https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10668

Republic v Odiwuori (Criminal Case 20 of 2019) [2026] KEHC 10668 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10668 (KLR) Republic of Kenya In the High Court at Bomet Criminal Case 20 of 2019 JK Ng'arng'ar, J July 16, 2026 Between Republic Prosecutor and Dancun Ongoro Odiwuori Accused Judgment The Charge 1.Dancun Ongoro Odiwuori (Accused) was charged with the offence of murder contrary to section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on 19th August 2019 at Kasarani area behind Karakwony Factory within Bomet County, he murdered Joan Cherono. 2.The Accused took plea before Dulu J. on 1st October 2019 and pleaded not guilty. The case proceeded to trial where the Prosecution called seven (7) witnesses and the Accused testified in person before closing his case. Summary of the Prosecution Case 3.It was the Prosecution’s case was that on the material day (19th August 2019), the Accused murdered Joan Cherono. The Prosecution stated that the Accused person and the victim were lovers and on the material day, the Accused was found in his house with the deceased lying naked on the bed oozing blood. 4.The Prosecution stated that the body was taken for post mortem examination and through Dr. Byegon Kipkemoi (PW6), the cause of death was determined to be internal bleeding to the brain. The investigating officer (PW7) visited the scene, documented it and recovered a blood stained trouser, blood stained t-shirt, blood stained curtain and debris of whiskey bottles. 5.At the conclusion of the Prosecution case, this court ruled on 25th November 2025 that the Accused had a case to answer and put him on his defence. The Defence Case 6.The Accused (DW1) gave sworn testimony and denied that he committed the offence. That on the material day he was engaged with some errands and when he got home later in the day he found the deceased unresponsive on his bed with blood oozing from her mouth, ear and nose. The Accused further testified that he screamed for help and when his neighbours responded, they told him that the deceased needed to be taken to hospital. 7.It was DW1’s testimony that he locked himself inside his house because a crowd that had gathered outside his house claimed that he had killed the deceased. It was DW1’s further testimony that the deceased was his girlfriend. Ingredients of the offence 8.The offence of murder contains two elements, the actus reus encapsulated in Section 203 of the Penal Code and the mens rea provided for in Section 206 of the Penal Code. 9.Section 203 of the Penal Code provides: -Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 10.Section 206 of the Penal Code provides: -Malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances—(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. 11.For the offence to be established, the Prosecution must prove the above elements beyond reasonable doubt. The Court of Appeal in Chiragu & another vs Republic (Criminal Appeal 104 of 2018) [2021] KECA 342 (KLR) (17 December 2021) (Judgment) held: -“The prosecution in an information of murder has the singular task of proving the following three ingredients in order to secure a conviction; that the death of the deceased occurred; that the death was caused by an unlawful act of commission or omission by the accused and that the accused had malice aforethought as he committed the said act.” The fact of death 12.There is no doubt that the victim (Joan Cheono) died. A post-mortem was conducted on the deceased’s body at Longisa County Referral Hospital on 22nd August 2019. Additionally, Sheila Cherotich (PW2) who was the deceased’s sister and Nicholas Kiprono Mosonik (PW5) who was the deceased’s father identified the deceased’s body before the post mortem examination. 13.It is my finding from the above that the fact of death of both victims was established. Cause of death 14.As stated above, a post mortem examination was conducted on the deceased’s body by Dr. Byegon Kipkemoi (PW6). PW6 testified that the deceased had major stab wounds on the right side of her head and bleeding under the skull. PW6 further testified that a sharp object was used to inflict the wounds. It was PW6’s conclusion that the cause of death was internal bleeding to the brain. He produced a Post Mortem Report as P. Exh 2. 15.I have looked at the report and the findings mirror PW6’s testimony. I have found no reason to doubt the professional opinion of PW6 on the cause of death. It is my further finding therefore that the cause of death was acute subdural hematoma after trauma to the head with a sharp object which was undoubtedly unlawful. Whether the Accused caused the death of the deceased 16.Having gone through the testimonies, it is clear to this court that no one witnessed the commission of the offence and thus the evidence that the Prosecution presented before the court was circumstantial. The Court of Appeal in Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR), held: -“……….It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial….” 