https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8357

Republic v Ouma (Criminal Case E019 of 2024) [2026] KEHC 8357 (KLR) (7 May 2026) (Judgment) Neutral citation: [2026] KEHC 8357 (KLR) Republic of Kenya In the High Court at Migori Criminal Case E019 of 2024 ACA Ong’injo, J May 7, 2026 Between Republic Prosecutor and William Onyango Ouma Accused Judgment 1.The Accused person in this matter is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. 2.The particulars of the offence are that on the 22nd day of May 2024, at Nyasare area, Suna East Location, Suna East Sub-County in Migori County within the Republic of Kenya murdered Erick Omondi Omollo. 3.PW1 Fredrick Ochieng Omollo testified that he was resident of Nyasare village and a casual worker breaking ballast. He said that on 22.5.2024 at mid-day he was at home. That he had come from taking a bath when he saw William the accused passing by. He said William had been known to hm for 2 years and was resident of their village. That William asked some children where Omondi the deceased was. When William asked for Omondi the children pointed at him but when Omondi looked at him but just left as he was not the Omondi he was looking for. PW1 said that Omondi was his brother and was staying with him in the same place. PW1 said he went to work and returned home at 8.00pm. That when he arrived home, he prepared food and after a short time his brother Omondi arrived. That when Omondi arrived he heard him ask who was making calls within their compound. That Omondi went out to see who it was and found it was William. That when Omondi asked why the accused was talking on phone in their compound, William did not talk. PW1 said he heard Omondi ask in the accused in dholuo“William you can dare produce a knife for me in our compound” but he didn’t hear Omondi respond. The next thing he heard was, “baba William has stabbed me” 4.That when he heard his brother shout and say William had stabbed him, he got out and found William and asked him what he had done but he started running away. PW1 raised alarm and his father Elly Omollo came from his house. When William started running the deceased followed him. After about 1km he found Omondi had fallen and when he tried to lift him up. he found his intestines were protruding and he had another stab on the left upper chest. When he arrived at the scene where Omondi had fallen he heard him ask why William was killing him and yet he was a mere casual. That PW1 followed them. 5.When he saw how his brother had been injured, he started crying and Joshua Okero came whose home was nearby responded and went to the scene. That at the scene Cosmas, Bonface Wasonga, Ambrose and Nicholas also went to assist them and Joshua made a phone call to taxi driver to take Omondi to hospital. That the father to the deceased was also at the scene. 6.That when the taxi arrived he accompanied his brother to Migori County Teaching Referral Hospital where he died while undergoing treatment. PW1 said that the incident happened at 9.00pm and he was able to recognize William and his brother also mentioned his name. The solar light that was in the house enabled him to identify/recognize William who was at a distance of 20 metres when he found him stand with his late brother 7.In Cross-examination by Mr. Oseno Advocate PW1 said that there is no path through their home and is not our immediate neighbour. PW1 said that he had never differed with William and he could not tell if William and his brother had differed. PW1 said if William and Omondi were friends he could not have killed him. That he heard his brother ask William why he had produced the knife. That when he got out of the house after hearing Omondi exclaim that William had stabbed him and he asked William why he had stabbed his brother the accused did not respond. Paragraph 6 of his statement to the police says that William chased him and he raised alarm and called his dad. He said it was true William didn’t respond when he asked him what he had done. He said that his father was in his house when William stabbed the deceased. He said that he followed Omondi when he pursued William. He said that he used solar light from sun king and that there was light in the house and security light at out their father’s house that lights the entire home. Apart from recognizing William his brother who stood a short distance from the accused facing him had also mentioned his name. PW1 said that William stood at attention and he didn’t see what he was carrying as he was concerned with his brother who said that William had stabbed him. 8.PW1 also said he saw some flesh protruding from the deceased’s chest at the spot where he had been stabbed. It is at the scene where he found Omondi had fallen that he realized he also had a stab wound in the abdomen and intestines were protruding. He repeated that his brother died while being treated. He said that his brother spoke at scene where he had fallen and questioned why William decided to kill him and yet he was a mere casual. In re-examination by Mr. Oimbo for state PW1 said that the security light outside his father’s house lit the home up to where William and his brother were stood. 