https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11242

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT BUNGOMA** **CRIMINAL CASE NO. E018 OF 2023** **REPUBLIC…………………………………………………PROSECUTION** **-V/S-** **GODWIN WANJALA WAFULA………………………………..ACCUSED** **JUDGMENT** 1. Godwin Wanjala Wafula, the accused person ( accused) faces a charge of murder contrary to Section 203 as read together with Section 204 of the Penal Code. The particulars of the offence are that on the 26th day of April 2023 at around 1200hrs at Musikoma junction in Bungoma South Sub-County within Bungoma County jointly with others not before court murdered Godfrey Wafula. 2. The prosecution called 6 witnesses to support its case and the accused gave a sworn statement during his defence. **PROSECUTION CASE** 1. Cleus Ogola, PW1, testified that he worked as a sugarcane loader. On 26th April 2023 at about 1.00 p.m., he was travelling on a tractor loaded with sugarcane from Sang’alo to the Bumula Weighbridge with Kennedy, Elvis, PW3 and Nyikuri. The tractor was driven by Godfrey Wafula, the deceased. When they reached Musikoma Junction, a group of boda boda riders began pulling sugarcane from the moving tractor and repeatedly ordered the driver to stop. When the driver failed to comply, the riders began throwing stones at the occupants of the tractor, striking Kennedy. PW1 stated that the group, numbering between ten and twenty people, pursued the tractor on foot before later following it on motorcycles. As the tractor approached Musikoma Secondary School and later Nambaya Junction, additional boda boda riders joined the chase and continued pelting the tractor and its driver with stones. 2. Pw1 testified that upon reaching Nambaya Junction, the attackers rode ahead of the tractor, and one of them placed a motorcycle in its path. He identified the accused in court as the person who alighted from a motorcycle and deliberately placed it on the rough section of road in front of the tractor. He stated that, in an attempt to avoid the motorcycle, the deceased lost control of the tractor, which veered off the road and crashed into a shop. He recalled that the deceased became unconscious after the collision, but the boda boda riders continued to throw stones at him even after the tractor had stopped. 3. PW1 further stated that he left the scene and reported the incident at Musikoma Police Station, assisted by a passing boda boda rider. Police officers accompanied him back to the scene, but by the time they arrived, the attackers had fled. He found the deceased slumped in the driver’s seat, unconscious and unresponsive, bleeding from the side of the head. The deceased was taken to Bungoma County Referral Hospital, while PW1 and PW3 proceeded to the police station to record their statements. He testified that the entire incident, from the initial confrontation at Musikoma to the collision at the shop, lasted about one hour. He later learnt that the deceased had died the following day. 4. PW1 further testified that although he had not known the accused before the incident, he clearly identified him as one of the boda boda riders involved in the attack. He stated that the accused was initially a passenger on a motorcycle and later alighted at Nambaya, where he positioned the motorcycle in front of the tractor, causing the deceased to lose control. He maintained that he had no reason to falsely implicate the accused. 5. During cross-examination, PW1 stated that he was transporting sugarcane and that approximately ten boda boda riders were involved. He further stated that although the accused was among the group at Musikoma, he did not see him throw stones at that stage of the incident. He testified that he next saw the accused at Nambaya, where the accused placed the motorcycle on the road and stones continued to be thrown at the deceased. He stated that many people assaulted the deceased with stones and acknowledged that he did not see the accused throw stones at the deceased after the tractor crashed. He confirmed that the deceased was wearing a seat belt while the loaders were not, and that the tractor struck the motorcycle before pushing it into the wall of the shop. He also stated that by the time he returned with the police, the assailants had already left the scene. Finally, he confirmed that the transport manager later directed them to record statements and that he attended the deceased’s post-mortem examination. 6. Getrude Namalwa Wekesa, Pw2, testified that she worked as a fuel clerk at Mumias Sugar Company's Bumula Weighbridge. She stated that on 26th April 2023, between 12.00 p.m. and 1.00 p.m., she was travelling in a tractor driven by Johnstone Mabui from the Bumula Weighbridge to the Nabakholo Weighbridge to collect fuel. Upon reaching Nambaya Junction, she observed another Mumias Sugar Company tractor that had crashed into a shop wall. She asked her driver to stop so they could ascertain what had happened. Upon alighting, she found the tractor had trapped a motorcycle against the wall and that a large group of people were assaulting the tractor driver by throwing stones and bricks at him. She stated that one man climbed onto the tractor, threw sugarcane onto the driver and challenged him to stand up and prevent them from taking the sugarcane. She immediately telephoned her manager to report the incident and was instructed to continue her journey, as assistance had already been dispatched. 