Republic v Waswala & another [2023] KEHC 23466 (KLR)

Republic v Waswala & another (Criminal Case 31 of 2016) [2023] KEHC 23466 (KLR) (13 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23466 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Case 31 of 2016

PJO Otieno, J

October 13, 2023

Between

Republic

Prosecution

and

Silas Waswa Waswala

1st Accused

George Odhiambo Omune

2nd Accused

Judgment

1. Silas Waswa Waswala (‘1st accused person’) and George Odhiambo Omune (‘2nd accused person’) are charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the 10th day of June, 2015 at Lung’anyiro AP Post, Lung’anyiro Sub-location, Lung’anyiro Location in Matungu Sub-County, within Kakamega County, the accused persons murdered Herbert Ouma Odhiambo.

2. The accused persons pleaded not guilty to the charge and to prove its case, the prosecution called a total of eleven witnesses whose evidence can be summarized as below.

The Evidence 3. PW1, Phylis Adhiambo Wesonga, testified that she was the wife to the deceased and that on 10/6/2015 at about 9PM she was in the house having dinner with her husband, their two sons Michel Achieng Ouma and Lambert Barasa Odhimbo and her brother in-law when they heard a knock at the door and two policemen in uniform entered, one with a gun and the other with a stick. The deceased then asked them to sit which they did not and instead they beat him and handcuffed him and they whisked him out of the house and she followed them from behind. When she inquired about why they were arresting him they asked her to look for Kshs. 50,000/- and go with it to Lunganyiro police station. The next day she contacted one George Mulianga with whom they went to Lunganyiro Police Station where they met the sub chief who informed that that a person had died and had been taken to St. Marys Hospital. The next day they went to Mumias police station and later to Kakamega Hospital Mortuary where they were shown the body of the deceased who was bleeding from the left eye, all the nails in his feet had been removed and his clothes were blood stained. She claimed that she was able to see the two men who took the deceased from their house from a hurricane lamp which lights like electricity and she identified the two men as the 1st and 2nd accused persons. It was her evidence that when the accused persons took the deceased from the house, he fell down and they carried him to a motor bike that was waiting for them about 150m away.

4. On cross examination she stated that the 1st accused had with him a stick and handcuffs while the 2nd accused had a gun. She refuted claims that the deceased tried to escape and further stated that it was the 1st accused who struck the deceased though she could not recall where he was hit.

5. PW2, Hambert Barasa Odhiambo gave evidence that he was the deceased’s brother and that on 10/6/15 he was having supper between 8:30-9PM when there was a knock at the door and two police officers entered. The deceased then stood up and he struggled with the 1st accused person who handcuffed him thinking he wanted to escape. When they followed the officers and the deceased, one of the officers told him to go look for Kshs. 50,000/-. The next day he received a phone call that the deceased had died. He said the house had a hurricane lamp and was able to see the two officers whom he identified as the 1st and 2nd accused. He claimed that the 1st accused had a police stick and handcuffs and that he was the one that asked for money while the 2nd accused was carrying a riffle.

6. On cross examination he stated that it was the deceased who welcomed the officers into the house and that when they went outside, each of the officers had a d light which they lit. He stated that the deceased was not violent and that the 1st accused was pulling the deceased with his hands for him to sit down so that he could handcuff him and the pushing took about 2 minutes. He claimed not to have seen the deceased collapse and the deceased had gone on a journey before the material day.

7. PW3, Fernidand Ouma Odhiambo, testified that he was14 years old and a son to the deceased and that on 10/6/2016 he was having supper with other family members when they heard a knock at the door and two people, that is the 1st and 2nd accused, dressed in police uniforms entered. The 1st accused had a stick and handcuffs while the 2nd accused had a riffle and both had d light lamps. On entering, they asked the deceased if he was Herbert and when he said he was, the deceased asked the officers they have a seat and they refused saying they wanted him. The 1st accused struck him with the stick and handcuffed him. They then placed the deceased in a motorcycle and went away with him. The next day he went to school and during lunch time he heard screams and came to learn that his father had been killed. He stated that he was able to see the officers since the house had a hurricane lamp.

8. On cross examination he stated that he did not see the place where the 1st accused struck his father. He claimed that his father was pushed away, held from behind and was walking on his toes as he was led away while in handcuffs. He further stated that his father fell down when they were going towards the motorcycle, he did not know why fell and that the 1st accused asked them to go back.

