https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6989

Republic v Ogola & another (Criminal Case E005 of 2022) [2026] KEHC 6989 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 6989 (KLR) Republic of Kenya In the High Court at Siaya Criminal Case E005 of 2022 DK Kemei, J May 22, 2026 Between Republic Prosecution and Edwin Odhiambo Ogola 1st Accused Lucas Omondi Ogola 2nd Accused Judgment 1.The two accused herein Edwin Odhiambo Ogola and Lucas Omondi Ogola have been charged with the offence of murder contrary to Section 203 as read with 204 of the Penal Code. The particulars are that on the 24th day of January 2022 at Hawagaya village in East Uholo Location, Ugunja Sub-county, within Siaya County, murdered one Chrispin Opondo. 2.The accused persons denied the charge, warranting a trial in which the prosecution called ten witnesses in support of its case. 3.The prosecution’s case is that on the material date at around 8.00 pm, the deceased and his siblings were at their home when the iron sheet roof was pelted with stones. They went out to check on the matter, and as they reached their gate, they met the two accused herein and another who is still at large. The deceased and his brother (PW1) enquired as to what the matter was only for one of the assailants, named Peter, who is still at large, to cut PW1 on the face with a panga. That PW1 fell down and managed to rush home. Apparently, the deceased did not manage to reach home, as it turned out that he was killed and his body dumped in a nearby river. The following day, a search for the deceased was mounted. The body was later recovered. An autopsy was conducted on it by Doctor Tony Kinja (PW6), who formed the opinion that the cause of death was excessive haemorrhage from severed jugular vein. He produced the autopsy report as an exhibit. Investigations were conducted by Sgt James Ochola (PW9) and that the 2nd accused led him and other officers to the river where the body of the deceased was recovered. He later produced several exhibits that had been recovered and also organized for the post mortem examination on the body of the deceased. He finally arranged to have some DNA specimens collected from both accused herein which he handed over to the Government Chemist for analysis. The government analyst, Polycarp Lutta Kweyu (PW10) produced the DNA report as an exhibit. 4.At the close of the prosecution’s case, this Court held that the two accused persons had a case to answer. They elected to tender sworn evidence and called 3 witnesses in support of their case. 5.Edwin Odhiambo Ogola (DW1) who is the first accused, testified that on the 23rd day of January 2022, he was at home and left for work and returned at 6pm. That later, some strangers arrived at his home at 8pm and later established that they were looking for his brother Lucas Omondi Ogola (2nd accused). That the said people stormed the house of his brother and destroyed items in the compound and a fight occurred attracting members of public. That they went to Sigomere Police Station and lodged a report. The police visited the scene the following day. That he was arrested by the police on the ground that they need him to assist in the investigations and it was then that he learnt that somebody had lost his life. That he found his brother Lucas Apondi already in the cells. That he did not assist the police with the information regarding the whereabouts of the deceased. That he had never quarreled with the deceased and that he did not fight anybody. That the wheelbarrow he found at the police station belonged to their family. That he did not see the 2nd accused at the scene until at the police station. That the issue is about a land dispute in which he had lodged a complaint of creating disturbance at Sigomere Police Station. He denied killing the deceased as he had no grudge against him.On cross examination, he stated inter – alia; that he found four people at his home who included Fredrick Okoth, Eugene Ochieng, Odhiambo and Crispin Opondo (deceased); that he is related to the deceased who was his uncle; that Fredrick Okoth is an uncle while Eugene Ochieng and Odhiambo are cousins; that the said people were looking for Lucas; that the quarrel arose which led to the death of the deceased; that his younger brother Peter Ogola was fighting the four people; that he did not join the fight as it was dark; that he did not participate in the fight. 6.Lucas Omondi Ogola (DW2) is the 2nd accused herein. He stated that on 23rd January, 2022 he was at the home of his step sister madam Rose where he stayed upto 9pm and came back at his house at 10pm where he met Fredrick Okoth, Crispin and Eugene Ochieng. That the following day, he went to work as usual. That later the police officers arrived together with the OCS Sigomere Police Station who informed him that Crispin Opondo had died. That he was led to the river where police ordered him to put a wheelbarrow onto their vehicle. That he was assaulted and later he was taken to Ugenya Police Station. That his co-accused was also placed in the cells. That he did not record any statement. That they were later taken to Ukwala Law Courts before being brought to this court where they were charged as herein. That he knows Eugene who is a grandson of Winfrida Akoth. That he did not know about the exhibits collected by the police. That he was not found with any sharp objects. That Winfrida used to graze her cows on their crops and that he had made