https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13131

Republic v Otieno alias Otis (Criminal Case 61 of 2023) [2026] KEHC 13131 (KLR) (25 August 2026) (Judgment) Neutral citation: [2026] KEHC 13131 (KLR) Republic of Kenya In the High Court at Kibera Criminal Case 61 of 2023 DR Kavedza, J August 25, 2026 Between Republic Prosecutor and Vincent Otieno Otieno Alias Otis Accused Judgment 1.The accused were jointly charged with another for the offence of murder contrary to section 203 as read with section 204 of the Penal Code, cap 63, laws of Kenya. The particulars are that on 26th July 2020 at Kibera Soweto area within Kilimani Sub-County in Nairobi County murdered Kennedy Otieno Olola. Following successful plea negotiations with the state, his co-accused Joshua Owino Oduor pleaded guilty to a lesser charge of manslaughter and was convicted and sentenced accordingly. 2.On his part, the accussed, pleaded not not guilty and the prosecution called twelve (12) witnesses in support of their case. 3.PW4, John Otieno Owocha, an electrician residing in Kibra, testified that on 26 July 2020 at about 8.00 p.m., he was sent by Kennedy Olola, the deceased, whom he regarded as his guardian, to purchase supper and cooking fat. On his way to the kiosk, he encountered Vincent Otieno alias Otis and Joshua Owino Oduor, who appeared drunk and were quarrelling. They followed him to the kiosk, where they continued quarrelling and confronted Stanley, Victor’s Ogolla (PW5) son. Victor intervened and eventually locked his kiosk. 4.PW4 stated that the two accused thereafter followed Steve. A scuffle ensued outside the deceased’s house. Although it was dark, he could see the persons involved. He returned home with his shopping and found the deceased lying on the ground, with Steve on top of him and bleeding. Vincent and Owino were also on the ground. Members of the public arrived and attempted to administer first aid. The deceased was taken to hospital but was pronounced dead. PW4 subsequently recorded his statement at Kilimani Police Station. 5.In cross-examination, PW4 conceded that he did not witness the actual assault. There was no security lighting outside the deceased’s house, and the available illumination was moonlight. He could not therefore say who assaulted the deceased. 6.PW5, Victor Ogolla Odigo, a security officer and resident of the area, gave evidence which corroborated PW4 as to the events preceding the fatal incident. At about 7.30 p.m., he found Otieno and Owino quarrelling and pushing each other inside his kiosk, where his son Stanley was selling goods. The kiosk had electricity and security lights, enabling him to see the two accused clearly. Their struggle caused a bench to break. PW5 closed the kiosk and left with his son. On the way, Owino slapped Stanley. PW5 restrained him by the arm and told him to go home. 7.PW5 then went home. About ten minutes later, he heard a commotion at the deceased’s adjacent house. Shortly thereafter, a neighbour’s son summoned him to assist the deceased. He went to the scene and found Kennedy lying on the ground. He saw Otieno there, mourning. The deceased was taken to hospital, where PW5 learnt that he had died. He reported the matter to the police and recorded his statement on 28th July 2020. 8.PW5 was emphatic that he did not witness the assault at the deceased’s house and could not tell who assaulted him. He further stated that Owino was not at the scene when he arrived. 9.PW6, Stephen Ouko Obinga, likewise placed the two accused together shortly before the fatal incident. He testified that at about 8.00 p.m., he encountered Otis and Owino quarrelling outside his gate. There was light from a bulb, enabling him to identify them. He asked why they were fighting but received no response. As he proceeded towards his house, he was struck from behind on the head and lost consciousness. He regained consciousness at Ushirika Hospital, having been taken there by his brother. He did not see his assailant and could not identify the person who struck him. Two days later, he learnt that the deceased had died and recorded his statement at Kilimani Police Station. 10.PW7, Delvis Olala, the deceased’s paternal uncle, testified only as to the identification and post-mortem of the deceased. On 27th July 2020, he learnt of Kennedy’s death and proceeded to City Mortuary. Together with Otieno, he identified the body as that of Kennedy. Following the post-mortem, he transferred the body to Chiromo Mortuary. By consent of the parties, the post-mortem report dated 27th July 2020, prepared by Dr Peter Ndegwa, was produced as Exhibit 1. 