https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11460

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **HCCRA NO. E002 OF 2024** **REPUBLIC………………………………………………….....................PROSECUTOR** **VERSUS** **YONA ADHIAMBO ADEDE ………………………………………............ACCUSED** **JUDGMENT** The Accused person Yonah Odhiambo Adede was 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 25th, day of December 2023. Within Oruba village. Oruba Sub-Location. Oruba Location. Suba West Sub-County within Migori County in the Republic of Kenya Murdered Gerry Owino Pesa. PW1 Dr Edwin Odhiambo from Migori County Referral Hospital examined the body of the deceased Gerry Owino Pesa on 29/12/2023 at Migori Referral Mortuary. There was an incision anterior left side of the thigh made by mortuary attendant for postmortem. The pathologist said he found laceration and cut about 2.5cm long with smooth edges 9cm deep on left anterior chest wall between 1st and 2nd rib, near clavicular line. On internal and examination, he said that the right hemothorax was normal but the left was filed with black clotted blood. That the left upper lung had collapsed and the upper lube of left lung had laceration 4cm deeper into the lung tissue. Laceration: 1 cut about 2.5cm long with smooth edges, 9cm deep on left anterior chest wall between 1st and 2nd rib near clavicular line. All other systems were normal. He was of the opinion that **c**ause of death was penetrating chest injury by a sharp object. He collected blood sample soaked in a gauze; cartilage from chest wall and finger nails. He signed Post Mortem form and produced it as an exhibit. Exhibit No. 1. In cross examination by Ms. Ooro Advocate for the Accused, PW1 said that he is a Medical Officer and his duties are working in outpatient and theater. He said that in medical degree they do Pathology. He said he had practiced for four years and had conducted many postmortems. Present at postmortem was Elphas Omondi Owuor, Wycliff Otieno and Investigating officer. He said he did not see any other injury and the possible weapon used to cause injury was a wide sharp object. In re-examination PW1 said that before he graduated in 2015, he did pathology which is part of the curriculum. He said there was no evidence of a struggle between assailant and the deceased. PW2 17 years old Willis Odhiambo testified that he was a student at Agoro Sare Secondary in form 3. He said he knew the accused person who was his neighbour. He said he had known him all his life since he was born. That on 25/12/2023, it was Christmas day. After taking super at 11:00pm, he was sitting outside the house but inside compound. That the Accused came from the main road and asked them what they were doing. He said that he was with his cousin Kevin, and many others. That they told him they were just relaxing since their parents said they should be indoors that day. That the Accused had two knives which he was holding across his chest. He raised one hand and asked if PW2 knew what it was. That he responded that it was a knife. That the Accused told him that if they we did not want him to do something bad they should call Baba – meaning my father. That he told him that his father was sick because he had been beaten by thugs in Kisumu and had a fractured leg. I told him that I could not call him then. He started shouting asking for Baba. It attracted neigbours who came out. Many went to call my big brother Felix Oduor Abuolo. We were still looking at accused from a distance. Those who came out are Mama Miriam and Felix among others. That PW2’s mother told the accused that his father is sick and he could not see him at that time unless he comes next morning. That the Accused refused to go and tried to forced his way inside. He started threatening to kill people there. He got annoyed and stabbed Gerry on the upper chest and then ran off. That he ran into a plot that was fenced, hit his head on an iron and fell. That he got up and ran again. That Gerry fell and he held the place he said he was injured. That they put him in a motor vehicle and took him to Life Care hospital as he was bleeding. That since Life Care wanted cash, they took him to Migori Referral Hospital. That at Migori Hospital Gerry was pronounced dead on arrival and they went back home. PW2 said that the Accused wore a bluish jacket and a combat short like police uniform. He identified the bluish jacket as MFI 2 (a) in the photograph 2nd Picture – those are the combat short – MFI-2 (b). In cross examination by Ms. Ooro Advocate PW2 said that they were seated in the compound at 11;00pm. In the statement he said it was 11:00pm and not 10:00pm. The compound had a gate and the Accused entered the gate of the compound. He said they were taking soda and did not run away. The house they live in is built and other houses are for rental. There are neighbours, Gerry, mama Mariam and Felix were in the compound other neighbours tried to block the Accused from entering the gate. Felix told accused not to come in. He said nobody ran away. In re-examination PW2 said that their compound has 10 houses. Many people live in the same compound. Some people had left for celebration. **He also said that t**here were electrical lights in the compound which illuminated everywhere. Accused does not live in that compound. He lives next about 5 minutes’ walk. PW3 Akoth Mary Okinyi testified that she was currently living in Eldoret but in 2023, she was living at Oruba. She said that she finished school 2 years ago and work in a Boutique in Eldoret. On 25/12/2023, alt about 11;00am, it was Christmas and she was with Dan, William and Felix were seating