9.PW2 Elly Omollo Odwogo the father to the deceased said that on 22.5.2024 at 10.00am when he went to check on his animals, he saw William pass by to go to a neighbour’s home and they greeted each other. That he returned from grazing his animals at 8.00pm and found his sons Erick and Fred at home. That thereafter he went to his mother’s house to greet his sister Mary Atieno who had visited. That he returned to his home at around 9.00pm. After a short while he heard people talk within his compound. He then heard Fred talk loudly and asked“William why are you killing Omondi” 10.PW2 hurried out of the house and saw Wiliam run out of his home and Erick also ran after him followed by Fred. PW2 also started following and after a short distance he found Erick lying down and when he looked at him saw that his intestines were protruding near the umbilical cord and on the left upper chest, he saw he had been stabbed and the lungs were protruding. PW2 said he found Omondi was crying and calling William’s name as the killer. He said his son Fred was at scene together with Joshua Okiro, Boniface, Ambros and Cosmas Okero. 11.Joshua Okero called for a taxi which took Erick to hospital as he remained at home. Later he received a phone call that Erick had died. PW2 said he had sun king light which enabled him identify William as he ran away. He said William had been known to him for long and was is like his son. That he even gave him a cow and it gave birth 3 times. He said that the Accused used seek help from him and he didn’t understand why he killed his son without telling him. 12.In cross examination by Mr. Oseno Advocate PW2 said he was alone in his house and his sons were in their house within the same home. He said he heard Fred crying and saying William had stabbed Omondi. He said he heard people talk in low tones and didn’t hear what was said except when he heard Omondi cry “Why are you killing me”. That he then heard Fred say “William why are you killing Erick”. PW2 said he had security light and he was able to identify William who stays in a home nearby. He said that William ran from his home when PW2 came out of his house and shone light on. He said William ran on seeing him. He said he suspected the accused wanted to stab both Erick and Fred. That Erick Omondi ran after William when he was fleeing out of the compound. He said he did not know if Omondi was stabbed after he chased William. PW2 said William stays in same village and they were friends but he was not aware if William had ever had a case with anyone else before chief or police. He said he did not see the murder weapon. 13.In re-examination by Mr. Oimbo PW2 said that when he came out of the house, he saw William face to face and that is when he turned to run away. He said he had seen William during the day and also saw him at night and he was dressed the same way in white shoes and black trouser. 14.PW3 Boniface Owuor testified that he was from Kakrao/Nyasare village and he was a mason. That on 22.5.2024 he was in the house at night at 9.00pm when he heard noise outside. That when he got out, he heard his uncle Elly Omollo say William had stabbed Omondi. He proceeded to the scene and on arrival he found Erick Omondi lying on the ground and he was bleeding from the mouth. That he checked and saw he had stab wounds on the abdomen and left side of chest. That Omondi who was still talking said William had stabbed him. Among those who were at scene were Joseph Okero, Elly Omollo and Cosmas Okero. That Joseph Okero called for taxi to take Erick to hospital and arrival at Migori Referral Hospital they carried him on stretcher and when the doctor examined him while still on stretcher, they were told he had died. Two of those who had accompanied them, Cosmas and Ambrose went to report to police and Police officers went to the hospital and found William and arrested him. When they took Erick to hospital they found William at the hospital. 15.When cross examined by Mr. Oseno Advocate, PW3 said that he didn’t see William at the scene where they found the deceased lying. He said he heard the deceased say William had stabbed him. He said he went to the scene around 9.00pm and it was dark and he used light from his torch to see the injuries inflicted on the deceased. He said Fred was also at the scene. He said he saw William at the hospital seated on a bench and he didn’t see any injuries on him and he could not tell what he went to do at the hospital. 