9. PW4, Michell Ouma, testified that she was a standard seven pupil at Mumias Township Primary and that the deceased was her father. She stated that on 10/6/2015 at 9PM they were having supper when they heard a knock at the door and police men entered. They called his father’s name and said they were looking for him. His father asked them to sit down but they said they were in a hurry. One of them handcuffed his father and they went out with him. She rushed to call her grandfather but when they came back they found they had left. The following day she went to school and during lunch time they were told that their father had died. She stated that the house had a hurricane lamp and she identified the two accused persons as the officers who went to their house. She stated that the 1st accused had a stick and handcuffs and that he was the one that struck his father whereas the 2nd accused had a riffle.

10. On cross-examination she stated that PW3 was born in 2002 while she was born in 2003. She claimed that the accused persons put off the d lights when they entered the house and that his father was seated when he was struck though she did not see where in the body he was struck.

11. On being examined by the court she stated that was the second time she was seeing the accused persons.

12. PW5, Henry Odhiambo Makokha, gave evidence that on 12/6/2015at 9AM he was at his house asleep when he heard people shouting saying that they had caught Herbert Ouma Odhiambo, his son. He opened his door and PW4 came in saying that his father had been arrested by policemen who were in uniform. As they headed to the house of the deceased, he heard someone speaking to PW1 telling her that if she wanted to see the deceased she goes to Lunganyiro AP camp the next day with Kshs. 50,000/-. He returned home to sleep and the next day in the company of PW1 they written to Lunganyiro Ap Camp where he was told that his son had died and his body taken to St. Mary Hospital Mortuary where he went and saw his son’s swollen body with an injury on the head. The body was taken to Kakamega Hospital Mortuary and he saw it had bruises on the toes and his clothes were blood stained. He then reported the incident at Mumias Police station. He claimed not to know the policemen that took his son away and that he did not see them since it was dark.

13. On cross examination he stated that he did know the accused persons on the dock and that he did not identify the voice that asked for Kshs. 50,000/. He further stated that he was not aware that his son was being sought by the police.

14. PW6, No.1999014779 Sgt Eric Makokha Mukoro of Mungatsi AP post Nambale, Busia County testified that on 10/6/2015 he was stationed at Lunyangiro AP post when at about 10PM he received a call from a member of the public that a suspect they had been looking for had resurfaced and against which suspect they had a warrant of arrest over a charge of defilement. He instructed the two accused persons who were at the station to the effect the arrest. They boarded a boda boda and after some time the 1st accused called and informed him that they had arrested the deceased. When the accused were close to the station, they informed him and since he had gone to the house he went back and found the accused persons with the suspect in a boda boda. The suspect fell down from the boda boda unconscious and could not talk. They took him to the dispensary where the nurse told them that the suspect was already dead. He then reported the incident to the sub county AP commander, OC crime Mumias, the OCPD, the inspector in charge of the division and later took the statements of the accused persons.

15. On cross-examination he stated that he could not remember the exact time the accused persons went to effect the arrest and that FIDA Matungu had previously made a report of defilement against the suspect at the station.

16. PW7, Dr. Dixon Mchana, a consultant pathologist stationed at Kakamega County General hospital, testified that he conducted autopsy on the body of the deceased on 12/6/2015 and he observed that externally, the finger tips and lips appeared dark bluish in color. There were two bruises on the left cheek with swelling around the left eye. There was a bruise on the left elbow, bruises on the left leg, left second toe, the right big toe and the second right big toe. Internally, there was bleeding on either side of the chest, bleeding within the substance of both lungs more so on the left than the right. There was frothing on the air way with the stomach being distended by food with no alcoholic smell. The brain also had a mild swelling. He formed the opinion that the deceased died due to failure to breath secondary to acute lung injury following assault and produced the post mortem report which was marked as PEXH 1.

17. On cross examination he stated the bleeding of the lungs could have taken place 2-3hours and that bruises on the toes were on both sides and it was thus unlikely that a fall would cause injuries on both sides.

