occasionally, house) is his castle and fortress”, the Constitution and land laws in Kenya protect, as fundamental the right to acquire and own property of any description; and in any part of Kenya. This sanctity was so important in the days of old that one Right Honourable, William Pitt, 1st Earl of Chatham graphically explained it thus; “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter.” In Kenya the attachment to land is passionate, emotional and almost fanatical. Nations, neighbours, siblings, spouses and even strangers fight over land. In some instances, the disputes degenerate into bloodshed and death. This Court in Gitamaiyu Trading Company Ltd v Nyakinyua Mugumo Kiambaa Co. Ltd & 11 others Civil Appeal No. 84 of 2013, explained why land is such an important asset thus; “Land, no doubt, is not only the most important factor of production but also a very emotive issue in Kenya. Land remains the most notable source of frequent conflicts between persons and communities.” 1. The evidence establishes that PW1 and the deceased deliberately proceeded to the accused's home after the earlier confrontation. The defence case was that their intention was to assert dominance by conveying to the accused that Biricha "had its owners." According to the accused, PW1 and the deceased were acting at the behest of PW3, from whom they allegedly received favours. There was no lawful justification for the deceased and PW1 to proceed to the accused's home at night to confront or threaten him. 2. Having heard and evaluated the evidence, I have found the accused to be a credible witness. His account that he was attacked in his own compound by two intoxicated assailants remained substantially consistent with the surrounding circumstances. The prosecution did not satisfactorily dislodge that version of events. 3. The deceased met his death during a confrontation that he and PW1 had taken to the accused's home. In doing so, the deceased exposed himself to the very danger that ultimately claimed his life. The evidence points to an unfortunate and avoidable confrontation that escalated with fatal consequences. It cannot be said that the accused set out to unlawfully kill the deceased. 4. The sanctity of one's home has long been recognised in both the law and society. A person's home is not a place where others may, without lawful cause, pursue quarrels or confrontations. In the present case, the decision by the deceased and PW1 to go to the accused's residence at night precipitated the tragic events that followed. Upon a careful reconsideration of the entire evidence, I am not persuaded that the prosecution proved the offence of murder beyond reasonable doubt. 5. Since self defence is an absolute defence, there is no need to consider manslaughter. The net effect is that the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code is not proved beyond reasonable doubt. Consequently, the accused is acquitted of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. Determination 110. In the circumstances, I make the following orders: 1. The accused is acquitted of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. 2. The accused is set free unless otherwise lawfully held. 3. Security be returned to the depositor. 4. Right of appeal 14 days. 5. The file is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** onthis **23rd** day of **July** the year of our Lord **Two Thousand and Twenty-Six**. Judgment delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Mr. Kihara for the State Mr. C.M. King’ori for H.K. Ndirangu for the accused Court Assistant – Timothy