The accused persons Elijah Onyango, Millicent Achieng and Lazaro Ouma were jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
The particulars of the offence were that on the night of 7th June 2024 at Suna Upper Location, Suna East Sub-County, in Migori County in the Republic of Kenya jointly murdered Peterlis Otieno Liech.
PW2 Dorothy Achieng Ojwaka wife to the deceased, Vitalis Otieno Oliech said she was a taylor and lived in Ogwedhi.
She said that on 7.6.2024 in the evening at 8.50pm she was with the deceased at the shop when he left to go and see Susan Akinyi her co-wife. That after he left she closed the shop and went to sleep. She said she was alone in the house. She said the deceased had a torch and umbrella frame. That before 10.00pm she received phone call. She said it is Sipla Aluoch her brother in-law’s wife who made the phone call. That Silpa informed her that she should rush to a neighbours home. That shortly thereafter Sipla again called to tell her to get a taxi. That it was late and she went to the stage and took motor bike and rushed to scene. That when she arrived she found Lazaro Aluara and his brother Okwanyo, That Lazaro and his brother are not in court. That when she arrived, she asked the 2 what had happened and Lazaro told her that her husband had sustained injuries. She asked where he was and he told her he was behind. She said Lazaro and Okwanyo did not stay in that home. She said the home belonged to their brother. That she went behind the house to see her husband and she found he was lying on his belly. That when she touched him he raised his head and asked “Dorothy umefika”. He told her he had been stripped naked and his intestines are also outside. That when she tried to turn him, she saw his intestines were outside. That the deceased told her to cover him so that people don’t see him naked. He told her to take him to hospital. PW2 said she found he had just a jacket which he had used to tie his abdomen. At scene she found Millicent the wife to the owner of the home. She also found Judith Akinyi and Silpa Aluoch her co-wives. She said Lazaro and his brother were also at scene. That while at the scene a vehicle came and she told those at scene to assist carry her husband into the vehicle. That her brother in-law George and the driver of the vehicle tried to assist in carrying the deceased into the car but Lazaro refused to help and he was forced by George to accompany them and the other women to take the deceased to Migori District Hospital. That on arrival at the hospital the doctors tried to attend to him but he died while being attended to. Later she recorded her statement.
In cross examination by Mr. Singei Advocate PW2 said she arrived at the scene at 10.00pm and they used torch on their phones to light the scene. She said the taxi went to the scene after she had arrived. PW3 said she did not know what happened except that her husband told her he had been stripped naked. She said the scene to her shop was not far. It was approximately 1km and took like 3 minutes to get to the scene.
In re-examination by Mr. Oimbo PW2 said that the centre to where she found her husband is 3 minutes ride on a motor bike and she knew the owners of the home
PW3 Carolyne Auma from Ogwedhi and a farmer testified that on 7.6.2024 at around 9.00pm Millicent the wife of Dani went to her and told her to go and help her see how baba Onyango’s body is bloody”. She said that Millicent told her that baba Onyango was crying and saying “Dani you are killing me painfully”
PW3 said that Dani is 1st accused and Millicent was wife to Dani. That when she heard what Millicent told her she was afraid. That Millicent said that baba Onyango was at her home. PW3 in turn called Silpa who is her co-wife and resided in the same home to accompany her to Millicent’s home. She said that Baba Onyango who had been injured was brother to her husband and husband to Silpa. That Silpa came out and she reported to her what Millicent had told her.
PW3 said that as she proceeded to where baba Onyango was, Silpa went to call another of their co-wife. That when she arrived at scene, she found Lazaro the Lazaro the 3rd accused in the dock. That she asked her brother-in-law who was lying down what had happened and he told her that his intestines were protruding out. That when she started crying and asking what happened Lazaro told her that they should look for a car instead of crying.
That when she lifted the jacket that had been used to tie his intestines, she saw intestines protruding. PW3 said that the deceased was not having clothes on. That his clothes were placed besides the body. PW3 said that the scene was at Dani’s home. She identified Dani as the 1st accused in the dock and the 2nd accused is Millicent the wife to Dani. PW3 also identified Lazaro the 3rd accused as brother to Dani the 1st accused. PW3 said that they looked for means of transport to take the deceased to hospital but she remained at home as the deceased was taken to hospital. That later she learnt that the deceased had died and I recorded my statement
In cross examination by Mr. Singei Advocate PW3 said that the home had security light which made them see. The deceased was behind the house at the back door. We found Lazaro standing about 2 metres from where the deceased was lying. I didn’t find Dan at the scene. Lazaro’s home is near Dani’s home. Lazaro’s home is further than Dani’s home. My home is closer to Dani’s home. When Millicent came, she was shivering as she was talking to me. She was shaking. When I found the deceased, he did not tell me what happened to him. I made phone call to Benter and informed her what had happened
In re-examination by Mr. Oimbo PW3 said that Millicent went when she shaken and told her go and help her see how baba Onyango was blood stained. She said she did not ask her what made baba Onyango bleed. That she told her baba Onyango was at her home and was crying that Dani was killing him painfully. She identified Dani as the 1st accused
PW4 Silpa Aluoch. Testified that she came from Ogwedhi and she was a tailor. She said that the deceased Vitalis Otieno Oliech was her husband’s brother. She narrated that on 7.6.2024 at about 10.00pm she wanted to sleep when Caroline went to call her to go and hear what Millicent was saying. PW4 identified Millicent as the 1st accused herein. That she got out of the house and asked what was happening. She said Millicent was in company of Caroline when they went to her house. She said that Millicent told her that baba Onyango went to her place and he was blood stained. She asked if she was sure it was baba Onyango and she confirmed. That they decided to go to scene and on the way, they decided to call Lazaro and that she gave Millicent phone to talk to Lazaro She said that Millicent also accompanied her to go to Judy her other co – wife to inform her. That when they arrived at Judy’s house, they started interrogating Millicent who told them that baba Onyango went to her place and entered the house and that when he went out through the back door, she heard baba Onyango exclaim
“Dani why are you killing me so painfully”
That Millicent then told them that she heard the voice of the person who injured baba Onyango say
“We have been looking for you for long and today we have found you”
That Millicent said she recognized the voice as that of her husband Dani or Okwanyo. That Okwanyo was Millicent’s brother in – law and he was not in court. PW4 said that Judy’s home and Millicent’s home is across the fence and that is when they saw someone walk with a torch to the scene.
