[2023] KEHC 19658 (KLR)

Republic v Odeny (Criminal Case 22 of 2018) [2023] KEHC 19658 (KLR) (27 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19658 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Case 22 of 2018

RE Aburili, J

June 27, 2023

Between

Republic

Prosecution

and

Vincent Okoth Odeny

Accused

Judgment

1. This case was partly heard before Justice F A Ochieng before he was elevated to the Court of Appeal. I therefore took directions under section 200 and read with section 201 of the Criminal Procedure Code and with the accused person’s counsel and the prosecution Counsel agreeing, the case proceeded from where it had reached, with the accused person retaining the right to recall any of the witnesses who had testified for further cross examination.

2. The accused person herein is Vincent Okoth Odeny. He is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. Particulars of the Information dated October 2, 2018 are that on September 16, 2018 at Kanswa Sublocation, Nyangoma Location, Muhoroni Subcounty, within Kisumu County, the accused person murdered Richard Otieno Odeny.

3. when the accused person was arraigned on October 2, 2018 and taken for mental assessment before he could take plea, the mental assessment report dated October 9, 2018 and filed in court revealed that the accused person was laboring under a psychiatric/ mental condition and therefore he was found unfit to plead to the charges facing him and that he required treatment.

4. the Court then ordered that he be taken to Mathari Hospital for psychiatric treatment and he was committed to the said hospital. A report was filed in court on December 17, 2019 adjudging him to be capable of making his defence that he was presented to court and a plea of Not guilty entered on July 25, 2019.

5. It was until February 12, 2020, one year and four months that the hearing commenced, owing to the above circumstances.

6. The prosecution called six witnesses who testified on oath. Placed on his defence, the accused person testified on oath and closed his case without calling any witness. He maintained his innocence.

7. The evidence as adduced in court is as follows:

8. PW 1 Jack Omondi Buwa the Assistant Chief Kamuswa sub-location, Nyangoma location testified and recalled that on September 16, 2018 at 12. 00 noon, he was at his office when he received phone call from Keffa Apala who informed him that Vincent Okoth Odeny alias “Daddy” had cut his elder brother named Richard Otieno Odeny and that the injured brother was rushed to Awasi Mission Hospital. Ten minutes later, PW1 got a call from Silvester Opala Aguko, who told him that the said brother to Vincent Okoth Odeny had passed on.

9. PW1 then telephoned Mr Orono of Ngere Police Base, relaying the information which he had just received. The said Mr Orono went to PW1’s office and together, they proceeded toa Awasi Catholic Hospital where they found the Chief, Mr Joseph Amila who had already notified Chemelil Police Station. They viewed the body before being taken by the police to Ahero Sub-county mortuary. Thereafter, PW1 and 3 Police officers from Chemelil visited the scene of the incident at the home of Richard Otieno Odeny.

10. That at the scene, they saw blood stains besides the house of Richard. There was also a plastic chair which they were told Richard had sat on. PW1 then returned to Awasi market and at about 4. 00pm, he received a phone call from Jane Atieno Okumu, who told him that Vincent was moving from Obunga towards Milenye Primary School. PW1 asked Jane to monitor Vincent’s movements as he made phone calls to Thomas Otieno Olang and David Otieno Ongeche, both village elders instructing them to trace Vincent at Milenye and he boarded a motorcycle headed to Milenye Primary School. On his way PW1 got a phone call from David Otieno Ongoche, informing him that Vincent had been arrested. That when Vincent was brought PW1 at Awasi, he was very remorseful. That Vincent had a panga which handed over to PW1, which panga had a handle made out of material from a tyre, but that the panga was very clean.

11. PW1 stated that he had known Vincent and the deceased Richard for over 10 years. He stated that when he saw the body of the deceased, had a deep cut on the back of the head with blood stains on the back.

