1. The three accused persons herein Benard Otieno Mawere alia Moi, Joshua Adera Atwa alia Adani and Naftali Okeyo Mawere have been charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on the 1 st day of August 2023 at around 1930 hours at Yenga village, Central Sakwa Location in Bondo Sub County within Siaya County, jointly murdered one Daniel Ochieng Onyala.
2. The accused persons all denied the charge and thus the prosecution called six witnesses in support of its case.
3. The prosecution’s case is that on 1/6/2023 at 7.3O PM Lilian Auma Jow (PW1) who is wife of the deceased received a call from her son Stephen Onyango Ochieng (PW2) that while he was heading home, he saw the deceased herein being attacked by the three accused herein and that he had opted to rush to Kopolo police station to report the incident. That PW1 then rushed home and learnt that the body of her husband had been taken away to Bondo Sub county hospital and that she rushed there and saw the body which had injuries on the forehead with fractures and one tooth was missing. That she later witnessed the autopsy conducted on 3/8/2023. That her late husband had been trying to resolve the family land dispute.
4. It was the evidence of Stephen Onyango Ochieng (PW2) that on the 1/8/2023 at 7.00 PM he was from his work place and heading home using his motorcycle when he came across his father’s motorcycle registration number KMDD 004q which was lying down on the road while his father lay next to it and that the three accused were armed with metal bars and that the 3 rd accused was then beating the deceased while the other two were standing next to him. That when they saw him, they threatened him that he was their next target. That he did not scream or raise alarm but dashed to Kopolo police station and lodged a report and came back to the scene with police officers and found his father had died and that the three assailants had escaped. That the body was later collected by the police and taken to Bondo Sub County hospital mortuary. On cross-examination, he stated inter alia; that he was alone at the time. That he was able to identify the three accused with the help of the headlight of his motorcycle; that he knows that the other accused person also assaulted the deceased because they had weapons on their hands but did not see them attacking the deceased; that 1 st and 3 rd accused are his step brothers; that his brother Felix Ochieng is in prison after the 3 rd accused sued him for assaulting him and damaging one of his eyes; that he is not aware of any land dispute within the family; that it is not true that the deceased fell off his motorcycle and fell on a stone; that the deceased had earlier called for a meeting for family members over the issue of the land and that it is the land dispute that caused the death of the deceased.
5. It was the evidence of Dr Daniel Wanjovu Juma (PW3) that he conducted the autopsy on the body of the deceased on 3/8/2023 and note one lower incisor tooth missing while the other teeth were broken and that the frontal region of the temporal region of the head had injuries and that there were fragmented skull fractures on right frontal parietal region. That he formed the opinion that the cause of death was severe head injury with depressed fragmented skull fractures secondary to blunt head trauma. He produced the autopsy report as exhibit 2.
6. It was the evidence of No. 68104 Pc Joseph Kipsang (PW4) that he was at Kopolo police post when PW2 arrived and lodge d a report that he was on his way home when he bumped upon the three accused assaulting his father. That they accompanied him to the scene but did not find the assailants at the scene and only the body of the deceased. That he alerted Bondo police station and that the body was collected and taken to the mortuary.
7. No. 112661 Pc Winston Obare (PW5) testified that he arrived at the scene and found the body of the deceased and had it moved to the mortuary. That he learnt from the version of PW2 that he had found the suspects assaulting his father and thus rushed to Kopolo police post to lodge a report. That he later conducted investigations leading to the arrest of the three accused persons herein.
8. No. 66783 Cpl Simon Likonyi (PW6) was the scenes of crime officer herein. That he received a CD from the investigating officer regarding photographs that the said officer had taken at Kopolo area and that he wanted him to process the photographs. That he processed three of them which he produced as exhibits as well as the certificate.
8. At the close of the prosecution’s case, this court later held that that a prima facie case had been made out against the accused persons who were subsequently placed on their defence. The opted to tender sworn testimonies and called seven witnesses.
9. Bernard Otieno Mawere alias Moi (DW1) stated that he was at Kopolo bus stage playing pool game as from 5.00 PM and that later at 8.30PM, a fellow boda boda operator arrived while in company of police officers and learnt that the deceased who was his uncle had been involved in an accident and that he reached the scene and found the body. That he joined PW2 at the scene and availed some blankets with which to cover the body before the police from Bondo arrived to collect it. That he called the 3 rd accused from Yimbo to come the following day so that they could visit the mortuary the following morning. That he was not involved in the crime.
10. Joshua Adera Atwa alia Adani (DW2) testified that he was at his goldmining site when he was alerted that the deceased had been found dead along a road. That he rushed there and arrived at 8.00 PM and found a large crowd. That he had no grudge with the deceased who had been his teacher in primary school. That he found Stephen Ochieng (PW2) and 1 st accused at the scene. That he did not kill the deceased as he was then away at his workplace. That Stephen Ochieng (PW2) had earlier in 2022 assaulted the 3rd accused and that he had lodged the report to the police and hence the grudge.
11. Naftali Okeyo Mawere (DW3) testified that the family of PW2 had earlier ganged up and assaulted him leading him suffer severe head and right eye and that PW2’s brother Felix Ochieng was sentenced to ten years imprisonment. That he had no problem with the deceased who was his uncle and who had paid some of the medical bills while he was undergoing treatment following the attack on him by Felix Ochieng. That the wife of the deceased had a grudge against him. That it was the 1 st accused who had called him while he was still at Yimbo and thus he has an alibi showing that he was in Yimbo on 1/8/2023.
12. Dick Boss Ochiel (DW4) testified that he is the court administrator at Bondo Chief Magistrate’s court. He produced Bondo Criminal case number 698 of 2022 wherein the 3 rd accused herein was the complainant while one Felix Ochieng was the accused.
