Republic v Karimax Onsomu Mokaya

he told them what had happened the previous day. Police officers from Bunguria Police Post were called by the chief. The body was taken to Kisii Level 5 Hospital mortuary by officers from Rioma police station. Later the accused was traced at Miruka before post mortem was performed. Justus confirmed that he did not witness the arrest or see the deceased on the night of the incident. Justus also stated that the accused threatened him before the incident and when he used to drink, he became violent. Accused had threatened to finish Justus on the material night. Justus also mentioned that the accused cut him with a panga when he tried to calm him down a while back. 4. During cross-examination, PW1 Justus confirmed he is testifying for the state and that the accused had any issue with the accused. He stated that the accused had threatened him earlier before the incident. Previously the accused had cut PW1 with a panga but he never reported to the police. However, Justus stated that the last time he saw the deceased was in the morning before leaving for work and that the next time he saw the deceased was when he found him dead. PW1 said he did not see accused assault the deceased. 5. PW2, Sofia Kerubo Atura, farmer and neighbour of the accused and deceased, states that on November 10, 2022, at 6:00 PM, while returning from the market, she heard noise and saw the accused cutting Justus with a panga on the ear at Justus's home. The next morning, she heard screams and learned that Japheth (the deceased) had passed away. She found a large crowd gathered and did not go closer to see the injuries. She did not see the accused assault the deceased. 6. During cross-examination PW2, Sofia Kerubo stated that she saw the accused person cut Justus in their home and that she was at the road right next to their home. She states that she saw the deceased in their home the previous day and further a contradiction that the accused was not at their home that day. She insisted that she did not lie to the police that she was from the market place passing on the road next to the home of Justus. She further added that she didn’t know if the accused and deceased had bad blood. She said she last saw the deceased on 5. 11.2022 and not 10.11. 2022. In re-examination, she clarified that she saw the accused cut Justus, and she was sorry about the lying in court. She also stated that she did not see the deceased on the 10th,11,2022. She later said that she saw deceased and accused fight as she passed by the road next to their home. 7. PW3, one Leah Obosi Opworo a medical pathologist at Kisii County Teaching and Referral Hospital, testified that on the 17th day of November 2022 conducted post-mortem on the body of the deceased herein, one Japheth Ogamba Mokaya at about 1300hrs and has the report. PW3, testified that the deceased was dressed in black trousers, white shirt, black coat, black t-shirt and yellow boxers and was an African male estimated at age 44 of good nutrition and height of 170cm. The body had reached rigor mortis which had passed and that the body had been well preserved by refrigeration. He had peripheral sinosis (suffered lack of oxygen at some point) and hematoma on right chest. The respiratory system had hematoma on the right neck muscles and thyroid cartilage blood clot on the right. There was normal cardiovascular system and the stomach and small intestines were hyperamic as a possible result of inflammation, hyper acidity or infection. 8. PW3 further stated that the right temporal region had hematoma and the brain had subdural haematoma on the right cerebral hemisphere. The conclusion arrived at was that the cause of death was due to asphyxia due to manual strangulation and also head injuries due to the presence of the subdural haematoma as a result of blunt force trauma. She needed not to take further sample for examination. 9. During cross-examination PW3, stated that she is the one who opened the body and confirmed that the spinal code was not exposed and came up with a conclusive report that there were 2 causes of death that is both asphyxia and head injuries. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19726/eng@2025-07-14 2

