https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9646

Republic v Wekesa (Criminal Case 95 of 2014) [2026] KEHC 9646 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 9646 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Case 95 of 2014 JRA Wananda, J July 3, 2026 Between Republic Prosecution and Yohana Kapchanga Wekesa Accused Judgment 1.The accused person is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on 23/12/2014, in Eldoret West District within Uasin Gishu County, he murdered one James Otuoma. 2.I laid out the chronology of events of this case in my Ruling on “case to answer” which I delivered on 1/03/2024, as follows:“ 2.The accused was initially represented by Mr. Nyandoro Advocate but who was later replaced by Mr. Githaiga Advocate. The accused took plea on 22/01/2015 and pleaded not guilty. The case then proceeded to trial wherein the prosecution called 8 witnesses. PW1 to 6 testified before Sewe J upon whose transfer, the matter was taken over by Ogola J who then took the evidence of PW7. Upon Ogola J’s transfer, I took over the case and PW 8 therefore testified before myself. The Prosecution then closed its case on 15/05/2023. 3.I did not therefore see or hear the first 7 witnesses and I am therefore only relying on the record. For avoidance of doubt however, I confirm that since the case was part-heard when I took it over, directions were taken under Section 200(3) of the Criminal Procedure Act and pursuant thereto, the parties agreed, by consent, to proceed with the trial before me from where it stopped. There was therefore no demand to recall any witnesses or begin the case “de novo”. 3.Regarding the evidence presented at the trial, I had, in my same Ruling, also recounted the testimonies of the Prosecution’s respective witnesses, but which I will again recount. 4.PW1, Rose Zuma Owino, is the mother to the deceased. She testified that on 23/12/2014 at about 11.30 pm at night she heard some noises and stones being thrown onto the deceased's house, she came out and heard people calling the deceased's name, they used the name “Manager” and stated that they had come to visit the wife to the deceased, and that they did not know that the deceased was at home. PW1 stated that she recognized the voice of the accused as he was her tenant, that she heard her the deceased respond by asking them whether they had lost their way, or whether they needed help, that she heard the deceased open his door and come out and escorted the accused and his companion to the gate, that she saw the accused, his companion and the deceased when they reached her gate, that PW1 asked the deceased to go back but the deceased insisted on showing them the way, and after a short distance, she heard them quarrelling and struggling. She testified that there was moonlight and so she was able to see them well, that she heard them pull the deceased away, she ran back to the house and woke up her husband, John Owino (PW3), and asked him to go and rescue the deceased, the husband got up and went to the scene and then asked PW1 to take to him a “lesso”, she took the “lesso” but found the deceased bleeding, that the accused was still there standing near the deceased who was bleeding from the thigh, she then fetched a wheelbarrow to take the deceased to hospital, and she also screamed to raise alarm and alert neighbours. She stated further that the deceased told her that he had a phone and torch which may have dropped at the scene and asked PW1 to go back and check for them, PW1 went to check and found the torch but not the phone, that she also found a knife at the scene, and she took the items and gave to her husband. She testified that the accused did not run away, and that as they were taking the deceased to hospital, the accused tried to speak to her but she told him not talk to her as he had wounded her son, the deceased was taken to hospital, and at around 12:00 midnight, her husband called on phone and informed her that the deceased had died. PW1 then identified the accused in the dock and also identified the knife referred to above. In cross-examination, she conceded that she did not see the accused stab the deceased. 5.PW2, Kennedy Chinwani Owino, stated that he was an uncle to the deceased, and a neighbour. He testified that on the material night, between 11.00 pm-12.00 midnight, he was asleep when he heard noises from people who were passing by his house, he recognised their voices and they were asking for the whereabouts of the deceased, he recognized the two people “Anthony” and the accused, and that the accused told PW2 to go back to sleep. He stated that “Anthony” claimed to be a policeman and threatened to shoot him, he recognized them because there was moonlight and he also recognised their voices since they were people he knew well. He testified further that the two proceeded to the house of the deceased about 30-40 metres away, and he then heard stones being thrown onto the roof of the deceased’s house, he could see as he was standing near the fence, that the deceased came out of his house and asked the two why they had woken him up. PW2 stated that the deceased asked the two to go away and escorted them towards his parents' gate, they continued arguing before he heard PW1 crying while stating that the deceased had been stabbed with a knife, that he went to the scene and found the deceased lying down bleeding from the right thigh, and he also found the accused at the scene with the parents of the deceased. He testified that “Anthony” was not there when he arrived, the deceased was crying out in pain and his mother was trying to dress the wound with a “lesso”, the deceased was taken to a nearby clinic for first where he was pushed on a wheelbarrow, and that as the deceased was being attended to, he (PW2) returned to the scene with PW1 and found a knife. He added that the deceased died while undergoing treatment, they then reported the matter to the police, and that members of the public found “Anthony” and arrested him, and the accused was also later arrested. He, too, then identified the accused in Court. 