The accused persons CALLEB OCHIENG OMBEGO and EDWIN OMONDI ACHOLA were jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
Particulars are that on the 19th Day of May 2024 at Nyasare village Wasweta 1 Sub-Location Suna East Sub-County within Migori County. In the Republic of Kenya jointly with others not before court murdered murdered Sammy Chacha.
The prosecution called 6 witnesses to support its case that accused persons committed the murder.
The accused persons on their sworn defence denied having committed the murder.
PW1 testified that 19th May 2019 she was sleeping at 3.00am when she was woken up by screams from a person who was pleading to be left alone and asking why he was being beaten. PW1 said she did not hear any response to the distress call. That after sometime everything became quiet and she did not go go out as she was hypertensive and her pressure rose.
PW1 said that the following day she was told by passers-by that her neighbor had been killed. PW1 said she went to the scene which is one home away from hers and found the wife of the deceased crying. She said the window and door to PW2’s house was missing. PW1 also said the accused persons are also her neighbors. It was her further testimony that she did not know how many people were beating the deceased as she did not go out of her house on the material night. PW1 said that PW2 had electricity in her house.
PW2 testified that on 19th May 2024 at 3.00am she was sleeping in the house with the deceased when she heard the door being hit with a panga. She was then ordered to open the door by a voice she recognized as belonging to Caleb A1 herein. That she started screaming but A1 again told her that if she could not open he was going to break the window. That A1 took a stone and used it to hitthe wooden window and broke it. PW2 raised alarm but Caleb told her it does not matter how much she screamed as he was going to kill anyone who intervened. That it was after the window was broken that A2 joined and told A1 to leave PW2 to open the door on her own. That A1 started cutting the door and it took long to cut as it was heavy. That the children who were sleeping in the kitchen were woken up and they started crying. That A1 told the children that they had warned their mother to leave the land and she refused and she was the one he was looking for. That A2 tried to restrain A1 but he insisted and continued kicking the door and it gave in. That when the door fell the deceased ran out of the house and accused persons followed him while A1 was armed with a panga. When the accused persons followed the deceased PW2 got a chance and she escaped with her children to the police station where she reported the attack and 2 police officers accompanied her back to the scene. She said that as the deceased ran towards the lower part of the home she used opposite route to go to the station.
PW2 testified further that on arrival to the scene she found the deceased in the house lying on the door to the bedroom with a rugsack placed on his chest and his legs were tied. She said that she found some items in the house stolen and the house was ransacked and items scattered all over. She said the deceased was still alive and he said” mzee ameniua. Nisaidie na maji nikunywe.” PW2 said that A1 is also known as Mzee.
That when PW2 returned to the scene with police A1 again returned to scene in company of Esther Achola, Omondi Ouma,Baba Junior, Mama Felix, Soldier and a woman neighbor among others while making noise and saying that she had to vacate or she would be evicted forcefully. She said baba Junior used his panga to threaten her and said she had to leave.
PW2 was advised by police to take the deceased to hospital. That as they went to hospital and even upon arrival at the hospital the deceased was still talking and saying “ mzee ameniua.“ That the deceased died while undergoing treatment. She informed the police and her neighbors that the deceased had died and Police went to hospital and accompanied her back home where A1 was arrested and escorted to the Police Station. PW2 said that A2 was arrested from his sister’s shop and also taken to the station. She said the reason for attack is that A1 wanted her to vacate the land and it was not true that she had harbored thieves. She said the deceased did not leave the house on the material night.
In cross examination PW2 said that on the material night she was with the deceased and her 2 children in the main house. She said she switched on lights when A1 started hitting the door using a panga. She said that she heard and recognized the 1st accused person outside her house and that it was Caleb who was threatening to break into the house. She said she was able to see the accused persons pursue the deceased with aid of light from her house.
PW2 said the deceased used to sell charcoal and also did casual jobs. She said A1 did not sell land to her. She said she bought and occupied land since 2008 and her husband died in 2009. She said she no-longer stayed in the subject piece of land. PW2 also said that A1 helped put the deceased in the police vehicle and that as they left for the hospital A2 was standing armed with a panga at his sister’s shop. She also said that A1 told the police they did not want her on the land where she was residing and that police should go with her for good.
PW2 said that there is no time that drugs were recovered in her compound.
In re-examination PW2 said that when Caleb hit the window with a stone the hinges gave in and the stone fell inside the bedroom. She said she recognized the voice of both accused persons on the material night and she saw A1 when the door was broken.
