[2017] KEHC 4145 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT SIAYA

HCCRC NO. 29 OF 2015

(MURDER)

(CORAM: J.A. MAKAU – J.)

REPUBLIC……………….......................………PROSECUTION

VERSUS

KENNEDY OTIENO MIEN..……….......................1ST ACCUSED

ISAAC OTIENO OCHERE (NINJA)..……..…….2ND ACCUSED

JULIUS ODUOR OGOLA…..…..…..........…..…3RD ACCUSED

ISAIAH OGOL ODERA………..……..........….…4TH ACCUSED

JUDGMENT

1. KENNEDY OTIENO MIEN, the 1st Accused; ISAAC OTIENO OCHERE (NINJA), the 2nd Accused; JULIUS ODUOR OGOLA, the 3rd Accusedand ISAIAH OGOL ODERA, the 4th Accused are charged with an offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code (Chapter 63), Laws of Kenya. The particulars of the charge are that on the 7th day of February 2014 at Memba Sub-Location, Rarieda Sub-County within Siaya County, murdered one PHILIP ADOYO OKEYO.

2. The Prosecution in support of the charge called 9 witnesses, while the accused testified on oath and called two witness.

3. PW1, Erick Ochieng Okello, testified that on 7. 2.2014 at 14:30hours, he was relaxing at his home, when he received a telephone call from a friend, one Stephen, a mason, telling him his brother Philip Adoyo Okeyo, the deceased, was being interrogated by a group of Boda Boda riders at the gate of Jaramogi Odinga Oginga University (JOOU) at Bondo. PW1 then rushed to the gate of (JOOU) where he found a big crowd of people at the gate, consisting of over 100 people. PW1 found his brother had already been beaten, was seating down without a shirt and bleeding from several parts of the body as he was being interrogated by several members of Boda Boda group. PW1 called OCS from Bondo Police Station, and at that moment, the deceased attempted to run into JOOU compound. PW1 saw two people catching up with the deceased and started beating him; using stones and kicking the deceased. One of them was armed with a stone and the other with a rungu. One of them was Omondi alias Purber and Julius Oduor, both of whom were armed with stones. PW1 saw Ninja, also called Ochieng Ochere jump on the deceased’s chest as Sola was beating the deceased with a stick. That the deceased fell down and became unconscious. That Kennedy Otieno who had a rope tied the deceased’s hands at his back as the crowd started shouting ‘Kamito Kamito’, a certain place at Rarieda. That the Boda Boda riders rushed to their motorbikes ready to leave as Ochieng Ochere and Omondi Purber placed the deceased on a motorbike ridden by George Omondi (Agang) Reg. No. KMCX 260R. That George Omondi (Agang) refused to carry the deceased because he was still alive and instead took a very big stone and hit him on the head and as a result of which he could not hold up his head. The Deceased was then placed between George Omondi and Kennedy Otieno who was holding the deceased and they drove off to Kamito. That PW1 informed OCS Bondo who had responded, by calling the OCS Aram Police Station, explaining to him that some Boda Boda people had left with a boy who they claimed they were going to kill at Kamito. PW1 then proceeded to make his report at Bondo Police Station. That before he could make his report, he received a call from a Police Officer that his brother had been killed. PW1 then went to Bondo Hospital with his mother and identified the deceased’s body. PW1 testified at the scene of incident at JOOU he saw Purber, who was personally known to him, Julius Oduor, who was the one with a stone and who he had known as a Village mate, he identified him as the 3rd Accused, Ochieng Ochere alias Ninja, who he had known as a fellow Boda Boda and identified him as the 2nd Accused; one Sola; not before Court; Kennedy Otieno, who was beating the deceased and held the deceased as they left for Kamito. That PW1 had known him for 5 years as a tenant of PW1’s father, the 1st accused, who PW1 identified. PW1 stated he has had no grudge with any of the accused persons. PW1 stated later in the evening, George Omondi (Agang) met him and told him he had been paid by one lady by the name Ochere, sister to Ochieng Ochere to pick the deceased from Alego to take him to Bondo as it was alleged the deceased had organized the stealing of a motorbike of madam Ochere.

4. During cross-examination, PW1 stated that in his statement to the Police he did not mention the hitting of the deceased person with a stone. PW1 admitted that in his statement, he did not record that Ninja went to collect his brother at the JOOU gate.

5. PW2, John Okello Okoth, testified that on 7. 2.2014, he was at Kakamega when at around 2. 30 pm, he received a telephone call from Eric Ochieng Okello (PW1), telling him that Boda Boda boys were beating Philip Adoyo, the deceased on allegation he had stolen a motorbike. PW2 then asked PW1 to call Police. PW1 later came to Bondo, met PW2, who explained to him what had happened and that Adoyo had been killed. PW2 informed his wife Phoebe Atieno and send three people to the mortuary to confirm that Adoyo was dead. PW2 then went to Bondo Police Station from where he was informed of the position. He went to Aram Police Station on 8. 2.2014 and recorded his statement. That on 8. 2 2014, between 5. 00-6. 00pm, PW2 while at his home with PW6, he saw Isaiya Odero come at him home, with a motorbike Reg. No. KMCX 260R, red in colour, boxer and told him to take the motorbike as it was the one used to take his son, the deceased to Kamito, in Rarieda, where PW2’s son was killed. PW2 told Isaya Odero, to take the motorbike to police which he did.

6. On-cross examination PW2, stated he went to the mortuary with his wife and another. PW2 admitted in his statement to the police he did not record the motorcycle registration number.

