https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11461

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **CRIMINAL CASE NO. E015 OF 2022** **REPUBLIC……………………………………………………………….PROSECUTOR** **VERSUS** **CHARLES JUMA ADIEDO ………..………………………………………… ACCUSED** **JUDGMENT** The Accused Charles Juma Adiedo is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that Charles Juma Adiedo on the 11th day of November 2020 at Kwe village Rabondo Sub-Location, West Sakwa Location, Awendo Sub-County in Migori County murdered Benard Odhiambo Dede. PW1 Magdalina Atieno 50 years old said that she came from Sakwa Agongo near Kwe Primary School. She said that on 11.11.2020 she was in the farm. Benard Odhiambo was weeding his sugarcane. She heard Benard Odhiambo cry asking why he was being killed. She approached the scene and saw Michael cut Benard’s hand and he fell. After falling Charles Juma cut Benard on the head. She heard Michael Radier telling Charles to kill her so that she doesn’t become a witness to what they did. Charles Juma cut her on the left arm. She was admitted at Migori Referral Hospital for two months. Benard had cuts on the body. She saw the cuts on the shoulder and head. Charles Juma cut Benard on the head. After Charles cut her, she fell and she didn’t know what happened. Charles and Michael Radier are her neighbours. Charles and Michael are brothers. Charles is older than Michael. Michael was arrested and she testified against him. The incident happened at 8.00am. Benard was with his 2 children Peter and Clinton who were assisting him to weed the sugar cane. She said that Benard who is her son was attacked where he was weeding his sugar cane plantation. PW1 said that she was weeding maize on a different farm and Benard was weeding sugarcane on the upper part of the land. That the deceased’s home was 50 – 60 metres from the farm which he was weeding. That Benard died on the spot when he was attacked. She went further to say that as she was approaching the scene, she saw Charles cut Benard on the head and when she arrived Charles cut her and she fell. That she didn’t know how she was removed from the scene as she regained her consciousness while at hospital in Awendo. PW1 further said that Charles Juma Adiedo’s father had stayed in the neighbourhood for long and that Charles does not do any work. She said Charles had always been in his father’s homestead and was at home on the material day. She said that she was the one who was injured during the attack and her son was killed. PW1 said that she recorded her statement after she was discharged from hospital and the suspects were arrested. She also said that she doesn’t know why the accused and his brother attacked Benard. In cross-examination by Mr. Agure Odero Advocate, PW1 said that she could not remember the date she recorded her statement but it was after she was discharged from the hospital. She said that Michael cut Benard on the shoulder and Charles Juma cut him on the head. She said that when she heard Benard cry and asking why he was being killed she rushed to the scene where Benard and his two children Peter Onyango and Clinton were weeding sugarcane. She also said that she was attached and she fell down she was taken to Awendo on a motor bike. She said Charles cut her on left hand and that she produced the P3 form when she testified against him and he was convicted. In re-examination she said that both Charles and Michael were armed with pangas and they cut Benard on the head and shoulder and he fell down and died. She also said the assault case was heard in Rongo and Charles was jailed. PW2 Peter Onyango Dede, 21 years old student at Isebania Technical and vocational training college testified that on 11.11.2020 he was 17 years old. That he was with his father and younger brother Calvins Otieno weeding in sugarcane plantation. That as they were weeding in the overgrown sugarcane suddenly Michael Radier and his brother Charles appeared and attacked their father. He said they were about to reach the end of the line when Michael Adier and Charles appeared. That Michael cut his father’s left shoulder while Charles Juma cut his father on the left side of the head next to the ear. PW2 identified the Accused herein as Charles Juma who was in the dock. He said that his dad fell down to the ground when he was cut and he heard Michael tell Charles ***“ Malizana na yeye atatusumbua na kesi”*** That is when Charles Juma cut his father again on the left shoulder. That Michael also cut the deceased on the forehead and on the left shoulder. The accused and Michael were armed with pangas and some sharp pointed rods and they could not move close. They prevented them from going to where their father was as they were welding pangas at them. That they screamed very loudly and their grandmother went to where they were. PW2 said that his grandmother was Magdalina. That when their grandmother went to where they were, Charles cut her on the left