Republic v Godfrey Opakwa

organized for the deceased to be taken to hospital. He said that there were electricity lights at the bar. That the accused had continued dancing inside the club. 4. On cross examination, he stated that he did not see the accused assaulting the deceased. He stated that the accused was a bouncer and he was not sure whether he had been hired by the owners of the club to provide security that night. He added that the deceased was pushed outside the bar and that he could not fell if he had injured himself on a hard surface. 5. Paul Wafula Wanjala (PW2) testified that he was selling chips at Makuti Bar on the material date until midnight when the staff of the bar called him to go view a person who was lying outside the bar. He was among those who escorted the deceased to Kibaba dispensary. Later on, a nurse informed her that the patient had died and they were advised to lodge a report with the police. On cross examination, he stated that the did not witness the incident. 6. Maurice Agama Obindi (PW3) a maintenance officer at Makuti Bar testified that he was on duty on the material date until midnight. He added that the accused and deceased had scuffed at the bar and that the accused threw him outside the bar and that he could not tell what took place outside. 7. On cross examination, he stated that he did not see the accused assaulting the deceased but recalled that the accused only escorted the deceased outside. He also confirmed that the deceased had created disturbances inside the bar and that many patrons had complained that he had become a nuisance. 8. Kennedy Misiko (PW4) testified that the deceased had been his younger brother. He witnessed the post mortem examination and identified the post mortem report which was marked as MF 1. 9. No. 88xx8 PC Shaddrack Marangu (PW5), the investigating officer in the matter testified that he had visited the scene and later picked up the accused who had already been apprehended and placed in police custody. He later witnessed the post mortem on the body of the deceased which revealed the cause of death as head injury due to physical assault. On cross examination, he on stated that he established that the deceased had entered the bar at around midnight and caused disturbance and that the accused tried to remove him and escorted him outside. 10. Dr. Reuben Kere Nyongesa (PW6) testified that the conducted. the post mortem on the body of the deceased on 3rd July 2023, and noted multiple bruises on both forearms as well as skull fractures. He formed the opinion that the cause of death was critical base of skull injury due to physical assault. He produced the report as P Exhibit 1. On Cross examination, to stated that there were no injuries on the neck region save for injuries on the base of the skull and bruises on both forearms. 11. After close of the Prosecution’s case the Court found that the accused person had a case to answer wherefore, he was placed on his defence. C. Defence case 12. Godfrey Opakwa (DW1) testified that he is the accused person herein and denied killing the deceased herein. According to him, on 28th June 2023, at around midnight while doing his bouncer gig at Makuti Club, the deceased herein visited the club at about 12.30 a.m. while drunk and he began to harass the other patrons by insulting them and trying to snatch their drinks. He told the Court that he escorted the deceased from the venue as per his duties and advised him to go back to his home and rest. After, the deceased returned to the club and renewed his harassing tactics and he removed him from the premises only for him to return again and he was this last time removed by the young men he was harassing and he does not know what occurred. He told the Court that the deceased person later accosted him along the corridor accusing him of inciting the young men to assault him. He tried to assault him. He told they Court that he left him outside in the company of two men and when he later left the club https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1132/eng@2026-01-28 2

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to answer a call of nature he bumped into the deceased who again accused him of setting him up and he attempted to assault, but he dodged his hits and in the process the deceased fell down and injured himself on the head, which led to his unconsciousness and subsequent death. 13. On cross-examination, he told the Court that the deceased arrived at the club at 12.30 a.m. and that he was not intoxicated during his duty. Further, he told the Court that the deceased was disturbing other patrons as he was too drunk and that he witnessed the deceased person fall and injure his forehead. 14. On re-examination, he told the Court that he removed the deceased from the premises and that the deceased fell down on the ground and hit his head. 15. Samuel Oriedo (DW2) testified that he knew the DW1 as a bouncer working at Makuti bar in Brigadier town. He recalled on 28th June 2023, he visited Brigadier town and entered Makuti bar for a drink when he remained from 9.00 p.m. to 1.00 a.m. According to him, while enjoying his drink, the deceased person who appeared drunk came to the bar and he was causing a nuisance. The accused person removed him from the premises only for him to comeback after a few minutes and continue to cause a nuisance, but he was yet again removed from the premises by the accused person. The deceased gained access to the bar the third time and went on been a nuisance and it was this point that his girlfriend called and he stepped outside. When he came back to the bar, he found deceased claiming that the accused had sent people to assault him and the as he tried to assault the accused person, he accused person dodged the hit causing the deceased to fall down and hit himself on the wall. The bar proprietor called and directed that the deceased be rushed to the hospital. He told the Court that he did not see the accused with any weapons and that the deceased had an injury on the front side of his head. 16. On cross-examination, DW2 could not identify himself as Samuel Oriedo and maintained that he had lost his national identification card. he told the Court that he felt bad to see the accused person getting jailed and that he would do everything it took to get him off the hook. He also told the Court that prior to the incident he did not know the deceased person and that when he went outside the third time he found the deceased person confronting the accused person and in the process of the accused person dodging a push from the deceased, the deceased fell and injured himself on the head. 17. On re-examination, he told the Court that it was when the deceased hit himself on the wall that he fell down 18. After close of the defence case, parties were directed to file and exchange submissions. The Prosecution opted to rely on the evidence on record. Only the defence filed their respective written submissions. D. Analysis and determination 19. In consideration of the evidence of the 6 Prosecution witnesses and in consideration of the defence witnesses’ sworn statements, this Court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the Prosecution. 20. Section 203 and 204 of the Penal Code under which the accused persons are charged provide for the offence of murder and the punishment therefor. They require that the Prosecution must prove beyond reasonable doubt that the accused persons by an unlawful act or omission caused the death of the deceased through malice aforethought. 21. The sections read as follows: “ 203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1132/eng@2026-01-28 3