page 2 of 4

10. PW4, one Samwel Karanja (Former DCI Marani, currently DCI Headquarters Kiambu Road), the investigation officer herein testified that on November 11, 2022, an OB report (OB 2/11/11/22) was made pertaining to the murder of Japheth Ogamba Mokaya, whose body was found lying outside his home compound. Investigations conducted purported that the deceased had been killed by his own brother who is the accused herein. Post-mortem report confirmed that the cause of death was injuries sustained during an assault. PC Karanja states that investigations indicated the accused was the one who assaulted the deceased and that before then had tried to attack his brother Justus Oganga Mokaya. After the incident, the accused ran away for several days, was later arrested by the public, and handed over to the police at Miruka police post, then taken to DCI Marani for processing. The background of the offense was that the accused argued with Justus, Justus escaped, and the accused directed his anger at the deceased (his younger brother) and identified him in the dock. 11. During cross-examination, PW4 stated that there was a boundary dispute between the accused and Justus. He also stated that the accused also was trying to run away from the compound when he met the deceased. The accused and Karimax met around 17:50 hours on the material day and again argued at 22:15hrs when the accused came back to the compound violently threatening to kill Justus who was in his house with his children. The accused started hitting windows, and Justus raised an alarm, prompting neighbours to respond, and the accused fled. Justus was the only one who saw the accused return to the compound at 2215hrs. The accused was later arrested by members of the public in Miruka Nyamira County, but they refused to record statements. 12. PW4, Karanja distinctively clarified that they did not arrest the accused for running away but had evidence from Jane Moraa, who also stated that the accused had been violent, and the deceased was found dead the day after. There is no record that the accused had issues with the deceased from Justus and/or Jane. Justus did not report the earlier assault by the accused, and the murder report was made by the area chief and that no murder weapon was recovered. He also noted the accused ran away from home out of fear for his life and did not return the next day. It also was not categorically established that the accused actually committed the murder, and also there were no witnesses to the commission of the offence of the murder. He further stated that at 2215hrs on that material day, there was a lot of chaos between the accused and deceased, and it is therefore possible that someone might have taken advantage of the situation and murdered the deceased. 13. In re-examination, PW4 stated that Justus and Jane indicated to him that the accused was very violent on the material day. 14. I have carefully considered the evidence on record; it is clear from the evidence on record that deceased was strangled to death. No witness who testified herein saw accused kill the deceased although PW1 said that accused attacked him with a panga on 10.11.22 and threatened to kill him and his family and that a day later he found the deceased. On the material the day. PW2 who was supposed to be the eye witness, said she saw accused attack Pw1 on 10.11.22. On cross examination she stated that she saw deceased enter his house on the day before he was found dead. Later changed the story and said she last saw deceased on 5.11.22. On re-examination she changed the story and said she saw deceased and accused fighting. She adduced evidence which was contradictory and thus unbelievable. The credibility of the evidence of PW1 is in doubt. The only evidence left is that of PW1 who said he was violent toward him that day and event cut him with a panga. Could this be the reason why he ran away from home? 15. In the case of Martin Makhakha v Republic [2019] eKLR the Court of Appeal held that: 14. The basis of putting an accused on his defence is founded on the prosecution establishing a prima facie case. The standard of proof as to whether the prosecution has established a prima facie case has been laid down in the case of Ramanlal Trambaklal Bhatt -Vs- Republic (1957) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19726/eng@2025-07-14 3

page 3 of 4

E.A. 332 and stated with approval by this Court in the case of Anthony Njue Njeru v Republic [2006] eKLR Criminal Appeal 77 of 2006 as follows: “ It may not be easy to define what is meant by a “prima facie case,” but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.” 16. It is clear that the standard of establishing a case beyond reasonable doubt after the close of the prosecution’s case is not required in determining whether or not the accused has a case to answer. This can only be done after an accused has been called to tender a defence. Only then can the court critically examine the evidence tendered under a microscope.’’ 17. It was suspected that the fact that accused was violent towards PW1 means that he is the one who had killed deceased. It is trite law the mere suspicion cannot form a basis for conviction. There is no evidence that he encountered the deceased or that there was bad blood between him and the deceased. PW4 the investigating officer said that he did not establish that accused killed deceased. 18. I find that was suspected that the fact that accused was violent towards PW1 means that he is the one who had killed deceased. The circumstances herein implicate accused in the murder of deceased. 18. No reasonable tribunal directing its mind to the law and facts herein can convict accused even if he chooses to remain silent on his defence. 19. The evidence on record is insufficient to place accused on his defence. I find that a prima facie case has not been established against him. He thus has no case to answer and I proceed to acquit him under section of the 306 (1) Criminal procedure Code. Accused be set free forthwith unless he is otherwise lawfully held. T.A ODERA JUDGE 14.7.25 DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF: Accused Miss Gogi for the Accused Mr. Koima for Prosecution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19726/eng@2025-07-14 4

page 4 of 4