A. THE CHARGE.
1. Erick Omondi Mboya (hereinafter referred to as “the Appellant”) was charged before the trial court with the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code, Cap 63 Laws of Kenya.
2. It was stated in the particulars of the offence that between the night of 9th and 10th of April, 2016 at Pandpieri Oboch village in Kisumu Central District within Kisumu County, jointly with others not before the court, while armed with dangerous weapons namely a machete and an iron bar, the Appellant and his confederates robbed Grace Lorna Chore of one television set make Sony LCD 32”, one GoTV decoder serial number 4623271789, a mobile phone make Nokia model 1616-2 IMEI number 354836041951608, one complete 6kg K-Gas, a black suitcase, two iron boxes and assorted personal documents all valued at Ksh.57,000/-and before the time of such robbery, killed the said Grace Lorna Chore.
3. In the alternative count, the Appellant was charged with the offence of handling stolen goods contrary to Section 322(1) as read with 322(2) of the Penal Code, Cap 63 Laws of Kenya.
4. The particulars of the offence for the alternative charge were that on the 22nd of April, 2016 at Pandpieri village in Kisumu Central District within Kisumu County, otherwise than in the course of stealing, the Appellant dishonestly received one 6kg meko K-Gas cooker, one GoTV decoder serial number 4623271789, one mobile phone make Nokia model 1616-2 IMEI number 354836041951608, two iron boxes make Mikachi and Ramtons a black suitcase and assorted personal documents knowing or having reason to believe them to be stolen goods.
5. The Appellant denied the charges, which then called for a full trial.
6. The prosecution case was founded on the evidence of 10 witnesses while the defence comprised of the Appellant’s sworn testimony. Following the conclusion of the trial, the Appellant was convicted as charged and subsequently sentenced to suffer the death sentence.
B. GROUNDS OF APPEAL.
7. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the undated petition of appeal. The grounds of appeal are as follows:
1. THAT, the learned trial Magistrate erred in law and in fact in conducting the proceedings that violated the rights of the Appellant as per the provisions of the laws of Kenya hence null and void.
2. THAT, the learned trial Magistrate erred in law and in fact in arriving at a decision while relying on evidence that was full of contradictions and without analyzing the same as prescribed by the law of the land.
3. THAT, the learned trial Magistrate erred in law and in fact in imposing a death sentence which is manifestly harsh, excess, unlawful and unconstitutional regarding the circumstances in which the evidences were committed hence hull and void.
4. THAT, the learned trial Magistrate erred in law and in fact in rejecting the Appellant’s alibi defence which was also not accorded facilities and enough time to prepare for the same hence un-procedural.
5. THAT, the learned trial Magistrate erred in law and in fact in considering extraneous factors while summing up her decision making.
6. THAT, the death sentence was abolished in Article 6 of the International Covenant.
8. On the strength of these grounds, the Appellant urges this court to allow the appeal, quash his conviction and acquit him and set aside the death sentence.
C. THE DUTY OF THIS COURT.
9. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570; and Peter v Sunday Post [1958] EA 424.)
10. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the conviction and sentence.
D. THE PROSECUTION CASE.
11. The prosecution presented and relied upon the testimony of ten (10) witnesses in support of its case before the trial court.
12. The first prosecution witness was Prisca Anyango (PW1). In her testimony before the trial court, PW1 stated that she was a businesswoman residing in Nyalenda, having previously resided at Nakuru. She recalled that on 10th April, 2016, a Sunday, she travelled to Kisumu and arrived at the bus park at about 7.00 p.m., whereupon her niece informed her that her brother had been involved in an accident. She proceeded to the District Hospital and found that he had been transferred to Jaramogi Oginga Odinga Teaching and Referral Hospital. She further testified that she attempted, without success, to reach her mother-in-law by phone.
13. PW1 testified that at about 10.00 p.m., after informing her husband, she hired a tricycle to her home in Nyalenda. Upon arrival, she found the gate open and, as she entered the compound, she noticed a person clad in a yellow and black dress, whom she recognized as her mother-in-law. She stated that she screamed and called a neighbour, believing that her mother-in-law had fallen. The neighbours responded and, upon checking, informed her that the deceased had died earlier.
14. It was PW1’s further evidence that other neighbours, including one Mzee Arthur, gathered at the scene and the police were notified. Upon arrival, the police turned the body, and she observed injuries on the deceased, including a cut on the lower lip, the right shoulder and the stomach. She noted that the body was motionless and was subsequently removed to the mortuary. PW1 spent the night at a neighbour’s house, after which she later recorded her statement at Kisumu Central Police Station.
15. PW1 further testified that she later learnt, during the burial arrangements, that a suspect had been arrested, although she did not know the said person.
16. During cross-examination, she stated that she only saw the Appellant for the first time in court. She also explained that one had to pass through the compound of a neighbour named Alice to access her mother-in-law’s residence, and that although she initially screamed without response, she went to Alice’s house, who upon coming out also screamed, thereby attracting other neighbours.
17. The second prosecution witness was Arthur Otieno (PW2), who testified and told the trial court that he was a resident of Nyalenda, a retired hotelier and a local community security leader.
18. PW2 recalled that on the night of 10th April, 2016 at about 10.30 p.m., while in his house, he heard screams emanating from the home of his in-laws with whom they shared a fence. He proceeded to establish the cause of the alarm and, finding the main gate locked, accessed the compound through the rear gate, where he found PW1 and other relatives already gathered.
19. PW2 testified that PW1 informed him that she had found the deceased, Grace, lying outside. He proceeded to the scene and observed the body of his sister-in-law lying near the rear gate. He noted that the deceased had visible injuries, including blood oozing from the mouth and ears, as well as deep cuts on the face and arm, and that she was lying on her side. He further observed that the blood had clotted, suggesting that the injuries were not recent.
