[2022] KEHC 15338 (KLR)

Republic v Ogot & another (Criminal Case E016 of 2021) [2022] KEHC 15338 (KLR) (14 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15338 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Case E016 of 2021

KW Kiarie, J

November 14, 2022

Between

Republic

Prosecution

and

Kevin Otieno Ogot

1st Accused

Moses Omondi Paul Sumba

2nd Accused

Judgment

1. Kevin Otieno Ogot and Moses Omondi Paul Sumba are 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 25th day of February, 2021 at Shauri Yako Estate, Homa Bay Sub County of Homa Bay County, jointly with another not before court murdered Janevive Adienge.

3. Janevive Adienge was born with some disability. The second accused informed the mother of the deceased that someone was going to treat her (deceased) at home. On February 25, 2021 the first accused went to her home and using a syringe gave the child some “medicine” orally and the deceased started to convulse. She subsequently died.

4. In his defence the 1st accused contended that while conducting his boda-boda business, one Lucas gave him some items to take to his (Lucas) sister in-law. After giving the items to the woman, he heard screams and he was arrested on allegations that the items had caused a problem.

5. The second accused on his part contended that at the time of the alleged offence, he was admitted at Migori County Referral hospital.

6. The issues for determination are:a.Whether the first accused was falsely implicated in the offence or not;b.Whether the alibi defence of the 2nd accused was displaced or not;c.Whether either or both accused caused the death of the deceased or not; andd.Whether the offence of murder was proved.

7. According to the evidence of Joyce Adhiambo (PW3) the second accused who is related to her, invited her to Homa Bay County Referral Hospital in July 2020 and promised her assistance for the deceased who was disabled. He informed her that some help was going to come from a non-governmental organization. On that day he gave her some shopping of some consumable items.

8. Previously, Lucas Odhiambo Okello, a maternal uncle of Joyce (PW3) had collected her child’s birth certificate, her KRA PIN and a copy of her identity card and informed her that he was taking them to a non-governmental office.

9. It has emerged from the evidence of Derrick Oduor Okindo (PW6) Lucas Odhiambo Okello had taken a policy number PMC8012501. The beneficiary of the policy was Lucas Odhiambo in the event Joyce Adhiambo (PW3) passed on and in the event Janevive passed on, Joyce Adhiambo (PW3) was to be the beneficiary. This policy is dated June 5, 2020. This is the background to this case.

10. Joyce Adhiambo (PW3) testified that on February 25, 2021 the first accused who was a stranger to her, called her. She went and met him and they went to her home. He gave her some forms to fill. The details of the child, her name and that of her husband were needed. This, according to what he told her, was to facilitate for the assistance of her daughter. He then gave some oral medicine to her daughter using a syringe. The child started to convulse. The accused left running and she raised an alarm. Members of public managed to arrest him.

11. The evidence of Tabu Jonathan Odiero (PW2) was that on February 25, 2021 at about 11 am he saw the first accused in company of Joyce. The two entered into the house of Joyce and after a short while he heard Joyce raise an alarm that he had killed her child. He saw the first accused running away with a syringe. He was arrested by boda-boda riders with the syringe.

12. Kevin Otieno Ogot (1st accused) contended that he innocently delivered some shopping items to Joyce after he was sent by Lucas. He contended that he was in the house of Joyce for about one minute. He also denied that he was arrested with any documents.

13. The evidence of Tabu Jonathan Odiero (PW2) and Joyce Adhiambo (PW3) was that the first accused had a syringe while running away and when he was arrested. This is the syringe Joyce Adhiambo (PW3) testified to have been used by the first accused to give some substance to the deceased. This evidence has displaced the defence of the first accused.

14. Whenever an accused person pleads an alibi, the onus is on the prosecution to prove falsity of it. In the case of Victor Mwendwa Mulinge vs Republic [2014] eKLR the Court of Appeal rendered itself thus:"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 Karanja v R, [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."

15. The second accused contended that he was admitted in hospital from February 22, 2021 to February 26, 2021 and produced receipts. He also called witnesses who supported his claim. All the receipts produced except the last one have been interfered with where the date appears. The last receipt produced is dated August 2, 2022. This cannot support his claim. This is an attempt to mislead the court. I find that his alibi defence is false.

16. The evidence against the second accused is circumstantial. In the case of Mohamed & 3others vs Republic[2005]1KLR 722 Osiemo Judge explained what circumstantial evidence is 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."

17. The circumstantial evidence adduced show that since 2020, the second accused was involved in the scheme. The inculpatory facts are incompatible with his innocence, and incapable of an explanation upon any other reasonable hypothesis than that of his involvement knowingly.

18. It would appear that this was a cleverly planned scheme to eliminate both the deceased and her mother for the benefit ultimately of Lucas Odhiambo. I make a finding that the two accused persons were in the plot in spite of their protestation.

19. In order to found conviction 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 any one 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.In the instant case, I find that the prosecution has proved the offence of murder against each of the accused. I accordingly find each of them guilty of the offence and convict him of the offence of murder.

DELIVERED AND SIGNED AT HOMA BAY THIS 14TH DAY OF NOVEMBER, 2022. KIARIE WAWERU KIARIEJUDGE