16.In re-examination by Mr. Oimbo for state, PW3 said that he saw William seated on a bench around 5m away from where he was and he did not have any injuries on his body and he didn’t see him being attended to at the hospital 17.PW4 Ambrose Adwogo Owuor a resident of Nyasare village in Kakrao said he was also a mason. He testified that on 22.5.2024 at about 9.00pm he was in his house when he heard the voice of his uncle Elly Omollo call out for help and he said William had stabbed Erick. That he left to go where his uncle Elly was and the uncle told him that William had stabbed Erick. That he was led to where Erick was, he found the deceased lying on the ground restless and he saw he had a stab wound on the abdomen and his intestines were protruding. That Joshua who was at the scene called for taxi Boniface, He said Joshua, Fredrick, Michael Otieno were at scene. That when the taxi arrived, they put Erick in the car and took him to hospital. He said that Erick was talking and saying repeatedly that William had killed him. That Fredrick Ochieng, Cosmas and Boniface accompanied him when he took Erick to the hospital. At Migori Referral Hospital he approached a nurse and asked for stretcher to help carry the deceased into hospital and when a doctor was called and he examined Erick he was pronounced dead 18.PW4 said he met William at Migori Teaching and Referral Hospital. That he was seated on a bench and he even waved at him when he saw him. PW4 said he did not see any injuries on William and he didn’t talk. 19.When cross examined by Mr. Oseno Advocate, PW4 said he did not see the murder knife. He said he went to scene immediately he heard his uncle raise alarm around 9.00pm. He said he found William at the hospital and he did not know if William was attended to at the hospital 20.In Re-examination by Mr. Oimbo PW4 said that Erick was crying and asking why William was killing him 21.PW5 Cosmas Okero Odwogo also testified that he was from Nyasare village lower Kakrao. That on 22.5.2024 at about 9.00pm he was taking a bath when he heard noise outside. That he dressed up and went to see what was happening. He said he recognized the voice of his brother Elly Omollo who was saying William had stabbed Erick. That he followed the noise and arrived at a place where Erick had fallen on the ground. He saw Erick had stab on the left side of the upper chest and the lungs were visible. There was another stab below the umbilical cord and the intestines were visible. That Fredrick Ochieng, Boniface, Ambrose and Joshua as well as Elly were at the scene. That they looked for means of helping Erick and Joshua called a taxi and they took Erick to Migori District Hospital. He said he accompanied those who took Erick to hospital but when he was examined, the doctors told them Erick had died. That when Erick was pronounced dead, he and Fred went to report to police at Migori police station. That when he found Erick lying on the ground, he was restless and crying and saying “William, you have killed me”. 22.In Cross-examination by Mr. Oseno Advocate PW5 said he was not among those who pursued the suspect. That when he heard it was William who stabbed Erick he said he knew who he was. He said he did not know how long William was pursued. That he arrived and found Omondi lying on the ground restless and crying and he accompanied those who took Erick to hospital. That after it was established Erick had died, he and Fred went to make a report to police. 23.In Re-examination by Mr. Oimbo he said he and Fred went to report to police and those who remained at the hospital didn’t tell me if they witnessed anything. 24.PW6 Joshua Okero Okero a resident of Nyasare village in Kakrao testified that on 22.5.2024 he was in his house watching news at around 9.00pm when his son Young went for a call of nature outside. That when still outside he heard him call and tell him there was noise behind our home. That he reduced volume of television and went to the veranda. On checking he saw a group of people had gathered and he heard someone cry and he confirmed it was Erick Omondi Omollo who was crying. Their home is about 100m and he knew him. He heard him cry in Dholuo “William Nyabianga why are you killing me” 25.That he then heard he was groaning and he decided to run to the scene. At the scene he found Erick was lying on the ground. The people at the scene were Judith aunty, Irene sister-in-law whom he asked what had happened and Erick’s younger brother told him it was William who had stabbed Erick. He used his phone to see where injuries were and he saw the intestine were protruding. He made a phone call to chief Wilfred Onyango and reported what had happened. That he saw the life of Erick was in danger and they decided to call a taxi. The taxi driver John Makanyanga came immediately and they carried Erick into the car. 26.That he remained at home as Fred Ochieng, Cosmas Okero, Boniface and Ambrose accompanied Erick to hospital. After some time he heard people wailing at the home of Erick and he learnt he had died. 27.In cross examination by Mr. Oseno Advocate PW6 said that William was known to him for long as he was staying at a neighbors home. PW6 said there was no through road in the home of Erick but there is nearby path. He said it did not take long for Erick to be taken to hospital. He said it took around 20 minutes for taxi to arrive. He also said he did not see the murder weapon and he did not see WilliamIn Re-examination by Mr. Oimbo PW6 said that the footpath passes outside Elly’s home 28.PW7 John Rabosa also from Nyasare village and a taxi driver recalled that on 22.5.2024 at about 10.00pm he was in the house when he received a phone call from