https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8356

Republic v Omondi alias Oginga (Criminal Case E001 of 2023) [2026] KEHC 8356 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 8356 (KLR) Republic of Kenya In the High Court at Migori Criminal Case E001 of 2023 ACA Ong’injo, J May 28, 2026 Between Republic Prosecutor and Lawrence Omondi Alias Oginga Accused Judgment 1.The Accused person in this matter is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. 2.The particulars of the offence are that on the 5th day of December,2022, at South Kanyajuok Sub-Location in South Kanyamkago Location in Rongo Sub-County in Migori County within the Republic of Kenya murdered Peter Kery Kongo 3.PW1 Dr. Ian Omuom Medical Officer of health produced the post mortem in reference to the body of Peter Kerry Kongo. He said he conducted the post mortem on 20.12.2022 at Migori County Referral Hospital at about 3.00pm. 4.On general observations the body he said there was bleeding on the mid frontal region of the head measuring 6 X 6 cm. There was an abrasion measuring 8 X 6cm on the right side of the head. There was peripheral palour – sign of excessive loss of blood. In abdominal space there was 1.5 litres of blood with associated laceration on the liver on the lateral side (right side of the abdomen). On examination of head there was bleeding into scalp. Inside the skull there was also bleeding into the brain. Other systems were normal. The immediate cause of death was severe head injury and raptured liver with abdominal bleeding. This was caused by an assault due to blunt force trauma. He signed the post mortem form and produced it as Ex P1. 5.In being cross-examined by Mr. Ouko Advocate PW1 said that he has knowledge in internal medicine and he had capacity to conduct post mortem as he was trained in forensic pathology. He said the deceased was hit with a rungu on the head as per police report but he did not mention objects used to inflict blunt force trauma. 6.PW1 said that by the time he filled post mortem he was not a pathologist but he had training in forensic pathology and he had capacity to conduct post mortem and fill form. 7.PW2 Valentine Leakey 19 years old said that in 2022 he was a pupil at Kanga primary and he dropped out of class 7 in 2022. He said the accused person was known to him as they come from the same area. 8.That on 5.12.2022 at 3.00am they had come from a night vigil at a neighbours home - the home of Mzee Odero. He said he was with Soldier, Biko Odiwuor and Peter was ahead of them. Peter is the deceased. On the way when they joined the road, there was China construction site on the right hand and it had security lights. When they arrived where there were security lights the accused person emerged from the maize plantation on the left while carrying a rungu and a rungu with a nut. That he went directly to Peter and hit his head from the back with a rungu. He also hit him again on the face and he fell. When PW2 saw the accused attack Peter he feared and he ran to go home to go and report. When he arrived home he found the information had reached home. It is Samwel who took Peter to hospital and when he came back the next morning, he reported Peter had died. The accused didn’t talk to Peter. He just emerged and hit Peter directly. PW2 later recorded his statement. 9.Cross-examined by Mr. Ouko Advocate: I recorded my statement on 18.12.2022 with DCIO. I stated that the accused was armed with a rungu and metal rod and he hit Peter on the head and the deceased fell down I have told court that the deceased was hit twice and that is the truth of what I saw. The fact is that the accused hit the deceased. I did not finish/complete writing my statement. I was in company of 5 people. I don’t know Soldier’s full names. I don’t know the full names of the people who were with me. 10.The 2nd Prosecution witness said the accused hit the deceased at the back of the head and on the face. 11.PW3 Samwel Kobudho Kogo. I come from Masara. I reside in Kanga. I am an electrician, a miner I am also a student at Nairobi Aviation College. On 5.12.2022 at around 3.00am I was sleeping at night when I heard someone call me to come out as Peter was dying. I was in the house with Calvins and Felix. I woke up and went out and took my motor cycle. The people who called me didn’t wait. They went back to scene near China construction site. I took my motor cycle and proceeded to scene next to China site on the right side I found Peter lying on the ground. 12.At China site there was security light which enabled me see Peter was unconscious and lying down. I saw blood on Peter’s clothes and on the head. I was with Calvins. I found some people who were from a certain funeral nearby. I didn’t bother to know who the people were as I was in a hurry to save Peter’s life. We carried Peter to Hopeland dispensary and we were referred to Rongo Sub County Hospital. Whe we reached Rongo we were referred to Migori Referral Hospital. We took Peter to Migori Referral Hospital and it is on arrival I called Peter’s mother and informed her and I went back home.I later learnt that Peter died. Peter is my brother. 