1. The Accused herein, James Warambo Ogoma is charged with two counts of murder contrary to section 203 as read with section 204 of Penal Code. The particulars of the offences in both counts as per the Information dated are that on the night of 20th May 2024 at Luri "B" Village, Nyandiwa Sub Location, Gem Sub County within Siaya County, jointly with others not before court, he murdered Charles Orwa Ogoma (Count I) and Marcel Orwa Ogoma (Count II).
2. The prosecution called a total of seven witnesses in support of its case
3. Grace Akinyi Orwa ( PW1 ) testified that she was a resident of Luri and a peasant farmer. On May 20, 2024, at around 5:00 PM, she was at home with her son, Marcel Ogoma who was slashing grass near the toilet. She was inside the house preparing dinner when she heard her son exclaim that the accused had speared him. She rushed outside and found her son on the ground with a spear injury. She alerted her husband to come out of the house and they later rushed her son to the Hospital. That at around 8:00 PM, she took a motorcycle to return home at which point she learned that a second person had been speared by the accused and that their home had been razed. They returned to the hospital where she discovered her husband had also been speared in the heart. Both bodies were taken to Yala. She stated that she could not return home because the house was burnt, so she stayed at the police station for over a week before seeking refuge at another lady's home. Later, the police supervised the burial for her son and husband who were buried on June 10, 2024. She identified the accused in the dock as the person responsible for the deaths and noted that her late husband was the brother of the accused.
On cross examination, she confirmed that she recorded her police statement on June 4, 2024 and sought to rely on its contents. She denied that her husband was killed by a rowdy mob and maintained that the accused speared both her son and her husband. She stated that she witnessed the assault on her son while the accused was armed with a spear. She stated that other witnesses were afraid to come forward. She denied that a mob was involved in the primary attack on her family, maintaining that it was the accused who fought the two victims.
4. Yvone Daisy Auma (PW2) testified that she was a resident of Sagam. That on May 20, 2024 at 5:00 PM, Marcel Ogoma was slashing grass near the fence while she was in the kitchen. That she observed the accused approach and spear Marcel. That Marcel raised an alarm prompting them to rush to him and found him badly injured. He was taken to the hospital by her mother while she remained with her father. Later, a mob arrived and pelted their house with stones. Her father was subsequently speared in the heart after being ordered to come out of the house. Police officers managed to rescue her. She later joined her mother at Yala Police Station and then stayed there for one and a half weeks. She confirmed that the victims were buried on June 10, 2024. She stated that she witnessed both incidents from home and pointed out the accused in the dock as the culprit.
On cross-examination, she stated that she was unaware of anyone else being killed at the same venue. She denied that a crowd of over three hundred people executed the attack, reiterating that the accused was the killer. She confirmed that she witnessed both incidents. She stated she was unaware of anyone else being killed at the venue though she had heard that Francis Omondi Otieno was also killed there. She identified Charles Orwa Ogoma as her grandfather and stated that she did not know if he had killed Francis Omondi Otieno. She acknowledged that a rowdy crowd of over three hundred people were present at the scene. She maintained that the killers were the accused and one Eric Okoth, stating that Eric Okoth hit Charles Ogoma on the head. She added that the same spear killed both victims. She clarified that she was at home alone initially and that there was no crowd present at the start.
5. Rashid Opiyo Otieno Alias George Opiyo Otieno ( PW3) identified himself as a peasant farmer from Central Gem. He testified that on May 20, 2024 at around 5:00 PM, while working at his farm, he saw people slashing grass. That the accused came and demanded to know what those people were doing on the farm, noting there was an ongoing court case. The accused went to his house and returned armed with a spear. Another assailant arrived with a panga and cut the deceased on the head. The accused joined in, attacked the victims and then fled to his home. An alarm was raised and the assistant chief arrived and called out for the accused and his son. An irate crowd baying for the accused's blood surged forward as they believed that he was behind the incident. He stated that he saw the accused attacking the son of Charles with a panga. He stated that Charles Orwa was cut by one Okoth (who was not in court) and that the accused was present while armed with a spear. He identified the physical exhibit as a single metal spear.
On cross examination, he maintained that four people died in connection with the incident including Charles, Marcel Ogoma, Okoth and Nyagwaka. He stated that the incident was initiated by the accused who was Charles's brother. He confirmed that the accused was present at the scene and killed Marcel Ogoma though the person who killed Charles was not in court. He explained that the accused aimed at Charles, missed and struck Charles's son instead intending to kill his brother but resulting in the death of his brother's son.
6. Noah Oduor Oluoch (PW4) the assistant chief Nyandiwa sub-location testified that he received a phone call at 5:00 PM on May 20, 2024 from the accused informing him that his family had been attacked and that Francis Omondi had been killed by Charles’s family. That he instructed the accused to wait while they arranged a visit, then informed the Chief who alerted the police. He met the Chief and police officers from Nyawara Police Post and rushed to the scene. They encountered villagers yelling and pelting a house with stones. The accused met them and led them to the body of Francis Otieno. Subsequently, Charles's family began pelting the officers with stones. Police deployed teargas, entered the homestead and found Charles's body with a spear stuck in his chest. He stated that he did not see Marcel Ogoma at that time and did not know the exact extent of the accused's involvement in the crime though he met him outside.
On cross examination, he confirmed finding two bodies at the scene, that of Francis and Charles. He stated that a crowd of over one hundred armed people were present in Charles's homestead, pelting stones to prevent authorities from reaching the house. He noted that the initial death of Francis Otieno led to the second incident. That Charles's body was located within his homestead next to his house behind the accused's home. He reconfirmed that the accused met them outside Charles's house and led them to Francis Otieno's body. He stated that he could not determine who killed Marcel Ogoma as he was not present when it occurred.
