[1] Allan Ouma Abuto, the accused in this matter, was arraigned before the Court on 25th September 2024, having been arrested on allegations that he had murdered his brother, Gordon Otieno Weke Abuto (the deceased). As per the Information dated 6th September 2024, he was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Chapter 63 of the Laws of Kenya. The particulars alleged that 4th day of July 2024, at Oridi Village in North Kanyikela Location in Ndhiwa Sub-County within Homa Bay County, he murdered Gordon Otieno Weke Abuto.
[2] The accused denied those allegations; and in proof thereof, the Prosecution called evidence from 6 witnesses. The accused was represented by Ms. Kimberly; and the summary of their evidence is as hereunder:
[3] Harold Ochieng (PW1), a nephew to both the accused and the deceased testified that, at about 4.00 p.m. on the 3rd July 2024, he was on his way to Ndhiwa shopping centre to charge his cell phone. He was then staying with his grandmother, Rachael Anyango Abuto (PW4) (also referred to herein as Rael Anyango Abuto). While on his way, he received a telephone call from Nicholas Odundo (PW2), one of the masons who were renovating his grandmother’s house. PW2 told him to return home as there was a problem at home.
[4] PW1 further told the Court that, on returning home, he found his uncle, the accused person herein, carrying a knife with which he wanted to stab PW4. PW1 further stated that on seeing that, he got hold of the accused with a view of wresting the knife from him. He explained that in that process, the knife dropped to the ground and the accused then picked a stick and started chasing him (PW1) with it around the compound. The knife was picked up by PW4 to avert a disaster. PW1 added that he ran away and went to the shopping centre to charge his phone.
[5] It was further the evidence of PW1 that, on the following day, the 4th July 2024, at about 9.30 a.m., he was at his grandfather’s home when he heard the deceased calling the accused. He heard the deceased asking the accused to avail himself for a discussion about the previous day’s incident. He further stated that the accused declined the invitation and instead started abusing the deceased. The deceased was offended and he slapped the accused on the left cheek. Immediately he heard the deceased screaming saying the accused had stabbed him. Both fell down on the ground.
[6] PW1 further stated that he moved closer to them and separated the accused from the deceased. He testified that, as he moved closer, he saw the accused stab the deceased severally on the chest and abdomen; and that when he intervened, the accused turned against him and told him that he would kill all of them. He received support from the two masons and the knife was taken away from the accused. The accused escaped from the scene.
[7] PW1 concluded his evidence by stating that they took the deceased to St. Camillus Hospital for treatment but that he died a few hours later while undergoing treatment. PW1 identified the knife that the accused used to stab the deceased. It was produced herein by the investigating officer, PC Kosgei as the Prosecution’s Exhibit 1.
[8] Nicholas Okoth Ogol (PW2) testified that, on the 3rd July 2024, he was at the home of Mama Rael. He was building a house for Mama Rael (PW4) with another mason known as Paul Otieno (PW3). He stated that he heard some commotion and on checking, he found the accused carrying a panga with which he wanted to cut PW4 but they intervened and disarmed the accused.
[9] Regarding the incident of 4th July 2024, PW2 stated that, while busy working at the home of Mama Rael, he heard the deceased shouting and saying “Kujeni! Kujeni! He further stated that on going to the scene he found the deceased lying on the ground with several stab wounds. He also mentioned that he saw the accused with a knife in his hand. He proceeded and took away the knife from the accused. After that they took the deceased to hospital at St. Camillus with PW1. He later learnt that the deceased had succumbed to his injuries. PW2 also identified the knife before the Court.
[10] Paul Otieno (PW3) confirmed that he is a mason and that he was at the home of PW4 on the 4th July 2024 with PW2; and that they were building a house for PW3 when he heard the deceased screaming for help. He confirmed that they both proceeded to the scene and found the deceased lying on the ground. He added that the deceased was bleeding profusely and his clothes were drenched in blood. He could tell that the deceased had sustained stab wounds on the left arm as well as left side of his abdomen.
