[2022] KEHC 10781 (KLR)

Amayo & 2 others v Republic (Criminal Case 27 of 2018) [2022] KEHC 10781 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10781 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Case 27 of 2018

RPV Wendoh, J

June 16, 2022

Between

Fredrick Ochieng Amayo alias Zakayo Amayo

1st Accused

Kelvin Odhiambo Ochieng alias Ocham Amayo

2nd Accused

Nation Ochieng Amayo alias Ochieng Boyo

3rd Accused

and

Republic

State

Judgment

1. This case was partially heard by J. Mrima who took the evidence of eight witnesses. This court only took the defence.

2. By an information dated 31/8/2018, the three accused, Fredrick Ochieng Amayo alias Zakayo Amayo, Kelvin Odhiambo Ochieng alias Ocham Amayo and Nation Ochieng Amayo alias Ochieng Boyo were charged with two counts of murder contrary to Section 203 as read with Section 204 of the Penal Code.The particulars of the charges are that on 2/1/2018 at Kojea village,

3. Onguo Sub location in Suna East Sub County, in Migori County, with others not before the court, murdered Daniel Taabu Siso and Wilfred Muyonga Msala. They denied committing the offences and the case proceeded to full hearing with the prosecution calling a total of eight (8) witnesses.

4. PW1 Kennedy Wasonga Oluoch, a resident of Kojea village knew both accused as people who were born in the same village with him. The first deceased was his brother. He also knew the second deceased who was a neighbour in the village. He recalled that sometimes in December, 2017, the house of Odoyo Chacha was burnt down and he went there on hearing an alarm. He did not see the suspects; that on 1/1/2018, the 1st accused who was the village elder, announced that a witchdoctor would visit the home of Odoyo Chacha on 2/1/2018 to disclose who the arsonist was. He did not attend the meeting of 2/1/2018 at Odoyo’s home. He heard screams and went out of his house only to see Daniel Taabu Siso being chased by the three accused persons and many others; that Accused 3 was ahead of the rest and had a spear and he saw him thrust the spear in first deceased’s back and he fell; that the 2nd accused followed the 3rd accused while armed with a metallic rod and hit deceased at the back of the head. He also saw Accused 1 cut the first deceased with a panga on his hand; that they chased the 2nd deceased till he locked himself in his brother’s house but they broke the door open and entered; that Ochieng was the first to enter the house, had a spear and that he saw him (pierce) the 2nd deceased. He saw the incidents because he followed them; that Ooro Ojea had a piece of iron with which he pierced the 2nd deceased in the eyes; that Accused 1 cut the 2nd deceased on the leg. He said that it is eight people who had attended the meeting who chased the deceased persons. He named the other people not in court as Ooro Ojea, Samuel Ochieng who cut 1st deceased on the neck; Okoth Amayo who cut 1st deceased with a panga and Kennedy Nyakuri had a stick; with which he hit the deceased on the chest; that after the incident the assailants ran towards a mountain while the police picked up the deceased. PW1 said he clearly witnessed the incident as he was about 10 metres away as he saw the accused pursue the deceased persons.

5. PW2 Milkah Aluoch knew both the deceased as residents of the same village. PW2 also knows the accused persons as neighbours. She recalled that on 2/01/2018, at about 3:00p.m she was at Odoyo Chacha’s home where she was called to witness a witchdoctor disclose who had burnt William Odoyo Chacha’s house in December, 2017. She saw many other people at the scene of the meeting; that the witchdoctor entered William Odoyo’s house asked for the Assistant Chief or village elder and Fredrick Ochieng Amayo stood up (Accused 1); that the witchdoctor told the people that the two deceased were the people who burnt Odoyo’s house; that the witchdoctor left and the crowd ran after the two deceased to lynch them. She said that all the accused were in the group that chased the deceased. She did not join them; that Accused 1 carried a panga. Accused 3 had a spear and Accused 2 had a nut; that she saw the crowd catch up with 1st deceased but she could not tell what happened to him. She also saw the 2nd deceased caught near the latrine and she saw Accused 1 cut him on the hand with a panga and he ran away towards his brothers home (Shem); that the people pulled out the second deceased from Shem’s house and attacked him; that Accused 1 cut 2nd deceased with a panga, Accused 2 used the nut to hit him on the forehead and accused 3 who had a spear pierced him on the chest. PW2 further stated that out of the large group that attended the meeting only about 11 people chased the deceased persons.