7. PW3, No. 217379 APC Tom Ombore, testified that on 7. 2.2014 at around 14:00 hours, he was at his office at Rarieda Sub-County as AP Commander of Station when he heard noises coming from Bondo-Kalandini Road, and on checking he saw a group of Boda Boda riders with their motorbikes with lights on, and on further enquiry, he found they were carrying someone who was suspected to be a motorbike thief and who they claimed was leading them to where the co-suspect was at Mabinju Primary School. PW3, organised with his officers to follow them and get control of the situation, but on spotting PW3 and his officers, the Boda Boda riders sped to Asembo Bay, and then Lwak Area. PW3 informed OCS Aram Police Station. PW3 later got information that the Boda Boda riders had tied the suspect and had beaten him seriously, that on arrival at the scene, the Boda Boda riders on spotting the Police, they sped off leaving members of the Public at the scene. PW3 and his team found the suspect tied and seriously injured, and unconscious. They picked the suspect to Bondo District Hospital where he passed on. PW3 did not manage to arrest any of the Boda Boda riders. The matter was then taken over by OCS Aram Police Station.

8. On cross-examination, PW3 stated the Boda Boda riders were between 30-50 in number and it was a big crowd.

9. PW4, No. 2007115686, APC Hesborn Onyango Mukolwe, testified that on 7. 2.2014 at 2. 30pm, he was at Kalandini Divisional AP Camp, when he saw a convoy of Boda Boda riders of between 20 - 40 motorbikes riding towards Mabinju Village. PW4 came out and saw the passenger whose hands had been tied being carried by one of the motorcycles and on further enquiry, he was told the suspect was suspected to have stolen a motorbike and that they were going to find out where the suspect was residing. PW4’s in-charge told them to be on standby. That the Boda Boda riders took Mabinju route, and PW4 and his mates followed them to save the suspect, but the Boda Boda rider sped towards Asembo Bay and the in-charge of the group gave a call that the Boda Boda riders were at Siger area hence they informed the OCS Aram Police Station, who came with a vehicle and they proceeded to Lwak Centre, whereby they saw a big crowd, which was beating someone lying on the ground. On arrival, they dispersed the crowd. They took the suspect who was seriously injured into their vehicle but on their way to Bondo Sub-County Hospital, he passed on; hence they took him to Bondo Sub-County Hospital Mortuary. PW4 and his team did not arrest anyone on the material date.

10. On cross-examination, PW4 stated at the scene, they dispersed the people who were numbering around 200, and who were all surrounding the suspect. PW4 stated he did not see anyone assaulting the deceased.

11. PW5, Dr. Evan Ogot, a Medical Officer, from Bondo Sub-County Hospital, produced a postmortem report authorized by Dr. Malingi, who was a person well known to him and with whom he had worked with for 1½ years and was familiar with his handwriting and signature. The postmortem examination was done on 10. 2.2014, on a body of Philip Odoyo Okeyo at Bondo District Hospital Mortuary at 1. 35 pm. On external appearance, the doctor noted the following: -

a) Respiratory system: there was sub-cutaneous haemotoma surrounding the rib-cage.

b) Digestive system: there was haemoperhoeum with a splenic laceration.

c) Head: There was massive subgaleal haematoma and an intracranial haemotoma under the mouth.

As a result of examination of the decease’s body, the Doctor formed an opinion that the cause of death was due to most likely splenic laceration and intracranial bleeding. According to the report, the most likely cause of injuries was a sharp and blunt trauma. PW5 produced the postmortem report as exhibit P1.

12. On cross-examination, PW5 stated, he could not confirm the possible weapon used but it could have been a stone or a knock by a motorcycle. He stated the report is on Philip Ondoyo Akeyo and Police File is on Philip Odonyo Okello.

13. PW6, Collins Onyango Okello, testified that on 7. 2. 2015, while at his shop at Bondo town at Bondo Main Stage, he saw Boda Boda cyclists shouting and going towards Bondo-Usenge road. That after 10 minutes, his brother Eric Ochieng Okello (PW1), called him telling him his brother Philip Odoyo Okello, was being beaten by Boda Boda riders at JOOU gate. He then took his motorbike and proceeded to the scene and found a big crowd of people. PW6 moved to the front and identified people who were beating the deceased. He recognized 7 of them who he knew them by their names, namely:- Oduor, Kennedy, Ninja, Omondi, Abaki, Paul Opondo, Agong and Isaack. That the deceased was lying on the ground as he was being beaten. He was about 4 metres from where the deceased was lying. Ninja had a rungu which he used to beat the deceased with; Oduor and Kennedy were stoning the deceased. PW6 stated he heard the deceased asking the attackers why they were killing him and Ninja asked the deceased where he hid the motorcycle, he stole, to which he told them he could produce the motorbike at Kalandini. That Kennedy, Ninja and Omondi Amballa carried him to a motor rider by the name “Agang” as Kennedy got behind the deceased in the same motorbike and they proceeded to Kalandini. PW6 followed them upto Bondo from where he proceeded to report at Police Station at Bondo and was informed the Police had the information. PW6 then proceeded to the shop. That after 40–50 minutes his brother Eric (PW1) called him and told him he had information that his brother had been killed. PW1, Erick and PW2, and father to the deceased proceeded to mortuary and identified the deceased’s body. PW6 stated he had known the people he mentioned for a reasonable time. That Oduor was his schoolmate. He stated the 1st Accused is Kennedy; the 2nd Accused is Ninja, the 3rd Accused Oduor and 4th Accused Isaiya. He stated he had not seen the other three namely Paul Opondo Agangand Omondi Abaki in the Court.

14. On cross-examination, PW6 stated his statement was taken at his shop at Siaya Stage. He stated the date is indicated as 7. 1.2014 which he cancelled but did not countersign at the time.

