https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11588

Republic v Otieno (Criminal Case E028 of 2023) [2026] KEHC 11588 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 11588 (KLR) Republic of Kenya In the High Court at Migori Criminal Case E028 of 2023 ACA Ong’injo, J June 18, 2026 Between Republic Prosecution and Eunice Auma Otieno Accused Judgment 1.The Accused person Eunice Auma Otieno was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. 2.The particulars are that. on the 22nd day of September 22. 1000 2023. At Omware village. South Kanyajuok sublocation. South Kanyajuok/ Kamagambo Location. Rongo sub county within Migori County in the Republic of Kenya Murdered DMO. 3.PW1 Conslate Anyango testified that she came from Omware village South Kamagambo in Rongo Sub County and she was a farmer. She said she knew David Omondi Otieno who was her son and a chief. 4.She said that on 22.9.2023 at about 3.30pm she was at her house at the door washing clothes. That when she stood up, she saw people fighting from a far at a distance of about 50 meters. That it was the Accused and her child who was beating her child. PW1 said that the Accused was her daughter in law. That she was married to her first born son Albert Otieno. PW1 said that the Accused hit the child down and removed the child’s clothes. The child was called Omondi. That the Accused went back to the house with the clothes and came back with a knife which she used to stab the child on the back once. That she then ran away with the knife. That she again came back and stabbed the child on the chest. She was at her house. The accused’s house from the child was about 5 meters away. Accused did not say anything. The child lay right where he was and did not move. 5.PW1 said she raised an alarm for people to come and they responded and came. Albert was the first, chief then police. There were many people present. Accused was running away and the chief and police gave a chase and she was arrested in next homestead that day. The police took the body of the one who had been stabbed. The shirt that was taken from the child was left in the house by accused. Deceased used to live at home and had his own house. Deceased’s house from mine was like here to the bench about 15 metres away. Accused had other children, Deceased was accused’s son. He was the Accused person’s second born. The deceased was PW1’s grandson. She said she had not seen accused and deceased that day. She said that Melvin Achieng Okoth is her daughter in law and the 2nd wife to Albert. Melvin came during the incident but PW1 did not talk to her. 6.In cross examination PW1 said she saw the Accused when she was coming from the house beating the child and were at the front of the house. She said Albert had two homesteads for accused and Melvin. She said she was washing in front of her house. That the Accused and deceased were in the house and they came out fighting. The fight took a short time not long. She said she saw them fighting till people came. She said she did not try to stop them as they used to fight and stop. That whenever she tried to find out why the Accused beats her children like that, she said that PW1’s my children disturb her, PW1 said she could not tell deceased’s age but he had reached class 7 and dropped out. That after he dropped from school he went to Nairobi where his mother was working. She said aware the boy was taking alcohol but she did not know about drugs. She said she had never sat with him with drugs and she could not tell how he behaved when drunk. On that fateful date she could not tell how the deceased was as she had not seen him since morning of that day. PW1 said that she liked the accused as a daughter in law. She said that she recorded my statement with the police but it is not true that she said the Accused that accused threatened to kill the deceased 7.PW1 was stood down till the handwritten statement is produced by the police for further cross-examined. On being recalled for further cross examination PW1 said that when she was in court, she said it is accused who stabbed the deceased. She said she was standing very close when she saw the accused stab the deceased about 20 meters away. It was at 3.30pm during the day. She said she had known the accused as they had stayed with her for long as her son’s wife. 8.PW2 Melvin Achieng Okoth testified that on 22.9.2023 at about 3.30pm She was at her home when she had her mother in- law. Consolata Anyango Okoth raise alarm and she rushed to the home which is some distance away. 9.When she arrived at the home. Which is about 50 meters away, the mother in-law told her that Nya Wasio had killed Daddy. PW2. said that the accused was known to her as wife to her brother in-law. PW2. said that she found the accused person and her mother in-law at home. PW2 said she also saw Daddy was lying facing down and he was already dead. He had a stab wound on the lower back. That when they turned the body, they found he also had a stab wound on the chest. That they started wailing/screaming and people came. PW2 said she was not able to talk to the accused when she arrived at the scene. 