13. Anthony Monja (DW5) testified that he arrived at the scene at the same time with PW2 since he was ferrying him and another person on his motorcycle.
14. Kevin Omondi Omoso (DW6) testified that Felix Ochieng was jailed for assaulting the 3 rd accused herein. That he is the one who ferried the police officer from Kopolo police post to the scene but first passed by a certain pool table games premise where he found the 1 st accused herein and alerted him of the incident. That he did not witness the incident and cannot tell if the accused person were at the scene before moving to the pool table games.
15. Samson Okello Kobado (DW7) testified that on the material date he was away in Luore village with the 2 nd accused and later went with him to the scene where they reached at 8.00PM. That it looked like it was a self-involving accident. That he was not at the scene at 1930 hours. That he did not witness the incident. That according to him, it was a normal accident and not murder.
16. Paul Mango Oloo (DW8) testified that he was ferried by Anthony Monja and was also with Stephen Onyango Ochieng to the scene where he found the body of the deceased. That Stephen Onyango told lies to the court. That Stephen Onyango informed him that he thought the 3 rd accused might be behind the murder. That they passed by Kopolo trading centre and picked the 1 st accused who was then playing pool table game.
17. Isaiah Magati Juma (DW9) testified that on the material date at around 7.30 PM, he was playing pool table game at Kopolo trading centre with 1 st accused when some people arrived and called out the 1 st accused and that is when he learnt of the incident.
18. Benard Onyango Otieno (DW10) testified that he works as a security guard at DC Beach and that on 1/8/2023 he was in company of his colleagues Peter Ochieng and Naftali Okeyo for the night shift. That he later heard from Naftali Okeyo that he had been alerted by his brother that an uncle of theirs had died. That later on 12/8/2023, police visited his workplace and seized their mobile phones.
19. George Juma Agola (DW11) testified that on 1/8/2023 he was at Kopolo trading centre when he heard rumours that the deceased had died. That he then called the 3 rd accused and briefed him about the incident.
20. That marked the close of the defence case.
21. The parties were directed to file and exchange final submissions. However, it is only the defence counsels who complied.
22. Learned counsel for the 1 st and 2 nd accused raised one issue for determination namely, whether the offence of murder was proved against the 1 st and 2 nd accused persons. It was submitted that during the hearing of the Prosecution case PW2 testified that while he was from his work place at around 1900hrs he saw three accused person beating the deceased on the head with metal rods. According to his evidence he was alone on the road and that when the three accused person saw him they also threatened to deal with him. He claimed that he did not scream or call for help he just rushed to the police station to go and report the incident. This unnatural behavior raises doubt about the credibility of his account. It was submitted that his evidence was not corroborated nor was it supported by any other independent party hence the court should not base its findings on the said evidence. That when asked if the metal rods were before court as part of exhibits, he confirmed that none was before court. According to post mortem report and the doctor’s testimony, he concluded that the deceased had suffered from blunt trauma on the head and that the deceased only had one fresh head injury on the head which was caused by a blunt object. Upon cross examination, the doctor stated that from his conclusion the blunt object can even be a stone and since the deceased was riding a motorcycle he could have fallen and hit his head on a stone making him sustain such injury on his head though he could not ascertain this fact since he was not present at the scene. The doctor’s evidence contradicted Pw2’s testimony since according to PW2 the deceased had sustained deep cuts on his head and face. That this clear discrepancy further discredits the prosecution’s case.
23. As to whether the accused persons were identified as the assailants, it was submitted that none of the witnesses were able to demonstrate that the accused persons were attacking the deceased and there was no malice on the part of the accused persons. That identification parade was not carried out and the evidence that was adduced by the prosecution was that of recognition. However, PW2 testified that it was at night and there was no street light but only light from the motorcycle. He testified that the distance was about 165 meters from where he stood. Since it was dark, identification was more difficult and needed thorough examination. It was contended that where multiple individuals are involved, identification of the accused is central to the prosecution’s case and in this case, identification parade was not carried out, no witness positively identified the accused at the scene and there is no direct or circumstantial evidence linking the accused persons to the events of that night. Hence, this created doubt in the prosecution’s case. That PW2 testified that he identified the three accused persons while standing at a distance during the night under motorcycle, he therefore erroneously identified them yet no identification parade was conducted which was a grave error that would lead to a miscarriage of justice.
24. It was also submitted that the 1 st and 2 nd accused raised a defence of alibi and the prosecution failed to dislodge or contradict their account as the prosecution made no attempt to dislodge the said alibi.
25. It was also submitted that the investigating officer admitted that he neither verified the accused persons whereabouts on the material night and did not question any person who might have been with them. That there was no credible evidence to show that the accused persons were near the scene of crime as the investigating officer admitted that he did not conduct independent investigations which admission was fatal to the prosecution’s case. There was therefore no evidential bridge connecting the accused persons to the deceased’s death. That no item was recovered from the scene that could have linked the accused persons and the murder weapon was not recovered
The Constitution of Kenya celebrates the presumption of innocence as the foundation of the right to fair trial. It is on this basis that the burden lies on the prosecution to demonstrate beyond reasonable doubt that the accused person(s) committed the offence. It is a settled position of law that where there is a doubt that is in line with the presumption of innocence, a court of law should give the benefit to the accused person(s). This position is in line with the famous position of the learned Author William Blackstone’s Famous Maxim to wit “it is better than ten guilty persons escape, than that one innocent suffer.”
