https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10455

Republic v Wanambuko (Criminal Case E042 of 2024) [2026] KEHC 10455 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10455 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Case E042 of 2024 REA Ougo, J July 9, 2026 Between Republic Prosecutor and Moses Wanyonyi Wanambuko Accused Judgment 1.Moses Wanyonyi Wanambuko (the Accused) is charged with the offence of murder contrary to section 203 read with section 204 of the Penal Code. The particulars of the offence are that on or about the 22nd day of September 2024, at Baraki village, Kuywa Location, within Bungoma County, he murdered Augustine Wanjala Wanyonyi. 2.The accused denied the offence, and the prosecution called five (5) witnesses to prove its case. The witnesses were Mitchel Wanyonyi (Pw1), Celestine Wanjala (Pw2), Dr. Raymond Imbayi (Pw3), Caleb Wasike Wanambuko (Pw4) and No. 71394 PC Wilson Maina Muriuki (Pw5). When put on his defence, the accused gave a sworn statement and did not call any witness. Prosecution Case 3.Mitchel Wanyonyi (Pw1) testified that she is the accused’s child. She stated that the deceased, Augustine Wanjala Wanyonyi, was her brother and that on the material day the accused beat him. She further stated that the accused used a stick to beat the deceased and that the deceased later appeared unwell. The stick alleged to have been used was later recovered during the investigation. In cross-examination, she denied being coached or influenced to give evidence against the accused. She maintained that the accused beat the deceased. 4.Celestine Wambani Wanjala (Pw2) testified that she was related to the accused by marriage and that she lived on the same family land. She further stated that she learnt that the accused had badly beaten the deceased. She later spoke to Caleb Wasike (Pw4) when he returned home after meeting the accused while carrying the child. In cross-examination, she reiterated her evidence in chief. She denied that the alleged land dispute was the reason she implicated the accused. 5.Dr. Raymond Imbayi (Pw3), a medical officer at Greenland Mission Hospital, testified that he conducted the post-mortem examination of the body of Augustine Wanjala Wanyonyi on 27th September 2024 at the Kimilili Sub-County Hospital mortuary. The body was identified by Joseph Khaoya and Caleb Wasike. The deceased was a male child aged about nine (9) years. 6.Pw3 testified that, externally, the deceased had several bruises across the body. He noted bruises on the face, right forearm, back, left shoulder and left leg. He also noted gluteal swelling and hematoma, indicating blood had accumulated around the buttocks. He further stated that the injuries were consistent with a person who had tried to defend himself against inflicted injuries. Internally, there was an occipital epidural hematoma and bleeding around the gluteal muscles. He formed the opinion that the cause of death was a head injury caused by a blunt object. He produced the post-mortem report as an exhibit. In cross-examination, he stated that the deceased had no injury to the genital area. 7.Caleb Wasike Wanambuko (Pw4) testified that he is a brother of the accused. He recalled that on 22nd September 2024 at about 6.00 pm, he was returning home from Kuywa junction when he met the accused carrying his child, Augustine. He saw that the child was in poor condition. He asked the accused what had happened. The accused told him that the child was sick and asked him for Kshs. 50/- for transport. 8.Pw4 testified that he decided to accompany the accused, and as they walked, the accused asked him to help carry the child. He carried the child for some distance and told the accused that it looked like the child had died. The accused told him that the child had not died. Pw4 stated that as they walked, the accused told him that the child had given him problems and that he had beaten the child a little. Pw4 wondered why the accused would beat a sick child and told him to carry his child. He then stopped a boda boda which carried the accused and the child towards hospital. He later learnt that the child had died. 9.Pw4 further testified that upon returning home he found his in-law, Celestine, and asked her what had happened to the child. Celestine told him that Moses had badly beaten the child. Police later went home at about 8.00 pm. He told the police that the accused had not returned from hospital. He later accompanied the accused to the police station. In cross-examination, Pw4 stated that at 6.00 pm the accused was taking the child to hospital, that the accused looked worried, that the deceased was sickly but not epileptic, and that a wire fence separated his home from that of Celestine. He also stated that the accused is his younger brother, that he knows him well, that he is a harsh person, that he had not been treated for mental illness, and that he is feared in the village. In re-examination, he stated that the accused is harsh and used to beat his wife. 10.No. 71394 PC Wilson Maina Muriuki (Pw5) testified that he is attached to DCI Bungoma Central, Chwele, and served as the investigating officer. On 23rd September 2024, he was instructed by his DCIO, Emmanuel Kassimu, to proceed to Chwele Police Station, where a murder case had been reported, and to take over the matter. At the station, he found the accused already in custody. He interrogated the accused, who stated that the deceased was