7. PW2 testified that before leaving the scene, she observed the driver still seated and slumped over the steering wheel, while the man on top of the tractor continued to throw sugarcane at him and others continued to pelt him with stones. She identified the accused in court as the person who climbed onto the tractor. According to her, the accused picked up a brick, struck the deceased on the head, then climbed onto the tractor, where he continued to throw sugarcane at the driver and, in Kiswahili, told him to stand up and stop them from taking the sugarcane. She testified that the accused was not wearing a helmet, had shaved his hair, arrived on a motorcycle, and remained on top of the tractor throughout the approximately fifteen minutes she was at the scene. She further stated that she had not known the accused before the incident and had no reason to falsely implicate him. She later learnt that the driver had died and subsequently recorded a statement with the police. 8. During cross-examination, PW2 confirmed that upon arrival, the tractor had already collided with both the motorcycle and the shop wall, and that there were many people at the scene, although she could not estimate their number. She stated that the crowd was throwing stones at the driver but maintained that the accused was the only person on top of the tractor. She reiterated that she saw the accused strike the deceased once on the back of the head with a brick, then climb onto the tractor and throw sugarcane at him. She clarified that she did not see the accused strike the deceased on the chest and did not observe any bleeding from the head. She further acknowledged that she did not know who owned the damaged motorcycle and that she had only seen the accused for the first time on the day of the incident and thereafter in court. She also conceded that a person driving a tractor could sustain injuries if the tractor collided with a wall. 9. On re-examination, PW2 stated that although she was shocked by what she witnessed, she was not fearful for her own safety because the stones were being thrown elsewhere. She reiterated that she had asked her driver to stop so they could establish what had happened. She further acknowledged that while a collision with a wall could cause injuries, she was not a medical doctor and therefore could not determine the cause of the deceased’s death. 10. Elvis Wanjala Wabwire, PW3, testified that he worked as a sugarcane loader for Mumias Sugar Company. On 26th April 2023 at about 11.00 a.m., he was travelling on a tractor transporting sugarcane from Sang’alo to the weighbridge with fellow loaders Agola (PW1) and Nyikuri, while the tractor was driven by Godfrey Wafula, the deceased. Upon reaching Musikoma Junction, a group of boda boda riders began pulling sugarcane from the tractor. He and his colleagues protested, but one of the riders threw a stone at them, striking Nyikuri on the forehead. Nyikuri picked up the stone and threw it back, allegedly hitting one of the boda boda riders. As a result, more riders gathered and began pursuing the tractor. The boda boda riders followed the tractor to the Nambaya (also referred to as Namasanda) area, where other riders had gathered. He testified that one rider deliberately parked his motorcycle across the road, forcing the driver to swerve to avoid it. At the same time, the riders threw stones at the tractor driver, causing him to lose control of the vehicle and crash into a shop. He stated that after the tractor stopped, he jumped off with the other loaders. He recalled that PW1 attempted to confront the attackers but was overwhelmed by their numbers. Fearing for his safety, he removed his overall, discarded it, and hid in nearby bushes approximately fifty metres from the scene. He remained concealed until police officers arrived, after which he emerged from hiding. 11. PW3 testified that before taking cover, he saw the boda boda riders assault the deceased. He identified the accused in court as one of the attackers whom he had first seen at Nambaya. He stated that although he had not known the accused previously, he observed him without a helmet and carrying a stone. He further testified that he saw the accused among the group beating the deceased and observed him for about thirty minutes before fleeing to the bushes. He maintained that he saw the accused throw stones at the deceased while armed with a stone. 12. During cross-examination, PW3 stated that the incident occurred at about 12.00 noon and estimated that about nine boda boda riders were involved. He said he did not see the accused at Musikoma, where the confrontation began, but first saw him at Nambaya. He reiterated that Nyikuri had been struck by a stone, which he threw back at one of the riders before the tractor accelerated away. He confirmed that the accused was present when the tractor collided with the motorcycle and was holding a stone. 