[2022] KEHC 10150 (KLR)

State v Odato & another (Criminal Case E003 of 2020) [2022] KEHC 10150 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10150 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Case E003 of 2020

RE Aburili, J

May 18, 2022

Between

State

Prosecution

and

Tom Opiyo Odato

1st Accused

Agneta Akoth Atira

2nd Accused

Judgment

1. The accused persons herein Tom Opiyo Odato and Agneta Akoth Atira are jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence as per the Information dated 26th October 2020 are that on the 17th day of September 2020 at around 2000hrs – 2100hrs in Nyasanga village of Koyeyo sub-location, Central Alego location in Siaya sub-county within Siaya County, the accused persons murdered Julius Otieno Ogutu. The accused persons denied committing the offence.

2. The prosecution called six (6) witnesses to establish a prima facie case against the accused persons who were placed on their defence. The evidence as adduced is as follows: PW1 Charles Owondo Mewa a farmer and village elder of Nyasanga village, Koyeyo sub location, Central Alego location testified that on 17. 9.2020 at about 8. 30 pm, he was in his house when he heard screams from people outside, screams of a man and a woman from the neighborhood. He got out of the house and followed the direction of screams till he reached the home of Tom the first accused herein and ‘Nyamalo’ the second accused herein and on entering the homestead, he found a person lying down. He testified that the person was lying on his stomach and had cuts/injuries.

3. PW1 testified that he found Tom Opiyo, the 1st accused holding a club while gneta Akoth Atira alias ‘Nyamalo’, the 2nd accused holding a panga. He testified that he questioned the two as to why they had assaulted and cut a person who was bleeding heavily but the two carried the person and placed him beside their house and again ‘Nyamalo’ cut the deceased using her panga on the leg while Tom hit the deceased again using a rungu on the shoulders. He testified that there was bright moonlight so he was able to see all the accused and the deceased well.

4. PW1 testified that at that time, the deceased was alive and was crying asking ‘Nyamalo’ to give him water to drink. PW1 then ran back to his house and picked his phone and called the area Assistant Chief and informed him of what he had witnessed happening to the deceased. It was his testimony that the Assistant Chief directed him to return to the home of Agneta the 2nd accused herein and on arrival, Agneta entered her house and got out with a bottle of petrol and matchbox claiming that the deceased had gone to burn their house and that, that was the reason they had killed him. PW1 testified that he knew that the deceased had previously burned a house in the neighbourhood.

5. When PW1’s returned to the home of the accused persons, he found the deceased still lying where PW1 had left him. He stated that when he first found the deceased, he was already cut and bleeding and that on PW1’s arrival, Agneta cut the deceased again on the leg as the deceased was crying asking for water to drink.

6. PW1 testified that when Agneta showed him petrol and a matchbox, he called the Assistant Chief and informed him. He further stated that he used to see the deceased visit the 1st accused’s home. He further stated that the deceased was commonly known as ‘Wakare’ and that he used to visit ‘Nyamalo’ from time to time. He stated that ‘Nyamalo’ used to sell chang’aa and Busaa. PW1 testified that after notifying the Assistant Chief, he returned to his home and later reported the matter to the police who recorded his statement.

7. In cross-examination, PW1 stated that when he went to the accused persons’ home, he found them present with a few of their family members. He testified that he saw the two assault the deceased after moving the deceased beside the house. He further stated that he did not know who had assaulted the deceased earlier but he found him injured.

8. PW1 testified that he had known the 2 accused persons for close to four years. He further testified that earlier on, Agneta had reported to him that ‘Wakare’, the deceased, had destroyed her vegetables from her farm

9. PW1 further testified that “Wakare” had earlier on allegedly burned a neighbour’s kitchen. It was his testimony that he did not believe that ‘Wakare’ had gone with petrol and a matchbox to burn Agneta’s house. He denied the suggestion that he was the one who called the police.

10. He stated that Tom was at the scene and that he did not think that Tom called the police. He stated that he was never given money to influence him to record his statement or to testify.

11. PW2 Alfred Onyango Oketch testified that on the 17. 9.2020, at about 8. 30 pm, he was in his house when he heard screams from his neighbours saying in Kiswahili ‘Saidia saidia - Help! help! He went to the place where screams were emanating from, accompanied by Ochieng Ongoma and on arrival, they found ‘Nyamalo’ and Tom and a person lying on his abdomen. It was his testimony that Tom had a rungu while ‘Nyamalo’ had a panga.

