[2018] KEHC 4905 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CRIMINAL CASE (MURDER) NO. 42 OF 2015

REPUBLIC.............................................................PROSECUTOR

VERSUS

JOHN KENNEDY OTIENO ONYANGO............1ST ACCUSED

DICKSON ODOR ODUOGO alias Asse..............2ND ACCUSED

VINCENT ODHIAMBO UHURU........................3RD ACCUSED

JUDGMENT

1. Accused persons herein were jointly charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge are that:

On 30. 8.15 at Nyalenda Estate, Kisumu EastSub-County within Kisumu County, jointly with others not before the court murdered MICHAEL OTIENO OMUNE

PROSECUTION CASE

2. The prosecution called 910 witnesses. PW1 Johnson Oduor Odhiambo stated that he lived with deceased at Nyalenda Estate. He recalled that on 30. 8.15 about 8. 00 pm, he was sitted outside their house at Nyalenda Estate with the deceased. That some 5 men stopped next to a nearby tree and deceased upon seeing them went to his house and returned armed with a panga. That deceased threatened to teach the 5 men a lesson but the witness managed to restrain him and lock him in their house. That one of the 5 men who was armed with a panga went to the door and demanded that deceased gets out of the house. That the witness sensing danger ran away to their neighbor’s house to call for help. That in the neighbor’s house, he heard their door being kicked open and deceased screaming. That he also heard a commotion like people were fighting and when it stopped, their neighbor accompanied him back to their house and they found deceased washing his face in a basin. That suddenly, deceased fell down groaning in pain and stopped breathing. That police went to the scene 15 minutes later and removed deceased’s body to the mortuary. He said there was lighting at the scene and that he had identified accused 1 as the one that knocked on their door armed with a panga. In cross-examination, he conceded that he was arrested as a suspect and was released upon recording his statement. He conceded that that he did not tell police that he had identified any of the attackers.

3. PW2 Fredrick Ochieng stated that accused 1 was his brother and accused 2 and 3 were his neighbors at Nyalenda Estate. He recalled that on 30. 8.15 at about 8. 00 pm, accused persons went to his house with one Fredrick Okoth and they reported that accused 1 had quarreled with another man regarding a girlfriend. That the 4 men went away allegedly to look for the man that had quarreled accused 1. That accused 1 returned 15 minutes later with cuts on his body. That he escorted accused 1 to Jaramogi Oginga Odinga Teaching and Referral Hospital from where he was arrested. That accused 2 and 3 were later arrested the same night and also recovered a panga from outside his house.

4. PW3 Lydia Loice Okelloon 3. 9.15 identified the body of the deceased to the doctor who conducted a postmortem at Jaramogi Oginga Odinga Teaching and Referral Hospital Mortuary.

5. PW4 PC Anthony Egessa,a scenes of crime officer visited scene of crime on 30. 8.15 about 8. 00 pm, he went to the scene of murder at Nyalenda Estate where and took 24 photographs. That he later went to Jaramogi Oginga Odinga Teaching and Referral Hospital where accused 1 was being treated for injuries and took 3 photographs. That he returned to Nyalenda Estate and took 5 more photos. Photograph 31 shows a panga, 32 and 33 are showing accused 2 wearing a blood-stained t-shirt and vest. He produced the 33 photographs as PEXH. 1 to and 33 and certificate as PEXH. 34. He stated he was present when accused persons were arrested.

6. PW5 CPL Lawson Shuma, received the murder report on 30. 8.15 at about 8. 00 pm, visited the scene and removed the body of the deceased to the morgue after the scene was photographed. He stated that he recovered a knife and sheath at the scene of crime which he produced as PEXH. 34 (a) and (b). That PW1 named the suspects that had attacked the deceased and accused 1 was arrested receiving treatment at Jaramogi Oginga Odinga Teaching and Referral Hospital while accused 2 and 3 were arrested from their houses and from accused 2 was recovered a blood stained blue shirt PEXH. 35 and vest PEXH. 36. That PW3 also handed to him a panga PEXH. 37 allegedly left in his house by accused 1. He stated that he sent the panga, knife, brown sheath, white vest, blue shirt and blood sample of deceased to government analyst for examination.

7. PW6 IP John Muigaiconducted an identification parade on 1. 9.15 in which accused 1 was identified by PW1. He produced the identification parade form as PEXH. 38.

8. PW8 Dr. Eddy Odhiamboproduced deceased’s postmortem filed by his colleague Dr. Aksam Sava who had gone for further studies and with whom he stated he had worked for 3 years and knew his signature and handwriting. The postmortem dated 3. 9.15 PEXH. 40 shows that the body of deceased had several injuries and that he died of severe hemorrhage due to stab wound to the neck.