13. PW3 further testified that after the tractor crashed into the wall, he jumped off and fled into the bushes because a stone had struck him in the back. He stated that the accused threw the stone that hit him. He stated that while hiding, he bent down among the short bushes and did not observe the events until police officers arrived. He maintained that he did not throw any stones during the incident. He further testified that he saw the accused strike the deceased on the neck with a stone and stated that, apart from the day of the incident, he had only seen the accused again in court. 14. Dr. Elly Kiplimo Kosgei, Pw4, testified that he was a Senior Medical Officer at Bungoma County Referral Hospital. He performed a post-mortem examination on the body of Godfrey Owino Wafula on 4th May 2023 at Bungoma County Referral Hospital. He described the deceased as a well-nourished African male, approximately 37 years old and 5.7 feet tall, with rigor mortis already established. On external examination, he observed a right temporal scalp hematoma. Internally, he found severe head injuries, including a massive frontal-temporal subdural hematoma (a collection of blood beneath the dura covering the brain) and brain tissue oedema, indicating swelling of the brain. He opined that the deceased died from severe head injury resulting from a massive subdural hematoma caused by blunt force trauma to the head. He produced the post-mortem report dated 4th May 2023 as an exhibit. 15. During cross-examination, PW4 stated that he had no personal knowledge of whether the deceased had been attacked by a mob. However, he confirmed that the post-mortem report indicated that the deceased had been accosted by a mob before sustaining fatal injuries. 16. Corporal Everline Omondi, Pw5, testified that she was attached to Webuye Police Station but had previously served at Bungoma Traffic Base in 2023. She stated that on 26th April 2023 at about 2.00 p.m., while on traffic patrol with PC Kimani along the Bungoma - Mumias Road at Watoya, they received information of a road traffic accident along the Musikoma - Mateka Road. After confirming the report with the Officer Commanding Station (OCS), they proceeded to the scene. Upon arrival, they found a police lorry carrying several police officers and established that there had been a commotion at the scene. Their investigations revealed that a tractor, registration numbers KTCC 349F and trailer 2G8918, had crashed into a building. The tractor, a New Holland model carrying sugarcane, had been driven by Godfrey Ouma Wafula, who had already been taken to Bungoma County Referral Hospital for treatment. She also found a damaged motorcycle, registration number KMCJ 765S, although its rider was absent. She stated that their investigations indicated that the tractor had lost control before colliding with the motorcycle. 17. PW5 further testified that they found three loaders who had been travelling on the tractor and prepared a sketch plan of the scene. The tractor and the motorcycle were later towed to Bungoma Police Station for inspection. She added that they visited the hospital, where they found the driver unconscious with a small cut on the head. The following day, they learnt that he had died. After that, the DCI took over the investigations, and the matter ceased to be a traffic case. 18. During cross-examination, PW5 confirmed that she had investigated the incident as a traffic accident rather than a murder case. She stated that although she and PC Kimani attended the scene together, PC Kimani did not record a statement. She confirmed finding numerous police officers already at the scene following the commotion and stated that the preparation of the accident investigation was a joint exercise. She testified that the three loaders had sustained minor injuries and had informed the police that members of the public had been throwing stones at them. She further stated that the driver was unconscious when they visited him in hospital and that they were later informed of his death. She also confirmed that, according to the information received, the driver had been assaulted by many people. 19. Upon re-examination, PW5 clarified that although the loaders reported that people had been throwing stones at them, they did not identify any specific individuals responsible for the attack. 20. P.C. Esther Rena, Pw6 Mutimba, testified that she was attached to the Directorate of Criminal Investigations (DCI) at Bungoma South in 2023 and served as the investigating officer in the case. She stated that while on duty as the standby officer, she received a report of a traffic accident, which later developed into a murder investigation. She explained that traffic officers first attended the scene before handing the matter over to the DCI. 21. She testified that she visited the scene that evening and later went to the hospital to check on the injured. Upon arrival, she found that one of the injured, Godfrey Wafula, had already died and that his body had been moved to the mortuary. She then recorded witness statements and conducted further investigations into the incident. The investigations revealed that the deceased had been assaulted by boda boda riders. She recorded a statement from the chairman of the boda boda stage and subsequently arrested the accused, Godwin Wanjala Wafula, at the police station. She identified the accused in court and stated that she had not known him before the investigations commenced. 