26. It was submitted that the burden is therefore on the state to ensure that sufficient evidence is demonstrated so as to convict an accused person. That the standard is not about suspicions. This is because criminal proceedings end up in punishments, taking a person to prison etc, highly limiting his freedoms. As such, Justice Nyakundi expressed himself in Republic v Daniel Charo Katana eKLR as follows;
“It is therefore true that the state should prove its case so strongly that the evidence leaves the trial Court with the highest degree of certitude based on such evidence. It is to be noted that the concept of reasonable doubt in our criminal justice system is not based upon a sympathy or a whim or prejudice or caprice or sentimentality, jelly fish of a Judge or Magistrate seeking to convict or acquit another human being of the commission of the offence. It is an approach to hold the state to the highest standard of discharging its burden of proof in criminal cases beyond reasonable doubt. It is not a conjecture or a fanciful doubt. It is based on admissible and material evidence to dissuade the trial Court from acquitting an accused person.”
Based on these loopholes in the prosecution case and how the case was handled, it was submitted that the accused persons were at best, mere suspects the prosecution has a duty to adduce sufficient evidence to support its case. In the case of Sawe v Republic (2002) KLR 364 the Court of Appeal stated as follows;
“Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt”
Further, in the case of Mary Wanjiku Gichira v Republic Criminal Appeal No. 17 of 1998 the Court of Appeal (unreported) held that:
“Suspicion however strong cannot provide a basis for inferring guilt which must be proved by evidence. Before a court of law can convict an accused person of an offence, it ought to be satisfied that the evidence against him is overwhelming and points to his guilt. This is because a conviction has the effect of taking away the accused’s freedom and at times life.”
Learned counsel thus contended that this Court cannot rely on unsupported evidence to convict the accused persons. While perusing the Prosecution’s evidence and testimonies, it was thus submitted that there was no evidence to sustain the charges of murder as nobody apart from PW2 claimed to have seen the 1 st and 2 nd accused persons at the scene of crime yet the accused persons were not positively identified by any witness as having participated in the Killing of the deceased.
27. It was submitted that to convict for murder based on the evidence on record, the prosecution must prove the existence of malice aforethought. In Black’s Law Dictionary, 10 th Edition, malice aforethought is defined as:
The requisite mental state for common-law murder, encompassing any one of the following;
“(1) The intent to kill (2) the intent to inflict grievous bodily harm (3) extremely reckless deference to the value of human life (the so-called “abandoned and malignant heart”), or whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (4) the intent to commit a dangerous felony (which leads to culpability under the felony murder rule).”
Section 206 of the Penal Code gives instances when malice aforethought may be proved. It provides:
Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
(a) “An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the personal actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the fight or escape from custody of any person who has committed or attempted to commit a felony.”
28. It was submitted that the deceased suffered a head injury, which caused his demise. Unfortunately, there is no evidence regarding what transpired at the scene. It was thus submitted that the prosecution has failed to prove the charge against 1 st and 2 nd accused persons and that they should be acquitted of the charge.
29. Learned counsel for the 3 rd accused submitted that the prosecution’s case on identification entirely rests on the evidence of PW2 and as such, the court is invited to be guided by the decision of the Court of Appeal in Rajab Iddi Mubarak v Republic , Criminal Appeal No. 105 of 2015, where the said court reiterated its earlier decision in Maitanyi v Republic [1986] KLR 198 as follows:
“Although it is trite law that a fact may be proved by the testimony of a single witness, this does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. When testing the evidence of a single witness a careful inquiry ought to be made into the nature of the light, available conditions and whether the witness was able to make a true impression and description. The court must warn itself of the danger of relying on the evidence of a single identifying witness. It is not enough for the court to warn itself after making the decision, it must do so when the evidence is being considered and before the decision is made. Failure to undertake an inquiry of careful testing is an error of law and such evidence cannot safely support a conviction”.
It was further submitted that the testimony of PW2 is unreliable and has been contradicted by all other prosecution witnesses. That PW2 only mentioned the name of the 3rd accused person as an afterthought and as a result of malice and thus the 3rd accused person should be acquitted of the charge leveled against him.
30. On the question of identification, it was submitted that PW2 testified that when he was on his way home, he found the deceased lying dead beside the road with his motorcycle by his side. He also testified that he witnessed the people who were attacking the deceased. He further testified that he immediately went to Kopolo Police Post where he reported the names of the people he claimed were assaulting the deceased. This testimony has been contradicted by the testimony of PW4- PC Joseph Korir who testified that when PW2 went to Kopolo Police Post, it was he, Joseph Korir who was on duty and the one who attended to PW2. It was the testimony of PW4 that PW2 did not give any names of the assailants when he went to make the initial report of the incident. PW2 has thus lied to this court when he testified that he named the accused persons as the ones who killed the deceased. He named the 3rd accused as one of the people who killed his father merely as an afterthought. He did so after he had a discussion with his mother, PW1, and decided on a narrative to give to the investigating officer. The question that this court ought to consider is whether there are reasons which would lead PW2 to want to fix the name of the 3rd accused as one of the people who killed the deceased even though he knows it to be false. The simple answer is retribution. DW4- Boss Dick Ochiel testified that he is the Court Administrator from Bondo Law Courts. He tendered a copy of the charge sheet and certified proceedings for Bondo Law Courts Criminal Case 698 of 2022- Republic v Felix Ochieng Ochieng . He stated that in the case above, the 3rd accused herein being Naftali Okeyo Mawere was the complainant. The charge in the case above was grievous harm contrary to section 234 of the Penal Code. Judgment was delivered in the said case on 30th May, 2023 and Felix Ochieng Ochieng was convicted. After conviction, Felix Ochieng was sentenced to 10 years imprisonment for grievously assaulting the 3rd accused herein. That the said Felix Ochieng who is the brother to PW2 and the son to PW1 was sentenced to 10 years imprisonment on 17th July, 2023 and by 1st August, 2023, PW1 and PW2 were still angry at the 3rd accused for being the reason why Felix Ochieng was imprisoned. It was submitted that evidence proving that at the time when PW2 alleged that the 3rd accused was involved in the death of the deceased, the said Felix Ochieng was still in prison serving his prison term.
31. Finally, it was submitted that the conditions were not suitable for positive identification. PW2 told the court that the incident took place at about 7:30 pm in the dark. PW4-PC Joseph Korir told the court that when PW2 went to make a report at Kopolo Police Post, they immediately went to the scene. When they got to the scene, it was dark as there was neither light from street lights nor any other source of light. It was so dark that PC Korir could not tell where the blanket which was used to cover the body of the deceased came from. It was also the admission of PW2 that there were no homes or buildings around the scene of crime. The conditions were thus unsuitable for positive identification.
32. On the question of the murder weapon, PW2 testified before this court that the three people who killed the deceased had metal bars. However, when the Investigating officer testified, he stated that PW2 told him that the assailants were carrying clubs (rungus) rather than metal bars. The difference between metal bars and clubs is significant. That the two cannot be confused. That the consistency of PW2’s version of the truth is at best questionable. What he told the Investigating Officer is different from what he told the court.
33. On the question of consistency with medical evidence, PW2 testified that the three people who killed the deceased were standing around his body and were all assaulting him at the same time. If this was the truth, medical evidence should have confirmed a pattern of injuries consistent with being hit from different angles based on where the perpetrators were allegedly standing. However, the testimony of PW3- Dr. Daniel Wanjofu Juma was inconsistent with the testimony of PW2. It was the testimony of Dr. Wanjofu that the injury was on one side of the head of the deceased. It was his testimony that it is possible that the deceased was struck once. The injury could be a result of many possibilities including a fall on a stone or being struck by a blunt object. There were no other injuries to the body of the deceased other than the one in the head. It was submitted that the evidence of Dr. Wanjofu fundamentally displaced the testimony of PW2.
Reliance was placed in the Court of Appeal decision in Jackson Namunya Tali v Republic KECA 233 (KLR) where the Court set aside the conviction on a case of murder principally because the medical evidence was not consistent with the narrative that the prosecution witnesses had given. In this case, the testimony of PW2 was inconsistent with medical evidence in terms of patterns of injury. Secondly, the testimony of PW2, who is the only eye witness, was inconsistent as he reported to the police that the assailants had clubs (rungus) while he told the court that the assailants had metal bars.
34. Learned counsel for the 3 rd accused submitted on the issue of alibi raised by the 3 rd accused. It was submitted that the 3rd accused person made it clear that he would rely on the alibi defence. The witness statements for the defence witnesses were supplied to the prosecution and the court well in advance of the hearing thus allowing the prosecution sufficient time to investigate the same and cross-examine witnesses effectively. That the 3rd accused person testified as DW3 and stated that at the time of the death of the deceased which was on 1st August, 2023 at around 7:30 pm, he (the 3rd Accused person) was in Lake Victoria working as a security guard at DC Beach guarding fish cages. He testified that he received a call from George Juma seeking clarification on the rumors surrounding the death of the deceased in this case. He also testified that was the first time he learnt of the death of the deceased who was his uncle. It was submitted that the testimony of the 3rd Accused was corroborated by the evidence of DW10--Benard Onyango Otieno that he also worked as a security guard securing fish cages at DC Beach in Lake Victoria. It was the testimony of Benard Onyango Otieno that on 1st August, 2023 he was with the 3rd Accused person and Peter Ochieng when they were reporting for the night shift at 6:45 pm that evening. He testified that he was present when the 3rd Accused person received the call from someone informing him about the death of the deceased. It was also his testimony that even after getting the news of the death of the deceased, the 3rd accused remained at work until the following day when his shift ended. The testimony of the 3rd Accused person was further corroborated by the evidence of George Juma Agola (DW11) who testified that he was at Kopolo market on the night of 1st August, 2023 when he heard rumors of the death of the deceased. It was his testimony that he is the one who called the 3rd Accused only to confirm whether the rumors of the death of the deceased were true. He clarified that the reason he called the 3rd Accused person was because he was aware that the deceased was the uncle to the 3rd Accused person. It was also his testimony that when he called, he learnt that the 3rd Accused was at work in Yimbo and was wholly unaware of what was going on in Kopolo.
It was submitted that the prosecution has failed to provide any witnesses to confirm that the 3rd accused person was seen anywhere close to Kopolo on the date and time of the death of the deceased. The prosecution has also failed to provide evidence disproving the fact that the 3rd accused was working at DC Beach guarding fish cages at the time of the death of the deceased. Thus, the allegations of PW2 remain uncorroborated. Although the 3rd accused provided witnesses to corroborate his testimony that he was elsewhere at the time of the death of the deceased, he did not have to prove his defence of alibi. The burden of disproving the defence of alibi squarely rests with the prosecution. Reliance was placed in the Court of Appeal decision in Victor Mwendwa Mulinge v Republic.[2014]eKLR
35. It was finally submitted that the charges against the 3 rd accused were not proved beyond any reasonable doubt and that he should be acquitted of the same.
36. I have given due consideration to the evidence presented by both prosecution and defence. I find the only issue for determination is whether the prosecution has proved its case against the accused persons herein beyond any reasonable doubt.
37. It is noted that the three accused persons have been charged under section 203 as read with 204 of the Penal Code which provide as follows: -
Section 203- Any person who of malice aforethought causes 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.