6.PW3, John Onyango Owino, is the father of the deceased. He testified that on the material night, at around 11.00 pm, he was asleep in his house when his wife (PW1) woke him up and informed him that stones being thrown onto the roof of the deceased's house. He stated that he heard voices of people whom he recognised as the accused and one “Anthony” who were his tenants, after sometime his wife who had gone out to monitor the situation came back and asked him to go and rescue the deceased as the two men could cause him harm, that he went to the scene and found the accused lying on top of the deceased, he asked the accused to stop the fight, instead, the accused hit him (PW3) on the forehead and he began to bleed from the nose and the accused warned him not to get involved, and the deceased cautioned him to be careful because the two assailants were armed with knives. He testified further that “Anthony” then charged at him with a knife and stabbed him (PW3) on the left shoulder, that he picked a wood for defence and when “Anthony” charged at him the second time, he hit “Anthony’s right hand which held the knife and “Anthony” disappeared, and that he did not realize that the accused had been stabbed and was bleeding. He stated that the deceased never woke up from where he was lying as e had been stabbed on the left thigh, PW3 then called the mother (PW1) and asked her to bring a lesso with which they tied the wound, that as the deceased was too weak to get up, they transported him on a wheelbarrow to the clinic where he was given first aid and referred to hospital where the deceased was taken but died while undergoing treatment. He stated that PW1 and PW2 returned to the scene and found a knife which PW2 brought to him and he took it to the police. He stated that both the accused and “Anthony” were arrested by members of the public and beaten by a mob, and that “Anthony” died as a result. 7.PW4 was Grace Ayuma. She introduced herself as an aunt to the deceased and a neighbour to both the accused and the deceased. She stated that she was asleep in her house when she was woken up around 8.00-9.00 pm by some noise coming from the deceased's house, she got out and saw the accused with another man whose name she did not know, heading towards the side where the deceased resided, she went back to sleep but heard the deceased calling out for help, she again went out towards the scene and found people in an open field near her mother-in-law’s house, including the deceased’s father (PW3) who was crying, and the deceased lying down bleeding, and the accused. She testified that she noted that the deceased had an injury on the left thigh and the father was trying to tie the wound, the deceased’s mother then came with a wheelbarrow onto which they placed the deceased and he was taken to Lumakanda but at about 5:00 am, she was informed that the deceased had died. In cross-examination, she stated that she heard the deceased shouting “Mummy Mummy wananiua.”, that the deceased mentioned the name of the accused “Kapchanga”, and also stated that “akina Kapchanga wananiua” She also stated that the deceased told her that "Kapchanga na Anthony wananiua”, and vowed to evict them from the rentals once he recovered. 8.PW5, Jeremiah Okello Owino, stated that he is an uncle to the deceased and a neighbour. He testified that on the material night he was sleeping in his house when he heard some commotion within his homestead, he woke up and opened his sitting room widow to check what was happening but it was dark, he heard somebody state that “sisi ni watu hatari hatutaki mchezo”, he did not go out as he was afraid but he later came to learn that the deceased had been stabbed, and that he died while undergoing treatment. He stated that he was present when the Post-Mortem on the deceased was conducted. In cross-examination, stated that the incident took place around 12.00 midnight. 9.PW6 was Elisha Opondo Owino. He stated that he is an uncle to the deceased, and that he, too, was present when the Post-Mortem on the deceased was conducted. 10.PW7 was Dr. Brian Inima Kenyeni. He stated that the Post-Mortem on the deceased’s body was conducted by one Dr. Nicholas Inwani with whom he had worked since 2014 at Webuye County Hospital, and who is currently based in Nairobi. He then produced the Post-Mortem form on behalf of Dr. Inwani, and testified that the cause of death was confirmed to be “cardio-pulmonary arrest secondary to haemorrhagic shock secondary to a penetrating wound on the left femoral artery”. He explained that the deceased sustained a deep cut wound on the left thigh which carries blood to vital organs, and that he lost too much blood which caused shock and which led to his death. 