22. According to her investigations, the dispute arose over a consignment of sugarcane being transported by the deceased, who was driving a tractor carrying sugarcane destined for Mumias Sugar Company. She stated that boda boda riders opposed the sugarcane being taken to Mumias and demanded some for their own consumption. When the deceased allegedly failed to stop the tractor, the riders attacked him. She further testified that the deceased was eventually overpowered, lost control of the tractor, and crashed into a wall, sustaining serious injuries. 23. PW6 further referred to PW5's statement, which mentioned a motorcycle that had been extensively damaged. She explained that the tractor had run over the motorcycle after the deceased lost control. She stated that when she revisited the scene the following day, both the tractor and the motorcycle had already been removed. 24. During cross-examination, PW6 confirmed that the matter had initially been reported as a traffic accident and that an Occurrence Book (OB) entry had been made. However, the OB number was not included in her statement, and no extract had been produced in court. She acknowledged that she had not produced a sketch plan of the scene and that she had visited the scene the day after the incident. She also confirmed that the registration number of the damaged motorcycle did not appear in her statement. 25. PW6 further testified that the traffic officer had investigated the identity of the motorcycle rider. She agreed that the deceased had been assaulted by a group of boda boda riders and described the incident as resembling mob justice. She stated that the injured persons informed her that many boda boda riders had participated in the assault. She testified that she arrested several suspects and that the accused had been brought to the police station by other boda boda riders, after which she re-arrested him. She added that the accused had been accompanied by another individual when he was brought to the station. 26. Upon re-examination, PW6 stated that the other individual was Bernard Juma Wesonga. She further testified that after forwarding the investigation file to the Office of the Director of Public Prosecutions (ODPP), the ODPP, in a letter dated 11th May 2023, found there was insufficient evidence against Bernard Juma Wesonga and therefore declined to charge him. **DEFENCE CASE** 1. Godwin Wanjala Wafula, Dw1, testified that he was a shoe seller living in Musikoma and had previously served as the secretary of the Musikoma boda boda stage. He stated that he was before the Court regarding an incident on 26th April 2023, when a man was attacked and later died. 2. He testified that on the material day he attended a meeting at the home of Amos Wanjala to organise burial contributions following the death of Amos’ in-law. He stated that several colleagues were present and remained together throughout the meeting. When they later returned to the boda boda stage, they found it deserted. A mechanic informed him that a tractor driver had been attacked after a dispute between the driver and boda boda riders. As the stage secretary, he contacted the chairman, Bernard Juma Wesonga, who convened an emergency meeting. During the meeting, they resolved to report the matter to the police the following day, after receiving advice from the sub-county boda boda chairman. 3. The accused further testified that on 27th April 2023, he, together with the chairman, treasurer Amos Wanjala, and another member, Samir Mustafa, reported to the Directorate of Criminal Investigations (DCI) offices in Bungoma. He stated that after waiting for several hours, the investigating officer asked him, as the secretary, to write down the names of those who had assaulted the deceased. He explained that he had not been at the scene and did not know the assailants' names. According to him, the officer became dissatisfied with his response, ordered his detention, and threatened to beat him to force him to disclose the names. 4. He further testified that his parents were informed of his arrest and were allegedly asked to pay Kshs. 100,000 or provide a title deed to secure his release. He stated that he advised his parents not to pay, as he had committed no offence and they could not afford the amount demanded. Consequently, he remained in police custody for four days. 5. He further testified that while in custody, the chairman, the treasurer and another member were also arrested. He alleged that they were all beaten by police officers with blue water pipes and that he sustained a scar on his head as a result. He further claimed that their relatives were similarly asked to provide Kshs. 100,000 and a title deed with an official search. According to him, after four days they were taken to court for miscellaneous proceedings seeking their continued detention for fourteen days to enable investigations. He testified that during that period the other three suspects secured their release after paying the required amount, whereas he remained in custody because he was unable to do so. 6. He stated that he was subsequently brought before the High Court to plead to the murder charge before Justice Kemei, who directed that he be remanded. However, he alleged that instead of being taken to remand prison, he was returned to police cells, where officers continued to pressure him to raise Kshs. 100,000. He maintained that he had attended the burial planning meeting throughout the material period and had not participated in the assault on the deceased. He also stated that although the other persons initially arrested with him could have supported his defence, they declined to testify because of the mistreatment they allegedly suffered. 