Republic v Joel Okari Mawombo alias Victor Orina

a knife before fleeing. Her evidence constituted the only direct account of the alleged stabbing. 3. PW2, Evelyne Kerubo Ngota, the widow of the deceased, did not witness the incident. Her evidence was limited to placing the accused in the vicinity shortly before the occurrence and to narrating what she was told after the event. She also alluded to prior disagreements between the accused and the deceased. 4. PW3, Francis Oroko Mangeni, similarly did not witness the incident. His testimony merely established that the accused had been in the area earlier in the day and that he later heard screams before learning that the deceased had been injured. 5. PW4, Dr. Onguti examination and Harrison, conducted established the the cause post-mortem of death as haemorrhagic shock resulting from a deep penetrating chest injury. That medical evidence was not controverted. 6. PW5, the Assistant Chief, and PW6, the investigating officer, testified as to events after the incident, including the presence of the deceased at the scene and the arrest of the accused by members of the public. The investigating officer produced a knife alleged to have been used, but conceded that it had not been subjected to forensic analysis and had been handled by members of the public.

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7. The accused elected to give sworn evidence and denied committing the offence. He stated that on the material day he had gone to Nyanderema village and thereafter proceeded to a bar where he remained for about forty minutes. He testified that while there, he heard screams and went to the scene together with others, where he found the deceased already injured. He denied any involvement in the stabbing and stated that he was arrested by members of the public without justification. 8. The defence called one witness, DW2, Stephen Onchonga Onyangi, who testified that he was in the company of the accused at the bar for a period of approximately forty to fortyfive minutes prior to the incident. He confirmed that they both left upon hearing screams and found the deceased already injured. His evidence was consistent with that of the accused and supported the alibi raised. 9. The issues that arise for determination are whether the prosecution has proved beyond reasonable doubt the fact and cause of death, whether the death resulted from an unlawful act, whether it was the accused who committed that act, and whether the accused acted with malice aforethought. 11. The fact and cause of death are not contested. The medical evidence adduced by PW4 establishes, beyond any

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doubt, that the deceased died as a result of a penetrating chest injury which led to haemorrhagic shock. The nature of that injury leaves no room for speculation and clearly points to an unlawful act. 12. The central question that remains for determination is whether it is the accused who inflicted that fatal injury. In addressing that question, the Court must evaluate the entirety of the evidence, both for the prosecution and the defence, bearing in mind that the burden of proof rests at all times upon the prosecution. 13. The prosecution case hinges almost entirely on the testimony of PW1, who is the sole eyewitness to the alleged stabbing. It is therefore imperative that her evidence be subjected to the most careful scrutiny. The law is settled that while a conviction may be based on the testimony of a single witness, such evidence must be examined with great caution, particularly where the circumstances of identification are not free from difficulty. 14. The Court of Appeal in Lenangetei v Republic [2026] KECA 128 (KLR) emphasized that reliance on the evidence of a single identifying witness is only safe where the court is satisfied, after careful and anxious scrutiny, that the evidence is free from the possibility of error. The Court further

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underscored the need for the trial court to interrogate the prevailing conditions, including the opportunity for observation and the possibility of mistake. 15. Similarly, in Situma & another v Republic [2025] KECA 2284 (KLR), the Court reiterated that the danger of mistaken identity is ever present and that courts must guard against it by testing such evidence with the greatest care before acting upon it. 16. When the evidence of PW1 is examined against those principles, certain concerns emerge. The incident is said to have occurred suddenly during a confrontation. There is no evidence as to the duration of the observation, the precise positioning of the witness, or whether there were any factors that may have affected her ability to accurately perceive and recall the events. Crucially, no other witness corroborates her account of the stabbing. 17. The remaining prosecution witnesses do not provide direct evidence linking the accused to the act. Their testimony merely places the accused in the vicinity at some point before the incident or relates to events after the occurrence. That evidence, while relevant, does not independently establish that the accused committed the offence.