10.When cross examined by Ms. Apondi Advocate for the Accused PW2 said that on arrival at the scene, she found the accused was still carrying the knife that she had used to stab the deceased. She said that the deceased was lying on the ground facing down. That when they raised alarm members of public came and turned the deceased and she saw the stab wound on the chest. PW2 said she didn’t know what transpired before the accused stabbed Daddy. She said she had known the accused for about 10 years. The deceased was also known to her as son to the accused. She said she did not know if the deceased used to drink alcohol and she did not know if the accused and the deceased lived peacefully. PW2 said that when she arrived at the scene, she found her mother in-law standing between her home and the accused person’s home about 5 meters from where accused was. 11.In re-examination PW2 said that when she arrived at scene the accused was armed with a knife. 12.PW3 Odero Peter Onyango. Assistant Chief of South Kanyajuok Sub-Location in South Kamagambo location said he had been Assistant chief for 3 years. 13.That on 22.9.2023 at around 4.00pm he received phone call from Chief Mr. David Onyango who instructed him to rush to Mr. Albert’s home because there was violence. He went to Chamgi Wadu Police Post and he took police officers who accompanied him to the scene. That on arrival they found lifeless body lying down on the ground. The body had a stab wound on the back and chest. There was a pool of blood where the body was lying. There was a blood-stained knife also some meters from the body. 14.That they found Albert, husband to the suspect and also found mother in-law to the suspect and other close family members. That the accused had escaped. They were told that the deceased was killed by his mother. They found the accused hiding in her kitchen and they rescued her from mob justice. PW3 identified the knife they recovered as -MFI P1. He later recorded his statement on 29.9.2023 15.In cross examination by Ms Apondi Advocate for the Accused PW3 said that the accused went into hiding in the kitchen in a neighbouring home and they rescued her from a mob. He said that he didn’t see the events that led to the stabbing of the deceased. He said the deceased was not known to him personally neither did he know the accused. That upon inquiry he was informed the accused was biological mother of the deceased, He said he could not tell how the accused and deceased related with each other 16.PW4 Dr. Morebu Peter Momanyi Senior Medical Officer at Kisii Level 6 hospital examined the body David Omondi Otieno conducted on 25.9.2023 at 4.50pm at Rosewood Nursing Hospital mortuary in Rongo and noted a deep linear cut wound 4cm on the chest between 5th and 6th ribs on the left in mid clavicular line. There was another linear cut wound on the back 3cm on the right lumbar region 17.On internal examination he observed 5th and 6th ribs fractured. There was penetrating injury on the pericardial sac- which covers the heart. There was also blood between the heart and what covers the heart -haemopericardiumThere was bleeding into the abdomen 200m. 18.P4 concluded that the deceased succumbed from chest injury as a result of penetrating injury to the chest. He took blood sample for further investigations. He signed post mortem report on the same day and it is stamped with Hospital stamp. He produced the post mortem as EXP 1 19.In cross examination PW4 said he had been a doctor since 2012 to date and he had been conducting post mortem since then. The cause of death was penetrating injury to the chest. The injury was inflicted by a sharp object. 20.PW5 Albert Otieno Okoth. From Omware village testified that he was married to Jane Auma Otieno. He said he had 2 wives Jane Atieno Auma and Melvin Achieng. He said the accused person was his wife Jane Auma Otieno also known as Nya Wasio. He said that on 22.9.2023 he left to go to work in the morning and when he returned at around 3.30pm he heard screams at their home. He said it was his mother who was screaming that Nya Wasio had killed Daddy. On arrival he found Daddy lying down on the ground and he had a stab wound at the back. When he touched and turned him, he found that he had another stab wound on the anterior chest. 