7. During cross-examination, the accused admitted that he had been a boda boda rider at Musikoma stage in 2023 and that the burial planning meeting took place at Amos’ home, which he said was some distance from the boda boda stage. He denied the prosecution witnesses’ allegations that he assaulted the deceased, stating their evidence false. He stated that he did not know the prosecution witnesses before the incident and could not explain why they implicated him. He confirmed that the other boda boda riders were his friends but maintained that he did not witness them paying any money for their release, as he remained in custody. He acknowledged that he had not previously informed the court about the alleged beatings and stated that this was his first opportunity to testify. He also stated that he had never previously been arrested. 8. Upon re-examination, the accused reiterated that he did not witness the payment of Kshs. 100,000, as he remained in custody, and maintained that the payment had been demanded as a condition of release. He stated that the other potential defence witnesses feared testifying because they believed they might again be arrested and subjected to similar treatment. He further submitted that the prosecution’s identification evidence was unreliable because no identification parade had been conducted and witnesses merely identified him while he was seated in the dock. He also challenged the description given by one prosecution witness, who had testified that the assailant had hair, asserting that he did not fit that description. **SUBMISSIONS** 1. The prosecution filed submissions dated 4th December 2025, arguing that they had proved all the essential ingredients of the offence of murder beyond reasonable doubt as required under Section 203 of the Penal Code. Relying on *Republic v Nyambura & others* [2001] KLR 355, they argued that the prosecution had established the three elements of murder, namely: the death of the deceased and its cause; that the accused committed the unlawful act causing the death; and that the accused acted with malice aforethought. 2. Regarding the first element, the prosecution submitted that Pw1 and Pw3 testified that they learnt of the deceased’s death after the incident, while PW4, Dr. Elly Kosgei, confirmed, through a post-mortem examination, that the deceased died from severe head injuries and a hematoma caused by blunt-force trauma to the head. 3. Regarding the second element, the prosecution argued that the evidence from Pw1, Pw2 and Pw3 placed the accused at the scene and established that he, together with other assailants, attacked the deceased with stones and sugarcane while the deceased was seated in the driver’s seat of a tractor. It was submitted that the attack occurred in broad daylight and that the accused was positively identified. 4. Regarding malice aforethought, the prosecution contended that Pw1, Pw2 and Pw3 gave evidence that the accused and his accomplices continued to assault the deceased even after he had become helpless and slumped over the steering wheel. The Prosecution further relied on the post-mortem findings, which revealed severe internal head injuries, massive bleeding and brain tissue oedema, despite the absence of external injuries. They submitted that these injuries demonstrated an intention to cause grievous harm within the meaning of Section 206 of the Penal Code. 5. The prosecution therefore urged the court to find that the offence of murder had been proved beyond reasonable doubt, to convict the accused as charged, and to impose the appropriate sentence. 6. The defence filed submissions dated 18th February 2026 and argued that the prosecution had failed to prove beyond reasonable doubt that the accused committed the offence of murder. They further argued that, although the accused was charged with the murder of Godfrey Wafula, the evidence adduced did not establish the essential ingredients of the offence under Section 203 of the Penal Code, namely that the accused unlawfully caused the deceased’s death with malice aforethought. 7. The defence contended that the prosecution relied entirely on circumstantial evidence, as none of the six prosecution witnesses testified to having seen the accused fatally assault the deceased. They maintained that the Prosecution failed to demonstrate how the accused caused the deceased’s death or to establish any unlawful act or omission attributable to him. In support of this argument, they relied on Republic v Edward Kamau Mburu & 2 others (2016) eKLR, submitting that the circumstantial evidence lacked sufficient corroboration to sustain a conviction. 