6. PW2 said she followed where the 2nd deceased ran to and saw 1st accused leaving the homestead of William Odoyo on a motor vehicle. She said that the three accused person, are part of the group she saw assaulting the deceased.

7. Everlyne Jeneka (PW3) a resident of Kojea stated that the deceased Daniel was her brother in law while Wilfred was a neighbour. She also knows the accused as neighbours. She recalled that on 2/1/2018, a witch doctor came to the home of Odoyo Chacha as he had been invited to determine who burnt Odoyo’s house in 2017; that villagers were informed of the coming of the witch doctor. She was present at Odoyo’s house when the witch doctor revealed that the arsonists were Daniel and Wilfred (the Deceased); that there were many people and also saw Ochieng Osalo, Nyakuri Chacha, Luka Amayo, Omondi Abacho and others. That after revealing the culprits, the witch doctor left and Accused 1 took a panga and said he was going to complete the work; that Accused 2 had a nut and Accused 3 a spear; that accused 1 cut Daniel on the hand with a panga, Accused 2 hit him on the hand and head using the nut and Daniel fell; that Accused 3 pierced Daniel with spear on the back. She was about 40 metres from where Daniel was killed; that one Nyakuri also hit Daniel on the stomach with a stone and Omondi Abacha pierced Daniel on the stomach with a Maasai Dagger; Ochieng Osalo pierced Daniel with a spear on the chest and Oyuka used a nut to hit Daniel. That when the accused and group left Daniel for dead, they pursued Wilfred.

8. PW4 Samuel Musoda Musara of Kojea village identified the five accused as his neighbours. He also knew the deceased persons as his neighbours and that Wilfred was his step brother. He recalled that on 2/11/2018, he heard from Accused 1, that there was going to be a meeting at the home of Odoyo Chacha, also known as Zakayo; that Accused 1, the Chairman Nyumba Kumi, informed him of a witch doctor coming to Odoyo’s home to reveal the arsonist who had burnt William Odoyo’s house in December, 2017. He found a crowd of people at Odoyo’s home who included the three accused persons and also the deceased persons. PW4 also claimed to have seen PW2 and PW3 in the crowd that was at Odoyo’s home. The witch doctor stated that the arsonists were Wilfred and Daniel; that the witch doctor left and people pursued Daniel who started to run. He did not follow the people; that after finishing with Daniel, the same people went to Wilfred’s home. He saw that the accused were armed. Accused 1 with a panga. Accused 2 had a nut and Accused 3 had a spear; that when Wilfred run to a nearby farm, he was chased and Accused 1 cut him on the leg; Accused 2 hit him with the nut on the back; that Wilfred entered his brothers house (Shem) and having seen Wilfred being injured, he felt bad and left for his home. He later learnt that Wilfred had been killed and he viewed the body next day at the mortuary and noted that he sustained severe injuries.

9. PW5 Peterlis Oluoch Siso of Kojea village knew all the accused, that Daniel was his son while Wilfred (deceased) was a neighbour). On 2/1/2018, about 2:00p.m he attended the meeting called by William Odoyo Chacha the village elder; that accused were at the meeting and so were the deceased amongst many other people. He also saw PW2, PW3 amongst other the people; that the witch doctor said that Daniel and Wilfred were responsible for the fire that burnt Odoyo’s house. When the witch Doctor left, the accused persons started to pursue Daniel and caught up with him. He watched from about 80 metres away; that Accused 1 had a panga. Accused 2 a nut and Accused 3 a spear; that Accused cut Daniel on the hand, Accused 2 hit him with a nut on the head and Accused 3 pierced him with a spear on the thigh. He stated that there were people between him and Daniel; that Omondi pierced Daniel’s eyes. Odongo cut his hand and Saalio Salo pierced him with a spear around the waist. He observed Daniel’s body and noted several injuries. He testified that the people pursued Wilfred, they pulled down his house and he heard that he too had been killed. He mentioned the names of fourteen (14) people who were part of the group that attacked the deceased.PW6 Albert Machayo was stepped down.