PW3 Dr. Range examined the body of the deceased and established cause of death as severe anaemia secondary to assault. He said the deceased had multiple wounds and bruises on the head, chest, abdomen and upper and lower limbs. There was fracture of lower limb between the knee and heel. PW3 also found the spleen was raptured and there was blood clot in the abdomen. The deceased also had swollen left orbital eye. He said in cross examination that the injuries were inflicted with blunt object. PW3 also said that the injury on the left lower costal margin must have led to the rapture of the spleen
PW4 CPL John Ngeno testified that he was attached at Migori Police Station at the time of the murder herein and on 19th May 2024 at 03.00hours while he was Duty Officer he received a report from PW2 to the effect that she was sleeping with the deceased and her children when they were attacked by 2 people known to her and who were armed with pangas. That the 2 people damaged the door and window to her house and gained access upon which they confronted PW2 and the deceased and started struggling. As the deceased was struggling with the assailants PW2 managed to slip away and escaped. That when PW2 led them back to the scene they found the deceased lying on the floor with injuries on the face and right knee and he was crying for help.
PW4 said that outside the house were pieces of timber for the broken door and window and they were collected as exhibits.
That while police were at scene A1 arrived armed with pangas in company of 7 youth and demanded that PW2 be evicted as she was harboring a criminal and drug dealer. PW4 was shown a place in PW2’s homestead where she was storing drugs. That a 20 liter jerry-can containing bhang was found buried underground and it was taken as exhibit. PW4 said the accused persons and the crowd were very hostile on the ground and he calmed them down and explained that they should have reported to Chief or police. PW4 took the deceased to hospital and left him being treated but after about 2 hours he learnt he had succumbed to the injuries. Later PM was conducted and cause of death established.
A1 was arrested from his house and charged with the offence of murder. He said that the 1st time they went to scene A1 was one of the youth who were armed with pangas and they said in unison that they wanted PW2 and the deceased evicted from the area. PW4 said that when they found the deceased lying down in the house he was crying for help.
PW5 Nicole Mitchele Adhiambo the daughter of PW2 testified that she knew 2nd Accused who is known as Babu/ mzee as a friend as they stay in the same village. PW5 also said she knew the 1st Accused as they used to buy from their shop. She testified that on 19th May 2024 at night she was sleeping in the kitchen when she heard noises outside and there was a person ordering that the main door be opened. That when she opened the kitchen door she met with Caleb the 1st Accused person herein and he asked, ‘Mitchell nimekugusa?’ and she responded in the negative. That Caleb again asked her,’Mitchell nimekufanyia chochote?’ and she again answered in the negative. That A1 then told her to tell her mother to open the main house. She said that at that point A2 arrived and asked A1 what was happening and A1 told him he wanted PW5’s mother to open the door. PW5 said that her mother was in the house with Sammy. She said both Accused persons were armed with pangas. That A1 kicked the door to the main house and it got broken and Sammy got out and started running. That the accused persons pursued him and caught up with him at the neighbor’s home. That she heard accused persons tell Sammy to let go of the tree or they would cut his hands with the panga. She said that when the accused persons pursued Sammy her mother, herself and her siblings escaped and went to the police station where her mother reported and 3 Police Officers accompanied them back home in the station vehicle and found Sammy had been beaten and was lying on the floor with injuries on the left eye, hand and legs. He said Sammy had also been tied on the legs with a rope and he said, ‘mzee ameniua’ meaning the 1st Accused. That while they were at home with the police A1 came back in a group of people including Esther, Ojombi, baba Junior and mama Felix. She said the people who accompanied A1 were neigbours at Nyasare village. She said the villagers were demanding that PW2 should leave the farm. That police ordered that Sammy be taken to hospital. PW5 said she remained at home as Sammy was taken to hospital where he died and she recorded a statement. PW5 said that when they returned from the Police station they found things stolen from the house,
In cross examination PW5 said that the kitchen to the main house was very close. She said that there were 2 windows to the main house and the one in the bedroom was wooden whereas the one in the sitting room was made of glass. She said she was outside when Caleb kicked the door. She said that accused persons were armed with a pangas. She said A2 arrived after Caleb and that A1 broke the window using a stone and thereafter broke the door. She said light from the kitchen lighted the main house and that when they went to the police station they left the lights on PW5 said that when they returned from the police station she saw Sammy had a cut on the right hand and left leg. That he also had injuries on the face and he said that Caleb had killed him. PW5 said that A2 was not among the people who returned to the scene with A1.
