Republic v Nduimana Salvation & 1 other

4. PW1 testified that he inquired from the deceased whether there existed a debt between the deceased and Baba Kingi, but the deceased did not respond. He asserted that Baba Kingi produced Kshs. 500 and appeared unwilling to pay his bill, whereupon the deceased allegedly snatched the money. PW1 stated that the deceased and Baba Kingi started quarrelling and pushing each other, prompting the bar operator, Mr. Chege, to expel them from the premises. The quarrel and pushing allegedly continued outside. 5. He stated that Baba Kingi left to go and inform his brother. He then left with the deceased towards another drinking establishment referred to as Sister Bar but he remained outside Sister Bar while the deceased entered. He stated the deceased met with a person called Ramadhan and a fight erupted. That the fight moved outside while the parties were still fighting. He indicated that the deceased was fighting with the 1st accused, and that the deceased appeared to be overpowering the 1st accused that the 2nd accused then joined and stabbed the deceased with a knife. 6. He described the weapon as a long sword sharpened on both sides, about half the length of his arm noting that upon witnessing the stabbing, he ran away to call people. When he returned, the deceased had already been taken to hospital. That the incident occurred at about 6.00 p.m., and that there was sufficient daylight to see clearly. He testified that he saw the deceased stabbed on the back and that the deceased bled profusely. 7. During cross-examination, PW1 stated that the incident occurred within the area where he lives. He stated that he knew Baba Kingi as a shopkeeper dealing in tools including pangas. He stated that he saw the 2nd accused stab the deceased. He admitted that in his police statement, he recorded that while he was standing outside, the deceased came out saying he had been stabbed. He also stated that he recorded that the deceased was being chased by three Burundians, two of whom he knew as brothers to Baba Kingi. He maintained that the deceased was stabbed while inside the bar. 8. Further, he stated that he had known both accused persons prior to the incident. He further stated that after he ran away, he did not know where the deceased was taken. That he was beaten with a rungu by the 2nd accused. He stated that he had not seen the knife in court. He also stated that one Joseph Eregai was his neighbour, and that they went to the police station to record statements, although they were called separately. PW1 reiterated that Baba Kingi was a brother to the two accused persons and that all of them lived within the same area. 9. PW2 testified that he is a businessman operating a pub known as Chege at Kalobeyei Village 1. He stated that on 01/10/2024, the deceased came to his pub and caused disturbance. PW2 testified that he persuaded the deceased to leave as he was disturbing customers. He stated that PW1 was in the company of the deceased. He stated that the deceased had a stone and was disturbing people passing by. PW2 further stated that there was a motorcyclist who was snatched Kshs. 500, after which the deceased left with the money and the motorcyclist also left. PW2 stated that he spoke with the deceased, PW1, and another person, and they left. PW2 returned to his business. 10. During cross-examination, he stated that he did not witness any altercation between the deceased and the accused persons. He stated that the motorcyclist whose money was snatched was Baba Kingi. He confirmed having recorded a statement with the police. He pointed that his statement recorded the incident time as about 1.00 p.m., and that two people he did not know had ordered food, ate and drank. He stated that Baba Kingi came and was snatched Kshs. 500 and advised Baba Kingi to report the matter to the police, but PW2 did not accompany him. PW2 concluded that he did not know who killed the deceased. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4627/eng@2026-02-13 2

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11. PW3 testified that he resides at Kalobeyei Village 1 and works in construction. He stated that on 01/10/2024, between 6.00 p.m. and 7.00 p.m. he saw people fighting. He stated that he suddenly saw the deceased, whom he knew as Teketeke, running towards him while asking for help. He stated that the deceased fell in front of him and that he observed the deceased had been stabbed on the right side at the back. That he then called a cyclist to take the deceased to hospital, accompanied by another person. They took the deceased to Watikobeyo Hospital. He indicated that the deceased told him that he had been injured by brothers to Baba Kingi. 