https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11476

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **CRIMINAL CASE NO. 3 OF 2019** **REPUBLIC …………………………………………….………………….PROSECUTOR** **VERSUS** **LUCAS NYANDIGA OJENGA …………………………….……..…… 1st ACCUSED** **BEN OMONDI ODEKA ……………………………………………….2nd ACCUSED** **JOSEPH OGOLO OJOWI ……………………………………………..3rd ACCUSED** **MARY SCHOLASTICA AUMA ………………………………………….4th ACCUSED** **JANE ANYANGO NYANDIGA …………………………………………5th ACCUSED** **JOSEPH ALUDA ONJENGE ……………………………………………..6th ACCUSED** **JUDGMENT** The Accused persons are jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code in five (5) counts. The Accused persons are jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code in five (5) counts The particulars to the 1st Count are that on the night of 28th day of February 2019 at around 23.30hours at Koluoch village, Rongo Sub County within Migori County in the Republic of Kenya the jointly with others not before the court murdered Maritha Amolo Dwalo The particulars to the 2nd Count are that on the night of 28th day of February 2019 at around 23.30hours at Koluoch village, Rongo Sub County within Migori County in the Republic of Kenya the accused persons jointly with others not before the court murdered Elida Akinyi Otieno The particulars to the 3rd Count are that on the night of 28th day of February 2019 at around 23.30hours at Koluoch village, Rongo Sub County within Migori County in the Republic of Kenya the accused persons jointly with others not before the court murdered Levia Atieno Otieno The particulars to the 4th Count are that on the night of 28th day of February 2019 at around 23.30hours at Koluoch village, Rongo Sub County within Migori County in the Republic of Kenya the accused persons jointly with others not before the court murdered Brenda Akoth Otieno The particulars to the 5th Count are that on the night of 28th day of February 2019 at around 23.30hours at Koluoch village, Rongo Sub County within Migori County in the Republic of Kenya the accused persons jointly with others not before the court murdered Cynthia Adongo Otieno. PW1 WILSON OKINYI from Kochia area testified that he was a student at Ondiche Primary School in Homa Bay County and that he was 16 years old. He said he was born in 2002. He recalled that in February 2019 he used to live in Opapo, Kamagambo in Migori County with his parents together with his brothers and sisters. He said he was currently living with his parents in Homa Bay County. He said his father is called ELIJAH OTIENO DUALO and his mother is called MONICA. PW1 said he knew MARITA AMOLO DUALO. Who was now dead. That he lived with her in Kamagambo. He said he also knew HELIDA AKINYI OTIENO who was his mother. He also knew LEVIA ATIENO Otieno who was his sister. He said he also knew BRENDA AKOTH ATIENO who was his sister. He also knew CYNTHIA ADONGO OTIENO who was also his sister. He said all the five were dead. PW1 said that all the accused persons are their neighbours and he had known them for many years from his childhood when he was in Baby Class. He said that on 28/02/2019 at around 09:30 pm he was inside the house of his brother called HESBORN OMONDI. He had gone there to sleep after they had taken supper as a family. That suddenly he was woken from sleep by screams. That he heard the accused persons saying that they were going to kill a witch. It was A1 saying so in dholuo language. He referred to PW1’s grandmother as the witch. He said that the 1st accused person’s voice came from a distance of about 15 metres away. PW1 said he woke up and wanted to go out but realised that the door had been locked from outside. That they broke the door and went out of the house and he saw the main house on fire. That he cried and ran back into the house. He was held and beaten by the people who wanted to take him into the burning house. Fortunately, he fell down as they carried him to the fire and that is why he ran back into the house. That it is true he was assaulted. He said he could remember A1 and his wife (A5) and A4 are the ones who held him and were taking him into the fire. Pw1 said that there were security lights in their home and the attackers had torches. That they did not pursue him when he fell and he ran to his uncle Simeon Dualo’s place about 75 metres away from their house. That by the time he was running he didn’t know where his family members were. That he stayed at the uncle’s place for about one hour until Police officers came to the scene. That he saw his father being carried to his uncle’s place by FREDICK ONUKO and he was bleeding profusely from injuries on the head, neck chest and legs. PW1 said he was taken together with his father to Rongo Hospital. The following morning, he learnt that 5 members of his family had died in the attack while he was still at the hospital. PW1 identified treatment notes dated 07/03/2019 MFI – P1. He also identified P3 form – MF1 –P2. PW1 said he was aware that his brother fought with JOEL AWUONDA who was from the family of the accused persons and he was injured and taken to hospital but he died. That the family of the deceased person then claimed that their family was one with witches and they attacked in a revenge mission. In cross examination by Ms. Okota Advocate, PW1 said that in February 2019 he was in Opapo Victory and he used to leave home at around 06:00am to go to school. He said he used to go back home for lunch and that he used to return home at around 06:00p.m. He said he was usually at home during the weekends but could go to school for tuition on Sundays from 02:00p.m. to 5:00 p.m. PW1 said he used to go to Church on Saturdays. He said he knew A1 who was their neighbour and also A2 who lived past A1’s home. PW1 said he was not related to A1 but they used to go to same Church. He said he used to talk with A1. There were many people and voices in their homestead and he was shocked when he woke up. PW1 said he could not recall hearing A1’s voice as there were many people. In his statement to the police PW1 said he A1 say they were going to kill witches. He said he did not see that in his statement though. A1 and others assaulted him. PW1 said he knew DICKSON ODHAIMBO who assaulted him. He said their home was connected to electricity and the attackers had spotlights which they shone the spotlight on him. PW1 said that A2 was at the scene but he did not beat him. He said he did not see those who torched the houses. He said he didn’t return to their home when he escaped to his uncle’s place and he did not know what transpired after he left. In cross examination by Mr. Oywer Advocate PW1 said that it was true they were attacked at their home in Kamagambo. He said he knew JOSEPH OGILO OJONI (A3) since he was in Baby as he was their neighbour. He said A3’s home about 200 metres from their home. He said he also knew A5. She is also his neighbour and her home was far from their home. He said he did not interact with A3. He said the attack was around 10:30p.m and he was asleep by then. He said he was woken up by screams. There were many people and he was shocked. PW1 said the house where he was sleeping had only one door. He said that DICKSON ODHIAMBO entered their house. He said their house was sufficiently lit but he did not indicate in his statement to the police that their home was connected to electricity because he forgot. He said the attackers used torches which they pointed to his eyes. He said that A5 was among the people who held him to be taken to the burning house but A3 was not among those who were taking him to the fire. That he dropped and ran away to his uncle’s house. PW1 said he did not see anyone torching the houses. That he stayed at his uncle’s home for 1 hour and he could not say what happened to their home in his absence. In cross examination by Mr. Kisia Advocate PW1 said that there was a lot of noise at their home that night. That some noises came from the house of his grandmother and some from the attackers. He said that many people went to their compound. He said the door to their house was locked from outside and that shocked him. He said that safety was his priority. That the first door was broken and they left the house. That as he came out of the house some assailants beat him but he managed to free himself. He said the attackers had spotlights. That he took around 2 minutes to run away from the scene which was chaotic. He said he was issued with a P3 Form. In re-examination by Mr. KimanthiProsecuting Counsel, PW1 said that their homestead was connected with electricity and attackers had torches. The accused persons were well known to him but they least interacted. He said he witnessed the attack on his family members. PW2 Elijah Otieno Dualo testified that he was from Kamagambo Koluoch and he was a farmer. He said he was 46 years old and married to four wives. He also said that he had children – 9 children and 3 died. He said he knew Lucas Nyandiga in 1976 as they come from the same village and share the same administrative area. He identified Lucas Nyandiga as the first accused in the dock. He also said he knew Ben Omondi Odeka, since his birth. That he hails from another village near PW2’s village. He identified him as A2 in the dock. PW2 identified A3, Joseph Ogilo Ojowi as a person he knew since he was born and comes from the same village. PW2 also said he knew Mary Scholastica Auma the wife of Juma Onyango. He said they come from the same area. PW2 said he knew Jane Anyango Nyandiga 5th Accused. He said he had known her since she got married to Lucas A1. PW2 said he had known Joseph Aluda Onyango – A6 since he bought land at Kamagambo. He also said he knew Martha Amolo Dualo who was his mother. He said his mother was the deceased in Count II. PW2 said that Elida Akinyi Otieno was his first wife. PW2 said that he knew Lavina Atieno who was his daughter and the deceased in Count III. He said that Lavina was in standard 8. That Brenda Akoth Otieno was also his daughter and she was in class 4. He also said that Cynthia Adongo Otieno was his daughter and she was 6 years old. PW2 narrated that on 1/3/2019 at about midnight he was at home asleep when Lucas and the co accused went to his home. That he smelt petrol and thought his motorbike was leaking. That when he got up to check he saw Lucas carrying a jerrican of petrol and he poured it on him. The motor cycle was inside a different house from where he was sleeping. That he got up because of smell of petrol and noises made by people. That he heard people saying that they had to kill Elijah because he was a witch. It was shouts from many people. They spoke in dholuo language. That he was able to recognize the voices because he had stayed in the same village with all the people who were speaking the same language. When he heard noises, he opened the door and found people, Lucas and others. He said he had a torch which he lit and saw them. That when he flashed the torch, they were about 2 metres away. They were armed and he was beaten and cut on the head and left hand with a panga. That he walked for a short while and fell unconscious. That he crawled on his knees until he reached his brother’s house. That he slept for a while and he heard a police vehicle come and he was taken to the hospital. PW2 said that his brother went to report the