[2017] KEHC 1138 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

HCCRC NO. 46 OF 2012

PROSECUTION ………………………………………………….REPUBLIC

VERSUS

BENARD OKUMU OLALA …………………………………….ACCUSED 1

SAMWEL OGOLA OMONDI ………………………………….ACCUSED 2

JUDGMENT

The accused together with one Samuel Ogola Omondi are charged with Murder Contrary to Section 203 as read with Section 204 of the Penal Code.

The particulars of the charge are that on 31st May 2012 at Randago Sub—location, Siaya District, within Nyanza Province they murdered Boniface Odhiambo Oduor.

They both pleaded not guilty.

The prosecution called five witnesses. Briefly, the prosecution’s case is that on or about 27th May 2012 an old man called Joseph Ooro Oloo was killed and his body dumped next to the gate of Mugane Primary School. Soon rumours started spreading that Boniface Odhiambo, the deceased in this case, was one of the killers. According to Benard Otieno Oduor (PW1), a kin of the deceased, a manhunt for the deceased soon begun and on 30th May 2017 at about 2PM the deceased was brought to the village market after he was allegedly apprehended in Kisumu by one Rafuna Oloo and Odhiambo Ogambi. The two brought him on a motor bike accompanied by others which were hooting. The deceased’s hands were tied with telephone cables. A group of people among them the accused persons are said to have set upon Boniface. The accused is said to have cut the deceased on the head with a jembe, while Samuel Ogola Omondi his co-accused who has since absconded while on bond cut the deceased severally with a panga.

Assistant Chief Vitalis Omollo Onyango (PW2) stated that he received report of what had happened at about 4. 30PM while he was in Siaya Town. He rushed to the scene and confirmed that Boniface had been killed for allegedly being one of the killers of Joseph Ooro Oloo. He informed the OCS Siaya police station who went and removed the body of Boniface to the mortuary. He stated that those who had beaten the deceased were not at the scene but later the accused and his co-accused who has since absconded were arrested.

Charles Owino (PW3), the brother of the deceased, testified that on 7th June 2012 he identified the body to the Doctor who performed the postmortem before the body was released to the family for burial.

Dr. Phillip Brian Okoth (PW4) produced the postmortem form on behalf of his colleague Dr. Rapenda whose opinion was that the death was caused by multiple fatal injuries caused by sharp and blunt objects.

When we put the accused on his defence he testified that on the material day he woke up early in the morning and went to plough after which he took the oxen to graze till late in the evening. He stated that on his way home he heard that Boniface, the deceased in this case, had been killed at Radango by Joseph Ooro Oloo’s sons. He stated that Radango where the killing is alleged to have occurred is 1 kilometer away from where he was working. He stated that on 4th June 2012 at about 4AM he heard a knock on the door and when he opened he was arrested by police officers who impounded 5 litres of alcohol that was in the house and told him that if he did not give them 2000/= they would arraign him in court for something else. He was subsequently charged with murder. He maintained that he was nowhere near the market on the material day. He disputed that PW1 saw him hit the deceased with a jembe and contended that PW2 could not have seen him while hiding in a bush.

Raphael Odul Nyabere (DW2) the Assistant Chief for Bar Osir Sub-location, South Alego Location, told the court that this offence was committed at Randago which shares a boundary with Bar Osir and that on the material day at about 4PM while he was in a school committee meeting he got a telephone call urging him to go rescue a young man who was being beaten by some “boda boda” at the trading center. He went there and found a crowd of about 15 boda boda beating Odhiambo Sewe. He however did not see the accused person there. He stated that when the assailants saw him they dispersed. He was soon joined at the scene by PW2, the Assistant Chief of that Sub-location. He called the OCS Yala who went and collected the body. In cross-examination he stated that he knew the accused person well and that he was not at the scene of the murder.

The accused also called George Odero (DW3) who gave evidence that on the material day he (the accused) spent the entire day ploughing for him. He stated that the accused ploughed the farm until noon and then grazed the animals until 5PM. He stated that he could see the accused even as he herded the animals. He stated that the scene of the murder was two kilometers from his home.

In summing up Mr. Kouko submitted that the only person who alleges to have witnessed this incident is PW1 and that it was not possible for him to see the accused person cutting the deceased as he was hiding behind a bush and there was a large crowd. He submitted that, contrary to PW1’s evidence that the deceased was killed by two people the Investigating Officer’s evidence was that he was killed by a mob. Mr. Kouko further submitted that PW1 was inconsistent as to where exactly he was on that day – whether it was at home or at the market. Mr. Kouko stated that the accused raised an alibi which was not rebutted. He urged this court to acquit him.

On her part Miss Chelengat, Prosecution Counsel, submitted that PW1 testified he saw the accused beat the deceased and the doctor testified that the deceased died from bleeding from injuries inflicted by a sharp object. She submitted that PW1’s testimony is reliable as it was largely corroborated by the Doctor. She contended that DW3 did not bring anybody to corroborate the alibi and that it is unbelievable that he could have taken a stranger who he met on the way to his home. She urged this court to find the accused guilty.

The issues for determination are first whether the accused person killed the deceased and if that answer is in the affirmative whether he did it of malice aforethought.

Having evaluated the evidence by both sides carefully it is my finding that the charge against the accused person was not proved beyond reasonable doubt. It is correct as submitted by Mr. Kouko, Learned Counsel for the accused, that what we have here is the evidence of a single witness. Whereas this court finds that PW1 was a credible and truthful witness it finds that there is a possibility that he was mistaken. It was his evidence that he watched the crowd beating his brother from behind a bush. He hid because of fear. He did not however tell this court how far the bush was from the scene or at what angle he saw the happenings. It could be that because of that bush he could not see what was happening clearly. It could have been in broad daylight yes but at what angle did he see the happenings. Where was the deceased for instance? Was he in the midst of the group beating him, right in front of him or were there people between him and the deceased as the lynching went on. These were important facts which should have been put to the witness to clarify. It becomes even more crucial because the accused called witnesses whose evidence was that he was not at the scene. DW2, the Assistant Chief – was categorical that he did not see the accused at the scene while DW3 was categorical that the accused could not have been at the scene as he had spent the whole day ploughing for him. These two witnesses also sounded truthful to me. They remained steadfast during cross-examination. DW3 need not have called a witness to corroborate his evidence. His evidence corroborated that of the accused person and that was sufficient. Moreover once an accused person raises an alibi it is the duty of the prosecution to disprove it. It is my finding that the evidence of the defence witnesses cast doubt on the case for the prosecution. The benefit of that doubt must go to the accused person. Accordingly I find him not guilty of murder and acquit him. He should be released forthwith unless otherwise lawfully held.

The warrant of arrest issued against the 1st accused and the summons issued to his sureties remain in force and in that respect the case shall be placed before the Deputy Registrar of this court forthwith for further directions.

Signed and dated at Kisumu this 6th day of December 2017

E. N. MAINA

JUDGE

Signed and delivered at Kisumu this 7th day of December 2017

D. S. MAJANJA

JUDGE