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High CourtDismissedNot stated in the judgment (murder charge, Kakamega High Court)

Republic v Peter Muhati Ondusi

High Court of Kenya
2 October 2020
WMW Musyoka
2,742 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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In criminal cases, the prosecution must prove beyond a reasonable doubt that the accused caused the death.

What this practically means

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Executive summary

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Peter Muhati Ondusi was charged with the murder of Edwin Musamali Mukabwa on 7th December 2009 at Kwirinyi area, Kakamega East District, contrary to section 203 as read with section 204 of the Penal Code. He pleaded not guilty on 23rd March 2010 and the prosecution called four witnesses. PW1, Harun Ikutwa, testified that he and the deceased pursued two men alleged to have stolen a child; that the accused put down the child and cut the deceased across the chest with a machete; and that the deceased died at Mukumu Mission Hospital the same evening. PW2 identified the body at autopsy; PW3, the investigating officer, described visiting the scene and the hospital; and PW4, a consultant pathologist, produced the post-mortem report of the late Dr Kamau, attributing death to severe haemorrhage and pneumothorax from a penetrating chest injury. The court found a prima facie case and put the accused on his defence. The accused gave sworn testimony that he had merely escorted Isaya to marry a woman, and that PW1, wielding a machete, had attempted to cut Isaya but struck the deceased instead. The defence attacked inconsistencies in the prosecution case and reliance on a single identifying witness, citing Abdalla bin Wendo vs. R. The court framed four elements: fact of death, cause of death, the accused's role, and malice aforethought. It found death and cause of death proved, but could not determine, on the sworn and irreconcilable accounts of PW1 and the accused, who inflicted the fatal blow. The investigating officer's evidence did not identify his informants, and material witnesses were not called. Malice could therefore not be attributed to the accused. On 2nd October 2020 the court found him not guilty, acquitted him, and ordered his release from remand custody unless otherwise lawfully held.

Key legal issues

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01

Role of the accused in causing death

Holding

The court could not determine whether the accused or PW1 inflicted the fatal blow; the prosecution failed to prove the accused's role.

Reasoning

Only PW1 and the accused were at the scene and both gave sworn statements accusing each other of striking the fatal blow. The investigating officer's evidence was unhelpful as he did not identify his informants, and key witnesses such as the woman (Cynthia/Iminza) and the child's mother were not called. With two irreconcilable sworn accounts, the prosecution failed to discharge its burden.

p. 2
02

Malice aforethought

Holding

Although the fatal blow was inflicted with malice, that malice could not be attributed to the accused since his role in causing death was unproved.

Reasoning

The court accepted that the blow caused death within about an hour and could only have been inflicted with malice, but malice must be linked to the accused's role in causation. Since it could not be determined between PW1 and the accused who inflicted the injury, malice could not be attributed to the accused.

p. 3
03

Failure to call material witnesses

Holding

The prosecution ought to have called more witnesses, including the woman allegedly taken and the child's mother, to corroborate PW1.

Reasoning

The court noted the woman was variously referred to as Cynthia, Iminza and Cynthia Kavesa, with her identity and relationships unclear. The investigating officer did not identify the villagers who allegedly informed him, and those villagers arrived only after the event. At least one person who responded to PW1's screams should have been called.

p. 2

Legal principles established

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  • The elements of murder are the fact of death, the cause of death, the role of the accused in causing the death, and malice aforethought.
  • Malice aforethought cannot be attributed to an accused where it cannot be determined who inflicted the fatal injury.

Court orders

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  1. 1.The accused, Peter Muhati Ondusi, is found not guilty and acquitted of the murder of Edwin Musamali Mukabwa
  2. 2.He shall be set free from remand custody unless otherwise lawfully held
Jurisdiction invoked
Original criminal jurisdiction over murder contrary to section 203 as read with section 204 of the Penal Code, Cap 63

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Peter Muhati Ondusi", Case Analysis (2020). Not stated in the judgment (murder charge, Kakamega High Court). Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.