12. On Cross examination by the defence counsel, PW1 stated that he visited the scene of crime with 3 police officers and saw some blood stains on the ground behind the deceased’s house near the plastic chair. That there was a cooking place, with 3 stones, about 7 metres from where the blood was. He stated that he saw only one panga cut on the body, on the back of the head and that there were blood stains on Vincent’s back.

13. PW 2: Caroline Anyango Otieno the deceased’s widow testified and recalled that on September 16, 2018 at about 6. 00am, she was at her house with her husband Richard Otieno Odeny who then asked her to accompany him to the Shamba. That while at the farm, they found that their vegetable had been harvested and placed in 3 batches. That Richard told her that he suspected it was “Daddy” who had harvested it.

14. She stated that at the farm, she was with Richard and Jeff Ochieng and that she was at the shamba between 7. 00am and 11. 00am whereas Jeff left at 10. 00am. She also left Richard in the shamba and went home. That Richard returned home just before 12. 00noon and found her cooking ugali. He took a chair and sat behind the house. When the ugali was ready, PW2 put it on the table in the house and that s she was warming the vegetables, ‘Daddy’ passed close to her house and she thought that he was going to his house, close to PW2’s house.

15. PW2 stated that as she bent down to set the firewood well, she heard the sound ‘Aii’ from the direction where Richard was sitting, the sound made by Richard’s voice. she lifted her head and saw blood near the chair. She saw feet going behind the house and so she rushed to follow the person she had seen. She caught up with the person, it was Vincent. She held him asking him why he had killed his brother. That Vincent told her that Richard had said that he, Vincent had harvested Richard’s vegetables. That Vincent claimed that the vegetable harvested were worth Kshs 50 and that he held in his left hand kshs 50 and the panga in his right hand. That Vincent told her to take the Kshs 50 but she told him to go and see what he had done. That he then threatened to cut her hand off if she did not release his hand, which she was holding and so she released his hand but she continued following him while screaming as he ran away.S he stated that the panga that was in court was not the one that she had seen Vincent holding on that day because the one he held had blood on it.

16. PW2 stated that Vincent ran into the sugarcane shamba. She then returned to her house and saw that Richard had been cut on his head. Silvester Opala advised her to use a bedsheet to tie the wound to control the bleeding. He sent Jeff to get a motorcycle which they used to ferry Richard to the hospital at the Catholic Church.

17. PW2 stated that Jeff is a brother to Richard and Vincent and that Jeff lived with her. Ashe stated that although Vincent also lived with her, Vincent had his own house. That she was about 10 metres away from the person who cut her husband.

18. She testified that Vincent also known as Daddy was well known to her as he was the last born in her husband’s family and that she had lived with him for 12 years. According to PW2, there had never been any grudge between Vincent and herself.

19. On Cross-examination, PW2 reiterated that there was a distance of about 3 metres apart, from where she was cooking and where Richard was seated and she could have heard someone but not the footsteps. She stated that she did not hear Richard talk to Vincent nor seen him lift up the panga to cut Richard. She stated that when she saw the blood, she rushed to follow the person running away. That their home is not fenced and anybody could walk through. She stated that it was only when Daddy ran into the sugarcane plantation, is when Silvester Opala arrived. That Silvester did not see Daddy at her home. She stated that when she cought up with Vincent, he was holding a blood stained panga and Kshs. 50. She reiterated that when she was cooking, Vincent passed by, heading towards his house although she was not sure if he entered his house and that as he passed by her, he was holding a panga.

20. PW 3, Silvester Opala Aguko testified that on September 16, 2018 at about 12. 00 noon, he was at his homes when he heard some screams from PW-2 saying; “Daddy, you have killed Otieno.” He rushed to that place but that before reaching, he saw “Daddy” and that, Caroline, PW2, was running after him. That he saw Vincent also known as ‘Daddy’carrying a panga in his hands. That when he reached Richard’s boma, he found Richard’s neck had been cut from the back and Richard was seated on a plastic chair next to his house and was still alive. PW3 sent Jeff Odeny, the brother to Vincent to get a motorbike at Milenye shopping centre.

