Director of Public Prosecutions v Peter Atura Achweya Alias Waitemba

4. PW2, Peter Atura Makori, testified that he found the deceased lying helpless in his house, writhing in pain and unable to walk or speak. He observed injuries on the body of the deceased. PW2 did not witness the assault and was unaware of who might have assaulted the deceased. 4. PW3, Daniel Ochieng Odhiambo, a Government Analyst, produced a toxicology report indicating that the deceased had consumed a very high quantity of alcohol prior to his death. The report ruled out poisoning by any chemical or toxic substance. 4. PW4, Dr. Morebu Peter Momanyi, conducted the post-mortem examination. He observed multiple lacerations and bruises on the lower limbs, upper limbs and back of the deceased. Internally, he noted lung thrombosis and changes on the stomach wall. He formed a definitive opinion that the cause of death was soft tissue injuries due to blunt force trauma, and he produced a post-mortem report in evidence. 4. PW5, Inspector Paul Omondi, the investigating officer, testified that the accused was charged primarily on the basis of the doctrine of last seen, as he was one of the persons who last saw the deceased alive. Under cross-examination, PW5 conceded that investigations revealed that the deceased may have been assaulted by other persons, including his wife, who were never traced or charged. PW5 further conceded that no witness saw the accused assault the deceased. The Defence Case 10. The accused gave sworn evidence denying the charge. He denied calling the deceased from his home and stated that he was at home on the material night. He challenged the prosecution’s evidence, pointing to inconsistencies in dates and circumstances, and relied upon the absence of direct evidence linking him to the assault which resulted in death. Issues for Determination 11. From the evidence on record, the issues for determination are: 1. Whether the death of the deceased was proved 2. Whether the prosecution proved the actus reus of the ofience of murder against the accused 3. Whether malice aforethought was established and 4. Whether the prosecution discharged the burden of proof beyond reasonable doubt. Analysis 12. It is common ground that Charles Mirumbi Moseti is deceased. The fact of death was proved through the evidence of PW1, PW2, and PW4, and the post-mortem report. The first issue is therefore answered in the affirmative. 13. The medical evidence by PW4 conclusively established that the deceased died as a result of soft tissue injuries due to blunt force trauma. The injuries were external, involving the limbs and back, and consistent with an assault. 14. The toxicology report, while excluding poisoning and establishing that the deceased had consumed a large quantity of alcohol, did not contradict the pathologist’s conclusion as to the cause of death. Its probative value was thus limited to the exclusion of poisoning and added no evidentiary link between the accused and the fatal injuries. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/739/eng@2026-01-29 2

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15. Having accepted the cause of death, the remaining question is whether the prosecution proved that it was the accused who infiicted the injuries that caused the deceased’s death. 16. The prosecution’s case was wholly circumstantial and rested principally on the doctrine of last seen. The applicable principles are well settled. In R v Kipkering Arap Koske & Another (1949) 16 EACA 135, the Court stated that the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. In Sawe v Republic [2003] KLR 364, the Court of Appeal reiterated that suspicion, however strong, cannot provide the basis for inferring guilt. 17. More recently, the Court of Appeal has reaffirmed these principles in decisions involving circumstantial evidence. In Nguwa alias Kandili & another v Republic [2025] KECA 2107 (KLR) the Court upheld a murder conviction where the appellants were last seen with the deceased and the totality of the evidence excluded any reasonable hypothesis other than that of guilt. 18. In Koi v Republic [2025] KECA 1633 (KLR) the Court emphasised that the doctrine of last seen requires a complete chain of evidence linking the accused to the felonious act and that the inference of guilt must be compelling and inconsistent with innocence. 19. These authorities confirm that evidence of being last seen with a deceased person, while material, is not in itself sufficient to sustain a conviction unless, taken together with all other circumstances, it excludes all reasonable alternatives. 20. In the present case, PW1 left the deceased alive and in the company of the accused and other persons. He did not witness any assault and could not tell what transpired thereafter. PW2 likewise did not witness any assault. The investigating officer admitted that investigations pointed to the possibility that the deceased was assaulted by other persons who were never charged, including the deceased’s wife. The accused himself was charged jointly with others not before court, yet no evidence of common intention was led. 21. Whereas the medical evidence conclusively established how the deceased died, it did not establish who infiicted the fatal injuries. The doctrine of last seen, when considered alongside the admitted possibility of third-party involvement, did not exclude other reasonable hypotheses consistent with innocence. The prosecution therefore failed to establish the actus reus against the accused beyond reasonable doubt. 22. On the issue of malice aforethought, no evidence was led of motive, prior animosity, use of a weapon by the accused, or any conduct pointing to an intention to cause death or grievous harm within the meaning of section 206 of the Penal Code. Malice aforethought was therefore not proved. 23. The burden of proof rested on the prosecution throughout, pursuant to section 107(1) of the Evidence Act. The standard of proof in a criminal trial is proof beyond reasonable doubt, as enunciated in Woolmington v DPP [1935] AC 485 and expounded in Miller v Minister of Pensions [1947] 2 All ER 372. Where evidence leaves reasonable doubt as to the accused’s participation in the unlawful act, that doubt must be resolved in his favour. Disposition 24. Upon a careful and dispassionate evaluation of the entire evidence on record, this Court is not satisfied that the prosecution proved beyond reasonable doubt that the accused person infiicted the injuries that caused the death of the deceased or that he acted with malice aforethought. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/739/eng@2026-01-29 3

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25. The accused person, Peter Atura Achweya alias Waitemba, is therefore found not guilty of the ofience of murder. 26. He is accordingly acquitted under section 322(1) of the Criminal Procedure Code and shall be released forthwith unless otherwise lawfully held. DELIVERED AT NYAMIRA THIS 29TH DAY OF JANUARY 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Terer Accused - Present For Accused - Mr. Marita For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/739/eng@2026-01-29 4

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