Republic v Wakwabubi & 3 others (Criminal Case E010 of 2023) [2026] KEHC 11224 (KLR) (23 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT BUNGOMA** **CRIMINAL CASE NO. E010 OF 2023** **REPUBLIC…………………………………………………PROSECUTOR** **-V/S-** **JOHN BWILE WAKWABUBI………………………………1ST ACCUSED** **EMMANUEL SIMIYU WAMALWA** **ALIAS LEAKY……………………………………………….2ND ACCUSED** **ZABLON WAFULA NYUKURI……………………………3RD ACCUSED** **LILIAN MIKASIA NAMEMA…………………………….4TH ACCUSED** **JUDGMENT** 1. The accused persons, John Bwile Wakwabubi (1st Accused), Emmanuel Simiyu Wamalwa, alias Leaky (2nd Accused), Zablon Wafula Nyukuri (3rd Accused), and Lilian Mikasia Namema (4th Accused), face a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on the 7th day of March 2023, at around 1930 hours, at Ndarangu village, Bulondo Sub-Location, East Bukusu Location, in Bungoma South Sub-County, within Bungoma County, the accused persons murdered Hewitt Peter John. 2. The prosecution called 14 witnesses to support its case. Each accused person gave a sworn statement in their defence. **PROSECUTION CASE** 1. Clapperton Mbuya Wafula, Pw1, testified that he was a farmer and had been employed by the deceased, John Peter Hewitt, as a caretaker from 1st March 2023. He stated that the deceased, who was his director, used to teach them the word. He knew the 4th accused, the deceased’s wife, prior to the incident, but did not know the 1st, 2nd and 3rd accused persons before 7th March 2023. He testified that during the week preceding the incident, the 4th accused visited the deceased’s home on several occasions. He recalled that on one occasion the deceased informed him that he and the 4th accused had disagreed because of alleged infidelity and that she had only returned to ask for money. Nevertheless, she continued to visit the homestead. 2. PW1 stated that on the evening of 7th March 2023, at about 7.30 p.m., after feeding the dogs, the 4th accused asked him to escort her to an upper house within the compound. The deceased asked where they were going and accompanied them. Along the way, the 4th accused excused herself, saying she wanted to relieve herself. PW1 and the deceased waited for her before she rejoined them. They then abandoned the trip and walked back towards the main house. PW1 went to his house, leaving the deceased and the 4th accused outside. About ten minutes later, he heard cries for help. On stepping outside, he saw the deceased lying on the ground while two men were assaulting him. When another man ran towards him, he retreated into his house and locked the door. The man demanded that he surrender his phone and threatened to burn the house if he failed to comply. PW1 handed over his black Itel phone through the window. He then remained inside as the assault continued until the deceased’s cries ceased. 3. He further testified that he heard one of the assailants make a telephone call, saying, “Hello Mama, we have beaten and killed him and put him in his house”. Shortly thereafter, he heard neighbours shouting that the ‘mzungu’ had been killed. He emerged from his house only after hearing women speaking the local Bukusu language, which convinced him that the people outside were neighbours. He found the deceased lying dead inside the house, wearing only trousers. He informed the Assistant Chief of what had transpired. He also saw the 4th accused join the gathering, and members of the public accused her of being responsible for the deceased’s death. 4. PW1 testified that the Assistant Chief later took him to view the arrested suspects. He stated that DCI officers subsequently arrived with three male suspects in a vehicle. He identified them as the 1st, 2nd and 3rd accused persons after they alighted from the vehicle. He testified that the 1st accused was the person to whom he had surrendered his phone, while the 2nd and 3rd accused were the men he had seen assaulting the deceased. He later identified his recovered black Itel phone in court as the phone taken from him on the night of the incident. 5. During cross-examination, PW1 admitted that although he saw two people assaulting the deceased, he did not recognise or identify them at the time because he had never seen them before. He stated that he learnt the name of the 1st accused later and identified the accused persons after they were brought back in the police vehicle. He confirmed that there were lights within the compound but explained that he locked himself in his house out of fear when one of the assailants approached him. He reiterated that the deceased had always welcomed the 4th accused during her visits and that nothing suggested she was unwelcome. He also stated that when he eventually viewed the deceased’s body, he observed injuries to the head and ribs, although he did not examine the body closely because he was still shaken. Finally, he acknowledged that the three accused persons were already in police custody when he saw them again and conceded that he could not positively state that they were the persons he had seen attacking the deceased, as he only identified them after members of the public indicated that they were the suspects. 6. Zacharia Masika Khisa, Pw2, testified that he was the Assistant Chief of Bulondo Sub-Location and that he knew the deceased, Peter Hewitt, as a resident of his area. He also knew the 4th accused, Lilian Mikasia, before the incident, but stated that he first saw the 1st, 2nd and 3rd accused on the night of the offence. 7. He stated that on 7th March 2023 at about 8.30 p.m., he received a telephone call from Robert Wanjala, a Nyumba Kumi elder, informing him that Peter Hewitt had been murdered. He immediately alerted the police, proceeded to Namwacha Police Station, and, together with police officers Victor Omuga, PC Mwaura and PC Langat, went to the deceased’s home. Upon arrival, he found a large crowd gathered at the homestead. The deceased was lying at the doorway of his house, his head facing outwards, wearing only shorts and bearing head injuries and bruises on the arms. He found the 4th accused, Lilian, seated under the watch of members of the public who were questioning her. 8. He testified that while at the scene, PC Omuga received a telephone call from PC Collins Wesonga, who reported that three suspicious men had been detained at a chang’aa den after news spread that a white man had been killed. PW2 spoke to PC Wesonga and instructed him to hold the suspects until they arrived. He then proceeded with other officers to the location, where they found the three suspects tied together with ropes by members of the public. He identified them in court as the 1st, 2nd and 3rd accused persons. 9. PW2 stated that, using phone flashlights, the officers searched and recovered a black bag containing blood-stained ropes and two mobile phones, including an Oppo phone. As the crowd turned hostile, the suspects were quickly removed from the scene. The OCS later arrived with additional officers and conducted a further search, during which a black wallet containing the deceased’s Equity ATM card, a foreigner’s certificate and other documents was recovered from the 1st accused. The suspects and the recovered exhibits were then taken back to the deceased’s homestead, and all four accused persons, including the 4th accused, were escorted to Namwacha Police Station. 10. PW2 identified in court the black bag, sisal ropes, the Oppo and Tecno phones, the black wallet, the deceased’s Equity ATM card, and the foreigner’s certificate as items recovered during the search. He further testified that he had previously dealt with disputes between the deceased and the 4th accused. He stated that the 4th accused had earlier complained that the deceased was living with her allegedly underage daughter and intended to report a defilement case. On another occasion, the deceased had complained that one of his vehicles had been burnt and suspected the 4th accused’s involvement. PW2 advised both parties to report their complaints to the police and concluded that the couple had ongoing domestic disagreements. He later recorded his witness statement. 11. During cross-examination, PW2 acknowledged that he had not witnessed the murder and had only been informed of it by Robert Wanjala. He confirmed that when he arrived at the chang’aa den, the suspects had already been tied by members of the public, and the black bag was lying at their feet. He conceded that he did not know whether the bag belonged to them. He stated that PC Mwaura recovered two phones from the 1st accused and that he had taken photographs of the suspects for identification purposes, although the photographs were not produced in court. He maintained that the ropes he observed had blood stains. He further testified that the deceased and the 4th accused had not been living harmoniously, as both had previously lodged complaints against each other with him. He also confirmed that the area where the suspects were found was dark and that he had not recovered any motorcycle from them or investigated the ownership of the recovered items before handing the suspects over to the police. 12. Mary Naliaka Sitati, Pw3, testified that she resides in Ndakalu and that she did not know the accused persons before 7th March 2023. She stated that at about 7.00 p.m., she saw three men arrive at her home on a motorcycle. Two of them alighted and sat on a bench, while the rider remained on the motorcycle. She further testified that the rider, whom she identified in court as the 1st accused, told the others to go and smoke cigarettes. She explained that she used to brew busaa and assumed they were customers who had come to drink. 