High Court 3621 of 2026

County, the two Accused Persons jointly murdered STEPHEN AJIAMBO WANDERA alias MALO MALO. 3. The two Accused Persons pleaded not guilty to the charge. They were represented by Mr. Motuka Advocate. The prosecution called a total of eleven (11) witnesses. 4. The prosecution evidence was that PW1 DONALD MWASARO MASAMO who is an Uncle to the 1st Accused told the court that the 1st Accused Person went to his house in August 2019 and told him that one ALEX was disturbing her by asking her the whereabouts of her husband (the deceased). 5. PW1 said the 1st Accused told him that the deceased had gone to Nakuru to look for school fees for his children. 6. PW1 said he told her it was ok if she was being asked. He later met ALEX and they agreed to have a meeting. However, the meeting did not take place as the body of the deceased was recovered in a culvert at a railway line and the 1 st Accused weas arrested. Page 2 of 31

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7. PW2 JOSHUA NYAYO ARINGO said the deceased was his cousin and they grew up together. 8. PW2 said the deceased was married to the 1 st Accused Person. He said on 5th September 2019, he went to Taveta Police Station are reported that the deceased had disappeared. 9. He said the 1st Accused told him that the deceased had travelled to Nakuru to look for school fees for his child who was in Class 8. 10. He said the 1st Accused Person told PW2 that the deceased had sent her Kshs. 500. PW2 became suspicious because the deceased had not told anyone he was going to Nakuru. 11. PW2 said he used to see the 2nd Accused with the 1st Accused Person. He said he went and reported the disappearance of the deceased at Taveta Police Station. 12. PW2 said he went with 7 police officers to the house of the deceased and found the 1st Accused and 2nd Accused in the house with a son and a daughter. There was also a young man whom he did not know. Page 3 of 31

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13. PW2 said he received a report about a bad smell coming from a culvert near the railway line. He said he was called by a village elder called Kassim and he called the OCPD. 14. He said they went to house of the 1st Accused and they arrested the 2nd Accused Person. 15. The 1st Accused had gone to her home and they went there and knocked at the door. The mother of the 1 st Accused asked him why he was going to her house and yet she had not been given dowry. 16. He said the body of the deceased was recovered in a round culvert in a sack covered with a blanket and a bedsheet, the culvert was covered with branches. 17. PW2 said he was able to identify the deceased who had a bald head and a scar on the cheek. 18. PW2 said the deceased’s phone was found at the 1 st Accused’s mother’s house together with documents belonging to the deceased including the title deed Taveta/Mahoo/52(0) (0.12ha) in the name of the deceased. Page 4 of 31 for

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19.There was also a land sale agreement between the deceased and a 3rd Party. There were also birth certificates for the deceased’s children. 20. PW3 JOHN KADZO MBWANA said he was a neighbour to the deceased. He said in July 2019, he was in his house with his wife. They were asleep when they heard a shout from the deceased’s house. He asked “what is happening here?” 21. PW3 and his wife went out but they did not go to the deceased’s house. 22. On 18th August 2019, PW3 said he saw the deceased carrying the 1st Accused with a bicycle. He said he did not see the deceased again. 23. PW3 said he used to see the 2 nd Accused at the house of the deceased. PW3 said he asked the 2 nd Accused the whereabouts of the deceased and the 2 nd Accused said he had travelled to Nakuru. 24. PW3 said he met two people who told him they were looking for the deceased. He told them to report to the police. Page 5 of 31

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25. On 12th September 2019, two police officers went to the deceased’s house with Aringo (PW2). They were looking for the deceased. 26. On 13th September 2019 Mr. Kassim, a village elder blew the whistle. The body of the deceased had been found at a culvert. 27. PW4 ALEX OUMA OLOO said the deceased was his Uncle. He said in August 2019, he received a call from his nephew Peter Omondi who told him he could not reach the deceased by phone. 28. PW4 went and inquired from the 1st Accused where the deceased was and she told him he had gone to Nakuru to look for work. PW4 said he found the 1st Accused with 2 people he did not know. 29. The 1st Accused told PW4 that the deceased did not want anyone to know he had travelling to Nakuru. 30. PW4 said they had a family meeting and maintained that the deceased had gone to Nakuru. Page 6 of 31 1 st Accused