incident and he was taken to hospital at Rongo and then transferred to Migori then later to Ombo Mission hospital where he was treated and was issued with treatment notes and a P3 Form. He identified the P3 form dated 7/3/2019, It was filled by the Doctor on 15/2/2019 and degree of injuries were classified as ‘maim’ - MFI P1. When in hospital PW2 said he did not know the fate of the others who died. That after discharge from Hospital he learnt of their fate. That CID officers went to the hospital and recorded his statement on 2/3/2019 and he asked him where his relatives were and he was told that his family was taken to Homabay Hospital as Migori Hospital was too small. I left the hospital and went and buried them as he found them at the mortuary in Homa-Bay. He said the body of Martha was burnt and he was not able to recognize the body but those who identified were recorded. He said he only knew Martha’s body because the Doctor told me that it was found in her house. The Doctor identified the body of Elida to him. The same thing applied to the body of Livia and Brenda. He said that he could not identify the body of Cynthia if the doctor did not tell. The bodies were identified to the Doctor. He said he knew post mortem was done but he did not know who identified the bodies to the Doctor before post mortem was done. PW2 said he knew why the suspects burnt the house. They were saying that he was a witch because he had bought land in that area. PW2 said he was not a witch. There had not been any incident that could have caused them to call him a witch. He said the suspects alleged that he had killed their son Joel Owuonda and so he had to die. PW2 said he knew Joel Owuonda who lived in the same village with him. There was a fight between his elder son and Joel Owuonda and case was taken to court and his son was convicted. He said his son was at home after serving 12 years imprisonment. He said Joel died when his son was in prison on the day that the incident herein took place and that is how they alleged he was a witch. The people he saw were armed and Lucas had a 20 litre jerrican of petrol. He said Omondi had an axe while A3 had a panga and club. A4 had a cane; A5 had a cane and A6 had tyres. PW2 said that when he flashed a torch on them, they ran backwards so that the torch could not flash them but he saw Lucas on the face and what he had carried (Accused 1). He said he also saw Ben Omondi, Joseph, Mary and Jane Anyango on their faces He said he was close to them. When he switched on the torch, they started to run saying that Elijah is at home. They said they were going to bring the killers to kill him. That they brought the people who beat him. He said the accused persons also beat him because he was trying to run and they gained entry. The people were in a line across outside the door. PW2 said his compound is not fenced and had 7 houses namely; his 4 houses, his mother’s house, his son’s house and one house for rental. He said there are 3 houses in a line, one behind and one in front. He said he was in third wife’s house and that is where they confronted him. He said he did not know where the attackers had come from. That when he came out the people were standing in front of the 3rd wife’s house in a line. The others came and they injured him. PW2 said he lost 5 people and blamed Lucas, Ben, Joseph, Scola, Mrs. Lucas and Joseph for the deaths. In cross examination by Ms. Okota, PW2 said that **o**n 1/3/2019 it was dark and he did not have electricity in his home. He also said he had no solar but he had a chargeable torch. There were many people in his compound and he did not go to his other house. He said he did not run away but at some point, he did run away. He said he was with his third wife when he heard chaos and his wife remained in the house. He said he did not go to the house again neither did he go to the house where his deceased children were sleeping. That after he ran away, he did not go back to his house and he did not know whatever happened. PW2 said he could not recall when he left the hospital and he was not present when the bodies of the deceased were removed. He said the bodies were burnt beyond recognition. He was also not present when post mortem was done and he was not present when the bodies got burnt. PW2 said he filed a complaint of assault but he did not know the case number and he did not have the documents in court. In cross examination by Mr. Oywer Advocate for A2 and 5 PW2 said that he was asleep at his 3rd wife’s house. He said the 3rd wife did not have a child and they were just 2 of them in that house. He said he woke her up and she followed him outside as they were screaming. He said the only lights available was a solar torch which was very bright. He said he could not tell the watts of the torch. He said that when he opened the door, his wife was behind him. That when he opened the door, he saw a crowd outside his house.That the people did not attack him immediately. They moved away so that he could not see them using the torch. He said he could not recall what each of them wore that night. That after they moved away, he came out of the house and they started to beat him but he could not specifically identify the person who assaulted him because he was not holding the torch. He said he saw the assailants before the assault. In cross examination by Mr. Kisia Advocate for A4, PW2 said that **he** lit the torch when outside the house and the assailants ran and hid from glare of the light. He said he was injured at that time, when he went out of the house but he did not suffer any injury on the face. He said he was injured on the hands and head. He said he did not block his face from anything injured. He said he had injuries on the arms and fingers. He said that in the village when there is a distress call, people respond and members of the family raised distress call and people came. He said he could not tell who the assailants were and who had responded to the distress call. PW2 said that his son was convicted for assaulting Joel. He said his son did wrong and the law took its course. He said he did not empathise with his son. He said the perpetrator was Joel. He said they tried out of court settlement but it did not bear fruits. He said he approached Joel’s family. He said all the accused persons are Joel’s family members. He said A6 is father to Joel and he was not at home as he had gone fishing. He said he felt let down by Joel and family members. It was well with him. PW2 said he recorded and signed his statement and that he told police that Aluda Onyango was armed with a panga but in court he said that he had tyres. He said he not present when burning took place. He said he could see Onyango carrying tyres. In re-examination PW2 said that the Intensity of light of the torch was high. It could have covered the court room. That he was able to see using the torch and he could see the 6 accused persons. That when his son was convicted, the law took its course. When alarm was raised, people responded and came but he did not cover his face with his hands when attacked. He said his statement was recorded by the police officer. In examination by, the court PW2 said his third wife was not the one who was killed. He said that when he opened the door, there were more than 6 people but he only saw 6. They were many. That some people went away to get others from his mother’s house while others were left guarding him. PW3 Monica Anyango Otienotestified that she knew Merita Amolo who was her mother-in-law. She said that she also knew Elida Akinyi who was her co-wife. Levia Atieno Otieno is the daughter of Elida Akinyi. Brenda Akoth was also known to her. She was the daughter of Elida Akinyi. Cynthia Adongo Otieno was also known to her. She was the child of Elida. She said that Lucas Nyandiga – was known to her as her close neighhbour at Kamagambo. She said that they used to draw water at Otenge’s home where she also used to draw water about 200 meters from their home. PW3 said she also knew Ben Omdo Otege as a neighbour but lived about four meters and that the 1st Accused who was his cousin. She said that Joseph Ongilo was also known to her as he is a from their village – not far from them. She said that Mary Scholastica Auma was a neighbour and she had worked for her mother in-law. PW3 said that Jane Anyango Nyatige was the wife of the 1st accused and Joseph Aludo Onyango was a brother to the 1st accused. PW3 said that on 28/2/2019 at about 11:30p.m she was at home with her family. That she was with Elida, Lavia, Cynthia, Brenda. There were also children. The children are not small. They are Vincent, Alfred, Isack, Evans, Wilson. Some were asleep and I had gone to sleep. Elida and her children had also gone to sleep. She said that she was with Elijah Otieno in her house. That in the homestead there are 4 houses for the wives, for her mother in-law, house for boys and some rental. She said she was asleep in her house with her husband. She said that she had not slept and was still sorting out the maize which she had harvested. The maize had been shelled during the day. That she was inside the house and her husband was already in bed. She said that the radio was on when she heard a scream and switched off the radio. That she heard somebody cry from her mother in-law’s house and she woke up her husband. She said that her mother in-laws house was not very far from her about 20 – 30 meters apart. She said that she could not tell whose scream it was. After a short while I could hear people walking outside throwing stones on the doors and iron sheets. She said Lucas was with panga and stones. PW3 said the door to her house was hit and the hinges came off and was hanging with the lower hinge. She saw able to see the people outside well as she stood near the door. She said that she saw Lucas Oyange. There were other people – Ben (Accused 2), Joseph Ogilo Ajowi. Accused 3; Acused5 and Jane. Accused 4; Mary Nya Uyoma. She said that she could not see the others who were behind. She said that she also saw Aludo Joseph. PW3 said that she was with her husband. He asked what they had come to do in his home at night and they answered ‘we have come to kill you.’ That her husband lit the light from re-chargeable torch which was of a medium size but had a lot of light. She said that the people who were outside also had torches. That her husband said that he would come out so that they could kill him. That before they got out, they smelt fuel of motor cycle and her husband suspected it was from his motor cycle. However, they found the attackers had started spilling fuel into the house. She said it was Lucas who poured fuel into the house. He had fuel in a jerrican. They were outside the house. That they tried and came out. When they came out, they met the 4th accused person and they held each other and she wrestled her down and she started screaming for help saying she was being killed. That they started beating her. She ran and they chased her and they told her to run towards the fire. That she fell down where they had dug and the 6th accused threw a tyre on her neck but she managed to remove it and ran off and she was hit on the neck and she fell. PW3 said she was not able to get up and she was beaten up while there and was not able to get up. She heard the 1st accused say that Elijah was still in his house. By the time they had lit all the houses and there was a lot of light. They had lit her house and that of Elida Akinyi. She saw them take Elida take her back into her house which was on fire. That when she came out, Elida had also come out of the house. She could not tell how many of the family members had come out. That Lucas, Ben, and Aludo carried Elida and threw her back into the burning house and she heard Lucas say that each woman should be burnt not thrown from house. That she rolled and lay still and after a few minutes they came again to search for her but they did not get her. After a few minutes she heard people talking in Kiswhaili and there were many lights. They came near and she heard the voice of her brother in-law Jashon Oriko Dwalo who was with police officers. PW3 said that when she being beaten, she had a phone in her inner wear and when she heard Joshon’s voice. She called to ask him to look for her phone. That she was not able to walk to the vehicle and she was carried to the police vehicle. She said she saw Elijah being brought in a vehicle and their two sons were taken to Rongo Sub County Hospital where they were treated and transferred to Migori Referral Hospital. That at Migori County Hospital she was admitted and the following day she was informed that 5 people were killed. She said she was in hospital for 4 days and was released because the dead had to be buried. PW3 said that her house was burnt with everything and there is none that was left. She said she did not observe the bodies of the deceased who were burnt beyond recognition. The accused were alleging that her mother in-law had bewitched the son of Luca’s brother who was ailing. She said her mother in-law was not a witch and she had never heard that she was a witch. She said she was issued with a P3 and the Police had it together with treatment notes. She reported to Rongo police station vide OB No. 17/7/03/2019. She also identified the P3 form PMFI 2(a) and treatment notes PMFI 2 (b). She identified the accused persons in court as the ones responsible for the death of the 5 people. In cross examination by Ms. Okota Advocate, PW3 said that their home does not have electricity. She said she had solar light in her house. She said it was at 11:30p.m and the other people were asleep. She said she was in her house and she could not tell what was going on in the other houses. People hit my door and started to pour fuel inside. I was not burnt in any way. I was just beaten. I tried to escape to save my life. I tried to escape myself. I was beaten, fell and rolled to a place I could not be seen. I could not see what was happening at the time they could not see me. Later, police came and took me to hospital. I do not know what happened to Lavia, Bunde and Elida. I was told about it when in hospital. I was present at the burial. I did not see their bodies. I did not see the fire being lit and saw my co-wife being thrown into the fire. They chased me around the house as they told me to go where the fire was. In cross examination by Mr. Oywer Advocate PW3 said that the incident was on 28/2/2018. She said that she was in her house with her husband. She said she was working on her maize and she was very tired. She said that her husband went to bed. PW3 said that her house had 4 rooms and she was using a solar bulb in the sitting room. There were 3 bulbs; in bedroom and 3rd in the store. She said that she could not tell what was going on in other houses. She heard a scream but could not tell who was screaming. She said that she heard footsteps outside her house and she was scared on hearing footsteps and she got confused. PW3 said that the door to her house had 2 hinges. One was broken and one held the door. She said that she could not remember who left the house first. There was no light outside except the torch and the people had torches. He was alert the people were flashing torches at him. PW3 said that she was not blinded by their torches and could not have seen them if she had been blinded. She said it is her husband who held the torch. She said that her mother-in-law was in her house and that they had neighbours around their home. She said that she could not tell if neighbours had come to their rescue. PW3 said she was admitted and did not go to the mortuary and she was only told the deceased were burnt. In cross examination by Mr. Kisia Advocate for 4th accused, PW3 said that **b**efore this event, they had never experienced such an event in that home. It was scary to hear screams and people approached her house. She heard her house being pelted with stones and so was her co-wife’s house being pelted with stones. She said her concern then was to get out and save herself. She said they found when they started pouring fuel. Because of the confusion she could not tell who got out of the house first. PW3 said that P3 was filled for the injuries she suffered which showed she had no injuries on the head and neck but that she had suffered injuries on the neck and head. She said that she also had injuries on the back (P3 refers). She said she blocked her face from being injured using her hands. She said that outside her house was dark. There was confusion outside her house. She said that she was chased round the compound and she ran around till she fell. In cross examination by Mr. Singei PW3 said that when outside, she assumed the people she had seen before were the ones chasing her. She said she mentioned that all of the people she had seen were chasing her. Whenever her husband was, he was assaulted but she did not see him being assaulted. PW3 said she had hired somebody to shell her maize but he had left at that time. She said that she did not tell the court when the person who shelled the maize left. She said she did not lose her consciousness because she could not have heard her brother in-law talk if she was unconscious. That when Lucas started pouring the petrol, she heard him ask the wife for the match box but she did not know who lit the match. When she left the house, she did not see fire as it had not yet been lit. She said that she could not know where each person went when people went to their houses to sleep. The witness said that when she was being chased people were hitting her. She said she could not identify those hitting her because they were at the back. The fire was lit when she was being beaten and they were saying the she would be taken to the fire. In re-examination, PW3 said that she did not see who burnt the houses but she saw fuel. She said that she heard Lucas asking for match box when they were still in the house. That when she heard foot steps outside, she went out to find out who it could be. Those outside had torches and she identified the people because her husband flashed a torch on them. She said she was not confused but scared. That she was able to identify them. She said that she was injured on the head and there is still a scar on the forehead. PW3 said that she was treated of the injury on the forehead. The person shelling maize came about 2:00p.m and the incident occurred at 1:30am. She said that she did not see who set the houses on fire. PW4 Dr. Ian Omuom testified that she examined the bodies of the deceased persons at Homa-Bay County Referral Hospital on 4/3/2019. He said he was a Medical Officer at Migori County Referral Hospital where he had worked for 6 years. He said he is not trained as a pathologist but he was trained in forensic which is part of Bachelor’s degree. He said he was qualified to perform a post mortem. He said the body of Martha Amolo Dwalo was identified by Jacob and Johnson Dwalo. On general observation the body was naked and it was for a female, African with good nutrition status; height could not be established because the degree of injury to the body. Post mortem charges - it had 3rd degree burns Externally Head, 3rd degree burn with extreme skull fracture, exposed brain tissue. Chest – 3rd degree burn including the breasts, rib fracture with an expose chest cavity. Anterior abdominal wall was completely blunt and intestines were exposed and covered in suit. Lower limb only 1/3 of the limb was left on both sides. Internally - inhalational burns – these are burns that occur when one exposed to extreme heat and internal part of mouth and throat get burnt. Perianal and genital burnt – external genital was burnt on the borne level. They also affected the spinal cord. He formed the opinion that the cause of death was 3rd degree burns. I confirmed certificate number 0946386. Death was estimated to be over 24 hours. Death was indicated as 28/2/2019. He produced the post mortem Report – PEX No. PW4 also conducted post mortem on the remains of Elida Akinyi Otieno on 4/3/2019 at Homabay County referral and formed the opinion that death occurred as a result of 3rd degree burns to the head, chest, anterior abdominal organs, upper limbs, lower limbs, inhalation burns on the mouth and throat as well as burns on heart and major vessels. Post Mortem Report was produced as Ex P2. PW4 also conducted post mortem on the body of Lavia Atieno on 4th March 2019 and formed the opinion that cause of death was generalized 3rd degree burns. He signed Post Mortem Report and issued Death Certificate No. 0946388. Post Mortem Report was produced as EX P3 Brenda Akoth Otienoalso died as a result of generalised 3rd degree burns and PW4 filled Post Mortem Report to that effect. PM Report was also produced as Ex P4 Cynthia Adongo Otieno was also burnt beyond recognition and PW4 examined the body and established cause of death as generalised 3rd degree burns. PM Report was produced as PEX NO. 5. In cross examination by Ms. Okota Advocate, PW4 said that generalised 3rd degree burn means excessive, beyond recognition. He said that the time of death could not be established because pf damage to the bodies. The Doctor said he could only establish that the cause of injuries was fire but it could not be ascertained what lit the fire. In cross examination by Mr. Oywer Advocate, PW4 said that it is the investigating officer who filled the first part of the post mortem. Ordinarily the relationship of the person identifying the body is noted on the post mortem. In this case the relationship was not noted. A pathologist is a specialist in this field. At that time, he was based at Awendo Sub-County Hospital. Post mortem was conducted at Homa Bay Hospital. In cross examination by Mr. Kisia Advocate, PW4 said that he had knowledge in forensic pathology. He said the bodies had defence injuries. These are injuries received by a victim while trying to defend themselves from attack. Injuries inflicted on burns are usually suffered when one tries to protect their hand and face from injury. Injuries may also be on the back when the victim turn their back to the assailant. Where a victim has fallen down the defence injuries may be found on the legs.He identified treatment notes for Monica and said that on head and neck the victim did not suffer any injury. Upper back – multiple bruises. Upper back – from level of lower rib at the back. There are injuries to the arms and hands. Injuries were not described – it’s just described as multiple injuries I can’t confirm that these were defence injuries but it’s a possibility. In a mob