report to the clan elder. That the said Winfrida used to be armed with a panga. That they did not plan to kill the deceased and that he did not discuss with Peter over the deceased’s behavior or plans to kill her.On cross examination, he stated inter – alia; that he did not see Paul Onyango (PW7) in Court; that he did not know Fredrick Onyango prior to the incident but he later came to know him in Court; that he was taken to hospital over beating by the police but that he had not availed treatment notes; that he did not know the deceased herein but he learned that the deceased had visited his home when he was away at work; that he did not know anything about the clothes recovered from the river; that he was arrested from his place of work; that he has not contacted his employer madam Rose over this case; that he has not lodged any case against the police officer who forced him to handle the wheelbarrow; that he has not raised any complaint regarding his incarceration in the cells for one week; that he now knows that the deceased was their neighbour; that he maintains that he was away at his place of work and on duty at the time of the alleged incident. 7.Caroline Awuor Ogola (DW3) testified that the 1st and 2nd accused persons are her sons. That on 23rd January 2022 at 6.00pm, she was at her home when both accused person were not home yet. That later at 8.00pm, some people came who included Okoth and Eugene and who had torches while the others surrounded the house. That they demanded for the 2nd accused person and that she informed them that he had gone to work somewhere and was yet to return. That they started searching for Lucas but they did not inform her the reasons for the invasions. Later, they went to Peter Okoth’s house and a struggle ensued. That she rushed to the village elder to report and who indicated to her that it was a police case and that they lodged the report together with the accused persons at Uholo Police station vide OB No. SP/23/01/2022. That both accused persons had no problem with the deceased and that they had no dispute between them. She stated that she had not seen Peter Okoth since the incident to date.On cross examination she stated inter- alia; that she tried to prevent the attackers from gaining access to the 1st accused’s house; that the deceased was also present at the scene; that she cannot tell if Crispin was injured while she was away at the police station.; that she does not know the whereabouts of her son Peter Okoth to date. 8.Ogola Jackline (DW4) testified that she is a student at Bombe Institute in Busia County. She recalled on 23/1/2022 at 8.00pm while she was alone in the kitchen studying, she heard a commotion from outside. That one of the people was Fredrick Okoth who stormed into the kitchen and snatched the solar bulbs and went out. She did not know the whereabouts of the accused herein and that she did not venture outside due to fear and did not know what transpired outside.On cross examination, she stated inter – alia; that she did not react when Fredrick Okoth snatched the solar lamps; that she heard voices outside but she did not venture to check because of fear; that she did not see any of the accused persons at the scene. 9.Grace Adhiambo Oduor (DW5) stated that she is a village elder of Hawagaya Village. That both accused persons are well known to her and that she is aware of the case before this Court. She stated that she did not witness the incident but she recalled on that day at 6.30am when she received a call from her fellow village elder who alerted her to rush to the scene of crime because somebody had died. That she found a large crowd outside the home of both accused herein. That police officers were also present. She enquired and found out that one Opondo (deceased) had been killed but she did not manage to see the body of the deceased. That they checked a nearby stream but they did not find the body. That the following day around 3pm, the police were alerted that the members of public had stumbled upon the body. She stated that the police arrived and retrieved the body of the deceased and took it to Ambira Sub county Hospital mortuary. That the accused had not fought with the deceased. That she does not know the whereabouts of Peter Okoth who is a brother to both accused herein.On cross examination, she stated inter – alia; that the accused and the deceased were not staying peacefully; that the deceased was brother to the father of both accused; that she did not hear any screams; that she saw the body as she is one of those who escorted it to the morgue; that she saw a scorpion on the deceased’s breast area and cut wound behind the ear. 10.After the close of the defence case, both parties agreed to file and exchange submissions. 11.I have considered the evidence tendered herein and the submissions presented. I find that the issue for determination is whether the prosecution proved its case against both accused beyond reasonable doubt. 12.It is noted that the two accused have been charged under section 203 as read with 204 of the Penal Code which provide as follows: -Section 203- Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.Section 204- Any person convicted of murder shall be sentenced to death. 