12. He stated that he remained behind in order to find out what had happened. PW3 testified that he later went to the house of the 2nd accused together with other friends of the deceased. He stated that they knocked, and the accused came out holding a knife and stabbed PW3 on the left hand. PW3 stated that he ran to hospital without finding out further why the deceased had been stabbed. Further, that he later found the deceased being treated, and that the deceased died while PW3 was still at the hospital. PW3 stated that he knew the accused persons well as they lived in the same area. He asserted that it was the two accused persons who stabbed the deceased. 13. During cross-examination, PW3 stated that he only knew one person called Baba Kingi in the area, and that he did not know another Baba Kingi alleged to sell clothes and food. He stated that before the incident he knew the two accused persons as brothers to Baba Kingi. He confirmed recording a statement with the police. He acknowledged that in his statement, he recorded that the incident occurred at about 8.00 p.m., though in court he stated it occurred between 6.00 p.m. and 7.00 p.m. PW3 stated that when he went to the house of the 2nd accused, the door was locked from inside and he did not see the 1st accused. He told the court that he did not witness the fight and did not know who stabbed the deceased. 14. PW4 testified that he is stationed at the Turkana West DCI Office, Kakuma, and that he was the Investigating Officer in the matter. He stated that on 02/10/2024, he was assigned the file and briefed on the events. He stated to have been informed that on 01/10/2024 at about 1300 hours, the deceased, one Iran Paulo alias Teketeke, had been drinking with friends at Chege’s Bar when he took Kshs. 500 from a Burundian refugee known as Baba Kingi. That the deceased and Baba Kingi quarrelled, and that the bar operator expelled them. 15. It was his case that that the deceased was drunk and hit Baba Kingi with a stone. He testified that Baba Kingi was allowed to exit through the back door and was advised to go and report the matter. PW4 further stated that the deceased and his friends continued drinking until about 5.00 p.m., and thereafter relocated to Sister Bar at Kalobeyei. He indicated that at about 9.00 p.m. the deceased made noise claiming that he had been stabbed at the back. He stated that the three boys followed him, including the two accused persons, and that they were identified by PW3. The third person was not identified. 16. He stated that the post-mortem examination was conducted on 22/10/2024 by Dr. Ebenyo, who concluded that the cause of death was respiratory failure following rupture of the lungs resulting from a sharp object injury. That the two accused persons were summoned to the police station, and upon reporting, he arrested them. 17. On cross-examination, he confirmed that the murder weapon was never recovered. He stated that he arrested the accused persons when they responded to summons. He stated that after the incident, the accused persons were attacked by members of the public and their huts destroyed. He denied that the accused persons went to the police station to complain about the attack. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4627/eng@2026-02-13 3

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18. He conceded that the investigation diary records important details in the case adding that investigations were conducted in collaboration with the DRS, and that refugees have manifests kept electronically. He admitted that he did not consult the DRS to confirm the identities of the accused persons. He further admitted that he did not seek to establish the true identity of Baba Kingi, nor did he establish the number of Burundian refugees at Kalobeyei, which he stated could have been obtained from the DRS. 19. He stated that during interrogation he established that the two accused persons were brothers and also brothers to Baba Kingi, though he admitted he did not capture that relationship in his statement. That he did not conduct an identification parade because the witnesses knew the suspects. He acknowledged that PW3’s statement captured the presence of a young Turkana man who had been chased by the deceased with a club, but PW4 did not establish the identity of that young man. He asserted the deceased was portrayed as a troublemaker, but he could not confirm whether the deceased had many enemies. Further, that Sister Bar was tented, and that the deceased was stabbed outside the tent but within the compound. The Defence Case 20. DW1 testified that he is a refugee residing at Kakuma 4, Zone 3, Block 7, and that he is a Burundi national in possession of a refugee identity card and a manifest. He identified his refugee identity card as No. 10243118 which he produced as exhibits. 21. It was his case that on 30/09/2024, he woke up and took his mobile phone to a neighbour’s shop for charging at Kakuma A, where he resided. He thereafter left to go to his shamba at Don Bosco to attend to his vegetables. He remained there until about 6.00 p.m., after which he went home, bathed, and returned to the shop to collect his phone. 