20. It was PW2’s further evidence that he instructed members of the public who had gathered at the scene not to interfere with the body as they awaited the arrival of the police. He stated that they did not enter the house. The police later arrived, processed the scene, and removed the body to Jaramogi Oginga Odinga Teaching and Referral Hospital for post-mortem examination. In his view, the deceased had been brutally murdered using a sharp object.
21. PW2 further testified that he later learnt that a suspect had been arrested and detained at Kisumu Central Police Station. He visited the police cells and confirmed that the suspect was a person known to him. He subsequently recorded his statement at Nyalenda Police Post the following day.
22. During cross-examination, PW2 stated that he was familiar with the deceased’s children and that his home was adjacent to that of the deceased. He also confirmed that there was a crowd at the scene and that he first found PW1 present. He stated that he was not aware of any land dispute within the deceased’s family.
23. In her testimony before the trial court, PW3, Beatrice Adhiambo Chore, testified that she resided in Kisumu and received a call from her brother Clifford informing her that his wife had discovered that their mother had been murdered. She immediately travelled to Nyalenda by motorcycle and, upon arrival, found several relatives present, including their grandmother Alice, an uncle and PW1. She stated that she was initially unable to access the rear gate as the area had been secured as a crime scene, but she could observe the body of the deceased lying on one side in a pool of blood with visible cuts on the forehead, face and hands.
24. PW3 further testified that upon the arrival of the police, she accompanied them into the compound and formally identified the body of the deceased. She stated that photographs were taken and the body was subsequently removed to the mortuary. She added that the door to the house was found wide open and, upon entering the house with the police, they observed that several household items were missing. She enumerated the missing items as including a Samsung 32-inch television set, a Go-TV decoder, a meko gas cylinder, two electric irons of Mikachi and Ramtons make and a black suitcase belonging to her brother Alphonse which contained documents. She also noted that a phone cover was missing. She stated that the police recorded the details of the missing items and instructed her to secure the house thereafter.
25. PW3 further testified that about one week later, she was informed that a suspect had been arrested and that she was required to attend Kisumu Central Police Station to identify recovered items. She stated that she was able to identify several items presented to her, including a meko gas cylinder, a Ramtons iron box, a suitcase, a Go-TV decoder, beddings and a bundle of documents belonging to her brother Clifford. She also saw the suspect in custody for the first time at the police station.
26. During cross-examination, PW3 testified that she was one of seven siblings and provided details of her family members. She stated that one of her brothers, Paul Chore, was in Nairobi at the time of the incident, although his family resided in Kisumu, and that he travelled to Kisumu the following day. She clarified that the suitcase belonged to Clifford and was used to store his documents, a fact known to her. She further stated that there was no land dispute within the family, noting that their late father had distributed his property through a will, and that subdivision was ongoing. She also denied knowledge of any threats made by Paul Chore to the Appellant while in custody and confirmed that she had not known or seen the Appellant prior to the identification at the police station.
27. PW4, Clifford Makanda Chore testified that he was an accountant residing in Nyalenda, though at the material time he was living in Nakuru. He stated that on 10th April, 2016, his wife travelled to Kisumu and was to spend the night at his parents’ home. He recalled that she informed him that her brother had been involved in a road traffic accident and that she had gone to check on him. At about 10.30 p.m., she informed him that she was unable to reach his mother through her Safaricom line and requested for her Airtel line, which he did not have. He later received a call at about 11.00 p.m. from his wife, who was crying and informing him that she had found his mother lying dead at the gate.
28. PW4 testified that upon receiving the news, he informed his siblings, and they all travelled to Kisumu, arriving after the body had already been taken to the mortuary. He stated that the police were at the time conducting investigations. He further testified that on 22nd April, 2017, when they were preparing to collect the body from the mortuary, a suspect had already been arrested, and that the deceased was buried on 23rd April, 2017.
29. It was PW4’s further evidence that after the burial, he was summoned by officers from the Criminal Investigations Department to Kisumu Central Police Station, where he was able to identify several items that had been recovered. These included a suitcase he had left at his mother’s house containing personal documents such as title deeds, marriage certificate, copies of sale agreements and school certificates. He also identified a K-Gas meko cylinder, which he stated was unique as it lacked a knob, as well as two iron boxes and a Go-TV decoder. He confirmed that all the identified items had been in the custody of the deceased prior to the incident, and that he recorded a statement with the police.
30. During cross-examination, PW4 stated that he did not know the Appellant prior to seeing him in court during plea taking. He testified that his mother had seven children and named them. He further stated that the title deed he identified related to land he had purchased in Mamboleo.
31. PW4 explained that upon receiving the news of his mother’s death, he first contacted his sister Beatrice, who was in Kisumu, and then his brother Alphonse in Nairobi, and that he did not know the whereabouts of his brother Paul at the time, though he saw him two days later.
32. PW4 also testified that his father had died in 2002 leaving a will, though no administrator had been appointed, and that there had been no disputes among the siblings during their mother’s lifetime. However, he acknowledged the existence of subsequent disputes among siblings, including pending criminal cases involving allegations of disturbance and malicious damage, which he attributed to disagreements over property.
33. PW4 also stated that he had heard that the Appellant had previously resided in one of the deceased’s rental houses and that his wife used to perform household chores for the deceased, while the Appellant also ran errands for her.
34. In re-examination, PW4 clarified that he began constructing his house in 2006 while his mother was still alive and that there had been no disputes at that time. He stated that the disputes among siblings arose after the incident forming the subject of the case and maintained that those disputes were unrelated to the case before the court.
35. In his testimony before the trial court, PW5, Alphonse Chore, testified that he was an ICT specialist residing in Nairobi and working with the Centre for Tech Democracy. He stated that on 10th April, 2016, while at his home in Nairobi, he received a telephone call from his brother, Clifford, informing him that their mother, Lorna Chore, had been killed. He further testified that he was informed that PW1, Clifford’s wife, had relayed the information to him while he was in Nakuru. PW5 stated that upon receipt of the news, he and other family members travelled to Kisumu overnight, arriving at about 5.00 a.m.
36. PW5 testified that upon arrival in Kisumu, they proceeded to the home of the deceased and found that the body had already been removed to the mortuary and that people had dispersed. He stated that he was accompanied by Clifford, and that other relatives later joined them. He further testified that upon entering the house, they observed that several items were missing, including a Sony television set and a decoder from the sitting room. He also observed signs of disturbance, including a hanging aerial cable and indications suggesting a struggle within the house, which led him to suspect that a robbery may have occurred.
37. PW5 further testified that they were escorted by Police Constable Wambua to Jaramogi Oginga Odinga Teaching and Referral Hospital, where they identified the body of the deceased. He stated that a post-mortem examination was conducted and thereafter the body was transferred to Star Mortuary. He further testified that later, officers from the Directorate of Criminal Investigations contacted him and requested him to identify recovered items, which he subsequently did.
38. PW5 stated that among the items he identified were a black suitcase containing personal effects, a 6kg K-Gas cylinder with a broken burner, a Nokia 1616 mobile phone belonging to his mother, a Go-TV decoder which he had purchased for her, a receipt for the decoder, a Ramtons iron box, a wooden item, a metallic rod and a blood-stained panga recovered inside the suitcase. He also testified that he was informed that a suspect had been arrested in possession of the items, whom he identified in custody as the Appellant, although he did not know him prior to the incident. He added that he had previously spoken to a person identifying himself as “Eric” when assisting with installation of the decoder.
39. During cross-examination, PW5 stated that he recorded his statement with the police and confirmed it bore his signature. He testified that a neighbour, one Alice, informed him that the Appellant had been seen at the scene, although he did not know the source of the information. He stated that he did not know the motive for the attack but believed it was a robbery due to signs of struggle and missing items. He further confirmed that he was in Nairobi at the time of the incident and denied knowledge of any arrangement by which the stolen items were taken to the Appellant’s house or under his direction.
40. PW5 further stated that he understood the accused had previously been an errand person for the deceased and a tenant, though he clarified that he did not personally know him.
41. In re-examination, he reiterated that the accused had been an errand person for the deceased and also a tenant. He also acknowledged that investigations involved various forensic processes and stated that he had no knowledge of the specific motive for the attack.
42. The prosecution called Sergeant Ignasias Okinda (PW6), who testified and told the trial court that he was an officer attached to the Directorate of Criminal Investigations (DCI) Kuresoi, where he was involved in investigations. He stated that on 20th April, 2016, while in the office, he was requested by a colleague to act on analysis arising from call data obtained from Safaricom in relation to the murder of a woman in Nyalenda, whose mobile phone had reportedly been used a few days after her death.
43. PW6 testified that upon review of the call data records, he analysed three sets of data relating to mobile numbers associated with the deceased, a suspect and another user. He stated that the analysis revealed that the deceased’s mobile phone had been used after the murder, and that the IMEI data and call records pointed to a number registered in the name of one Linet Achieng.
44. PW6 further stated that investigations led them to Oyugis, where the subscriber was traced, and it was confirmed that she was related to the Appellant, who had reportedly left his home the same day.
45. PW6 testified that further tracking of the mobile signal placed the phone within Nyalenda in Kisumu. He stated that with the assistance of a person familiar with the suspect, they were led to the Appellant’s residence, where they found him asleep. He testified that they woke him, introduced themselves, and conducted a search of the premises, during which several items were recovered and an inventory prepared on 22nd April, 2016.
46. PW6 further testified that among the recovered items was a Nokia mobile phone bearing IMEI number 354836041951608, which belonged to the deceased. He also testified that a SIM card registered to Linet Achieng, a damaged phone, certificates of title in the name of Michael Ogola, a marriage certificate, a 6kg gas cylinder, a GoTV decoder, spectacles, two iron boxes, assorted clothing and documents, a machete with blood stains, a white metal rod and a black object suspected to have been used in the commission of the offence were recovered.
47. PW6 stated that the machete and blood samples were forwarded to the Government Chemist for analysis, and the report established that the blood stains on the machete matched the DNA profile of the deceased. He further stated that the post-mortem report indicated that the cause of death was severe haemorrhage due to severe soft tissue injuries. He testified that the Appellant was unable to give a satisfactory explanation for the recovered items and that investigations established his involvement in the offence.
48. PW6 further testified that letters requesting call data records were dated 19th April, 2016 and related to mobile numbers 0720****58 and 0725****95, and that the IMEI analysis request was also made. He produced the call data request forms and call data records as exhibits, together with an inventory marked as having been signed by the Appellant on 22nd April, 2016. He identified the recovered exhibits, including the machete, rods, GoTV decoder, gas cylinder, suitcase, iron boxes, bedding, documents and mobile phones, which he produced in evidence.
49. PW6 further testified that although the Nokia phone belonging to the deceased was not physically produced in court during the retrial, it had been previously produced and recorded in the inventory and court records. He stated that it was unclear whether the phone remained in the court registry or had been misplaced in custody as it had been produced as an exhibit in another case. He also testified that the Appellant signed the inventory upon recovery of the items, which was witnessed by other officers.
50. During cross-examination, PW6 stated that the Appellant had been working for the deceased as a shamba boy and caretaker within her homestead at Nyalenda. He testified that he was not aware of any family disputes involving the deceased and her children and could not recall the exact layout of the homestead. He further stated that, according to his understanding, the deceased was alone at the time of the incident, as other family members had travelled for a funeral.
