https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9076

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT GARISSA** **CRIMINAL CASE NO. E004 OF 2025** **REPUBLIC ………….......................................………..…………...... PROSECUTOR** **VERSUS** **MOHAMED KASSIM TIFFOW.……………….…………..………...…...1ST ACCUSED** **MUSA SHEIKH AHMED …………………………………………..……. 2ND ACCUSED** **ADAN MOHAMED AHMED………………………………………….....3RD ACCUSED** **JUDGMENT** 1. The Accused Persons herein are charged with the offence of **Murder Contrary to** **Section 203 as read with Section 204 of the Penal Code**. The particulars of the offence are that, on the 22nd day of March, 2025 at Lolkuta South Sub-location, Wara Location, Hadado Sub-County, within Wajir County, in the Republic of Kenya, jointly murdered Gaala Adan. 2. Having denied the charge, the case proceeded to full trial with the prosecution adducing evidence from 11 witnesses in its endeavour to discharge the burden of proof beyond reasonable doubt. 3. Briefly, on 22-3-2025 at 1.00 a.m, PW1 one Quresha Ibrahim was in her house sleeping with her husband Adan (3rd accused) and their four children. Next to their house, they had another house then rented to one Tiffow accused 1 herein. That Tiffow was staying with the deceased his wife. That during that night, they heard noise from accused 1’s house. She stated that the voice was that of a man screaming for help while stating that;” msichana ananipiga kishu kujeeni! Kujeeni!” 4. That upon checking, she noticed that accused 1 was bleeding from both palms and the chest. She stated that people responded to the screams. That she saw accused 1 and the deceased holding the knife. That people took away the knife and accused 3 and Mohamed Hasssan Gedow took the 1st accused to hospital. That people went to their houses to sleep. While in the house, she saw fire coming from accused 1’s house. She screamed for help as the house was burning. 5. She stated that people responded and managed to break open the house which was locked from inside. That among the people who responded were her husband and those who had taken accused 1 to the hospital but returned on the way to answer to the screams. She stated that the deceased who was inside the house alone was badly burnt. That she was rushed to the nearest hospital but she died after one and half hours. On cross examination, she stated that after accused 1 her husband was taken to hospital, she (Gaala) locked herself in the house. She stated that accused 1 and 3 did not burn the house. 6. PW2 Amina Abdinoor a refugee residing at Dagahaley Refugee Camp and mother to the deceased confirmed that the deceased was her daughter who had gotten married to the 1st accused a few days ago. That prior to her demise, she had complained severally of accused 1’s physical violence against her daughter. She stated that at one point the deceased sent her a recorded clip revealing her assault episodes by her husband (the 1st accused). That 10 days after she complained of her beatings, she received a call that her daughter had been killed by her husband. That the body which was completely burnt had injuries on the jaw, broken teeth and the neck. On cross examination, she accused the three accused persons as the assailants. 7. PW3, Mohamed Hassan Gedow told the court that, on 22.3.20.25 at 1.00 a.m, he was in his house sleeping when Adan Mohamed (Accused 3) went to his house and reported that accused one had been stabbed with a knife by his wife hence requested for his help to take him to the hospital. That he accompanied Adan (Accused 3) to Tiffow’s house where he found Tiffow soiled with blood all over as he had injuries on both hands and the chest. That Tiffow’s wife equally had injuries. He stated that, it was Tiffow who told them that it was his wife who stabbed him with a knife. That while outside there, the deceased locked herself in the house as he and Adan took Tiffow to the hospital. That before reaching the hospital, they heard a lot of noise from Tiffow’s house. Upon going back, they saw Tiffow’s house on fire. 8. That people broke open the house and found the deceased inside while in bad shape due to burns from fire. That the deceased died shortly after and the police took the body away. On cross examination, he stated that Musa accused 2 was not present. He exonerated the 2nd accused from responsibility. 9. PW4 Mohamed Mohamed Noor step-father to the deceased basically corroborated the testimony of PW2 his wife. He stated that his daughter barely 34 days in marriage had complained to him of her husband’s beatings. He received a call of his daughter’s death and when he saw the body, it had injuries. He identified the body for post mortem. 1. PW5 Habiba Billow stated that on a date she could not remember, she heard screams from the neighborhood. When she went to find out, she found a house burning. That it was accused 1’s house burning while accused 1 had been taken to hospital. She confirmed that the deceased was rescued from inside the burning house but died shortly after. She claimed that it was the deceased who locked herself inside the house. She also stated that she did not see Musa (Accused 2) at the scene. 2. PW6 Cpl. Lucas Musembi stated that on 22-3-2025, he received a call from the Assistant Chief Gesdow Sub-location. That the call was over a murder incident which had occurred at Wara. They then called area chief and proceeded to the scene where they found the deceased’s body covered. That from their enquiries, they found out that the deceased and the husband had a quarrel out of which the deceased stabbed the husband with a knife who in self defence grabbed it from her thus cutting his fingers. He recited basically the testimony of PW1, PW3 and PW4. After scenes of crime took photos, the OCS told him to take the body to Habaswein Sub-County hospital where he attended the postmortem. 