on a verandah in the compound where they lived. She said they were celebrating, taking soda. That Yona passed and stood at the gate and asked why we were outside at that time. That he asked to see babu who is the owner of the home and they told him that he was unwell and was in the house and could not see him. That the Accused insisted on seeing Babu and shouting. Kevin and William told him to come next day. That all this time the Accused was holding his hands at the back and he raised one hand with a knife and asked if they knew what he was holding. They said it was a knife. PW3 said she went to call Felix. That Felix asked why the Accused visited the father at that time. That the Accused started to shout that he must finish what he came to do and wanted to see Babu. Neighbours came to find out what was happening. Jack also **c**alledGerald and came out. That Gerald asked the Accused why he had come to cause disturbance so late in the night. That the Accused was trying to force his way into the compound. That in the process of restraining the accused from entering he stabbed Jack once and ran off. That while running off he hit himself on a fence and went away they were left attending to Jack. That Felix and William rushed Gerald to hospital. The next morning, they got information that jack had died. PW3 said that Yona was known to her. That she had known him for about 8 months as he lives a few meters from their home, may be 12 metres. There was security light at the gate – electricity lights. The light at the gate was able to illuminate the whole courtroom. She said she could recall how accused was dressed. He had a jungle shirt and grey jacket. She identified the grey jacket and short as exhibit P 2 (a) and (b). When cross examined by Ms. Ooro Advocate for the Accused PW3 said that she was with Dan and William. There were children where they were too. That Yona had held the two knives behind him. She said she is a neighbour to Babu and they lived in that compound. Yona had never attacked them before. In re-examination, PW3 said that she was with William is also called Dan and that Jack is also known as Gerry. PW4 Kevin Otieno Petrotestified that he lived in Oruba and was a student in Mabera mixed and in form 4. He said he 19 years and knew the accused as he is a neigbour since June 2023. That on 25/12/2023, they were seated in the compound taking soda and telling stories. He said he was with Willis, Mary and other smaller children. He said they were seated outside the house but in the compound. It was 11pm. That the Accused appeared. He just hid his hand at the back then crossed his hands at the front. He first stood at the gate. He threatened them with one knife and asked if they knew what he had. They went to call Felix from behind the house. That Felix came and tried to talk to the accused. That Felix came and opened the gate which was locked and explained that Babu was sick, and the Accused should come next day. That the Accused started shouting saying he wanted to see Babu. It made neigbours come out including Gerry. That the Accused tried to break the gate and Gerry told him not to make noise and that is when the accused stabbed Gerry on the chest. That when the Accused tried to run, he hit himself on the fence twice then he ran off. The gate was small made of iron and wood. We were able to see accused when inside and outside the fence.Fence has grass and they were able to see accused from where they were inside. That after the accused escape PW4 said he saw stab on the deceased and he and Kevin took him to District hospital and he died. PW4 said that the Accused wore a grey jacket and he identified the jacket and short in court– MFI- 2(b) In Cross –examination by Ms. Ooro Advocate,PW4 said that the compound where they were is not big. The court room is big it is small 3metre by 2. In re-examination PW4 said that the verandah was about 3 meters by 2 meters. PW 5 Felix Odiwour Abwao testified that his home was in Orubabut had come from Mombasa and worked in a church in Mavueni. That on 25/12/2023. It was at night about 11:00pm. He was in the house when Mary went to call him and said somebody wanted Babu. That he went out and found Yonah at the gate and he was saying he wants Babu. That he told him Babu was sick and could not come out. That the Accused was standing crossing his hands. The gate was locked and accused was outside. He said that he went to the gate alone. Mary, Willis and Kevin were near the gate standing. PW5 said he opened the gate and stood on outside the gate. That Gerry (Jack) was with him at the gate. That the Accused kept asking if they knew him and suddenly stabbed Gerry on the back once and he ran off, hitting himself against the fence but he got up and ran. That they placed Gerry on motorcycle to hospital but they did not have money and they were referred the Referral Hospital. PW5 said that there are security lights at the verandah. He said that their neighbours heard the commotion and came out. PW5 said he had known the Accused since his childhood and identified him on the material night wearing a grey jacket and short jungle. MFI – 2 (a) and (b). PW 6 Elphas Omondi Owino testified that on 25/12/2023, he was living in Oruba but by the time he was testifying he was living in Nairobi. He said the he was a student at Multimedia University doing CPA- Certified Public Accounts. He recalled that on 25/12/2023, he was with his brother Gerry Owino Pesa in the same house. People were celebrating with music outside. That he heard shouts outside and when he went out his brother followed. That they found many people at the gate and the