https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12624

Republic v Osumo & another (Criminal Case E027 of 2024) [2026] KEHC 12624 (KLR) (6 August 2026) (Judgment) Neutral citation: [2026] KEHC 12624 (KLR) Republic of Kenya In the High Court at Migori Criminal Case E027 of 2024 ACA Ong’injo, J August 6, 2026 Between Republic Prosecution and David Otieno Osumo 1st Accused Samuel Okinyi Okoth 2nd Accused Judgment 1.The Accused persons were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Chapter 63, Laws of Kenya. The particulars of the charge were read to the Accused Persons and the Accused persons pleaded not guilty to the charge. A plea of not guilty was entered and the matter was set down for hearing. The Prosecution called a total of 7 witnesses (herein referred to as PW1-PW7). 2.PW1 was Rose Adongo Odingo, the mother to the deceased. She testified that on 22nd July 2025 she was at her house eating at 8.00pm. That during the day, she was at home with the deceased with her mother-in-law till around 2.00 pm when the deceased left home with his friend known as Silas to Masara as they would normally go. That at 8.00pm she was at the house when one George Osoro went and told her that some people had beaten the deceased and placed him inside lantana camara (thicket). It was her testimony that George told her that Oloo, Otieno Nyamaga Seko and David had beaten the deceased. That she rushed to the scene and found the deceased in lantana camara near Obonyo’s machine and covered with leaves. Upon arrival, she raised alarm and members of public came. She examined Dominic and found that he was still breathing, bleeding profusely but did not respond when called out. He had multiple cuts on his head, left knee and ankle joint. It was also her testimony that the deceased told her he had been cut by Otieno, Seko, Oloo, David and Juenge. That Dominic was taken to the hospital and she was later informed that he died on the way to the hospital where she identified the body for post mortem. 3.PW2, Dr Mark Oduor Peter Muriuki Ndegwa, was the pathologist. He testified that the body had the following injuries.i.Multiple cut wounds on the left knee and leg 6cmx2cmx4cm on the kneeii.4cmx2cmx4cm on the leftiii.Facial oedema with multiple areas of hematoma.iv.Laceration on the left surface of the head.v.Central and peripheral polour and cyanosis.vi.Swollen forearms with no fractures massive scalp hematoma with fractures on the left frontal bone and occipital region.vii.Injuries on the head 4.He also opined that the injuries in the forearms indicated self defence or struggle.He concluded that the cause of death was severe head injury and excessive bleeding secondary to assault by a sharp and blunt object. 5.PW3, Ben Victor Ochola testified that on 22nd July 2025, at around 8.00pm he was at home when he heard a girl screaming at the neighbouring home. He followed two people and, on the way, he met other people who urged him to proceed to the scene. Upon arrival, he found the body of the deceased lying on the ground with several cuts on the head and hands and his mother and Tobias were already there. It was his further testimony that he called one Richad and together with others at the scene took Dominic to the hospital, but died upon arrival. They reported to Piny Oyie Police station and the police proceeded to the scene before taking the body of the deceased to Migori County Hospital. 6.PW4, Richard Ogweno testified that on 22nd July 2025 at around 9.00pm, he was sleeping when one Ben Victor Ochola woke him and informed him that Dominic had been cut badly near Obonyo’s posho mill. That he proceeded to the scene and he had multiple cuts on the head, knee and ankle joint, his body was covered in blood and he could not talk. Together with members of public rushed him to Nyamaranga Piny Oyie hospital but he died. They reported to Piny Oyie police station. The police took the body and proceeded to the scene where they found a pool of blood. The body was taken to Migori County Hospital. 7.PW5 was Daniel Oyugi No. 2xxxxxx5. He testified that he is attached to DCI Suna West and that on 23rd July 2025, a report was made to the station that the accused persons herein assaulted Dominic Wasonga on the night of 22nd July 2025 while the deceased was in a company of Silas Ooko Kine and George Osoro. That they were on the way from Ramuya trading Centre to Nyamulu when they were attacked by the accuse person and others still at large. 8.It was his further testimony that when the matter wa reported, he accompanied CPL Kirong and CPL Matiko and Chief Inspector Martin Mos went to the scene, led by the deceased’s mother, then to Piny Oyie Nyamaraga police station and then to Piny Oyie hospital where the body was lying. The body had deep cut wound on the left ankle, dee cut wound on the left eye and cuts on the ankle. They were informed that the deceased succumbed to the injuries upon arrival at the hospital. He processed the scene and removed the body to Migori County Hospital. 