9. PW9 Richard Kimutaistated that he examined a panga, knife, brown sheath, white vest, blue shirt and blood sample of deceased. He stated that he found deceased’s DNA profile on the knife and sheath but not on the other exhibits.

DEFENCE CASE

10. After the close of the prosecution case, I placed the 3 accused persons on their defences.

11. 1st accused stated that on the material date at about 7. 00 pm, he went to collect his phone from the shop of one Mary. That Mary told her she had taken it to another house to charge. That they went to the said house where they found about 6 people that he did not know quarrelling. That one of them threatened to spill blood and he rushed into the house from where he picked a panga with which he chased people, caught up with him and cut him severally. That his brother, PW2, took him to Jaramogi Oginga Odinga Teaching and Referral Hospital from where he was arrested while receiving treatment.

12. 2nd accused stated that on the material date at about 8. 00 pm, he went to the shop and saw a man he did not know who was armed with a panga attacking some 5 men. That he ran away but from a distance saw the man cut several people who included accused 1. That he later went back home and didn’t know how deceased died.

13. 3rd accused stated that on the material date at about 8. 00 pm, he went to the shop and saw a man armed with a panga attacking 5 men. That he ran away but from a distance saw the man cut several people who included accused 1. That he later went back home and didn’t know how deceased died. He found accused 1 and deceased quarrelling. That deceased who was armed with a panga chased accused 1 and cut him several times. That he ran away and later returned to the scene and found deceased dead.

ANALYSIS AND FINDINGS

14. I have considered the evidence on record. For Prosecution to secure a conviction on the charge of murder, it has to prove three ingredients against an Accused person. In Anthony Ndegwa Ngari vs Republic [2014] eKLR, the elements of the offence of murder were listed as follows: -

(a) the death of the deceased occurred;

(b) that the accused committed the unlawful act which caused the death of the deceased; and

(c) that the accused had malice aforethought.

(a) The death of the deceased

15. The death of the deceased has been confirmed by the PW1, 2, 3, 4, 5 and accused 3 who saw deceased’s body and by the postmortem formPEXH. 40produced by PW8 that shows that deceased died of severe hemorrhage due to stab wound to the neck.

(b) Proof thataccused committed the unlawful act which caused the death of the deceased

16. Accused 2 similarly told court that on the material date, he was at Nyalenda about 8. 00 pm and he saw a man he did not know who was armed with a panga attacking some 5 men. The said man has been identified as the deceased by PW1, accused 1 and accused 3 who told court that deceased was on the material date and time armed with a panga with which he threatened to spill blood. Their evidence that deceased threatened attack people with the panga is therefore corroborated.

17. From the evidence on record, it is evident that accused persons and others were at the scene of crime. PW1 told court that he ran away from the scene and did not know what transpired because he returned to find deceased injured. Accused 1 and 3 told court that deceased indeed carried out his threats of spilling blood and cut accused 1 with the panga. That accused 1 was injured has been confirmed by his brother PW2 and by PW4 PC Anthony Egessa and PW5 CPL Lawson Shuma who arrested accused 1 while he was receiving treatment at Jaramogi Oginga Odinga Teaching and Referral Hospital None of the prosecution witnesses however saw any of the accused persons attack the deceased and commit the unlawful act that caused the death of the deceased.

18. None of the prosecution witnesses saw accused persons or anyone else cause the fatal injuries to the deceased. The knife and sheath that was found to have deceased’s blood stains were recovered from the scene and no evidence was led to show nexus between them and the accused persons. A blood stained blue shirt and vest allegedly recovered from accused 2 similarly did not have any nexus with deceased’s blood.

19. Consequently; I find that the Prosecution failed to prove beyond reasonable doubt that the Accused persons did the unlawful act which caused the death of the deceased which constitutes the ‘actus reus’of the offence.

(c) Proof that the said unlawful act or omission was committed with malice afterthought

20. Having found no evidence to connect accused persons to the unlawful act that resulted in deceased’s death, it would be futile to delve into the issue of malice aforethought.

Disposition

21. Consequently, I have come to the conclusion that the state has failed to prove its case beyond reasonable doubt. Accused persons are hence found NOT GUILTY of the offence of murder and are accordingly acquitted. Accused persons shall be set at liberty unless otherwise lawfully held. It is so ordered.

DATED, DELIVERED AND SIGNED THIS 31stDAY OF July, 2018

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Felix

Accused 1 - Present

Accused 2 - Present

Accused 3 - Present

For Accused - Mr. Nyaanga h/b for Mr. Ariho

For the State - Mr. Muia