https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12350

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **HCCRC NO. 88 OF 2017** **REPUBLIC ……………………………………………………..PROSECUTOR** **VERSUS** **LAZARO OTIENO ………………………..………………….….ACCUSED** **JUDGMENT** 1. This matter started as **Machakos HCCRC no 41of 2012**. The accused person **Lazaro Otieno** was charged together with **Eric Masese Arisi** of the murder of **McAlphine Ogise** on **15/11/2012** at Wote Town Makueni District within Makueni County. 2. The charge is murder contrary to **Section 203** as read with **Section 204** of the Penal Code. The accused persons pleaded not guilty on **9/5/2013**. The matter was transferred on **1/3/2017** to Makueni. 3. On **4/12/2017** the court was informed that the 1st accused **Eric Masese Arisi** died on **26/11/2017**. The record states that the case against the 1st Accused was “closed” on **21/5/2018** and the court directed that the matter proceeds for hearing against the 2nd Accused **Lazaro Otieno**. **Prosecution’s Case** 1. I took over the matter when PW1 to PW7 had already testified and I had to rely on the record, after complying with s. 200 as read with s. 201 of the Criminal Procedure Code. 2. This is among the oldest cases I have found in the criminal justice system here at Makueni. The accused person first appeared before **Hon. Makungu-DR** on **20/11/2012** in **HC Misc. Cr Appl. 184/2012**. 3. The Hon LJ Jaden took plea on **9/5/2013** and heard the application for bond and delivered Ruling on **28/8/2013**. The matter went through the Hon LJ Mutende until **14/7/2015** . On **20/1/2016** it came before Hon LJ Nyamweya (as she then was), then before Hon Ogolla J **on 13/9/2016**, Hon Kemei J on **1/3/2017** when it was transferred to Makueni. 4. Then Hon C. Kariuki J on **16/3/2017** took over. He heard Pw1, Pw2, Pw3. Hon L J Ong’udi (as she then was), took over on **8/4/2019** heard Pw4, 5, 6, 7. Hon. Dulu J took over on **27/11/2020**. I took over on **30/5/2023**. I heard the Doctor, and the defence. 5. The case for the prosecution was that at the material time **Joel Ogise Aitu-Pw 1** was the Land Registrar, Makueni. He lived with his three children – T.O aged 14 years, **McAlphine Ogise** aged 12 years and J.O.A who was 2 years old. He was not living with their mother – but he had a house help by the name Angela. 6. He also lived with the Accused persons – and **Eric Masese Arisi** who was the 1st Accused was his cousin, and **Lazaro Otieno** who was his **driver**. He said his children complained that the accused persons were bringing girls to the house, and he cautioned both of them about it. 7. He testified that on **16/11/2012** he was at Choma Base bar having drinks – around 5:00 pm he sent the driver to assist prepare the children – T.O had been there to say he wanted to repair his bike. 8. He told the court that it was also was about 5:00 pm that he was told that his child was killed. When he got home, he found Lazarus, Erick, T.O and the body of McAlphine. T.O told him that McAlphine had demanded to know from Lazaro and Eric where they were taking Daddy’s things. 9. He noticed that a 12kg gas cylinder, and cooker were missing from the house. 10. He said police recovered wa heel spanner and piece of timber from the deceased’s room. 11. He said Angela told him she saw the 2nd accused carry the child out of the house. 12. He said his children had different mothers. He said he was not aware that one of the children said McAlphine had committed suicide. 13. **Pw 2** was a minor – SM – he was 12 years at the material time. He said he was a friend and school mate with McAlphine. On that day they were riding bikes, then they went to McAlphine’s home. That they took accused’s phone and began to play games. That the accused found them – he ordered them to leave, SM said McAlphine refused to leave the house, and went and locked himself in the bedroom. 14. That the accused found SM outside. That he asked where McAlphine was. That he said he saw the accused enter the house and hit McAlphine with a wheel spanner. That while outside he saw the accused person and his friend take McAlphine out, put him at the rear seat of the motor vehicle on the floor – that hey opened the gate –and entered the motor vehicle. He testified that he saw the accused take a rope, tie round neck of McAlphine– that his friend went up the tree – that they hanged McAlphine, then they cut the tree and he fell down. -That the Accused’s friend was driving – and when he saw SM, and noticed he had seen them, he tried to knock him down. He said he ran away towards Kaiti River. He said he feared the accused because he was harsh. 15. On cross-examination he told the court that he told the police about all this 2 days later. At some point he said he was told what to say; he however said that it was true that the accused killed the deceased – by hitting him with a spanner it was pointed to him that that statement was not in the statement he recorded with the police. 