https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8631

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CRIMINAL DIVISION CRIMINAL CASE NO. E006 OF 2024 STATE ......................................................................................... PROSECUTION - VERSUS - SAMUEL OWIRA OWINO alias SAM alias IRUNGU ................... ACCUSED J U D G M E N T 1. The accused was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. It was alleged that on 17/2/2024 at Boya Township within Nyando sub-county, in Kisumu county, the accused murdered Isaac Ndege Omondi. 2. The accused pleaded not guilty and trial ensued. The prosecution called 11 witnesses in support of its case. Its case was that on 17/2/2024 at about 11pm, Brenda Achieng (Pw1), a clinical officer and sister to the deceased received persistent multiple calls from different numbers after which she took her mother’s airtel line and called the last number that had called her. The recipient informed her that the deceased had been stabbed on the neck and was at Russia Hospital (Jaramogi Oginga Odinga Referral & Teaching Hospital). Page 1 of 21 3. She, in company of her Mother and Father (Pw2 Joab Omondi) proceeded to the Hospital where they found the deceased bleeding from the neck and gasping for air. The deceased whispered something to their father after which he was prepared and rushed to theatre where he died. It was her testimony that she knew the accused who had been raised in their neighbourhood. She admitted in cross-examination that she did not witness the stabbing of her brother. 4. The deceased’s father (Pw2) told the Court that when they arrived in the hospital that night, they found the deceased lying at the emergency centre with a stab on the neck and coughing blood. He asked the deceased who had stabbed him to which the deceased replied that it was Sam the grandson of Owino. The deceased succumbed to his injuries and his body was removed to the morgue. That he only knew the name of the accused as he hailed from the neighbourhood though he had not seen him physically. 5. In cross-examination, Pw2 reiterated what the deceased told him prior to his death regarding the stabbing. That he had no quarrel with the accused prior to the incident and that he did not participate in the accused’s arrest. In re- examination, he confirmed that he attended the deceased’s post-mortem and identified his body to the pathologist. 6. On 18/2/2024 at about 9am, No. 87453 Brooks Andiego Ochieng (Pw3) was at Buoye Police Station when he received information from his superior, Page 2 of 21 Cpl Salome Nafula of a stabbing incident that had occurred the previous night wherein the victim had passed on. That he and his other colleagues proceeded to Buoye Mau Forest Bar but when they arrived, they were informed that the assailant had gone to a construction site. They proceeded to the site and found him there. On searching him, they found a knife with a black handle in his pockets. That the assailant wore a brown trouser. They arrested him. He identified the accused in Court as the person he arrested. 7. In cross-examination, told the Court that the knife he recovered from the accused had traces of blood on it. That he could not tell if the said knife was taken to the government chemist as he subsequently handed it over to the investigating officer. 8. Onyango Innocent Nyathi (Pw4) testified that on the 17/2/2024, he was serving customers at Riela Pub at Ahero. One of those customers was the deceased whom he served Keg. The deceased went to sit outside the bar. He heard from other customers that the deceased and the accused got into a quarrel outside the pub. The next morning, he heard that the deceased had passed on. That the deceased was not a regular customer while the accused was a was security guard. That he saw the deceased walk away from where he was drinking but did not see the accused. That he had no differences with the accused. Page 3 of 21 9. In cross-examination, it was his testimony that one of the customers who informed him of the fight between the accused and the deceased was one Marell. That the deceased left whilst staggering and that he did not see the two after the incident. 10. Pw5, Nancy Atieno Nyakiti, the in charge of the emergency department at Ahero Sub-County Hospital testified that on the night of 17/2/2024, she was on duty when they received a young man in his early 30s staggering whilst holding his neck and which was full of blood. That the young man informed her that he had been stabbed by his friend Sam. That she tried to stop the bleeding but the same was excessive and as such, she mobilized an ambulance to take the man to JOOTRH. 