1. The accused herein, Mary Odongo is charged with an offence of murder contrary to section 203 as read with section 204 of Penal Code. T he particulars of the charge are that on the 30th day of September 2023 at Siger Sub-location, Rarieda Sub-County within Siaya County she murdered Tobias Odongo .
2. The accused denied the charge and thus warranting a trial wherein the prosecution called seven witnesses in support of its case.
3. Risper Aoko Ogutu (PW1) stated that she was an elderly Luo woman residing at Siger Rarieda. She testified that on September 30, 2023 at approximately 9:30 PM, she was preparing to sleep because she was not feeling well when she heard Rose Otieno, the wife of her grandson calling her. She explained that when she opened the door, Rose asked her to allow Mary to sleep in her house that night and return to her own home the next day which she permitted. She added that she slept in her bedroom while Mary and her granddaughter slept in the sitting room. She stated that her granddaughter Salome later woke her up to inform her that Mary was missing from where she had been sleeping having apparently woken up and left for work. She clarified that Mary was the wife of Tobias Odongo, who was her grandchild and is now deceased. She added that the family used to live in Kisumu but had come home to the village for a funeral. The witness was not cross-examined.
4. Marcela Achieng Mollo (PW2) stated that she was from Kanyikela and was familiar with the case. She testified that on September 30, 2023 around 10:00 PM, her son left his house and she subsequently heard noise coming from his home. She explained that she stepped outside and found a large crowd and when she enquired about what had happened, she saw blood flowing from her son's nose and ears. She noted that the deceased's wife had previously threatened them and it was decided that the wife should go to sleep at her mother-in-law's house. She asserted that the accused had a habit of assaulting her husband, who was her son, and that they had lived together for twenty years. She further stated that the deceased was later rushed to hospital on October 3, 2023 where he passed away prior to arrival. She stated that the weapon used was a stick which was recovered with bloodstains and that the police took away the bloody clothes and the stick. During cross-examination, she denied that the deceased was always domestic. She confirmed that Isdor had visited the deceased prior to the incident but noted that he had already left the house by the time she arrived. She stated that the assault had already taken place by the time she encountered the noise and that the deceased had previously told her that he had been beaten up in the past and that the accused had now accomplished her mission to finish him. She confirmed that they reported the matter to the police.
5. Rose Atieno Achieng (PW3) stated that she was a peasant farmer living in Asembo. She testified that she remembered the incident and was at home because there was a funeral for her in-law . She explained that on Saturday around 9:00 PM, she had gone back to sleep but was woken up by her daughter who alerted her about noises. She stated that she recognized the voice of the accused shouting, went outside, found the accused standing outside the gate and asked what the problem was. She testified that the accused claimed that she was fighting with her husband Tobias who was standing there and who informed her that his wife had hit him. She stated that she requested the couple to go into their house to resolve their issues and that she together with Mama Clinton went to find out what the problem was noting that the deceased claimed the issue was about food. She stated that she did not see any physical injuries on the deceased at that time. During cross-examination, she stated that she arrived at the accused's gate around 9:00 PM and remained outside. She confirmed that she saw Isdor Anyango at the gate and that they remained there for about thirty minutes. She testified that the deceased had requested her to tell the accused to let him sleep. She noted that she escorted the accused to a neighbor's house where the accused spent the night (specifically at Risper's house) while the husband and others remained at the gate.
6. James Otieno Mollo (PW4) a resident of the Rarieda area, testified regarding the incident involving his late brother Tobias Odongo. He recalled that on the evening of September 30, 2023 at around 9:00 PM, he was at home when he heard commotion and raised voices coming from the deceased's residence. He recognized the voices and rushed over and found a gathering of neighbors present alongside both the accused and the deceased who were engaged in an argument. According to him, the accused claimed that the deceased had been causing problems. A person named Jared e escorted the deceased inside the house while the accused followed them, after which he returned to his home. The following morning (Sunday), his mother called for him while he was preparing to leave for work. He learned that his brother had been injured and rushed to a local hospital. He went to check on him and due to the severity of the injuries, they were directed to Kisumu for a CT scan. The deceased later succumbed to his injuries. During cross-examination, he confirmed that the noise came from the residence, where the accused and deceased appeared to be exchanging words. He admitted that Jared escorted the deceased into the house while the wife followed immediately. He stated that he did not know what transpired in the house since he himself did not enter. He noted that the deceased used to take alcohol and had been drinking the previous day with him and that Hezron Onyango was not present.
7. Andrew Otieno Odongo (PW5) a son of the accused testified that he attended the autopsy at the mortuary on October 9, 2023 to identify the body. He was not cross-examined.
8. Dr. Ombok Lucy ( PW6) stated that she was a medical officer attached to the Jaramogi Oginga Odinga Teaching and Referral Hospital where she had served for three years and that she had performed several autopsies. She testified that she conducted an autopsy on the body of Tobias Odongo Omollo on October 9 2023 at 1:30 PM noting that the matter originated from Rarieda DCI. She reported the general observations of the body: the deceased was a male of around 49 years of age in good nutritional status, the body was well preserved in formalin with rigor mortis already established and blood was observed to be oozing from the ears. She reported the internal findings: there was a skull fracture accompanied by increased pressure in the head, massive internal bleeding and blood clots on the side of the brain while other bodily systems were essentially normal. She stated her professional opinion that the cause of death was a severe head injury resulting from blunt force trauma and noted that death certificate number 1553749 was issued. She produced the postmortem report dated October 9 2023 as an exhibit. During cross-examination, she stated that injuries of such a nature cannot be sustained from a regular fall unless the person is pushed. In re-examination, she noted that a fall could sustain such an injury and that there were no signs of intoxication by the deceased.