13.The burden of proof in all criminal cases is always upon the prosecution to discharge and that the standard is one of beyond any reasonable doubt. See Woolmington v. DPP [1935] AC 462 which laid down the guiding principle regarding the issue of burden of proof which is placed on the shoulders of the prosecution to discharge and that the standard is one of beyond any reasonable doubt. The court stated in the aforesaid case as follows:“Throughout the web of the English criminal law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject to the qualification involving the defence of insanity and to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt created by by the evidence given either by the prosecution or the prisoner as to whether the offence was committed by him, the prosecution has not made out a case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’ 14.In order to sustain a charge of murder, the prosecution is under obligation to prove certain essential ingredients inter alia; that there was death of the deceased; that the death was caused by unlawful acts or omissions; that there was malice aforethought; that the accused was the perpetrator of the crime. 15.As regards the aspect of death, the autopsy was conducted by Dr Tony Kinja (PW6) who found a cut wound from the left eye to the left parietal region and then from the right parietal region to the occipital region and then from the left ear to the anterior aspect of the neck. That there was also a severed left jugular vein. He formed the opinion that the cause of death was excessive hemorrhage from severed left jugular vein. He produced the autopsy report dated 10/2/2022 as an exhibit. I find the issue of the death of the deceased was thus proved by the prosecution beyond any reasonable doubt. 16.As regards the unlawfulness of the death, it is trite law that all homicides are unlawful unless circumstances exist to render it excusable or justifiable as was established in the case of R v Guzambizi s/o Wesonga[1948] 15 EACA 65. I find no such circumstances have been demonstrated in this case. The evidence tendered revealed that the deceased herein was a vibrant man who was aged 52 years and in good health and looked to more years in his life. The injuries sustained and confirmed by the pathologist left no doubt that the assailant desired the said injuries would lead to his death. The evidence tendered was that the deceased sustained severe cut wound injuries on the neck area, left eye and left ear and severed left jugular vein, and thus an indication that the assailant desired the same to lead to his demise. Hence, I find the ingredient was proved beyond any reasonable doubt by the prosecution. 17.On whether there was malice aforethought, section 206 of the Penal Code provides the appropriate explanation on what constitutes the same as the intention or knowledge of causing death or grievous harm and can be inferred from circumstances inter alia; the intention to cause death of any person; an intention to cause grievous bodily harm which leads to the death of such a person; reckless disregard of life where a perpetrator is aware of the possibility that their actions could lead to death of such a person; intentional commission of a criminal act where death is a natural consequence of that act; evidence of prior planning or premeditation. Under section 203 of the Penal Code, murder is described as the unlawful killing of a person with malice aforethought and that the perpetrator had the intention, knowledge, or recklessness which indicates his awareness that his/her actions are likely to result in death or serious harm. It transpired from the evidence that the deceased was in company of his brother (PW1) and that they had come out of their home after their roof was pelted with stones and as they came out to inquire about the intrusion and had reached the gate, the two accused herein and their brother Peter Okoth attacked them wherein PW1 sustained a panga cut on the face but who managed to escape but the deceased was not so lucky as he was later killed and his body dumped in a nearby river and that the following day, it was recovered and found to have been inflicted with severe injuries. In the case of R v Tubere s/o Ochen [1945]12 EACA 63 the court gave some guidelines on how malicious intent can be inferred as follows:‘’The weapon used i.e whether it was a lethal weapon or not;The part of the body that was targeted i.e whether it was a vulnerable part or not;The manner in which the weapon was used i.e whether repeatedly or not, or number of injuries inflicted, and;The conduct of the accused before, during and after the incident i.e whether there was impunity.’’ 18.The chronology of the events as narrated by PW1 left no doubt that the assailant really wanted the deceased to die since the several panga cuts on the eyes, ears, neck and left jugular vein snuffed out the life of the deceased. It also transpired that the assailants later ferried the body on a wheelbarrow and dumped it in a nearby river. There was thus malice aforethought on the part of the assailants. The assault weapons were sharp pangas and that the deceased stood no chance at survival. It is therefore clear that the injuries sustained and the use of such a weapon left no doubt that the assailants desired the death of the deceased to occur. It is clear that the accused persons had carefully planned to eliminate the deceased and his family members due to some neighbourhood feud. It transpired from the defence evidence that the family of the deceased used to graze their cows on crops belonging to the family of the accused persons and that reports had been lodged at the nearby Sigomere police station. It also transpired that the accused persons herein and their brother one Peter Okoth, who is still at large, had pelted the roof of the deceased’s parents' roof before they attacked him and PW1. I find that this ingredient was proved beyond any reasonable doubt. 