17.Similarly, in Mwita v Republic (Criminal Case 10 of 2020) [2022] KEHC 3265 (KLR) (19 May 2022) (Judgment), Wendoh J. held: -“……..This is what the court stated in Neema Mwandoro Ndunya vs. Republic CRA 466 of 2007 where the court of Appeal cited with approval the case of R vs. Taylor Weaver and Donovan (1928) 21 CRC 20 the court said:-“Circumstantial evidence is often said to be the best evidence. It is the evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with accuracy of mathematics.” 18.The Accused submitted that the Prosecution did not prove their case beyond reasonable doubt as they did not produce the murder weapon and the Accused person’s clothes in court as evidence. The Accused further submitted that the deceased did not have defensive wounds and further that the Prosecution evidence did not exclude the Accused’s defence that he walked into a crime scene. He relied on Miller v Minister of Pensions 2 All ER 372 1947. 19.In the present case, Fred Mutai (PW1), Joseph Kibet (PW3) and No. 2006075613 PC Alex Ngodini (PW4) all testified that they saw they found the deceased in his house with the deceased who was then naked and lying unresponsive on the bed. PW1 in particular testified that the Accused beckoned them to open the door and take the deceased to hospital. PW1 further testified that he saw the Accused break a beer bottle and thought that he was going to stab the deceased. PW1’s testimony was uncontroverted upon cross examination. 20.No. 81556 PC Diana Angote (PW7) who was the Investigating Officer testified that after visiting the scene of crime, she recovered debris of whiskey bottles, a blood stained shirt which was positively identified to belong to the deceased by the deceased’s sister, a blood stained trouser and a blood stained curtain. PW7 stated that she collected the items and forwarded them to the Government Chemist. PW7 produced an Exhibit Memo as P. Exh 3. I have looked at the Exhibit Memo and I have confirmed that the said items were recovered and forwarded to the Government Chemist. 21.Sheila Cherotich (PW2) who was the deceased’s sister testified that the yellow bloodied t shirt belonged to the deceased. 22.In his sworn defence, the Accused (DW1) denied committing the offence and testified that he walked into his house and found the deceased unresponsive in his bed. When he was cross examined, he testified that the deceased was his girlfriend and they would drink together and that on the material day, he was not with her. I will evaluate this defence alongside the Prosecution’s evidence. 23.From the Prosecution’s evidence, it was clear that the Accused was placed at the scene of the crime and was the last person seen with the deceased. This meant that the Accused had a duty to explain the circumstances under which the deceased met her death. Section 111 (1) of the Evidence Act provides: -When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist:Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defense creates a reasonable doubt as to the guilt of the accused person in respect of that offence. 24.The Court of Appeal in Musimbi vs Republic (Criminal Appeal 107 of 2020) [2023] KECA 287 (KLR) (17 March 2023) (Judgment) held: -“Regarding the “last seen with” doctrine, its applicability has been explained by various courts. For instance, in the Nigerian case of Moses Jua vs The State (2007) LPELR-CA/IL/42/2006 it was held as follows:“Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, the court is justified in drawing the inference that the accused killed the deceased.”In another Nigerian case of Stephen Haruna v The Attorney-General of The Federation (2010) 1 iLAW/CA/A/86/C/2009, the Court in considering the same doctrine opined thus:“The doctrine of "last seen" means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstance. In the absence of a satisfactory explanation, a trial court and an appellate court will be justified in drawing the inference that the accused person killed the deceased.”In the case of Ramreddy Rajeshkhanna Reddy & Another v State of Andhra Pradesh, JT 2006 (4) SC 16 the Court held:“That even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.” 25.After evaluating the Accused’s defence against the Prosecution evidence, it is my finding that the Accused failed to satisfactorily explain the circumstances under which the deceased met her death. The Accused’s evidence was weak and did not displace the Prosecution’s evidence. 