https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12674

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **CRIMINAL CASE NO. 11 OF 2022** **REPUBLIC ................................................................................................... PROSECUTOR** **VERSUS** **JOSEPH NYAUNO OBIRI ................................................................................. ACCUSED** **JUDGMENT.** **A. Introduction.** 1. The accused Joseph Nyauno Obiri, is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63) of the Laws of Kenya. The particulars of the offence were that on the 1st day of February 2022, at Rigoma village, Nyataro Sub-location, Etago Sub-County within Kisii County, he jointly with another not before the court, murdered Alice Nyamoita. 2. Plea was taken and he pleaded not guilty. The matter proceeded to trial before R.E. Ougo J, who took the evidence of PW1 and PW2 on 19th July 2022 and was transferred before prosecution closed their case. 3. This court took the conduct of the trial and direction were issued under Section 200 CPC and the matter to proceeded from where it stopped The prosecution called a total of six witnesses in support of its case. **B. Prosecution case.** 1. PW1 Phylis Nyatuka Morara testified that she is married to Evans Morara, the accused’s brother and that the deceased, Alice Nyamoita was her sister-in-law. She stated that she had moved out of the shared homestead in February 2022 on account of recurrent violence and fights. On the material night of 1st February 2022 at about 7.00 p.m., there was a fight at the home of the accused, during which she heard the deceased screaming and asking why she was being beaten. 2. Her husband, the accused's brother, arrived at her (PW1’s) house at about 8.00 p.m., intoxicated and later proceeded to the house of the deceased. The deceased, the accused, and PW1’s husband thereafter came to PW1’s house where an altercation ensued. PW1 was pulled outside, where she states that the deceased’s husband (the accused), armed with a panga, together with the deceased and her own husband, assaulted her. She testified that when the accused attempted to strike her with the panga a second time, the deceased fell on top of her and it was at that point that the panga cut the deceased. 3. She testified that she thereafter fled, made a report at Moticho Police Station and it was while at the police station that she was informed the deceased had died. She identified PMFI 1, as the weapon used that night. On cross-examination she maintained that the accused had struck her with the panga and had before that night, previously beaten her. 4. PW2 Edward Ouma Nyandege, the Assistant Chief of Nyatero Sub-location, testified that at about midnight on the night of 1st February 2022 he was woken by a clan elder, David Ondeyo and informed that a woman had been killed. He proceeded to the scene about 1km from his home. He found the deceased lying dead, having sustained a cut wound to the neck near the ear and found the accused, family members and neighbours present. He testified that the accused told him that PW1 (Phylis) had beaten the deceased. He reported the matter to Moticho and Etago Police Stations. In cross-examination he confirmed that he did not witness the killing and that what he knew of the circumstances of death was related to him by others at the scene. 5. PW3 Mary Moraa Morara, a child aged fourteen years and the daughter of PW1 and Evans Morara, testified after a voire dire examination in which the court satisfied itself that she was sufficiently intelligent and understood the meaning of oath. 6. She testified that on the evening of 1st February 2022 she met the accused on his way home. He was carrying a bottle of an energy drink and a panga. She later heard her aunt the deceased, cry out after the accused knocked on his own door and entered the house. Later that night, a fight broke out at her parents’ home involving her mother (PW1), her father Evans Morara, her aunt the deceased and the accused. She testified that she saw her uncle, the accused, arrive with a panga and, in the course of the fight, cut the deceased near the ear. That she heard the deceased say, "Nyauno, you have hit me," as she fell. She testified that the accused thereafter dropped the panga next to an avocado tree, that she picked it up and that she and her mother proceeded with it to Moticho Police Station, where it was surrendered to the police. She identified the panga she picked as blood-stained with a black handle. 7. On cross-examination however, she stated that the panga produced in court as Pexh 1 was not the one she had picked at the scene, stating that the one she picked bore a mark which she could identify, and maintaining that there was sufficient light for her to see what transpired. 