9.PW5 testified that they launched investigation and recorded the statements of Silas Ooko Kine and George Osoro who were with the deceased at the time of attack. That according to their narrations, Silas met the deceased at around 10.00 am and proceeded to Masara where they spent better art of the day in the bar, drinking. That around 1700 hours, they left Masara to Ramuya center to play pool, where they had a scuffle with the accused persons and George who had by then joined them pleaded with them to go home. 10.That as they went home, the 2nd accused person and others followed and attacked them. Silas and George escaped and hid in the bush. That the 2nd accused was managing the pool that day and joined the 1st accused in the quarrel between David and Silas. That the witnesses also identified the attackers as Samuel Okinyi Okoth alias Oloo, Otieno Nyanaga, Wyckliffe Onuna alias Juenge Josepgh Seko Odero, Odhiambo Okebo, David Otieno OsumoAti and Dan Aero. It was also his testimony that they managed to arrest the 2 accused persons and still pursuing other culprits. He attended the post mortem on 29t July 2025 and produced as the photographs and certificate of exhibits. 11.PW6, George Osoro Osoro testified that on 22nd July 2025, he was at Ramuya Centre where he found the deceased and Silas hurling insults and requested them to go home since they were drunk and they agreed. That on the way, some people approached them on motor bikes, they stopped them and held Sila, who slipped and run away. That he saw Oloo, accused number 2 cutting Dominic with a panga on the head and he started running and but they pursued him and court him and continued beating him. 12.That he ran away and informed Dominics other that he was with him but some people were beating him. The next day, he learned that Dominic had died and confirmed that it was 2nnd accused who cut Dominic but did not see the 1st accused at the scene. 13.PW7 Silas Ooko testified that on 22nd July 2025, at 10.00 am, he met the deceased at Nyamulu Centre and departed ways at around midday. That around 2.00 pm, they met at Ramuya market and proceeded to Masara market where they took drinks up to 5:00pm. That as they were leaving, thy me the deceased brother with 2 others and requested then to take them home with their motor bikes but they said they were waiting to be paid. They then requested them to buy for them drinks and they obliged then went to Ramuya market to the pool where they met the accused persons and the 2nd accused was the attendant. 14.It was his further testimony that they were drunk when they arrived and told the people at the pool to tell David (1st accused) to stop calling them thieves yet they had accommodated him in their village. They also that the pool game was going to turn children into thieves. They left and met George (PW….) who asked them to leave they thus left and went to barber shop and later the deceased asked his siter to send him money to send money to buy omena for his mother. That when they left the barber shop, one Otieno told them that they won’t terrorize Nyamulu center the way they did with Ramuya and George offered to take them home. 15.That when they reached Kamwaye Posho mill, suddenly Suli, the owner of the pool stopped them, held him by the collar and asked him why he wanted to steal from is pool and gambling place. He then saw some people running towards them and Oloo and davit were armed with pangas. He also saw Juenge, Joseph, Seko Odero and Dan Aoko Odhiambo Kibo Otieno Nyananga, Suli, Oloo and David. He then told George that they should run away because the people were armed, drunk and would kill them if they don’t run away. It was his testimony that he slipped from the Sili hands and his behind a bush. That the deceased fell while running and when he looked behind, he saw Oloo cut him on the face with a panga. He heard the deceased ask Oloo David and Juenge why they were cutting. He also heard the deceased ask Odhiambo why he was beating his head with a rungu yet they were village mates. That he tried going back to check on the deceased thinking that the attackers had left but found saw David and Oloo. 16.He further stated that he ran home but saw Oloo, David, Seko, Otieno Nyananga, Dan Aoro Onyango, Juenge and Suli Otieno heading to his mother’s house. They told his mother that they had already killed Dominic and were looking for him to kill him too. That then the group left he told his mother that they had told David to spot peddling lies they are thieves. He also stated that the following day, he found Oloo and Otieno Nyananga and told them that they had killed Dominic for no reason. 