9. No. 240663 IP Delison Mwamobe (PW7) was the investigation officer currently attached to DCI Rarieda. He testified that on 2 nd October 2023, an incident was reported that a woman was at risk of being lynched by a mob after being accused of murdering her husband by pushing him and who hit a metallic box after the two had fought. That they commenced investigation and established that on 30 th September 2023, the deceased was at his mother's house and later left for his house. Later, the mother heard screams emanating from the deceased's house and she responded to the distress call, finding the deceased had been assaulted and was bleeding heavily from his nose and ears. Following the incident, the accused spent the night at her mother-in-law's house. The following day (October 1, 2023), the deceased's father went to check on him. He stated that their findings pointed to the accused being responsible for her husband's death. Police visited and processed the scene, recovered physical evidence and recorded witness statements. The victim was initially taken to a nearby hospital before being transferred to Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH), where he passed away on 2 nd October 2023. An autopsy revealed that the cause of death was blunt force trauma. The accused was subsequently taken into police custody. During cross-examination, he confirmed that none of the witnesses were eye witnesses. He confirmed that he recorded a statement from the accused. He confirmed that the deceased was with his brother and the brother to the deceased wanted to record a statement but he had a defilement case to attend in court on that said date. He had persuaded the deceased’s brother to record a statement to no avail. The accused had previously lodged a report with the police though the Occurrence Book (OB) entry was not availed in court. He noted that the accused in her statement stated that she pushed the deceased onto a metal box. He stated that the deceased died on 2/10/2023 three days after the incident, He established that the accused had malice aforethought. He stated that the deceased was drunk at the time. He noted the accused's claim that the deceased attacked her for not giving him food. The state closed its case at that juncture.
10. At the close of the Prosecutor's case, the court established that a prima facie case had been made against the accused herein to require her to be put on her defence. The accused opted to tender sworn testimony and called one witness.
11. Mary Akinyi Odongo (DW1) testified that she was a hawker and the wife of the deceased Tobias Odongo noting that they had been married for 28 years since she was 15 years old and had five children together. She claimed that her husband had been alcohol-dependent since 2005 which caused him to become quiet at home and led to the onset of quarrels. She recalled that on September 30 2023 she was attending the funeral of an in-law when the deceased called to say he was on his way and asked if food was available and requested her to go to the house. She stated that the deceased arrived with his brother Isdor Onyango who was drinking alcohol and that she served his brother Isdor who later left. She testified that the deceased demanded that she washes his hands which she declined to do because the cooking gas had run out and she asked him to take the food as she went to sleep. That suddenly, the deceased hit her on the head at the entry of the house and thus she went and took refuge at the home of Jared’s mother. That on the following morning, she went to their house and knocked the doors and windows but there was no response. She stated that she managed to push open the door and found the accused person snoring while seated. That she tried waking him up but it was all in vain. She stated that Jared arrived and suggested that she gives the deceased some sugar as we had thought that there was too much alcohol but he vomited. She stated that she alongside Jared rushed the deceased to a nearby health center for treatment. She stated that the doctors claimed that the deceased had pressure and blood sugar problems. It was then that they took the deceased to Bondo sub county hospital where they managed the blood pressure and blood sugar but later referred him to Siaya County Referral Hospital. She testified that she proposed the deceased be taken to Jaramogi teaching and referral hospital where the deceased was attended to. She stated that later around 1.00p.m the deceased passed away and this prompted her to call the parents who came to the hospital. She claimed that the family members then turned against her, accused her of killing him and had her arrested and charged. She asserted that the allegations against her were false, that the deceased made no claims against her at the time and that the deceased's mother had a "single story" and was framing her to prevent her from accessing her matrimonial property. On cross examination by the state, she confirmed they had five children with one present in court and the rest in school and noted the children were in Kisumu at the time of the incident. She admitted she had previously sought refuge with neighbors in Kanyikela village but acknowledged she had no official assault reports against the deceased. She reiterated that they had an argument that expanded over food and the deceased was drunk at the time. She stated that that the deceased hit her with a bottle on the head but admitted she did not seek medical treatment or possess medical evidence of her injuries. She stated she did not see blood oozing from the deceased's head or ears at the time and claimed she did not know why her mother-in-law turned against her. She stated that they first went to Church of Hope hospital and then to Bondo District hospital but did not avail the medical documents in court. She noted that the villagers became hostile and wanted to torch her house forcing the police to intervene and rescue her. She maintained that she did not hit the deceased with a bottle but merely pushed him away and stated she did not understand the pathological injuries outlined in the autopsy. During cross-examination by the Court, she admitted that her husband fell after she pushed him but maintained she had no intention of killing him. During re-examination, she confirmed she found the deceased with Isdor but Isdor had left before the physical incident occurred. She also clarified that she raised the alarm alongside James (PW3) and Rose (PW4) to take the deceased to the hospital. She confirmed that they later met the deceased at the gate. At that juncture, they did not take the deceased to the hospital as he looked physically alright. She confirmed that the police officers came and picked up and took her to Lwak police station and that the investigation officer and the arrested officer were different.
