[2022] KEHC 15162 (KLR)

Republic v Ogutu (Criminal Case E010 of 2022) [2022] KEHC 15162 (KLR) (7 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15162 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Case E010 of 2022

RE Aburili, J

November 7, 2022

Between

Republic

Prosecution

and

Sylvester Odhiambo Ogutu Alias ‘Opija

Accused

Judgment

1. The accused person herein is Sylvester Odhiambo Ogutu alias Opija. He is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code Cap 63 Laws of Kenya. The particulars of the information dated 15/3/2022 as amended on 24/5/2022 are that on the 16th day of April 2021 at Township Location in Siaya Sub County within Siaya County, he murdered one DAVID OMONDI OTIENO. The accused person pleaded not guilty to the charge on 29/3/2022 and on the amended information on 24/5/2022.

2. The Prosecution called 8 witnesses whose testimony is summarized herein below.

The Prosecution’s Case 3. PW1 Kennedy Opiyo Omondi, a Senior Registered Clinical Officer Registration No. 10799 with the Clinical Officers’ Council testified that he previously worked at Siaya County Referral Hospital. He testified and produced the P3 report for David Omondi Otieno aged 30 years old as at 26/4/2021, who was an inpatient at Siaya County Referral Hospital, admitted on 16/4/2021, File No. 294159/020437.

4. It was PW1’s testimony that David reported to have been stabbed with a sharp object in the abdomen on 16/4/2021 at around 10 a.m. next to Bliss Clinic within Siaya Town by a person well known to him. It was his testimony that David was in severe pain lying in Hospital supported by his brother but that David appeared clinically stable.

5. PW1 testified that David had been taken to theatre 3 times on 16th, 17th and 19th April and that there was a linear surgical cut wound with foul swelling discharge. He further testified that David had a disdented abdomen and a colostomy bag insitu as he could not pass stool. He further testified that David had suffered liver lacerations and transverse colon laceration due to a penetrating injury with retro petronil haemorrhage and was classified as category ‘B’ patient - Critical but out of danger.

6. PW1 testified that the approximate age of injury when he examined David was 10 days and that treatment was ongoing. He further testified that the probable cause of injury or the weapon used was a sharp object. It was his testimony that the treatment received prior to examination was an urgent laparotomy, blood transfusion, given intravenous fluids, intravenous anti-biotics, valium and daily nursing care. PW1 assessed the degree of the injury to be maim and signed the P3 form which he produced as PEX 1. He further testified that he relied on a number of documents in the assessment including:i.An Outpatient Card Number 0110852021 for David Omondi Otieno,ii.Ultra sound Report,iii.1st Operation notes done on 16/4/2021 by Dr. Nyakiti, Dr. Phillip and Dr. Stella,iv.2nd Operation notes done on 17/4/2021 done by Dr. Nyakiti assisted by Dr. Carole,v.3rd Operation notes of 19/4/2021 done by Dr. Nyakiti assisted by Mabel and Naim and Omollo dated 19/4/2021.

7. PW1 produced the Outpatient Card No. 0110852021 for David Omondi Otieno as PEx2. He further testified that apart from examining the documents, he physically examined the patient David Omondi Otieno.

8. In cross-examination, PW1 stated that he collected the documents when he visited the patient whom he visited from time to time to see how he was fairing on. It was his testimony that the patient was eventually discharged from hospital.

9. PW2 No. 66068 Corporal Alfred Kiprop from Siaya Police Station testified that on the 16/4/2021 he was at the Crime Office and was minuted to follow up an assault case of David Omondi Otieno who was then admitted at Siaya Referral Hospital. It was his testimony that he visited the injured and found him just returning from theatre but the patient, David, could not talk.

