[2022] KEHC 15183 (KLR)

State v Opondo (Criminal Case E013 of 2022) [2022] KEHC 15183 (KLR) (9 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15183 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Case E013 of 2022

RE Aburili, J

November 9, 2022

Between

State

Prosecution

and

Fredrick Omondi Opondo

Accused

Judgment

Introduction 1. The accused person Fredrick Omondi Opondois charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code Cap 63 Laws of Kenya. The particulars of the offence are that on the night of March 18, 2022 at Alara Village within Barding in Siaya County, the accused murdered one David Oduor Otinda.

2. The accused pleaded not guilty to the information and the case proceeded to full trial. The prosecution called a total of eight (8) witnesses in support of its case which is summarised below.

The Prosecution Case 3. PW1 Paul Odongo Abisa who lives and works in Mombasa and hailed from Barding village testified that during the month of March 2022 he was at Barding after burying his father on March 12, 2022. He testified that on the March 18, 2022 at about 10. 30 pm, he was at his home and when he got into his house, his wife woke him up saying people were fighting at their gate.

4. PW1 testified that he went out and found one young man being held and being prevented from escaping while another person lay down groaning and foaming from the mouth. He testified that he found his brothers Onyango Abisa, Dennis Abisa and Evans Abisa all restraining the other man from escaping. He further testified that he knew the person being restrained by his alias name ‘Thoya’. He stated that he did not know the man lying down and who was groaning.

5. It was his testimony that he called the Assistant Chief Musa Okello and the village elder Opondo who advised that if the person lying down was alive, they ought to escort him to hospital. PW1 further testified that he went to look for a vehicle in the company of Onyango and was called and told that the man who lay down was dead so they went to report at Kogelo Police Station.

6. PW1 testified that the suspect who was being restrained escaped but was chased, captured and tied with a rope. He further testified that upon reporting to the police about the death of the person lying down, he went back to the scene with police officers who processed the scene and removed the body of the deceased from the scene to the mortuary and the following day, they went to the police station and recorded their statements. PW1 identified the accused in court as ‘Thoya’.

7. In cross – examination, PW1 stated that his three brothers Onyango, Evans and Dennis were at home as they had finished the meeting so they left for their houses. He testified that he did not witness the assault. He further testified that his other brother was Ken Abisa.

8. On being asked by the court, PW1 affirmed that he referred to Evans in his testimony by mistake as he meant Ken Abisa as Evans was not present. PW1 reiterated that he found his brothers Ken, Dennis and Onyango restraining ‘Thoya’ from escaping.

9. PW2 Dr Juma Gabriel Wekesa a Medical Officer at Siaya County Referral Hospital testified that he carried out a postmortem on the body of David Oduor Otinda on the March 24, 2022 at about 3 pm at Siaya County Referred Hospital mortuary.

10. It was his testimony that the deceased was an adult African male whose age was not established. He further testified that externally, rigor mortis had set in. PW2 testified that there was hyper flexion of the left shoulder joint, bruising on the left side of the head and that there were blood clots in the mouth and the nose. He testified that there were no fractures or signs of other external injuries.

11. Dr Juma testified that on the head, the deceased had bruises and haematoma formation on the left side of the head. He further testified that internally, in the head and nervous system, they found multiple contusions on the left frontal parietal temporal areas of the brain. It was his testimony that the other systems were normal.

12. Dr Juma testified that they concluded that the cause of death was severe blunt head trauma with left sided frontal parietal contusions. He signed the postmortem report dated March 24, 2022 which he produced as PEx 1.

13. On cross-examination, Dr Juma testified that there were no fractures and no other signs of external injuries. He further testified that the deceased’s respiratory system was normal and that the abnormalities were blunt injuries on the left side of the head. He testified that the deceased’s chest was normal but the left shoulder was lifted up - hyper flexion.

14. PW3 Maxwell Onyango Abisa testified that on the March 18, 2022 at about 10. 30 they had eaten and whilst in the company of Kennedy and Dennis, his brothers, they were watching television in their mother’s house when they heard screams for help from outside. He testified that Kennedy ran out first and he followed with Dennis following in later.

15. It was his testimony that they found two people, one lying down and the other jumping on his chest and kicking him on the head. He testified that they held the one assaulting the man lying down. He further stated that they found Fredrick Omondi Opondo assaulting the man lying down. He testified that there was security light at their gate where they found Fredrick assaulting the man.

16. PW3 testified that Fredrick was also known as “Thoya”. He further testified that he pushed Fredrick aside but Fredrick started resisting so they held him tight and looked for a rope to tie Fredrick but he held the rope so they called on their elder brother Paul who came but suddenly, Fredrick started escaping though they managed to catch him.

17. PW3 testified that when he and Kennedy first arrested Fredrick, they took him to their homestead to prevent him from assaulting the man who was lying down. It was his testimony that they tried to tie Fredrick with a rope but he overpowered them so they chased after him and caught him and called Paul who called the village elder and the Assistant Chief.

18. PW3 testified that many people came to the scene as he and Paul went to look for a vehicle to take the injured man to hospital as he was seriously injured and could not sit on a motor cycle but were called and told that the man was dead so they left the vehicle which they were to hire.

19. He further testified that they went to the Police Station at Kogelo and reported the incident and returned to the scene where police arrived and processed the scene and also arrested the suspect Fredrick, interrogated him and removed the deceased from the scene.

20. PW3 testified that he knew Fredrick very well as he was his cousin and they were also neighbours. It was his testimony that he never knew the deceased before that day. PW3 identified Fredrick who he also knew as ‘Thoya’ in the dock

21. In cross-examination, PW3 stated that the distance from his mother’s house to the gate is about 40 metres and further that from the house one could see the gate. He further stated that there were security lights at the gate.

22. It was his testimony that he heard the screams for help as he was watching television and so they went closer to the scene to see what was happening. He testified that they left Dennis in the house and on reaching the scene, he saw the accused jumping up and down on the chest of the man lying down.

23. PW3 testified that he was with Kennedy and that he pulled Fredrick from jumping on the man. He reiterated that his testimony was what he told the police. He stated that they held the accused and took him to their compound so that he could not escape.

24. In re-examination, PW3 stated that in his statement to the police he said that they rushed to the scene and found the person whom they identified as Fredrick alias Thoya jumping on the chest of the man lying down and that he tried to run away.

25. PW4 Ambrose Opondo Odera, the village elder of Alara testified that on the March 18, 2022 at about 10. 30 pm he received a telephone call from Paul Odongo Abisa who told him that when he was at home, they heard screams and on checking, they found Fredrick Omondi Opondo jumping on the chest of a man lying down and that Fredrick was trying to escape.

26. He testified that he went to the scene and found a man lying down groaning and foaming and further that Fredrick Omondi Opondo was trying to escape but was being restrained. PW4 testified that they tied him using a rope to contain him. It was his testimony that the man lying down was still alive.

27. PW4 testified that they found Paul and advised him to get a vehicle to take the injured man to hospital but the man died before a vehicle could arrive. He further testified that he did not know the deceased but that Fredrick Omondi is from his village of Alara so he knew him very well.

28. In cross-examination, PW4 stated that when he arrived at the scene he never found people fighting.

29. PW5 Kennedy Owino Abisa testified that on the March 18, 2022 at about 10. 30 pm he was in his mother’s house with Maxwell and Dennis, his brothers, when they heard screams outside of help, help, so he rushed out with Maxwell and saw some people at their gate. That they went out and found one man lying down and another man jumping on his chest, saying I can kill you. He testified that they found the man lying down not able to talk and that on arriving at the scene, the man assaulting the other man ran away so they ran after him, caught him and brought him to the scene.

30. PW5 testified that they called Paul, their elder brother who called the village elder and when the suspect saw the village elder, he tried to escape but they caught him and brought a rope and tied him. He further testified that the Assistant Chief was called and he advised them to take the injured man to hospital as he could not sit on a motor cycle.

31. PW5 testified that Paul and Maxwell went to get a vehicle to take the injured man to hospital but when their mother came and saw the injured man, she said that the man was dead so she called and informed Paul that the man was dead and so Paul went and reported to Kogelo Police Station who came and arrested the suspect and went and called DCI officers who came, took photographs and removed the body to the mortuary.

32. PW5 testified that the suspect was his brother in the clan as he was his cousin. He reiterated that he saw the suspect who was saying, “whom are you playing with, I can kill you”. He stated that he saw his face. It was his testimony that there was moonlight and he even used his phone light to see him. It was his further testimony that the incident was outside the gate where there were security lights. He further testified that the person that they arrested jumping on the deceased was Fredrick, the accused in the dock.

33. In cross-examination, PW5 stated that when they opened the door, they heard the screams from outside the gate. He stated that they could see what was happening from far and that there were security lights outside the house. It was his testimony that he ran first then Maxwell followed him.

34. PW5 reiterated that he saw the accused stepping on the chest of the man lying down. He testified that Dennis came to the scene after they had chased and caught the assailant the first time. He further stated that Maxwell was the one who went back to the house to get a rope which they used to tie the assailant with.

35. PW6 Musa Okoth Okeyo the Assistant Chief Barding Sub location testified that on the March 18, 2022 at about 11 am he received a telephone call from Paul Abisa saying that his brother had found someone assaulting another outside their gate and he had gone to the scene and found the man seriously injured.

36. PW6 testified that he asked Paul to get a vehicle to escort the injured to hospital but shortly afterwards Paul called him saying the assaulted man was dead. He testified that he went to the scene where he told Paul to make a report to Kogelo Police station.

37. PW6 testified that at the scene, he found the accused person sitted with hands tied with a rope while the dead man lay down. He testified that the Officer Commanding Station (OCS) Kogelo Police Station came to the scene.

38. It was his testimony that the accused Fredrick Omondi Opondo was rearrested by the Officer Commanding Station (OCS) Kogelo Police Station and that later the DCI came and processed the scene. PW6 identified Fredrick as the accused in the dock.

39. PW7 Wilson Oyugi Oroya an electrician and Community Policing Chairman at Barding Sub location testified that on the March 19, 2022 at 7. 30 am, the widow to David, the deceased, went in the company of the deceased’s sister and informed him that they had received information at midnight from David’s girlfriend who lived at ‘Rock’ along the Bondo-Siaya road to the effect that David had been taken to hospital.

40. PW7 testified that the said girlfriend of Davidwanted PW7 to go to Rock and find out from that lady all the information about David. He testified that he decided to go and report to Karemo Police Post. He further testified that his cousin Vincent Osore called him saying that he had heard that David could be alive or dead.

41. PW7 testified that he told them to go to the hospital mortuary and check and if they miss him, to go to hospital.

42. It was his testimony that they started going to David’s home with his wife and sister when Vincent called him saying that he had found David dead and in the mortuary. He testified that they reached David’s home and that Vincent also came.

43. PW7 testified that people were already gathered at the home and mourning and that they went to Kogelo Police Station where they were advised to go to DCI Siaya where the matter was being handled and investigated from. He testified that they went to Siaya DCI who explained everything to them.

44. He further testified that on the March 24, 2022, he went and identified the body of the deceased, David Oduor Otinda, to the doctor for postmortem. It was his testimony that he was with his brother and wife. PW7 further testified that David hailed from Bar Agulu which was about 3 kilometers away.

45. In cross-examination, PW7 stated that David’s wife told him that David’s girlfriend was the one who called her on phone and informed her of what she had heard about what happened to David.

46. PW8 No 5xxx2 Sergeant John Nzive attached to DCI Siaya testified that on the March 8, 2022 at 2. 30 am he was asleep and was awakened by OCS Kogelo who notified him of a scene of murder within Alara Village, Barding sub location and that one suspect had been arrested in connection with the alleged murder of David Oduor Otinda. He testified that he proceeded to the scene with Corporal Likonyi of scenes of crime. On arrival, they found a person lying outside the homestead gate of one, Abisa in Alara village. It was his testimony that the person had blood oozing from the mouth and some foaming. It was his testimony that he interviewed those present. He further testified that he found Maxwell, Paul, sons of Abisa outside the gate with the village elder and OCS Kogelo so he went with Maxwell and Abisa and recorded their statements.

47. It was his testimony that they removed the body of the deceased to Siaya Referral Mortuary and in the cause of investigations he established that the suspect was arrested when the witnesses found him jumping onto the deceased and that though he escaped, the suspect was pursued and arrested.

48. PW8 testified that he attended the postmortem which was done on March 24, 2022 at Siaya Mortuary by Dr Juma who concluded the cause of death as severe blunt trauma on the left side of the head. He further testified that no exhibit was recovered. It was his testimony that the suspect was already at the Police Station and that the scenes of crime officer took photographs which were not ready for production. He testified that they found the deceased bleeding and foaming from the mouth.

49. PW8 identified the accused as the suspect they rearrested. He testified that he learnt that the scene was within Alara village and the suspect was well known to the witnesses.

50. In cross-examination, PW8 stated that the body was outside the gate of the home of Abisa. He testified that he recorded statements of the 3 sons of Abisa - Paul, Maxwell and Kennedy. It was his testimony that jumping and stepping on the deceased was one and the same. He reiterated that they did not recover any exhibit.

51. PW8 testified that a blunt object was just blunt and that it could be anything. He further testified that from the gate to the house was about 15 metres. He further stated that there was light in the compound which light illuminated the gate. He further testified that the deceased was at the gate outside the compound.

Defence Case 52. The accused Fredrick Omondi Okoth testified on oath and stated that on the March 18, 2022 at around 12pm he was in a bar at the centre and that he left the bar at 10. 15 pm going to his house but before he reached home, he saw one of the bar patrons following him from behind and walking very fast.

53. The accused testified that when the person reached him, the person pushed him and he also pushed him before leaving him at the scene. The accused denied speaking to the person and stated that he continued with his journey home. It was his testimony that he saw two more people following him, which persons he identified as his neighbours.

54. The accused testified that the two persons, Onyango and Kevin, emerged from a nearby homestead. stopped and told him to go back with them which he did and they told him to help them carry a drunken young person who was lying down. It was his testimony that he refused to help them carry the person so they started quarrelling him, tied him with a rope and stated that he was with the drunken person so he should answer.

55. The accused testified that the two persons called the police who came and arrested him and took him to the police station and that on the following day, the DCIO came and asked him if the previous night he was drunk in the company of another person but that he denied and the DCIO left.

56. In cross-examination, the accused stated that he was from a chang’aa den when he met with a certain man whom he did not know. He further stated that the place where they pushed one another was at Alara.

57. He further testified that he knew Maxwell Onyango (PW3) and Kennedy Owino Abisa (PW5) as they came from the same village as him. He stated that he had never disagreed with them. He further stated that he knew Paul Odongo Abisa (PW1) who was a brother to PW3 and PW5 and that he similarly had no dispute with him.

58. The accused further stated that he did not know if the person who pushed him and whom he pushed back was alive or dead. He further stated that there were other people present when he pushed the person one of whom was Maxwell. The accused further admitted that Maxwell, Paul and Kennedy saw him push the person. It was his testimony that he could not tell whether PW1, PW3 and PW5 were telling the truth or lies. He further stated that when the police came, they found when he had been invaded by the group of PW5.

59. In re-examination, the accused stated that he was not with the person on the road at the bar. He further stated that when he refused to aid the two people in carrying the drunken person, they tied him with a rope.

Analysis and Determination 60. I have considered the evidence presented before the court both by the prosecution and the defence and in my view, the main issue for determination is whether the prosecution proved the case against the accused to the required standard and which standard is that of beyond any reasonable doubt.

61. Section 203 of the Penal Code provides that:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

62. In Anthony Ndegwa Ngari v Republic[2014] eKLR the Court of Appeal held 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.”

63. In the instant case therefore, the question is whether the prosecution has proved:a.That there was the death of the deceased and the cause of the said deathb.That the death was caused by unlawful acts or omissionc.That the accused committed the unlawful act which caused the death of the deceasedd.That the accused had malice afore thought

64. On whether there was proof of death and the cause of the said death, the testimony of PW1,3, 4,5,6 & 8 all saw the deceased’s body at the scene of crime. PW7 testified that he identified the deceased’s body on the March 24, 2022 prior to Dr Juma carrying the postmortem. PW8 Sergeant Nzive also testified that he attended the postmortem of the deceased’s body on the March 24, 2022 that was carried out by PW2, Dr Juma. PW2, Dr Juma carried out the deceased’s postmortem and concluded that the cause of death was severe blunt head trauma with left sided frontal parietal contusions.

65. Accordingly, I am satisfied that the prosecution has proved beyond reasonable doubt the deceased’s death and the cause of said death.

66. On whether the deceased’s death was caused by an unlawful act or omission, PW3, 4 & 5 all testified that they found the accused jumping on the deceased’s chest and kicking him on the head and that subsequently the deceased who had been groaning and foaming from the mouth eventually passed on. The act of jumping on the deceased who was lying on the ground cannot be said to be lawful in any way. There was no justification for the said act. Article 26 (1) of the Constitution of Kenya 2010 guarantees every person the right to life. Under sub-article 3, a person shall not be deprived of life intentionally except to the extent authorized by the Constitution or other written law.

67. PW2, Dr Juma examined the deceased’s body and found several blunt injuries on the head and shoulder and concluded that the cause of death was severe blunt head trauma with left sided frontal parietal contusions.

68. The aspect of when an act causing death can be said to be lawful has been recognized from the time immemorial. InGusambizi Wesanga v Republic [1948] 15 EACA 65 the court stated:“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.”