7. No.261054 PC Douglas Mochama (PW5) testified that he was based at Nyawara Police Post performing general duties. On May 20, 2024 at around 5:00 PM, the Assistant Chief Vincent called his colleague and reported an ongoing riot at Ruri place. Officers rushed to the scene and encountered a large hostile crowd in a compound belonging to Charles Orwa. The officers attempted to disperse the crowd using teargas but the crowd retaliated by throwing stones. They found that the owner of the home had been speared in the stomach. After calling for reinforcements, they discovered another person who had succumbed to injuries on a track. They learned that Marcel Ogoma had been rushed to the hospital but passed away. The individual speared in the stomach also died. DCI officers picked up the bodies and the police returned to their post. He stated that he did not witness the initial attack but found Charles alive at the scene before he passed away 30 to 40 minutes later.
On cross examination, he testified that he did not find the accused at the scene and did not witness the incident directly.
8. Dr. Victor Ochieng (PW6 ) testified that he is a medical officer based at Yala- sub county hospital and that he performed an autopsy on both deceased individuals. He produced Post Mortem reports for Charles Ogoma (PExht 2) and Marcel Ogoma (PExht 3). On the findings of Charles Ogoma’s autopsy, that there were deep cut wounds on the left hand/elbow, superficial burns, multiple parietal scalp cuts, severe abdominal penetrating stab wounds and a ruptured spleen. That he formed the opinion that the cause of death was cardiopulmonary failure secondary to hemorrhagic shock resulting from spleen injury due to assault. On the findings of Marcel Ogoma’s autopsy, that there was a penetrating spear wound to the left thigh area resulting in massive damage to major femoral blood vessels. That he formed the opinion that the cause of death was cardiopulmonary failure secondary to hemorrhagic shock following major femoral vessel injury due to spear assault.
9. No.75141 SGT Ngeno Kibet Simon (Pw7) testified that he is attached at DCI Siaya and the investigation officer in the matter. On May 20, 2024 at around 5.40p.m, he received a report from the OCS Yala Police Station who received a report that two relatives had fought at Ruri village in Central Gem location. Upon arriving at the scene with other officers from Nyawara police post, he observed a large crowd and a burnt house. He found the body of Charles Orwa who had been speared. The Chief and Assistant Chief assisted in moving the deceased's body to safety. He observed another body near the house, processed the scene and transferred the bodies to the Yala Hospital mortuary. He learned that Marcel Ogoma had been injured with a spear, rushed to the hospital and subsequently died. The doctor later removed the spear stuck in Charles's body which he retained as an exhibit. On June 4, 2024 autopsies were conducted on the three bodies by Dr. Ochieng in the presence of family members. His investigations revealed that the accused and Charles Orwa Ogoma were brothers who had been squabbling over an access road to the river, a matter previously reported to the police. He established that the accused was armed with a spear and had quarreled with his brother. He forwarded the file to the DPP where charges were approved. He produced the recovered metal spear as (PExht 1).
On cross examination, he confirmed that he visited the scene on the material date and had been in possession of the spear. He confirmed that he did not witness the incident. He acknowledged that he had no physical evidence proving ownership of the spear by the accused.
On re-examination, he clarified that he retrieved the spear directly from the body of Charles Orwa.
10. At the close of the Prosecution's case, the court established that a prima facie case had been made against the accused herein to require him to be put on his defence. The accused opted to tender sworn testimony and called three witnesses.
11. James Warambo Ogoma (DW1) testified that he is the accused person in the matter and resided in Nyandiwa Sub-location, Luri "B" Village, Central Gem Location. He stated that he was a painter and a farmer and that he was aware of the murder case. He recalled that on the night of 20th May 2024 at around 4:00 PM, he was at his home and had tethered his cows near the river. The cows made a noise, prompting him to go check on them. Upon arrival, he found Marcel Orwa Ogoma. He stated that Marcel Ogoma was attacking his cows and suddenly turned to attack him. He added that Charles Ogoma arrived while armed with a spear and attempted to spear him. He used a shield and in the process the spear missed him and injured Marcel Ogoma. He stated that he then managed to rush to the area assistant chief to report. They came back only to find Francis Omondi had been killed and Marcel Ogoma had been rushed to hospital. Later, he heard an alarm raised by school children and the Area Chief arrived with police officers who fired shots into the air at the home of Charles Ogoma. He stated that Charles Ogoma and Francis Omondi were also involved and police later collected their bodies. The following day, he recorded a statement at Yala Police Station. When asked whether their land had been subdivided, he answered in the affirmative. He disputed the claims made by Grace, the wife of Charles Ogoma stating that her version of events was not true. He denied that he speared Charles Orwa with a spear. He stated that it was Charles who raised the spear which he evaded and it hit Charles’s son, Marcel. He stated that Charles Ogoma was almost subduing him in strength. He clarified that he was not at the scene when Kennedy Onyimbo, Margaret, Owuor and Chief Vincent Onyango were present. He testified that Charles Ogoma was standing at a distance of about five meters from where he was struggling with Marcel Ogoma. Marcel Ogoma wanted to cut him with a panga but he managed to get hold of Marcel's hand and averted the cut.