Accused was demanding to enter the compound to see Babu. By then the gate was open. He was told that Babu was sick and he could not see him. That his brother said he could not enter because Babu was sick. That the Accused asked Gerry how he was talking to him as who and stabbed him once on the chest. That the Accused had gloves on the hand that held the knife. PW6 said that he was about one metre away from the Accused. He said that the Accused produced the knife from the hand. He ran off and hit himself. PW6 said the deceased was bleeding out like a pipe pumping out water. They got a motorcycle and took him to hospital. That at Life Care they had no money and they went to District Hospital where the deceased was pronounced dead. PW6 said that Postmortem was done on 29/12/2023 and he attended and identified the body. PW6 said that the place was well lit. There is security light. In cross examination PW6 said that he lived in that compound. He said that he had lived there for 2 ½ years with his brother.He said he had never heard of a dispute between deceased and owner of the plot. He had never heard that accused had attacked anybody. From the house to the gate is about 6 metres. There was music being played outside. Music was muted and that is why he was able to hear the noise. PW7 Millicent Akinyi Otieno testified that she lived in Mavueni in Mombasa with her husband and she was unemployed. That in December 2023, she was staying in Oruba. That on 25/12/2023, there were celebrations outside in the compound. She said she inside the premises when she heard noises. That she went outside the house and went to the gate where noises were. That she saw the Accused standing with his hands crossed and holding a knife. That the other people at the gate were Felix, Dancun and Fredrick. That the Accused was asking for Babu. He was showing a knife to the people and the people ran. People came out to prevent him from entering. Gerry came and asked why he was looking where and that Babu would not come out then. Accused got out and took out the knife. He stabbed Gerry ran off and hit the fence and fell twice. He then ran off. That Gerry called people saying he had stabbed and he needed to go to hospital. That later they were told Gerry was dead. At the gate there is electric bulb at the gate and she saw the Accused very well stabbing Gerry. She said she knew him as a neighbour for 5 years. She also identified the clothes the Accused was wearing as a jungle trouser and big jacket -MFi1- 2 (c) and (b). PW8David Muthoni graduate Industrial Chemistry from Kenyatta University testified that he graduated in 2009 as Chemical Analyst. He said that he also graduated from Chemical Institute of India and currently working at Kisumu Government Laboratory DNA section. That on 9th January 2024 at the laboratory of Government chemist Kisumu they received samples under escort of No. 55472. Corporal Reuben Nguya from DCI Suna West. The samples submitted were: 1. Blood sample of Gerry Owino Pesa – deceased. It was in vacutainer tube marked A 2. Finger nail of Gerry Owino Pesa – deceased in a plastic container marked B 3. Rib cartilage sample of Gerry Owino Pesa in plastic container marked C 4. Grey hooded jacket in brown envelope – marked D 5. Jungle green short torn on right leg in brown envelope marked E 6. Red T-shirt branded P5 Boy in envelope marked G 7. A pair of blue jeans trouser in brown envelope marked H In the report it was observed that the jacket item D, shirt G, the trouser item H were heavily stained while items E short was slightly stained with blood of huma origin. The DNA profile generated from the above listed items are tabulated at the end of the report He concluded that based on the findings the DNA profile generated from item D – jacket front side, T-shirt G, trouser H were all identical and matched DNA profile generated from reference sample of the deceased. DNA profile generated from color of jacket D and short E were both identical and matched DNA profile of Yona Odhiambo Adede the accused. The touch DNA generated from the jacket – item D and the short item E were identical and matched DNA profile of Yona Odhiambo Adede the accused. He signed the report on 6th May 2024. and produced it as exhibit Exp4. The samples were submitted vide duly filled exhibit memo and that is where we generated a file and reference. A07/2024 as shown on the report. The exhibit memo is dated 8th January 2024 MFI P3 we received it on 9th January 2024 The In cross examination by Mr. Begi Advocate, PW8 said that the blood sample from the deceased were brought by the police officer. He said he did not know how the samples were obtained. He said he obtained buccal swabs of Yona on 9th January 2024 and they took his photo. The swab is No. 6 in the list of samples. It is marked F. the buccal swab was extracted by a colleague known as Godwin Waliama an analyst who was his senior. The samples on the jacket and T-shirt matched DNA profile of Yona. He said he could generate touch DNA from clothes. The DNA profile generated from the clothes matched DNA profile of Yonah. He said they did not say the clothes belonged to Yonah. Samples are extracted by Government Analysts In re-examination by Mr. Oimbo PW8 said that **t**he buccal swabs from Yona Odhiambo Adede was obtained on 9th January at Government Chemist Kisumu PW9 No. 55472 Corporal Rueben Guya. Currently attached to DCI Suna West Sub County investigated the murder incident. He remembered that on 26th December 2023 at around 8.30 am while in the office some clients were referred to him. They were Godfrey Abwao alias Babu who was with other people. He had