his son and that he had taken him to Kimilili Sub-County Hospital, where the deceased died before being attended to. 11.Pw5 testified that he went to the mortuary at Kimilili Sub-County Hospital and saw the deceased’s body, which had bruises all over. He also visited the accused’s home, the scene, where he met the accused’s daughters, including Mitchel Wanyonyi and Berita. He spoke to the child witness, who narrated what happened on 22nd September 2024. He recovered a wooden stick which the child witness stated the accused used to beat the deceased. He produced the stick in evidence. He also presented the accused before court for custodial orders to complete investigations, recorded witness statements, arranged for the accused to undergo mental assessment, attended the post-mortem, forwarded the file to the ODPP, and the accused was charged with murder. 12.In cross-examination, Pw5 stated that the accused underwent a mental assessment on 26th September 2024 and that he had seen the report dated 26th September 2024. He stated that by the time the accused underwent the second assessment, he was not in police custody. He had not read the second report and could not say whether the accused had a mental illness on 22nd September 2024. He confirmed that the assessment report dated 26th September 2024 was issued four (4) days after the incident. Defence Case 13.The accused gave a sworn statement. He stated that he had lived in Baraki and had been a farmer before his arrest. He testified that Augustine Wanjala Wanyonyi was his youngest child and that Mitchel Wanyonyi and Berita were also his children. He denied killing Augustine. 14.The accused testified that on 28th September 2024 he was called and told that his child was sick. His mother informed him that she would go to church and that the child would be alone. He stated that he went to work at Kuywa and returned home at about noon. Maureen was at home, but he did not find the child. He looked for the child with the other children, and one Martin allegedly found the child lying in a shamba near bananas. 15.The accused further testified that the child had fallen, was responding when called, and was shivering. He picked up the child to take him to hospital. On the way, he met Caleb and told him that he had no money and that the child was sick. Caleb gave him Kshs. 100/-. At the hospital, he left the child while he went to obtain papers. He stated that there were few doctors and that, later, he was told that the child had died. He stated that he did not check the child and did not see any injuries on him. He also stated that the child was sickly and used to fall down. 16.In cross-examination, the accused stated that he had separated from his wife in September 2024. He confirmed that Mitchel was his child, that Celestine Wanjala was his brother’s wife, and that Caleb Wasike was his brother. He stated that he, Celestine and Caleb lived on one shamba and that there had been a land dispute since 2020. He denied killing the child. He stated that Martin remained at home but could not be found and had not come to court. He accepted that he had undergone a mental assessment and that the doctor had said he was okay. He maintained that it was possible Mitchel was lying after being spoken to. In re-examination, he stated that he could not forget the date the child died because he was the one who took him to hospital. Submissions 17.The prosecution submitted that it had proved the offence of murder beyond reasonable doubt. It was submitted that the death and its cause were established by the evidence of Pw3 and the post-mortem report. Regarding the identity of the person who caused the death, the prosecution relied on the evidence of Pw1, Pw4’s evidence that the accused admitted beating the child slightly, the recovery of the stick, and the medical evidence showing multiple injuries. It was submitted that the accused’s defence did not create any reasonable doubt. 18.The defence submitted that the prosecution had failed to prove the offence of murder. It was submitted that the deceased was a sickly child who often fell, that no independent witness saw the accused inflict the fatal injury, that there was a family land dispute involving Celestine and Caleb, and that the accused was falsely implicated. It was also submitted that the accused took the child to hospital, conduct inconsistent with guilt. The defence urged the court to acquit the accused. Analysis And Determination 19.I have considered the evidence adduced by the prosecution, the defence offered by the accused, the submissions and the law. The accused is charged with the offence of murder. The prosecution has the burden of proving its case beyond reasonable doubt. 20.Section 203 of the Penal Code provides that any person who, with malice aforethought, causes the death of another by an unlawful act or omission is guilty of murder. The prosecution is therefore required to prove the deceased's death, the cause of death, that the accused caused the unlawful death, and that the accused had malice aforethought. Death and cause of death 21.On the first ingredient, there is no dispute that Augustine Wanjala Wanyonyi died. Pw3 conducted the post-mortem examination. His evidence was that the deceased had several bruises on different parts of the body, gluteal hematoma and an occipital epidural hematoma. He formed the opinion that the cause of death was head injury caused by a blunt object. The death of the deceased and the cause of death were proved beyond reasonable doubt. Whether the accused caused the unlawful death of the deceased 22.I now turn to whether it is the accused who caused the unlawful death. The accused denied killing the deceased. His defence was that the child was sickly, used to fall down and that Martin found him lying in a shamba. He also stated that the prosecution witnesses lied against him because of a land dispute. 