13. PW3 testified that at about 9.00 p.m., two of the men, whom she identified as the 2nd and 3rd accused persons, returned first. She asked them where they had been, as they had taken longer than expected. They told her they had been smoking cigarettes. She stated that when they attempted to start the motorcycle, it failed to start. Becoming suspicious, she called her children to observe them and then called PC Collins Barasa, who happened to be passing by, to check on them. 14. She testified that PC Collins detained the three men and made them sit on a bench. She stated that the 1st accused was carrying a bag that emitted a strong chemical odour. Upon opening the bag, PC Collins recovered a rope, a maroon cap, a cloth or bedcover, and a striped T-shirt. She identified the rope, maroon cap, and striped T-shirt in court. She further testified that the 2nd accused was found in possession of a panga, while the 3rd accused had a rope around his neck, part of which was tucked into his pocket. She stated that police officers and the area chief later arrived, after which the recovered items were displayed. She further testified that the 1st accused removed several mobile phones and dropped them on the ground in the presence of the chief. The three accused persons, together with the recovered items and the motorcycle, were then taken away by the police. She subsequently recorded a statement. 15. On cross-examination, PW3 reiterated that she had initially believed the three men were customers because they had stopped at her premises and said they were going to buy cigarettes. She testified that she noticed a chemical smell coming from the bag and that PC Collins opened it, after which she saw two empty bottles that had previously contained chemicals. She stated that the 1st accused said he had already used the contents of the bottles. She further testified that she saw one rope in the bag and another around the 3rd accused’s neck. She also stated that, after the bag was opened, blood-stained items were observed, although she could not clearly recall whether it was PC Collins or the chief who removed and displayed the exhibits. She confirmed that many members of the public were present and that she heard someone say, “They have killed mzungu.” She also maintained that she saw the 1st accused remove and drop about three mobile phones on the ground before the police arrested the suspects. 16. On re-examination, PW3 testified that PC Collins was the first to open the bag and remove the rope and cap, although she could not state with certainty whether it was he or the chief who subsequently removed the remaining items from the bag. 17. Humphrey Omanyo Wilson, Pw4, testified that he was a teacher at Munami Primary School and lived in Onga Village, Matungu. He stated that he knew the 1st accused, John Bwile Wakwabubi, and the 4th accused, Lilian Mikasia, having seen them before. He further testified that the 4th accused rented one of his rooms and that the 1st accused was seen with her on one occasion. 18. PW4 testified that on 17th March 2023, while at Ejinja market, he was informed by a boda boda rider that people had been arrested at his rental premises. Upon returning home, he found that the police had already left, but he was shown the room rented by the 4th accused from 19th February 2023. He stated that he noticed several missed calls because he had left his phone charging while away. He further testified that the room had been rented by the 4th accused, who had not occupied it for long. He stated that she paid Kshs. 2,000 as rent through M-Pesa on 17th February 2023, for which he issued her a receipt. He identified the M-Pesa statement and the rent receipt produced in court. He further testified that the 4th accused lived in the rented house together with the 1st accused, although he had never spoken to the 1st accused personally. After being contacted by the police, he travelled to Bungoma and recorded a statement. 19. On cross-examination, PW4 clarified that Lilian Mikasia, not the 1st accused, was his tenant. He stated that she occupied the room from 19th February 2023 until the police visited the premises on 17th March 2023, at which time she was still his tenant. He testified that he had seen the 1st accused at the premises only twice, including once when he saw him fetching water with the 4th accused. He acknowledged that he assumed they were living together, but had never spoken to the 1st accused and had not seen him again thereafter. He also stated that the 4th accused had not disclosed any personal background to him and that there was no written tenancy agreement between them. 20. James Ndungu Gachoka, Pw5, testified that he lived in Nakuru and was a director of the World Health and Humanitarian Foundation. He stated that he had known the deceased, Peter John Hewitt, for over 18 years and that they had served together as directors of the same organization. He further testified that he identified the deceased’s body during the post-mortem examination after being authorised by the deceased’s family in Australia to attend the procedure. He also stated that he was the person who called the police on the material day, although they arrived after some delay. 21. On cross-examination, PW5 testified that he had known the fourth accused, Lilian Mikasia, for about ten years and recognised her as the deceased’s wife. He reiterated that his role was limited to identifying the deceased’s body and attending the post-mortem examination. He stated that he observed marks on the deceased’s neck and that the pathologist explained that the deceased had died from strangulation. He further testified that he detected an odour resembling livestock medication in the deceased’s stomach during the post-mortem examination. 22. Jane Nabututu Waya, Pw6, testified that she is a Government Analyst at the Government Chemist in Kisumu. On 17th March 2023, she received exhibits from DCI Bungoma South via CPL Anthony Kirimi, together with an exhibit memo bearing OB No. 3/8/2023, requesting toxicological analysis. The exhibits comprised the deceased’s stomach contents, liver, and kidneys, as well as three containers: a Triatix bottle containing a white liquid, an empty Gradometer bottle, and another bottle containing a whitish substance. She stated that the request was to determine whether the bottles contained poisonous substances and whether any such substances were present in the deceased’s stomach contents, liver, and kidneys. 23. PW6 testified that her analysis established that the Gradometer bottle contained an organophosphate pesticide, while the Triatix bottle and the bottle containing the whitish substance contained organochloride pesticides. However, she found no poisonous substances in the deceased’s stomach contents, liver or kidneys. She explained that both organophosphate and organochloride pesticides are potentially fatal if ingested. She prepared and signed her toxicology report dated 28th July 2023, which she produced together with the exhibit memo. She also identified photographs of the Triatix bottle and the bottle containing the whitish substance. She added that the exhibits were not returned after analysis because they contained toxic substances. 24. On cross-examination, PW6 confirmed that she had analysed the five exhibits submitted to her and reiterated that the three bottles contained poisonous substances. She stated that although the chemicals were capable of causing death if ingested, it was beyond her expertise as a Government Analyst to determine whether a particular person would survive after ingesting them, explaining that such a determination fell within the expertise of a medical doctor. 25. Doctor Dickson Muchana, PW7, testified that he was a consultant pathologist based in Kakamega County, providing forensic pathology services throughout the Western region. He stated that on 15th March 2023, he conducted a post-mortem examination of the body of John Peter Hewitt at the Bungoma County Referral Hospital Mortuary, after the body had been identified by James Gachoka and John Njoroge Njuguna in the presence of the investigating officer, PC Felix Mbuvi. The deceased was an elderly white male, moderately obese, approximately 6 feet 1 inch tall. The body was well preserved, and he estimated that the deceased had died about eight days earlier. Externally, he observed that the nails and lips were dark bluish in colour. He noted multiple grazes and bruises on the forehead, the backs of both shoulders, the back of the left wrist, the front of the right leg near the ankle, and the right rib margin. He also observed post-mortem changes on the face, body and limbs, including streak-like markings, but found no evidence of chronic illness. Internally, he found two blood clots over the breastbone, fractures of the second to sixth right ribs, bruising of the upper lobe of the right lung, blood clots beneath the scalp, swelling of the brain, bleeding beneath the skin on the front of the neck, and a fracture of the right horn of the hyoid bone. He further observed that the stomach contained digested food with a strong smell, indicating that the deceased had died within about four hours of his last meal. He stated that there was no fracture of the skull bones. Based on these findings, PW7 formed the opinion that the deceased died from respiratory failure secondary to manual strangulation. He issued a burial permit and collected samples of the stomach, liver, kidney, nail clippings and rib cartilage for toxicological and forensic analysis at the request of the investigating officer. He produced the post-mortem report dated 15th March 2023 as an exhibit. 26. On cross-examination, PW7 reiterated that the deceased had been manually strangled with the hands. He explained that if a rope had been used to strangle the deceased, he would have expected to observe and record characteristic rope marks in the post-mortem report. He confirmed that the hyoid bone fracture occurred during the strangulation and that the stomach contained food. He further testified that he had recorded all significant findings, including bleeding beneath the skin of the neck. 27. On re-examination, PW7 explained that manual strangulation is ordinarily carried out with the hands, whereas rope strangulation usually leaves a distinct ligature mark or imprint on the neck. He stated that no such marks were present in this case, reinforcing his conclusion that the deceased had been manually strangled. 