scenario it may be that the person successfully defended themselves. In cross examination by Mr. Singei Advocate for the 6th accused person, PW4 said thatvictims were burnt beyond recognition and may not have been identified. He said the most effective way to have identified the victims was identification through DNA which was not conduct. We took nail, hair and a cutting of the sternum are taken for purposes of DNA. The samples were not taken. He said he based findings on the physical examination. In re-examination, PW4 said that one body to the hands were in flex position. An indication that It may be due to pain and trying to protect the vital part of the body. I am not a pathologist but I am qualified to conduct post mortem. I tried pathology. I am not a specialist not pathology. The injuries on the hands could be directly inflicted or they did be because of one protecting themselves. A DNA was not conducted. Bodies were labelled with the homes. Bodies were identified by 2 individuals. In cross examination by the court PW4 said that the fractures to some of the bodies were due to burns. That some parts of the bodies did not have 3rd degree burns but one could tell they are of African origin. PW5 Alfred Otieno Otieno testified that on 28/2/2019 their home was burnt down at Kamagmbo, Kolouch village Homa Bay and people were burnt. He said 4 houses were burnt with 5 people inside the said houses. He said they were burnt by Lucas (Accused) who was known to him before. He said Lucas was their neighbour; He also knew Lucas’ wife A5 as mama Darence. He said he saw her. He said he was not able to recognize the other people as they were many people and he could not identify them as it was at midnight. He said light from torches and fire lit the area. He said Lucas and the other people had torches. There was a fire from his step mother’s house. He said he was in his grandmother’s house. When they came to our home, they lit iron sheets saying a witch should be killed with all their seedling. They were saying that his grandmother was a witch and she was one of those who was burnt together with his step elder mother Elida. He said his siblings the children to Elida were also burnt. They were; Mary. Lavia Atieno, Brenda Akoth and Cynthia Adengo. They were all in one house. He was able to see outside the door which was damaged and were talking. That Mama Darence (Accused 5) said that his little brother Isaac Owuor was a small child and innocent and should be left alive. Lucas said that she should not call him by name because they would recognize him. He said he could not ask them anything because the people were many and their houses were being burnt. He said his grandmother was with him in the house with Isaac and Vincent. That Vincent and Isaac were beaten and returned in the house but later ran. He said he hid under the bed and later entered the bathroom. He was hearing screams. That his grandmother was beaten till she died and Monica’s house where his father was also got burnt. That when one ran to go and get fuel he got out and ran. That he fell and one stepped on him and something fell. That he ran again and hid in the bathroom where he stayed there till morning. That his uncle Jason Onuki found him there and took him to his home. He lives in a separate home. That later he went home and was shocked as it was full of smoke. He said the matter was reported to police at Rongo. He said he was injured on the left shoulder when he was hit with a metal. He said he did not know who hit him and he did not go to hospital. His mother Pamela bought medicine. He said his father had 4 wives and all lived in same home. Some were not home that time. He said he told police that he identified Lucas and the wife. He said they no longer live in that home. They went to live in Olare. He did not know the distance from Olare to their home in Opapo. We went to Homa Bay. We used to live in Migori. He did not know why they burnt the houses as he never heard the attackers say why they were burning the houses. Before this incident, the relationship was not bad. In cross examination by Mr. Okota Advocate, PW4 said that the incident occurred at midnight when he had slept. There was no electricity in the house where he had slept. There was no power in his step mother’s house. He said they had had a generator in the home but it had been put off at that time. He said he did not have a torch. He said he first came out of the house and was taken back and he left later. He said he never went to Elida’s house and he did not know who lit Elida’s house. He did not see who lit Martha’s house. When he got a chance to run, he did not look behind. He hid in the bathroom from where he saw what was happening. He said somebody found him in the bathroom but he did not know who it was as he did not see his appearance. He did not know how far he was from Elida’s house. He said he was removed from the bathroom in the morning by his uncle. He said nobody assaulted him when in the bathroom. Many people came to their home but he could not tell the number. In cross examination by Mr. Oywer Advocate, PW4 said that he was with his brothers Isaac and Vincent and his grandmother. He said they were 4. There were 3 rooms in that house. There was one door. From the door you reach sitting room. They used to sleep in sitting room with his brothers. He said he heard commotion outside and he got scared. There was no light in the house at the time. He said the house had 2 windows which were by then locked and he could not see through the windows. He said he could not tell what was used to break the door. That when he tried to come out there were many torches and he could not see them. The people he saw were their neighbours. He could not tell who came to help and who came to kill. He said that he thought all came to kill because they were armed and claimed they had come to kill the witch and her children. When he ran to the bathroom his brothers had been woken up when the iron sheets were being lit. That he hid under the bed in the sitting room. When under the bed he could not see anybody’s appearance. In cross examination by Mr. Kisia Advocate, PW4 said that his step mother’s house was the first to be burnt. That he heard those in that house screaming asking for help. At that time, they had not lit the iron sheets. After burning his step mother’s house, they went to theirs. People were very many. They were making noise. He said they did not scream for help. There was a lot of noise. Those people outside were speaking heartedly. In re-examination by Maatwa Counsel for the State, PW5 said that he did not see those who burnt the houses. He said he hid in the bathroom and saw smoke and saw somebody being beaten and was carried to his step mother’s house. He said he did not see anybody come to assist them. He only saw those with weapons and shouting that a witch is killed with all her seed. When cross examined by the court, PW4 said that he was under the bed when his grandmother was hit and was carried away. Her house was burnt after he ran. He said that his grandmother was burnt in the house. PW6 Vincent Ateya Otieno testified that he was a pupil at Ondicho Primary School in class 7. He testified that on 28/2/2019 their house was burnt. He said 4 houses were burnt. He said he saw Lucas – A1 with many other people burn the houses. PW6 said that Lucas was with his wife the 5th Accused person. He said he also saw Joseph A6 and A4, He said he was not able to see many as it was about midnight. He said they had lit a fire in the home. He said they were neighbours. They had lit a fire to one of the houses which produced light. He said he was in his grandmother’s house. with Alfred and Isaac, his brother. He said the people he saw were in the compound and he saw them when he was still in the house. He said he recognised the voices of Lucas and the wife whom he knew. He said he came out through the window and saw the others lifting the iron sheets. He said they had slept in his grandmother’s house and that was one of the houses that was burnt. When he escaped through the window, the house had not yet been set ablaze. That he came out and ran towards some trees. That he sat there to try and see their faces and he saw those he had mentioned and then he ran to his uncle Jacob Dualo’s home who lived nearby. PW6 said he heard the attackers say that a witch is killed with all his seedlings. He said he did not know why they burnt their home. Later police came and they slept at Rongo Hospital. That when he went to his uncle’s place, he found his father there and he had been cut and that is when they went to hospital. PW5 said that his father had injuries on the head. That when he later went to Rongo Police Station he told police that he identified some people at the scene as the attackers. In cross examination by Ms. Okota Advocate, PW6 said that he goes to Sumbro SDA Church. He said he knew the meaning of oath and telling the truth. He said he lived with his father Elijah and Monicha at home. He said they had talked about this case at home but his parents have not been telling him what to say in court. They tell him how he should behave in court. The incident occurred at midnight and he was asleep. Everybody in the home was asleep. There was no electricity in his grandmother’s house. He said he was woken up by the noise from outside. On waking up there was noise outside, but the fire had not been lit. The house was surrounded as they lit the iron sheets. They were many people and he only knew Lucas and the wife and when he saw them, they were lighting iron sheets and making noise. On seeing that he ran. When he ran his grandmother’s house had not been set ablaze. That he left the others in the house and he did not know where they went. He said he left the 3 alive. He said he did not know who lit fire to the houses. Later he was taken to Rongo Hospital. That he came to see what happened to the others later. He later found that Elida, Lavia, Cynthia, Flavia and Mathee had died. He said he did not see them at home when he returned. When cross examined by Mr.Oywer Advocate, PW5 said that he was in the house with Isaack and Alfred. He said they had slept on the floor. There was a bed in the sitting room but they slept on the floor. It was dark in the house. He said he was woken up by iron sheets by those lighting them. He said voices are not the same. He said he did not know if he was the first to leave the house but all he knew is that he jumped through the window. That when he jumped out through the window, his step mother’s house was set ablaze. He said he could not tell if anybody had come to arrest. Because of the fire there was smoke in the compound. He was able to identify only the 2 whom he knew. He could not tell how the 2 were dressed that day because he was running. In cross examination by Mr. Kisia Advocate, PW5 said that he recorded a statement at Rongo Police Station. He said he was Christian and go to church and knew the meaning of oath. He said he told police that the house where he was, was locked from outside and after that they came and removed them outside. He said that when he was taken out it was not his first chance to run. That he got a chance to run when he passed through the window. What he told police might be true because at the time