23.The prosecution's case against the accused rests on the evidence of Pw1 and Pw4. Pw1 testified that the accused beat the deceased with a stick. Pw4 met the accused carrying the child when the child was already in a bad condition. Pw4 further testified that the accused told him that the child had given him problems and that he had beaten the child a little. Pw5 recovered the stick, which Pw1 identified as the one used by the accused to beat the deceased. The medical evidence shows multiple injuries, including a serious head injury caused by a blunt object. That evidence is consistent with the prosecution case and not with an ordinary fall. 24.The accused argued that the child was sickly and prone to falling. I have considered that explanation. It does not explain the multiple bruises on the face, right forearm, back, left shoulder, left leg and the gluteal area. It also does not explain the head injury which caused death. The injuries described by Pw3 were not minor. They were serious injuries inflicted by a blunt object. The deceased was a young child, about nine years old. The accused’s explanation that the child merely fell does not raise a reasonable doubt. 25.The accused also alleged that Celestine and Caleb lied because of a land dispute. That allegation was raised during cross-examination and in the defence. However, it does not displace the evidence of Pw1, who witnessed the beating; the evidence of Pw4 on what the accused told him; the medical evidence; and the recovery of the stick by Pw5. The court has considered the alleged land dispute. On the evidence before this court, it is not sufficient to show that the prosecution witnesses fabricated the case against the accused. 26.There was also the issue of mental assessment. Pw5 stated that the accused was taken for mental assessment after arrest. The accused later participated in the proceedings and gave a sworn defence. No defence of insanity was raised. There is therefore no evidence before this court that, at the material time, the accused was incapable of forming the necessary intention. 27.Even if the evidence were treated as partly circumstantial, the circumstances point to the accused. In Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, the Court of Appeal restated that circumstantial evidence can found a conviction where it points unerringly to the accused. In Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990, the Court held that the circumstances must be cogently and firmly established, must point towards the guilt of the accused, and must form a chain so complete that there is no escape from the conclusion that, within all human probability, the offence was committed by the accused and no one else. I find that the prosecution proved beyond reasonable doubt that it is the accused who caused the unlawful death of the deceased. Whether the accused acted with malice aforethought 28.The final issue is whether malice aforethought was proved. Section 206 of the Penal Code provides that malice aforethought is established by evidence showing, among other things, an intention to cause death or grievous harm, or knowledge that the act causing death will probably cause death or grievous harm. 29.In Rex v Tubere s/o Ochen [1945] 12 EACA 63, the court stated that, in determining malice aforethought, the court may consider the weapon used, the manner of its use, the part of the body injured, and the conduct of the accused before, during and after the attack. The deceased was a child aged about nine years. He sustained multiple injuries. The fatal injury was a head injury caused by a blunt object. The head is a vulnerable part of the body. The injuries showed that the child had tried to defend himself. 30.The Court of Appeal in Musa Kiplangat Biegon v Republic [2012] eKLR considered a case in which a child died after excessive punishment. The Court held that where the assault is vicious and results in serious injuries to a child, malice aforethought may be inferred because the accused knew that his actions would probably cause grievous harm. I am guided by that decision. In this case, the force used on the child was excessive. A person who beats a child with a blunt object and causes a serious head injury must be taken to have intended to cause grievous harm or to have known that grievous harm would probably result. 31.I find that malice aforethought was proved. The prosecution has proved the deceased's death, the cause of death, that the accused caused the unlawful death, and that he acted with malice aforethought. 32.In conclusion, I find that the prosecution has proved its case against the accused beyond reasonable doubt. I find Moses Wanyonyi Wanambuko guilty of the murder of Augustine Wanjala Wanyonyi and, accordingly, convict him as charged. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF JULY 2026.R. E. OUGOJUDGEIn the presence of:Moses Wanyonyi Wanambuko/Accused - presentMiss Matere - For the ProsecutionMiss Lunani - For the Accused personWilkister - Court Assistant