11.The evidence of PW11, Samuel Opiyo Odhiambo, and PW12, Alfred Ontango Odhiambo, materially advanced the prosecution case concerning the actual assault. PW11 testified that on the material evening he encountered Otis and his companions, who were drunk and causing a disturbance. After being chased away from Baba Stano’s house, they encountered Steve and attacked him. Steve fled. The deceased then emerged from his house and told them to stop making noise. According to PW11, Otis struck the deceased on the head. The deceased fell and was bleeding from the back of his head. Members of the public responded and took him to hospital, where he was pronounced dead. PW11 maintained that bright moonlight enabled him to identify Otis, whom he already knew. 12.PW12 gave substantially similar evidence. At about 8.00 p.m., while proceeding to the latrine, he heard a commotion and the deceased telling Otis, “Toeni fujo hapa.” He then heard Otis respond, “Leo wewe utanitambua.” Upon leaving the latrine, PW12 found the deceased on the ground with Otis on top of him. He also saw Owino on top of the deceased. The deceased had a wound on his head. PW12 and other neighbours took him to Ushirika Hospital, where they were informed that he had died. In cross-examination, he maintained that both accused were fighting before the deceased intervened and that both appeared drunk. He knew the deceased and was unaware of any prior grudge between him and the accused. 13.PW9, PC David Karuga, testified that he was on patrol when he was directed to return to the police post. He found two persons who had been brought by members of the public and had been beaten. He escorted them to Kilimani Police Station, where they were handed over. He identified one of them as an accused in the present case. 14.This evidence was further explained by PW10, IP Anne Chepcheng, the investigating officer. She testified that on 26 July 2020, while on patrol, she was recalled to Kilimani Police Station following a report of an alleged murder. Members of the public arrived, escorted by PW9 and another officer, bringing the body of the deceased, together with Vincent Otieno and Joshua Owino. Both accused had injuries consistent with having been assaulted by a mob. They were booked in the Occurrence Book. 15.On 27th July 2020, PW10 visited the scene with PC Abdi and prepared a sketch plan. Her investigations disclosed that the deceased had emerged from his house upon hearing a commotion and found the two accused fighting Steve. In attempting to intervene, the deceased was struck on the head by Otieno and fell unconscious, after which Owino allegedly went on top of him. The deceased was taken to Vpower Medical Centre, where he was pronounced dead. 16.PW10 attended the post-mortem at City Mortuary. She subsequently caused the deceased’s and accused persons’ clothes to be submitted to the Government Chemist for analysis and produced the relevant exhibits and reports. She also caused the accused to undergo medical and mental assessment and forwarded the completed investigation file to the DPP. 17.In cross-examination, she acknowledged inconsistencies in some witness statements, including the absence of reference to a weapon and the fact that no weapon was recovered. She nevertheless maintained that her investigations yielded both direct and circumstantial evidence implicating the accused. On re-examination, she clarified that references in her statement to Stephen being struck were erroneous and that it was the deceased who was struck on the head when he intervened. 18.After the close of the prosecution’s case, this court found that the accused had a case to answer and placed him on his defence. 19.In his defence, the accused Vincent Otieno alias Otis gave unsworn evidence and denied any involvement in the deceased’s death. He testified that he worked as a mechanic in Ngara until about 6.45 p.m. on the material day and thereafter proceeded to Sarang’ombe. He admitted consuming three bottles of alcohol and stated that he became heavily intoxicated. He stopped at Odipo’s house and was assisted towards his home. He thereafter lost awareness and only regained consciousness when he found himself being assaulted by persons he did not know. He subsequently found himself at the police station and learnt that he had been arrested. He maintained that he had no knowledge of the circumstances leading to his arrest or the deceased’s death. 20.The Court has considered the entirety of the prosecution evidence, the defence tendered by the accused, the written submissions and the applicable law. The sole issue for determination is whether the prosecution has proved the charge of murder beyond reasonable doubt. 21.The accused is charged with the offence of murder contrary to Section 203 of the Penal Code. Section 203 provides:"Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 22.The ingredients of the offence of murder which the prosecution must prove beyond reasonable doubt are:a.The death of the deceased.b.The unlawful cause of deathc.That in causing death the accused committed it with malice aforethought. 23.The prosecution must therefore establish three essential ingredients: the fact and cause of death; that the death resulted from an unlawful act or omission attributable to the accused; and that in so doing the accused acted with malice aforethought. 24.PW7, the deceased’s paternal uncle, identified the body at City Mortuary for purposes of post-mortem examination. The post-mortem report prepared by Dr Peter Ndegwa on 27th July 2020 was produced by consent as Exhibit 1. The evidence of PW4, PW5, PW11 and PW12 further established that the deceased sustained a head injury, was taken to hospital and was pronounced dead. The fact that Kennedy Olola died on the night of 26th July 2020 is therefore proved beyond reasonable doubt. 