28. P. C. Collins Barasa Wesonga, Pw8, testified that he was attached to Lafey Police Station in Mandera County but hailed from Butende Village in Bungoma County. He stated that on 7th March 2023, while attending his maternal uncle’s funeral in Butende, he visited his stepmother, Mary Naliaka Sitati, at about 7.30 p.m. While there, he heard commotion outside and went to investigate. He found three men, strangers to him, surrounded by members of the public who suspected them because they were unknown in the area. As a police officer, he questioned them about their identities and where they had come from, but they did not produce any identification documents. He stated that one of the men had a black-handled panga tucked into his trousers, while another carried a black shoulder bag. 29. PW8 testified that upon inspecting the bag, he recovered two joined sisal ropes, a green cloth, and a beige striped T-shirt. He further stated that during the search, one of the suspects dropped a black wallet, an Oppo mobile phone, and a Tecno mobile phone. Inside the wallet, he found two ATM cards and an identification card. He also testified that a report was then received that a person had been killed near Kichinjiyo by the Khalaba River. Fearing that members of the public might lynch the suspects, he contacted PC Victor Omuga, who arrived with PC Mwaura and the area Sub-Chief, Zacharia. He stated that the officers took the three suspects into custody, together with the recovered exhibits. 30. PW8 identified the 1st, 2nd and 3rd accused persons in court as the three men he had found that evening. He also identified the black bag, the two ropes, the Oppo and Tecno phones, the wallet, the beige striped T-shirt and the black-handled panga as items recovered from the suspects. He referred to photographs of the place where the suspects had been found and to photographs showing the suspects seated after their arrest. 31. On cross-examination, PW8 confirmed that the photographs shown to him depicted only two of the accused, although three suspects had been arrested. He acknowledged that, although the photographs were taken during the day, he encountered the suspects at about 7.00 p.m., when it was dark. He testified that there was solar lighting at the homestead where the suspects were found. He admitted that he did not ask the suspects why they were at the homestead or whether they were visitors. He reiterated that the ropes appeared to have been joined together but stated that he did not count how many ropes there were. He further testified that he recovered one small 25 ml bottle bearing a label and containing traces of a whitish substance, although it appeared to have already been used. On re-examination, PW8 testified that he had not taken the photographs shown to him in court and was unaware of the circumstances under which they had been taken. 32. Edwin Waliama Khamala, Pw9, testified that he is a Government Analyst based in Kisumu. He conducted DNA analysis at the request of CPL Anthony Kirimi of DCI Bungoma South on 17th March 2023, pursuant to a court order and an exhibit memo. He stated that the order authorised the collection of DNA samples from the four accused persons, namely John Bwile Wakwabubi, Emmanuel Simiyu Wamalwa, Zablon Wafula Nyukuri and Lilian Namema Mikasia. After confirming their identities, he collected buccal swab samples from each of them. 33. PW9 testified that, in addition to the reference samples, he received four exhibits for analysis: a panga marked A16, a green bedcover marked A17, a striped black-and-cream short-sleeved T-shirt marked A18, and nail clippings from the deceased, John Peter Hewitt, marked B. He stated that the purpose of the examination was to determine the presence and origin of any biological material on the exhibits. 34. He testified that the DNA examination was carried out on 7th February 2024 and established that the panga, bedcover and T-shirt were all moderately stained with human blood. DNA profiles generated from the blood stains on those exhibits matched the DNA profile generated from the deceased’s reference sample. He further testified that none of the DNA profiles obtained from the buccal swabs of the four accused persons matched the DNA profiles recovered from the blood-stained exhibits. He prepared and signed his report dated 7th February 2024 and produced it in evidence. 35. On cross-examination, PW9 testified that no rope had been submitted for DNA analysis and confirmed that the Government Chemist Department did not conduct fingerprint examinations. He reiterated that the DNA profiles from the blood-stained exhibits did not match those of any of the four accused persons. He also identified the bedcover (Exhibit A17) and the striped T-shirt (Exhibit A18) that had been submitted for examination. 36. P.C. Victor Omuga, Pw10, testified that he was attached to Namwache Patrol Base. On 7th March 2023 at about 8.49 p.m., while on duty with PC Johnson Mwaura, they received a report from the Area Chief of Bulondo Sub-location, Zacharia Khisa, about an incident at Ndarangu Village. They made an occurrence book entry and proceeded to the scene. Upon arrival, they found the area chief and villagers at the deceased’s home. He entered the house and found the deceased’s lifeless body lying on a carpeted floor. Shortly thereafter, the Assistant Chief received information that three suspicious men carrying a black bag and crude weapons had been spotted nearby. He stated that the area chief and PC Johnson Mwaura proceeded to investigate while he remained behind to secure the scene. 37. PW10 testified that the OCPD and the OCS arrived at the scene later while he continued to guard it. He stated that they then received information that three suspects had been arrested by members of the public at Bulondo Dispensary. He accompanied the officers to the dispensary, where they found the three suspects tied with ropes. Acting on the OCPD’s instructions, he and PC Johnson Mwaura escorted the three suspects to Namwache Patrol Base for further interrogation, while the OCPD and OCS remained behind. He later returned to the deceased’s homestead on the OCS’s instructions, where he spent the night securing the scene and the deceased’s property. 38. PW10 stated that although it was night, he was able to see the three suspects using the light from his mobile phone, the lights from the police vehicle, and the light from the mobile phones of numerous members of the public present. He identified the 1st, 2nd and 3rd accused persons in court as the three men arrested that night. 39. On cross-examination, PW10 acknowledged that the area chief and assistant chief were already at the scene before his arrival and accepted that they could have interfered with it before the police arrived. He confirmed that the OCPD and OCS first attended the scene before proceeding to Bulondo Dispensary, and that other police officers remained behind to secure it. He also confirmed that he did not see any of the accused persons at the actual scene of the murder and that he identified them using the torch on his mobile phone. 40. On re-examination, PW10 stated that he spent approximately 10 to 20 minutes with the three accused persons following their arrest. 41. Sergeant Johanna Tanui, Pw11, testified that he was attached to the Scenes of Crime Office in Bungoma County and was a gazetted Scenes of Crime officer under Gazette Notice No. 407 dated 18th January 2010. On 7th March 2023 at about 10.30 p.m., he and other police officers proceeded to the deceased’s home at Namwacha following the reported incident. Upon arrival, they found the body of John Peter Hewitt lying on his back at the main entrance, with visible injuries. He stated that, because it was dark, they returned to the scene on 8th March 2023 at about 9.40 a.m. to conduct a more thorough examination. 42. PW11 testified that during the second visit, they recovered broken spectacles believed to belong to the deceased, blood samples from the scene, and a plastic bottle containing a whitish liquid with a strong odour resembling a chemical used to wash livestock. He stated that the bottle was located approximately 30 feet from the deceased’s door. He swabbed the blood stains and preserved the samples for further examination. 43. He further testified that on 10th March 2023, they revisited the scene and recovered a blood-stained stick from the deceased’s garden near the house. He also visited the location where the accused persons had been arrested by members of the public and photographed the area. He stated that on 15th March 2023, he attended the post-mortem examination at Bungoma District Referral Hospital, which was conducted by Dr. Muchana. 44. PW11 testified that he took 56 photographs documenting the investigation. He explained that the photographs depicted the deceased’s homestead and body; exhibits recovered from the accused persons; the crime scene and additional exhibits recovered on 8th March 2023; the blood-stained stick; the place where the accused persons were arrested; the motorcycle allegedly used by the accused persons; the rented house at Ejinja allegedly occupied by the accused persons; and the cash recovered from the first accused, John Wakwabubi. He produced the photographic report, the collection of 56 photographs, and the certificate of photographic prints dated 21st March 2023 as exhibits. 