51. PW6 further testified that the body of the deceased was found near the gate of the deceased’s house on the material night of 10th April, 2016 at about 10.30 p.m., although he stated that the exact time of death could only be determined by the pathologist. He opined that the incident likely occurred between 9th and 10th April, 2016.
52. In re-examination, PW6 stated that the deceased’s mobile phone was not brought to court during the retrial as it was either retained in the court registry or misplaced after the earlier proceedings. He further testified that through Safaricom data analysis, the phone was traced to Oyugis and later to Nyalenda, where the Appellant was arrested. He stated that items belonging to the deceased were recovered from the Appellant during the investigations.
53. In his testimony before the trial court, PW7, Corporal David Barno, testified that he was based in Kwale County. He stated that on 1st April, 2016, while on duty at Kisumu Police Station where he then worked, he received a report through the radio control room from officers at Nyalenda Police Post regarding an incident of murder. He proceeded to the scene of crime together with his colleague, Police Constable Ekisa.
54. PW7 testified that upon arrival at the homestead of the deceased at Obuod, Nyalenda, they met PW2, Arthur Otieno, who had reported the incident. He stated that they found the body of the deceased at the gate of the compound. Upon examination, they observed that the deceased had deep cuts on the head and back. He further testified that the scenes of crime personnel took photographs of the scene.
55. PW7 stated that they conducted a search of the compound but did not recover any immediate items of evidential value at the scene. He testified that all doors to the house were open and household items were scattered, but no person was found within the premises. He further stated that they concluded the body was likely to have been at the scene for approximately two days and that decomposition had already begun.
56. PW7 testified that the body was removed and taken to Jaramogi Oginga Odinga Teaching and Referral Hospital Mortuary for preservation. He further stated that blood samples were collected and preserved for forensic examination. He produced an exhibit memo form and stated that he could not specifically recall when he recorded his statement.
57. During cross-examination, PW7 stated that he did not know the whereabouts of the Appellant at the time of the incident but understood that he had been missing. He further stated that he received information from PW2 that the Appellant used to reside within the deceased’s compound and would assist her in the homestead. He testified that he did not prepare an inventory but added that the deceased’s family confirmed that there were some missing items. He further stated that the scene was preserved and reiterated that the Appellant was said to have been living within the compound as a house help.
58. PW7 further stated that the death had occurred approximately one to two days before the body was discovered, although he indicated that such estimation could be confirmed by the investigating officer.
59. In re-examination, PW7 clarified that the Appellant was said to have lived within the compound in a separate room as a house help, and confirmed that he was not the investigating officer. He also stated that the blood sample was extracted by the doctor from the deceased.
60. PW8, Martin Wekesa, testified that he was an officer attached to the Directorate of Criminal Investigations (DCI), serving in the Criminal Intelligence Unit, with duties involving the collection and dissemination of intelligence to relevant authorities. He stated that in the year 2016 he was seconded to Safaricom as a liaison officer, where his work entailed analysing telecommunications data and M-Pesa transaction records.
61. PW8 testified that on 19th April, 2016, his office received a request from the DCI Kisumu seeking call data records for mobile numbers 0725****94, 0720****58 and 0705****90. He stated that the request was contained in a letter dated 19th April, 2016, which he produced in evidence.
62. The officer further testified that another request was received seeking data relating to an IMEI number 354836041951600 and call data records for the period between 1st April, 2016 and 18th April, 2016, including subscriber details and IMEI history.
63. PW8 testified that upon receipt of the requests, he extracted the relevant data as required and prepared call data records and IMEI history reports. He stated that according to the records, one of the IMEI numbers was first used with mobile number 0725****94 on 21st April, 2016 at 2:06 p.m. He further testified that the registration details for mobile number 0720****58 indicated that it was registered in the name of Lorna Otaro Jure, while another number was registered in the name of Linet Achieng using identification details captured in the system.
64. PW8 further testified that he prepared the necessary certificates under Section 65 as read with Section 106 of the Evidence Act to authenticate the electronic records produced. He also produced a letter of authority permitting him to release the requested information, together with the relevant call data records and IMEI analysis reports, which he produced as exhibits before the court.
65. During cross-examination, PW8 stated that he did not produce any physical mobile phone in court, explaining that his role was limited to data analysis and retrieval and that he was not supplied with the physical devices.
66. In re-examination, PW8 clarified that his work was strictly confined to analysing telecommunications data provided to him and that he did not handle or examine the physical phones in question.
67. In his testimony before the trial court, PW9, Richard Mutai, testified that he was a Government Analyst based in Kisumu with 27 years of experience. He stated that he held a degree in forensic science from Egerton University and was gazetted on 31st May, 2016.
68. PW9 further testified that he received a police exhibit memo from CID Kisumu in relation to the case, referencing the Appellant Erick Omondi and the deceased Lorna Grace, for purposes of DNA analysis.
69. PW9 testified that he received blood samples from the deceased and a blood-stained panga for forensic examination. He stated that the exhibits were submitted to his laboratory for determination of DNA genetic relationship and analysis of the blood stains.
70. PW9 further testified that upon examination, the blood stains on the panga were found to be of human origin and that DNA profiling established that the blood on the panga matched the DNA profile of the deceased, Lorna Grace.
71. He stated that he prepared and signed a report detailing his findings, which he produced in evidence.
72. The last prosecution witness (PW10) was Dr. Eugene Ochieng, who testified that he was a medical doctor at Jaramogi Oginga Odinga Teaching and Referral Hospital. He stated that the post-mortem examination in respect of the deceased, Lorna Chore, was conducted on 14th April, 2016 at about 2.00 p.m. by his colleague, who was away in Nairobi for studies.
73. PW10 testified that the body of the deceased was found at her compound in Nyalenda “B” on 10th April, 2016 at midday and was identified by PW1, Prisca Anyango, the daughter-in-law. He stated that the deceased was an elderly African woman of approximately 1.65 metr
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1. Erick Omondi Mboya (hereinafter referred to as “the Appellant”) was charged before the trial court with the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code, Cap 63 Laws of Kenya.