18. It was the evidence of PW8, Solomon Bahati Musumba, that he was a friend of the deceased and that on 10/6/2015 he was at home in Munami Busia County when he received a call from a Sergeant at Lunganyiro police station to head to the post and carry police officers to effect arrest on a suspect of rape. He picked them and on reaching Lubanga market they picked another person who took them to the home of the deceased. When they got to the house of the deceased he parked his motorcycle and was left at the door while the officers entered the house. There were 3 people and a child in the house and one man asked “you are the corporal?” and the corporal told him he was there to arrest the deceased and he handcuffed him. The corporal then told the deceased’s brother and wife to follow him at the post and that the woman asked the police officers to take something small and leave the deceased to which the officers refused. As they headed towards the motor cycle, the deceased fell and the officers asked him to bring the motor cycle closer as the wife removed the deceased’s jacket. The deceased was placed on a motor cycle and they left with one officer. On the way the deceased began to disturb forcing the officer to call his colleague who came and they all rode to the camp. On getting there the deceased fell down.

19. On cross-examination he stated that he knew the deceased and that his home was not far from his. He claimed to have heard in the market that the deceased had defiled a child and there was fracas at the home of the child though he did not see the person being beaten there. He stated that he did not enter the house but he could see inside since the house had light and that the first officer had a torch and a gun and the second officer had a gun. It was also his evidence that he did not see the accused beating the deceased on their way to the camp.

20. PW9, Cpl. Charles Mwai, testified that on 10/6/2015 he was the deputy OCS Mumias Police Station and that about 10PM he was at his house in Mumias when he was informed by the OCPD Matungu who asked him to proceed to Lunganyiro AP post to check on a suspect who had been arrested. In the company of two other officers they headed to the post where they found the in charge Cpl. Makokha. He then called the two accused persons and the 1st accused person informed him that they had been instructed to arrest the deceased who was wanted for an offence of defilement. They arrested the deceased and ferried him to the post in a motor cycle. On reaching the post the deceased collapsed and fell and they called a nurse who confirmed he had died. He stated that on getting to the post they found the body of the deceased and the only visible injury was a scratch on the left foot toe.

21. On cross examination he stated that there was a complaint of defilement made against the deceased.

22. PW10, Jane Tabitha Mnamuli testified that on 10/6/2015 she was on night duty at Langanyiro Medical Health Centre when she heard a motorbike come and on peeping through the window she saw people on the bike and one was being asked to alight but was unable and he was assisted to lie on the ground. After a while a sergeant from the police post asked her to go and examine the person lying on the ground. On examining the person, she noted that the person had no sign of life, no pulse, pupils were dilated and the heart beat was absent. The officers then told her that they had arrested the deceased but then he tried to escape and they handcuffed him but he collapsed. On physical examination she noticed some bruises the legs of the deceased which were attributed to the legs having been dragged on the road as the motor bike moved. She stated that at the time of her examining the body it had no handcuffs and that she identified the four people on the motorbike to be the rider, the deceased and the two accused persons.

23. On cross examination she stated that the only injuries she saw were on the feet and the she did not see bruises or lacerations on the face of the deceased and neither did she notice any blood stains and that his shirt buttons were undone.

24. PW11, No. 239231 IP John Mugendi attached at DCI Mumias gave evidence that on 10/6/2015 the two accused were booked to go and effect an arrest on the deceased who was alleged to have committed the offence of defilement. He stated that on arriving at the house of the deceased, he collapsed before he would be arrested but they still effected the arrest and the deceased collapsed again when they reached the police post where he was pronounced dead by the nurse in charge of the model dispensary. The body was then taken to Kakamega General Hospital where an autopsy was done and which showed that the deceased died due to injury by assault to the lungs.

25. On cross examination he stated that his evidence was based on the information on the police file and that there were no photographs taken of the deceased.

26. The evidence of PW11 marked the close of the prosecution case and the court in a ruling delivered on 23/9/2022 found that a prima facie case had been established calling upon the accused persons to defend themselves.

