https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12029

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAPENGURIA.** **HC. CRIMINAL CASE NO. E005 OF 2024** **STATE …………………….……………………………… PROSECUTOR** * **V E R S U S –** **VICTOR KIPTOO ………..……………………………..…….. ACCUSED** **JUDGMENT** 1. By the information dated 23/7/2024, **Victor Kiptoo** was charged with the offence of Murder Contrary to section 203 as read with section 204 of the Penal Code. 2. The particulars of the charge are that on 20/5/2024 at Makutano Township, the accused Murdered **Jeniffer Chemutai (deceased).** 3. The accused denied the offence and the case proceeded to full hearing with the prosecution calling a total of six (6) witnesses. 4. When called upon to defend himself, the accused gave sworn evidence in his defence. He did not call any other witness. 5. **PW1 Duncan Koech,** a businessman who owns rental houses at Maringo Road, Makutano, told the court that Jeniffer Chemutai had rented one of his houses for four (4) years; that in May 2024, she started living with Victor Kiptoo (accused) as husband and wife; that the deceased told him that accused was supposed to assist in payment of rent but he had refused and she wanted accused to leave her house. On 19/5/2024, accused told him to let deceased and him solve their own problems and that he would pay the rent next day 25/5/2021. On 20/5/2024 morning, PW1 found police officers at the plot and told him that Jenifer had been killed. 6. **PW2 Steve Loshamuro** a cousin to the deceased, recalled that on 23/3/2024, when at her home in Keringet, his wife received a phone call about 10.00p.m. and informed him that Jennifer was being beaten by her friend whom she lived with. He went to Makutano using a motor cycle on the same night. He arrived at Jenifer’s house and found accused and deceased quarreling but had locked the door from inside. On knocking and identifying himself accused opened for him. On enquiring what the quarrel was all about, Jennifer told him that accused had sold her phone; Accused admitted and claimed to be planning to buy another phone. He took Jennifer to his home in Keringet and he told accused to look for a place to sleep. Next day, about 8.00p.m. the accused arrived at PW2’s home and wanted Jennifer to give him the keys to the house. PW2 sat accused and Jennifer down to try and find out what their issues were. He found that whereas accused wanted to have a child with Jennifer, she was not ready to do so because he had not made a commitment by taking his parents to meet Jennifers parents. PW2 advised the accused to the right thing and get his parents to meet Jennifer’s and he agreed and the two left the next day; that later Jennifer told him that she was no longer staying with the man. On 20/5/2024, PW2 received a phone call and was informed that Jennifer had been stabbed. He went to Kapenguria Referral Hospital and found her dead. 1. **PW3 Dr. John Chirchir** performed the post mortem on the deceased, Jennifer on 24/5/2024. He found that she had sustained a wound on the neck below the jaw (2 CMs long), wound on right side above clavicle bone, deep penetrating through the neck towards the left chest. Internally, the trachea was cut through and jugular vein, subclavian and carotid veins were severed. PW3 formed the opinion that the cause of death was severe haemorrhage due to penetrating injury that destroyed major blood vessels of the neck. The probable weapon used was sharp. 1. **PW4 Geoffrey Kalimameri Kamarkal,** a brother of Jennifer, identified the body for purposes of post mortem. 2. **PW5 David Kiara Muthoni** of Government Analyst issued at Kisumu received an exhibit memo and exhibits for analysis i.e a kitchen knife with blue plastic handle, blood sample of Jennifer, piece of bone tissue from Jennifer, black jeans, white vest, black shirt with floral prints, blood on cotton swabs, a pair of black socks. He found red colouring on the knife, jeans, vest, shirt while socks were heavily stained with blood of human origin. On analysis, he found that the DNA profile generated from the blood stains on the items was identical matched the DNA profile generated from the blood sample taken from Jennifer; that touch DNA from the jeans, vest, shirt and pair of socks were identical and matched the sample taken from Victor the accused. He produced the report as exhibit. 3. **PW6 PC Godfrey Kaguthi was** the Investigating Officer in this case. On 25/5/2024 he learnt of the murder at Makutano where Victor was said to have fought with his girlfriend and killed her. He went to the scene and found the lifeless body in the house. They found a kitchen knife on the floor and the clothes Victor was wearing were blood stained. They took possession of the clothes and other items which were submitted to the Government Analyst to establish whether the blood on the knife and clothing belonged to Jennifer. 11.When called upon to defend himself, accused testified on oath that on 20/5/2024, he left his house in Kacheliba at 6.30a.m. on his way to work and passed by the house where he resided with Jennifer. On arrival, he found a crowd of people at the plot who asked whether he knew that Jennifer had died. He entered the house, went to do first aid to Jenniffer but she was dead. Police later came to the plot, asked who lived with her and he accepted. He stated that his clothes got stained when he did first Aid to the deceased. He denied ever calling any police officer to inform him that he killed Jenniffer. He denied that he ever had any dispute with Jennifer there before. He admitted to having been intending to marry Jennifer but that he had another wife at Kacheliba. 