10. PW2 testified that he returned to hospital on 17/4/2021 and found David in a Male ward with a stab wound on the abdomen so he issued him with a P3 form then recorded his statement at the hospital ward and recorded statements of other witnesses at the police station. It was his testimony that the reportees, Eric Odhiambo and Rodgers Juma, went to the police station on 16/4/2021 and surrendered the knife carried by Eric Odhiambo which he was given by the Doctor. He clarified that Erick Odhiambo was the deceased’s brother.

11. PW2 further testified that on the 17/4/2021, the accused was taken to the police station by boda boda riders who claimed that the accused had stabbed one of their own. PW2 described the knife that was brought to him as an American Army knife written USA Saper with a hole, a compass and a plastic handle jungle green in colour. He further testified that he recorded David’s statement from his hospital bed.

12. PW2 testified that he noted David was in great pain but he was talking and spoke mixed Kiswahili and English though PW2 recorded his statement in the English language. He further testified that David signed the said statement and explained to PW2 what had happened. PW2 produced the statement of the deceased as PEX3.

13. PW2 further testified that Eric said that the doctor removed the knife from the deceased’s abdomen during the operation. He identified the accused as the person who was brought to the police station in connection with the assault on the deceased, David Omondi Otieno. He stated that he did not know the accused prior to that date and that they initially charged him with grievous harm but later when the deceased came out of hospital and succumbed to the injuries, they handed over the file to DCI to open a Murder file.

14. In cross-examination, PW2 confirmed that he was Corporal Alfred Kiprop. He stated that he recorded Statements of witnesses on 17/4/2021 and that also on that date, he recorded the statement of David Omondi Otieno in the hospital ward at Siaya Referral Hospital.

15. It was his testimony that from the statement, the complainant told him that he differed with the accused over Kshs. 200 which he gave to the accused to register the deceased as a member of Bodaboda umbrella body. PW2 further testified that five bodaboda people brought the accused to the police station. He stated that the accused was not assaulted and that he did not take the accused to hospital for treatment on 17/4/2021.

16. PW3 Elvis Omondi Olunga testified that on the 16/4/2021 at about 9. 00am, he was seated outside his hotel when a customer came asking him to lend him Kshs.50 to go and repair his motorcycle. He testified that he gave him Kshs.60 in 20 shilling coins after which the customer left and shortly thereafter, PW3 saw the customer having a scuffle with another person whom PW3 did not know.

17. PW3 testified that he did not know the person his customer was having a scuffle with and neither did he know his customer’s name. It was his testimony that shortly thereafter, he saw his customer lying on a motor cycle looking weak whilst being taken to hospital. He testified that the man that his customer was having a scuffle with then ran behind PW3’s hotel, towards the garage and upon enquiry from the people nearby on what was happening, he was informed that his customer had been stabbed by the man who had a scuffle with his customer.

18. He testified that the man who ran towards his hotel picked a motor cycle near the garage then rode off towards Shell Petrol Station. It was his testimony that his customer had given him his phone as collateral for the Kshs. 60 which PW3 had lent him and so he visited him at Siaya Referral Hospital but could not see him because he was in serious condition.

19. He further testified that the person who had had a scuffle with his customer went to PW3 and asked for his injured customer’s phone as he paid the Kshs. 60 borrowed by the injured customer. It was his testimony that his customer had the scuffle with the other man for about 2 minutes before they moved towards the garage and within no time as PW3 got into his hotel to serve his customers, in about 7 minutes, he got out and saw his customer injured and on the motorcycle. PW3 identified the man who had a scuffle with his customer as the accused in the dock.

20. In cross-examination, PW3 stated that he was in the hotel business and had done the business for two years. He stated that he knew the people who went to his hotel and those who operated near it. He further testified that he saw the accused for the very first time on 16/4/2021. He stated that he did not see the stabbing of the deceased and that he only saw the two men having a scuffle after which he got into the hotel to serve a customer and when he got out, he saw the man running towards his hotel and then saw his customer on a motorcycle looking weak as he was being escorted to hospital. He further testified that he then got to find out why the man was running and where to and that is when he saw him pick/get onto a motorcycle and ride off. PW3 testified that from where he was at the hotel was a distance of about 10 metres to where the scuffle took place and that the incident took place for a short period.