12. Veronica Atieno (DW2) stated that she was a business lady from the Siger area and the older sister of the accused. She testified that on 30 th September 2023, they were at a funeral venue when the deceased called the accused to request that she prepare food prompting the accused to leave for her house. She explained that her sister Susan later called to alert her that the deceased was in his house in bad shape prompting them to rush to the scene. She stated that she found that the deceased had been rushed to the dispensary and later to Bondo Sub-County Hospital where she stayed until 3:00 AM. She noted that when the doctors indicated the patient's condition was worsening, he was transferred to the Jaramogi Oginga Odinga Teaching and Referral Hospital in Kisumu where they were advised to buy medicine and spent the night on the verandah before the deceased passed away. She testified that upon returning home, they met a hostile crowd blaming her sister which forced the accused to seek refuge at the police station. She observed that the accused and the deceased had been involved in arguments in the past. During cross-examination, she provided her identity card number as 1512541761 and confirmed her occupation. She stated that she was not present at the exact scene when the physical incident occurred. She acknowledged that the deceased had visible injuries on his head as disclosed by the autopsy report.
13. After the close of the defence case, Counsel for the accused tendered her written submissions.
14. Counsel submitted that there was only one issue before the court for determination: whether the prosecution had proved the offense of murder against the accused herein.
15. It was submitted at the outset that the accused was charged with the offense of murder contrary to Section 203 as read with Section 204 of the Penal Code. Counsel submitted that for the charge of murder to be established three key elements had to be proven: the death of the deceased; proof that the accused committed the unlawful act causing the death of the deceased and proof that the act was committed with malice aforethought.
16. Regarding the first issue, counsel submits that it was not in dispute that the deceased had died. This fact was confirmed by the post-mortem report produced in court and by various witnesses who identified the body. Counsel acknowledged that the prosecution had tendered sufficient evidence to prove this element.
17. Regarding the second element, counsel argued that no prosecution witness was able to prove that the accused committed the unlawful act. PW-1: Testified that on the night of September 30 2023 the accused was brought to her house by one Rose Atieno. Rose requested that the accused be allowed to sleep there due to a disagreement with her husband (the deceased). PW-1 allowed her to sleep there. During cross-examination, PW-1 confirmed she was not at the scene where the deceased sustained injuries. PW-2 testified that on the night in question at around 2200 hours she heard noise and went to her son’s (the deceased's) compound where she found a crowd. She testified that her son told her “My mother my wife is killing me”. Counsel submitted that PW-2 was attempting to rely on an alleged dying declaration but argued there was no evidence confirming the deceased ever uttered those words. None of the other prosecution witnesses present at the scene confirmed hearing the statement. Furthermore, counsel submitted that even if the statement had been made, it did not legally qualify as an admissible dying declaration under Section 33(a) of the Evidence Act. Citing Republic v Njoroge & 2 others [2024] KEHC 3710 (KLR ) counsel outlined the mandatory criteria for dying declarations: contemplation of certain death, cogency, credibility, competency and corroboration.
18. Counsel asserted the statement failed these tests; Credibility : A dying declaration requires the declarant to be in a fit clear state of mind. In this case, evidence indicated the deceased was intoxicated from drinking alcohol with his brother that night which compromised the credibility of the statement; Corroboration : The statement was not corroborated by any of the other witnesses present at the scene nor was there direct or circumstantial evidence proving the accused committed the act. It was submitted that in this case, PW-3 and PW-4 both testified to hearing noise at around 2030 hours and finding the deceased and accused discussing a dispute over food. Neither witness observed any physical attack nor could they purport to be eyewitnesses to a murder. PW-5 only testified to witnessing the post-mortem examination.
19. Citing Nzuki vs Republic [1993] KLR 171 and Section 206 of the Penal Code, counsel emphasized that malice aforethought requires proof of intent to cause death, intent to cause grievous bodily harm or knowledge that death/grievous harm would likely result from the act. Counsel submitted that the prosecution completely failed to prove mens rea.
20. Counsel submitted that according to the accused's account: on 30 th September 2023, the deceased called her at around 1830 hours asking her to bring him food. She arrived home around 2130 hours with food and found the deceased drinking alcohol (Chrome) with his brother Isdor Onyango; after an argument arose over the food, the accused went to the bedroom to sleep. The deceased followed her and struck her with an alcohol bottle; as the deceased attempted to hit her a second time, the accused pushed him away in self-defense and fled the house for her safety; the accused sought help from her mother-in-law (PW-2) and later slept at a neighbor's (Risper's) house. Upon returning the next morning, she found the deceased sitting in the living room, sweating and having difficulty breathing. She raised the alarm and they arranged for his admission to hospital where he succumbed to his condition on 2 nd October 2023.
21. Counsel contended that an assumption was being wrongly made that pushing the deceased while escaping caused the fatal trauma. Counsel argued that a simple push while fleeing could not account for such a severe injury.
22. Counsel also pointed out significant medical inconsistencies noting that hospital records from Bondo and Church of Christ indicated the deceased suffered from high blood pressure and diabetes creating reasonable doubt regarding the exact cause of death.