1. **Ms. Chebet Counsel for Accused**, filed submissions dated 10/7/2026. She identified the two issues for consideration 2. The fact of death of the deceased 3. Whether the deceased met her deth as a result of an unlawful act or omission on the part of the accused. 4. She submitted to the fact of death is confirmed by Dr. Leo who performed the post mortem on the deceased’s body. 5. On the second issue, Counsel argued that the prosecution relies on circumstantial evidence given by PW 2 and 5. Counsel cited the case of **Republic -V- Ernest Muskindayi Cr. C25(2016) 2025 KEHC** where the court considered the principles to consider when a case entirely rests on circumstantial evidence. 6. Counsel submitted that the prosecution has failed to prove that accused killed the deceased; that Cpl. Kizito who was allegedly called by Accused and informed of the Murder was never called as a witness; that the murder weapon did not link accused to the murder and that the accused explained how the blood got onto his clothes when he did first Aid to the deceased. 7. Ms. Koech, Prosecution Counsel also filed submissions on 13/7/2021. On the question whether the death was caused by the accused, Counsel submitted that she relies on circumstantial evidence. She relied on the decisions of **Abang’a alias Onyango -V- Republic Cr. App.32/1990** and **Sawe -V- Republic (2003) eKLR** where the court set out the conditions to be satisfied before a court can wholly rely on circumstantial evidence to found a conviction. Counsel relied on the evidence of PW1 who saw accused and deceased on 19/5/2024 when he went to get rent and was told to get it next day only to find the deceased murdered. 8. Counsel also submitted that the prosecution evidence placed accused at the scene through the testimony of PW5 who found Accused’s clothes to be stained with blood which had deceased’s DNA; that Accused did not call any witness to confirm that he arrived at the plot when Jeniffer was already dead; 9. That accused also failed to call his wife whom he alleged lived in Kacheliba where he had spent the night of 19th and 20th May 2024. 10. Counsel therefore argued that the inference of guilt of the accused is proper and that the chain of events taken cumulatively point to accused as the perpetrator. 11. As to whether the death was actuated by malice, Counsel relied on the case of **Republic -V- Tubere s/o Ochen (1945) 12 EACA** where the court held that malice aforethought can be deduced from the weapon used and the part of the body aimed at Counsel urged the court to convict accused. 12. I have now considered the evidence tendered before this court by both the prosecution and the accused. The court has also carefully considered the rival submissions. 13. The accused faces a charge of murder contrary to section 203 as read with Section 204 of the Penal Code. The onus rests upon the Prosecution to prove its case beyond reasonable doubt. The standard of proof was discussed in the celebrated case of **Woolmington -V- DPP 1935 UKHL1,** Where the court stated thus; **“Throughout the web of the English Law, one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt…… if, at the end of and on the whole of the case, there is reasonable doubt, created by the evidence given by either the prosecution or the prisoner, 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”** 14. **Lord Denning in Miller -V- Ministry of Pensions (1947) ALL ER 372** defined what ‘**beyond reasonable doubt’** means, and said:- **“The degree is settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The Law would fail to protect the community if it admitted fanciful possibilities to defeat the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice”.** 15. Under Section 203 of the Penal Code, the prosecution has to prove ‘beyond reasonable doubt’ the following ingredients 16. **The death of the deceased;** 17. **That the accused caused the death through an unlawful act or omission** 18. **That the accused possessed malice aforethought.** 19. **Death of the deceased** PW2 and 4 actually saw the deceased’s body at Kapenguria Referral Hospital Mortuary. PW4 identified the body to PW3, the doctor who conducted the post mortem. The Doctor found that the deceased had sustained a wound on the right side of the neck below the jaw, another wound on the right clavicle bone, deep penetrating through the head and the left clavicle. The trachea was out and large blood vessels of the neck i.e. jugular, and carotid veins were severed. 1. From the findings of the Doctor, it is apparent that the deceased did not die of natural causes but injuries inflicted on him. 2. **Whether Accused caused the death;**There is no doubt that nobody witnessed the killing of the deceased. The prosecution therefore totally relies on circumstantial evidence. Courts have over the years set down the principles to be considered where a case entirely depends on circumstantial evidence. In **Abang’a alias Onyango -V- Republic Supra** the court said **“it is settled law that even when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests,** 1. **The circumstances from which an inference is drawn must be cogent and firmly established;** 2. **Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;** 3. **The circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and non-else** 4. The court in **Sawe -V- Republic (Supra)** the court further said **“In addition the prosecution must establish that there are no other co-existing circumstances, which could weaken or destroy the inference of guilt.”