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31. Later the body was recovered in a culvert and the 1 st and 2nd Accused Persons were arrested. 32. PW5 KASSIM PETRO said he was a neighbour to the deceased and he knew the deceased with his wife who is the 1st Accused Person in this case. 33. He said the deceased and the 1st Accused had two children. 34. PW5 said the 1st Accused was operating a small hotel at Timbila. 35. PW5 said he was informed by a herdsman that there was something unusual at the railway at Malkiloriti. 36. PW5 informed Aringo (PW2) who informed the police and the body of the deceased was recovered. 37. PW6 WILLIAM JUMANNE NDARAHA who was a neighbour to the deceased said the 1st Accused went to his house on 25th August 2019 and told him to look after her house since the deceased had gone to Nakuru to look for a job. PW6 said later he learnt that the decomposed body of the deceased had been recovered in a culvert. Page 7 of 31

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38. PW7 CORNELLY CAMCUS, the 19 year old son of the deceased said the 2nd Accused was a neighbour at Mahoo but when they moved to Malkiroriti, he came and started to live with them. 39. He said one day in July 2019 at 4a.m his mother (the 1 st Accused) and the deceased (his father) had a quarrel. 40. The 2nd Accused came to assist the 1st Accused who was assaulted by the deceased. 41. PW7 said he went to school and left them there. His mother did not leave but there was anger. 42. PW7 said the 1st Accused told him his father had gone to look for a job at Nakuru. 43. He later learnt that the father had died. 44. PW8 DR AYUB SULEIMAN who did a post mortem on the deceased said the cause of death was severe head injuries secondary to assault and haemorrhage neurovascular damage. Page 8 of 31 secondary to

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45. PW10 No. 236629 CIP GEORGE OCHIENG investigated this case and recorded the witness statements and charged the Accused Persons. 46. PW11 No. 235243 CIP PETER KYALO, the Scenes of Crime Officer took pictures at the scene where the body was recovered which he produced as exhibits in this case. 47. At the close of the prosecution case, this court found that the prosecution had established a primafacie case to warrant the two Accused to be put on their defence and the court ruled that both Accused Persons had a case to answer and proceeded to hear the defence case. 48. The 1st Accused Person said the deceased was her husband and that they had been married for 18 years and they had 2 children. 49. She said when she was arrested she was staying with her mother who was sick with permission of the deceased. 50. She said the deceased took the children to her and told her to return when schools opened. Page 9 of 31

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51. Before schools opened, the 1st Accused Person said the deceased went to her place of work and told her he was going to Nakuru to look for a job. 52. She tried to call him after 3 days and the call was not going through. 53. The 1st Accused said she was arrested on 13th September 2019 at 9p.m while at her mother’s house. 54. The 1st Accused said she did not kill her husband and she denied allegations that the 2nd Accused was her lover and said it was the deceased who took the 2 nd Accused to their home and gave him a place to stay. 55. The 1st Accused said the panga produced in court belonged to her mother. She said she had a kiosk where she used to sell food. 56. She said she employed 2 boys from Tanzania to help her sell food. She said Accused 2 was not working at her kiosk. Page 10 of 31

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57. The 2nd Accused Person said in his defence that he first met the deceased at Timbila and it was the deceased who took him to his house and gave him a place to stay. 58. He said he did not know why he was arrested. He said one day he saw the 1st Accused and the deceased fighting and he separated them. 59. The 2nd Accused also said when the deceased got lost, he did not know what happened. 60. He said he was not involved in the disappearance or death of the deceased. 61. The parties filed written submissions as follows:- The prosecution submitted that they called eleven witnesses before closing their case, and after a ruling on 19th September 2025 that the accused had a case to answer, both elected to give sworn evidence in their defence. 62.The prosecution in their submissions then gave details on the three essential elements of murder that must be proved beyond reasonable doubt: the death of the deceased and its Page 11 of 31