Joshua who requested him to rush and help take a member of the family to hospital. That he hurriedly left to go to the scene and on arrival he found a young man was lying on the ground restless and his intestines were protruding. When he inquired, he was told it was William who had stabbed the young man. That he took him to Migori Teaching and Referral Hospital. That by the time they arrived at the hospital the young man was pronounced dead. 29.In cross examination by Mr. Oseno Advocate PW7 said he didn’t witness William stab the deceased. That at the hospital he remained in the car and did not witness anything. Afterwards he took the family member’s home. 30.PW8 Samwel Mudavadi said he was from Uriri and deceased was his sister’s son. That on 27.5.2024 he went to Migori County Referral Hospital mortuary where he identified the body of Erick before post mortem was done 31.PW9 Dr. Evans Omondi Oyoo Medical Officer at Migori County Hospital conducted postmortem on the body of the deceased on 27th May 2024 at Migori Teaching and Referral Hospital at 12.30pm. 32.On external examination he found normal neck motions. The upper limbs and lower limbs were normal. The abdomen had two sharp edged wounds on left upper quadrant and the other was below the navel/umbilical cord. On further examination of wounds, they were deep and the fingers could disappear in both. Genitalia was normal with no sign of penetration 33.On internal examination, the respiratory system was normal; Cardiovascular system generally normal apart from cut abdominal vessel. The digestive system- the small gut had a cut wound about 4cm – about 3cm from the ileocecal junction. The liver was punctured in lobe about 5cm. Genito urinary system was normal; the head was normal; Nervous system was normal; Spinal code was normal 34.As a result of examination, PW9 formed the opinion that cause of death was severe hemorrhage secondary to trauma to the liver punctured by a sharp object. He did sign the post mortem report and indicated death certificate number. The deceased suffered 2 stab wounds. He produced the Post Mortem Report as Exp 1. 35.In cross-examination by Mr. Oseno Advocate the doctor said the post mortem is based on physical examination and not external report or laboratory tests. He said that from what he saw there was nothing to show the deceased had chronic illness prior to death. 36.In re-examination by Mr. Oimbo for state the doctor said that if the deceased had a heart disease, he would have indicated it in the post mortem report under cardio vascular system. He said he did not flag any chronic condition in the deceased. He said that there are illnesses that can catalyze cause of death. 37.PW10 No. 73419 Corporal John Ngeno the Incharge of Kipkongo Police Patrol Base under Kongoni police station in Nakuru County Naivasha Sub County testified that at the time of the incident herein he was at Migori police station when on 22.5.2024 at around 23.00hours while he was the duty officer one Fredrick Ochieng reported that his brother Erick Omondi the deceased was stabbed twice with a knife by the accused at their homestead. That the deceased was rushed to Migori County hospital and he succumbed to the injuries while undergoing treatment. 38.PW10 in company of PC Maranga, PC Muthoni on board police vehicle proceeded to Migori Referral Hospital in company of the reportee and they found the deceased lying on a bed dead with stab wound in the stomach. That while still at the hospital he managed to arrest William Onyango who was identified by relatives of the deceased. He said he had gone to seek treatment. PW10 presented the accused to Clinical Officer on duty and he was found to have no injuries. That he took treatment notes and handed over to DCI officer who was investigating the murder. He said he did not see any injuries on the suspect at the time of arrest 39.In cross-examination by Mr. Oseno Advocate PW10 said that the 2 stab wounds were visible. He said the deceased was lying facing up. There was an X-ray disc that was in respect of the accused and he remained with the accused. He said he handed over case to DCI and he did not visit the scene. 40.PW11 No. 253846 PC Fredrick Odhiambo detective attached to DCI Migori Suna East Sub County investigated the murder herein. He said the same was reported vide OB 63/22/05/2024 at Migori police station at 23.55hours by Fredrick Ochieng a resident of Nyasare area. He reported that on 22.5.2024 at around 22.15hours one William Onyango the suspect herein 45 years old while armed with a kitchen knife stormed into the homestead of Erick Omondi and without any reason the suspect stabbed the deceased in the stomach and caused intestines to protrude. That the deceased was rushed to Migori Referral Hospital but he succumbed to the injuries while undergoing treatment. That William Onyango was arrested at the hospital and detained at the police station. That on 23.5.2024 at around 09.00hours when he reported on duty his boss instructed him to take over the investigations of the matter. PW11 visited Migori police station where the accused was in cells