https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12645

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA HIGH COURT CASE NUMBER: HCCRC/E035/2021 REPUBLIC VS HAMISI KARISA CHENGO, BRIAN ODUOR ODOWA AND ALEX OKELLO ONYANGO JUDGMENT Introduction 1. The three accused persons, namely Hamisi Karisa Chengo, Brian Oduor Odowa, and Alex Okello Onyango, were jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. 2. The particulars of the charge were that on 15th August 2021, at Magongo Estate within Changamwe Sub-County, Mombasa County, they jointly murdered John Kitemu. 3. During the pendency of the proceedings, and after part of the prosecution case had been heard, the 3rd accused person, Alex Okello Onyango, entered into a plea bargaining agreement with the Director of Public Prosecutions pursuant to the provisions of the Plea Bargaining Rules and the Criminal Procedure Code. Under that agreement, he pleaded guilty to the lesser offence of manslaughter, admitted the amended statement of facts and was dealt with separately by the Court. 4. Consequently, this judgment concerns only the criminal responsibility of The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 1/19 the 1st and 2nd accused persons, namely Hamisi Karisa Chengo and Brian Oduor Odowa, who maintained pleas of not guilty throughout the trial. 5. It is important to state at the outset that although the 3rd accused person was subsequently convicted upon his own plea of guilty to the lesser offence of manslaughter, his plea bargain neither determines nor prejudices the criminal liability of the 1st and 2nd accused persons. Their culpability must be determined solely on the basis of the evidence properly adduced during the trial and the applicable law. Equally, the Court is entitled to consider all the admissible evidence recorded before the plea agreement, together with the evidence subsequently received, in determining whether the prosecution has discharged its burden against the remaining accused persons. 6. The prosecution, led by learned prosecution counsel Mr Ngiri, called eight witnesses in support of its case. The witnesses were cross-examined by learned defence counsel Mr Masolia for the 1st accused, Ms Munyari for the 2nd accused and Ms Rajab for the 3rd accused before the plea agreement was entered. At the close of the prosecution case, this Court found that the prosecution had established a prima facie case requiring the 1st and 2nd accused persons to be placed on their defence pursuant to Section 306(2) of the Criminal Procedure Code. They each elected to give sworn testimony and called no additional witnesses. The Prosecution Case Evidence of PW1 7. PW1, Francis Gichohi, was the father of the deceased. He testified that on 15th August 2021 at about 12.30 p.m., while at home, he received information from PW2, Gabriel Omondi, that his son had been attacked and was being killed. He immediately rushed to the scene but found that the deceased had already been placed in a motor vehicle and was being rushed to Coast General Hospital. 8. PW1 testified that by the time he reached the vehicle, the deceased was unable to speak because of the severity of his injuries. He accompanied him to the hospital where the deceased succumbed to his injuries while receiving emergency treatment. 9. He further testified that he attended the post-mortem examination during which he observed severe injuries on the deceased's body, including injuries to the head, abdomen and thigh. He told the Court that members of the public The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 2/19 informed him that the deceased had been attacked using a mattock by young men from the locality whom he had known from childhood. He identified the The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 3/19 accused persons as persons well known to him within the neighbourhood. During cross-examination, PW1 readily conceded that he had not 10. personally witnessed the assault. He explained that his knowledge of the circumstances surrounding the attack was derived from what he was told by PW2 and other persons present at the scene. He also confirmed that the deceased served as a member of the local community policing group and frequently worked alongside village elders and police officers in addressing criminal activities within the area. Evidence of PW2 11. PW2, Gabriel Omondi, also known by the nickname "Oti," testified that he was a member of the community policing team operating within Magongo Estate together with the deceased. 12. He recalled that on the material day, one Collins reported that his mobile phone had been stolen by the 3rd accused, Alex Okello Onyango, and his associates. According to PW2, similar complaints had previously been made against the same group of young men. 13. PW2 testified that after receiving the complaint, the deceased armed himself with a mattock from the community policing office before they commenced a search for the suspects. As they walked through the estate, they encountered the three accused persons. Immediately the accused noticed the community policing members approaching, they fled. During the chase, the 3rd accused dropped his cap. PW2 returned to the community policing office with the recovered cap 14. while the deceased and other members continued searching for the suspects. Shortly thereafter, he received a telephone call informing him that one of his colleagues had been attacked. 