https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8571

Republic v Tabu & 2 others (Criminal Case E028 of 2022) [2026] KEHC 8571 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8571 (KLR) Republic of Kenya In the High Court at Siaya Criminal Case E028 of 2022 DK Kemei, J June 19, 2026 Between Republic Prosecution and Erick Omondi Tabu 1st Accused Reuben Ochieng Okado 2nd Accused Leonard Onyango Mbede 3rd Accused Ruling 1.The accused herein Erick Omondi Tabu, Reuben Ochieng Okado and Leonard Onyango Mbede have been charged with an offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on the 26th day of October 2022 at around 0200 hours, at Masala Sub location in Rarieda Sub county within Siaya County, jointly with others not before Court, murdered Joseph Otieno Okello. 2.The accused persons denied the charges and thus a trial commenced in earnest wherein the prosecution called seven (7) witnesses in support of its case. 3.Christine Ajwang Jagosa (PW1), testified inter alia: that she is a resident of Uyoma Masala village; that she recalled on 25/10/2022 at around 2.00 am while asleep when her co-wife Evaline alerted her that their children were being killed outside; that she went there only for Erick to throw stones in her direction but managed to dodge and arrived at the scene where she saw the three accused herein; that Reuben (2nd accused) ordered her to leave immediately as they were dealing with thieves and that she pleaded with him to take the victims to the police but he declined; that Leonard (3rd accused) pushed her away; that the accused persons were harmed with knives; that the victims were doused in petrol and were put together and then tires were brought and set on fire; that the three accused herein are the ones who killed the deceased; that Kevin was rushed to hospital where he stayed for one month and survived while Joseph (deceased) did not manage to survive; that the victims were not thieves as no such incident had been witnessed or reported; that Reuben (2nd accused) was the clan elder while Leonard (3rd accused) claimed that he was cleaning the village of thieves.On cross examination, she stated inter alia; that she recorded the statement with the police; that she witnessed the incident and that she saw the three accused persons assaulting the victims; that there were many people at the scene; that she did not see the person who poured the petrol ; that Reuben (2nd accused) had the matchbox but did not see the person who struck the match stick; that the scene was at Masala primary school which was a distance of 300 metres from her home; that there were many people but she was able to recognize the three accused herein.On re-examination, she stated that it was the police officers who recorded her statement as she explained and that what she has told the court is what she had witnessed. 2.Evaline Achieng Okello (PW2), testified inter alia; that she a resident of Uyoma and a peasant farmer; that she recalled on 25/10/2022 at 2.00am when a crowd invaded her house and ordered her to hand over Joseph as they claimed that he was a thief; that the three accused herein were among the crowd; that the 1st accused threatened her with a panga and then seized Joseph while the 2nd and 3rd accused remained outside; that her house had some lighting and was able to see them; That she tried to demand why they were taking away Joseph and that they claimed that she was eating from proceeds of theft; that she tried to intervene but was threatened by the 1st accused. That both victims were placed inside some tyres and burnt at the scene; that the deceased passed on after seven days of treatment in hospital.On cross examination, she stated inter alia; that it was Isaac Ogendo who ordered for the killing of the victims and that he was also the one who brought petrol in a two-litre jerrican; Erick Omondi who brought the tire, and Joseph Ngila struck the matchstick; that it was Kevin Omol who brought the tyre 2.Kevin Otieno Muga (PW3), stated inter alia; that he is a resident of Uyoma and a rider; that on 25/10/2022 at around 2.00am, the accused herein and others not before Court went to his house and demanded him to open the door; that the accused persons broke the door and demanded that he comes outside where he was assaulted on allegations that he had been a thief; that he was viciously assaulted and later frog matched to the road side where he and the deceased were torched. That the 1st accused cut him with a panga while the 2nd accused had a club while the 3rd accused was armed with a whip. That he was dragged to the roadside where he found Joseph Otieno Okello who was his brother and that they were placed together and burnt by use of tyres