https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12696

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MIGORI** **HCRCA NO. E004 OF 2022** **STATE…………………………...……………………………………………PROSECUTION** **VERSUS** **DAN ODHIAMBO ABILA ALIAS OWUOR…………………………… 1ST ACCUSED** **HITLER OGINGA WYCLIFFE…………………………………………… 2ND ACCUSED** **JESICAH JOHN MOGURE……………………………………………….. 3RD ACCUSED** **KENNEDY OUMA OLALE…………………………………………………. 4TH ACCUSED** **JUDGMENT** The Accused persons Dan Odhiambo Abala Alias Odiwuor, Hitler Oginga Wycliffe, Jesicah John Mogure and Kennedy Ouma Olale were charged with the offence of murder contrary to Section 203 as read with Section 204 of the [**Penal Code**](https://kenyalaw.org/akn/ke/act/1948/81), Chapter 63, Laws of Kenya. The particulars of the charge are that on 28th day of March 2022, at Delvin Bar in Osiri trading market, Mikei Location in Nyatike Sub-County within Migori County jointly with others not before court murdered Dennis Ochieng Makori, The accused persons pleaded not guilty to the charge and the matter was set down for hearing. The Prosecution called a total of 8 witnesses (herein referred to as PW1-PW8). PW1 was Martin Wahongo Kimuamjui, a bottle dealer and farmer. He testified that in 2022, he had two workers namely Denis Makori and Charles Rangima. That on 28th March 2022, he together his workers found bottles in a field in Otho. That the luggage was heavy, so he told them to take the first trip to Nyabiswa then come back, and they left at around 5.00 pm. He testified that after closing for the day they went to a bar for drinks and stayed till 10.30 pm and it was heavily raining. They each took three beers and asked the attendant to book for them three rooms but Denis and Charles declined because they had families to go back to. That since it rained heavily, and the roads were slippery, they used Nyakweri-Osiri route instead of Nyandema using a motor cycle belonging to Erick, a friend to Charles. It was his further testimony that they left and at around 1.10 am, he received a call from Charles informing him that they had been attacked and Denis died. He proceeded to police station, where he was informed that a report had been made but Charles was rushed to the hospital. At the hospital, Charles who had several injuries told him that they were attacked on their way at Osiri by people who claimed they were motor bike thieves. That they went back to the scene of crime, known as Delvin bar which had a pool of blood inside, while the body of Denis was lying outside in a pool of blood. 1. PW1 further testified that Charles told him that they were taken into the bar and attacked while inside. That the distance from Truth Pub (where they parted way) to Delvin bar was about 20 minutes ride. He also saw the body of the deceased which had about five wounds on the neck. 2. PW2 Ruth Atieno Okoko, a waitress at Delvin Bar testified that she was present at the bar on the material day. She was with Joy Maureen, Chanad Brenda, Alex and Ken (4th accused) at the bar on the material day. That a fight broke between Maureen and Joy over a phone, which was later found and the fight ended. That about 11.00 pm at the VIP section, she heard the accountant (DW4) say that there were two people who he didn’t know but looked like motor bike thieves. Then Ken (4th accused) came with the two suspected thieves and Oti, who was not before the court started beating the two people. She broke down while narrating how Jessica, wife to Odiwuor the 1st accused was taking video with her phone while Ken, Hitler Oti and Odiwuor were beating the two people. That Ken reached for a knife from his pocket and stabbed the two people in quick succession. 3. PW2 further testified that she saw Oti pouring water on one of the suspects who was already lying down gasping for air. she then went and sat next to the other suspect but Ken pointed her with the knife and she went outside. That the suspect who was alive was asked to take the body outside and Ken helped him pull the body outside. Ken then brought the motor bike into the bar and parked it at the veranda. It was also her testimony that there was electricity light in the bar where the incident took place and she could see properly. That Jessica wore a white marvin and black jumper, Odiwuor had a black sweater, and Hitler had a jacket black outside and red inside. That she did not know the suspected thieves and Hitler was the first to leave followed by Jessica and Odiwuor, then she also left and reported to the police. 4. PW3, Diana Akoth Okweto, the owner of Delvin bar testified that she employed Ken (4th accused) in January 2022 and he worked as the Manager, Counterman and Security. She further stated on 27th March 2022, she travelled to Nairobi for restoking and travelled back on 29th March 2022 where she spent a night in Kisii. That upon waking up, her neighbour informed her on a call that there was an incident in that bar, that she should call the police as the bar was burnt down. That when she arrived in Migori, she went to police station where she found some of her employees had been arrested for the murder in her bar. That she was called to the station after 1st Accused (Odiwuor) was arrested. 5. It was her further testimony that Odiwuor was married to Jessica, who was a former waitress in Delvin bar. That Hitler was a bodaboda rider who used to supply the bar with meat. That Ken called her at 9.00 pm on 29th March 2022 and told her that he was in Kisumu. She persuaded him to come back to record his statement but he said he was afraid. 6. PW4 Kennedy Omondi Makori, a brother of the deceased testified that he identified the body of the deceased for post mortem on 5th April 2022 in company of his cousin Wickliffe Oketch at Migori level 5 hospital. That the body had injuries in the neck, ribs and buttocks, likely inflicted by a sharp object. 7. PW5, Dr Ian Omuom, Medical Officer from Migori Referral hospital. He testified on behalf of Awinda Omolo, who conducted the post mortem on the deceased but was on sabbatical leave in Uganda. That post mortem was conducted on 5th April 2022 and the following were recorded 8. 4 deep cut wounds, 2 on the thorax and 2 in the buttocks region 9. Internally, the thoracic wounds penetrated the thoracic cavity along the clavicular line between the 6th and 7th rib 10. Right thoracic had a massive accumulation of blood with displacement of thoracic organ. 