17.It was also his testimony that when he was supposed to testify on 3rd February 2026, Oloo, David, Suli Juenge, Dan Aoro and Onyango told them that they were waiting to see which road they would follow when going to court. Fearing for his life, he fled to his grandmothers’ home where he was arrested and brought to court to testify. He testified that the he was able to identity the attackers at night because they come from the same village and were together at the pool and that Suli held him by the collar and he was close to him. 18.The Prosecution closed the case at this stage. The court delivered a ruling and found that the Accused Persons had a case to answer. The accused persons were placed on their defence and they chose to give sworn evidence.DW1, the 1st Accused Person, David Otieno Asumo testified that he could not remember the events of 22nd July 2025, but must have been at the gold mines where he worked. He testified that the deceased is known to him as they come from the same village but only learnt of his death in court after his arrest. That when he was arrested the police informed him that Silas (PW7) had implicated him on the murder Dominic. He further testified that Silas (PW7) is known to him and they have always had quarrels with him. That one time, Silas tried to steal his motor bike but he resisted, Silas then beat his head and he reported to the chief. That on another occasion, he met Silas while he was with his girlfriend and Silas wanted to take the girl by force. That Silas who had a panga tucked to his waist then chased him with a panga. It was his testimony that Silas always threatened to teach him a lesson and on the day of his arrest, Silas was the one who identified him to the police. 19.DW2, was the 2nd Accused person, Samuel Okinyi Okoth, who testified in a similar line as the DW1. He also indicated that on 22nd July 2025, he was at his work place at the shop as a pool attendant and at 5.00 pm, he left Sek Odero to stand in for him as he went to Bondo Centre. He stated that he remained in Bondo Nyarongi up to 9;30 pm when he took a motor bike back home and headed to his mother’s house to eat and later went to sleep. The following morning, he woke up and went to the farm. 20.It was his further testimony that his employer called and informed him that Silas and Sinda had gone to the pool to rob. That Otieno Nyananga called his boss to inform him that Silas had Dominic had broken into the shop. That he learnt that his boss went after the Silas and Dominic on a motor bike, caught up with the but Silas managed to escape. That this information was given to him the following day by Seko and he was not involved in Dominics death as he was not present at the scene. 17.On 23 October 2024, parties adopted their written submissions.At the close of defence case parties chose to rely on the record. Analysis and Determination 21.I have considered the evidence for the prosecution and for the defence. At the trial, the burden is always on the prosecution to proof that Accused was a significant contributing factor of the deceased’s death and an accused person assumes no burden to prove his innocence. 22.In Republic v Andrew Muecha Omwenga, Maraga J (as he then was) considered the provisions of section 203 of the Penal Code and expressed himself as follows with respect to what the prosecution must prove to establish the offence of murder:“It is clear from this definition that for an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or omission. There are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are:i.the death of the deceased and the cause of that death;ii.that the accused committed the unlawful act which caused the death of the deceased andiii.that the accused had the malice aforethought.” 23.The ingredients of the offence of murder as provided in Section 203 of the Penal Code and which therefore the prosecution is in this case required to prove beyond reasonable doubt are: -a.The death of the deceased and the cause of that death.b.That the death was as a result of an unlawful act.c.That the accused was the perpetrator of the unlawful act.d.That the accused had malice aforethought. Standard and burden of proof 24.The degree of proof in criminal cases was properly established in the classicus English case of Woolmington v DPP 1935 A C 462. Similarly, in Bakare v State 1985 2NWLR, Lord Oputa of the Supreme Court of Nigeria adopted the principle as follows at page 465: -“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability”. 