** 5. These are the same principles that were espoused in **Republic -V- Ernest Mushindayi (Supra).** In this case, there is overwhelming evidence that accused and the deceased were living as husband and wife as per testimonies of PW1 and 2. The accused does admit that he lived with the deceased as a girlfriend whom he intended to marry. Although the accused claims that they lived peacefully, the evidence of PW1 and 2 which was not shaken in anyway, says otherwise. 6. PW2 testified that on 23/3/2024, he was called to Jennifer’s house, late in the night because Jennifer and her boyfriend were fighting. He later established after talking to the two that the deceased wanted the accused out of her life if he did not make a commitment to the relationship by arranging for his family to meet hers, meaning that she did not want to live with accused as boyfriend and girlfriend but make it a more serious relationship. 7. Again, on 19/5/2024, a day before the deceased was murdered, when PW1 went to collect rent, accused and deceased had a dispute on payment of rent and the deceased wanted the accused leave that house but that accused promised that they would sort out the issue and he would pay rent the next day. From the foregoing narrations by PW1 and 2, the accused cannot convince this court that he lived peacefully with the deceased. 8. PW6, forwarded the clothing that accused was found wearing on 20/5/2026, together with a sample of deceased’s blood to the Government Analyst. The findings of the Government Analyst PW5, were that the DNA generated from blood stains on the accused’s shirt, vest, black jeans and socks were identical and matched the DNA profile generated from the blood sample from Jennifer. The above evidence places the accused at the scene. 9. The accused raised an alibi defence, that he was away on the night of 19th and 20th/5/2024 at his home in Kacheliba with his other wife and only returned to Jennifer’s house in the morning of 20/5/2024 only to find the deceased murdered; that his clothes got soiled with deceased’s blood because he tried to do first Aid on the deceased. 10. The law on alibi defence is settled. There is no burden placed on the accused to prove the truth or falsity of an alibi. If there is a reasonable possibility that Accused’s alibi could be true, then the Prosecution has failed to discharge its burden of proof and the accused must be given the benefit of doubt. 11. In the case of **Kiarie -V- Republic (1984) KLR**, the court stated this **“an alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge 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”** 12. In **Patrick Muriuki Kinyua and Another -V- Republic (2015) KELA 1000,** the court held **“an alibi is a plea by an accused person that he was not there (was not present) at the place where the crime was committed at the time of the alleged commission of the offence for which he was charged”.** 13. In **Victor Mwendwa Mulinge -V- Republic (2014) eKLR,** the court said **“It is trite that the burden of proving the falsity, if at all, of an Accused’s defence of alibi lies on the prosecution”** 14. The accused did not raise this alibi defence during the prosecution case. A defence is ordinarily, built up right from the prosecution case so that it does not appear to be an afterthought. In **Republic -V- Sukha Singh s/o Wazir Singh and others (1939) 6 EACA 145** the former Court of Appeal for Eastern African upheld the decision of the High Court when it stated, **"If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards there is naturally a doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped".** 1. Again in **Wang’ombe -V- Republic (1980) KLR 148,** the Court of Appeal (Madan, Miller and Potter JJA)held that **“Ssentale -V- Uganda (1968) EA 365 (Sir Udo Udoma CJ) -…. Said that a prisoner who puts forwards an alibi as an answer to a charge does not thereby assume any burden of proving that answer; it is a misdirection to refer to any burden as resting on the prisoner in such a case; for the burden of proving his guilt remains throughout on the prosecution. We agree, we have ourselves said so on more than one occasion…The defence of alibi was put forward for the first time some four months after the robbery when the appellant made his unsworn statement in court. Even in such circumstances the prosecution or the police ought to check and test the alibi wherever possible. On the other hand, however punctilious the prosecution or police, it throws upon them an unreasonable burden when the alibi is pleaded for the first time in an unsworn statement at the trial, out of the blue. Udo Udoma CJ also said that, if the alibi had been raised for the first time at the trial, different considerations might have arisen as regards checking and testing it. …..The alibi was considered by both courts below, the High Court saying (as we have already set out) that it needed to be weighed with the evidence of the prosecution, particularly that of the complainant and his wife, and the fact that the appellant denied knowing Lucy, and particularly with Lucy’s evidence. To weigh one set of evidence with another set of evidence is not to remove the burden of proving that which has to be proved from the party charged with the proof of it. To marshal, analyse and dissect evidence in order to weigh it to determine its value and veracity is a basic function of judicial officers. They do not have to pedantize. What other approach is there? Judicial officers are not clairvoyant!”