She said it is Lazaro who went to scene and then called them to go and see what had happened to baba Onyango. they went to scene and saw baba Onyango had injuries on the abdomen and he had no clothes but had used his jacket to tie his intestines. That Caro also went and they started looking for means of transport. She said that they took the deceased to Ombo but did not get emergency doctors and they went to district hospital where deceased was put on oxygen and put on treatment but he died at 1.00am. PW4 said that she did record her statement
When PW4 was cross examined by Mr. Singei Advocate she said that on arrival at scene where the deceased was lying, they found Lazaro and Caro who had arrived at the scene earlier than them. She said they were at Judy’s place when they saw torch light at Dani’s place and Lazaro called them. She said they used her phone to call Lazaro. She said the deceased lay across the back door but she did not check if there was blood at the scene. That when she asked the deceased what happened he did not tell her anything, but only he only urged them to look for a vehicle and take him to hospital. She said Millicent went to her home in company of Caroline. PW4 said she did not see any blood on Millicent’s clothes. She said that the deceased had a jacket that was tied to the abdomen and when they came back from hospital, they found the deceased person’s clothes were near where he lay but she did not touch the clothes and she did not know if they were blood stained.
PW4 said the home belonged to Elijah but they did not find Elijah at the scene. She said she had not seen Elijah on the material day. She also said that Lazaro’s home is not very close to Elijah’s home. She said she did not know what happened to the deceased
In re-examination by Mr. Oimbo the witness said that when she called Lazaro, it took about 20 minutes for him to arrive.
PW1 Dr. Ian Omuom Medical Officer at Migori County Hospital conducted post mortem on the body of the deceased on 14th June 2024 abd observed that the body of the deceased had no clothes. The body was of male African with apparent age of 61 years with good nutritional status and height 170cm.
Dr. Omuom testified that death must have occurred more than 72 hours at time of post mortem.
Externally he observed that there was extensive peripheral pallor - a sign of loss of blood
He said that anterior abdominal wall had a stab wound approximately 4cm long located on the left below the last rib. The wound penetrated the abdominal wall. There was also another stab wound 4cm that was towards the center of the abdominal wall below the last rib. There was also 6cm stab wound on the right side that penetrated the abdominal wall.
On internal appearance the digestive system – there was approximately one litre of blood and the spleen was raptured. PW1 formed the opinion that cause of death was hemorrhagic shock due to penetrating abdominal stab wounds. He said that the rest of the systems/organs were normal. He issued a death certificate No. 0051342 and he did sign the post mortem form which he produced as ExP1. Dr. Omuom said the injuries were indicative of someone who was attacked as there were more defensive wounds to prove the deceased was involved in a fight.
Dr. Omuom was cross examined by Mr. Singei Advocate and he said that based on assessment of the injuries observed the injuries were not in keeping with having any defensive
PW5 No. 233.68 Chief Inspector Henry Misiko Recha currently based at Vigilance House Police Headquarters Nairobi testified that at the time of the murder, he was OCS Ogwedhi Police Station. He recalled that on 7.6.2024 at around 03.10 hours he received a call from one Silas Ogutu who is chief Sagegi location who informed him that one person had been stabbed in the house of Elijah Onyango. PW5 visited the scene which is a few kilometers from the station and found the victim had been taken to Migori County Hospital. That inside the house he found Millicent Achieng the wife of Elijah who informed him that she had a love affair with the victim and that the victim had entered the house that night when he was attacked. That Millicent said she heard somebody push the door and attacked the victim but that she didn’t see the attacker.
PW5 said that inside the house he found fresh blood that had spilled on the door and floor and at the door he found one trouser, shirt, T-shirt, one inner pants and a pair of rubber shoes which were identified as property of the victim. PW5 said he did preserve the scene and arrested Millicent and took her to Ogwedhi Police Station for interrogation
PW5 said that the house had 2 rooms and in the sitting room there was a mat where 2 children of Millicent were sleeping. They had put the table and chairs aside and placed mat where the children slept. Inside the bedroom there was a mattress placed on the ground where the incident occurred. The 2 children were still sleeping at the time he arrived at the scene.
PW5 in cross examination by Mr. Singei Advocate said he did not interrogate the children as they were not talking. He said the house did not have a kitchen inside but there was one outside. He said he preserved the scene for DCI personnel to investigate. The house had 2 doors, the front and back door and the attackers entered through the rear door. He said that when one enters through the rear door it is the bed room you access first and it was on the frames of the rear door and Millicent’s bedroom that had blood stains. He said the clothes he recovered namely inner pant and trouser had no blood stains but the T-shirt had blood stains. The attack happened in presence of Millicent. He said the 2 children were in the house sleeping. PW5 said that Millicent can tell the court if she was also a victim and who entered her house and attacked the victim. The rear door was being locked from the inside using a nail. It is probable that the door was pushed from outside and it opened. That from the investigations the victim was found bleeding while naked. PW5 said it is only Millicent that he interrogated as his job was to visit scene and preserve it. He said he did not establish distance from Millicent to Lazaro’s house or to others houses.
PW6 Judith Atieno testified that the deceased Vitalis Otieno Liech was her brother-in-law. That on 7.6.2024 at about 10.00pm she was in her house when she heard someone call her. When she got out, she found Silpa and Millicent. That she inquired what had happened and Silpa told her that she wanted her to hear what Millicent was saying.
When I inquired from Millicent, she told her that Onyango’s father went to her and she opened for him. That after she had opened for him the deceased went out through back door and she heard him cry that Dani was killing him painfully. PW6 said that Dani is husband to Millicent. That on further inquiry Millicent told her Onyango’s father did not enter her house while stained with blood. That Millicent also told her that she recognized the voice of Dani and Okwanyo as the ones who attacked Onyango’s father.