PW6 CPL Hellen Lochuch testified that on 19th May 2024 she was the duty officer when a murder incident was reported at the Migori Police Station. That PW4 CPL Ng’eno rushed to the scene and confirmed that the victim of assault succumbed to injuries. PW6 commenced investigations by recording statements from PW2 and 3 who were at home during the attack. She also recorded the statement of PW1 who heard someone crying at night outside her house and pleading to be left alone by the people who were beating him. PW6 said she visited the scene before recording statements. She said she recovered exhibits of the broken window and door only. She said the assailants were identified by PW2 & 3. She also produced the jerrycan that was recovered from the homestead of PW2 as Ex P1. She said she did not recover the murder weapons. The I/O said that CPL Ng’eno said he found irate members of public at the scene who alleged that PW2 was selling bhang and harboring criminals. PW6 said she did not investigate allegations of drugs.
When the accused persons were placed on their defense A1 gave sworn statement and said that when someone attempted to break into his shop on the material night he got out through the back door and raised alarm. That when they found the person hiding under a kiosk the person escaped and the neighbours who had responded to the alarm pursued and apprehended him. A1 said he was able to identify the person as Chacha and he did not pursue him as his wife was sick. That when he followed after 10 minutes he heard screams from Beatrice coming from the maize plantation. That he went round and found that the suspect had been arrested and was being beaten ad asked what he was doing in the shop. A1 said that the suspect was new in the area as PW2 used to live with different men. He said he was able to identify the people who were at the scene and beating and questioning the deceased. That the deceased led members of the public to PW2’s house where he said they were selling drugs and hiding stolen items at PW2’s sisters home. That he also led the crowd to a potato plantation where he uncovered bhang hidden under the potatoes in a jerrycan. That the deceased told them other items had been transported away and others were in the house. That members of public were divided into 2 and he was in the group that went to PW2’s sisters home but hey found she had moved out. He said that on return to PW2’s home and found police had arrived and they explained what had happened. That they were requested to put the suspect in the vehicle and they dispersed. That later at around 6.00am police went back to the scene and asked if he was among the people who beat Chacha and he was arrested and taken to the police station but he was not told why he was arrested. He said he did not break PW2’ window and door. He said the jerrycan produced in court was recovered from under the ground in PW2’s compound.
In cross examination A1 said that the deceased went to his shop at 2.30am. He said they remained at PW2’s home up to 5.00am. He confirmed that A2 was also at the scene but he did not wake him up. He said the neighbors who responded to his alarm are the ones who beat Chacha. He said he told them not to beat him but they overwhelmed him. He said he had no differences with PW2 & 5. He said A2 is also known as Babu.
A2 also gave sworn statement and said that he was sleeping inside his shop around midnight on 19th May 2024 when he heard a knock at the door to his shop and crying, ‘ mtu amenikosea.’ That after some few minutes he heard noise at PW2’s home as someone was demanding for the door to be opened. A2 said that PW2’s house was around 10m from his shop and he decided to go and see what was happening. That he found members of public armed with pangas and he could not do much as the crowd was big. That he went back to his shop from where he saw PW2 and her children pass as they went to the police station. That he entered the shop and went back to sleep. That after sometime he heard members of public say they should go to Eva’s place to remove bhang. That at 5.00am police vehicle went to the scene and PW2 was with them. That when police asked PW2 who wanted to evict her from her land she denied. He said he was arrested after 2 weeks and charged after he came from his mother’s funeral.
In cross examination A2 said that the people he saw at PW2’s place were armed with pangas. He said when he saw PW2 passing with her children on the way to the police station she did not have shoes. He confirmed that PW2 left the house after the deceased left the house and was pursued by the crowd. He said he recorded a statement with police but he did not say that he saw A1 break the door to PW2’s house. A2 said that it is A1 who woke him up and told him, ‘mtu amenikosea.’ He said that A1 was annoyed that Chacha had attempted to break into his shop. He said PW2 & 5 were at the scene as well as A1.
Upon close of defense case directions were taken for filing of submissions by the Accused persons Advocate.
Analysis and Determination
In consideration of the evidence of the 6 Prosecution witnesses and the 2 Accused persons sworn statements this court is to determine whether the prosecution has proved beyond reasonable doubt the ingredients of the offence of murder under Section 203 of the Penal Code.
Section 203 of the Penal Code under which the Accused person was charged provides as follows
“Any Person who of malice aforethought causes the death of another person, by an unlawful act or omission is guilty of murder”
In the case of Anthony Ndegwa Ngare Vs Republic 2014 Eklr, the elements of the offence of murder were stated to include;
i. That the deceased died
ii. The death was caused by an unlawful act or omission
iii. That the Accused person directly or indirectly participated in the commission of the alleged offence
iv. That there was malice aforethought
There is no dispute that Sammy Chacha died.