and petrol. That it was the 1st accused who carried the petrol while Kevin Oyugi carried the tyre and that the 1st accused hand the petrol to the 2nd accused to hold as he fished out a matchstick. That the 2nd accused poured the petrol on them while the 1st accused struck the matchstick and that the 3rd accused arranged the tyre. That he later managed to drag himself into a nearby thicket. That he was later assisted to hospital for treatment while his brother later succumbed to the injuries.On cross-examination, he stated inter alia; that his statement is silent on the names of the assailants and the weapons used in the assault; that he saw the 1st accused and others assaulting the deceased; that it was Paul Otieno, Kevin Oyugi, Isaac Ogado who escorted him to the roadside; that he maintains that the accused persons came to his house; that he did not witness the deceased being assaulted; that he and the deceased were burnt together; that it was the 1st accused who fetched the petrol while the 2nd accused received it while Kevin Oyugi brought the tyre and then the 1st accused struck the matchstick.On re-examination, he stated inter alia; that he dictated the statement as police wrote it down; that his assailant is the 1st accused herein; that all the accused persons were at the scene.6. Damaris Bonareri Nyabwaya (PW4) a government analyst based at Kisumu Government Chemist testified on behalf of her collegue Elizabeth Waithera Oyiengo who has since retired from service. That on 8/11/2022 they received exhibits from Pc Isaac Siakilo of Aram Police Station. That the exhibit contained burnt debris inside a khaki envelope marked ‘X ‘. That it was desired for the Government Chemist to establish or confirm if the debris contained any flammable substance. That they went ahead to analyze the exhibit and that the outcome was that the debris had petrol substance. She produced the analyst report dated 8/11/202 as exhibit 3.On cross-examination, she stated inter alia; that exhibit ’X’ did not contain any DNA samples as they were not concerned with DNA analysis; that it was Elizabeth Waithera who conducted the analysis; that no human DNA analysis was requested; that the DNA of the accused persons is not in the exhibit marked ‘X’. 7.Dr Ombok Lucy (PW5) testified that she conducted an autopsy on the body of the deceased. That she noted that the body had been burnt on the waist upwards and had sustained 9% degree burns on the face, 50% on the abdomen, 9% on the left hand and 4.5% on the right hand and 17% on the back. That the total percentage of the burns was 54.5% degree burns. That the internal organs suffered 4% degree burns. That she formed the opinion that the cause of death was fourth degree burns. She produced the autopsy dated 14/11/2022 as exhibit 4.On cross-examination, she stated inter alia; that she is a general practitioner in her professions; that she is authorized to conduct autopsies by virtue of being a medical officer. 8.No. 111525 Pc Isaiah Brasa Syakilo (PW6) testified that he is the investigating officer in the matter. That he visited the victims at Bondo Sub County Hospital and found that the deceased had been referred to Jaramogi Oginga Odinga Referral Hospital in Kisumu who died on arrival. That he recorded statements of witnesses who included a survivor and also visited the scene and then arrested the suspects and presented them to court. That he took photographs of the victims in hospital. That he collected burnt debris and forwarded to the Government Chemist for analysis. That his investigations established that the victims had been suspected of stock theft in the area and thus they were attacked.On cross-examination, he stated inter alia; that he witnessed the autopsy; that the covering report indicates that John Ngila is the one who struck the matchstick and that one Jakoyo brought the petrol used to burn the victims; that the accused and oth er persons participated in the crime. 9.No. 97529 Cpl Benard Kiplagat Serem (PW7) was the scene of crime officer. That he received a memory card from the investigating officer for processing. That he prepared seven photographs which he duly produced as exhibit 1 while the certificate was produced as exhibit 6.On cross-examination, he stated inter alia; that he did not take photographs himself; that he did not produce the instrument from which he printed the photographs; that the serial number of the memory card is not indicated in his report; that he has not produced the memory card; that he is not able to verify the location where the photographs were taken. 10.At the close of the prosecution’s case, learned counsels made oral submissions on the issue whether the prosecution has made out a prima facie case against the accused persons so as to warrant them to be placed on their defence. 