arm and she also fell on the ground. After that Charles and Michael ran off. That Police went to the scene and collected the body of their father and took it to Awendo and their grandmother was also taken to Awendo District Hospital where she was treated. Charles Juma Adiedo has been known to him since his childhood as a neighbour at home. He said he did not know the reason they attacked his dad as he was not aware of any differences between them and the father. That morning before they started weeding, he did not see Michael and Charles. Where the accused lives to their home is about 0.5km away. That the Accused persons father is their immediate neighbour and there are many neighbours between them and accused person’s home. Michael also lives in the same area. PW2 said that his grandmother stayed in hospital for sometime before she got well. He recorded his statement one day after the incident. There was no action they took to assist their father as he was already dead. Mr. Agure Odero cross examined the witness and he said that he recorded his statement on 12.11.2020. He said they were weeding sugarcane with his dad. My dad moved away to collect some firewood that had been cut in the sugarcane plantation. The accused persons emerged from maize plantation and he heard his father scream and he rushed towards the direction as he could not see what had happened as the sugar cane was overgrown. My statement indicates that at the scene we found our father already cut on the head and left shoulder and had fallen. He said that his statement indicates Charles Juma attacked his grandmother and that immediately after attacking their grandmother they ran and disappeared into the maize plantation. In re-examination the witness said that he was with his father in the shamba and after he heard the screams, he rushed to where the father was screaming and found when they were in the process of cutting the deceased. He said he did not see the accused cut his father PW3 Calvince Otieno Dede testified that he lived in West Sakwa Awendo Sub County and he was a student at Mawego Polytechnic. He said that the accused person was known to him very well as he comes from the same village with him. He used to be a man of God. He said he had known him well prior to 11.11.2020. That on 11.11.2020 at 8.00am he and his brother Peter and their father Benard went to the sugar cane plantation to plough. That their father was digging ahead of them and he and Peter were behind. The sugar cane was the height of his waist and their father was about 5 metres ahead of them. That the accused and his brother Michael Radier emerged from maize plantation nearby/adjacent to the sugar cane plantation while armed with a panga and metal bars with both edges sharp. That they heard their father shouting and asking “why are you killing me”. When they rushed to the scene, they saw Charles cut their father’s head and he fell down. That when their father tried to stand Charles Juma again cut his hand. That they retreated while screaming. That when they raised alarm. their grandmother Magdalene responded and went to the scene. When she arrived Michael Radier told Charles to finish her so she does not disturb them with the case. That Charles cut the grandmother’s left hand. Michael Radier cut his father on the left shoulder and on his waist. After committing the offence Charles Juma ran into a nearby forest as Michael Radier ran back to his home. That they carried their father from the scene to take him to the hospital. That while their mother Ruth was coming to where they were Michael throw a big stone towards her. When they arrived at the main road, they met police officers in a car and they took the father’s body to the mortuary. PW3 said that he saw when Michael threw a stone at his mother. During the incident he was 15 years and his brother Peter was 17 years. When Charles and his brother Michael attacked their father, they didn’t talk and he did not know the reason for attack. In cross examination, by Mr. Agure Odero Advocate, PW3 said that on 11.11.2020 he was digging with his brother Peter and his father Benard Odhiambo. It was 8.30am while in the sugarcane plantation digging the accused and his brother Michael emerged from a neighbours’ maize plantation and attacked his father with pangas and metal bars. Nobody was in their neighbour’s maize plantation. The maize was about 2 – 3 metres in height. The accused person was armed with a panga. His brother also had a panga. Each also had pointed metal bars. The accused cut the father’s head on the left side. He also cut the left arm. Michael Radier cut PW3’s father on the left side shoulder and left side of his waist. Michael Radier told Charles Juma to kill the grandmother so she does not disturb them with the case.PW3 said that he recorded his statement which indicates that they were also armed with a rungu. It is Michael who carried a rungu. That he informed police that Michael had a rungu. It