[2022] KEHC 328 (KLR)

State v Olik & another (Criminal Case 12 of 2021) [2022] KEHC 328 (KLR) (10 May 2022) (Judgment)

Neutral citation: [2022] KEHC 328 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Case 12 of 2021

RE Aburili, J

May 10, 2022

Between

State

Prosecution

and

George Omwombo Olik

1st Accused

Astariko Oduor Olik

2nd Accused

Judgment

1. The accused persons herein George Omwombo Olik and Astariko Oduor Olik were 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 8th June 2021 are that on the 18th day of May, 2021 at Ramba Pundo village, Karapul sub location in Siaya Sub County, within Siaya County, jointly with others not before court, they murdered one Emmanuel Ben Juma.

2. The accused persons as originally charged pleaded not guilty to the charge of murder. The prosecution called 8 witnesses whose evidence is summarized below. It is however important to note at this stage that at the close of the prosecution’s case, the accused person’s counsel, Mr. Ooro submitted on no case to answer and this court upon considering the evidence adduced against both the accused persons, found that the prosecution had not established a prima faciecase against the 2nd accused person Astariko Oduor Olik who was therefore acquitted under section 306(1) of the Criminal Procedure Code. Accordingly, this judgment is as against George Omwombo Olik, the first accused person only (hereinafter the 1st accused person).

3. The evidence tendered by PW1 Romulus Okoth Ongo who is the area Chief, Siaya Township Location was that on 19. 5.2021, he was in his house watching news when the 2nd accused Astariko Oduor Olik who is his resident in the Location visited him and informed him that there was a problem at his home as some people had been arrested by members of the public on suspicion of stealing from his home the previous day.

4. It was his testimony that when he questioned the 2nd accused on exactly what had happened, the 2nd accused informed him that on Monday the 17th May, his son a student at Siaya Township had gone to school and on returning, he found his property to wit, a gas cylinder, amplifier and a phone missing and that when the 2nd accused asked him if he had reported the theft, his son told him that he had not reported.

5. PW1 testified that the 2nd accused informed him that the suspects, one boy who used to work as a herdsman at his home and 2 others had been arrested by members of the public and were being beaten. It was PW1’s testimony that he told the 2nd accused that since the theft had not been reported, he should report to the police after whichPW1 called the OCS and informed him. PW1 testified that a few minutes later, a police officer called him and asked him to go to the scene as one of the boys who was being beaten had already died.

6. PW1 testified that the 2nd accused had mentioned to him that Ben was one of the suspects arrested so PW1 called Ben’s uncle and notified him of the situation after which he went to the scene and found Mr. Astariko the second accused, his wife and children lying down. It was his testimony that the police took him to the house where he found the body of a person in a sitting position and lying on the mud wall. He further testified that one of the other beaten victim was also in that house and was taken to hospital by the police.

7. PW1 further testified that other police officers arrived at the scene and took photographs. He stated that the 2nd accused had informed him that 3 suspects were arrested and that one, Bazenga, was being taken around by the 2nd accused’s son showing the latter where the stolen properties had been sold.

8. PW1 testified that the police removed Ben’s body to the mortuary and took away the 2nd accused’s family to the police station for questioning. He further testified that he saw the deceased wearing a T-shirt and a shot which was muddy. He stated that the room where the deceased was found was used to make bricks and was muddy. PW1 testified that the 2nd accused told him that the 3 suspects were arrested and were helping the public to trace the stolen properties.

9. PW1 testified that on 23. 5.2021, he recorded his statement on what he saw. He testified that the deceased was one of his subjects and a relative of whom he had earlier received reports of criminal activities. He further testified that the deceased had first been released from prison where he had been sentenced for 3 years. He further stated that the accused persons were his relatives too.

10. PW1 identified the 2nd accused in court and stated that when he went to the scene, he found the 1st accused who is the 2nd accused’s younger brother. He further stated that he saw the house from where items were stolen. It was his testimony that the 1st accused’s home and that of the 2nd accused’s son, whose property was allegedly stolen, were in the same compound.

11. In cross-examination, PW1 stated that when the 2nd accused went to PW1’s home, the 2nd accused did not appear concerned. He stated that the distance between his house and that of the 2nd accused was 500m and that it was one kilometer from the 2nd accused’s home to the police station. PW1 further stated that the 2nd accused should have reported the theft to the police. It was his testimony that the 2nd accused told him that Bazenga, Ben and another had been arrested as suspects. He further stated that he had never received a report of criminal activities by the two accused persons herein.

12. PW2 Roselyne Auma a daughter in law to the 2nd accused testified that the 2nd accused was the father to her husband Michael Ochieng Oduor whereas the 1st accused was a brother to the 2nd accused.