21.In a short while Chief arrived with police. That he went with them to his house and they recovered a blood-stained knife. The house belonged to him and the accused person. After recovering the knife, they didn’t find the accused. That his mother told him the accused ran towards the back side of the home. That they went back to where the deceased was lying. Members of public and neighbours searched and traced the accused at the home of Mzee Aduk Omwongo 22.They took the body of the deceased to the police car and they found the accused had been arrested and kept in the car. PW5 said he saw she had an injury on the forehead which was bleeding. That on 23.9.2023 he went to Rongo Police Station to record a statement. PW5 identified the knife recovered in his house as the one in court MFI P2. It had blood stains. He said the knife still had some dry blood stains on it’s sharp edge and on the handle. PW5 said the deceased David Omondi Otieno was 28 years old and was his son with the Accused. He said that when he got home, he didn’t talk to anyone. He said he didn’t know how and why the deceased was stabbed. He said his mother told him she heard the accused arguing with the deceased before he was stabbed. 23.He said the body of the deceased was lying on the path to his mother’s house around 50metres from his house. He said his other wife’s house is past his mother’s house. That he saw 2 stab wounds on the deceased’s body at the back and on the upper chest. When he found his son had been stabbed and he had died he got shocked and didn’t inquire what was the cause of the stabbing. 24.In cross examination by Ms. Apondi Advocate, PW5 said that David Omondi Otieno was his son and the accused was the mother of the deceased. The deceased stayed with the accused since childhood. David was not taking alcohol. He said he would not know if he took drugs as he used to stay with the mother in Nairobi. They stayed in Nairobi for 5 years. The accused had stayed longer in Nairobi but the deceased went to Nairobi and stayed for 5 years prior to the date of the incident. He said that he was not aware of any differences between the accused and the deceased. He said he had 2 wives and most of the time he stayed in Melvin’s house. He said he also used to visit the accused person’s house. He said he saw that the accused and the deceased loved each other. The incident happened when he was away. 25.In re-examination PW5 said that the deceased and the accused stayed in Nairobi for 5 years although he could not remember the exact time as the accused stayed in Nairobi for 20 years and the deceased stayed in Nairobi for only 5 years. 26.PW6 No. 10xx04 PC Peter Gakai. Attached at Kariobangi police station testified that he was the first investigating officer when he was attached at Rongo DCI office. That on 22.9.2023 at around 7.00hours he was in the station when Corporal Pamba called and informed him that there was murder incident in Omware area in Rongo. They proceeded to scene and found a lifeless body lying on the ground. It was the body of David Otieno the first-born child of Eunice Ouma. The deceased and the suspect had a domestic disagreement. They were staying in the same compound. The deceased had his house 10m away from the accused person’s house. The deceased and the accused had a duel in which they struggled for a while before the accused went to the kitchen, armed herself with a knife which she used to stab the deceased. That she went back to the kitchen while saying she could stab the deceased again. She did go to where deceased was and she stabbed him on the front part of the chest. That they commenced search for the murder weapon and recovered blood-stained knife about 10m from where the body lay. He produced the knife in court as EXP 2. 27.That at the scene there were also one side of open shoes. They are in court Exp 3. The deceased died instantly on the spot upon being stabbed. When they arrived at the scene the accused was trying to escape from the mob and she escaped to a neighbouring home. They took the body to the mortuary and collected the knife as an exhibit and forwarded it to Government Chemist for analysis vide Exhibit memo form which was received on 3.9.2023 EXP 4. 28.Post mortem was conducted on the body of the deceased and later accused was charged. I wish to produce knife, brown open shoe and exhibit memo form EXP 2, 3 and 4. That they rescued the accused from mob justice and escorted her to Rongo police station for investigations. 