11.PW8 was Police Constable Cosmas Mutinda, the Investigating Officer in this matter. He testified that he was called by his Senior on 23/12/2014 at around 9.00 am who instructed him and another officer to accompany the Senior to Lumakanda Police Station following a murder that had occurred within the area, that when they arrived, they found a police vehicle with a dead body, a suspect was being held in the cells and he established that the body was of one “Anthony” who was involved in the murder of the deceased together with the accused, and who had been lynched by members of the public but the accused had been rescued. He stated that they proceeded to the scene outside PW5’s house and found evidence of a fracas, blood was splattered outside and they recovered a blood-stained sword, they picked witnesses and went with them to the station where they recorded their statements, most of whom witnessed the incident and confirmed that they heard the accused and the deceased shouting at each other. He testified further that the mother of the deceased came out when she heard stones thrown at her son’s house, she saw the accused passing headed to the direction where the deceased resided, that after a while, she heard a commotion outside her son’s house, her husband PW3 came out and found the suspects pinning the deceased down and who was bleeding on the left thigh, he confronted them, neighbours who were also part of the family appeared and the suspect disappeared. He also added that in the morning, the suspects were encountered by members of the public at Lumakanda junction, one was killed and the other (accused) was rescued by the police. He testified further that he witnessed the post-mortem conducted on the body of the deceased, that the body had stab wounds on the left thigh also bruises on the face, and that they took blood samples during the post-mortem and also a piece of cloth and the sword which were all blood-stained. He further testified that the blood samples were tested at the Government Analyst and the Report that came out established that the samples taken from the deceased and those taken from the sword matched, meaning that the sword was the murder weapon. He stated that he also established that the deceased and the accused were friends and the accused had rented a house from the deceased’s father. 12.As aforesaid, upon close of the Prosecution case, by my Ruling dated 1/03/2024, I found the accused as having a case to answer and put him to his defence. The accused then opted to give sworn testimony, which he did as DW1 on 2/12/2025. He did not call any other witness. 13.In his defence, the accused, led by Mr. Odhiambo, his Counsel, testified that on the fateful date, 22/12/2014, he left his workplace at the Kakamega County Government with the said “Anthony” at around 5.00 pm and returned home to their shared rental premises, which was owned by the family of the deceased, and that at around 7.00 pm, they went to deceased’s grandmother’s premises where they found alcohol which “Anthony” bought 5 litres thereof and they sat down to drink. He stated that the deceased later came at around 8.30 pm together with his father (Landlord) (PW3), that the deceased and “Anthony” started quarrelling with the deceased accusing “Anthony” of seducing his wife, accusations which were supported by the deceased’s father. He testified that a fight then ensued between “Anthony” and the deceased, that the deceased had a knife which he wanted to stab “Anthony” with, that the father also had a walking stick which he hit “Anthony” with, and “Anthony” picked a piece of firewood which hit “Anthony” with on the hand causing the knife to fall down. He stated that “Anthony” then picked the same knife and stabbed the deceased with it causing the deceased to fall down, people fled while others locked themselves indoors, the deceased’s father also fainted, probably out of shock, and only he (accused) remained behind. He stated that the father woke up after about 15 minutes, the mother also came, and together they put the deceased on a wheelbarrow and took him to the road to obtain transport to take him to hospital, eventually somebody called an ambulance which came, picked the deceased and took him to hospital. He stated that “Anthony” fled after stabbing the deceased, and that he later learnt that the deceased had died on that same night. He testified that thereafter, the deceased’s brothers raided the house that the accused shared with ‘Anthony” at about 11.00 pm, and collected “Anthony”, only for him to learn in the morning that “Anthony” had been killed by a mob. He stated further that on 23/12/2014, relatives of the deceased also confronted and beat him up at his workplace accusing him of killing the deceased, whose nickname he confirmed was “Manager”, and he was later arrested. Regarding the stabbing of the deceased, he stated that he saw it all as there was sufficient light from a pressure lamp where they were sitting. In cross-examination, he explained that their rental house was in the same building as the deceased’s grandmother’s premises where they were drinking the alcohol, and the home where the deceased resided was about 5 metres away. He denied that they went to the deceased’s home on that night, and insisted that it is the deceased and his father who came to where the accused and “Anthony” were drinking alcohol. He also confirmed that he knew the deceased, who was his friend, and also knew his father (PW3) and uncle (PW5), whom he claimed was the one selling the alcohol, and also knew another uncle (PW2). He claimed that the deceased and his father did not come to drink as they started quarrelling immediately they arrived, that the deceased had a knife which he did not even conceal, which knife other people also saw. He reiterated that the incident took place at around 8.30 pm, and denied that he and the accused were accomplices. 14.Upon close of the trial, the parties filed written Submissions. The defence Submissions filed through Messrs Munyaka Githaiga & Co. Advocates is dated 26/01/2026, while for the State, Prosecution Counsel Claire Muriithi handed over a copy of her Submissions dated 4/02/2026. The Submissions by the State is however not filed in the online Judiciary Case Tracking System (CTS) portal as required. I will nevertheless, in the interest of justice, consider the same, but with strict directions that the same be now filed in the CTS. Prosecution’s Submissions 15.Counsel for the State restated the ingredients that the Prosecution must prove to secure a conviction on the charge of murder, and cited the case of Anthony Ndegwa Ngari vs. Republic [2014] eKLR. On the issue of the death of the deceased, she submitted that the same is not disputed as the Post-Mortem Form was produced, and also that PW1, PW2, PW3, and PW4 all testified that they saw the deceased with an injury on his left thigh. On the issue of the unlawful act by the accused which caused the death of deceased, Counsel agreed that no one saw the accused inflict the wound that caused stab wound that caused his death and that therefore the evidence against the accused is largely “circumstantial”. She submitted that the Prosecution is also relying on the principle of “joint criminal responsibility” and the doctrine of “common intention” as recognized under Section 9, 20 and 21 of the Penal Code. She asserted that PW1, PW2 and PW3 corroborated each other on what transpired on the material night and she then recounted their testimonies, including that the accused and one “Anthony” were seen with the deceased, that there was moonlight, and as such, the witnesses could clearly see and identify the them as they were also well-known to them, that the trio were heard quarrelling and after some time, they were seen walking towards the gate, that the deceased ignored his mother’s (PW1) advice to return inside, that it later it transpired that the deceased had been stabbed and was lying down bleeding from the thigh and the accused was also still at the scene. She also highlighted PW3’s testimony that when he went out to check, he found the trio in a fight and when he attempted to intervene, he, too was assaulted by the accused, and was stabbed by “Anthony”, the deceased warned him that the assailants had knives, and that a knife was indeed later recovered from the scene. On the issue of “circumstantial evidence, Counsel cited the case of Abanga alias Onyango vs. Republic, Cr. Appl. No. 32 of 1990 (UR). In respect to the doctrine of “common intention”, she cited the case of Ismael Kiseregwa & Another v Uganda, CA Crim. Appeal No. 6 of 1978 and again recounted PW2 and PW3’s testimonies on the conduct of the accused and his counterpart before and during the confrontation, including throwing stones on the deceased’s house, and “Anthony’s” act of attacking PW3 by the accused when he (PW3) attempted to save the deceased from the assault, conduct which, she contended, proved their “common intention” even though there is no direct evidence on who between the two committed the final act of stabbing the deceased. Regarding the accused person’s defence testimony that it is not him but “Anthony” who stabbed the deceased, Counsel submitted that it is not helpful as “Anthony” would, if he remained alive, have still been his co-accused. She also dismissed as not absolving the accused of “criminal responsibility”, the accused’s testimony that he never escaped from the scene. She also downplayed the omission to subject the recovered knife to forensic examination which omission, she urged, did not negate the fact that the accused was placed at the scene of crime. Counsel then submitted that the circumstances preceding the attack, the attack itself, and the aftermath, taken cumulatively, form a chain so complete that there is no escaping from the conclusion that the accused is guilty. Defence Submissions 16.Defence Counsel, on his part, asserted that the Prosecution failed to prove its case beyond reasonable doubt since, in his view, the Prosecution did not establish that it is the accused who murdered the deceased as none of the witnesses saw the accused commit the stabbing. He recounted the witness’ testimonies. He also submitted that none of the witnesses testified to being privy to a plan involving the accused to murder the deceased, the accused was never found with blood-stained clothes, no samples were ever taken from the accused in terms fingerprints or blood to ascertain whether it matched with the weapon, and that the Prosecution never established the owner of the murder weapon to be the accused person. He also observed that the accused, in goodwill, was one of the people who were involved in attempting to rush the deceased to receive medical attention, and that the accused never sought to escape or go into hiding, thus demonstrating his innocence Determination 17.Section 203 as read with 204 of the Penal Code under which the accused is charged provide for the offence of murder and the punishment therefor. The provisions are premised as follows:203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.204. Any person who is convicted of murder shall be sentenced to death.” 18.The Prosecution, to secure a conviction, therefore has the duty to prove, beyond reasonable doubt, that the accused, by an unlawful act or omission, caused the death of the deceased through “malice aforethought”. For the Court to make a finding that an accused person committed the offence of murder, the Prosecution must therefore establish the following elements; (a)death of the deceased, (b) proof that the accused person committed the unlawful act which resulted in the death of the deceased: and, (c) malice aforethought. 19.In this case, the death of the deceased and cause thereof are not disputed. According to the testimony of the doctor (PW7) who produced the Post Mortem Form, the cause of death was ““cardio-pulmonary arrest secondary to haemorrhagic shock secondary to a penetrating wound on the left femoral artery”. PW1, PW2, PW3, and PW4 all also testified that they saw the deceased with an injury on his left thigh. 20.As aforesaid, being a criminal case, the Prosecution bore the duty to prove the charge beyond any reasonable doubt. The term “beyond reasonable doubt” was described and/or explained in the leading case of Woolmington v Republic 1935 AC 462, as follows:“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’ 21.On whether there is proof that the accused is the person who committed the unlawful act which resulted in the death of the deceased, it is not in dispute that there was no witness who claimed to have seen the accused inflict the injuries that resulted in the death of the deceased. The evidence can therefore be described as “circumstantial”. 22.As to what constitutes “circumstantial evidence” and to what extent it can sustain a conviction, the Court of Appeal, in the case of Ahamad Abolfathi Mohammed & 2 others v Republic (2018) eKLR, stated the following:“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.” 23.As to the manner in which “circumstantial evidence” ought to be established such that it can sustain a conviction, the Court of Appeal, in the case of Abanga alias Onyango v Republic Criminal Appeal No. 32 of 1990, guided as follows:“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." 24.The Court of Appeal, again, in the case of Joan Chebichii Sawe v Republic [2003] eKLR, the Court observed 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 his 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.” 25.It is therefore generally agreed that for “circumstantial evidence” to carry the day, the Prosecution must establish that there are no other co-existing circumstances which could weaken or destroy the inference of guilt. It is also agreed that in a case reliant on “circumstantial evidence”, each link in the chain must be closely and separately examined to determine its strength before the whole chain can be put together and a conclusion drawn that the chain of evidence as proved is incapable of explanation on any other reasonable hypothesis except the hypothesis that the accused is guilty of the charge (see Mwangi & Another V Republic (2004) 2 KLR 32). 26.In determining whether the “circumstantial evidence” in this case is sufficient to establish the accused person’s involvement or participation in the murder, I find it necessary to recount, in summary, the salient portions of the narratives given by PW1, PW2, PW3, PW4, and PW5. 27.PW1, Rose Zuma Owino, the deceased’s mother, testified that on 23/12/2014 at about 11.30 pm she heard noises and stones being thrown onto the deceased's house, she came out and heard people calling the deceased’s nickname “Manager”, and said that they had come to visit the deceased’s wife, and that they did not know that the deceased was at home. PW1 stated that she recognized the voice of the accused as he was her tenant, she heard the deceased respond by asking them whether they had lost their way or whether they needed help, that she then heard her the deceased open his door and come out, and escorted the accused and his companion to the gate, that he saw them trio well when they reached her gate, that she (PW1) asked the deceased to go back but the deceased insisted on showing them the way, and that after a short distance, she heard them quarrelling and struggling. She testified that there was moonlight and so she was able to see them well, that she heard the two pull the deceased away, she ran back to the house and woke up her husband, PW3, and asked him to go and rescue the deceased, the husband got up and went to the scene and asked PW1 to take to him a “lesso”, which she did but found the deceased bleeding and the accused was still there standing near the deceased, who was bleeding from the thigh. She stated further that the deceased told her that he had a phone and torch which may have dropped at the scene and asked PW1 to go back and check for them, and that PW1 went back to check and found the torch but not the phone, and she also found a knife, which the items she took and gave to her husband. 28.PW2, Kennedy Chinwani Owino, an uncle to the deceased and a neighbour, testified that around 11.00 pm-12.00 midnight, he was asleep when he heard noises from two people who were passing by his house whose voices he recognised and they were asking for whereabouts of the deceased, he recognized the two as “Anthony” and the accused as there was also moonlight and they were people he knew well, and that the accused told him (PW2) to go back to sleep. He stated that “Anthony” claimed to be a policeman and threatened to shoot him, that the two proceeded to the house of the deceased about 30-40 metres away and he then heard stones being thrown onto the roof of the deceased’s house, he could see as he was standing near the fence, and that the deceased came out of his house and asked the two why they had woken him up. PW2 stated that the deceased asked the two to go away and prodded them towards his parents’ gate as they continued arguing before he heard PW1 crying out that the deceased had been stabbed with a knife, that he went to the scene and found the deceased lying down bleeding from the thigh, and he also found the accused at the scene with the parents of the deceased. He testified that the deceased was crying out of pain and his mother was trying to dress the wound with a “lesso”, the deceased was taken to a nearby clinic on a wheelbarrow, and that PW2 returned to the scene with PW1 and recovered a knife. 