PW6 said she talked to Silpa and advised that being women they could not go to Dani’s home and it was dark. That Silpa told her that Millicent had spoken to Lazaro to come and they waited to see if Lazaro could come. After a short while they heard Lazaro exclaim at the scene and called mama Val – Silpa to go see the scene and see how Onyango’s father looked like.
That they went round in company of Millicent who directed them to where Onyango’s father was. That they went round the house and found Onyango’s father lying on the ground and his intestines were protruding and he was naked. That Onyango’s father told her to go and call Susan his wife. That they went and called Susan. That on return to the scene she inquired from the deceased what happened but he did not talk instead he held Susan’s hands. That they moved aside as he spoke to Susan. PW6 said that they looked for a vehicle which took the deceased to Migori District Hospital where he died while undergoing treatment. Later she recorded her statement
PW6 said in cross examination that there was solar light at Millicent’s home. She said that when they arrived at the scene, they found Lazaro and she accompanied Silpa to go and call Susan. She said that when Millicent went to call them, she did not see any blood stains on her body. She said she knew Millicent’s husband and she did not see him at the scene. She said she had not seen Millicent’s husband on the material day. She said that Millicent’s husband works in construction sites.
In re-examination PW6 said that whenever Elijah was at home, she would see him but she didn’t concern herself with him and she could not tell if he was present or not. He could have been at home and I fail to see him.
PW7 Silas Ogutu Chief of Sagegi Location testified that on 7.6.2024 at about 1.30am he received phone call from Mzee Gabriel Alwara who informed hime that Vitalis had been cut by thieves on his way from Ogwedhi. Gabriel is father to first and 3rd accused. That after a short while he got another call from Assistant Chief of Sagegi a Sub Location who informed him that he was at the police station seeking for help over the same matter. PW7 looked for a motor cycle and went to the scene which was at the home of Dani the 1st accused person and found police had arrived and members of public had gathered. PW7 said that the deceased’s home neighbours that of Dani. That when he arrived at scene that Gabriel told him was on the road he didn’t see any blood. That he entered the home of Dani and he was told he had gone to work. That he looked for Millicent the wife of Dani and asked where Vitalis was and who cut him and she told me she heard the voice of someone that sounded like Dani at the time there was commotion with Vitalis. That it is at the rear door that he found the deceased person’s clothes had blood stains. Inside the house there were stains of blood on jerrycans. I did record my statement.
PW7 said in cross examination that Millicent told him that she heard a voice similar to that of her husband. He also said that Gabriel was no longer their village elder. He also said that Elijah and Millicent had not been married for long.
PW8 Paul Otieno Achok said he was a driver and he came from Ogwedhi. He testified that on 7.6.2024 he was sleeping when at around 10.00pm he received a phone call from Lazaro who told him he should hurry with the car to Vitalis’ home as he had been attacked by unknown people. That Lazaro told him to go to the deceased’s home as he had been attacked on his way home. PW8 said that Vitalis was known to him and when he heard he had been attacked he left immediately.
That before he arrived at Vitalis’ place he found a crowd gathered at the home of Dani and they signaled him to stop and when he put full lights he saw they were people I knew. That when he entered the home of Dani he found Lazaro, George Olweny, Okwanyo and some women. Okwanyo is Dani’s brother. That he found Vitalis lying on the ground and he had a jacket he used to hold his intestines that were protruding. PW8 said he urged the people at scene to hurry up and they managed to put Vitalis in the car. That he was accompanied by Lazaro, George Olweny and Okwanyo together with some 3 women. That they first went to Ombo but they were directed/referred to County Hospital. That they proceeded to Referral Hospital where the deceased died as he was being attended to at the emergency. The Chief said that when he found Vitalis at Danis home he didn’t ask Lazaro why he told me to go to Vitalis home as the 2 homes are close to each other. That later he recorded his statement.
Cross-examination by Mr. Singei Advocate: Vitalis was known to me and we stayed in same village. I know his home. Vitalis was a popular person. Elijah is also resident of our village. The 2 are neighbours. There is a highway from Migori to Ogwedhi and Elijah’s home and Vitalis’ home is on one side of the highway. The phone call from Lazaro was for me to go and take Vitalis to hospital. You get to Dani’s home before Vitalis home.
PW9 Susan Akinyi from Ogwedhi and a saloonist testified that on 7.6.2024 at around 9.00pm she heard a knock at her door and Judith and Silpa told her that her husband had been injured. That she accompanied them to the home of Dani the 1st accused herein in the dock. That on arrival she heard her husband call her and when he held her hand, he told her that he had been injured and he would die. He also told her to take care of the children at home. PW9 said the deceased had a jacket tied around his waist. That when she asked what happened the deceased insisted that she should go back home and take care of the children at his home.
PW9 said that at the home was Lazaro and George who called for a vehicle to take her husband to hospital as she went back home. That after sometime she heard my elder brother in law’s wife Caroline cry while going to her home and told her that her husband had died. She later recorded her statement
In cross examination PW9 said she had been married to the deceased since 2014 and they had 5 children. The deceased was known to her well. She said the accused persons were her neighbours and she knew them well for the time she was married in that home. She said she was not aware of any difference between the accused persons and the deceased.
She said that her husband related well with the accused persons as neighbours. I can’t tell of any other relationship between her husband and 2nd accused
PW10 Jackson Ouma Otieno testified that he stays in Nairobi but his rural home is Ogwedhi Maasai. He said that he is a technician. That he was the first born son to the deceased Vitalis. PW10 testified that on 13.6.2024 at about 300pm they went to Migori County Referral hospital mortuary with his uncle Elijah Omuga and a police officer to identify the body of Vitalis Otieno for purposes of post mortem. That after identifying the body they also witnessed post mortem.
PW11 No. 253846 PC Fredrick Odhiambo Migori DCI said he was the investigating officer in this matter which was reported at Ogwedhi by one Daniel Osika Assistant Chief Sagegi Sub-Location that he received information from members of public that one Peter Otieno Oganga male aged 61 years, and a driver at Sagegi Secondary School had been stabbed in the stomach in the home of one Elijah Onyango alias Dani by unknown person within Konguo “C” village.