25.The next question is who was responsible for the fatal injury and, ultimately, whether the evidence establishes the requisite mens rea for murder. The prosecution relied principally on the evidence of PW11 and PW12, while PW4, PW5 and PW6 provided evidence concerning events immediately preceding and following the fatal occurrence. 26.Considered collectively, the evidence discloses that on the material evening the accused and Otieno alias Otis and Joshua Owino Oduor were together in Sarang’ombe and had consumed alcohol. PW4 encountered them quarrelling and pushing each other on his way to the kiosk. PW5 subsequently found them quarrelling and struggling inside his kiosk. The struggle was sufficiently vigorous to break a bench. When PW5 closed the kiosk, Owino slapped his son, Stanley. PW6 later encountered the two accused quarrelling outside his gate. These accounts materially corroborate each other as to the accused persons' conduct and state of intoxication shortly before the deceased was injured. 27.The evidence concerning what occurred thereafter, however, requires closer scrutiny. PW4 did not witness the assault. He returned home and found the deceased already lying on the ground. PW5 similarly heard a commotion from his house but did not go to the scene until he was summoned. When he arrived, he found the deceased on the ground and Otieno at the scene. PW6 was himself struck from behind and lost consciousness before he reached his house. He therefore had no knowledge of what occurred at the deceased’s house. 28.PW11 and PW12 gave the direct evidence relied upon by the prosecution. PW11 testified that after Otis and his companions had caused a disturbance and attacked Steve, the deceased emerged from his house and told them to stop making noise. He stated that Otis struck the deceased on the head. PW12 similarly testified that he heard the deceased tell Otis, “Toeni fujo hapa,” followed by Otis saying, “Leo wewe utanitambua.” When PW12 emerged from the latrine, he found the deceased on the ground with Otis on top of him and also observed Owino on top of the deceased. The deceased had sustained a head wound. 29.This evidence, if accepted, establishes that Otis was physically involved in the assault upon the deceased. It does not, however, conclusively establish the precise nature of the act which caused the fatal injury. No weapon or other object allegedly used to strike the deceased was recovered. PW10, the investigating officer, expressly acknowledged that no weapon was recovered and that the witnesses did not identify the object allegedly used. The medical evidence, as presented before the Court, establishes a head injury but does not, on the material evidence summarised above, demonstrate the degree of force, the precise mechanism of injury or that the injury was necessarily inflicted with an object capable of causing death. 30.There are also material limitations in the prosecution evidence which must be borne in mind. PW4 did not see the assault. PW5 did not see it. PW6 did not see his assailant. PW12 was in the latrine when the assault allegedly occurred and only emerged thereafter. PW11 gave the clearest account of the fatal blow, but his evidence must be assessed alongside the surrounding circumstances, including the evidence that the accused and the deceased were engaged in a spontaneous confrontation following a disturbance. 31.The evidence of PW10 concerning the statements she recorded does not cure these evidential limitations. Indeed, she acknowledged material inconsistencies in her own investigation record. She stated that she had erroneously recorded that Stephen was struck on the head when, according to her clarification, it was the deceased who was struck. She further confirmed that PW3, the deceased’s wife, did not state that either accused assaulted her husband; PW4 did not tell her that Otis assaulted the deceased; and no weapon was recovered. These matters do not necessarily destroy the prosecution case, but they are relevant in determining whether the prosecution has discharged the heightened burden applicable to a charge of murder. 32.Section 206 of the Penal Code provides the circumstances from which malice aforethought may be established, including an intention to cause death or grievous harm, or knowledge that the act causing death will probably cause death or grievous harm. 33.The established test remains that stated in Rex v Tubere s/o Ochen (1945) 12 EACA 63, namely that in determining the existence or otherwise of malice aforethought, the Court considers the weapon used, the manner in which it was used and the part of the body injured. The principle continues to be applied by the Court of Appeal. The Court must also consider the nature of the injuries, the conduct of the accused before, during and after the attack and the circumstances in which the fatal act occurred. 