On cross examination , he testified that they did not have a family dispute regarding a pathway leading to the river. He stated that he narrated everything that arose from the incident and maintained that he had never lodged a formal complaint with the State against his brothers. He admitted that he had trusted his brother believing he would not cause him harm. He noted that everyone had their own respective properties. He reiterated that when he went to check on his cows, Marcel attempted to attack him with a panga leading him to demand an explanation as to why Marcel was assaulting him. He maintained that he was completely unarmed. He testified that he normally keeps a jembe and a slasher at his house. He stated that God gave him the strength to defend himself against Marcel. He acknowledged hearing the testimony of Rashid Opiyo but asserted that Opiyo was not present at the scene. He claimed that Opiyo was telling lies because his mother had been drinking alcohol with the deceased at the Busaa den. He added that he sought refuge elsewhere following the incident. He denied the prosecution’s version of events stating that villagers did not storm the home of Charles Ogoma. He denied assaulting the victims and insisted that Marcel was accidentally struck and killed by his own father
12. Vincent Onyango (DW2) testified that he is the Area Chief of Central Gem Location and is familiar with the facts of the case. He recalled that on 20th May 2024 at around 5:00 PM, he received a phone call from James Warambo Ogoma who informed him that he should rush to his home with the police officers as his brother Charles Orwa Ogoma, Caxton Ouma Lameck Lomo and two other unknown people had killed one Francis Omondi. He then alerted the area assistant chief Noah and that they converged at Nyawara police post and proceeded to the scene accompanied by three police officers. On arrival, they found that Francis Omondi had suffered a cut to the back of his head. They then went to the home of Charles Ogoma where they found an irate crowd of villagers. The police lobbed teargas canisters to disperse the crowd. Charles Ogoma emerged from the house while holding a spear in his right hand and confronted them. Suddenly, a spear was thrown from the crowd, striking Charles Ogoma who then fell to the ground. The villagers subsequently set his house on fire. He later gathered information indicating that Charles Ogoma had a feud with James Warambo over a panga and had met Marcel’s father. Charles had attempted to spear James Warambo but mistakenly hit his own son. He clarified that he did not see James Warambo at that particular scene. Police officers from Yala later collected the bodies. Marcel Ogoma subsequently passed away while in the hospital. He estimated that approximately 300 people had gathered at the home of Charles Orwa Ogoma. He re-confirmed that Francis Omondi had a deep cut on the back of his head and that individuals behind them threw a spear at Charles Orwa Ogoma resulting in his death.
On cross examination, he admitted that he was not at the scene when James Warambo initially called him and therefore, he did not witness the start of the incident. He noted that the accused claimed Francis Omondi was killed by Charles Ogoma and others. He reiterated that he encountered about 300 people at the scene and did not see the accused person there that day other than speaking with him earlier on the phone. He confirmed that he did not witness the assault on Marcel Ogoma.
13. Kennedy Ouma Onyimbo (DW3) testified that on 20th May 2024 at around 4:30 PM he was on his way to the river to fetch water. He heard the accused raising an alarm, stating that he was being attacked. He approached the grazing area and found people assaulting the cows. The individuals involved were Charles Ogoma, the accused and Marcel Ogoma. That Charles Ogoma stated that they were looking for the accused. That Charles Ogoma directed Marcel Ogoma to cut the accused with a panga. In the process, Charles threw a spear intended for the accused but it struck Marcel Ogoma instead. The accused then managed to escape. He added that the sons of Charles Ogoma along with two other individuals emerged from a nearby bush and attacked both the accused’s wife and Francis Omondi. Francis slipped and fell, whereupon he was severely cut and killed. The accused’s wife and some school children raised an alarm. Francis Omondi’s mother arrived at the scene while screaming. Shocked villagers gathered and went to Charles Ogoma’s home where they found him armed with a spear and a panga. The retaliatory crowd attacked and killed Charles Ogoma.
On cross examination, he stated that James, Charles and Marcel Ogoma were all present. That James was unarmed while Charles carried a spear and Marcel had a panga. As James bent down to tether his cow, Charles attempted to spear him. James ducked, causing the spear to hit Marcel in the waist making him fall. Charles pursued James for some distance while others rushed Marcel to the hospital. He confirmed that James and Charles were blood brothers. He observed that one of the accused's cows had been cut on its leg. He stated that he observed the ordeal from a safe distance because Charles Ogoma was behaving wildly and had threatened him. He admitted that he did not report Charles's threats to the police. He confirmed that the sons of Charles assaulted Francis until he died. He noted that Charles’s wife was not present at the scene at that moment. He reiterated that the Area Chief arrived at 6:00 PM after a large crowd had gathered at Charles Ogoma's compound. He maintained that he found the accused being attacked.
On re-examination, he clarified that Marcel fell after being wounded by the spear thrown by his father, Charles Ogoma. He reiterated that Charles was armed with a panga and a spear whereas the accused was completely unarmed
14. Margaret Awuor Ouma (DW4) testified that on 20th May 2024, she was at home with her husband who is the accused herein. That she was inside hosting a meeting with fellow members of a female welfare group while her husband was outside. Their cows were grazing in the field outside. She heard the cows making noise. Her husband had been feeling unwell at home but he proposed to go and check. Suddenly, she heard him scream twice, crying out that he was being killed. A young man named Francis Omondi also heard the screams and rushed out to see what was happening. She ran to the scene and saw the accused struggling with Marcel. Shortly after, Marcel's father Charles Ogoma arrived armed with a spear and a panga. Charles threw the spear aimed at the accused but as the accused turned Marcel around, the spear accidentally struck Marcel instead. Marcel fell to the ground with a spear wound. The accused managed to run away. Francis Omondi approached Charles Ogoma to ask why he had done that, whereupon Charles and others turned on Francis and killed him. She testified that Marcel was armed with a panga whereas her husband (the accused) was completely unarmed.
On cross-examination, she provided her ID Card No. 25959442. She confirmed that she was holding a welfare meeting at her house while her unwell husband was outside. She described Marcel as a strongly built young man. She reaffirmed that her husband was not carrying any weapons. She stated that Francis Omondi was killed by Charles and others. She explained that her husband and Marcel were struggling over a panga that belonged to Marcel. Marcel attempted to cut the accused with it but the accused got hold of it resulting in a struggle. The spear thrown from behind struck Marcel, causing him to drop the panga.
15. After the close of the defence case, parties were directed to file and exchange submissions. However, it is only the defence that complied.
16. Learned Counsel for the defense submitted that the primary issue for determination before the court was whether the prosecution had proved the case of murder against the accused herein beyond reasonable doubt.
17. Regarding the standard and burden of proof, the defense highlighted that the standard of proof in criminal matters was established in the classic English case of Woolmington v DPP [1935] AC 462 . Reference was also made to Bakare v State [1985] 2 NWLR, where Lord Oputa of the Supreme Court of Nigeria articulated that proof beyond reasonable doubt stems from the compelling presumption of innocence inherent in an adversary criminal justice system. To displace this presumption, the prosecution's evidence must establish guilt beyond reasonable doubt, which while not requiring absolute certainty demands a high degree of cogency consistent with a high degree of probability.
18. The defense contended that the prosecution was required to prove beyond reasonable doubt that the accused person caused the deaths of the deceased persons and possessed the requisite motive or intent to cause death or grievous harm. It was emphasized that under Article 50(2)(a) of the Constitution of Kenya, 2010, the burden of proof rests entirely on the prosecution/State throughout the trial and the accused person maintains the right to be presumed innocent until proven guilty. The defense reiterated that an accused person bears no duty to prove their innocence.
19. Referencing Republic v Andrew Muecha Omwenga, citing Maraga J (as he then was) regarding Section 203 of the Penal Code, the defense set out the three essential ingredients of murder that the prosecution must establish beyond reasonable doubt: The death of the deceased and the cause of that death; that the accused committed the unlawful act or omission causing the death and that the accused acted with malice aforethought
20. The defense conceded that the fact and cause of death of the two deceased persons were not in dispute. The prosecution relied on post-mortem reports produced by the doctor and the defense agreed with these findings acknowledging that the prosecution sufficiently proved the element of death beyond any reasonable doubt.
21. In evaluating whether the accused person committed the unlawful act causing the deaths, the defense analyzed the testimonies of the prosecution witnesses: PW1 testified that while harvesting potatoes, she heard Marcel Ogoma shout that the accused person had speared him and upon rushing to the scene, she found Marcel leaning against a tree speared. PW2 testified that Marcel Ogoma shouted, "James Warambo ichuoya gi tong" (loosely translated as "James Warambo has speared me") after which she informed her mother. PW3 stated that Charles Ogoma (deceased) intended to kill his brother James Warambo by throwing a spear but the spear mistakenly hit Marcel Ogoma (deceased) leading to his death. PW3 further noted that other individuals who caused death were not brought before the court. PW4 stated that he did not witness the deaths and only arrived after the incident had already occurred.
22. The defense cited Blackstone’s Ratio/Maxim ("it is better that ten guilty persons escape than that one innocent suffer") and referenced Justice Nyakundi in Republic v Daniel Charo Katana [2021] eKLR, emphasizing that the State must hold the highest standard of proof based on admissible, material evidence rather than suspicion, conjecture or sympathy.
23. The defense cited Section 206 of the Penal Code regarding the conditions establishing malice aforethought (including intent to kill/cause grievous harm, knowledge that an act will likely cause death/grievous harm, intent to commit a felony or intent to facilitate escape). Citing Republic v Tubere S/O Ochen [1945] 12 EACA 63 , the defense noted that malice aforethought may be inferred from the nature of the weapon, the targeted body part, the manner of use and the accused's conduct.
24. The defense submitted that the prosecution failed to establish malice aforethought. It argued that the prosecution's case relied on suspicion and that key witnesses failed to clarify the exact circumstances of the deaths while leaving out known culprits.
25. In contrast, the defense evidence demonstrated that prior to the deaths, the deceased Charles Ogoma along with two others had killed Francis Omondi causing an enraged crowd to gather. When Charles emerged from hiding, a spear thrown from the crowd struck him. Furthermore, regarding Marcel Ogoma, the defense explained that Marcel accosted the accused while carrying a panga and a spear and during a struggle, Charles attempted to spear the accused but missed. The defense highlighted that the prosecution failed to account for other individuals involved in the scuffle or clear up the doubts surrounding the deaths.
26. Citing Mary Wanjiku Gichira v Republic (Criminal Appeal No. 17 of 1998), the defense submitted that suspicion no matter how strong cannot replace standard proof of guilt. Because the evidence was not overwhelming and failed to establish guilt beyond reasonable doubt, the defense urged the court to grant the accused person the benefit of the doubt and acquit him of the murder charges.
27. I have considered the evidence adduced by both prosecution and defence as well as submissions presented. The issue for determination is whether the prosecution has proved its case against the accused herein beyond reasonable doubt.
28. It is noted that the accused herein has been charged under Section 203 as read with Section 204 of the Penal Code which provide as follows:
Section 203
Any person who of malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.
Section 204 –
Any person convicted of murder shall be sentenced to death.
29. The burden of proof in all criminal cases is always upon the prosecution to discharge and that the standard is one of beyond any reasonable doubt. See Woolmington vs DPP [1935] AC 462 which laid down the guiding principles regarding the issue of burden of proof which is placed on the shoulders of the prosecution to discharge and that the standard is one of beyond any reasonable doubt. The court stated in the Woolmington case as follows:
"Throughout the web of the English criminal law, one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner's guilt, subject to the qualification involving the defence of insanity and to any statutory exception. If at the end and on the evidence of the case, there is a reasonable doubt created by the evidence given either by the prosecution, or the prisoner fails to rebut the defence was committed by him, the prosecution has not made out a case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
30. In order to sustain a charge of murder, the prosecution is under obligation to prove certain essential ingredients inter alia; that there was death of the deceased; that the death was caused by an unlawful act or omission; that there was malice aforethought and that the accused is/are the perpetrator/s of the crime.
31. As regards the aspect of death, this is a straightforward question of fact. In this case, the deaths of the deceased were established beyond any doubt. The body of Marcel Ogoma was identified by his sister (PW2). It was also discovered at the scene by PW2 and PW3 and subsequently examined by Dr. Don Otowa (PW7), who performed a post-mortem examination. I find the ingredient on the issue of death of the deceased Marcel Ogoma was proved by the prosecution beyond any reasonable doubt. The death and cause of death of both Charles Ogoma and Marcel Ogoma are established without controversy. Medical evidence presented by PW6 (Dr. Victor Ochieng) via post-mortem reports (PExht 2 and PExht 3) shows that Marcel Ogoma died of cardiopulmonary failure secondary to hemorrhagic shock following a massive femoral vessel injury caused by a spear assault while Charles Ogoma died from cardiopulmonary failure secondary to hemorrhagic shock following a ruptured spleen and severe abdominal penetrating stab wounds. Both deaths were violent, unnatural and directly caused by severe physical trauma resulting from an assault. I find the first ingredient is established beyond reasonable doubt.
