[2022] KEHC 11773 (KLR)

State v Oloo & 2 others (Criminal Case E020 of 2021) [2022] KEHC 11773 (KLR) (10 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11773 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Case E020 of 2021

RE Aburili, J

May 10, 2022

Between

State

Prosecution

and

Kevin Oduor Oloo

1st Accused

Joseph Oduor Oloo Alias ‘Atuga'

2nd Accused

Dorine Akoth Odhiambo Alias ‘Adori'

3rd Accused

(The accused persons herein Kevin Oduor Oloo, Joseph Oduor Oloo alias ‘Atuga’ and ADO alias ‘A’ are jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.)

Judgment

1. The accused persons herein Kevin Oduor Oloo, Joseph Oduor Oloo alias ‘Atuga’ and ADO alias ‘A’ 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 August 2, 2021 and filed in court on the same day are that on the night of 21st and July 22, 2021 at [particulars withheld] within Siaya County, they jointly murdered one Joanes Odhiambo Otinga alias ‘Olalo Mboto.’

2. The accused persons appeared before the recess duty Judge on August 5, 2021 at Kakamega High Court before Hon WM Musyoka J and pleaded not guilty to the Information. The hearing commenced on November 24, 2021 before me with Mr Kakoi senior principal prosecution counsel prosecuting for the State while Mr Oduol Achar advocate represented the three accused persons on pauper brief basis.

3. A total of six (6) witnesses testified for the prosecution against the accused persons who were found with a case to answer and were placed on their defences. They all gave their testimonies testified on oath and elected not to call any witness.

The prosecution’s case 4. PW1 PZO, a 13-year-old male minor and a class seven pupil at [particulars withheld] primary school was taken through voire doire examination and found intelligent enough to understand the meaning of telling the truth but not understanding the meaning of an oath and was thus allowed to give unsworn evidence. He was cross examined by the defence counsel. He testified that he lived with his grandmother BA. It was his testimony that on July 2, 2021 at 1 am, he was in the house with his grandmother BA and that at about 9 pm, his grandmother went out for a short call and him with other children in the house. That she then returned in the company of D, (whom the witness pointed out to be the 3rd accused person herein), who was with her children. He testified that they slept and at about 1am, D, O, M and himself got out of the house as D had told them to escort her out to go to the home of Atuga who he identified as the 2nd accused. He stated that they escorted D out but they remained near the banana plantation.

5. It was PW1’s testimony that they heard D’s husband, Olalo, making noise saying, 'Kevin, mnaniua kwa boma yangu kwa nini?' - 'Kevin why are you killing me in my home?' PW1 testified that Olalo said so twice. He further testified that he then heard Atuga say, 'piga, piga' - beat beat,' after which D returned to them at the banana plantation. PW1 testified that D came back and never said anything to them after which they then followed her to their grandmother’s house to sleep.

6. PW1 testified that shortly, two men came and loudly calling out D and asked her if she knew that the condition of her husband was bad as he was nearly dead. He testified that the two men were Evans and Obonde whom he knew and also knew their voices. He further testified that D then left in the company of Evans and Obonde and when she returned, she informed O that his father had died. PW1 testified that they then went with O, D and A to see where baba O was and found him dead. He testified that they stayed there until 5 am when the police arrived and picked the body after which they went home and slept.

7. It was his testimony that while they were at the banana plantation, he heard Atuga say, 'piga piga.' He stated that he knew Atuga’s voice as Atuga normally shouts and quarrels from his home. He further testified that he heard the deceased crying out and calling out Kevin saying Kevin why are you killing me in my home. PW1 identified Atuga as one of the accused and stated that he was their neighbour. He further stated that D was also called ‘A’ and identified her as the 3rd accused on the screen as she appeared online from Kisumu Women Prison.

8. PW1 recalled that at am when ‘A’-D told them to escort her out, she told them that she wanted to go and collect her phone from her husband, with whom she had fought but she never went to her home and that instead she went to Atuga’s home which was nearby.

9. In cross-examination, PW1 stated that Atuga’s home was very close to the banana plantation. He further stated that Atuga’s home was near their gate. PW1 reiterated that they remained at the banana plantation and heard the deceased Olalo saying, ‘Kevin mbona mnaniua kwa boma yangu’ Kevin why are you killing me from my home?

10. PW2 MO, a minor aged 15 years old was also taken through voire doire examination and found to be intelligent enough to understand the meaning of telling the truth but not understanding of the meaning of an oath and was thus allowed to give unsworn testimony but was cross examined by the defence counsel. He stated that on July 22, 2021, he was in his grandmother’s house of EAO, with P-PW1, his grandmother, O and D. He further testified that they slept and at around 1 pm, D got out, followed by O and so he, D and A also followed them out. He testified that he was the last to get out after the rest had gotten outside as he went to relieve himself then joined them as they stood at a banana plantation.

11. It was his testimony that he heard Olalo the deceased scream saying, 'Kevin Kevin, mbona mnaniua kwa boma yangu.' He testified that Olalo was speaking loudly, screaming. He stated that he arrived where P was later and so he did not hear Atuga speak. PW2 testified that D then emerged and they went back to the house to sleep and that in the morning, he heard that Olalo had been killed. PW2 identified ‘A’, the 3rd accused on the screen.

12. In cross-examination, PW2 stated that from the banana plantation, he heard very well and clearly what Olalo was saying while screaming loudly. He stated that he knew Atuga but did not hear him say anything. It was his testimony that he did not go to the scene where Olalo died that night but only went there in the morning.

13. PW3 AOO, a minor aged 14 years old was also taken through voire doire examination and found intelligent enough to understand the meaning of telling the truth but not understanding of the meaning of an oath and was thus allowed to give an unsworn testimony and was examined. He recalled that on July 22, 2021, while he was in the house with D, he heard screams from the house of Olalo the deceased, who was saying, 'Kevin unaniua kwangu'. He testified that he heard Olalo say it thrice. PW3 testified that he also heard Atuga say ‘mpige’. He stated that he knew Atuga and also knew his voice. He further testified that he heard Atuga and recognized his voice because he always quarreled.

14. It was his testimony that he got out with D and O and that P and M also got out from another house. He further testified that they stood near the banana plantation and listened to what was happening as Atuga said ‘mpige’ - beat. PW3 testified that Olalo screamed and went silent and that D then emerged from the direction of Atuga’s home and asked them why they did not get out when Olalo was assaulting her. He testified that they went and slept and did not ask her where she was coming from. He testified that P, D, O and M slept in a different house.

15. PW3 testified that he later heard screams of mourning and when they went to find out, they found Olalo dead. He stated that he saw Evans and Otieno Kobole after Olalo was dead at his home. He further testified that he did not know which Kevin Olalo was referring to. He identified Atuga, the 2nd accused in the dock and D the 3rd accused on the screen as she was present online from Kisumu Women Prison.

16. In cross-examination, PW3 stated that Olalo’s house was near the banana plantation where they stood and listened to screams. He stated that one could see Olalo’s home although there was maize plantation in between. He reiterated that he did not go to Olalo’s home that night.

17. PW4 DOO a 16-year-old was taken through voire dire examination and found understanding of the meaning of an oath and telling the truth and was thus allowed to give sworn testimony. He recalled that On July 21, 2021 at about 9 pm he was in their home with his brother when they heard screams from the house of the deceased, coming from the deceased’s wife. He testified that he and his stepmother E went to find out what was happening and found ‘A’ crying as her husband was beating her. He further testified that he also found Atuga, the 2nd accused outside while A and her husband were inside the house.

18. PW4 testified that A’s child O opened the door from inside and the deceased got out and ran away. He further testified that A was injured in the breast and hand and that she was crying saying her husband had beaten her. He further testified that Atuga and his step mother told A to go and sleep at her aunt’s place but she refused and said her aunt would not open the door for her but that she agreed to go and sleep at his stepmother’s house.

19. It was his testimony that later in the same night, after they had slept, he heard Atuga and the deceased abusing one another so they got out of the house and went to the gate and heard the deceased scream saying, 'Kevin Kevin, why are you killing me in my home' – in Kiswahili. 'Kevin, Kevin mbona unaniua kwa boma yangu' while Atuga was saying 'mpige-‘beat him.' He testified that he heard Atuga’s voice from his house as he, PW4 knew Atuga’s voice.

20. PW4 testified that D then emerged from Atuga’s homestead and that she got shocked on seeing them and told them that she had gone to look for her phone which has a torch light but she did not find it. He further testified that D then told them to go and sleep. It was his testimony that they slept and Evans and Otieno Kobole came and asked his mother if A was at PW4’s home. He testified that he was in the house but he knew their voices so he heard them asking his stepmother after which they left with A and later A returned crying saying Olalo was dead. It was his testimony that they followed, went and found Olalo dead.

21. PW4 testified that they did not know which Kevin the deceased was referring to. He testified that Atuga was their neighbour and that he quarreled with the deceased because Atuga sent A to bring chang’aa for him making Olalo jealous. PW4 stated that Atuga was in court as the 2nd accused in the dock. He further identified A, the 3rd accused on the screen. He further stated that he knew Kevin, who was in the dock, and that he saw him when people were screaming after Olalo was found dead. He stated that Kevin was also their neighbour.

22. PW5 EAO testified that on July 21, 2021 at 10 pm she was in her homestead when she heard screams from the home of Olalo, saying she was being killed. She testified that she left her home and went to the home of a neighbour in the company of another neighbour C. She further testified that she found Olalo and D in the house where screams were emanating from and they feared entering the house because they thought those fighting were armed.

23. It was her testimony that the deceased’s son took a stone and hit the door saying 'Baba, why are you killing my mother?' after which he ran off and D also got out of the house. She testified that C asked D why they were fighting. It was her testimony that C told O to pick his siblings from the house in case the deceased came returned armed. She further testified that she went with D and her child to her house and slept with D and her children and her, PW5’s children.

24. PW5 further testified that later in the night, A left PW5’s house and went out alone and returned after sometime and when PW5 asked her if she had gone to her house, D answered in the negative and further stated that she feared Olalo could return and beat her. PW5 testified that when D went out alone, she stayed for about half an hour. She further testified that they slept and at about 1 am - 2 am, she heard someone calling her thrice and when she asked D why someone was calling and who it was, D informed her that it was Otieno.

25. PW5 testified that Otieno asked her if D had gone to her house but that D answered in the negative. She further testified that Otieno asked her to call D out and D also went to the window from where Otieno asked her if she had gone to her house but she denied telling him she feared Olalo. She further testified that Otieno told D to go with him and D in turn asked PW5 to accompany her. She further testified that D left and returned shortly saying, O, O, 'your father is dead.' It was her testimony that she screamed and they all went out to her home and found Olalo dead.

26. It was her testimony that the first time, D left her house, her children followed her then PW5’s children also followed her and she returned and slept before going back the second time after Otieno called them out. She further testified that many people went to the scene where Olalo was killed. PW5 testified that the deceased was Atuga’s neighbour and further that the deceased used to assault A and that Atuga would intervene to separate the domestic fights. She further testified that she did not know why Olalo used to beat A but that Olalo used to drink a lot and fight.

27. In cross-examination, PW5 stated that she heard screams by A saying she was being killed but did not hear the deceased screaming. It was her testimony that it was Otieno and Evans who called her. She further stated that she did not know if Olalo was dead before Otieno and Olalo called A. Upon re-examination, PW5 identified Atuga as the 2nd accused in court and D as the 3rd accused on the screen online.

28. PW6 No xxxx pc Joash Koriese the investigating officer testified that on the July 22, 2021 he was asked to investigate this case where the 3rd accused lady was already in the police cells after officers responded to distress calls at Sigul Village, Kochieng 'B' sub location, Central Alego Location of Siaya County. He further testified that there was ob no 2 at Siaya Police Station where the 3rd accused had been booked on the alleged murder of Joanes Odhiambo Oting alias Olalo Mboto.

29. He testified that he called out the 3rd accused from the cells and obtained her plain statement where she told him that on the night of 21st & July 22, 2021 she had a quarrel with her now deceased husband and that they had frequent quarrels where the deceased was accusing her of infidelity with the 2nd accused person Joseph Oduor Oloo Alias Atuga. He testified that the 2nd accused was the much older cousin of the deceased and that the deceased was disabled and walked with a gait on one leg.

30. It was his testimony that the 3rd accused told him that after a quarrel with her husband, she sought refuge with her children at the home of PW5 and that later at midnight, she returned to her home/house and went with children who were grandchildren of PW5 but never reached her house. He further testified that the 3rd accused stated that at about 1-2am, she was awakened by alias Obonyo and Evans who informed her that her husband was dead so she went to her house and found him dead after which the police were called to the scene and took the body to Siaya Referral Mortuary for postmortem.

31. PW6 testified that the deceased had a deep cut on the head, face and left hand when he was removed from the scene. He testified that on July 23, 2021, he sought for a custodial order in Misc E 51/2021 which was granted allowing the police ten days to conclude investigations. He stated that they made arrangements with the area assistant chief as this was a family issue so that he could assemble the family and establish what the issues were. He testified that in their preliminary investigations, they found out that the two people who notified the 3rd accused of the death of her husband were not from the area and had not been traced.

32. PW6 testified that after general interrogation of the 2nd accused, PW6 got PW1, PW2, PW3 and PW4, minors who were at the house of PW5. He testified that PW1-PW4 were outside the house of PW5 when they heard screams from the deceased who was pleading for his life. He further testified that after recording statements of witnesses, they arrested the 1st and 2nd accused and placed them in custody with an order of the court vide Misc E54/2021. He stated that they took the accused persons for mental assessment at Kakamega General Hospital where they were assessed and found to be mentally sound and fit to plead.

33. It was his testimony that Dr Juma then conducted a postmortem on the deceased body on August 3, 2021 and concluded, after examination, that the cause of death was acute abdominal blunt trauma with splenic injury. PW6 produced the postmortem report as PEX 1 without any objection from the defence. He further identified the 3 accused persons before court.

34. The prosecution closed its case and accused persons were subsequently found to have a case to answer and were placed on their defence.

The defence case 35. All the three accused persons elected to give sworn testimonies. DW1 Kevin Oduor Oloo from Sigul village testified that on July 21, 2021 at about 10pm, he was at his home sited outside the homestead and had been watching television with his siblings Emmanuel Otieno, Ruth Atieno and Eric Odhiambo. He testified that they heard their grandmother and neighbor screaming as if she was being beaten.

36. It was his testimony that he thought it was normal for the couple to fight as they usually fought after getting drunk and would settle their scores. He stated that the screams continued so he and Eric Odhiambo walked to that home where they found the doors closed but with the husband and wife inside. He testified that O, the couple’s son was hitting the door from outside, asking the father not to assault the mother and that they also saw some neighbors who had arrived and were asking the deceased Johannes not to assault his wife.

37. DW1 testified that Johannes opened the door and told those who had gathered outside his house to go away saying he was beating his wife not theirs. It was his testimony that the deceased’s wife, the 3rd accused herein, got out of the house with her two young children and the people outside her house advised her to go and sleep at her aunt’s home which she did and then they went away as they heard the deceased shouting at them. He stated that they went and slept and at about 1am, they again heard screams from the deceased’s wife and son, O. He testified that a neighbour’s wife was also screaming and so they listened for some time before he got out of bed and went to Johannes home where he found many people gathered. He stated that he found Johannes lying outside his door dead and he stood there. It was his testimony that he did not know who killed Johannes.

38. In cross-examination, DW1 stated that he was a neighbor to the deceased. He stated that he knew EA, PW5, Eric Odhiambo, PW1 and PW2. He stated that he did not know if they were present on the material night. He further stated that Eric Odhiambo was his brother and that he was with him. He stated that Eric was at home. He further testified that on arrival, Johannes was inside his house while his son O was outside knocking on the door.

39. He further testified that when he left the homestead of the deceased, the deceased Johannes was in his homestead talking while A, the wife to the deceased had left. He stated that Atuga, the second accused person herein, who was a neighbour to Johannes and who is DW1’s grandfather, went to the home of Olalo later and told the deceased to stop assaulting A, the wife to the deceased. He stated that he also shared a boundary with Johannes.

40. In re-examination, DW1 stated that Johannes was alive the first time he visited and left his homestead but that he found him dead the second time he returned.

41. The second accused Joseph Oduor Oloo, aged 82 years from Sigul Village testified as DW2 and stated that on the July 21, 2021 at about 10. 00pm, he was asleep in his house alone when he heard screams from the homestead of Johannes Olalo. He testified that he got out of his house then heard Olalo’s wife screaming and so he headed to the homestead of Olalo and asked him why he was assaulting his wife. It was his testimony that he also saw O, Olalo’s son hitting the locked door with a stone after which the door opened then Olalo’s wife got out of the house.

42. He testified that he told Johannes’ wife to go and sleep at her aunt’s place or at her neighbour E’s place upon which he returned to his house to sleep. He stated that at about 1am, he heard Otieno Kobole and another youth knock on his door and when he asked them what they wanted, they told him that Olalo was dead. It was his testimony that he told them that it was at night and a curfew was in place so he could not get out to find out what was happening. He stated that he slept but they asked him where Olalo’s wife was and he told them that she had gone to Ofula’s house. DW2 denied knowing the people who killed the deceased Olalo.

43. In cross-examination, DW2 stated that the deceased used to fight with his wife all the time but they that they could agree. He further testified that the wife could go and sleep at her aunt’s place whenever she disagreed with Olalo. He stated that A was his sister in law whereas the deceased was his cousin. He stated that he had a good relationship with them. It was his testimony that he was too old to seduce a young woman and that he had no disagreement with A as his sister in law and a neighbor. He further stated that his body was weak and he could not have an intimate relationship with A. He further stated that his wife died.

44. DW2 stated that the deceased was drunk all the time and so it was hard to communicate with him. He reiterated that he had no love affair with A. He further stated that the deceased alleged that he DW2 had a love affair with his A, which was a lie. He stated that he never disagreed with the deceased over his alleged love affair with A. He reiterated that the two fought from time to time whenever the deceased returned from alcohol drinking spree. It was his testimony that he knew EA his neighbor and her grandchildren who testified before court. He stated that the children told lies that to the effect that DW2 was cheering up those who were assaulting Olalo yet he, DW2 was by then, asleep. He stated that he never said anything and only spoke to the people who woke him up.

45. DAO the deceased’s wife testified as DW3 and recalled that on the July 21, 2021 at about 10pm, she was at her house in Sigul when her husband returned while drunk and she served him food which he ate and then she gave him water which he showered with after which she went to sleep. She testified that her husband went to where she slept and started quarrelling, telling her that she was stupid and when she asked him how foolish she was, her husband told her that he could beat her up. It was her testimony that her husband started assaulting her saying that he was going to kill her so she screamed and her son went and hit the door which opened.

46. DW3 testified that she got out and neighbors went to help her upon which she informed them that she was exhausted and wanted to sleep so they advised her to go to her Aunt’s place but she refused on account that her aunt was a drunkard and would abuse her so she decided to go to her neighbor’s house to sleep. She further testified that at about 1. 00am, two people, Otieno Kobole and Evans went and called her and told her to go and see where her husband was lying, as if he was not alive. She testified that she told them that she was tired as she had been assaulted and that she just wanted to sleep.

47. It was her testimony that they insisted so she went with them and found her husband lying outside the house dead. She stated that she started screaming and neighbors went to the scene. She stated that police were called and they arrested her and took her to the cells at Siaya Police Station while her husband was taken to the morgue. She testified that she was taken to court and later released on bond and that her husband was buried when she was in remand. She reiterated that she did not witness how the deceased met his unfortunate death as she found him already dead. She stated that she was not involved in the death of the deceased and did not know how the deceased met his death.

48. In cross-examination, DW3 stated that whenever her husband got drunk, he accused her of infidelity with Atuga but that she used to deny the existence of any such relationship. She denied a suggestion that she ran to Atuga’s house that night and stated that she never left her phone there. She stated that she went to sleep at a neighbour’s house and that her husband remained with her phone. It was her testimony that she only went to ask Atuga to tell her whether he knew the person who had beaten her husband. She further stated that she never heard the deceased say 'Mnaniua - you are killing me.'

The Prosecution’s Submissions 49. It was submitted that although DW1 created an alibi, DW1 failed to call the alibi to collaborate what he said. It was further submitted that the 1st accused assaulted the deceased which assault led to the death of the deceased.

50. Regarding the 2nd accused, it was submitted that though he did not participate in the actual assault, his actions fall within sections 21 and 22 of the Penal Code and that therefore he is jointly responsible with the 1st accused for the deceased’s death. The prosecution submitted that they did not prove their case against the 3rd accused beyond reasonable doubt.

51. It was also submitted that the injuries meted to the deceased were done with the purpose of causing death or grievous injury and as such, malice aforethought was proven. Accordingly, it was the prosecution’s submission that their case against the 1st and 2nd accused had been proved beyond reasonable doubt.

52. The defence counsel did not file any submissions.

Analysis and Determination 53. I have considered the evidence adduced by the prosecution witnesses and each of the three accused persons and the submissions by the prosecution counsel. The issue for determination is whether the prosecution has proved the charge of murder against the three accused persons or any one of them, beyond reasonable doubt to warrant this court return a guilty verdict against them.

54. Section 203 and 204 of the Penal Code under which the accused persons are charged provide for the offence of murder and the punishment for it. The law requires that the prosecution prove beyond reasonable doubt that the accused by an unlawful act or omission caused the death of the deceased and with malice aforethought. The 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.' 55. Section 203 of the Penal Codealso details the ingredients for murder as restated by the Court of Appeal in Anthony Ndegwa Ngari v Republic [2014] eKLR that:'For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.'

56. Accordingly, this court must answer whether the prosecution has proved beyond reasonable doubt the following elements of murder:a)That there was the death of the deceased and the cause of the said death;b)That the death was caused by unlawful acts or omission;c)That the accused persons committed the unlawful act which caused the death of the deceased;d)That the accused persons had malice afore thought.

57. On the first element, the death of the deceased was established by the testimonies of all the prosecution witnesses and the accused persons who testified that they saw the body of the deceased. The cause of death was confirmed by the post mortem examination and a report PEX1 produced by PW6 in which Dr Juma Gabriel who conducted the post-mortem and concluded that the cause of death was an acute abdominal blunt trauma with splenic injury. Accordingly, I find and hold that the death and cause thereof were established beyond reasonable doubt.

58. Turning to the second ingredient of the offence of murder, as to whether the death was caused by unlawful acts or omission, I do note that PEX1 provides that the deceased suffered injuries to the eyelids that was swollen with blood clots and an examination of the digestive system revealed that there was a splenic injury with blood clots. These injuries, in my humble view, were not self-inflicted injuries.

59. In Gusambizi Wesanga v Republic [1948] 15 EACA 65 the Court stated that:'Every homicide is presumed to be unlawful except where circumstances make it excusable or where it has been authorized by law. For a homicide to be excusable it must have been caused under justifiable circumstances, for example in self-defence or in defence of property.'

60. The evidence adduced by the prosecution does not establish any of the absolute defences or justification for the death of the deceased. In my humble view, that evidence point to an unlawful act leading to the death of the deceased.

61. As to whether the prosecution have proved beyond reasonable doubt that it was the accused persons herein who committed the unlawful act which caused the death of the deceased, it is noteworthy that PW1 – 3 being minors were found not to understand the nature of an oath and thus gave unsworn testimonies.