there was confusion. He said that he was not taken out through the door but he got out through the window. He said he was not beaten by anybody. That on getting out he ran away and just hid in the bush then later went to his uncle’s house. He said he hid from the assailants and not in his uncle’s house. In cross examination by Mr. Singei Advocate, PW5 said that the house was surrounded by people who were making noise and throwing stones on the roof and others were hitting the roof. He said he could not tell whose sound was which but he knew for Lucas and his wife. He said he was fearful. He said he did not tell the court that the people ever left. He said he used the window in the sitting room. He could have met those who surrounded the house. He said he did not see where those who were with in the house went. He said he identified those he had mentioned in court name as he saw them. That after he came out, he ran and by then the house he was in had not been set ablaze. He said he could not tell who set the house on fire and he did not know who assaulted his father. That when he left his grandmother’s house nobody had entered to assault anybody. He said he could not tell who injured the occupants of the house he was in, In re-examination by Maatwa Counsel for the State, PW5 said that when he came out, he identified 4 people, Lucas, accused 5, Accused 4 and Accused 6. He said he did not know the others and those he saw did not assist him. That when he came from hospital, he did not see Elida, Lucia, and Cynthia. He was told they died. He said he ran out through the window of his grandmother’s house and he could not recall if he told police that he was removed from the house through the door. PW7 Jason Omuko Dwalo testified that he came from Opapo in Rongo Sub County and he was a farmer. That on 28/2/2019 at night about 11:30p.m he was asleep when he heard screams which seemed to come from like 2 kilometres away. I woke up and went outside. That he woke up and heard as if it was his mother’s home. That he proceeded there and found people shouting, lighting the iron sheets and 3 houses on fire at his mother’s homestead There was a big fire and light and he saw Mzee Luka, the 1st accused and Joseph the 6th Accused. He said he did not see anybody else. That he called his other brother who had a motor cycle so that they could go and report. People were many but he was only able to see the 2 well as he was about 50 meters away. He said he could not tell exactly what each was doing but some were screaming and others lighting the iron sheets. He called Simon Okudho and they went to Rongo Police station and reported. That police accompanied them back to the scene. Where they found Elijah, his brother whose house was burnt; He said Elijah’s wife and children were burnt in the house. He said Elijah had been beaten and his wife Monica had also been beaten and was in the house. That Monica was in a bad state and Police officers took them to Migori Hospital. That they waited for the fire to subside so that they could retrieve the bodies and take to the hospital. He said they took the bodies to Homa-Bay Hospital mortuary to await post mortem. He said they found bodies in his mother’s house and Elijah’s house. From his mother’s house they found only the mother. She was burnt and dead. In Elijah’s house they found the mother and her children having been burnt beyond recognition. PW7 said that when they arrived with police there was nobody in the home. He said he did not know why the people were burnt. He said Post mortem was done on 4/3/2019 and he identified all the bodies and later recorded a statement on what he saw. PW7 said he knew 1st and 6th Accused persons prior to this incident because they are related. He said a daughter to Lucas’ brother is married to his brother. He said he knew where they were as they lived in same location. When Ms. Okota cross examined PW7 he said that he was brother to Elijah. He said Elijah’s son known as Omondi was arrested for fighting with Awuonda the son to Lucas’ brother. He said the father of Awuonda is called Otieno. He said Otieno was not before the court. PW7 said that he could not tell if Lucas was a witness in the case against Omondi as he did not attend court. He said it is Lucas family that caused the son of Dwalo to be arrested. Lucas lives near Yoribe river. When at his door he can’t see Lucas’ house because he lives at Nyalaho. That from Lucas’ home to his home is like from the court to the bridge – about 1 kilometre. H said Lucas is a farmer and he did not know of Lucas’ shop at Rongo. He only knew Lucas as a farmer. He said he was asleep at 11:30 p.m and it was dark. There is no electricity there at home. He said he saw people screaming, shouting and lighting iron sheets. He said he did not stand there for long as he saw fire and people screaming and that is why he went to call Simeon. He said he was at the scene for about 2 minutes before he left. He said he never went back to his home. He also said he never met Vincent Ateya, neither did he meet Elijah in his house. He said he found Elijah at the scene and took him to hospital. He also said he did not see the person who set those houses ablaze. The bodies were burnt beyond recognition and you could not know who they were. Elijah’s first wife is Elida Akinyi. His first born is Omondi and the second he can’t recall their names. He could not also give the names of Elidah’s children. Before this incident he had not met Elida, her children, Martha and PW1. He said he did not go to Elijah’s home that night and he could not tell whether or not they were home. He could also not tell if Martha and Elida were not home that night. He said he could not tell who killed the deceased. That they removed his mother from her house and Elida and her children were also removed from her house. He said he did not see his mother go to the house that day and he could not say truthfully that his mother’s body is what he found in her house. He said he assumed the body found in his mother’s house was for his mother. He said his mother did not used to live alone. He said he saw Lucas and Joseph because of the light from the fire. The burnt houses were made of iron sheets around. He said he had no torch but the fire was big and many people were moving up and about. The vehicle outside is KCM 917C. He said he could see the Registration number if there is light but not when its dark. We have talked about the case. We have not set out here to discuss this case. He said he can’t tell what lit the fire. In cross examination by Mr. Singei for A6 PW6 said that he knew Joseph 6th Accused as his brother has married Accused 6’s daughter. He said they had no dispute between us and they were having a good relation. That they greeted each other and exchange pleasantries when they met. If in need, they could seek help from each other. He said that from his home to his mother’s house, is about 800 metres like from the court to the District hospital gate. He said that his mother was using a tin lamp (Koroboyi). He said there was no generator at that home. He said he did not know who accused Joseph Aludo A6. He said he was not aware whether A6 is a fisherman and he was also not aware that he is fisherman at Sindo. He said his mother, Martha was one of those whose house was burnt and they retrieved a body from her house. He said he saw his mother’s house burning about 11:30p.m. He said Simeon’s home is a distance like from the court to Prison – 500 metres from here. He said he never enquired from anybody what was happening as he did not see anybody. When he went to Simeon’s place and then to police, he did not know what these people were doing in his mother’s home. He said he did not know what caused Elijah’s and Monica’s injuries. He said he was aware of an assault case where Monica and Elijah were complainants but he did not know if A6 assaulted anybody. In re-examination by Mr. Omooria Counsel for the State, PW6 said that hismother used to live with her grandchildren. He said he retrieved the body of his mother from the house because it is them who slept there. He said he had not seen his mother alive since then. PW6 said he had nothing against Joseph Aludo even prior to this incident. He also said that 11:30 p.m is ordinarily dark but he was able to see on that night because of the light from the fire. PW8, 17 years old Wilson Okinyi testified that he was a form 1 student at Nyakengo Secondary School. He said his father was Elijah Otieno Dwalo and his home is in Kochia. He said that previously they lived at Opapo. He said his mother was Elida Dwalo. He recalled that on 28/2/2019 at about 10:00p.m he was asleep in his brother Hesborn Omondi’s house. He said Hesborn was his elder brother. In that house he was with his aunt’s son Brian. That he heard screams and when he tried to open the door, he found it was locked from outside. That he broke the door and went outside and saw Aludo the 6th accused and Luke (Accused 1) pouring fuel. He said they had a motorcycle., That on going out he saw people in the compound. That he saw Aludo and his brother carrying fuel on a motor cycle. They removed it from motor cycle, opened the jerican’s and poured on the iron sheets. The jerrican were 6 – the 20 litre. It was a boda boda rider who had the motorcycle. He said he was not able to see the boda boda rider because it was night. There were other people he could see. They were many over 20 people. They poured the fuel on iron sheets first on their house, the grandmothers house then the step mother’s house. That he heard Luke say that a witch is killed with the whole family. After pouring fuel they lit a fire. He said Aludo lit the fire using a match box and threw it on their house; then his grandmother’s. That they started to beat her. That when he broke out of the house, he went out and stood at the door of his brother and he was able to see what was happening from where he stood as his grandmother’s house is nearby. That he asked them why they were killing his mother and Luke told them to get him because a witch is killed with the children. He sent people to get hold of him. PW7 said the one he slept with in the same house had run off. That wife of Luke, A5 hit him with a cooking stick on the chest and back and the stick broke. That he escaped and ran to Simeon Dwalo’s home. That after a short while, he saw his father being brought to Simeon’s house by police officer and he was injured and was bleeding from the head and covered in blood. After a short while he also saw his step mother Monica being brought. She was also injured. Police took them to hospital at Rongo. That his father was in bad condition and was taken to Migori. In their house, he had left his mother and 3 siblings. In his grandmother’s house there were 3 children. That his uncle went to hospital and informed him that his mother, grandmother and siblings had been killed. PW8 said that in the crowd he was able to identify Mary Onjenge 4th Accused; George Peter not in court, Odhiambo Ogallo who is not in court; Dorothy Aoko not in court. He said Aludo had a torch and after lighting the fire he could see the other people. He said he knew Aludo and Lucas before as they were neighbours and they go to same church. He said wife of Luke used to take to his grandmother the