10. PW7 Dr. Olang’o Sylvester Ochieng of Migori Referral Hospital conducted a post mortem on the body of Daniel Taabu Siso on 22/1/2018. PW7 found that the deceased had sustained deep cut wounds on the head, face; they penetrated the skull and brain. He formed the opinion that the cause of death was intra cerebral bleeding secondary to head injury. He also performed post mortem on the body of Wilfred Muyonga who was about 59 years old. The deceased had sustained deep cut wounds to the head, which was deformed, bleeding on the arm and the cause of death was said to be intra celebral bleeding secondary to head injury. The Probable weapon used was sharp.

11. PW8 IP Morris Amwayi, the investigating officer in this matter recalled that on 2/1/2018, he proceeded to the scene of crime with a scenes of crime officer and other officers. He found that two people had been killed and had multiple injuries. The scene was photographed and bodies were taken to the mortuary. He summoned PW1 to his office on 3/1/2018 who gave him the names of the assailants as the incident had occurred during the day. He arrested the three accused persons on 18/8/2018 and caused them to undergo a mental assessment. PW8 said that he also arrested the witch doctor who named the deceased as the arsonists before they were killed, but he jumped bond. PW8 told the court that from the information he received, over ten people killed the deceased but some were still at large.

12. All the accused were called upon to defend themselves. Accused 1 Fredrick Ochieng Amayo testified on oath that on 2/1/2018, he had gone to herd his cattle near the hills. He heard noises, left the cattle to go and find out what was happening. He found a gathering at the home of Odoyo as some people ran out. When he enquired, he was told that some people had been chased and he was also informed that the witch doctor had mentioned Muyonga and Taabu as arsonists. On hearing that, he went back where he had left his cattle. He said that by that time, he was no longer a village elder and that he was framed because he had a dispute with Muyonga’s brother who mentioned him as one of the assailants. He said that though mentioned as one of the assailants, he did not take part and it is because of land dispute.

13. Accused 2 Kelvin Odhiambo is the son of Accused 1. He stated that he went back home on 2/1/2018 at about 4:50p.m He heard of the witch doctor having visited William Odoyo’s home. He was informed of the people who were mentioned as arsonists. He also learnt that the deceased had been chased and killed. He also stated that there was a land dispute with Misodo Msala (PW1). He denied being at the scene when the incident occurred.

14. Accused 3 Nashon Ochieng Amayo stated that he was selling meat at his butchery on 2/1/2018 when he heard noises about 4:00p.m and at 6:30p.m he called William Odoyo’s wife to ask what was happening at their home and she explained to him what had taken place. He continued with his work till 7:00p.m when he went to find out what had happened. He found two people had been killed. He said that he was framed by Samwel because he was assisting his uncle with money.

15. The defence counsel and prosecution counsel filed closing submissions. Ms. Apondi counsel for the accused persons urged that the law places the burden of proof on the prosecution under Section 107 of the Evidence Act and Proof has to be beyond any reasonable doubt as was held in Humphrey Wachira Karimi vs. Republic (2019) eKLR: that this being a charge of murder, the prosecutions has to establish the three ingredients:1)Proof the death of the deceased;2)That the unlawful act or omission was caused by the accused.3)Proof of malice aforethought.

16. See Republic vs. Albert Tirimba Ogata (2014) eKLR, Counsel also submitted that there were many people at the scene who inflicted injuries on the deceased; that the deceased sustained head injuries and yet only accused 2 was said to have hit both deceased with a nut, but Accused 1 and 3 never did; that there are serious contradictions in the prosecution evidence which goes to the root of the charge; that the contradictions were basically as to where each witnesses alleged to have seen the accused inflict the injuries. Counsel urged that the accused could not have had malice aforethought because they are not the ones who brought the witch doctor to William Odoyo’s home, but it is William Odoyo who would have wished to avenge the death of his children.

17. The prosecution counsel Mr. Omooria submitted that the death of deceased is not in doubt. As to who caused the death, counsel argued that the totality of the prosecution evidence by the eye witnesses which was not shaken points at the accused persons; that all the accused were placed at the scene.

18. Counsel urged that the prosecution witnesses testified to the accused having pangas, spear and a nut; that they inflicted injuries using the said weapons and that they had a common intention in terms of Section 21 of the Penal Code as was discussed in Tebula Yenka s/o Kinya & 3 others (1943) 10 EACA 51; that the accused raised alibi defences late in their defences which were afterthoughts. Counsel submitted that malice aforethought was proved and the offence of murder was proved to the required standard.

