https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9442

Republic v Wanjala (Criminal Case E033 of 2022) [2026] KEHC 9442 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 9442 (KLR) Republic of Kenya In the High Court at Kitale Criminal Case E033 of 2022 RK Limo, J July 2, 2026 Between Republic Prosecutor and Winslus Wanyonyi Wanjala Accused Ruling 1.Winslus Wanyonyi Wanjala, the accused herein is charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars as per the information provided are that on 3/12/2022 at around 6am at ADC Suam Orchards Farm near Malik primary school at Endebess Sub-county within Trans-Nzoia County murdered Victor Wafula Musundi. 2.The accused person denied committing the offence and the prosecution has presented a total of 10 witnesses to prove their case and now this court is being called upon to rule whether based on the evidence tendered there is prima facie case established sufficient to place the accused on his defence. 3.At this stage of proceedings a court is required to evaluate the evidence tendered and satisfy itself that the charge against the accused is supported by enough or sufficient evidence to require the accused to answer to the charge. The standard applicable is on a prima facie basis but the evidence presented must be sufficient enough on their own, should the accused opt to stay silent, to support a conviction or finding of guilt. 4.In the case of Republic –vs- Abdi Ibrahim Owl (2013)eKLR the court defined “a prima facie case” referencing Black’s Law Dictionary as follows;“Prima facie” is a Latin word defined by Black’s Law Dictionary 8th edition as “sufficient to establish a fact or raise a presumption unless disproved or rebutted. Prima facie case is defined by the same dictionary as “establishment of a legally required rebuttable presumption.” To digest further in simple terms it means the establishment of a rebuttable presumption that an accused person is guilty of the offence he/she is charged with.” 5.The evidence tendered by prosecution should therefore be sufficient for a rebuttable assumption to be made that the accused committed the offence for which he is charged with. This means that he is being placed on his defence to rebut or challenge the assumption being made. 6.In this case this court has keenly considered the evidence tendered. A brief background clearly indicates that the accused is a National Police Reservist (NPR) who was officially deployed to secure or provide security to ADC Farm known as Suam Orchards Farm. 7.It is uncontested that on the material date that is on 3/12/2022 there were unauthorized people who invaded one of the ADC Farms known as Suam Orchards with intention of either stealing harvested maize and/or collecting maize left overs and when warned to stop the theft they became hostile and forced Saitoti Mulweti (PW1) to go for security back up from NPR officer who happened to be the accused herein. The officer (accused) tried to scare off the invaders but they stayed put and even confronted the officer leading to a shoot-out and the eventual fatal bullet injury to the deceased person. 8.PW1 was categorical that he is the one who went to look for the accused and accompanied him to the farm where they were confronted by over 100 people. He told this court that; “on seeing us, the people pursued us. They were over 100 people. We were in danger. The NPR officer shot in the air to scare the people. He released 2 bullets upwards and people dispersed.”He further stated that the people were armed with pangas, arrows and stones and that some had slashers. That; “they were properly armed”. 9.The evidence of PW1 was corroborated by Jackson Arisa Mogendi (PW2) another eye witness to the incident. He was categorical that he was a security officer employed by ADC and that as he was on patrol on the material date at the farm at around 6am he found people stealing maize and that they were over 100 people and armed with pangas, arrows and clubs (rungus). That he told them to stop stealing but in return some insulted him that he was stupid and started confronting him and that is what made him to go and seek reinforcement by calling a NPR officer (the accused herein). This is what he states;“I retreated and called the NPR (accused herein). Other security officers had already been chased away; “when the people saw the NPR with a G3 riffle, they said they were used to an AK 47 and that the G3 gun was nothing….” 10.The above narrative paints a picture of what the accused faced when he heeded for a call of duty at the early hours of the morning. It is significant to note that the accused was the only armed person facing over 100 people armed with crude weapons. PW2 put it succinctly;“The officer (accused herein) was alone…….the officer told them to leave. The people refused and instead surrounded the officer while they were armed. Sensing danger as the people were getting near to him, the NPR officer (accused herein) shot in the air. It was one shot. One of them told the officer that they were used to the gun shots back at their home in Uganda and asked the officer to shoot even 100 times.”The evidence shows that the accused person stood his ground gallantly despite being taunted and shot in the air at first to try and scare off the invaders. 11.This court has looked at the evidence tendered by Dr Alex Wanyonyi (PW7) who performed Post Mortem on the body of the deceased. What is significant from his findings is that he found that the entry of the bullet was on the frontal right chest and the exit was on the back on the left side which means that the deceased was shot from the front. The investigating officer (PW10) stated that the distance between the accused and the deceased at the time was about 40 metres. This clearly corroborates the account given by both PW1 and PW2 that the accused was under attack and faced great danger when he first shot in the air before shooting at the deceased. 12.The evidence placed before this court clearly shows that the accused was out to defend himself and secure the farm he had been deployed to ward off thieves. That he first shot in the air to try to scare away the invaders shows that this was a gallant officer who certainly was simply out to do the job he had been deployed to do. This was not a reckless officer misusing his firearm or a person who should be arraigned before court. 13.The police and the Office of the Director of Public Prosecution (ODPP) should have done better in the circumstances. Dragging such dedicated officers to court can be counter-productive especially given the circumstances under which the officers in that area operate. They are faced with thieves some of whom are armed foreigners likely to cause havoc and simply cross-over the border and vanish to avoid long arm of the law. Where else in the world would one taunt an armed officer that the rifle he is holding is a useless G3 rifle? Where and what are the likely consequences of taunting a police officer like that? A provoked officer can act out of anger but the accused in this instance was calm and collected. 14.The long and shot of this is that this court finds that the prosecution’s case against the accused is simply unsustainable. The evidence adduced shows that the accused should have been commended for his gallant duty and the way he acted despite extreme provocation and being taunted for being armed only with a G3 rifle and that they had seen more potent rifles like AK 47. The investigating officer stated that the rifle was loaded with 20 rounds of ammunition but the officer only discharged 2 despite the danger he faced. When the hostile crowd retreated he stopped shooting which speaks well of his good intentions, free from malice or recklessness. 15.This court finds that there is no sufficient evidence to place the accused on his defence and he is not guilty of the charge of murder. He is acquitted and the security shall be returned to the depositor. DELIVERED, DATED AND SIGNED AT KITALE THIS ……2ND … DAY OF ………………JULY……….……………., 2026.HON JUSTICE R.K. LIMOKITALE HIGH COURTRuling delivered in open courtIn the presence ofWinslus Wanyonyi Wanjala the accusedMugun for the StateNo appearance for Auta for the accusedJoseph/Dorcas – court assistants