13.When cross examined by Mr. Ouko Advocate, PW3 said that he was not at the scene when the incident occurred. He said he only went to scene when he got report that Peter was injured. From scene to Hopeland he used motorcycle. From Nyalgunga village they used a vehicle to Rongo. He said that is same area where incident happened. To Migori they also used a vehicle 14.PW4 Joseph Omollo Ochieng. from Kitere said he is a farmer. He said that on 5.12.2022 Obudho went to him at 3.00am and woke him up and asked him to take Peter who had been injured to hospital. He said his vehicle did not have fuel and they woke up Raymond Okumu who was their neighbor to take Peter to Rongo. That he followed them using his motor cycle.That at Rongo Peter was referred to Migori County Referral Hospital. When he saw Peter, his mouth was swollen and the forehead had an injury. When Peter was taken to Migori he remained behind and went to Kitere Police Post to report and they were referred to Rongo Police Station. PW4 said he was with George his brother’s son when they went to report. On return he was looking for money to use as transport to go and visit Peter in hospital but the following day he learnt Peter had died. That he called Nicholas Peter’s brother and informed him of the death. They went back to the Police Station and reported that Peter had died. Police told them to report to them if they see the suspect. That when they left the Police Station and reached Rongo, they learnt that the suspect had been seen going to Rosewood Hospital. That he was with George and village elder when they followed the suspect and the village elder apprehended him and they used their motor cycle to escort him to Rongo police station. The people who were with Peter including Valentine are the ones who identified assailant as Ogi. Ogi was identified in the dock as the assailant. PW4 said that the suspect was known to him and he comes from their village and from their clan 15.When cross examined by Mr. Ouko Advocate for the Accused, PW4 said that they reached Rongo Sub-County Hospital around 4.00am. The vehicle that carried Peter went ahead of them. He said he was woken up at 3.00am and he did not look at time when they arrived at Rongo Hospital. He said they reported to police at 10.00am after receiving report that Peter had died in the morning. He said he recorded statement on 6.12.2022 which indicates he received report at 00.00hours that Peter had passed on. He said he got phone call in the morning that Peter had died and he did not know what time Peter died. Peter died on 6.12.2022. He said he was not at scene of the incident 16.PW5 Nicholas Otieno Kong’o, said he came from Masara and he was a farmer. He said that the deceased Peter was his younger brother. He recalled that on 20.12.2022 he identified the body of Peter for post mortem at 3.00pm at Migori County Referral Hospital 17.PW6 No. 96188 PC Kiplagat Rutto Shadrack of DCI Rongo testified that on 6.12.2022 he was in the office when 2 people came from Kitere Police Station with OB extract for having reported murder incident. That he received them and interrogated them and they told him that the suspect in court hit his friend and the victim was rushed to the hospital. They told him they were in a group of young men at the time which incident happened namely Allan, Valentine Leakey and others. He recorded statements of the witnesses and learnt that scene was outside China site which had security lights. That Allan identified the perpetrator who hit his friend, the deceased herein. While at station on 6th December 2022, Joseph Omollo came and informed them the suspect was within town. They went and arrested suspect and brought him to the station where he was re-arrested and he was charged. 18.PW6 arranged for Post mortem to be done and cause of death was established as head injuries. PW6 also did visit the scene outside gate of China site and he confirmed there were security lights. 19.PW6 said in cross examination that he interrogated the witnesses who were at the scene and according to the witnesses whose statements he recorded the accused hit the deceased once on the head 20.In re-examination PW6 said that 3 witnesses recorded statements and some said the accused hit the deceased once and others said more than once and that because of fear they ran away. 21.PW7 Allan Onyango Otieno 16 years old from Kitere next to Rongo University said he was a student at Awuonda Secondary school but he dropped after form I in 2023. He said the accused was known to him as they come from the same area and he had known him for long. He said the Accused’s nick name is Ogili. 22.He testified that on the night of 5.12.2022 he was at a funeral near where Chinese were mining gold at the home of Odero. He said it is Odero’s child who had died. He said he was with Soldier and Peter, the deceased herein. That they were also with Oti. That they went to the funeral at around 9.00pm and remained there up to 3.00am when they left to go home with Peter, Soldier, Oti and valentine. That when they got to the China security light at the gate there was a maize plantation opposite the site. That is when the accused emerged from the maize plantation and hit Peter. The maize plantation was across the road. That when Ogi emerged from maize plantation he was armed with a rungu. PW7 said that Peter was walking behind them and Ogi came from behind and hit Peter at the back of the head using rungu. PW7 said Ogi didn’t talk to them before hitting Peter. He said Ogi was also at the funeral and they didn’t differ with him while at the funeral. That when Ogi hit Peter on the head PW7 ran and went to call Peter’s brother known as Obudho. He reported to him that Ogi had beaten Peter. Obudho went to scene with motor bike and took Peter to hospital. That after a while Obudho called and told me Peter had died. Later he recorded a statement with the police. 23.PW7 said that the gate of China site was lit with security light. It was bright and covered a wide area 24.PW7 in cross examination said that he took oath to speak the truth. He said he recorded his statement on 6.1.2023. He said he was with 4 people who were Soldier, Peter, Valentine and Oti. He said it is Soldier who said he saw Ogi armed with a metal. He said he was walking ahead of Peter when Ogi emerged from the maize plantation and hit Peter. That before Ogi hit Peter, they had quarreled at the funeral. At the road, there was no quarrel. Ogi emerged from the maize plantation suddenly and hit Peter. Peter let out a cry once when he was bit by Ogi and that is when he saw Ogi. PW7 said that the deceased was taken to Rongo Hospital using a motor bike. That from Rongo Peter was referred to Migori County Hospital using a neighbours car.In re-examination, PW7 said that Peter let out a cry when he was hit. 25.PW8 Salmon Otieno Onyango testified that he came from Masara and he was working in gold mines in Rongo. He said he was 27 years old. He also said that the accused was known to him. When he started staying in Rongo in 2022 he used to see him while riding motor bike. He said he came to know his name after this incident. 26.That on 5.12.2022 at around 2.00am to 3.00am they were at a funeral at Mzee Onyango’s home. That is the day the body had been brought home. He went for the funeral at 9.00pm. He said he was alone and it his brother who knew the people in that home and he told him to wait for him. 27.PW8 said there was prayer vigil up to the time when it changed to disco. That he continued waiting for Peter. He said Peter’s brother Samuel Kongo had come e earlier with Felix to the funeral. That he asked Samuel where Peter Kerry was and he told him Peter had left the mines and had gone to the house. Peter came at 11.00pm with his brother Valentine. PW8 said that he had an injury but he and Peter had planned to go to a different mine at 6.00am. When he urged Peter that they should leave he kept on telling him to hold on. As he was waiting the accused came just as we were about to leave. The accused came in company of 3 people and he was armed with a rungu. Valentine the brother to Peter wanted another girl at the funeral but it appeared that the girl was also wanted by accused person’s group. I heard the accused say “kama hauna damu chukua huyo msichana”. He was armed with a rungu. Peter told the accused to leave Valentine alone as he was just a child. One of the people who was with the accused told him to allow us to leave. PW8 and Valentine and Kerry (Peter) left but after a short distance, Valentine decided to go back and insisted he had to take the girl. They didn’t heed to my advise that they should just go home. That he started following them from a far. When they got to the funeral, the accused said’ “Sinilisha waacha muende nyumbani” Valentine insisted he had to go with the girl. That he urged them that they should go home and they heeded. That they started walking home. He said he and Valentine and Kerry were ahead and Allan was walking behind them going towards the same direction. He said they were walking while telling stories. That when they got to Chinese mining site where there was light at the gate, and maize plantation opposite the site, suddenly someone emerged and hit Peter at the back of the head and on the mouth. When he was hit on the head he staggered. That is when he was hit again on the mouth. That he heard the deceased shout “ulitakakuniua, niue umenitafuta sana”. When Peter was hit Allan ran awaybut he was in shock and didn’t know what to do. He said the person who hit Peter was in the maize plantation and when he turned, he saw other people running towards scene with torches. One of them was armed with panga. Valentine asked the accused why he was killing Peter. That he asked Valentine if that was the same person they had quarreled with at the funeral. That he and Valentine ran a bit and as they wanted to go back to the scene to protect Peter, the people threatened them while scratching pangas on the tarmac and pelting them with stones. They decided to go home and report. When they got home, they reported to Samwel. They found Allan had already woken people in the home, Sam had a motor bike and he rushed to the scene. When he and Valentine arrived at scene, they found Peter was being carried on a motorbike to hospital. He was referred to Migori County