15. PW7, No. 234754, APC Kennedy Ojoni, testified that on 7th February 2014 at 2. 00pm, a group of 20-40 Boda Boda riders, passed next to Kalandini AP Post going towards Mabinju Primary School with a suspect of motorbike theft. The in-charge instructed them to follow them but on spotting them, they sped up, with the suspect whose hands and legs were tied, towards Kamito, in Asembo Bay. PW7 and his group followed the Boda Boda riders but they disappeared towards Lwak Siger. The OCS Aram Police Station, came with a motor vehicle and they followed the group. That at Lwak, they saw a group of 200 people with someone lying on the ground. They then dispersed the group and took the person but on the way to Bondo Sub-County Hospital, he passed on and they rook the body to Bondo Sub-County Hospital Mortuary.

16. PW8, George Otieno Outa, a Boda Boda rider, testified that on 7. 2.2014 at around 9. 00 am, he was on his way from Siaya to Bondo, when on the way he found Isaiya Abinga at Kaduro who asked him to carry someone from that place to Bondo. That they were found by two other people. Isaiya offered to pay for that person and paid Kshs. 200/=. He told PW8 to carry the people and he would join them later. That he proceeded to JOOU, where Isaiya found them and where there were many Boda Boda riders, whereby one of the Boda Boda riders slapped one of PW8’s passengers and many people came to assault him. Isaiya said that was not the final destination, insisting he should transport them to the final destination. That they proceeded to a place called Kalandini. PW8 took the route to Lwak leading many Boda Boda riders who followed him. That after Lwak Catholic, PW8 was overtaken and blocked by other Boda Bodariders. That one of his passengers fell down and was injured while the other was removed by Boda Boda riders who had blocked him and started beating him, alleging he was a thief, as he had stolen a motorbike. That PW8 then got scared as he was the one who had carried the deceased and left, the scene within a 1 minute. He stated the people who were beating the deceased were known to him. He named one of them as Otires with a Rasta; Isaiya; and Jako-Ochamu. He stated the deceased was beaten at JOOU by one person by the name Otires; Jako-Ochamu and Isaiya. He identified Jako-Ochamu as the 1st accused, Isaiya as the 4th accused, Otires as the 2nd Accused. He stated the motorbike he had on the material day was KMCX 260R, Bajaji BM 150, red in colour. PW8 stated that he recorded statement at Akala Police Station as his motorbike had been stolen by Isaiya and Evans in respect of this case, PW8 recorded his statements on 15. 11. 2016, the day he came to give evidence stating he had not recorded his statements earlier on as he was involved in a road accident and was in hospital.

17. During cross-examination, PW8 stated he is also known as George Otieno Omondi and also as “Agang” which is a Dholuo word being a “crook” and a “liar”. He stated he came to give evidence under arrest and denied that he is a suspect in this case. He stated he did not disappear as he was in the hospital with a fractured leg. He stated he was informed that police were looking for him for 2 years but he did not bother to go to police to find out why he was being sought. That he went to the police a day before the day he came to give evidence whereby he was arrested. He stated he should not be charged with this offence. He stated he knows Eric (PW1) and denied having picked a big stone and hit the deceased on his head with it. PW8 admitted he recorded statement over an incident which took place and in his statement, he admitted he did not mention of any of the accused persons having assaulted the deceased. He admitted he never mentioned anything to do with the deceased a day before he came to give evidence after his arrest and that it took over 2 years for him to mention the alleged incident. PW8 stated he did not see nor know who had taken his motorbike but when he went to the police he told them it was Isaiya.

18. PW9, No. 232333, CI Abdirahim Abdallah, OCS, Aram Police Station, the Investigating Officer, in this case stated that on 7th February 2014 at around 2. 30pm while at Police Station on duty, he received a telephone call from Inspector AP Tom Opile informing him of a group of Boda Boda riders who were shouting with headlights on. PW9 proceeded to visit the scene at Lwak Kalandini Area in company of Police Officers using the D.O’s Land Rover vehicle. He got information that about 40 Boda Boda riders from Bondo Area had taken hostage a suspected motorbike thief from Anduro Area in Siaya and was being taken to show his accomplices at Mabinju Village. PW9 got nine Police Officers from Kalandini. That past Lwak Centre, he found between 150-200 people who were Boda Boda operators; who on seeing PW9 and his group dispersed leaving the members of Public behind. They found the suspected motorbike thief lying on the ground naked save for his underwear. He had injuries all over the body and his hands tied. They picked the victim and rushed him to Bondo Sub-County Hospital but he died on the way to the hospital.

19. On 8. 2.2014, PW9 commenced investigation by recording witnesses statements. That on 8. 2.2014, a motorbike Reg. No. KMCX 260R, Bajaj BM 150, red in colour was taken to Bondo Police Patrol Station by the 4th Accused Isiaya Otieno from George Omondi while in company of Evans Owiti; who had initially taken it to the deceased’s father, one John Okello (PW2) at his home, but he refused to take it as he had not seen the rider riding it. That the motorbike was the one used to transport the deceased from Aduro Village to Bondo. PW9 opened a duplicate inquest file and forwarded the same to Kisumu DPP’s Office recommending an inquest. PW9 later received recommendation from DPP’s office Kisumu to charge the 4 accused and others who are at large with the offence of murder. PW9 received the following names of people to be charged with murder in this case: -

(i) Isaiya Otieno (4th accused)

(ii) Otis Ochere Alias Ninja, 2nd accused.

(iii) David Ochieng (at large)

(iv) George Omondi, the rider (PW8)

(v) Omondi Obaki (at large)

(vi) Kennedy Otieno Mien (1st accused)

(vii) Mrs. Otis Ochere (wife to 2nd accused and at large)

(viii) Joshua Okicha (at large)

(ix) Paul Opondo (at large)

On 13. 9.2014, PW7 went to the homes of the 1st, the 2nd and the 3rd Accused persons and arrested them after PW1 and PW2 identified the accused persons to PW9 and charged them with this offence. That on 24. 4.2015, the 4th Accused was charged with the offence of assault by CPL Berano and was subsequently charged with this offence. PW9 testified that he established the rider of the motorbike was George Omondi (PW8) and was threatened and forced to ride the motorbike from Oduro to the place of the incident and that is why he did not charge him jointly with the others but treated him as a Prosecution witness.

