https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10906

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGO. MA** **CRIMINAL CASE NO E021 OF 2022-(MURDER)** **REUPLIC……………………………..…..…..….……..PROSECUTOR** **VERSUS** **HARON BARASA WANYONYI……………..………….….ACCUSED** **JUDGMENT** 1. Haron Barasa Wanyonyi the accused is charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are, on the 18th day of July 2022 at Mteremko area in Bungoma Sub-County within Bungoma County murdered Ali Olwabi Marenda. 2. The accused person denied the offence, and the prosecution called eight (8) witnesses to prove its case. The accused gave a sworn statement and called five (5) witnesses. **PROSECUTION CASE** 1. Christine Kogani Namulanda (Christine), Pw1, the wife of the deceased, testified that on 18.7.2022 at 6.30pm, a person named Haron called her and asked whether she was the wife of Ali. Haron told her that Ali had taken a boda to Maseno and had not paid the fare of Kshs.1500/-. He asked her to pay the money for him, and she told him she had no money. The caller told her that they would take him to the Bungoma police station. She informed him that she would follow. After 20 minutes, Ali called her and told her that he was being beaten and that the people wanted to kill him. She asked him why, and he told her it was because they wanted Kshs.1500/-. Ali told her they were at Kanduyi. She decided to go and look for the money. She took a motorcycle to Kanduyi, but she did not find them. She was told they had gone to Makutano. She proceeded there and did not find him. She went to their house and found that the people had passed there with him. A friend, Janet, called her and told her that her husband was going to be killed. Ali called her and told her that he was on the ground and that they wanted to kill him. Linnet joined her, and they went to Kanduyi police station. They called Ali, but his phone was off. As they continued to look for Ali, a boda rider told her he had seen Haron at the Muteremuko area. She became helpless. Linnet went to the place and found Ali. He had been beaten on the head and had died. They went to the police station and reported the matter, and thereafter the police went for the body. She saw the body at the mortuary. Ali’s head was split open. The next day they found Haron at the police station. She knew Haron as the chairman of Boda. 2. Salim Omurende Mapende (Salim), Pw2, testified as follows: Ali, the deceased, is his younger brother. He met the accused on the day Aaron Barasa called him. On 18.7.2022 at about 7.15pm, he was at his place. He was called and told that people were calling him down. He went down and found quite a number of people. They were boda boda riders. Haron was holding his brother Ali by the hand. Haron asked him if he knew Ali, and he told him that Ali was his brother. Haron told him that Ali had hired a boda boda but had failed to pay the fare. Ali told him it was Kshs. 1500/- and that he had not paid. He told Ali he had no money. He requested Haron to give them time to get the money. Haron called the rider who had taken Ali to Maseno, and the rider declined. Ali told him that Haron had taken him to their office and beaten him thoroughly. Haron demanded to be paid or to leave with his brother. Haron identified himself as the chairman of boda boda Bungoma and showed him his badge, which had the name Haron Barasa Wanyonyi. Haron left with Ali after Ali requested them to take him home. Haron told him not to look for him but to look for the brother at the mortuary. He decided to follow them, but people cautioned him not to. At 8.40pm, his mother called him and told him that Ali had been killed. The next day he saw Ali’s body in the mortuary. He had injuries on the head and a broken arm. He identified the body on 21.7.2022 when the post-mortem was done. They met with Haron at the police station. 3. James Treasure Fuchaka (James), Pw3, testified that he knows the accused as the chairman of the boda boda and also knows Ali, the deceased. On 18.7.2022 at 6.00pm, he was at Salim’s shop. Boda boda riders arrived at Salim’s shop, with the accused leading them. Ali called Salim, and Salim heard that there was a case. Salim went out and heard Haron tell Salim that his brother had hired a motorcycle to go to Luanda Maseno but had no money to pay. They were claiming 1500/- from them. Salim had no money. He asked them to return the next day. They left with Ali. He heard Haron tell Salim that if there was no money, they would go with Ali, and that if they went with him, they should look for him at the mortuary. Pw3 asked Haron what action he would take as the chairman of the boda boda, and Haron told him not to look for him. Thereafter, Haron and the riders left with Ali. He learnt the next day that Ali had died. 4. Stephen Wafula Murenga (Stephen), Pw4, testified as follows. He is a boda boda rider. He knows the accused, who is the Chairman. He is in charge of the Teremuko stage. On 18.7.2022 at 7.00pm or 7.30 pm, he was at Teremuko, sheltering from the rain. He saw three motor bikes coming from the Kanduyi side. They were being driven fast. One turned to go along Nzoia road. The last motor bike was with Harun Barasa. He left the place about 7.30pm to go home. On the 19th, the OCS asked him to see him. He was asked what happened at Muteremuko. He was told that someone had been murdered and that Harun had been arrested. 5. Doctor Elly Kosgei, Pw5, testified that he performed a post-mortem on the body of Ali Olwabi on 21.7.2022. He noted the following on external appearance. The body had a deep cut wound on the head with a disfigured face. There was a fractured mandible and maxilla, which was depressed. On internal appearance, the head had a comminuted, depressed frontal temporal fracture, with severe brain tissue damage. Part of the brain tissue was missing. He formed the opinion that the cause of death was a severe head injury. He produced the post-mortem report as P ext no. 1. 6. Juma Mashindalo Sijenyi (Sijenyi), Pw6, gave evidence as follows. The deceased was his nephew. He attended the post-mortem at Bungoma Hospital. The deceased sustained head injuries. 7. Linnet Nekesa Toyo (Linnet), Pw7, testified as follows. She knows Christine and Ali, the deceased. On 18.7.2022 at 600pm, she received a call from Pamela, the sister of Pw1, asking whether Pw1 was at her place. Pamela asked her to get Pw1, as her husband was going to be killed. She immediately called Pw1 and informed her. Christine told her that she had heard her husband had been arrested by boda boda riders, but she was afraid of following them. They met, and Christine decided that they should report the matter to the police. Whilst they were together, Ali kept calling her, saying he was going to be killed. They rode to Lusaka road, the place Ali said they were, but did not find him. As they inquired about Ali, a lady told them that a person had been killed at Muteremuko. She left Christine to go and confirm. She confirmed that Ali had been killed. 8. No. 65450 P.C Samuel Liu, Pw8, testified as follows. On 19.7.2022, he was on duty with his colleagues when he received a call from Inspector Muthomi, the OC Crime, who informed them that a body was lying in the Mteremuko area. They went to the scene and found the body of Ali Marende. They took the body to the mortuary. The next day, they began their investigations and took statements from the wife and the brother. On 20.7.2022, they arrested the accused, who was named in the witness statements. The post-mortem was conducted on 21.7.2022. **DEFENCE CASE** 1. Haron Barasa Wanyonyi, Dw1, testified that he is a boda boda rider and the overall chairman. There are other chairs for various stages. On 18.7.2022 at 5.30pm, he was in the office with another official, Titus Mafura. A client, Marceline, went to the office. She complained that a boda boda rider had run away with her goods. As he listened to her, a group of about 20 to 30 boda boda riders went to his office. They complained that a client had not paid the fare. He asked them to wait outside while he attended to Marceline. They said they were in a hurry. He said they would meet at the police station. The customer who had not paid the fare was with them. He is the deceased Ali. He identified the chair of the stage at Shell, Emmanuel. After finishing with Marceline, he went to the police station. On his way, he stopped at Amili Chemist to buy medicine for his sick child. He did not find the riders at the police station. He was told at the report office that no one had gone there. The riders on the road told him that there were many boda boda riders along Kanduyi roundabout. He went there and found over 100 boda boda riders. Emmanuel was there, and he asked him why he did not go to the police station. He told Emmanuel to go to the police station as he went home to drop off the medicine. He never saw Pw2 or Pw3 that night. Pw2 and Pw3 lied. Titus Wafula took him home. He went home at 7.30 pm. He stayed with Titus till 9.00pm, then he left. The next day he got a call from Bungoma Police. He was asked to go to the police station to help with investigations. Then he was charged alone. No