16. **Pw 3-Magdalene Nthenya Mathias** told the court she was a teacher at Makueni School where McAlphine was a day scholar, the older brother a boarder. She said she could recall a day not far from the day the boy died when he told her he was hungry, had not eaten supper because the father came with visitors and told them to go to sleep “*Baba alikuwa na wageni akatwambia tuende tukalale*.” She said the mother called the boy on her (teacher’s phone) and the mother said she would come for the child – then on **15/11/2012** she was told the boy had died. 17. **Pw 4 Mariene Bosibori Amunda** knew accused as her PW1’s her husband’s driver – and that McAlphine was her 2nd born child. She said that her older son T.O rang her on **15/11/2012** and told her that her son McAlphine had strangled himself. Upon receiving the information, she travelled to Wote. 18. She told the court that she and PW1 had parted ways three months after the boy was born, and the boy had only lived with the father for 1 year before he died – he had come to live with the father after 8 years. She said the child’s father refused to bury him – and the boy was buried at her matrimonial home. He never attended the burial. 19. She told the court that her husband Pw 1, and the accused his driver took her children away in **May 2012** – that 2 weeks later, she saw her son – he was “***locked up, punching walls***”. She said he was being mistreated by her husband’s women – that her husband was forever drunk. She said she suspected her husband and the driver. 20. **Pw5 T.G.O** – brother to deceased. 21. He was in boarding school, McAlphine was a day scholar. He said McAlphine told him he was not being fed well at home. On **15/11/2012** that he refused to go home and they spoke with the teacher. They rang their mother. McAlphine stayed in school and had dinner with him in school. Then he went home. 22. He said Mac told him Eric and Lazarus used to beat him. When they closed school he went home. He found that Mac’s bike was spoilt – He went told Pw 1 at the Bar . PW1 gave him Kshs.1000/= to repair the bike. He asked Mac to go with him, but he declined. He finished about 5:00pm and went home. He said he met Eric walking in a hurry out of the home. His T-shirt was untidy and torn in the neck. He had left him with the boys – he asked Eric about the boys – he said Eric retorted that he was not their maid. When he got home, he found a crowd. He met his friend Mark Muturi who told him that his brother was dead. He went to the scene to find his brother, unconscious with a rope round his neck – another was on tree and had been cut. 23. He asked his brother what had happened that his brother only said “***uchungu, uchungu***”. He followed Masese he did not see him, he said went to a restaurant that was nearby and borrowed a phone from which he called his mum and informed her of what had happened. He said that their landlord was a doctor. This doctor invited him to his house. 24. That when they went into the house – they found blood on the floor, a wooden log- blood on Joel’s pillow, blood in the sitting room, bedrooms that had been wiped. Junior was nowhere. 25. That Around 8:00 pm – Joel, Eric, Accused, Junior arrived. He said Mac was 9 years . That police came the following day and took the blood stained pillow, a wooden metal from the sitting room. 26. On cross-examination he said Joel ( I noted that the record indicated that he referred to him as Joel) (PW1)was always drunk. He said Choma Bar where Joel was drinking was around 100 metres from their home. He said he found Joel, Eric, Accused at Choma Bar around 3:00 pm. 27. He said Mac complained of several women who came to the house and mistreated him including the 2 accused persons. 28. He said it was broad day light when he found the crowd. He said Eric said he had a nose bleed the previous night. He said he never met his father that morning. 29. **Pw 6 No. 233867 C.I. Davis Nakabila** said he was at Wote on **16/11/12** when he received call from the OCS over report of sudden death. It was at 6.45 pm. Together with colleagues they went through Choma Base Bar where they met the father of deceased. It took him (father of deceased) around 30 minutes to come out. 30. He said he looked distressed, and reluctant to take them to his house. 31. He said he knew the area well and he spotted a crowd towards the far end from the Choma Bar. When the people saw the police car they approached them and took them to the scene of sudden death. 32. Upon arrival he noticed the body of a 6(sic)-year-old boy around 50 metres from the residence – there was an empty sack next to the body, a slim sisal rope part of which was on the boy’s neck the other part was on a branch of the tree.. 33. He handed over the scene to CPL Mbathi the scenes of crime officer. He identified the photos in court – PMFI 1(a) to (j). 34. He told the court that the father of the deceased had disappeared into the crowd – it was the members of public who took him through the house Upon entry of the house. It was 2 bedroomed house – one bedroom was for the use of all the boys – was in what he described as a pathetic state, disorganized. 35. He told the court that DCI took over the case while he took the body to the mortuary – Makueni. Three people were arrested – including the accused. 