11. He opined that the cause of death was tension heamothorax that is, accumulation of blood pressing the lungs, which led to cardio respiratory arrest, secondary to sharp force trauma to the thorax. He produced the post mortem report as PEX 1. 12. PW6, CPL Livingstone Katui Gazette Notice No. 217 of 28/12/2012, a crimes scenes officer from DCI Migori testified that he took photos of a crime scene at Delvin Bar on 29th March 2022 at 5.00 am. That when he arrived at the bar, he found the deceased lying outside the bar with 2 deep cut wounds on the neck and back. That the entrance had blood stains in the veranda, leading to where the deceased was lying. A motor bike was also at the veranda. He also noticed blood stains scattered all over inside, with some tables overturned. It was his testimony that he photographed the scene, processed the photos, prepared a certificate of evidence and produced the photographs as PEX 2 (i-xiv) and certificate as PEX3 13. PW7 was IP Michael Arusei No. 241408, the Investigating Officer who was at the time of his testimony stationed at Mwea East Sub-County. He testified that he was previously stationed at Nyatike Sub-County. He testified that on 29th March 2022 at around 4.00 am, a report was made by one Martin Wakenya that his friend had been injured and taken to the hospital and another killed in Osiri at Delvin Bar. That he proceeded to the scene together with the OCS and found the body of a middle-aged man lying outside the bar. That from observation, the body had been dragged from the bar and a motorbike was parked at the veranda. He also noticed blood inside the bar which was turned upside down with water on the floor. He cordoned the scene and requested for a scene of crime officer from Migori, who photographed the scene. 14. PW7 further testified that he interrogated the revelers who gave him the names of the attendants present and he recorded their statements. That on 5th April 2022, he attended the post mortem. He also interrogated Charles Rangima, who informed him that they had been arrested by people alleging to be police officers on accusation of stealing a motor bike while they were on their way home. That the people told them that they were taking them to police station but instead took them to a bar where they were attacked and stabbed, leading to the death of his friend. 15. He further testified that on 4th April 2022 he received a video showing how the deceased was killed from mobile phone of Gordon the uncle to Dan Abala the 1st Accused herein. Gordon received the video from Dan (1st accused). When he received the exhibit, he prepared exhibit memo form and forwarded it to Cybercrime Nairobi for forensic examination. That he arrested the said Dan Abala and also took over his phone Techno spark 7P, which he prepared another exhibit memo form and forwarded to Nairobi on 14thApril 2022. He later received back the report from Chief Inspector Munyi containing video showing how the deceased was killed. It was also his testimony that in the process of investigation he received information that Kennedy Olale (4th accused) was in Zena beach Mfangano Island. He contacted the police station there and he was arrested on 13th September 2022 and he went to collect him from Mbita the following day on 14th September 2022. He produced the video as exhibit 4, Memo forms and Techno spark phone as - PEX - Exp 5(a) and (b) and the 2nd Exhibit Memo Form - PExp 6 - Phone Techno spark 16. Upon being recalled, PW7 testified that during the course of his investigations he received a **Techno Spark mobile phone** from one **Gordon Otieno**, who is the uncle of the 1st accused. The 1st Accused is the husband of the 3rd accused. He testified that upon examining the phone, he found a video recording which had been forwarded from the mobile phone belonging to the 1st accused. The video depicted the circumstances under which the deceased met his death. The phone contained two video clips, which he extracted and processed for purposes of producing the recordings in a Compact Disc (CD) as an exhibit before the court. 17. PW7 further testified that upon the arrest of the 3rd accused, the police recovered the mobile phone that had been used to record the assault on the deceased. According to PW7, the woman seen in the video kicking and assaulting the deceased was one **Shannel**, who was not arrested as she went into hiding and remains at large. He further identified the man dressed in a red shirt and carrying a torch as the **4th accused**. He testified that the same person was captured stabbing the deceased with a knife and was also seen threatening a lady with the same knife after the assault. 18. PW7 also testified that another individual identified as **Jose** was seen in the video pouring water on the two victims while they were being assaulted. Jose was not arrested as he also disappeared and remains at large. The witness stated that during the investigations, the police recorded a statement from **Ruth Atieno**, a bar attendant at **Delvin Bar** situated at Osiri Market. According to Ruth, most of the persons captured in the video had been drinking at the bar prior to the incident. She informed the investigators that many of those individuals were strangers to her. He further testified that neither the **1st accused** nor the **3rd accused** appeared in the video because, according to the investigations, they were the persons recording the incident. 19. With regard to the **2nd accused**, PW7 testified that he did not appear in the video. However, based on the statement recorded from Ruth Atieno, the 2nd accused had participated in the altercation before disappearing from the scene. Finally, PW7 stated that the video recording captured only about three minutes of the incident. It did not show the beginning of the assault or the events after the deceased had been dragged out of the bar. He stated that his investigations did not establish the total duration of the assault. 