45. On cross-examination, PW11 acknowledged that he had not witnessed the incident and arrived only after the deceased had died. He stated that he did not know the cause of death. He confirmed that photographs numbered 10 to 16 depicted exhibits recovered from the accused persons, including a striped shirt, bedcover, socks, a panga, a bulb and a black bag, while another photograph showed the deceased. He testified that additional photographs documented exhibits recovered on 8th and 9th March 2023, including cash. He clarified that he was not the investigating officer in the case and that none of the photographs showed any ropes. He further testified that the photographs were taken during visits to the scene on 7th, 8th, 10th and 15th March 2023, and that the photographs of the deceased were taken in daylight on 8th March 2023. 46. On re-examination, PW11 confirmed that the photographs included images of a black bag, particularly photographs 10, 11, 14 and 15, but stated that he did not know what the bag contained and that no photograph showed the bag after it had been opened. 47. Chief Inspector David Odango, PW12, testified that he was the OCS at Bungoma Police Station in March 2023, although he was currently stationed at Kiambu Police Station. He stated that on 7th March 2023 at about 7.30 p.m., he received a telephone call from the Assistant Chief of Bulondo Sub-location informing him that an Australian citizen had been attacked at his home. He immediately mobilised police officers and proceeded to the scene. Upon arrival, he found members of the public at the deceased’s homestead and the deceased lying on his back at the doorway of the house. He also found the 4th accused, Lilian Mikasia, in the custody of members of the public. While at the scene, the Assistant Chief received information from a village elder that three men were attempting to leave the area from a nearby chang’aa den. PW12 instructed that they be detained, and after the OCPD arrived, they proceeded to the location, leaving other officers to secure the scene. 48. PW12 stated that they found and detained three men, who identified themselves as John Bwile Wakwabubi, Emmanuel Simiyu, and Zablon Wafula Nyukuri. He testified that he searched them and recovered several items, including a black Oppo mobile phone, which he stated belonged to the deceased and was identified by Lilian Mikasia; a blue Tecno Camon phone belonging to the 1st accused; a wallet containing the deceased’s foreigner’s identity certificate; an Equity ATM card; an Itel phone belonging to the deceased’s watchman, Clapperton; and Kshs. 14,700 in cash in various denominations, which he stated had been concealed in the 1st accused’s socks. He further testified that all the recovered items were later handed over to the investigating officer. 49. PW12 further testified that at the scene, Clapperton Mbuya Wafula, the deceased’s watchman, narrated the events leading to the attack. According to Clapperton’s account, the 4th accused briefly left the homestead, then returned and asked the watchman to escort her to an upper house. The deceased became suspicious and followed them. The 4th accused excused herself to answer a call of nature, then returned and declined to proceed further. They all returned to the compound, after which the 4th accused persuaded the deceased to enter the house for a discussion. Shortly thereafter, Clapperton heard screams and found the deceased lying at the entrance, being assaulted by several people. He stated that Clapperton told him he was threatened by the attackers, ordered to surrender his phone, which he threw outside, and then locked inside his house. PW12 further testified that the Itel phone recovered from the 1st accused was subsequently identified as Clapperton’s phone. 50. He stated that additional exhibits, including a motorcycle and a mobile phone belonging to the 4th accused, were recovered but left for the investigating officer to process. He identified all the recovered exhibits in court and testified that the photographs produced showed, among other things, the cash recovered from the first accused. He identified all four accused persons in court and confirmed that there were three male accused persons and one female accused person. 51. PW12 testified that he had known both the deceased and the 4th accused before the incident, as an OCS, having handled at least two previous disputes between them. He stated that one complaint involved allegations by the 4th accused that the deceased had defiled her daughter. Investigations did not substantiate the allegation after the minor denied it and a medical examination found no penetration. He further testified that the second dispute concerned the burning of the deceased’s motor vehicle, which the deceased suspected the 4th accused had orchestrated, although investigations had not been concluded before the deceased died. 52. On cross-examination, PW12 acknowledged that he was not an eyewitness to the murder and that the deceased had already died by the time he arrived at the scene. He maintained that his testimony was based on what he observed and what witnesses told him. He confirmed recovering the items from the 1st accused but acknowledged that he had not listed every personal document recovered in his statement. He stated that although there was sufficient lighting from the house and security lights, the area where Clapperton had been was dark. He confirmed that he had not recovered any rope or black bag from the 1st accused and that Clapperton had stated only that he saw the deceased lying on the ground, surrounded by several people, while pleading for mercy, rather than witnessing the actual killing. He explained that Clapperton was treated as a witness rather than a suspect. He also confirmed that an inventory of the recovered exhibits had been prepared by the investigating officer. He testified that the three male accused persons had been brought to him from the chang’aa den and were not arrested at the actual crime scene. He maintained that the investigations established that the accused persons were responsible for the deceased's death. 53. On re-examination, PW12 explained that although his written statement did not capture every detail, some matters had inadvertently been omitted. He further testified that he also saw a panga, ropes and a black bag, though those items had been recovered by the investigating officer rather than by him. He reiterated that the photograph depicting cash concealed in a person’s socks showed the 1st accused’s leg, and confirmed that he personally recovered the Kshs. 14,700, which he later handed over to the investigating officer. 54. CPL Ronald Emaase, Pw13, testified that he was attached to the Directorate of Criminal Investigations Headquarters and seconded to the Safaricom Security Division as a data analyst. He stated that his duties included processing requests from investigating officers for call data records and facilitating requests for M-Pesa statements pursuant to court orders. 55. He testified that he received a request letter dated 9th March 2023 from the Sub-County Criminal Investigations Officer, Bungoma South, seeking call data records for two mobile numbers: 0758024720, registered in the name of Lilian Mikasia, and 0710563956, registered in the name of John Wakwabubi. After analysing the call data records, he established that on 7th March 2023, at about 4.00 p.m., both numbers were served by the Ejinja Base Transceiver Station (BTS). He explained that a BTS, commonly referred to as a Safaricom mast or booster, provides network coverage to mobile devices within its service area. He stated that he communicated these findings to the investigating officer for further action. 56. PW13 produced the call data records for both telephone numbers, the triangulation data, and a certificate of electronic evidence dated 26th September 2023, together with the investigating officer’s request letter. He explained that because both numbers were served by the same BTS, they were within that mast’s coverage area, although the exact distance between the two users could not be determined from the available data. He testified that the coverage radius of a BTS varied with network traffic and location, ranging from approximately 100 metres in densely populated areas to 25 kilometres in low-traffic areas. He stated that, had a specific request been made, more detailed distance information could have been provided. 57. On cross-examination, PW13 confirmed he was a qualified data analyst and produced his official work identification card. He testified that he had analysed only the data relevant to 7th March 2023, even though the request letter covered the period from February 2023 to 9th March 2023. He acknowledged that the request sought several categories of information and confirmed that the call data records showed both subscribers had communicated with other telephone numbers during the relevant period. He explained the SIM card registration process, stating that Safaricom verified customers’ original identity cards before registration and retained the registration details in its database. He acknowledged that a registered phone number could nevertheless be used by someone other than the registered subscriber. Referring to the call data, he stated that John Wakwabubi’s phone was connected to different BTS locations, including Lusiaya, Bungoma Milimani, and Ejinja, at different times on 7th March 2023, explaining that mobile phones are handed over from one BTS to another as users move between locations. He further testified that the investigating officer had merely requested technical information and that the call data did not establish the identity of the actual users of the phones. He also stated that the paired IMEI information only indicated that the two numbers appeared together at the relevant time and confirmed that there was no other period during which the two numbers were similarly paired. 