https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10557

Republic v Wekesa (Criminal Case E016 of 2023) [2026] KEHC 10557 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10557 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Case E016 of 2023 REA Ougo, J July 9, 2026 Between Republic Prosecution and Caleb Masila Wekesa Accused Judgment 1.The accused person, Caleb Masila Wekesa, faces a charge of murder contrary to Section 203 as read together with Section 204 of the Penal Code. The particulars of the offence are that on the 11th day of April 2023 at Sikhendu Maeni Market in Kimilili Sub-County within Bungoma County murdered Edward Barasa Khisa. 2.The prosecution called nine (9) witnesses to support its case. The accused gave a sworn statement in his defence. He did not call any witnesses. Prosecution Case 3.Brian Simiyu, Pw1, testified that he is the deceased's son. On 17th April 2023, he accompanied his mother and a police officer from the Kimilili DCI to Moi Teaching and Referral Hospital, Eldoret, where they identified the body of his father, Edward Barasa, before the post-mortem examination. He observed extensive bloodstains, broken hands, cuts, and injuries around the ribs on the deceased's body. 4.Evans Sinya Jack, PW2, testified that on the night of 11th April 2023, while searching for his wife at a nearby food kiosk, he heard the accused and the deceased quarrelling. He recognized their voices and saw them arguing. He attempted to separate them. The accused went into his house, returned carrying a hoe handle, struck PW2 on the neck, attempted to hit him again but missed, and then struck the deceased on the head with the hoe handle. PW2 fled to the home of Kassim Makokha and informed him that the accused had attacked the deceased. 5.PW2 further testified that upon returning to the scene, they found the deceased lying on the ground with a large stone on his chest. Other people, including Robert, the accused’s brother; the accused's wife, Mwalimu Lusweti; and Cosmas, had gathered at the scene. They obtained a motor vehicle and took the deceased to hospital. PW2 did not accompany the deceased. The accused is PW2’s neighbour. 6.During cross-examination, PW2 admitted drinking alcohol before the incident and testified that there was sufficient moonlight to see. He stated that the accused's wife and Robert remained seated throughout the incident and did not intervene. He acknowledged that he did not know what had caused the quarrel and that he had never previously reported the accused for fighting, despite alleging that the accused was quarrelsome. PW2 confirmed that he sought medical treatment after the accused assaulted him and maintained that he personally witnessed the accused strike the deceased on the head with the handle of a hoe. He further stated that although he found the deceased lying with a stone on his chest, he did not know whether the stone had been used to assault him. 7.Upon re-examination, PW2 reiterated that he had known the accused for about three years and maintained that the accused first assaulted him and then struck the deceased on the head with the hoe handle. 8.Cosmas Chake Makokha, Pw3, testified that he was a retired Senior Assistant Chief residing in Lukango Village. On the night of 11th April 2023, he received a telephone call from Mwalimu Lusweti informing him that Edward Barasa Khisa was being attacked at Wanjala Muete’s homestead. He proceeded to the scene with a torch and, upon arrival, saw one person crossing the road while another followed. He restrained the latter, whom he identified as Robert, the accused’s brother, and, using the light from his torch, recognised the person who had crossed the road as the accused, Caleb Masila Wekesa. 9.PW3 further testified that he found the deceased lying next to the wall of Wanjala Muete’s house in a critical condition, with a large stone on his body and his right hand broken. After unsuccessfully attempting to contact the Assistant Chief and the police, he called the DCIO, who advised him to take the deceased to hospital immediately. Francis Wanjala arrived in a pick-up vehicle, and PW3 transported both the deceased and Robert to Kimilili Sub-County Hospital, where the deceased was pronounced dead on arrival. He subsequently informed the DCI. The body was then taken to the mortuary, while Robert was left in police custody. PW3 also testified that he knew the accused, who had purchased land from his brother and had lived in the area for about one year, and stated that they had never had any dispute. 10.During cross-examination, PW3 testified that his only source of light was an ordinary three-battery torch and maintained that he saw the accused leaving the compound by its light. However, he conceded that he did not witness the accused assault the deceased and did not know why the accused was running away from the scene. 