29.In cross examination PW6 said that the deceased and the accused lived in different houses within the same compound. The body of the deceased was 20 meters from his mother’s house. The body was also 20 meters from his house. The deceased was running away towards the gate when he was stabbed. The house of the deceased was behind the suspect’s house. The suspect’s house was the one between the scene where body lay and the deceased’s house. According to the witnesses there was a disagreement between the deceased and the accused but he didn’t establish the kind of relationship between the accused and the deceased. He said he didn’t draw sketch plan at the scene. The body of the deceased lay facing upwards. The deceased had 2 stab wounds, one on the back and the other on the left side of the chest. He said he did not see the accused stab the deceased as he was not at the scene. He also said he didn’t establish from the witnesses if the deceased was drunk or not. The exhibits were taken to Government Chemist on 3.10.2023. The incident happened on 22.9.2023. The exhibit memo form is dated 3.10.2023. He said he is the one who recovered the knife and one open shoe. The knife was kept at exhibit store within DCI office. The shoe was also kept at DCIO’s office. Corporal Aba was the one in charge of exhibit store then. He said he took blood samples from the body of the deceased during post mortem and on 3.10.2023 he accompanied them to Government Chemist. 30.In re-examination PW6 said that blood sample was recovered on 25.9.2023 during post mortem. The exhibit memo is not dated. It was received on 3.10.2023. It was stamped. The deceased had stab wounds on the back and on the anterior chest. The deceased was stabbed when running away. The 2nd sab was inflicted when accused came back while shouting “I will stab you again.” 31.PW7 David Kiaira Muthoni a Graduate in Industrial Chemistry 2009 at Kenyatta University – Chemical Analyst – 2022 Chemical institute of India said he works in Government Laboratory Kisumu under DNA section 32.That on 3.10.2023 at the Government Laboratory in Kisumu PC Peter Gakai No. 102204 from DCI Rongo forwarded exhibit memo signed and stamped and signed. He opened a file for the exhibits he received vide memo Ref A225/2023. The exhibits received were:1.Knife with modified metallic handle wrapped with white paper – marked A2.Blood samples of David Omondi the deceased in a vacutainer marked B3.Right leg open shoe with brown sharp and a cracked black sole branded CHT in a brown envelop marked C 33.That upon examination, the knife item A and shoes were heavily stained with blood of a human origin. The DNA profiles generated from the knife and shoe are tabulated at the end of report. His opinion was that the DNA profile generated from the blood stains on kitchen knife and shoes were identical and matches DNA profile generated from referenced sample of the deceased. He produced the Government Analyst Report dated 4rh March 2024 as EXP 5 34.In cross examination PW7 said that he received the exhibits on 3.10.2023. The knife and shoe had dry blood. He said they only did DNA profile. He said they are not able to determine age of the dry blood stains. The analysis was done on 4.3.2023. A well stored sample can be kept for 1,000 years without degrading and you can generate profiles. 35.At the close of prosecution case the Accused was placed on her defence and she gave sworn testimony and said that David Omondi Otieno the deceased was her biological son. That on 22nd September 2023 at 3.00pm she was in the house when the deceased came when he was drunk and said that on that day, they would know who he is. That she asked what was wrong and he told her that they were not taking any action and his brother is rotting in jail. That she told him she didn’t have money. 36.That the deceased started taking seat cushions and wanted to burn them. That they struggled and got out of the house when they were still struggling and released himself from her hands. That the Accused remained with his shirt and that is when she saw he had a knife tucked in his trouser. That the deceased drew the knife and wanted to stab her but she struggled with him and disarmed him. That when she wanted to run away, he held her from the back using her cloth. That when she turned the knife stabbed his chest and the deceased fell. 37.That her mother-in-law then raised alarm. The knife stabbed the deceased on the chest as they continued struggling over the knife and the deceased sustained another stab at the back. When her mother-in-law raised alarm her 3 of her neighbours who arrived first started beating her. That she told them the deceased wanted to kill her. That she ran and sought refuge at a neighbours home from where she was arrested on the same day by the police officers who came to the scene. She said her husband Albert Otieno Okoth was not at home at that time. David Omondi Otieno used to be violent when drunk. She said she didn’t have the intention to kill him. The offence was accidental. 38.In cross examination by Mr. Oimbo for state the Accused said that she is the one who stabbed the deceased. The deceased sustained 2 stab wounds on the chest and at the back. Consolata Anyango Okoth was at home and she came when the deceased had fallen. The stab at the back was because they were struggling over the knife. 