19.On whether the accused persons herein were the assailants, it is noted that the incident took place at about 8.00 PM. It was the evidence of PW1 that on the fateful day, he was in company of the deceased at their parents’ house when they heard stones being pelted onto the roof and that they came outside to inquire and moved towards the gate when the two accused herein, plus their brother Peter, who is still at large, confronted them while armed with pangas and that they injured PW1 who managed to escape but the deceased was not lucky as he was brutally killed and his body later dumped in a nearby river. 20.As the incident occurred at night, the key issue for determination is whether the identity of the eye witness (PW1) was free from the possibility of error. The court is conscious of the danger of convicting an accused on the evidence of a single witness without corroboration. In the case of R. v. Turnbull & Others [1976] 3ALL.ER 549 Lord Widgery CJ held as follows:“First, whether the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defense alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identification. In addition, he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not to use any particular form of words.Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made.How long did the witness have the accused under observation? At what distance? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? was there any material discrepancy between the description of the deceased given to the police by the witness when first seen by them and his actual appearance? In any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy, they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases, if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger. In our judgment, when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory condition by a relative, a neighbor, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it; that provided always, however, that an adequate warning has been given about the special need for caution.In evaluating identification evidence, particularly when it emanates from a single witness, the court must exercise great caution. In the case of Wamunga v R [1989] KLR 424, the court held that where the only evidence against a defendant is evidence of identification, the court must examine such evidence carefully and be satisfied that the circumstances of identification were favourable and free from the possibility of error. The court went on to state as follows:“It is trite law that where the only evidence against a defendant is evidence on identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.’’In the case of Maitanyi v Republic [1986] KLR 198 the court held as follows:1.Although it is trite law that a fact may be proved by the testimony of a single witness, this does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult.2.When testing the evidence of a single witness a careful inquiry ought to be made into the nature of the light available conditions and whether the witness was able to make a true impression and description.3.The court must warn itself of the danger of relying on the evidence of a single identifying witness. It is not enough for the court to warn itself after making a decision. It must do so when the evidence is being considered and before the decision is made.’’ 21.The evidence of PW1 was identification by recognition. It transpired from the evidence that the accused persons and PW1 as well as the deceased were relatives and lived as neighbours. In the case of Wamunga v Republic (supra), the Court of Appeal held that the identification by recognition is more assuring and more believable than the identification of a stranger since the witness has more information and details about the perpetrator. It transpired that PW1 and the deceased had tried to confront the assailants but they were overpowered and that PW1 sustained injuries but however the deceased succumbed. I have also taken caution as guided by the Court of Appeal for Eastern Africa in the case of Abdallah Bin Wendo & Another v R [1953] 20 EACA 166 where it was held:“Subject to certain well-known exceptions, it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is known that the conditions favouring correct identification were difficult. In such circumstances, what is needed is other evidence, whether it be circumstantial or direct pointing to guilt from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness can safely be accepted as free from the possibility of error.” 