34.The present case is materially different from one in which an accused deliberately uses a lethal weapon against a vital part of the body. Here, the evidence does not establish what object, if any, was used to strike the deceased. There is evidence of a single head injury sustained in the course of a spontaneous confrontation. The prosecution has not established that the accused armed himself, lay in wait for the deceased, threatened him beforehand or deliberately set out to cause his death. The words attributed to Otis, “Leo wewe utanitambua,” demonstrate hostility, but they do not, without more, establish an intention to kill or cause grievous harm. 35.The Court of Appeal has cautioned that the inference of malice must arise from the particular circumstances proved in each case. In Morris Aluoch v Republic [1997] eKLR, the Court recognised that even a single blow may cause fatal injury, but the circumstances surrounding the blow remain critical in determining whether malice aforethought has been established. More recently, the High Court in Republic v Karambu & another [2025] KEHC 15115 (KLR) emphasised that the weapon, manner of its use and part of the body injured must be considered in determining malice. 36.I therefore find that, although the prosecution has established the accused's participation in the confrontation and there is credible evidence that Otis struck the deceased, the evidence does not establish beyond reasonable doubt that, at the time of the fatal act, he intended to cause death or grievous harm, or knew that his act would probably cause such consequence. 37.This conclusion is reinforced by the evidence regarding intoxication. PW4, PW5, PW6, PW11 and PW12 all described the accused persons as drunk. The accused himself testified that he consumed three bottles of alcohol and became heavily intoxicated. His evidence was that he subsequently lost awareness of what occurred and only regained consciousness after being assaulted and taken to the police station. 38.Section 13(4) of the Penal Code expressly requires intoxication to be taken into account in determining whether an accused person formed the specific intention, in the absence of which he would not be guilty of the offence charged. The Court of Appeal in Said Karisa Kimunzu v Republic, Criminal Appeal No. 266 of 2006, and Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) held that where intoxication is raised in a murder trial, the court must consider whether it deprived the accused of the capacity to form the malice aforethought required by section 206. 39.The defence of intoxication does not require proof that the accused was insane. The question is whether the intoxication affected his capacity to form the requisite intention. As stated in Julius Obare Angasa v Republic, a person who admits consuming liquor is not necessarily pleading insanity; the Court must determine whether the intoxication deprived him of the ability to form the specific intention to kill. 40.In the present case, the evidence demonstrates a substantial degree of intoxication. The prosecution witnesses independently described the accused as drunk, while the accused himself gave a similar account. Although intoxication does not excuse the unlawful use of force, it is relevant to the distinct question whether the prosecution has proved malice aforethought beyond reasonable doubt. On the evidence before the Court, I am unable to exclude a reasonable possibility that the accused, acting in a spontaneous drunken confrontation, lacked the requisite capacity to form the specific intent contemplated by section 206. 41.That finding, however, does not resolve the question of malice aforethought. The circumstances in which the confrontation arose, the apparent intoxication of the accused, the absence of evidence of prior animosity between the accused and deceased, the absence of a recovered weapon, and the spontaneous nature of the encounter remain relevant to whether the prosecution has proved the mental element of murder. 42.The law recognises the distinction between an unlawful killing accompanied by malice aforethought and one where death results from an unlawful act but malice aforethought is absent. Section 202 of the Penal Code defines manslaughter as causing the death of another person by an unlawful act or omission, while section 205 prescribes its punishment. 43.In the final analysis, the prosecution has proved beyond reasonable doubt that Kennedy Olola died following a physical confrontation in which the accused, Otis, was involved and in which he struck the deceased. The prosecution has, however, failed to prove beyond reasonable doubt that the accused acted with malice aforethought as required by section 203 read with section 206 of the Penal Code. The evidence leaves a reasonable doubt as to whether the fatal blow was accompanied by the requisite intention, particularly having regard to the accused's established intoxication and the spontaneous circumstances of the confrontation. 44.The accused is therefore not guilty of murder contrary to section 203 of the Penal Code. The evidence, however, establishes an unlawful killing sufficient to constitute the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. 45.Accordingly, pursuant to the law applicable where the evidence establishes a lesser cognate offence, I find the accused guilty of manslaughter contrary to section 202 as read with section 205 of the Penal Code and convict him accordingly. Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 25TH DAY OF AUGUST 2026________________D. KAVEDZAJUDGE