sacrament from SDA church. He said he knew it was fuel because they were saying bring the fuel. Aludo wanted to remove the motor cycle but they could not and set it ablaze. That was his father’s motorcycle. PW7 said he had no dispute with all the people he mentioned. In cross examination by Ms. Okota Advocate, PW7 said that he went to the Police Station on the night of 28th and recorded his statement on 29th. That he went to the Rongo Police Station with his brother Fredrick. He said a police officer recorded hi statement as he spoke. After he recorded, he was given to read and he signed. PW7’s statement was marked as MFI ‘D1’ I told police what I saw what I wrote is what I saw. He said he saw Aludo put fuel on the house of Elida. I knew how to read English. He admitted that there is nowhere in the statement where he mentioned that he saw Aludo carrying fuel. There is also nowhere he recorded that he saw a motor cycle with a jerrican of 20 litres fuel each. There was no mention of fuel in his statement. He never recorded anywhere that 1st Accused said a witch must be killed with all her seed. He admitted he never recorded that Aludo lit a match and threw at the house. He also said he never mentioned any motor cycle for the boda boda or his father’s and he never recorded that he saw people beating Martha. He said that when recording this statement, he was still having pains however his memory was fresh and he could recall what had happened but not everything. However, he could recall everything that happened at the time he was testifying. He said he had never gone back to station to record further statement (witness warned about his rude answers to counsel). He said it is not true that he had exaggerated what he told the court and added salt to his earlier statement. He said he was not lying to court and he had not been coached to tell court what he had said in court. PW7 said he saw what caused the fire. There were many people in that compound. Vincent Ateya (PW5) is his brother. He was asleep in their grandmother’s house. PW7 said he woke up at 10:00p.m and the incident happened between 10 – 10:30 p.m. He said he had no watch. He said he had no torch or any source of light. He said he was not hiding from anyone when he saw all those things. At that time nobody had gone to accost him. He said he ran away from the scene and left everyone there. He said he did not see Elida or Martha before he ran away and he did not know what happened behind him after he ran away. In cross examination by Mr. Oyuer Advocate, PW8 said that he was woken up by screams about 10:30p.m. He said he was scared by the screams and he became confused and did not know what to do next. He said there were no lights in the house where he slept and it was dark outside. That when he opened the door he stood and asked why his mother was being killed and Lucas sent his people. In the statement he said he was accosted by Dickson before he stepped out. He accosted him after he left the house while Dickson was hitting hi and it was dark inside the house. Because it was dark, he could not tell what kind of weapon he was using to hit him. PW8 said that Lucas’ wife assaulted him when outside but he could not tell what kind of clothes she wore. He said he ran away to Simeon’s house a brother to his father. While there his father was brought while bleeding. He said he did not know who assaulted his father. In cross examination by Mr. Kisia Advocate, PW8 said that he was asleep with Brian who is not a witness in this case. That he heard screams outside and his first instinct was to get out and run or escape or assist other family members. That before he got out Dickson Odhiambo Ogilo entered the house. PW8 said he broke the door and Dickson entered. He said he did not know what happened to Brian because he left him in the house. At the time what he wanted is to save himself from the situation. He saidhe did not suffer any injuries at that time but he got injuries at the door and he was treated. He said he had not seen any treatment notes from hospital. He confirmed he was assaulted and he did not run away. He said Dickson had a torch but he did not have one. Dickson detained him for about 3 minutes while beating him up and he was injured on the left eye. He said he did not cover his face from those who attacked him. In cross examination by Mr. Singei Advocate, PW7 said that his grandmother used to attend Riana SDA. That it was the same church that he attended and Mrs Luke used to bring the sacrament to his grandmother. He said that they were attending the same church as the accused persons. He said they had good relationship with the Accused persons and there has been no intention to hurt the other. Nothing had risen to the extent of one being called a witch. He said they were friends with Accused persons. He said he could not understand what happened on 28th February, 2019. He said the house he slept in did not have a window. It had only one entry which was also the exit. He said he broke the wooden door and that is when Brian jumped out. He said the house was made of mud and he used his hands to break the door. In re-examination by Mr. Owuor Counsel for the State, PW8 said that he told the court what he witnessed. That he witnessed Aluodo set the house ablaze. That when he wrote the statement, he was angry and had injuries. He said he wrote the statement next day on 29th March 2019. He said he saw what happened and he saw the Accused that night. PW9 No. 82722 PC John Phale testified that he was attached at DCI Nakuru but at the time of the incident herein he was working at Rongo DCI offices as an investigator. He recalled that on 1/3/2019 just before midnight he was woken up by Sgt Wandera now retired who said there was a serious incident recorded in their OB at Opapo Village and they needed to attend to it. That they got ready with other police officers and DCI Officer including Sgt Wandera and proceeded to scene which was 14 kms away. That they found an ugly scene where 3 houses were on fire in same homestead. That they divided themselves in 2 groups and one tried to put off the fire and another a search partly in the homestead. There were shrubs road in the homestead. During the search police officers managed to rescue a lady who was in pain and unconscious. That a juvenile was also rescued from a nearby shrub. We helped put off the fire. After it was put off we searched the burnt houses. They were in a line. The one at the far end a they found a skeleton burnt beyond recognition. That in another house nothing was salvaged. That in the third house, four human skeletons were recovered. One looked like an adult and 3 others were juvenile. That it took them long. The five bodies were taken to Homa Bay mortuary to await post mortem. Before that the 2 who were taken to Rongo Sub County Hospital for 1st Aid / treatment. That they went back to the office next day and carried on investigations how scene happened. They went through the report with Jason a brother to Elijah Dualo the owner of the homestead. We interviewed Jason. He said he heard a scream from his mother’s house rushed there and found houses on fire and a crowd of people surrounded the homestead. He sensed danger and could not enter that homestead. He said that it was neighbours who mentioned the accused. He had a torch and was able to see the people committing the act. He mentioned that Lucas 1st Accused and went to report at police station for assistance. PW9 said they gathered information from statement of Jason and waited for those hospitalised to shade light for happenings. They recorded statements after discharge. They mentioned all the Accused before court. That they alleged that Martha deceased bewitched one of their brothers’ child who was ailing i.e. son to brother to Accused 1. And Lucas mobilised the people to go and attack the homestead. This is what Elijah Dualo told them after release from hospital. Wife of Elijah who escaped and found members – Monica (PW3). She said she knew those who went to the homestead. That she mentioned 1st Accused and that she struggled with a lady Scholastica. Monica pointed at Accused persons as perpetrators and they were arrested and charged for murder. Post mortem were done and the doctor formed opinion that cause of death was general / degree burns. Witnesses were at scene. Elijah managed to escape she was alone. Monica was present at the scene as a witness. A juvenile was at the scene. Initial report – I received report on 1/3/2020 but incident was 28th February 2019 and 1st March, 2019. PW9 said that he captured in the diary what the generis of the attack was that it was alleged that Martha was a witch and had bewitched the 1st Accused’s brother’s son. PW9 said he arrested Lucas his home. He said he could not recall how 2nd Accused was arrested as he did not know his home. He said most accused persons were arrested in the homestead. Report led them to the 3rd Accused who was familiar. He said the 4th Accused is wife to Nyandiga and is the one who struggled with Monica. He said the rest of the suspects were arrested by his colleagues. He said the 1st Accused – to the 4th Accused lived, not far from where the deceased lived about 15 minutes’ walk away but he could not tell the exact distance. PW9 said the 1st deceased was mother to Elijah – the alleged witch and she was about 70 years. Helida Akinyi – 2nd wife to Elijah. Lavia and Ben were Elijah’s children. That from the entrance was for first wife’s which was about 10 meters apart. He said that the perpetrator for arson who were the same suspects herein for murder were registered in Rongo. In cross examination by Ms. Okota for A1, 2, and 6 PW9 said that he arrived at the scene after 12.30pm. He said the report was made by Jason before midnight 2019. He said the scene was ugly – there were no people at the scene. He said he collected the remains from the burnt houses and that nothing was salvaged from the 3 houses. He said he did not see any jerrycan when they were trying to search and did not recover anything like a jerrycan. PW9 also said that he did not recover any weapons in terms of axe or rungus. Police officers recovered the bodies from the houses. Jason was present when bodies were recovered from the houses. Jason does not stay in that compound but in adjacent compound. Bodies were taken to Homabay Sub-County hospital. He said he was not present at time of post mortem but his colleague Sgt Wandera (retired) was present. He said he had no record to show that Lucas mobilized the group that went to attack. He could not recall when Lucas was arrested. He said Lucas was arrested by the people who were at the home that day. PW9 said the bodies were burnt beyond recognition. Elijah knew where his mother was and the other house is known to belong to Monica and another to Hildah. Elijah and Monica recorded statements after discharge. Those who were injured came and confirmed which house belonged to the deceased In cross examination by Mr. Oywer Advocate for A3 and 5PW9 said that it did not take them more than 30 minutes to arrive at the scene. That on arrival they preserved the scene and photographs were taken. He said it was at night and no member of public was present. PW9 said he did not know if photographs had been produced in court or not because he was transferred. He said a sketch plan was also prepared but he had not seen it in the file. He said Accused were neighbours with the victims and they knew each other. He said that ordinarily, neighbours would be the first at the scene. He said there were lights in the homestead. That Elijah said he put on the light before they were attacked. Most Accused were arrested in their homesteads during the day time. Bodies were burnt beyond recognition. No post mortem was done on the bodies. There was no doubt that the deceased were family members of Elijah. In cross examination by Mr. Kisia Advocate for A4, PW9 said that the Accused persons and deceased were neighbours. That Accused’s homes and the deceased’s homes is about 5 kilometres apart and in between are other homes. He said some statements were recorded from neighbours but some refused. He said the immediate neighbours assisted in investigations. PW9 could not recall which neighbours he recorded their statements. He said that Jason Dualo reported vide OB No. 2 of 1/3/2019 at 00.14hours that a group of descended on the home. He said apart from the flames, the home was dark but they had spotlights. The houses had been burnt and there were no lights. That he drew a sketch plan. He said he could not tell where the security lights were on that night. He said it was not so dark as there was light from burning houses and we had spotlight. He said the parties knew each other and there was no need for identification parade. The action was due to vendetta as per report made. He did not know how A4 was related to the other Accused persons. In re-examination PW9 said that the deceased were identified by family members. He said the initial report was by Jason who mentioned the neighbours descending on the mother as mob injustice. They found scene deserted. At the close of prosecution evidence in chief the accused persons were placed on defence. The 1st Accused person gave sworn testimony and said thathe came from Koluoch Sub Location in Migori County. That on 28.2.2019 at 11.30pm he was in his house sleeping with his wife jane Anyango and children. He said that he went to the scene of incident when he was woken up from sleep by noise that I heard. The noise that woke him up came from Elijah’s homestead. That he went in company of his wife. He said he didn’t establish the cause of the noise. That he went and found houses being burnt. He said he found crowds gathered in groups in the periphery in darkness. He said he didn’t do anything as he found the houses on fire and he didn’t see Elijah. That he remained in the scene for around 10 minutes and went back home. He said it is not true that he was seen carrying jerrycan containing fuel. He said he was arrested on Tuesday in March 2019. While he was herding his cattle. That on arrest police did not search his house and nobody claimed that he caused the death of the deceased herein. A1 denied saying that Maritha Amolo was a witch. Martha was going to same church with him and heI knew her and he had no dispute with the deceased persons. He said he had not differed with Elijah. That when he arrived at the police station, he found other people had been arrested apart from him and the co-accused in the dock. He said he didn’t cause the death of the deceased. In cross examination by Mr. Oimbo for State A1 said that Maritha Amolo fellowshipped with them in the same church for a long time. That when he went to the scene, he stayed for 10 minutes. That when he arrived at scene, he didn’t know that there were people in the burning houses and he didn’t ask where Maritha and Elijah were as their houses were burning. He said his home to Elijah’s home is about 2km away across the stream. He said he was able to see light from the burning houses 2km away from his home. That on arrival one house had been razed down and the light had reduced. He said Awuonda is son to his brother. He died before the incident herein. He died one day before the arson herein. He said Awuonda was sick and he went to hospital due to swollen tummy but his illness was not diagnosed and he later died. He said he did not know if Awuonda was taken for treatment by herbalist. He said he was in company of his wife when he went to Elijah’s home. He said he is Asthmatic and he went home after 10 minutes. That his wife accompanied him back home. He said he didn’t hear what the people in the crowd were saying and nobody tried to put off the fire. He said he didn’t see Elijah at the scene. He also didn’t see Vincent. He said he saw Jackson the following day. He said he was born and brought up in the area. In re-examination by Ms. Okota Advocate, A1 said that he didn’t know if there were people in the burning houses when he arrived one house had been razed down and others were still burning. He said he didn’t know Maritha was inside the burning houses. He said Awuonda was the son of his deceased brother. He said Awuonda was sick but he was not aware that he used traditional medicine as he was just taken to hospital. A2 also gave sworn statement and said that he was from Opapo and he did casual jobs. He narrated that on 28.2.209 at 11.00pm he was in his house and he didn’t leave the house. He said he was arrested on a Wednesday in March 2019. He said it is not true that he set the house of Elijah on fire. He said his home to Elijah’s home is about 6 to 7km apart and he didn’t go to the scene. He said he learnt of the incident from people and from radio. In cross examination by Mr. Oimbo Counsel for State A2 said that A1 was known to him and was his uncle. His father’s mother and A2’s father’s mother are co-wives. He said 3rd accused is from their village and 4th accused’s husband is his in-law. He said 5th accused is his aunty and wife to 1st accused. He said 6th accused is his uncle. That apart from 3rd accused the other accused persons are related to him. He said Joel Awuonda is known to him. He is deceased. That on 28.2.2019 at around 11.00pm he was at home with his wife and his 3 children. The oldest of his children was 9 years by the time of this incident. He said he arrived at home at 7.00pm and went to sleep after 9.00pm. The next day he woke up at 6.00am. He said he did not know at what time his wife slept. A3 also gave sworn statement and said that he was Joseph Ogolo Ojowi and he came from Nyangau and he was a farmer. He said he did not know why he was in court. He said that on 28.2.2019 he was in a crusade in Opapo centre and he was not at scene of the incident herein. He wanted the court to dismiss the case as he was fabricated. In cross examination by Mr. Oimbo Counsel for the State A3 said that he went for kesha/overnight prayers from Wednesday and it ended on Sunday. That on 28.2.2019 he was at kesha from morning until the following day. That he was with many people at the overnight prayers. The pastor was Benard Oluoch Ogallo who was is alive but his witness died. He said Pastor Ogallo is not his witness. He said there is no one else who can confirm that he was at the kesha. He confirmed that Elijah was a neighbour. They stay on his grandfather’s land. He said they had no differences with Elijah’s family. He said he did not know why he was fabricated A4 also gave sworn testimony and said that her name isMary Scholarstica Auma and she came from Kongudi village and she is a farmer. She said she was charged with the offence of murder. She said that on 28.2.2019 she I was in Mbita Rusinga Island where she was called for training by Red Cross and Mentor Mothers. The training was at Blue Ridge Hotel. The training started on 19.2.2019 and was to take 10 days. The training ended at 5.00pm on 28.2.2019. she said that the materials that were supplied during the training and the money send to us vide Mpesa by Red Cross can confirm that she attended the training. She said that the copy of Mpesa statement was used in the lower court and she could avail a copy of the statement given time. She said the sim card that she used to receive the money got lost. She said that on 1.3.2019 when she found people were being arrested, she was also taken in the swop. She said she had alighted at Opapo and she took motor bike to take her home and when she arrived near home she alighted and the motor bike rider went back. That she got herself in the midst of people who were being arrested. She said Joel Awuonda was known to her as he was her brother-in-law. She said he had short illness. She said she was in for training when he fell sick and died and she found he had died In cross examination by Mr. Oimbo Counsel for the sState.A4 said that Awuonda was staying with his wife prior to his death. She said that she was attending training in Rusinga Island in Homa Bay County and the training ended at 4.00pm. She said she did not have evidence in court to prove that she attended training. She said Monica Anyango Otieno was known to her as she had been recently married in their village. She said Elijah was known to her very well and Maritha Amollo was also known to her as she was an elderly woman in the village. She said she had no differences with Elijah and his wife. She said Elijah did not implicate her. She said she was just arrested as she was going home. Prior to her arrest she didn’t go to scene. She said they were many participants who attended the training and she was the only one from Migori County. A5 Jane Anyango Nyandiga also from Koluoch Sub-Location in Rongo Sub County said she was a farmer. She said she denied having committed the offence of murder. She said that on 28.2.2019 at 6.00pm she went to her neighbour’s home as the daughter had died. That on 28.2.2019 she was sleeping at night when she was woken up by noise which emanated from Elijah’s home. That she accompanied her husband Lucas Nyandiga to scene after she woke him up and explained the noise was different from the one of our neighbour’s funeral. That he husband opened the door and they saw a huge fire across the stream. As they were going, they saw many people emerge from different directions and on arrival there were many people. That they found 3 houses on fire and one had already been razed down and 2 continued to burn. That they were unable to help and they stood by. Because her husband is asthmatic, they decided to go back home. The people in the crowd stood in sombre mood when they were unable to help. She said she was able to identify the people who stood near her. That on Tuesday she went to sell vegetables at Opapo market. When she was there her husband called and told her he had been arrested and she should hurry back home to take care of animals he had tethered. That when she went to visit him the following day police went and arrested her from home. She said she was not on the run as there was nothing to run from in cross examination by Mr. Oimbo Counsel for the State, A5V said that her home to scene is about 3km away and the light from the burning houses could be seen across the ridge. She said she was able to identify the people who were at the scene as Onyango and Elder Polycarp among others. She said it was possible to see the people who were close-by. She said she knew the occupants of the home that was burnt. She said she knew Monica, Elijah and Vincent. Alfred Otieno was also known to her and they also knew her very well. She said she had no difference with the complainant. Maybe they could not differentiate between those who had come to help. She said they could not help because the fire was too much and one house had been razed down and 2 others were still burning. The next day she went to the home of the deceased and she found police at scene. Joel Awuonda was son to my brother-in-law. She said she was not aware that Joel’s death led to the burning of the houses in the deceased’s home. She also said that she was not aware that there were people inside the burning houses. In re-examination by Mr. Oywer Advocate A5 said that she didn’t help as the fire was too much. A6 also gave sworn testimony and said he was Joseph Aluda Onjenge and he came from Opapo. He said he was a fisherman. He said he could not recall where he was on 28.2.2019. He said he was arrested in 2021 at the shore of the lake in Sindo. He said he had been fishing since 1992 and prior to his arrest he had been in the lake fishing and he did not know what happened on 28.2.2019. He said he knew the person who accused him as they are neighbours from Koluoch clan and stay among the people of Kamagambo. He said that whenever he came back from fishing he would stay for 3 days and go back to the lake. He said he was arrested in Sindo and jointly charged with accused persons. He said he was not at home when the deceased persons died. He said Elijah Dualo PW1 caused his arrested. That PW1 went to buy fish in Sindo and when he found him, he told the chairman to call him as he wanted to discuss something with him. That when he was taken to chairman’s office Dualo told chairman that A6 had a case in Rongo. That he was arrested by police and taken to police post. After 2 hours police from Rongo came and collected hi. It was on arrest that he learnt of the murder. Nobody explained to him how the death occurred. He learnt in court that the deceased persons were burnt alive in the houses that were set on fire. That he was never charged with arson. PW1 confirmed to court that he was in the lake fishing when the houses were set on fire. He said he was arrested because his people were arrested. In cross examination by Mr. Oimbo Counsel for the State, A6 said that he heard while in court that his co-accused were charged with offence of arson. He said Joel Awuonda was known to him. He said he learnt in 2020 that Joel Awuonda had died. He said he could not remember where he was on 28.2.2019. In re-examination by Mr. Singei, A6 said he could not remember where he was on 28th February 2019 and he didn’t participate in the commission of the offence as he was not at home. Lucy Achieng from Opapo in Migori County testified in support of A2’s defence. She said A2 was her husband. She said she was 32 years old and had been married to Ben for 10 years. She said she sat for class 8 examinations in 2008. She recorded her statement dated 15.5.2025and wanted to use is as her evidence in court. When cross examined by Ms. Ikol Counsel for the State, she said that she was with her husband on the material night. She said she did not know the deceased and she did not know her home. She said it is not true that she used to fetch water from the deceased person’s home. She said she did not know where the other accused persons were on the material night. That it is her husband who was with her in the house. In re-examination by Ms. Okota Advocate, Lucy Achieng said that she did not know the home of the deceased as it is far from her home and she never heard people say the deceased was a witch. She said she had a borehole in her home and she never used to go for water at the deceased person’s home. **The court then admitted** 4th accused person’s exhibits DEX 1 - 4 CRC 196/19. Upon close of defence case, **t**he accused persons’s counsel were directed to file and serve submissions within 14 days. Subsequently, the Respondent to also file and serve submissions within 14 days. Mention 15.9.2025 to confirm submissions filed. **ANALYSIS AND DETERMINATION** Based on the entirety of the prosecution and defence evidence tendered before this court, the central issues for determination are: 1. Whether the deaths of the deceased persons were proved and the cause of death established. 2. Whether the deaths were caused by an unlawful act. 3. Whether the accused persons were positively identified as participants in the attack. 4. Whether malice aforethought was proved. 5. Whether the defences raised create reasonable doubt. The fact of death has been proved beyond dispute. The medical evidence established that the bodies recovered from the burnt houses suffered generalized third-degree burns and the cause of death was severe burns sustained in the fire. The defence extensively challenged identification of the bodies because the bodies were burnt beyond recognition, Samples for DNA analysis were not taken, DNA testing was not conducted and some witnesses admitted that identification was based largely on assumptions as to who occupied the houses. However, the identity of the deceased persons was proved by circumstantial evidence. The bodies were recovered from specific houses known to have been occupied by particular persons and no evidence suggested alternative occupants. The absence of DNA in the instant case does not necessarily render the prosecution case fatal. On whether the cause of death was unlawful, there is overwhelming evidence that several houses were deliberately burnt at night with occupants trapped inside and five bodies were recovered from the burnt structures while the survivors narrowly escaped with serious bodily injuries. Witnesses heard attackers proclaiming that a witch should be killed together with her descendants. The evidence excludes accidental fire. The deaths were therefore caused by an unlawful act. On whether the assailants were properly and positively identified, several witnesses independently placed A1 at the scene. PW4 Alfred identified Lucas; PW5 Vincent identified Lucas and recognized his voice; PW6 Jason testified that he saw Lucas near the burning houses; PW7 Wilson stated that he saw Lucas pouring fuel and heard him utter words that a witch should be killed with her children. The evidence against A1 is therefore not based on a single identifying witness. Lucas was consistently identified by multiple witnesses who knew him beforehand as a neighbour. He was not a stranger and his recognition at the scene was more reliable than identification. Evidence against A5 Jane Anyango comes mainly from PW1 who said that she was the one together with A4 who held him and wanted to take him back to the burning house but he fell and ran back to the house to avoid being thrown into the fire. PW4 also said heard A5 say that Isaac was innocent and should be spared. PW5 who identified her and recognized her voice and PW7 who alleged that she assaulted him with a cooking stick. These witnesses knew her previously. A5’s defence was that she merely accompanied her husband to the scene after noticing the fire. This \court finds that her defence is a mere denial and an afterthought meant to exonerate her after having been placed at the scene by more than 2 witnesses Evidence against A6 Joseph Aluda was tendered by PW5, PW6 and PW7 who identified him and claimed that he was seen carrying and pouring fuel and lighting the fire. In his defence A6 said that he could not remember where he was on the material night and he did not provide an alibi. He merely asserted that he was a fisherman and was arrested later at Sindo when PW1 went there and had him summoned at the Chairman’s office at the beach. A6’s evidence has failed to rebut the prosecution evidence placing him at the scene of the offence. A4 claimed that she was attending a training programme in Rusinga Island. However, PW1 and PW3 placed her at the scene. PW1 said that A4 and A5 held her and wanted to throw him into the burning house but he slipped and fell and ran away. PW3 said that she wrestled with A4 who was trying to chase her towards the burning house. That when she wrestled with her to the ground the 4th Accused raised alarm saying she was being killed and as a result PW3 was attacked by the assailants and that A6 even threw a tyre around her neck but she managed to remove it and rolled on the ploughed farm and they lost her. A4 said she was paid by Red Cross for the training she allegedly attended in Rusinga Island but she didn’t explain how payment made on 1st March 2019 related to training that ended on 28th February 2019. In consideration of the evidence of two eyewitnesses who said they had contact with A4 on the material night and in consideration that A4 failed to avail a representative from Red Cross to prove her alibi this court finds that the evidence of the 2 witnesses has npt been rebutted. The evidence against A2 and 3 was not consistent and / or corroborated. The prosecution evidence placing A2 at the scene is minimal. His wife testified that he was home. Although the court is entitled to treat her evidence cautiously because she is a spouse, her evidence nevertheless remains part of the record. A3 raised an alibi that he was attending an overnight crusade. Although he called no witness to support it, the burden never shifts to him to prove the alibi. The question remains whether the prosecution displaced that alibi beyond reasonable doubt. Having found that A1, 4, 5 and 6 participated in the murders herein, malice aforethought can be readily inferable. The evidence suggests a planned attack at night; several houses targeted; fuel allegedly used; occupants trapped inside the houses and where they had attempted to escape from the raging fires they were forced back and they burnt beyond recognition; statements/ utterances allegedly made that a witch should die with her offspring. Such conduct demonstrates an intention either to kill; or to cause grievous harm likely to result in death. Malice aforethought under section 206 of the Penal Code was therefore be proved. The defence by A1 and 5 that they merely came to observe the fire is problematic because prosecution witnesses place them at the scene before and during the attack; they were allegedly heard speaking during the commission of the offence; they offered no explanation why several witnesses would falsely implicate them. A6 was unable toaccount for his whereabouts and this materially weakens his defence. This court finds that the prosecution proved an organized mob attack that resulted in the deaths and malice aforethought existed; A1, A4, A5 and A6 were positively recognized and participated in the attack. The evidence against A2 and A3 falls short of proof beyond reasonable doubt. Accordingly, this court finds that the prosecution has proved to the required standards that A1, 4, 5 and 6 committed the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. They are found guilty and accordingly convicted under Section 322(1) of the Criminal Procedure Code. For A2 and A3 this court finds that the evidence against them was not consistent as to their participation and this court finds doubt raised and the same is resolved in their favour and they are acquitted under Section 322(2) of the Criminal Procedure Code. **DATED, SIGNED AND DELIVERED AT MIGORI THIS 18TH DAY OF JUNE, 2026.** **HON. ANNE ADWERA- ONG’INJO** **JUDGE** **In the Presence of:** Victor – Court Assistant