20. During cross-examination, PW9, testified that the 1st, the 2nd and the 3rd Accused were mentioned by Erick Ochieng (PW1) and Collins Onyango (PW6) and rider George Omondi (PW8). He stated the accused were seen at JOOU but the witness did not go to Lwak but the rider stated he saw the 1st, the 2nd and the 3rd accused assault and the deceased. PW9 stated he opened the inquest file inspite of PW1 and PW6 having witnessed the assault. PW9 stated that his opinion was that inquest was the best way forward. PW9 stated he was sure of the cause of death but requested an as the deceased did not die at Bondo near JOOU but at Lwak on the way to the hospital. That at Lwak, there were 150-200 people, most of whom were Boda Boda riders. That the 4th Accused was arrested after 1 year and 2 months as he was at large. PW9 admitted in the statement of George Omondi (PW8) he did not record he was forced to carrying the deceased and that DPP gave the names of people to be charged including George Omondi (PW8). He stated he did not go against the DPP’s instructions as investigation is continuous process. He admitted that George Omondi, testified on 15. 11. 2016 under arrest. PW9 stated he had not arrested George Omondi in connection with this offence and he does not intend to do so, nor charge him. PW9 stated he is not aware of PW1 stating he saw PW8 hitting the deceased with a stone. PW9 stated the deceased died as a result of injury to the head.

21. That when the accused were called upon to defend themselves, each of the Accused person opted to give sworn statement. That the 1st, the 2nd and the 3rd Accused gave evidence on oath and called one witness whereas the 4th Accused gave evidence on oath and called one witness.

22. DW1, Kennedy Otieno Mien, the 1st Accused testified that he is married with 4 children and that he is a mason. He stated that he was arrested on 15. 9.2015 and was not told the reason for his arrest, that when he was taken to Kisumu High Court, he heard the charge being read to him, that he had murdered someone. He told the court that he could not remember where he was on 7. 2.2014. He stated he did not know the person who was said to have been murdered, one Philip Adoyo Okeyo, and that he does not know whether, the said Philip Adoyo was killed on 7. 2.2014.

23. On being cross-examined, he stated he was arrested on 15. 9.2015. He insisted he has been a mason for 9 years and that he did not hear his advocate put a question to the witness to the effect that he was a mason and not a Boda Boda rider. DW1 stated he knew PW1, Erick Ochieng, who used to be a Boda Boda rider. He stated Erick Ochieng (PW1) and him are in good terms.

24. DW2, Isaac Otieno Ochere, a Boda Boda rider, testified that he was shocked to find himself on 15. 9.2014 being accused of murder of Philip Adoyo Okeyo. He stated he could not recall what happened on 7. 2.2014, but he recalls the date of his arrest, thus 15. 9.2014. That he became aware of the death of Philip Adoyo Okeyo, when the charge was read to him at Kisumu High Court, adding that he could not remember where he was on 7. 2.2014.

25. During cross-examination, DW2 stated that on 7. 2.2014, he was looking after their livestock. He further stated on 7. 2.2014, he cannot recall where he was staying, but on further cross-examination, he stated he was staying at a rented house at Maranda and that he was not looking after their livestock at Maranda, where he had stayed for 11 years. He denied knowing Collins Onyango (PW6), but Erick Ochieng Okello (PW1).

26. DW3, Julius Oduor Agolo, testified that he is an horticultural farmer. He denied having murdered Philip Adoyo Okeyo, stating that he was not at the scene of the murder. He stated he was arrested on 15. 9.2014. He stated that he cannot remember the events of 7. 2.2014, adding he did not participate in the murder of Philip Odoyo Okeyo.

27. On being cross-examined, he stated on 7. 2.2014, he was within Bondo at his home. That he was arrested on 15. 9.2014. The accused stated he knows PW1 and PW6 and he was in good terms with PW1. He stated he did not know Philip Odoyo Okeyo. He denied that he is a Boda Boda rider though he has a motorbike which he stated he used for his farming purposes. He states he did not kill the deceased as he was at his home.

28. DW4, Isaiya Ogol Odero, a land broker since 2010, stated the deceased was unknown to him. That on 7. 2.2014 at around 2:30pm, he was at Sirongo Beach, about 10 kilometres from Bondo Town, inspecting a land after a client had called him. That he left Bondo at around 1:00pm and returned at 4:30pm, then went home. He stated he does not know George Otieno Outa, urging he lied when he claimed he saw him at Maranda. He further stated John Okello Okoth (PW2), is unknown to him. He denied meeting him on 8. 2.2014, nor taking a motorbike to him. He stated he came to be arrested over an issue of assault after one Awuoth had assaulted him with a bottle and reported to police, got a P3 form and he was arrested on 14. 4.2015 after he recorded his statement on 27. 4. 2015. He learned later he was alleged to have murdered someone at Aram which he denied.

29. During cross-examination, DW4, testified that on 7. 2.2014, he left his home and returned at 4:30pm. That he had gone to see a client called Richard Ngesa. That he used a motorbike to go to the client’s home. He stated he knows the client and Dennis Ayoo. The accused denied knowing PW6 Collins and PW8 George. He stated PW6 and PW8 lied in their evidence. The Accused stated he did not know why Police took 1 year and 2 months to arrest him.