is true he earlier said there were only panga and sharp pointed metal bars. He said he was sure that what he had said in court is what he told police when his statement was recorded. The statement does not indicate which part of the body the accused cut. The neighbour indicated in my statement is not known to me. My grandmother was nearby garden and she responded to the alarm we raised. Charles Juma attacked the grandmother and the matter was reported and Charles was charged in Rongo court. The weapons used were not recovered. Charles Juma was at the scene and his brother saw him. There was no other person at the scene apart from himself, his brother and his father when the accused attacked and killed their father. He said they raised alarm and their grandmother responded and the accused attacked and injured her. In re-examination the witness said that from his statement he wrote that Charles and Michael were armed with pangas and sharp pointed metal bars. That he also indicated in his statement that Charles Juma cut his father on the left hand above left elbow and left side of the head and left shoulder. What he had said in court is also in his statement. The neighbours he referred to are Charles Juma and Michael Radier who emerged from the maize plantation. There was no other neighbour. PW4 Ruth Akinyi Dede said that she came from Kwe village West Sakwa Awendo Sub County in Migori County testified and was a farmer. That on 11.11.2020 at about 8.00am she went to another farm and Benard Odhiambo her husband went to another farm together with Calvince and Peter Adede. They went to weed. While at the farm she heard screams and she rushed home. That when she was about to reach home, she met Peter and Calvince were with their grandmother Magdalina Atieno who was holding her head. That the 2 were carrying their father and they told her that Michael Radier and Charles Juma had cut their father. While there he saw Michael Radier armed with a stone and panga. That she rushed and went to report to chief. That on return she found Peter and Calvince had placed the body of Benard on the road. Benard had a cut on the head. He also had a cut on the waist. The cut on the head penetrated to the brain. Magdalina was also cut on the hand and was bleeding. While on the road police vehicle came and took the body of my husband to Rapcom hospital mortuary. In cross examination by Mr. Agure Odero Advocate PW4 said that she was in a different farm when her husband was cut. It was about 100 metres to the farm where the deceased and her children were. She said she had gone to get cassava cuttings from a neighbor. The land where her husband was killed belonged to him. There was maize plantation neighboring the sugarcane plantation. When she heard screams, she ran back but did meet Peter and Calvince holding their father on their way. When she met Peter and Calvince carrying Benard he had died as he was not walking. There were many people who had gathered and were with Peter, Calvince and her mother-in-law. She said she didn’t see what happened. She found when Benard was already cut and it is Peter and Calvince who told her what happened. In cross examination, PW4 said she met Peter and Calvince were holding their father who had been cut. Their grandmother was also with them. There were neighbours who were also running towards scene in response to the alarm PW5 Mike Obuya Ong’ore, Assistant Chief of Rabondo Sub Location testified that on 11.11.2020 at around 8.00am Ruth Akinyi went to his home and reported that while in the farm around her home she heard screams seeking for help and when she rushed home, she found her husband Benard Odhiambo had been cut with a panga by Michael Radier Adiedo. She wanted assistance to take the husband to hospital. That they rushed to the scene but unfortunately found Benard had succumbed. He called the Assistant County Commissioner who in turn called OCS Awendo and DCI and they rushed to the scene. On arrival at the scene, they made inquiries and thereafter took the body to Rapcom hospital mortuary. PW5 said he saw 2 cuts on the left side of the head and left shoulder. They were deep cuts. There were several people at the scene. He said he didn’t see Benard’s mother at the scene. That later he saw Benard’s sons when they went to scene of attack with DCI PW6Dr. Jared Elisha Olando testified that he had post mortem report done by Dr. Wekesa at Rapcom medical Centre Awendo. He said Dr. Wekesa was in the USA but was formerly his colleague at Rapcom. He said they worked together for 2 years and he was able to identify his signature and handwriting. On being permitted to produce the PM Report with concurrence of PW6 said PM was conducted on22.11.2020 at Rapcom Hospital Awendo. He said that the deceased was dressed in black trouser soaked in dry blood and didn’t have a shirt. The body had 2 major cut wounds. The first cut wound on the left side of the temporal bone which went through left