15. PW2 immediately mobilised other members of the community policing team and rushed to the scene. On arrival, he observed a chaotic situation. Stones were being thrown and members of the public had gathered around a kiosk. He saw the 3rd accused emerge from the vicinity of the kiosk and returned the cap which had earlier fallen during the chase. When he informed the 3rd accused that he had been looking for him, a confrontation ensued. PW2 testified that the three accused persons jointly turned against him and began pelting him with stones, forcing him to flee for his own safety. 16. Shortly thereafter, PW2 learnt that the deceased had been struck with a mattock. He returned to the scene where he recovered the mattock, which bore The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 4/19 visible blood stains. By then, the deceased had already been taken to hospital. PW2 notified the police, who responded to the scene and commenced investigations. Evidence of PW3 Dr Gabriel Mwanyoha, produced the post-mortem report 17. PW3, prepared following the examination of the deceased's body on 18th August 2021 at Coast General Hospital Mortuary. The doctor testified that the deceased sustained extensive traumatic 18. injuries to the head. He observed compound skull fractures, significant intracranial haemorrhage and associated brain injury. In his expert opinion, death resulted haemorrhagic from traumatic head injury accompanied by shock occasioned by forceful impact with a sharp object. 19. He further testified that the injuries were wholly inconsistent with an accidental fall and were more consistent with the use of a sharp-edged weapon such as the recovered mattock. The post-mortem report was produced without objection as Prosecution Exhibit 2. Evidence of PW4 PW4, Hamisi Juma, testified that he had served as a member of the 20. community policing team since 2012 and had worked closely with the deceased. 21. He stated that on the material day he visited their office where he found PW2 and other colleagues. They were informed that the deceased had located several young men suspected of having stolen a mobile phone from a woman at the market. 22. PW4 proceeded to the location where he found the deceased together with four young men, namely the three accused persons and another individual known as Ashu, who was not before the Court. According to PW4, the deceased informed him that the group had stolen a mobile phone from a member of the public. The 3rd accused admitted that the phone had indeed been taken but stated that it had already been returned. 23. PW4 testified that he advised the deceased that, since the phone had been recovered, the matter should be resolved peacefully. However, instead of calming the situation, the young men became aggressive and violent. They began throwing stones at the members of the community policing team. 24. The members of the community policing team scattered in different directions in an attempt to escape the attack. Unfortunately, the deceased became separated from the others. PW4 testified that he observed the accused The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 5/19 persons pursue the deceased while continuing to throw stones at him. He saw the deceased run into a nearby shed in an effort to seek refuge. According to PW4, the three accused persons immediately followed him into the shed while still pursuing the assault. He further testified that the deceased had been carrying the mattock and that during the confrontation he saw the 3rd accused gain possession of it. Shortly afterwards, police officers arrived at the scene and the deceased 25. was removed and taken to hospital. Here is Part II of the professionally rewritten judgment. Evidence of PW5 26. PW5, Joseph Tito Mamachi, testified that he was a member of the community policing team and a colleague of the deceased. On the material day, he was attending a church service at Redeemed Gospel Church in Magongo when he heard loud screams and commotion emanating from outside the church. He observed members of the public running in different directions and stones being thrown. 27. Upon moving towards the source of the disturbance, PW5 saw a group of people attacking PW2, Gabriel Omondi. By the time he reached the scene, PW2 had managed to escape. Moments later, PW5 heard members of the public shouting that the deceased, John Kitemu, was being killed. 28. PW5 immediately rushed towards the area from which the alarm was coming. He encountered the deceased's young son crying and screaming that his father had been killed. The witness recognised the child as the deceased's son. When he reached the scene, he found the deceased lying on the ground with a mattock lodged in his head. Members of the public assisted in removing the weapon before rushing the deceased to Coast General Hospital. During cross-examination, PW5 candidly admitted that he did not witness the actual infliction of the fatal injury and therefore could not identify the person who wielded the mattock. Evidence of PW6 PW6, Zakaria Wahome, testified that the deceased was his brother. He 29. stated that on the material day he was attending church when he received a telephone call from his niece informing him that the deceased had been fatally injured. He immediately informed other family members, who travelled to Mombasa. PW6 identified the deceased's body at Coast General Hospital Mortuary before the post-mortem examination and was present throughout that The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 6/19 examination. 