30. DW5, Caroline Anyango Oduor, a business lady at Bondo, wife to the 3rd Accused for the last 7 years, stated that on 15. 9.2014, the 3rd Accused left with his motorbike for his shamba and returned at 6:00pm and that after taking supper they slept. That at 1:00 am, Police Officers from Bondo Police Station, came and arrested the 3rd Accused. That the following day, she went to Bondo Police Station and was referred to Aram Police Station, where she learned her husband was arrested in connection with a murder case, which had occurred in 2012. She stated she did not know Philip Odoyo, the Deceased.

31. During cross-examination, DW5 stated the murder occurred in 2012 and that she attended the funeral of the deceased in 2012. She stated that if Philip Odoyo is said to have died on 7. 2.2014, that would be a lie. DW5 stated that she did not know where her husband, the 3rd accused was, on 7. 2.2014.

32. DW6, Dennis Oduor Ayoo, a Boda Boda rider, testified that he knows the 4th Accused as his customer. That on 7. 2.2014 at around 12:30pm at Aduro, he saw a Boda Boda person, who he knew, thus Agang, carrying a person who had been tied with a rope seated on a Boda Boda he asked Agang what was wrong and he told DW6, they had arrested a motorbike thief. That there were many people there. DW6 left the scene and left for Bondo; arriving there at 1:00 pm. That at 1:00 pm, he received a telephone call from Isaiya Ogol Odera, the 4th accused asking him to take him to a place called Sirongo. That he proceeded to pick the 4th Accused from his home at Atilili and took him to the Beach, where the 4th Accused met somebody, DW6 carried both of them to a nearby land; where they stayed for about 2½ hours and later returned to Bondo between 4:30pm – 5:00pm with Isaiya and dropped him at his homestead. That DW6 then returned to Bondo town and continued with his Boda Boda business. He stated at Aduro, where he found Agang with a group of people, he did then see the 4th Accused there.

33. On cross-examination of DW6, he testified he had come from Siaya when he arrived at Aduro at 12:30 pm and that he found many people and motorbikes numbering between 10-20. That the only person he saw on the motorbike was Agang, he reiterated he was called by the 4th Accused at 1:00 pm whom he had known as his customer for 4 years as he used to carry him whenever he would call him. That he knew his mobile number. He stated the person they met at Sirongo is unknown to him. He stated he was not at Aduro with Isaiya. He testified that he did not know Erick Okello (PW1) and Collins Okello (PW2). He stated he did not participate in the beating of the deceased.

34. Upon close of the defence case, both the Prosecution and Defence made submissions. Mr. Adiso, Learned Advocate, for the 1st, the 2nd and the 3rd accused submitted that the circumstances surrounding the commissioning of the offence was not clear as per evidence as the deceased was being interrogated at JOOU gate by a group of Boda Boda operators numbering about 100, and at the same time, many people were beating the deceased with sticks, stones and rungus, and after sometime the group of Boda Boda operators headed for Kamito. He urged what took place on 7th February 2014 was mob justice for which no one can be directly pointed at. He urged there was a challenge in identification of the culprits as the crowd was unruly and the Prosecution witnesses could not properly identify the persons who were directly involved in the attack of the Deceased. He submitted PW1 could not identify the attackers as he stood at a distance and his vision was obstructed. He urged further that the Prosecution did not place the 1st, the 2nd and the 3rd Accused persons at the scene of the crime.

35. Mr Odongo, Learned Advocate, for the 4th Accused on his part urged that there is no physical evidence by the Prosecution to link the 4th Accused to the offence. He urged that the evidence of PW6 and PW8 should be treated with alot of caution, urging that PW6 at the scene of crime, he found over 100 people, saw his brother being assaulted while on the ground and that he must have been traumatized. That PW1, stated, PW8 was the person who took a big stone and hit the Deceased on the head. That he was then brought to Court under arrest and that he was not credible witness. On the cause of death, he stated it was due to raptured spleen., yet court was not told who caused it. He also stated there .is an issue of when the deceased died. He urged that PW9 recommended for an inquest yet DPP overruled the Investigating officer and submitted that was incompetent on the part of the DPP. He urged it was not proved there was a pre-planned mob justice. On the defence of alibi by the 4th Accused, he urged it was corroborated and unshaken. He urged the Prosecution failed to adduce sufficient evidence to warrant conviction. He referred to the list of authorities submitted on behalf of the 4th accused.

36. M/S Odumba, Learned State Counsel, urged the Prosecution has proved the charge of murder. That death of the Deceased and its cause, she urged is not in dispute. That the particular person who caused the rapture of the spleen of the deceased, she urged is not material as the deceased was beaten by use of sticks, stones and blows as he was being beaten by the Accused persons. That the combined action of the Accused led to the deceased’s death. That the Prosecution proved through PW1, PW6 and PW8 who caused the deceased’s death. That PW8 had been hired by the 4th Accused to carry the Deceased on his motorbike. That the four Accused persons were not strangers to PW6 and PW1. That the accused were recognized and there was no mistaken identity of any of them. On the 4th Accused’s defence of alibi, she urged it was raised late and therefore an afterthought. That notwithstanding PW8’s evidence dislodged the 4th Accused’s defence of alibi. She urged the Prosecution proved malice aforethought based on the injuries the deceased had sustained and the speeding Boda Boda operators carrying the deceased away from the Police rescue instead of taking him to police station, was a clear demonstration of the Accused intention was to kill the Deceased as they passed three Police Stations. On recommendation for inquest by PW9, she urged that PW9 as an Investigating Officer exceeded his powers as it is DPP’s office which is mandated to decide to charge or not as per Article 157(c) of the Constitution of Kenya.

