https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11586

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CRIMINAL CASE NO. 14 OF 2018** **REPUBLIC …………………….……..……………………………..……………. PROSECUTOR** **VERSUS** **FRANCIS MAENDE OMUKHUBA Alias TIMO .….…………………..………. 1ST ACCUSED** **CANARY OSALE Alias SULU .............................………………………...…. 2ND ACCUSED** **HARRON ANAMINYI ………..............................………………………...…. 3RD ACCUSED** **MOSES MWINAMI OTIENDE Alias MOSEE …………………………...…….. 4TH ACCUSED** **JUDGEMENT** 1. The four Accused persons, Francis Maende Omukhuba Alias Timo, Canary Osale Alias Sulu, Harron Anaminyiand Moses Mwinami Otiende Alias Moseewere charged with two counts of murder contrary to Section 203 as read with Section 204 of the Penal Code. The first count was that on the 21st day of January 2018, at Emungweso Village, Wambulishe Sub-Location, Kisa Central Location in Khwisero Sub-County within Kakamega County, they jointly murdered Thomas Obulunji Okwach. 2. The second count was that on the 21st day of January 2018, at Emungweso Village, Wambulishe Sub-Location, Kisa Central Location in Khwisero Sub-County within Kakamega County, they jointly murdered Stephen Okwomi Ashibende. 3. The Accused persons denied the charges and the prosecution called ten (10) witnesses in a bid to prove its case. 4. PW1, Sarah Omusula said that the deceased Thomas was her son and that she new the 1st Accused who is her neighboour and the 4th Accused whom she sees at Khwisero but did not know the 2nd and 3rd Accused persons. She testified that on 21/1/2018 at 10.00 am. While she was tethering her cow at her home, she heard screams. She asked passersby what had happened. One person told her that boda boda people had arrested the people who had killed Iso. She did not know Iso. She went to the road where she found a group of people going away with a person. They were many people and she could not get near them. On reaching the place, she was called by someone who informed her that the group of people were looking for her son Thomas. He did not tell her the reason. She went home. She then heard that Thomas had been killed. 5. PW1 went on to recount that Thomas had gone to visit his father who is her brother-in-law in the company of Stephen his brother. Stephen came back from the visit the same day. He told her that a group of people had gone and taken Thomas away from her brother-in-law’s house and that he, Stephen had escaped. Stephen did not know who had killed Thomas. The witness said that she did not identify anybody in the group that were taking away the person. She recalled that she found Thomas’ body at the mortuary. 6. On cross-examination, PW1 said she was not at the scene where Thomas was killed and could not remember the person who informed her of the incident. She said that she first went to the mortuary and was referred to the police station to make a report. When referred to her the statement she had recorded at the police, she conceded that it says that some women had informed her that her son was being sought. She also agreed that the statement states that she saw Timo, Mukhwana and Aluoch and that Mukhwana and Aluoch were not in court. She said that she saw Timo on a motor cycle but not the other Accused persons. She said she did not know whether her son was a thief. 7. No 85240 Sergeant Adam Ali testified as PW2 and recounted that he was with the DCI Khwisero before and that on 21/1/2018 at about 10.30 a.m., they were at the office when they received information that boda boda riders from Khwisero had taken two people hostage and were headed towards Emungweso area. Together with the OCS and OCP Khwisero Police Station and accompanied by other police officers, they went with a Land Cruiser to pursue the boda boa riders. On arrival at the scene, they found the two people had been killed. The two were Stephen Okwami and Abel Obulunji and their heads had been smashed. They took the bodies to Yala Hospital mortuary after taking 5 photographs which he identified and were marked PMFI 1(a) – (f). He further said that afterwards they passed by the scene and found the wreckage of a motor cycle registration number KMCR 592Y which had been burnt and took it to the police station. They did not arrest anybody on that day. 8. When cross-examined, PW2 said that he could not tell who killed the deceased and that on arrival at the scene, they found many boda boda riders. He said he could not remember seeing the Accused at the scene on the material date. He said that he assisted in recording statements from witnesses and that the witnesses did mention the four (4) Accused persons. Livingstone Opwaka mentioned that Haron the 4th Accused wanted some information from Carol. He further stated that the statement of Bernard Eshiola mentions five (5) people being Timothy, Moses Otieno, Elisha Isaac Sebo as part of the boda boda riders who took away the deceased after tying him on a motor cycle. Out of the five names, the 1st and 4th Accused are named in the statement although the typed statement mentioned no names. He said that the statements by Joseph Njisi and Silas Omuteku mentioned no names. He said that the scene of crime personnel processed the scene although the photographs did not indicate the photographer’s name nor the date and that he could not see his certificate on them. 9. PW3 was Frida Olukayi who recalled that on 21/1/2018 at around 11.00 a.m., she heard the sound of a motor bike while with her parents and brother Eshiula. Shortly, she saw a large group of motor cycle riders enter the compound and ask for Eshiula’s house while some started pelting their house with stones. The 3rd Accused whom she knew as Haron asked her for Caro’s whereabouts, and she informed him that she had left. Caro was Eshiula’s wife. The group started destroying the property and singing a song implying that they wanted to kill Eshiula. 