Republic v Erick Kabaka Sisei & 4 others

who testified on surrounding circumstances, PW5 a child witness who claimed to have witnessed the attack, and PW7 the pathologist. PW6 was the investigating officer. 3. The record shows that the 2nd accused died during the pendency of the proceedings. The proceedings against him therefore abated. 4. The prosecution case is founded on allegations that the deceased and the accused persons were involved in a longstanding land dispute which resulted in hostility, threats, and ultimately the fatal attack of 15th September 2020. ISSUES FOR DETERMINATION 5. The issues for determination in this case are: I. Whether the fact and cause of death of the deceased were proved beyond reasonable doubt; II. Whether the accused persons caused the death of the deceased; III. Whether common intention under section 21 of the Penal Code was established; IV. Whether malice aforethought was proved; V. Whether the offence of murder was proved beyond reasonable doubt against the accused persons. KK. HCCR 38 OF 2020 - JUDGMENT 2

page 2 of 9

ANALYSIS AND DETERMINATION 6. In Republic v Andrew Muecha Omwenga the court established that to secure a murder conviction, the prosecution must prove beyond reasonable doubt: a) The death of the deceased and the cause of that death, b) That the death was caused by an unlawful act, c) That the accused is the perpetrator, and d) Malice aforethought. i. Whether the fact and cause of death of the deceased were proved beyond reasonable doubt 7. The fact of death is not in dispute. PW7, Dr. Collins Were, conducted the post-mortem examination and confirmed that the deceased died from severe penetrating open head injury caused by a sharp object. 8. In Republic v Busuru alias Moreen & 3 others , court emphasized that post-mortem reports and expert medical testimonies serve as the primary legal foundation to verify that death occurred as a result of an unnatural or unlawful act. 9. The court is satisfied that the prosecution proved both the fact and cause of death beyond reasonable doubt. KK. HCCR 38 OF 2020 - JUDGMENT 3

page 3 of 9

ii. Whether the accused persons caused the death of the deceased 10. The burden of proof in criminal cases rests throughout upon the prosecution and never shifts to the accused. This principle was established in Woolmington v DPP [1935] AC 462 11. The prosecution case rests on the evidence of PW1, PW2, PW5 and PW7.PW1 testified that shortly before the death of the deceased she saw the 1st, 3rd, 4th, 5th, 6th, 7th and 8th accused persons at the homestead of the deceased. She stated that they issued threats to the effect that they would kill the deceased and thereafter she left for church leaving them in the company of the deceased. Upon her return, she found the deceased had been killed nearby. 12. PW1 did not witness the actual killing but placed the accused persons at the scene immediately before the attack and testified to prior hostility and threats.PW2 testified as to the existence of a longstanding land dispute and animosity between the parties. In crossexamination she stated that she was at the scene when the deceased was killed, she witnessed the incident. 13. PW5, a child of tender years, gave unsworn evidence after a proper voire dire examination. She testified that she was present during the attack and that she knew the attackers well. She identified the 1st accused (Eric), 3rd accused (Dan) and 4th accused (Kelvin) as part of the group that attacked the deceased. She stated that Dan KK. HCCR 38 OF 2020 - JUDGMENT 4

page 4 of 9

struck the deceased with a metal rod, Eric used an axe, and Kelvin participated in the assault using a rungu. 14. The court has carefully considered PW5’s evidence. Although she is a child witness whose evidence requires caution, she was consistent on material particulars and was not shaken in cross-examination. In Kibangeny Arap Kolil v Republic [1959] EA 92 , the court held that the evidence of a child of tender years may be relied upon if the court believes it to be truthful. 15. PW7, Dr. Collins Were, confirmed that the deceased suffered severe penetrating head injuries caused by a sharp object. This medical evidence corroborates PW5’s account regarding the nature of weapons used and the manner of assault. 16. The court is satisfied that PW5 gave direct eyewitness evidence which, when considered together with PW2 &PW1’s testimony on presence and threats and PW7’s medical findings, proves beyond reasonable doubt that the 1st, 3rd and 4th accused persons participated in the unlawful killing of the deceased. 17. However, the evidence against the 5th, 6th, 7th and 8th accused persons does not meet the threshold of proof beyond reasonable doubt. KK. HCCR 38 OF 2020 - JUDGMENT 5

page 5 of 9

iii. Whether common intention under section 21 of the Penal Code was established 18. Section 21 of the Penal Code provides for joint liability where persons act in furtherance of a common intention. 19. In Njoroge v Republic [1983] KLR 197 and Abdi Ali v Republic (1956) 23 EACA 573, it was held that common intention may be inferred from conduct and surrounding circumstances.S 20. The evidence shows that the 1st, 3rd and 4th accused persons acted together, jointly assaulted the deceased. 21. The court finds that a common intention to cause at least grievous harm, which resulted in death, was established. iv. Whether malice aforethought was proved 22. Section 203 of the Penal Code defines murder as a crime where a person who causes the death of another does so with malice aforethought. The fundamental element is basically on the definition given under Section 206 of the Penal Code. 23. In sum, then, malice aforethought encompasses manifestation of the following circumstances: a. “An intention to cause the death of another. b. An intention to cause grievous harm to another. KK. HCCR 38 OF 2020 - JUDGMENT 6

page 6 of 9

c. Knowledge that the act or omission causing death will probably cause death or grievous harm to some person, whether that person is the person killed or not, accompanied by the offence. Whether death or grievous injury occurs or not or by a wish that it may not be caused. d. An intent to commit a felony ……” 24. In Nzuki v Republic [1993] KLR 171, the Court of Appeal held that malice aforethought may be inferred from the nature of the weapon used, the part of the body targeted, and the manner of attack. 25. In the present case, the use of an axe, metal rod, and blunt weapons targeting the head and neck is evidence of intention to cause death or grievous harm. Malice aforethought is therefore proved. 26. The court finds that the prosecution has proved beyond reasonable doubt that the 1st, 3rd and 4th accused persons jointly participated in the unlawful killing of the deceased and are guilty of murder. 27. The prosecution has failed to prove its case against the 5th, 6th, 7th and 8th accused persons beyond reasonable doubt. KK. HCCR 38 OF 2020 - JUDGMENT 7

page 7 of 9

28. Accordingly: I. Erick Kabaka Sisei (1st Accused) – GUILTY of murder. II. Dan Esolio Sisei (3rd Accused) – GUILTY of murder III. Kelvin Aseneka (4th Accused) – GUILTY of murder IV. Bonface Stuma Egovwa (5th Accused) – NOT GUILTY and acquitted. V. Alice Minayo (6th Accused) – NOT GUILTY and acquitted VI. Catherine Kageha (7th Accused) – NOT GUILTY and acquitted VII. Truphena Muhonja (8th Accused) – NOT GUILTY and acquitted 29. The proceedings against the 2nd accused abated upon his death. It is so ordered. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 17TH DAY OF JUNE, 2026. S.MBUNGI JUDGE In the presence of:CA: Zildah/Velma Accused’s present. Ms. Wanyonyi for the accused persons present. Ms. Emily Kiu for the ODPP present online. KK. HCCR 38 OF 2020 - JUDGMENT 8

page 8 of 9

KK. HCCR 38 OF 2020 - JUDGMENT 9

page 9 of 9