8. Regarding malice aforethought, the defence argued that there was no evidence that the accused intended to kill or cause grievous harm to the deceased, nor had the Prosecution established any motive. They pointed to PW1’s evidence that, although he witnessed members of the public throwing stones at the tractor driver and loader, he did not see the accused throw any stones at Musikoma. The defence further noted PW1’s testimony that he later saw the accused at Nambaya after parking a motorcycle, but did not witness him assaulting the deceased. They also highlighted PW1’s evidence that the tractor was being driven at high speed, lost control and rammed into a shop, and that the deceased was not wearing a seat belt. 9. The defence further submitted that PW2 gave evidence that she saw a crowd assaulting the driver with stones but could not identify which stone or piece of sugarcane caused the fatal injuries. They also referred to PW3’s evidence that numerous people were throwing stones at both the loaders and the driver, and that after seeking refuge in bushes approximately fifty metres from the scene, he was unable to see whether the accused assaulted the deceased. According to the defence, the evidence demonstrated that many people participated in the attack, making it impossible to determine whose actions caused the deceased’s death or to specifically link the accused to the fatal injuries. 10. The defence therefore argued that the Prosecution’s case rested solely on circumstantial evidence, which failed to meet the legal threshold for conviction. Citing Wanjirodo/Wamario v Republic 22 EACA 521, the defence submitted that although common intention may develop during the course of events, the evidence did not establish that the accused shared any such common intention. The defence further relied on Simon Musoke v Republic [1958] EA 715, as cited in Martin Kimeu v Republic (2002) eKLR, to support the principle that circumstantial evidence can sustain a conviction only where the inculpatory facts are incompatible with innocence and cannot be explained by any other reasonable hypothesis. 11. The defence maintained that the Prosecution had failed to present cogent and credible evidence implicating the accused in the offence, and therefore had not discharged its burden of proof beyond reasonable doubt. The defence consequently urged the court to find that the evidence was insufficient to warrant a conviction and to acquit the accused of the charge of murder. **ANALYSIS AND DETERMINATION** 1. This court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code have been proved beyond reasonable doubt by the prosecution. 2. Section 203 of the Penal Code, under which the accused is charged, provides as follows: - Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 1. The section sets out the elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt. The Court of Appeal in Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) set out the elements of the offence of murder as follows: - “For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.” 1. There is no dispute about the first issue. PW4, Dr. Elly Kosgei, conducted the post-mortem examination and concluded that the deceased died from severe head injuries caused by blunt-force trauma, resulting in a massive subdural haematoma and brain oedema. The medical evidence was not challenged. I therefore find that the prosecution proved both the fact and the cause of death beyond reasonable doubt. 2. The next issue is whether the prosecution proved that the accused unlawfully participated in inflicting those fatal injuries. The evidence adduced establishes that the deceased was attacked by a large mob of boda boda riders. PW1 estimated the attackers at between ten and twenty, PW3 estimated them at about nine, while PW2 testified that there were many people at the scene. PW5 and PW6 likewise confirmed that the deceased had been assaulted by numerous boda boda riders in what resembled mob justice. 3. The defence argued that the prosecution case rested entirely on circumstantial evidence. With respect, that submission is not entirely borne out by the evidence adduced. Pw1, Pw2 and Pw3 each testified that they personally observed the accused participating in the assault. Pw2 stated that she saw the accused strike the deceased once on the back of the head with a brick, then climb onto the tractor and throw sugarcane at him. Pw3 similarly testified that he saw the accused, armed with a stone, among those assaulting the deceased, and that he saw him strike the deceased on the neck with a stone. Their evidence constituted direct eyewitness testimony of participation in the assault. 4. Pw1’s evidence was less direct. He consistently maintained that the accused placed a motorcycle in front of the tractor, causing the deceased to lose control of the vehicle. However, during cross-examination, he conceded that he had not seen the accused throw stones after the tractor crashed. His evidence therefore primarily linked the accused to creating the road obstruction rather than to inflicting the fatal injuries. 