booked a report and he told PW9 that they had reported that there was murder incident at his rental house within Oruba the previous night at around 11.00pm. That he took him to one of the offices while others stood at the door. While in the office with Babu he heard those outside shouting and saying “Yona has arrived”. He asked Babu who was Yona and he was told it was the one who committed murder. That he got further information from Babu that there were one of his sons and a lady who were at the veranda outside the gate who told him Yona came and stopped where the 2 sons were and he told them he wanted to see Babu. The 2 boys and lady said Yona had 2 knives. Unfortunately, Babu had suffered a fracture and the 2 boys told Yona to come the next day. Yona insisted he must see Babu. Babu told PW9 that he did not see Yona on the said night. PW9 went and called Babu’s 2 sons and the lady as they were at the station. They further informed him how Yona came and was insisting and shouting he must see Babu. One of Babu’s son who was asleep was called and other tenants also came out and told Yona Babu was sick and he should come the next day. When he went on shouting and saying he could not sleep before seeing Babu other tenants came out including Gerry. That Gerry told him to go away since it was Christmas and he should leave them to rest and come the following day. When he insisted in the process, the Accused stabbed Gerry on his left chest. Everyone was scared when Gerry fell down. He was rushed to hospital where he was pronounced dead. After stabbing Gerry the accused ran away towards their home. After getting the information PW9 went to report office and found Yona seated. He had blood-stained grey jacket and he had an injury on his head. Before PW9 went to the report office the witnesses told him that the accused had grey jacket and camouflaged short. That when he found the Accused at the report officem he had an OB number and he was dressed in grey jacket and on arrival Yona told him that his brother had gone back home to bring the short he had the previous night during the incident. That he informed Yona that he got report of murder where he was suspect. Yona told him that the previous night at 11.00pm he was from town when he met about 10 people and one of them hit him on the head and he ran away and that he had come to report the attack. He also told the I/O that he had been treated at Ojele private hospital in Oruba. PW9 booked him in and told him they would investigate both cases. He visited the scene and found the incident happened at the gate of rental houses. The houses face each other. There is a road from town that passes outside the gate towards Yona’s home. The rental houses belonged to Babu. There were security lights. There was blood stain at the gate. There was also blood in the next plot which was fenced using old mabati sheets. That is where Yona sustained injuries when running away. All the witnesses were tenants in the same plot. They knew Yona very well. Yona also knew them. After getting the information PW9 took Yona’s jacket and short for purposes of investigations. He prepared an inventory of the clothes which he took on 26th December 2023 and Yona signed it. That he also signed the inventory and PC Simiyu also signed the inventory. He produced it Exp5. At the scene he drew a rough sketch plan which he produced in court Exp6. He also recorded statements and after post mortem was done on 29th December 2023, samples were taken from the body. Blood sample, cartilage from rib and finger nails from deceased were taken. I also took clothes the deceased was wearing. They are in court. * Red T-shirt Exp 7 * Blue jeans Trouser Exp 8 * Grey jacket Exp 2(a) Yona told me him he was at scene but he denied committing offence. That he wanted to establish some of blood stains on the clothes Yona was wearing. He prepared exhibit memo dated 9th January 2024 Exp 3 dated 9th January 2024 and forwarded the pair of shorts and jacket for analysis Exp 2(b) He got a report from Government Chemist. During investigations Yona had an injury while in cells and he requested to be escorted to the hospital where he was treated. He said he did not know if the Accused went back to the station for P3. Mr. Begi cross examined the Investigating Officer who said that he recorded some of the statements and he reviewed the statements. He said he did attend post mortem and report was handed over to him. He said he is not the one who extracted samples from the body of the deceased. From his statement it is indicated he took samples from the body of the deceased. It is not indicated that it is the doctor who took samples after they were extracted by the doctor and it is indicated in post mortem report. He said he visited scene and saw blood stains on the road and in the neighbouring plot where Yona allegedly fell. He said he did not take blood samples from the ground as it was not necessary. He said he did not record statement of Elphas Omondi. Elphas did not see Yona stab Gerry. Felix Abwao’s statement says he went out with Gerry who is his brother. In Kelvin’s statement he says Gerry came on his own/alone after Elphas had gone out. Kevin, Mary and Willis were seated outside when Yonah came and wanted to see Babu. Felix and Gerry did not go to scene together. He said he took the accused to hospital for review as he had been treated over the night. He alleged he had been attacked and injured. Accused did not come back and I could not continue with investigations into his alleged injuries. The accused booked report that he did not know who attack him. Those who were at scene knew Yona and