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204. 22. Any person who is convicted of murder shall be sentenced to death.” The said provision creates elements of the offence of murder that must be proved by the Prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR to include: i. That the deceased died; ii. That the death was caused by an unlawful act or omission; iii. That the accused person directly or indirectly participated in the commission of the alleged offence; and iv. That there was malice aforethought. a. The death of the deceased 23. The postmortem form PEXH 1 filled by PW6, Dr. Ruben Kere Nyongesa, on 3rd July 2023, reveals that the deceased died of critical base skull injury due to physical assault. I find that the Prosecution proved this ingredient of the offence beyond reasonable doubt. b. Death was caused by an unlawful act or omission 24. The evidence of the doctor was that the deceased died as a result of critical base skull injury due to physical assault. The circumstances of this case coupled with other injuries on the body of the deceased point to a 3rd party having infiicted injuries that led to the death of the deceased. This Court therefore finds that the death of the deceased was not as a result of self-infiicted injuries. c. Proof that the accused person committed the unlawful act which caused the death of the deceased 25. It is the cause of death which exactly links the accused person with the commission of the offence the evidence may be either direct or circumstantial. The court must look for the proximate cause of which gave rise to the termination of the right to life under Art 26 of the Constitution, which is not excusable or justified. The court has also to bear in mind the legal ingredients of Section 213 of the Penal Code on causation issues and proof on homicide category of offences. 26. It is clear that this whole case rests on circumstantial evidence since no single witness saw the commission of the act that caused the deceased’s death. In such a scenario, this Court is called upon to closely examine the evidence on record, not only as its normal calling as the trial Court, but also to ascertain whether the evidence satisfies the following requirements: - 27. i. The circumstances from which an inference of guilt is sought to be drawn, must be congently and firmly established; ii. The circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; iii. 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 none else. The foregone principles were set out in the locus classicus case of R -vs- Kipkering Arap Koske & Another (1949) 16 EACA 135 and have repeatedly been used in subsequent cases including the Court https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1132/eng@2026-01-28 4

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of Appeal cases of GMI -vs- Republic (2013) eKLR, Musii Tulo vs. Republic (2014) eKLR among many others. 28. The Court of Appeal in Musii Tulo (supra) in expounding the above principles expressed itself as follows:“ 4. In order to ascertain whether or not the inculpatory facts put forward by the prosecution are incompatible with the innocence of the appellant and incapable of explanation upon any other reasonable hypothesis than that of guilty, we must also consider a further principle set out in the case of Musoke v. R (1958) EA 715 citing with approval Teper v. R (1952) AL 480 thus: “ It is also necessary before drawing the inference of accused's guilty from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.’” 29. Further, the Court of Appeal in Sawe- Vs- Republic [2003] KLR 364 at page 372 had this to say regarding circumstantial evidence: “ …. In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other coexisting circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution and always remains with the prosecution. It is a burden, which never shifts to the party accused…...” 30. Returning to the case at hand, PW1 testified that on 27th and 28th June 2023, he saw the accused person herein at 12.30 a.m. pushing the deceased herein and then lift him up and throw him outside the Makuti bar. According to him, the deceased was causing a nuisance and that when he went outside he found a large crowd gathered with the deceased lying on the ground unconscious after meters from the bar entrance. He told the Court that the accused had no injuries save for the blood oozing from his nostrils and that the accused continued dancing at the bar. On cross-examination, he told the Court that he did not see the accused person assault the deceased herein and when the accused person pushed the deceased outside he could not testify to what occurred the bar. The accused denied killing the deceased rather told the Court that the deceased fell while he attempted to assault him and he dodge his hits. He also called a witness, DW2, who told the Court that the deceased gained access to the bar the third time and went on been a nuisance and it was this point that his girlfriend called and he stepped outside. When he came back to the bar, he found deceased claiming that the accused had sent people to assault him and that as he tried to assault the accused person, he accused person dodged the hit causing the deceased to fall down and hit himself on the wall. The postmortem form PEXH 1 filled by PW6, Dr. Ruben Kere Nyongesa, on 3rd July 2023, reveals that the deceased died of critical base skull injury due to physical assault. It was also his testimony that the deceased herein had bruises on both his forearms. Further, PW6 testified that the body had multiple bruises on both forearms and an injury on the base of the head. He stated that if a weapon was a stone then there would have been lacerations on the skin. 31. The doctrine of last seen applies in this case. The doctrine states that the last person seen with the deceased will be presumed to have killed the deceased unless evidence to the contrary is adduced. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1132/eng@2026-01-28 5