The victim was rushed to Migori County Hospital where he was pronounced dead on arrival. He said that officers from Ogwedhi Police Station visited the scene and found the deceased’s clothes, shoes and radio outside the house. That according to the initial report the house had blood stains splashed on the wall an indication the deceased was stabbed while inside the house. That the first accused responded to the scene and found the deceased lying outside the door completely naked and was suspected to be a victim of love triangle. That the wife of the owner of the house the 2nd accused herein went and informed the police the victim had visited the house before being stabbed.
That on 8.6.2024 at around 0930 hours he received phone call from former DCIO Richard Cheruiyot concerning the incident and he was instructed to take over investigations. That he visited Ogwedhi Police Station in company of the OCS Ogwedhi Police Station Mr. Recha and the team from DCI they visited the scene and established the owner of the said homestead was Elijah Onyango Obura and Millicent Achieng. That he did establish that the exhibits recovered clothes shoes, radio wrist watch, under garments were at scene outside the door and had blood stains. That he further established inside the house were jerrycans and utensils which had blood splashed on them. There were also blood stains on the wall. That after visiting scene they moved to the station where the 2nd accused Millicent was already in custody. He said that the 1st accused was nowhere to be seen. That the 2nd accused was collected and escorted to Migori Police Station for interrogation. Upon interrogation of the 2nd accused she mentioned Josam Adori who was arrested. Josam Adori was a neighbor of 2nd accused about 100m apart. That upon interrogation of 2nd accused and Josam they were led to arrest the 3rd accused and he was booked at Ogwedhi Police Station.
That the 1st accused surfaced on 14.6.2024 one week after the incident and he went and made a report at Ogwedhi claiming someone had been killed in his house. Upon interrogation of Millicent it came out clearly that she had love relationship with the deceased. She said they had the relationship for over 5 years. That the deceased paid her a visit at 22.00hours and she opened for him and according to her they had sex. She said that after the act when the deceased went for a call of nature she heard someone tell the deceased
“I have been spying on you for long and today I have found you”
Millicent said she heard the deceased cry
“You have killed me”
That Millicent said the deceased mentioned that it was Dani who had killed him. Millicent was able to recognize her husband’s voice as the one who said he had been looking for the deceased for long.
During the statement recording PW11 established the 3rd accused managed to assist the deceased by calling the taxi driver but he lied to the taxi driver that the deceased had been attacked by unknown people while heading home.
The information received from the father of the 1st and 3rd accused to the chief was also not true. He claimed the deceased was killed on his way home but not at 1st accused’s home. I heard 1st accused works with BC Telcom Company Limited which does installation of communication boosters. During the time in question, PW11 said he obtained call logs to establish whether 1st accused was within locality when incident happened but the results were that he was out of network. The 1st accused having knowledge of how boosters work must have gone out of network deliberately and he was unable to establish where he was at the time of the incident. PW11 produced the exhibits recovered as:-
- Radio – Exp 2
- Pair of grey shoes -ExP3
- Grey inner pant ExP4
- Greyish belt ExP5
- Grey T-shirt -ExP6
- Trouser -ExP7
- Blue pair of short -ExP8
- Black wrist watch -ExP9
- White vest -ExP10
- Spectacle case -ExP11
PW11 said in cross examination that the 3rd accused called the taxi driver to come and assist the deceased. He said it was not true that 3rd accused had full facts of what happened. He said the 3rd accused misled the taxi driver that the victim was at his home. It is same taxi driver that assisted the deceased. He said that he The concluded that the 3rd accused was concealing information that deceased was attacked at his brother’s home. He said he could not answer whether call to taxi driver was meant to assist the victim. The taxi driver was on the way to the victim’s home when he found scene was at 1st accused’s home. The Chief got a report from village elder who is father of 1st and 3rd accused Gabriel that the victim had been attacked on his way home. PW11 said that his investigations didn’t establish that Gabriel was at the scene and Gabriel had not been charged. The information that Gabriel gave to the chief Silas is similar to the information 3rd accused gave to the taxi driver. He said that the 3rd accused and his father Gabriel gave false information. PW4 Silpa Aluoch made phone call to 3rd accused and 2nd accused spoke to him. During my investigations I realized that if there was first responders to the scene it should have been his younger brother Okwanyo. None of the witnesses testified to have called Okwanyo. 3rd accused did not inform Okwanyo about the information he got from Millicent when using PW4’s phone. Any of the witnesses could have informed Okwanyo about what happened. 3rd accused was told to call for a taxi. The call for a taxi came from 3rd accused because he had a phone. I don’t have sketch plan of the compound. I did not outline how the house of 2nd accused is, 1st and 2nd accused house has 2 rooms sitting room from main entrance on the left there is a room to the rear door. The 3rd room is the kitchen. It is an arrear that is towards rear door. When one gets into the house through the back door you go through the kitchen area and into the bedroom area. 2nd accused and the deceased had intimate relationship that had taken around 5 years. The deceased had his wives and children and 2nd accused also had husband and children. I can’t tell if the relationship between 2nd accused and the deceased was mutual. According to 2nd accused she had sexual intercourse with the deceased on the material night. According to the evidence gathered the deceased was stripped off hi clothes. None of the prosecution witnesses told me. 2nd accused had threatened the deceased person’s life. 2nd accused didn’t disclose any differences between her and the deceased. Chief inspector Recha said that 2nd accused and the deceased were attacked from inside the house. According to my investigations the door was not tampered with. Chief inspector Recha established that the door was pushed from outside. According to 2nd accused the deceased met his attackers when he opened the door to go for a call of nature. I don’t dispute Chief Inspector Recha’s evidence but the door was not interfered with. I did not recover the murder weapon. 2nd accused was with the victim at the time of attack. The attack appears to have been timed. It must have been planned. The deceased was still talking at the time that 1st responders arrived at the scene. From my investigations I can’t tell if 2nd accused murdered the deceased. 2nd accused was the last person to be with the deceased before the attack. I can’t tell if the deceased was naked because he was in intimate relationship with 2nd accused. The attack happened outside and 2nd accused may not have seen the attacker. I found nothing to link the 2nd accused to the murder of the deceased. From my investigations I established 1st accused works with BC Telecommunications. I didn’t establish his position in the said company. On 7.6.2024 1st accused was not in the crime scene when
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The particulars of the offence were that on the night of 7th June 2024 at Suna Upper Location, Suna East Sub-County, in Migori County in the Republic of Kenya jointly murdered Peterlis Otieno Liech.