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18. The prosecution produced in evidence a knife alleged to have been the weapon used in the stabbing of the deceased. The said knife was produced by PW6, the investigating officer, who testified that it had been recovered at the scene. However, his evidence was unequivocal that the knife had already been handled by members of the public before it came into police custody. He further conceded that the knife was not subjected to any form of forensic examination, and in particular, no analysis was conducted to establish the presence of the deceased’s blood, fingerprints, or any other trace evidence capable of linking it to the accused. In those circumstances, although a knife was physically recovered and produced as an exhibit, there is no evidential basis upon which this Court can connect that knife either to the accused or to the fatal injury sustained by the deceased. The exhibit therefore remains of no probative value in establishing the prosecution’s case and does not advance the evidential burden required to prove the charge. 19. The defence raises an alibi, supported by DW2, to the effect that the accused was at a bar at the material time. The law regarding alibi is settled. An accused person bears no burden of proving an alibi; rather, the prosecution must displace it by placing the accused at the scene of the crime through credible and cogent evidence.

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20. The Court of Appeal in Ndirangu & 3 others v Republic [2026] KECA 775 (KLR) reaffirmed that once an alibi is raised, the prosecution must disprove it by demonstrating, through reliable evidence, that the accused was present at the scene and participated in the offence. Similarly, in Khaoya v Republic [2026] KECA 615 (KLR), the Court emphasized that the prosecution must establish a complete chain of evidence that excludes the alibi and leaves no reasonable doubt as to the accused’s presence at the scene. 21. In the present case, the prosecution has not discharged that burden. The evidence of PW1, standing alone, does not sufficiently displace the alibi, particularly in the absence of independent corroboration. The testimony of DW2, which places the accused at a different location shortly before the incident, introduces a reasonable doubt that has not been satisfactorily resolved. 22. The Court must also consider the circumstances of the accused’s arrest. The evidence indicates that he was apprehended by members of the public. Such circumstances, while not inherently unreliable, raise the possibility of suspicion or mistaken attribution, especially where there is no clear and independent evidence linking the accused to the offence.

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23. The totality of the evidence, when carefully weighed, reveals gaps and inconsistencies that prevent the Court from arriving at a firm conclusion as to the guilt of the accused. The case against the accused, though raising suspicion, does not attain the threshold of proof beyond reasonable doubt. 24. The offence of murder, as defined under section 203 of the Penal Code, comprises distinct elements, namely the fact of death, the cause of that death, the existence of an unlawful act or omission (actus reus), and the presence of malice aforethought. 25. While the first two elements have been established by the medical evidence, the critical inquiry in the present case is whether the prosecution has proved, beyond reasonable doubt, that it was the accused who committed the unlawful act that caused the death of the deceased. This element, being the actus reus, lies at the very foundation of criminal liability. 26. Where, as in the present case, the Court finds that the prosecution has failed to establish that the accused was the person who inflicted the fatal injury, the substratum of the charge collapses. In such circumstances, the question of malice aforethought does not arise for determination, as intention cannot be attributed in a vacuum absent proof of

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the act itself. It follows, therefore, that without proof of actus reus, any inquiry into malice aforethought would be purely academic and unnecessary for the disposal of the case. 27. The Court is guided by the enduring principle articulated in Woolmington v Director of Public Prosecutions [1935] AC 485, that the burden of proof rests on the prosecution and never shifts, and that an accused person is entitled to the benefit of any reasonable doubt. This principle was further explained in Miller v Minister of Pensions [1947] 2 All ER 372, where it was stated that if the evidence leaves a reasonable doubt, that doubt must be resolved in favour of the accused. 28. Applying those principles to the present case, this Court is not satisfied that the prosecution has proved beyond reasonable doubt that the accused is the person who inflicted the fatal injury upon the deceased. 29. The accused, Joel Okari Mawombo alias Victor Orina, is hereby found not guilty of the offence of murder. He is accordingly acquitted under section 322(1) of the Criminal Procedure Code. He shall be released forthwith unless otherwise lawfully held. DELIVERED AT NYAMIRA THIS May 2026 07th DAY OF

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WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Anita Accused - Present For Accused persons - Ms. Shilwatso Advocate For the DPP - Mr. Chirchir (SADPP)

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