https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12413

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CRIMINAL CASE NO. 40 OF 2020** **REPUBLIC …………………….……..……………………………..……………. PROSECUTOR** **VERSUS** **JOHN WANANGWE ..………………………………………………….………….. ACCUSED** **JUDGEMENT** 1. The Accused, John Wanangwe is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars being that on the 1st November 2020 at Shikutse Sub-location in Kakamega County, he murdered Amiru Paul. 2. The Accused denied the charges and the prosecution adduced evidence through eight (8) witnesses. PW1 was Sylvester Abuyeko Paulo from Idumbusia Village, Shikutse Sub-location. He recalled that on 2nd November 2020, he was asleep when a child, Emily Aswani, woke him up at 8.00 a.m. and told him that, on her way to school, she had found her father, Amiru Paul, lying on the road with panga cuts. The deceased was his brother. The child took him to the scene and he confirmed that her father was deceased and had panga cut injuries. He phoned the area Assistant Chief, Alfred Moses Malala, who called the Area Chief Malik Maina, who came to the scene, confirmed the death, and called the police. The police arrived and took the body to the mortuary. Having heard rumours that a certain girl had information concerning the death, PW1 said that he informed the Area Chief and together they proceeded to the Busaa Club at Shikutse where they interrogated Noel Andenche. 3. PW1 said that during interrogation, Noel implicated John Wanangwe and the said John Wanangwe was taken to the Chief’s office at 6.00 p.m. on 2nd November 2020. The witness identified the Accused as John Wanangwe. 4. On cross-examination, PW1 said that he saw the body at the scene at 6.20 a.m. and the Accused was there amongst the many people who were at the scene. 5. Alfred Werenalo Abuyeka testified as PW2 and said that on 2nd November 2020, he was phoned by PW1 who informed him that their niece, Emily Aswani, had found her father lying on the road. He then went to the scene and found PW1, Emily and neighbours whom he recognized. Among them were Luka Mulavi, Nanjiro Shiroya, Okwaro Shiroya and others. PW2 recounted that Amiru Paul was lying dead with panga cuts on the head and a stab wound on his leg. PW1 reported to the authorities, who came and took the body. PW2 said that he did not see the Accused, who was well known to him, at the scene on that day. 6. PW3 was Emily Aswani, who said that she was 17 years at the time of the incident. She recalled that on 2nd November 2020 at 6.00 a.m., she was going to school and on the way, she found her father lying dead with cuts and blood oozing from the sides of his head. She went back home and informed her uncle, PW1 who informed other relatives and the Assistant Chief. PW3 said that the deceased had divorced her mother and she was living with her grandmother. PW3 said that she saw injuries on the left side of the deceased’s head and a knife cut on the left leg. She said that she had last seen him the previous day at 5.00 p.m. when he told her he was going to Shikutse market. 7. When cross-examined, PW3 said that she knew the Accused and that he was married. She also said that she knew Noel and that she was not permanently married. She did not know to whom she was married. 8. PW4 was Wilbroda Mukasia Mukamba, a businesswoman who testified that on 2nd November 2020 at about 8.00, she was called by her brother-in-law, PW1, who informed her that her husband had been found dead by the road. She had separated from her husband in 2014 and was in Ebung’ala with her mother and brother. She went to the scene and found the deceased covered with a blanket. There was a crowd and her mother-in-law removed the blanket. The deceased had a cut on the head and blood was flowing. Police from Malava Police Station arrived, processed the scene, and commenced investigations. The body was taken to Kakamega mortuary, and when the clothes were removed, there was a cut on the stomach, a cut on one of the legs, as well as the two cuts on the head. She later heard that Anangwe had killed the deceased. She identified Anangwe on the dock and said that she was married in their area. 9. PW5 was Dr. Dixon Mchana, a Pathologist from Kakamega County. He produced the post-mortem report on the deceased and recalled that on 5th November 2020, he conducted a post-mortem on the body, which was identified by two witnesses at Kakamega County Hospital mortuary. Three days had lapsed since death and externally, the nails and tongue appeared blue. There was a deep cut wound above the left ear, on the skull, and a laceration on the leg. Internally, there was injury to the blood vessels. There was a linear fracture on the skull above the ear, 4 cm long, and bleeding to the left brain. As a result, PW5 said that he formed the opinion that the cause of death was severe head injury secondary to sharp force trauma. He issued a Burial Permit No. 1894822 and signed the post-mortem report. 