58. On re-examination, PW13 stated that he had confined his analysis to the data for 7th March 2023 only. 59. No. 82398 P.C. Felix Mbuvi, Pw14, testified that he was attached to the Directorate of Criminal Investigations (DCI) Bungoma South from 2019 to 2024 and served as the investigating officer in the case before being transferred to Samburu County. He stated that on the night of 7th March 2023 at about 8.30 p.m., he, together with CPL Anthony Kirimi and their driver, CPL Kipsang, received instructions from the late DCIO Macharia to investigate a reported murder at Namwacha Police Post. 60. He testified that they proceeded to the deceased’s home with Scenes of Crime officers. Upon arrival, they found the deceased, John Peter Hewitt, lying at the doorstep of his house, dressed only in blue shorts, with visible injuries and bleeding from the back of the head. He stated that there was a strong smell of insecticide at the scene and that the house appeared undisturbed, leading him to conclude that the deceased had not been attacked inside the house. He saw flattened grass outside the house, suggesting a struggle had occurred there. He stated that photographs of the scene were taken and that four accused persons, including the fourth accused who had already been arrested, had been handed over to the police. 61. PW14 testified that, while proceeding to Namwacha Police Post, they passed a chang’aa den approximately 700 metres from the scene where a red TBS motorcycle, registration KMGC 323K, had been left. He stated that the motorcycle and other exhibits recovered from the first accused’s black bag were handed over to him by the Officer Commanding Station (OCS). At the police post, they searched the accused persons and recovered from the first accused a black Itel phone hidden in his socks and Kshs. 14,700 in cash. No exhibits of evidential value were recovered from the other accused persons. He stated that all the accused were later escorted to Bungoma Police Station, where the exhibits were booked and retained. 62. He further testified that they revisited the scene on 8th March 2023, where they recovered broken spectacles, a ring, a clear bottle containing a white substance, a small bottle of Triatix insecticide, and a marriage certificate showing that the deceased and the 4th accused, Lilian Namema Mikasia, had married on 25th August 2021. He stated that an inventory of the recovered exhibits had been prepared on the night of 7th March 2023. 63. PW14 testified that during the investigations, the caretaker, Clapperton, informed them that the recovered Itel phone belonged to him and that the 1st, 2nd and 3rd accused had threatened him and locked him inside the house to prevent him from raising an alarm while they attacked the deceased. He also stated that Clapperton identified the deceased’s striped T-shirt, maroon cap and grey shoes. He further testified that the post-mortem examination was conducted on 15th March 2023 at Bungoma County Referral Hospital, after the body had been identified by James and John Njoroge Njuguna, colleagues of the deceased at Restoration Ministries. He stated that samples collected during the post-mortem, including body contents, nail samples and cartilage, were forwarded to the Government Chemist, together with other exhibits, for forensic analysis under an exhibit memo prepared by CPL Kirimi. 64. PW14 testified that the police obtained a court order detaining the accused for 21 days to facilitate investigations. He stated that the investigations established that the 1st and 4th accused had been living together in a rented house at Ejinja, and that rent receipts and M-Pesa records showed the 4th accused had paid rent to the landlord. He further stated that, together with witness statements, these findings led investigators to conclude that the 1st and 4th accused were the masterminds of the offence, alleging that the 4th accused, who had separated from the deceased, planned the murder with the 1st accused, who in turn enlisted the assistance of the 2nd and 3rd accused. 65. He testified that he wrote to the Safaricom Police Liaison Officer to request call data records for two telephone numbers to establish the communication and movements of the 1st and 4th accused. He stated that the call data analysis showed that the two accused were at the same location in Ejinja on the material day and that it tracked their movements towards the scene of the crime. He further stated that the data placed the 1st accused at Sang’alo shortly before the offence, from where he believed the 1st accused collected the 2nd and 3rd accused before proceeding to the deceased’s residence. 66. PW14 stated that, after completing the investigations, the file was forwarded to the Office of the Director of Public Prosecutions for advice. He identified all four accused persons in court and produced numerous exhibits, including mobile phones, ropes, a wallet, bank cards, identity documents, clothing allegedly worn by the deceased, a panga, a bedcover, a rent receipt, an M-Pesa statement, an exhibit memo, an inventory, a marriage certificate, photographs of the scene and the motorcycle, cash recovered from the first accused, blood-stained items, and other exhibits. He testified that the deceased was an Australian national involved in church ministry and maintained that the deceased died as a result of strangulation by the four accused persons. 67. On cross-examination, PW14 testified that although the defence disputed the recovery of the cash from the 1st accused, he maintained that the money had indeed been recovered from him, though he conceded that he had not recorded the serial numbers of the notes. He acknowledged that he arrived after the deceased had already died, but maintained that the investigations established the perpetrators. He confirmed that the body was found lying on the grass near the doorstep and that the scene was illuminated by security lights, although the scene was revisited the following morning for further investigation. He admitted that the panga had not been dusted for fingerprints because no usable fingerprint impressions were found. He also conceded that there was no call data directly linking the 1st accused with the 2nd and 3rd accused, and that he could not determine the exact time of death or specify the precise role played by each accused person, although he maintained that they shared a common intention to kill the deceased. 68. PW14 further testified that DNA samples had been collected but stated that he had not personally seen the Government Analyst’s report until it was shown to him in court. He admitted that there were no photographs showing the arrest of the accused persons at night or of all the accused together at the scene. He also testified that he had not personally witnessed the recovery of all the exhibits, relying on exhibits handed over by other officers, and confirmed that there had been no identification parade. He stated that he was not an expert in telecommunications data analysis and relied on the Safaricom expert to interpret the call data. He reiterated that the call data primarily demonstrated the movements and locations of the 1st and 4th accused and that investigations established that the 4th accused had rented and occupied the house at Ejinja after separating from the deceased. 69. On re-examination, PW14 reiterated that, based on the investigations and witness statements, the 1st accused was the mastermind of the murder, having enlisted the assistance of the 2nd and 3rd accused, while the 4th accused was present at the deceased’s house and failed to raise an alarm during the attack. He stated that Clapperton witnessed the murder and was silenced by the 1st, 2nd and 3rd accused. He further testified that the 1st accused had initially lived with his first wife before moving in with the 4th accused; that the 4th accused and the deceased were no longer living together at the time of the incident; and that the deceased died from manual strangulation. He confirmed that the accused persons had no visible injuries when arrested and that the exhibits had been handed over to him by other police officers during the course of the investigation. **DEFENCE CASE** 1. John Bwile Wakwabubi, DW1, testified that he was a farmer and a boda boda rider. He stated that on the night of 7th March 2023, he went alone to a busaa drinking den, where he was arrested by police officers at about 8.30 p.m., together with more than ten other people. He further testified that they were taken to the scene of the crime at Namwacha before being escorted to the police station, but were never removed from the police vehicle at the scene. He stated that while in police custody, officers demanded bribes from those arrested and released those who paid, while he and his co-accused remained in custody because they could not raise the money. He maintained that he was only found with his motorcycle and a Tecno mobile phone, denied possession of any of the exhibits produced by the prosecution, and stated that he first saw them during the trial. He further denied knowing the deceased, denied any involvement in the murder, and stated that he only knew the 4th accused as a customer to whom he occasionally delivered goods, denying that they had ever cohabited or been in a romantic relationship. 2. During cross-examination, DW1 reiterated that he had no prior criminal record and that the arresting officers had not known him before the incident. He admitted that he had not previously reported the alleged demand for a Kshs. 10,000 bribe and was raising the allegation for the first time in court. Although he maintained that the prosecution witnesses had falsely implicated him, he conceded that he could not explain why they would do so. He denied strangling the deceased or handling any of the alleged exhibits. 