https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9026

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT SIAYA** **CRIMINAL CASE NO. E013 OF 2024** **REPUBLIC …………………………………….………………PROSECUTION** **-VERSUS-** **CHRISPIN KENNEDY AWAMBO……………………….…...1ST ACCUSED** **VINCENT OCHIENG ONGORO…………………………...2ND ACCUSED** **JUDGMENT** 1 The two accused herein Chrispin Kennedy Awambo and Vincent Ochieng Ongoro have been charged with an offence of murder contrary to section 203 as read with section 204 of Penal Code. The particulars are that on the 4th day of September 2023 at River Nzoia bridge in Nzoia shopping centre in Siranga Sub location, Ugunja Sub-County within Siaya County, jointly with others not before court murdered one Jared Ongoro Odhiambo 2 The accused denied the charges and thus warranting a trial wherein the prosecution called seven witnesses in support of its case. 3 John Fabian Ongoro (Pw1) testified that on the night of 4/9/2023 he and deceased Jared Ongoro Odhiambo had gone to attend a funeral of his cousin brother at Siranga past Nzoia Market. That there was Ohangla Music at the funeral vigil and that they were the ones who had taken the music troupe there. That they stayed there until 10:30pm when they left using the deceased’s motorcycle. That on reaching a certain junction, they saw a motorcycle carrying three men and which followed them and then later overtook them at the Nzoia River Bridge. That the men alighted from their motorcycle and started attacking them. That he was cut on the head with a panga while the deceased was also assaulted. That he also sustained cuts on the leg, which made it difficult to escape. That the assailants also cut him on both hands. That he heard the deceased pleading with the assailants to spare him and instead take money, and that he had left the business at Siriwo. That Siriwo was a business name of Vincent Ochieng Ongoro (2nd accused herein) and the eldest brother of the deceased. That his assailant later left him as he thought that he had finished him and joined his companions to attack the deceased. That the 2nd accused and deceased were brothers and that prior to the incident, they had reported each other to the police station and later failed to resolve the differences. That he heard the deceased screaming. That he lost consciousness and was rescued the following morning and taken to Ambira sub-county hospital before being referred to Siaya County Referral hospital and then to Jaramogi Oginga Odinga Teaching and referral Hospital. That he later learnt that the deceased died. On cross-examination, he stated that he did not identify the three assailants. 4 Michael Omondi Titua (Pw2) testified that on 4/9/2023 at 8:00pm he received a call from the 1st accused who requested to use his motor cycle but he declined because it was at night and posed some risks unless he himself rode it. That he agreed and went to the home of the 1st accused who contacted his employer and allowed him to speak to him on the transport charges. That they proceeded to Siriwo Complex club and parked the motorcycle outside. That a tall huge man emerged from the club, who turned out to be the 2nd accused herein. That the 2nd accused herein entered Siriwo club and came out with a long metal rod which he handed over to the 1st accused herein. That the 2nd accused called one Leonard from the club who came and parked his motorcycle next to his and that the 2nd accused directed him to follow the said Leonard to a certain home in the area. That they proceeded towards river Nzoia and passed by a certain home where there was a funeral vigil. That he remained outside while the 1st accused and Leonard entered the home only to emerge with another person and that Leonard sped off leaving him with the 1st accused and the new person. That the 1st accused told him to wait as they needed to pick another person from that home as he was one of the guests of the 2nd accused. That after a while, some people emerged and that the 1st accused informed him to follow them as they were leading to the home of the 2nd accused. That the 1st accused directed him not to overtake them, but he became suspicious and proceeded to overtake them only for the 1st accused to jump off the bike and hit the deceased and his pillion passenger with an iron bar and that the said people fell down. That he was shocked by the turn of events. That the 1st accused then attacked the rider of the other motorcycle and pushed him into river Nzoia. It was then that the 1st accused’s companion, Jose attached the passenger on the other motor cycle by cutting him with a panga. That he managed to push his motor cycle to the other side of the river and then came back to the scene. That he saw the 1st accused herein emerging from the river and was without the metal rod. That the 1st accused instructed his companion, Jose to leave the other person since they had already accomplished the mission. That the 1st accused ordered him to take them back to Siriwo complex club. That on arrival, the 1st accused called his employer who is the 2nd accused, that he