62. I am conscious of the fact that questions may arise regarding the probative value of the testimonies of PW1 – 3. I therefore warn myself of the dangers of relying on such evidence of minors who did not understand the meaning of an oath, and who gave unsworn testimonies although they were cross examined.

63. The law relating to unsworn statements is well articulated by Emukule, J in the case of Mercy Kajuju & 4 Others v Republic [2009] eKLRas follows:'I also discussed at some length the nature and value of unsworn statement, and on authorities held that unsworn statements have no probative or evidential value unsworn statements are not in evidential sense, facts which either go prove or disprove a point alleged by one party and disputed by another. Facts in issue must be proved and unsworn statements are inappropriate subject of evidence.There are of course constitutional issues to overcome for instance section 77 of theConstitution on fundamental rights and compulsion to give evidence. There is need to study these provisions and ss.211 and 306 of the Criminal Procedure Code, for the better enforcement of the law in relation to the criminal justice system and eliminate these unsworn statements as they add no value to the system and if any they confuse the accused who are mostly ignorant of their effect, and thereby obfuscate the system all together.''Although it is an accused person’s right to remain silent, or not to give a statement, or evidence on oath, but whenever an accused person elects to make an unsworn statement he gains one major advantage over the prosecution, his statement cannot be tested as to its veracity or truthfulness by way of cross examination whose purpose directed-(1)To test the credibility of the witness;(2)To the facts to which he has deposed in-chief including the cross examiners version thereof, and(3)The facts to which the witness has not deposed but to which the cross-examiner thinks he is able to depose,(4)Failure to cross examine a witness on some material part of his evidence, or at all, may be treated as an acceptance of the truth of that part or the whole of his evidence.In addition, the estimation of the value of evidence in ordinary cases, the testimony of a witness who swears positively to a fact may receive credit in preference to one who testifies to the negative. For instance, evidence as to what has not been seen would not carry the same weight as evidence as to what has been seen. Little weight will consequently be given to an unsworn statement. That is the disadvantage in an accused person electing to make an unsworn statement. A few cases will illustrate the point.InAmber May Vs The Republic [1999] KLR 38, the High Court held that unsworn statement has no probative value notwithstanding the provisions of Section 211(1) of the Criminal Procedure Code. On Appeal against that decision and reported as May Vs The Republic [1981] KLR 129, the Court of Appeal inter alia held-1. That unsworn statement is not, strictly speaking evidence and the rules of evidence, cannot be applied to unsworn statement. It has no probative value, but it should be considered in relation to the whole of the evidence. Its potential is persuasive rather than evidential. For it to have value it must be supported by evidence recorded in the case.2. No adverse inference can be drawn against the appellant for electing to make an unsworn statement as she was exercising her right conferred by Section 211 (1) of the Criminal Procedure Code (Cap 75, Laws of Kenya)'

64. InJoseph Mburu Kung’u v Republic [2007] eKLR JB Ojwang J stated as follows, citing Sir Rupert Cross and Nancy Wilkins, An Outline of the Law of Evidence 4thed (London: Butterworths, 1975), pp 93 – 94where it was it was stated that:'In criminal cases a warning of the danger of convicting on uncorroborated evidence must be given when the evidence is that of an accomplice, or the sworn evidence of a child.''It must follow that the unsworn evidence of a child, at a general level, would carry still less weight; and hence such a warning by the trial Court would normally be mandatory.What form should such a self-warning by the Court take' Must the Magistrate preface the caution with the words: 'I warn myself' Or is it enough to make reference to the inherent shortfall of a child’s testimony' I would hold that a somewhat ritualistic refrain, 'I hereby warn myself' is not necessarily the antidote to the contemplated mischief in the trial process. It will, in my opinion, suffice if the judicial officer, in any clear, personal mode, alludes to the risks involved in taking the evidence of an unsworn child-witness.I have re-read the trial Court’s judgement to see if such a caution was administered; and I have noted that the learned Magistrate thus recorded:'Even if the complainant was all alone on the material date, I found his evidence although unsworn, very clear, very consistent and unchallenged by [the] defence on cross-examination, and I had no reason to doubt the same.'After looking at the foregoing passage, in the context of the judgement as a whole, I will hold it to constitute a sufficient self-warning by the trial Magistrate, when she relied on the testimony of the unsworn child-witness (PW1). The trial Court was, thus, in my opinion, in perfect compliance with the general test.'

65. Further, the Court of Appeal in Jamaar Omari Hussein v Republic [2019] eKLR considered the issue of the unsworn evidence of a child of tender years and stated that:'This is nonetheless not to say that unsworn evidence is totally worthless. It only means that the court considering such evidence has to consider it with circumspection and look for corroboration from other evidence adduced in the matter.'