25.On the other hand, the burden of proof always rests with the prosecution. It is a constitutional imperative under Article 50 (2) (a) that an accused person has a right to presumption of innocence until the contrary is proven beyond reasonable doubt. a) The cause and death of Dominic Wasonga alias Sinda 26.That Dominic Wasonga alias Sinda was killed/died is a fact that was proven by both the Prosecution witnesses and the Defence Witnesses. The deceased was identified by the mother, brother and residents of the area where he lived. Further, the Investigating officer produced photographs of the deceased. Also. PW2, the pathologist produced a postmortem report that confirmed the cause of death as result of severe head injury and excessive bleeding secondary to assault by sharp and blunt object. This court is therefore convinced that I am therefore convinced that Dominic Wasonga alias Sinda died and the cause of death has been ascertained. b) Whether the death was caused by an unlawful act 27.Having found that the deceased died of severe head injuries and excessive bleeding, the next issue to determine is whether the death resulted from an unlawful act. There is no evidence before this court to suggest that the injuries sustained by the deceased were accidental, self-inflicted or lawfully inflicted. 28.The evidence of PW2 established that the deceased sustained multiple deep cut wounds on the head, knee and leg, facial oedema, scalp hematoma, skull fractures and injuries consistent with assault by both sharp and blunt objects. PW2 further opined that the injuries on the forearms were defensive injuries, indicating that the deceased attempted to shield himself from the attack. The medical evidence was consistent with the observations made by PW1, PW3, PW4 and PW5, all of whom found the deceased lying in a pool of blood with multiple cut wounds shortly after the incident. 29.The nature, extent and multiplicity of the injuries leave no doubt that the deceased was subjected to a violent assault. Such assault was unlawful and no evidence was tendered by the defence to bring the actions complained of within any lawful justification recognized by law, such as self-defence or accident. 30.Consequently, I find that the prosecution has proved beyond reasonable doubt that the death of the deceased resulted from an unlawful act. c) Whether the accused persons committed the unlawful act 27.The Constitution of Kenya celebrates the presumption of innocence as the foundation of the right to fair trial. It is on this basis that the burden lies on the prosecution to demonstrate beyond reasonable doubt that the accused person(s) committed the offence. It is a settled position of law that where there is a doubt that is in line with the presumption of innocence, a court of law should give a benefit to the accused person(s). This position is in line with the famous position of the Learned Author William Blackstone’s famous maxim states, “It is better that ten guilty persons escape than that one innocent suffer” (Blackstone, Commentaries on the Laws of England [9th edn, 1783] reprinted 1978). 28.The burden is therefore on the state to ensure that sufficient evidence is demonstrated before a guilty verdict can be returned an accused person. The standard is not about suspicions. This is because criminal proceedings end up in loss of liberty, punishment, thus highly limiting freedoms. As such, Justice Nyakundi expressed himself in Republic v Daniel Charo Katana [2021] eKLR as follows;“It is therefore trite that the state should prove its case so strongly that the evidence leaves the trial Court with the highest degree of certitude based on such evidence. It is to be noted that the concept of reasonable doubt in our criminal justice system is not based upon a sympathy or a whim or prejudice or caprice or sentimentality, jelly fish of a Judge or Magistrate seeking to convict or acquit another human being of the commission of the offence. It is an approach to hold the state to the highest standard of discharging its burden of proof in criminal cases beyond reasonable doubt. It is not a conjecture or a fanciful doubt. It is based on admissible and material evidence to dissuade the trial Court from acquitting an accused person.” 31.The prosecution's case on identification rests principally on the evidence of PW6 George Osoro and PW7 Silas Ooko, both of whom testified that they were in the company of the deceased immediately before and during the attack. 32.PW7 testified that he and the deceased spent the better part of the day together. They first encountered the accused persons at Ramuya Centre where an altercation arose. Later, as they walked home accompanied by PW6, they were accosted by a group that included the accused persons. 33.PW7 stated that the 2nd accused initially held him by the collar while other members of the group approached armed with pangas and rungus. He managed to escape and hide in nearby bushes. From his hiding place, he observed Oloo cut the deceased on the face with a panga while David and the other assailants participated in the assault. He further heard the deceased call out the names of David, Oloo and Juenge asking why they were cutting him and also ask Odhiambo why he was beating him with a rungu. 