23. Finally, counsel highlighted a critical investigative failure: the deceased’s brother, Isdor Onyango was inside the house drinking with the deceased and remained behind after the accused fled. Despite being the last person known to be with the deceased, the investigating officer failed to record his statement or call him as a witness.
24. Counsel concluded by submitting that the prosecution’s evidence was insufficient to establish the accused person's guilt on the charge of murder beyond reasonable doubt. Defense counsel prayed that the charges against the accused person be dismissed and that she be acquitted.
25. 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.
26. It is noted that the accused 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.
27. 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."
28. 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; that the accused is/are the perpetrator/s of the crime.
29. As regards the aspect of death, this is a straightforward question of fact. In this case, the death of Tobias Odongo is established by PW5, the Post-Mortem Report produced by PW6 and the Death Certificate. The pathologist (PW6) formed the opinion that the cause of death was severe head injury resulting from blunt force trauma accompanied by internal skull fractures and intracranial hemorrhage. This element is therefore satisfied.
30. 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 circumstance has been demonstrated in this case. The prosecution's case on this element hinges on circumstantial evidence and the accused's own admission. The accused's testimony is crucial in establishing the actus reus. She admitted that during an argument, the deceased struck her and in response she "pushed him away" causing him to fall. This admission was corroborated by the Investigating Officer (PW7) who testified that in her recorded police statement, the accused stated that she pushed the deceased causing him to fall onto a metallic box. This act of pushing the deceased which resulted in his fall and subsequent fatal head injury constitutes an unlawful act. The defence submission argued that no prosecution witness was an eyewitness to the act of killing. While this is true, it is a trite principle of law that murder can be proved by circumstantial evidence where the evidence is so strong that it points irresistibly to the guilt of the accused. In this case, the circumstantial evidence is compelling. The deceased was last seen alive arguing with the accused. She was the only person present in the house with him during the physical confrontation. The deceased was found with a severe head injury consistent with a fall onto a hard object and the accused confirmed that she pushed him, causing him to fall onto a metallic box. All other witnesses (PW2, PW3, PW4) arrived after the assault had taken place and did not witness the actual infliction of the injury.
31. The defence also attempts to downplay the dying declaration made to PW2 ("my mother, my wife is killing me"). While this court may not place significant weight on this statement as a dying declaration due to concerns about the state of mind of the deceased given his alcohol consumption, as per the stringent guidelines set out in Republic v Njoroge & 2 others [2024] KEHC 3710 ( KLR) its existence coupled with the accused's own admission further confirms the sequence of events and the identity of the perpetrator.
32. I am therefore satisfied that the prosecution has proved beyond a reasonable doubt that the accused committed the unlawful act of pushing the deceased which caused his death. The accused's own testimony and her police statement as confirmed by PW7 leave no doubt that her actions directly led to the fatal injury.
33. On whether there was malice aforethought, section 206 of the Penal Code provides the appropriate explanation of what constitutes the same as the intention or knowledge of causing death or grievous harm and can be inferred from circumstances inter alia; an intention to cause death of any person; an intention to cause grievous bodily harm which leads to the death of such person; reckless disregard of life where a perpetrator is aware of the possibility that their actions could lead to death of such a person; intentional commission of a criminal act where death is a natural consequence of the act; evidence of prior planning or premeditation. Under Section 203 of the Penal Code, murder is described as the unlawful killing of a person with malice aforethought and that the perpetrator had the intention, knowledge or recklessness which indicates his awareness that his/her actions are likely to result in death or serious bodily harm.
34. The Court of Appeal in Nzuki v Republic [1993] KLR 171 held that malice aforethought is a subjective test requiring proof of an intention to cause death, an intention to cause grievous bodily harm or knowledge that there is a serious risk that death or grievous bodily harm will ensue from the accused's acts.
35. In Joseph Kimani Njau –vs- Republic [2014] eKLR the Court of Appeal stated that:
“In all criminal trials, both the actus reus and the mens rea are required for the offence charged; they must be proved by the prosecution beyond reasonable doubt. The trial court is under a duty to ensure that before any conviction is entered, both the actus reus and mens rea have been proved to the required standard. In the instant case, the trial court erred in failing to evaluate the evidence on record and to determine if the specific mens rea required for murder had been proved by the prosecution…In the present case, the circumstances that led to the fight between the appellant and deceased remain unclear; the motive or reason for the fight remains uncertain; it is an error of law to invoke circumstantial evidence when malice aforethought for murder has not been established. We find that mens rea for murder was not proved. Failure to prove mens rea for murder means that an accused person may be convicted of manslaughter which is an unlawful act or omission that causes death of another.”
36. A charge of murder may therefore not be sustained unless the mens rea for murder is proved. The element of intention in committing the offence was examined in the English case of Hyam –vs- DPP [1974] 2 ALL ER 41 where Lord Diplock observed as follows:
“No distinction is to be drawn in English law between the state of mind of one who does an act because he desires it to produce a particular evil consequent and the state of mind of one who does the act knowing full well that it is likely to produce that consequence although it may not be the object he was seeking to achieve by doing the act
37. In Mungai V. Republic [1984] KLR 85 at page 98, Kneller, Hancox JJA and Nyarangi Ag. J.A. held:
“However, notwithstanding the fact that section 17 of the Code statutorily requires that criminal responsibility for the use of force in defence of person or property shall be determined according to English Common Law, it does appear that the doctrine is recognized in East Africa that the excessive use of force in the defence of person or property may lead to a finding of manslaughter: see R v Ngoilale (supra) and R v. Shaushi
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2. The accused denied the charge and thus warranting a trial wherein the prosecution called seven witnesses in support of its case.
