.

.

Criminal Law – murder – definition of – ingredients – malice aforethought or mens rea and actus reus – meaning of – instances when malice aforethought is established – Penal Code (cap 63) sections 203, 206.

Evidence – standard of proof in murder cases – proof of death – whether it is a must to produce medical reports to establish occurrence of death – circumstances when this requirement is not necessary – defence contention that there was no independent evidence of the deceased’s murder and  where his body was found - where a witness testifies that he saw deceased person being hacked to death and later identifying the body to the doctor who performed the post mortem examination on it – where there are witnesses to death of the deceased persons who later identify their bodies to the pathologist - validity of contention of the  defence.

Criminal Law – common intention – definition of and when it arises – test for joint responsibility – where there is a pre-arranged plan to commit a crime and circumstances when common intention may be inferred – where evidence on record shows that a gang of up to 4000 people who had their faces smeared with a whitish substance and were armed with machetes, pangas, spears, clubs, arrows and bows attacked Kimuli, Rehema and Kiambaa farms, fearing for their lives the residents of those farms took refuge in a nearby church and the armed raiders followed them there slashing and hacking some to death, also set the church ablaze thereby killing several others - the police neither  placing before court evidence of the accused persons having been part of the gang that pre-arranged to commit murder nor the involvement of the accused persons in any pre-arranged plan to execute any or any unlawful act – effect of - Penal Code (cap 63) section 21.

Evidence – identification evidence – visual identification – how courts should treat evidence of identification – offence of murder committed in broad daylight  but in circumstances where people were running helter-skelter, screams renting the air, smoke billowing from the burning church and the general confusion caused by the state of shock and panic, together with the fact that the raiders had disguised themselves – identifying witness not in the frontline of his group at the time he said he saw the accused persons and witnesses stating it was impossible to identify any of the raiders as their faces were smeared with a whitish – identifying witnesses and accused person having strained relationship prior to the incident - witnesses giving contradicting evidence and part of their testimony not in their statements given to the police - whether safe to rely on such evidence of identification.

Evidence – alibi evidence – failure by prosecution to disprove alibi evidence – corroborated evidence of accused persons charged with murder being they were not at the scene of the crime at the time of the commission of the crime – effect of.

..

...

.

[Ruling] Civil Procedure- Stay- application for stay of proceedings- where the trial magistrate adopted the Tiriki East Land Disputes Tribunals award- where there was an appeal pending- where applicant would suffer substantial loss if stay was not granted- allegation of lack of jurisdiction of the tribunal to hear the matter- where there was no order of court referring matter to the Tribunal- application opposed on grounds of no valid appeal- where the 1st applicant had already transferred suit land to 2nd applicant- whether the stay was granted- whether the application had merit