39.The defense closed its case and sought for 14 days to file submissions. 40.The Accused persons written submission are dated 3rd February 2026 and are to the effect that the accused person committed the unlawful act when defending herself from her drunk son who attacked and attempted to kill her. The court was urged to find that she had no malice aforethought. ANALYSIS AND DETERMINATION 43.Based on the evidence tendered by the prosecution, the defence by the Accused and the defence Counsel’s written submissions the elements the prosecution had a burden to prove to sustain conviction for the offence of murder are:-1.The fact and cause of death;2.That the death was caused by an unlawful act or omission on the part of the accused;3.That in causing the death, the accused acted with malice aforethought. 44.On fact of death, this element was conclusively established. 45.PW4, the pathologist, found a penetrating stab wound to the chest between the 5th and 6th ribs; a stab wound to the back; fractured ribs and injury to the pericardial sac and bleeding around the heart. The cause of death was certified as penetrating chest injury. There is therefore no dispute regarding death and its cause. 46.On whether the accused caused the death, the evidence overwhelmingly points to the accused as the person who inflicted the fatal injuries. PW1 testified that she personally saw the accused stab the deceased. PW2 arrived immediately thereafter and found the accused still armed with the knife. PW3 and PW6 recovered a blood-stained knife and DNA analysis by PW7 confirmed that the blood on the knife belonged to the deceased. The accused herself admitted in her defence that she stabbed the deceased. The actus reus of the offence was therefore proved beyond reasonable doubt. 47.On whether malice aforethought was proved, under section 206 of the Penal Code malice aforethought may be inferred from the nature of the weapon used; the manner in which it was used; the part of the body targeted and conduct before and after the attack. 48.The prosecution relied principally on PW1's evidence that the accused beat the deceased; went into the house; returned with a knife and stabbed the deceased on the back and returned again and stabbed him on the chest. 49.If that version is taken wholly, it would strongly suggest an intention to cause death or grievous harm. However, there are factors creating doubt as to the existence of malice aforethought. The evidence of PW5, the deceased's father, was that the accused and deceased had lived together for many years and he was unaware of any hostility between them. He observed that they loved each other. There was no evidence of prior threats, grudges, or plans to kill established. 50.The accused testified that the deceased arrived home drunk and he was angry over another sibling being in jail. That he attempted to burn household items and a struggle ensued. The Accused said she discovered the deceased had a knife and she disarmed him during the struggle wherein the deceased sustained the stab wounds. 51.The prosecution did not adduce evidence to disprove the possibility of a sudden quarrel or struggle. 52.Indeed, PW6 testified that witnesses informed him that there had been a disagreement and a struggle before the stabbing. 53.The accused's account was that she was defending herself from an armed and intoxicated son. 54.Although the evidence does not fully establish complete self-defence particularly because the deceased sustained two stab wounds—the circumstances raise a reasonable possibility that the stabbing occurred during a violent confrontation rather than pursuant to a premeditated intention to kill. Where an accused acts under attack or perceived attack but uses excessive force, criminal liability is often reduced from murder to manslaughter. 55.While the accused used a knife and inflicted a fatal chest wound, the surrounding circumstances disclose a sudden domestic confrontation; a struggle between mother and adult son; absence of evidence of prior planning or motive and evidence suggesting intoxication and aggression on the part of the deceased. 56.In consideration of the doubt raised whether the accused acted with the intention required for murder, this court resolves that doubt in favour of the accused and finds that she caused the death of the deceased without malice aforethought. The Accused is acquitted for the offence of murder and found guilty for the offence of manslaughter for which she is convicted under Section 322(1) of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED AT MIGORI, THIS 18TH DAY OF JUNE, 2026.ANNE ONG’INJOJUDGEIn the Presence of