meets him outside and briefed him on the success of the mission. That he waited for the 1st accused as he left with the 2nd accused to another place behind the Club where they remained for ten minutes. That the three of them later approached him and then the 2nd accused herein warned him not to reveal what he had witnessed or else he would lose his life. That he felt threatened. That the 2nd accused gave him his charges of 1000/- and then he returned the 1st accused and his companion Jose to their home. That the following day, he woke up and went about his normal job. That later, the 1st accused visited him at the bus stage and requested him to lend him 1000/- as he had an urgent problem to solve. That the 1st accused had a mobile phone which he told him to take it for that amount. That he took the phone to a certain artisan who managed to repair it and then he inserted his Sim card on it and started using it for about one week. Later, while he was at the bus stage, a certain pick-up arrived and that he saw the 2nd accused behind the drivers’ seat. He approached and greeted him and that he left but came back later while in company of the 1st accused and that the 1st accused requested him to ferry him to his home. That the 1st accused informed him that the 2nd accused had taken him to Kakamega area. That the 1st accused informed him that the phone he had sold to him belonged to the person whom he had killed at River Nzoia. That the 1st accused enquired about the said phone and how he had used it. That the 1st accused further informed him that investigations were ongoing over the incident at River Nzoia and that he should not use the said phone again. That he decided to remove the Sim card from the said phone handset as directed by the 1st accused. That on 24/10/23 at 5:00pm, he was at home playing a game of football using the said mobile phone when the village elder alerted him that his father was needed at Sigomere and that his father later went to Sigomere Chief’s Office. That the village elder later came for him as he was also needed at Sigomere Chief’s Office. That he was later seized and his room ransacked. That he handed over the mobile phone handset and explained to them on how he came by it. That he was ordered to lead them to where he had obtained the mobile phone handset which he identified in court as Mf-1. That he had known the 1st accused as Supuu while he had not known the 2nd accused prior to the incident, but knew him by the title of Siriwo as per the business and that he was the one who had paid him 1000/- as his charges for ferrying 1st accused and his companion. On cross examination, he stated inter alia; that it was the 1st accused who had called him and requested to be ferried; that he spoke with the 2nd accused; that he was charged before Ukwala Law Courts under CR No. 150 of 2023 with a charge of robbery with violence; that Eric Wareda is the one who repaired the mobile phone while Habil Wareda is the owner of the shop; that he did not report the incident to the police; that they left Siranga at 10:00 pm; that he inserted his Airtel line into the new mobile phone handset; that 1st and 2nd accused persons spoke on phone; that he saw the 2nd accused at Siriwo Complex club; that he recorded his statement late due to the threats issued by both accused; that he was allowed to enter into a plea bargain at Ukwala Law Courts; that Jose used a panga to cut the pillion passenger while the 1st accused attacked the rider; that it is not true that he made the confession so as to avoid the Ukwala case; that the Ukwala case was withdrawn after he made the confession. 5 Hannington Odhiambo Ouko (PW3) testified that on 4/9/23 he had left school for home due to school fees. That he was at Siriwo Complex belonging to the 2nd accused when he saw three young men who came on a motorcycle. That earlier, a motorcyclist named Leonard had arrived with the 2nd accused. That on the arrival of the three young men, one remained on the bike while the other two approached the gate of the building and that one of them spoke with the 2nd accused herein and then they left. That later, one of the person who had visited the 2nd accused namely Jose was called by the 2nd accused and went to his house and came up with a metal rod and a panga which he handed to the three young men. That the said Jose went to the house of the 2nd accused. That the three young men left and came back after forty minutes and that the 2nd accused spoke with them before they went away. That the following day, he heard that Ogoro had been killed. That he later visited the scene and confirmed that indeed Ogoro had died. On cross examination, he stated inter alia; that the 2nd accused is a neighbour; that he was working at the Complex on 3/9/23; that his duty at the hotel was to pack mandazi (buns); that one of the young men spoke with the 2nd accused after returning to the hotel; that he did not see the 1st accused that night. On re-examination, he stated that the three young men came to the hotel on 3/9/23 and that the deceased was killed on 4/9/23. 