10. Cross-examined, PW5 said that the death, which was immediate was caused by a sharp object but he was not able to tell what specific weapon it was. 11. PW6 was Noel Nasiche a vegetable vendor from Shikusa. She said that she knew the Accused, who was her lover since the year 2020 and that they had cohabited as husband and wife for eight (8) months. She said that on 1st November 2020, at 6.00 p.m., she went to Jane Daudi’s home as the latter owed her Ksh. 200/=. Jane, who was a chang’aa dealer asked her to wait until 9.00 p.m. On arrival at Jane’s house, she found the deceased seated near the door with Jane and her husband Daudi. PW6 said that she joined the trio and the deceased offered to buy her alcohol. She took the cup of chang’aa and they stayed drinking until her nephew Musa Masai arrived whereof the deceased bought him alcohol after she had offered him half a cup of her chang’aa. At 9.00 p.m., she informed Jane that she was leaving and the latter promised to repay her debt the next morning. Musa, who was drunk by then got out and the deceased remained. Jane’s husband demanded that the deceased leave as the other people had been asked to leave. The deceased left and started making noise along the road. According to PW6, her route and the deceased’s route were the same. When they reached PAG Church, not far from the chang’aa den, Musa took the direction to his home. Then they met the Accused, who demanded to know where the two were going at such an hour. PW6 said that when she told the Accused that they were going home, he warned her not to go to his house. On hearing that, she passed him. The Accused then removed a whip and threatened to whip her, so she ran away to her home. The Accused then proceeded to ask the deceased why he was walking with someone’s wife wherefore the deceased informed him that their routes were the same but that he had no romantic interest in her. The witness, who appeared hesitant as she gave testimony said that the Accused started fighting the deceased and a push and pull ensued that culminated in a fight. She said that when she reached home, she went to sleep and when she woke up the next day, she learnt that the deceased was found lying along the way with insects swarming around him. She wanted to go to the scene to check what was going on but did not reach. She heard that Amiru had passed on. After the police had collected the body, her sister-in-law informed her that she had heard that she was involved. At 1.00 a.m., she was at Shikutse market when she was arrested by the Chief who took her to the Assistant Chief’s office and there, they found that the Accused had already been arrested. PW6 said she was re-arrested later and was taken into custody for 1½ weeks after which she was released by Butali Court. 12. On cross-examination, PW6 admitted that the Accused was her lover. She said that on 1st November 2020, she left him with his parents but that in her statement she recorded that she left him taking care of his child Collins. That Jane was her in-law and if she said that the witness and the deceased had an affair for a while, she would be lying. She said that on the material night she was not drunk as she took half a cup and Musa took the other half. She said that Musa was bought alcohol. She said that when they got out of the chang’aa den, they were three people. She accepted that she was the last person seen with the deceased. She said that they met the Accused on the way and he was armed with an iron rod which he wanted to beat her with. She screamed and ran away but no one got out of the nearby houses. Cross-examined further, she said that the whip was an iron rod. She said that she did not see the Accused beat or kill the deceased and denied the suggestion that she and Musa killed the deceased. When asked why she did not attend court to give evidence until she was arrested, she said it was because she was not aware that the Accused was yet to be convicted as she thought he was already jailed. She admitted that when she was last in court, she had denied that the Accused was her husband but in her statement to the police, she had said he was her husband. She urged the court to believe that the deceased was not her husband. 13. PW7, Daniel Abuyeka Maina testified that he witnessed the post-mortem of the deceased, who was his step-brother after identifying the body at Kakamega County Hospital mortuary. He said that the body had a head injury and the Doctor attributed the death to severe head injury due to assault. 14. PW8 was the Investigating Officer, PC Charles Ogada. He recalled that on 2nd November 2020 around 7.00 a.m., while at DCI Kakamega North, he was informed by the DCIO that a murder incident had occurred at Shikutse Area. He was assigned as the investigator and he and P.C. Mathenge went to the scene that morning. On arrival, they found the Area Chief and villagers gathered there. The body was lying beside the road with visible injuries. There was blood oozing from a cut wound on the head. According to the witness, investigations indicated that the deceased had left home the previous day but did not return. He was last seen on 1st November 2020 in the company of one Noel Nasiche and Moses Masai while drinking at Jane Daudi’s place. The deceased left Jane’s place around 9.00 p.m. together with Noel Nasiche a few minutes after Moses Masai had left. The investigations established that as Noel and the deceased were walking, they met the Accused, who was said to be cohabiting with Noel. The Accused was monitoring the deceased and Noel since he suspected them of having an affair. On finding them, he engaged the deceased in a bitter argument whereby a fight ensued. The Accused had an object in his hand and when the fight arose, Noel fled. Later, on 2nd November 2020, the deceased’s daughter Emily Aswani was heading to school when she found her father lying besides the road. She informed family members who relayed the information to the Area Chief, who then called the police. The next day, James Wanangwe and Noel Nasiche were arrested as suspects and retained for ten (10) days pursuant to a court order. An autopsy was conducted and the conclusion was that the deceased died of severe head injury secondary to sharp force trauma following assault. 