ear to the brain exposing brain matter. The 2nd cut – deep cut on left shoulder cutting major arteries of the shoulder. The 3rd cut was a minor one on the right forearm. Cardio vascular system – Arteries of the left temporal region and left shoulder were cut. Head had a deep cut on temporal region going into the brain and exposing brain matter. As a result of the examination Dr. Wekesa was of the opinion that excessive bleeding led to hypovolemic shock due to severe bleeding – hemorrhage. The injuries were due to sharp object. Dr. Wekesa signed the post mortem report and had it stamped. I wish to produce it Exp 1. In cross examination, Dr. Olando said he was a medical doctor and pathology is part of their training. He said they do anatomy and learn all parts of the body. He said he did a certificate in traumatology which capacitates him to conduct post mortem. He said he qualifies him to conduct post mortem. He said that Dr. Wekesa was working with him during the time that the post mortem was done. There was a minor cut on the right forearm. Hypovolemic shock means less volume in blood. When arteries are cut in the body blood gets drained to the extent that there is no blood in cardiovascular system. When blood is drained the heart will also stop functioning. The injuries were inflicted by a sharp object but he could not specifically say whether sharp instrument was a panga, spear or knife PW7No. 64523 Corporal Stephen Onchari. Attached to DCI Awendo DCIO’s office testified on behalf of the initial investigating officer Corporal Mathew Tum of Awendo DCI office. He was transferred to Turbo DCIO’s office on medical grounds. Before Corporal Tum went on transfer I worked with him for 4 years. I have the statement that Corporal Tum recorded when investigating the matter. It is dated 14.11.2020. It was self-recorded and signed. I can confirm the handwriting and signature is for Corporal Tum. From the statement Corporal Tum state that on 11.11.2020 at around 0900hours while within the station we received information from OCS that there was murder incident within Kwe village. Corporal Tum and OCS proceeded to the scene and found the body of the deceased Benard Odhiambo lying on the road side. He has indicated on interrogation he gathered that the deceased had been cut by 2 people namely Michael Radier who was in company of his brother Charles Juma over boundary dispute. He observed that the deceased had 2 deep cut on the left side of the head and left shoulder. He processed the scene and collected the body to Rapcom mortuary for preservation and post mortem. He further went ahead and arrested the suspect herein and was charged. Michael Radier was charged before this court and was sentenced. He is currently serving sentence in HCCR C No. E025 of 2020. I wish to produce the statement of Corporal Tm Exp 2. In cross examination, CPL Onchari said that he was not the investigating officer. He said he took over investigations from Corporal Tum. It is Assistant Chief Mike Ongure who reported the murder to the station commander. Benard Odhiambo was cut by Michael Radier who was in company of his brother the accused herein. As per the statement Michael Radier was in company of the accused herein when he cut the deceased. The assistant chief testified in court and confirmed that Michael Radier cut the deceased. The murder weapon was not recovered at the scene. The issue was touching on boundary dispute. Michael Radier was charged and convicted in HC CRCC No. E025 of 2020 At the close of prosecution case the Accused was placed on his defence and he opted to give unsworn statement and saidhe did not know what happened on 11.11.2020. He said he stays in Awendo where he does business. He said he learnt that Benard Odhiambo had been murdered by his brother Michael Radier Adiedo who is neighbour to the deceased. Michael Radier was arrested and charged and he was convicted and sentenced to serve 15 years. That he was arrested 2 years later and charged with the same offence of murder. He said he knew nothing about the offence. The Assistant Chief confirmed that the wife of the deceased said it is Michael Radier who killed her husband. It is Assistant chief who went to scene. **ANALYSIS AND DETERMINATION** Having considered the evidence on record for the prosecution and the Accused person’s unsworn testimony the issue for determination is whether the prosecution has proved beyond reasonable doubt that there was death, that the death was caused by an unlawful act; that the unlawful act was committed by the accused and that the Accused was actuated by malice aforethought. Whether death of the deceased was proved, the prosecution established that the deceased was alive when he went to the farm; that he sustained multiple deep panga cuts; the post mortem confirmed severe injuries to the head and shoulder and death resulted from hypovolemic shock due to excessive bleeding. There is no dispute concerning death or its cause. On