** 2. Taking cue from the above decisions, an alibi defence should be raised at the earliest time possible to avail the prosecution an opportunity, if possible, to check and rebut it. Accused was arrested way back in June 2024 and he did not make his defence till two years later on 9/6/2026. At no time was the alibi defence alluded to. Further to the above, accused claims to have been with his other wife on the night of 18th and 20th May 2024. Her name was not disclosed. Besides, under section 127 (2) (ii) of the Evidence Act, the wife is not a compellable witness and it is only the accused who could call her as a witness but he chose not to call her. The Prosecution cannot call her being accused’s spouse. 3. Naturally, the delay in raising the alibi defence raises a doubt in the court’s mind as to whether accused has not been preparing the defence during the pendency of this case. Raising the alibi so late in the defence is an afterthought and goes to weaken the credibility of that defence. 4. Further, to above the Accused told the court that he used to go home to Kacheliba on Fridays and return on Mondays as he had done that weekend. However, PW1 clearly stated, and which evidence was not rebuted, that, he was with Accused and deceased at the house he had leased to deceased on 19th May 2025, the day before the death was discovered. I find that PW1 was a cogent witness and his testimony goes to weaken the alibi defence further. The accused was therefore, the last person to be seen with the deceased and should have given the court a plausible explanation The court finds that the alibi defence is an afterthought and not reliable. 5. Accused claimed to have gotten blood on his clothes because he did first Aid on deceased. He did not give details to what he did exactly. It is very surprising that even the socks he was wearing were heavily stained with blood. It is the Government Analyst who noted that the socks were heavily stained with blood. One wanders how accused performed the said first Aid and that vague explanation is not convincing at all and is dismissed as imagined. 6. As of 19/9/2024, the deceased was throwing accused out of the house where they lived in for his failure to pay rent. He was not at Kacheliba. He has also failed to satisfactorily explain how his clothes got soiled with deceased’s blood and the only conclusion this court comes to is that they were soiled when he was assaulting the deceased. It is irrelevant that the DNA was not found on the murder weapon. 7. In the case of **R.V Taylor Weaver and Donavan (1928) 21 CRC** **20**, the court held, **“circumstantial evidence is often said to be the last evidence of surrounding circumstances, which by intensified examination is capable of proving a proposition with accuracy of mathematics”** 8. In **Teper -V- Republic (1952) AC 19 489,** the Court held **“circumstantial evidence must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on other. It is also necessary before drawing the inference of accused’s guilt from circumstantial evidence, to be …… that there are no co-existing circumstances which could weaken or destroy the inference”.** 9. In view of the foregoing observations, it is my finding that considering all the surrounding circumstances, the circumstantial evidence unerringly points to accused as the perpetrator. 10. **Whether accused had malice aforethought: - Malice aforethought is defined in Section 26 of the Penal Code as: Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—** 11. **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.** 50. In **Hyam -V- DPP (1974) AC** the court held inter alia **“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…………………** 51**.** Again**, In R.V Tubere s/o Ochen 12 EACA 63** the court said**, “In determining the existence or nonexistence of malice, one has to look at the facts proving the weapon used, the manner in which it was used and the part of the body injured”** 52**.** Guided by the above decisions, maliceaforethought flowsfrom the weapon used to inflict injuries namely knife and the part of the body aimed at. The deceased sustained a deep penetrating wound at right clavicle, which cut through the trachea, the major blood vessels i.e. jugular, carotid arteries were severed, and the left chest wall causing haematoma in the left chest. By the accused targeting such a delicate part of the body was clearly intended to cause death. 53. From the foregoing observations, it is this court’s finding that the prosecution has proved the charge of Murder under Section 203 against the Accused. He is found guilty as charged and convicted. **Dated, signed and delivered at Kapenguria this 31st day of July, 2026** **HON. R.P.V. WENDOH.** **JUDGE.** **Judgment delivered in the presence of**:- Ms Koech for the State/ Prosecution Counsel Ms Sugut for accused Accused – Present Juma/Hellen – Court Assistants