3. Risper Aoko Ogutu (PW1) stated that she was an elderly Luo woman residing at Siger Rarieda. She testified that on September 30, 2023 at approximately 9:30 PM, she was preparing to sleep because she was not feeling well when she heard Rose Otieno, the wife of her grandson calling her. She explained that when she opened the door, Rose asked her to allow Mary to sleep in her house that night and return to her own home the next day which she permitted. She added that she slept in her bedroom while Mary and her granddaughter slept in the sitting room. She stated that her granddaughter Salome later woke her up to inform her that Mary was missing from where she had been sleeping having apparently woken up and left for work. She clarified that Mary was the wife of Tobias Odongo, who was her grandchild and is now deceased. She added that the family used to live in Kisumu but had come home to the village for a funeral. The witness was not cross-examined.
4. Marcela Achieng Mollo (PW2) stated that she was from Kanyikela and was familiar with the case. She testified that on September 30, 2023 around 10:00 PM, her son left his house and she subsequently heard noise coming from his home. She explained that she stepped outside and found a large crowd and when she enquired about what had happened, she saw blood flowing from her son's nose and ears. She noted that the deceased's wife had previously threatened them and it was decided that the wife should go to sleep at her mother-in-law's house. She asserted that the accused had a habit of assaulting her husband, who was her son, and that they had lived together for twenty years. She further stated that the deceased was later rushed to hospital on October 3, 2023 where he passed away prior to arrival. She stated that the weapon used was a stick which was recovered with bloodstains and that the police took away the bloody clothes and the stick. During cross-examination, she denied that the deceased was always domestic. She confirmed that Isdor had visited the deceased prior to the incident but noted that he had already left the house by the time she arrived. She stated that the assault had already taken place by the time she encountered the noise and that the deceased had previously told her that he had been beaten up in the past and that the accused had now accomplished her mission to finish him. She confirmed that they reported the matter to the police.
5. Rose Atieno Achieng (PW3) stated that she was a peasant farmer living in Asembo. She testified that she remembered the incident and was at home because there was a funeral for her in-law . She explained that on Saturday around 9:00 PM, she had gone back to sleep but was woken up by her daughter who alerted her about noises. She stated that she recognized the voice of the accused shouting, went outside, found the accused standing outside the gate and asked what the problem was. She testified that the accused claimed that she was fighting with her husband Tobias who was standing there and who informed her that his wife had hit him. She stated that she requested the couple to go into their house to resolve their issues and that she together with Mama Clinton went to find out what the problem was noting that the deceased claimed the issue was about food. She stated that she did not see any physical injuries on the deceased at that time. During cross-examination, she stated that she arrived at the accused's gate around 9:00 PM and remained outside. She confirmed that she saw Isdor Anyango at the gate and that they remained there for about thirty minutes. She testified that the deceased had requested her to tell the accused to let him sleep. She noted that she escorted the accused to a neighbor's house where the accused spent the night (specifically at Risper's house) while the husband and others remained at the gate.
6. James Otieno Mollo (PW4) a resident of the Rarieda area, testified regarding the incident involving his late brother Tobias Odongo. He recalled that on the evening of September 30, 2023 at around 9:00 PM, he was at home when he heard commotion and raised voices coming from the deceased's residence. He recognized the voices and rushed over and found a gathering of neighbors present alongside both the accused and the deceased who were engaged in an argument. According to him, the accused claimed that the deceased had been causing problems. A person named Jared e escorted the deceased inside the house while the accused followed them, after which he returned to his home. The following morning (Sunday), his mother called for him while he was preparing to leave for work. He learned that his brother had been injured and rushed to a local hospital. He went to check on him and due to the severity of the injuries, they were directed to Kisumu for a CT scan. The deceased later succumbed to his injuries. During cross-examination, he confirmed that the noise came from the residence, where the accused and deceased appeared to be exchanging words. He admitted that Jared escorted the deceased into the house while the wife followed immediately. He stated that he did not know what transpired in the house since he himself did not enter. He noted that the deceased used to take alcohol and had been drinking the previous day with him and that Hezron Onyango was not present.
7. Andrew Otieno Odongo (PW5) a son of the accused testified that he attended the autopsy at the mortuary on October 9, 2023 to identify the body. He was not cross-examined.
8. Dr. Ombok Lucy ( PW6) stated that she was a medical officer attached to the Jaramogi Oginga Odinga Teaching and Referral Hospital where she had served for three years and that she had performed several autopsies. She testified that she conducted an autopsy on the body of Tobias Odongo Omollo on October 9 2023 at 1:30 PM noting that the matter originated from Rarieda DCI. She reported the general observations of the body: the deceased was a male of around 49 years of age in good nutritional status, the body was well preserved in formalin with rigor mortis already established and blood was observed to be oozing from the ears. She reported the internal findings: there was a skull fracture accompanied by increased pressure in the head, massive internal bleeding and blood clots on the side of the brain while other bodily systems were essentially normal. She stated her professional opinion that the cause of death was a severe head injury resulting from blunt force trauma and noted that death certificate number 1553749 was issued. She produced the postmortem report dated October 9 2023 as an exhibit. During cross-examination, she stated that injuries of such a nature cannot be sustained from a regular fall unless the person is pushed. In re-examination, she noted that a fall could sustain such an injury and that there were no signs of intoxication by the deceased.