32. As regards the unlawfulness of the death, it is trite law that all homicides are unlawful unless circumstances exist to render it excusable or justified as was established in the case of R vs Guzambizi S/o Wesonga 2 [1948]15 EACA 65. I find no such circumst
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2. The prosecution called a total of seven witnesses in support of its case
3. Grace Akinyi Orwa ( PW1 ) testified that she was a resident of Luri and a peasant farmer. On May 20, 2024, at around 5:00 PM, she was at home with her son, Marcel Ogoma who was slashing grass near the toilet. She was inside the house preparing dinner when she heard her son exclaim that the accused had speared him. She rushed outside and found her son on the ground with a spear injury. She alerted her husband to come out of the house and they later rushed her son to the Hospital. That at around 8:00 PM, she took a motorcycle to return home at which point she learned that a second person had been speared by the accused and that their home had been razed. They returned to the hospital where she discovered her husband had also been speared in the heart. Both bodies were taken to Yala. She stated that she could not return home because the house was burnt, so she stayed at the police station for over a week before seeking refuge at another lady's home. Later, the police supervised the burial for her son and husband who were buried on June 10, 2024. She identified the accused in the dock as the person responsible for the deaths and noted that her late husband was the brother of the accused.
On cross examination, she confirmed that she recorded her police statement on June 4, 2024 and sought to rely on its contents. She denied that her husband was killed by a rowdy mob and maintained that the accused speared both her son and her husband. She stated that she witnessed the assault on her son while the accused was armed with a spear. She stated that other witnesses were afraid to come forward. She denied that a mob was involved in the primary attack on her family, maintaining that it was the accused who fought the two victims.
4. Yvone Daisy Auma (PW2) testified that she was a resident of Sagam. That on May 20, 2024 at 5:00 PM, Marcel Ogoma was slashing grass near the fence while she was in the kitchen. That she observed the accused approach and spear Marcel. That Marcel raised an alarm prompting them to rush to him and found him badly injured. He was taken to the hospital by her mother while she remained with her father. Later, a mob arrived and pelted their house with stones. Her father was subsequently speared in the heart after being ordered to come out of the house. Police officers managed to rescue her. She later joined her mother at Yala Police Station and then stayed there for one and a half weeks. She confirmed that the victims were buried on June 10, 2024. She stated that she witnessed both incidents from home and pointed out the accused in the dock as the culprit.
On cross-examination, she stated that she was unaware of anyone else being killed at the same venue. She denied that a crowd of over three hundred people executed the attack, reiterating that the accused was the killer. She confirmed that she witnessed both incidents. She stated she was unaware of anyone else being killed at the venue though she had heard that Francis Omondi Otieno was also killed there. She identified Charles Orwa Ogoma as her grandfather and stated that she did not know if he had killed Francis Omondi Otieno. She acknowledged that a rowdy crowd of over three hundred people were present at the scene. She maintained that the killers were the accused and one Eric Okoth, stating that Eric Okoth hit Charles Ogoma on the head. She added that the same spear killed both victims. She clarified that she was at home alone initially and that there was no crowd present at the start.
5. Rashid Opiyo Otieno Alias George Opiyo Otieno ( PW3) identified himself as a peasant farmer from Central Gem. He testified that on May 20, 2024 at around 5:00 PM, while working at his farm, he saw people slashing grass. That the accused came and demanded to know what those people were doing on the farm, noting there was an ongoing court case. The accused went to his house and returned armed with a spear. Another assailant arrived with a panga and cut the deceased on the head. The accused joined in, attacked the victims and then fled to his home. An alarm was raised and the assistant chief arrived and called out for the accused and his son. An irate crowd baying for the accused's blood surged forward as they believed that he was behind the incident. He stated that he saw the accused attacking the son of Charles with a panga. He stated that Charles Orwa was cut by one Okoth (who was not in court) and that the accused was present while armed with a spear. He identified the physical exhibit as a single metal spear.
On cross examination, he maintained that four people died in connection with the incident including Charles, Marcel Ogoma, Okoth and Nyagwaka. He stated that the incident was initiated by the accused who was Charles's brother. He confirmed that the accused was present at the scene and killed Marcel Ogoma though the person who killed Charles was not in court. He explained that the accused aimed at Charles, missed and struck Charles's son instead intending to kill his brother but resulting in the death of his brother's son.
6. Noah Oduor Oluoch (PW4) the assistant chief Nyandiwa sub-location testified that he received a phone call at 5:00 PM on May 20, 2024 from the accused informing him that his family had been attacked and that Francis Omondi had been killed by Charles’s family. That he instructed the accused to wait while they arranged a visit, then informed the Chief who alerted the police. He met the Chief and police officers from Nyawara Police Post and rushed to the scene. They encountered villagers yelling and pelting a house with stones. The accused met them and led them to the body of Francis Otieno. Subsequently, Charles's family began pelting the officers with stones. Police deployed teargas, entered the homestead and found Charles's body with a spear stuck in his chest. He stated that he did not see Marcel Ogoma at that time and did not know the exact extent of the accused's involvement in the crime though he met him outside.
On cross examination, he confirmed finding two bodies at the scene, that of Francis and Charles. He stated that a crowd of over one hundred armed people were present in Charles's homestead, pelting stones to prevent authorities from reaching the house. He noted that the initial death of Francis Otieno led to the second incident. That Charles's body was located within his homestead next to his house behind the accused's home. He reconfirmed that the accused met them outside Charles's house and led them to Francis Otieno's body. He stated that he could not determine who killed Marcel Ogoma as he was not present when it occurred.
7. No.261054 PC Douglas Mochama (PW5) testified that he was based at Nyawara Police Post performing general duties. On May 20, 2024 at around 5:00 PM, the Assistant Chief Vincent called his colleague and reported an ongoing riot at Ruri place. Officers rushed to the scene and encountered a large hostile crowd in a compound belonging to Charles Orwa. The officers attempted to disperse the crowd using teargas but the crowd retaliated by throwing stones. They found that the owner of the home had been speared in the stomach. After calling for reinforcements, they discovered another person who had succumbed to injuries on a track. They learned that Marcel Ogoma had been rushed to the hospital but passed away. The individual speared in the stomach also died. DCI officers picked up the bodies and the police returned to their post. He stated that he did not witness the initial attack but found Charles alive at the scene before he passed away 30 to 40 minutes later.