30. His evidence was confined to the formal identification of the deceased's body and did not relate to the circumstances under which the deceased sustained the fatal injuries. Evidence of PW7 31. PW7, Joseph Kitemu, was the deceased's son. At the time of the incident he was thirteen (13) years old. The Court conducted the requisite voire dire examination before receiving his evidence and was satisfied that he understood the duty to tell the truth. 32. PW7 testified that on the material day he was with his father when a young woman approached and reported that her mobile phone had been stolen by several young men. He knew the complainant because they attended the same school. Following the report, the deceased contacted his colleagues in the community policing team, who soon arrived. Together they commenced a search for the suspects. 33. PW7 testified that shortly thereafter the deceased and his colleagues encountered the three accused persons. They attempted to stop them, but instead of cooperating, the accused persons began running away. What initially appeared to be a pursuit by the community policing members quickly turned into an attack by the accused persons, who began pelting the deceased and his colleagues with stones. 34. PW7 stated that the deceased and his colleagues retreated in different directions in an effort to escape the attack. The deceased ran into a narrow corridor leading to a shed. PW7 followed at a distance and testified that there was sufficient visibility for him to clearly observe what transpired inside the shed. 35. According to PW7, the three accused persons followed the deceased into the shed. He testified that the 1st and 2nd accused persons continued assaulting the deceased by throwing stones and restraining him while the 3rd accused person wrested the mattock from the deceased before striking him forcefully on the head. The deceased immediately collapsed. PW7 screamed for help, whereupon the three accused persons fled from the scene. 36. PW7 remained consistent during cross-examination. He maintained that he had a clear and unobstructed view of the assault and had known all three accused persons long before the incident. His identification of the accused persons was therefore based on recognition rather than a fleeting observation The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 7/19 of strangers. Evidence of PW8 37. PW8, Sergeant Thomas Nina, testified that on 15th August 2021 he received a telephone call from PW2 reporting that members of the community policing team had been attacked while pursuing suspects who had allegedly stolen a mobile phone. PW2 further informed him that one member of the team had been struck on the head with a mattock. 38. PW8, accompanied by fellow police officers, immediately proceeded to the scene. Upon arrival, they established that the injured person had already been rushed to Coast General Hospital. During their examination of the scene, they recovered the blood-stained mattock which was subsequently produced before the Court as Prosecution Exhibit 1. Following investigations, PW8 arrested the 1st accused in Malindi. The 39. 2nd accused was subsequently arrested in Mikindani, while the 3rd accused was re-arrested in Malindi, where he had been detained in connection with another criminal matter. PW8 testified that after completion of investigations, the three accused persons were jointly charged with the present offence. 40. At the close of the prosecution case, the Court carefully evaluated the entire evidence on record and found that a prima facie case had been established against the 1st and 2nd accused persons sufficient to require them to answer the charge. They were accordingly placed on their defence pursuant to Section 306(2) of the Criminal Procedure Code. The Defence Case Defence of the 1st Accused 41. The 1st accused, Hamisi Karisa Chengo, elected to give sworn testimony. He admitted being present during the events of 15th August 2021 but denied participating in the unlawful killing of the deceased. 42. He testified that he initially encountered members of the community policing team who informed him that a young woman's mobile phone had been stolen by persons identified as Ashu, Alex and Nyaga Pop. According to him, he knew those individuals personally and contacted them by telephone. They subsequently surrendered the stolen phone, which was returned to the community policing members, after which everyone dispersed peacefully. The 1st accused further testified that later that afternoon he observed 43. members of the community policing team armed with pangas, rungus and a mattock searching for the same group of young men while shouting "mwizi, The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 8/19 mwizi". Members of the public questioned why they continued pursuing the young men despite the recovery of the stolen phone. This developed into a confrontation during which both sides threw stones at each other. 