there is evidence that he was injured when running away from scene of murder. PW9 said he had no interest in Yona or the deceased’s case. He said that he escorted Yona to hospital and he was to record his statement but he did not come back. Blood samples from the body of Gerry was taken by the doctor during post mortem and it was handed over to him. The red T-shirt and blue jeans were removed from the body of deceased during post mortem. He said he took the clothes to match DNA profile from Yona’s clothes and the profile from the deceased clothes. In re-examination by Mr. Oimbo PW9 said that Yona reported he was attacked at the exact location where the deceased was murdered. Babu bought land from family of Yona and Yona’s home is 200m from scene. If Yona was attacked, he would be able to identify the attackers. Yona told him that he was allegedly hit when he was walking home. At the close of prosecution case the Accused person gave sworn statement and called 4 witnesses to support his defence. In his statement the Accused said that on 25th December 2023 I could recall very well he was at work in Awendo. He left his place of work in the evening at 6.30pm. He returned home in Oruba and found his wife and children waiting for him. Even though he didn’t have enough money he gave them instructions to cook beef but not to use oil as he had ulcers. He went to a neighbour who is his relative. They had come from Nairobi. This was Mr. Omulo’s home. He found they were celebrating but he could not eat food cooked with oil due to the ulcers that he had and he returned home. He found his wife had cooked chicken and it had a lot of fats and he was unable to eat. He went to Shauri yako where fish is fried, he found the place was closed and he didn’t find fish. He went to Onyinjo where fish is fried and on arrival, he found only one woman who was roasting maize and she told him the fish mongers had closed. He bought roasted maize and started eating as he walked home using a short cut. Along the way he met some young men celebrating at Babu’s home. Babu bought land from his grandfather. The young men who were celebrating stood. The young men were known to him physically. There was light that made him identify the young men. They surrounded him and alleged he was a criminal and questioned why he was walking at night. It was 9.30pm. In the cause of talking, he was suddenly hit on the head and he fell down. He was hit with a hammer at the back of his head and he fell and the crowd descended on him. He heard the voice asking “Mnampiga kwa nini” he was rescued by members of the village who responded. his whole body was stained with blood. They wanted to take him to hospital but he had only Kshs. 200 and he pleaded with them to take him to his home which was nearby. He was handed over to his mother who instructed their last-born brother who was at home to take him to hospital. He was taken to Ogenya Hospital and the wounds were stitched and he was discharged at 1.00hrs. On discharge he passed by the scene as his cap had fallen there. They didn’t find the cap and they went home and he slept. The following day his two brothers accompanied him to police to report as advised by the doctor. On arrival at the Police Station he reported and he was told to wait. He went to Oruba police station Mr. Guya the investigating officer herein came and ordered him to remove his shoes and enter the cells. He was placed in the cells and later he was taken to court where an order for his detention for 14 days was issued. Later he was brought to court and charged for offence of murder. He was released on bond. He stated that the deceased was not known to him as he was a tenant in the area. He later learnt that the mother of the deceased and his wife had differences at the market. In cross-examination by Ms. Ikol for state he stated that the deceased person was not his neighbour. They leased house at his neighbours premises. The incident occurred on Christmas day. He came across several young men celebrating Christmas. He did not ask to see the deceased. He didn’t know Willis Odhiambo. It is not true he went to look for the deceased. It is not true that he threatened to stab PW2 and the young men when they told him the deceased was sick. It is not true he threatened to stab them if they refused to call the deceased. He denied talking to PW3 Mary Akoth Onkinyi. He denied wielding a knife when he went to the scene. He also denied stabbing the deceased and ran away. He stated that Babu’s place had perimeter wall and a gate made of iron sheet. He stated that he was hit on the head and all over the body. PW2 Willis Odhiambo said that he sustained injuries when running away and he fell. PW5 – Felix Odhiambo also lied to say he went and demanded to see the deceased and he entered to do something bad if he was not allowed. PW7 Milicent Akinyi Otieno also said she saw him with a knife. The prosecution witnesses lied to say that he stabbed the deceased and ran away. He went and reported to the police. It is the following day that he went to Oruba police station and made report. His report is dated 26th December 2023 at 10.20hours. Report by deceased family is dated 26th December 2023 at 08.00hours. When he went to the police station he was arrested and placed in cells after he reported he had been attacked. The family of the deceased bought land from his elder uncle. They had resided on the piece of land for over 20 years. Their home is 400m from his home. He said it was not true that he stabbed the deceased. In Oruba where he stayed if you issue threats, you would be killed. DW2 Samwel Oyoo Onyango testified that he