On cross examination, he testified that he did not find the accused at the scene and did not witness the incident directly.
8. Dr. Victor Ochieng (PW6 ) testified that he is a medical officer based at Yala- sub county hospital and that he performed an autopsy on both deceased individuals. He produced Post Mortem reports for Charles Ogoma (PExht 2) and Marcel Ogoma (PExht 3). On the findings of Charles Ogoma’s autopsy, that there were deep cut wounds on the left hand/elbow, superficial burns, multiple parietal scalp cuts, severe abdominal penetrating stab wounds and a ruptured spleen. That he formed the opinion that the cause of death was cardiopulmonary failure secondary to hemorrhagic shock resulting from spleen injury due to assault. On the findings of Marcel Ogoma’s autopsy, that there was a penetrating spear wound to the left thigh area resulting in massive damage to major femoral blood vessels. That he formed the opinion that the cause of death was cardiopulmonary failure secondary to hemorrhagic shock following major femoral vessel injury due to spear assault.
9. No.75141 SGT Ngeno Kibet Simon (Pw7) testified that he is attached at DCI Siaya and the investigation officer in the matter. On May 20, 2024 at around 5.40p.m, he received a report from the OCS Yala Police Station who received a report that two relatives had fought at Ruri village in Central Gem location. Upon arriving at the scene with other officers from Nyawara police post, he observed a large crowd and a burnt house. He found the body of Charles Orwa who had been speared. The Chief and Assistant Chief assisted in moving the deceased's body to safety. He observed another body near the house, processed the scene and transferred the bodies to the Yala Hospital mortuary. He learned that Marcel Ogoma had been injured with a spear, rushed to the hospital and subsequently died. The doctor later removed the spear stuck in Charles's body which he retained as an exhibit. On June 4, 2024 autopsies were conducted on the three bodies by Dr. Ochieng in the presence of family members. His investigations revealed that the accused and Charles Orwa Ogoma were brothers who had been squabbling over an access road to the river, a matter previously reported to the police. He established that the accused was armed with a spear and had quarreled with his brother. He forwarded the file to the DPP where charges were approved. He produced the recovered metal spear as (PExht 1).
On cross examination, he confirmed that he visited the scene on the material date and had been in possession of the spear. He confirmed that he did not witness the incident. He acknowledged that he had no physical evidence proving ownership of the spear by the accused.
On re-examination, he clarified that he retrieved the spear directly from the body of Charles Orwa.
10. At the close of the Prosecution's case, the court established that a prima facie case had been made against the accused herein to require him to be put on his defence. The accused opted to tender sworn testimony and called three witnesses.
11. James Warambo Ogoma (DW1) testified that he is the accused person in the matter and resided in Nyandiwa Sub-location, Luri "B" Village, Central Gem Location. He stated that he was a painter and a farmer and that he was aware of the murder case. He recalled that on the night of 20th May 2024 at around 4:00 PM, he was at his home and had tethered his cows near the river. The cows made a noise, prompting him to go check on them. Upon arrival, he found Marcel Orwa Ogoma. He stated that Marcel Ogoma was attacking his cows and suddenly turned to attack him. He added that Charles Ogoma arrived while armed with a spear and attempted to spear him. He used a shield and in the process the spear missed him and injured Marcel Ogoma. He stated that he then managed to rush to the area assistant chief to report. They came back only to find Francis Omondi had been killed and Marcel Ogoma had been rushed to hospital. Later, he heard an alarm raised by school children and the Area Chief arrived with police officers who fired shots into the air at the home of Charles Ogoma. He stated that Charles Ogoma and Francis Omondi were also involved and police later collected their bodies. The following day, he recorded a statement at Yala Police Station. When asked whether their land had been subdivided, he answered in the affirmative. He disputed the claims made by Grace, the wife of Charles Ogoma stating that her version of events was not true. He denied that he speared Charles Orwa with a spear. He stated that it was Charles who raised the spear which he evaded and it hit Charles’s son, Marcel. He stated that Charles Ogoma was almost subduing him in strength. He clarified that he was not at the scene when Kennedy Onyimbo, Margaret, Owuor and Chief Vincent Onyango were present. He testified that Charles Ogoma was standing at a distance of about five meters from where he was struggling with Marcel Ogoma. Marcel Ogoma wanted to cut him with a panga but he managed to get hold of Marcel's hand and averted the cut.
On cross examination , he testified that they did not have a family dispute regarding a pathway leading to the river. He stated that he narrated everything that arose from the incident and maintained that he had never lodged a formal complaint with the State against his brothers. He admitted that he had trusted his brother believing he would not cause him harm. He noted that everyone had their own respective properties. He reiterated that when he went to check on his cows, Marcel attempted to attack him with a panga leading him to demand an explanation as to why Marcel was assaulting him. He maintained that he was completely unarmed. He testified that he normally keeps a jembe and a slasher at his house. He stated that God gave him the strength to defend himself against Marcel. He acknowledged hearing the testimony of Rashid Opiyo but asserted that Opiyo was not present at the scene. He claimed that Opiyo was telling lies because his mother had been drinking alcohol with the deceased at the Busaa den. He added that he sought refuge elsewhere following the incident. He denied the prosecution’s version of events stating that villagers did not storm the home of Charles Ogoma. He denied assaulting the victims and insisted that Marcel was accidentally struck and killed by his own father
12. Vincent Onyango (DW2) testified that he is the Area Chief of Central Gem Location and is familiar with the facts of the case. He recalled that on 20th May 2024 at around 5:00 PM, he received a phone call from James Warambo Ogoma who informed him that he should rush to his home with the police officers as his brother Charles Orwa Ogoma, Caxton Ouma Lameck Lomo and two other unknown people had killed one Francis Omondi. He then alerted the area assistant chief Noah and that they converged at Nyawara police post and proceeded to the scene accompanied by three police officers. On arrival, they found that Francis Omondi had suffered a cut to the back of his head. They then went to the home of Charles Ogoma where they found an irate crowd of villagers. The police lobbed teargas canisters to disperse the crowd. Charles Ogoma emerged from the house while holding a spear in his right hand and confronted them. Suddenly, a spear was thrown from the crowd, striking Charles Ogoma who then fell to the ground. The villagers subsequently set his house on fire. He later gathered information indicating that Charles Ogoma had a feud with James Warambo over a panga and had met Marcel’s father. Charles had attempted to spear James Warambo but mistakenly hit his own son. He clarified that he did not see James Warambo at that particular scene. Police officers from Yala later collected the bodies. Marcel Ogoma subsequently passed away while in the hospital. He estimated that approximately 300 people had gathered at the home of Charles Orwa Ogoma. He re-confirmed that Francis Omondi had a deep cut on the back of his head and that individuals behind them threw a spear at Charles Orwa Ogoma resulting in his death.