37. The Prosecution in a murder case must prove that the accused had formed the necessary intention to cause death or grievous harm to the deceased. Section 206 of the Penal Code, describes circumstances which constitute the same as follows:-

“206. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:-

a) An intention to cause the death or to do grievous harm to any person, whether that person is the person actually killed or not;

b) Knowledge that the act or omission causing death will probably cause the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, by a wish that it may not be cause;

c) An intent to commit a felony;

d) An intention by the act or omission facilitate the flight or escape from custody of any person who had committed or attempted to commit a felony.”

38. To prove a charge of murder, the Prosecution has a duty to establish the following ingredients:-

a) Death of the ceased and it’s cause.

b) That the accused caused the death through an unlawful act or omission.

c) The accused possessed an intention to cause harm/kill or had malice aforethought.

39. The first issue for consideration is whether the prosecution has proved the death of the deceased and it’s cause? PW1 and PW6 saw a group of Boda Boda operators at JOOU, assaulting the deceased and who thereafter took off carrying the deceased with them towards Mabinju Area. PW1 as he was waiting to report the incident at Bondo Police Station, he received a call from unknown number from a Police Officer who informed him his brother had been killed and asked him to come to meet him at Bondo Sub-County Hospital mortuary. PW1 informed his father PW2. PW1, PW2, PW6 and mother to the deceased went to Bondo Sub-County Hospital mortuary and confirmed that the deceased herein was already dead. PW3, PW4, PW7 and PW9, all Police Officers rescued the deceased who was being beaten by a group of Boda Bodariders at Lwak Centre and who was seriously injured. That on their way to Bondo Sub-County Hospital, the deceased passed on and they took his body to Bondo Sub-County Hospital mortuary. A postmortem was carried out on the body of the deceased by Dr Malingi on 10. 2.2014 after the body had been identified to him by John Okello Okoth (PW2) and Eric Ochieng Okello (PW1). The Doctor’s evidence corroborate the evidence of PW1, PW2, PW6, PW3, PW4, PW7 and PW9, who told the Court they witnessed the incident and PW3, PW4, PW7 and PW9 who testified they picked the body of the Deceased who died on the way to the hospital. The death of the Deceased is not in dispute. PW5, produced, the postmortem report as exhibit P1. The cause of death following post-mortem examination of the body of the deceased was established to have been due to most likely splenic laceration and intracranial bleeding caused most likely by sharp and blunt trauma. I therefore find the Prosecution proved the death of the Deceased herein and the cause of the death.

40. I now turn to the second issue for determination, thus who caused the death of the deceased? According to the Prosecution witnesses, the incident herein occurred at around 2:30 pm at JOOU gate , PW1 Erick Ochieng, PW6 Collins Onyango Okello and PW8 George Otieno Outa, otherwise referred to by some of the witnesses as “Agang”, were eye witnesses to the incident. PW3, PW4, PW7 and PW9 also saw the Boda Boda riders carrying the deceased, though they did not manage to identify or name any of the Boda Boda riders as they disappeared and sped off on their motorbikes before PW3, PW4, PW7 and PW9 could catch up with them. They only found members of the public who they dispersed and from whom they did not record any statements.

41. PW1, in his evidence, he stated that on 7th February 2014 at around 2:30pm on receipt of information of his brother Philip Odoyo Okello being interrogated at JOOU gate by Boda Boda operators, he proceeded to the scene whereby he found a big crowd of people at the gate being over 100 people. He found his brother having been beaten, seated down without a shirt, bleeding from several parts of the body. That he was able to see very clearly people armed with stones and sticks. He saw Omondi Alias Purber and Julius Oduor, the 3rd accused both armed with stones. He also saw Ninja called Ochieng Ochere, the 2nd Accused who jumped on the chest of the Deceased. He also saw Sola, who was beating the Deceased with a stick. That Kennedy Otieno, the 1st Accused tied the deceased’s hands to his back with a rope. They also started shouting Kamito, then Ochieng Ochere, the 2nd Accused known as Omondi Purberplaced the deceased on a motorbike of George Omondi (PW8) Alias Agang, Registration No. KMCX 260R, who refused to carry the deceased because he was still alive, and took a very big stone and hit the Deceased on the head and as a result the Deceased could not lift his head up. The Deceased was placed between George Omondi(PW8) and Kennedy Otieno, the 1st Accused, who was holding the Deceased as they drove off to Kamito. PW1 testified that he knew Omondi Purber properly before the incident; Julius Oduor, the 3rd Accused who was carrying a stone as his village mate, as well as his father one Okello Agola; Ochieng Ochere (Ninja), the 2nd Accused who he had known as a Boda Boda operator in Bondo; Kennedy Otieno the 1st Accused, who PW1 stated was beating the deceased and who was holding the Deceased as they left for Kamito, and who he had known for 5 years as a tenant of PW2, his father. PW1 testified he has had no grudge with any of the Accused persons. PW1 testified he observed what was happening at the scene from a distance of about 10 metres.

42. PW6, Collins Onyango Okello, received a call from PW1 telling him his brother Philip Odoyo Okello was being beaten by Boda Boda operators at JOOU gate. He rode to the scene and found a big crowd of people over 50 and he moved to the frontline and found Boda Boda Operators beating his brother. He was able to identify some of the people who were beating the deceased. He was about 4 metres from the deceased and saw Ninja, the 2nd accused who had a rungu beating the deceased; Oduor, the 3rd Accused and Kennedy the 1st accused stoning the Deceased. PW6 heard the deceased asking them why they were killing him and Ninja, the 2nd Accused told the Deceased they wanted a motorcycle he had stolen and the Deceased told them he can produce the motorcycle at Kalandini. That Kennedy, the 1st accused, Ninja the 2nd Accused and Omondi Abaki carried the deceased to a motorbike rider one Agang (PW8) and Kennedy the 1st Accused sat behind the Deceased in the same motorbike and proceeded to Kalandini. PW6 stated the people he mentioned are people he had known before as they all come from the same region with him and they are his peers. That he had known them for a reasonable time. He stated Oduor, the 3rd Accused was his classmate. He identified all the Accuseds in Court by their names. He further stated not all the people he mentioned are before Court.