27. The defence called two witnesses that is the two accused persons.

28. In his sworn testimony, DW1, Silas Waswa who is the 1st accused stated that he was an administration police officer and that on 10/6/2015 at about 8PM he received a message that a person wanted for the offence of defilement had surfaced at his home. He forwarded the message to his sergeant who instructed him to arrest the suspect. In the company of the 2nd accused they asked for a boda boda and they were directed by an informant to the house of the deceased which was about 4kms from the camp. They arrived at the deceased’s house at 8:30 PM dressed in police uniforms, knocked the door and a child opened the door. The deceased, his wife and another man were in the house. He introduced himself and the deceased tried to run away using the back door but he fell down and with the assistance of the 2nd accused they arrested him. He stated that the house had a lamp and he also had a torch. As they walked for about 100meters from the house in the company of the deceased, his wife and brother, the deceased collapsed and fell down and the wife told them that he had health problems. They unzipped the deceased’s jacket, left him to rest before they walked to the motorcycle which the deceased and the 2nd accused boarded. After the motorcycle had moved for about 100meters, he received a call from the 2nd accused informing him that the deceased was shaking like he wanted to escape which prompted him to head to the scene where he found all the three standing and together they headed to the camp. On reaching the camp, the deceased collapsed again and they called the nurse who pronounced the deceased dead. They informed the OCPD of the incident and he came to the scene and the body was taken to Kakamega General Hospital Mortuary.

29. On cross examination he stated that when they reached the deceased’s house, they found him drinking chang’aa from a glass. He further stated that as they were going to the station, the deceased’s legs were dragging on the ground hence he supported the deceased’s legs with his hands.

30. In reexamination he stated that the deceased collapsed four times, once in house, twice on their way to the camp and once at the camp.

31. It was the sworn evidence of DW2, George Odhiambo Omune, the 2nd accused person that 10/6/2015 he was an administration police attached to Lunganyiro AP post and that on that day he was informed by the in charge, DW1, that he had received a message that the deceased who was wanted for the offence of defilement had appeared and was at his home. He stated that he was the one had received the complaint of defilement from the victim’s father. He wore his uniforms, took his firearm and they boarded a motorcycle for the home of the deceased. He claimed that he did know the informer but came to meet him at lubanga market and he directed them to the home of the deceased. The informer pointed the house and left and the 1st accused knocked at the door and a young girl opened the door and they entered. In the house they found the deceased, his wife, his brother and two children. DW1 asked who Herbert was and the deceased identified himself. The deceased tried to escape but they arrested him and after walking for about 200 meters in the company of the deceased’s wife and his brother, he collapsed. The deceased’s wife informed them that the deceased had a medical condition and that if they unzipped his jacket, he would recover. They did just that and the deceased got up and boarded the motorcycle and as they rode, he noticed that the deceased was dragging his feet on the ground. He called DW1 who came and they all rode to the post. When they got to the post the deceased collapsed again. He claimed not to see DW1 hit the deceased.

32. On cross examination he stated that when the deceased tried to run away in his house, there was a table on his way and he did not see him hit anything before he fell. He claimed that he called DW1 because the deceased was unable to sit well and that when the deceased collapsed at the post, the nurse informed them that he was dead. He also refuted claims that they assaulted the deceased and further stated that the deceased was not violent and did not resist being handcuffed.

33. The testimony of the DW2 marked the close of the defense case and the parties proceeded to file their respective written submissions.

Submissions by The State 34. It is their submission that they have proved the elements of the offence of murder against the accused persons in that a post mortem report was produced which confirmed the death of the deceased and that the report and Dr. Dixon Mchina who conducted an autopsy on the body further indicated that the deceased death was caused by asphyxia secondary to head and neck injury following assault.

35. On the identity of the persons that committed the assault, the prosecution submits that PW1, PW2, PW3 and PW4 were eye witnesses who recounted how the two accused persons entered their house and PW1 stated in her evidence that the 1st accused hit and handcuffed the deceased which evidence was corroborated by PW3 and the post mortem report. It is their submission that the testimony of the accused persons attempted to mislead the court in stating that the deceased fell on his own and inflicted those injuries on himself and that that he had a preexisting medical condition yet this was not noted by the doctor. They further submit that the identity of the accused persons is further confirmed by the officers who testified by stating that it was the two officers who were sent to arrest the deceased and they are the ones who went with the deceased up to the police station where he was pronounced dead on arrival.

36. On the role played by the 2nd accused, the prosecution contends that he did not stop his colleague from assaulting the deceased and that he confirmed in his evidence that the deceased did not resist being handcuffed and was not violent towards them thus no cause for use of excessive force. They submit that the actions of the 2nd accused confirm that he was acting in collaboration with the 1st accused and even agreed to transport the deceased in a motorbike when he was unconscious hence they had a common intention and they place reliance in the case of Dickson Mwangi Munene & Another v Republic (2014) eKLR where the Court held as follows: -“This provision has been interpreted and the doctrine of common intention dealt with by our courts in several cases. In Solomon Mungai v. Republic [1965] E.A. 363, the predecessor of this Court held that in order for this section to apply, it must be shown that the accused had shared with the other perpetrators of the crime a common intention to pursue a specific unlawful purpose which led to the commission of the offence charged.”