21. PW4 Eric Odhiambo Otieno, a public health practitioner and tutor at Kenya Medical Training College (KMTC) on a part time basis testified that the deceased was his cousin. He recalled that on the 16/4/2021 at about 1. 00 pm, he received a call from Michael Owuor asking him if he knew David Omondi who had been admitted at Siaya Hospital.

22. He stated that he went to Siaya Hospital and found David lying on a couch and that David told him that he had been stabbed by someone well known to him over Kshs.200. PW4 testified that he saw David with a stitched abdomen and that David told him that he had given Opija Kshs.400 for construction of a bodaboda shed but Opija did not refund all the money and only paid Kshs. 200. PW4 further stated that David told him that when he went for the balance of Kshs. 200, they had a scuffle and as he was boarding his motorcycle to leave, Opija stabbed him but that he removed the knife from his abdomen on his way to hospital.

23. PW4 testified that he saw the knife next to David and that the handed to PW4 the said knife after which he went and reported to the police and handed the knife to the police in the company of Rodgers, David’s church mate at about 5pm. He further testified that on the 17/4/2021, a Saturday at around 11. 58am, he went to the police and recorded his statement after Opija had been arrested by bodaboda operators.

24. PW4 testified that he witnessed the deceased’s postmortem as a family member. He further testified that when David was in hospital, he, he, PW4 paid all the hospital bills of over Kshs. 390,000. It was his testimony that he assigned his younger brother to care for David and that he coordinated the treatment from 16/4/2021 until 3/9/2021 when David was discharged after close to 5 months.

25. PW4 further testified that David was above 18 years and that he was to go back to hospital for review. He stated that he used to meet David regularly and that he was a healthy person with no medical conditions.

26. In cross-examination, PW4 stated that he did not witness the incident. He testified that he took the knife to the police station on 16/4/2021 in the evening. It was his testimony that the knife was given to him by hospital personnel. He further testified that when he visited David in hospital, David urged him in Dholuo not to leave the knife in hospital as it might be taken by his assailant. He reiterated that in his statement, he mentioned the knife which David told him was removed from his body, on his way to hospital.

27. PW5 Joseph Achola Odhiambo, the Chairman of Bodaboda, Siaya & Alego Usonga testified that on the 16/4/2021 at about 1. 00am, he was at their bodaboda office when one of their riders known as “Mwalimu thenge” called him to go to the stage as one rider had stabbed one of them.

28. He testified that he went and found that the injured rider had been escorted to Siaya Hospital and so they followed him there and found him in theatre. It was his testimony that they went to look for the assailant whom “Mwalimu” called “Opija” but never traced him.

29. PW5 testified that on the 17/4/2021, they went back to hospital to see the injured and that that he then received a telephone call that Opija had been seen at Walias Supermarket. He further testified that he had not known “Opija” so he was identified to him by one, “Mwalimu”. It was his testimony that he went near Opija who was on his motorcycle, spoke to him and searched him to ensure he had no weapon after which he led him to their office where he interrogated him on why he had stabbed his colleague.

30. PW5 testified that Opija told him that they had a scuffle over Kshs.200 which the deceased was claiming from Opija. It was his testimony that he led Opija to the Police Station but that some riders assaulted Opija as he led him to Siaya Police Station. He identified Opija as the accused in the dock.

31. PW5 testified that he also went back to the hospital to see the injured with police officers. He stated that on the 16/4/2021 he visited the injured and that the police also recorded the injured’s statement although he was in pain.

32. In cross-examination, PW5 stated that he arrested the suspect near the police station but first took him to their office before escorting him to the police station.

33. PW6 Dr. Juma Gabriel Wekesa testified that he conducted the Postmortem on the body of David Omondi Otieno at Siaya County Referral Hospital on 24/2/2022 at 4 pm. PW6 testified that the deceased was a 30-year-old male and that on external examination, he found a midline abdominal execution with hypertrophic cut.