20. **PW8** No. 236978 Chief Inspector Francis Munyi from DCI Forensic Laboratory testified that on 14th April 2022 the laboratory received exhibit from Nyatike marked X. It was a mobile phone make Oppo with IMEI No. 861719051414632. It had 2 IMEI’s as it had 2 slots. The second IMEI was 861719051414624. It was paved with 2sim cards for Safaricom serial number 89254021074116854743. The second sim was Airtel serial number 8925103532003880036. That on 23rd May 2025 he received from DCI Nyatike another exhibit brought marked A. It was Techno spark 7P with IMEI No. 356565682076429 when the second exhibit was brought, they were all consolidated because they were one case. That they gave serial number 445122 for first exhibit and serial number 445(13)/2022 for the second exhibit. Exhibit memo Exp 5(a) and (b). 21. It was his further testimony that in the first memo the investigating officer requested them to extract footage named VID -2022.04.06 and WA002 -which was in MP4 format. The other footage was VID -20220406WA001 MF4. That the second request was written original footage VID-20220406 WA0002 MP4 and VID -20220406W001 contained in exhibit marked X. In exhibit memo marked 445(B)/2022 they requested them to extract video footage made on 29th April 2022 contained in Exhibit marked A. That other requests were subscriber details of the owner of exhibit marked A. He further stated that after analyzing Ex marked X, it was installed with whatsapp application. There was whatsapp user name Gordon Otieno 528 with mobile subscriber No. +254745103320. The whatsapp received 2 video prints on 11th April 2022 from whatsapp user saved as Owuor Abala with mobile subscriber No. +254748072528. On analyzing exhibit marked A it had whatsapp application with the owner known as Jesica John with mobile subscriber +254748072528 Jesica John shared the 2 video clips with Shem Brian of mobile subscriber No. +254757491507. The same whatsapp shared the 2 video clips to somebody saved as Baba Mkwe Jesica shared to Brian on 11th April 2022 at 21.19hours. Baba Mkwe’s number is +254745103320. The subscriber number was for exhibit marked X which had the subscriber in the name of Gordon Otieno 528 Exhibit marked A shared 2 video clips to exhibit marked X. In the exhibit marked A in the internal memory I was able to have the 2 MP3 videos and they are marked VID -2022032290040029 MP3. The other one is VID 20220329-004446 MP4. The date’s modified was dated they were stored. He produced the report Exp 8, certificate of Exp 9 document dated 14.4.2022 and 24.5.2024 as -Exp 10(a) and (b) 22. The Prosecution closed its case and the accused persons were placed on their defence and they chose to give sworn evidence. DWI Dan Abala testified on oath that he hailed from Nyatike Sub-County and was a gold miner by occupation. He recalled that on **28th March 2022**, he went about his normal duties at the gold mines and returned home at about **5.00 p.m.** After completing his household chores, he and the 3rd accused, whom he described as his wife, left their home at around **6.00 p.m.** to take a walk. He testified that they proceeded to **Delvin Bar and Restaurant** at Osiri Junction. According to him, the establishment comprised two sections, one operating as a hotel and the other as a bar where patrons consumed alcoholic drinks. He stated that they sat in the hotel section, which was separated from the bar by a partition. After eating, they remained at the premises drinking beer until about **9.00 p.m.**, by which time he had become slightly intoxicated. 23. DW1 further testified that shortly before they left the premises, he saw two people being brought into the bar while being assaulted. He heard members of the public shouting "thief, thief, thief." He estimated that there were more than twenty people inside the bar at the time. He further stated that immediately after the two individuals were forced into the bar, someone locked the entrance door, preventing anyone from either entering or leaving the premises. It was his testimony that upon observing the two persons being beaten mercilessly, he became concerned for the safety of the 3rd accused. He therefore pushed her behind him and shielded her from the unfolding events. He stated that while he was shielding her, the 3rd accused began recording the incident using her mobile phone. When he questioned her as to why she was recording the events, she informed him that those assaulting the victims had taken the law into their own hands and that, since they had inadvertently become caught up in the incident, the recording could later serve as evidence to identify the persons who had assaulted the deceased. 24. DW1 further testified that although the assault lasted only a few minutes, it was both intense and brutal. He stated that after the assault, the people involved dispersed while saying that someone had been seriously injured or killed. Thereafter, he and the 3rd accused left the bar and returned home. He further testified that the 3rd accused was his wife, with whom he cohabited as husband and wife, and that they had received the blessings of his father-in-law in respect of their union. He stated that, having considered the gravity of what they had witnessed, he called his uncle and informed him of the events that had transpired that night. 25. DW2 Hitler Oginga, gave sworn evidence. He testified that he hailed from Namba Kababu area in Migori Town but that at the material time he resided at Masara. He stated that he was both a videographer and a boda boda rider. He recalled that on **28th March 2022**, he rode his motorcycle to Osiri where he supplied beef to various hotels, including **Delvin Hotel**, before proceeding to the boda boda stage to ferry passengers. He testified that he supplied beef to Delvin Hotel and two other hotels in Osiri that morning. DW2 further testified that in the evening he returned to Delvin Hotel to collect payment for the beef he had supplied earlier in the day. He spoke to the manager who informed him that he would be paid the following day upon the return of the director. He stated that Delvin Hotel had two entrances and that the bar section was illuminated with disco lights, making visibility inside the premises poor. 26. He testified that as he was leaving the premises, he heard someone call him. Upon entering the bar, he found that it was **Geoffrey Odhiambo**, the caretaker of the rental house where he resided. Geoffrey asked whether he had his motorcycle and, upon receiving an affirmative response, requested that DW2 take him home. DW2 testified that Geoffrey asked him to take beer, but he informed him that he did not consume alcohol. Geoffrey instead purchased a soda for him.DW2 testified that shortly thereafter, he heard commotion outside the bar. He heard people shouting "mwizi, mwizi" (thief, thief) and also heard references to the theft of a motorcycle. Geoffrey then advised that they should leave immediately because he was carrying money and feared that he could be robbed. 