15. The Investigating Officer said that he later decided to charge the Accused and that no weapon was recovered at the scene. 16. When placed on his defence, the Accused chose to give a sworn statement but called no witnesses. He said that the deceased was his neighbour and that Noel Nasiche was his wife. That on 1st November 2020 the whole night, he slept in his house. He said that he was not aware that his wife had gone out with the deceased as she had gone to her home on Sunday. On 2nd November 2020, at around 3 p.m., he left work and proceeded home where he was informed that the Chief was looking for him. He went to the Chief’s place where the Chief explained to him that a murder had occurred and he was a suspect because his wife had been last seen with the deceased. By then, his wife had not returned home. He informed the Chief that he was unaware of the incident. The Chief called the police, who came and arrested him. The Accused, who denied killing the deceased said that since his arrest, his wife had never visited him. He said that he heard his wife give evidence. He also said that he had a dispute with the Chief because of his wife as he had purchased land in the area before the incident. He said that it was alleged that he should not buy land in the same area he was married from. He also said that the Chief had threatened to jail him. He denied recording a statement after his arrest and said the charges were a fabrication. 17. During cross-examination, he said he bought the land before he got married and that it was sold to him by Musa who came from the same family with his wife and the Chief. He said he never reported the threats as he did not take them seriously. The Accused, who said that he knew Jane the chang’aa seller and a neighbour, said that he never witnessed his wife go to take alcohol. He admitted that they had a seven (7) year old child who used to live with them but the child was not his biological child. The Accused said that he heard his wife say that he was the one who assaulted the deceased but she framed him to escape the charges after she had been arrested. He said that they had not disagreed with his wife and he did not know why she would frame him but it was because she had been arrested. 18. On re-examination, the Accused said that his wife was arrested after she had refused to give evidence because she knew nothing concerning the murder. According to him, his wife was forced to give evidence against him. 19. At the end of the defence case, the parties were directed to file written submissions. 20. The prosecution through Ms. Chala submitted that they had proved their case against the Accused. They submitted that they had proven the death of the deceased and that the death was due to an unlawful act which directly resulted in the death of the deceased. They averred that they had proven that the Accused was the one who committed the act. 21. The prosecution went on to submit that since the Accused was last seen fighting with the deceased, it was incumbent upon him pursuant to Section 111 (i) of the Evidence Act, to explain how the deceased eventually died. They averred that the Accused’s defence was a mere denial that did not dislodge the prosecution’s case. 22. The prosecution further submitted that the Accused had a motive as he suspected the deceased of having a love affair with his lover, PW6 as is deducible from the evidence of the Investigating Officer, PW8. 23. Further, the prosecution submitted that PW6, who maintained that she was a lover, and not a wife of the Accused, was not a privileged witness under the proviso to Section 127 of the Evidence Act hence, she was a competent and compellable witness. 24. Regarding the last element of malice aforethought, it was asserted that the Accused’s actions in arming himself was an indication that he was prepared to attack, and that the part of the body that was targeted in the assault further buttressed the assertion. 25. The Accused through Ms. Wanyonyi submitted that the prosecution fell short of the required threshold for proof and quoted the cases of **Dzimba & Another v. Republic [2024] KECA 1571 (KLR)** and **Sawe v. Republic [2003] KECA 182 (KLR)**. He asserted that the alleged circumstances were not firmly established as the only witness attempting to link him to the offence was his estranged wife, PW6 who testified under compulsion and admitted having consumed illicit brew on the material date. He contended that this may have impaired her perception, affected her recollection of events, and rendered her testimony unreliable and incapable of forming a firm foundation for any inference of guilt. 26. He averred that the circumstances did not point unerringly to his guilt as the alleged confrontation was at night, with unclear lighting conditions. He further contended that the chain of evidence was broken and incapable of sustaining a conviction as the prosecution’s case was clearly explainable on other reasonable hypothesis since another person could have possibly inflicted the injuries on the deceased. 27. On malice aforethought, the Accused submitted that the evidence fell short of proving the same and referred to **Republic v. Edan [2025] KEHC 15124 (KLR)**. He further contended that there was no independent proof of jealousy as a motive for the offence considering the unreliability of PW6. 