34. Dr. Wekesa testified that there was a healed stab wound on the right abdominal wall while internally, in the digestive system, there was a healed stab scar on the right abdomen and an operation midline scar following an operation. He further testified that there were multiple intestinal adhesions (scars) between the intestinal loops and the abdominal wall and that all other systems were normal.

35. As a result of the postmortem, they found the cause of death to be due to intestinal obstruction following multiple abdominal adhesions both post explorative laparotomy after (stab wound in abdomen was operated on) and abdominal stab wound. He testified that he issued a Death Certificate No. 1581702. Dr. Wekesa produced the Postmortem report as PEX 4.

36. In cross-examination, Dr. Wekesa stated that he found a healed stab wound in the abdomen and internally, they also found a healed stab scar on the right abdomen. He further stated that they found multiple internal abdominal adhesions that were caused by the stab which moved around and caused multiple adhesion injuries to other parts of the intestines.

37. PW7 Polycarp Lutta Kweyu, a Government Analyst at Kisumu Government Chemist, testified and produced a report dated 8/5/2022 which he prepared in response to an Exhibit Memo Form dated 1/3/2022 from DCI Siaya prepared by Sergeant John Nzive with 2 items namely: A military knife in a brown envelope marked ‘B’ and Nails from David Omondi Otieno indicated as deceased in a clear plastic container marked ‘C’.

38. He testified that they were requested to carry out a DNA profiling and indicate any similarity between the two items and from his analysis, he concluded that the DNA profile generated from the blood stains on the knife matched the DNA profile generated from the reference sample nail of David Omondi Otieno, (deceased).

39. He produced the DNA Analysis report dated 18/5/2022 and signed as Exhibit No. PEx 5.

40. PW8 No. 58242 Sergeant John Nzive attached to DCI Siaya as an Investigator testified that on the 22/2/2022 at 11:30am, he was called by DCIO Chief Inspector Ole Kilua who instructed him to investigate a file that was forwarded to them by DCI Siaya Police Station. He testified that the accused was Sylvester Odhiambo Ogutu alias Opija who was charged with the offence of grievous harm contrary to Section 234 of the Penal Code and the complainant was David Omondi Otieno.

41. PW8 testified that he was also handed one exhibit which was a knife. He testified that the police file letter indicated that the complainant had died while undergoing treatment at Siaya County Referral Hospital on 14/2/2022, so they were to investigate a possible case of murder. It was his testimony that he prepared a postmortem form which postmortem was done on 24/2/2022 by Dr. Juma at Siaya County Referral Hospital and the cause of death established as per the Postmortem Report.

42. PW8 testified that the accused was already in Court attending a session in the grievous harm case on the 15/3/2022 and that PW8 went and arrested him and charged him with murder. He further testified that the Investigating Officer Corporal Kiprop briefed him on the investigations already conducted and he established that witness statements had already been recorded.

43. He further testified that the Investigating Officer informed him that MFI 7 –the knife was brought to the police station by the reportees who got it from the hospital upon admission of the victim. It was his testimony that the deceased was assaulted on 16/4/2021 and he had been operated on at the hospital. PW8 produced MFI 1 - MFI 6 being Xray request form, Ultra sound report, operation notes for 16/4/2021, operation notes for 17/4/2021, operation notes for 19/4/2021, post anaestacia case notes and a silver knife with a shiny jungle green plastic handle as exhibits PEx6,7,8,9,10, 11 and 13.

44. PW8 testified that he took the samples of exhibits for DNA sampling to Kisumu Government Chemist on 1/3/2022 for analysis using an Exhibit Memo MFI 8 dated 28/2/2022. He produced it as PEX 12. It was his testimony that he did not recover any exhibits from the accused. He testified that they could not get finger prints from the knife as it had stayed for almost a year and it had been touched by many people. PW8 also identified Sylvester Odhiambo as the person he rearrested and the accused in court.