PW2 Dorothy Achieng Ojwaka wife to the deceased, Vitalis Otieno Oliech said she was a taylor and lived in Ogwedhi.
She said that on 7.6.2024 in the evening at 8.50pm she was with the deceased at the shop when he left to go and see Susan Akinyi her co-wife. That after he left she closed the shop and went to sleep. She said she was alone in the house. She said the deceased had a torch and umbrella frame. That before 10.00pm she received phone call. She said it is Sipla Aluoch her brother in-law’s wife who made the phone call. That Silpa informed her that she should rush to a neighbours home. That shortly thereafter Sipla again called to tell her to get a taxi. That it was late and she went to the stage and took motor bike and rushed to scene. That when she arrived she found Lazaro Aluara and his brother Okwanyo, That Lazaro and his brother are not in court. That when she arrived, she asked the 2 what had happened and Lazaro told her that her husband had sustained injuries. She asked where he was and he told her he was behind. She said Lazaro and Okwanyo did not stay in that home. She said the home belonged to their brother. That she went behind the house to see her husband and she found he was lying on his belly. That when she touched him he raised his head and asked “Dorothy umefika”. He told her he had been stripped naked and his intestines are also outside. That when she tried to turn him, she saw his intestines were outside. That the deceased told her to cover him so that people don’t see him naked. He told her to take him to hospital. PW2 said she found he had just a jacket which he had used to tie his abdomen. At scene she found Millicent the wife to the owner of the home. She also found Judith Akinyi and Silpa Aluoch her co-wives. She said Lazaro and his brother were also at scene. That while at the scene a vehicle came and she told those at scene to assist carry her husband into the vehicle. That her brother in-law George and the driver of the vehicle tried to assist in carrying the deceased into the car but Lazaro refused to help and he was forced by George to accompany them and the other women to take the deceased to Migori District Hospital. That on arrival at the hospital the doctors tried to attend to him but he died while being attended to. Later she recorded her statement.
In cross examination by Mr. Singei Advocate PW2 said she arrived at the scene at 10.00pm and they used torch on their phones to light the scene. She said the taxi went to the scene after she had arrived. PW3 said she did not know what happened except that her husband told her he had been stripped naked. She said the scene to her shop was not far. It was approximately 1km and took like 3 minutes to get to the scene.
In re-examination by Mr. Oimbo PW2 said that the centre to where she found her husband is 3 minutes ride on a motor bike and she knew the owners of the home
PW3 Carolyne Auma from Ogwedhi and a farmer testified that on 7.6.2024 at around 9.00pm Millicent the wife of Dani went to her and told her to go and help her see how baba Onyango’s body is bloody”. She said that Millicent told her that baba Onyango was crying and saying “Dani you are killing me painfully”
PW3 said that Dani is 1st accused and Millicent was wife to Dani. That when she heard what Millicent told her she was afraid. That Millicent said that baba Onyango was at her home. PW3 in turn called Silpa who is her co-wife and resided in the same home to accompany her to Millicent’s home. She said that Baba Onyango who had been injured was brother to her husband and husband to Silpa. That Silpa came out and she reported to her what Millicent had told her.
PW3 said that as she proceeded to where baba Onyango was, Silpa went to call another of their co-wife. That when she arrived at scene, she found Lazaro the Lazaro the 3rd accused in the dock. That she asked her brother-in-law who was lying down what had happened and he told her that his intestines were protruding out. That when she started crying and asking what happened Lazaro told her that they should look for a car instead of crying.
That when she lifted the jacket that had been used to tie his intestines, she saw intestines protruding. PW3 said that the deceased was not having clothes on. That his clothes were placed besides the body. PW3 said that the scene was at Dani’s home. She identified Dani as the 1st accused in the dock and the 2nd accused is Millicent the wife to Dani. PW3 also identified Lazaro the 3rd accused as brother to Dani the 1st accused. PW3 said that they looked for means of transport to take the deceased to hospital but she remained at home as the deceased was taken to hospital. That later she learnt that the deceased had died and I recorded my statement
In cross examination by Mr. Singei Advocate PW3 said that the home had security light which made them see. The deceased was behind the house at the back door. We found Lazaro standing about 2 metres from where the deceased was lying. I didn’t find Dan at the scene. Lazaro’s home is near Dani’s home. Lazaro’s home is further than Dani’s home. My home is closer to Dani’s home. When Millicent came, she was shivering as she was talking to me. She was shaking. When I found the deceased, he did not tell me what happened to him. I made phone call to Benter and informed her what had happened
In re-examination by Mr. Oimbo PW3 said that Millicent went when she shaken and told her go and help her see how baba Onyango was blood stained. She said she did not ask her what made baba Onyango bleed. That she told her baba Onyango was at her home and was crying that Dani was killing him painfully. She identified Dani as the 1st accused
PW4 Silpa Aluoch. Testified that she came from Ogwedhi and she was a tailor. She said that the deceased Vitalis Otieno Oliech was her husband’s brother. She narrated that on 7.6.2024 at about 10.00pm she wanted to sleep when Caroline went to call her to go and hear what Millicent was saying. PW4 identified Millicent as the 1st accused herein. That she got out of the house and asked what was happening. She said Millicent was in company of Caroline when they went to her house. She said that Millicent told her that baba Onyango went to her place and he was blood stained. She asked if she was sure it was baba Onyango and she confirmed. That they decided to go to scene and on the way, they decided to call Lazaro and that she gave Millicent phone to talk to Lazaro She said that Millicent also accompanied her to go to Judy her other co – wife to inform her. That when they arrived at Judy’s house, they started interrogating Millicent who told them that baba Onyango went to her place and entered the house and that when he went out through the back door, she heard baba Onyango exclaim
“Dani why are you killing me so painfully”
That Millicent then told them that she heard the voice of the person who injured baba Onyango say
“We have been looking for you for long and today we have found you”
That Millicent said she recognized the voice as that of her husband Dani or Okwanyo. That Okwanyo was Millicent’s brother in – law and he was not in court. PW4 said that Judy’s home and Millicent’s home is across the fence and that is when they saw someone walk with a torch to the scene.