29.PW3, John Onyango Owino, the deceased’s father, testified that at about 11.00 pm, he was asleep in his house when his wife (PW1) woke him up and informed him that stones were being thrown onto the roof of the deceased's house. He stated that he heard voices of people whom he recognised as the accused and one “Anthony” who were his tenants, that after sometime his wife who had gone out to monitor the situation came back and asked him to go and rescue the deceased as the two men could cause him harm, he went out and found the accused lying on top of the deceased and asked the accused to stop the fight, instead, the accused hit him (PW3) on the forehead and he began to bleed from the nose and the accused warned him not to get involved, the deceased warned him to be careful as the two assailants were armed with knives. He testified that “Anthony” then charged at him with a knife and stabbed him (PW3) on the left shoulder, that he picked a piece of wood for defence and when “Anthony” charged at him the second time, he hit “Anthony’s right hand which held the knife who then disappeared, and it is then that he realized that the accused had been stabbed and was bleeding. He stated that PW1 and PW2 later returned to the scene and recovered a knife. 30.PW4, Grace Ayuma, an an aunt to the deceased and a neighbour to both the accused and the deceased, testified that she was asleep in her house when she was woken up at around 8.00-9.00 pm by some noise from the deceased’s house, that she got out and saw the accused with another man whose name she did not know, heading towards the side where the deceased resided, she then heard the deceased calling out for help, she again went out towards the scene and found people in an open field near her mother-in-law’s house, including the deceased’s father (PW3) who was crying and the deceased lying down bleeding, and the accused was also at the scene. She testified that she observed that the deceased had an injury on the left thigh. In cross-examination, she stated that she heard the deceased shouting “Mummy Mummy wananiua.”, that the deceased mentioned the name of the accused “Kapchanga”, and also stated that “akina Kapchanga wananiua” and that "Kapchanga na Anthony wananiua”, and vowed to evict them from the rentals once he recovered. 31.PW8, Police Constable Cosmas Mutinda, the Investigating Officer in this matter testified that the blood samples taken from the knife or sword were tested at the Government Analyst and the Report that came out established that the samples taken from the deceased and those taken from the sword matched, meaning that the sword was the murder weapon. 32.The above testimonies demonstrate the existence of a number of facts. First, they demonstrate that the accused and his larger family was well known to the accused as there was a Landlord-Tenant relationship between them. The testimonies also place the accused at the scene of crime together with the said “Anthony” at around 11.00 pm – 12.00 midnight, as they were seen and positively identified by at least three of the witnesses, and at least two of them even spoke with them. Another fact demonstrated is that there was a knife or sword or such-like sharp object involved, which knife or sword is what was used to stab the deceased, and which was later subjected to a forensic analysis and established to be the murder weapon. The testimonies also demonstrate that the accused and “Anthony” first provoked or lured the accused out of his house by throwing stones onto the roof of his house, that the accused physically assaulted or at least, fought with the deceased and at some point subdued or immobilized the deceased under close watch, encouragement or assistance of, or, with protection by the said “Anthony”, and that the accused was still at the scene even after the accused had been stabbed and was lying down bleeding. The testimonies also demonstrate that the deceased even identified his assailants as the accused (Kapchanga”) and “Anthony” whose names he expressly mentioned to more than one witness and expressly stated that it is the two who were “killing” him, and vowed to evict them from the rentals as tenants when he recovered, which naming may even perhaps have qualified as “a dying declaration” had the Prosecution attempted to invoke the provisions of Section 33(a) of the Evidence Act. The testimonies also demonstrate that the deceased’s father was also assaulted by the accused and stabbed by “Anthony” or he fought with them when he attempted to intervene, that in the process, the deceased warned the father to be cautious as the accused and “Anthony” were armed with knives, and that a knife was indeed later recovered from the scene. 33.The accused, in his defence, basically confirmed that there was indeed a violent altercation, confrontation or fight in his presence, between the deceased and his father (PW3), on one part, and the accused person’s housemate (the said “Anthony”), on the other part, during which the deceased was stabbed and later died. The point of departure is however the accused person’s claim that the altercation occurred, not at the deceased’s home, but at the deceased’s grandmother’s premises where he had gone to drink alcohol with “Anthony”. From the evidence however, the two spots are not far from each other as they were barely 5 metres apart. The other point of departure is the time that the fight and stabbing is alleged to have occurred. While the Prosecution witnesses referred to around 11.00-12.00 pm midnight, the accused mentioned 8.30 pm. The other departure is the claim by the accused that he was not involved in the fight although it happened in his presence. 