36. On cross-examination he said the room was disorganized because the curtain had been pulled down bed sheets on the floor, blood stains on the head of the bed and the mattress. He said he did not see the investigators pick anything from that room. He said he did not test the strength of the tree – also that the weight of the child who he said was 6 years old could not have been sustained by the tree. 37. **Pw 7 – No. 63937 Sgt Samuel Bati** was at DCI Makueni at the material time. He documented the scene – took 10 photos. The deceased was a child lying dead, under a tree with a loose rope on the neck. Shown the photos he said there was a sisal rope on the tree branch. He said he did not know what measurements needed to be taken to cordon the scene. He said they used the lights of the motor vehicle to light the scene as he took photos. 38. He produced the photos as PEX 1 (a) to (j), the certificate as PEX 1(K). 39. I heard **Pw 8 – Dr. Emmanuel Loiposha** who produced the postmortem report on behalf of **Dr. Fredrick Okinyi**. The report was dated **17/11/12** – for McAlphine Ogise. There was rope tied around the neck – 36 cm being with a knot. He made the following observation on the body; * **Cyanosis of the nail beds and tongue, bruise on chest wall 2x2 cm– bruise on right ulna bone internally –** * **There were small blood clots in the lungs – lungs were congested,** * **Bruises on the right head, vein vessels were congested the pericardium and endocardium had small blood clots on the surface.** **Cause of death** –Asphyxia from manual strangulation. 1. On cross-examination he said that there were curved abrasion marks on the neck, and this could be suggestive of suicide. 2. The prosecution closed its case. **Defence Case** 1. The accused testified in his defence on **19/11/2025.** He told the court that on the date the offence was said to have happened he was not at home – it is Masese who was present and it is him who could have explained. 2. He told the court that at that time, he was with the father of the deceased – that he then went to service the car, came back around 6:00 pm when the father of deceased called him to pick him from the bar. He found that he had left. He followed him – he found him at the scene. 3. On cross-examination by Mr. Kazungu the prosecutor, he confirmed that he worked for Joel Ogise as his driver – when he worked in Migori and when he moved to Makueni – they came together in 2010. He confirmed that he lived with 2 children (deceased and Jnr) and their father in the same house, together with Masese who was bother to Ogise, and a Mukamba house help whose name he could not recall. That Masese had come on attachment, and he would stay with the children. 4. He said on **15/11/2012** they were at work when he took Joel Ogise to Choma Bar, then took motor vehicle to the garage. He said Ogise rang him to take him home. The car was not ready – when he went to the bar Ogise had left, he followed and found that they had gone to the mortuary. The defence closed its case. 5. Both counsel had said they would file submissions. It took some time for the proceedings to be typed. I have not seen any submissions in the file or on CTS as on 30/6/2026 a 12:38pm. **Analysis and Determination** 1. I have carefully considered the evidence on record. 2. At the close of the case for both the prosecution and the defence the issue is **whether the prosecution has proved beyond a reasonable doubt that the accused person murdered McAlphine Ogise on 15/11/2012**. 3. Section 203 as read with s. 206 of the Penal code states the ingredients of murder. 4. These were set out by the Court of Appeal in **Anthony Ndegwa Ngari -vs- R [2014] eKLR,** as follows 5. ***The death of the deceased occurred and its cause.*** 6. ***That the death was caused by an unlawful act committed by the accused (actus reus).*** 7. ***That the accused had malice aforethought (mens rea).*** 8. On the 1st issue – it is not in doubt that the boy died – his death was unlawful – cause of death – manual strangulation leading to asphyxia. Did the accused person cause the death? 9. From the evidence before me the accused and Masese and the house help were the adults in the home when **McAlphine** died. According to the minor SM, he said he saw the accused and his friend whom he did not name, or describe tie the boy with a rope on the tree and proceeded to cut the tree leading to the falling down of the boy. 10. His testimony was not corroborated by any other person and contained discrepancies that I could not resolve from the record – at one point he said he was told to say what he had said at another he said he was telling the truth. He also said this happened in broad day light – that the accused and his friend took the boy, hanged him, cut the tree and he fell down. 11. SM started by saying that the accused came home and found him playing with McAlphine and chased them out of the house. That McAlphine refused and locked himself in the bedroom, but he SM ran away and but while outside saw accused hit deceased with wheel spanner. It was not clear from his testimony how he saw happen while he outside yet he said the deceased was in his bedroom. He said the accused and his friend took McAlphine out of the house while he was kicking. 12. Looking at the evidence given by the Police Officers , it is evident that investigations were not carried out to resolve these issues within SM’s testimony , even to get the identify of this other person who SM referred to the friend of the accused. SM the presumption is that SM having been a regular in the home knew Eric Masese and would not refer to him as the friend of the accused. 