19. I have now considered the evidence on record and the rival submissions.Of the deceased’s death:

20. The death of the deceased in not disputed. PW1, PW2, PW3, P4 and PW5 all testified to seeing the deceased being assaulted till they died. PW7 performed the post mortem on the deceased and found the cause of death to have been cerebral bleeding secondary to head injury. Even the accused persons admitted to have known that the deceased died on the fateful date.Whether the accused persons caused the death:

21. It is generally admitted that the deceased persons met their death after one William Odoyo called a witch doctor to his home to disclose who had burnt his house as a result of which he lost a child; that the witch doctor named the two deceased as the arsonists. That is when a group of the people present chased the deceased who were suspects of arson as revealed by the witch doctor, set upon them and killed them.

22. From the testimonies of all the witnesses, PW1, PW2, PW3, PW4, PW5 and even the accused person, the deceased met their death in broad day light. PW1 and PW4 told the court that this incident occurred about 5:00p.m following a meeting at Odoyo’s house. PW2 said it was about 3:00p.m while PW5 talked of the meeting at Odoyo’s place starting at 2:00p.m and incident was at 5:00p.m All the accused said persons also alluded to the incident occurring during the day.

23. All the witnesses know both the deceased persons and the accused persons. They were either relatives or neighbours. PW1 knew the accused and deceased since his childhood and they are neighbours, so did PW2, PW3. PW1 was a brother to the deceased. PW4 identified the 2nd deceased as his step brother while Daniel was PW5’s nephew (son). The witnesses, the deceased and accused are people who knew each other well and hailed from the same village.

24. According to PW2, PW3 and PW4, Accused 1 who was their Chairman of “Nyumba Kumi” (Community Policing) invited them to the meeting at Adoyo’s home. He is the one who informed the villagers of one William Odoyo bringing a witch doctor to his home to disclose who the arsonist who had burnt his house were.

25. It is also not disputed that there was a crowd at the home of William Odoyo on that material day. PW1, PW2, PW3, PW4 and PW5 told the court that it is not only the accused persons who chased the deceased but many other people may be about 8 to 15 did.

26. The five witnesses testimony was consistent as to what they saw, and what each accused person was armed with. They said the Accused 1 had a panga, Accused 2 had a nut and Accused 3 a Spear.

27. All the witness were also in agreement that the assailants first attacked Daniel, then later pursued Wilfred who sought refuge in his brother’s house but he was flashed out before being killed.

28. The defence is that the prosecution evidence was contradictory as regards what role each accused played in the deceased’s murder. In the case of Twahangane Alfred vs. Uganda Crminal Appeal No. 139 of 2001 (2003) UGCA 6 the court held as follows:-It is not every contradiction that warrants rejection of evidence. As the court put it:With regard to contradiction in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution case.”In Gladys Wanjiku Kanyotu vs. Republic (2020) eKLR the court said:-“The test of as to whether the contradictions and inconsistencies if any are fatal to the prosecution case is whether they have cast doubts in the prosecution case to the extent that the reasonable conclusion is that the witnesses were not telling the truth. If they show that the witnesses were deliberately not telling the truth, doubts in their evidence will be given to the accused.”

29. I have keenly considered the evidence of the five prosecution witnesses. As noted earlier, the offence was committed in broad day light and the accused and deceased were not strangers to each other but relatives and neighbours. PW2, PW3, PW4 and PW5 were present at the home of Odoyo where a witch doctor announced that it is the deceased who burnt Odoyo’s house. All the witnesses admitted that they saw more than three people chase the deceased. PW1 said that he saw about eight people chase the deceased. PW2 actually named the eleven people he saw chasing the deceased. PW3 said they were about 15 and named five other people that are not before court. PW5 named twelve people who chased the deceased. This can be classified as a case of mob injustice. PW1, PW3 and PW5 testified to seeing Daniel being killed; that accused 2 first hit him with the nut or metal that he carried and Daniel fell; that Accused 1 then cut him on the head and Accused 3 stabbed him. PW7 Dr. Olang’o found that the deceased, Daniel, sustained wounds to the head, face, which penetrated to the skull, and to the brain.

30. As regards the 2nd deceased; PW1 stated that he saw Accused 2 pierce the 2nd deceased on the stomach; accused 1 cut 2nd deceased on the leg. PW2 said he saw Accused 1 cut him on the hand; and accused 2 hit him on the forehead and that Accused 3 pierced him near the wrist. PW7 found that the 2nd deceased suffered deep cut wounds on the head; resulting in the head being deformed; fracture of the occipital parietal region and bleeding in the brain.

