Republic v Lumwachi (Criminal Case E021 of 2022) [2025] KEHC 19226 (KLR) (4 December 2025) (Judgment)

Neutral citation: [2025] KEHC 19226 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Case E021 of 2022

S Mbungi, J

December 4, 2025

Between

Republic

Prosecution

and

Bonventure Lumwachi

Accused

Judgment

1.The accused stands charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on the night of 16th April 2022 at Senyende sub-location, Isukha West location in Kakamega East Sub-County, the accused murdered Augustine Muhanga Lumuachi, his brother.

2.The accused pleaded not guilty, thus placing the burden upon the prosecution to prove its case beyond reasonable doubt.

3.PW1, Rita Misitsa Shilasi, the mother of the accused and the deceased, testified that on the material night, she was alerted by PW2 about a confrontation between her sons. She proceeded to the scene and found the deceased lying in pain, with blood oozing from a wound on his back. The deceased informed her that "Bonaventure Lumwachi had stabbed him". She helped rush the deceased to Kakamega County Teaching and Referral Hospital, where he was pronounced dead on arrival.

4.PW2, Hildguard Khayenzi (the sister), testified that at about 2000 hours, she overheard the accused confronting the deceased, alleging that the deceased had stolen his chicken. Sensing danger, she alerted their mother. Upon reaching the scene with the mother, they found the deceased with a stab wound on his back. The deceased told them that his brother Bonventure Lumwachi has stabbed him.

5.The Postmortem Report Refference No. OB 02/17/04/2022, dated 22nd April 2022, conducted at Kakamega Teaching and Referral Hospital, noted the cause of death as internal bleeding secondary to a stab wound on the back, with additional cut wounds on the scalp.

6.The Mental Status Evaluation Report dated 26th May 2022, found the accused fit to stand trial.

Analysis

7.The offence of murder is defined under Section 203 of the Penal Code, which states:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder”.

8.The principle and policy statement on the standard of proof on criminal cases was acknowledged by Lord Denning in Miller v Minister of Pensions 1947 2 ALL ER 372 at 374 as he then was as follows:“If at the end of the case the evidence turns the scale definitely one way or the other, the tribunal must decide accordingly, but if the evidence is so evenly balanced that the tribunal is unable to come to a determinate conclusions one way or the other, then the man must be given the benefit of doubt. This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in civil case.That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say “we think it more probably than not the, burden is discharged, but if the probabilities are equal, it is not.”That approach restated by Lord denning was usefully considered by learned author Sarkar on evidence Volume 2 17th edition Ed 2011 reference at page 1868, where he observed that the evidential burden at all once asserted as stated in the classic exposition of the law in Miller case is never static but must shift as soon as the party with the burden produces evidence which prima facie gives rise to a presumption in his favour. It may again shift back on him if the rebutting evidence produced by his opponent preponderates.”

9.Similarly, in the decision of the case of Mbugwa Kariuki v The Republic [1976-80] 1 KLR 1085, the court emphasized:“That the burden of proof remains on the state throughout to establish the case against the accused beyond reasonable doubt. Where the defence raises an issue such as provocation, alibi, self defence, the burden of proof does not shift to the accused, instead the prosecution must negate that the defence beyond reasonable doubt and the accused assumes no onus in respect of any such defence.”

10.The fact of the death of Augustine Muhanga Lumuachi is not in dispute. The Postmortem Report conclusively established the cause of death as internal bleeding secondary to a stab wound. This medical evidence, provided by an expert, remains uncontroverted and satisfies the court that the death was not from natural causes. Therefore, I find this first ingredient of murder proved beyond reasonable doubt.

11.On whether the prosecution has proved that it was the Accused who inflicted the fatal stab wound, the prosecution's case rests on circumstantial evidence and dying declaration. The evidence of PW1 and PW2, that the deceased explicitly named Bonventure Lumwachi as the person who stabbed him, constitutes a dying declaration. The law regards such statements as credible evidence, given the solemn circumstances under which they are made. The consistency of the testimony from both witnesses on this crucial point lends it significant weight. The Court of Appeal in the case Karisa Wara Vs. Republic Criminal Appeal Case No. 267 of 2006 stated that such evidence although admissible required corroboration. This is what the court said in part:“The deceased having told the assistant chief (PW4) the same thing, passed away. This is what is being complained of as hearsay, but that evidence clearly amounted to a dying declaration and was admissible under section 33 (a) of the Evidence Act, chapter 80 of the Laws of Kenya. The dying declaration required corroboration but it was amply corroborated by the presence of the appellant at the scene of the stabbing which not only involved the deceased but Charo as well.”