1. On cross examination, he stated that he did not see the deceased bearing any injuries. He stated that he only arrested accused 1 and 3. 2. PW7 Dr. Ibrahim Abdi Wahid performed clinical examination of the deceased. According to him, the body had no external injuries except for burns. There was no fracture. That the cause of death was burns. 3. PW8, Snr. Sgt. Joel Kosgey Scenes of Crime took photos of the deceased after exhumation. Photos 47 - 50 revealed no physical injury. 4. PW9 Assistant Chief Gesdow Sub-location received a call from one Mohamed who informed him of the fire incident and somebody burnt inside. He informed the OCS and the area D.O. He proceeded to the scene. On arrival, he found so many people gathered with a dead body covered with cloth. He saw the deceased’s husband (accused 1) while injured on both hands and the chest. That they took the body to the hospital. 5. PW10 the Investigating Officer stated that he received a call from the OCS Hadado Police Station who informed him of a murder incident. He instructed one Cpl. Musembi to visit the scene and document it. That Cpl. Musembi took the body to Habaswein Hospital where postmortem was done. He later visited the scene. He confirmed that the three accused persons were not present when the house started burning. He further stated that the deceased’s mother falsely alleged that the deceased was strangled. That the house was locked from inside when it started burning. 6. PW11 the Clinical Officer treated accused 1 of sustained injuries on the material day and produced P3 Form. 7. In their defence, accused one denied the charge. He confirmed that the deceased was his wife. That shortly after their marriage, their relationship became toxic. That on the evening of 21-3-2025, they engaged in a quarrel. He stated that prior to their altercation, the deceased had locked herself in the outside toilet for two hours. That she refused to serve him food. As a result, he was forced to seek for food at his landlord’s house (Accused 3). After eating, he went back to the house and slept. While a sleep, his wife stabbed him on the chest with a knife and in the process of holding the knife, it cut him on his fingers. That he screamed for help and his landlord Adan (Accused 3) plus other neighbors responded. 8. He stated that he was rushed to the hospital by Adan and Kassim. While on the way to the hospital, they heard noise from his house. That the people who were taking him to hospital left him and went to answer the screams. That he also went back whereof he found his wife had set their house a blaze and burnt herself inside. He said that Musa (Accused 2) was not at the scene at the material time. 9. DW2 the 2nd accused herein denied the charge equally. He stated that on the night of 21st and 22nd March 2026 he was at Kolondile about 300 kms from Wara. That he received information from Boray Mahad that Gaala had died after burning herself in her house. That on the following day, he took off for Habaswein. He was surprised to be arrested for what he did not do. He produced bus ticket to show that at the material night he was not anywhere near the scene of the alleged murder as he was on transit. 10. DW3 the 3rd accused herein, also denied the offence. He confirmed that he was the landlord to the 1st accused during the material time. That he was staying with accused 1 and his wife now deceased within the same homestead. He stated that for the short period he stayed with the couple they were not in good terms. That on the material day, the deceased locked herself in the toilet outside their house and engaged on phone for a long time. He told the court that at night about 1.00 a.m, he heard noise from accused 1’s house. 11. When he responded, he found the 1st accused and his wife fighting with the deceased holding the handle of the knife used to stab him while accused one was holding the blade part of the knife. That he saw the 1st accused bleeding from the stomach and hands. He intervened and disarmed the deceased. That neighbours responded and managed to take accused 1 to the hospital as the deceased who was not injured retreated back to her house. 12. He stated that, while on the way taking the 1st accused to the hospital, they heard screams from his home. When they went back, they found accused 1’s house on fire with people trying to put it off. As people broke the house, they managed to get the deceased out but badly burnt. That the deceased died shortly after and the police and area chief were called. The body was then taken to the hospital. He stated that the 2nd accused was not around the scene. 13. At the close of the defence case, prosecution and the defence filed their final submissions. Mr. Nyipolo watching brief for the victim’s family opted to adopt the prosecution’s submissions. 14. Prosecution filed submissions dated 27-4-2026 basically reciting evidence by the prosecution and the defence. On identification, counsel contended that the accused persons were implicated because they were not far from the house when it caught fire. 15. Mr. Oloo for the defence filed submissions dated 27-4-2025 urging that prosecution had failed to prove its case beyond any reasonable doubt. That the prosecution had failed to adduce any evidence to connect the accused with the cause of death. Learned counsel opined that proof of causation was critical in a criminal case. In that regard, the court was referred to the case of **Republic vs John Maiyoro Asande(2021) KEHC2343(KLR).