and he booked him out for interrogation. That the suspect opened up and they proceeded with him to the scene in company of his colleagues. At the scene PW11 prepared a sketch plan and noticed that from the accused residence to the deceased’s residence is 300m. He said the scene was in the homestead of the deceased. He also said that the deceased was stabbed within the homestead but he fell around 100m away while pursuing the assailant. The investigating Officer said he conducted search for the murder weapon but did not find it at the place the accused had directed them. That the accused admitted having committed murder. That they went back to the station and later made a visit to scene where he established from Elly Omollo the father of the deceased that on that day of the incident the suspect had gone for a spy visit during the day. 41.That upon compiling the file and after recording statements of witnesses PW11 arranged for Post mortem which was conducted on 27.5.2024. He said the body was identified by Mudavadi and Wilfrida Ongar and that he attended the post mortem. 42.According to PW11 the he learnt that the deceased and the accused at one point had disagreed over a plastic chair which got broken at a function that accused attended. According to the family the broken chair brought differences but they did not know it would rise again. 43.In cross-examination by Oseno Advocate PW11 said that he had been in DCI for 5 years and this was not the first murder case he was handling. He said he booked the accused person from the police cells for interrogation. He said he did not see any blood stains on accused persons clothes. He said the accused was arrested around mid-night. PW11 visited the scene the following day and prepared sketch map. The scene of murder was not secured but it was not tampered with. Scenes of crime officers accompanied them to scene and took photographs. He said there was only one suspect in this case. He said the suspect had earlier gone to the deceased home during the day and later at night went back and stabbed the deceased. PW11 said the homestead is not fully fenced but there is no path through the home. He said the scene is 150 from the deceased house. The distance from suspect home to scene is like from court to County Assembly. He said the issue of plastic chair was resolved. That according to the accused the deceased broke the plastic chair. The chair was broken in same year that the deceased was stabbed. PW11 said he was not aware that the deceased visited the home of the suspect. D1 heard the suspect ask the whereabouts of the deceased. According to the brother of the deceased, the suspect did not talk to him he just walked away without talking and that could show he had malice. 44.In re-examination by Mr. Oimbo PW11 said he did not see any blood stains on the accused who appeared normal at the time that he was booked in cells. 45.At the close of Prosecution case the accused was placed on his defense and he gave sworn statement and said that he was resident of Kakrao and he was a chef. He said the deceased Erick Omondi was known to me but they did not live in harmony. He said their relationship was not good as previously whenever they met, the deceased could confront and fight with me and he reported to the chief who summoned Erick 46.That on 22.5.2024 the Accused was at Mzee Nyapete’s home to do catering and he did not meet the deceased that evening. He said he did not stab the deceased on the material evening. He said he did learn of the incident in the evening and he went to the hospital. The Accused said he did record a statement with the police on 25.5.2024. Police officers found him in hospital and beat him thoroughly and he got confused and that is why he recorded the statement. The Accused said the statement was not taken voluntarily and he did not know the consequences of recording the statement implicating himself and he wanted the court to expunge it. The Accused said that on arrest he was not found with any weapon. That on arrest the following day forensic investigation was done. He said he wanted the court to acquit him as he did not understand the incident well. The Accused said there must be a 3rd person who committed the murder. 47.When cross examined by Mr. Oimbo for state the Accused said that the relationship between him and Erick was not good. He said Erick was a drunkard and could smoke bhang. He said that whenever he met with anyone, he could attack them with a panga whether you knew him or not. The Accused said even parents to Erick knew he was violent and there was a time he even attacked chief. 48.The Accused further said that on 22.5.2024 he was going to Nyapete’s home for catering. That he arrived at the home in the morning and worked. That he left and went to Migori and in the morning he again went to Nyapete’s home. He said he left Nyapete’s home at 10.00pm when he heard screams. The Accused said he arrived at Nyapete’s home at 9.30pm and he did not stay for long. He said he left when he heard screams which were emanating from the home of Erick Omondi and he ran and went to Migori. He said Erick Omondi’s home and Nyapete’s home are neighboring each other. 