13. In addition are details in the testimony that did not make sense. That the accused, and his friend placed the deceased “the rear seat on the floor, then they opened the gate”, then they entered the motor vehicle”. Now, does this mean that they drove off with the deceased in the rear seat at the back of the m/vehicle? While at the same time he said the accused person” took sisal rope, tied around deceased neck and his friend went up on a tree and they hanged him then cut the tree and he fell down.” 14. At this time the accused’s friend was driving the motor vehicle, and tried to run down SM, and while he was away, he also saw them drive to the other side with the motor vehicle. 15. The police did not attempt to verify this statement – as to who this other person, and whose motor vehicle was being driven by the accused’s friend. 16. The child’s father PW1 said he saw the police take the wheel spanner from his motor vehicle away and a piece of timber. The police officer at the scene testified that he did not see the Investigating Officer take anything from the scene – in any event neither of these 2 items were connected to the accused/deceased. There is no evidence that they were subjected to forensics. It was also said there was blood in the house but there is nothing placed before court to connect the same with the death of this child. 17. PW1 Joel Ogise, the father to the child also told the court that the child Jnr also recorded a statement but he was never called to testify. Pw 5, the brother to deceased said he left Eric with the boys (deceased and Jnr) when he arrived home, he met Eric leaving the home – he found his brother unconscious, and one Mark Muturi was there. There was no one else at home – the accused was not there – the accused, his father, Eric and junior showed up later. 18. He also said he found accused and his father playing a game at Choma Base. At some point the motor vehicle was not there. The accused told the court he was with the father of the deceased, then took motor vehicle to garage. He showed up home after the incident – and this is confirmed by Pw5 the deceased’s brother. 19. It is also evident that the person seen leaving home when the deceased was still alive was Eric. The person Pw5 found at the scene Mark Muturi did not also testify but SM was not at the scene. There was no explanation why this key witness did not testify . 20. These gaps rendered the defence by the accused possible that the was not at home at the material time and there is nothing to place him at the scene at the time the child died. 21. PW5 the brother said when he arrived his brother spoke – saying ***“uchungu” “uchungu”*** – and when he e rang his mother he told her that his brother had strangled himself, committed suicide. The pathologist testified that this was a possibility considering the marks on the neck of the deceased. 22. Clearly – there was another side to this story. The boy had been brought by his mother to his father – he was attending day school while his elder brother was boarding. The teacher and his own brother confirmed there was mistreatment at home by the uncle – and the women who were brought to the home. At some point he ate supper in school with his brother as he had not eaten at home. 23. Their father was described as an all-time drunk. Pw5 said he was never sober, his wife said so – he did not take care of the children and left their care to 3rd parties. Pw5 even said when they closed school there was no food in the house. It was said that the house help left in protest – this child was neglected. The mother testified that 2 weeks after being left with the father he was locked in a room where he was hitting the walls – she said she did not report this issue anywhere. There was a lot going on and there is the possibility child could have self-harmed. 24. The prosecution established that the accused spent more time with the father of the deceased as his driver. The testimony of the brother of the deceased appear to point a finger at their father’s cousin, the person he met leaving the home in a hurry as he entered the home to find the unconscious. The prosecution failed to avail Mark, the friend of PW5 who appears to have been at the scene when PW5 arrived at home. They also did not establish who the alleged friend of the accused was who assisted him to allegedly commit the offence. No forensic evidence was availed about the scene to verify the claims by SM. 25. The accused person’s statement of defence seen in the light of the testimony of PW5, creates a reasonable doubt that he did not commit the offence as alleged as alleged. 26. In the circumstances, I find that the charge of murder contrary to Section 203 as read with s. 204 of the Penal Code has not been proved against the accused person to the required standard. The accused gets the benefit of doubt. The charge is dismissed and the accused is acquitted accordingly **JUDGMENT** dated signed and delivered virtually at Kabarnet High Court this 27th July, 2026. **MUMBUA T. MATHEKA** **JUDGE** **In the presence of**:- Accused person Mr. Hassan for accused Ms. Musango for state Court Assistant Chrispol