27. According to DW2, as the crowd forced its way into the bar, he and Geoffrey struggled to make their way out of the premises. He left the soda he had been given and, together with Geoffrey, departed for Masara. He dropped Geoffrey at his gate before proceeding to his own residence. He further testified that the following morning, at about **7.30 a.m.**, he left for work after being engaged to provide videography services during a funeral involving the removal of a body from the Migori County Hospital Mortuary. He stated that because of that engagement, he did not return to Delvin Bar on **29th March 2022**. 28. DW3, Jesica John Magige, gave sworn testimony. She testified that she hailed from Tanzania and that prior to the incident she had worked at Delvin Club. She stated that she was aware that she had been charged in connection with the incident forming the subject of the proceedings. She testified that on **28th March 2022** she was at the home of the 1st accused, Daniel Odhiambo Abala, at Nyaripa in Nyatike where she had been cohabiting the 1st accused for approximately nine months.DW3 testified that at about **6.00 p.m.**, the 1st accused returned home from the gold mines riding a motorcycle which did not belong to him. He suggested that they go out and they proceeded together to **Delvin Bar and Restaurant**. According to her, the establishment comprised several sections, namely a bar, a restaurant and a VIP lounge. She clarified that by then she had ceased working at Delvin Bar. 29. It was her further evidence that upon arrival, they occupied a vacant table situated near the entrance on the left-hand side directly opposite the counter. She testified that shortly after they sat down, the 1st accused greeted one Ken and remarked in Kiswahili, "Pole, naskia uliibiwa pikipiki" (Sorry, I heard your motorcycle was stolen). The 1st accused then instructed her to order a drink while he proceeded to play pool at a table situated outside the bar but within the compound. DW3 testified that at about **9.00 p.m.**, the 1st accused returned to the table accompanied by five friends. She identified them as Mzee Oti, another man also known as Mzee, Omondi, who was the 1st accused's neighbour, and two boda boda riders whose names she did not know. She stated that they had arrived on three motorcycles and greeted her as their sister-in-law. They called Ruth, the bar attendant, to serve them drinks. While the others ordered alcoholic beverages, the 1st accused ordered an energy drink. 30. She further testified that shortly thereafter Ken left the counter and greeted the group. About thirty minutes later, Ken returned and called the 1st accused aside. Although they conversed in Dholuo, she understood Ken to be requesting the 1st accused to accompany him. Ken, the 1st accused and his companions then left through the VIP section. That after waiting for approximately ten minutes without seeing the 1st accused return, she followed them. She found the 1st accused and his companions standing outside. She observed that the 1st accused was holding a small stick behind his back. Upon asking him whether there was any problem, he assured her that everything was fine and instructed her to return to the table and look after their drinks. According to DW3, she later observed the group board motorcycles and left Delvin Bar. She testified that there were seven people altogether. The 1st accused rode the motorcycle he had used earlier and carried Ken, while another person wearing a black jacket sat behind them. Mzee Ote carried another Mzee, while Omondi carried two young men who did not have motorcycles. She watched them leave Osiri Junction towards the Migori direction through a window. 31. She testified that after their departure she remained seated with Ruth for about thirty minutes. Whenever customers requested drinks, Ruth informed them that the counter attendant was absent. DW3 further testified that approximately thirty minutes later she heard the sound of motorcycles returning. She stated that four motorcycles arrived outside Delvin Bar. The first motorcycle was ridden by the 1st accused and carried Ken together with a man dressed in a black jacket. The second motorcycle carried Mzee Ote, another man wearing a black jacket and the second Mzee. Omondi rode the third motorcycle alone while the fourth motorcycle carried the two boda boda riders. 32. According to DW3, the occupants alighted in a violent manner. She stated that Ken seized the man who had been seated between him and the 1st accused and pushed him into the bar. The others similarly forced another man into the premises while repeatedly shouting that the two were thieves. She testified that although the 1st accused remained outside the bar, Ken locked the entrance after the two men had been pushed inside. 33. DW3 testified that Ken, Omondi, Mzee Ote, the second Mzee and the two boda boda riders immediately began assaulting the two men using kicks and punches. She stated that a woman who had been inside the bar also joined in assaulting the victims. She testified that of all those involved in the assault, only Ken was before the court. She further stated that the 2nd accused had been present at the bar earlier but had left before the scuffle began. She stated that the assailants were violent and, in the course of the attack, pushed tables, chairs and other patrons aside. She climbed onto a chair and began recording the incident using her mobile phone. While recording, she looked outside and observed the 1st accused pacing up and down in a restless manner. 34. DW3 testified that she did not initially see anyone armed with a knife. She stated that Mzee Ote poured water on the victims. Thereafter, Ken walked to the counter, picked a knife, removed its sheath and repeatedly stabbed the deceased. She testified that the deceased did not resist because he was overwhelmed by the number of attackers. She further stated that while Ken stabbed the deceased, the other members of the group continued assaulting the second victim. After stabbing the deceased, Ken turned and stabbed the second victim. According to DW3, the deceased bled profusely, causing the attackers to panic. She testified that she stopped recording when she heard people exclaiming that the man had died. She stated that the final portion of the video captured voices saying, "Huyu mtu amekufa" (This person is dead). Ken thereafter opened the door and ordered everyone to leave the premises. 