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cause, that the accused caused the unlawful act resulting in death, and that they acted with malice aforethought. 63.On the first element, the prosecution relies on the testimony of Dr Ayub and Dr Shem, who conducted the postmortem at Taveta Subcounty Hospital on 16th August 2019. 64.The body was found under a culvert with multiple severe injuries including a fractured mandible, fractured tibia and fibula, fractured wrist, and fractures to the C1 and C2 vertebrae of the spinal cord. 65.The postmortem report, produced as an exhibit, indicated the cause of death as severe head injury secondary to assault and hemorrhage secondary to neurovascular damage, thereby establishing the fact of death and its cause. 66.Regarding the accused persons' responsibility for the death, the prosecution presents a chain of circumstantial evidence. 67. PW1, Donald Mwasalu who is uncle to the first accused, testified that she came to his home in August 2019 claiming someone was bothering her and stated her husband had gone to look for school fees. 68.PW2, Joshua Nyayo Aringo, the deceased's cousin, testified that he reported the disappearance to Taveta police station Page 12 of 31

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after three weeks, having been told by the first accused that the deceased had gone to Nakuru, which was unusual. 69.He further testified that the deceased had previously disclosed quarrelling with his wife, and that he later gave both accused persons a lift and again received the same explanation about Nakuru. 70.When police later visited the first accused's house with PW2, they found her with her child and she maintained the same story. 71.After the body was recovered from a culvert and identified by PW2, police visited the accused persons' residence and recovered a bed frame, pillow, and bedsheets bearing blood stains. 72.CI George Ochieng, the investigating officer, testified that upon visiting the house he met the second accused who was introduced as an employee. 73.Subsequent DNA analysis of the blood-stained headboard generated a male DNA profile which the accused persons could not explain, despite both living with the deceased in the same house. Page 13 of 31

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74.The prosecution contends that the first accused's persistent claims that the deceased had gone to Nakuru and had sent money were merely attempts to deflect inquiries about his disappearance. 75.They argue that although there were no direct eyewitnesses, the circumstantial evidence forms an interconnected chain pointing irresistibly to the accused persons' guilt. 76.On the element of malice aforethought, the prosecution invokes Section 206 of the Penal Code and cites case law establishing that malice can be inferred from factors including the nature of the weapon used, the part of the body targeted, and the conduct of the accused. 77.The submissions highlight that the deceased and first accused had previous domestic issues, after which she moved away but later took the second accused as a boyfriend, and both allegedly acted to eliminate the deceased. 78.The postmortem report revealing extensive and severe injuries demonstrates an intention to cause death or grievous harm, thereby establishing the necessary malice aforethought. 79.The prosecution notes that both accused persons offered only bare denials in their sworn testimony, failing to provide any Page 14 of 31

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credible explanation for the incriminating circumstances against them. 80. In conclusion, while acknowledging the absence of direct evidence, the submissions rely on established principles governing circumstantial evidence, citing the case of R v Kipkering Arap Koske which requires that circumstances must be cogently established, point unerringly to guilt, and form a complete chain leaving no reasonable hypothesis except that of guilt. 81.The prosecution argues that the undisputed fact of the accused persons living with the deceased, the false explanations about his whereabouts, the recovery of blood-stained items bearing his DNA profile, and the brutal nature of the injuries collectively prove the case beyond reasonable doubt. 82. They therefore pray that both accused persons be found guilty of murder, convicted, and sentenced accordingly. 83.The defence counsel submitted that accused persons were charged with murder contrary to section 203 as read with section 204 of the Penal Code. 84.It was alleged that between August 2019 and 13th September 2019 at Malkiloriti village in Taveta Sub-County within Taita Page 15 of 31

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Taveta County, they jointly murdered one Stephen Ajiambo Wandera alias Malo Malo. 85. Throughout the trial, the prosecution called eleven witnesses and produced various exhibits including a blanket, bedsheets, a panga, a title deed belonging to the deceased, sale agreements, birth certificates, an KCPE certificate, a post mortem report, acknowledgment an exhibit slip, memo, photographs a DNA report, an and a certificate of photographic print, while the accused persons testified in their own defence as DW1 and DW2. 86.The question for determination is whether the prosecution has discharged its burden of proof to the required standard in law, which is beyond reasonable doubt. 87.The defence counsel further submitted that the offence of murder under Section 203 of the Penal Code requires the prosecution to prove three essential ingredients beyond reasonable doubt: the death of the deceased and the cause thereof, that the accused committed the unlawful act which caused the death, and that aforethought. Page 16 of 31 the accused had malice