22. He stated that at about 7.30 p.m., while on his way home, he was touched by someone who he recognised by voice but did not know his name. He was arrested and taken to a nearby police vehicle, and thereafter taken to the police station where he remained until the following day. On the next day, the police said that whoever among the arrested would pay Kshs. 5,000, would be released. He stated that some persons who were with him paid the said amount and were released. He stated that he only had Kshs. 1,000, which the police stated was insufficient. 23. He added that he was removed from cells on 04/10/2024, and taken to court, where he was told to return on 16/10/2024. He was back in court on 05/11/2024, when he was read to the charge of murder of a person unknown to him. He further testified that on 01/11/2024, he was still at Kakuma Police Station, but attended court during the prosecution hearing prior to which he had been served with a statement by one Joseph Loriko, whose maker was never called as a witness. 24. DW1 stated that in the said statement, the maker indicated that the deceased was with Joseph Eregai, with whom he fought and injured. The statement also indicated that the deceased was later seen chasing someone with a panga. He claimed that since the case began, he had never seen a photograph of the deceased, yet in cases of death police ordinarily take photographs at the scene. He also highlighted that the Investigating Officer stated the incident occurred at 9.00 p.m., whereas PW1 stated it occurred at 5.00 p.m. 25. During cross-examination, DW1 stated that he was brought to court on 04/10/2024 and did not know whether investigations were ongoing at the time. He stated that he was arrested for being on the streets at night. He stated that the arresting officer was in uniform and armed, and that he was put in a police vehicle, though he could not recall the vehicle registration number. He stated that he owned an Infinix https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4627/eng@2026-02-13 4

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Hot 10 phone with a bright torchlight but admitted that he had no documentary proof to show he was at Kakuma Police Station on the date the incident occurred. He further stated that he had not complained to anyone about people being released upon payment of Kshs. 5,000. He maintained that he was not at the place where the deceased was killed because he was in police cells. He stated that he did not know why the case was “planted” on him. 26. He added that the incident occurred at Kalobeyei, whereas he lived in Kakuma 1, and that though both are refugee camps, they are far apart. He stated that refugees move freely within the camps but he did not know a person called Baba Kingi. He stated that in Kakuma, he only had one brother, and that it was not Baba Kingi. He affirmed to have been arrested on 30/09/2024 and was not brought to court until 05/10/2024. 27. DW2, the 2nd accused, testified to have been a resident of Kalobeyei Village 1 Camp, aged 35 years and a refugee from Burundi. He testified in his defence to the charge of murder. He stated that on 01/10/2024, he woke up early and went to hospital to visit his wife at Kenya Red Cross Kalobeyei, arriving at about 8.00 a.m. He stated that he found his wife very sick and unattended, and therefore stayed with her until about 5.00 p. At about 5.45 p.m., he stayed with Mzee Hassan on a bench as Mzee Hassan comforted him until dusk and was thus not at the scene of the incident. DW2 stated that he would call Mzee Hassan as a witness to prove that the mzee asked him to go home with him, but he declined because he needed to collect medication for his wife’s night dose. 28. He added that he received the medication at about 8.30 p.m., ensured that his wife took the medication, and thereafter left with Mzee Hassan. He stated that before reaching home, they passed by Mzee Hassan’s house and found many people gathered and got the received information that his business premises had been broken into. He stated that he operated a welding workshop. He stated that he proceeded to the premises and observed the breakage through the iron wall. Upon checking, he discovered that motorcycle spare parts, welding machines, and grinding machines had been stolen. 29. He indicated that the following day, on 02/10/2024, when he proceeded to the police station at Village 1, he met three police officers (one woman and two men) and reported the theft. That after recording the complaint, the police began interrogating him about his workshop location. He stated that one officer ordered him to stand and remove his belt and shoes for purposes of investigation. He stated that he was then put in the cells. He stated that he pleaded with the officers due to his wife’s sickness, but they did not assist him. He stated that this occurred at about 8.30 a.m. 30. DW2 testified that a team went to his workshop and took photographs. One officer later informed him that they had confirmed the breakage and would assist him, but declined to release him from custody. He stated that he spent the night in custody on 02/10/2024. That he was thereafter removed from the cells, placed in a police vehicle, and taken to Kakuma Police Station, where he remained in custody until 04/10/2024, when he was taken to court together with others. He stated that in court, the police requested time to continue investigations, and they were returned to the cells until 16/10/2024, when he was taken to court again. The police again requested more time which the court granted on terms that investigations be concluded by 29/10/2024, failing which he would be set free. 31. During cross-examination, he stated that his wife is called Justin Dasabo Mukama, with whom he shared the same manifest. He maintained to have taken his wife to hospital on 29/09/2024 at Kenya Red Cross Village 1 and added that he operated a workshop but had not obtained a licence. That on 02/10/2024, he went to the police post to report the break-in but was not issued with any document. He stated that it was the police who told him they had visited the shop and taken photographs. 32. DW3, Hassan Bunguru Bwonge, testified that he is a Burundian national living in Kenya as a refugee and is employed by the Kenya Red Cross as a cleaner. He testified that up to the previous year, he https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4627/eng@2026-02-13 5

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served as chairman of Neighbourhood 6 & 2, Kalobeyei. He stated that the 2nd accused reported to him that his shop had been broken into and that he went with the 2nd accused and found the premises, a welding workshop, had in fact, been broken into. 33. DW3 further testified that the incident occurred at night, and they decided to report the matter the next day. He indicated that he only knew the 2nd accused and did not know the 1st accused adding that he did not know the Sisters Bar adding that that nobody had died in his neighbourhood. 34. On cross-examination, DW3 stated that although he worked for Kenya Red Cross as a cleaner, he had not carried his job card. He stated that he had been elected neighbourhood chairman by refugees, but had no documentary proof of that position. He denied being in the know whether the 2nd accused recorded a statement with the police, did not witness the shop being broken into and that he could not recall the exact date when the report was made to him. He stated that he came to court because he was required to give evidence, reiterating that nobody died in his neighbourhood around that time. Issues, Analysis and Determination 1 35. The general, and never shifting rule in criminal cases is that the burden of proof rests throughout with the prosecution and that the accused has no burden or onus of proof except in a few cases where he would be under the burden to prove certain where the law says otherwise. In Republic v Subordinate Court of the First-Class Magistrate at City Hall, Nairobi and another ex-parte Yougindar Pall Sennik and another Retread Limited (2006) 1 EA 330 (Nyamu J), it was stated that the burden can be shifted where the law, pursuant to Section 109 of the Evidence Act provides for it. This can be done by Parliament by a law shifting the burden of proving certain facts and the same is not a constitutional issue where any such other law provides. 36. Section 203 defines the ofience of murder and requires proof of four elements beyond reasonable doubt, for the prosecution to succeed in a charge of the ofience of murder. The four elements are; proof of death, the connection between accused and the cause of that death, proof that the death was due to an unlawful act or omission, and, that the unlawful killing was propelled with malice aforethought.1 37. On the first ingredient on the proof of death, there is no dispute about the deceased’s death. In addition to the post-mortem report of Dr. Ebenyo exhibited in court, PW3 provided direct evidence that he saw the deceased collapse and assisted in taking him to the hospital. Furthermore, PW3 was present at the hospital when the deceased succumbed to his injuries. PW1 also testified to seeing the deceased bleeding heavily from a stab wound to the back and later learnt that he had died. This state of evidence leaves no doubt that Iran Paulo is deceased. The Court is satisfied that this first element has been proved. The court is satisfied that the deceased indeed died. 38. The next ingredient to be determined by this court is whether the death of the deceased was unlawful act or omission attributable to the accused. All homicides in Kenya are presumed to be unlawful unless they are justified or excused by law, such as in cases of self-defence or the execution of a legal sentence. The victim must have sufiered either physical or bodily harm as a result of the unlawful act of omission or commission that led to his death. 