9. No. 240663 IP Delison Mwamobe (PW7) was the investigation officer currently attached to DCI Rarieda. He testified that on 2 nd October 2023, an incident was reported that a woman was at risk of being lynched by a mob after being accused of murdering her husband by pushing him and who hit a metallic box after the two had fought. That they commenced investigation and established that on 30 th September 2023, the deceased was at his mother's house and later left for his house. Later, the mother heard screams emanating from the deceased's house and she responded to the distress call, finding the deceased had been assaulted and was bleeding heavily from his nose and ears. Following the incident, the accused spent the night at her mother-in-law's house. The following day (October 1, 2023), the deceased's father went to check on him. He stated that their findings pointed to the accused being responsible for her husband's death. Police visited and processed the scene, recovered physical evidence and recorded witness statements. The victim was initially taken to a nearby hospital before being transferred to Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH), where he passed away on 2 nd October 2023. An autopsy revealed that the cause of death was blunt force trauma. The accused was subsequently taken into police custody. During cross-examination, he confirmed that none of the witnesses were eye witnesses. He confirmed that he recorded a statement from the accused. He confirmed that the deceased was with his brother and the brother to the deceased wanted to record a statement but he had a defilement case to attend in court on that said date. He had persuaded the deceased’s brother to record a statement to no avail. The accused had previously lodged a report with the police though the Occurrence Book (OB) entry was not availed in court. He noted that the accused in her statement stated that she pushed the deceased onto a metal box. He stated that the deceased died on 2/10/2023 three days after the incident, He established that the accused had malice aforethought. He stated that the deceased was drunk at the time. He noted the accused's claim that the deceased attacked her for not giving him food. The state closed its case at that juncture.
10. At the close of the Prosecutor's case, the court established that a prima facie case had been made against the accused herein to require her to be put on her defence. The accused opted to tender sworn testimony and called one witness.
11. Mary Akinyi Odongo (DW1) testified that she was a hawker and the wife of the deceased Tobias Odongo noting that they had been married for 28 years since she was 15 years old and had five children together. She claimed that her husband had been alcohol-dependent since 2005 which caused him to become quiet at home and led to the onset of quarrels. She recalled that on September 30 2023 she was attending the funeral of an in-law when the deceased called to say he was on his way and asked if food was available and requested her to go to the house. She stated that the deceased arrived with his brother Isdor Onyango who was drinking alcohol and that she served his brother Isdor who later left. She testified that the deceased demanded that she washes his hands which she declined to do because the cooking gas had run out and she asked him to take the food as she went to sleep. That suddenly, the deceased hit her on the head at the entry of the house and thus she went and took refuge at the home of Jared’s mother. That on the following morning, she went to their house and knocked the doors and windows but there was no response. She stated that she managed to push open the door and found the accused person snoring while seated. That she tried waking him up but it was all in vain. She stated that Jared arrived and suggested that she gives the deceased some sugar as we had thought that there was too much alcohol but he vomited. She stated that she alongside Jared rushed the deceased to a nearby health center for treatment. She stated that the doctors claimed that the deceased had pressure and blood sugar problems. It was then that they took the deceased to Bondo sub county hospital where they managed the blood pressure and blood sugar but later referred him to Siaya County Referral Hospital. She testified that she proposed the deceased be taken to Jaramogi teaching and referral hospital where the deceased was attended to. She stated that later around 1.00p.m the deceased passed away and this prompted her to call the parents who came to the hospital. She claimed that the family members then turned against her, accused her of killing him and had her arrested and charged. She asserted that the allegations against her were false, that the deceased made no claims against her at the time and that the deceased's mother had a "single story" and was framing her to prevent her from accessing her matrimonial property. On cross examination by the state, she confirmed they had five children with one present in court and the rest in school and noted the children were in Kisumu at the time of the incident. She admitted she had previously sought refuge with neighbors in Kanyikela village but acknowledged she had no official assault reports against the deceased. She reiterated that they had an argument that expanded over food and the deceased was drunk at the time. She stated that that the deceased hit her with a bottle on the head but admitted she did not seek medical treatment or possess medical evidence of her injuries. She stated she did not see blood oozing from the deceased's head or ears at the time and claimed she did not know why her mother-in-law turned against her. She stated that they first went to Church of Hope hospital and then to Bondo District hospital but did not avail the medical documents in court. She noted that the villagers became hostile and wanted to torch her house forcing the police to intervene and rescue her. She maintained that she did not hit the deceased with a bottle but merely pushed him away and stated she did not understand the pathological injuries outlined in the autopsy. During cross-examination by the Court, she admitted that her husband fell after she pushed him but maintained she had no intention of killing him. During re-examination, she confirmed she found the deceased with Isdor but Isdor had left before the physical incident occurred. She also clarified that she raised the alarm alongside James (PW3) and Rose (PW4) to take the deceased to the hospital. She confirmed that they later met the deceased at the gate. At that juncture, they did not take the deceased to the hospital as he looked physically alright. She confirmed that the police officers came and picked up and took her to Lwak police station and that the investigation officer and the arrested officer were different.
12. Veronica Atieno (DW2) stated that she was a business lady from the Siger area and the older sister of the accused. She testified that on 30 th September 2023, they were at a funeral venue when the deceased called the accused to request that she prepare food prompting the accused to leave for her house. She explained that her sister Susan later called to alert her that the deceased was in his house in bad shape prompting them to rush to the scene. She stated that she found that the deceased had been rushed to the dispensary and later to Bondo Sub-County Hospital where she stayed until 3:00 AM. She noted that when the doctors indicated the patient's condition was worsening, he was transferred to the Jaramogi Oginga Odinga Teaching and Referral Hospital in Kisumu where they were advised to buy medicine and spent the night on the verandah before the deceased passed away. She testified that upon returning home, they met a hostile crowd blaming her sister which forced the accused to seek refuge at the police station. She observed that the accused and the deceased had been involved in arguments in the past. During cross-examination, she provided her identity card number as 1512541761 and confirmed her occupation. She stated that she was not present at the exact scene when the physical incident occurred. She acknowledged that the deceased had visible injuries on his head as disclosed by the autopsy report.
13. After the close of the defence case, Counsel for the accused tendered her written submissions.
14. Counsel submitted that there was only one issue before the court for determination: whether the prosecution had proved the offense of murder against the accused herein.
15. It was submitted at the outset that the accused was charged with the offense of murder contrary to Section 203 as read with Section 204 of the Penal Code. Counsel submitted that for the charge of murder to be established three key elements had to be proven: the death of the deceased; proof that the accused committed the unlawful act causing the death of the deceased and proof that the act was committed with malice aforethought.
16. Regarding the first issue, counsel submits that it was not in dispute that the deceased had died. This fact was confirmed by the post-mortem report produced in court and by various witnesses who identified the body. Counsel acknowledged that the prosecution had tendered sufficient evidence to prove this element.
17. Regarding the second element, counsel argued that no prosecution witness was able to prove that the accused committed the unlawful act. PW-1: Testified that on the night of September 30 2023 the accused was brought to her house by one Rose Atieno. Rose requested that the accused be allowed to sleep there due to a disagreement with her husband (the deceased). PW-1 allowed her to sleep there. During cross-examination, PW-1 confirmed she was not at the scene where the deceased sustained injuries. PW-2 testified that on the night in question at around 2200 hours she heard noise and went to her son’s (the deceased's) compound where she found a crowd. She testified that her son told her “My mother my wife is killing me”. Counsel submitted that PW-2 was attempting to rely on an alleged dying declaration but argued there was no evidence confirming the deceased ever uttered those words. None of the other prosecution witnesses present at the scene confirmed hearing the statement. Furthermore, counsel submitted that even if the statement had been made, it did not legally qualify as an admissible dying declaration under Section 33(a) of the Evidence Act. Citing Republic v Njoroge & 2 others [2024] KEHC 3710 (KLR ) counsel outlined the mandatory criteria for dying declarations: contemplation of certain death, cogency, credibility, competency and corroboration.
18. Counsel asserted the statement failed these tests; Credibility : A dying declaration requires the declarant to be in a fit clear state of mind. In this case, evidence indicated the deceased was intoxicated from drinking alcohol with his brother that night which compromised the credibility of the statement; Corroboration : The statement was not corroborated by any of the other witnesses present at the scene nor was there direct or circumstantial evidence proving the accused committed the act. It was submitted that in this case, PW-3 and PW-4 both testified to hearing noise at around 2030 hours and finding the deceased and accused discussing a dispute over food. Neither witness observed any physical attack nor could they purport to be eyewitnesses to a murder. PW-5 only testified to witnessing the post-mortem examination.
19. Citing Nzuki vs Republic [1993] KLR 171 and Section 206 of the Penal Code, counsel emphasized that malice aforethought requires proof of intent to cause death, intent to cause grievous bodily harm or knowledge that death/grievous harm would likely result from the act. Counsel submitted that the prosecution completely failed to prove mens rea.
20. Counsel submitted that according to the accused's account: on 30 th September 2023, the deceased called her at around 1830 hours asking her to bring him food. She arrived home around 2130 hours with food and found the deceased drinking alcohol (Chrome) with his brother Isdor Onyango; after an argument arose over the food, the accused went to the bedroom to sleep. The deceased followed her and struck her with an alcohol bottle; as the deceased attempted to hit her a second time, the accused pushed him away in self-defense and fled the house for her safety; the accused sought help from her mother-in-law (PW-2) and later slept at a neighbor's (Risper's) house. Upon returning the next morning, she found the deceased sitting in the living room, sweating and having difficulty breathing. She raised the alarm and they arranged for his admission to hospital where he succumbed to his condition on 2 nd October 2023.
21. Counsel contended that an assumption was being wrongly made that pushing the deceased while escaping caused the fatal trauma. Counsel argued that a simple push while fleeing could not account for such a severe injury.
22. Counsel also pointed out significant medical inconsistencies noting that hospital records from Bondo and Church of Christ indicated the deceased suffered from high blood pressure and diabetes creating reasonable doubt regarding the exact cause of death.
23. Finally, counsel highlighted a critical investigative failure: the deceased’s brother, Isdor Onyango was inside the house drinking with the deceased and remained behind after the accused fled. Despite being the last person known to be with the deceased, the investigating officer failed to record his statement or call him as a witness.