49.That when Ochieng called to ask where he was, he had already left to go to Migori to see Omondi who had been taken to hospital. The Accused said that the deceased was his village mate and he had to go and see him in hospital when he heard he was injured. He said he was alone when he went to Migori County Referral Hospital. He said he arrived at the hospital and just sat. That while at the hospital police officers went and arrested him on allegations, he had stabbed Erick. He said there were other villagers at the hospital who identified him to the police. He admitted having recorded his statement with police on 25.5.2024 and said that he was on the way to Nyapete’s home when he met Erick who started beating him and he stabbed him with the knife he was carrying in self defence. 50.The Accused also admitted having run to Migori Hospital after stabbing Erick and the knife fell when he was running. He said he was injured on the ribs and he went to hospital for treatment. He said he was treated but his treatment notes remained with police. The Accused said he wanted the court to believe that he was doing catering when he heard screams and went to hospital. He also said it was true he met Erick on the material night while he was walking and he was hit with a rungu and he responded by stabbing the person who hit him. He said he did not have treatment notes. He also said the person who hit him was not known to him and he stabbed the person in self defence. 51.In re-examination by Mr. Oseno Advocate the Accused said that he had arrived at Nyapete’s home and after 10 minutes he heard screams. That he went to see Erick in hospital when he heard he had been stabbed and he was his neighbor. The accused said the statement he recorded was under coercion. 52.At the close of defense case directions were taken for filing of submissions and the accused person’s Advocate filed submissions dated 29th January 2026 submitted that the legal threshold for dying declarations is exceptionally high and are admissible under Section 33(a) of the Evidence Act. That admissibility does not equal reliability. It was submitted that courts have consistently warned that such evidence is inherently weak and must be treated with greatest circumspection. 53.The defense cited the holding in Pius Jasunga s/oAkumu v R (1954) 21 EACA 333, where the court held:“But it is generally speaking, very unsafe to base conviction solely on the dying declaration of a deceased person made in the absence of the accused and not subject to cross examination unless there is satisfactory corroboration”” 54.The defense submitted that both cautionary conditions apply in the present case as the deceased did not make the declaration under circumstances guaranteeing truthfulness and the prosecution failed to demonstrate that the deceased made the alleged statement under a settled, hopeless expectation of death, which is the very basis upon which dying declarations are considered reliable. 55.It was further argued that there was no evidence that the deceased believed he was about to die; the deceased had time for reflection or that the deceased was mentally or physically capable of making coherent, accurate statement. 56.That on the contrary the medical evidence show that the deceased suffered severe internal hemorrhage; liver trauma caused by sharp object and intestinal protrusion. 57.The defence submitted that a person in such a critical condition would be experiencing excruciating pain, shock, and loss of blood, rendering any utterances unreliable and potentially involuntary. 58.It was also the defense position that the alleged declaration was not heard clearly or directly and PW 1 ' s own testimony fatally weakens the alleged dying declaration for various reasons he was inside the house and the deceased was outside the house and it was also dark. It was contended that PW I did not see the incident and he only claim to have heard words spoken in distress. The defense submitted that this was not a calm, direct, or deliberate communication, but a chaotic situation marked by panic and confusion. The defense fortified their argument with the holding in Choge v Republic [19851 KLR, where the court held:“There need not be corroboration in order for a dying declaration to support conviction but the exercise of caution is necessary in reception into evidence of such a dying declaration as it is generally unsafe to base a conviction solely on the dying declaration of a deceased person.” 59.It was submitted that the circumstances herein were entirely unfavorable and the alleged declaration amounts to hearsay upon hearsay. 60.The defense submitted that PW1’s testimony that he heard the deceased allegedly say:“Dad William has stabbed me” is double hearsay as he did not witness the act; he did not receive a direct, deliberate account of events and the statement was allegedly shouted during an altercation and does not meet the reliability threshold of dying declarations”. 