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88.From the post mortem report produced as exhibit 12 by PW8, it is evident that the deceased died as a result of severe head injury secondary to assault, with hemorrhage secondary to neurovascular damage to the carotid artery and jugular vein, as the major vessels of the neck had been cut. 89.While the cause of death has been established, the prosecution has failed completely to prove that the accused persons herein committed the unlawful act that resulted in that death. 90.It is clear from the entirety of the proceedings, and indeed from the admissions of the prosecution witnesses including the investigating officer, that no single witness saw the crime being committed. 91.There is no credible and compelling circumstantial evidence that can be deduced from the testimonies of the prosecution witnesses or from the exhibits produced to implicate either accused person in the commission of this offence. 92.PW7 corroborated the testimony of DW1 that at all material times between August 2019 and September 2019, the first accused was at her mother's house, which is kilometers away from her matrimonial home in Malkiloriti village. Page 17 of 31

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93.Similarly, PW7 corroborated DW2's testimony that Hemed Rashid Abed was never in the deceased's house, and DW2 explained that while he sometimes cleaned the matrimonial home of the first accused and the deceased as instructed by the deceased, he never had access to the master bedroom. 94. DW2 further stated that there was never any bad blood between himself and the deceased, and no prosecution witness contradicted this assertion or alluded to any animosity between the deceased and the second accused. In totality, no evidence has been presented that can point this Court to the conclusion that either accused committed the crime or was involved in any manner whatsoever. 95.Furthermore, the alleged panga which the investigating officer suggested was the murder weapon did not belong to either accused person. 96.On the ingredient of malice aforethought, the tests to be applied include considering the nature of the weapon used, how it was used, the manner in which injuries were inflicted, the part of the body injured, and the conduct of the assailants before, during and immediately after the injuries were inflicted. Page 18 of 31

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97.None of these tests can be satisfied in the present circumstances because no accused person has been shown to have committed the alleged crime, no prosecution witness witnessed the commission of the crime, no circumstantial evidence was led to place either accused at the crime scene, and the alleged murder weapon did not belong to either accused. 98.Having failed to adduce evidence that the accused committed the crime, this limb of malice aforethought must automatically fail. 99.The burden of proof in criminal matters never shifts from the prosecution, and it is now well settled that the prosecution must prove its case against an accused person beyond any reasonable doubt. 100. Suspicion, however strong, cannot provide a basis for inferring guilt, which must be proved by evidence. 101. The prosecution cannot invite this Court to convict on the basis of inferences and conjecture in the absence of credible evidence proving the guilt of the accused. 102. From the totality of the evidence adduced, the prosecution has failed to prove the ingredients of murder against either Page 19 of 31

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accused person, and this Court has no alternative but to acquit them 103. I have carefully considered the evidence adduced in this case. It is the duty of the prosecution to prove the guilt of the Accused Persons. The standard of proof in criminal case is beyond reasonable doubt. 104. There is evidence that the deceased, Stephen Ajiambo Wandera, was the husband of the 1st Accused, Violet Nahabu Rayani, with whom they had been married for 18 years and had two children. 105. The 2nd Accused, Hemed Rashid Abed, was a young man whom the deceased had taken into his home and given a place to stay. 106. PW7, Cornellius Camcus, the 19-year-old son of the deceased and the 1st Accused, testified that one day in July 2019 at approximately 4.00 a.m., his parents had a quarrel, and the 2nd Accused came to assist the 1st Accused who was being assaulted by the deceased. 107. He left them there when he went to school, and there was anger between them. The evidence of PW3, John Kadzo Page 20 of 31

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Mbwana, a neighbour, revealed that in July 2019, he was asleep with his wife when they heard a shout from the deceased's house, with someone asking "what is happening here?" This evidence establishes a tense domestic atmosphere in the household shortly before the deceased's disappearance. 108. The chronology of events following the deceased's disappearance is critical. The deceased was last seen alive in mid-August 2019. 109. PW3 testified that on 18th August 2019, he saw the deceased carrying the 1st Accused on a bicycle, and thereafter he did not see the deceased again. 110. Following this date, both Accused Persons consistently and falsely represented to multiple witnesses that the deceased had travelled to Nakuru to look for school fees or employment. 111. PW1, Donald Mwasaro Masamo, an uncle to the 1st Accused, testified that she went to his house in August 2019 and told him the deceased had gone to Nakuru to look for school fees. 112. PW2, Joshua Nyayo Aringo, the deceased's cousin, was told the same story, including the detail that the deceased had sent her Kshs. 500. Page 21 of 31