24. Counsel concluded by submitting that the prosecution’s evidence was insufficient to establish the accused person's guilt on the charge of murder beyond reasonable doubt. Defense counsel prayed that the charges against the accused person be dismissed and that she be acquitted.
25. 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.
26. It is noted that the accused 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.
27. 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."
28. 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; that the accused is/are the perpetrator/s of the crime.
29. As regards the aspect of death, this is a straightforward question of fact. In this case, the death of Tobias Odongo is established by PW5, the Post-Mortem Report produced by PW6 and the Death Certificate. The pathologist (PW6) formed the opinion that the cause of death was severe head injury resulting from blunt force trauma accompanied by internal skull fractures and intracranial hemorrhage. This element is therefore satisfied.
30. 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 circumstance has been demonstrated in this case. The prosecution's case on this element hinges on circumstantial evidence and the accused's own admission. The accused's testimony is crucial in establishing the actus reus. She admitted that during an argument, the deceased struck her and in response she "pushed him away" causing him to fall. This admission was corroborated by the Investigating Officer (PW7) who testified that in her recorded police statement, the accused stated that she pushed the deceased causing him to fall onto a metallic box. This act of pushing the deceased which resulted in his fall and subsequent fatal head injury constitutes an unlawful act. The defence submission argued that no prosecution witness was an eyewitness to the act of killing. While this is true, it is a trite principle of law that murder can be proved by circumstantial evidence where the evidence is so strong that it points irresistibly to the guilt of the accused. In this case, the circumstantial evidence is compelling. The deceased was last seen alive arguing with the accused. She was the only person present in the house with him during the physical confrontation. The deceased was found with a severe head injury consistent with a fall onto a hard object and the accused confirmed that she pushed him, causing him to fall onto a metallic box. All other witnesses (PW2, PW3, PW4) arrived after the assault had taken place and did not witness the actual infliction of the injury.
31. The defence also attempts to downplay the dying declaration made to PW2 ("my mother, my wife is killing me"). While this court may not place significant weight on this statement as a dying declaration due to concerns about the state of mind of the deceased given his alcohol consumption, as per the stringent guidelines set out in Republic v Njoroge & 2 others [2024] KEHC 3710 ( KLR) its existence coupled with the accused's own admission further confirms the sequence of events and the identity of the perpetrator.
32. I am therefore satisfied that the prosecution has proved beyond a reasonable doubt that the accused committed the unlawful act of pushing the deceased which caused his death. The accused's own testimony and her police statement as confirmed by PW7 leave no doubt that her actions directly led to the fatal injury.
33. On whether there was malice aforethought, section 206 of the Penal Code provides the appropriate explanation of what constitutes the same as the intention or knowledge of causing death or grievous harm and can be inferred from circumstances inter alia; an intention to cause death of any person; an intention to cause grievous bodily harm which leads to the death of such person; reckless disregard of life where a perpetrator is aware of the possibility that their actions could lead to death of such a person; intentional commission of a criminal act where death is a natural consequence of the act; evidence of prior planning or premeditation. Under Section 203 of the Penal Code, murder is described as the unlawful killing of a person with malice aforethought and that the perpetrator had the intention, knowledge or recklessness which indicates his awareness that his/her actions are likely to result in death or serious bodily harm.
34. The Court of Appeal in Nzuki v Republic [1993] KLR 171 held that malice aforethought is a subjective test requiring proof of an intention to cause death, an intention to cause grievous bodily harm or knowledge that there is a serious risk that death or grievous bodily harm will ensue from the accused's acts.
35. In Joseph Kimani Njau –vs- Republic [2014] eKLR the Court of Appeal stated that:
“In all criminal trials, both the actus reus and the mens rea are required for the offence charged; they must be proved by the prosecution beyond reasonable doubt. The trial court is under a duty to ensure that before any conviction is entered, both the actus reus and mens rea have been proved to the required standard. In the instant case, the trial court erred in failing to evaluate the evidence on record and to determine if the specific mens rea required for murder had been proved by the prosecution…In the present case, the circumstances that led to the fight between the appellant and deceased remain unclear; the motive or reason for the fight remains uncertain; it is an error of law to invoke circumstantial evidence when malice aforethought for murder has not been established. We find that mens rea for murder was not proved. Failure to prove mens rea for murder means that an accused person may be convicted of manslaughter which is an unlawful act or omission that causes death of another.”
36. A charge of murder may therefore not be sustained unless the mens rea for murder is proved. The element of intention in committing the offence was examined in the English case of Hyam –vs- DPP [1974] 2 ALL ER 41 where Lord Diplock observed as follows:
“No distinction is to be drawn in English law between the state of mind of one who does an act because he desires it to produce a particular evil consequent and the state of mind of one who does the act knowing full well that it is likely to produce that consequence although it may not be the object he was seeking to achieve by doing the act
37. In Mungai V. Republic [1984] KLR 85 at page 98, Kneller, Hancox JJA and Nyarangi Ag. J.A. held:
“However, notwithstanding the fact that section 17 of the Code statutorily requires that criminal responsibility for the use of force in defence of person or property shall be determined according to English Common Law, it does appear that the doctrine is recognized in East Africa that the excessive use of force in the defence of person or property may lead to a finding of manslaughter: see R v Ngoilale (supra) and R v. Shaushi
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