61.The defense also submitted that the deceased of pursuing the accused after allegedly being stabbed and after the alleged declaration contradicts the prosecution narrative is medically and logically inconsistent with the severity of injuries described in the post-mortem report 62.This contradiction further undermines the credibility of the alleged declaration and strengthens the defence position that the events may not have occurred as alleged. 63.The defense also raised doubt as to danger of mistaken identity in consideration the offence was committed at night and PW 1 did not witness the stabbing, there was an ongoing argument and the statement was allegedly shouted in distress, the possibility of mistaken identification or assumption cannot be ruled out. 64.The Court of Appeal holding in Karani v Republic [20101 eKLR was relied upon where the court warned against reliance on identification evidence made in difficult conditions without corroboration. It was submitted that the court would be unsafe to found a conviction on this evidence 65.The defense submitted that the alleged dying declaration in this case is:a.Uncorroborated; b.Made under extreme distress;c.Allegedly heard, not calmly narrated;d.Contradicted by medical and logical evidence. 66.For the prosecution to rely on such evidence would offend the well-established principle that criminal convictions must rest on firm, cogent, and reliable evidence. 67.The Accused person’s counsel prayed that the Court to:a.Reject the alleged dying declaration as unreliable;b.Find that the prosecution failed to link the Accused to the offence beyond reasonable doubt;c.Enter an acquittal accordingly. Analysis and determination 68.After reviewing all evidence, authorities, and the defense submissions, the Court finds that the issues for determination are:1.Whether the death of the deceased is proved.2.Whether the death was caused by an unlawful act.3.Whether the Accused was the assailant.4.Whether malice aforethought under Section 206 is proved.5.Whether the defense raises reasonable doubt. 70.Whether death was proved by the prosecution, PW9, the pathologist, found two deep stab wounds, punctured liver, cut abdominal vessel, and massive hemorrhage. He concluded that the cause of death was Severe hemorrhage secondary to trauma from a sharp object. Death and cause of death was therefore proved to the required standard. 71.Whether the death was caused by an unlawful act, the two targeted stab wounds, one penetrating deep into the abdomen and chest cavity, are not accidental, negligent, or defensive in nature. They are an indication of an unlawful act and the second ingredient was also proved beyond reasonable doubt. 72.Whether the Accused was properly identified as the assailant, PW1 and PW2 knew the Accused very well, they spoke to him earlier that day, identified him at close range under security lights and solar lighting and PW1 said he was only 20 metres away when the deceased screamed, PW2 saw the accused face-to-face before he fled. 73.In Wamunga v Republic [1989] KLR 424, the Court of Appeal held that recognition is more reliable than identification of a stranger, though still requiring caution. 74.The circumstances here, lighting, proximity, prior knowledge, and immediate pursuit of the accused support reliability of the evidence of recognition of the assailant. 75.The dying declarations by the deceased were heard by PW1, PW2, PW3, PW4, PW5 and PW6. They all heard the deceased say: “William has stabbed me,” “William, why are you killing me?” 76.This was repeated multiple times.Under Section 33(a) of the Evidence Act, a dying declaration is admissible but requires caution. However, a dying declaration may, on its own, sustain a conviction if sufficiently corroborated.Choge v Republic [1985] KLR 1, Pius Jasunga v R (1954) 21 EACA 331 it was held:In Dying declarations are a legally recognized exception to the rule against hearsay. Unlike English common law, their admissibility in Kenya does not strictly depend on the declarant possessing a settled, hopeless expectation of imminent death at the time the statement is made. However, dying declarations must be scrutinized with great care. While corroboration is not strictly required as a matter of law, it is generally considered unsafe to base a conviction solely on a dying declaration unless there is satisfactory corroborating evidence. This is because the maker of the statement cannot be cross-examined” 77.Here, the declarations are strongly corroborated by PW1 who saw the Accused with the deceased at the exact moment of the attack; it is also corroborated by the accused fleeing immediately after stabbing the deceased; PW2 saw the accused run from the compound; the accused later appearing at hospital with no injuries and his later contradictory admission of stabbing “someone”. 78.The conduct of the accused also makes this court believe that he was the assailant. He fled from the scene; hid the alleged knife and it was never recovered; he offered contradictory explanations and initially denied everything, then admitted to stabbing someone, then recanted. 79.In Kimeu v Republic [2002] 2 KLR 756, conduct such as flight is relevant and may corroborate guilt. 