11.Upon re-examination, he reiterated that his torch was the sole source of light outside the houses and that he was the first to arrive at the scene. 12.Cassim Wanyonyi Makokha, Pw4, testified that on the night of 11th April 2023, he was awakened by people shouting, “Caleb wacha, Caleb wacha.” After receiving a call from Mwalimu Lusweti and being informed by Evans Siiya that Caleb had assaulted askari, he proceeded to the scene using the flashlight on his mobile phone. He further testified that as they approached the homestead, he saw someone running towards the road but could not identify the individual because it was dark. At the scene, they found Robert, the accused’s brother, with injuries to the face and head, and Edward Barasa lying behind the house with severe injuries, bleeding profusely and in a critical condition. 13.PW4 further testified that Francis was called to bring a pick-up vehicle, after which Cosmas drove both Robert and the deceased to Kimilili Sub-County Hospital. The deceased was pronounced dead on arrival, while Robert was admitted for treatment. He identified the accused in court and stated that he had known him for many years, having lived in the area after purchasing land from PW4’s family. He also testified that he had been the deceased’s neighbour for over fifteen years and clarified that he only found the deceased after the injuries had already been sustained. He added that he and Mwalimu Lusweti were the first to arrive at the scene. 14.During cross-examination, PW4 reiterated that he had heard people shouting the accused's name from his home and confirmed that the accused had already fled by the time he arrived. He testified that they found Robert and the accused's wife at the compound, while Andrew Wanjala remained locked inside his house. He further stated that there was no lighting at the scene apart from the flashlight on his mobile phone, and acknowledged that he did not witness the assault, having arrived after the incident had already occurred. 15.Elias Lusweti Kundu, Pw5, testified that on the night of 11th April 2023, he was awakened by his dogs barking and heard a commotion from the neighbouring homestead of Andrew Wanjala. He recognised the voice of the deceased, Edward Barasa, calling out the names “Robert” and “Caleb” and shouting that they were killing him. He telephoned his neighbour, Cassim Wanyonyi, and together they proceeded to the scene. As they entered the compound, they saw a person running away and, with the aid of their mobile phone torches, identified him as the accused, Caleb. 16.PW5 further testified that he found Robert lying on the ground with head injuries and bleeding, and that Robert told him he had been assaulted by the deceased. He then found Edward Barasa lying behind the house with a severe head injury, bleeding profusely, and a large stone block placed on his head, which he removed. He further stated that Andrew Wanjala had locked himself inside his house and emerged later, appearing heavily intoxicated. PW5 testified that he contacted the area Assistant Chief, the retired Assistant Chief, and Francis Wanjala Makokha, who brought a vehicle that transported both the deceased and Robert to Kimilili Sub-County Hospital. The deceased was pronounced dead on arrival, while Robert was admitted for treatment. He subsequently recorded a statement with the police. PW5 further testified that he had known the accused for about three years and that the accused resided as a tenant in Andrew Wanjala’s compound. 17.During cross-examination, PW5 testified that although the voice he heard was weak, he recognised it as the deceased calling out that he was being killed. He stated that he and Cassim reached the scene within about two minutes and identified the accused as he fled the compound, using the light from their mobile phone torches. He acknowledged that Andrew Wanjala appeared heavily intoxicated and that Robert informed them that the deceased had assaulted him. However, he conceded that he could not tell whether the accused was fleeing because he had committed an offence or because he was escaping danger. He further admitted that he found both Robert and the deceased already injured on the ground and did not witness the deceased being assaulted. 