10. PW3 continued that their father got annoyed and armed himself with a panga but was pinned down by the crowd and got hurt. Shortly thereafter, Caro arrived whereby Timothy and Haron took her away on a motor bike and she returned after one hour. Suddenly, they heard wailing from the neighbours who was saying that the boda boda people had killed Okwoni. She did not know of any grudge between her brother and the boda boda riders and that day, she saw the 1st, 3rd and 4th Accused at their home. She further testified that on that date, Okwoni and Habil Obulunji Okwach, a neighbour to Timothy were killed. 11. When cross-examined, PW2 said that she had narrated what she told the police but the statement did not mention about her father being cut despite him telling the police so. He said she did not remember what brands the motor bikes were and did not remember what the 1st and 4th Accused were wearing, but the 3rd Accused was wearing a white T-shirt. She said that the group did nothing to her brother Eshiula and none of the Accused asked her about the deceased nor did they destroy anything in their home. She said that Haron asked about Caro and they left on a motor bike ridden by Haron while the 1st Accused was a pillion passenger. She said that she had known the Accused persons and the deceased before the material date. 12. PW4, Bernard Ashula Njisi testified as PW4 and recalled that on the material date at about 9.00 a.m., he was digging at his home when he heard noise from Stephen Okwomi’s home. He looked towards the direction and saw people chasing each other. The home is about 200 metres from his home and he decided to go and check what was happening. On arrival, he found Moses Otiende the 4th Accused beating Stephen while in he company of others. He also saw the 3rd Accused. On asking them why they were beating Stephen, they claimed that the deceased was suspected of murdering a boda boda rider who had been killed the previous week. They said they were taking him to the police station and the 1st Accused led the procession of many motor cyclists. PW4 said that he decided to go back to his work and shortly thereafter, he heard screams from the deceased’s home that he had been killed. He was also informed that a second person had also been killed. After a while, he heard a group of people approaching his home while singing in Luhyia to the effect that they were going to finish him. He went behind his father’s house and climbed a tree to hide. He saw the 4th Accused enter their homestead, survey the home and go back to the crowd. They attacked his father’s house with stones. His sister Frida (PW2) came out and showed them his house which they attacked and destroyed partly. Annoyed, his father got out with a panga and one rider called Sebo knocked him down with a motor cycle. His wife who had gone to fetch water arrived and the 3rd Accused took her in the company of the 1st Accused and they left in a motor bike ridden by the 1st Accused. After they left, he descended and went to the DC’s compound and was arrested by APs and taken to the police station where he was booked in the cells. He slept there and was released after recording a statement. He got his wife at the station and she was released and went home. 13. PW4 said that he knew the Accused persons well as they are form the same village. The 4th Accused was his classmate, the 1st Accused was his team mate in a Football Club at Khwisero. The 3rd Accused would assist his mother sell vegetables at the market, while the 2nd Accused, whom he knew as Suleiman was a football player with Imbinga FC. 14. Cross-examined, PW4 said that when he first heard the noise, he looked up and saw the 4th Accused chase and catch up with the deceased and tie him while beating him, then he took him away on a motor bike. He said that he did not see the Accused kill the deceased and the Accused persons were in a group of many other boda boda operators. 15. Joseph Njisi, PW5 said that on 21/1/2018 at about 10.00 a.m., he was at home when he saw a crowd of boda boda operators go to the deceased’s home, tie him up while beating him and left with him on a motor bike. After a while, he received news tha the deceased had been killed. He further recounted that later, the same crowd went and surrounded his home while demanding to see PW4 who was hiding in the DC’s compound by then. When they failed to get PW4, they demanded for his wife Caro who they got hold of and took away. The witness said that he did not recognize any of the attackers and when Caro returned, she said that she had been taken to the river and abandoned. The witness said that he later learnt that the crowd had killed two people. He said that he had tried to repulse the crowd that was taking away his daughter-in-law, but one of them hit him with a motor bike and hit his leg on the left. 16. On cross-examination, he said he could not remember the people who attacked him even if he saw them and that he knew two people were killed but not who killed them. 17. PW6 was Amwai Stephen Oburinji, a brother to Thomas Okwach Obulunji the deceased. He testified that he lives in Nairobi and that during the material time, he had been home for two (2) days. He recalled that on 21/1/2018, he was at home in Khwisero and that morning he and the deceased were to visit his cousin Alexander Ambayo at his home. While there, a group of people arrived on motor cycles and asked for someone who was not with them then left. Shortly, a larger group arrived and took away his brother and started beating him as they took him away. When he asked why, they also beat him so he ran away and went to the hospital because he had been hit on the head. From the hospital, he was told that his brother had been killed and the body taken to the mortuary. He visited Yala District Hospital and viewed his late brother’s body. It had cut wounds on the head. 18. The witness identified the photograph marked as PMFI 1(d) and said he could see the body of his brother in a black T-shirt. He said he could not identify the other body. He went on to say that on 25/1/2018, a post-mortem was conducted and he and his mother identified the body for post-mortem after which the Doctor said he died out of injuries from assault. He said he did not know why his brother was killed and he could not identify any of the Accused persons as having been among the gang. 19. PW7, Silas Ashivenga, a driver from Shivandu said that