38. 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 principle 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 aforesaid case as follows:
“Throughout the web of the English criminal law, one golden thread
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2. The accused persons all denied the charge and thus the prosecution called six witnesses in support of its case.
3. The prosecution’s case is that on 1/6/2023 at 7.3O PM Lilian Auma Jow (PW1) who is wife of the deceased received a call from her son Stephen Onyango Ochieng (PW2) that while he was heading home, he saw the deceased herein being attacked by the three accused herein and that he had opted to rush to Kopolo police station to report the incident. That PW1 then rushed home and learnt that the body of her husband had been taken away to Bondo Sub county hospital and that she rushed there and saw the body which had injuries on the forehead with fractures and one tooth was missing. That she later witnessed the autopsy conducted on 3/8/2023. That her late husband had been trying to resolve the family land dispute.
4. It was the evidence of Stephen Onyango Ochieng (PW2) that on the 1/8/2023 at 7.00 PM he was from his work place and heading home using his motorcycle when he came across his father’s motorcycle registration number KMDD 004q which was lying down on the road while his father lay next to it and that the three accused were armed with metal bars and that the 3 rd accused was then beating the deceased while the other two were standing next to him. That when they saw him, they threatened him that he was their next target. That he did not scream or raise alarm but dashed to Kopolo police station and lodged a report and came back to the scene with police officers and found his father had died and that the three assailants had escaped. That the body was later collected by the police and taken to Bondo Sub County hospital mortuary. On cross-examination, he stated inter alia; that he was alone at the time. That he was able to identify the three accused with the help of the headlight of his motorcycle; that he knows that the other accused person also assaulted the deceased because they had weapons on their hands but did not see them attacking the deceased; that 1 st and 3 rd accused are his step brothers; that his brother Felix Ochieng is in prison after the 3 rd accused sued him for assaulting him and damaging one of his eyes; that he is not aware of any land dispute within the family; that it is not true that the deceased fell off his motorcycle and fell on a stone; that the deceased had earlier called for a meeting for family members over the issue of the land and that it is the land dispute that caused the death of the deceased.
5. It was the evidence of Dr Daniel Wanjovu Juma (PW3) that he conducted the autopsy on the body of the deceased on 3/8/2023 and note one lower incisor tooth missing while the other teeth were broken and that the frontal region of the temporal region of the head had injuries and that there were fragmented skull fractures on right frontal parietal region. That he formed the opinion that the cause of death was severe head injury with depressed fragmented skull fractures secondary to blunt head trauma. He produced the autopsy report as exhibit 2.
6. It was the evidence of No. 68104 Pc Joseph Kipsang (PW4) that he was at Kopolo police post when PW2 arrived and lodge d a report that he was on his way home when he bumped upon the three accused assaulting his father. That they accompanied him to the scene but did not find the assailants at the scene and only the body of the deceased. That he alerted Bondo police station and that the body was collected and taken to the mortuary.
7. No. 112661 Pc Winston Obare (PW5) testified that he arrived at the scene and found the body of the deceased and had it moved to the mortuary. That he learnt from the version of PW2 that he had found the suspects assaulting his father and thus rushed to Kopolo police post to lodge a report. That he later conducted investigations leading to the arrest of the three accused persons herein.
8. No. 66783 Cpl Simon Likonyi (PW6) was the scenes of crime officer herein. That he received a CD from the investigating officer regarding photographs that the said officer had taken at Kopolo area and that he wanted him to process the photographs. That he processed three of them which he produced as exhibits as well as the certificate.
8. At the close of the prosecution’s case, this court later held that that a prima facie case had been made out against the accused persons who were subsequently placed on their defence. The opted to tender sworn testimonies and called seven witnesses.
9. Bernard Otieno Mawere alias Moi (DW1) stated that he was at Kopolo bus stage playing pool game as from 5.00 PM and that later at 8.30PM, a fellow boda boda operator arrived while in company of police officers and learnt that the deceased who was his uncle had been involved in an accident and that he reached the scene and found the body. That he joined PW2 at the scene and availed some blankets with which to cover the body before the police from Bondo arrived to collect it. That he called the 3 rd accused from Yimbo to come the following day so that they could visit the mortuary the following morning. That he was not involved in the crime.
10. Joshua Adera Atwa alia Adani (DW2) testified that he was at his goldmining site when he was alerted that the deceased had been found dead along a road. That he rushed there and arrived at 8.00 PM and found a large crowd. That he had no grudge with the deceased who had been his teacher in primary school. That he found Stephen Ochieng (PW2) and 1 st accused at the scene. That he did not kill the deceased as he was then away at his workplace. That Stephen Ochieng (PW2) had earlier in 2022 assaulted the 3rd accused and that he had lodged the report to the police and hence the grudge.
11. Naftali Okeyo Mawere (DW3) testified that the family of PW2 had earlier ganged up and assaulted him leading him suffer severe head and right eye and that PW2’s brother Felix Ochieng was sentenced to ten years imprisonment. That he had no problem with the deceased who was his uncle and who had paid some of the medical bills while he was undergoing treatment following the attack on him by Felix Ochieng. That the wife of the deceased had a grudge against him. That it was the 1 st accused who had called him while he was still at Yimbo and thus he has an alibi showing that he was in Yimbo on 1/8/2023.
12. Dick Boss Ochiel (DW4) testified that he is the court administrator at Bondo Chief Magistrate’s court. He produced Bondo Criminal case number 698 of 2022 wherein the 3 rd accused herein was the complainant while one Felix Ochieng was the accused.
13. Anthony Monja (DW5) testified that he arrived at the scene at the same time with PW2 since he was ferrying him and another person on his motorcycle.
14. Kevin Omondi Omoso (DW6) testified that Felix Ochieng was jailed for assaulting the 3 rd accused herein. That he is the one who ferried the police officer from Kopolo police post to the scene but first passed by a certain pool table games premise where he found the 1 st accused herein and alerted him of the incident. That he did not witness the incident and cannot tell if the accused person were at the scene before moving to the pool table games.
15. Samson Okello Kobado (DW7) testified that on the material date he was away in Luore village with the 2 nd accused and later went with him to the scene where they reached at 8.00PM. That it looked like it was a self-involving accident. That he was not at the scene at 1930 hours. That he did not witness the incident. That according to him, it was a normal accident and not murder.
16. Paul Mango Oloo (DW8) testified that he was ferried by Anthony Monja and was also with Stephen Onyango Ochieng to the scene where he found the body of the deceased. That Stephen Onyango told lies to the court. That Stephen Onyango informed him that he thought the 3 rd accused might be behind the murder. That they passed by Kopolo trading centre and picked the 1 st accused who was then playing pool table game.
17. Isaiah Magati Juma (DW9) testified that on the material date at around 7.30 PM, he was playing pool table game at Kopolo trading centre with 1 st accused when some people arrived and called out the 1 st accused and that is when he learnt of the incident.
18. Benard Onyango Otieno (DW10) testified that he works as a security guard at DC Beach and that on 1/8/2023 he was in company of his colleagues Peter Ochieng and Naftali Okeyo for the night shift. That he later heard from Naftali Okeyo that he had been alerted by his brother that an uncle of theirs had died. That later on 12/8/2023, police visited his workplace and seized their mobile phones.
19. George Juma Agola (DW11) testified that on 1/8/2023 he was at Kopolo trading centre when he heard rumours that the deceased had died. That he then called the 3 rd accused and briefed him about the incident.
20. That marked the close of the defence case.
21. The parties were directed to file and exchange final submissions. However, it is only the defence counsels who complied.
22. Learned counsel for the 1 st and 2 nd accused raised one issue for determination namely, whether the offence of murder was proved against the 1 st and 2 nd accused persons. It was submitted that during the hearing of the Prosecution case PW2 testified that while he was from his work place at around 1900hrs he saw three accused person beating the deceased on the head with metal rods. According to his evidence he was alone on the road and that when the three accused person saw him they also threatened to deal with him. He claimed that he did not scream or call for help he just rushed to the police station to go and report the incident. This unnatural behavior raises doubt about the credibility of his account. It was submitted that his evidence was not corroborated nor was it supported by any other independent party hence the court should not base its findings on the said evidence. That when asked if the metal rods were before court as part of exhibits, he confirmed that none was before court. According to post mortem report and the doctor’s testimony, he concluded that the deceased had suffered from blunt trauma on the head and that the deceased only had one fresh head injury on the head which was caused by a blunt object. Upon cross examination, the doctor stated that from his conclusion the blunt object can even be a stone and since the deceased was riding a motorcycle he could have fallen and hit his head on a stone making him sustain such injury on his head though he could not ascertain this fact since he was not present at the scene. The doctor’s evidence contradicted Pw2’s testimony since according to PW2 the deceased had sustained deep cuts on his head and face. That this clear discrepancy further discredits the prosecution’s case.
23. As to whether the accused persons were identified as the assailants, it was submitted that none of the witnesses were able to demonstrate that the accused persons were attacking the deceased and there was no malice on the part of the accused persons. That identification parade was not carried out and the evidence that was adduced by the prosecution was that of recognition. However, PW2 testified that it was at night and there was no street light but only light from the motorcycle. He testified that the distance was about 165 meters from where he stood. Since it was dark, identification was more difficult and needed thorough examination. It was contended that where multiple individuals are involved, identification of the accused is central to the prosecution’s case and in this case, identification parade was not carried out, no witness positively identified the accused at the scene and there is no direct or circumstantial evidence linking the accused persons to the events of that night. Hence, this created doubt in the prosecution’s case. That PW2 testified that he identified the three accused persons while standing at a distance during the night under motorcycle, he therefore erroneously identified them yet no identification parade was conducted which was a grave error that would lead to a miscarriage of justice.
24. It was also submitted that the 1 st and 2 nd accused raised a defence of alibi and the prosecution failed to dislodge or contradict their account as the prosecution made no attempt to dislodge the said alibi.
25. It was also submitted that the investigating officer admitted that he neither verified the accused persons whereabouts on the material night and did not question any person who might have been with them. That there was no credible evidence to show that the accused persons were near the scene of crime as the investigating officer admitted that he did not conduct independent investigations which admission was fatal to the prosecution’s case. There was therefore no evidential bridge connecting the accused persons to the deceased’s death. That no item was recovered from the scene that could have linked the accused persons and the murder weapon was not recovered
The Constitution of Kenya celebrates the presumption of innocence as the foundation of the right to fair trial. It is on this basis that the burden lies on the prosecution to demonstrate beyond reasonable doubt that the accused person(s) committed the offence. It is a settled position of law that where there is a doubt that is in line with the presumption of innocence, a court of law should give the benefit to the accused person(s). This position is in line with the famous position of the learned Author William Blackstone’s Famous Maxim to wit “it is better than ten guilty persons escape, than that one innocent suffer.”