18.Francis Locayala Makokha, PW6, testified that on the night of 11th April 2023, he received a telephone call from Mwalimu Lusweti informing him that Edward Barasa had been seriously injured. As he proceeded to the scene, he heard members of the public allege that Caleb and Robert had assaulted the deceased. Upon arrival at Wanjala Meto’s homestead, he found the deceased lying in a pool of blood with a deep head injury, an injured right hand, and severe bleeding. He further testified that the deceased was still breathing, prompting those present to rush him to hospital in PW6's motor vehicle. Robert, who was also injured, was transported to hospital, but the deceased was pronounced dead on arrival. PW6 further testified that Robert attempted to flee from the hospital but was restrained and handed over to the police. 19.PW6 stated that he saw a panga, a building stone block, and a broken stick near the deceased's body, which he believed may have been used in the assault, although he did not witness their use. He identified the accused and stated that he had known the deceased for over ten years as a neighbour and as a retired Kenya Army officer. He learnt the accused's name only from members of the public, having previously seen him in the area for about one month. 20.During cross-examination, PW6 acknowledged that several people were already at the scene when he arrived and that he saw a panga and a stone near the deceased. However, he admitted that he did not know how the deceased sustained his injuries, that his information implicating Caleb and Robert was based solely on what members of the public told him, that the accused had already fled by the time he arrived, and that he did not witness the assault. 21.Dr. Graham Masiga Makokha, Pw7, testified that he was a medical doctor employed by the County Government of Bungoma and stationed at Chwele Sub-County Hospital. On 17th April 2023, together with Dr. Machera, he conducted a post-mortem examination of the body of Edward Barasa Waswa at Moi Teaching and Referral Hospital, Eldoret. The deceased had sustained multiple injuries, including fractures of the left radius and ulna, severe facial and scalp injuries, a fractured left fifth rib, a collapsed left lung, a left scalp contusion, a superficial fracture of the left parietal bone, and subdural and subarachnoid hemorrhages affecting both sides of the brain, more pronounced on the left. He also observed mild fatty changes of the liver, which he stated could result from alcohol consumption or disease. Based on the post-mortem findings, he concluded that the cause of death was intracranial bleeding resulting from blunt force trauma to the head. He further explained that a blunt object could include a stick or a stone. 22.During cross-examination, PW7 maintained that the fatal injuries were caused by blunt force trauma and ruled out a simple fall due to alcohol intoxication. He acknowledged that he had not investigated whether the deceased had any underlying medical conditions, but testified that the chest and head injuries were sustained before death and were consistent with blunt force trauma. He further stated that, although the post-mortem examination was conducted six days after death, the body had been properly preserved and embalmed, and that the delay did not affect the accuracy of his findings. 23.Upon re-examination, PW7 reiterated that the severity and extent of the injuries ruled out the possibility that they were caused by an ordinary fall. 24.Godwin Khamala Waliama, Pw8, testified that he was a Government Analyst attached to the Government Chemist Laboratory in Kisumu. He stated that he prepared Government Analyst Report No. A90 of 2023, dated 25th May 2023, after receiving an exhibit memo form and exhibits from Police Constable Sammy Maina for DNA analysis. The exhibits comprised the deceased's reference blood sample, a blood-stained stone, three broken wooden sticks, a pair of grey jeans, a grey-and-white striped T-shirt, and a soil sample. 25.PW8 testified that a forensic examination established that the stone, wooden sticks, jeans shorts, T-shirt and soil sample were stained with human blood. DNA profiles generated from the blood stains on all the exhibits matched the DNA profile obtained from the deceased's reference blood sample. 26.During cross-examination, PW8 acknowledged that the accused’s name did not appear in the Government Analyst’s report and confirmed that he had not received any reference sample from the accused, such as blood or saliva, for DNA comparison. He maintained that his findings were confined to the exhibits submitted for examination. 27.Upon re-examination, PW8 reiterated that the accused's name was absent from the report and confirmed that his analysis had been conducted in accordance with the Exhibit Memo Form dated 26th April 2023. He further testified that, although the exhibit memo indicated that the blood-stained jeans shorts and T-shirt had been recovered from the accused, he had no personal knowledge of the accused and relied solely on the information contained in the exhibit memo regarding the ownership of those items. 