35. DW3 testified that upon leaving the bar, the 1st accused held her hand and they rode home on the motorcycle. Shortly after leaving, another motorcycle caught up with them carrying Mzee Ote and the second Mzee. The 1st accused stopped and spoke to them in Dholuo, a language she did not understand. After the conversation, Mzee Ote informed her that they would escort them home. Upon arriving home, she entered the house while the 1st accused remained outside talking to his friends. About ten minutes later she heard the motorcycles leave before the 1st accused entered the house. She stated that although they retired to bed, the 1st accused appeared restless and repeatedly went outside during the night. 36. DW3 further testified that the following morning she asked the 1staccused where the two men who had been brought to the bar had come from. Before he could answer, she informed him that she had recorded a video showing Ken stabbing the two victims. She testified that the 1st accused became alarmed and asked what she intended to do with the recording. She informed him that the video should be taken to the police because it could serve as evidence. According to DW3, the 1st accused insisted that she should delete the recording, stating that he could not testify against his friend Ken. She refused, maintaining that the recording could assist them should they be arrested. 37. DW3 testified that the disagreement continued until the 1st accused stated that he would summon his father, Gordon, and his brother Brian to assist them. Gordon and Brian later arrived. She testified that the 1st accused declined to explain what had happened and that she instead narrated the events and showed them the video. According to her, Gordon also urged her to delete the recording, warning that it would bring trouble upon the 1st accused. She refused. She testified that Gordon and Brian then enquired whether she knew where the second victim could be found. She responded that she intended to call the owner of the bar. Upon hearing this, Gordon requested that she surrender her phone so that he could take it to the police station. She declined, fearing that the video would be deleted. DW3 further testified that Brian requested her to forward the video to his phone, which she did. Brian and Gordon then left, allegedly intending to report the matter to the police. Upon their return, Brian stated that he had been afraid to proceed to the police station and again requested her to delete the recording. Gordon then requested that she forward the video to his own phone, and after she complied, he took the phone to the police. She testified that Gordon's phone was detained by the police. She further stated that Gordon falsely informed the police that it was the 1st accused who had recorded the video, whereas the recording had in fact been made using her phone. 38. DW3 testified that after the 1st accused was arrested, he informed the police that it was her phone that had been used to record the incident. She was subsequently summoned to record a statement and was later charged approximately two months after the incident. She further testified that members of the 1st accused's family opposed her reporting the matter to the police and would hide her whenever the police came looking for her. She reported the threats to the area Chief before relocating to Masara, where she was eventually arrested. 39. DW3 further testified that while she was in custody, the 1st accused sent Gordon to visit her in prison, but she declined to speak with him privately. She later spoke to Gordon by telephone, during which he allegedly urged her to align her testimony with that of the 1st accused so that both could be acquitted. She added that even on the day of her testimony, Gordon approached her and attempted to persuade her to testify in favour of the 1st accused. Finally, DW3 denied the suggestion that Ken merely disarmed the deceased. She maintained that Ken armed himself with a knife obtained from the counter, removed its sheath and repeatedly stabbed both the deceased and the second victim. 40. DW4, Kennedy Ouma Olale, gave sworn testimony. He stated that he was one of the accused persons facing the charge of murder. He testified that on **28th March 2022** he was employed as the manager, security officer and counter attendant at **Delvin Bar**, situated at Osiri Junction, where he had worked for approximately one year and eight months. He testified that the establishment had about thirteen employees, among them Maurine, Ruth and Lavenda, and that he was the only male employee at the premises. DW4 stated that he reported for duty at about **6.00 p.m.** and remained at the counter throughout the evening. According to him, there were approximately twenty customers in the bar and the atmosphere was calm, with patrons drinking peacefully. He denied having had any disagreement with any customer prior to the incident. He testified that at about **10.00 p.m.**, a large group of about twenty people arrived at the bar on motorcycles. He stated that there were three motorcycles carrying three passengers each. The group was making noise and shouting that they had apprehended persons suspected of stealing motorcycles in the area. 41. According to DW4, the crowd was unruly and interfered with customers while also damaging property within the bar. As the person responsible for security, he left the counter to intervene and restore order. He testified that he recognized some members of the crowd, namely **Dancun Abala Olung**, who was not before the court, George, Mzee Ote and another individual known as Mzee. DW4 stated that he did not know the deceased prior to the incident. He testified that as he attempted to separate the crowd from the victims, he observed that some of the attackers were armed with sticks, bottles and a knife. He stated that while attempting to disarm one of the revelers, and in the course of defending himself, he accidentally stabbed the second victim in the back. He testified that immediately thereafter he escorted the injured survivor to the police station and reported the incident. According to him, the report was received by Police Officer Oseko. He subsequently took the injured man to hospital for treatment. DW4 further testified that upon realizing that he had mistakenly stabbed the survivor, he hired a boda boda rider and transported the injured man to hospital, where he personally paid for his treatment. He stated that when he sought police assistance to control the situation at the bar, only one police officer was available at the police station, and he had requested additional security because he had been overwhelmed by the violence. 