34.PW6 corroborated PW7's account. He testified that after they left Ramuya Centre, they were confronted by several people on motorcycles. He witnessed the 2nd accused cutting the deceased on the head with a panga. Although he fled the scene, he testified that the attackers pursued the deceased and continued assaulting him. 35.The court has carefully considered the circumstances under which identification was made. Although the incident occurred at night, both PW6 and PW7 testified that they knew the accused persons well as fellow villagers. They had interacted with them earlier at the pool table only a short while before the attack. Their evidence was therefore one of recognition rather than identification of strangers. The Court of Appeal in Reuben Taabu Anjononi & 2 Others v Republic [1980] KLR 59; [1980] eKLR held "This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other”. 36.The evidence of PW6 and PW7 was consistent on the material particulars. They independently placed the accused persons at the scene and described the role each played in the assault. Their testimony was further corroborated by the evidence of PW1, who testified that shortly after the incident the deceased named his attackers while still alive. 37.The defence advanced by both accused persons amounted to bare denials and alibis. The 1st accused stated that he was at work in the gold mines but did not call any witness to support that assertion. The 2nd accused claimed that he had left his place of work earlier and travelled to another trading centre before returning home. Similarly, no independent evidence was adduced to support that account. 38.The law is that an accused person assumes no burden of proving an alibi. Nevertheless, where credible and consistent prosecution evidence places an accused person at the scene of crime and directly implicates him, such an alibi is displaced. In the present case, the evidence of PW6 and PW7 firmly placed the accused persons among the attackers. This court therefore find that the prosecution successfully disproved the defenses raised. 39.This court is therefore satisfied beyond reasonable doubt that the accused persons jointly participated in the unlawful assault that caused the death of Dominic Wasonga alias Sinda. d) Whether malice aforethought was established 40.Under section 206 of the Penal Code, malice aforethought may be inferred from, among other factors, the nature of the weapon used, the part of the body targeted, the severity of injuries inflicted and the conduct of the accused before, during and after the attack. 41.In the present case, the deceased was attacked by a group of persons armed with pangas and blunt weapons. The attackers repeatedly struck him on vulnerable parts of the body, particularly the head, causing skull fractures and extensive bleeding. Even after the deceased fell down, the assault continued. The injuries were not isolated or accidental but were numerous and directed at vital organs. 42.Evidence was also led that the attack followed an earlier confrontation at the pool table. Instead of allowing the matter to end there, the accused persons and their accomplices followed the deceased and his companions before launching the fatal assault. Such conduct demonstrates planning and a deliberate intention to inflict grievous harm. 43.The conduct attributed to the attackers after the incident, including threats allegedly issued to PW7 before he testified, though not forming the basis of the charge, further supports the prosecution evidence that the attackers acted in concert and were conscious of their actions. 44.Considering the weapons used, the manner in which they were used, the vulnerable parts of the body targeted and the severity of the injuries inflicted, this court is satisfied that the accused persons acted with malice aforethought within the meaning of section 206(a) and (b) of the Penal Code. Conclusion 45.Having carefully evaluated all the evidence on record, this court finds that the prosecution has proved beyond reasonable doubt that:a.Dominic Wasonga alias Sinda died.b.His death resulted from severe head injuries and excessive bleeding caused by assault with sharp and blunt objects.c.The fatal injuries were unlawfully inflicted by the accused persons acting jointly with others not before the court.d.In inflicting those injuries, the accused persons acted with malice aforethought. 46.Consequently, I find both accused persons guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. 47.I accordingly convict the 1st accused, David Otieno Asumo, and the 2nd accused, Samuel Okinyi Okoth alias Oloo, for the offence of murder under section 322 of the Criminal Procedure Code. 48.The accused persons shall be accorded an opportunity to present mitigating circumstances before sentence is passed. It is so ordered JUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MIGORI THIS 6TH DAY OF AUGUST 2026ANNE ONGI’NJOJUDGEIn the presence of: