Republic v Dennis Morara Kibagendi

5. PW3, Charles Angwenyi Nyamota, testified that he attended the post-mortem and observed injuries on the body. However, he conceded that those observations were not recorded in his earlier statement, thereby raising concerns as to the consistency and reliability of his evidence. 6. PW4, Nevian Kerubo Omurwa, a minor aged 8 years, gave unsworn evidence after a voire dire examination. She stated that she saw the accused hit the deceased on the head and legs. However, she did not indicate when the alleged assault occurred or describe the sequence of events leading to the death. Her evidence was not corroborated by any other witness or by the medical findings. 7. PW5, Isabel Kwamboka Kibagendi, the mother of the deceased, testified that she left the deceased at home and went to the farm. She stated that the accused had informed her that he was leaving for work and had indeed left. Upon her return, she found the deceased hanging inside the house. She did not witness what transpired and was unable to explain how the death occurred. Her evidence is significant in that it places the accused away from the scene at the material time. 8. PW6, Dr. Goga Fredrick, conducted the post-mortem examination and concluded that the cause of death was subdural haemorrhage due to blunt trauma to the head. He acknowledged the presence of ligature marks on the neck and the absence of further forensic analysis, but maintained that blunt force trauma was the most probable cause of death. His evidence establishes the cause of death but does not identify the person who inflicted the fatal injury. 9. PW7, CPL Peter Mwaniki, the Investigating Officer, did not complete his testimony, and the prosecution closed its case without presenting a full account of the investigations, including how the accused was linked to the offence. 10. The accused gave sworn evidence in his defence. He testified that on the material day he left home at about 6.30 a.m. to go to Kijauri for work and remained away until his arrest. He denied assaulting the deceased and stated that the deceased was not in his house when he left. He further stated that the deceased used to sleep at the home of PW2. His evidence remained consistent and was not shaken during cross-examination. 11. The Court has considered the evidence adduced by the prosecution witnesses, the defence tendered by the accused, and the submissions dated 03rd April 2026 filed by Mr. J. Marita, Advocate for the accused, the prosecution not having filed any submissions. The issues that arise for determination are as follows: 1. Whether the prosecution proved that the death of the deceased was caused by an unlawful act or omission; 2. Whether the said act or omission is attributable to the accused; Whether the accused’s alibi raises a reasonable doubt; 4. Whether the prosecution proved malice aforethought. 12. There is no dispute that the deceased died, and the medical evidence established that the cause of death was subdural haemorrhage resulting from blunt trauma to the head. 13. The question that arises is whether that fatal injury was inflicted through an unlawful act and whether the prosecution has proved, to the required standard, that it was the accused who inflicted it. 14. The prosecution relied principally on the evidence of PW4 to establish that the deceased was assaulted. That evidence, being unsworn and lacking specificity as to the timing and sequence of events, required corroboration which was not forthcoming. The evidence of PW1 and PW2 on the alleged assault was hearsay, as neither witnessed the incident, while PW5 was not present at the time and only returned https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6652/eng@2026-04-16 2

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to find the deceased already dead and therefore did not know how the deceased met his death. The medical evidence did not confirm the alleged injuries to the legs or establish when the fatal head injury was sustained, thereby leaving a clear disconnect between the alleged assault and the cause of death. 15. The accused raised an alibi to the effect that he had left home early in the morning and was away at Kijauri at the material time, which account was consistent and supported by the evidence of PW5. The prosecution did not adduce any evidence placing the accused at the scene or otherwise displacing that alibi. As held in Kiarie v Republic [1984] KLR 739, the burden lies on the prosecution to disprove an alibi, and that burden was not discharged. The alibi therefore raises a reasonable doubt. 16. In the absence of cogent evidence linking the accused to the infliction of the fatal injury, the prosecution has failed to establish that the death resulted from an unlawful act attributable to the accused, and as was held in Republic v Cheya & Another [1973] EA 500, a conviction cannot be founded on conjecture. 17. The failure by the prosecution to call or complete the testimony of the Investigating Officer leaves the Court without evidence as to how the accused was connected to the death of the deceased. While such omission is not automatically fatal, it assumes significance where the remaining evidence does not establish that nexus. In Bukenya & Others v Uganda [1972] EA 549, the Court held that where material witnesses are not called, the Court may draw an adverse inference. In the present case, the absence of that evidence reinforces the finding that the prosecution did not establish the linkage between the accused and the offence. 18. In view of the foregoing findings, the Court has found that the prosecution has failed to establish that the death of the deceased resulted from an unlawful act attributable to the accused. In those circumstances, it would be an exercise in futility to undertake a detailed analysis of malice aforethought. Suffice it to state that, even if the Court were to consider that element, there is no evidence on record demonstrating intention to cause death or grievous harm, and as was stated in Nzuki v Republic [1993] KLR 171, malice aforethought must be proved as a matter of fact and cannot be presumed. 19. In the final analysis, and bearing in mind that the burden of proof rests on the prosecution throughout as stated in Woolmington v Director of Public Prosecutions [1935] AC 462, the evidence on record falls short of establishing beyond reasonable doubt that the accused caused the death of the deceased. 20. The accused, Dennis Morara Kibagendi, is hereby found not guilty and is acquitted under section 322(1) of the Criminal Procedure Code. He shall be set at liberty forthwith unless otherwise lawfully held. DELIVERED AT NYAMIRA THIS 16TH DAY OF APRIL 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Anita Accused - Present For Accused - Mr. Marita For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6652/eng@2026-04-16 3

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