28.Sammy Maina Mureithi, Pw9, the investigating officer attached to DCI Kimilili, testified that on 11th April 2023 he received a report of a murder and proceeded to Kimilili County Hospital, where he found the deceased, Edward Barasa Khisa, already dead. Robert Wangila Wanyonyi, who had sustained injuries and was alleged to have participated in the assault with the accused, was also at the hospital and was taken for treatment, while the deceased's body was transferred to the mortuary. He further testified that the accused later surrendered at Lwakhakha Police Station and was escorted to Kimilili. 29.PW9 stated that scene investigations at the accused's house recovered a blood-stained stone, three broken blood-stained wooden hoe handles, blood-stained soil, and a blood-stained pair of shorts and T-shirt. He attended the post-mortem examination, which concluded that the deceased died from intracranial bleeding caused by blunt force trauma to the head. After recording witness statements and completing the investigations, he forwarded the file to the Office of the Director of Public Prosecutions, resulting in the accused being charged with murder. Although four suspects had initially been arrested, only the accused was charged due to insufficient evidence against the others. He produced the exhibit memo form and the recovered exhibits, and confirmed that the accused had no visible injuries upon surrender. 30.During cross-examination, PW9 stated that the clothes recovered from the accused's house were believed to belong to the accused, although he conceded that the fact that Evans Siiya led investigators to the house was not recorded in either his own statement or in Evans’ statement. He admitted that the accused's brother was released because no evidence linked him to the offence, that he did not know whether there had been any prior disagreement between the parties, and that all the exhibits were recovered from the same location behind the house. He further acknowledged that he had not witnessed the incident, that the accused had voluntarily surrendered to the police, and that no weapon was recovered from him. He also stated that investigations revealed a dispute involving the accused’s wife and the deceased, although the accused's wife was not called as a prosecution witness. 31.Upon re-examination, PW9 testified that, in addition to recording witness statements, he conducted further investigations, including submitting the recovered exhibits to the Government Chemist for forensic analysis. Defence Case 32.DW1, Caleb Masila Wekesa, denied murdering the deceased, Edward Barasa Khisa. He testified that he was a second-hand clothes trader in Kimilili and that on 13th April 2023, after receiving a call from his wife informing him that people were looking for him, he voluntarily reported to Lwakhakha Police Station, where he was later collected by Kimilili police officers and charged with murder. He maintained that he did not know the deceased or the reason for his arrest, and stated that on the night of 11th April 2023 he was asleep at Korosaneti. He further denied knowing PW2, Evans Sinya, or recognising the clothes produced as exhibits, and requested that Evans Sinya’s witness statement be produced, which was admitted as Defence Exhibit No. 2. 33.During cross-examination, DW1 reiterated that he did not know the deceased and denied ever assaulting or killing him. He confirmed that he had been a tenant at Andrew Wanjala Khisa’s homestead while running a second-hand clothes business in Lwakhakha. He denied knowing the prosecution witnesses before the case, denied any knowledge of an alleged relationship between his wife and the deceased, and maintained that he was not at the scene on the material night. He also denied knowing Pamela Wanyaka and stated that the witnesses had merely mentioned his name because he lived at the homestead. He testified that he had never previously been charged with any offence, was not calling any witnesses, and relied on Evans Sinya’s statement, contending that Evans had falsely implicated him. He further stated that there were land disputes involving Evans and that he had voluntarily surrendered to the police rather than go into hiding. Submissions 34.The prosecution filed submissions dated 4th November 2025 and argued that they had proved all the essential ingredients of the offence of murder beyond reasonable doubt. It was submitted that the deceased's death was established by the evidence of PW1, Brian Simiyu, who identified his father's body for post-mortem examination, and by the testimony of PW2, PW4 and PW5, all of whom confirmed that the deceased died after the incident. 