21. That when Jeff got back, he placed Richard on the motorbike and rode towards Awasi Hospital but that Richard died before reaching the hospital. He nonetheless proceeded to the Awasi Mission Hospital, where they confirmed that Richard was dead. The Chief (Ambila) and the Assistance Chief (Bowa) both arrived at the hospital and called the police to collect the body. He estaimated the distance from his house to the deceased’s home to be about 100 metres.

22. He stated that when he went to Richard’s home, he found Caroline was chasing after “Daddy” from the boma of the deceased, towards the sugarcane plantation. He confirmed that he was the first person to reach the boma followed by Jeff. He stated that the person he called “Daddy’ was known to him since birth.

23. PW3 further testified that When PW-2 was chasing Vincent, the latter was carrying a panga. He stated that the distance from where he was and where Caroline was chasing Vincent was less than 100 metres.

24. On Cross-examination, he confirmed that he had no grudges with Vincent and that when he heard the screams, he identified it as that of Caroline, as he knew his sister-in-law’s voice. He stated that Vincent had a green T-shirt and a brown long trouser. He stated that he did not see Vincent, stopping and talking to Caroline.

25. On being re-examined, he stated that When he saw Caroline chasing Vincent, they were 50 metres away.

26. PW 4: David Otieno Ongeche, testified and recalled that on September 16, 2018, while he was in his home, at about 6. 00pm, he received a phone call from PW-1 telling him that ‘Daddy’ had been seen in Wabunga village and that PW4 should try and arrest Vincent as he had killed his brother Richard. That as a Village elder, he left his home to try and trace Vincent at Milenya Centre. PW4 saw ‘Daddy’ near the home of Shem Ochieng, still within the shopping centre. He followed the said Vincent with one Doyo and when they stopped Vincent, the latter told them that he had killed his brother. The witness told Vincent that, that was an accident. That Vincent told them that he had 3 options; Suicide, or, surrender to the police; or, Disappear.

27. The witness convinced Vincent to go to the police station as there were some youth trying to kill him. Vincent boarded the witness’ motorbike carrying a panga in his right hand and after riding for 600 metres, they met PW-1 heading to the centre. PW-1 took the panga from Vincent. They ferried Vincent to Awasi Police station.

28. On cross examination, PW4 stated that he knew ‘Daddy’ as his friend and that he used to visit their home and are from the same village. That the nearest home from Richard’s is PW 3’s. while from Sylvester’s home to Richard’s home is about 200 metres.

29. On re-examination, PW4 stated that on the material day, he visited Richard’s home at about 1. 30pm and found that he had been taken to hospital. That he saw blood near the house and a plastic chair with blood was on the ground. That he arrested Vincent at about 6. 35pm wearing a T-shirt and trouser he couldn’t recall the colour but that Vincent had a panga which PW4 could identify from its size.

30. PW 5 Dr Robert Omollo from Jaramogi Oginga Odinga Teaching and Referral Hospital- JOOTRH testified that he carried out an autopsy on the body of the deceased Richard Otieno Odeny at Ahero Sub-County Hospital at 10. 00am on September 25, 2018. On examination, the body was naked, of a male African adult aged 38 years, of good nutrition, 179cm, of good physique. The body was not mutilated. It was well embalmed. There was an obvious cut on the head occipital region extending to the left temporal region with blood clots noted at the site of the cut. In the Respiratory system, there were no fractures on ribs and the thoracic cage was normal. In the Cardiovascular system, the heart was normal, with no signs of chronic heart disease. In the digestive system, the spleen, liver, pancreas were all normal. The Genitourinary system was Normal.

31. On the head, there was laceration on the occipital region extending to the left temporal region with a near neck amputation. The cut wound was 10cm deep and 15cm in length. The nervous system was normal.