She said it is Lazaro who went to scene and then called them to go and see what had happened to baba Onyango. they went to scene and saw baba Onyango had injuries on the abdomen and he had no clothes but had used his jacket to tie his intestines. That Caro also went and they started looking for means of transport. She said that they took the deceased to Ombo but did not get emergency doctors and they went to district hospital where deceased was put on oxygen and put on treatment but he died at 1.00am. PW4 said that she did record her statement
When PW4 was cross examined by Mr. Singei Advocate she said that on arrival at scene where the deceased was lying, they found Lazaro and Caro who had arrived at the scene earlier than them. She said they were at Judy’s place when they saw torch light at Dani’s place and Lazaro called them. She said they used her phone to call Lazaro. She said the deceased lay across the back door but she did not check if there was blood at the scene. That when she asked the deceased what happened he did not tell her anything, but only he only urged them to look for a vehicle and take him to hospital. She said Millicent went to her home in company of Caroline. PW4 said she did not see any blood on Millicent’s clothes. She said that the deceased had a jacket that was tied to the abdomen and when they came back from hospital, they found the deceased person’s clothes were near where he lay but she did not touch the clothes and she did not know if they were blood stained.
PW4 said the home belonged to Elijah but they did not find Elijah at the scene. She said she had not seen Elijah on the material day. She also said that Lazaro’s home is not very close to Elijah’s home. She said she did not know what happened to the deceased
In re-examination by Mr. Oimbo the witness said that when she called Lazaro, it took about 20 minutes for him to arrive.
PW1 Dr. Ian Omuom Medical Officer at Migori County Hospital conducted post mortem on the body of the deceased on 14th June 2024 abd observed that the body of the deceased had no clothes. The body was of male African with apparent age of 61 years with good nutritional status and height 170cm.
Dr. Omuom testified that death must have occurred more than 72 hours at time of post mortem.
Externally he observed that there was extensive peripheral pallor - a sign of loss of blood
He said that anterior abdominal wall had a stab wound approximately 4cm long located on the left below the last rib. The wound penetrated the abdominal wall. There was also another stab wound 4cm that was towards the center of the abdominal wall below the last rib. There was also 6cm stab wound on the right side that penetrated the abdominal wall.
On internal appearance the digestive system – there was approximately one litre of blood and the spleen was raptured. PW1 formed the opinion that cause of death was hemorrhagic shock due to penetrating abdominal stab wounds. He said that the rest of the systems/organs were normal. He issued a death certificate No. 0051342 and he did sign the post mortem form which he produced as ExP1. Dr. Omuom said the injuries were indicative of someone who was attacked as there were more defensive wounds to prove the deceased was involved in a fight.
Dr. Omuom was cross examined by Mr. Singei Advocate and he said that based on assessment of the injuries observed the injuries were not in keeping with having any defensive
PW5 No. 233.68 Chief Inspector Henry Misiko Recha currently based at Vigilance House Police Headquarters Nairobi testified that at the time of the murder, he was OCS Ogwedhi Police Station. He recalled that on 7.6.2024 at around 03.10 hours he received a call from one Silas Ogutu who is chief Sagegi location who informed him that one person had been stabbed in the house of Elijah Onyango. PW5 visited the scene which is a few kilometers from the station and found the victim had been taken to Migori County Hospital. That inside the house he found Millicent Achieng the wife of Elijah who informed him that she had a love affair with the victim and that the victim had entered the house that night when he was attacked. That Millicent said she heard somebody push the door and attacked the victim but that she didn’t see the attacker.
PW5 said that inside the house he found fresh blood that had spilled on the door and floor and at the door he found one trouser, shirt, T-shirt, one inner pants and a pair of rubber shoes which were identified as property of the victim. PW5 said he did preserve the scene and arrested Millicent and took her to Ogwedhi Police Station for interrogation
PW5 said that the house had 2 rooms and in the sitting room there was a mat where 2 children of Millicent were sleeping. They had put the table and chairs aside and placed mat where the children slept. Inside the bedroom there was a mattress placed on the ground where the incident occurred. The 2 children were still sleeping at the time he arrived at the scene.
PW5 in cross examination by Mr. Singei Advocate said he did not interrogate the children as they were not talking. He said the house did not have a kitchen inside but there was one outside. He said he preserved the scene for DCI personnel to investigate. The house had 2 doors, the front and back door and the attackers entered through the rear door. He said that when one enters through the rear door it is the bed room you access first and it was on the frames of the rear door and Millicent’s bedroom that had blood stains. He said the clothes he recovered namely inner pant and trouser had no blood stains but the T-shirt had blood stains. The attack happened in presence of Millicent. He said the 2 children were in the house sleeping. PW5 said that Millicent can tell the court if she was also a victim and who entered her house and attacked the victim. The rear door was being locked from the inside using a nail. It is probable that the door was pushed from outside and it opened. That from the investigations the victim was found bleeding while naked. PW5 said it is only Millicent that he interrogated as his job was to visit scene and preserve it. He said he did not establish distance from Millicent to Lazaro’s house or to others houses.
PW6 Judith Atieno testified that the deceased Vitalis Otieno Liech was her brother-in-law. That on 7.6.2024 at about 10.00pm she was in her house when she heard someone call her. When she got out, she found Silpa and Millicent. That she inquired what had happened and Silpa told her that she wanted her to hear what Millicent was saying.
When I inquired from Millicent, she told her that Onyango’s father went to her and she opened for him. That after she had opened for him the deceased went out through back door and she heard him cry that Dani was killing him painfully. PW6 said that Dani is husband to Millicent. That on further inquiry Millicent told her Onyango’s father did not enter her house while stained with blood. That Millicent also told her that she recognized the voice of Dani and Okwanyo as the ones who attacked Onyango’s father.
PW6 said she talked to Silpa and advised that being women they could not go to Dani’s home and it was dark. That Silpa told her that Millicent had spoken to Lazaro to come and they waited to see if Lazaro could come. After a short while they heard Lazaro exclaim at the scene and called mama Val – Silpa to go see the scene and see how Onyango’s father looked like.
That they went round in company of Millicent who directed them to where Onyango’s father was. That they went round the house and found Onyango’s father lying on the ground and his intestines were protruding and he was naked. That Onyango’s father told her to go and call Susan his wife. That they went and called Susan. That on return to the scene she inquired from the deceased what happened but he did not talk instead he held Susan’s hands. That they moved aside as he spoke to Susan. PW6 said that they looked for a vehicle which took the deceased to Migori District Hospital where he died while undergoing treatment. Later she recorded her statement
PW6 said in cross examination that there was solar light at Millicent’s home. She said that when they arrived at the scene, they found Lazaro and she accompanied Silpa to go and call Susan. She said that when Millicent went to call them, she did not see any blood stains on her body. She said she knew Millicent’s husband and she did not see him at the scene. She said she had not seen Millicent’s husband on the material day. She said that Millicent’s husband works in construction sites.
In re-examination PW6 said that whenever Elijah was at home, she would see him but she didn’t concern herself with him and she could not tell if he was present or not. He could have been at home and I fail to see him.
PW7 Silas Ogutu Chief of Sagegi Location testified that on 7.6.2024 at about 1.30am he received phone call from Mzee Gabriel Alwara who informed hime that Vitalis had been cut by thieves on his way from Ogwedhi. Gabriel is father to first and 3rd accused. That after a short while he got another call from Assistant Chief of Sagegi a Sub Location who informed him that he was at the police station seeking for help over the same matter. PW7 looked for a motor cycle and went to the scene which was at the home of Dani the 1st accused person and found police had arrived and members of public had gathered. PW7 said that the deceased’s home neighbours that of Dani. That when he arrived at scene that Gabriel told him was on the road he didn’t see any blood. That he entered the home of Dani and he was told he had gone to work. That he looked for Millicent the wife of Dani and asked where Vitalis was and who cut him and she told me she heard the voice of someone that sounded like Dani at the time there was commotion with Vitalis. That it is at the rear door that he found the deceased person’s clothes had blood stains. Inside the house there were stains of blood on jerrycans. I did record my statement.
PW7 said in cross examination that Millicent told him that she heard a voice similar to that of her husband. He also said that Gabriel was no longer their village elder. He also said that Elijah and Millicent had not been married for long.
PW8 Paul Otieno Achok said he was a driver and he came from Ogwedhi. He testified that on 7.6.2024 he was sleeping when at around 10.00pm he received a phone call from Lazaro who told him he should hurry with the car to Vitalis’ home as he had been attacked by unknown people. That Lazaro told him to go to the deceased’s home as he had been attacked on his way home. PW8 said that Vitalis was known to him and when he heard he had been attacked he left immediately.
That before he arrived at Vitalis’ place he found a crowd gathered at the home of Dani and they signaled him to stop and when he put full lights he saw they were people I knew. That when he entered the home of Dani he found Lazaro, George Olweny, Okwanyo and some women. Okwanyo is Dani’s brother. That he found Vitalis lying on the ground and he had a jacket he used to hold his intestines that were protruding. PW8 said he urged the people at scene to hurry up and they managed to put Vitalis in the car. That he was accompanied by Lazaro, George Olweny and Okwanyo together with some 3 women. That they first went to Ombo but they were directed/referred to County Hospital. That they proceeded to Referral Hospital where the deceased died as he was being attended to at the emergency. The Chief said that when he found Vitalis at Danis home he didn’t ask Lazaro why he told me to go to Vitalis home as the 2 homes are close to each other. That later he recorded his statement.
Cross-examination by Mr. Singei Advocate: Vitalis was known to me and we stayed in same village. I know his home. Vitalis was a popular person. Elijah is also resident of our village. The 2 are neighbours. There is a highway from Migori to Ogwedhi and Elijah’s home and Vitalis’ home is on one side of the highway. The phone call from Lazaro was for me to go and take Vitalis to hospital. You get to Dani’s home before Vitalis home.
PW9 Susan Akinyi from Ogwedhi and a saloonist testified that on 7.6.2024 at around 9.00pm she heard a knock at her door and Judith and Silpa told her that her husband had been injured. That she accompanied them to the home of Dani the 1st accused herein in the dock. That on arrival she heard her husband call her and when he held her hand, he told her that he had been injured and he would die. He also told her to take care of the children at home. PW9 said the deceased had a jacket tied around his waist. That when she asked what happened the deceased insisted that she should go back home and take care of the children at his home.
PW9 said that at the home was Lazaro and George who called for a vehicle to take her husband to hospital as she went back home. That after sometime she heard my elder brother in law’s wife Caroline cry while going to her home and told her that her husband had died. She later recorded her statement
In cross examination PW9 said she had been married to the deceased since 2014 and they had 5 children. The deceased was known to her well. She said the accused persons were her neighbours and she knew them well for the time she was married in that home. She said she was not aware of any difference between the accused persons and the deceased.
She said that her husband related well with the accused persons as neighbours. I can’t tell of any other relationship between her husband and 2nd accused
PW10 Jackson Ouma Otieno testified that he stays in Nairobi but his rural home is Ogwedhi Maasai. He said that he is a technician. That he was the first born son to the deceased Vitalis. PW10 testified that on 13.6.2024 at about 300pm they went to Migori County Referral hospital mortuary with his uncle Elijah Omuga and a police officer to identify the body of Vitalis Otieno for purposes of post mortem. That after identifying the body they also witnessed post mortem.
PW11 No. 253846 PC Fredrick Odhiambo Migori DCI said he was the investigating officer in this matter which was reported at Ogwedhi by one Daniel Osika Assistant Chief Sagegi Sub-Location that he received information from members of public that one Peter Otieno Oganga male aged 61 years, and a driver at Sagegi Secondary School had been stabbed in the stomach in the home of one Elijah Onyango alias Dani by unknown person within Konguo “C” village.