35.Regarding the cause of death, the prosecution relied on the evidence of PW7, Dr. Graham Masiga, who testified that the post-mortem examination revealed multiple injuries, including severe head injuries, a fractured fifth rib, a fractured parietal bone and a left scalp contusion. The pathologists concluded that the deceased died from intracranial bleeding caused by blunt force trauma to the head, thereby demonstrating that the death resulted from an unlawful act. 36.Regarding the accused’s involvement, the prosecution submitted that PW2, Evans Sinya, gave direct eyewitness evidence that he found the accused assaulting the deceased, whom he knew, and that he recognised the accused in the available light. PW2 further testified that when he attempted to intervene, the accused struck him and then attacked the deceased with a hoe handle. The prosecution further relied on corroborative evidence from PW4, who heard people shouting “Caleb wacha” and found the deceased seriously injured, and from PW5, who testified that he heard the deceased cry out, “Robert na Caleb mnaniua,” before seeing the accused flee the scene. 37.The prosecution also relied on the evidence of PW6, who found the deceased lying in a pool of blood, and PW9, the investigating officer, who recovered blood-stained exhibits from the scene and from the accused’s house, including a stone, broken hoe handles, a pair of shorts, a T-shirt and soil samples. They submitted that PW8, the Government Analyst, confirmed that the DNA profile obtained from the bloodstains on all those exhibits matched the deceased’s DNA profile. Particular emphasis was placed on the blood-stained shorts and T-shirt recovered from the accused’s house. 38.The prosecution further argued that the accused's conduct after the incident, namely leaving the area and later surrendering to the police, indicated a guilty conscience. They contended that his defence amounted to a mere denial, unsupported by documentary evidence or independent witnesses. Finally, the prosecution urged the court to find that the offence of murder had been proved beyond reasonable doubt, to convict the accused as charged, and to impose the appropriate sentence. 39.The defence filed submissions dated 17th November 2025 and argued that the prosecution had failed to prove the offence of murder beyond reasonable doubt. It further argued that under Sections 203, 204 and 206 of the Penal Code, the prosecution was required to prove that the deceased died, that the death was caused by an unlawful act or omission of the accused, and that the accused acted with malice aforethought. Relying on Republic v Thiuru, Criminal Case E079 of 2021, the defence contended that these essential elements had not been established. 40.The defence conceded that the death of Edward Barasa Khisa and its cause had been proved by the prosecution witnesses' evidence and the post-mortem report. However, they maintained that there was no direct or circumstantial evidence placing the accused at the scene as the person who inflicted the fatal injuries. They argued that none of the prosecution witnesses had actually seen the accused assault the deceased. 41.The defence challenged the prosecution witnesses’ evidence individually. It was submitted that although PW2 claimed to have found the accused arguing with the deceased and alleged that the accused struck the deceased with a hoe handle, PW2 admitted during cross-examination that he was intoxicated, that the accused and the deceased were only arguing when he arrived, and that he fled before witnessing the alleged assault. It was further argued that PW3 merely saw the accused leaving the compound but admitted that he did not witness any assault. The defence contended that PW4 only heard people shouting “Caleb stop” and could not identify the person running away from the scene, while PW5 only heard faint voices amid barking dogs and similarly conceded that he never saw the accused assault the deceased. The defence further submitted that PW6 arrived after a crowd had already gathered and admitted that he did not witness the incident. 42.Regarding the forensic evidence, the defence argued that PW8, the Government Analyst, merely established that the blood on the recovered exhibits matched the deceased's blood but failed to link the accused to the exhibits through DNA or any other forensic evidence. The defence further challenged PW9's evidence, the investigating officer, contending that no witness positively identified the blood-stained clothes as belonging to the accused. They also pointed out that although PW9 claimed that PW2 had led the police to the accused's house, PW2 did not testify to that effect, thereby raising doubts about the recovery of the exhibits and the chain of custody. 