43. I have considered the evidence of PW1 and PW6 who were able to recognize some of the people at JOOU gate. They stated specifically the role played by the 1st, the 2nd and the 3rd Accused. Observed what was happening at the scene from a close range and gave the names of the people involved. They were not strangers to him. I therefore find that PW1 and PW6, saw the 1st, the 2nd and the 3rd Accused at the scene of the incident. They also saw them leave with the Deceased for Kamito.

44. PW8, George Otieno Outa, a Boda Boda rider, testified that on 7. 2.2014 at 9:00 am he was hired by Isaiya Abinge, the 4th Accused to carry someone from Kaduro to Bondo and the 4th Accused promised to pay him Ksh. 200/= . Later the 4th Accused found him at JOOU gate, where a Boda Boda rider slapped one of PW8’s passengers, followed by many people who assaulted him, that the 4th Accused, told him that was not their final destination and insisted PW8 transports the person to the final destination. That PW8 proceeded to Kalandini but before reaching there he was blocked by other Boda Boda riders who attacked his passenger claiming he was a thief, forcing PW8 to leave, the scene. He stated at JOOU gate, the deceased was beaten by Otires, the 2nd Accused; Isaiya, the 4th Accused, and Jako-Ochamu, the 1st accused. I have considered the evidence of PW8 in light of evidence of PW1, PW6 and that of PW9. PW1 stated that he saw PW8, Agang hit the Deceased with a big stone saying he could not carry the deceased while alive. PW6 similarly stated PW8 carried the deceased on his motorbike while he was held by the 1st Accused. This piece of evidence was corroborated by PW1. There is further evidence from DW6 on the role played by PW8. DW6 found him with the deceased his hands tied on his motorbike at Aduro at 12:30pm. I find that PW8 was an active participant in the death of the deceased. He was in actual/fact an accomplice, and his evidence needed corroboration to be relied upon which I find lacking. PW8 disappeared for a period of close to 2 years knowing he was being sought by police. That when he went to report the case of his motorbike KMCX 260R, at Akala Police Station, he did not mention or record statement regarding the attack and death of the Deceased. He did not mention any of the people he told this Court, he saw them at JOOU, assault the deceased but kept quiet, till the day before giving evidence in this case, when he was arrested and made a statement implicating the 1st, the 2nd and the 4th Aaccused persons. PW9 stated PW8 was forced by the 4th Accused to carry the Deceased to JOOU gate and was paid by the 4th Accused, however, PW9 admitted, PW8 never in his statement to Police mentioned of any threat from the 4th Accused or anyone. PW9 stated the Accused was arrested to protect him but did not state from who. I find PW9 and may be with others, were out to protect PW8 for unexplained reasons. PW1 and PW6 clearly stated the role played by PW8 in the death of the deceased. DPP instructed PW9 to charge PW8 but he declined to do so and told this Court he won’t do it. PW8 should not have been called as a witness in this case but should have been charged as he was a principal participant in the death of the deceased. PW8 stated that he told Police at Akala Police Station that his motorbike had been stolen by the 4th Accused though he admitted he had no evidence. This clearly points out that he was out to fix the 4th Accused and that explained why he recorded his statement 2 days before giving his evidence after the incident occurred about 3 years before them implicating the 4th accused and others. I observed the demeanor of PW8 and he struck me as a dishonest person I and find his evidence to be incredible and unbelievable. He should have been one of the accused persons in this case as directed by DPP. His evidence contradicts the evidence of PW1 and PW6 who were at the scene and specifically on the purported role played by the 4th Accused. I find his evidence worthless.

45. I have considered the defence of the 1st, the 2nd, the 3rd and the 4th Accused in this case. The 1st, the 2nd and the 3rd accused defence is that they did not participate in the incident; however, none of them stated where they were on the 7. 2.2014. They stated they could not remember where they were. DW5 witness to the 3rd accused talked of the date of arrest and stated on the 7th February 2014, she did not know where her husband was. She stated the deceased died in 2012. I find her evidence to be of no probative value in the defence of the 3rd Accused. The 1st Accused, the 2nd accused and the 3rd Accused were placed at the scene of crime by PW1 and PW6. The role they played was well articulated by PW1 and PW6, who knew them before. PW1 and PW6 observed their activities from a close range, gave their names to police and I find they were not mistakenly identified in this case. I find that the 1st, the 2nd and the 3rd accused were properly identified as amongst the people who were involved in beating the deceased at JOOU and which led to his death. They were people who were seen transporting the Deceased to Kamito.

46. That in this case no clear evidence was adduced as to what happened when the Accused took the Deceased to Kamito, and the only evidence against the 1st, the 2nd and the 3rd accused’s primarily circumstantial evidence.

47. In the case of Elizabeth Gatiri Gachanja & 7 Others V Republic [2011]eKLR, the Court of Appeal set out clear guidelines regarding circumstances when circumstantial evidence will suffice as proof of guilt of an accused person. In that case, it was held as follows: -

a) There had been no eye witnesses to the death of the decease. In such a case, the test to be applied was clear: In order to draw inference of guilt from circumstantial evidence, the facts of the case must have been incompatible with the innocence of the Accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt, the burden of proving facts which justify the drawing of this inference is always on the Prosecution and never on the Accused.

b) It was necessary for the Court to be sure that there were no other co-existing circumstances which could have weakened or destroyed the inference of guilt.

c) In law, there was no set number of witnesses required to prove a fact. Even the evidence of ne witness could have formed the basis for a conviction as long as the Court had found the evidence credible. Where such evidence was on the identification of a person who claimed that he was not properly identified, then the Court had to examine such evidence was on identification of a person who claimed that he was not properly identified, then the Court had to examine such evidence with the greatest care.