On the issue whether the said death was caused by an unlawful act or omission. Pw2 & 5 said that the when the deceased left the house and ran, A1 &2 pursued him and that is when they got the opportunity to escape and went to report to police. On return they found the deceased lying in the house with his legs tied and he had injuries. That the deceased was still alive and said that it is A1 who had killed him. PW5 said she heard A1 telling the deceased to let go of the tree he was holding or else he was going to cut his hands. PW4 CPL Ng’eno also said that by the time they arrived at the scene the deceased was still alive and talking and he said it is A1 who had killed him.
From the PM Report it was observed that the deceased had multiple wounds and bruises secondary to assault and that he died due to severe bleeding secondary to assault. From the injuries observed on the body of the deceased and the circumstances under which the deceased escaped from the house after the door and window had been broken it is obvious that the death was not accidental or self-inflicted but was caused by an unlawful act.
On whether the Accused persons participated directly or indirectly in the commission of the unlawful act, evidence of PW2 and PW5 is that the 1st Accused person went to their home and demanded that PW2 opens the door. When she did not open A1 used a stone to break the wooden window to the bedroom and also kicked the main door and it got broken and fell inside the house. When the door was broken the deceased left running and Accused persons pursued him and according to PW5 caught up with him at the neighbor’s home. PW5 heard A1 telling the deceased to let go of the tree he was holding and threatened to cut his hand if he did not comply. PW1 was in her house when she heard the deceased crying for help and asking why he was being beaten. When PW2 &5 returned to the home with police the deceased said it was A1 who had killed him. A2 also confirmed that it is A1 who went to wake him up while crying and saying that someone had wronged him and when he followed he found A1 and a crowd demanding that PW2 opens the door. He said he saw A1 at the scene together with PW2 & 5 during the incident and confirmed that the deceased ran from the house and he was pursued by members of the public including A1. PW2 confirmed that as she was going to the police station A2 was standing at his sister’s shop while armed with a panga and that evidence confirms the evidence of A2 that as the deceased was being pursued he did not accompany those who pursued him and it also confirms the evidence tendered by PW2 &5 as well as PW4 that the deceased said it is A1 who had killed him.
This court finds that the prosecution’s evidence has proved that it is the 1st Accused person jointly with others not before the court that inflicted the fatal injuries that led to the death of the accused person. The evidence of PW5 that A2 arrived at the scene and found the 1st Accused demanding that PW2 opens the door and the evidence that he was at the shop as the 1st Accused was pursuing the deceased exonerates the 2nd Accused from the commission of the offence of murder herein.
Whether the 1st Accused person was actuated with malice aforethought, Section 206 of the Penal Code defines malice aforethought as follows:
“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 do grievous harm to any person, whether that person is the person killed or not
b. Knowledge that the act or omission, causing death will probably cause the death or grievous harm to some person, whether that parson 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 wish that it may not be caused
c. An intent to commit a felony
d. An intention by act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
The 1st Accused alleged that someone attempted to break into his shop and that when he raised alarm the person ran but was pursued by members of public who apprehended him and beat him and that the deceased led them to the home of PW2 where he said they were selling bhang and also keeping stolen items. It is true as confirmed by PW4 that a jerrycan was recovered dug in the ground within PW2’s homestead and that it had bhang but allegations by A1 that someone attempted to break into his shop on the material night was only brought up during the 1st Accused person’s defense. He did not cross examine any of the witnesses concerning the issue of the deceased having attempted to break into his shop. The evidence of PW2 & 5 as well as A2 was that the deceased was inside PW2’s house when the 1st Accused demanded that the door be opened as he alleged that someone had wronged him. The evidence of the 1st Accused is an afterthought and is overwhelmed by the evidence of the prosecution witnesses as well as the evidence of A2 that he participated in the beating that inflicted fatal injuries on the deceased using pangas and other crude weapons. As said by PW4 there was no justifiable reason to inflict the fatal injuries on the deceased even if it was true that he was suspected of having committed an offence. In consideration of the fact that the 1st accused person together with others while armed with pangas and other crude weapons took the law into their hands instead of reporting the alleged offence to the police to take action, this court finds that he was possessed of malice aforethought in the commission of the offence.
In conclusion, this court finds that the Prosecution has proved the elements of the offence of murder against the 1st Accused person and he is found guilty and convicted accordingly. The 2nd Accused is found not guilty and is acquitted.