came from Kisumu. By the time of the incident, he was residing in Oruba. Yona is known to me. He was his neighbour. On 25th December 2023 he could recall he was in his house with his family. Their neighbours Babu were celebrating and when he was going to the toilet, he heard screams from a young man known as Felix. Felix is Babu’s son. When he opened the gate, he found Yona lying down on the road and he was bleeding from the head. He said their plot is opposite Babu’s plot and Yona lay on the road 50m from Babu’s home. When he opened the gate, he heard Felix say that “Hautadharau mama yetu tena.” On, arrival Yona was lying down and bleeding and he could not talk. Another neighbour Mark Ogolla who was coming from town side came and assisted him take Yona to his home which is 250m from scene. There was also another 3rd person who accompanied them. At Yona’s home they found Walter who took Yona to hospital and he went home. DW2 said that the deceased is not known to him. In cross-examination by Ms. Ikol for state he stated that he was staying in a plot opposite Babu’s home. He had been a tenant in that plot for 2 years. He didn’t know the deceased as he didn’t know Elias Owino. He didn’t know Yona had stabbed the deceased. He heard Felix say that Yona would not disrespect his mother again. He said their plot to Babu’s home is around 50m. It is Yona he found had been injured. DW3 George Onyango Odhiambo from Anjego village said he resides in Eldoret. At the time of the incident, he was residing in Oruba. He came to know Yona at the time of the incident. That on 25th December 2023 he could recall he was in town at around 9.15pm. and he decided to leave town and go home. There were no motorbikes and he had to walk. On reaching Pesoda primary school area, he saw someone ahead of him walking towards the same direction. He didn’t immediately identify who the person was as he was walking towards where he was going. He maintained the distance between the 2 of them. When he was nearing a certain homestead known as Babu’s home he heard some celebratory noise. He believed that it was celebration day and he had no fear. Some few metres from that gate he saw the person who was in front of him went past the light at the gate. Immediately he saw some two people whom he didn’t identify follow the person in front with rungus. That made him fear and he stood. This happened so fast that he heard screams and sound of someone being beaten. Due to the screams neighbours came out. As people were coming, the attackers dispersed from whoever they were beating. As the attackers retreated, he heard one say you can’t disobey/disrespect our mother. When the crowd gathered, he gathered courage and moved to the scene. Together with the neighbours who responded they escorted the accused to his home and handed him over to his brother whom they told to take him to hospital. The accused was ahead of him and when he crossed the light at Babu’s gate he identified he was dressed in short trouser and jacket. In cross-examination by Ms. Ikol for state he stated that he didn’t know the deceased. He didn’t know the deceased’s home. He knew Babu’s homestead. Gerry Owino Pesa is not known to him. The celebratory noise was outside the homestead. Babu’s homestead has old iron sheets gate. It is poorly gated. He had never been to Babu’s homestead. The accused was walking ahead of him. When they were assisting the accused, he claimed he had a phone that was lost. He didn’t have anything else. The accused did not stab Gerry Pesa. If he had stabbed someone, the whole village would have been against him. The accused was attacked in front of him. The accused was not in that home as he was walking ahead of him. If the accused had entered the home prior to the time, he saw him he would not know. If he had stabbed the deceased, he heard one of the attackers say that they would not allow the accused disrespect their mother. Disobey and disrespect in our mother tongue is one and the same thing. In cross-examined by the court, he stated that later when he met the accused, he told him he had been brought to court. He was able to recognize him when he met him later. DW5 Mark Ouma Ogolla from Oruba village said he accused was his neighbor. That on 25th December 2023 he could recall at 9.00pm he was watching news in the house. There was some music being played at the neighbors’ home. At 9.30pm he heard screams. When he got out, he heard some young men run and say “huwezi cheza na mama yetu tena hivyo”. He got out and went out of the home 50m he found Yona lying down and he was bleeding at the back of the head. Yona lay besides the road between 2 gates. he identified him as Yona and he told the neighbors who responded and they escorted him to his home. They found his brother and handed him over. He said Gerry Owino Pesa is not known to him. In cross-examined by Ms. Ikol for the state, he said he came from Oruba village. The deceased is not known to him but his father was his school mate. Yona is his immediate neighbour. He is older than him. The incident happened between 9.30pm and 10.00pm. They arrived at the home at 10.00pm. He didn’t know how Yona sustained injuries as he found he was lying down. After the incident the music at Babu’s home continued. He didn’t know the young men who were playing music. He didn’t know what happened prior to finding Yona on the ground. DW6 Silfan Walter Adede, said he come from Nairobi Ruaka. At the time of the incident, he was residing in Oruba. He does interior décor and furniture. The accused is his elder brother. On 25th December 2023 he could recall between 10.00pm and 10.30pm he was at