3. On re-examination, he stated that he had expected the case against him to concern his arrest at the illicit brew den rather than the murder charge that was ultimately brought against him. 4. Emmanuel Simiyu Wamalwa, DW2, testified that he was a jua kali artisan. He stated that on 7th March 2023 he went to a busaa drinking den in Mwanga, where he was arrested by police officers along with several other persons. He maintained that nothing was recovered from him, that he was not in possession of a mobile phone or any other items, and that he did not know the 1st, 3rd or 4th accused persons or the deceased before his arrest. He further denied being taken to the murder scene, stated that no photographs were taken of him, and testified that he was transferred from Namwacha Police Station to Bungoma Police Station after his arrest. 5. DW2 alleged that police officers demanded Kshs. 10,000 in exchange for his release, but, because he could not pay, he remained in custody and was subsequently charged with murder. He denied any involvement in the deceased’s death. 6. During cross-examination, he admitted that although he had previously brewed illicit liquor, he had never been arrested. He acknowledged that he had never formally reported the alleged demand for a bribe to the police or to his advocate. He reiterated that he had not known the other accused persons before the incident, had first seen the prosecution exhibits during the trial, and maintained that the allegations against him were false. He further testified that several people arrested at the drinking den were released after allegedly paying the demanded bribe, while those who could not pay, including himself, remained in custody. 7. On re-examination, DW2 reiterated that the police failed to respond to his enquiries about his missing bicycle, stated that he was unable to pay the alleged bribe, and denied involvement in the murder of the deceased. 8. Zablon Wafula Nyukuri, DW3, testified that he was a casual labourer from Kipsaina, Trans Nzoia County, who had travelled to Sikata for work. He stated that on 7th March 2023, he was drinking chang’aa at a den in Namwacha when police officers arrested him together with other patrons, accusing them of being habitual drunkards. He maintained that he had nothing in his possession at the time of arrest, was not taken to the scene of the crime, did not recognize the exhibits produced in court, and did not know when the prosecution photographs were taken. He further testified that he was intoxicated at the time of his arrest, did not own a mobile phone, and did not know the co-accused persons or the deceased, whose name he only learnt during the trial. He denied any involvement in the murder and maintained that he had been innocently arrested while drinking at the chang’aa den. 9. During cross-examination, DW3 acknowledged that he had no documentary evidence or witness to confirm that he had been working in Sikata on the material day. He admitted that he had been heavily intoxicated, was aware of his arrest, and only learnt at the police station that he was being investigated for murder. He denied participating in the offence, suggested that he may have been mistakenly identified because of his intoxication, although he did not know any of the prosecution witnesses, and confirmed that after his arrest he was detained in the same police cells as the other accused persons. 10. Upon re-examination, DW3 reiterated that he remained in custody together with his co-accused and that he regularly undertook casual labour whenever work was available. 11. Lilian Mikasia Namema, Dw4, testified that she was the deceased’s wife and that on 7th March 2023, she was at their home with the deceased and their security guard. She stated that after returning home from her shop and preparing dinner, several men entered the compound at about 7.30 p.m. She testified that one of the men demanded his phone before another slapped her, dragged her into the house, threatened to burn her alive if she screamed, and locked her inside for about fifteen minutes. She stated that the house was left in darkness after the bulb was removed and that she only heard neighbours shouting that the attackers were fleeing. 12. DW4 denied conspiring with or instructing the 1st, 2nd or 3rd accused to kill her husband. She testified that she knew only the 1st accused, a boda boda rider whom she occasionally engaged for transport services, and denied knowing the 2nd and 3rd accused. She further denied cohabiting with the 1st accused, maintaining that although she and the deceased had experienced marital disagreements, they had reconciled and lived together for twelve years until his death. 13. During cross-examination, DW4 reiterated that she had never cohabited with the 1st accused and denied masterminding the deceased’s murder. She acknowledged that she and the deceased had previously reported domestic disputes to the police, including an unproven allegation that the deceased had defiled her daughter, but maintained that they continued to live together as husband and wife. She also confirmed that, although the deceased was not the biological father of her child, they remained married. She testified that previous robberies had occurred at their home and maintained that she was unable to witness the attack because she had been locked in a separate room. She further stated that she knew several prosecution witnesses and had no reason to believe that Clapperton would testify falsely against her. She added that, although she saw a bag at the scene, she did not witness the police recover the exhibits later produced in court. 14. Upon re-examination, DW4 reiterated that she knew several prosecution witnesses, maintained that she had not seen the police recover the exhibits produced at trial, and stated that although she and the deceased had previously had marital disputes, they had resolved their differences before the incident. She further testified that the lights were on when the attackers arrived, but that the bulb had been removed after she was locked inside the house, leaving the room in darkness. **SUBMISSIONS** 1. The prosecution filed their submissions dated 8th April 2026, contending that they had proved the charge of murder against all four accused persons beyond reasonable doubt, based on the evidence of 14 witnesses. The prosecution submitted that the fact and cause of death were established by the evidence of PW1, PW10, PW12 and PW14, who found the deceased lying dead in his compound; PW5, who identified the body for post-mortem examination; and PW7, the pathologist, who concluded that the deceased died from asphyxia secondary to manual strangulation following an assault, thereby proving that the death resulted from an unlawful act. 2. Regarding the identity and participation of the accused persons, the prosecution argued that the evidence established both motive and involvement. They submitted that PW1, PW12 and PW14 confirmed that the deceased and the 4th accused were estranged spouses, while PW2 and PW4 testified to the breakdown of their marriage and the 4th accused’s separate residence. The prosecution further contended that the 4th accused’s admission during cross-examination about her child demonstrated the strained relationship and provided a motive. They also submitted that PW14 linked the 4th accused to the 1st accused, while PW11 and PW12 placed all four accused at the scene of the murder. The prosecution further relied on the evidence of PW13 and PW14 that the 1st, 2nd and 3rd accused were arrested in possession of a black bag containing ropes, insecticide, a machete, ATM cards and other items, together with a motorcycle, all of which were produced as exhibits and were said to connect the accused to the offence. 3. The prosecution urged the court to reject the accused persons’ defences, arguing that the claims by the 1st, 2nd and 3rd accused that they had been falsely implicated after failing to pay a bribe were unsupported by evidence and contradicted by the testimony of PW3 and PW8, who stated that they were not heavily intoxicated as alleged. It further submitted that the 4th accused’s defence that she had also been attacked and locked in a separate room while the deceased was murdered was implausible, inconsistent with PW1’s evidence, and lacked credibility. 4. Finally, the prosecution maintained that the nature and extent of the deceased’s injuries, as documented in the post-mortem report, established malice aforethought within the meaning of section 206 of the Penal Code. They therefore submitted that all the ingredients of the offence of murder had been proved beyond reasonable doubt, and urged the court to convict all four accused persons and to impose an appropriate sentence. 5. In their submissions dated 3rd June 2026, the defence conceded that the prosecution had proved the fact and cause of the deceased’s death through PW7’s post-mortem evidence, which established that the deceased died from asphyxia due to manual strangulation. However, they argued that the prosecution had failed to prove beyond reasonable doubt that the accused persons caused the death or acted with malice aforethought. 6. The defence submitted that the prosecution’s case rested entirely on circumstantial evidence, as there was no eyewitness to the killing. Relying on established authorities on circumstantial evidence, counsel argued that such evidence must irresistibly point to the guilt of the accused and exclude every other reasonable hypothesis, a threshold the defence contended had not been met. 7. It was further argued that the investigations were flawed from the outset, as investigators had prematurely concluded that the 1st and 4th accused were responsible because of their alleged relationship. The defence maintained that there was no credible evidence that the two cohabited, noting that the prosecution’s evidence was based on assumptions rather than objective proof. They also challenged reliance on mobile phone data, arguing that the alleged incriminating telephone call did not appear in the call records, thereby undermining the prosecution’s theory. 