6 Dr. Oluoch Otowa (PW4) testified that he was standing in for his colleague Dr. Tony Kinja who is away on further studies. That the autopsy was conducted on 14/9/23 and that the injuries found included multiple bruises on upper and lower limbs and multiple fractures on the skull. That the opinion on the cause of death was severe traumatic brain injury secondary to brain trauma due to assault. He produced the autopsy report as exhibit 2. On cross examination, he stated that it is possible for such injuries to be suffered in a road traffic accident. 7 No. 80056 Sgt James Makobi (PW5) testified that he is attached at the Safaricom and based at Kisumu region. That he has the call records for two mobile phone numbers and one IMEI. That the numbers are 0720 144940 from 1/9/23 to 9/9/23, which was registered in the name of Jared Odhiambo of ID No. 24007885. That the second number is 0798 396 637 which covers the period 1/10/23 - 23/10/23 and registered in the name of Michael Titua of ID No. 37662099. That the call data records were processed pursuant to DCI Siaya County letters dated 13/10/23 and 23/10/23. That there were also call data for IMEI number 354 738 111 323 620 which ran from 8/10/23 - 25/10/23 and that the number used is 0798 396 637 registered in name of Michael Titua. That the call data records contain several information including the name of the booster (BTS) which was providing network to the gadget IMEI number, time of the communication, whether outgoing/incoming calls, sms/voice calls. That he has an electronic evidence certificate under the Evidence Act Section 106B dated 18/12/23 and which confirms that the data is a correct computer record held by Safaricom and that the documents are true copies of the electronic data (soft copies). He produced the three requesting letters, call data for the two numbers, data record for IMEI 354 738 111 323 620 and electronic certificate as exhibits 3(A,B,C), 4(A,B,C) and 5 respectively. On cross examination, he stated that he has not availed any proof of employment with Safaricom and that he received the request letters from the DCI Siaya without a court order. 8 Judith Anyango Dudi (PW6) was the wife of the deceased herein. That on 4/9/23, her husband opened the shop and carried on business up to 6.00 pm when he left to join his friends who are fans of Ohangla music. That he later came back home and stayed for a while before going back promising to come back after seeing off his friends. That the deceased failed to return home that night. That the following day, she learnt that her husband had been killed and that she visited the scene and saw the body, which had several injuries. 9 No. 99804 PC Jacob Suyianka (PW7) was the investigating officer at DCI Ugenya. That on 5/9/23 he was alerted of a murder incident within Ukwala area and that he accompanied other officers to the scene at Nzoia River bridge where they found the body of the deceased. That they took the body to Sega hospital mortuary. That he established that the deceased had been in company of his brother Fabian Ongoro when they were attacked and that the deceased died while his brother survived. That they managed to get the survivor, John Fabian Ongoro who sustained several panga cuts and who gave them a brief about the incident. That they learnt that the victims had been attacked at Nzoia bridge and that the attackers had been ferried on a motorcycle. That they commenced investigations and obtained the IMEI number of the deceased’s mobile phone number 0720 144940 and the IMEI was 354 738 111 323 627. They looked for the handset and established that the same was being used with number 0798 3966 37 in the name of Michael Omondi Titua (PW2) of ID No. 37662099. That they later arrested the said Michael Omondi Titua who was later charged at Ukwala Law Courts over robbery with violence and that he later made a confession statement dated 14/2/24 wherein he narrated how the deceased was murdered and went ahead to claim that he had been hired by one Kennedy Awambo to take him with another person for a certain mission and that it was he (Michael Titua) who rode the bike. That he later charged the accused persons herein. He produced The deceased’s mobile phone handset make Tecno (black in color) as exhibited one and the inventory dated 24/10/23 as exhibit two. That he organized for the autopsy which took place on 14/9/23 and conducted by Dr. Tony Kinja. That investigations established that the 2nd accused had planned for the murder together with the 1st accused. That Michael Omondi Titua (PW2) made a confession implicating both accused herein in the murder. On cross examination, he stated inter alia, that the investigations placed The 2nd accused at the scene of crime; that the 2nd accused was not placed at Nzoia bridge; that the evidence of PW2 placed the 1st accused at the scene; that PW2 had been hired to ferry the passengers to Nzoia River; that PW2 was found in possession of the deceased’s mobile phone; that PW2 did not lodge a report to the police; that they used the deceased’s mobile phone numbers to trace the whereabouts of the handset; that PW2 was charged with robbery with violence as he was found in possession of a stolen mobile phone belonging to the deceased; that PW2 made the confession in the presence of his lawyers at the office of the DCI; that the confession by PW2 led to the identity of the murderers; that he did not recover the weapons; that he established that the 2nd accused was part of the assailants; that no identification parade was conducted; that nothing was recovered from the house of 1st accused; that both accused are implicated courtesy of the confession by Michael Omondi Titua (PW2) and nothing else. 10 At the close of the Prosecutor's case, the court established that a prima facie case had been made against both accused herein to require them to be put on their defence. The accused persons opted to tender sworn testimonies and called four witnesses. 11 Chrispin Kennedy Awambo (DW1) stated that the allegations are false. That he does not know the 2nd accused. He then stated that police officers from Ukwala came to his house without a warrant and ordered him to accompany them; that they took his wife’s mobile phone as he did not have any himself. That he was not involved in the alleged sale of a mobile phone handset. That the allegations are made up against him since he did not venture out of his house. That PW2 before being charged did not implicate him and only did so after being charged. On cross examination, he stated inter alia; that he was at home on 4/9/23. That he does not know Michael Omondi Titua (PW2). That he does not know one John Fabian Ongoro (Pw1). 12 Vincent Ochieng Ongoro (DW2) testified that he is a businessman operating a resort based in Umina village. That the charges are false. That none of the witnesses saw him at the scene. That nothing was recovered from his place. That the deceased was his younger brother whom he had mentored in business and allowed him to fabricate his M-pesa kiosks within his plot. That the Call Data records and numbers do not belong to him. That the DCI seized his mobile phone handset but has not been restored to him to date. That his phone handset was not produced herein as an exhibit. That nothing was recovered from his house. That the boda boda operator hails from his village and well known to him. That he did not get out of his house that day and that he is not aware of any metal bars as he has none. That he has no grudge with his siblings, save for the extended family members. That some of the family members claim that he had squandered the family wealth since he made his uncle and his grandfather to be poor. That he is not related to the 1st accused. That PW2 was not charged yet he had snatched the deceased's mobile phone and then flashed the details as per his confession. That the police are targeting him. That the investigating officer left out three crucial witnesses namely Jared, Wareta and Kowala. On cross examination, he stated inter alia; that he constructed Siriwo Complex; that the deceased took one shop and ran a business with his wife; that he did not feel bad about the deceased's girlfriend due to her drinking habits; that his relationship with the deceased was good until his death; that he does not know Michael Titua (pw2) or Mose. 13 Mildred Akinyi (DW3) testified that the 2nd accused herein is her uncle. That she does not know the 1st accused. That it is not true that the 2nd accused is involved in the murder of the deceased. That she was at the home of the 2nd accused on the material date from 5:00pm until late. On cross examination, she stated inter alia; that she knows the 2nd accused herein and that she was with him on 4/9/23; that the 2nd accused does not tell her of his everyday plans. 14 Dorcas Achieng Ongoro (DW4) testified that the 2nd accused is her eldest child. That she does not know the 1st accused herein. That the deceased was her lastborn child. That her husband died in 1980. That the 2nd accused and another son have been taking charge and taking the deceased to school and later enabling him to venture into business. That she is not aware of any dispute between the 2nd accused and the deceased. That her children have succeeded in life as compared to those of her brothers-in-law. That the incident of 5/9/23 is vivid in her memory as she received a call from a neighbor who claimed that robbers had ambushed the deceased at a certain bridge. That she believes that robbers were responsible for the death of the deceased and not the 2nd accused. On cross examination, she stated inter alia; that she was seeing the 1st accused for the first time; that the deceased ran three kiosks; that the deceased died on the date he was to open his new premises; that the deceased was involved in an accident; that the deceased was attacked by robbers; that her children did not disagree over business rivalries; that it is her in laws who are instigating the allegations due to jealousy; that she knows her son [2nd accused] quite well; that she does not know the movements of the 2nd accused on the material date. 15 Jared Ochieng Odhiambo (DW5) testified that he is a boda boda operator from Siranga village. That the 2nd accused is a relative from the clan. That the deceased was a brother to the 2nd accused. That the deceased had visited his home over a funeral but later left before he arrived home. That the deceased later came back and enjoyed music up to 11:30pm when he took his motorcycle and left with another man. That the following morning, while escorting his child to school, he found a large crowd of people at River Nzoia bridge and learnt from the 2nd accused that the deceased had died. That he saw the body of the deceased which was collected by the police. On cross examination, he stated inter alia; that he had no problem with the deceased; that he had given the deceased conditions not to play music; that security issues forced them not to allow ‘’disco matanga’’ to take place; that it is not true that he had issues with the deceased; that he was annoyed by the conduct of the deceased in bringing music to the funeral; that he does not know where the deceased went after leaving his place; that he was not with the 2nd accused on that date. 16 James Orucha Mumbo (DW6) testified that on 04/09/23 he was at his home when he decided to visit his cousin (2nd accused) whom he found at his business premises and that they discussed social issues over drinks. That the 2nd accused’s wife served them food and that nobody else joined their table. That he left at 11:00 PM. That he was with him throughout the time; that the 2nd accused did not leave his table at his business premises save only to his home. That the 2nd accused did not have any weapon. That he learnt of the death of the deceased the following morning. That he rushed to the scene and identified the body and he alerted the 2nd accused to also rush there. That during the burial of the deceased, some people tried to snatch the body. That there is enmity in the family especially those who are against them regarding progress. That the hostile family members are out to see that the 2nd accused is jailed and to have his brother who is a senior police officer removed from his job. That the charges are trumped up due to envy by family members. On cross examination, he stated inter alia; that the 2nd accused is a first cousin; that he had never seen the 1st accused before; that he visited the 2nd accused's business premises at 6:00 pm; that the 2nd accused spoke to his workers at the verandah; that he did not tell if the 2nd accused used the rear door; that he does not know the 2nd accused's workers; that the 1st accused is not one of the 2nd accused's workers; that he does not know what the 2nd accused did after he had left; That it was a splinter group of the family which tried to snatch the burial of the deceased. 17 After the close of the defence case, learned counsels relied on their earlier submissions and also further written submissions if need be. 18 I have considered the evidence adduced by both prosecution and defence as well as submissions presented. The issue for determination is whether the prosecution has proved its case against the accused persons herein beyond reasonable doubt. 19. It is noted that the two accused persons have been charged under Section 203 as read with Section 204 of the Penal Code, which provide as follows: ***Section 203*** ***Any person who of malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.*** ***Section 204 –*** ***Any person convicted of murder shall be sentenced to death.*** 20. The burden of proof in all criminal cases is always upon the prosecution to discharge and that the standard is one of beyond any reasonable doubt. See Woolmington vs DPP [1935] AC 462 which laid down the guiding principles regarding the issue of burden of proof which is placed on the shoulders of the prosecution to discharge and that the standard is one of beyond any reasonable doubt. The court stated in the Woolmington case as follows: "Throughout the web of the English criminal law, one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner's guilt, subject to the qualification involving the defence of insanity and to any statutory exception. If at the end and on the evidence of the case, there is a reasonable doubt created by the evidence given either by the prosecution, or the prisoner fails to rebut the defence was committed by him, the prosecution has not made out a case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained." 21 In order to sustain a charge of murder, the prosecution is under obligation to prove certain essential ingredients inter alia; that there was death of the deceased; that the death was caused by an unlawful act or omission; that there was malice aforethought; that the accused is/are the perpetrator/s of the crime. 22. As regards the aspect of death, the autopsy was conducted by Dr Tony Kinja and his report was produced by Dr Oluoch Otawa (PW4) and which revealed multiple bruises on the upper and lower limbs, as well as multiple fractures on the skull. The opinion formed was that the cause of death was severe traumatic brain injury secondary to brain trauma due to assault. The autopsy report was produced as exhibit 2. I find the ingredient on the issue of death of the deceased was proved by the prosecution beyond any reasonable doubt. 23 As regards the unlawfulness of the death, it is trite law that all homicides are unlawful unless circumstances exist to render it excusable or justified as was established in the case of R vs Guzambizi S/o Wesonga 2 [1948]15 EACA 65. I find no such circumstance has been demonstrated in this case. The evidence tendered revealed that the deceased herein had been a vibrant man who was aged 41 years and in good health and looked to more years in his life. The injuries sustained and confirmed by the pathologist left no doubt that the assailant/s desired that the said injuries would lead to his death. The evidence tendered was that the deceased sustained multiple bruises on upper and lower limbs as well as multiple fractures on the skull and therefore the conclusion one makes is that the assailant/s desired the same to lead to his demise. Hence, I find that this ingredient was proved beyond any reasonable doubt by the prosecution. 24. On whether there was malice aforethought, section 206 of the Penal Code provides the appropriate explanation of what constitutes the same as the intention or knowledge of causing death or grievous harm and can be inferred from circumstances inter alia; an intention to cause death of any person; an intention to cause grievous bodily harm which leads to the death of such person; reckless disregard of life where a perpetrator is aware of the possibility that their actions could lead to death of such a person; intentional commission of a criminal act where death is a natural consequence of the act; evidence of prior planning or premeditation. Under Section 203 of the Penal Code, murder is described as the unlawful killing of a person with malice aforethought and that the perpetrator had the intention, knowledge or recklessness which indicates his awareness that his/her actions are likely to result in death or serious bodily harm. It is apparent from the evidence that the deceased was lured from a certain home where there was a funeral vigil and then waylaid as he approached River Nzoia Bridge where he was viciously attacked and bludgeoned to death while his pillion passenger (PW1) survived with several panga cuts to his body. In the case of **R Vs Tubere s/o Ochen [1945] 2 EACA 63** the court gave some guidelines on how malicious intent can be inferred as follows: ***"The weapon used, whether it was a lethal weapon or not; The part of the body that was targeted, i.e. whether it was a vulnerable part or not; The manner in which the weapon was used, i.e. whether repeatedly or not, or number of injuries inflicted; and; The conduct of the accused before, during and after the incident, i.e. whether there was impunity."*** The chronology of events as narrated by PW1 and PW2 left no doubt that the murder had been carefully planned and executed to leave no room that the assailants really wanted the deceased to die since the several injuries inflicted on the body left him with no chance of survival. The assault weapons were both blunt and sharp. It is therefore clear that the injuries sustained and the use of such weapons left no doubt that the assailants desired the death of the deceased to occur. I find that this ingredient was proved beyond reasonable doubt by the prosecution. 25 On whether the accused persons herein were the assailants, it is noted that the incident took place between 8:00pm and 11:00pm. The key witnesses to the prosecution’s case in this matter were PW1 and PW2. As the incident occurred at night, the key issue for determination is whether the identity of the assailants by the key witnesses was free from the possibility of error. The court is conscious of the danger of convicting an accused on the evidence of a single witness, which requires corroboration. In the case of ***R v Turnbull & Others [1976] 3 ALL ER 549, Lord Widgery CJ*** held as follows: "First, whether the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of one identification or other. In addition, he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the Judge need not use any particular form of words. Secondly, the Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? Was the observation impeded in any way, as for example by passing traffic or a crowd of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reasons for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the alleged accused given to the police by the witness when first seen by them and his actual appearance. In any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy, they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases, if the accused asks to be given particulars of such description, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger in our judgement when the quality is poor, as for example when the identification is made after a long period of observation, or in unsatisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it, provided always however that an adequate warning has been given about the special need for caution. In evaluating identification evidence, particularly when it emanates from a single witness, the court must exercise great caution.’’ In the case of Wamunga v R [1989] KLR 424 the court held that where the only evidence against a defendant is evidence of identification, the court must examine such evidence carefully and be satisfied that the circumstances of identification were favourable and free from the possibility of error. The court went on to state as follows: ‘***’It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.*** In the case of ***Maitanyi Vs. Republic [1986] KLR 198*** the court held as follows ***“ 1. Although this court has held that a fact may be proved by the testimony of a single witness, this does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is known that the conditions favouring a correct identification were difficult.*** ***2. When testing the evidence of a single witness, a careful inquiry ought to be made into the nature of the light available and the conditions and whether the witness was able to make a true impression and description.*** ***3.The trial court must warn itself of the danger of relying on the evidence of a single identifying witness. It is not enough for the court to warn itself after deciding. It must do so when the evidence is being considered and before the decision is made.”*** 26. The evidence of the two key witnesses was that of recognition. It was the evidence of PW1 that he accompanied the deceased to a certain home. There was a funeral vigil and that as they left the venue at around 10.30 PM they were waylaid at Nzoia River Bridge by assailants who had been trailing them from behind and who assaulted them. He stated that he was cut with a panga by one of the assailants since the gang concentrated on the deceased. That he heard the deceased imploring his assailants to spare him and that he was ready to surrender his business at Siriwo. He also added that the deceased and 2nd accused are brothers who had been having differences which had not been resolved by the time of the incident. 27. The other key witness was Michael Omondi Titua (PW2) who stated that he was called by the 1st accused, who wanted to use his motorcycle to run an errand but that he had declined it as it was at night and risky and thus opted to ride it himself. That he went and joined the 1st accused at the business premises of the 2nd accused where the 2nd accused emerged and handed a metal rod to the 1st accused and his companion and that the 2nd accused instructed him (PW2) to take the 1st accused and his companion to a certain area. That they went to a certain home before proceeding to follow a certain rider and his companion. That at Nzoia, Nzoia Bridge, the 1st accused attacked and seized the deceased and dragged him towards the river while his companion assaulted the deceased’s pillion passenger who turned out to be PW1. That after the 1st accused and his companion had accomplished their mission, he took them back to Siriwo Complex where the 2nd accused paid him his charges of 1000/-. He further stated that the 1st accused in the following day sold to him a mobile phone handset make Tecno at 1000/- which he took it for repairs and later inserted his SIM card and used it to make calls. That the 1st and 2nd accused later visited him at the bus stage and warned him not to divulge anything concerning what had happened. That he was later arrested and charged at Ukwala Law Courts vide Cr. No. 150 of 2023 which was later withdrawn after he had made a confession and was treated as a prosecution witness. The chronology of events as narrated by PW2 left no doubt that indeed both accused were involved in the murder of the deceased. It transpired from the evidence that the murder had been planned earlier and that the 2nd accused was the architect thereof and was the one who gave the instructions to have the deceased eliminated. 28. It was also the evidence of Harrington Odhiambo Ooko (PW3) that he was working at Siriwo Complex when the 2nd accused joined one motorcyclist and that they talked before another group arrived and that he witnessed the 2nd accused issuing directions and to one of them to go to his house and remove a metal rod plus a panga and that the 2nd accused directed them to go. That the group later came back and spoke with the 2nd accused and that the group did not come back with the weapons. That the following he learnt that the deceased had been killed. 29. From the evidence of PW1, PW2 and PW3, including that of the Safaricom employee (PW5), iam satisfied that the accused persons were clearly placed at the centre of this crime. 30. It is noted that both accused have tendered alibi defences in which they deny involvement in the crime and being at the alleged scene of crime. In the case of Kiarie vs Republic & 1984 KLR 739 it was held that an alibi raises a specific defence that an accused person who puts up an alibi in an answer to a charge does not in law thereby assume any burden of proving that answer and that the burden of proving the falsity, if at all, of an accused's defence of alibi lies on the prosecution and that it is sufficient if an alibi introduces into the minds of the court a doubt that is not unreasonable. In the case of ***Victor Mwendwa Mulinge V.R [2014*] eKLR**, the court while referring to the decision in Karanja v R [1983] KLR 501 held: ***"In a proper case, a trial court may, in testing a defence of an alibi and in weighing it with all the other evidence to see if the accused's guilt is established beyond all reasonable doubt, consider the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigating and thereby prevent any suggestion that the defence was an afterthought."*** Both accused herein denied knowing each other. The 1st accused claimed that he was at his house when he was picked up by the police. The 2nd accused on his part maintained that he was at his business premises with his family members and denied involvement. He stated that the issue of relates to family jealousy. The rest of the defence witnesses (DW3, DW4, DW5 and DW6) all vouched for the innocence of the 2nd accused and maintained thatthe family has two rival camps and that the family of the 2nd accused appeared to have prospered economically to the disadvantage of the rest who are now out to see their downfall. They also maintain that it was not possible for the 2nd accused to organize for the killing of the deceased who was his own younger blood brother. It is on this strength that the 2nd accused seeks this court to believe his alibi defence. In the English decision of ***Republic vs Johnson 46 CR APP R 55 [1961] 3 ALL ER 969, the*** defence of alibi was described as follows: ***"Though an alibi is commonly called a defence, it is to be distinguished from a statutory defence such as insanity or diminished responsibility and is analogous to a defence such as self defence or provocation. A prisoner who has put forward an alibi as an answer to a charge does not assume any burden of proving that answer and it is a misdirection to refer to any burden as resting on the prisoner in such a case."*** Also in the case of ***Uganda vs Sebyala & Others[1969] EA 204***, the learned Judge quoted a statement by his Lordship the Chief Justice of Tanzania in Criminal Appeal No. 12 D 68 of 1969 where he observed as follows***:*** ***‘’The accused does not have to establish his alibi is reasonably true. All he has to do is to create doubt as to the strength of the case for the prosecution. When the prosecution's case is thin, an alibi which is not particularly strong may very well raise doubts."*** It is noted that the 2nd accused has maintained that he did not venture outside his business premises on the material date and that the family members who came forward vouched for his innocence. However, the evidence of PW1, PW2 and PW3 who knew him quite well confirm that he actually spoke with them and gave them instructions to carry out the mission of eliminating the deceased. Indeed, the 2nd accused later paid PW2 a sum of 1000/= for his service in offering his motor cycle for the mission. Again, the 1st accused was also the one who had procured the service of PW2 through the instigation of the 2nd accused. It transpired that none of the witnesses PW1, PW2 and PW3 had any differences with the accused persons herein so as to suggest that they had framed them up. I find the evidence of the alleged differences between the family members of the 2nd accused did not feature at all. In any case, I find it was highly unlikely that the rival group could have organized the death of the deceased so as to settle any perceived scores with the 2nd accused. I find that the alibi defences of the 1st and 2nd accused have not cast doubt upon the evidence of the prosecution which is quite overwhelming against both accused herein. Again, the 2nd accused's claim that he was at the his business premise, did not mean that he was not moving about to speak to customers or any visitors or his workers as he gets back to his table and continue being with his relatives. I find his business premises was the operational base for the planning and execution of the mission. The 1st accused and his companion were answerable to him and took his instructions to the letter. Iam satisfied that the ingredient was proved by the prosecution beyond any reasonable doubt. 31.In view of the foregoing observations, it is my finding that the prosecution has proved its case against both accused herein Chrispin Kennedy Awambo and Vincent Ochieng Ongoro beyond any reasonable doubt. I find them guilty for the offence of murder and are convicted accordingly. **Dated and delivered at Siaya this 26TH day of June 2026** **D.KEMEI** **JUDGE** **In the presence of :** **Chrispin Kennedy Awambo......................................1st Accused** **Vincent Ochieng Ongoro………............................2nd Accused** **Okuta/Alego.................................................... for both accused** **M/s Nakholi for Soita........................................for Prosecution** **M/s Maurine.....................................................Court Assistant**