** 16. Further, counsel submitted that the evidence by the prosecution was speculative hence the same cannot sustain a conviction. To support that position, reference was made to the case of Republic vs **Owiti(2023)KEHHC 19571(KLR)**. 17. That the evidence of PW7, PW8 and PW10 confirmed that the deceased did not suffer any injuries. 18. As to malice aforethought, counsel contended that there was none proven. That there was no proof of pre-arranged plan amongst the accused to execute the plan. In that regard the court was referred to the case of **Roba Galma Wario v Republic (2015)e KLR**. 19. I have considered the evidence tendered by the prosecution and defence. It is trite that it is the duty of the prosecution to prove the guilt of an accused beyond reasonable doubt. **See** **Woolmington vs DPP [1935] AC 462**. The only issue for determination is whether the prosecution discharged the burden of proof against the accused persons that they murdered the deceased. 20. The offence of murder is defined under **Section 203** of the [**Penal Code**](https://new.kenyalaw.org/akn/ke/act/1930/10) as: **‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder’.** 1. The prosecution thus must establish the following essential ingredients: 2. **That the deceased died.** 3. **That his death was unlawfully caused.** 4. **That the death was actuated by malice aforethought.** 5. **That the accused was the assailant.** 6. The above position was held in the case of **Nyambura & Others vs Republic (2001) KLR355.** 7. Regarding the question whether the deceased died, the evidence of the Doctor PW7 is clear that the cause of death was open flame 100%. He confirmed that there was no external injury. PW8 Forensic Expert who took photos of the deceased confirmed the body was badly burnt and that there were no physical injuries. 8. PW6 Cpl. Musembi who took the body from the scene to the hospital and who attended the postmortem stated that the deceased had no stab wounds nor any physical injuries. He however confirmed that the body was extensively burnt and that from the information he gathered while at the scene the deceased had locked herself inside the house. 9. From the above evidence, there is no doubt that the deceased died out of burns. 10. The next question is whether the fire was unlawfully caused. Obviously, the act of setting a blaze the house was an unlawful act leading to the death of the deceased. 11. The critical question is who was the culprit. Prosecution contended that the accused persons were the assailants because they were near the scene of crime about One kilometer away. From the evidence on record, nobody neither saw the accused set ablaze the house in which the deceased was nor attacking the deceased. In short there is no direct evidence connecting the accused persons with the death of the deceased. 12. Unlike PW2 mother to the deceased and PW4 step-father to the deceased who claimed that the deceased was injured, the postmortem report and the officers who attended the postmortem revealed otherwise. Therefore, prosecution is entirely relying on circumstantial evidence that the accused were near the burnt house. 13. It is apparent that there is no direct evidence to connect accused persons with the offence in question. It is clear from the evidence on record also that the circumstantial evidence relied on does not conclusively connect the accused with the offence. **See** the case of **Ahamad Abolfathi & Another vs Republic (2018) eKLR** where circumstantial evidence was elaborated thus; **“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.”** 1. In the case of **Sawe v Republic (2003) KLR 364,** the Court had this to say on circumstantial evidence; **“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 co-existing circumstances weakening the chain of circumstances relied on.”** 1. From the testimony of PW1, the deceased had a sour relationship with the husband (Accused 1). She gave quite elaborate testimony on how the deceased her tenant attacked her husband using a knife. Her testimony further confirmed that the deceased locked herself in the house and then set ablaze the house. This testimony is corroborated by PW3 and PW5. Their testimony does support the testimony of the accused persons which was not shaken on cross examination. 1. The fact that the 1st accused was attacked and injured by the deceased is clear from the testimony of PW1, PW3, PW5 and the accused persons besides the Clinical Officer PW11. 2. For the prosecution to claim that the accused were near the scene of the incident is being speculative. Indeed, the prosecution’s evidence did confirm that the accused persons were not present when the house caught fire. They also confirmed that the house was locked from inside when they tried to break open the house implying that the only person who was in the house and therefore had the chance to burn the house was the deceased. The entire prosecution evidence is literally in support of the defence case. There is no evidence to connect the accused as culprits. 3. As to malice aforethought, the same is spent as the element of causation has been determined. There was no proof of malice aforethought as the accused were not the assailants. 4. In a nutshell, prosecution has failed to prove its case to the required degree. The case ought not to have been filed in the first place as there was no evidence to charge the accused. Accordingly, the accused are hereby acquitted of the charge of murder for lack of evidence. Right of Appel 14 days. Dated, signed and delivered virtually this **26th** day of **June 2026** J. N. ONYIEGO **JUDGE**