39. In this matter, PW4 produced the autopsy report whose findings clearly indicate that the deceased sufiered fatal injuries, specifically a stab wound that damaged major blood vessels and the lungs. Evidence provided by both PW1 and PW3 further points to a violent stabbing. PW1 testified to seeing the 2nd Accused strike the deceased with a double-edged sword, while PW3 observed the resulting wound on the deceased’s back. Even if the Court were to consider the defence’s assertion that the Joseph Kimani v R [2014] eKLR https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4627/eng@2026-02-13 6

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deceased was disturbing people or armed with a stone earlier in the day, the act of stabbing a man in the back during a fistfight is a disproportionate and unlawful use of force. The causal link between the stabbing and the death is established by the timing of the injury and the subsequent death in the hospital. This court, therefore, finds that the Prosecution has proven beyond reasonable doubt that Iran Pualo is dead and that his death was the result of an unlawful act. 40. On connection of the accused persons to the unlawful acts, the court notes that only prosecution witness alleged to have witnessed the perpetration of the incident was PW1. His evidence was that soon after leaving Chege’s Pub, together with the deceased, they moved toward another establishment known as Sister’s Bar. There, he indicated to have remained outside while the deceased entered the bar before a fight shortly erupted inside the bar between the deceased and the 1st Accused person. That when the two got outside while still fighting, the deceased appeared to be overpowering the 1st Accused which led to the intervention by the 2nd Accused who stabbed the deceased in the back. He added that upon witnessing the stabbing, he fled the scene to call for help and did not witness where the deceased was taken or what happened to the weapon. 41. However, in his statement recorded with the police soon after the incidence, he stated not to have seen the deceased being stabbed by either of the accused persons. He admitted during cross-examination that while at Sister Bar, he remained outside and after sometime, the deceased emerged from the bar saying he had been stabbed while being chased by three individuals. 42. From the foregoing evidence of the only eye witness, the court discerns an inconsistency and thus draws guidance from the holding in Maitanyi vs Republic [1986] KLR 198, where the court stated that: “ Although it is trite law that a fact may be proved by the testimony of a single witness, this does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. When testing the evidence of a single witness a careful inquiry ought to be made into the nature of the light, available conditions and whether the witness was able to make a true impression and description. The court must warn itself of the danger of relying on the evidence of a single identifying witness. It is not enough for the court to warn itself after making the decision, it must do so when the evidence is being considered and before the decision is made. Failure to undertake an inquiry of careful testing is an error of law and such evidence cannot safely support a conviction”. 43. Applying the above holding and the principles of Turnbull’s case in the circumstances, it is imperative for the court to ask itself; how long and how often had he known and seen the attackers; what was the time lapse between the attack and the subsequent identification; how long did PW1 have the appellant and indeed his accomplices under observation; what was the lighting conditions at the time of the incident? 44. The answers to these questions were not given by the witnesses and the court is made to believe that the identification herein was based on a fleeting glance if not suspicion. The court first notes that the inconsistencies regarding visibility and timing of the incident in the prosecution evidence. PW1 claimed the incident occurred at 6:00 p.m. and that it was still light. However, the Investigating Officer, PW4, reportedly placed the incident at 9:00 p.m. In their police statements, PW3 placed the time at 8:00 p.m. If the incident occurred at 8:00 p.m. or 9:00 p.m. in the Kalobeyei refugee camp, natural light would have been non-existent, and visibility would depend entirely on artificial lighting, the presence of which was not established in detail by the Prosecution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4627/eng@2026-02-13 7