34.Having carefully considered the accounts given by the Prosecution witnesses, and also the narration presented by the accused, I agree with the Prosecution that the defence was a mere denial, and did not cast doubt on the clear and consistent evidence tendered by the Prosecution witnesses, which, in my view, remained unshaken even in cross-examination. I believe the Prosecution witnesses as their testimonies were sufficiently corroborated and verifiable. The account given by the accused, on the other hand, is easily exposed by the evidence on record as untrue, and I also note that the matters he belatedly raised in his defence were not even seriously put to the Prosecution witnesses in cross-examination for them to respond to. The account given in the defence is clearly an afterthought as it is not supported by other evidence on record. Although I note that most of the Prosecution witnesses were relatives of the deceased and an inference of bias may understandably arise, I did not find any reason to suggest that they were being untruthful or had in any way colluded to “fix” the accused. The accused did not also suggest any motive that would make the witnesses “gang up” against him if he was innocent. To the contrary, the testimony of the Prosecution witnesses remained credible, cogent and irresistible to point at the accused and his accomplice, the said “Anthony” as the joint culprits. I am accordingly satisfied that, contrary to the accused person’s claims, the confrontation took place at the homestead of the deceased and continued to PW5’s compound, not at his deceased’s grandmother’s premises, and that it took place around 11.00-12.00 pm midnight, not 8.30 pm. I am therefore satisfied that it is either the accused or the said “Anthony” who inflicted the stabbing injuries that led to the death of the deceased. 35.The Prosecution invoked the legal doctrine of “common intention” and “joint criminal responsibility” in submitting that the accused is still guilty even though it is not clear who between him and “Anthony” is the one who delivered the fatal blow, that is, the stab wound. Counsel for the State cited Section 9, 20 and 21 of the Penal Code. 36.Section 9(3) provides that:9. Intention and motive(1)............................................................(2)............................................................(3)Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility. 37.Section 20 provides that:20. Principal offenders(1)When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—(a)every person who actually does the act or makes the omission which constitutes the offence;(b)every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;(c)every person who aids or abets another person in committing the offence;(d)any person who counsels or procures any other person to commit the offence,and in the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission.(2)A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.(3)Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with doing the act or making the omission. 38.Section 21 provides that:21. Joint offenders in prosecution of common purposeWhen two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. 39.“Common intention” is therefore a doctrine is a legal doctrine providing that when two or more people form a shared plan to commit a crime, each person is held fully responsible for any offense committed by any member of the group in furtherance of that plan. Under the doctrine, if a group sets out to commit a crime and someone is killed during the process, all participants can be charged and convicted of murder, regardless of who actually delivered the fatal blow. 40.From the evidence on record, I am satisfied that the accused and “Anthony’s act of jointly going to the home of the deceased at almost midnight armed with a knife or sword, provoking or luring him out of his house by insulting him by asking for his wife, and throwing stones to the roof of his house, fighting or assaulting him when he came out, assaulting his father when he tried to intervene, and lastly, stabbing both the deceased and his father, the accused and “Anthony had formed a prior agreement or shared understanding to commit an unlawful act together, the crime of murder occurred while they were carrying out that specific unlawful purpose in conjunction with each another, and the murder was a probable consequence of executing that original plan. Even if therefore the accused did not directly participate in the extra crime of stabbing, he is still guilty of murder as he knew, or ought to have known, that death of, or grievous harm on the deceased was a likely result of their common plan. In reaching this finding, I am guided by the Court of Appeal decisions in the case of Muchui v Republic (Criminal Appeal E041 of 2021) [2025] KECA 2246 (KLR) (19 December 2025) (Judgment) and, in the case of Eunice Musenya Ndui v R [2011] eKLR. I thus agree with Ms. Muriithi that the accused’s defence that he never escaped from the scene does not absolve him from his “criminal responsibility”. 