44. According to the 1st accused, the deceased ran towards a nearby shed while carrying the mattock. The 3rd accused followed him into the shed. The witness also entered the shed and observed the 3rd accused wrest the mattock from the deceased before striking him once on the head. Upon witnessing the blow, the 1st accused fled from the scene because of the confusion and fear generated by the incident. 45. During cross-examination, the 1st accused maintained that the incident occurred in broad daylight. He confirmed that PW2, PW4 and the deceased were all present during the confrontation. He further admitted that he personally witnessed the 3rd accused strike the deceased with the mattock, although he denied sharing any intention to assault or kill the deceased. Defence of the 2nd Accused 46. The 2nd accused, Brian Oduor Odowa, also gave sworn evidence. He stated that on the material day he was in the company of the 3rd accused when they learnt that a young woman's mobile phone had been stolen. According to him, another person known as Ashu surrendered the phone, which was thereafter handed over to members of the community policing team. He maintained that he believed the matter had ended at that point. 47. The 2nd accused testified that later he noticed a large crowd gathering and moved closer out of curiosity. He observed the deceased together with the 3rd accused but claimed that he did not witness the assault. He stated that he immediately left the area pushing his handcart and denied taking part in any attack upon the deceased. 48. He further testified that he was arrested several months later, in April 2022, and subsequently charged with the present offence. He denied any involvement in the killing of the deceased and urged the Court to acquit him. 49. Upon the close of the defence case, learned counsel for the respective parties made oral submissions, each urging the Court to adopt their respective positions. I have carefully considered the entire evidence on record, the submissions of counsel and the applicable law. 50. The issues arising for determination now fall for consideration. Analysis and Determination Issues for Determination The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 9/19 51. Having carefully considered the evidence adduced by both the prosecution and the defence, the submissions of counsel and the applicable law, the issues that arise for determination are: a. Whether the death of the deceased and the cause thereof were proved; b. Whether the prosecution proved beyond reasonable doubt that the 1st and 2nd accused persons, acting with the 3rd accused, unlawfully caused the death of the deceased; c. Whether the prosecution established that the 1st and 2nd accused persons acted with common intention within the meaning of Section 21 of the Penal Code; and d. Whether malice aforethought was proved as required under Sections 203 and 206 of the Penal Code. The Law 52. The 1st and 2nd accused persons are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. Section 203 provides: "Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder." 53. The burden of proving every ingredient of the offence rests throughout upon the prosecution and never shifts to an accused person except where the law expressly provides otherwise. The constitutional foundation of this principle is Article 50(2)(a) of the Constitution, which guarantees every accused person the right to be presumed innocent until the contrary is proved. 54. The celebrated decision in Woolmington v Director of Public Prosecutions [1935] AC 462 established the "golden thread" running through criminal law, namely that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. The Court of Appeal reaffirmed this principle in Joseph Kimani Njau v 55. Republic [2014] eKLR, where it held that both the actus reus and the mens rea of the offence charged must be proved beyond reasonable doubt before a conviction can lawfully be entered. 56. Similarly, in Anthony Ndegwa Ngari v Republic [2014] eKLR, the Court of Appeal stated that the prosecution must establish three essential ingredients of the offence of murder: i. the fact of death and the cause of death; ii. that the death resulted from the unlawful act or omission of the accused; and The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 10/19 iii. that the unlawful act was committed with malice aforethought. 57. I shall therefore consider the evidence under each of those elements. (a) Whether the Death of the Deceased and the Cause Thereof Were Proved 58. There is absolutely no dispute regarding the death of John Kitemu. 59. PW1, the deceased's father, testified that he found the deceased seriously injured and accompanied him to Coast General Hospital where he succumbed while undergoing emergency treatment. PW6 formally identified the deceased's body before the post-mortem 60. examination. 61. PW3, Dr Gabriel Mwanyoha, produced the post-mortem report which established that the deceased sustained devastating head injuries comprising compound depressed skull fractures, intracranial haemorrhage and severe brain trauma. In his professional opinion, the cause of death was traumatic head injury associated with haemorrhagic shock caused by a sharp object. 62. The doctor's opinion remained unshaken during cross-examination. He categorically ruled out the possibility that the injuries could have resulted from an accidental fall and maintained that they were entirely consistent with forceful impact from a sharp-edged weapon. 