32. From his examination, he concluded that the cause of death was cardiopulmonary arrest due to hypovolemic shock due to severe hemorrhage as a result of severed cut to the neck with a sharp object due to assault. He filled the Postmortem Report on September 25, 2018, issued the burial permit number 1070253 and signed the Postmortem Report which he produced as P. Exhibit No 1.

33. On being cross-examined by the defence counsel, the witness stated that in the cause of his work, he does clinical, admission of patients and performs postmortems. He stated that he had performed many post mortems at JOOTRH. He stated that the postmortem in question was carried out 9 days after death. He stated that some changes on the body like stiffening take place. That the body was well preserved and was cold.

34. PW 6 No. 235654 IP Peter Leboo previously In-charge Muhoroni Police station testified and recalled that on September 15, 2018 at around 1400 hours, he received a call from his Officer Commanding Station (OCS) with information from Nyangoma Assistant Chief of a murder incident. That he and his team proceeded to Awasi Hospital mortuary where they found the Assistant Chief and the deceased’s family members. He saw cuts on the rear head of the deceased and moved the body to Ahero Mortuary. That they were led to the primary scene at Nyangoma by the Assistant Chief where they interrogated witnesses. The deceased’s wife Carolyne Otieno shared what she saw and heard. They went to Awasi Police station, rearrested the accused who had been arrested by members of the public and took possession of the panga which he had been arrested while in possession of. The witness identified the panga (sharp panga with black handle) which he produced as P Exhibit No 2.

35. Placed on his defence, the accused testified on oath as DW1 and called no witness. He stated that he knew the deceased Richard Otieno Odeny but denied knowing what killed him on September 15, 2018. He stated that he woke up early as usual to go and cut sugarcane stumps in their farm in Muhoroni and returned home at 9. 00 am. He found his sister in-law PW-2 who preparing breakfast. That because the breakfast was not ready, he took a matchbox to go and burn the remains of dried stumps when PW-2 asked him for a panga to use it to cut firewood. That because she was about 12 metres away, he threw at her the panga then proceeded to the farm and tried to burn the waste but it was misty so they could not burn properly. That he then heard screams which he confused for mourners. He moved closer and heard Carolyne calling him ‘Daddy, Daddy, come, your brother is dying’. That he went home and passed by a school and on reaching the Centre near the school, he met his paternal uncle William Kapere Riaga who asked him if he had gone to the vegetable farm, and he responded that he had gone to the sugarcane farm. That his uncle then told the accused that his brother had returned bleeding, and told the accused to go to Awasi so the accused proceeded to Awasi.

36. That on the way, he met a bodaboda man (PW-4) who used to sell firewood. That he told PW4 to carry for him his panga as it was on the carrier and the accused had asked PW4 for a lift and that PW4 carried the accused as he held the panga. Reaching the road, PW4 told the accused that he could not take him far. That he gave the accused his panga. Later, the accused met the Assistant Chief who carried him on his motorcycle and told him to go and record a statement on where he had been. That on the way, they met rowdy bodaboda people. He was taken to Awasi police station. He stated that he was taken to Koru Police station and later to court. He disputed having the panga P Exhibit No 2.

37. On Cross-examination, he stated that he was a farmer planting vegetable before being arrested. He stated that Richard had planted vegetables on the land and Carolyne had fetched the vegetables and given him to sell. That he sold the vegetables and went to the sugarcane farm.

38. He further stated that Richard leased the land. He admitted that he used to eat at Richard’s house and that on September 16, 2018 at 6. 00am he left home for the sugarcane farm. He stated that Richard and Carolyne were awake and that they also went to the farm. That at 11. 00am, he had gone to the homestead for food. He denied having had a panga.

39. He stated that he was arrested by Jack Omondi Bor the Assistant Chief on his way to the hospital visiting his injured brother. None of the parties filed submissions.