2. It was stated in the particulars of the offence that between the night of 9th and 10th of April, 2016 at Pandpieri Oboch village in Kisumu Central District within Kisumu County, jointly with others not before the court, while armed with dangerous weapons namely a machete and an iron bar, the Appellant and his confederates robbed Grace Lorna Chore of one television set make Sony LCD 32”, one GoTV decoder serial number 4623271789, a mobile phone make Nokia model 1616-2 IMEI number 354836041951608, one complete 6kg K-Gas, a black suitcase, two iron boxes and assorted personal documents all valued at Ksh.57,000/-and before the time of such robbery, killed the said Grace Lorna Chore.
3. In the alternative count, the Appellant was charged with the offence of handling stolen goods contrary to Section 322(1) as read with 322(2) of the Penal Code, Cap 63 Laws of Kenya.
4. The particulars of the offence for the alternative charge were that on the 22nd of April, 2016 at Pandpieri village in Kisumu Central District within Kisumu County, otherwise than in the course of stealing, the Appellant dishonestly received one 6kg meko K-Gas cooker, one GoTV decoder serial number 4623271789, one mobile phone make Nokia model 1616-2 IMEI number 354836041951608, two iron boxes make Mikachi and Ramtons a black suitcase and assorted personal documents knowing or having reason to believe them to be stolen goods.
5. The Appellant denied the charges, which then called for a full trial.
6. The prosecution case was founded on the evidence of 10 witnesses while the defence comprised of the Appellant’s sworn testimony. Following the conclusion of the trial, the Appellant was convicted as charged and subsequently sentenced to suffer the death sentence.
B. GROUNDS OF APPEAL.
7. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the undated petition of appeal. The grounds of appeal are as follows:
1. THAT, the learned trial Magistrate erred in law and in fact in conducting the proceedings that violated the rights of the Appellant as per the provisions of the laws of Kenya hence null and void.
2. THAT, the learned trial Magistrate erred in law and in fact in arriving at a decision while relying on evidence that was full of contradictions and without analyzing the same as prescribed by the law of the land.
3. THAT, the learned trial Magistrate erred in law and in fact in imposing a death sentence which is manifestly harsh, excess, unlawful and unconstitutional regarding the circumstances in which the evidences were committed hence hull and void.
4. THAT, the learned trial Magistrate erred in law and in fact in rejecting the Appellant’s alibi defence which was also not accorded facilities and enough time to prepare for the same hence un-procedural.
5. THAT, the learned trial Magistrate erred in law and in fact in considering extraneous factors while summing up her decision making.
6. THAT, the death sentence was abolished in Article 6 of the International Covenant.
8. On the strength of these grounds, the Appellant urges this court to allow the appeal, quash his conviction and acquit him and set aside the death sentence.
C. THE DUTY OF THIS COURT.
9. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570; and Peter v Sunday Post [1958] EA 424.)
10. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the conviction and sentence.
D. THE PROSECUTION CASE.
11. The prosecution presented and relied upon the testimony of ten (10) witnesses in support of its case before the trial court.
12. The first prosecution witness was Prisca Anyango (PW1). In her testimony before the trial court, PW1 stated that she was a businesswoman residing in Nyalenda, having previously resided at Nakuru. She recalled that on 10th April, 2016, a Sunday, she travelled to Kisumu and arrived at the bus park at about 7.00 p.m., whereupon her niece informed her that her brother had been involved in an accident. She proceeded to the District Hospital and found that he had been transferred to Jaramogi Oginga Odinga Teaching and Referral Hospital. She further testified that she attempted, without success, to reach her mother-in-law by phone.
13. PW1 testified that at about 10.00 p.m., after informing her husband, she hired a tricycle to her home in Nyalenda. Upon arrival, she found the gate open and, as she entered the compound, she noticed a person clad in a yellow and black dress, whom she recognized as her mother-in-law. She stated that she screamed and called a neighbour, believing that her mother-in-law had fallen. The neighbours responded and, upon checking, informed her that the deceased had died earlier.
14. It was PW1’s further evidence that other neighbours, including one Mzee Arthur, gathered at the scene and the police were notified. Upon arrival, the police turned the body, and she observed injuries on the deceased, including a cut on the lower lip, the right shoulder and the stomach. She noted that the body was motionless and was subsequently removed to the mortuary. PW1 spent the night at a neighbour’s house, after which she later recorded her statement at Kisumu Central Police Station.
15. PW1 further testified that she later learnt, during the burial arrangements, that a suspect had been arrested, although she did not know the said person.
16. During cross-examination, she stated that she only saw the Appellant for the first time in court. She also explained that one had to pass through the compound of a neighbour named Alice to access her mother-in-law’s residence, and that although she initially screamed without response, she went to Alice’s house, who upon coming out also screamed, thereby attracting other neighbours.
17. The second prosecution witness was Arthur Otieno (PW2), who testified and told the trial court that he was a resident of Nyalenda, a retired hotelier and a local community security leader.
18. PW2 recalled that on the night of 10th April, 2016 at about 10.30 p.m., while in his house, he heard screams emanating from the home of his in-laws with whom they shared a fence. He proceeded to establish the cause of the alarm and, finding the main gate locked, accessed the compound through the rear gate, where he found PW1 and other relatives already gathered.
19. PW2 testified that PW1 informed him that she had found the deceased, Grace, lying outside. He proceeded to the scene and observed the body of his sister-in-law lying near the rear gate. He noted that the deceased had visible injuries, including blood oozing from the mouth and ears, as well as deep cuts on the face and arm, and that she was lying on her side. He further observed that the blood had clotted, suggesting that the injuries were not recent.