Dated, Signed and Delivered at Migori This 30th Day of June 2025
Particulars are that on the 19th Day of May 2024 at Nyasare village Wasweta 1 Sub-Location Suna East Sub-County within Migori County. In the Republic of Kenya jointly with others not before court murdered murdered Sammy Chacha.
The prosecution called 6 witnesses to support its case that accused persons committed the murder.
The accused persons on their sworn defence denied having committed the murder.
PW1 testified that 19th May 2019 she was sleeping at 3.00am when she was woken up by screams from a person who was pleading to be left alone and asking why he was being beaten. PW1 said she did not hear any response to the distress call. That after sometime everything became quiet and she did not go go out as she was hypertensive and her pressure rose.
PW1 said that the following day she was told by passers-by that her neighbor had been killed. PW1 said she went to the scene which is one home away from hers and found the wife of the deceased crying. She said the window and door to PW2’s house was missing. PW1 also said the accused persons are also her neighbors. It was her further testimony that she did not know how many people were beating the deceased as she did not go out of her house on the material night. PW1 said that PW2 had electricity in her house.
PW2 testified that on 19th May 2024 at 3.00am she was sleeping in the house with the deceased when she heard the door being hit with a panga. She was then ordered to open the door by a voice she recognized as belonging to Caleb A1 herein. That she started screaming but A1 again told her that if she could not open he was going to break the window. That A1 took a stone and used it to hitthe wooden window and broke it. PW2 raised alarm but Caleb told her it does not matter how much she screamed as he was going to kill anyone who intervened. That it was after the window was broken that A2 joined and told A1 to leave PW2 to open the door on her own. That A1 started cutting the door and it took long to cut as it was heavy. That the children who were sleeping in the kitchen were woken up and they started crying. That A1 told the children that they had warned their mother to leave the land and she refused and she was the one he was looking for. That A2 tried to restrain A1 but he insisted and continued kicking the door and it gave in. That when the door fell the deceased ran out of the house and accused persons followed him while A1 was armed with a panga. When the accused persons followed the deceased PW2 got a chance and she escaped with her children to the police station where she reported the attack and 2 police officers accompanied her back to the scene. She said that as the deceased ran towards the lower part of the home she used opposite route to go to the station.
PW2 testified further that on arrival to the scene she found the deceased in the house lying on the door to the bedroom with a rugsack placed on his chest and his legs were tied. She said that she found some items in the house stolen and the house was ransacked and items scattered all over. She said the deceased was still alive and he said” mzee ameniua. Nisaidie na maji nikunywe.” PW2 said that A1 is also known as Mzee.
That when PW2 returned to the scene with police A1 again returned to scene in company of Esther Achola, Omondi Ouma,Baba Junior, Mama Felix, Soldier and a woman neighbor among others while making noise and saying that she had to vacate or she would be evicted forcefully. She said baba Junior used his panga to threaten her and said she had to leave.
PW2 was advised by police to take the deceased to hospital. That as they went to hospital and even upon arrival at the hospital the deceased was still talking and saying “ mzee ameniua.“ That the deceased died while undergoing treatment. She informed the police and her neighbors that the deceased had died and Police went to hospital and accompanied her back home where A1 was arrested and escorted to the Police Station. PW2 said that A2 was arrested from his sister’s shop and also taken to the station. She said the reason for attack is that A1 wanted her to vacate the land and it was not true that she had harbored thieves. She said the deceased did not leave the house on the material night.
In cross examination PW2 said that on the material night she was with the deceased and her 2 children in the main house. She said she switched on lights when A1 started hitting the door using a panga. She said that she heard and recognized the 1st accused person outside her house and that it was Caleb who was threatening to break into the house. She said she was able to see the accused persons pursue the deceased with aid of light from her house.
PW2 said the deceased used to sell charcoal and also did casual jobs. She said A1 did not sell land to her. She said she bought and occupied land since 2008 and her husband died in 2009. She said she no-longer stayed in the subject piece of land. PW2 also said that A1 helped put the deceased in the police vehicle and that as they left for the hospital A2 was standing armed with a panga at his sister’s shop. She also said that A1 told the police they did not want her on the land where she was residing and that police should go with her for good.
PW2 said that there is no time that drugs were recovered in her compound.
In re-examination PW2 said that when Caleb hit the window with a stone the hinges gave in and the stone fell inside the bedroom. She said she recognized the voice of both accused persons on the material night and she saw A1 when the door was broken.