42. He testified that when he left for the hospital with the survivor, the deceased was still alive and remained at the bar in the company of the persons who had brought him there. He stated that he was unaware that the deceased had later succumbed to his injuries. DW4 denied having intended to kill anyone. He maintained that he neither planned nor intended to cause the death of the deceased and pointed to the fact that he personally took the surviving victim to hospital and paid for his treatment as evidence of his lack of malice. He further testified that on the material night he was dressed in a black pair of trousers and a red pullover. He acknowledged that he had watched the video recording produced before the court but maintained that it did not capture the entire incident. According to him, the video omitted the events preceding the assault, including the arrival of the victims on motorcycles and his attempts to separate the attackers from the victims. 43. DW4 also testified that during the struggle the survivor whom he later rescued turned and stabbed him on the left cheek, leaving a scar which had since become barely visible. He expressed remorse for the injury caused to the surviving victim and reiterated that his actions in taking him to hospital demonstrated that he had no intention of causing him harm. He further testified that since the commencement of the case he had never seen the surviving victim again. Finally, DW4 referred to proceedings held on **15th September 2025**, stating that the investigating officer had informed the court that he had spoken to the surviving victim, who allegedly expressed fear of attending court to testify. DW4 stated that he did not know whether there existed any improper arrangement between the investigating officer and the surviving victim. He maintained that the survivor's evidence would exonerate him and urged that the survivor be compelled to attend court and testify. 44. DW5, Geoffrey Odhiambo, gave sworn testimony. He testified that he hailed from Arambe in Masara and worked as a caretaker of rental houses belonging to one John. He stated that his duties included collecting rent from tenants and that he also engaged in gold mining as a part-time occupation. He recalled that on **28th March 2022**, he went to the gold mines in Nyatike and, after completing his work, proceeded to **Delvin Bar** to relax. He testified that while at the bar he was drinking Guinness beer. DW5 stated that at about **10.00 p.m.**, he began thinking about how he would return home. At that point he saw **Hitler Oginga (DW2)**, whom he knew as a boda boda rider and a tenant in the rental premises where he worked as caretaker. He requested DW2 to wait for him so that he could take him home and, while waiting for him to finish his drink, he bought DW2 a soda. 45. He testified that after approximately thirty minutes, while they were seated in the VIP section of the bar, they heard a commotion outside. Upon looking towards the entrance, they observed a large group of people entering the bar. He stated that those who had been in the VIP section immediately left the premises through a door leading to the corridor. DW5 testified that DW2 thereafter transported him on his motorcycle to Masara, where they both resided. Upon arrival, he locked the gate to the rental premises before retiring for the night. He confirmed that DW2 also entered his house and remained there for the night. He further testified that on the following morning he found DW2's motorcycle parked outside his house and that he opened the gate for the tenants as part of his usual duties. Finally, DW5 stated that after leaving Delvin Bar that night, he did not know what transpired at the premises thereafter. **ANALYSIS AND DETERMINATION** 1. I have considered the evidence for the prosecution and for the defence and submissions filed on behalf of the accused persons. At the trial, the burden is always on the prosecution to prove that the Accused was a significant contributing factor of the deceased’s death and an accused person assumes no burden to prove his/ her innocence. 2. In [**Republic v Andrew Muecha Omwenga**](https://kenyalaw.org/akn/ke/judgment/kehc/2009/1573)**,** Maraga J (as he then was) considered the provisions of section 203 of the [**Penal Code**](https://kenyalaw.org/akn/ke/act/1948/81) and expressed himself as follows with respect to what the prosecution must prove to establish the offence of murder: **“It is clear from this definition that for an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or omission. There are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are:** 1. **the death of the deceased and the cause of that death;** 2. **that the accused committed the unlawful act which caused the death of the deceased and** 3. **that the accused had the malice aforethought.”** The degree of proof in criminal cases was spelt out in the classicus English case ***of Woolmington v DPP 1935 A C 462.*** Similarly, in **Bakare v State 1985 2NWLR**, Lord Oputa of the Supreme Court of Nigeria adopted the principle as follows at page 465: - “**Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability”.