8. PW4 David Ondeyo Orora, a clan elder of Rimoma village, testified that at about 10.00 p.m. on 1st February 2022 the accused came to his gate crying and stated that a lady called Nyanduka had killed his wife. He left before he could get outside. He testified that he thereafter met Evans Morara, the accused's brother, who asked him to assist in taking the deceased to hospital. That on proceeding to the homestead he followed a trail of blood from the door of Morara’s house to the door of the accused’s house, where he found the deceased lying dead. He summoned the assistant chief (PW2) and the police. He conceded in cross-examination that he did not witness the killing and that it was not his testimony that the accused had intended to kill the deceased. 9. PW5 Dr Bryan Ayara, a consultant pathologist at Kisii County and Referral Hospital, testified that he conducted the post-mortem examination of the deceased at Tabaka Mission Hospital. On external examination, he found a deep cut wound on the left side of the head, extending from above the ear downwards, severing the external carotid and jugular vessels and fracturing the angle of the mandible, measuring 16 cm. There was a further deep cut wound to the lower midback measuring 15 cm, associated with a fracture of the posterior iliac crest. He formed the opinion and so certified in the post-mortem report produced as PExh 2, that the cause of death was exsanguination, That is bleeding due to a deep cut wound to the neck region. On cross examination he testified that the deceased died on the spot from the bleeding. 10. PW6 No. 236593 PC Anthony Kiragu, attached to DCI Gucha South, testified as the investigating officer. He testified that on the night of 1st /2nd February 2022 he attended the scene at Rigoma village. He found the body of the deceased with a deep cut wound to the left side of the neck and a further deep cut wound to the lower back. That a trail of blood led from the scene to the compound of Evans Morara, said to be the point where the altercation began. He testified that PW1 (Phylis Nyatuka) had already surrendered herself to Moticho Police Station together with the alleged murder weapon a panga and was initially treated as the suspect. 11. Upon revisiting the scene and obtaining further information, he established that the accused had arrived home at about 7.00 p.m. and quarrelled with the deceased. That the accused’s brother Evans Morara, later joined in and that the three, the accused, Evans Morara and the deceased jointly turned on PW1. The accused, who was armed with a panga used the face of the panga to slap the two fighting women. That in the process he missed PW1 and cut the deceased, first on the neck and a second time on the lower back. 12. He testified that blood samples were taken from the body of the deceased for comparison with blood found on the panga but conceded that the samples were misplaced at Tabaka and no DNA report was ever produced. He further conceded, under cross-examination, that he was unable to establish malice, that it was not his testimony that the accused had intended to kill the deceased and that the accused was, on the evidence available to him, in the process of separating the two fighting women. On the strength of this account, the Office of the Director of Public Prosecutions directed that Phylis Nyatuka be released and that the accused be charged with the offence, which was accordingly done. 13. At the close of the prosecution case, the court by a ruling delivered on 3rd March 2025, found that the accused had a case to answer and placed him on his defence, pursuant to section 306(2) of the Criminal Procedure Code. **C. Defence Case.** 1. The accused DW1 elected to give unsworn testimony and called no witnesses. He testified that he is a casual labourer residing at Nyasake location. That on the material day, 1st February 2022 he was away crushing sugarcane, returning home at about 9.00 p.m.. He heard screams, found a crowd of people at his home and was informed that his wife had died. He denied killing the deceased, denied taking alcohol and stated that the deceased did not take alcohol either. 2. He testified that the panga produced in court did not belong to him but to Evans Morara, the husband of PW1. He testified that PW1 and the deceased were enemies over an old dispute concerning a loan of Kshs. 500 and that he had a cordial relationship with the deceased and had not quarreled with her on the material day. **D. Determination** 1. I have read and considered the entire evidence on record together with the written submissions filed on behalf of the accused. The question for determination is whether the prosecution has proved, beyond reasonable doubt that the accused person unlawfully caused the death of Alice Nyamoita. 2. Section 203 of the Penal Code defines the offence of murder as follows: ***"Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder."*** 1. In the case of ***Joseph Kimani Njau v Republic [2014] eKLR,*** the Court of Appeal, concurring with an earlier finding of that Court (differently constituted) in Nzuki v Republic [1993] KLR 171, held as follows: ***"Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused: (i) the intention to cause death; (ii) the intention to cause grievous bodily harm; (iii) where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts. It does not matter in such circumstances whether the accused desires those consequences to ensue or not, and in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one who succumbed. The mere fact that the accused's conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into a crime of murder. (See Hyam v Director of Public Prosecutions [1975] AC 55)."*** 1. The ingredients of the offence of murder were usefully summarised by the Court of Appeal at Nyeri in ***Criminal Appeal No. 352 of 2012,*** ***Anthony Ndegwa Ngari v Republic [2014] eKLR*** as follows: 2. the death of the deceased and its cause; 3. that the accused committed the unlawful act which caused the death of the deceased; 4. that the accused had malice aforethought. I will address each ingredient in turn. **i. The death of the deceased and its cause.** 1. It is not in dispute that Alice Nyamoita died on the night of 1st February 2022 at Rigoma village. This was confirmed by every witness who attended the scene and by the evidence of PW5, the pathologist who conducted the post-mortem examination. He produced the post-mortem report, P.Exh. PW5 found that the cause of death as exsanguination due to a deep cut wound to the neck region, associated with a further deep cut wound to the lower back. I find that the death of the deceased and its cause, have been proved. **ii. Whether the accused committed the unlawful act which caused the death of the deceased.** 1. The defence of accused is that of alibi that he was elsewhere at work throughout the material day and only learnt of his wife’s death upon returning home. 2. In his written submissions, he contends that no witness directly implicates the accused. That the evidence of PW1 and PW2 is hearsay or internally inconsistent and that the evidence of David Ondeyo Orora (PW4) offers an alternative, exculpatory account. I have carefully considered this submission but am unable to accede to it in its entirety. 3. In the case of **Kiarie v Republic [1984] KLR 739**, the Court of Appeal held that an accused who raises an alibi does not assume the burden of proving it; the burden remains on the prosecution. 4. It is true that PW2’s account of the circumstances of death, being derived from what he was told at the scene, is hearsay and is of no probative value on that narrow point. It is also correct that PW1’s account contains an evident error in the recorded times of the fight and that PW3, on cross-examination cast doubt on whether Pexh1 is in fact the panga she picked at the scene. I have weighed the defence case vis-à-vis the prosecution's case. 5. The arguments exonerate the accused of inflicting the fatal wounds. PW3, adduced a sworn witness whose evidence was tested on cross- examination .I am satisfied that she was a truthful witness that she saw the accused who was , armed with a panga, cut the deceased near the ear during the fight and that the deceased was heard to exclaim, ‘Nyauno, you have hit me.’’ 6. This is direct, eyewitness evidence of recognition, not identification of a stranger, given by a witness who had known the accused, her uncle, throughout her life and it is corroborated in its essential particulars by PW1, who was present throughout and confirmed that it was the accused who was armed with the panga and he is the one and who struck the fatal blow, albeit in the course of an intended blow at her. 7. It is further corroborated by the investigations of PW6 who placed the accused as the person wielding the murder weapon at the material time, this being the basis upon which the Office of the Director of Public Prosecutions directed that Phylis Nyatuka be released and the accused charged. 8. I am satisfied that the discrepancy as to whether Pexb1 is precisely the panga PW3 picked and the absence of a DNA report on the blood samples said to have been misplaced, are notable but do not undermine the direct eyewitness account placing the panga in the hands of the accused at the moment the fatal wounds were inflicted. 9. I have also considered the account of PW4, upon which the defence places reliance. I do not find that his evidence exculpates the accused. PW4 did not witness the killing, his account, is that the accused came to him in an emotional state reporting that another woman had killed his wife and that a trail of blood led from the compound of Evans Morara to the door of the accused where the deceased was found. This is equally consistent with the accused having come from the scene of the killing moments after it occurred and does not displace the direct evidence of PW1 and PW3. I have weighed this account against the credible and corroborated eyewitness evidence of PW1 and PW3, both of whom placed him at the scene and panga in hand. The alibi raised by accused has not succeeded in displacing prosecution’s case. I proceed to dismiss it as an afterthought . 