37. They argue that in the event this court finds that the common intention has not been established, they ask the court to invoke section 179 of the criminal procedure code and find the 2nd accused liable under section 222 of the penal code and cite the case of Republic v Wycliff Mwilu Mutinda [2016] eKLR where it was held as follows: -“The law terms a person who assists another person who has committed a crime as an accessory after the fact. Section 222 of the Penal Code defines such a person in the following terms:"Any person who becomes an accessory after the fact to murder is guilty of a felony and is liable to imprisonment for life."Section 396 (1) of the Penal Code defines accessories after the fact as follows:"A person who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is said to become an accessory after the fact to the offence.”

38. On the last element of malice aforethought, the prosecution submits that the deceased’s cause of death was injury to the lung and that he had other injuries, which injuries were severe and fatal and the deceased was also inhumanely handled by being dragged in a motorbike while unconscious and that these actions/events denote malice on the accused persons.

Accused Persons’ Submissions 39. In their submissions, their question the following; a) how PW1 did not see exactly where the deceased was struck despite the light in the house; b) how PW2 did not state seeing the deceased being struck by the accused; c) how PW3 recorded in his statement that it was the police with a riffle that kicked the deceased thrice on the body while in his testimony he stated that it was the 1st accused who had a stick and struck the deceased. They claim this statement was contradictory. They further contend that PW3 confirmed that the deceased fell on his way out but he did not know as to why he fell and that PW4 stated that the police with a gun who handcuffed the deceased while the 1st accused who had a stick hit the deceased.

40. They claim that PW7, Dr. Dixon Mchana testified that on examining the body of the deceased he noted that was bleeding from the lungs and the bleeding would have taken place within two to three hours before he died. They submit that since it was the evidence of PW1 and PW2 that the accused persons arrived at their home at 9PM and by the time the accused took the deceased to the post only one hour had expired, then most likely the bleeding begun before the accused persons had arrived at the home of the deceased without the knowledge of any person. PW8 did not witness the accused beat the deceased. PW10 confirmed that the deceased’s body had no blood stains with bruises on the toes and no lacerations on the face. The 1st accused stated that 100 meters after leaving the house the deceased collapsed and they removed the handcuffs and his wife removed his jacket.

41. The 2nd accused stated that after 500 meters, the motorcycle stopped as the deceased’s legs were touching the ground. No photos were adduced to show that the deceased’s clothes were blood stained. It is thus submitted that the prosecution failed to prove the offence of murder against the accused persons.

Issues for Determination 42. The offence of murder is committed when a person out of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

43. Therefore, for the prosecution to achieve a conviction, all the ingredients contained in section 203 of the penal code ought to be proved beyond reasonable doubt. The court must seek to determine if; the deceased, Herbert Ouma Odhiambo is dead, if the death his death was caused by unlawful acts or omission by the deceased, and if that the answered in the affirmative if, the accused persons were actuated with malice aforethought in causing the death.

44. The death of the deceased has been confirmed by all the eleven (11) prosecution witnesses and further reiterated through the production of the post mortem report dated 12/6/2015. Even the testimony of the accused persons did not deny the fact of death. It was thus proved.

Whether his death was caused by unlawful acts or omission of the accused? 45. On the cause of death and its connection to the accused’s commission or omission, the starting point is the position that very act that threatens or deprives life is unlawful unless perused in accordance with the law. In the context of this matter, it was the evidence of PW7, Dr. Dixon Mchana, that in examining the deceased, he isolated two bruises on the left cheek with swelling around the left eye, a bruise on the left elbow, bruises on the left leg, left second toe, the right big toe and the second right big toe. Internally, there was bleeding on either side of the chest and he formed the opinion that the deceased died due to failure to breath secondary to acute lung injury following assault and this makes the actions leading to the death of the deceased not only unnatural but also unlawful. That evidence prove assault on the deceased but does not point to the perpetrator. It thus can only of help to the court when correlated with the testimonies of eye witnesses.