5. Next, I have to evaluate the reliability of the identification evidence. The incident occurred in broad daylight between noon and 1.00 p.m. The witnesses remained at the scene for a considerable period, between about 15 minutes and an hour. PW2 estimated that she observed the incident for approximately fifteen minutes, while PW3 testified that he observed the accused for about thirty minutes before fleeing into nearby bushes. There is therefore no suggestion that the witnesses had only a brief opportunity to observe the assailants. The conditions for visual identification were favourable. 6. The defence criticised the absence of an identification parade. However, an identification parade is not mandatory in every case. It is unnecessary where the witness had a sufficient opportunity to observe the suspect and has positively identified him in court, provided the court warns itself of the dangers of visual identification. 7. This court has equally reminded itself of the caution expressed in *Wamunga v Republic* [1989] KECA 47 (KLR), that: - “Evidence of visual identification in criminal cases can bring about miscarriages of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification.” 1. Having done so, this court notes that Pw2 and Pw3 independently identified the accused and described his actions during the attack. Their evidence was substantially consistent. Although there were minor discrepancies as to whether he used a brick or a stone and the precise part of the body struck, such inconsistencies are acceptable when describing a mob attack and do not affect the substance of their evidence. 2. The defence relied on an alleged alibi that the accused was attending a burial planning meeting throughout the material period. However, no independent witness was called to support that assertion, despite the accused's claim that several people were present with him. While an accused bears no burden of proving an alibi, once the prosecution adduces credible evidence placing him at the scene, the court is entitled to assess the alibi's credibility against the totality of the evidence. In Kimotho Kiarie v Republic [1984] KECA 65 (KLR), the Court of Appeal held that: “An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge preferred against him does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable; Said v Republic [1963] EA 6.” 1. In the present case, the unsupported alibi does not outweigh the consistent evidence from Pw1, Pw2 and Pw3 placing the accused at the scene. 2. The evidence further establishes a common intention. Section 21 of the Penal Code provides that where two or more persons form a common intention to pursue an unlawful purpose, each is deemed to have committed the offence resulting from that common purpose. The Court of Appeal in Muiruri Njoroge and Joseph Waweru Koimbatha vs Republic [1983] KECA 127 (KLR) held that: “They were aiding … in pursuance of common purpose … which resulted in the death of the deceased which was a probable consequence which could necessarily ensue as a result of their unlawful design …, and each of them is deemed to have committed the act as provided in Section 21 of the Penal Code. Their common intention may be inferred from their presence, their actions and the omission of either of them to disassociate himself from the assault R v Tabulayenka s/o Kirya (1943) 10 EACA 51.” 1. The evidence shows that the boda boda riders jointly pursued the tractor from Musikoma to Nambaya, repeatedly threw stones at its occupants, obstructed its movement, and continued to assault the deceased even after he had become unconscious inside the tractor. The accused’s participation in placing the motorcycle in the tractor’s path, in striking the deceased, and in remaining among the attackers demonstrates active involvement in the attack. 2. Under Section 206(a) of the Penal Code, malice aforethought is established where there is an intention to cause death or grievous harm. The deceased sustained repeated blows to the head with stones and bricks. Even after he became helpless, the attackers continued the assault. The Court of Appeal in Bonaya Tutu Ipu & another v Republic [2015] KECA 335 (KLR) held that: “In the persuasive decision of CHESAKIT V. UGANDA, CR. APP. NO. 95 OF 2004, the Court of Appeal of Uganda stated that in determining in a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person. Earlier in REX V. TUBERE S/O OCHEN (1945) 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue: “It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick…” 1. The attackers deliberately targeted the deceased’s head with stones and bricks, inflicting catastrophic head injuries. This conduct demonstrates an intention to cause grievous harm. 2. In conclusion, this court finds that the prosecution has proved the charge of murder beyond reasonable doubt. The accused, Godwin Wanjala Wafula, is therefore found guilty of the offence of murder and is convicted accordingly. **Dated, Signed** and **Delivered** **Virtually** this **23rd** day of **July 2026** **R.E. OUGO** **JUDGE** **In the presence of: -** **Godwin Wanjala Wafula/ Accused** **Miss Matere -For the State** **Mr. Shikhu -For the Accused** **Wilkister/ Minah - C/A**