28. The Accused submitted that the prosecution evidence was hearsay therefore lacking probative value and that the only purported eye witness PW6, was unreliable and so he should be acquitted. **Analysis and Determination** 1. The charge of murder is proven by establishing that the person named as deceased died, that the death was caused by an unlawful act or omission, that the accused was responsible for the unlawful act or omission, and that in causing the death, the accused acted with malice aforethought. 2. Having said that, the burden of proof in a criminal trial lies with the prosecution and the standard of proof is beyond reasonable doubt. This means that the prosecution needs to firmly convince the court that the accused committed the offence. It does not mean that the proof should be beyond a shadow or doubt or beyond all possible doubt. Where a logical doubt based on objective reasoning and common sense exists in the mind of the court after it has weighed and considered all the evidence, then the accused person must benefit from the doubt. See, **Republic v. Ismail Hussein Ibrahim [2018] KEHC 4614 (KLR)** where the Court quoted the case of **United v. Smith** and stated as follows:- ***“To give meaning to this concept of burden of proof of beyond reasonable doubt in criminal cases the Federal Court of United States in the case of*United States V Smith, 267 F. 3d 1154, 1161 (D.C. Cir. 2001) (Citing In re Winship, 397 U. S. 358, 370, 90 S. Ct. 1068, 1076 (1970) (Harlan, J., concurring)** **the court stated:** **“The burden is upon the state to prove beyond reasonable doubt that the defendant is guilty of the crime charged. It is a strict and heavy burden. The evidence must overcome any reasonable doubt concerning the defendant’s guilt, but it does not mean that a defendant’s guilt must be proved beyond all possible doubt. A reasonable doubt is a fair, actual and logical doubt based upon reason and common sense. A reasonable doubt may arise either from the evidence or from a lack of evidence. Reasonable doubt exists when you are not firmly convinced of the defendant’s guilt, after you weighed and considered all the evidence. A defendant must not be convicted on suspicion or speculation. It is not enough for the state to show that the defendant is probably guilty. On the other hand, there are very few things in this world that we know with absolute certainty. The state does not have to overcome every possible doubt. The state does not have to overcome every possible doubt. The state must prove each element of the crime by evidence that firmly convinces each of you and leaves no reasonable doubt. The proof must be so convincing that you can rely and act upon it in this matter of the highest importance. If you find there’s a reasonable doubt that the defendant is guilty of the crime, you must give the defendant the benefit of that doubt and find the defendant not guilty of the crime under consideration.”** 1. The Accused did not refute the prosecution’s claim that Amiru Paul was dead. In any event, a post-mortem report was produced confirming the demise. All the prosecution witnesses testified as to his death. 2. On the cause of death, the examining Pathologist testified that the deceased had fatal injuries that were caused by a sharp object. He attributed the death to severe head injury secondary to force trauma following assault. Absent any evidence that the death was due to a justifiable or lawful cause, it was proved that the cause of death was unlawful. 3. In **Dzimba & Another v. Republic (Supra)**, the Court of Appeal cited theSupreme Court of India in the case of **Padala Veera Reddy v. State of A.P. & Ors (AIR 1990 SC 79)** and held that circumstantial evidence must satisfy the following tests:- ***“(1)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;*** ***(2)those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;*** ***(3)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; and*** ***(4)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.”*** 1. The prosecution’s case primarily rested on the evidence of PW6 vis-à-vis the Accused’s assertion that on the material date, he was asleep alone in his house as his wife PW6 had gone to their home. The prosecution urged the court to believe PW6’s version of events and contended that the Accused’s defence was a mere denial that did not dislodge the prosecution’s case. 2. Pursuant to Section 143 of the Evidence Act an Accused person can be convicted on the testimony of a single witness as no particular number of witness is required to prove a fact. However, such evidence must be treated with utmost care especially where the prosecution relies on the “last seen doctrine”. As submitted by the defence, the circumstantial evidence must form an unbroken chain that points unerringly and irresistibly to the guilt of the accused by excluding any reasonable hypothesis of innocence. 3. The question facing the court is whether the evidence of PW6, a recalcitrant witness who testified only while in custody after the prosecution had secured warrants of arrest against her on 6/3/2024, wherefore she was arrested on 15/4/2024 and remanded in custody until 24/3/2025 when she testified in court should be held to be credible. 