on 21/1/2018 he was resting at his home when his wife Margaret Awinja woke him up to inform him of a commotion in his brother’s homestead. He headed to his brother’s homestead only to find that some people had left with his brother who used to live alone. He decided to call his uncle Laban Abuya but did not get him at home as he had gone to report at the police station. When he called his Uncle, he asked that he accompany him to the police station at Khwisero where they reported the incident. When the police followed, they found that his brother had been killed and the body taken to the mortuary at Yala. The witness identified the photograph of his brother with a vest. 20. According to PW8, when he visited the mortuary, the body had cut wounds on the head. Shown the photographs, he said he could not identify the other body. Post mortem was done on 25/1/2018 and he and a cousin Josia Omukuba identified the body for purposes of post-mortem. 21. PW8 was Caroline Eshiula, who said that on the material date at around 10.00 a.m. she was seated outside with her mother-in-law and her father-in-law Joseph. They heard some noise and on running to find out what was going on, they found many boda bodas at the home of one Okwomi. The riders were chasing after Okwomi and caught up with him. They beat him up while forcing him to say something. As he was being beaten, he was saying, “It is not me! It is no me!”. After beating him, they tied him to a motor cycle using a rope. They left while the riders were pulling him using the motor cycle and proceeded home. When they reached their neighbour Sande’s home, someone told them that the boda bodas were headed to their home to burn her house. She ran to her house as she had a sick child and found her child seated with the grandmother outside the house. There were many boda boda riders and they were beating people up. When they saw her, they told her to sit on the motor bike. She sat on the motor bike, which belonged to Timothy the 1st Accused, whom she knew. He was with Moses, the 4th Accused. Those were the only people she identified alongside Haron the 3rd Accused. She said between the 1st and 4th Accused they took her and as they approached the Church of God, they were looking for a certain woman whose name she did not get and whom they did not find. They released her after asking her where her husband normally stays. They did not hurt her. They wanted to know whether her brother-in-law Tony sold cows and she responded in the negative. After her release, she walked back only to learn that her kiosk had been destroyed and one Tololo had been arrested. 22. PW8 said that she went and made a report at the police station and returned home at 3.00 p.m., when she was informed that Okwomi had been killed. The witness said that she witnessed the boda boda riders beat Okwomi and tie him to Timothy’s motor bike. She did not see the 2nd Accused at the scene but the team that tied Okwomi to the motorbike was the 4th Accused who was the boda boa Chairman and beat the deceased, while the 1st Accused carried him. When shown the photographs, she identified Okwomi. 23. Cross-examined, PW8 said that the deceased was an in-law whom she witnessed being assaulted. She said she did not report that anybody was being beaten but was testifying on what she saw. She said that she feared the Accused persons would kill her. 24. PW9 was Dr. David Ikuru Shivachi who testified that he authored one of the two post-mortem reports and wished to produce the other report as well as it was prepared by his colleague Dr. Collins Oginga who he had worked with for one year. There being no objection from the Accused persons’ Counsel, the prosecution’s application that the witness do produce the post-mortem reports was allowed. 25. PW9 produced the post mortem report in respect of Thomas Okwach Ubulunji whose body was identified by Sarah Obulunji and Stephen Amwayi Obulunji before post-mortem was done at Yala Sub-County Hospital on 27/1/2018. The body was of an African male aged 43 years and had multiple lesions and bruises over the abdomen and the back with an underlying blood clot. There were fine deep cut wounds on the right side of the head penetrating in the skull and measuring 8-10 cms each. The head had skull fractures of the right side involving frontal, temporal and occipital bones. The nervous system showed severe haemorrhage. As a result of the examination, the Doctor formed the opinion that there was cardio-respiratory collapse following sudden and severe brain injury (haemorrhage) secondary to assault. The post-mortem report was produced as P.Ex1. 26. PW9 went on further to narrate that the second post mortem report was for Stephen Okwomi Ashibende on whose body he was requested to perform a post-mortem by Khwisero Police Station. The body was identified by Silas Omuteka Ashibende and Josiah Ashioya Omukuba. He conducted the autopsy on 25/1/2018 at 1.30 p.m. at Yala Sub-County Hospital mortuary. It was a 38 year male African whose estimated date of death was approximately one week. The findings were as follows: The left leg was mangled with dislocation fracture of the right shoulder. There was obvious open multiple fracture of the head with fracture of the left mandible and maxilla bones. On internal appearance, there was respiratory system collapse of the left lung, fractured ribs number 5 to 10 on the left side, multiple fracture of the skull with the central spine fluid leaking from the temporal area of the skull. There was also brain contusion. As a result of the examination, PW8 said that he formed the opinion that the cause of death was unnatural due to cardio-pulmonary arrest as a result of lung collapse and severe brain injury. He produced the post-mortem report which was marked P.Ex2. He said the injuries were consistent with assault. 27. On cross-examination, PW8 said that the pricking of the lungs caused the collapse of Stephen Okwomi’s lungs. 