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113. PW2 became suspicious because the deceased had not informed anyone of such travel plans. 114. PW4, Alex Ouma Oloo, another relative, received the identical explanation. 115. PW6, William Jumanne Ndaraha, a neighbour, testified that the 1st Accused went to his house on 25th August 2019 and asked him to look after her house as the deceased had gone to Nakuru to look for a job. 116. This consistent narrative, repeated to multiple independent witnesses over several weeks, was a deliberate fabrication designed to deflect inquiries and conceal the deceased's true fate. 117. The falsehoods were maintained until the truth was dramatically uncovered. 118. On or about 13th September 2019, a herdsman alerted PW5, Kassim Petro, a village elder, about something unusual at a culvert near the railway line at Malkiloriti. 119. PW5 informed PW2, who notified the police. Upon visiting the scene, authorities discovered the decomposed body of the deceased stuffed in a sack, covered with a blanket and a Page 22 of 31

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bedsheet, inside a round culvert that had been concealed with branches. 120. PW2 was able to identify the deceased through distinctive features including a bald head and a scar on the cheek. 121. The post-mortem examination conducted by PW8, Dr. Ayub Suleiman, revealed the cause of death to be severe head injuries secondary to assault and haemorrhage secondary to neurovascular damage. 122. The body exhibited multiple severe injuries including a fractured mandible, fractured tibia and fibula, fractured wrist, and fractures to the C1 and C2 vertebrae of the spinal cord. These injuries were consistent with a brutal and violent assault. 123. Following the recovery of the body, police visited the residence of the deceased. They found the 1st Accused and 2nd Accused in the house. 124. The police recovered from the house a bed frame, pillow, and bedsheets bearing blood stains. 125. Subsequent DNA analysis of generated a male DNA profile. Page 23 of 31 these blood-stained items

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126. The accused persons did not offer a credible explanation for the presence of the deceased's blood on these items, despite both living with the deceased in the same house. 127. Further investigation led to the recovery of the deceased's phone and personal documents at the house of the 1st Accused's mother, including the deceased's title deed for land parcel Taveta/Mahoo/52(0), a land sale agreement involving the deceased, and birth certificates for the deceased's children. 128. These items were in the possession of the 1st Accused's family, not in the matrimonial home where the deceased last resided. 129. The defence offered by both accused persons was a bare denial. The 1st Accused claimed she was staying at her mother's house caring for a sick mother with the deceased's permission when he disappeared, and that the deceased had personally informed her he was going to Nakuru. 130. She denied that the 2nd Accused was her lover, asserting that it was the deceased who brought him home. 131. The 2nd Accused claimed he was merely a guest of the deceased, had separated a fight between the spouses, and knew nothing of the disappearance or death. Page 24 of 31

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132. However, these defences are demolished by the overwhelming weight of circumstantial evidence against them. 133. The law regarding circumstantial evidence is well settled and it provides that for a court to base a conviction wholly on circumstantial evidence, the inculpatory facts must be inconsistent with the innocence of the accused person and must be incapable of explanation upon any other reasonable hypothesis than the guilt of the accused, and must exclude any reasonable co-existing circumstances which might weaken or destroy the inference of guilt. 134. In a case depending exclusively on circumstantial evidence, the court must, before deciding upon a conviction, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt, and must be sure that there are no other co-existing circumstances which would weaken or destroy the inference . 135. Further, the inculpatory facts relied on by the prosecution must be incompatible with the innocence of the accused and could only be explained on the basis that the accused person is Page 25 of 31

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guilty, with no other factors or circumstances that could weaken the chain of evidence being relied upon . 136. Applying these principles to the present case, this court finds that the circumstantial evidence against the accused persons is watertight and points unerringly to their guilt. 137. The chain of circumstances is complete and admits of no other reasonable hypothesis. 138. First, both accused persons were present in the household where the deceased last resided. 139. The evidence of PW7 establishes a violent altercation between the spouses in July 2019, with the 2nd Accused intervening on the side of the 1st Accused against the deceased. This establishes both motive and opportunity. 140. Second, following the deceased's disappearance in mid-August 2019, both accused persons embarked on a concerted campaign of deception, falsely informing multiple independent witnesses over several weeks that the deceased had travelled to Nakuru. 141. These were not isolated statements but a sustained pattern of lies designed to mislead inquiries and prevent any search for the deceased. The law is clear that false explanations by an Page 26 of 31