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45. Furthermore PW1’s testimony was significantly undermined by his earlier police statement. In court, he claimed to have seen the 2nd accused stab the deceased with a sword. In his statement, he claimed he was outside and only saw the deceased emerge from the bar already stabbed, being chased by three Burundians. The question then is, if he was that close to the scene of the attack and bearing in mind the vicious nature of the attack on the deceased, in which a sword was used, leading him to collapse and pass out, can his evidence be credible that people simply watched? 46. The court finds the evidence to disclose a material contradiction that goes to the very root of the identification. If PW1 did not see the actual stabbing, his testimony regarding the identity of the assailant is hearsay or mere suspicion. Furthermore, the mention of three Burundians in the statement, without naming them begs the question why only two individuals were charged and suggests the presence of other potential perpetrators whom the police failed to investigate. 47. As to whether PW1 knew the accused persons, the Investigation officer stated that the reason as to why identification parade was never conducted on the accused persons was because the perpetrators of the ofience were well known to PW1. 48. That inconsistency when added to the defense by the accused persons setting up the defence of alibi, leave a lingering doubt if indeed the two were the executors of the unlawful acts leading to death. The court finds that very little was done to dislodge or shake the defence of alibi as mounted. 49. In Victor Mwendwa Mulinge v Republic (2014), the Court of Appeal emphasized that the Prosecution is mandated to dislodge the alibi defense. When an accused person claims to have been in government custody, the failure of the State to produce its own records to contradict that claim creates a very strong reasonable doubt. Here, the court takes the position that the Prosecution and specifically the I.O had access to the Occurrence Books, Cell Registers and Station Diaries of the Kakuma Police Station. If the 1st Accused was not telling the truth of his whereabouts at the time of the incident, a simple perusal of the occurrence book (OB) or cell register at the Kakuma police station would have confirmed or debunked this claim that he was not in custody on the said date. It is practically implausible for one to lie to have been locked in a police cell when the records can disapprove the same. 50. DW2 on the other hand, asserted to have been at a Red Cross facility with his wife and later at his workshop where a theft occurred. He further asserted that his arrest happened while he was reporting that theft to the police. He called DW3, the chairman of his village who in corroborating the witness account confirmed to have inspected the broken workshop with the 2nd Accused. Both DW1 and DW2 come from distinct places away from the alleged place of the murder incidence. DW3 in his testimony maintained that no person had been murdered or died in his village during that period. The Prosecution did not lead any evidence to disprove this. 51. Because all the ingredients must be aggregated to found the ofience of murder, failure to establish one make any attempt at conviction wholly untenable. Because of failure to connect the accused to the unlawful acts leading to death, it becomes needless to interrogate if the acts were propelled by malice aforethought. 52. Accordingly, the court finds and holds that the Prosecution failed in its duty to rebut the alibi defense of the accused persons, with the consequence that the accused persons have not been connected to the unlawful acts leading to death. In Karanja v Republic (1983), it was held that while a late alibi may be viewed with suspicion, it must still be weighed against the Prosecution’s evidence. Here, the alibi for the both the Accused persons were so specific that they required a specific rebuttal and through evidence and official documents, which the Prosecution failed to provide. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4627/eng@2026-02-13 8

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53. In upshot, the court finds that the prosecution failed to discharge its burden of proof. It finds that there is a reasonable possibility that the accused’s story could be true and therefore they must be given the benefit of the doubt. The two accused persons are thus hereby acquitted of the charges pursuant to section 322(1) of the Criminal Procedure Code. They are hereby set at liberty unless otherwise lawfully held. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 13TH DAY OF FEBRUARY, 2026. PATRICK J O OTIENO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4627/eng@2026-02-13 9

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