28. PW10 was P.C. Matiko Dominic who took over as an Investigating Officer from Cpl. Adam Ali who had since been transferred. He testified that he had Cpl. Ali’s recorded statement in which he recorded that on 21/1/2018, at 10.30 a.m. they received information that boda boda operators within Khwisero had taken hostage of two people and were planning to kill them. According to the Investigation Diary, the report was made vide OB Number 7/21/1/2018 wherefore the OCPD Kwisero Mr. Langat together with the OCS Khwisero and Cpl. Adam from DCI proceeded to the scene and found the victims one Stephen Okwomi and Abel Obulinji Okwami had been grievously injured and no longer alive. They found some boda boda cyclists around the scene of incident and learnt that the deceased had been killed by boda boda operators who pelted them with stones. According to the OB, the suspects were arrested by Chief Inspector Gichohi accompanied by Cpl. Langat and one suspect Francis Maende Omukhuba also known as Timo was placed in custody. 29. PW10 said that he perused the statement and established that one witness Caroline Eshiula said that she witnessed the incident. He brought her to court and she identified the Accused. The witness produced five photographs which were marked P.Ex3 (a) to (e) as well as Cpl. Adam Ali’s statement as P.Ex4. The Accused did not object to the production. 30. On cross-examination, PW10 said that he did not listen to the evidence of PW8. He said from the initial report, the Accused persons’ names were not given but from the investigations, the Accused persons killed the deceased. 31. At the close of the defence case, the court acquitted the 2nd Accused of all the charges and found that although no evidence was led as to the circumstances that led to the death of Thomas Obulunji Okwach Alias Abel, a prima facie case had been established against the 1st, 3rd and 4th Accused over the death of Stephen Okwami Ashibende. The 1st, 3rd and 4th Accused persons were therefore acquitted in Count 1 and placed on their defence with respect to Count 2. 32. In their defence, the three Accused persons gave sworn statements and called three witnesses. DW1 was the 1st Accused who said that he was a long distance truck driver and that he did not know the deceased persons. According to him on the material date, he was at Khwisero preparing to go to church when a businessman called Nathan phoned and informed him that he was at the shops and could see a huge crowd of boda boda riders who were claiming that one of them had been killed. He informed the caller that he was enroute to church, but would inform the Chairman of the boda boda riders. At that time, he was the Organizing Secretary of the Khwisero Sub-County. He called the Chairman of the Boda Boda Operators, Khwisero, by name Moses Mwinamu and informed him of the call including the threats by the boda boda operators to kill someone in revenge. He advised the Chairman that they meet at Khwisero town and when they met, they were informed that the boda boda operators had met with Haron because when he called Moses, Moses called Haron, the Secretary. DW1 said that Haron is the 3rd Accused. 33. DW2 stated that they headed to the homestead where the boda boda operators had gone to kill. They found many operators. They had tied a young man to a motor bike. He claimed he did not know the homestead. He then called the OCS Khwisero to inform him of the incident. This was at 9.30 a.m. and he sought the intervention of the OCS lest the crowd succeed in killing the hostage. The OCS said that they had only one vehicle. They waited for the police vehicle in vain. DW1 said he and the Chairman pleaded with the crowd to release the intended victim so they could do more inquiries. They agreed and released him. They then left the place with the young man with the intention of rushing him to the police station which was about 200 metres away. About 50 metres away from the Police Station, the boda boda riders overtook them and snatched the young man from them and told them that they would kill him then go kill a girl called Caro who had caused the boda boda rider to be killed. On inquiry, they learnt that Caro was a neighbour of the young man who was going to be killed. He then left with Moses, Haron his co-Accused, and others not before the court. They went to Caro’s home where they found her and informed her that they had gone to save her from being killed because the boda boda riders intended to go and kill her next. She asked them to take her to her church mate’s place for her safety but on their arrival, the lady was missing. Since Caro said that she would be safe, they left her there. Next, they went to see the OCS and found them gone to a murder scene. The next day, he, Moses and Haron went to the OCS and explained to him what had happened and he promised them they would be witnesses. He denied killing the deceased and claimed that he was only trying to help. 34. On cross-examination, he said that in 2018, he was a driver and the Secretary of the boda boda operators while the 2nd, 3rd and 4th Accused were leaders of the same group. Before the incident, a boda boda rider Isaac had been killed and the murder of the two people was to revenge Isaac’s death. He denied organizing the group for revenge. He said that the deceased, who was tied to the motor cycle was Stephen and that they took him from his home after finding him tied to spikes of the motor cycle. He said he could not recall who was riding the motor cycle nor the people he saw. He denied the allegations that the motor cycle was his, or being involved in tying the deceased up or pulling the deceased with the motor cycle. According to him, PW3, PW4 and PW8 who testified that they saw him may have seen him when he went to rescue the deceased. He said that Stephen and Abel died and the other person who was to die was Caro. He denied that Bernard, Caro’s husband was being looked for. 35. DW2 was Haron Anaminyi Olwade, the 3rd Accused. He said that he was an electrician and that on 21/1/2018, he received a call from Moses, who urged him to hurry up and go to Khwisero but did not tell him why. On arrival, he found Moses at the football field opposite the Police Station. He found Moses, Timo, some young men and women, and one policeman. On inquiry, Timo informed him that some boda boda riders were headed to a certain home on a revenge mission