12. PW2 testified that he then saw Tom hit the deceased with a rungu near the neck while ‘Nyamalo’ cut the deceased with a panga on the leg. He testified that he asked them what was happening and why they were killing the deceased and that ‘Nyamalo’ told him that the deceased had invaded them using petrol with the intention of burning them. PW2 testified that he did not see the petrol.

13. It was his testimony that the village elder Charles Owondo was also present and that he also questioned the two accused persons on why they were killing the deceased and that they claimed that the deceased wanted to burn them. He testified that the village elder, PW1, went and called the Assailant Chief. PW2 further testified that on the 18. 9.2020, he heard that the deceased had died. PW2 went and recorded his statement with the police. He identified Tom as the 1st accused and ‘Nyamalo’ as the 2nd accused in the dock.

14. According to PW2, when he arrived at the scene, he found the deceased bleeding profusely and was thus already injured before he arrived and further that he saw the accused persons assault the deceased. He further testified that it was about 150 meters from his home to the accused persons’ home. He further stated that he did not know the deceased and that he only identified him the following day when he learnt that the deceased was ‘Wakare.’

15. In cross-examination, PW2 stated that when he arrived at the scene, he found the 1st and 2nd accused persons assaulting the deceased who was lying near the door of the house with his head facing the gate and legs facing the House. He reiterated that he moved closer and saw the accused persons as they assaulted the deceased.

16. PW2 further testified that he arrived first followed by the village elder, PW1. He stated that he left the scene at about 9. 00 pm. He testified that when he left for his home, the village elder had directed the accused persons to remove the deceased from the doorstep and place him beside the house and that he heard the deceased cry saying that he wanted water to drink. It was his testimony that there was moonlight which was very bright and further that when he left the scene the police had not arrived.

17. PW2 further stated that he had not been given money to come to court to testify and that he was not sent any Kshs. 4,000/= by phone. He stated that he only came to testify on what he saw as the incident could have happened to anyone else including himself. When questioned by the court, PW2 stated that they knew the 2nd accused as “Nyamalo” and that ‘Nyamalo’ meant a person from another tribe.

18. PW3 Selina Achieng Ogutu the mother to the deceased that on the 17/9/2020 at about 3 pm, she went with the deceased to Ndere after the deceased had informed a lady that he spoke to on phone that he wanted to go and collect his wife. She testified that the deceased Julius called and spoke to ‘Nyamalo’, who was his wife’s sister and who also stayed with the deceased’s wife at Nyasanga.

19. PW3 testified that ‘Nyamalo’ had taken the deceased’s wife and given her to her neighbor who was a widower. She stated that they went to Ndere with Julius ‘Wakare’ and bought items at the market then ‘Wakare’ told her to return home as he would find her there. It was her testimony that she returned home but never saw ‘Wakare’ again.

20. PW3 testified that the following day, some children went and informed her that ‘Wakare’ had been killed at Nyasanga. She went to Nyasanga but that the deceased’s father told her that ‘Wakare” had been taken to hospital but that his condition was very bad. She reiterated that Julius was also called ‘Wakare.’ It was her testimony that she went to at Siaya County Referral Hospital and met Hospital personnel who informed her that ‘Wakare’ had already died on arrival after asking for water to drink and that his body was already in the mortuary.

21. PW3 further testified that her daughter also arrived and together they went to the mortuary and viewed the deceased’s body which had injuries and that her daughter took photographs of the deceased. She testified that she identified the body of the deceased at the mortuary before postmortem was done. It was her testimony that her son was following up on his wife who had been wooed away and given to ‘Nyamalo’s’ neighbour as a wife.

22. PW3 testified that her daughter in-law had left her son’s house for 2 months so ‘Nyamalo’ called the deceased and told him to go and collect his wife from her home. She testified that she knew ‘Nyamalo’, the 2nd accused as the sister to her daughter in-law. PW3 further testified that she used to visit ‘Nyamalo’s home.

23. In cross-examination, PW3 stated that she heard ‘Wakare’ call and speak to ‘Nyamalo’ and further that before he called ‘Wakare’, the deceased informed her that he wanted to call Agneta (the 2nd accused) and that she also heard the two talk and that Agneta ‘Nyamalo’ told the deceased to go to her home and collect his wife. It was her testimony that she did not know where the deceased’s wife was at that moment but that she heard that she had parted ways with the man who had taken her in.

24. PW4 Joshua Ochieng Ogolla testified that the deceased was his neighbour and that they grew up together in the same village. It was his testimony that on the 17/9/2020 at about 10. 00 am, he was working on his farm when Julius went and told him that he was hungry and wanted to buy food. PW4 testified that Julius used to work for him on the farm so he gave him Kshs. 1,000/= and he left. He further testified that in the evening, he found the deceased at Ndere while drunk and the deceased told PW4 that he wanted to go and collect his wife from Nyasanga. PW4 testified that he dissuaded the deceased but that the latter insisted and boarded a motorcycle saying he was going to collect his wife who was at her sister’s house at Nyasanga.

25. It was his testimony that the following day, he heard that ‘Wakare’ had been killed at Nyasanga at the home of his wife’s sister so he went to confirm and found sleepers and blood all over from the door to the rear of the house of Nyamalo f after which he went to Wakare’s home and found his mother mourning. He testified that they organized for the funeral and burial and that he later recorded his statement. PW4 testified that he knew the wife of ‘Wakare’ and her sister who he identified as the 2nd accused in court. It was his testimony that he knew that Wakare had differences with his wife and that one day, she went and slept at his house.

26. In cross-examination, PW4 stated that he gave ‘Wakare’ money Kshs 1,000 and that at about 8 pm, he found him at Ndere appearing very drunk. He stated that he had known ‘Wakare’ since he was young but that he could not tell his character whenever he was drunk. PW4 testified that he did not know that the deceased was a suspected arsonist. He stated that he knew Agneta, the 2nd accused, as she was his customer at his shop.

27. PW5 Nicholas Ogutu Otieno, the deceased’s father testified that on the 17/9/2020 at 3 pm, he was at his home with his son Julius the deceased herein who then left home when ‘Nyamalo’ his sister in-law called him on phone to go and collect his wife. He testified that he was with Julius when the latter talked to ‘Nyamalo’ and that he heard all that they talked about and so he permitted Julius to go and collect his wife who had gone to ‘Nyamalo’s.’

28. PW5 testified that Julius’s wife was a sister to ‘Nyamalo’ and that his said daughter in low had gone to live with her sister-‘Nyamalo’ for 2 weeks so Julius went to collect her after that call by Nyamalo but that he never returned. He testified that the following day at between 8 am - 9 am, their Assistant Chief informed them that Julius had died. He testified that he went to Nyamalo’s house where he found blood splashed all over the house but Julius was not present as he learnt that he had been taken to hospital.

29. It was his testimony that he followed Julius to hospital and was told that he was already dead and was in the mortuary where PW5 went and confirmed the death. He testified that he observed the body and saw that the deceased’s head, hand and legs were all cut using an axe all over his body. He further testified that he could not tell how Julius related with ‘Nyamalo. He further testified that ‘Nyamalo’ used to brew chang’aa and Julius used to drink at her place.

30. PW5 testified that from his home to ‘Nyamalo’s home was about 2 kilometers. He further stated that he heard ‘Nyamalo’ tell Julius on phone, “kuja chukua bibi yako.” He stated that he was sitted next to Julius. PW5 identified ‘Nyamalo’ in court as the 2nd accused.

31. In cross-examination, PW5 stated that he could not tell if Julius had previously gone to look for his wife at ‘Nyamalo’s. He reiterated that it was about 2 kilometers from his home to ‘Nyamalo’s. He further stated that the incident was said to have taken place at about 8 pm. PW5 testified that ‘Nyamalo’ knew where the deceased’s wife was as she had hidden her.

32. PW6 No. 86706 PC Joash Koriese the investigating officer in this case testified that on the 19/9/2020, he received instructions while on duty to investigate the case of Murder in which four suspects were already in custody. He testified that they sought through a miscellaneous application for custodial orders against the accused persons who were in custody and that though some witness’ statements had been recorded, they recorded more statements. It was his testimony that they continued with investigations and the 2 accused before court were mentioned by the witnesses who told them that the incident happened on 17/10/2020 where the deceased Julius Otieno Ogutu alias ‘Wagare’ was the victim and recorded in OB No. 2/18/9/2020.

33. PW6 testified that the deceased was found at Masanga Village of Koyeyo sub location in a pool of blood having multiple injuries and was taken to Siaya County Referral Hospital but succumbed to the injuries at the said medical facility at around midnight hence the OB No. 2 of 18/9/2020. He further testified that before the police proceeded to the scene, several issues arose as several OB Numbers were recorded concerning the deceased, by the suspects herein.

34. He testified that the 1st report was made on 16/9/2020 a day before the incident vide OB No. 3/16/9/2020 when the 2nd accused reported at Segere Police Post that the deceased had cut down her sukumawiki and other property destroyed. It was his testimony that it was alleged that the deceased was angered by actions of the 1st and 2nd accused who allegedly married off his wife, a sister to the 2nd accused, to another man.

35. He further testified that on 17/9/2020, they received information that the deceased had called the 2nd accused saying he was going to collect his wife from her house. PW6 testified that he established that Tom had inherited Agneta as his wife and that the deceased was a brother in-law to Agneta. He testified that they established that the 1st and 2nd accused were on guard waiting for the deceased to arrive at their home having received a call that the deceased was going there. He testified that the deceased went to the house of Agneta then the 1st accused who was hiding in the nearby shed went into the house of the 2nd accused, locked the deceased therein and started assaulting him. PW6 testified that neighbours heard screams from the deceased so they flooded the 2nd accused’s homestead to rescue the deceased.

36. PW6 testified that it was the 1st accused who at about 10pm rushed to Segere Police Post to report that the deceased had gone to his house and had been subjected to mob injustice by members of the public. He further testified that the police rushed to the scene and took the deceased to hospital at Siaya. He testified that the deceased after succumbing to the injuries, his body was removed to Siaya County Referral Hospital mortuary where Dr. Juma conducted a postmortem and found the cause of death to be severe head trauma and severe haemorrhage leading to circulatory failure. PW6 produced the postmortem Report dated 25/9/2020 as PEX 1 with no objection from the defence.

37. PW6 testified that they did not recover the Murder weapon. He testified that when the accused realized that the chances of the deceased surviving after the thorough beating that they had administered to him were slim, they hatched a plan where they wanted it to appear as if the deceased wanted to burn their house using petrol. It was his testimony that the 2nd accused’s son took out petrol from his motorcycle and they wanted to use it to burn the house to cover up the Murder but when PW6 investigated, the son to the 2nd accused ran away.

38. PW6 testified that Agneta Akoth had an aliases ‘Auma and Nyamalo’ which names she had given to the police earlier and that she was also called Gaudencia Auma Nyamalo. He testified that a mental assessment was done on the accused persons on 27th October, 2020 where the accused persons were declared fit to plead and stand trial. He further testified that there were several other OB numbers where the accused persons herein generally complained against the deceased. He testified that he did not know the accused persons prior to their arrest. PW6 identified the accused persons in court from his screen as he testified online.

39. In cross-examination, PW6 stated that from his investigations, the Murder incident took place at around 8 pm. He further stated that it was the 1st accused, Tom Opiyo Odato who reported of the mob injustice administered on the deceased. He further testified that the first officers to arrive at the scene were from Ndere Police Post and that he did not know if they were with the 1st accused Tom Opiyo.

40. PW6 testified that there were various reports on complaints filed by the 2 accused persons against the deceased. He further stated that there were several complaints filed by the accused and that he wanted to establish whether the deceased could have gone to the accused persons with petrol but the son to the 2nd accused whom it was said had petrol ran away and had not been traced.

41. It was his testimony that the issue the deceased had with the accused was that of his wife being married off. PW6 testified that the deceased’s general character was not good. He testified that they established that ‘Nyamalo’ –not the 2nd accused person herein, but her sister, was the wife of the deceased but that she was not traced.

42. In re-examination, PW6 stated that the deceased’s wife existed by her alias name ‘Nyamalo’ and that after the incident, she fled.

43. The prosecution closed their case after which the court found that the accused persons had a case to answer and placed them on their defence.

Defence Case 44. Each of the two accused persons gave sworn testimonies. They called two witnesses. The 1st acused Tom Opiyo Odato testified as DW1, testified that on the 14/9/2020 at about 7. 30pm he was in his homestead after returning from the office of Agriculture, Siaya to report destruction of his ½ acre vegetable crop in the farm. He testified that he heard screams from the house of his foster mother Agneta Akoth and so he ran there and found people gathered saying “Ma rach.” He further testified that Agneta told him to go and report to the police station because the person who had been destroying his vegetables was being beaten by a mob. He testified that he saw the person as he had seen him earlier when he went to his farm and bought DW1’s vegetables and the person left.

45. DW1 testified that the person returned for more vegetables and DW1 told him that he had treated the vegetables with pesticides after which the person threatened that they must migrate because they were first buyers in that area and that he further threatened to ensure that they left the area. DW1 testified that later, his vegetables were destroyed and his bananas cut down by the said person in his presence.

46. DW1 testified that he reported to the police who went and took photographs then advised him to report to the Agriculture office to go and assess the damage. He stated that he never assaulted the deceased but that he found people assaulting him calling him a thief.

47. DW1 further stated that the deceased had gone to burn their houses as he had earlier threatened to destroy them. It was his testimony that the police accompanied him to the scene at about between 9pm – 10pm and that he left the deceased at the scene where people were pulling him. He testified that he found the deceased on his return. DW1 reiterated that he never assaulted the deceased but that he went to report the attack and not to kill him.

48. In cross-examination, DW1 stated that he only declined to give vegetables to the deceased. He stated that the 2nd accused was ‘Nyamalo’ and that her sister was also called “Nyamalo”. It was his testimony that he did not know if ‘Wakare’ was going to pick another ‘Nyamalo’ from Agneta’s house. He stated that he only knew of the 14th not 17th.

49. DW1 later stated that on the 14th was when ‘Wakare’ went to cut his vegetables then returned on 17th at 7pm. He stated that he used to sit outside his house and that Agneta was in her house that night. He stated that the deceased went to Agneta’s house where the children used to sleep. DW1 stated that he had letters of complaint against the deceased.

50. In re-examination, DW1 stated that ‘Nyamalo’ the sister to Agneta lived in Busia where she is married. He stated that her husband was not ‘Wakare’. He further testified that he reported to the chief and to the police over the damage caused by ‘Wakare’ to his vegetable crop and further stated that the petrol that ‘Wakare’ wanted to burn them with was at the police station.

51. The 2nd accused Agneta Akoth Atira testified as DW2 and recalled that on 17/9/2020 at about 7. 30pm, she was outside her house after making and eating dinner with the children as the person who had destroyed their vegetables had threatened to return. That she heard the children screaming saying “Mamaa, Wakare is burning us.” It was her testimony that Wakare had entered her house and was pouring fuel in the house and that he had a matchbox. She testified that many neighbors arrived and so she told Tom to go and report to the police.

52. DW2 testified that people beat up the deceased right from her doorstep and when she told them not to beat him at her door, they took him at a distance. She denied cutting the deceased with a panga. It was her testimony that the village elder beat the deceased with a whip and that he had a torch. She denied that she ever had any weapon saying that she only screamed.

53. DW2 testified that ‘Wakare’ never married her sister as she was old and married in Busia. She further stated that the village elder had warned them not to entertain ‘Wakare’ because he was a thief. She reiterated that the deceased was not her in-law. She stated that she had lived there for 4 years and that she lived in Banana. DW2 denied being close to ‘Wakare’ and further stated that she stayed out because of the threats by ‘Wakare’ which threats she had reported to the police at Ndere.

54. In cross-examination, DW2 stated that ‘Wakare’ never called her on that day but only told her that he would return to finish them after destroying their vegetables. She stated that the deceased called her when she was with her neighbor saying he would go there for the final time. DW2 denied that her sister was ‘Wakare’s wife and stated that the village elder warned them to keep off ‘Wakare’.

55. DW3 Carolyne Adhiambo testified that she lived in Mumias and that the 2nd accused was her Aunt and Tom was her brother. She testified that on the 17/9/2020, she had visited her aunt, Agneta and slept at her house. She stated that at 7pm when Tom was listening to news, and she was in her Aunt’s house as they ate, a man entered the house and asked them where Agneta was and they told him that she was in the kitchen.

56. She testified that the man locked the door and so they started screaming and people responded to the screams. She further testified that the man poured fuel in the house saying he was to burn them and that people went and opened the door and pulled him out and they started beating him after which Agneta and Tom also arrived and Agneta told Tom to go and report to the police.

57. It was her testimony that she heard the voice of a village elder who had gone to that home earlier in the day say that the person had come from far to spoil the village. She further testified that her Aunt and Tom never beat the deceased. She stated that she only knew the village elder out of the people who gathered but that it was her first time seeing the deceased.

58. In cross-examination, DW3 stated that she lived in Mumias at their home and that she arrived at her aunt’s home at 9am. She stated that she met the village elder at 2pm when he went asking her aunt about a visitor in the home yet there was corona. She further testified that it was her first time to visit her Aunt. She stated that she never knew the deceased.

59. DW3 testified that the deceased entered the house and locked the house from inside. It was her testimony that Tom was under the tree listening to a radio while Agneta was in the kitchen making tea. She stated that when people arrived, they asked her aunt what was happening and opened the door. She stated that she was at the door when Agneta sent Tom to go and report to the police. She stated that she did not know whether Agneta sells Chang’aa and if ‘Wakare’ was one of her customers.

60. DW3 testified that she recognized the voice of the village elder because he spoke to her during the day and further because her Aunt’s daughter confirmed to her that the voice she heard was that of the village elder that she had met earlier in the day.

61. DW4 Hellen Kizito, a minor aged 16 years was taken through a voire dire examination and found to understand the nature of an Oath and was thus allowed to give sworn testimony. It was her testimony that on 17/9/2020 at about 7pm, she was in their house eating as her mother was in the kitchen and Tom was outside at a tree listening to news.

62. She testified that ‘Wakare’ entered their house bare chest and with a T-shirt tied at his waist and shoes in his hands asking for her mother to which she told him to sit before he asks for her mother. It was her testimony that he locked the door from inside and she screamed. She further testified that the deceased told them not to scream or they would burn alive. DW4 testified that the deceased had a bottle in his hand which he opened and started pouring fuel in the house. She stated that she smelt petrol and screamed louder and held him but he pushed her aside.

63. DW4 testified that the deceased had a matchbox. She further testified that as they screamed, her mother went towards the house screaming too and tried opening the door but it was locked. She stated that people came and pushed the door and it opened. It was her testimony that the deceased tried to get out and that people who went to the home started beating him.

64. She testified that she heard Owondo the village elder say, ‘why are you here yet you destroyed this lady’s vegetables?’ DW4 testified that her mother told the people not to beat the deceased from there so they took him at a distance and assaulted him. It was her testimony that Tom left and returned with the police after her mother told him to go and report to Lilian, the Corporal of Ndere.

65. DW4 testified that she knew ‘Wakare’ because he used to go to their home and buy vegetables from them. She stated that Agneta never assaulted ‘Wakare’ but only screamed and further that Tom returned with the police.

66. In cross-examination, DW4 stated that she was a day student at Mbaga Secondary School. She testified that she could not tell who was the 1st person to reach them as they screamed from the house. She further testified that her mother told Tom to go and report after the door was opened. It was her testimony that ‘Wakare’ was beaten after he was pulled from the house and that she and Carolyne were in the house as ‘Wakare’ was being pulled out.

67. DW4 testified that the village elder told them to look for the matchbox because young children could light it as petrol was smelling though she could not tell when the village elder arrived. She testified that they screamed saying ‘Wakare’ was burning them from the house. She further stated that she struggled with ‘Wakare’ as he tried to light the matchbox but she fell on him and the matchbox fell down.

68. It was her testimony that her mother had never brewed Chang’aa and that she did not know any ‘Nyamalo’. She stated that Carolyne had stayed with them for some time about 3 days or so and not one week. DW4 hesitantly stated that it was not true that Carolyne had gone to their home on the very day of the incident.

Accused Persons’ Submissions 69. The accused persons’ counsel filed written submission. On the deceased’s death and cause of death, it was conceded in submission that the same had been proven vide PEX1, the post-mortem report.

70. It was submitted that the element of actus reus was never proved beyond reasonable doubt as the corroborative testimonies of DW1 and DW2 placed PW1 amongst those who assaulted the deceased and further that the accused persons were not seen with any weapon.

71. On malice aforethought, it was submitted that it was the deceased who went to the accused persons home with a motive and intention to kill the 1st accused and that the only wrong thing that the accused did was to call out for help. It was further submitted that the conduct of the accused persons spoke of their intention as they reported every threat received from the deceased.

72. The accused persons’ counsel further submitted that there was no evidence that they met with the villagers and jointly agreed to attack the deceased but that the deceased’s attack was a spontaneous act and therefore it cannot be said that the deceased’s killing was with malice aforethought. Accordingly, it was submitted that the case against the accused persons had not been proven beyond reasonable doubt.

Analysis and Determination 73. I have considered the evidence adduced by the prosecution witnesses and the defence and their witnesses. I have also considered the submissions by counsel for the accused persons. The main issue for determination is whether the prosecution have established, beyond reasonable doubt, all the elements of the offence of murder. The offence of murder is created under section 203 of the Penal Code as follows:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

74. This definition gives rise to four (4) crucial ingredients of the offence of murder. These are:a.The fact of the death of the deceased;b.The cause of such death;c.Proof that the deceased met his death as a result of an unlawful; act or omission on the part of the accused persons; and lastly;d.Proof that said unlawful act or omission was committed with malice aforethought.

75. The fact of and cause of death of the deceased are not in doubt in this case. The evidence adduced shows that both PW3 and PW5, the mother and father of the deceased saw his body in the mortuary. PEX1, the post-mortem report dated 20. 9.2020 as produced by PW6 and done by Dr. Juma stated that the Doctor formed the opinion that the cause of death was severe blunt head trauma and severe haemorrhage circulatory failure. Accordingly, the fact and cause of death was established beyond reasonable doubt.

76. As to whether the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, it is important to analyse the evidence presented by the prosecution vis avis is that tendered by the defence.

77. The evidence adduced by the prosecution specifically by PW1 and PW2 was that they were attracted by screams emanating from the home of the two accused persons and that on reaching there, they saw the 1st accused person armed with a rungu while the 2nd accused was armed with a panga. Further, that they both saw the 1st accused strike the deceased with a rungu at the neck and that they also saw the 2nd accused cut the deceased on the leg using a panga.

78. On their part, the accused persons testified that the deceased was beaten by a mob which included PW1, the village elder and which mob was responding to the accused persons and their family member’s’ screams after the deceased threatened to burn them alive in the house. DW2, DW3 and DW4 all denied that the deceased was married to the 2nd accused’s sister, unlike the prosecution witnesses who included his parents and neighbours as well as the village elder who maintained that the deceased was married to the 2nd accused person’s sister and that she used to escape to her sister’s house with the deceased following her to return to him.

79. PW1’s testimony was corroborated by that of PW2 as to the manner that the accused persons were armed and the assault of the deceased. The defence counsel in his submissions discredits PW1 on account that he was part of the mob that attacked the deceased. However, those submissions do not mention the corroborative testimony of PW2 who literally testified of the accused persons’ assault of the deceased in a similar manner to the testimony of PW1.

80. PW2 further stated that the accused persons informed him that they were assaulting the deceased because he had threatened to burn them. However, PW2 did not see any petrol. This was further corroborated by the evidence of PW6 the investigating officer who testified that he was unable to establish whether it was true that the deceased could have gone to the accused persons’ home with petrol as the 2nd accused’s son whom it was said had petrol which was removed from his motor cycle so that the scene could be recreated to look like it was the deceased who had gone there with petrol, after the accused had assaulted the deceased and were scared that his chances of survival were slim, had ran away and could not be traced.

81. The 2nd accused, DW3 and DW4 also disputed the prosecution’s case that the deceased had gone to the 2nd accused’s residence to get his wife. They all testified that the deceased was not married to the 2nd accused’s wife who, according to the defence evidence, was married and lived in Busia.

82. This evidence was in contrast to the testimonies of the deceased’s parents PW3 and PW5 who stated categorically that the deceased was married to the 2nd accused person’s sister and that they heard the telephone conversation between the deceased and the 2nd accused who told the deceased to go and get his wife. This testimony by PW3 and PW5 was corroborated by that of PW4, who employed the deceased on his farm when he testified that he met the deceased in Ndere town whilst the deceased was drunk and that the deceased informed him that he wanted to go and collect his wife at at Nyasanga. PW4 further testified that he tried to dissuade the deceased but the deceased insisted and boarded a motorcycle saying he was going to collect his wife who was at her sister’s house at Nyasanga. The deceased’s mother also testified that she used to visit the 2nd accused.

83. Examining the testimony of the defence, DW3 testified that during the incident, the 1st accused was outside while the 2nd accused was in the kitchen making tea. DW3 stated that they screamed and that the accused persons were outside. The 2nd accused testified that she was outside keeping vigil because the deceased had warned her that he would go for them after cutting down their vegetables. The 2nd accused stated that the deceased warned her when he destroyed their vegetables. She later changed her story and stated that the deceased had called her when she was with her neighbour and threatened to go there for the final time. These contradictions are obvious and are material contradictions.

84. Further, it was DW3’s testimony that she arrived at the 2nd accused’s residence at 9am on the day of the incident herein. This is contradicted by the evidence of DW4 who testified, quite hesitantly, that DW3 had stayed with them for some time. When cross-examined, DW4 was hesitant to state how long DW3 had stayed with them before she stated that it was three days.

85. Assessing the evidence by the prosecution witnesses and that of the defence, I believe that the deceased had a relationship with the sister to the 2nd accused herein, whether they were married or cohabiting and that the two had squabbles that made them disagree from time to time and that the said lady used to go to the home of the second accused.

86. PW3 testified that she knew the 2nd accused very well as the sister to her daughter in low and that she used to visit the 2nd accused. PW4 also testified that he knew the wife of ‘Wakare’ to be the sister to the 2nd accused person.

87. I had the opportunity to hear and see the prosecution and defence witnesses as they testified. I believe that the prosecution witnesses were telling the truth of what they knew and saw or heard. I have no reason to doubt them as their testimonies were watertight and not controverted in any way. I believed the witnesses that they knew ‘Wakare’s wife had differed with him so she went to live with her sister the 2nd accused, who called ‘Wakare’ to go and collect her the fatefully evening. The 2nd accused stated in her testimony that ‘Wakare’ called her when she was with her neighbour saying he could go there for the final time.