** Under Article 50 (2) (a) it is provided that an accused person has a right to presumption of innocence until the contrary is proven beyond reasonable doubt. The ingredients of the offence of murder as provided in Section 203 of the [**Penal Code**](https://kenyalaw.org/akn/ke/act/1948/81)and which the prosecution is required to prove beyond reasonable doubt are: - a. The death of the deceased and the cause of that death. b. That the death was as a result of an unlawful act. c. That the accused was the perpetrator of the unlawful act. d. That the accused had malice aforethought. **On whether the prosecution proved the fact and cause of death,** there is no dispute that the deceased died. While PW2 testified that the deceased died inside the bar and was dragged out by DW4 and fellow suspect, PW1, PW3,PW6 and PW7 testified that they found the deceased lying outside the bar with stab wounds. The medical evidence tendered by PW5, on behalf of the pathologist, who conducted the post-mortem examination found 4 deep cut wounds, 2 on the thorax and 2 in the buttocks region. He opined that the cause of death was tension haemothorax that is, accumulation of blood pressing the lungs, which led to cardio respiratory arrest, secondary to sharp force trauma to thorax. The defence did not challenge either the post-mortem report or the opinion of the pathologist. Indeed, DW1 and DW3 admitted witnessing the deceased being repeatedly stabbed, while DW4 admitted that violence occurred inside the bar, although he denied causing the fatal injuries. Medical evidence is ordinarily the best evidence on the cause of death. **In *Ndungu v Republic* [1985] KLR 487,** the Court of Appeal held that where medical evidence establishes the cause of death and there is no evidence to the contrary, the court is entitled to rely upon it. The court is therefore satisfied that the prosecution proved beyond reasonable doubt both the fact and cause of death. **On whether the death resulted from an unlawful act or omission**, the evidence of PW2 established that the deceased sustained numerous injuries inflicted by both sharp and blunt weapons. Those injuries were not consistent with an accident or any lawful use of force. The eyewitness evidence, the video recording produced in evidence and the testimony of DW3 and PW5 all demonstrate that the deceased was overwhelmed by several people, beaten, kicked and repeatedly stabbed while helpless. DW3 testified that after Ken armed himself with a knife from behind the counter, he repeatedly stabbed the deceased before attacking the second victim. She further testified that the deceased offered no resistance because he had already been subdued by the group. PW2 an eye witness stated that she saw the 1st and 2nd accused kicking and boxing the deceased while the 4th accused stabbed the deceased with a knife. DW4 (A4) attempted to justify his actions by asserting that he was attempting to rescue the victims and accidentally stabbed the surviving victim. However, he admitted that he used a knife during the incident. The court finds that even if his account were accepted, no evidence was led to show that the deceased posed any imminent threat to justify the degree of force employed. The law recognizes circumstances under which homicide may be justified, including self-defense and defence of property. However, such defenses are only available where the force used is necessary and proportionate. From the video clip produced in court the 4th Accused viciously attacked the victims herein and when PW2 tried to intervene he threatened to stab her too. That is not evidence of someone trying to rescue people in distress. He was the Manager at the bar and in charge of Security and according to evidence he was among the people who went and brought the victims to the bar on allegations that they had stolen a motor bike. Instead of taking the suspected thieves to the police he took the law into his hands and used the bar to inflict fatal injuries on the deceased. It is true he took the surviving victim to the hospital but it was an afterthought. DW3 gave evidence that A4 chased everyone from the bar after the deceased herein had died and after dragging the body out of the bar. The evidence before court demonstrates that the deceased was surrounded by numerous attackers and was incapable of resisting. The continued assault, including repeated stabbing after he had been subdued, was wholly disproportionate and unlawful. Accordingly, the court finds that the prosecution proved beyond reasonable doubt that the deceased died as a result of an unlawful assault. **(c) Whether the accused persons caused the death of the deceased** 1. This is the central issue for determination. The prosecution relied on eyewitness testimony, the video recording and forensic evidence to identify the perpetrators of the murder. DW3 said that she saw the 1st, and 4th accused persons together with Mzee Ote, Omondi and another Mzee together with 2 other boda boda rders not known to her leave the bar and came back with the victims herein and that they beat and stabbed them. That they randomly attacked the victims together with others not before the court. Her evidence was one of recognition and not identification of strangers. 2. The Court of Appeal in ***Anjononi & Others v Republic* [1980] KLR 59** held that recognition is generally more satisfactory, more assuring and more reliable than identification of a stranger because it is based on prior knowledge of the assailant. Nevertheless, the court must still examine such evidence carefully to eliminate the possibility of error. The court has done so. 3. PW2 was a bar Attendant and she testified that she heard the 4th Accused person say that there were 2 people who looked like motor bike thieves. That Ken and Mzee Ote came with the two people to the bar and they started beating them. PW2 said she saw Ote pouring water on the fatter man who had been stabbed. She also said that Ken, Hitler, Ote and Odiwuor assaulted the people. She said that Hitler A2 herein hit the two men with kicks and hands. It is true that Hitler left the bar but it was after he had participated in assaulting the victims and inflicted fatal injuries on the deceased herein. 4. DW3's evidence significantly corroborates the prosecution case. She admitted recording the incident and identified the persons involved. Her evidence places the 1st accused among those who escorted the deceased back to Delvin Bar after apprehending him. She further testified that the 4th accused armed himself with a knife obtained from behind the counter before repeatedly stabbing the deceased and later the surviving victim. Her testimony is materially consistent with the video evidence and with the post-mortem findings. 