45. In cross-examination, PW8 stated that he did not record any witness statement but perused those statements already recorded. He testified that he learnt that the incident took place outside Siaya County Referral Hospital. It was his testimony that he did not find out from the accused about his residence.

The Defence Case 46. Placed on his defence, the accused Sylvester Odhiambo Ogutu testified on oath and maintained his innocence. He stated that the deceased David Omondi Otieno was his friend hence he could not kill him. He stated that he knew the deceased when the latter worked at the Kenya medical Training College at Siaya after which he started riding motor cycles. The accused testified that he gave the deceased his motorcycle to ride and that in turn, the deceased would pay the accused.

47. The accused recalled that on the 16/4/2021, he found when his wife had gone to give birth so he took his motor cycle for a wash. He testified that David went and asked him as to where the accused had been all that time with the deceased’s money and that the accused responded that he would go and get him the money.

48. The accused testified that the deceased started beating him and tore his clothing. He testified that he saw his mother in law pass by going to see his wife in the ward and that he tried to hide so that she does not see him naked and that, that is when he heard people screaming calling his name ‘Opija’ Opija. The accused testified that when he looked back, he saw David approaching him and hiding something in a jacket.

49. It was his testimony that when the deceased reached near him, the accused held the deceased’s hand and that the deceased remained behind as the accused went away. The accused testified that the deceased then started going towards the Siaya County Referral Hospital while he, the accused, went on his way and returned to his house until the following day when a certain Chief called and asked him to go pick him on a motor cycle from Walia’s Supermarket. That when he went to pick the Chief, he was invaded by bodaboda riders who arrested him and escorted him to hospital where David was but the doctors chased them. It was his testimony that the riders assaulted him and took him to the police station. The accused reiterated that David was his friend. He further testified that he saw the knife for the first time in court. He denied that the knife was his. It was his testimony that his family raised Kshs. 170,000 and paid David’s Hospital bill. The accused denied knowing the person who killed David.

50. In cross-examination, the accused stated that he owed the deceased Ksh. 200 and that this debt was the cause of the dispute between them. He further stated that he had not paid the said debt but that he had also not refused to repay. It was his testimony that the incident happened near the hospital at Siaya. He stated that he lived at Rabango but did not know where David lived. He further stated that he paid Kshs. 170,000 hospital bill for the deceased who was his friend and who was injured.

Analysis and Determination 51. I have considered the evidence adduced by the prosecution witnesses and the defence proffered by the accused person. I find the main issue for determination to be whether the prosecution proved its case against the accused to the required standard of beyond reasonable doubt. In other words, has the prosecution proved beyond reasonable doubt all the elements of murder as stipulated in section 203 as read with section 206 of the Penal Code?

52. Section 203 of the Penal Code provides that:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

53. In Anthony Ndegwa Ngari v Republic [2014] eKLR the Court of Appeal stated that:“For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.”

54. In the instant case, therefore, the question is whether the prosecution proved beyond reasonable doubt that:a.there was the death of the deceased and the cause of the said death;b.the death was caused by unlawful acts or omission;c.the accused committed the unlawful act/omission which caused the death of the deceased;d.the accused had malice aforethought when he unlawfully killed the deceased.

55. On whether there was proof of death and the cause of the said death, the testimony of PW4, the deceased’s cousin was that he witnessed postmortem on the body of the deceased as a family member. PW6, Dr. Juma Wekesa who carried out the deceased’s postmortem on the 24/2/2022 testified that after examining the deceased’s body he found the cause of death to be intestinal obstruction following multiple abdominal adhesions both post explorative laparotomy after (stab wound in abdomen was operated on) and abdominal stab wound. Accordingly, I find that the prosecution has established beyond reasonable doubt this element of death and the cause thereof.