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accused person can constitute evidence of guilt, as they demonstrate a consciousness of guilt and an attempt to conceal the truth. 142. Third, the body of the deceased was discovered in a culvert near the railway line, concealed in a sack and covered with a blanket and bedsheet. 143. The post-mortem revealed extensive and severe injuries consistent with a brutal assault. 144. Fourth, blood-stained items including a bed frame, pillow, and bedsheets were recovered from the house where both accused persons resided with the deceased. 145. DNA analysis confirmed that the blood on these items generated a male DNA profile. The accused persons offered no explanation for the presence of the deceased's blood on these items. 146. This evidence places the deceased at the scene of his death and directly links the accused persons to the fatal assault. 147. The blood-stained bed frame is particularly significant, as it indicates that the deceased was attacked in his own bed, the very place where he should have been safe. Page 27 of 31

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148. The accused persons, being the only occupants of the house together with the deceased, must explain how the deceased came to be fatally injured in that house and his blood deposited on the bedding. 149. Their silence and bare denials are, in the face of such compelling evidence, an indication of guilt. 150. Fifth, the recovery of the deceased's phone and personal documents, including his title deed, from the house of the 1st Accused's mother further inculpates the 1st Accused. 151. The removal of these documents from the matrimonial home to to the 1st Accused’s mother's house demonstrates an attempt to conceal or dispose of the deceased's property, consistent with a guilty mind. 152. The deceased's phone, in particular, would have been a critical means of communication, and its absence from his person when his body was found, coupled with its recovery from the 1st Accused's family, points to her involvement in his death and subsequent cover-up. 153. The defence that the 1st Accused was staying at her mother's house is contradicted by the consistent presence of both Page 28 of 31

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accused persons at the matrimonial home when witnesses visited. 154. PW2 testified that when he went to the house of the deceased with police officers, he found both the 1st and 2nd Accused in the house with the children. 155. This belies the claim that the 1st Accused was away caring for her mother. 156. The defence that the 2nd Accused was merely a guest and had no conflict with the deceased is similarly demolished by PW7's evidence of the 2nd Accused's involvement in the domestic quarrel, where he took sides against the deceased. 157. The defence that the panga produced in court belonged to the 1st Accused's mother is irrelevant, as the prosecution's case does not rest on the panga as the murder weapon, but on the overwhelming circumstantial evidence of the accused persons' involvement. 158. On the element of malice aforethought, as defined under Section 206 of the Penal Code, the prosecution has more than satisfied the burden of proof. 159. Malice aforethought is deemed established if the prosecution proves intention to cause death or grievous harm, knowledge Page 29 of 31

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that the act causing death will probably cause death or grievous harm, or intention to commit a felony . 160. The extensive and severe injuries inflicted on the deceased including a fractured mandible, fractured tibia and fibula, fractured wrist, fractures to the C1 and C2 vertebrae, and severed carotid artery and jugular vein demonstrate an unequivocal intention to cause death or at the very least grievous harm. 161. The ferocity of the attack, targeting vital areas of the body including the head and neck, leaves no doubt that the assailants acted with malice aforethought. 162. I find that the prosecution has established beyond reasonable doubt that the deceased was dead, that the two accused persons caused his death through an unlawful act, and that they acted with malice aforethought. 163. The circumstantial evidence against them is overwhelming, forming a complete and unbroken chain that points irresistibly to their guilt and is incapable of explanation upon any other reasonable hypothesis. Their defences are mere denials, completely overwhelmed by the weight of the evidence against them. Page 30 of 31

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164. This court finds VIOLET NAHARU RAYANI and HEMED RASHID ABED alias KICHAPO GUILTY of murder contrary to Section 203 as read with Section 204 of the Penal Code. 165. They are hereby convicted accordingly. Dated, signed and delivered this 17 th day of March, 2026 in open court at Voi. ASENATH ONGERI JUDGE In the presence of:Court Assistant: Millicent/Mabishi State Counsel: ……………………… …………………………………….. for the Accused Persons The Accused Persons Page 31 of 31

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