80.The evidence tendered by the prosecution witnesses places the Accused as the assailant. This ingredient has been proved beyond reasonable doubt. Whether malice has been proved, the same may be inferred from the nature of weapon, manner of use, part of body targeted and severity of injuries. 81.In Republic v Tubere s/o Ochen (1945) 12 EACA 63 it was held that malice can be inferred from the weapon, manner of use, target area, and the accused's conduct. In the instant case, there were two deep stab wounds to vital organs, the stab was aimed at the abdomen and chest; the force applied was sufficient to pierce liver and gut and all these were done without any provocation proved. Even if the Accused claimed prior disagreements, that would not reduce the charge. The accused intended to cause death and he achieved his aim by targeting very vital and delicate parts of the deceased’s body. Malice aforethought was therefore proved. 82.In the accused person’s defense, he cited Section 33(a) and cautioned against reliance on dying declaration. It is true, a dying declaration must be treated cautiously. However, the declarations herein were made immediately, repeated in multiple locations and independently heard by at least six witnesses. The said declarations were also corroborated by PW1’s direct observation, PW2’s recognition, and the accused’s flight. Thus, the declarations meet the reliability threshold. 83.The accused also alleged that he was coerced into making self -incriminating statement. However, even without the confession, the prosecution evidence is overwhelming. Further, the Accused introduced the admission in his sworn testimony, stating he stabbed someone in self-defence.This is not a coerced statement; it is part of his defense evidence. 84.The defense that there may have been a third attacker is speculative as no evidence was tendered of a third party seen by any other witness. All the prosecution witnesses only saw the Accused. The deceased repeatedly named only the Accused as the assailant. The Accused’s own testimony places him near the scene and fleeing. Speculation cannot defeat consistent prosecution evidence. 85.The accused in his defense raise the defense of self-defense which for him to rely on he must have shown that he faced immediate, unlawful attack, he responded with proportionate force and he did not intend to cause excessive harm. 86.In Ahmed Mohammed Omar & 5 others v Republic [2014] eKLR the Court of Appeal overturned the conviction in 2014, holding that the trial judge improperly applied an objective test for self-defense instead of the subjective common law standard established in DPP v Morgan [1975]. The court further held that the trial judge improperly applied an objective test to the self-defence claim, whereas English Common Law (as per Section 17 of the Penal Code) requires a subjective assessment of the accused's honest belief in imminent danger. The court ruled that the appellants' defence of self-defence were improperly rejected, as their mistaken belief in the deceased's armed threat must be evaluated subjectively, not objectively. 87.In Palmer v R [1971] AC 814 it was held that a person acting in self-defence cannot be expected to "weigh to a nicety the exact measure of necessary action" in a moment of crisis, allowing for instinctive, reasonable defensive force. 88.The accused person not only raised this defense when giving his own testimony after being placed on defense but did not call anyone who saw the deceased attack him. When he was arrested while seated on a bench at the hospital where the deceased had been taken for treatment, he had no visible injury. PW10 took him for examination before a clinical officer at the facility but he was not found to have been injured. The force used in inflicting the two deep penetrative stab wounds was grossly disproportionate. The Accused fled and hid the weapon. Self-defence therefore fails. 89.The Accused also raised the defense of alibi but he was seen in the deceased’s compound at 9pm by PW1 and PW2 who recognized him, He also gave contradictory accounts of his movements. He placed himself near the scene. 90.As held in Kiarie v Republic [1984] KLR 739, an alibi must be weighed against the totality of evidence. Here, the evidence decisively displaces it. 91.In conclusion this court finds that the prosecution proved that there was death, that the death was caused by an unlawful act and the accused was positively identified as the assailant. Further it was also proved that he was possessed of malice aforethought when he committed the offence. The accused person’s defense has not cast any doubt on the prosecution case and this court is satisfied that the Prosecution has proved the offence of murder beyond reasonable doubt. 92.The accused, person is guilty of the offence of murder as charged and convict him under Section 322 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED AT MIGORI THIS 7TH DAY OF MAY, 2026.HON. ANNE ADWERA- ONG’INJO JUDGEIn the Presence of:Victor – Court AssistantMr. Oimbo – Counsel for the Respondent/ State