48. In the instant case, PW1 and PW6 testified the 1st, the 2nd and the 3rd accused with other Boda Boda riders carried the Deceased and took off with him being carried by PW8 as the Boda Boda operators claimed they were taking him to Kamito. PW3, PW4, PW7 and PW9 saw a group of Boda Boda operators who were carrying Deceased assaulting him at Lwak Centre, though they did not arrest any of the Boda Boda rider; they found the Deceased unconscious with serious injuries. The identification of the 1st, the 2nd and the 3rd Accused by PW1 and PW6 took place undoubtedly after the attack at JOOU gate. The chain of events from the time of attack with the time of rescue of the Deceased by PW3, PW4, PW7 and PW9 was not broken. The facts of the case are incompatible with the innocence of the 1st, 2nd and 3rd Accused and incapable of explanation upon any other reasonable hypothesis than that of their guilt. There are other co-existing circumstances which weakened or destroyed the inference of guilt. The inferences point to the 1st, the 2nd and the 3rd accused, them and no other as perpetrators to the murder. The circumstantial evidence points to the fact that the 1st, the 2nd and the 3rd accused persons were the last people seen with the deceased. Carrying him towards Kamito in PW8’s motorbike accompanied by Boda Boda riders and I find that was enough to point a finger at them to the exclusion of any other persons.

49. The 4th Accused gave a defence of alibi and called DW6. He stated that on 7. 2. 2014, he was not at the scene of crime as he had been to Sirongo to meet a client in company of his Boda Boda rider DW6 from 1:00 pm to 4:30 pm.

50. It is trite law that the burden of proving, the falsity, if at all, of an Accused’s defence of alibi lies on the Prosecution (see Karanja V Republic, (1983) KLR 501. In that case, it was held that in a proper case, a trial Court may; in testing a defence of alibi and in weighing it with all other evidence to see if the Accused’s guilt is established beyond all reasonable doubt, take into account 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 investigation and thereby prevent any suggestion that the defence was an afterthought. In this case I have found the evidence of PW8 incredible and of no value probative a regards connecting the 4th accused with the commission of the offence. PW1 and PW6 contradicted one another as to whether the 4th Accused was at the scene of crime or not. PW1did not mention seeing the 4th Accused at the scene whereas PW6 mentioned the 4th Accused but did not state what role he played. PW6 did not adduce any evidence pointing to the guilt of the 4th Accused and further it is not an offence for anyone to attend a scene where there is a mob justice as some of the people at the scene maybe innocent onlookers or passersby. The Prosecution did not it controvert the 4th accused’s defence nor did it shake the 4th accused’s defence. The evidence of PW1 and PW6 did give credence to the 4th accused’s defence of alibi. The Accused who offers a defence of alibi is not supposed to prove that his defence is indeed true nor is he supposed to prove his innocence but it is enough to cause some doubt in the Court’s mind. I therefore find from the 4th Accused’s defences, it is possible that he was not at the scene of incident. I give him the benefit of doubt.

51. I am from the above satisfied that the Prosecution proved that the 1st, the 2nd and the 3rd Accused in company of others not before Court caused the death of the Deceased. I find the Prosecution failed to prove beyond any reasonable doubt that the 4th Accused was amongst the people who caused the death of the Deceased Philip Odoyo Okeyo.

52. Whether the accused had malice aforethought? In this case, the prosecution submitted the doctrine of common intention applied to this case. Section 21 of the Penal Codeprovides: -

“21. 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.”

53. In the instant case, there was no evidence, adduced by the Prosecution, that the people who beat the deceased, and who indeed were many as per the Prosecution’s evidence, met and agreed or planned to attack the deceased. The attackers were unruly, and spontaneously attacked the deceased. In such circumstances, the Accused were emotionally charged and were acting without reasoning. I can therefore, though the Accused and the other Boda Boda riders passed nearby three Police Stations, where they should have taken the Deceased, their prime aim, as per the evidence was to be shown the stolen motorbike and as such, I am unable to find malice aforethought from their actions. I have no doubt that as per Prosecution evidence that the unruly mob including the identified attackers who includes the 1st, the 2nd and the 3rd accused amongst others, who are yet to be apprehended, and charged, attacked the Deceased. From the above, it cannot be said the 1st, the 2nd and the 3rd Accused had planned the murder of the deceased. For those reasons, I will find the 1st, the 2nd and the 3rd Accused killed the Deceased without intention to do so and that malice aforethought is therefore not proved. I will in the circumstances find the 1st, the 2nd and the 3rd Accused guilty of the lesser charge of manslaughter under Section 202 as read with Section 205 of the Penal Code and convict the 1st, the 2nd and the 3rd Accused of manslaughter.

54. As regards the 4th Accused, I find the Prosecution has failed to prove beyond any reasonable doubt the charge of murder and accordingly I discharge the 4th Accused of murder of Philip Odoyo Okeyo. He is set at liberty forthwith unless otherwise lawfully held.

DATED AND SIGNED AT SIAYA THIS 20TH DAY OF JULY 2017.

J.A. MAKAU

JUDGE

DELIVERED IN OPEN COURT.

In the presence of:

M/S Odumba:for State

Mr. Adiso: for 1st, 2nd and 3rd Accused persons

Mr. Odongo: for 4th Accused

A1 - Present

A2 - Present

A3 - Present

A4 - Present

Court Assistants:

1. Laban Odhiambo

2. Atika Leonidah

J.A. MAKAU

JUDGE