home. He heard one of his nephews Steve Ojwang knock at his door and told him mum wanted to see him. When he came out, he found a group of people in their compound. When he approached, he saw his brother Yona Adede with blood stains on his color. He had injury at the back of his head. When he inquired, he was told he was assaulted. He took him to Oruba nursing home where he was treated and the injury stitched. Oruba nursing home is also known as Kogenya. The people he found at their compound told him Yona had been assaulted. He didn’t inquire why Yona had been assaulted. The following day he took Yona to Oruba police station to make a report of the assault but he was arrested. In cross-examination by Ms. Ikol for state he stated that Yona is his elder brother. He is his 7th follower. He had assisted me severally. On 25th December 2023 he was at home. Yona also lives in the same home. On 25th December 2023 Yona was at home between 4 to 6.00pm. He could remember Yona was wearing Cargo short trouser and a shirt. He didn’t have a jacket. He was told Yona was assaulted. He learnt of the deceased after he had passed. He didn’t know what transpired before Yona came home with blood stains At the close of defence case Ms. Agade sought for 14 days to file and serve submissions. The Accused persons submissions are dated 16th March 2026 and are to the effect that prosecution witnesses gave contradictory evidence as to the circumstances under which the offence occurred, exact scene of the offence and whether the accused had one or two knives at the scene. It was also submitted that none of the prosecution witnesses identified the T-shirt marked G and the trouser marked H as belonging to the deceased and doubt is raised as to the source of the said clothes since no inventory was produced to prove they were recovered from the deceased. It was further submitted that prosecution evidence did not place the accused at the scene and the accused was therefore not connected to the injuries suffered by the deceased. This court was urged to find that prosecution evidence was insufficient to sustain a conviction. **ANALYSIS AND DETERMINATION** Based on the evidence tendered by the prosecution, the defence by the Accused and the defence Counsel’s written submissions the elements the prosecution had a burden to prove to sustain conviction for the offence of murder are:- 1. The fact and cause of death; 2. That the death was caused by an unlawful act or omission on the part of the accused; 3. That in causing the death, the accused acted with malice aforethought. The fact of the death of the deceased, Gerry Owino Pesa, is not disputed. Several witnesses testified that after the stabbing incident the deceased was rushed to hospital where he was pronounced dead. PW6, the deceased's brother, identified the body for purposes of post-mortem examination. The medical evidence was tendered by PW1, Dr. Edwin Odhiambo, who conducted the post-mortem examination on 29th December 2023. He observed a penetrating stab wound measuring approximately 2.5 cm long and 9 cm deep on the left anterior chest wall between the first and second ribs. Internally, he found massive bleeding within the left chest cavity and a laceration extending into the upper lobe of the left lung. He formed the opinion that the cause of death was penetrating chest injury caused by a sharp object. The defence did not challenge either the fact of death or the medical findings. The Court therefore finds that the death of Gerry Owino Pesa and its cause, namely a penetrating chest injury inflicted by a sharp object, were proved beyond reasonable doubt. On whether the Accused was the person who inflicted the fatal injuries the prosecution relied principally on direct eyewitness evidence and corroborative forensic evidence. The incident occurred at night. Consequently, the Court must examine carefully the circumstances under which the witnesses identified the assailant. PW2 Willis Odhiambo testified that he had known the accused all his life as a neighbour. According to him, the accused entered the compound while armed with two knives and demanded to see "Babu". He stated that after being told that Baba was ill, the accused became agitated, threatened people and stabbed the deceased before fleeing. PW3 Mary Akoth Okinyi similarly testified that she knew the accused as a neighbour and had known him for approximately eight months. She stated that there was electric security lighting at the gate and that she clearly saw the accused holding a knife and subsequently stab the deceased. PW4 Kevin Otieno Petro equally knew the accused as a neighbour. He testified that the accused appeared at the gate armed with a knife and insisted on seeing Babu, became confrontational and stabbed the deceased on the chest. PW5 Felix Abwao testified that he personally engaged the accused at the gate. He knew the accused since childhood. He stated that after opening the gate and speaking to him, the accused suddenly stabbed the deceased and fled. PW6 Elphas Omondi Owino, the deceased's brother, stated that he was about one metre away from the accused. He saw the accused draw a knife and stab the deceased in the chest. PW7 Millicent Akinyi Otieno also testified that she knew the accused as a neighbour for about five years and witnessed him stab the deceased before running away. The striking feature of the prosecution evidence is that all the eyewitnesses were persons who knew the accused before the incident. This was therefore a case of recognition rather than identification of a stranger. Evidence of recognition is more reliable than identification of a stranger because