43.The defence further argued that the prosecution’s evidence was inconsistent and lacked corroboration, noting discrepancies in witnesses’ accounts of what they allegedly heard at the scene. They maintained that the case largely depended on voice recognition under unfavourable conditions, namely darkness, barking dogs and faint voices, and that such evidence ought to be treated with caution in accordance with Karani v Republic [1985] KLR 290 and Choge v Republic [1985] KLR. They submitted that the prevailing circumstances rendered the alleged voice identification unreliable and incapable of sustaining a conviction. 44.Regarding the defence case, counsel submitted that the accused consistently denied committing the offence and maintained that he had not been at the scene. They argued that the accused voluntarily surrendered to the police after learning that he was being sought, and that he denied ownership of the clothes produced as exhibits, asserting that he first saw them in court. The defence contended that no witness, apart from the investigating officer, purported to identify the clothes as belonging to the accused. 45.Regarding malice aforethought, the defence submitted that the prosecution had failed to establish any intention on the part of the accused to kill or cause grievous harm, as required under Section 206 of the Penal Code. Citing Hyam v DPP [1974] A.C., as applied in Republic v Juma Kituko Mwambegu (2020) eKLR, they argued that there was no evidence that the accused possessed the requisite mens rea. 46.The defence further submitted that the burden of proof always rests with the prosecution and never shifts to the accused, relying on Stephen Nguli Mulili v Republic (2014) eKLR and DPP v Woolmington [1935] UKHL 1. They contended that the investigations were incomplete, noting the absence of DNA, fingerprints, or other forensic evidence linking the accused to the offence, and challenged the chain of custody of the recovered exhibits. In support of this argument, they relied on Kiriungi v Republic (2009) eKLR and Republic v Stephen Kiprotich Letting (2019) eKLR. 47.The defence further argued that the prosecution failed to call crucial witnesses, including the accused's wife, his brother Robert, and Andrew Wanjala, despite their presence at the scene. They urged the court to draw an adverse inference against the prosecution in accordance with Bukenya v Uganda and Section 119 of the Evidence Act, while acknowledging that Section 143 of the Evidence Act does not require a multitude of witnesses but does require the calling of material witnesses. 48.Finally, the defence submitted that the prosecution had failed to establish an unbroken chain of circumstantial evidence in accordance with the principles set out in Ahamed Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR). They argued that the evidence neither placed the accused at the scene nor excluded other possible perpetrators, leaving substantial gaps in the prosecution's case. Accordingly, they urged the court to find that the charge of murder had not been proved beyond reasonable doubt and to acquit the accused. Analysis And Determination 49.After considering the prosecution’s evidence and the accused’s defence and submissions, this court is to determine whether the ingredients of the offence of murder, as provided for under Section 203 of the Penal Code, have been proved beyond reasonable doubt by the prosecution. 50.Section 203 of the Penal Code, Chapter 63 of the Laws of Kenya, under which the accused persons were 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. 51.The Court of Appeal in Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) set out 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.” Whether the death and cause of death were proved 52.There is no dispute that Edward Barasa Khisa died on the night of 11th April 2023. PW1 identified the body for the post-mortem examination, while PW2, PW3, PW4, PW5 and PW6 all testified that the deceased succumbed shortly after being rushed to Kimilili Sub-County Hospital. 53.The medical evidence tendered by PW7 established the cause of death. The post-mortem examination revealed fractures of the left forearm, severe injuries to the scalp and face, fractures of the left fifth rib and left parietal bone, subdural and subarachnoid hemorrhages, and a scalp contusion. PW7 stated that death resulted from intracranial bleeding secondary to blunt force trauma to the head. He further ruled out the possibility that the injuries could have resulted from a simple fall. 54.The prosecution proved both the death of the deceased and that the death resulted from unlawful blunt force trauma. Whether the accused caused the death of the deceased 55.The prosecution relied on the evidence of PW2, the sole witness who claimed to have seen the assault. PW2 testified that he found the accused quarrelling with the deceased. He intervened, whereupon the accused entered his house, emerged with a hoe handle, struck PW2, then struck the deceased on the head, after which PW2 fled to seek assistance. 56.Although the defence submitted that PW2 admitted he did not witness the assault, the record does not support that submission. On the contrary, PW2 consistently maintained during examination-in-chief, cross-examination and re-examination that he personally saw the accused strike the deceased on the head with the handle of a hoe. His evidence on this point remained unwavering. 57.This court has considered PW2’s admission that he had consumed alcohol. Mere consumption of alcohol does not automatically render a witness unreliable. The issue is whether intoxication impaired the witness’s ability to perceive and recollect events. In Kimotho Kiarie v Republic [1984] KECA 65 (KLR), the Court of Appeal held that:“Where the evidence relied on to implicate an accused person is entirely of identification that evidence should be watertight to justify a conviction.” 58.In the present case, PW2 knew both the accused and the deceased as neighbours for several years. He did not identify any strangers. Moreover, he testified that there was moonlight and that he was close by when the accused struck both him and the deceased. His account of being assaulted himself gives credibility to his presence at the scene. 59.PW2’s evidence was sufficiently corroborated by surrounding circumstances. PW5 testified that he heard the deceased cry out, “Robert na Caleb mnaniua,” before rushing to the scene. Although this constitutes a dying declaration, it is admissible under Section 33(a) of the Evidence Act. The Court of Appeal in Simon Kiptum arap Choge & 3 others v Republic [1984] KECA 4 (KLR) held that:“… the Court of Appeal for Eastern Africa in Pius Jasanga s/o Akumu v R (1954) 21 EACA 331 at 333:…The question of the caution to be exercised in the reception of dying declarations and the necessity for their corroboration has been considered by this court in numerous cases, and a passage from the 7th Edition of Field on Evidence has repeatedly been cited with approval:… The test of cross examination may be wholly wanting; and … the particulars of the violence may have occurred under circumstances of confusion and surprise calculated to prevent their being accurately observed …The deceased may have stated inferences from facts concerning which he may have omitted important particulars, from not having his attention called to them …Particular caution must be exercised when an attack takes place in darkness when identification of the assailant is, usually, more difficult than in daylight … It is not a rule of law that, in order to support a conviction, there must be corroboration of a dying declaration … and there may be circumstances which go to show that the deceased could not have been mistaken in his identification of the accused … But it is, generally speaking, very unsafe to base a conviction solely on the dying declaration of a deceased person, made in the absence of the accused and not subject of cross-examination, unless there is satisfactory corroboration …” 60.The deceased named both Robert and Caleb while under attack. That declaration was made during the assault, before death ensued. It is corroborated by PW2’s direct evidence placing the accused at the scene, assaulting the deceased. 61.In addition, PW3 testified that, immediately after receiving the report, he proceeded to the scene and observed the accused fleeing the compound, with Robert following. PW5 similarly testified that he saw the accused running away immediately before discovering the deceased lying fatally injured. Although flight alone cannot establish guilt, unexplained flight immediately after an offence can constitute corroborative circumstantial evidence. 62.The accused denied being at the scene altogether. That denial is inconsistent with the evidence of PW3 and PW5, both of whom knew him beforehand and recognised him as he fled. Their evidence was based on recognition rather than identification of a stranger. The Court of Appeal in Anjononi & 2 others v Republic [1980] KECA 23 (KLR) held that:“… 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.” 63.The defence challenged the prevailing lighting conditions. However, PW3 testified that he illuminated the accused with his torch, while PW5 testified that he and PW4 used their mobile phone flashlights. More importantly, both witnesses had previously known the accused. This was therefore a case of recognition rather than a momentary identification. 