12.The test of the admissibility of the evidence of a dying declaration was well stated in the case R Vs. Andrews [1987] AC 281 where Lord Ackner gave 5 tests for admission of such evidence:“

1.Can the possibility of concoction or distortion be disregarded?

2.To answer this, ask if the event was so unusual, startling or dramatic that it dominated the though of the victim causing an instinctive reaction without the chance of reasoned reflection, in conditions of approximate but not necessarily exact, contemporaneity.

3.To be sufficiently spontaneous the statement must be closely connected with the event causing it.

4.There must be no specific features making concoction or distortion likely.

5.There must be no special features likely to result in error, for example, drunkenness.”

13.The evidence places the Accused at the scene, in a confrontation with the deceased moments before the stabbing, over the alleged theft of a chicken. This provides a direct motive and opportunity for the Accused to commit the act. This is consistent with the finding in the case of Mwangi & Another vs. Republic [2004] 2KLR 32, where the court held that:“In a case depending on circumstantial evidence, each link in the chain must be closely and separately examined to determine its strength before the whole chain can be put together and a conclusion drawn that the chain of events as proved is incapable of explanation on any other reasonable hypothesis except the hypothesis that the accused is guilty of the charge.”

14.In this case, the chain of evidence, confrontations, the immediate discovery of the deceased with a stab wound, and his dying declaration points beyond reasonable doubt to the accused as the perpetrator. No other plausible hypothesis has been presented. Consequently, the prosecution has proved beyond reasonable doubt that the accused committed the unlawful act of stabbing the deceased, which caused his death.

15.Section 206 of the Penal Code dictates that malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:(a)an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;(b)knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;(c)an intent to commit a felony;(d)an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.

16.The nature of the weapon used and the part of the body targeted are critical in determining intent. A stab wound to the back is a serious attack on a vital area of the body, indicating an intention to cause grievous harm or death. As was observed in Republic v Ramadhani [2025] KEHC, where the court held that:“In the instant case, malice aforethought can be inferred from the evidence of PW1 who witnessed the accused armed with a knife deliberately attacking the deceased by cutting her neck, and from the postmortem report which shows the accused inflicted serious bodily injuries to the deceased, specifically a large cut wound measuring 6 by 15 centimeters on the right neck region which severed the vertebral artery and fractured the C5 vertebra. The deliberate use of a knife to cut the neck area demonstrates that the accused was extremely reckless to a point of disregarding the value of human life and intended to cause grievous bodily harm or death. This was an unlawful act committed against the deceased with malice aforethought.”

17.Similarly, the case of R v Tubere s/o Ochen (1945) 12 EACA 63 gives a guideline on how malicious intent can be deduced. The court stated as follows:“The weapon used i.e. whether it was a lethal weapon or not;The part of the body that was targeted i.e. whether it is a vulnerable part or not;The manner in which the weapon was used i.e. whether repeatedly or not, or number of injuries inflicted, and The conduct of the accused before, during and after the incident i.e. whether there was impunity.”

18.The accused's alleged motive and the confrontation over a stolen chicken does not negate malice aforethought. The act of stabbing his brother in the back with a knife was a sudden but deliberate act of aggression causing grievous harm, which amounts to implied malice. Therefore, I find the ingredient of malice aforethought proved beyond reasonable doubt.

Conclusion

19.The prosecution has successfully proved all essential elements of the offence of murder against the accused, Bonventure Lumwachi, beyond any reasonable doubt.

20.I therefore find the accused guilty of the murder of Augustine Muhanga Lumuachi and I do convict him for the offence of murder.

21.Right of Appeal 14 days.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 4^TH DAY OF DECEMBER, 2025.S.MBUNGIJUDGEIn the presence of:-CA: Angong’aCourt:Mention for Mitigation 17.3.2026 the accused and counsel to be notified of the date.

Republic v Lumwachi (Criminal Case E021 of 2022) [2025] KEHC 19226 (KLR) (4 December 2025) (Judgment)

Republic v Lumwachi (Criminal Case E021 of 2022) [2025] KEHC 19226 (KLR) (4 December 2025) (Judgment)

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