[2022] KEHC 14662 (KLR)

Republic v Odondo (Criminal Case 24 of 2019) [2022] KEHC 14662 (KLR) (2 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14662 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Case 24 of 2019

KW Kiarie, J

November 2, 2022

Between

Republic

Prosecutor

and

Lameck Otieno Odondo

Accused

Judgment

1. Lameck Otieno Odondo is charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars of the offence are that on the 30th day of September, 2019, at Ngura village, Ruma location in Suba South Sub County of Homa Bay County, murdered Mary Anyango Airo.

3. When the deceased herein was found dead in her house, the accused was implicated.

4. The accused denied any involvement and pleaded an alibi.

5. The issues for determination are:a.Whether the accused caused the death of the deceased or not;b.Whether his alibi defence was displaced or not; andc.Whether the offence of murder was proved.

6. On 30th September, 2019 at about 1 p.m. one Cyprina informed Aska Diang’a (PW1) that Mary Airo, the deceased herein was dead. She went and confirmed and found her body in a pool of blood in her house.

7. Samson Gwalla Oyugi (PW2) testified that he visited the deceased at her home that morning at about 7 a.m. This was after the deceased had called him on phone. She wanted him to fetch water for her by using his motor cycle. Other than the issue of fetching water for her, he said he was in a relationship with the deceased. As he was leaving, the accused arrived and attacked him after asking him what he was doing in that home.

8. The accused and Samson Gwalla Oyugi (PW2) fought and attracted the deceased who was in the house. She snatched a club from the accused and ran towards the gate. Samson managed to flee from the home and left the accused.

9. Benjamin Odira Omodo (PW3) confirmed that members of public informed him that the accused and Samson Gwalla Oyugi (PW2) were heard quarrelling in the home of the deceased.

10. The accused in his defence pleaded an alibi. When an accused has pleaded an alibi, the onus is on the prosecution to prove that the alibi is not true. In the case of Kiarie vs. Republic [1984] KLR the Court of Appeal held:An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.This burden does not leave the prosecution even when it is raised for the first time during defence. In the case of Victor Mwendwa Mulinge vs. Republic [2014] eKLR the Court of Appeal rendered itself as follows on the issue of alibi: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 KaranjavR, [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the 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 the instant case after testing the alibi and weighing it with all the other evidence I find that the evidence on record has displaced the alibi defence of the accused.

11. The only evidence that connected the accused to the offence is that of Samson Gwalla Oyugi (PW2) with whom they fought in the home of the deceased. Though no evidence was adduced as to the motive of their fight, it would appear that the two were competing over the deceased.

12. The evidence against the accused herein is circumstantial. In the case of Mohamed & 3 Others vs. Republic [2005]1 KLR 722 Osiemo Judge restated circumstantial evidence as follows:Circumstantial evidence means evidence that tends to prove a fact indirectly by proving other events or circumstances which afford a basis for reasonable inference of the occurrence of the fact at issue. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.

13. Samson Gwalla Oyugi (PW2) testified that the accused went to the home of the deceased a fit of anger and started to fight him demanding to know what he was doing in the home. The deceased had managed to disarm the accused and ran towards the gate. He managed to escape from the home.

14. Earlier the Court of Appeal in the case of Rep vs. Kipkering Arap Koskei & another 16 EACA 135, had held:In order to justify 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.

15. The circumstances in this case are incompatible with the innocence of the accused and cannot be explained upon any other reasonable hypothesis than that of his involvement in the death of the deceased.

16. In order to found conviction of the offence of murder on the evidence on record, the prosecution must prove the existence of malice aforethought. In Black’s Law dictionary, 10th Edition malice aforethought is defined as:The requisite mental state for common-law murder, encompassing any one of the following (1) the intent to kill (2) the intent to inflict grievous bodily harm (3) extremely reckless difference to the value of human life (the so called “abandoned and malignant heart”), or (4) the intent to commit a dangerous felony (which leads to culpability under the felony-murder rule).Section 206 of the Penal Code gives instances when malice aforethought may be proved. It 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.

17. In the instant case, malice aforethought was not established. I therefore, find that the prosecution has not proved the offence of murder against the accused. I acquit the accused of the charge of murder. However, the prosecution has proved beyond any reasonable doubt the lesser offence of manslaughter. I accordingly reduce the charge of murder to that of manslaughter. I find him guilty and convict him of the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.

DELIVERED AND SIGNED AT HOMA BAY THIS 2ND DAY OF NOVEMBER, 2022KIARIE WAWERU KIARIEJUDGE