[11] PW3 also stated that he found the accused standing near the deceased with a knife in his hand. It was the testimony of PW3 that, after disarming the accused, they arranged for the deceased to be taken to hospital by PW1 and PW2. He identified the knife that he saw the accused with and added that when he went back to PW4’s home for work the following day, he got to learn that the deceased had died.
[12] PW4 confirmed to the Court that the accused is her third born son; and that on the 3rd July 2024, she was at home at about 3.00 p.m. when the accused came home and asked for some food to eat. She stated that after serving him some food, the accused started complaining as he was eating that the food was too little. PW4 told the Court that she decided to bring out the food in a sufuria for the accused to serve himself to his satisfaction.
[13] PW4 further testified that, as he was eating, the accused continued to grumble. In the process he saw a panga near the rack where she had put her utensils. He took it and threatened to cut her with it but the masons, who were then constructing a house for her, intervened. They took the panga from the accused. The accused then took a knife from the rack and threatened to stab her with it. PW4 further stated that, at about that time her grandson, PW1 arrived and started struggling with the accused over the knife. In the process the accused dropped the knife. She took it and kept it away.
[14] PW4 further testified that the accused continued with his quarrelsome attitude, took a piece of wood and started chasing PW1 around the homestead, but PW1 managed to escape his wrath.
[15] Regarding the events of the 4th July 2024, PW4 testified that she left home at about 7.00 a.m. She left PW1 at home with his uncle, Gordon Weke (the deceased) who had come home the previous evening. When she returned at about 10.00 a.m. she was informed that the accused had stabbed the deceased; and that he had been taken to St. Camillus Hospital for treatment. She went to the hospital and was told the deceased was still being attended to. She decided to go back to Ndhiwa and reported the incident at Ndhiwa Police Station. In the course of the day she got to learn that the deceased had died.
[16] The police officers visited her home the following day and took away the bloodstained knife that PW2 had taken from the accused. She explained that the knife was handed over to her by PW2 after they had reported the incident to the Police. She later saw the body of the deceased and noted that it had several stab wounds, including a stab wound on the left side of the deceased’s abdomen.
[17] Olivier Akoth Abuto (PW5), a resident of Migori Town is the mother of PW1 and a sibling to both the accused and the deceased. She testified that on the 3rd July 2024 at about 4.00 p.m. she received a telephone call from PW1 informing her that the accused was quarreling with their mother over food. She discussed the matter with the deceased, who was also working in Migori at the time. She prevailed upon the deceased to go home immediately with a view of finding an amicable solution to the problem; and he agreed. The following day, she received information from one of her sisters that the accused had stabbed the deceased to death. She travelled home on the 5th July 2024 and was one of the people who identified the body of Gordon Weke, for purposes of post-mortem examination. She stated that she noted that the body had several stab wounds.
[18] The Prosecution’s last witness was PC Kipchumba Kosgei (PW6) of Ndhiwa Police Station. He was the investigating officer in this case. He testified that on the 5th July 2024 while on duty at Ndhiwa Police Station, this case was assigned to him by the DCIO for investigation. He arranged for a scene visit in the company of other officers and there, at the home of PW4, he was given a kitchen knife with a blue handle by PW4. He drew a sketch plan of PW4’s homestead and stated that, from their observations, going by the traces of blood at the scene, the incident occurred about 6 paces from the accused’s house.
[19] PW6 further told the Court that after recording the statements of the witnesses, he arranged for the postmortem examination to be conducted on the body of the deceased. The cause of death was ascertained by the doctor to be a penetrating injury that affected the left lung of the deceased and excessive bleeding. The postmortem form was also handed over to him. He produced it along with the knife and sketch plan as exhibits in this case. PW6 further stated that the accused disappeared from home and that it was not until 10th August 2024 that he was notified that he had been apprehended at Rodi Town by members of the public. He rearrested him and caused him to be charged accordingly.
[20] Upon being placed on his defence, the accused denied having murdered the deceased. He conceded that his mother’s house was being constructed on the 3rd July 2024; and that he asked the masons for some nails to use in his bathroom. He told the Court that he was eating at the time; and that his mother was not happy about his request for nails; and therefore a disagreement arose between him and his mother over the issue. The accused further stated that his niece emerged as he was eating and took away the food and asked him why he was quarreling with his own mother. According to him the masons intervened and he peacefully left home and spent the night away from home.
[21] In respect of the following day, the accused testified that he returned home in the morning and saw his brother Gordon (the deceased). He stated that the deceased called him but he declined to respond. He added that, as he approached his door, the deceased caught up with him and slapped him, thereby causing him to fall down from the impact. He mentioned that he is physically disabled; and that while lying on the ground, he saw the deceased produce a knife from his pocket. The next thing he saw was that the deceased fell down and started bleeding; and that the deceased quickly got up and went to their mother’s house.
[22] In cross-examination, the accused contended that the incident of 3rd July 2024 was instigated by PW1, while the incident of 4th July 2024 was started by the deceased. According to him, the relationship between him and his mother was peaceful. He branded the prosecution witnesses who blamed him for death of his brother as liars. He insisted that it was the deceased who went and slapped him outside his house as he approached his door.
[23] I have given careful thought to the particulars set out in the Information Sheet as well as the evidence presented in support thereof. I have, likewise, given consideration to the sworn statement of defence given by the accused. The charge was laid under Section 203 of the Penal Code, Chapter 63 of the Laws of Kenya, which provides that:
“any person who, of malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.”
[24] Thus, the key elements of the charge that the Prosecution needed to prove are: the fact of death; that the death was caused by the accused through an unlawful act; and malice aforethought on the part of the accused person. In Republic v Andrew Omwenga [2009] eKLR, the provision was given consideration as follows:
"...for an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or omission. There are therefore three ingredients of murder 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 that the accused had malice aforethought."
[25] There is no dispute that the deceased, Gordon Otieno Weke Abuto, died on the 4th July 2024 from stab wounds. The first witnesses to be attracted to the scene of the incident by the deceased’s painful screams were PW1, PW2 and PW3. They found the deceased lying down on the ground drenched in blood.
[26] The deceased was rushed to St. Camillus Hospital for treatment but succumbed while undergoing treatment. Indeed, the Postmortem Report produced by PW6 marked the Prosecution’s Exhibit P3 gives the date and time of the deceased death as 4th July 2024 at 12.45 pm. It also shows that the body had several cuts, including the chin, right temporal region, left shoulder, right arm, left side of the chest and left upper quadrant region of the abdomen. The doctor also observed that there was a deep penetrating left lung injury on the upper lobe measuring 4 cm deep with massive hemothorax on the left side.
[27] Consequently, the doctor formed the opinion that the cause of death was internal haemorrhage secondary to deep penetrating left lung injury following assault. That evidence being entirely uncontroverted, does prove beyond reasonable doubt, not only that the deceased died on 4th July 2024; but also, that he died as a direct result of the stab wounds suffered by him on the 4th July 2024.
[28] Having so found, the next issue to resolve is the question whether the Prosecution proved beyond reasonable doubt that the act causing the death of the deceased is attributable to the accused; and whether in so acting, he had the requisite malice aforethought. In this regard, there is direct evidence of an eye witness who saw the accused stab the deceased. That witness was PW1, a nephew to both the deceased and the accused. Regarding the events of 4th July 2024 PW1 stated that he heard the deceased asking the accused to avail himself for a discussion about the previous day’s incident; and that the accused declined the invitation and instead started abusing the deceased. The deceased was offended and he slapped the accused on the left cheek. Immediately he heard the deceased screaming saying the accused had stabbed him. Both fell down to the ground. He further testified that as he moved closer, he saw the accused stab the deceased severally on the chest and abdomen.
[29] That evidence was corroborated by the evidence of PW2 and PW3. The outcome of the postmortem examination also shows that the deceased sustained a deep penetrating injuries in addition external injuries on the face, left shoulder, right arm and left side of the chest. The contention by the accused that it was the deceased who was armed with a knife and that he may have stabbed himself accidentally cannot be true and is for rejection given the numerous injuries on the deceased body. Moreover, PW1 was categorical that it was the accused that had the upper hand, having overpowered the deceased and pinned him to the ground.
[30] The incident occurred in broad daylight outside the house of the accused. There can be no doubt, therefore, about the correct identity of the accused. The 3 witnesses also mentioned that they had the deceased say “Allan you have stabbed me” Section 33 of the Evidence Act provides that:
Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases—
- 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;
[31] In respect of the above provision the Court of Appeal had the following to say in Philip Nzaka Watu v Republic [2016] eKLR:
“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 …”
[32] On whether the Accused had malice aforethought when he committed the unlawful act, it is the law that what needs to be proved by the Prosecution is any of the circumstances set out in Section 206 of the Penal Code. That provision states thus:
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 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.
[33] Accordingly, in the case Nzuki v Republic [1993] KLR 171 the Court of Appeal held that:
"...murder is the unlawful killing of a human being with malice aforethought. 'malice aforethought' is a term of art and is either an express intention to kill, as could be inferred when a person threatens another and proceeds to produce a lethal weapon and uses it on his victim; or implied, where, by a voluntary act, a person intended to cause grievous bodily harm to his victim and the victim died as the result...Before an act can be murder, it must be aimed at someone and in addition it must be an act committed with the following intentions, the test of which is always subjective to the actual accused:
(i) The intention to cause death;
(ii) The intention to cause grievous bodily harm;
(iii)Where accused knows that there is a serious risk that death or grievous bodily harm will ensue from these acts, and commits those acts deliberately and without lawful excuse the intention to expose a potential victim to that risk as the result of those acts.
It does not matter in such circumstances whether the accused desires those consequences to ensue or not and in one of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed."
[34] The reason the deceased went home on the 3rd July 2024 was well explained by PW1 and PW5. He went home to find out the circumstances under which the accused had threatened to harm their mother on the 3rd July 2024. PW1 heard the deceased call the accused for a discussion shortly before the incident. The accused himself conceded that he ignored the invitation by the deceased to avail himself for a discussion. PW1 further stated that, when he tried to intervene and separate the two brothers, the accused declared, “Today I will kill you all”. This utterance came after he had spent the night away from home and had therefore had time to reflect on the incident of 3rd July 2024. The knife that he had used to threaten his mother had been taken away and kept out of his reach. It is telling therefore that he was walking around with a kitchen knife that morning.
[35] It is also noteworthy that he stabbed the deceased severally. There being no justification at all for the stabbing of the deceased, there can be no doubt the act was unlawful. The intensity of the attack cannot be justified in the manner proposed by the accused, even if he was provoked when the deceased slapped him. Thus, in the case of Daniel Muthee v Republic [2007] eKLR it was held that:
“When the appellant set upon the deceased and cut her with a panga several times and then proceeded to cut the young Allan in similar manner, he must have known that the act of cutting the deceased persons on the head with a sharp instrument would cause death or grievous harm to the victims. We are therefore satisfied that malice aforethought was established in terms of Section 206(b) of the Penal Code.”
[36] Thus, by stabbing the deceased as he did, the accused certainly knew or must have known that there was a risk of death or grievous harm ensuing from his act. It is therefore my finding that all the ingredients of the Charge of murder as envisaged by Section 203 of the Penal Code have been proved against the accused beyond reasonable doubt. I accordingly find him guilty and convict him of the offence of murder as charged.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 14TH DAY OF MAY, 2025