Analysis and Determination 40. I have considered the charge, the evidence adduced by the six prosecution witnesses and the defence proffered by the accused person on oath. To sustain a charge of murder, the prosecution must prove all the elements of the offence of murder beyond reasonable doubt. The essential elements for the offence of murder as stipulated in section 203 of the Penal Code are: proof of death and the cause thereof; that the death was unlawfully caused- by acts of commission or omission; that it was the accused person who was positively identified as the person who unlawfully caused the death of the deceased; that the unlawful killing of the deceased was with malice aforethought.

41. On the proof and cause of death, PW5 Dr Omollo who carried out an autopsy on the body of the deceased on September 25 confirmed that he was dealing with a body of a male African adult of 38 years old and from the post mortem report which he produced as PEX1, the said body was identified to him by PW2 Carolyne Anyango Otieno who was the wife to the deceased and Erick Odhiambo Awino. PW2 was the wife to the deceased testified how she heard the sound ’aii’ from the deceased and on rushing to where the deceased was seated on a plastic chair outside their house, she saw feet leaving. She saw her husband bleeding. PW1, PW2, PW3, PW4, PW5 and PW6 all confirmed seeing the body of the deceased. They also saw the cut on the neck, back side. PW5 Dr Robert Omollo, found, following post mortem examination that the cause of death was cardio pulmonary arrest secondary to hypovolemic shock due to severe hemorrhage from deep sharp object cut on the neck due to assault. Post mortems are never conducted on live persons. Accordingly, I find and hold that there was proof of death and the cause thereof established beyond reasonable doubt.

42. On whether there was proof beyond reasonable doubt that the death was unlawfully caused, or by omission, the evidence contained in the post mortem report on the injury sustained by the deceased and in the absence of any defence of self defence or defence of property, or any justification in law, it is clear that the deceased could not have cut his neck with a sharp object, to nearly severing the head off from the neck and on the occipital or back side. PW1, PW2 and PW3 as well as PW4,PW5 and PW6 all saw the cut on the back side of the neck of the deceased. Accordingly, I find and hold that there was proof beyond reasonable doubt that the death of the deceased was unlawfully caused.

43. On whether it was the accused herein who unlawfully caused the death of the deceased, the evidence on record by PW2 was that the accused passed by her house holding a panga as she was preparing to serve her husband with lunch and she thought that he was going to his house which was nearby only for her to hear husband scream ‘aii” and as she went to check what the issue was, she saw someone escaping. She saw the deceased bleeding so she ran after the person who was escaping as she only saw the feet then she caught up with the accused person and held his hand as she screamed saying ‘Daddy’ had killed Otieno his brother. In the process, PW3 heard those screams and also rushed to the scene and saw PW2 running after the accused herein. PW3 went straight to where the deceased was and saw him bleeding from the neck with a cut. He sent Jeff to bring a motor cycle which came and he placed the deceased on it and on their way to hospital, he died. Meanwhile, as PW2 ran after the accused who was her youngest brother inlow, she held onto his hand asking him why he had killed his brother and he told her that the deceased had claimed that it was the accused who had harvested their vegetables from the farm. The accused threatened to cut off PW2’s hand using the panga that he was holding unless she let go so she let go and he escaped into the sugar cane plantation as she followed him while screaming.

44. PW3 on the other hand heard screams from PW2 of the accused having killed Otieno. He rushed to the scene and saw PW2 running after the accused who was carrying a panga in his hand. He reached the deceased’s home and found the deceased bleeding from the cut wound on the backside of his neck. He sought for transport to escort the deceased to hospital but the deceased died enroute hospital.

45. The deceased in his defence denied unlawfully killing the deceased who was his brother and gave a long winding story of how he went to the sugarcane farm to cut stumps, returned home at 9. 00am and found PW2 his sister inlow making breakfast which was not ready so he took a match box to go burn the stumps and PW2 asked him for a panga which he threw at her for cutting firewood then he went to burn the stumps but found them still wet because of dew then he heard screams which he confused for mourners and on moving closer, he heard PW2 saying ‘daddy daddy’come your brother is dying.’ That on his way home, he passed by a school where he met his paternal uncle who asked him if he had gone to a vegetable farm and informed him that his brother had returned bleeding and so, the accused should go to Awasi and that he went to Awasi and on the way he met PW4 whom the accused asked for a lift and PW4 asked the accused to hold for him a panga which was on the carrier and on their way, PW4 said he could not go far so the accused gave back the panga to PW4 and on alighting, he met the Assistant Chief who asked him where he had been. That he met rowdy boda boda people and he was taken to Awasi then to Koru Police station. He denied possessing the panga, PEX2.