69. The evidence before court irresistibly points to an unlawful act that led to the death of the deceased.

70. As to whether it was the accused who unlawfully killed the deceased, PW3 testified that they found the accused assaulting the deceased by jumping on his chest and kicking the deceased’s head so they caught the accused and restrained him with a rope. This was corroborated by the testimony of PW5 who further testified that he heard the accused tell the deceased, “whom are you playing with, I can kill you.”

71. PW3 further testified that there was security light at their gate where they found the accused assaulting the deceased and that the accused was also known as “Thoya” and that he knew the accused very well as he was his cousin

72. PW5 further testified that the incident happened outside their gate which was illuminated with security lights and so they could see the accused who was known to him as he was his cousin, from the same clan.

73. PW8 also testified that upon arrival at the scene, he rearrested the accused who had been arrested by some of the members of the public at the scene and that the person he rearrested was the accused herein.

74. In his defence, the accused denied the allegations against him and stated that on the material night, he was returning from a bar at the centre when he got into a pushing scuffle with a man who had followed him but that he left the man only for PW3 and PW5 to stop him and ask him to go back with them and help them carry a drunken young person but on his refusal, PW3 and PW5 quarreled him, tied him with a rope and stated that he was with the drunken person so he should answer.

75. Taking into account the above evidence for the prosecution and the defence, it is my finding that the accused’s defence amounted to a mere denial and afterthought. The witnesses for the prosecution were firm that it was the accused whom they found jumping on the deceased and they caught him in the act and held him and even tied him with a rope when he overpowered them and tried to escape.

76. The injuries sustained by the deceased on his head as testified by PW2, Dr Juma are consistent with the evidence adduced by PW3 and PW5, that they found the deceased jumping on the deceased’s chest and kicking his head.

77. In the circumstances I find that the prosecution has proved beyond reasonable doubt that the accused person herein is the person who unlawfully killed the deceased which act constitutes the ‘actus reus’ of the offence.

78. Finally, as to whether the accused had malice aforethought when he unlawfully killed the deceased, in the case of Rex v Tubere S/O Ochen 1945 12EACA 63 the court laid down the guidelines for trial judges in consideration of malice aforethought and stated that:“To determine whether malice aforethought has been established to consider the weapon used, the manner in which it is used, the part of the body targeted, the nature of injuries inflicted, the conduct of the accused before, during and after the incident.”

79. In the cases of Ernest Asami Bwire Abang Alias Onyango vRepublic Ndumbe CACKA No 32 of 1990, Karani and three others v Republic 1991 KLR 622, Republic v Godfrey Ngotho Mutiso2008 eKLR and James Masomo Mbacha v Republic 2015 eKLR the courts have sufficiently inferred malice aforethought from the nature and type of weapon used and multiple severe bodily injuries to the victim.

80. In this case, the accused’s motive is discernible from the manner in which he jumped on the deceased and kicked him as the deceased lay on the ground crying for help which attracted the attention of the neighbours who rushed to the scene and caught the accused but they could not save the deceased who was already seriously injured and was just groaning and foaming. The testimony of the PW3 and PW5 as to how they found the accused assaulting the deceased point to a person who wanted to cause the deceased grievous harm.

81. PW5 testified that he heard the accused tell the deceased, “who are you playing with, I can kill you,” all impute malice on the part of the accused person.

82. Taking all the above circumstances into account, there is a clear manifestation of malice aforethought on the part of the accused person. I thus find and hold that the prosecution has proved malice aforethought beyond reasonable doubt on the part of the accused person.

83. In the end, I find that the prosecution has proved all the elements of murder against the accused person herein beyond reasonable doubt. I find the accused person Fredrick Omondi Opondo guilty of the murder of David Oduor Otinda and I convict him accordingly.

84. Sentence shall be pronounced after records and mitigation.

Ruling on Sentence 85. I have considered the circumstances under which the offence herein was committed and the fact that the accused is a first offender and he has a family to take care of and he is remorseful and he is aged 35 years old.

86. I have considered the victim impact assessment of the deceased’s widow. She was left with 6 young children. Therefore, although the accused is remorseful, he scooped life out of a breadwinner, father, husband and brother and son to his family members who shall never see him again. He did not deserve to die in such a cruel manner.

87. Punishment for murder is death. However, considering the mitigations and circumstances under which the offence was committed, I hereby exercise discretion and sentence the accused Fredrick Omondi Opondo to serve thirty (30) years imprisonment to be calculated from the date of his arrest on March 19, 2022. I so order.

88. Right of appeal to the Court of Appeal is 14 days explained and guaranteed.

89. File is closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 9TH DAY OF NOVEMBER, 2022R.E. ABURILIJUDGE