8. The defence further submitted that the prosecution failed to establish any conspiracy or common intention among the accused persons and that an alleged friendship or relationship between the 1st and 4th accused could not amount to proof of participation in the murder. They also argued that the doctrine of recent possession was inapplicable, as possession of the deceased’s property had not been proved and, in any event, could not, by itself, establish liability for murder. 9. Counsel placed significant reliance on the forensic evidence, submitting that although the deceased’s DNA was recovered from certain exhibits, none of the accused’s DNA profiles matched any biological material recovered from those exhibits. They argued that, given the prosecution’s theory of death by manual strangulation, the absence of any forensic link between the accused and the exhibits substantially weakened the prosecution’s case. 10. The defence also highlighted numerous inconsistencies in the evidence regarding the recovery, handling and inventory of exhibits, arguing that these contradictions undermined the integrity of the investigations and the chain of custody. They further criticised investigators for failing to conduct fingerprint analysis on the rope and panga, contending that this omission left open the possibility that the exhibits had been planted. 11. Additionally, the defence maintained that no evidence placed any of the accused at the scene of the murder, noting that the photographs and scene reconstruction produced by the prosecution merely depicted the place of arrest rather than the actual crime scene. They argued that even if some of the accused had been found in possession of property allegedly belonging to the deceased, such evidence could not prove that they murdered him and, at most, could support a different offence. 12. On malice aforethought, the defence submitted that the prosecution had failed to prove any motive, arguing that the allegations of marital discord between the deceased and the 4th accused were unsupported by independent evidence and contradicted by testimony that the couple had interacted normally shortly before the deceased’s death. 13. In conclusion, the defence argued that although the prosecution had proved the deceased died from manual strangulation, it had failed to establish who committed the offence. They submitted that the circumstantial evidence was fraught with assumptions, inconsistencies, investigative gaps and unsupported theories, fell short of the legal threshold for conviction, and urged the court to acquit all the accused persons. **ANALYSIS AND DETERMINATION** 1. Having carefully considered the evidence on record, the rival submissions and the applicable law, this court is to determine whether the ingredients of the offence of murder under Section 203 of the Penal Code have been proved beyond reasonable doubt by the prosecution. 2. Section 203 of the Penal Code Cap 63 under which the accused persons are 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 said 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.” **Whether the fact and cause of death of the deceased were proved** 1. There is no dispute that the deceased, John Peter Hewitt, died on the night of 7th March 2023. PW1 found the deceased lying motionless after the attackers had fled. PW2, PW10, PW11, PW12 and PW14 all found the deceased lying at the entrance to his house with visible injuries. PW7, Dr. Dickson Muchana, a consultant forensic pathologist, conducted the post-mortem examination and concluded that the deceased died from respiratory failure secondary to manual strangulation. His findings were corroborated by the external and internal injuries observed during the examination, including a fracture of the hyoid bone, hemorrhage beneath the skin of the neck, fractured ribs, multiple bruises and abrasions, and swelling of the brain. The medical evidence therefore conclusively established that the deceased met his death through an unlawful act. PW7’s evidence remained consistent during cross-examination. He explained that manual strangulation differs from ligature strangulation and that the absence of ligature marks confirmed that the deceased had been strangled using human hands. I find that the fact and cause of death were established. **Whether the accused persons caused the deceased's death through an unlawful act or omission** 1. It is not in dispute that no witness saw the actual moment when the deceased was manually strangled. The prosecution's case is therefore based on circumstantial evidence. The law governing circumstantial evidence is now settled. In Sawe v Republic [2003] KECA 182 (KLR), the Court of Appeal held that: “In our judgment, the evidence does not satisfy the legal requirements of circumstantial evidence to warrant or justify the conviction of the appellant on the basis of the evidence on the record. We are, therefore, unable to uphold the conviction entered by the learned trial judge. We have evaluated the evidence as we are entitled to at great length and there is really nothing left to connect the appellant with the death of the deceased except mere suspicion. The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt.” 1. In *Abanga alias Onyango v Republic*, Cr. App. No. 32 of 1990, the Court of Appeal stated that: - “It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” 1. The same principles were reiterated in *Musili Tulo v Republic* (2014) eKLR, where the court emphasized that: - “In order to ascertain whether or not the inculpatory facts put forward by the prosecution are incompatible with the innocence of the appellant and incapable of explanation upon any other reasonable hypothesis than that of guilt, we must also consider a further principle set out in the case of Musoke v. R [1958] EA 715 citing with approval Teper v. R [1952] AL 480, thus: “It is also necessary before drawing the inference of accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.” 1. Applying the above principles to the present case, the court is satisfied that the prosecution established a complete chain of incriminating circumstances. First, the evidence places the 4th accused at the deceased’s home immediately before the attack. PW1 was categorical that the 4th accused asked him to escort her to the upper house. The deceased became suspicious and accompanied them. The 4th accused then excused herself on the pretext of answering a call of nature before rejoining them. They abandoned their intended walk and returned to the compound, where PW1 retired to his house, leaving only the deceased and the 4th accused outside. Within approximately ten minutes, the deceased cried out for help before being violently attacked. 2. The proximity in time between the conduct of the 4th accused and the attack cannot be dismissed as mere coincidence. The sequence of events strongly supports the prosecution’s theory that the deceased had been deliberately lured into a vulnerable position shortly before the assailants emerged. 3. Secondly, PW1 heard one of the attackers make a telephone call stating: “Hello Mama, we have beaten and killed him and put him in his house.” Although PW1 could not identify the caller by name, the reference to ‘Mama’ immediately after the killing points to the only woman known to have been present with the deceased moments before the attack, namely the 4th accused. 4. This court is mindful of the caution required when considering such evidence. However, the court in Republic v Kipkering arap Koske & another [1949] 16 EACA 135 observed that: “The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” 1. Thirdly, the conduct of the 4th accused before and after the murder is inconsistent with innocence. The evidence of PW2 and PW12 established longstanding disputes between the deceased and the 4th accused. Complaints had previously been made alleging defilement, the burning of the deceased’s motor vehicle, and ongoing marital disagreements. Although motive is not an essential ingredient of murder, Section 9(3) of the Penal Code recognises that motive remains a relevant element. 2. In *Libambula v Republic* [2003] KLR 683, the Court of Appeal held that: - “Motive becomes an important element in the chain on presumptive proof and where the case rests on purely circumstantial evidence. Motive of course, may be drawn from the facts, though proof of it is not essential to prove a crime.” 1. In the present case, the evidence disclosed a deteriorating marital relationship. PW4 established that the 4th accused had rented separate accommodation in Ejinja. PW14’s investigations further revealed that she had been living separately from the deceased while associating with the 1st accused. Although the defence denied cohabitation, the evidence of PW4, the rent receipts, M-Pesa payment records and Safaricom data collectively support the prosecution’s case that the relationship between the 1st and 4th accused extended beyond that of an ordinary customer and a boda boda rider. 2. Fourthly, the electronic evidence substantially corroborates the prosecution case. PW13, a qualified Safaricom data analyst, testified that the telephone numbers registered to the 1st and 4th accused were served by the same BTS at Ejinja on the material afternoon. Although he correctly acknowledged that BTS analysis cannot establish precise distance or identify the actual users of the phones, it demonstrated that both telephones were within the same geographical coverage shortly before the murder. The investigating officer further testified that the call data tracked the movement of the 1st accused towards the scene. 3. While the court accepts that BTS evidence is not proof of guilt in itself, it is corroborative evidence supporting the prosecution's narrative. Electronic evidence is admissible under Sections 65A and 106B of the Evidence Act, provided the statutory conditions are met, which they were, as shown by the certificate produced by PW13. 