46. This is a case where there is no eye witness to the killing of the deceased with the prosecution case appearing to be hinged on circumstantial evidence to establish that it was the two accused persons who killed the deceased having been the persons who took him away from his home shortly before he died.

47. The court in Republic v Martin Kiprotich Maigut [2017] eKLR observed that in order to rely on circumstantial evidence, the facts should be such that when pieced together they give no other inference other than to point to the accused person as the one guilty of the offence. It was the evidence of PW7 that the deceased died due to failure to breath secondary to acute lung injury following assault.

48. Has the prosecution thus proved that it was the accused persons and not any other person who inflicted the injuries on the deceased that led to his death?

49. The events leading up to the death of the accused is that he was wanted for the offence of defilement and that he had been on the run and when the police got information that he was back at home, the two accused persons, being police officers, were charged with the mandate to effect the arrest.

50. When the police got to his home, it was the evidence of PW1, PW2, PW3 and PW4 that the deceased asked the officers to sit and join them for dinner but they refused. According to PW2, a scuffle ensued between the deceased and the 1st accused since the 1st accused thought the deceased wanted to escape while the deceased was refusing to be handcuffed. As per PW1, PW3 and PW4, the 1st accused beat the deceased with a stick before handcuffing him. PW2 on the hand claimed that the 1st accused pushed the deceased with his hands in order to handcuff him. PW7 testified that it was an assault on the deceased’s lungs that led to him. Of the people present in the deceased’s house when the police effected the arrest, none of them saw on which part of the body the deceased was allegedly hit by the 1st accused person. In fact, none did not see any of the accused beat him. Somehow, and without being pushed or beaten, the eye witnesses said, the accused collapsed after he had been handcuffed and the police officers are leaving with him to a motor cycle waiting nearby. In her evidence, PW1 stated that as they walked, the deceased fell down and she asked the officers to remove his jacket but they refused and he was placed in the motorcycle and left with the 2nd accused. PW3 further stated that his father fell down when they were walking towards the motor cycle though it was the evidence of PW2 that he did not witness the deceased fall down.

51. In his defence, the 2nd accused person, he who rode on the motorcycle with the deceased, stated that after riding for a while he noticed that the deceased was not in control of his legs which were dragging on the ground prompting him to call the 1st accused. The autopsy report captured the injuries on the legs and no evidence was led to attribute same to any of the accused persons.

52. The accused persons testified that PW2 indicated to them that the deceased had a medical condition explaining why he fell down outside the house and that PW2 advised they remove his jacket. DW2 stated that as they rode to the camp the deceased’s legs were dragging on the ground to suggest he was not in control. The rider of the motorcycle testified as PW8 and said that none of the officers beat the deceased on their way to the camp. He said that the deceased appeared like he wanted to escape while DW2 who was riding behind with the deceased stated that he appeared to be shaking and that is why he called the 1st accused person. When they got to the station, DW1, DW2 and PW8 stated that the deceased collapsed and them immediately sought medical attention from PW10 who informed them that the deceased had died.

53. PW10 on physical examination noticed some bruises the legs of the deceased which were attributed to the legs having been dragged on the road as the motor bike moved and she stated that at the time of her examining the body it had no handcuffs. On cross examination she stated that the only injuries she saw were on the feet and the she did not see bruises or lacerations on the face of the deceased and neither did she notice any blood stains and that his shirt buttons were undone. I find that the testimonies by the accused persons are coherent with that of PW8 and PW10 and thus believable.

54. During the cross examination of PW7, he testified that the bleeding of the deceased appears to have occurred for about 2-3 hours. From the testimonies PW1, PW2, PW3 and PW4 it appeared that the accused persons did not take long at the deceased’s home. Could it be that the injury on the deceased’s lungs was inflicted by another prior to the arrest? PW2 testified that the deceased had disappeared for a while and had just returned when he got arrested. So many doubts arise as to the culpability of the accused persons and it would thus be unsafe to convict based on the evidence adduced. With the doubts in the Court’s mind, which are glaringly reasonable, there has not been a discharge of the prosecutions burden to prove the case beyond reasonable hence the accused persons get the benefit of the doubt. The two are adjudged not guilty of the offence of murder and thus acquitted accordingly.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, THIS 13TH DAY OF OCTOBER 2023. PATRICK J. O. OTIENOJUDGE