13. It was her testimony that on 18. 5.2021 at 8. 00 am, she was in her house when she started washing. That her husband left and returned with Bazenga whom they started beating asking him to reveal the person who had stolen some items. She testified that Bazenga revealed that it was Ben, who is the deceased and others. She further testified that Bazenga and the other suspects were taken to a certain house where other suspects were being beaten.

14. PW2 testified that Michael Ochieng, her husband was also beating the suspects and that other people joined in and beat up the suspects after which they took the suspects to the house. PW2 testified that those who were assaulting the deceased and the other suspects were George Omwombo, the 1st accused who is the brother to her father inlow-2nd accused and Michael Ochieng, her husband. She testified that she did not recognize the other assailants. She further testified that the 2nd accused had gone to graze his cattle and that the suspects were beaten from 10 am up to 6 pm.

15. It was her testimony that the deceased and 2 others were locked up in the house from where they were being beaten using metal rods. She further testified that the 2nd accused retuned at about 6 pm from herding cattle then he went to report the incident to the Chief on what had happened. PW2 testified that the police went to the scene at about 7pm. She stated that she did not get close to see what had happened. PW2 further testified that Bazenga escaped from the beatings though she was in her house so she did not see him escape.

16. PW2 testified that when the police went to the scene, they picked the deceased, the injured suspect as well as the entire Olik family and took them to the police station. She further stated that she later gave her statement to the police who recorded what she was stating. PW2 identified George Omwombo as the 1st accused in court, saying that she saw the 1st accused assault the deceased and others.

17. In cross-examination, PW2 stated that she saw Michael assault the suspects. She further stated that George Omwombo arrived at about 11. 00 am when the suspects had already been arrested by many people. She stated that George was carrying a whip and that they were assaulting suspects from inside the house. She further testified that Astariko the 2nd accused was not at home during the said assault.

18. PW3 Carolyne Atieno Oduor testified that she was the 2nd accused’s wife whereas the 1st accused was her brother in law and Michael Ochieng was her son. It was her testimony that on 17. 5.2021 her son Ted lost a gas cylinder, an amplifier and a phone. She further testified that on 18. 5.2021 at 3pm, she returned from work feeling sick and found her daughter, daughter in law, PW2, Michael and other people.

19. She testified that she found when someone had been killed and locked up in a house in her home. It was her testimony that Michael and George Omwombo Olik were also there. It was her testimony that George lived in a nearby rental house whereas Bazenga lived in one house where he had rented. PW3 testified that Bazenga was also present.

20. PW3 testified that George went into the house where Bazenga and others were being assaulted. She testified that she got information that the suspects who had stolen her son’s items were arrested and being beaten from the small house. It was her testimony that after the assailants had escaped, she and her husband, George and her sons and daughter in law and neighbours were all rounded up, arrested and taken to the police station. She stated that she had not seen Michael since that day as he escaped. She identified George Omwombo as the 1st accused in the dock.

21. In cross-examination, PW3 stated that when she reached home, she found the suspects when they had been beaten. She stated that she did not see George carrying any weapon.

22. PW4 Diana Anyango Oduor testified that the 2nd accused was her father and the 1st accused her uncle. She testified that on the 18. 5.2021 at 6 30pm, she got home from school, kept her bag and went to the toilet from where she heard noises near a house. She stated that she went and found 3 young men in a house sitted. She stated that the young men had been beaten and were lying down and that of the three, she only knew Bazenga.

23. It was her testimony that she inquired and was told of what had happened by her sister. It was her testimony that she found her brother Michael Ochieng, her uncle George Omwombo who was carrying a metal rod and some neighbours. PW4 further testified that her mother was sick and in their house. She stated that she cooked dinner and when her father arrived, he refused to eat and went to report the incident. She further stated that when she arrived home from school, her father was not around as he usually went to herd cattle.

24. PW4 testified that Michael left with Bazenga and that she never saw them again. She further testified that later, police officers arrived at their home and arrested them and took them to the police station. It was her testimony that she knew that her brother lost his items from his house and that those suspects were arrested and beaten on allegation of having stolen his items. PW4 identified George Omwombo in court by pointing at him. She further stated that Bazenga used to live in that house wherefrom the suspects were being beaten.

25. In cross-examination,PW4 stated that she could not tell if the 3 suspects who lay down were alive or not. She further stated that she did not see George using the metal rod to beat anyone and that her father was not at home when she got there from School.

26. PW5 Oduor Violet Akoth a minor was taken through voire dire examination and found by the court to be intelligent enough to understand an oath and telling the truth. It was her testimony that the 1st accused was her uncle whereas the 2nd accused was her father.

27. She testified that on the 18. 5.2021 at 8am, she was at home when her brother Michael Oduor came with one, Bazenga saying that Bazenga had stolen their other brother’s items. She testified that at 2pm, she heard noises from outside when she was in the house, got out and saw Michael coming with another person.

28. It was her testimony that Bazenga was taken to a house where he was being beaten. PW5 testified that she heard noises of someone crying being beaten. She further testified that her brother left and came back with another person. PW5 testified that she heard Bazenga tell Ben to say the truth so that they are not slaughtered. She further testified that she also saw her uncle George at the scene.

29. PW5 testified that her father was not at home. She testified that between 9 am and 11am, she had gone to school to collect her certificates. She further testified that when Michael left with Bazenga, they returned with a phone. It was her testimony that the people she saw whom she knew were Michael her brother, George the 1st accused who is her uncle and Stephen.

30. In cross-examination, PW5 stated that she did not enter the house where Bazenga was screaming from whereas George entered that house carrying a metal rod.

31. PW6 Oduor Ken Otieno, a 20-year-old student at Siaya Township Secondary School testified that on the 17. 5.2021 he returned from school and found his house muddy. He stated that he found his gas cylinder, phone and amplifier missing so he went and informed his mother after which he left to go look for his books elsewhere. PW6 testified that he did not know if his mother had reported the theft to the police.

32. It was his testimony that on 18. 5.2021 he returned from school and Michael his brother informed him that he had arrested the suspects. He testified further that Michael was with Bazenga and that he gave PW6 the recovered phone. PW6 testified that Bazenga told him that he was influenced by the devil and that Ben knew where the other stolen items were.

33. PW6 testified that later, police officers arrived and he discovered that other suspects were in a locked house. PW6, whilst being very evasive stated that Michael left with Bazenga after giving PW6 his phone back, saying they were going to recover other stolen items. He stated that he gave his statements to the police. He testified that Astariko is his father while George was his uncle, his father’s brother.

34. PW7 Charles Owino Okwengu testified that the deceased Ben Juma was a son to his younger brother. He testified that on 18. 5.2021 at about 9. 30 pm he got a call from PW1, Chief Romulus telling him that his son / nephew had been assaulted. He stated that he went to the chief’s home but the chief had left for the scene so he called the Chief and the chief informed him that the police were going to the scene. It was his testimony that at 10pm he called PW1 who told him that the deceased was killed in a homestead. PW7 testified that the following day, he went to the morgue at Siaya and confirmed that Ben was dead. He stated that he recorded his statement with the police.

35. PW8 number 99669 PC Richard Kiptoo testified that on 17/5/2021 he was tasked by his DCIO to join Scenes of Crime Personnel to proceed to a scene of Murder at Karapul where on arrival, they found 2 suspects detained at the house of Astariko, one of whom, Emanuel Juma was dead. PW8 testified that Ben, another suspect, was seriously injured so he was rushed to Siaya Referral Hospital for treatment but after he was treated, he escaped from custody.

36. It was his testimony that they found the deceased Emmanuel Juma Ben with serious bodily injuries caused by a mob on suspicion of house breaking into the house of Tedkens Otieno who was a tenant of the 2nd accused person herein. He testified that Tedkens Otieno lost a mobile phone, a hoover radio and a cooking gas. It was his testimony that the owner of the rental houses, Astariko, and others were the ones who assaulted the deceased. PW8 testified that the two accused persons together with another who was at large were arrested.

37. PW8 testified that the Scenes of Crime personnel processed the scene and the deceased’s body was removed to Siaya County Referral Hospital where postmortem was carried out on 27. 5.2021 by Dr. Gabriel Juma and the cause of death found to be severe head injury. PW8 with concession from the defence, produced the postmortem Report as PEx1.

38. It was his testimony that the accused were arrested and escorted to Jaramogi Oginga Odinga Teaching and Referral Hospital where they were mentally assessed and found fit to stand trial. He further stated that they found that the 1st accused, Omwombo Olik, and another who was at large had brought the deceased from Karapul market to the house of Astariko Olik, tied them on both hands and led them on foot to the house of Astariko and started assaulting the deceased. He further stated that the 2nd accused was the owner of the house where the deceased was killed. He identified the two accused persons before court.

39. In cross-examination, PW8 stated that he was the Investigating officer in this case. He stated that the mob caught three suspects but the third one ran away. He stated that the name Michael Olik came up as he was together with the 2 accused persons who beat up the deceased.

40. He testified that from his investigations, he found that the 1st accused used a wire to beat the deceased named “Bazenga”. He further testified that the suspected burglars were Ben Juma, Brian and another whose name he could not recall whereas the deceased was Emanuel Ben Juma alias “Bazenga”. He stated that it was not true that Bazenga was the one who escaped.

41. PW8 testified that the 2nd accused lived in the house where the deceased was found assaulted. He then stated that the accused person did not live in that house but that he lived in an adjacent house. PW8 further stated that the deceased was found in an incomplete house of the 2nd accused. It was his testimony that they arrested the 2nd accused because he was the owner of the rental houses where the deceased was found beaten. He further stated that Astariko, the 2nd accused did not participate in assaulting the deceased.

42. The prosecution then closed its case and in a ruling as to whether the prosecution had established a prima facie case against the accused persons, this court found that the evidence adduced against the 2nd accused was insufficient to warrant him being put on his defence and acquitted him of the offence of murder under section 306 (1) of the Criminal Procedure Code.

43. The 1st accused person was however found with a case to answer and placed on his defense.

The 1stAccused person’s defence 44. The 1st accused George Omwombo Olik gave sworn testimony. He testified that he used to make ice and that he lived in his own home. It was his testimony that on the 18. 5.2021 he returned from work at 10 am to go and sleep and on arriving at his house, he heard noises as if some youths were fighting or laughing. That he got out and found many people and that he went to where they were and they informed him that they had arrested 3 thieves who had stolen a hoover, a phone and a gas cylinder.

45. The 1st accused testified that he was informed that it was Bazenga who had stolen the items and that he found Bazenga and others being beaten so he joined in and beat him. He further testified that Bazenga revealed where the stolen items were hidden and wanted to take them where the items were.

46. It was his testimony that his boss then called him so he left Bazenga and 2 other suspects and proceeded to work where he worked until 8 pm then returned home. He testified that he met no one, lit the security lights then heard movements. The accused testified that the police reached him and asked him where Rasta was and that he told them that he had no idea after which they passed and he heard them say one is dead and another was near the door.

47. It was his testimony that the police rounded up people from their houses and escorted them to the police station where he gave his statement. He further stated that he did not know the two people who were removed from the house. He stated that Rasta was Michael Olik, his brother’s son.

48. The 1st accused stated that the suspects were Michael Bazenga and others suspected of stealing. He further stated that he beat up Bazenga because he is the one he found being beaten however he could not tell if the deceased was Bazenga, saying that he did not see the deceased’s body to know whether it was that of Bazenga. He added that the deceased died at the rental houses. He stated that he never saw anybody else being beaten, apart from Bazenga. He stated that he was carrying a wire which he used to assault Bazenga. He further testified that Bazenga used to work with Michael in making bricks.

49. In cross-examination by the Senior Principal Prosecution Counsel Mr. Kakoi, the 1st accused stated that the incident occurred at night. He stated that Carolyne Atieno PW3 and his sister-in-law were present. He further stated that his niece Violet Akoth was also present at that time. The 1st accused stated that he found three people beating one person so he also joined in and assaulted the person.

Analysis and Determination 50. I have considered the evidence adduced by the 8 prosecution witnesses, the exhibit produced and the defence proffered by the 1st accused person herein, George Omwombo Olik. The main issue for determination in this case is whether the prosecution have proved their case against the 1st accused person beyond reasonable doubt to warrant a conviction for the offence of murder as charged.

51. Sections 203 and 204 of the Penal Code under which the accused is charged provide for the offence of murder and the punishment for it. The law requires that the prosecution proves beyond reasonable doubt that the accused by an unlawful act or omission and with malice aforethought, unlawfully killed the deceased. The two sections provide as follows:“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.204. Any person who is convicted of murder shall be sentenced to death.”

52. For the Prosecution to secure a conviction on the charge of murder, it has to prove beyond reasonable doubt, all the elements of the offence of murder as stated in section 203 of the Penal Code, against the accused person. In Anthony Ndegwa Ngari v Republic [2014] eKLR, the elements of the offence of murder were listed as follows:(a)that the death of the deceased occurred and the cause thereof established;(b)that the death was due to unlawful act or omission on the part of the accused person;(c)that the accused had malice aforethought.

53. On the first element of proof of death, the testimony of PW1 Chief Romulus Okoth was that he received information that some suspects of a theft had been arrested by a crowd, assaulted and one of them had died. The testimonies of PW2 and PW3 all who saw the deceased’s body at the scene were that they saw the deceased dead. PW7, the deceased’s uncle also testified that he confirmed the deceased’s death when he saw his body at the morgue. The postmortem report produced by the investigating officer by consent shows that a postmortem was carried out on the body of the deceased on 27/5/2021 and the cause of death stablished by Dr. Gabriel Juma to be severe head injury. Accordingly, Iam satisfied that the evidence on record established beyond reasonable doubt that there was death of Emmanuel Ben Juma and the cause thereof established.

54. As to whether the deceased’s death was caused by an unlawful act or omission, Article 26 (1) of the Constitution guarantees every person the right to life. The post-mortem report produced by PW8 as PEx 1 showed that the cause of death was severe head injury. The post-mortem report also indicated that the deceased suffered multiple areas of bruising all over his body, that he had a swelling and haematoma on the shoulders and back of his head. From those injuries described in the post-mortem report, I am not persuaded that the same were self-inflicted or that they were justified in any way. I am persuaded that the deceased could not have inflicted them on himself. In the circumstances, I find that it was proved beyond reasonable doubt that the deceased’s death was occasioned by an unlawful act.

55. On the question of whether it was the 1st accused who caused the deceased’s unlawful death, the evidence ofPW2 was that the 1st accused was among the people who assaulted the deceased and the other suspects on allegations of stealing. PW3 also placed the 1st accused at the scene whereas PW4 identified the 1st accused as having seen him carrying a metal rod which he used to assault the deceased. PW5 also testified that the 1st accused entered the house where Bazenga was being beaten and screaming from, and that the 1st accused was carrying a metal rod. PW8 also testified that his investigations revealed that the 1st accused used a wire to beat the deceased.

56. In his sworn testimony in defence, the 1st accused denied assaulting the deceased. He stated that he found the suspects of theft being beaten and he joined in. He then claimed that he only assaulted Bazenga and not the deceased. He then stated that he did not see who the deceased was so he could not tell if the deceased was Bazenga, the person that he had assaulted. The 1st accused then qualified this by stating that he was called by his boss and went to work leaving the suspects at the scene.

57. The post-mortem carried out on the deceased’s body revealed that the deceased suffered multiple injuries of bruising all over his body and that he had swelling and haematoma on the shoulders and back of his head all consistent with one who was exposed to whipping and mob injustice.

58. Section 20 of the Penal Code provides for parties to an offence as well as the principal offenders. A principal offender includes the one who commits the offence, the one who aides or abets another person to commit the offence and the one who procures the other person to commit the offence. Section 21 of the Penal Code provides that:“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

59. Section 10 of the Evidence Act provides that:“Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.”

60. The evidence and circumstances of this case reveal that the accused was a principal offender because he was seen assaulting the deceased using a metal rod. The 1st accused therefore had the intention to cause death or grievous harm to the deceased. Borrowing from the holding in Republic v Mohammed Wanyoike & another [2017] eKLR, I find that the ingredient that it was the accused who together with others unlawfully killed the deceased has been proved beyond reasonable doubt.

61. As to whether the 1st accused had malice aforethought when he unlawfully killed the deceased, Section 206 of the Penal Code defined malice aforethought in the following terms:(a).An intention to cause death or to do grievous harm to any person whether such person is the person actually killed or not.(b).Knowledge that the act or omission causing death will cause the death of or grievous harm to some person, whether such person is the person 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 be caused.(c).An intent to commit a felony.(d).An intention to facilitate the escape from custody of a person who has committed a felony.

62. To prove malice aforethought in the offence of murder, the case of Rex v Tubere s/o Ochen{1945} 1 Z EACA 63, is instructive where the then Eastern African Court of Appeal observed that:“In determining existence or nonexistence of malice one has to look at the facts proving the weapon used, the manner in which it is used and part of the body injured.”

63. Some of the compelling evidence to infer malice aforethought is to be found in the case of Ernest Asami Bwire Abanga alias Onyango v R (CoA CRA No. 32 of 1990) where the Court held that:“The question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased.”

64. In the instant case, it is clear from the nature of injuries sustained by the deceased as described above from the post mortem report dated 27/5/2021 produced by PW8 that his attackers including the 1st accused herein intended to cause him grievous harm. To this extent, I am satisfied that malice aforethought has been proved beyond reasonable doubt.

65. Taking all the above into consideration, I find and hold that the prosecution has proved beyond reasonable doubt all the elements of murder against the accused person herein George Omwombo Olik, for the murder of the deceased Emmanuel Ben Juma. I find the accused person George Omwombo Olik guilty of the offence of murder as charged under section 203 of the Penal Code. I convict him accordingly as charged.

66. Sentence shall be after records and mitigation.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 10TH DAY OF MAY, 2022R.E. ABURILIJUDGE