41.I am therefore also satisfied that in this case, “circumstantial evidence” proving the accused’s guilt has been sufficiently established as there are no other co-existing circumstances which in any way weaken or destroy the inference of guilt against him. I am satisfied that a close and separate examination of each link in the chain herein draws one to the inescapable conclusion that the chain of evidence is incapable of explanation on any other reasonable hypothesis except that that the accused is guilty of the charge. The inculpatory facts are clearly incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. 42.Regarding “identification” of the accused, PW1, PW2, PW3 and PW4 who all testified that they saw the accused at the scene, all stated that the accused was well-known to them as he was neighbour and a tenant of PW1 and PW3. They all also testified that the accused was still at the scene when they arrived, and some even stated that they spoke with him. The witnesses therefore spent sufficient time with the accused, and were also in unison that there was sufficient moonlight to enable recognition of a person. Indeed, the accused, too, confirmed that he was well-known to the witnesses, and also confirmed that he assisted in loading the deceased onto the wheelbarrow in assisting to take the deceased to hospital. Although the incident occurred around midnight deep in the night, and it was therefore dark, I therefore find that the identification of the accused was one of recognition, rather than that of a stranger. In respect to this nature of identification and its reliability, the Court of Appeal, in the case of Reuben Tabu Anjononi & 2 Others v Republic [1980] eKLR, stated that:“……. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. …………………….” 43.Chances of the accused having been mistaken for somebody else is therefore very minimal, almost zero. 44.Considering all the above findings, I am satisfied that the accused is the person who committed or actively participated in the unlawful act which resulted in the death of the deceased. 45.The Prosecution having proved the actus reus against the accused, the next issue is whether “malice aforethought” can be inferred from his actions. This is because the offence of “murder” is only complete when “malice aforethought” is established if, as prescribed in Section 206 of the Penal Code, the evidence proves any one, or more of the following circumstances:(a)an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;(b)Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;(c)An intent to commit a felony;(d)An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.” 46.In the case of Hyam v DPP {1974} A.C. the Court held inter alia that:“Malice aforethought in the crime of murder is established by proof beyond reasonable doubt when during the act which led to the death of another the accused knew that it was highly probable that, that act would result in death or serious bodily harm.” 47.The Court of Appeal, in the case of Bonaya Tutu Ipu & Another v Republic [2015] eKLR, stated further as follows:“.......... In the persuasive decision of Chesakit v Uganda, CR App No 95 of 2004, the Court of Appeal of Uganda stated that in determining a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person.” 48.Further, the Court of Appeal, in the case of Morris Aluoch v Republic [1997] eKLR), quoted Rex vs Tubere S/O Ochen (1945) 12 EACA 63 guided that:“If repeated blows inflicted the injury then malice aforethought could well be presumed but in this case we have to contend with one single blow which caused perforation of the intestine which led to internal bleeding which did not become apparent until the death of the deceased some four days late. 49.From the evidence tendered in this case, it is clear that the accused stabbed, or participated in the stabbing of the deceased using a knife or sword. Anyone who uses a weapon of any nature to strike the any part of the body of another, as the accused did or participated in doing in this case, ought to know that the injuries to be suffered out of that act are capable of causing the death of that other person. The accused cannot therefore be said to have not been aware of the probable impact of the injuries he was, or participated, in inflicting on the deceased. The severity and ferocity of the attack is also demonstrated by the doctor’s finding that the stab wound penetrated “the left femoral artery”. The force used was therefore also clearly excessive and must have been intended to cause maximum harm. These facts, taken together, establishes that the accused had, at least at that point, premeditated his actions. To my mind, the above facts and conduct easily establishes the existence of “malice aforethought” on the part of the accused. 50.I therefore find that the accused, apart from committing the act that resulted in the death of the deceased, was in doing so, also actuated with “malice aforethought”. Under these circumstances, I am satisfied that the Prosecution has through facts and evidence presented, proved the charge of murder against the accused beyond reasonable doubt. 51.For the above reasons, I find the accused person, Simon Samora Kamau, guilty of the charge of murder contrary to Section 203 of the Penal Code and as a consequence, I convict him accordingly. 52.As I have now proceeded on transfer, this file shall be placed before the Judge who has taken over from me, to continue with sentencing proceedings to conclusion of the case. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JULY 2026…………………..WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:The Accused (present physically in open Court)N/A for Advocate for the AccusedMs. Muriithi for the StateCourt Assistant: Brian Kimathi