46. I have considered the above defence against the evidence of PW2 and PW3. This incident took place at about noon and although the witnesses did not see the accused cut the deceased, from the evidence of PW2 and PW3, it is clear that the accused was the only person whom PW2 had seen pass by holding panga and no sooner had he passed where the deceased was seated on a chair than PW2 heard her husband now deceased scream ‘aii’ and on checking on him, she saw him bleeding then she ran and saw the accused person running away still holding the panga. She ran after him, caught up with him and saw blood on the panga. Although the recovered panga had no blood, it is worth noting that the accused escaped after the incident and was only arrested in the evening by which time he had the opportunity to either dispose of the offensive weapon or to wash off the blood. Furthermore, non-recovery of a murder weapon is not fatal to the prosecution’s case. PW3 went to the scene immediately he heard PW2 scream saying Daddy had killed his brother and on arrival, he saw PW2 chasing the accused herein. The deceased was still alive so PW3 concentrated on saving the life of the deceased.

47. The only link between the accused and the offence is that he was allegedly the person seen with a panga and that he escaped from where the deceased screamed and when PW2 followed him and asked him why he had cut killed the deceased as the accused was holding the panga which was blood stained, the accused told her that it was because the deceased had claimed that the accused had harvested the vegetables of the deceased from the farm.

48. For the prosecution to sustain a conviction on circumstantial evidence the Court of Appeal in the case of Sawe v Republic [2003] e KLR stated that:“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shifts to the party accused.”

49. Thus, in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must therefore satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. When the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubt. The court must be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof.

50. From the testimony of the PW2, the accused person was the last person seen near the deceased immediately prior to the deceased being found cut on the neck and bleeding. I am satisfied that the circumstantial evidence adduced by PW2 and PW3 point to the accused person as the person who unlawfully killed the deceased. That evidence is so strong and watertight that it leaves no doubt in my mind that it was the accused and not any other person who unlawfully killed the deceased using a panga which he was carrying in his hand when he passed by PW2 and which panga was blood stained when PW2 chased the accused and caught up with him still holding the panga which the accused threatened to cut off PW2’s hand if she insisted holding onto the hand of the accused.

51. On whether the accused had malice aforethought when he unlawfully killed the deceased, malice aforethought is defined under section 203 of the Penal Code and this section must be read together with section 206 of the Penal Code. The Court of Appeal for Eastern Africa in the case of Republiv v Tumbere S/O Ochen [1945] 12 EACA63 considered the following elements in determining whether malice aforethought had been established:1The nature of the weapon used.2The manner in which it was used.3The part of the body targeted.4The nature of the injuries inflicted either a single stab/wound or multiple injuries.5The conduct of the accused before, during and after the incident.

52. In this case, I am satisfied that the manner in which the accused cut the deceased with a panga on the neck nearly severing the head from the neck and using a sharp object, he intended to cause the deceased grievous harm or kill him as the deceased could not have been expected to survive after his neck was nearly severed from the head. Motive is immaterial in this case. Accordingly, I find and hold that malice aforethought was proved against the accused person beyond reasonable doubt.

53. In the end, I find and hold that the prosecution has proved all the elements of the offence of murder against the accused person beyond reasonable doubt. I find the accused person Vincent Okoth Odeny Guilty of the murder of Richard Otieno Odeny. I convict him accordingly.

54. Sentence shall be after records and mitigation.

55. I So order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 27TH DAY OF JUNE, 2023R E ABURILIJUDGE