63. The medical evidence was corroborated by PW5, who found the deceased lying unconscious with the mattock embedded in his head, and by PW7, who witnessed the fatal assault. I therefore find that the prosecution has proved beyond reasonable doubt 64. both the fact of the deceased's death and the medical cause thereof. (b) Whether the Death Resulted from an Unlawful Act 65. The next issue is whether the death resulted from an unlawful act. 66. The law presumes every homicide to be unlawful unless it is shown to have been justified, excused or authorised by law. In Guzambizi Wesonga v Republic (1948) 15 EACA 63, the Court held that every homicide is presumed unlawful unless circumstances exist making it excusable or legally justifiable. A similar principle was expressed in Sharm Pal Singh v Republic [1962] EA 13. 67. The evidence before this Court demonstrates that the deceased sustained catastrophic head injuries after being struck with a mattock. No evidence whatsoever was placed before the Court suggesting that the attack was accidental, justified or committed in lawful self-defence. The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 11/19 68. Indeed, both the prosecution and defence evidence agree on one important fact: the fatal injury was inflicted after a violent confrontation involving the deceased and the three accused persons. 69. The Court therefore has no hesitation in finding that the deceased's death resulted from an unlawful act. (c) Whether the 1st and 2nd Accused Persons Were Criminally Responsible 70. This constitutes the central issue in this case. 71. It is common ground that the 3rd accused person eventually entered into a plea bargaining agreement and pleaded guilty to the lesser offence of manslaughter. The evidence before this Court equally demonstrates that it was the 3rd accused who ultimately struck the deceased with the mattock. 72. The question for determination, however, is not whether the 3rd accused delivered the fatal blow. That issue is no longer in controversy. Rather, the question is whether the 1st and 2nd accused persons are criminally liable notwithstanding the fact that neither physically wielded the mattock. 73. Learned counsel for the defence urged the Court to find that liability rests exclusively with the 3rd accused because he alone inflicted the fatal injury. 74. With respect, I am unable to agree. 75. Criminal liability for murder is not confined to the person who inflicts the fatal blow. The law recognises that where several persons act in concert in pursuit of a common unlawful purpose, each participant bears criminal responsibility for acts done in furtherance of that common design. 76. Before considering the doctrine of common intention, it is necessary to evaluate whether the prosecution proved that the 1st and 2nd accused persons actively participated in the assault. 77. PW2 testified that after the accused persons were confronted regarding the stolen mobile phone, they jointly turned against members of the community policing team and began pelting them with stones. His evidence was that all three accused persons participated in the attack. 78. PW4 corroborated that testimony. He stated that after he attempted to defuse the confrontation by pointing out that the stolen phone had already been recovered, the accused persons became violent, jointly attacked the community policing members with stones and pursued the deceased after he became separated from the others. 79. PW4 further testified that the deceased sought refuge inside a shed but The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 12/19 that the three accused persons immediately followed him there. The most direct evidence came from PW7, the deceased's son, whose 80. testimony the Court has carefully evaluated. 81. PW7 knew all three accused persons before the incident. His evidence was therefore one of recognition rather than visual identification of strangers. 82. The incident occurred in broad daylight. PW7 remained consistent that he observed the three accused persons 83. chase the deceased into the shed. He testified that while the 1st and 2nd accused continued participating in the assault, the 3rd accused seized the mattock and struck the deceased on the head. 84. His evidence was clear, coherent and remained substantially unshaken during cross-examination. Significantly, 85. prosecution on the sequence of events. the defence case did not materially contradict the 86. The 1st accused admitted being present throughout the confrontation. 87. More importantly, he confirmed under oath that he personally witnessed the 3rd accused wrest the mattock from the deceased before striking him on the head. 88. Although the 1st accused denied participating in the assault, his evidence substantially corroborated the prosecution's account regarding the circumstances under which the fatal injury was inflicted. 89. The 2nd accused equally admitted being present during the confrontation before claiming that he left the scene. 90. Having considered the entirety of the evidence, I am satisfied that the prosecution has established beyond reasonable doubt that the 1st and 2nd accused persons were not innocent bystanders. They actively participated in the violent confrontation which culminated in the death of the deceased. 91. The remaining question is whether that participation attracts criminal liability under the doctrine of common intention. (d) Whether the 1st and 2nd Accused Persons Acted with a Common Intention 92. Having found that the 1st and 2nd accused persons actively participated in the events that culminated in the deceased's death, the next question is whether they are criminally liable under the doctrine of common intention notwithstanding that it was the 3rd accused who inflicted the fatal blow. The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 13/19 93. The doctrine of common intention is codified under Section 21 of the Penal Code, which provides: "When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and, in the prosecution of such purpose, an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence." 94. The rationale behind the doctrine is that criminal responsibility does not attach only to the person who performs the final unlawful act. Where several persons deliberately associate themselves with a common unlawful enterprise, each participant becomes answerable for acts committed by any one of them in furtherance of that common design, provided such acts are a probable consequence of the joint enterprise. The principles governing common intention have been settled in our 95. jurisprudence. In Njoroge v Republic [1983] KLR 197, the Court of Appeal held that common intention may develop in the course of the commission of an offence and need not be the product of a long-standing plan. What is required is evidence demonstrating that the accused persons acted together in pursuit of a common unlawful purpose. 96. Likewise, in Dickson Mwangi Munene & Another v Republic [2014] eKLR, the Court of Appeal observed that common intention is seldom proved by direct evidence. More often, it is inferred from the conduct of the accused persons before, during and after the commission of the offence, their presence at the scene, the nature of their participation and the circumstances surrounding the unlawful act. 97. Applying those principles to the present case, I am satisfied that the prosecution established a common intention on the part of the three accused persons. The evidence demonstrates that the confrontation did not consist of 98. separate or unrelated acts by different individuals. Rather, it was one continuous transaction beginning when the accused persons violently resisted the intervention of the community policing members after being confronted over the stolen mobile phone. 99. PW2 testified that all the accused persons jointly turned against the members of the community policing team and began pelting them with stones. PW4 corroborated that account and stated that the attack intensified, forcing the community policing members to flee in different directions. The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 14/19 100. The deceased became separated from his colleagues and attempted to escape by running into a nearby shed. The evidence of PW4 and PW7 was consistent that the three accused persons pursued him together into that shed. There is no evidence that either the 1st or the 2nd accused withdrew from the attack or attempted to restrain the 3rd accused. 101. On the contrary, PW7 testified that while the 3rd accused ultimately seized the mattock and struck the deceased on the head, the 1st and 2nd accused remained actively involved in the assault. Their conduct throughout the incident demonstrated unity of purpose and a shared resolve to overpower the deceased. 102. Significantly, the defence evidence lends considerable support to the prosecution case. The 1st accused admitted that he followed the deceased into the shed and witnessed the 3rd accused wrest the mattock from the deceased before striking him on the head. Although he attempted to distance himself from the fatal assault, his own testimony places him at the scene as an active participant in the sequence of events leading to the fatal injury. 103. The 2nd accused likewise admitted being present during the confrontation. His assertion that he simply walked away is inconsistent with the cogent and mutually corroborative testimony of PW2, PW4 and PW7, all of whom placed him among the group that pursued the deceased. I reject his denial as an afterthought intended to escape criminal liability. 104. I have also considered the fact that the 3rd accused subsequently entered into a plea bargaining agreement and pleaded guilty to the lesser offence of manslaughter. That plea is personal to him and neither constitutes evidence against nor determines the guilt of the 1st and 2nd accused persons. Their culpability must be determined independently on the evidence adduced before this Court. Nevertheless, the fact that the 3rd accused admitted his participation is entirely consistent with the overwhelming evidence establishing that all three accused persons acted together during the fatal assault. 105. The defence urged the Court to find that because the 3rd accused alone wielded the mattock, criminal responsibility should rest exclusively upon him. That submission overlooks the legal effect of Section 21 of the Penal Code. 106. The law does not require every participant in a common unlawful enterprise to inflict the fatal injury personally. Once a common intention is established, each participant bears equal criminal responsibility for offences committed in furtherance of that common purpose where those offences are a probable consequence of the enterprise. The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 15/19 107. In the present case, the evidence demonstrates that the three accused persons jointly confronted, chased and violently attacked the deceased. Stones were continuously used as offensive weapons throughout the pursuit. The deceased was cornered inside a confined space where he was deprived of any realistic avenue of escape. It was during this continuing joint assault that the 3rd accused seized the mattock and struck the fatal blow. 108. In my considered view, the use of the mattock was not an independent or unforeseen act which broke the chain of common intention. It represented the culmination of the violent joint enterprise which all three accused persons had willingly undertaken. Having collectively pursued and cornered the deceased while assaulting him, it was plainly foreseeable that one of the assailants might escalate the violence by using the weapon then available. I therefore find that the prosecution has proved beyond reasonable doubt 109. that the 1st and 2nd accused persons shared a common intention with the 3rd accused to prosecute an unlawful assault upon the deceased and that the fatal injury inflicted by the 3rd accused was a probable consequence of that common unlawful enterprise. Accordingly, by virtue of Section 21 of the Penal Code, the 1st and 2nd accused persons bear equal criminal responsibility for the death of the deceased. (e) Whether Malice Aforethought Was Established The final issue for determination is whether the prosecution proved 110. malice aforethought as required under Section 206 of the Penal Code. Section 206 of the Penal Code provides that malice aforethought is 111. established where there is, among other things: (a) an intention to cause death or grievous harm; (b) knowledge that the act or omission will probably cause death or grievous harm, whether or not death is desired; or (c) an intention to commit a felony. 112. The principles governing proof of malice aforethought have long been settled. In Rex v Tubere s/o Ochen (1945) 12 EACA 63, the former Court of in determining whether malice Appeal for Eastern Africa held that, aforethought exists, the Court should consider the nature of the weapon used, the manner in which it was used, the part of the body targeted and the conduct of the accused before, during and after the attack. 113. In the present case, the evidence demonstrates that the deceased was not struck accidentally or during a sudden isolated encounter. He was relentlessly The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 16/19 pursued by the three accused persons after they turned violently upon the community policing members. Even after the deceased attempted to retreat, the accused persons continued chasing him until he was cornered inside the shed. 114. The deceased was therefore denied any opportunity to escape the attack. Instead of disengaging, the assailants intensified the assault. The 3rd accused seized the mattock and struck the deceased with considerable force on the head, one of the most delicate and vulnerable parts of the human body. 115. The medical evidence graphically illustrates the ferocity of that attack. The post-mortem examination disclosed extensive cranial injuries, including compound depressed skull fractures, intracranial haemorrhage, exposed brain tissue and severe brain oedema. Such injuries could only have resulted from the deliberate application of substantial force. The Court cannot ignore the fact that the attack was preceded by a 116. coordinated pursuit in which the 1st and 2nd accused actively participated. Their conduct throughout demonstrated persistence rather than restraint. None attempted to prevent the fatal assault or withdraw from the common enterprise. Instead, they continued participating until the deceased sustained the fatal injuries. 117. In these circumstances, I am satisfied that the use of the mattock upon the deceased's head was a natural and foreseeable escalation of the violent joint assault. Any reasonable person participating in such an attack would know that striking another on the head with a mattock was likely to cause death or, at the very least, grievous bodily harm. 118. I therefore find that the prosecution has proved beyond reasonable doubt that the unlawful acts committed by the 1st and 2nd accused persons, acting jointly with the 3rd accused, were accompanied by malice aforethought within the meaning of Section 206(a) and (b) of the Penal Code. 119. Having found that the prosecution has established the fact and cause of death, the unlawful act, the participation of the 1st and 2nd accused persons through common intention, and malice aforethought, I am satisfied that all the essential ingredients of the offence of murder have been proved beyond reasonable doubt. Conclusion and Disposition Having carefully considered the entire evidence on record, the 120. submissions of counsel, the applicable statutory provisions and the relevant judicial authorities, I am satisfied that the prosecution has discharged the The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 17/19 burden placed upon it by law. 121. The prosecution proved beyond reasonable doubt that John Kitemu died as a result of severe traumatic head injuries inflicted during the violent assault of 15th August 2021. The medical evidence conclusively established that the fatal injuries were caused by the use of a sharp object, namely the mattock recovered from the scene. 122. The evidence further establishes that the attack upon the deceased was not an isolated act by the 3rd accused person. Rather, it was the culmination of a continuous and coordinated assault perpetrated by the three accused persons. The evidence of PW2, PW4 and PW7 demonstrates that the three accused persons jointly turned against members of the community policing group, armed themselves with stones, pursued the deceased after he became separated from his colleagues and cornered him inside a shed where the fatal assault occurred. 123. Although the fatal blow was inflicted by the 3rd accused person using the mattock, the evidence irresistibly demonstrates that the 1st and 2nd accused persons remained active participants throughout the attack. They neither withdrew from the unlawful enterprise nor attempted to prevent the assault. Instead, they continued acting in concert with the 3rd accused person until the deceased sustained the fatal injuries. I have borne in mind that the 3rd accused person subsequently entered 124. into a plea bargaining agreement and pleaded guilty to the lesser offence of manslaughter. That plea neither determines nor prejudices the criminal liability of the 1st and 2nd accused persons, whose culpability must be determined independently on the evidence adduced before this Court. Nevertheless, the evidence recorded during the trial leaves no reasonable doubt that the three accused persons acted together throughout the commission of the offence. 125. I am satisfied that the prosecution proved the existence of a common intention within the meaning of Section 21 of the Penal Code. The assault upon the deceased was a joint enterprise in which each participant played a complementary role. The fatal use of the mattock by the 3rd accused person was not an independent or unforeseeable act but a probable consequence of the violent attack jointly undertaken by all three accused persons. 126. The evidence further establishes malice aforethought. The deceased was relentlessly pursued, cornered and violently assaulted. The force applied to the deceased's head using a mattock caused devastating cranial injuries from which death inevitably resulted. Any reasonable person participating in such a The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 18/19 sustained and violent attack would have known that death or grievous bodily harm was the probable consequence of those acts. 127. The defences advanced by the 1st and 2nd accused persons do not raise any reasonable doubt. On the contrary, significant portions of the 1st accused's testimony corroborated the prosecution case, particularly his admission that he witnessed the 3rd accused seize the mattock from the deceased and strike him on the head. The 2nd accused's denial of participation is inconsistent with the cogent, consistent and mutually corroborative testimony of the prosecution witnesses whom I found to be truthful and credible. 128. This Court is alive to the principle that suspicion, however strong, cannot found a conviction. Equally, a conviction cannot be avoided merely because one participant in a joint criminal enterprise administered the fatal injury. Where, as here, the evidence establishes beyond reasonable doubt that several persons acted with a common unlawful intention and that the fatal act was committed in furtherance of that common purpose, the law attributes equal criminal responsibility to each participant. I therefore find that the prosecution has proved beyond reasonable doubt 129. all the essential ingredients of the offence of murder against the 1st accused, Hamisi Karisa Chengo, and the 2nd accused, Brian Oduor Odowa. 130. Accordingly, pursuant to Section 322 of the Criminal Procedure Code, I find: (i) Hamisi Karisa Chengo (1st Accused) ;GUILTY of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, and I hereby convict him accordingly. (ii) Brian Oduor Odowa (2nd Accused) ; GUILTY of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, and I hereby convict him accordingly. 131. A pre-sentence report and victim impact statement be prepared by the probation depertment , filed and served. The mitigation shall be on 5th October 2026 132. Orders accordingly. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 25TH DAY OF JUNE 2026. WENDY KAGENDO JUDGE The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 19/19 In the Presence of: The 1st Accused Person The 2nd Accused Person .....Ms Musyoki.......................................Advocate for the 1st Accused ...Ms Musyoki hb for Ms Munyari.................................................... Advocate for the 2nd Accused Mr Sirima for the State Ms Bebora – Court Assistant . SIGNED BY/FOR: □ TH E J U D I C I A R Y O F K E N Y A ★ HON. LADY JUSTICE WENDY MICHENI Mombasa High Court High Court Criminal Date: 2026-07-31 15:58:59 The Judiciary of Kenya Doc IDENTITY: 16714052857123618776325598441 Tracking Number:OONYUH2026 20/19