On cross examination, he admitted that he was not at the scene when James Warambo initially called him and therefore, he did not witness the start of the incident. He noted that the accused claimed Francis Omondi was killed by Charles Ogoma and others. He reiterated that he encountered about 300 people at the scene and did not see the accused person there that day other than speaking with him earlier on the phone. He confirmed that he did not witness the assault on Marcel Ogoma.
13. Kennedy Ouma Onyimbo (DW3) testified that on 20th May 2024 at around 4:30 PM he was on his way to the river to fetch water. He heard the accused raising an alarm, stating that he was being attacked. He approached the grazing area and found people assaulting the cows. The individuals involved were Charles Ogoma, the accused and Marcel Ogoma. That Charles Ogoma stated that they were looking for the accused. That Charles Ogoma directed Marcel Ogoma to cut the accused with a panga. In the process, Charles threw a spear intended for the accused but it struck Marcel Ogoma instead. The accused then managed to escape. He added that the sons of Charles Ogoma along with two other individuals emerged from a nearby bush and attacked both the accused’s wife and Francis Omondi. Francis slipped and fell, whereupon he was severely cut and killed. The accused’s wife and some school children raised an alarm. Francis Omondi’s mother arrived at the scene while screaming. Shocked villagers gathered and went to Charles Ogoma’s home where they found him armed with a spear and a panga. The retaliatory crowd attacked and killed Charles Ogoma.
On cross examination, he stated that James, Charles and Marcel Ogoma were all present. That James was unarmed while Charles carried a spear and Marcel had a panga. As James bent down to tether his cow, Charles attempted to spear him. James ducked, causing the spear to hit Marcel in the waist making him fall. Charles pursued James for some distance while others rushed Marcel to the hospital. He confirmed that James and Charles were blood brothers. He observed that one of the accused's cows had been cut on its leg. He stated that he observed the ordeal from a safe distance because Charles Ogoma was behaving wildly and had threatened him. He admitted that he did not report Charles's threats to the police. He confirmed that the sons of Charles assaulted Francis until he died. He noted that Charles’s wife was not present at the scene at that moment. He reiterated that the Area Chief arrived at 6:00 PM after a large crowd had gathered at Charles Ogoma's compound. He maintained that he found the accused being attacked.
On re-examination, he clarified that Marcel fell after being wounded by the spear thrown by his father, Charles Ogoma. He reiterated that Charles was armed with a panga and a spear whereas the accused was completely unarmed
14. Margaret Awuor Ouma (DW4) testified that on 20th May 2024, she was at home with her husband who is the accused herein. That she was inside hosting a meeting with fellow members of a female welfare group while her husband was outside. Their cows were grazing in the field outside. She heard the cows making noise. Her husband had been feeling unwell at home but he proposed to go and check. Suddenly, she heard him scream twice, crying out that he was being killed. A young man named Francis Omondi also heard the screams and rushed out to see what was happening. She ran to the scene and saw the accused struggling with Marcel. Shortly after, Marcel's father Charles Ogoma arrived armed with a spear and a panga. Charles threw the spear aimed at the accused but as the accused turned Marcel around, the spear accidentally struck Marcel instead. Marcel fell to the ground with a spear wound. The accused managed to run away. Francis Omondi approached Charles Ogoma to ask why he had done that, whereupon Charles and others turned on Francis and killed him. She testified that Marcel was armed with a panga whereas her husband (the accused) was completely unarmed.
On cross-examination, she provided her ID Card No. 25959442. She confirmed that she was holding a welfare meeting at her house while her unwell husband was outside. She described Marcel as a strongly built young man. She reaffirmed that her husband was not carrying any weapons. She stated that Francis Omondi was killed by Charles and others. She explained that her husband and Marcel were struggling over a panga that belonged to Marcel. Marcel attempted to cut the accused with it but the accused got hold of it resulting in a struggle. The spear thrown from behind struck Marcel, causing him to drop the panga.
15. After the close of the defence case, parties were directed to file and exchange submissions. However, it is only the defence that complied.
16. Learned Counsel for the defense submitted that the primary issue for determination before the court was whether the prosecution had proved the case of murder against the accused herein beyond reasonable doubt.
17. Regarding the standard and burden of proof, the defense highlighted that the standard of proof in criminal matters was established in the classic English case of Woolmington v DPP [1935] AC 462 . Reference was also made to Bakare v State [1985] 2 NWLR, where Lord Oputa of the Supreme Court of Nigeria articulated that proof beyond reasonable doubt stems from the compelling presumption of innocence inherent in an adversary criminal justice system. To displace this presumption, the prosecution's evidence must establish guilt beyond reasonable doubt, which while not requiring absolute certainty demands a high degree of cogency consistent with a high degree of probability.
18. The defense contended that the prosecution was required to prove beyond reasonable doubt that the accused person caused the deaths of the deceased persons and possessed the requisite motive or intent to cause death or grievous harm. It was emphasized that under Article 50(2)(a) of the Constitution of Kenya, 2010, the burden of proof rests entirely on the prosecution/State throughout the trial and the accused person maintains the right to be presumed innocent until proven guilty. The defense reiterated that an accused person bears no duty to prove their innocence.