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32. The said doctrine was discussed by the Court of Appeal in the case of; Kimani vs Republic (Criminal Appeal 41 of 2022) [2023] KECA1390 (KLR)(24November 2023)(Judgment) where the Court stated that: “ 31. ...The doctrine of ‘last seen alive’ is based on circumstantial evidence where the law prescribes that the person last seen with the deceased before their death was responsible for his or her death and the accused is expected to provide an explanation as to what happened…” 33. In the Nigerian Case of Achie vs State (1993), the Court relied on the case of Ismeni vs State (2011) Kuktan JSC on the doctrine of ‘last seen’ and expressed itself as follows: “ In a case of culpable homicide as in the present one where the doctrine of last seen has been applied, the law presumes that the person last seen with the deceased before the death was responsible for his death and the accused is expected to provide an explanation of what happened.” 33. The last seen doctrine stands as negation or an exception to the doctrine of “presumption of innocence”, as it is the law that where the victim was last seen by the accused, and is found dead, it will be presumed that the last person that he was last seen with is responsible for his death. 34. On the issue of positive identification of the accused as one of the perpetrators, this court has carefully examined the evidence presented. The evidence of PW1 and DW2 clearly demonstrated that it was the accused person who had thrown the deceased out of the bar in three different occasions. It is safe to act on the evidence on identification by recognition. This is premised on the settled principle in law that evidence of visual identification/recognition in criminal cases can cause miscarriage of justice if not carefully tested. The Court of Appeal in the case of Wamunga Vs Republic (1989) KLR 426 stated as under: “ It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.” 35. It was also held in Nzaro vs Republic (1991) KAR 212 and Kiarie vs Republic (1984) KLR 739 by the Court of Appeal that evidence of identification/recognition at night must be absolutely watertight to justify conviction. 36. The burden of explaining what happened to the deceased shifts to the accused. In answer to this prima facie evidence, the accused raised a defence which was dislodged by the evidence of PW1 and PW6. The manner in which the deceased met his death was unlawful. The death of the deceased was not justified or excusable. d. Malice aforethought 37. Having found that the Prosecution has proved the actus reus of the offence, the issue for determination is whether malice aforethought can be inferred. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1132/eng@2026-01-28 6

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38. The offence of murder is complete when, “malice aforethought” is established if, pursuant to Section 206 of the Penal Code evidence proves any one or more of the following circumstances: “ (a) 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; e. An intention by the act or omission to facilitate the ffight or escape from custody of any person who has committed or attempted to commit a felony.” 39. When none of the aforesaid elements are proved but there is otherwise an unlawful killing of another human being, the person commits the felony of manslaughter under Section 202 Penal Code which is punishable under Section 205 of the Penal Code by a term of imprisonment extending up to life imprisonment. 40. In Morris Aluoch v Republic Cr. Appeal No. 47 of 1996 [1997] eKLR), the Court of Appeal cited the case of Rex vs Tubere S/O Ochen (1945) 12 EACA 63 with approval where it was in stated as follows: “ If repeated blows infiicted the injury then malice aforethought could well be presumed but in this case we have to contend with one single blow which caused perforation of the intestine which led to internal bleeding which did not become apparent until the death of the deceased some four days late.” 41. In this case whereas none of the prosecution witnesses saw the accused person assault the deceased, they saw him push the deceased outside the club on several occasions on the material night. The accused person testimony was that the deceased was visibly drunk when he arrived at Makuti Club past midnight. With that knowledge one would have thought that the accused person would have handled the deceased with care and caution. Inasmuch as the accused person was responsible for maintaining security Makuti Club on the material night, he had a duty not to harm any patron including the deceased. The actions by the accused person had every intention of causing the death of the deceased herein. As already stated hereinabove Dr Reuben Kere Nyongesa opined that the deceased died due to critical base of skull injury due to physical assault. The accused does not deny that he threw the deceased out of the club on more than one occasion and after considering his defence and the testimony of his witness I do find that the same is incredible in light of the evidence of PW6 who was categorical that the fatal injuries sustained by the deceased were not self-infiicted E. Conclusion 42. In conclusion, this Court finds that all the ingredients of the offence of murder have been proved by the Prosecution beyond reasonable doubt. The accused person, Godrefy Opakwa, is hereby found guilty of the charge of murder of Dennis Khaemba and is convicted accordingly pursuant to Section 322(1) Criminal Procedure Code. Orders accordingly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1132/eng@2026-01-28 7

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DATED AND DELIVERED AT BUNGOMA THIS 28TH DAY OF JANUARY 2026. MWANAISHA .S. SHARIFF JUDGE In the presence of: Accused Mr Wattanga .for Accused Ms Matere for Prosecution Peter Machoni - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1132/eng@2026-01-28 8

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