10. I accordingly find that the prosecution has proved, beyond reasonable doubt, that it was the accused who, armed with a panga, inflicted the fatal wounds upon the deceased. **iii. Malice Aforethought.** 1. Having found that the prosecution has proved the actus reus, the remaining question is whether malice aforethought has been established. *Section 206 of the Penal Code* provides that malice aforethought is established by proof of any of the following: ***‘(a) an intention to cause the death of 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 death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;*** ***(c) an intent to commit a felony;*** ***(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.’’*** 1. The mental element required by section 206 may be equated to the guidelines set out in ***Tubere s/o Ochen v Republic [1945] 12 EACA 63:*** ***"The weapon in possession of the accused while carrying out the intention, the manner in which it was used to strike the human being whether one-off blow or violent multiple blows, the conduct of the accused in fleeing from the scene afterwards, the permanency or dangerous severity of the bodily harm and that cumulatively the death of the deceased must ensue from the bodily harm intentionally inflicted."*** 1. I have considered this question and have reached a different conclusion from that urged by the prosecution. First PW6 the investigating officer, testified candidly and without equivocation, both in his evidence-in-chief and under cross-examination, that his investigations revealed that the accused, together with the deceased and Evans Morara, had turned upon PW1 in the course of a fight, that the accused used the panga to slap at the two fighting women. He missed PW1 and struck the deceased, his own wife, instead and critically injured her, that he was unable to establish intent. He further stated it was not his testimony that the accused intended to kill the deceased. This is a material concession from the officer who investigated the matter and forms part of the prosecution’s own case. 2. Secondly, this account sits consistently with that of PW1, who testified that the fatal cut occurred when the deceased fell on her as the accused aimed a further blow at her. There is no evidence of premeditation. 3. I am not for these reasons, satisfied beyond reasonable doubt that the accused struck the fatal blows with the intention of killing or doing grievous harm to the deceased or in the knowledge that his act would probably cause her death or grievous harm. 4. I bear in mind that, under section 206(a) of the Penal Code, an intention to cause death or grievous harm to a person other than the one actually killed will suffice to found malice aforethought. However, on the state of the evidence before me, including the concession of the investigating officer, I am left in genuine doubt as to whether the accused, in wielding the panga during the fight, acted with the intention to cause death. 5. I accordingly find that, while the prosecution has proved beyond reasonable doubt that the accused unlawfully caused the death of Alice Nyamoita but it has not proved, to the required standard, that he did so with malice aforethought. 6. In the circumstances, the offence of murder as charged has not been proved, but the lesser and cognate offence of manslaughter comprising an unlawful act causing death without malice aforethought, has been proved beyond reasonable doubt. Pursuant to section 179 of the Criminal Procedure Code, I proceed to reduce the charge to manslaughter, and I accordingly convict the accused of manslaughter contrary to section 202 as read with section 205 of the Penal Code. **E. Disposition.** 1. Accordingly, it is my finding that the prosecution has failed to prove the offence of murder, contrary to section 203 as read with section 204 of the Penal Code, in that malice aforethought has not been established. 2. I do however find and hold that the prosecution has proved, beyond reasonable doubt, that the accused unlawfully caused the death of Alice Nyamoita and pursuant to section 179 of the Criminal Procedure Code, I substitute a conviction for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. 3. He is accordingly convicted of the lesser offence of manslaughter. It is so ordered. **T.A ODERA** **JUDGE** **23.7.26** **JUDGMENT DELIVERED ON THIS 23RD DAY OF JULY 2026 IN THE PRESENCE OF ACCUSED** **MR KOIMAFOR THE STATE** **COURT ASSISTANT KIPCHIRCHIR** **MR MORARA FOR ACCUSED** Koima: We do not have previous records of accused. Morara; We Seek a pre-sentence report before Mitigation. Order: Mention on 16.9.26 for a pre-sentence report. **T.A ODERA** **JUDGE** **23.7.26**