5. Although DW1 denied participating in the assault, he admitted being present throughout the incident and admitted that the 3rd accused recorded the events. His evidence further confirms that the video originated from the phone used by the 3rd accused before it was later forwarded to Gordon Otieno. 6. DW4 admitted stabbing the surviving victim but denied stabbing the deceased. However, his account is inconsistent with the testimony of PW2 and DW3, who directly implicated him as the person who repeatedly stabbed both victims. His defence is further weakened by the video evidence and the medical findings. The evidence of DW2 and DW5 does not exonerate the accused persons because they left the bar after the fact of murder/assault.. Both admitted leaving the premises before the assault commenced and therefore could not contradict the evidence of those who witnessed the attack. 7. The court also notes that the defence evidence contains material inconsistencies. Whereas DW1 portrayed himself as a passive observer, PW2 and DW3 placed him among those who escorted the victims to the bar. Equally, DW4 portrayed himself as a rescuer whereas PW2 and DW3 described him as the principal assailant. 8. Having considered the entire evidence, the court is satisfied that the prosecution proved beyond all reasonable doubt that A1, 2nd and A4 accused persons participated actively in the commission of the murder herein jointly with others not before the court, 9. **Whether the prosecution proved the participation of the 3rd accused** The evidence against the 3rd accused is distinguishable from that against the other accused persons. Although it is undisputed that they were present at Delvin Bar on the material night, the prosecution was required to prove beyond reasonable doubt that they either participated in the assault or shared a common intention with the perpetrators. The 3rd accused consistently testified that she did not assault the deceased but merely recorded the incident using her mobile phone. Her evidence is corroborated by the investigating officer, who testified that the 3rd accused appeared in the video because they were the ones recording it. Further, PW2, the eye witness, did not implicate the 3rd accused as one of the persons who assaulted the deceased. The prosecution did not adduce any evidence that the 3rd accused encouraged, aided or facilitated the assault. Mere presence at the scene, without more, is insufficient to establish criminal liability or common intention. As held in ***Njoroge v Republic* [1983]** **KLR 197**, common intention cannot be inferred solely from presence at the scene of the crime. On the contrary, the 3rd accused preserved the video recording, resisted attempts to have it deleted and eventually cooperated with the investigators. Her conduct is inconsistent with that of a person acting in concert with the assailants. Accordingly, this court finds that the prosecution failed to prove beyond reasonable doubt that the 3rd accused participated in the assault or shared a common intention with the perpetrators. The court therefore finds that the prosecution proved beyond reasonable doubt that the 1st, 2ndand 4thh accused persons participated directly and had common intention under Section 21 of the Penal Code, in the unlawful assault which resulted in the deceased's death. **Whether the accused persons acted with malice aforethought** The final issue is whether the prosecution established malice aforethought as defined under Section 206 of the Penal Code. Malice aforethought may be inferred from the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used, the severity of the injuries inflicted and the conduct of the accused before, during and after the attack. In ***Republic v Tubere s/o Ochen* (1945) 12 EACA 63**, the former Court of Appeal for Eastern Africa held that those factors guide a court in determining whether malice aforethought has been established. The evidence demonstrates that the attackers were armed with dangerous weapons including knives, sticks and bottles. The deceased sustained multiple blows and stab wounds directed at vulnerable parts of the body, particularly the head and neck. The attack continued even after he had become helpless. DW3 testified that the deceased did not resist because he had already been overwhelmed by the attackers. The conduct of the attackers after the deceased collapsed is equally telling. According to DW3, panic only set in after someone remarked that the deceased had died. There was no evidence that any of the attackers attempted to obtain medical assistance for the deceased. Instead, they dispersed from the scene. The brutality of the attack, the repeated use of a knife, the multiplicity of injuries and the targeting of vital organs leave no doubt that the attackers intended either to cause death or grievous harm. Either intention satisfies section 206(a) and (b) of the Penal Code. Accordingly, the court finds that the prosecution proved beyond reasonable doubt that the accused persons acted with malice aforethought. Consequently, the court finds the 1st, 2nd and 4th accused persons guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. This Court accordingly convicts the 1st accused, **Dan Abala Odhiambo alias Odiwuor**, the 2nd accused, **Hitler Ogina Wicliffe** and 4th accused **Kennedy Ouma Olale** for the offence of murder of **Dennis Ochieng Makori** under section 322 of the Criminal Procedure Code. Having carefully considered the entire evidence on record, the court finds that the prosecution failed to prove that the 3rd accused participated in the assault on the deceased or that she shared a common intention with the other assailants within the meaning of section 21 of the Penal Code. Accordingly, this court finds the **3rdaccused, Jesica John Magige, not guilty** of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and **acquit her under section 322(1) of the Criminal Procedure Code**. The 3rd accused shall be **set at liberty forthwith unless she is otherwise lawfully held**. The Officer In Charge Migori Women Prison to repatriate the 3rd Accused person to her home country, Tanzania upon her release and ensure she is safely handed over to Tanzanian authorities. It is so ordered **DATED, SIGNED AND DELIVERED AT MIGORI THIS 6TH DAY OF AUGUST 2026** **ANNE ONGI’NJO** **JUDGE** In the presence of: