https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10274

State v Oking (Criminal Case E025 of 2024) [2026] KEHC 10274 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 10274 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Case E025 of 2024 A Mabeya, J June 19, 2026 Between State Prosecution and Erick Otieno Oking Accused Judgment 1.The accused was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. It was alleged that on 4/7/2024 at Obingo village, Agoro west sub-location in Nyakach sub-county within Kisumu county, the accused murdered David Otieno Omolo. 2.The accused pleaded not guilty and trial ensued. The prosecution called eight (8) witnesses in support of its case. Pw1 Jay Juma Otok, testified that on the 5/7/2024 at 12.40pm while on his way home from school for lunch, he saw a body of someone lying facing up beside the cow shed. That he rushed home and informed his sister Joy Makena and after seeing the individual, they both ran to their neighbour and informed her but she told them to inform their grandmother. 3.That in the company of his friend Brian, they proceeded to his grandmother’s place where they informed her of the incident. It was his testimony that he saw the body lying upwards with blood on the chest and that he later learnt it was the body of David, a village mate. That he did not know what had happened to David. 4.In cross-examination, he told the Court that the body was in a shirt. That both he and his grandmother spent the night in the boma and that there was no disturbance that night though there was a funeral gathering within the village. 5.Pw2, Flevia Auma testified that on the Friday of 5/7/2023, she was attending a funeral within the village when at around 1pm her son came and informed her of a body lying within their compound. That together with the village elder, they proceeded to the scene at her compound where they found the body of David Omollo, a village mate, lying facing upwards with a knife wound on the chest. That he called the Assistant Chief who came accompanied by the police and removed the body. 6.In cross-examination, it was her testimony that she slept within her compound the previous night and that there were no disturbances that night. That the deceased wore a black T-shirt and was lying beside the cow shed near the latrine. 7.Pw3, Charles Kiprotich Sang testified that on the 4/7/2023 at about 11pm, he was in Kericho when he carried both Davy and Njambore, on his motorbike from Mike’s Pub to the border between Rift Valley and Nyanza. That both passengers agreed to pay Kshs. 100/- for the ride and after dropping them, he went back. That he knew the deceased by the name Davy and the accused as Njambore. 8.That the following day, he found the accused at Mike’s Pub telling people that Davy was dead. That it was he, the witness, who had dropped the accused and the deceased the previous night. That the accused never explained how the deceased died. That the Pub was well lit the previous night and as such, he could see both the deceased and the accused well. That whereas he was familiar with the deceased, he was not familiar with the accused and only heard people call him by the name of Njambore. 9.In cross-examination, he told the Court that the deceased was clad in a black jacket. That both the deceased and the accused were drunk and none of them had a weapon. That they were the only persons at the border of Nyanza and Rift Valley when he dropped them. 10.Pw4, Charles Omondi Ochola, the Assistant Chief of Okuro East sub-location testified that on the 5/7/2024 at about 1.30pm, he was at Atito town when he received a call from a Community Policing Member who informed him that a body of one David Otieno Omollo had been found at Obingo village. That he, together with some police officers, proceeded to the scene where they found the body facing upwards with the left hand lying on the chest with blood oozing out from the wound. 11.That the deceased was clad in a blue jean trouser and greyish/blue T-shirt all of which were bloodied. That there was a black cap in the cow shed with some blood. That the body had a stab wound on the chest and that the police removed it to the mortuary. That on the 24/7/2024, he received information that the person last seen with the deceased on the fateful night was selling some sheep. On 26/7/2024, he proceeded to the home of that individual and found him grazing his sheep and arrested him. That he knew the individual as Erick Otieno, a resident of the area. That the deceased was also a resident of the area. 12.In cross-examination, he told the Court that the accused was not the only suspect arrested but that there was also one George Odhiambo Chalaa, who was also arrested but later released. That the two suspects were arrested in different locations and at different times. 13.Pw5 Dr. Tobias Omondi Ochola testified that on 11/7/2024, he conducted a post-mortem on the body of the deceased at Bethlehem Funeral Home at 15.30pm. That externally, the head had a bruise on the frontal head region, while the left posterior abdomen was bruised extending for 4cms with a diameter of 4cms. That there was an open cut/stab wound on the anterior chest on the left side at the 2nd rib region measuring 6cm long with a depth up to the chest cavity piercing through the inter-costal space. 14.Internally, the respiratory system had a haemothorax accumulation of blood in the chest while all other internal organs were normal. He opined that the cause of death was massive haemothorax accumulation of blood in the chest cavity due to internal bleeding secondary to a penetrating stab wound of the chest. That he filled the Death Certificate No. 0322985 and signed the post-mortem report which he produced as PExh1. In cross-examination, he stated that the stab wound was from a sharp object. 15.Pw6, Faith Cheruto Chirchir testified that she worked in a club called Kwa Mike Club in Kapsor. That on the 4/7/2024 at about 10pm, she saw the accused with the deceased arrive at the club while drunk. That they looked for a bodaboda. That the following day at 11am, she saw the accused at the club. That the accused informed her that the deceased had been injured but never explained to her how the injury was sustained. She identified the accused as Njambore stating that she knew both the accused and the deceased. 16.In cross-examination, she stated that on the said 4/7/2024, the accused and the deceased arrived together while drunk. That they went out to look for a boda boda. That as she was busy, she did not go out with them and as such did not know how they left the bar. That the deceased and the accused were friends and would buy each other alcohol. In re-examination, she stated that when the two arrived at the club, they were not that drunk. 17.Pw7 Steve Onyango Ouma testified that on the 4/7/2024 at about 9pm he was at home. At 10pm, he and one Solomon Onyango left for a funeral gathering near his home at Obingo. That on his way back that night, he met one George Chaba at a junction with a yellow lamp which was not lit. That the said George told him that the said lamp belonged to one Mr. Paa. That George proceeded to the home of Mr. Paa while he went home. That the following day, he informed the Assistant Chief of his encounter with George the previous night. 18.In cross—examination, he stated that his averment that George informed him that the lamp belonged to Paa was not in reference to the accused’s home. That he never witnessed any fight that night. 19.Pw8 No. 77673 PC Adan Sharamo testified that he was the investigations officer. It was his testimony that on the 4/7/2024 he was informed by the DCIO of a dead body recovered in someone’s compound. Together with the OCS and a team of officers, they proceeded to the scene where they found the body with a deep cut on the chest. They collected the body and took it to the mortuary. 20.Subsequently, he carried out investigations and arrested 2 suspects and on advice of the ODPP released George Chaba. That he recorded the statement of George Chaba who informed him that once he heard of the deceased’s death he threw away the sunlight lamp suspected to belong to the deceased. That none of the other witnesses mentioned seeing George Chaba and that subsequently George relocated to Nairobi and he has been unable to trace him. He produced George Chaba’s witness statement as PExh3. 21.In cross-examination, he reiterated that he had reiterated two persons to be charged with the offence of murder but the ODPP informed him to release George Chaba. That he tried to recover the lamp from the place expressed by George but did not recover it. The prosecution then closed its case. 22.When placed on his defence, the accused testified as Dw1. It was his testimony that the deceased was his friend and village mate. That on the material day, he met the deceased on his way as he left the bar. The deceased then asked him to join him back in the bar for a conversation about money that had been misplaced at his workplace. That the deceased sought the bar owner to lend him the said funds but the bar owner refused. The deceased also borrowed the money from him but he did not have any and therefore declined. 23.That at around 8pm, the deceased ordered a boda boda to take them to the border between Kericho and Kisumu and having agreed to each pay Kshs. 100/-, the deceased refused to pay. That they alighted the motor bike and started walking home. However, the deceased insisted that he had to go to Omuonyolee. 24.That on the road, they met one George Chaba who asked the deceased to pay him back his money. However, the deceased declined stating that the money he had was for repairing a wheel barrow. That the deceased then took a different route to proceed to Omuonyolee while he headed back to his home as George stated that he was headed home to put on a jacket then proceed to see the deceased. 25.When he arrived home, he found his family still awake including his brother Jared. That the following day, he woke up and commenced his chores as they were to meet with the deceased at 2pm. That he proceeded to the same bar where they had met with the deceased the previous day when he received a call from one Sammy Aomo informing him of David’s passing. That he informed the said caller how he had been with the deceased the previous day. 26.That Sammy asked him to proceed and inform the police of the same. He therefore waited for the deceased’s brother one Paul with whom they proceeded to Pap Onditi Police Station where he made the report after which he proceeded to view the deceased’s body at Bethlehem Mortuary. Subsequently, he was arrested on the 26/7/2024 and taken to Omuonyolee Police Post where he found George Chaba making his statement who named 5 people who he alleged were with the deceased. That they were then taken to Pap Onditi Police Station. In cross-examination, he reiterated his narration. 27.Dw2, Jared Ooko Oking, a brother to the accused testified that on the material day, the accused arrived home at about 9.30pm. He ate his food before going to sleep. That the accused never left until the next day. He testified that he knew George Chaba who was arrested by two persons on the 12/7/2024 at Omuonyolee and taken to the police post. 28.In cross-examination, he admitted that he could not know who the accused was with prior to arriving home on the material date. 29.The accused was charged with the offence of murder. The onus was on the prosecution to prove the offence beyond reasonable doubt. The ingredients of murder that must be proved by the prosecution to that standard are: -a.the fact of death;b.the cause of death;c.that the death was caused by the wrongful act or omission of the accused; andd.that the act or omission of the accused was with malice aforethought as defined under section 206 of the Penal Code. 30.There’s no doubt about the deceased’s death. Pw1, Pw2 & Pw4 all testified to seeing the deceased’s body at the scene of the crime. Accordingly, I am satisfied that the prosecution proved this element to the required standard. 31.The second element is the cause of death. Pw5, Dr. Ochola produced a post-mortem report that he carried out on the deceased. He told the Court that the post-mortem was carried out on 11/7/2024. That on examination, the deceased had a stab wound on the left side of the chest. He concluded that the cause of death was massive haemothorax accumulation of blood in the chest cavity due to internal bleeding secondary to a penetrating stab wound of the chest. 32.On the foregoing, I am satisfied that the cause of death was massive accumulation of blood in the chest cavity due to internal bleeding occasioned by a stab wound of the chest. 33.The third element is whether, the cause of death was as a result of the wrongful act or omission of the accused. None of the prosecution witnesses were present when the deceased was stabbed. The prosecution sought to rely on the doctrine of last seen to incriminate the accused based on the testimonies of Pw3 and Pw6 who both testified that they last saw the deceased with the accused person. 34.In Mwambegu v Republic [2023] KECA 866 (KLR), the Court of Appeal stated of the doctrine of last seen as follows: -“This Court (Makhandia, Mbogholi-Msagha & Omondi, JJA) explained the application of the doctrine of “last seen with” as follows in Chiragu & Another vs Republic (Criminal Appeal 104 of 2018) [2021] KECA 342 (KLR):“24.… Regarding the doctrine of “last seen with” we will revert to Nigerian case of Moses Jua v. The State (2007) LPELR-CA/IL/42/2006. The court, while considering the ‘last seen alive with’ doctrine held:‘Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, the court is justified in drawing the inference that the accused killed the deceased.’In yet another Nigerian case considering the same doctrine, in Stephen Haruna v. The Attorney-General of The Federation (2010) 1 iLAW/CA/A/86/C/2009 the court opined thus:‘The doctrine of "last seen" means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstance. In the absence of a satisfactory explanation, a trial court and an appellate court will be justified in drawing the inference that the accused person killed the deceased.’Quoting from another jurisdiction, to be specific India, the courts there have developed the doctrine further. In the case of Ramreddy Rajeshkhanna Reddy & Another v. State of Andhra Pradesh, JT 2006(4) SC 16 for instance the court held:‘That even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.’Therefore, for “the last seen with” doctrine to be applicable, there should be overwhelming circumstantial evidence and corroboration that exclusively links the accused person to the death of deceased both in terms of timing and cause.” 35.Under the proviso to section 111(1) of the Evidence Act, the prosecution having established that the deceased was last seen with the accused, the accused is deemed to have had special knowledge of what may have happened to the deceased in the intervening period, from the time he was seen with the deceased and the time the body of the deceased was recovered. 36.This shifted the evidential burden upon the accused to explain what happened in that intervening period if, indeed, he was not responsible for the deceased’s death. At what time and place did they part? 37.In this case, the accused offered a logical, detailed explanation of how he parted with the deceased. It was his testimony that the deceased wanted to pursue other matters at Omuonyolee and as such they parted ways as he headed home. This testimony was corroborated by his brother, Dw2, who testified that the deceased arrived home, ate his supper and slept and that the accused never left home that night. 38.The accused also testified how on their way home with the deceased, they had met one George Chaba whom the deceased owed some money. That Chaba confronted the deceased about the debt but the deceased refused to settle the same stating that the money he had was to repair the wheel of a wheel barrow. That as they parted with the deceased, Chaba stated that he was headed home to put on a jacket before returning to confront the deceased. 39.It must be noted that the individual known as George Chaba was also a suspect. The Investigations Officer testified that he had arrested him but released him on the advice of the ODPP. Mr. Chaba’s conduct raises eyebrows as from the testimony of Pw8, the investigations officer, he threw away the sunlight lamp suspected to have belonged to the deceased once he realized that the decease had passed on before relocating to Nairobi and disappearing completely. 40.This testimony of the investigating officer raises doubts as to the guilt of the accused. The evidence presented by the prosecution did not form a clear chain linking the accused to the murder of the deceased. The accused offered up a proper explanation as to the circumstances leading up to the time they parted ways with the deceased. 41.The standard of proof in a criminal case must be beyond reasonable doubt enough to lead to a conviction. Our criminal justice system is pegged on Article 50(2) (a) of the Constitution which guarantees individual freedoms under the bill of rights, particularly, the aspect of innocence until proven guilty. This burden of proof rests on the prosecution throughout the trial. 42.This proof need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadows of doubt. The law would fail to protect the community if it admitted forceful possibilities to defeat the course of justice. If the evidence is so forceful against a man to leave only a remote possibility in his favour, the case is proved beyond reasonable doubt but nothing short of that will suffice. 43.Where there is doubt of any kind in a criminal matter, and evidence which would likely advance the case of the prosecution is not adduced, the effect of such an occurrence would go to the benefit of an accused person. It is a foundational principle that mere suspicion, no matter how strong, is not sufficient to convict an accused person. A criminal conviction requires that the prosecution proves the guilt of the accused beyond any reasonable doubt. See Woolmington v DPP 1935 AC 462. 44.Accordingly, I am satisfied that the prosecution failed to prove beyond reasonable doubt that the accused was the one who unlawfully caused the death of the deceased. 45.Being of that view, there arises no need to consider the last element of whether the accused had malice aforethought. 46.In the premises, the Court finds that the prosecution failed to prove the case against the accused and he is acquitted of the charge.It is so decreed. DATED AND DELIVERED AT KISUMU THIS 19TH DAY OF JUNE, 2026.A. MABEYA, FCI ArbJUDGE