evidence of the call was adduced in court. He does not have a good relationship with Pw4; they disagreed with him in 1981. He was vying for the chairmanship. As they campaigned, and while lining up, his line was longer and Emmanuel’s was short. Emmanuel told his wife and asked her to go and take her out of the line; she pushed him and he pushed her. Pw4 and the wife reported. They lodged a charge, and he was charged, but he was later released. Haron told court that it was a lie that he was seated behind a bike going with the deceased. On the material day, he had a black shirt, long trousers, a reflector and a helmet, so what the witness said he had on was not correct. There was no parade done. He saw Pw3 in court for the first time. The way from Mteremuko to Khalaba has no street lights. The investigating officer did not produce the sketch plan of the place in court. None of the witnesses stated that they saw him injure the deceased. 2. Chrispinus Willis Barasa, Dw2, testified that he does boda boda work. The accused is their overall chairman. In 2018, his stage was the Mteremuko stage. They held elections for the chairman and leadership positions in 2018. Haron contested the elections. Haron and Stephen were the contestants. Haron won the elections. There was a fracas during the elections. Haron’s line was longer. Stephen was not happy. Stephen sent his wife to push Haron. They separated them. Stephen held Haron by the neck. The two have not agreed since then. They quarrel whenever they meet. The case ended after they went to the police station. On 18.7.2022, he received three passengers who were going to Nambale. They were three riders. Each carried a passenger. The other riders were Jirus Simiyu and Stephen Wafula Murenga. They arrived at their destination at 8.00 pm. They returned to town, the three of them. On returning, they went to Total petrol to fuel. Stephen lied in court, claiming he was at the Mteremuko stage at 7.30pm. There was a grudge between Stephen and the accused over the 2018 elections. 3. Mildred Nelima Mayenga**,** Dw3, testified as follows. The accused is her husband. He is a boda boda rider and the chairman. On 18.7.2022, he was at home. The accused was with her in the house. He left for work with Titus Mufura. He returned home at 7.30pm., still with Titus Mufura. He was wearing black trousers, a black shirt, and a reflector. The accused usually returns home between 8.00pm and 9.00pm. He returned early because the child was sick. She had called him and told him to buy painkillers. On the 19th, the accused left for town. She heard he had killed someone. The accused called her from the police station. She went to the police station and found him there. The police told her that he had killed someone at 8.00 pm the previous day. She was with the accused at 8.00pm on 18.7.2022. 4. Jarius Simiyu, Dw4, gave evidence as follows. He runs a boda boda business. On 18.7.2022 at 5.00pm, he was at Mteremuko stage. He picked up a client who wanted to hire three riders. She was travelling to Nambale. He was with Stephen Murenga and Christanus Barasa. They returned at 9.00 pm. and went to Total petrol station to refuel. He then went home. The next morning, he went to the stage and heard that their chairman, Haron, had been arrested. Stephen did not tell the truth in court. The accused did not kill the deceased. Stephen was on safari at the alleged time. 5. Merceline Nasipondi Wekesa, Dw5, testified that on 18.7.2022 at 4.00pm she was at Chepkube market. She bought twenty kilos of maize. She hired a rider named Moses. Moses disappeared with her maize. A rider took her to the boda boda office. She arrived at the office at 5.30pm. She found the accused Haron and reported the incident. The accused called other riders to find out whether they knew the rider. The motorcycle's registration number was KMDU 777J. Whilst in the office, she saw other riders arrive who wanted to see the chairman. They wanted his assistance because someone had been ferried to Maseno but had not paid the fare. He listened to them and then asked them to wait outside. They made noise, saying they were being delayed. He told them to take the report to the police if they could not wait. The two riders who had entered the office left. She left the place at 6.00pm. He told her that he would request his colleagues for the details of the rider and that she should return to the office at 1.00 pm the next day. The next day she went back but found the door locked. She heard rumours that he had been arrested. She went to the police station and was told that he had been arrested on allegations that he had killed someone. 6. Titus Mafura, Dw6, testified as follows: he is a boda boda rider and knows the accused. On 18.7.2022, between 4.00 pm and 5.00 pm, he was at their boda boda office. He is the secretary. They received a report from Marceline that a boda rider had disappeared with her luggage. As they tried to assist her, Emmanuel, the chairman of the Shell stage, went to their office and reported that they had a client who had been taken to Maseno but had failed to pay the fare. The accused told them to wait outside, as they wanted to come in. They felt they were being delayed. The accused asked them to go to the police station. He saw the client and the rider in the group of boda boda riders. There were no signs that the client had been beaten. There was no threat that anyone’s life was in danger. They left the office at 6.00pm with the accused to get medicine for his sick child. They went to Bungoma police station to find out if the boda people had gone there. They found that they had not. Whilst on the main road, boda boda riders told them that there were a lot of boda boda riders at Kanduyi boda boda. They went to Kanduyi and found over 100 boda people. He identified only one person, Emmanuel, from the crowd. The accused told Emmanuel to go to the police station. They proceeded to the accused’s home. They were using his motorcycle. The accused’s bike was at the garage. They arrived there at 8.00pm and he stayed until 9.00 pm. It is a lie that the accused killed someone between 7.00pm and 8.00pm on 18.7.2022. **SUBMISSIONS** 1. Parties filed written submissions. I have carefully read and considered them. The prosecution submitted that the death, its cause, and proof of the death were established, and that the deceased died due to an unlawful act. Regarding whether the accused caused the deceased’s death, it was submitted that there was evidence from Pw1, Pw2 and Pw3 which implicated the accused. On malice aforethought, it was submitted that Pw2 testified that the accused threatened to kill the deceased and that the deceased sustained injuries to the head. On the defence raised, it was submitted that the evidence of Pw1, Pw2 and Pw3 was cogent and not challenged by the defence evidence, which painted a scenario in which the accused was arrested only because of his position as the chairman of motorcycle riders in Bungoma Town. The prosecution evidence tendered against the accused was overwhelming and warranted a conviction. 2. The defence accused submitted that the prosecution had failed to prove its case beyond reasonable doubt. It was submitted that none of the 8 witnesses saw the accused assault the deceased. Pw4 stated he saw the deceased seated on a motorcycle, sandwiched by the accused, whom he described as an enemy of the accused, as they had had grudges. The defence is clear that Stephen had gone to Nambale with his fellow boda boda colleagues. The descriptions given by the prosecution witnesses of what the accused had put on did not match. The officer alleged to have conducted an identification parade was not called to testify; therefore, the accused was not positively identified. Pw2, Pw3 and Pw4 testified that they saw the accused, but they did not describe the intensity of the light that night. Reliance was placed on the case of Cleophas Otieno Wamunga vs Republic (1989) eKLR. On analysis of the evidence, it was submitted that Pw1, Pw2, Pw3 and Pw4 were liars. There was bad blood between Pw4 and the accused, which is why he lied by saying he was at Mteremuko whilst he was not there, and thus his evidence could not be relied on (see Lukas Okinyi Soki vs Republic Kisumu Criminal Appeal No. 26 of 2004). It was further submitted that the accused raised a defence of alibi; he stated he was home between 7.00pm and 8.00 pm, and he called his wife and fellow rider to support his evidence. It was stated that the prosecution did not invoke section 309 of the Criminal Procedure Code to rebut the defence of alibi (see Elias Kiamati Njeru v Director of Public Prosecutions [2015] eKLR). It was also submitted that the investigating officer did not conduct thorough investigations, as he did not produce the sketch he said he had drawn. From the evidence adduced, the deceased was killed by mob justice by boda boda people who cannot be easily identified. Where there is a doubt, it should be given to the accused person. Reliance was placed on two cases, Mary Wanjiku Gichura vs Republic and 104 JOO vs Republic [2015] eKLR. **ANALYSIS AND DETERMINATION** 1. I have carefully considered the evidence, the submissions by the parties, and the law. In a charge of murder, the prosecution has the duty of proving the following ingredients beyond reasonable doubt: the fact and cause of death of the deceased, that the death was caused by an unlawful act or omission on the part of the accused, and that the accused acted with malice aforethought as defined under section 206 of the Penal Code. 2. Section 203 of the Penal Code, under which the accused is charged, provides as follows: - Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 1. The section sets out the elements of the offence of murder that the prosecution must prove 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.” **Death and cause of death** 1. The fact of death is not in dispute. Pw1 and Pw2 saw the deceased's body. Pw5 testified that the body of the deceased had a deep cut wound on the head with a disfigured face. There was a fractured mandible and maxilla, which was depressed. On internal appearance, the head had a comminuted, depressed frontal temporal fracture, with severe brain tissue damage. Part of the brain tissue was missing. He formed the opinion that the cause of death was a severe head injury. . I find that death and the cause of death were proved. **Whether the accused caused the unlawful death of the deceased** 1. The prosecution's case rests on the evidence of Pw1, Pw2, Pw3 and Pw4. None of these witnesses saw the accused commit the murder. The evidence adduced was circumstantial. In Abanga alias Onyango v Republic, Cr. App. No. 32 of 1990, the court 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 from 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. Pw1 testified that she talked to the accused, who told her that the deceased had not paid a rider. There was no evidence adduced to confirm this call. Pw2 and Pw3 testified that the accused went to Pw2’s place with the deceased and left with him, issuing threats. None of these witnesses saw the accused kill the deceased. The other evidence that links the accused to the alleged murder is Pw4’s evidence.Pw4 told the court that he saw the accused in the Teremuko area; he did not identify the person who was being carried on the motorbike. He did not witness anything more. The accused has also raised a defence that, although he received the report on the non-payment of the riders' fees, he did not involve himself in the matter beyond that. He called witnesses who testified that they were with him the same evening. I agree with the defence that the prosecution did not invoke the provisions of section 309 of the Criminal Procedure Code to rebut the defence of alibi. 2. An accused person bears no burden of proving an alibi. The burden always rests with the prosecution. In Kiarie v Republic [1984] KLR 739, the court held that: “An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge preferred against him does not in law thereby assume any burden of proving that answer, and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable; Said v Republic [1963] EA 6.” 1. In my view, the defence raised by the accused should have been investigated, given that none of the witnesses saw the accused cause injury to the deceased. From the evidence of Pw2 and Pw3, by the time they saw the deceased, there were other boda boda riders with the deceased. Could this have been a case of mob justice? Was the accused really with those people, or was he at home as he claimed? A threat, without sufficient corroborative evidence, is insufficient to find that the accused injured the deceased. Circumstantial evidence must unerringly point to the accused. In this case, the prosecution failed to investigate the alibi. In my view, the evidence adduced does not unerringly point to the accused as the one who injured the deceased. I find that the prosecution's case has not been proved beyond reasonable doubt. **Whether the prosecution has proved malice aforethought** 1. Since the prosecution has failed to prove that the accused inflicted the fatal injury, the question of malice aforethought does not arise. 2. In conclusion, this court finds that the prosecution failed to prove the charge of murder against the accused beyond reasonable doubt. The accused, Haron Barasa Wanyonyi, is found not guilty of the offence of murder of Ali Olwabi Marende and is acquitted unless otherwise lawfully held. **Dated, signed** and **delivered virtually** this **15th** Dayof **July 2026** **R.E.OUGO** **JUDGE** **In the presence of:** **Haron Barasa Wanyonyi/ Accused** **Mr. Wamalwa – For the Accused** **Miss Matere - For the State** **Wilkister / Minah - C/A**