20. It was PW2’s further evidence that he instructed members of the public who had gathered at the scene not to interfere with the body as they awaited the arrival of the police. He stated that they did not enter the house. The police later arrived, processed the scene, and removed the body to Jaramogi Oginga Odinga Teaching and Referral Hospital for post-mortem examination. In his view, the deceased had been brutally murdered using a sharp object.
21. PW2 further testified that he later learnt that a suspect had been arrested and detained at Kisumu Central Police Station. He visited the police cells and confirmed that the suspect was a person known to him. He subsequently recorded his statement at Nyalenda Police Post the following day.
22. During cross-examination, PW2 stated that he was familiar with the deceased’s children and that his home was adjacent to that of the deceased. He also confirmed that there was a crowd at the scene and that he first found PW1 present. He stated that he was not aware of any land dispute within the deceased’s family.
23. In her testimony before the trial court, PW3, Beatrice Adhiambo Chore, testified that she resided in Kisumu and received a call from her brother Clifford informing her that his wife had discovered that their mother had been murdered. She immediately travelled to Nyalenda by motorcycle and, upon arrival, found several relatives present, including their grandmother Alice, an uncle and PW1. She stated that she was initially unable to access the rear gate as the area had been secured as a crime scene, but she could observe the body of the deceased lying on one side in a pool of blood with visible cuts on the forehead, face and hands.
24. PW3 further testified that upon the arrival of the police, she accompanied them into the compound and formally identified the body of the deceased. She stated that photographs were taken and the body was subsequently removed to the mortuary. She added that the door to the house was found wide open and, upon entering the house with the police, they observed that several household items were missing. She enumerated the missing items as including a Samsung 32-inch television set, a Go-TV decoder, a meko gas cylinder, two electric irons of Mikachi and Ramtons make and a black suitcase belonging to her brother Alphonse which contained documents. She also noted that a phone cover was missing. She stated that the police recorded the details of the missing items and instructed her to secure the house thereafter.
25. PW3 further testified that about one week later, she was informed that a suspect had been arrested and that she was required to attend Kisumu Central Police Station to identify recovered items. She stated that she was able to identify several items presented to her, including a meko gas cylinder, a Ramtons iron box, a suitcase, a Go-TV decoder, beddings and a bundle of documents belonging to her brother Clifford. She also saw the suspect in custody for the first time at the police station.
26. During cross-examination, PW3 testified that she was one of seven siblings and provided details of her family members. She stated that one of her brothers, Paul Chore, was in Nairobi at the time of the incident, although his family resided in Kisumu, and that he travelled to Kisumu the following day. She clarified that the suitcase belonged to Clifford and was used to store his documents, a fact known to her. She further stated that there was no land dispute within the family, noting that their late father had distributed his property through a will, and that subdivision was ongoing. She also denied knowledge of any threats made by Paul Chore to the Appellant while in custody and confirmed that she had not known or seen the Appellant prior to the identification at the police station.
27. PW4, Clifford Makanda Chore testified that he was an accountant residing in Nyalenda, though at the material time he was living in Nakuru. He stated that on 10th April, 2016, his wife travelled to Kisumu and was to spend the night at his parents’ home. He recalled that she informed him that her brother had been involved in a road traffic accident and that she had gone to check on him. At about 10.30 p.m., she informed him that she was unable to reach his mother through her Safaricom line and requested for her Airtel line, which he did not have. He later received a call at about 11.00 p.m. from his wife, who was crying and informing him that she had found his mother lying dead at the gate.
28. PW4 testified that upon receiving the news, he informed his siblings, and they all travelled to Kisumu, arriving after the body had already been taken to the mortuary. He stated that the police were at the time conducting investigations. He further testified that on 22nd April, 2017, when they were preparing to collect the body from the mortuary, a suspect had already been arrested, and that the deceased was buried on 23rd April, 2017.
29. It was PW4’s further evidence that after the burial, he was summoned by officers from the Criminal Investigations Department to Kisumu Central Police Station, where he was able to identify several items that had been recovered. These included a suitcase he had left at his mother’s house containing personal documents such as title deeds, marriage certificate, copies of sale agreements and school certificates. He also identified a K-Gas meko cylinder, which he stated was unique as it lacked a knob, as well as two iron boxes and a Go-TV decoder. He confirmed that all the identified items had been in the custody of the deceased prior to the incident, and that he recorded a statement with the police.
30. During cross-examination, PW4 stated that he did not know the Appellant prior to seeing him in court during plea taking. He testified that his mother had seven children and named them. He further stated that the title deed he identified related to land he had purchased in Mamboleo.
31. PW4 explained that upon receiving the news of his mother’s death, he first contacted his sister Beatrice, who was in Kisumu, and then his brother Alphonse in Nairobi, and that he did not know the whereabouts of his brother Paul at the time, though he saw him two days later.
32. PW4 also testified that his father had died in 2002 leaving a will, though no administrator had been appointed, and that there had been no disputes among the siblings during their mother’s lifetime. However, he acknowledged the existence of subsequent disputes among siblings, including pending criminal cases involving allegations of disturbance and malicious damage, which he attributed to disagreements over property.
33. PW4 also stated that he had heard that the Appellant had previously resided in one of the deceased’s rental houses and that his wife used to perform household chores for the deceased, while the Appellant also ran errands for her.
34. In re-examination, PW4 clarified that he began constructing his house in 2006 while his mother was still alive and that there had been no disputes at that time. He stated that the disputes among siblings arose after the incident forming the subject of the case and maintained that those disputes were unrelated to the case before the court.
35. In his testimony before the trial court, PW5, Alphonse Chore, testified that he was an ICT specialist residing in Nairobi and working with the Centre for Tech Democracy. He stated that on 10th April, 2016, while at his home in Nairobi, he received a telephone call from his brother, Clifford, informing him that their mother, Lorna Chore, had been killed. He further testified that he was informed that PW1, Clifford’s wife, had relayed the information to him while he was in Nakuru. PW5 stated that upon receipt of the news, he and other family members travelled to Kisumu overnight, arriving at about 5.00 a.m.
36. PW5 testified that upon arrival in Kisumu, they proceeded to the home of the deceased and found that the body had already been removed to the mortuary and that people had dispersed. He stated that he was accompanied by Clifford, and that other relatives later joined them. He further testified that upon entering the house, they observed that several items were missing, including a Sony television set and a decoder from the sitting room. He also observed signs of disturbance, including a hanging aerial cable and indications suggesting a struggle within the house, which led him to suspect that a robbery may have occurred.
37. PW5 further testified that they were escorted by Police Constable Wambua to Jaramogi Oginga Odinga Teaching and Referral Hospital, where they identified the body of the deceased. He stated that a post-mortem examination was conducted and thereafter the body was transferred to Star Mortuary. He further testified that later, officers from the Directorate of Criminal Investigations contacted him and requested him to identify recovered items, which he subsequently did.
38. PW5 stated that among the items he identified were a black suitcase containing personal effects, a 6kg K-Gas cylinder with a broken burner, a Nokia 1616 mobile phone belonging to his mother, a Go-TV decoder which he had purchased for her, a receipt for the decoder, a Ramtons iron box, a wooden item, a metallic rod and a blood-stained panga recovered inside the suitcase. He also testified that he was informed that a suspect had been arrested in possession of the items, whom he identified in custody as the Appellant, although he did not know him prior to the incident. He added that he had previously spoken to a person identifying himself as “Eric” when assisting with installation of the decoder.
39. During cross-examination, PW5 stated that he recorded his statement with the police and confirmed it bore his signature. He testified that a neighbour, one Alice, informed him that the Appellant had been seen at the scene, although he did not know the source of the information. He stated that he did not know the motive for the attack but believed it was a robbery due to signs of struggle and missing items. He further confirmed that he was in Nairobi at the time of the incident and denied knowledge of any arrangement by which the stolen items were taken to the Appellant’s house or under his direction.
40. PW5 further stated that he understood the accused had previously been an errand person for the deceased and a tenant, though he clarified that he did not personally know him.
41. In re-examination, he reiterated that the accused had been an errand person for the deceased and also a tenant. He also acknowledged that investigations involved various forensic processes and stated that he had no knowledge of the specific motive for the attack.
42. The prosecution called Sergeant Ignasias Okinda (PW6), who testified and told the trial court that he was an officer attached to the Directorate of Criminal Investigations (DCI) Kuresoi, where he was involved in investigations. He stated that on 20th April, 2016, while in the office, he was requested by a colleague to act on analysis arising from call data obtained from Safaricom in relation to the murder of a woman in Nyalenda, whose mobile phone had reportedly been used a few days after her death.
43. PW6 testified that upon review of the call data records, he analysed three sets of data relating to mobile numbers associated with the deceased, a suspect and another user. He stated that the analysis revealed that the deceased’s mobile phone had been used after the murder, and that the IMEI data and call records pointed to a number registered in the name of one Linet Achieng.
44. PW6 further stated that investigations led them to Oyugis, where the subscriber was traced, and it was confirmed that she was related to the Appellant, who had reportedly left his home the same day.
45. PW6 testified that further tracking of the mobile signal placed the phone within Nyalenda in Kisumu. He stated that with the assistance of a person familiar with the suspect, they were led to the Appellant’s residence, where they found him asleep. He testified that they woke him, introduced themselves, and conducted a search of the premises, during which several items were recovered and an inventory prepared on 22nd April, 2016.
46. PW6 further testified that among the recovered items was a Nokia mobile phone bearing IMEI number 354836041951608, which belonged to the deceased. He also testified that a SIM card registered to Linet Achieng, a damaged phone, certificates of title in the name of Michael Ogola, a marriage certificate, a 6kg gas cylinder, a GoTV decoder, spectacles, two iron boxes, assorted clothing and documents, a machete with blood stains, a white metal rod and a black object suspected to have been used in the commission of the offence were recovered.
47. PW6 stated that the machete and blood samples were forwarded to the Government Chemist for analysis, and the report established that the blood stains on the machete matched the DNA profile of the deceased. He further stated that the post-mortem report indicated that the cause of death was severe haemorrhage due to severe soft tissue injuries. He testified that the Appellant was unable to give a satisfactory explanation for the recovered items and that investigations established his involvement in the offence.
48. PW6 further testified that letters requesting call data records were dated 19th April, 2016 and related to mobile numbers 0720****58 and 0725****95, and that the IMEI analysis request was also made. He produced the call data request forms and call data records as exhibits, together with an inventory marked as having been signed by the Appellant on 22nd April, 2016. He identified the recovered exhibits, including the machete, rods, GoTV decoder, gas cylinder, suitcase, iron boxes, bedding, documents and mobile phones, which he produced in evidence.
49. PW6 further testified that although the Nokia phone belonging to the deceased was not physically produced in court during the retrial, it had been previously produced and recorded in the inventory and court records. He stated that it was unclear whether the phone remained in the court registry or had been misplaced in custody as it had been produced as an exhibit in another case. He also testified that the Appellant signed the inventory upon recovery of the items, which was witnessed by other officers.
50. During cross-examination, PW6 stated that the Appellant had been working for the deceased as a shamba boy and caretaker within her homestead at Nyalenda. He testified that he was not aware of any family disputes involving the deceased and her children and could not recall the exact layout of the homestead. He further stated that, according to his understanding, the deceased was alone at the time of the incident, as other family members had travelled for a funeral.
51. PW6 further testified that the body of the deceased was found near the gate of the deceased’s house on the material night of 10th April, 2016 at about 10.30 p.m., although he stated that the exact time of death could only be determined by the pathologist. He opined that the incident likely occurred between 9th and 10th April, 2016.
52. In re-examination, PW6 stated that the deceased’s mobile phone was not brought to court during the retrial as it was either retained in the court registry or misplaced after the earlier proceedings. He further testified that through Safaricom data analysis, the phone was traced to Oyugis and later to Nyalenda, where the Appellant was arrested. He stated that items belonging to the deceased were recovered from the Appellant during the investigations.
53. In his testimony before the trial court, PW7, Corporal David Barno, testified that he was based in Kwale County. He stated that on 1st April, 2016, while on duty at Kisumu Police Station where he then worked, he received a report through the radio control room from officers at Nyalenda Police Post regarding an incident of murder. He proceeded to the scene of crime together with his colleague, Police Constable Ekisa.
54. PW7 testified that upon arrival at the homestead of the deceased at Obuod, Nyalenda, they met PW2, Arthur Otieno, who had reported the incident. He stated that they found the body of the deceased at the gate of the compound. Upon examination, they observed that the deceased had deep cuts on the head and back. He further testified that the scenes of crime personnel took photographs of the scene.
55. PW7 stated that they conducted a search of the compound but did not recover any immediate items of evidential value at the scene. He testified that all doors to the house were open and household items were scattered, but no person was found within the premises. He further stated that they concluded the body was likely to have been at the scene for approximately two days and that decomposition had already begun.
56. PW7 testified that the body was removed and taken to Jaramogi Oginga Odinga Teaching and Referral Hospital Mortuary for preservation. He further stated that blood samples were collected and preserved for forensic examination. He produced an exhibit memo form and stated that he could not specifically recall when he recorded his statement.
57. During cross-examination, PW7 stated that he did not know the whereabouts of the Appellant at the time of the incident but understood that he had been missing. He further stated that he received information from PW2 that the Appellant used to reside within the deceased’s compound and would assist her in the homestead. He testified that he did not prepare an inventory but added that the deceased’s family confirmed that there were some missing items. He further stated that the scene was preserved and reiterated that the Appellant was said to have been living within the compound as a house help.
58. PW7 further stated that the death had occurred approximately one to two days before the body was discovered, although he indicated that such estimation could be confirmed by the investigating officer.
59. In re-examination, PW7 clarified that the Appellant was said to have lived within the compound in a separate room as a house help, and confirmed that he was not the investigating officer. He also stated that the blood sample was extracted by the doctor from the deceased.
60. PW8, Martin Wekesa, testified that he was an officer attached to the Directorate of Criminal Investigations (DCI), serving in the Criminal Intelligence Unit, with duties involving the collection and dissemination of intelligence to relevant authorities. He stated that in the year 2016 he was seconded to Safaricom as a liaison officer, where his work entailed analysing telecommunications data and M-Pesa transaction records.
61. PW8 testified that on 19th April, 2016, his office received a request from the DCI Kisumu seeking call data records for mobile numbers 0725****94, 0720****58 and 0705****90. He stated that the request was contained in a letter dated 19th April, 2016, which he produced in evidence.
62. The officer further testified that another request was received seeking data relating to an IMEI number 354836041951600 and call data records for the period between 1st April, 2016 and 18th April, 2016, including subscriber details and IMEI history.
63. PW8 testified that upon receipt of the requests, he extracted the relevant data as required and prepared call data records and IMEI history reports. He stated that according to the records, one of the IMEI numbers was first used with mobile number 0725****94 on 21st April, 2016 at 2:06 p.m. He further testified that the registration details for mobile number 0720****58 indicated that it was registered in the name of Lorna Otaro Jure, while another number was registered in the name of Linet Achieng using identification details captured in the system.
64. PW8 further testified that he prepared the necessary certificates under Section 65 as read with Section 106 of the Evidence Act to authenticate the electronic records produced. He also produced a letter of authority permitting him to release the requested information, together with the relevant call data records and IMEI analysis reports, which he produced as exhibits before the court.
65. During cross-examination, PW8 stated that he did not produce any physical mobile phone in court, explaining that his role was limited to data analysis and retrieval and that he was not supplied with the physical devices.
66. In re-examination, PW8 clarified that his work was strictly confined to analysing telecommunications data provided to him and that he did not handle or examine the physical phones in question.
67. In his testimony before the trial court, PW9, Richard Mutai, testified that he was a Government Analyst based in Kisumu with 27 years of experience. He stated that he held a degree in forensic science from Egerton University and was gazetted on 31st May, 2016.
68. PW9 further testified that he received a police exhibit memo from CID Kisumu in relation to the case, referencing the Appellant Erick Omondi and the deceased Lorna Grace, for purposes of DNA analysis.
69. PW9 testified that he received blood samples from the deceased and a blood-stained panga for forensic examination. He stated that the exhibits were submitted to his laboratory for determination of DNA genetic relationship and analysis of the blood stains.
70. PW9 further testified that upon examination, the blood stains on the panga were found to be of human origin and that DNA profiling established that the blood on the panga matched the DNA profile of the deceased, Lorna Grace.
71. He stated that he prepared and signed a report detailing his findings, which he produced in evidence.
72. The last prosecution witness (PW10) was Dr. Eugene Ochieng, who testified that he was a medical doctor at Jaramogi Oginga Odinga Teaching and Referral Hospital. He stated that the post-mortem examination in respect of the deceased, Lorna Chore, was conducted on 14th April, 2016 at about 2.00 p.m. by his colleague, who was away in Nairobi for studies.
73. PW10 testified that the body of the deceased was found at her compound in Nyalenda “B” on 10th April, 2016 at midday and was identified by PW1, Prisca Anyango, the daughter-in-law. He stated that the deceased was an elderly African woman of approximately 1.65 metr
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