whether the deceased died as a result of an unlawful act, again, this element is fully proved. The injuries were clearly caused by a sharp weapon and there is absolutely no evidence suggesting accident, self-defence or any lawful justification. On the issue whether the Accused took part in the murder of the deceased, the offence took place early in the morning on 11th November 2020 and PW2 and PW3 knew Charles before the incident as they were neighbours. Recognition is generally more reliable than identification of a stranger. At around 8.00–8.30 am visibility was favourable and both witnesses stated they rushed toward their father after hearing screams. They therefore observed events at close range. Secondly the two eyewitnesses PW2 and 3 consistently placed Charles together with Michael Radier at the scene and they both attributed active participation of the Accused person in commission of the murder. PW2 and 3 testified that Charles also cut their grandmother when she responded to the alarm they raised when the Accused and his brother attacked their father while they were weeding in the sugarcane plantation. That evidence tends to reinforce their account that Charles was not merely present but actively participating in the commission of the offence herein. The evidence of PW2 and 3 corroborated each other that the Accused was at the scene and he participated in committing the offence and that when the mother to the deceased responded to alarm raised by PW2 and 3 the Accused attacked and cut her arm with the support of his brother who encouraged him to finish her so she does not disturb them with case. The evidence of the 2 witnesses remained substantially intact under cross-examination and the minor discrepancies regarding whether Michael carried a rungu, metal bars or the exact weapon did not affect the central issue of participation. The medical evidence is entirely consistent with the eyewitness testimony. The witnesses described head injuries and shoulder injuries which were confirmed by the post mortem report that there was a deep temporal cut; deep shoulder cut and forearm injury. Thus, the medical evidence corroborated the prosecution witnesses’ evidence as to attack and injuries inflicted on the deceased that led to his death. PW7 the investigating Officer merely produced the initial investigating officer's statement. Some parts of that statement suggested that Michael Radier cut the deceased. The Assistant Chief also testified that Ruth initially reported that Michael Radier had cut her husband. The defence relies heavily on this inconsistency. However, PW4 never claimed to have witnessed the attack. She merely repeated what she had been told. PW5 equally did not witness the murder. Thus, their evidence cannot override the direct eyewitness testimony of PW1, PW2 and PW3. Even assuming Michael inflicted the fatal blow, Charles was still criminally liable. The evidence shows that both emerged together and they were both were armed. They both attacked simultaneously and Michael instructed Charles "Malizana na yeye atatusumbua na kesi." Charles immediately complied by attacking again and they then jointly attacked the grandmother to PW2 and 3. Their conduct before, during and after the incident strongly suggests a shared intention. Section 21 of the Penal Code would therefore be applicable in the circumstances. Whether the prosecution proved malice aforethought, the nature of weapons used would make this court infer malice aforethought. The Accused and his brother were armed with pangas and sharp metal bars. These are lethal weapons. The 2 attackers ambushed the deceased who was working in sugarcane plantation and suddenly attacked him and aimed at the head, shoulder and brain region. Those are vulnerable parts of the body. The injuries were extensive. Brain matter was exposed and major arteries were severed. The statement, "Malizana na yeye atatusumbua na kesi" demonstrates deliberate rather than a spontaneous assault. In the accused unsworn denial, he stated that he knew nothing; that only Michael was responsible and that he was arrested two years later. The defence raises two issues; Delay alone does not render identification unreliable if witnesses consistently recognized the accused. Further, the argument is weakened by the evidence of PW1, PW2 and PW3 placing Charles at the scene actively participating. In conclusion this court finds that the prosecution has successfully proved, death, unlawful killing, malice aforethought and participation by the Accused person through common intention. This court finds that the evidence adduced by the prosecution is sufficient to support the charge of murder against the accused person. He is found guilty and is accordingly convicted under Section 322(2) of the Criminal Procedure Code. **DATED, SIGNED AND DELIVERED AT MIGORI THIS 30th DAY OF JUNE, 2026.** **HON. ANNE ADWERA- ONG’INJO** **JUDGE** **In the Presence of:** Victor – Court Assistant.