26. It was submitted that the burden is therefore on the state to ensure that sufficient evidence is demonstrated so as to convict an accused person. That the standard is not about suspicions. This is because criminal proceedings end up in punishments, taking a person to prison etc, highly limiting his freedoms. As such, Justice Nyakundi expressed himself in Republic v Daniel Charo Katana eKLR as follows;
“It is therefore true that the state should prove its case so strongly that the evidence leaves the trial Court with the highest degree of certitude based on such evidence. It is to be noted that the concept of reasonable doubt in our criminal justice system is not based upon a sympathy or a whim or prejudice or caprice or sentimentality, jelly fish of a Judge or Magistrate seeking to convict or acquit another human being of the commission of the offence. It is an approach to hold the state to the highest standard of discharging its burden of proof in criminal cases beyond reasonable doubt. It is not a conjecture or a fanciful doubt. It is based on admissible and material evidence to dissuade the trial Court from acquitting an accused person.”
Based on these loopholes in the prosecution case and how the case was handled, it was submitted that the accused persons were at best, mere suspects the prosecution has a duty to adduce sufficient evidence to support its case. In the case of Sawe v Republic (2002) KLR 364 the Court of Appeal stated as follows;
“Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt”
Further, in the case of Mary Wanjiku Gichira v Republic Criminal Appeal No. 17 of 1998 the Court of Appeal (unreported) held that:
“Suspicion however strong cannot provide a basis for inferring guilt which must be proved by evidence. Before a court of law can convict an accused person of an offence, it ought to be satisfied that the evidence against him is overwhelming and points to his guilt. This is because a conviction has the effect of taking away the accused’s freedom and at times life.”
Learned counsel thus contended that this Court cannot rely on unsupported evidence to convict the accused persons. While perusing the Prosecution’s evidence and testimonies, it was thus submitted that there was no evidence to sustain the charges of murder as nobody apart from PW2 claimed to have seen the 1 st and 2 nd accused persons at the scene of crime yet the accused persons were not positively identified by any witness as having participated in the Killing of the deceased.
27. It was submitted that to convict for murder based on the evidence on record, the prosecution must prove the existence of malice aforethought. In Black’s Law Dictionary, 10 th Edition, malice aforethought is defined as:
The requisite mental state for common-law murder, encompassing any one of the following;
“(1) The intent to kill (2) the intent to inflict grievous bodily harm (3) extremely reckless deference to the value of human life (the so-called “abandoned and malignant heart”), or whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (4) the intent to commit a dangerous felony (which leads to culpability under the felony murder rule).”
Section 206 of the Penal Code gives instances when malice aforethought may be proved. It provides:
Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
(a) “An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the personal actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the fight or escape from custody of any person who has committed or attempted to commit a felony.”
28. It was submitted that the deceased suffered a head injury, which caused his demise. Unfortunately, there is no evidence regarding what transpired at the scene. It was thus submitted that the prosecution has failed to prove the charge against 1 st and 2 nd accused persons and that they should be acquitted of the charge.
29. Learned counsel for the 3 rd accused submitted that the prosecution’s case on identification entirely rests on the evidence of PW2 and as such, the court is invited to be guided by the decision of the Court of Appeal in Rajab Iddi Mubarak v Republic , Criminal Appeal No. 105 of 2015, where the said court reiterated its earlier decision in Maitanyi v Republic [1986] KLR 198 as follows:
“Although it is trite law that a fact may be proved by the testimony of a single witness, this does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. When testing the evidence of a single witness a careful inquiry ought to be made into the nature of the light, available conditions and whether the witness was able to make a true impression and description. The court must warn itself of the danger of relying on the evidence of a single identifying witness. It is not enough for the court to warn itself after making the decision, it must do so when the evidence is being considered and before the decision is made. Failure to undertake an inquiry of careful testing is an error of law and such evidence cannot safely support a conviction”.
It was further submitted that the testimony of PW2 is unreliable and has been contradicted by all other prosecution witnesses. That PW2 only mentioned the name of the 3rd accused person as an afterthought and as a result of malice and thus the 3rd accused person should be acquitted of the charge leveled against him.
30. On the question of identification, it was submitted that PW2 testified that when he was on his way home, he found the deceased lying dead beside the road with his motorcycle by his side. He also testified that he witnessed the people who were attacking the deceased. He further testified that he immediately went to Kopolo Police Post where he reported the names of the people he claimed were assaulting the deceased. This testimony has been contradicted by the testimony of PW4- PC Joseph Korir who testified that when PW2 went to Kopolo Police Post, it was he, Joseph Korir who was on duty and the one who attended to PW2. It was the testimony of PW4 that PW2 did not give any names of the assailants when he went to make the initial report of the incident. PW2 has thus lied to this court when he testified that he named the accused persons as the ones who killed the deceased. He named the 3rd accused as one of the people who killed his father merely as an afterthought. He did so after he had a discussion with his mother, PW1, and decided on a narrative to give to the investigating officer. The question that this court ought to consider is whether there are reasons which would lead PW2 to want to fix the name of the 3rd accused as one of the people who killed the deceased even though he knows it to be false. The simple answer is retribution. DW4- Boss Dick Ochiel testified that he is the Court Administrator from Bondo Law Courts. He tendered a copy of the charge sheet and certified proceedings for Bondo Law Courts Criminal Case 698 of 2022- Republic v Felix Ochieng Ochieng . He stated that in the case above, the 3rd accused herein being Naftali Okeyo Mawere was the complainant. The charge in the case above was grievous harm contrary to section 234 of the Penal Code. Judgment was delivered in the said case on 30th May, 2023 and Felix Ochieng Ochieng was convicted. After conviction, Felix Ochieng was sentenced to 10 years imprisonment for grievously assaulting the 3rd accused herein. That the said Felix Ochieng who is the brother to PW2 and the son to PW1 was sentenced to 10 years imprisonment on 17th July, 2023 and by 1st August, 2023, PW1 and PW2 were still angry at the 3rd accused for being the reason why Felix Ochieng was imprisoned. It was submitted that evidence proving that at the time when PW2 alleged that the 3rd accused was involved in the death of the deceased, the said Felix Ochieng was still in prison serving his prison term.
31. Finally, it was submitted that the conditions were not suitable for positive identification. PW2 told the court that the incident took place at about 7:30 pm in the dark. PW4-PC Joseph Korir told the court that when PW2 went to make a report at Kopolo Police Post, they immediately went to the scene. When they got to the scene, it was dark as there was neither light from street lights nor any other source of light. It was so dark that PC Korir could not tell where the blanket which was used to cover the body of the deceased came from. It was also the admission of PW2 that there were no homes or buildings around the scene of crime. The conditions were thus unsuitable for positive identification.
32. On the question of the murder weapon, PW2 testified before this court that the three people who killed the deceased had metal bars. However, when the Investigating officer testified, he stated that PW2 told him that the assailants were carrying clubs (rungus) rather than metal bars. The difference between metal bars and clubs is significant. That the two cannot be confused. That the consistency of PW2’s version of the truth is at best questionable. What he told the Investigating Officer is different from what he told the court.
33. On the question of consistency with medical evidence, PW2 testified that the three people who killed the deceased were standing around his body and were all assaulting him at the same time. If this was the truth, medical evidence should have confirmed a pattern of injuries consistent with being hit from different angles based on where the perpetrators were allegedly standing. However, the testimony of PW3- Dr. Daniel Wanjofu Juma was inconsistent with the testimony of PW2. It was the testimony of Dr. Wanjofu that the injury was on one side of the head of the deceased. It was his testimony that it is possible that the deceased was struck once. The injury could be a result of many possibilities including a fall on a stone or being struck by a blunt object. There were no other injuries to the body of the deceased other than the one in the head. It was submitted that the evidence of Dr. Wanjofu fundamentally displaced the testimony of PW2.
Reliance was placed in the Court of Appeal decision in Jackson Namunya Tali v Republic KECA 233 (KLR) where the Court set aside the conviction on a case of murder principally because the medical evidence was not consistent with the narrative that the prosecution witnesses had given. In this case, the testimony of PW2 was inconsistent with medical evidence in terms of patterns of injury. Secondly, the testimony of PW2, who is the only eye witness, was inconsistent as he reported to the police that the assailants had clubs (rungus) while he told the court that the assailants had metal bars.
34. Learned counsel for the 3 rd accused submitted on the issue of alibi raised by the 3 rd accused. It was submitted that the 3rd accused person made it clear that he would rely on the alibi defence. The witness statements for the defence witnesses were supplied to the prosecution and the court well in advance of the hearing thus allowing the prosecution sufficient time to investigate the same and cross-examine witnesses effectively. That the 3rd accused person testified as DW3 and stated that at the time of the death of the deceased which was on 1st August, 2023 at around 7:30 pm, he (the 3rd Accused person) was in Lake Victoria working as a security guard at DC Beach guarding fish cages. He testified that he received a call from George Juma seeking clarification on the rumors surrounding the death of the deceased in this case. He also testified that was the first time he learnt of the death of the deceased who was his uncle. It was submitted that the testimony of the 3rd Accused was corroborated by the evidence of DW10--Benard Onyango Otieno that he also worked as a security guard securing fish cages at DC Beach in Lake Victoria. It was the testimony of Benard Onyango Otieno that on 1st August, 2023 he was with the 3rd Accused person and Peter Ochieng when they were reporting for the night shift at 6:45 pm that evening. He testified that he was present when the 3rd Accused person received the call from someone informing him about the death of the deceased. It was also his testimony that even after getting the news of the death of the deceased, the 3rd accused remained at work until the following day when his shift ended. The testimony of the 3rd Accused person was further corroborated by the evidence of George Juma Agola (DW11) who testified that he was at Kopolo market on the night of 1st August, 2023 when he heard rumors of the death of the deceased. It was his testimony that he is the one who called the 3rd Accused only to confirm whether the rumors of the death of the deceased were true. He clarified that the reason he called the 3rd Accused person was because he was aware that the deceased was the uncle to the 3rd Accused person. It was also his testimony that when he called, he learnt that the 3rd Accused was at work in Yimbo and was wholly unaware of what was going on in Kopolo.
It was submitted that the prosecution has failed to provide any witnesses to confirm that the 3rd accused person was seen anywhere close to Kopolo on the date and time of the death of the deceased. The prosecution has also failed to provide evidence disproving the fact that the 3rd accused was working at DC Beach guarding fish cages at the time of the death of the deceased. Thus, the allegations of PW2 remain uncorroborated. Although the 3rd accused provided witnesses to corroborate his testimony that he was elsewhere at the time of the death of the deceased, he did not have to prove his defence of alibi. The burden of disproving the defence of alibi squarely rests with the prosecution. Reliance was placed in the Court of Appeal decision in Victor Mwendwa Mulinge v Republic.[2014]eKLR
35. It was finally submitted that the charges against the 3 rd accused were not proved beyond any reasonable doubt and that he should be acquitted of the same.
36. I have given due consideration to the evidence presented by both prosecution and defence. I find the only issue for determination is whether the prosecution has proved its case against the accused persons herein beyond any reasonable doubt.
37. It is noted that the three accused persons have been charged under section 203 as read with 204 of the Penal Code which provide as follows: -
Section 203- Any person who of malice aforethought causes 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.
38. 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 principle 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 aforesaid case as follows:
“Throughout the web of the English criminal law, one golden thread
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