PW3 Dr. Range examined the body of the deceased and established cause of death as severe anaemia secondary to assault. He said the deceased had multiple wounds and bruises on the head, chest, abdomen and upper and lower limbs. There was fracture of lower limb between the knee and heel. PW3 also found the spleen was raptured and there was blood clot in the abdomen. The deceased also had swollen left orbital eye. He said in cross examination that the injuries were inflicted with blunt object. PW3 also said that the injury on the left lower costal margin must have led to the rapture of the spleen
PW4 CPL John Ngeno testified that he was attached at Migori Police Station at the time of the murder herein and on 19th May 2024 at 03.00hours while he was Duty Officer he received a report from PW2 to the effect that she was sleeping with the deceased and her children when they were attacked by 2 people known to her and who were armed with pangas. That the 2 people damaged the door and window to her house and gained access upon which they confronted PW2 and the deceased and started struggling. As the deceased was struggling with the assailants PW2 managed to slip away and escaped. That when PW2 led them back to the scene they found the deceased lying on the floor with injuries on the face and right knee and he was crying for help.
PW4 said that outside the house were pieces of timber for the broken door and window and they were collected as exhibits.
That while police were at scene A1 arrived armed with pangas in company of 7 youth and demanded that PW2 be evicted as she was harboring a criminal and drug dealer. PW4 was shown a place in PW2’s homestead where she was storing drugs. That a 20 liter jerry-can containing bhang was found buried underground and it was taken as exhibit. PW4 said the accused persons and the crowd were very hostile on the ground and he calmed them down and explained that they should have reported to Chief or police. PW4 took the deceased to hospital and left him being treated but after about 2 hours he learnt he had succumbed to the injuries. Later PM was conducted and cause of death established.
A1 was arrested from his house and charged with the offence of murder. He said that the 1st time they went to scene A1 was one of the youth who were armed with pangas and they said in unison that they wanted PW2 and the deceased evicted from the area. PW4 said that when they found the deceased lying down in the house he was crying for help.
PW5 Nicole Mitchele Adhiambo the daughter of PW2 testified that she knew 2nd Accused who is known as Babu/ mzee as a friend as they stay in the same village. PW5 also said she knew the 1st Accused as they used to buy from their shop. She testified that on 19th May 2024 at night she was sleeping in the kitchen when she heard noises outside and there was a person ordering that the main door be opened. That when she opened the kitchen door she met with Caleb the 1st Accused person herein and he asked, ‘Mitchell nimekugusa?’ and she responded in the negative. That Caleb again asked her,’Mitchell nimekufanyia chochote?’ and she again answered in the negative. That A1 then told her to tell her mother to open the main house. She said that at that point A2 arrived and asked A1 what was happening and A1 told him he wanted PW5’s mother to open the door. PW5 said that her mother was in the house with Sammy. She said both Accused persons were armed with pangas. That A1 kicked the door to the main house and it got broken and Sammy got out and started running. That the accused persons pursued him and caught up with him at the neighbor’s home. That she heard accused persons tell Sammy to let go of the tree or they would cut his hands with the panga. She said that when the accused persons pursued Sammy her mother, herself and her siblings escaped and went to the police station where her mother reported and 3 Police Officers accompanied them back home in the station vehicle and found Sammy had been beaten and was lying on the floor with injuries on the left eye, hand and legs. He said Sammy had also been tied on the legs with a rope and he said, ‘mzee ameniua’ meaning the 1st Accused. That while they were at home with the police A1 came back in a group of people including Esther, Ojombi, baba Junior and mama Felix. She said the people who accompanied A1 were neigbours at Nyasare village. She said the villagers were demanding that PW2 should leave the farm. That police ordered that Sammy be taken to hospital. PW5 said she remained at home as Sammy was taken to hospital where he died and she recorded a statement. PW5 said that when they returned from the Police station they found things stolen from the house,
In cross examination PW5 said that the kitchen to the main house was very close. She said that there were 2 windows to the main house and the one in the bedroom was wooden whereas the one in the sitting room was made of glass. She said she was outside when Caleb kicked the door. She said that accused persons were armed with a pangas. She said A2 arrived after Caleb and that A1 broke the window using a stone and thereafter broke the door. She said light from the kitchen lighted the main house and that when they went to the police station they left the lights on PW5 said that when they returned from the police station she saw Sammy had a cut on the right hand and left leg. That he also had injuries on the face and he said that Caleb had killed him. PW5 said that A2 was not among the people who returned to the scene with A1.