11. That along the way, she interrogated the young man and obtained his mother’s number which she called severally but was not picked up. That she then took his phone and called the last number that had been dialed. She informed the recipient of the call that they were headed for JOOTRH. That she subsequently handed that patient over to the doctors at JOOTRH but was later informed that he had succumbed before he could go to theatre. Pw5 reiterated her averments in cross-examination. 12. Pw7, Dr. Ombok Lucy from JOOTRH produced the postmortem report dated 27/2/2024 which she had prepared after examining the deceased’s body Page 4 of 21 PExh2. It was her testimony that the body presented was that of an African 30- year-old male, in good nutrition, 184cm in height and that rigor mortis had set in. 13. That externally, both eyes and neck were swollen. It had a stab wound penetrating the neck exposing the bone and inner muscles. That internally, there were clotted blood around the sterna bone, digestive system and ruptured neck vessels with other systems being normal. She formed the opinion that the cause of death was massive bleeding as a result of stabbing. She removed the right thumb nail for purposes of DNA testing and issued a Death Certificate No. 1509424. In cross-examination, she stated that the right thumb nail was for DNA purposes. 14. Pw8, No. 93160 Sergeant Salome Nafula Makhulo testified that on 17/2/2024 at about 10pm, she was the duty officer of the day performing patrol duties within Baraka area on the Nairobi road. She was from Boya Police Station in the company of PC Shaita and PC Brian when they received a call from the OCS informing them that there was a distress call from Mau Forest Bar. 15. That they headed to the scene where they found the Bar closed with no business going on and while at the scene, a bodaboda rider came and informed them that he had seen a bleeding individual being taken to Ahero County Page 5 of 21 Hospital. They proceeded to the Hospital where they were informed by a Nurse that the hospital had received a person who had a stab wound on the neck. That the said person had informed the Nurse that he had been stabbed by one Sammy Irungu. The patient had transferred to JOOTRH. That the following morning at 6.45am, one Joab Ndege came to the station and reported that his son Isaac had been stabbed and succumbed to the injuries and that the person who had stabbed his son was one Sammy Irungu at Mau Forest Bar. 16. Pw8 then, in the company of her colleagues proceeded to the said Bar and inquired about the said Sammy Irungu. They were informed that he had gone to Ahero junction. They proceeded there and on tracing him, they searched him recovered a small knife which had red stains which they suspected to be blood. That they took him back to Mau Forest where they noticed blood stains at the door and subsequently arrested him and escorted him to the Police Station. She identified the accused as the person she arrested. Pw8 reiterated her testimony in cross-examination. 17. Pw9, Silvanus Okongo Oguya, a welder at Ahero testified that he knew the deceased. It was his testimony the on the 17/2/2024 at about 9.30pm, he received a call from a nurse at Ahero Sub-County Hospital asking him to avail himself at the hospital as there was someone who had suffered some injuries. Page 6 of 21 That he proceeded to the hospital where he informed the nurse that he was a friend to Isaac and requested her to help transfer him to JOOTRH. 18. That on inquiring from the deceased as to what had happened, the deceased informed him that Sam had stabbed him. He saw the stab wound on the neck. That they took the deceased to JOOTRH. He later learnt that the deceased had passed on. 19. In cross-examination, he told the Court that he was not at Mau Forest Bar when the incident occurred and thus never witnessed the incident. That the deceased only mentioned the name Sam. 20. Pw10, Salvine Cheruto Katukoi, a Senior Government Analyst at Kisumu Laboratory testified that she had a DNA report dated 8/5/2025 which she produced as PExh3. It was her testimony that on 29/2/2024, she received exhibits submitted by PC Richard Kinyua of DCI Nyando and which included; a finger nail sample from Isaac Omondi (deceased) marked “A”, a small knife with a plastic handle marked “B” and bucal swap from Samuel Owira Owino (accused) marked “C”. 21. It was her testimony that after analysis, she found that the knife “B” was lightly stained with blood of human origin. That on 8/5/2025, she carried out her analysis and arrived at the conclusion that; Page 7 of 21 The DNA profile generated from the blood stains on the knife “B” matched the DNA profile generated from the finger nail sample “A” of Isaac Omondi, the deceased and That the DNA profile generated from the bucal swap of Samuel Owino Owira (Accused) did not match any of the DNA generated from the items submitted. 22. Pw11, No. 239300 IP Edwin Muna investigated the case. He testified that on 18/2/2024 at around 10.00hrs, he received a call over the incident and that a suspect had been arrested. That he proceeded and rearrested the suspect who led them to the scene and informed them that he had a disagreement with the deceased wherein he wrestled him, disarmed him of the knife and in an act of self-defence, stabbed him. 23. That the accused was subsequently escorted to Ahero sub-county hospital where he was treated and discharged in a fair condition following his allegations that he had been attacked by the deceased. He carried out investigations, recorded witness statements, collected exhibits and subsequently recommended the charges against the accused. He identified the accused in Court and stated that he did not know him prior to the case. 24. In cross-examination, Pw11 told the Court that the accused led them to the scene. That none of the witnesses testified as to what had happened there. That Page 8 of 21 there were no signs of struggle at the scene but that they found a few traces of blood but never took samples of the same. The prosecution then closed its case. 25. When placed on his defence, the accused testified as Dw1 denying any knowledge of the deceased’s death. It was his testimony that he did not know the deceased. That the day prior to his arrest on the 18/2/2024, he was at home and did not leave to go anywhere. He denied knowing Mau Forest Bar and Riela Pub. He denied being a security guard or being employed at all stating that he works with different fundis. 26. That he was called Samuel Owira, there were many other people in the area with the same name such as Sam Chonjo, a matatu tout and Sam Okumu, a casual labourer. That on the material day he had been constructing a toilet with Nahashon, Liech and Elvis though he would not call them as witnesses. That nothing was recovered from his person upon his arrest. 27. The accused was charged with the offence of murder. The onus was on the prosecution to prove the offence beyond reasonable doubt. The ingredients of murder that must be proved by the prosecution to that standard are: - a) the fact of death; b) the cause of death; Page 9 of 21 c) that the death was caused by the wrongful act or omission of the accused; and d) that the act or omission of the accused was with malice aforethought as defined under section 206 of the Penal Code. 28. From the prosecution evidence, there is no doubt about the deceased’s death. The same was confirmed by the testimonies of the prosecution witnesses. Pw1 & Pw2 testified that they were present when the deceased passed on at JOOTRH. Pw2 further testified that he identified the deceased’s body prior to the autopsy being carried out, which autopsy he also witnessed. Accordingly, I am satisfied that the prosecution proved this element to the required standard. 29. The second element is the cause of death. Pw7, Dr. Ombok testified that she conducted a post-mortem on the body of the deceased on 27/2/2024 at JOOTRH Mortuary. That on examination, the deceased had a penetrating stab wound on the neck. She concluded that the cause of death was massive bleeding as a result of stabbing. She produced the post-mortem report as PExh2. 30. On the foregoing, I am satisfied that the cause of death was massive bleeding as a result of stabbing. Page 10 of 21 31. The third element is whether, the cause of death was as a result of the wrongful act or omission of the accused. The prosecution anchored its case on the testimonies of Pw2, Pw5 and Pw9 who testified that the deceased informed them that he had been stabbed by Sam. Pw2, the deceased’s father clarified that the deceased stated that it was Sam, the grandson of Owino, and the accused herein who stabbed him. 32. The testimonies of these witnesses remained unchallenged in cross- examination. They remained firm. When put on his defence, the accused testified that he was not the only “Sam” in the area. He however did not call any of the other “Sam’s”. The accused also testified that he was at home on the day of the incident and did not go anywhere before shifting his position and stating that he was building a toilet on the said day with two other fundis whom he declined to call in his defence. 33. As to whether the statements made to Pw2, Pw5 and Pw9 amounted to a dying declaration, Section 33 (a) of the Evidence Act (Cap 80) states that: - 33. Statement by deceased person, etc., when statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, ... are themselves admissible in the following cases— Page 11 of 21 (a) Relating to cause of death when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question, such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question...” 34. In Philip Nzaka Watu v Republic [2016] eKLR, the Court of Appeal held that: - “Under section 33(a) of the Evidence Act, a dying declaration is admissible in evidence as an exception to the rule against admissibility of hearsay evidence. Under that provision, statements of admissible facts, oral or written, made by a person who is dead are admissible where the cause of his death is in question and those statements were made by him as to the cause of his death, or as to any of the circumstances of the transaction leading to his death. Such statements are admissible whether the person who made them was or was not expecting death when he made the statements. Clearly by reason of section 33 (a), there is no substance in Page 12 of 21 the claim that a dying declaration constitutes inadmissible hearsay evidence. Notwithstanding section 33(a) of the Evidence Act, courts have consistently held the view that evidence of a dying declaration must be admitted with caution because firstly, the dying declaration is not subject to the test of cross-examination and secondly, circumstances leading to the death of the deceased such as acts of violence, may have occasioned him confusion and surprise so as to render his perception questionable. While it is not a rule of law that a dying declaration must be corroborated to found a conviction, nevertheless the trial court must proceed with caution and to get the necessary assurance that a conviction founded on a death declaration is indeed safe. This Court expressed itself as follows in CHOGE V. REPUBLIC (supra): “The general principle on which a dying declaration is admitted in evidence is that it is a declaration made in extremity when the maker is at a point of death and the mind is induced by the most powerful considerations to tell the truth. In Kenya, however, the admissibility of dying declaration need not depend upon the declarant being, at the time of making it, in a hopeless expectation of eminent death. Page 13 of 21 There need not be corroboration in order for a dying declaration to support a conviction but the exercise of caution is necessary in reception into evidence of such declaration as it is generally unsafe to base a conviction solely on the dying declaration of a deceased person.” 35. The court reiterated those principles in the case of Charles Njonjo Gituro v Republic [2019] eKLR; and in the case of Moses Wanjala Ngaira v Republic [2019] eKLR where it held inter alia: - “19. The situation in Kenya is, however, different as exemplified in section 33 of the Evidence Act (supra). There is a catena of authorities from this Court on the nature and the manner of receiving and considering evidence of dying declaration. We take it from Choge v Republic [1985] KLR 1, citing the predecessor of this Court in Pius Jasanga s/o Akumu R (1954) 21 EACA 331: “In Kenya the admissibility of a dying declaration does not depend, as it does in England, upon the declarant having at the time, a settled, hopeless expectation of imminent death, so that the awful solemnity of his situation may be considered as creating an obligation equivalent to that imposed by the taking of an oath. Page 14 of 21 In Kenya (as in India) the admissibility of statements by persons who have died as to the cause of death depends merely upon section 32 of the Indian Evidence Act. It has been said by this court that the weight to be attached to dying declarations in this country must, consequently, be less than that attached to them in England, and that the exercise of caution in the reception of such statements is even more necessary in this country than in England. (Republic v Muyovya bin Msuma (1939) 6 EACA 128. See also Republic v Premanda (1925) 52 Cal 987.) The question of the caution to be exercised in the reception of dying declarations and the necessity for their corroboration has been considered by this court in numerous cases, and a passage from the 7th Edition of Field on Evidence has repeatedly been cited with approval: “The caution with which this kind of testimony should be received has often been commented upon. The test of cross examination may be wholly wanting, and… the particulars of the violence may have occurred under circumstances of confusion and surprise calculated to prevent their being accurately observed…The deceased may have stated inferences from facts concerning which he may have omitted important particulars, from not having his attention called to them. (Ramazani bin Mirandu (1934) 1 Page 15 of 21 EACA 107; R v Okulu s/o Eloku (1938) 5 EACA 39; R v Muyovya bin Msuma (supra). The fact that the deceased told different persons that the appellant was the assailant is evidence of the consistency of his belief that such was the case: it is not guarantee for accuracy (ibid). It is not a rule of law that, in order to support a conviction there must be corroboration of a dying declaration (R v Eligu s/o Odel and another (1943) 10 EACA 9; Re Guruswani [1940] Mad 158, and there may be circumstances which go to show that the deceased could not have been mistaken in his identification of the accused. See for instance the case of the second accused in R v Eligu s/o Odel and Epongu s/o Ewunyu (1943) 10 EACA 90). But it is, generally speaking, very unsafe to base a conviction solely on the dying declaration of a deceased person, made in the absence of the accused and not subject of cross-examination, unless there is satisfactory corroboration. (R v Said Abdulla (1945) 12 EACA 67; R v Mgundulwa s/o Jalo (1946) 13 EACA 169, 171).” See also R v Eligu s/o Odel (1943) 10 EACA 90, Okethi Okalo v Republic [1965] EA 555, Aluta v Republic [1985] KLR 543, and Kihara v Republic [1986] KLR 473.” Page 16 of 21 36. In this case, the deceased made a declaration to Pw2, his father, Pw5 the Nurse who first attended to him at Ahero Sub-County Hospital and Pw9 that it was Sam who had stabbed him. The deceased told his father that it was Sam, the grandson of Owino who stabbed him. Was this in reference to the accused? 37. The accused denied knowing the deceased or being with him on the material date. This is despite the testimony of Pw4 who testified of a brawl between the deceased and accused on the material day outside Riela Pub. That testimony was never displaced in cross-examination. Further, Pw3 also testified that on the 18/2/2024, he arrested the accused and recovered from him a knife which had traces of blood which when subjected to forensic analysis by Pw10 was found to be the deceased’s blood. 38. This evidence presented by the prosecution clearly pointed to the accused as the person whom the deceased referred to as ‘Sam’ in his declarations to Pw2, Pw5 and Pw9. When weighed against this evidence, the accused’s testimony, in my view, amounts to a mere denial and an afterthought and I reject the same in its entirety. 39. The declarations by the deceased to the three witnesses related to the events that eventually led to his death and I am therefore satisfied that they amounted to a dying declaration. Whereas a dying declaration does not require Page 17 of 21 corroboration, in this case the same was made to three different people who I found credible and trustworthy. They had no reason to lie against the accused. The deceased was very consistent in his mention of the accused as the one who stabbed him and it is my finding that this leaves no doubt that the accused committed the offence 40. After due consideration of all the evidence before me, I am convinced beyond doubt that there is sufficient evidence that proves the elements of death by an unlawful act, identity of the victim and the identity of the perpetrator. I now turn to the element of malice aforethought. 41. Section 206 of the Penal Code defines malice aforethought in the following terms: - “Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances— (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge Page 18 of 21 is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit a felony; (d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.” 42. In Republic v Benjamin Kyalo Mulonzi [2019] eKLR, the Court had this to say: - “It is therefore clear that malice aforethought is the conscious, premeditated intent to kill another person, without any provocation or just cause. The Court of Appeal in the case of Republic –vs- Tubere S/O Ochen (1945) 12 EACA63 held that an inference of malice aforethought can be established by considering the following: - a) The nature of the weapon used. b) The manner in which the weapon was used. c) The part of the body targeted. Page 19 of 21 d) The nature of the injuries inflicted either single stab/wound or multiple injuries. e) The conduct of the accused before, during and after the attack.” 43. In the present case, the weapon used was a knife was used. That was a dangerous weapon. The accused used this weapon to stab the deceased’s neck. The part of the body targeted was a sensitive part. A single stab on that part could be, as in this case, fatal. Clearly, there was either intention to kill the deceased or to cause him grievous harm. Accordingly, the accused had the necessary malice aforethought in causing the death of the deceased. This element was also proved to the required standard. 44. Accordingly, from the evidence on record, the Court is satisfied that it was the accused who stabbed the deceased on the material day. The Court is satisfied that the prosecution discharged its burden of proof and proved the charge against the accused beyond any reasonable doubt. 45. I find the accused guilty of the murder of the deceased and convict him accordingly under section 215 of the Criminal Procedure Code. It is so decreed. DATED and DELIVERED at Kisumu this 19th day of June, 2026. Page 20 of 21 A. MABEYA, FCI Arb JUDGE Page 21 of 21