26.I say so because PW1’s evidence was damning. PW1 testified that he saw the deceased break a bottle with his intentions unknown. The Investigating Officer (PW7) recovered debris of whiskey bottles and this is what I suspect was used in harming the deceased. The Accused hit the deceased on her head causing cuts on her head and breaking of the whiskey bottle. This evidence tallied with the evidence presented by Dr. Byegon Kipkemoi (PW6) who concluded that the scar and injuries on the deceased head must have been caused by a sharp object. PW6 ruled out a fall as a cause of the deceased’s injuries upon cross examination. 27.I have tested the circumstantial evidence above against any other possibility as required and alongside the principles stated in Sawe v Republic [2003] KECA 182 (KLR), where the Court of Appeal held: -“……..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 on. 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 is on the prosecution, and always remains with the prosecution. It is a burden, which never shifts to the party accused.” 28.From the above, it is my finding that the circumstantial evidence against the Accused is overwhelming and cogent. It points unerringly to the guilt of the Accused and no one else. The circumstantial evidence in totality leaves no doubt that the Accused and no other, cause the death of the deceased. Whether the Accused acted with malice aforethought. 29.I have already set out the circumstances under which malice aforethought may be inferred under section 206 of the Penal Code. 30.The Court of Appeal in Roba Galma Wario v Republic [2015] KECA 521 (KLR) held: -“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.” 31.In Bonaya Tutu Ipu & another v Republic [2015] KECA 335 (KLR), the Court of Appeal held: -“It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of Chesakit v Uganda, CR App No 95 of 2004, the Court of Appeal of Uganda stated that in determining a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person. Earlier in Rex v Tubere s/o Ochen [1945] 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue:It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick……” (Emphasis mine) 32.Similarly, the Court of Appeal in Waweru vs Republic (Criminal Appeal 98 of 2020) [2023] KECA 622 (KLR) (26 May 2023) (Judgment) held: -“In the case of Nzuki v Republic [1993] eKLR, this court defined malice aforethought as:“…a term of art and is either an express intention to kill, as could be inferred when a person threatens another and proceeds to produce a lethal weapon and uses it on his victim; or implied, where, by a voluntary act, a person intended to cause grievous bodily harm to his victim and the victim died as the result. See the case of Regina v Vickers, [1957] 2 QB 664 at page 670. An intention connotes a state of affairs which the person intending does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition. See the case of Conliffe v Goodman, [1950] 2 KB 237.”In the same case, the court went on to state:“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 these acts, and commits those acts deliberately and without lawful excuse 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 the intention were aimed at a potential victim other than the one who succumbed.Without an intention of one of these three types, 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 the crime of murder….” (Emphasis mine) 33.The Accused submitted that none of the Prosecution’s witnesses established that he had any malice aforethought. That they all stated that they did not know who killed the deceased. He relied on Republic v Silas Magongo Onzere alias Fredrick Nemema (2017) eKLR. The Accused further submitted that in the circumstances, he could not be convicted of murder. 34.I have looked at the evidence as a whole and the circumstances under which the victim met her death. The cause of death was internal bleeding to the brain and the injury was caused by striking by a sharp object. The Post Mortem report indicated that the victim suffered among them stab wounds on the right and left temporal head. The nature and severity of the injuries indicated a use of force by the Accused. In my view, the Accused’s action of striking the victim on her head clearly pointed to an intent to kill. By choosing to strike the head, the Accused must have known that his actions would lead to the victim’s death. It is my finding therefore that the Accused possessed malice aforethought when he killed the victim. 35.In the final analysis, it is my finding that the Prosecution proved its case against the Accused to the required legal standard. The Accused Dancun Ongoro Odiwouri is hereby convicted. JUDGMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 16TH DAY OF JULY, 2026............................................HON. JULIUS K. NG’ARNG’ARJUDGEJudgment Delivered in the presence of;Susan/Zachary – Court AssistantMs Koech for the StateAccused – present