PW6 CPL Hellen Lochuch testified that on 19th May 2024 she was the duty officer when a murder incident was reported at the Migori Police Station. That PW4 CPL Ng’eno rushed to the scene and confirmed that the victim of assault succumbed to injuries. PW6 commenced investigations by recording statements from PW2 and 3 who were at home during the attack. She also recorded the statement of PW1 who heard someone crying at night outside her house and pleading to be left alone by the people who were beating him. PW6 said she visited the scene before recording statements. She said she recovered exhibits of the broken window and door only. She said the assailants were identified by PW2 & 3. She also produced the jerrycan that was recovered from the homestead of PW2 as Ex P1. She said she did not recover the murder weapons. The I/O said that CPL Ng’eno said he found irate members of public at the scene who alleged that PW2 was selling bhang and harboring criminals. PW6 said she did not investigate allegations of drugs.
When the accused persons were placed on their defense A1 gave sworn statement and said that when someone attempted to break into his shop on the material night he got out through the back door and raised alarm. That when they found the person hiding under a kiosk the person escaped and the neighbours who had responded to the alarm pursued and apprehended him. A1 said he was able to identify the person as Chacha and he did not pursue him as his wife was sick. That when he followed after 10 minutes he heard screams from Beatrice coming from the maize plantation. That he went round and found that the suspect had been arrested and was being beaten ad asked what he was doing in the shop. A1 said that the suspect was new in the area as PW2 used to live with different men. He said he was able to identify the people who were at the scene and beating and questioning the deceased. That the deceased led members of the public to PW2’s house where he said they were selling drugs and hiding stolen items at PW2’s sisters home. That he also led the crowd to a potato plantation where he uncovered bhang hidden under the potatoes in a jerrycan. That the deceased told them other items had been transported away and others were in the house. That members of public were divided into 2 and he was in the group that went to PW2’s sisters home but hey found she had moved out. He said that on return to PW2’s home and found police had arrived and they explained what had happened. That they were requested to put the suspect in the vehicle and they dispersed. That later at around 6.00am police went back to the scene and asked if he was among the people who beat Chacha and he was arrested and taken to the police station but he was not told why he was arrested. He said he did not break PW2’ window and door. He said the jerrycan produced in court was recovered from under the ground in PW2’s compound.
In cross examination A1 said that the deceased went to his shop at 2.30am. He said they remained at PW2’s home up to 5.00am. He confirmed that A2 was also at the scene but he did not wake him up. He said the neighbors who responded to his alarm are the ones who beat Chacha. He said he told them not to beat him but they overwhelmed him. He said he had no differences with PW2 & 5. He said A2 is also known as Babu.
A2 also gave sworn statement and said that he was sleeping inside his shop around midnight on 19th May 2024 when he heard a knock at the door to his shop and crying, ‘ mtu amenikosea.’ That after some few minutes he heard noise at PW2’s home as someone was demanding for the door to be opened. A2 said that PW2’s house was around 10m from his shop and he decided to go and see what was happening. That he found members of public armed with pangas and he could not do much as the crowd was big. That he went back to his shop from where he saw PW2 and her children pass as they went to the police station. That he entered the shop and went back to sleep. That after sometime he heard members of public say they should go to Eva’s place to remove bhang. That at 5.00am police vehicle went to the scene and PW2 was with them. That when police asked PW2 who wanted to evict her from her land she denied. He said he was arrested after 2 weeks and charged after he came from his mother’s funeral.
In cross examination A2 said that the people he saw at PW2’s place were armed with pangas. He said when he saw PW2 passing with her children on the way to the police station she did not have shoes. He confirmed that PW2 left the house after the deceased left the house and was pursued by the crowd. He said he recorded a statement with police but he did not say that he saw A1 break the door to PW2’s house. A2 said that it is A1 who woke him up and told him, ‘mtu amenikosea.’ He said that A1 was annoyed that Chacha had attempted to break into his shop. He said PW2 & 5 were at the scene as well as A1.
Upon close of defense case directions were taken for filing of submissions by the Accused persons Advocate.
Analysis and Determination
In consideration of the evidence of the 6 Prosecution witnesses and the 2 Accused persons sworn statements this court is to determine whether the prosecution has proved beyond reasonable doubt the ingredients of the offence of murder under Section 203 of the Penal Code.
Section 203 of the Penal Code under which the Accused person was charged provides as follows
“Any Person who of malice aforethought causes the death of another person, by an unlawful act or omission is guilty of murder”
In the case of Anthony Ndegwa Ngare Vs Republic 2014 Eklr, the elements of the offence of murder were stated to include;
i. That the deceased died
ii. The death was caused by an unlawful act or omission
iii. That the Accused person directly or indirectly participated in the commission of the alleged offence
iv. That there was malice aforethought
There is no dispute that Sammy Chacha died.