4. Fifthly, the circumstances surrounding the arrest of the 1st, 2nd and 3rd accused shortly after the murder are highly incriminating. PW3, PW8, PW2 and PW12 consistently testified that the three men were found together, a short distance from the murder scene, shortly after the killing. Their presence in the locality immediately after the murder would not necessarily amount to proof of guilt. However, they were found in possession of several highly incriminating items, including the deceased’s wallet, ATM card and Foreigner’s Certificate, PW1’s stolen Itel phone, blood-stained clothing, ropes, a panga, insecticide containers, and substantial cash concealed in the 1st accused’s socks. The recovery of the deceased’s wallet and personal documents from the 1st accused is particularly significant. 5. The **doctrine of recent possessio**n is well established. In *Arum v Republic* [2006] KECA 385 (KLR), the Court of Appeal held that: - “In our view, before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect, secondly that; that property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. In order to prove possession there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view any discredited evidence on the same cannot suffice no matter from how many witnesses. In case the evidence as to search and discovery of the stolen property from the suspect is conflicting, then the court can only rely on the adduced evidence after analysing it and after it accepts that which it considers is the correct and honest version.” 1. Recent possession may lead to a conviction where the possession is unexplained. In *Malingi Katana Malingi v Republic* [1989] KEHC 109 (KLR), the court held that: - “By the application of the doctrine the burden shifts from the prosecution to the accused to explain his possession of the item complained about. He can only be asked to explain his possession after the prosecution have proved certain basic facts. Firstly that the item he had in his possession had been stolen; it had been stolen a short period prior to the possession; that the lapse of time from the time of its loss to the time the accused was found with it was, from the nature of the item and circumstances of the case, recent; that there are no co-existing circumstances which point to any other person as having been in possession of the item. The doctrine being a presumption of fact is a rebuttable presumption. That is why the accused is called upon to offer an explanation in rebuttal, which if he fails to do an inference is drawn that he either stole it or was a guilty receiver.” 1. Although the defence argued that recent possession cannot, by itself, establish murder, the court notes that this case does not rely on possession alone, but rather that possession forms one link in a long chain of incriminating circumstances. 2. The recovery occurred very shortly after the killing. The accused offered no credible explanation for how they came into possession of the deceased’s personal effects or PW1’s phone. Their defence that they were merely arrested during a police raid at a drinking den cannot explain possession of those items. The allegation that the police fabricated the exhibits was unsupported by any evidence. The alleged demand for bribes likewise remained a bare allegation. None of the accused reported the alleged extortion to the Independent Policing Oversight Authority, the OCS, or even their advocates during the lengthy period before trial. 3. A defence that is merely a denial and does not reasonably explain incriminating circumstances cannot displace otherwise cogent prosecution evidence. The defence also relied heavily on the DNA evidence, arguing that none of the accused persons’ DNA matched the blood recovered from the exhibits. This court does not consider that omission fatal. 4. PW7 conclusively established that the deceased died from manual strangulation, not from bleeding. The Government Analyst merely established that the blood on the panga, shirt and bedcover belonged to the deceased. The absence of the accused persons’ DNA does not exonerate them. 5. The Court of Appeal observed in *Ahamad Abolfathi Mohammed & another v Republic* [2018] KECA 743 (KLR) that: - “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. The defence further criticised the investigation for failing to dust the panga or the ropes for fingerprints. While that would have strengthened the prosecution's case, criminal investigations are not expected to achieve scientific perfection. In Bukenya & Others v Uganda [1972] EA 549, the East African Court of Appeal recognised that: “It is well established that the Director has a discretion to decide who are the material witnesses and whom to call, but this needs to be qualified in three ways. First, there is a duty on the Director to call or make available all witnesses necessary to establish the truth even though their evidence may be inconsistent. Secondly, the Court itself has not merely the right, but the duty to call any person whose evidence appears essential to the just decision of the case. Thirdly, while the Director is not required to call a superfluity of witnesses, if he calls evidence which is barely adequate and it appears that there were other witnesses available who were not called, the Court is entitled, under the general law of evidence, to draw an inference that the evidence of those witnesses, if called, would have been or would have tended to be adverse to the prosecution case.” 1. The evidence in the present case sufficiently supports the prosecution case, notwithstanding those investigative gaps. The conduct of the accused persons after the offence also supports an inference of guilt. They were found together shortly after the killing, attempting to leave the locality. Their explanation that they coincidentally happened to be drinking at the chang’aa den is inconsistent with the objective evidence placing them together, the recovery of stolen property, the blood-stained exhibits and the surrounding circumstances. 2. The court also finds the defence of the 4th accused incredible. Her account that unknown attackers locked her inside the house is inconsistent with PW1’s testimony placing her outside with the deceased immediately before the attack. PW1 never heard her scream for help, despite allegedly being under attack herself. Her conduct before, during and after the incident is inconsistent with that of an innocent spouse witnessing a murderous attack on her husband. 3. The prosecution also proved 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 any offence committed in furtherance of that purpose. 4. In *Njoroge v Republic* [1983] KLR 197, the Court of Appeal held that: - “…Common intention (of persons combined for an unlawful purpose) may be inferred from their presence, their actions and the omission of either of them to disassociate himself from (the offence).” 1. In *Mungai v Republic* [1984] KECA 27 (KLR), the Court of Appeal held that participation need not be equal. What matters is the shared intention to accomplish the unlawful purpose. 2. The coordinated conduct demonstrated in this case, including luring the deceased, the sudden appearance of multiple assailants, silencing PW1 by stealing his phone and threatening him, removing the deceased’s property, and the subsequent joint arrest of the accused persons, leads irresistibly to the conclusion that they were acting pursuant to a common purpose. **Whether the prosecution proved that the accused persons acted with malice aforethought** 1. Malice aforethought is defined in Section 206 of the Penal Code. The court in Republic v Tubere S/O Ochen [1945] 12 EACA 63 held that: “An inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before, during and after the attack.” 1. The deceased suffered manual strangulation, with fractured ribs, a fractured hyoid bone, and multiple blunt-force injuries. Manual strangulation requires the sustained, deliberate application of force to the neck until respiration ceases. The neck is an extremely vulnerable part of the human body. The deliberate compression of the deceased’s neck until respiratory failure occurred demonstrates a clear intention either to kill or to cause grievous bodily harm. 2. The conduct of the accused persons before, during and after the attack, including luring the deceased outside, silencing PW1 by threatening him, stealing property from both PW1 and the deceased, and fleeing together after manually strangling the deceased, clearly demonstrates a deliberate and premeditated intention to kill. 3. Considering the evidence as a whole, I find that the prosecution established an unbroken chain of circumstances which, taken cumulatively, excludes any reasonable hypothesis other than the guilt of the accused persons. The defence evidence consisted largely of bare denials and unsupported allegations of fabrication and bribery, which did not raise any reasonable doubt. 4. This court finds that the prosecution has proved beyond reasonable doubt that the four accused persons, acting in concert and with common intention, unlawfully caused the death of John Peter Hewitt with malice aforethought. 5. Accordingly, I find John Bwile Wakwabubi, Emmanuel Simiyu Wamalwa, alias Leaky, Zablon Wafula Nyukuri and Lilian Mikasia Namema guilty of the offence of murder and convict each of the accused persons as charged. **Dated, Signed** and **Delivered** **Virtually** this **23rd** day of **July 2026.** **R.E. OUGO** **JUDGE** **In the presence of: -** **John Bwile Wakwabubi/ 1st Accused** **Emmanuel Simiyu Wamalwa alias Leaky/ 2nd Accused** **Zablon Wafula Nyukuri/ 3rd Accused** **Lillian Mikasia Namema/ 4th Accused** **Miss Matere -For the State** **Mr. Wangila -For the Accused Persons** **Wilkister/ Minah - C/A**