Hospital. Since it was at night they remained at home. The next day they went to visit Peter at the hospital. They arrived at 7.00am and found he was groaning and bleeding from the mouth. That Peter was admitted in the ICU and was recommended for referral to Eldoret. The day that Peter was to be taken to Eldoret is the day that he died. The assailant hit Peter from the back of the head. The person had dreads. It is Valentine who called the assailant as Ogi. The person who assaulted Peter at the funeral had rastas. When he hit the deceased, he still had rastas. It is the accused person 28.In cross examination by Mr. Ouko Advocate for the Accused PW8 said that he recorded a statement and confirmed he asked Valentine if the same person who quarreled them at the funeral is the one who hit the deceased. He said the accused had dreadlocks. At the funeral it is the accused who quarreled with Peter and Valentine. Kerry Peter and Valentine were brothers. The incident happened less than 2 weeks of his arrival in the area and he confirmed from Valentine that the person who hit Peter is the same one who quarreled them at the funeral. It is Valentine who was insisting on leaving with the girl. Peter had gone to protect his brother Valentine who wanted to go with a girl. PW8 said he understood that there was a long-standing grudge between Peter and Ogi. Accused person’s group said that Valentine could not go with the girl. PW8 said that since he was born he had never witnessed a person being killed and he didn’t expect that Peter could be killed. 29.In re-examination PW8 said that he had never experienced such an incident and he was shocked. It was not normal. 30.At the close of prosecution case the accused was placed on his defense and he gave sworn testimony and said he came from Kitere village and he knew why he was in court. He said that on 5th December 2022 at around 3.00am on the morning of 5th December 2022 he went for a night vigil at a funeral and while at the vigil alcohol was brought and they drunk it. Later he had differences at the vigil with the person who is said to have died. There was altercation between him and the deceased. He said his sister’s son quarreled with the deceased and when the nephew reported to him, he intervened and told the deceased that it is his nephew who had come with the girl they were quarreling over. 31.After he intervened things became quiet. When he left, he found 5 people standing at China gate and the deceased drew a knife and he used a rungu that he had to hit his head in defence. He said he hit him on the head once and ran and went home. There is a post mortem report confirming the deceased died due to a severe head injury caused by blunt object. The accused said he had no previous grudge with the deceased. He said that while at the night vigil he consumed some alcohol and when he left the vigil, he was drunk. He said that he hit the deceased once when he produced a knife to stab him. He said he had had no intentions of killing the deceased. The Accused prayed for leniency because what happened was due to drunkardness. The death was accidental and he had never committed any offence and he had never been charged. 32.When cross examined by Mr. Oimbo Counsel for the state the Accused said that his nephew called him and reported that he was quarrelling over a girl. He said his nephew was Ashavine. He was fighting over a lady with someone else. The person he was quarrelling with was not the deceased. The person was in the company of the deceased. He admitted that the attack happened at the China gate. The gate was well lit. It also had CCTV. That when he got there, he saw 5 people who also saw him because there was light. He said the 5 people saw exactly what happened. Salmon Otieno PW8 was also present. The 5 people he saw at the gate of China square included 2 whose names he knew. He confirmed that the 2 testified in court. The Accused said he used to have dreadlocks during that period. He said that after he hit the deceased with the rungu, he flee and he did not know what happened. Out of the group it is Peter who produced a knife to stab him and that is when he raised his rungu and hit the deceased. He said the 5 were standing at the gate and when he was passing, Peter drew a knife and when he turned and saw he had raised a knife to stab him he hit him with a rungu. He said that since they had differed at the night vigil, he suspected he wanted to stab him. The Accused confirmed he is the one who inflicted the injuries that led to Peter’s death 33.The Accused said in cross examination by the court that he is 28 years old. He said his nephew did grade 8 exams. He said he did not know how old his nephew was as it was about 5 years since he did examinations. He said he didn’t know the girl his nephew was fighting over. 34.Upon close of defence case the accused person’s Advocate requested for time to file submissions. Analysis And Determination 35.Having considered the evidence on record for the prosecution and the defense this court is to determine if the prosecution has proved beyond reasonable doubt that there was death, the death was caused by an unlawful act and that it is the Accused who committed the unlawful act with malice aforethought. 