to kill someone. They discussed and decided to follow them to the home. On arrival, they found some boda boda riders in Stephen’s home, where they had tied Stephen’s feet to the motor cycle although he had not been beaten. DW2 said he asked Moses to address the boda boda riders and implore them to release the deceased as he was their Chairman. Timo had earlier called the OCS who had said that he had no vehicle. The crowd released Stephen and they took him towards the Police station. Timo was the one with the motor cycle. However, the boda boda riders overtook them and blocked them from advancing into the police station. They were forced to stop and the person who originally had the motorcycle forcefully took it from Timo and snatched the deceased from them asking why they had rescued the deceased. They also shouted that they would go and kill Eshiula’s wife as she was involved in the killing of the boda boda rider. 36. DW2 said that they decided to go and rescue Esiula’s wife Caro and they went there and advised her that she needed to hide to save her life. They asked her to board a motor cycle and direct them where she wanted to be taken for safety. They informed her father-in-law of the need to hide her and took her to a fellow church member’s home where they did not find her but left Caro there then went back to Khwisero. DW2 said that he never witnessed the deceased being killed as he feared to face the crowd. He said that he was arrested when he went to visit Zulu, the 2nd Accused at the Police Station and informed that he was being charged for murder. He denied being involved with the killing. 37. Cross-examined, DW2 said that on the material date he and his co-Accused all leaders of the Group, met as a result of phone calls asking them to converge. They met at the football field where they decided to go to Stephen’s house. To reach the house, they used Simo’s motor cycle and Simo left them at the gate then proceeded to church. He said he did not know whose motor cycle took them to Caro’s place after Timo was forced to disembark from his motorcycle, but they used a different motor cycle to take Caro away. He said that on that day, they did not follow up to find out what had happened to the victims. 38. DW3 was the 4th Accused; Moses Otiende Mwinami. He said that on 21/1/2018 while preparing to go to church, he received a call from Francis Maende who urged him to hurry to Khwisero because something bad was happening. He rushed over and on reaching there, Francis informed him that the boda boda riders had gathered with the intention of killing someone. He called Haron over and he arrived shortly thereafter. They briefed him then called a boda boda rider who took them to follow the riders. They reached a homestead he did not know. They saw a young man, unknown to him, whose feet were tied to a motor cycle. As leaders, they successfully addressed the crowd and urged them to release the young man to them. They took the young man on the motor cycle he was tied to towards the Police Station but were overtaken by boda boda riders who overpowered them and took the young man and the motor cycle and left with him. After that, they decided to look for Caro, as the crowd were baying for her blood. They rushed to her home and explained to her that she was in danger. She asked them to take her to her lady friend at Bushinala. They took her and left her there after she assured them that she was safe. They went to the OCS to report but did not find him. Later, he heard that some people had been killed. The next day they went to see the OCS who told them that they would be witnesses. After a year, he was arrested and later charged. 39. On cross-examination, DW3 said that after rescuing the deceased, they were attacked by the crowd, who said that they would go for Caro after finishing with him. He said they were not far away from the police. He admitted that they did not go to report to the Police Station, which is 50 metres away. He denied the suggestion that they had already killed the deceased by the time they were picking Caro. He admitted that after dropping Caro, they did not go back to check what had happened to the deceased despite being leaders of the boda boda riders. He denied the suggestion that they went to the police station for cover up. He also denied disappearing after his co-Accused had been arrested. 40. DW4 was Nathan Omuroka who said that he knew the Accused persons, who used to be leaders of boda boda riders. He said that on 21/1/2018 he was at the shop buying milk when he heard a lot of noise and saw many people and on inquiring, he learnt that a suspected killer of a boda boda rider had been arrested by boda boda riders on a revenge mission. He was given a lift by a boda boda rider and on arriving at the compound, he saw someone who had been tied to a motor bike. He heard that the person was called Okwomi. He phoned Timo and explained the situation to him. Timo arrived with his colleagues and engaged the crowd in some discussions. He saw them take Okwomi on the motor bike. Timo sat in front, Okwomi was in the centre and Mose sat at the back. As they went, the crowd followed them. As they approached Khwisero Hospital, the motor bikes started speeding and he ran to catch up with them but by the time he reached them, they had been stopped. Timo’s motor bike was taken from him and Mose caused to disembark. One of them rode the motor bike. He did not know him nor the other boda boda riders. At Emungeso junction, they found a huge crowd and motor bike on fire. He did not know whose motor bike was burnt. He did not see Timo or Mose at that time and Okwomi was beaten about 2 ½ to 3 Km away from the Police Station and shortly thereafter, the police arrived. Later, he heard that the Accused persons had been charged with murder. 41. On cross-examination, he said that the deceased was beaten at the road junction. He could not identify Okwomi but said that he only saw one person being beaten. He later heard that another person had been killed. He claimed that he was standing at his shamba which was about 50 metres away and the riders had surrounded the scene. He said that he never went to the Police Station to record his statement. He denied seeing Caro at the scene. He said Timo informed him that he had called the OCS. 42. DW5 was Shadrack Otaro Inzoberi, a barber at Khwisero, who said that he knew the Accused persons and that on 21/1/2018 he heard a commotion while at his barber shop. He got out and saw a crowd of boda boda riders heading towards the police station on Khwisero-Shirunga road. He and members of the public joined them and they arrived at Okwomi’s homestead. He saw Okwomi tied to a motor cycle and the crowd talking agitatedly. Timo and Moses were addressing the crowd. He said Timo boarded the motor bike onto which Okwomi was tied and Moses followed him. Timo rode off and the other boda boda riders followed them. He hopped onto a boda boda and followed. Between the Health Centre and the Primary School, the boda boda riders caught up with them and stopped them. They surrounded them and took the motor bike. The boda boda riders did not want to go to the police station. Timo surrendered the motor bike, and the riders proceeded and left them at the scene. Timo and his co-Accused did not follow them. Later, he heard that Okwomi was killed and that Timo and his co-Accused had been arrested. 43. On cross-examination, DW5 said that he knew the Accused persons well but not Okwomi’s character. He said that Francis Omukhuba was the rider of the motor cycle onto which Okwomi was tied and that he found them at Okwomi’s place. He said that the Accused rode with Okwomi for about 1Km and he thought they were taking him to the Police Station because their fellow riders suspected them of going to the Police Station. He said the scene was between the Hospital and the Police Station and Okwomi was not beaten at the scene. 44. DW6 was Joram Akhonya Maloba, a businessman at Khwisero. He said that Haron the 3rd Accused was his customer while the rest of the Accused were boda boda riders. He said that on 21/1/2018, while he was in his shop which is near the road, he heard the sound of motor bikes and got out and saw a huge crowd with a motor bike ahead carrying three people one of who was tied to the middle. The said motor bike attempted to stop at the junction but was immediately followed by the boda bodas that were at stage. The riders chased after the motor bike and caught up with them between the Dispensary and the Police Station. They engaged in a shouting match and saying, “Huyu ni mwizi”. He did not understand who they were claiming was a thief. They were mentioning one Musa. He feared to approach. He could see the 3rd Accused. In the process, he heard someone mention the police then he saw the Accused persons being forced off the motor bike then the motor bike was turned to face Mulwanda. He saw the 3rd Accused and his co-Accused remain at the scene. The crowd heading to Mulwanda passed by his shop. Later, he heard that someone had been killed. He heard that the deceased was a thief. Later, he heard that the Accused persons had been arrested and charged with killing the deceased and came to stand by the truth as he hates injustice. 45. During cross-examination, DW6 said that he leant of the charges facing the Accused persons six months ago when Haron the 3rd Accused informed him of the same. The 3rd Accused did not ask him to be his witness but was complaining about being wrongly accused. He said he did not know where the person whose hands were tied was from and he did not hear about any killing. He said that he heard Haron address the crowd and say the that they ought to take the suspect to the police. **Analysis and Determination** 1. The burden of proof in a criminal trial rests upon the prosecution and it is required of them to prove the case beyond reasonable doubt as held in **Woolmington v. DPP [1935] AC 462**. It is trite law that where there is some reasonable doubt in the prosecution’s case, the benefit of doubt will favour the accused. However, it must be noted that the standard of proof is not beyond a shadow of a doubt but one of a high degree of probability. In **Miller v. Minister of Pensions [1947] 2 ALL ER 372**, it was held that:- **“…That degree is well settled. It need not reach certainty, but it must carry a degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect community if it admitted fancily possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case if proved beyond reasonable doubt but nothing short of that will suffice…”** 1. In a charge of murder, the elements that must be proven are:- 2. The death of the deceased. 3. That the death was unlawfully caused. 4. That the unlawful action was done with malice aforethought. 5. That the accused committed the unlawful act which caused the death. 6. In a nutshell, the prosecution must demonstrate to the required standard of proof, the co-existence of the guilty act and the guilty intention. In **Joseph Kimani Njau v. Republic [2014] KECA 229 (KLR)**, the Court of Appeal held that:- ***“In all criminal trials, both the*actus reus*and the*mens rea*are required for the offence charged; they must be proved by the prosecution beyond reasonable doubt. The trial court is under a duty to ensure that before any conviction is entered, both the*actus reus*and*mens rea*have been proved to the required standard…”*** 1. The death of Stephen Okwomi Ashibende was proven. Both the prosecution witnesses and the defence witnesses were in consensus that he died. His body was identified for purposes of post-mortem by PW7 and Josiah Ashioya. A post-mortem on the said body was conducted on 25/1/2018. It is trite that a post-mortem is an examination on a dead body to examine its cause. There is therefore no doubt whatsoever that Stephen Okwomi Ashibende died. 2. Article 26 of the Constitution stipulates that every person has an inherent right to life and that no person may be deprived of life intentionally except as authorized by the Constitution or by law. The sanctity of life is therefore guaranteed and means that homicide is unlawful unless authorized by law, excusable under the law, or justifiable under the circumstances such as self defence or defence to property as was held in **Guzambisi S/o Wesonga v. Republic [1948] 15 EACA 65**. 3. On whether the death was unlawfully caused, it was common ground across all the witnesses, that the deceased was a victim of the common ire of a mob of boda boda riders who were intent on undertaking a revenge mission on behalf of one of their own, a boda boda rider named Iso a.k.a Isaac, who was alleged to have been killed by the deceased. The riders were baying for blood and took the mantra “a life for a life” and ensured it was executed in cold blood. They descended on the hapless victim’s homestead, took the victim, brutally tied him to a motor bike, drove off with him and eventually inflicted the fatal injuries on him. 4. The deceased was clearly a victim of what in a misnomer, is referred to as “mob justice”. This, despite the fact that the police station was less than 2 Km away from the deceased’s home and it would have been logical for him to be apprehended and handed over. What the boda boda riders were doing was to execute their misplaced sense of justice by committing an offence. In **Mohammed Dadi Kokane & 7 others v. Republic [2014] KEHC 1088 (KLR)**, the Court in its Judgement arising from mob justice underscored the fact that mob justice is an affront to the rule of law that cannot be justified under any circumstances. 5. Finally, the Court has to decide whether on the evidence, the Accused persons were properly identified as the ones who killed the deceased. In a case where mob justice is involved, the court must exercise caution to ensure that identification of the accused as the one who is culpable for the offence is foolproof. In **Republic v. Turnbull & others [1976] ALL ER 549**, Lord Widger CJ established the circumstances necessary for consideration whenever an issue of identification arose and stated that:- ***“First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition, he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken.…Secondly, the Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way as for example by passing, traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long it elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witnesses when first seen by them and his actual appearance?”*** 1. Closer home, in**Cleophas Otieno Wamunga v. Republic [1989] KECA 47 (KLR**), the Court of Appeal held that:- “***Evidence of visual identification in criminal cases can bring about miscarriages of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification.”*** 1. Having said that, the Court is alive to the holding in **Reuben Taabu Anjanoni v. Republic [1980] KECA 23 (KLR)** where the Court of Appeal held that identification by recognition is the most reliable form of identification. This being a case in which the fatal injuries were inflicted through mob justice, the doctrine of common intention comes into play. The underpinning statutory provision in establishing the element of common intention is found in Section 21 of the Penal Code which provides:- ***“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”*** 1. The prosecution’s case and the defence case present two divergent views concerning the question whether the Accused persons were properly identified as among the assailants. Whereas the prosecution’s case is that they actively participated in the killing, the defence case is that theirs was a case of mistaken identity although they were present at the scene, theirs was a rescue mission gone wrong and not an attack. It is therefore necessary to analyze the two sets of evidence to establish whether the prosecution discharged its burden of proof. 2. From the evidence, there were two co-related incidences that occurred on the material date. In the first instance, the deceased was forcefully tied onto a motor bike and driven off his home and killed not far from the police station. According to PW4, he clearly saw the 3rd and 4th Accused beating the deceased. He was familiar with them and close enough to ask why and perhaps it was his questioning that led to them to look for him later. PW4’s evidence was that it was the 4th Accused who chased after, and caught the deceased then tied him to the motor bike while beating him. The incident was corroborated by his father PW5, who however said that he could not recall the attackers. Further corroboration was provided by PW8 who testified that she saw the 4th Accused beat up the deceased and pull him to the bike, and that the team that was tying the deceased comprised the 1st and 4th Accused, the Chairman of the boda boda riders. The prosecution’s witnesses were not shaken in cross-examination and their evidence was cogent and credible save for some immaterial inconsistencies. Besides, the 1st, 3rd and 4th Accused admitted that they were present at the scene and took away with the deceased but insisted that they did not participate in killing him. 3. I have carefully reviewed the Accused persons’ defence vis-à-vis the prosecution’s case. Once the prosecution established that the Accused persons were the persons who were last seen, albeit with other boda boda riders, riding away with the deceased, it became their legal responsibility to tender a reasonable explanation that would exonerate them from blame in view of the claim by prosecution that they were involved. Moreover, the fact that they were the leaders of the boda boda riders that they allege killed the deceased requires them to offer an explanation notwithstanding the fact that they plead innocence. In **Ali Salim Bahati & Another v. Republic [2019] KECA 898 (KLR)**, the Court held that:- ***“We must say that it is difficult in the case of mob justice, such as in this case, to pin point that a blow or assault by a particular person in the group led to a victim’s death. It is in such circumstances that the provisions of*Section 21 *of the*Penal Code*come into play.”