19. Referencing Republic v Andrew Muecha Omwenga, citing Maraga J (as he then was) regarding Section 203 of the Penal Code, the defense set out the three essential ingredients of murder that the prosecution must establish beyond reasonable doubt: The death of the deceased and the cause of that death; that the accused committed the unlawful act or omission causing the death and that the accused acted with malice aforethought
20. The defense conceded that the fact and cause of death of the two deceased persons were not in dispute. The prosecution relied on post-mortem reports produced by the doctor and the defense agreed with these findings acknowledging that the prosecution sufficiently proved the element of death beyond any reasonable doubt.
21. In evaluating whether the accused person committed the unlawful act causing the deaths, the defense analyzed the testimonies of the prosecution witnesses: PW1 testified that while harvesting potatoes, she heard Marcel Ogoma shout that the accused person had speared him and upon rushing to the scene, she found Marcel leaning against a tree speared. PW2 testified that Marcel Ogoma shouted, "James Warambo ichuoya gi tong" (loosely translated as "James Warambo has speared me") after which she informed her mother. PW3 stated that Charles Ogoma (deceased) intended to kill his brother James Warambo by throwing a spear but the spear mistakenly hit Marcel Ogoma (deceased) leading to his death. PW3 further noted that other individuals who caused death were not brought before the court. PW4 stated that he did not witness the deaths and only arrived after the incident had already occurred.
22. The defense cited Blackstone’s Ratio/Maxim ("it is better that ten guilty persons escape than that one innocent suffer") and referenced Justice Nyakundi in Republic v Daniel Charo Katana [2021] eKLR, emphasizing that the State must hold the highest standard of proof based on admissible, material evidence rather than suspicion, conjecture or sympathy.
23. The defense cited Section 206 of the Penal Code regarding the conditions establishing malice aforethought (including intent to kill/cause grievous harm, knowledge that an act will likely cause death/grievous harm, intent to commit a felony or intent to facilitate escape). Citing Republic v Tubere S/O Ochen [1945] 12 EACA 63 , the defense noted that malice aforethought may be inferred from the nature of the weapon, the targeted body part, the manner of use and the accused's conduct.
24. The defense submitted that the prosecution failed to establish malice aforethought. It argued that the prosecution's case relied on suspicion and that key witnesses failed to clarify the exact circumstances of the deaths while leaving out known culprits.
25. In contrast, the defense evidence demonstrated that prior to the deaths, the deceased Charles Ogoma along with two others had killed Francis Omondi causing an enraged crowd to gather. When Charles emerged from hiding, a spear thrown from the crowd struck him. Furthermore, regarding Marcel Ogoma, the defense explained that Marcel accosted the accused while carrying a panga and a spear and during a struggle, Charles attempted to spear the accused but missed. The defense highlighted that the prosecution failed to account for other individuals involved in the scuffle or clear up the doubts surrounding the deaths.
26. Citing Mary Wanjiku Gichira v Republic (Criminal Appeal No. 17 of 1998), the defense submitted that suspicion no matter how strong cannot replace standard proof of guilt. Because the evidence was not overwhelming and failed to establish guilt beyond reasonable doubt, the defense urged the court to grant the accused person the benefit of the doubt and acquit him of the murder charges.
27. I have considered the evidence adduced by both prosecution and defence as well as submissions presented. The issue for determination is whether the prosecution has proved its case against the accused herein beyond reasonable doubt.
28. It is noted that the accused herein has been charged under Section 203 as read with Section 204 of the Penal Code which provide as follows:
Section 203
Any person who of malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.
Section 204 –
Any person convicted of murder shall be sentenced to death.
29. The burden of proof in all criminal cases is always upon the prosecution to discharge and that the standard is one of beyond any reasonable doubt. See Woolmington vs DPP [1935] AC 462 which laid down the guiding principles regarding the issue of burden of proof which is placed on the shoulders of the prosecution to discharge and that the standard is one of beyond any reasonable doubt. The court stated in the Woolmington case as follows:
"Throughout the web of the English criminal law, one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner's guilt, subject to the qualification involving the defence of insanity and to any statutory exception. If at the end and on the evidence of the case, there is a reasonable doubt created by the evidence given either by the prosecution, or the prisoner fails to rebut the defence was committed by him, the prosecution has not made out a case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
30. In order to sustain a charge of murder, the prosecution is under obligation to prove certain essential ingredients inter alia; that there was death of the deceased; that the death was caused by an unlawful act or omission; that there was malice aforethought and that the accused is/are the perpetrator/s of the crime.
31. As regards the aspect of death, this is a straightforward question of fact. In this case, the deaths of the deceased were established beyond any doubt. The body of Marcel Ogoma was identified by his sister (PW2). It was also discovered at the scene by PW2 and PW3 and subsequently examined by Dr. Don Otowa (PW7), who performed a post-mortem examination. I find the ingredient on the issue of death of the deceased Marcel Ogoma was proved by the prosecution beyond any reasonable doubt. The death and cause of death of both Charles Ogoma and Marcel Ogoma are established without controversy. Medical evidence presented by PW6 (Dr. Victor Ochieng) via post-mortem reports (PExht 2 and PExht 3) shows that Marcel Ogoma died of cardiopulmonary failure secondary to hemorrhagic shock following a massive femoral vessel injury caused by a spear assault while Charles Ogoma died from cardiopulmonary failure secondary to hemorrhagic shock following a ruptured spleen and severe abdominal penetrating stab wounds. Both deaths were violent, unnatural and directly caused by severe physical trauma resulting from an assault. I find the first ingredient is established beyond reasonable doubt.
32. As regards the unlawfulness of the death, it is trite law that all homicides are unlawful unless circumstances exist to render it excusable or justified as was established in the case of R vs Guzambizi S/o Wesonga 2 [1948]15 EACA 65. I find no such circumst
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