36.On proof and cause of death PW1 Dr. Ian Omuom examined the body of the deceased and gave evidence which conclusively proved this element. The medical findings disclosed severe head injury, bleeding into the scalp and brain, ruptured liver and massive abdominal bleeding of about 1.5 litres. The doctor formed the opinion that death resulted from blunt force trauma caused by assault. There is therefore no evidential gap regarding death or causation. 37.On whether the Accused inflicted the fatal injuries, the evidence against the accused is strong because there were multiple eye witnesses, the accused himself admitted striking the deceased, the incident occurred under security lighting and the accused was well known to the witnesses before the incident. He was therefore recognized rather than identified at the scene. 38.PW2 Valentine and PW7 Allan were categorical that the accused emerged from the maize plantation while armed with a rungu and he struck the deceased on the head. They also said that the area was illuminated by security lights from the China mining site. 39.PW8 Salmon also corroborated the evidence of PW2 and 7 when he said that there had been an earlier confrontation at the funeral. He also identified the Accused as having dorned dreadlocks and that he emerged and assaulted the deceased. 40.This was evidence of recognition rather than mere identification of a stranger, making it considerably more reliable. Further, the accused admitted that he is the one who inflicted the injuries that led to the death of the deceased. That admission substantially removes doubt on identity and participation. 41.Whether the act was unlawful, the prosecution evidence suggests the attack was deliberate and unprovoked at the scene. This is indicated by the evidence that the accused allegedly emerged from concealment in a maize plantation while armed in advance with a rungu and he attacked the deceased suddenly from behind without speaking. The deceased was struck from behind. That evidence points toward an ambush rather than a spontaneous fight. 42.The defence version was that the deceased drew a knife and that he struck once in self-defence. However, the defence encounters several difficulties. No knife was recovered or mentioned by any prosecution witness. The conduct of the Accused is suggestive of aggression rather than self defence. According to PW2, PW7 and PW8 the accused lay in wait; emerged suddenly and attacked first. This weakens the self-defence narrative. 43.The injuries inflicted were extensive: severe cranial injuries; liver rupture and abdominal bleeding. Even though the accused claimed to have struck only once, the medical evidence suggests substantial force. Some witnesses also stated the deceased was hit more than once. 44.On whether malice aforethought was proved, under Section 206 of the Penal Code, malice aforethought may be inferred from intention to cause of death; intention to cause grievous harm; knowledge that the act would probably cause death or grievous harm. According to PW7 and PW8 there had been disagreement at the funeral over a girl shortly before the attack. Evidence that the accused emerged from a maize plantation while armed strongly suggests preparation and premeditation. The accused targeted the head — a highly vulnerable part of the body. Malice may be inferred where a dangerous weapon is used against the head. The injuries were catastrophic and consistent with very forceful assault. 45.The Accused raised the defence of intoxication and said he consumed alcohol at the funeral but throughout cross examination of prosecution witnesses it was not suggested that anyone at the funeral consumed alcohol that may have influenced their action. 46.The evidence from PW8 suggests tensions at the funeral involving rivalry over a girl and heated exchanges shortly before the deceased and his group left the funeral and before the assault. The deceased and his group had left to go home but the Accused person followed them and lay in wait in the maize plantation from where he emerged and suddenly hit the deceased. The fact that the Accused struck the deceased more than once confirms that the Accused acted with ulterior motive. 47.From the evidence of PW8 in cross examination he said he understood that there was long standing differences between the Accused and the deceased that may have led the Accused to commit the murder. 48.This court therefore concludes that based on the material presented by the prosecution witnesses and the Accused, the accused unlawfully assaulted the deceased and the assault caused death. 49.The fact that the Accused lay in wait for the deceased and attacked from concealment while deliberately targeting the head severally using substantial force makes this court find that he was possessed of malice aforethought. 50.The Accused is found guilty for the offence of murder and is accordingly convicted under Section 322(1) of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED AT MIGORI THIS 28TH DAY OF MAY, 2026.HON. ANNE ADWERA- ONG’INJO JUDGEIn the Presence of:Calvince – Court Assistant