88. It is for the above reasons that I find the evidence adduced by the prosecution witnesses to be more believable than that offered by the defence and their witnesses. The accused persons’ defence evidence appeared choreographed to form some form of uniformity but its credibility was in doubt in view of the material contradictions that I have pointed out above. The defence was under no duty to give any evidence in defence. The accused persons could have exercised their constitutional right to remain silent. However, having elected to adduce and challenge the prosecution evidence, I find that challenge consisting of unsubstantiated denials.

89. It is for the reasons above that I find and hold that the prosecution has proved beyond reasonable doubt that it was the accused persons herein who assaulted the deceased and inflicted on him fatal injuries. That assault as evidenced by the injuries that the deceased sustained, was not justified.

90. Accordingly, I find and hold that the prosecution has proved beyond reasonable doubt that the death of the deceased was caused by unlawful acts on the part of the two accused persons and that the act of the 1st accused going to report to the police after assaulting the deceased was a cover up of the offence that they had committed.

91. I further find and hold that the theory that the deceased had gone to the accused’s home with petrol to burn them was made up by the accused persons and their witnesses to cover up their unlawful acts. It was not believable considering the credible and unchallenged evidence of PW1 and PW2 who saw the accused persons herein assault the deceased using a club and a panga and even describing the exact parts of the body aimed at. Furthermore, why did the accused persons not hand over to the village elder who arrived at the scene the so called petrol and matchbox if at all the two items were recovered from the deceased who had no opportunity to ran away?

92. Having concluded that the Accused persons unlawfully killed the deceased, the final issue for determination is whether malice aforethought on the part of the accused persons has been established beyond reasonable doubt.

93. Malice aforethought is defined under Section 206 of the Penal Code which provides that:“206. Malice Aforethought shall be deemed to be established by evidence proving any one or more of the Following circumstances-(a)An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;(b)Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;(c)An intent to commit a felony;(d)An intention by the act or omission to facilitate the flight or escape of any person who has committed or attempted to commit a felony.”

94. In Nzuki v Republic [1993] KLR 171, the Court of Appeal held that before an act can be murder, it must be aimed at someone and in addition it must be an act committed with the following intentions, the test of which is always subjective to the actual accused.a)Intention to cause deathb)Intention to cause grievous bodily harmc)Where accused knows that there is a risk that death or grievous bodily harm will ensue from his acts and commits them without lawful excuse.

95. In Daniel Muthee v Republic Criminal Appeal No. 218 of 2005 (UR) cited in Republic v Lawrence Mukaria & Another [2014] eKLR, Bosire, O’kubasu and Onyango Otieno JJA., while considering what constitutes malice aforethought observed that:“When the appellant set upon the deceased and cut her with a panga several times and then proceeded to cut the young Allan in similar manner, he must have known that the act of cutting the deceased persons on the head with a sharp instrument would cause death or grievous harm to the victims. We are therefore satisfied that malice aforethought was established in terms of Section 206(b) of the Penal Code.”

96. In the instant case, the extent of the injuries visited on the deceased as per the post mortem report produced as Pex 1 showing several deed cuts on the head and leg leading to his death and the weapons used by the accused in assaulting the deceased being a club and a panga as seen by PW1 and PW2, leave no doubt in my mind that the accused persons herein intended to cause to the deceased grievous bodily harm if not death, which demonstrates malice aforethought on the part of accused persons.

97. In addition, I find that there was a common intention between the two accused persons to unlawfully kill the deceased person. The provisions of Section 20(1) of the Penal Code applies squarely in this aspect. The section provides that:“20(1)“when an offence is committed, each of the following person is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -a)Every person who actually does the act or makes the omission which constitutes the offenceb)every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.c)Every person who aids or abets another person in committing the offenced)any person who causes or procures any other person to commit the offence.”

98. In light of the above provision, I am persuaded that the evidence by PW1 and PW2 that they saw the 1st accused hit the deceased with a club and the 2nd accused cut the deceased with a panga is conclusive that the two accused persons jointly unlawfully killed the deceased and with malice aforethought. I find the two accused persons herein Tom Opiyo Odato and Agneta Akoth Atira jointly Guilty of the murder of Julius Otieno Ogutu alias ‘Wakare’ as charged and I convict each one of them accordingly. Sentence shall be after records and mitigation.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 18TH DAY OF MAY, 2022R.E. ABURILIJUDGE