56. As to whether the deceased’s death was caused by an unlawful act or omission, Article 26 (1) of the Constitution guarantees every person the right to life. The post-mortem report prepared by PW6 revealed that the deceased’s cause of death was multiple abdominal adhesions both post explorative laparotomy and an abdominal stab wound. PW1, the Clinical Officer who attended to the deceased after the scuffle he had with the accused categorized the degree of injury sustained by the deceased as maim. I am persuaded beyond reasonable doubt that the deceased died as a result of an unlawful act and that those injuries were not inflicted by self.

57. As to whether it was the accused who unlawfully killed the deceased, PW3 testified that he witnessed the deceased, who was his customer get into a scuffle with a man whom he identified as the accused herein and that minutes later, he saw his customer bending on a motorcycle and looking very weak while the accused was running away.

58. PW2 CPL Kiprop visited the deceased who was admitted in hospital and recorded his statement on what had transpired and the deceased recorded and signed a statement to the effect that he had been stabbed by the accused herein over a 200 shilling debt and that the accused was escorted to the police station on allegations that he had stabbed the deceased. PW2 produced as an exhibit the statement recorded by the deceased.

59. PW4 the cousin to the deceased received information on the deceased’s injury so he visited him at the Siaya County Referral hospital and that the deceased told him that he had been stabbed by someone known to him over a 200 shilling debt that the deceased was claiming from his assailant.

60. PW5, the chairman of the Siaya County & Alego Usonga bodaboda testified that on the 16/4/2021 while at their bodaboda office, he received a call from the stage that one rider had stabbed one of them. He testified that they proceeded to the hospital where the victim had been taken but found him in theatre and that they went to look for the assailant called “Opija” but never traced him.

61. On his part, the accused denied the charges and stated that the deceased attacked him and tore his clothes and that he held the deceased’s hand when he saw the deceased hide something in his shirt and so he, the accused hid to avoid his mother in law seeing his nakedness. He testified that after he foiled the deceased’s attack, he went on his way while the deceased walked towards the Siaya County Referral Hospital.

62. In his defence, the accused seemed to raise the defences of self-defence although he denied stabbing the deceased. In the case of Mwaura v Republic [1980] KLR 127 the Court of appeal held that:“The burden of proof remains on the State throughout to establish the case against the accused beyond reasonable doubt. Where the defence raises an issue such as provocation, alibi, self-defence, the burden of proof does not shift to the accused, instead the prosecution must negate that defence beyond reasonable doubt and the accused assumes no onus in respect of any such defence.”

63. It is clear from the above holding that the accused does not bear the burden of disproving the evidence adduced by the prosecution witnesses, or proving his innocence.

64. According to the accused person, the deceased attacked him and tore his clothes and that he merely held the deceased’s hands before releasing him and the deceased went his way. However, the injuries sustained by the deceased were so severe involving the multiple tears of his intestines, which cannot be explained by the accused actions of simply moving away from the deceased as narrated by the accused. PW1 categorised the deceased’s degree of injuries as maim. There is overwhelming evidence that negates the accused’s defence that he was the victim and I find that the defence of self-defence does not therefore avail the accused.

65. I find that the accused’s version of what transpired is not convincing. The same is disjointed and unsupported such that even if the accused was to remain silent which is in his right, the evidence adduced by the prosecution witnesses as a whole was overwhelming that it was the accused person who was seen having a scuffle with the deceased, which fact was not denied or challenged, and that it was at that moment that the accused stabbed the deceased in the abdomen before escaping and leaving the deceased at the scene. That evidence includes a dying declaration made by the deceased and produced as PEx3 by PW2, in which the deceased stated that it was the accused who stabbed him.

66. PW2 Corporal Alfred Kiprop recorded the deceased’s statement in English and produced as PEx3 in which the deceased stated that the accused was the one who stabbed him following a disagreement over kshs 200 which the deceased had given to the accused. The deceased subsequently died as a result of the said injuries. The accused admitted that he owed the deceased kshs 200 and that the deceased confronted him and tore his clothing and that as he was getting away from the deceased, he saw the deceased holding something in his shirt so he just pushed the deceased’s hand away and because he was naked, upon seeing his mother inlow pass by going to visit his wife who had given birth in hospital, he went away to avoid being seen by his said mother inlow. I am unable to find this defence as credible. Iam also unable that the deceased stabbed himself or that he was during that scuffle with the accused, attacked by someone else and stabbed in the abdomen as the evidence on record by PW3 is clear that the only person he saw having a scuffle with the deceased before the deceased was seen lying on his motorcycle and weak was the accused. The accused himself in his defence too makes it clear that he was the last person seen with the deceased following a scuffle over the kshs 200 debt that he owed the deceased.

67. It is my finding that the statement made to Corporal Alfred Kiprop (PW2) by the deceased amounted to a dying declaration. In the case of Philip Nzaka Watu v Republic (2016) eKLR the Court of Appeal stated that:“Under section 33(a) of the Evidence Act, a dying declaration is admissible in evidence as an exception to the rule against admissibility of hearsay evidence. Under that provision, statements of admissible facts, oral or written, made by a person who is dead are admissible where the cause of his death is in question and those statements were made by him as to the cause of his death, or as to any of the circumstances of the transaction leading to his death. Such statements are admissible whether the person who made them was or was not expecting death when he made the statements. Clearly by reason of section 33 (a), there is no substance in the claim that a dying declaration constitutes inadmissible hearsay evidence…“The general principle on which a dying declaration is admitted in evidence is that it is a declaration made in extremity when the maker is at a point of death and the mind is induced by the most powerful considerations to tell the truth. In Kenya, however the admissibility of dying declaration need not depend upon the declarant being, at the time of making it, in a hopeless expectation of eminent death. There need not be corroboration in order for a dying declaration to support a conviction but the exercise of caution is necessary in reception into evidence of such declaration as it is generally unsafe to base a conviction solely on the dying declaration of a deceased person.”

68. The dying declaration in this case was nevertheless corroborated by eye witness accounts and it is therefore admissible as evidence that makes the case against the accused person even stronger. I am therefore satisfied that the prosecution has proved beyond reasonable doubt that it was the accused herein who unlawfully killed the deceased and that there was no mistaken identity.

69. As to whether the prosecution proved beyond reasonable doubt that the accused had malice aforethought when he unlawfully killed the deceased, Section 206 of the Penal Code defines malice aforethought as follows:“206Malice 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 of any person who has committed or attempted to commit a felony.”

70. In Republic v Stephen Sila Wambua Matheka [2017] eKLR it was held that:“The courts in interpreting the provisions of section 206 have stated as such in various authorities. In the classic case of Republic v Tubere S/O Ochen [1945] 12 EACA 63 the court held that an inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before, during and after the attack. In the Ogelo v Republic [2004] 2KLR 14 the appellant in this case chased the deceased and another. He caught up with the deceased and stabbed him with a knife on the chest. The deceased died of the stab wounds. The court held interalia that by dint of section 206 (1) an intention to cause death or grievous harm malice aforethought is deemed to have been established by evidence presented by the prosecution. Malice aforethought can also be inferred from the manner of killing. See the case of Ernest Bwire Abanga Onyango v Republic [1990] Cr. Appeal No. 32 of 1990. The principle here as enunciated under section 206 and the authorities is the fact of establishing by evidence that the accused conceived the criminal mind before converting that in the mind into acts of omission to commit the murder.”

71. In this case, PW6 Dr. Juma who carried out an autopsy on the body of the deceased found the cause of death to be due to intestinal obstruction following multiple abdominal adhesions both post explorative laparotomy after (stab wound in abdomen was operated on) and abdominal stab wound. PW6 noted that there was a stab wound that was healed on the right abdominal wall while internally, in the digestive system, there was a healed stab scar on the right abdomen and an operation midline scar following an operation. He further found multiple intestinal adhesions (scars) between the intestinal loops and the abdominal wall.

72. The deceased died as a result of the injuries sustained in the assault which took place in broad daylight. The knife which was pulled from the injury site by the deceased and produced as an exhibit is frightening. It is such a sharp knife that penetrated into the body of the deceased and as established through DNA profiling, the blood found on it matched the DNA profile of the deceased David Otieno.

73. I am persuaded beyond reasonable doubt that the accused must have known and he ought to have known that piercing such a weapon into a human being’s abdomen would cause him grievous harm or even death. I find that the accused had the necessary malice aforethought to kill the deceased.

74. For the above reasons, I find and hold that the prosecution has established all the ingredients of the offence of murder against the accused person herein Sylvester Odhiambo Ogutu alias Opija beyond reasonable doubt. I therefore find and hold the accused person herein Sylvester Odhiambo Ogutu, alias Opija is Guilty of the offence of the murder of David Omondi Otieno as charged and I convict him accordingly.

75. Sentence shall be pronounced after records and mitigation.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 7TH DAY OF NOVEMBER, 2022. R.E. ABURILIJUDGEREPUBLIC OF KENYAIN THE HIGH COURT OF KENYA AT SIAYACRIMINAL CASE NO. E010 OF 2022STATE..................PROSECUTIONVERSUSSYLVESTER ODHIAMBO OGUTU ALIAS ‘OPIJA’.....ACCUSEDRULING ON SENTENCE 1. The accused person herein Sylvester Odhiambo Ogutu alias Opija has been found guilty of the offence of Murder contrary to Section 203 of the Penal Code and convicted accordingly. He has mitigated. The prosecution says that he is a first offender as they do not have his criminal records.

2. The accused person mitigates that he is aged 30 years old. He is therefore a young person. Yes and he says he is remorseful and pleads for leniency. That he has a wife and young children who depend on him as his wife became blind after she attended this court during the hearing of this case against the accused person! However, the vicious manner in which the accused attacked and scooped life out of the deceased who he claims was his friend is frightening indeed. I find the accused herein to be a very dangerous person who walked around dangerously armed and ready to strike against any slightest provocation.

3. By the deceased asking for refund of his money, that in my view cannot be provocation to attract the fatal stabbing which he received. The accused has a family yes and now he claims that his wife became blind when she came to court to witness this case. That is neither here nor there. He also says that he has young children who depended on him. That may be so, but he is a dangerous person in the society who has no respect for life. Live and let live. The life of the deceased was precious to his family too. He deserved to live. He earned a decent living by riding a motor cycle.

4. The accused escaped after stabbing the accused. The deceased died a very painful death from the injuries that he sustained. His family have lost a loved one that is why they spend money towards his treatment hoping that he would recover, all in vain. Unfortunately, the accused’s family must just live with the consequences of his irresponsible criminal acts that led to the loss of a precious life.

5. Remorse in the circumstances of this case only persuades this court not to impose the mandatory sentence which is death as stipulated in section 204 of the Penal Code, and in view of the Francis Muruatetu & another v Republic [2017]e KLR decision that death sentence is not necessarily mandatory, having regard to the mitigations and circumstances of each case.

6. I find that the accused deserves custodial sentence. His family will have to live with his temporary absence as the deceased’s family lost him forever.

7. The accused must be rehabilitated outside the society as he walks with dangerous weapons. The deceased was not armed therefore this court does not see how he could have been a threat to the accused person. I have considered the age of accused and mitigation. I exercise discretion and sentence the accused person Sylvester Odhiambo Ogutu alias Opija to service thirty five (35) years imprisonment.

8. Right of Appeal to the Court of Appeal is 14 days guaranteed.

9. I so order.

10. This file is hereby closed.

DATED, SIGNED AND DELIVERED AT SIAYA, THIS 7TH DAY OF NOVEMBER, 2022. R.E. ABURILIJUDGE