On the issue whether the said death was caused by an unlawful act or omission. Pw2 & 5 said that the when the deceased left the house and ran, A1 &2 pursued him and that is when they got the opportunity to escape and went to report to police. On return they found the deceased lying in the house with his legs tied and he had injuries. That the deceased was still alive and said that it is A1 who had killed him. PW5 said she heard A1 telling the deceased to let go of the tree he was holding or else he was going to cut his hands. PW4 CPL Ng’eno also said that by the time they arrived at the scene the deceased was still alive and talking and he said it is A1 who had killed him.
From the PM Report it was observed that the deceased had multiple wounds and bruises secondary to assault and that he died due to severe bleeding secondary to assault. From the injuries observed on the body of the deceased and the circumstances under which the deceased escaped from the house after the door and window had been broken it is obvious that the death was not accidental or self-inflicted but was caused by an unlawful act.
On whether the Accused persons participated directly or indirectly in the commission of the unlawful act, evidence of PW2 and PW5 is that the 1st Accused person went to their home and demanded that PW2 opens the door. When she did not open A1 used a stone to break the wooden window to the bedroom and also kicked the main door and it got broken and fell inside the house. When the door was broken the deceased left running and Accused persons pursued him and according to PW5 caught up with him at the neighbor’s home. PW5 heard A1 telling the deceased to let go of the tree he was holding and threatened to cut his hand if he did not comply. PW1 was in her house when she heard the deceased crying for help and asking why he was being beaten. When PW2 &5 returned to the home with police the deceased said it was A1 who had killed him. A2 also confirmed that it is A1 who went to wake him up while crying and saying that someone had wronged him and when he followed he found A1 and a crowd demanding that PW2 opens the door. He said he saw A1 at the scene together with PW2 & 5 during the incident and confirmed that the deceased ran from the house and he was pursued by members of the public including A1. PW2 confirmed that as she was going to the police station A2 was standing at his sister’s shop while armed with a panga and that evidence confirms the evidence of A2 that as the deceased was being pursued he did not accompany those who pursued him and it also confirms the evidence tendered by PW2 &5 as well as PW4 that the deceased said it is A1 who had killed him.
This court finds that the prosecution’s evidence has proved that it is the 1st Accused person jointly with others not before the court that inflicted the fatal injuries that led to the death of the accused person. The evidence of PW5 that A2 arrived at the scene and found the 1st Accused demanding that PW2 opens the door and the evidence that he was at the shop as the 1st Accused was pursuing the deceased exonerates the 2nd Accused from the commission of the offence of murder herein.
Whether the 1st Accused person was actuated with malice aforethought, Section 206 of the Penal Code defines malice aforethought as follows:
“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 do grievous harm to any person, whether that person is the person killed or not
b. Knowledge that the act or omission, causing death will probably cause the death or grievous harm to some person, whether that parson 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 wish that it may not be caused
c. An intent to commit a felony
d. An intention by act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
The 1st Accused alleged that someone attempted to break into his shop and that when he raised alarm the person ran but was pursued by members of public who apprehended him and beat him and that the deceased led them to the home of PW2 where he said they were selling bhang and also keeping stolen items. It is true as confirmed by PW4 that a jerrycan was recovered dug in the ground within PW2’s homestead and that it had bhang but allegations by A1 that someone attempted to break into his shop on the material night was only brought up during the 1st Accused person’s defense. He did not cross examine any of the witnesses concerning the issue of the deceased having attempted to break into his shop. The evidence of PW2 & 5 as well as A2 was that the deceased was inside PW2’s house when the 1st Accused demanded that the door be opened as he alleged that someone had wronged him. The evidence of the 1st Accused is an afterthought and is overwhelmed by the evidence of the prosecution witnesses as well as the evidence of A2 that he participated in the beating that inflicted fatal injuries on the deceased using pangas and other crude weapons. As said by PW4 there was no justifiable reason to inflict the fatal injuries on the deceased even if it was true that he was suspected of having committed an offence. In consideration of the fact that the 1st accused person together with others while armed with pangas and other crude weapons took the law into their hands instead of reporting the alleged offence to the police to take action, this court finds that he was possessed of malice aforethought in the commission of the offence.
In conclusion, this court finds that the Prosecution has proved the elements of the offence of murder against the 1st Accused person and he is found guilty and convicted accordingly. The 2nd Accused is found not guilty and is acquitted.
Dated, Signed and Delivered at Migori This 30th Day of June 2025