66. Therefore, for this court to be persuaded by the testimonies of PW1 – 3 which was unsworn, it must look for corroboration from the evidence of other prosecution witnesses. In addition, this court can only rely on such evidence upon satisfying itself that the witnesses were truthful.

67. The evidence of PW1 a minor aged 13 years old and taken through a preliminary examination by the court was that he heard the deceased say 'Kevin mnaniua kwa boma yangu kwa nini,' and also that he heard the 2nd accused say 'piga piga'. PW2 a minor aged 15 years old on his part stated that he also heard the deceased ask Kevin why he was killing him in his own homestead. However, PW2 testified that he did not hear the 2nd accused say anything because he, PW2 went later to where PW1 was. PW3 was a minor aged 14 years old and was taken through voire dire examination too. On his part, he gave the same testimony as that of PW1.

68. I have considered the evidence by PW1, PW2 and PW3 and although unsworn, I find it very clear, very consistent and unchallenged on cross-examination, and I had no reason to doubt the same.

69. The unsworn testimonies of PW1, PW2 and PW3 was corroborated by that of PW4 a minor aged 16 years old and who was examined by the court and found to be intelligent and understanding of the meaning of an oath. He was a Form one student at [particulars withheld]secondary school and he reiterated that he also heard the deceased ask Kevin why he was killing the deceased in his own homestead. PW4 further testified that he had gone to the gate from where he heard the deceased say 'Kevin why are you killing me in my home, in the Kiswahili language- Kevin kwa ninini unaniua kwa boma langu' and further that he heard the 2nd accused’s voice from his house say ‘mpige’ –beat- during the commotion. He stated that he knew Atuga’s voice as well as the voice of the deceased. He stated that it was at that stage that A, the 3rd accused emerged from the homestead of Atuga, and on seeing them, she got shocked and told them that she had gone to collect her phone which had a torchlight but failed to find it, and that she told them to go and sleep. I had the opportunity to see and hear this witness as he testified. I find him truthful and believable.

70. In their respective defences, all the accused persons gave sworn testimonies and created alibis. The 1st accused stated that he was at home with Eric Odhiambo and that he left the deceased alive after the first commotion only to return and find him dead when the second alarm was raised.

71. The 2nd accused on his part stated that he only went to the deceased’s house on hearing the screams from Olalo’s wife and that he asked Olalo why he was assaulting his wife and he later advised the said wife to go and sleep at her aunt’s place or at the neighbour’s place then he returned back to his house and slept until he was awakened by Otieno Kobole and another and told that Olalo had died. He denied ever cheering up the persons who were assaulting the deceased.

72. The 3rd accused stated that after she had gone away to her neighbour’s house to sleep upon being assaulted, she was only called later and told that the deceased had died.

73. In the case of Charles Anjare Mwamusi v R, CRA No 226 of 2002, the Court of Appeal stated:'An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to the charge preferred against him does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable Kiarie V Republic (1984) KLR 739 at page 745 paragraph 25. '

74. Thus, by setting up an alibi defence, the accused do not assume the burden of proving the alibi- see Ssentale v Uganda [1968] EA 36-. The foregoing was similar to the case of Wang’ombe v Republic [1976-80] 1 KLR 1683 where it was stated that:'The prosecution always bears the burden of disproving the alibi and proving the appellant’s guilt.'

75. However, this defence should also be raised at the earliest opportune time as was held in the case of R v Sukha Singh s/o Wazir Singh & Others (1939) 6 EACA 145 that:'If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards, there’s naturally a doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment, it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped.'

76. In the case of Victor Mwendwa Mulinge v Republic, the Court of Appeal stated as follows on the issue of alibi:'It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see Karanja v Republic, this court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilty is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigating and thereby prevent any suggestion that the defence was an afterthought.'

77. From the sworn testimony of PW4 which I had no reason to doubt as he appeared truthful and clearly corroborating the unsworn testimonies of PW1, PW2 and PW3 on what they heard the deceased say and PW1 and that PW3 hearing what the 2nd accused say, all the four witnesses who were not children of tender years and who were firm in their testimonies stated that they knew the voice of the deceased. PW1 and PW3 also stated that they heard and knew the voice of the 2nd accused very well as they are neighbours and that according to PW1, the 2nd accused has a habit of quarrelling from his home so the witness knew his voice well. I believe that evidence of PW1, PW2 and PW3 which was not shaken even in cross examination. I further find no reason why the four children witnesses could have lied to court about what they saw and heard.

78. Considering the fact that the accused persons’ alibi was raised so late in the trial and further in contrast to the unsworn evidence of PW1,2,3 which was corroborated by that of PW4, I find the defence of alibi by the accused persons not believable. The same is an afterthought. I reject it.

79. From my assessment of the evidence, I find that the Kevin that the four witnesses were referring to was the 1st accused herein as he is the only Kevin who went to the rescue of the 3rd accused upon hearing her screams. There was no suggestion that there was another Kevin whom the deceased was heard asking why he was killing the deceased in his own homestead. I further find that the evidence of PW1, PW3 and PW4 that they heard the 2nd accused Atuga say piga piga as the deceased was crying and calling out the name of Kevin, was credible as far as recognition of the 2nd accused by voice is concerned. The witnesses clarified that the 2nd accused was their close neighbour and that they knew his voice because he was fond of quarrelling from his home. I do not find any possibility of mistaken identity by voice on their part.

80. Therefore, as between the 1st accused and the 2nd accused, I find that the circumstances of this case fall within the scope of the doctrine on common intention as defined under section 21 of the Penal Code which provides that:'When two or more persons from 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.'

81. The provision is in line with the interpretation given in the case of Njoroge v Republic 1983 KLR 197 and Solomon Munga v Republic 1965 EA 363 where both courts held as follows regarding the elements on the principle of common intention:'If several persons combine for an unlawful purpose and one of them kills a man, it is murder in all who are present whether they actually aided or abated or not, provided that the death was caused by act of someone of the party in the course of the endeavours to effect the common object of the assembly.'

82. In the case of Republic v Cheya case 1973 EA it was stated that:'The existence of common intention being the sole test of total responsibility it must be proved that the common intention was and that the common Act for which the accused were to be made responsible was acted upon in furtherance of that common intention. The presumption of constructive intention must not be too readily applied or pushed too far. The mere fact that a man may think a thing likely to happen is vastly different from his intending that that thing should happen. The latter ingredient is necessary under the section. It is only when a court can with some judicial certitude hold that a particular accused must have pre-conceived or premeditated the result which ensued or acted in concert with others in order to bring about that result that this section can be applied.'

83. From the circumstance of this case I am persuaded that the 2nd accused acted in concert with and had a common intention with the 1st accused to assault the deceased, in the name of aiding the 3rd accused and protecting her from the incessant assaults by her husband, the deceased. The 3rd accused from the court’s own observation even when she was in custody at Kisumu Women’s prison, was very expectant and she even bore a child during the hearing of these proceedings. Having left her house upon being assaulted by the deceased to seek refuge at a neighbour’s house, I am unable to find any evidence that she encouraged the 1st and 2nd accused persons or that she aided them in any way in assaulting the deceased. Further, none of the prosecution witnesses placed her at the scene of crime when the deceased was being assaulted.

84. In addition, Mr Kakoi, senior prosecution counsel submitted, rightly so, that the prosecution had not proved their case against her. Further, the 3rd accused was the victim of the assault by the deceased and the 1st and 2nd accused persons clearly, were attracted by the screams for help by the 3rd accused.

85. I am therefore in agreement with the prosecution in their submission that they have not proved their case beyond reasonable doubt against the 3rd accused. For that reason, I find that the prosecution only proved beyond reasonable doubt that it was the 1st and 2nd accused who committed the unlawful act which caused the death of the deceased.

86. Finally, on whether the 1st and 2nd accused had malice aforethought when they unlawfully killed the deceased, the prosecution must establish facts that are consistent with existence of malice aforethought on the part of the 1st and 2nd accused. In the case of Republic v Tubere S/O Ochen [1945] 12 EACA 63, the court held and acknowledged that in determining whether malice aforethought has been established, the following elements should be considered:(1)The nature of the weapon used;(2)The manner in which it was used;(3)The part of the body targeted;(4)The nature of the injuries inflicted either a single stab/wound or multiple injuries;(5)The conduct of the accused before, during and after the incident.

87. The injuries sustained by the deceased as contained in PEX1 are swelling of the left eyelid with blood clots, splenic injury with blood clots on the left subdural area, multiple lacerations and blood clots on the head, indicative of an intent to cause grievous harm or even death. The deceased had a malformation of his left foot. He was a disabled person physically and therefore the force used in assaulting him was not justified at all.

88. I am therefore persuaded that the prosecution proved the ingredient of malice aforethought on the part of the 1st and 2nd accused beyond reasonable doubt. In the circumstances, it is my opinion that the prosecution proved its case against the 1st and 2nd accused only. I find Kevin Oduor Oloo and Joseph Oduor Oloo alias Atuga guilty of the charge of murder as charged. I convict each one of them for the offence of murder contrary to section 203 of the Penal Code. As the evidence against the 3rd accused person DAO is shaky and insufficient, I hereby find her not guilty of the offence of murder and I acquit her and discharge her of the information of murder. Unless otherwise lawfully held, DAO is hereby set at liberty.

89. Sentence for the 1st and 2nd accused persons shall be imposed after records, mitigations and presentence reports to be filed by the probation officer, Siaya.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT SIAYA THIS 10THDAY OF MAY, 2022R.E. ABURILIJUDGE