4. The court had the opportunity to observe the said witness as she gave evidence and noted that she was an evasive and hesitant witness. Further, certain aspects of her testimony did not add up. She claimed that she went to Jane’s place as the latter owed her Ksh. 200/= and Jane told her to wait until 9.00 p.m., and that she found the deceased who helped her buy one cup of chang’aa. She further claimed that when her nephew Musa Masai arrived, she offered him a share of her drink but the deceased stopped him from sharing the drink and ordered a drink for him. It therefore meant that she took a whole cup of chang’aa. However, in cross-examination, she contradicted herself and said she only took half a cup of chang’aa. There was also inconsistencies in her testimony regarding what the Accused was armed with. In her examination-in-chief, she claimed that he removed a whip from his pocket and threatened to whip her. In cross examination, she claimed that the Accused was armed with an iron rod which had kept in his pocket and that the whip was an iron rod. The court is unable to determine the exact nature of the weapon as there is a distinct difference between a whip and an iron rod. Also, it is doubtful whether the witness would have been able to see the whip or iron rod at such a time of the night. Furthermore, no evidence was led to establish whether there was sufficient light to enable PW6 see the object properly. I also note that the Investigating Officer testified that PW6 had told him that the Accused had an object in his hand. She did not name the object. 5. Coupled with PW6’s reluctance to testify, and her inconsistency as to the nature of her relationship with the deceased, her contradictory and inconsistent evidence clouded her credibility notwithstanding the fact that the court believes that she saw the Accused as she was familiar with him having been his lover for a while. Her evidence therefore needed independent corroborating anchors in order to ensure that it was driven by truth and not by coercion, malice or an effort to exonerate herself from culpability. 6. Additionally, the nature of injuries on the deceased cast further doubt to the prosecution’s case. All the witnesses who saw the body testified that they saw several panga cuts on it. Dr. Mchana said the injuries on the deceased were caused by sharp force trauma. The court doubts whether a whip or an iron would result in sharp force trauma. The injuries do not align with the weapon PW6 saw the Accused with as he accosted the deceased. 7. The evidence of Musa Masai would have assisted the court as would have forensic evidence, but the prosecution did not call Musa Masai nor adduce forensic evidence. 8. Respecting the last seen doctrine, while it creates the rebuttable presumption that the person last seen with the deceased is responsible for the death, the Court of Appeal has severally held that the doctrine cannot stand in isolation and must be backed by a tight, unbroken chain of events. 9. In **Nelson Wafula Masikini & 2 others v. Republic [2023] KECA 166 (KLR)**, the Court of Appeal cited with approval the case of Abanga Alias Onyango v. Republic, Criminal App. No. 32 of 1990 where the test that circumstantial evidence must be subject to in order to justify a conviction was discussed and where the court held 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 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. In **Sawe v. Republic (Supra)**, the Court of Appeal expounded on the circumstantial evidence test and stated that:- ***“In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of Iris guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden, which never shifts to the party accused.”*** 1. Bearing in mind that the burden of proof of guilt never shifts to the Accused, I find that there was a hiatus in the prosecution’s case as PW6 claimed that she fled the scene and never saw anything. The body was discovered the next morning. The prosecution failed to establish the exact time of death to prove that there was no other person who was involved in the assault. Considering the circumstances PW6, the recalcitrant witness could also be culpable for the offence. Moreover, since the police did not recover the alleged iron rod or whip, there was nothing to link the Accused to the assault, more so in view of the nature of the injuries on the body which pointed to the cause being a sharp object. 2. I am suspicious that the Accused committed the offence. However, in the absence of cogent evidence, it is not safe to convict him. As established in **Mary Wanjiku Gichira v. Republic Criminal Appeal No. 017 of 1998** quoted in **Nelson Wafula Masikini & 2 others v. Republic (Supra)**, suspicion alone, no matter how strong or grave, can never form the basis of conviction in a criminal case. The court had held that:- ***“Suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence. Before a court of law can convict an accused person of an offence, it ought to be satisfied that the evidence against him is overwhelming and points to his guilt. This is because a conviction has the effect of taking away the accused’s freedom and at times life.”*** 1. Ultimately, it is my finding that the evidence by the prosecution did not establish an unbroken chain pointing unerringly to the guilt of the Accused. Yes, I am highly suspicious, but in view of the applicable principles, if the Accused is guilty, he shall be judged by a higher power. For now, he is entitled to the benefit of doubt. 2. Consequently, the Accused is hereby acquitted of the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. He is hereby set at liberty unless otherwise lawfully held. Dated, signed, and delivered at Kakamega this 31st day of July 2026. **A. C. BETT** **JUDGE** **In the presence of:** Ms. Chala for the Prosecution/State Ms. Wanyonyi for the Accused Court Assistant: Polycap