64.The defence further relied on Karani v Republic [1985] KLR 290 and Choge v Republic regarding voice identification. While the authorities rightly emphasise caution, this case does not rest solely on voice identification. The prosecution's case comprises direct eyewitness evidence from PW2, the deceased's dying declaration, recognition evidence placing the accused fleeing the scene, medical evidence consistent with the assault, and forensic evidence establishing that the exhibits recovered bore the deceased's blood. 65.Regarding the forensic evidence, PW8 established that the blood found on the stone, broken wooden sticks, shorts, T-shirt and soil matched the deceased’s DNA. Although no DNA sample was obtained from the accused, this omission does not necessarily weaken the prosecution’s case where there is credible direct evidence. DNA evidence is corroborative rather than mandatory. 66.The defence also questioned the ownership of the blood-stained clothes allegedly recovered from the accused’s house. Indeed, PW8 candidly admitted that he relied solely on the exhibit memo and had no personal knowledge of ownership. Further, PW9 conceded that no inventory or independent evidence established ownership beyond his own testimony. 67.This court attributes limited evidential weight to the alleged ownership of the blood-stained clothes. However, excluding that aspect does not materially affect the prosecution's case, as the conviction does not depend on those exhibits. 68.The defence further submitted that the failure to call Andrew Wanjala, the accused's wife, and Robert should attract an adverse inference under Bukenya v Uganda [1972] EA 549. The principle in Bukenya is well settled that failure to call essential witnesses may justify an adverse inference where their evidence would elucidate the truth. However, Section 143 of the Evidence Act expressly provides that no particular number of witnesses is required to prove any fact. 69.In this case, although those witnesses may have assisted the court, the prosecution had already called nine witnesses, including an eyewitness (PW2), medical and forensic experts, and the investigating officer. The evidence adduced sufficiently addressed the material issues. The failure to call the additional witnesses is therefore not fatal. 70.Upon evaluating the evidence as a whole, this court is satisfied that PW2's direct evidence is truthful, internally consistent, and corroborated by the surrounding circumstances, including the deceased's dying declaration, the accused’s presence at the scene immediately before the deceased was discovered, his flight from the compound, and the medical evidence. 71.The accused's defence amounted to a bare denial and an alibi. Although an accused assumes no burden of proving an alibi, the court is entitled to reject it if the prosecution evidence places him at the scene beyond reasonable doubt. 72.The court therefore finds that the prosecution has proved beyond reasonable doubt that the accused inflicted the injuries that caused the deceased’s death. Whether malice aforethought was established 73.Malice aforethought is defined under Section 206 of the Penal Code. The court in Republic v Tubere S/O Ochen [1945] 12 EACA 63 held that: -“An inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before, during and after the attack.” 74.In the present case, following the verbal quarrel, the accused armed himself by entering his house and retrieving a wooden hoe handle. He deliberately struck PW2 before directing the weapon at the deceased's head. The head is an extremely vulnerable part of the human body. The force used caused grievous injuries, including skull fractures and intracranial hemorrhage. The deceased also sustained multiple blunt-force injuries to the head, chest and upper limbs. PW7 ruled out an accidental fall and concluded that the injuries were consistent with repeated blunt-force trauma. The evidence further showed that after the assault, the accused fled the scene without rendering any assistance to the severely injured deceased. 75.From these circumstances, the only reasonable inference is that the accused intended to cause grievous bodily harm, if not death. 76.The defence argued that no motive was established. However, motive is not an essential ingredient of murder where the evidence otherwise establishes the offence. Section 9(3) of the Penal Code expressly provides that: -“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.” 77.I therefore find that the prosecution has proved the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code beyond reasonable doubt. The accused, Caleb Masila Wekesa, is therefore found guilty of the offence of murder and is convicted accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF JULY 2026R.E. OUGOJUDGEIn the presence of: -Caleb Masila Wekesa/ AccusedMiss Matere -For the StateMr. Muyala - Counsel watching brief for the victim’s family.Counsel for the Accused- AbsentCourt Assistant – Wilkister / Minah