it depends upon previous acquaintance. Although mistakes in recognition can occur, they are less likely where witnesses have known the accused for a considerable period. The evidence further shows that the scene was illuminated by electric security lights at the gate and verandah. The witnesses were therefore able to observe the accused at close range. The accounts of PW2, PW3, PW4, PW5, PW6 and PW7 are materially consistent on the aspects that the accused arrived at the gate late at night; he demanded to see Babu; he was armed with a knife’ he became agitated when informed that Babu was unwell; the deceased approached during the commotion; the accused stabbed the deceased once in the chest and the accused fled and sustained injuries while escaping. This court finds that these witnesses gave mutually reinforcing accounts of the incident. The prosecution case was further strengthened by scientific evidence. PW8, the Government Analyst, examined exhibits submitted for DNA analysis. The results established that blood stains recovered from the accused's grey jacket matched the DNA profile of the deceased. The same analysis established that touch DNA obtained from the jacket and shorts matched the DNA profile of the accused. The forensic evidence independently confirms that the accused wore the jacket and shorts and the deceased's blood was deposited on the jacket worn by the accused. The defence offered no plausible explanation as to how the deceased's blood came to be present on his clothing. The forensic evidence therefore strongly corroborates the testimony of the eyewitnesses. The accused denied committing the offence. His defence was that while walking home he was attacked by a group of young men near Babu's compound. He maintained that he sustained head injuries and later reported the assault to the police. The defence called witnesses who testified that they found the accused injured and bleeding near the scene. The Court accepts that the accused indeed sustained injuries on the material night. Indeed, the prosecution never disputed that fact. The investigating officer acknowledged that the accused had injuries and sought treatment. The crucial question, however, is whether the existence of those injuries exonerates the accused from responsibility for the fatal stabbing. In the Court's view it does not. First, the prosecution witnesses consistently explained how the injuries were sustained. Their evidence was that after stabbing the deceased, the accused ran away, collided with a fence and fell. Secondly, even assuming that members of the public later assaulted the accused, that would not negate the evidence that he had already stabbed the deceased. Thirdly, the defence witnesses did not witness the stabbing incident itself. They only encountered the accused after he had already sustained injuries. DW2 found the accused allegedly lying on the road. DW3 saw an assault but admitted he did not know what had transpired before he arrived. DW5 similarly found the accused already injured. DW6 only assisted the accused after he had been brought home. None of these witnesses witnessed the events at the gate. Their testimony therefore cannot displace the direct evidence of six eyewitnesses who observed the stabbing. Further, the defence narrative is inconsistent with the DNA evidence. If the accused had merely been assaulted by unknown persons, there would be no reasonable explanation for the presence of the deceased's blood on his jacket. This court therefore finds the defence to be unpersuasive and incapable of raising a reasonable doubt. On whether malice aforethought is established, under Section 206 of the Penal Code this element is proved where there is intention to cause death or grievous harm, among other circumstances. The evidence demonstrates that the accused armed himself with knives before arriving at the compound; he threatened people while demanding to see Babu; he refused repeated requests to leave; he stabbed the deceased on a vulnerable part of the body, namely the upper chest and the stab wound penetrated nine centimetres into the chest cavity and lacerated the lung. The nature of the weapon used, the force applied and the part of the body targeted are all circumstances from which this court can safely infer intention. This court is satisfied that a person who deliberately plunges a knife deep into another person's chest must be taken to have intended either death or grievous harm. Malice aforethought was therefore established beyond reasonable doubt. In conclusion, having carefully analyzed the entire evidence, this court finds that the death of Gerry Owino Pesa was proved; the cause of death was a penetrating chest injury inflicted by a sharp object; the accused was positively recognized by multiple eyewitnesses who knew him beforehand; the eyewitness evidence was corroborated by DNA evidence linking the deceased's blood to the accused's clothing; the defence evidence merely established that the accused sustained injuries after the incident and does not displace the prosecution case. Malice aforethought was proved through the deliberate use of a knife on a vulnerable part of the body. The prosecution proved all the ingredients of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code beyond reasonable doubt. This Court therefore finds the Accused, Yonah Odhiambo Adede, guilty of the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code and accordingly convicts him under Section 322(2) of the Criminal Procedure Code**.** **DATED, SIGNED AND DELIVERED AT MIGORI, THIS 18TH DAY OF JUNE, 2026.** **ANNE ONG’INJO** **JUDGE** **In the Presence of**