The victim was rushed to Migori County Hospital where he was pronounced dead on arrival. He said that officers from Ogwedhi Police Station visited the scene and found the deceased’s clothes, shoes and radio outside the house. That according to the initial report the house had blood stains splashed on the wall an indication the deceased was stabbed while inside the house. That the first accused responded to the scene and found the deceased lying outside the door completely naked and was suspected to be a victim of love triangle. That the wife of the owner of the house the 2nd accused herein went and informed the police the victim had visited the house before being stabbed.
That on 8.6.2024 at around 0930 hours he received phone call from former DCIO Richard Cheruiyot concerning the incident and he was instructed to take over investigations. That he visited Ogwedhi Police Station in company of the OCS Ogwedhi Police Station Mr. Recha and the team from DCI they visited the scene and established the owner of the said homestead was Elijah Onyango Obura and Millicent Achieng. That he did establish that the exhibits recovered clothes shoes, radio wrist watch, under garments were at scene outside the door and had blood stains. That he further established inside the house were jerrycans and utensils which had blood splashed on them. There were also blood stains on the wall. That after visiting scene they moved to the station where the 2nd accused Millicent was already in custody. He said that the 1st accused was nowhere to be seen. That the 2nd accused was collected and escorted to Migori Police Station for interrogation. Upon interrogation of the 2nd accused she mentioned Josam Adori who was arrested. Josam Adori was a neighbor of 2nd accused about 100m apart. That upon interrogation of 2nd accused and Josam they were led to arrest the 3rd accused and he was booked at Ogwedhi Police Station.
That the 1st accused surfaced on 14.6.2024 one week after the incident and he went and made a report at Ogwedhi claiming someone had been killed in his house. Upon interrogation of Millicent it came out clearly that she had love relationship with the deceased. She said they had the relationship for over 5 years. That the deceased paid her a visit at 22.00hours and she opened for him and according to her they had sex. She said that after the act when the deceased went for a call of nature she heard someone tell the deceased
“I have been spying on you for long and today I have found you”
Millicent said she heard the deceased cry
“You have killed me”
That Millicent said the deceased mentioned that it was Dani who had killed him. Millicent was able to recognize her husband’s voice as the one who said he had been looking for the deceased for long.
During the statement recording PW11 established the 3rd accused managed to assist the deceased by calling the taxi driver but he lied to the taxi driver that the deceased had been attacked by unknown people while heading home.
The information received from the father of the 1st and 3rd accused to the chief was also not true. He claimed the deceased was killed on his way home but not at 1st accused’s home. I heard 1st accused works with BC Telcom Company Limited which does installation of communication boosters. During the time in question, PW11 said he obtained call logs to establish whether 1st accused was within locality when incident happened but the results were that he was out of network. The 1st accused having knowledge of how boosters work must have gone out of network deliberately and he was unable to establish where he was at the time of the incident. PW11 produced the exhibits recovered as:-
- Radio – Exp 2
- Pair of grey shoes -ExP3
- Grey inner pant ExP4
- Greyish belt ExP5
- Grey T-shirt -ExP6
- Trouser -ExP7
- Blue pair of short -ExP8
- Black wrist watch -ExP9
- White vest -ExP10
- Spectacle case -ExP11
PW11 said in cross examination that the 3rd accused called the taxi driver to come and assist the deceased. He said it was not true that 3rd accused had full facts of what happened. He said the 3rd accused misled the taxi driver that the victim was at his home. It is same taxi driver that assisted the deceased. He said that he The concluded that the 3rd accused was concealing information that deceased was attacked at his brother’s home. He said he could not answer whether call to taxi driver was meant to assist the victim. The taxi driver was on the way to the victim’s home when he found scene was at 1st accused’s home. The Chief got a report from village elder who is father of 1st and 3rd accused Gabriel that the victim had been attacked on his way home. PW11 said that his investigations didn’t establish that Gabriel was at the scene and Gabriel had not been charged. The information that Gabriel gave to the chief Silas is similar to the information 3rd accused gave to the taxi driver. He said that the 3rd accused and his father Gabriel gave false information. PW4 Silpa Aluoch made phone call to 3rd accused and 2nd accused spoke to him. During my investigations I realized that if there was first responders to the scene it should have been his younger brother Okwanyo. None of the witnesses testified to have called Okwanyo. 3rd accused did not inform Okwanyo about the information he got from Millicent when using PW4’s phone. Any of the witnesses could have informed Okwanyo about what happened. 3rd accused was told to call for a taxi. The call for a taxi came from 3rd accused because he had a phone. I don’t have sketch plan of the compound. I did not outline how the house of 2nd accused is, 1st and 2nd accused house has 2 rooms sitting room from main entrance on the left there is a room to the rear door. The 3rd room is the kitchen. It is an arrear that is towards rear door. When one gets into the house through the back door you go through the kitchen area and into the bedroom area. 2nd accused and the deceased had intimate relationship that had taken around 5 years. The deceased had his wives and children and 2nd accused also had husband and children. I can’t tell if the relationship between 2nd accused and the deceased was mutual. According to 2nd accused she had sexual intercourse with the deceased on the material night. According to the evidence gathered the deceased was stripped off hi clothes. None of the prosecution witnesses told me. 2nd accused had threatened the deceased person’s life. 2nd accused didn’t disclose any differences between her and the deceased. Chief inspector Recha said that 2nd accused and the deceased were attacked from inside the house. According to my investigations the door was not tampered with. Chief inspector Recha established that the door was pushed from outside. According to 2nd accused the deceased met his attackers when he opened the door to go for a call of nature. I don’t dispute Chief Inspector Recha’s evidence but the door was not interfered with. I did not recover the murder weapon. 2nd accused was with the victim at the time of attack. The attack appears to have been timed. It must have been planned. The deceased was still talking at the time that 1st responders arrived at the scene. From my investigations I can’t tell if 2nd accused murdered the deceased. 2nd accused was the last person to be with the deceased before the attack. I can’t tell if the deceased was naked because he was in intimate relationship with 2nd accused. The attack happened outside and 2nd accused may not have seen the attacker. I found nothing to link the 2nd accused to the murder of the deceased. From my investigations I established 1st accused works with BC Telecommunications. I didn’t establish his position in the said company. On 7.6.2024 1st accused was not in the crime scene when
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