31. Though there are some discrepancies in the witnesses evidence as regards where each witness saw the accused injure the deceased, it must be appreciated that the witnesses watched from a distance. The deceased were surrounded by the assailants who were between eight to fifteen in number. The court appreciates the prevailing circumstances. The most important consideration is whether the accused persons were part of the group that assaulted the deceased. It does not matter whether any of them dealt the fatal blow. It is enough that they had a common intention. There was no time for the witnesses to count the exact numbers. Besides, having stood at a distance. It is likely that one may have seen the weapon falling at a different part of the body. I am satisfied that the discrepancies in the evidence of the witness are not fatal to the prosecution case. After all the deceased suffered multiple injuries on their bodies.

32. The accused all raised alibi defences that they were not at the scene when the deceased were killed, but that they came to the scene after the death had been committed. The law is settled that when an accused raises an alibi defence, he does not bear the burden of proving it. The burden of proof always rests on the prosecution to prove their case beyond reasonable doubt. See Ssentale vs. Uganda (1968) EA 36.

33. I find that the narration of all the five prosecution witnesses were not dislodged and they placed the accused persons at the scene before the deceased were killed and during the murder. There is no known reason why the witnesses would all lie to frame the accused. The defences were all an afterthought. In Festo Androa Asenwa vs. Uganda Criminal Appeal 11 of 1998, the court observed that belated disclosure of an accused’s defence goes to the credibility of the defence. The alibi defences are afterthoughts and are not believable in the face of the prosecution evidence. I am satisfied that accused persons were present at the scene of crime.

34. In view of the fact that the accused persons are not the only ones who chased the deceased but they were with others not before the court, the question is whether they acted with a common intention with the other persons not in court. Common intention is defined under Section 21 of the Penal Code. It provides as follows: -“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

35. In Tebula Yenka case (supra) when discussing common intention, the court stated as follows:“To constitute a common intension to prosecute an unlawful purpose …… it is not necessary that there should have been any concerted agreement between the accused prior to the attack on the so called thief of Arsonist. Their common intension may be inferred from their presence, their actions and the omission of any of them to disassociate himself / themselves from the assault.”

36. Though the accused never planned to attack the deceased, the accused’s intention is clear from the act of chasing the deceased from Odoyo’s home till they killed them. They were armed with crude weapons including the people not before court. The accused did not try to disassociate themselves from those attacking the deceased. It matters not what role each one played. I am satisfied all the accused had a common intention with all those who attacked the deceased.Whether the accused had malice aforethought:

37. Malice aforethought is defined in Section 206 of the Penal Code as an intention to cause death or cause grievous harm. In Rex vs. Tuberere s/o Ochen (1945)12 EACA 63 the East African Court of Appeal observed :-“In determining existence or non-existence of malice one has to look at the facts proving the weapon used, the manner in which it was used and part of the body injured.”

38. See also Hyam vs. DPP (1974) AC and Abang’a alias Onyango vs. Republic Court of Appeal criminal appeal no. 32 of 1990.

39. From the testimonies of the witnesses, once the announcement was made by the witch doctor that the deceased burnt Odoyo’s house, the accused who were armed chased the deceased. In fact PW3 said that Accused 1 stated that he had to finish the work. The accused were already armed. They attacked the deceased while armed with crude weapons and indiscriminately inflicted injuries on the deceased especially on the head. The 2nd deceased’s head was said to have been deformed as a result of the injuries (PW7). The Accused’s actions were obviously meant to end the lives of the deceased in a most savage manner. The number of assailants, the injuries inflicted and the weapons used are all evidence that the accused had malice aforethought.

40. In the end, I am satisfied that the prosecution proved beyond any doubt that the three accused were amongst others who chased and inflicted fatal injuries on the deceased. Their aim was to end the lives of the deceased for allegedly burning one William Odoyo’s houses and causing a death. The offence was committed in broad daylight and the accused were properly identified. I find all the accused guilty for the offence of murder as charged and convict them of the offence accordingly.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 16THDAY OF JUNE, 2022R. WENDOHJUDGEJudgment delivered in the presence of:-Mr. Omooria for State CounselMiss Kijana holding brief Ms. Apondi for accused personsMs Nyauke court assistantAccused 1, 2, & 3 present