11.Mr Soita for the prosecution submitted inter alia; that a prima facie case has been established against the accused persons; that the aspect of death is not disputed as an autopsy was produced as an exhibit; that PW1, PW2 and PW3 saw the accused persons herein dragging the deceased to the roadside and assaulted him and later doused him with petrol and set him ablaze; that PW3 was one of those who survived the attack to tell the tale and who gave direct evidence and identified the three assailants; that PW2 saw 1st accused as the one who stormed her house and assaulted the deceased before dragging him away; that PW1 also saw 1st and 2nd accused assaulting the deceased and that the 2nd accused threatened her that they were out to rid the area of criminals; that all the three accused had a common intention and purpose under section 21 of the Penal Code and that the accused were placed at the scene of crime and that they should be placed on their defence. 12.Mr Okanda for the defence submitted inter alia; that the prosecution has failed to establish a prima facie case against the accused persons; that there is no dispute over the other ingredients of the offence and that the one for determination is on the identity of the perpetrators; that the cause of death was found to be severe burns; that there is nowhere in the autopsy that the deceased died due to assault by the accused persons; that the persons who ordered for petrol, tyre and matchbox were different people altogether who are not in court; that the person who struck the matchstick was a different person; that the accused should not be linked to the charge at all; that the real suspects are not before the court; that this court should find that no prima facie case has been made out against the accused persons who should be acquitted of the charge. 13.I have considered the evidence adduced at this stage of the proceedings as well as the submissions presented. I find the issue for determination is whether the prosecution has established a prima facie case against the accused persons to warrant them to be called upon to make a defence. 14.The burden of proof in all criminal cases is always upon the prosecution to discharge and that the standard is one of beyond any reasonable doubt. See Woolmington Vs Dpp [1935] AC 462. 15.At this stage of the proceedings, the prosecution is under a duty to establish a prima facie case against the accused persons so as to require them to be called upon to make a defence. A prima facie case has been defined in the case of BHATT Vs R [1957] EA 332 as one in which a reasonable tribunal directing its mind to the law and evidence placed before it can convict an accused person if no evidence is offered by the defence to the contrary. Hence, in a nutshell, what this means is that the evidence so far tendered at this stage by the prosecution should be sufficient to sustain a conviction against the accused persons herein were they to elect to remain silent in defence. 16.Upon an analysis of the evidence presented at this stage and being cognizant of the fact that the court should not venture into making an exhaustive examination of the matter so as not to prejudge the defence case, it is not in doubt that the incident arose out of the members of public targeting the deceased and another who survived the ordeal for being behind a spate of stock thefts in the area. It is also not in dispute that there was a large group of villagers at the scene. I find the evidence of PW1, PW2 and PW3 clearly placed the accused persons as among those who were on the forefront in assaulting the deceased. That being the position, I find that the accused persons herein must offer an explanation as to how the deceased met his death. 17.In view of the foregoing observations, it is my finding that the prosecution has established a prima facie case against the accused herein Erick Omondi Tabu, Reuben Ochieng Okado and Leonard Onyango Mbede. Consequently, I find each accused has a case to answer and are now called upon to elect to conduct their defence in accordance with the provisions of section 306(2) of the Criminal Procedure Code. DATED AND DELIVERED AT SIAYA, THIS 19TH DAY OF JUNE 2026D. KEMEIJUDGEIn the presence of :Eric Omondi Tabu.................................1st AccusedReuben Ochieng Okado.............................2nd AccusedLeonard Onyango Mbede...........................3rd AccusedOkanda.............................................for 1st, 2nd & 3rd AccusedSoita.......................................................for ProsecutionMaurine....................................................Court Assistant