*** 1. Under the principles of common intention, it is not necessary to prove that an accused actively participated in the mob justice in order to find him guilty. It only needs to be demonstrated that he was part and parcel of a group whose intent was to commit the offence. In **Peter Odhiambo Abonyo v. Republic [2025] KECA 608 (KLR)**, the Court of Appeal held that:- ***“In the present case, there was no obligation on the prosecution to demonstrate that it was the appellant who inflicted the fatal blow. Indeed, there was no need to even demonstrate that he inflicted any blow at all. The requirement was to demonstrate that he was acting in concert with a group of others and that they were pursuing a specific unlawful purpose which led to the commission of the offence. As the record amply demonstrates, the mob that accosted the deceased at the roadblock of which the appellant was a participant was acting in concert; and they were pursuing an unlawful purpose. The unlawful purpose was to eject and, at least, assault the deceased for perceived wrongful targeting of a boda boda rider with arrest. In the present case, therefore, the doctrine of common intention was appropriately applied to link the appellant with the ultimate crime committed which was murder.”*** 1. In the present case, despite the Accused persons denying culpability there is clear uncontested evidence linking them to the boda boda riders who were on a bloodthirsty revenge mission. The evidence by the prosecution witnesses is that they beat the deceased and tied him to the motor bike then drove him off to his death. This is contrary to their defence that they went and sought to intervene and save the deceased by taking him to the police station. Even if the court were to believe that the irate riders were most unlikely to listen to them, the evidence that they assaulted the deceased points to an unlawful action on their part. 2. I have considered the defence in its entirety and find it to be an afterthought. If indeed it was true that the Accused persons were on a rescue mission, they should have raised the said defence from the inception. Secondly, the 1st Accused claimed that he called the OCS Khwisero to inform him of the threat to the deceased’s life. If that were so, the Accused person’s best defence would have been the OCS himself. The 1st Accused did not indicate the number he used to call the OCS, nor whether his report was recorded in the police Occurrence Book as is expected of such reports. Furthermore, PW7 testified that he and his uncle Laban went to the police to report about the incident only to arrive back home and find that the deceased had been killed. PW7’s evidence renders the Accused person’s claims that he personally called the OCS unlikely, more so in view of the fact that they were later arrested and charged. The question in the court’s mind is; If the OCS knew that he had received a call from the 1st Accused seeking police intervention, why then arrest and charge the Accused persons? 3. The evidence of the three defence witnesses are not conclusive to exonerate the Accused persons. In the first instance, the court finds the evidence of PW6 unreliable as not only did he claim that the boda boda riders were alleging that the deceased was a thief when all the evidence points to a different reason for the attack, but the court also had the opportunity to observe him as he gave his evidence and concluded that he was an unreliable witness. 4. Regarding DW4 and DW5, it was their evidence that they were unable to go near the boda boda riders. So how could they tell what was going on between the Accused persons and the riders. The fact that DW4 could not identify Okwomi on the photographs also raises doubt concerning the credibility of his evidence. As for DW5, he arrived at the deceased’s home as the motor bike was taking off with the deceased, and so he is not in a position to know what happened before he arrived. According to his evidence, he only concluded that the Accused were taking the deceased to the police station but no one expressly told him so. It is also instructive to note that he said that the Accused persons did nothing after disembarking from the motor bike, but only stood there without talking. 5. Back to the Accused persons, none of the prosecution witnesses testified that they were rescuing Caro. Indeed, Caro herself said that they interrogated her regarding her husband and Tony, a claim that is corroborated by earlier evidence that the crowd had gone to their home baying for her husband’s blood wherefore her husband Bernard was lucky enough to jump onto a tree. If at all it were true that the Accused persons saved Caro, there was no reason for Caro not to say so in Court. 6. Lastly, the Accused persons’ actions after the deceased was taken away from them was suspicious. They did not follow up to know what had happened to the deceased and only went to the OCS the day after. If they were as concerned with the deceased as they claimed, one would expect that they would go to the police station the same day considering the incident occurred early in the day. 7. In the end, all the evidence put together point irresistably to the fact that the Accused were positively identified as the persons who killed the deceased. 8. The evidence that the deceased was a victim of mob justice was uncontroverted and I am satisfied that the death of the deceased was effected with malice aforethought as the killers did not wish to have the deceased handed over to the police for him to face the force of law. 9. Moreover, the injuries sustained by the deceased were extensive. They comprised, inter alia, multiple fractures to the head and a collapsed lung, all evidence of a brutal attack on the deceased. Even without the lung injury, the fractures were grievous enough and given the area targeted, could have eventually led to death. Additionally, an attack on a defenseless person by a crowd of people constitutes a malicious act. I find that the prosecution was able to prove malice aforethought. 10. In the end, I find that the prosecution was able to prove its case against the three Accused persons beyond reasonable doubt. The Accused persons are convicted of the murder of Stephen Okwomi Ashibende under Section 322 of the Criminal Code. Dated, signed, and delivered at Kakamega this 21st day of July 2026. **A. C. BETT** **JUDGE** **In the presence of:** ……………………………………….. for the Prosecution/State ………………………………………….. for the Accused persons Court Assistant: Polycap