22.The accused persons herein in their defence have denied involvement. The 1st accused stated that he was at home when the deceased and his group stormed their home and caused a commotion and that a fight ensued but that he had not participated in it. The 2nd accused contended that he was not at the scene of crime as he had been away at his employer’s work place and that on coming back he was arrested by police and who ordered him to push a certain wheelbarrow and hence his fingerprints were lifted from it. The 2nd accused further added that the deceased had been grazing his cows on their crops and that they had lodged reports with the police. Their three witnesses were family members who were out to protect them by any means. However, it was the evidence of PW5 and PW9 that the 2nd accused led the police to the river where the body of the deceased was recovered. This therefore weakens the alibi defence of the 2nd accused. In the English decision of Republic v Johnson 46 CR APP. R 55 [1961] 3 ALL ER 969 the defence of alibi was described as follows:“Though an alibi is commonly called a defence, it is to be distinguished from a statutory defence such as insanity or diminished responsibility and is analogous to a defence such as self defence or provocation. A prisoner who has put forward an alibi as an answer to a charge does not assume any burden of proving that answer and it is a misdirection to refer to any burden as resting on the prisoner in such a case.”Again, in the case of Uganda v. Sebyala & Others [1969] EA 204 the learned Judge quoted a statement by his Lordship the Chief Justice of Tanzania in Criminal Appeal No. 12D 68 of 1969 where his lordship observed:“The accused does not have to establish that his alibi is reasonably true. All he has to do is to create doubt as to the strength of the case for the prosecution. When the prosecution case is thin, an alibi which is not particularly strong may very well raise doubts.” 23.It is noted that the 2nd accused did not give the prosecution the requisite early warning so as to enable the prosecution to investigate and interrogate the alibi in time before the defence hearing commenced. The 2nd accused’s alibi defence must be weighed against the evidence tendered by the prosecution so as to establish whether or not he was placed at the scene of crime. It is instructive that the exhibits taken to the Government Chemist at Kisumu were analysed by Polycap Lutta Kweyu (PW10) who established that the DNA profile generated from the bloodstained grey short sleeved shirt was a mixed DNA profile of the deceased and the 2nd accused herein. This therefore left no doubt about the involvement of the 2nd accused in ferrying the body of the deceased using a wheelbarrow to a nearby river. In any event, it was the 2nd accused who led police officers and members of public to the river where the body of the deceased was recovered. I find that even if the case entirely rests on circumstantial evidence, the test to be considered is the one laid down in the case of Sawe v. Republic [2003] KLR 364 where the Court of Appeal held as follows:“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 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.” 24.Looking at the entire evidence, it is my considered view that there was no other co-existing circumstances weakening the chain of events and left no doubt about the two accused’s involvement in the crime and their guilt. I further find that the accused’s alibi did not pass muster or weaken the overwhelming evidence by the prosecution which squarely placed the accused persons at the scene of crime. It is instructive that upon PW1 being attacked by the accused persons, the deceased remained behind at the scene as PW1 dashed home and that the last seen doctrine must come into force to lead to the conclusion that it is only the two accused herein and the one still at large to render an explanation as to how the deceased met his death. It is also instructive that the finger prints lifted on the wheelbarrow were established to belong to the 2nd accused and thus the one who had loaded the body of the deceased onto the said wheelbarrow and later tossed the same into a nearby river. It is also instructive that it was the said 2nd accused who led the police officers to the river where the body of the deceased was recovered. The defence evidence did not weaken or cast doubts on that of the prosecution which is quite overwhelming against both accused herein. 25.After carefully analyzing the entire evidence, iam convinced by the evidence of the prosecution that the accused persons herein together with their younger brother one Peter Okoth who is still at large were placed at the scene of crime. They were recognized by PW1 who was a relative and neighbour. PW1 stated that he was able to recognize the accused persons herein and one Peter as it was not that dark and that he had known them very well. It transpired from the evidence of both accused and their witnesses that the family of the deceased and PW1 had been grazing their cows on crops belonging to the accused’s family and hence the hatred which led to the killing of the deceased. Iam satisfied that the prosecution has managed to prove its case within the threshold of proof which is beyond any reasonable doubt. The defence evidence has not shaken that of the prosecution in any way. 26.In the result, it is my finding that the prosecution has proved its case against both accused herein beyond any reasonable doubt. I find the accused herein Edwin Odhiambo Ogola and Lucas Omondi Ogola guilty of the charge of murder and are convicted accordingly. DATED AND DELIVERED AT SIAYA ON THIS 22ND DAY OF MAY 2026.D. KEMEIJUDGEIn the presence ofEdwin Odhiambo Ogola.........................................1st AccusedLucas Omondi Ogola.................................................2nd AccusedM/s Kilonzo for Oduor...........................................for Both accusedSoita.........................................................................for ProsecutionMourine.......................................................Court