1. The accused persons herein Peter Muhua Odaha and Leonard Ouma Obala were charged with an offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on 31 st day of May 2024 at Honge Beach Village in Usenge Sub Location, Bondo Sub County within Siaya County, jointly with others not before court murdered George Onyango Marango.
2. The prosecution called seven (9) witnesses in support of its case.
3. Denis Makokha Marango (PW1) testified that the deceased was his brother and that on 2/6/2024 he received a call from deceased’s friends that some people had disappeared with the deceased. That he rushed to Yimbo Usenge area and visited the home of a lady by name Nya-Sakwa who had a relationship with the deceased and who informed him that the deceased had been killed. That the deceased had been supplying fish to the said Nyar-Sakwa. That the clan elder arrived but he did not identify himself and that he alerted them to leave the area or else they would face the same fate that befell the deceased. That he later pleaded with the deceased’s friends that they report the incident at Usenge Police station and which they did at 9.00 am and remained at the station until 6.00 pm. That the OCS had no fuel and requested for Ksh6000/= which they did not have though they managed to raise Kshs3000/=. That the OCS later chased them away. That the following day, they went back to the police station where the OCS contacted the assistant chief to confirm the incidence but who denied the same. That he did not know the persons who disappeared with the deceased and that it was Nya-Sakwa who knew them. That he mentioned the name of Odaha. That the DCI intervened in the matter and that the body was discovered and which was found at the mortuary. That he believes that the persons responsible are the people in court including the 2 nd accused who is the village elder whom he had met earlier. That he does not know the 1 st accused.
On cross examination, he stated that he recorded his statement on 4/6/2024 where he spoke in Dholuo and which was interpreted to English by his brother called Fred to the police officer who recorded it. That the village elder found them at the home of Nya-Sakwa and that a conversation ensued leading to a disagreement and that they were about twenty people including two friends to the deceased. That the duty of the clan elder was to ensure that there was no criminal activities in the village and that there existed peace and order and that the village elder was threatening them to leave the area. That Nya-Sakwa did not give a list of attackers and neither did she mention the name of the 2 nd accused. That the friends of the deceased are those who fished with the deceased. That they were informed that the body was discovered in Imbo Usenge on the door step of a certain house where a fight had taken place.
4. Alfred Opondo Marango (PW2) testified that on 2/6/2024 he was at home when he received a report that the deceased had disappeared from where he did his business at Yimbo Usenge. That they then left for that area on 4/6/2024 and made enquiries on the exact place where the deceased resided and lodged a report at Usenge Police Station. That the OCS informed them to wait for any report. That PW1 was among those who were out in search of the deceased. That later PW1 notified PW2 that he heard rumours that the deceased had died. That they recorded statements and later contacted Nyar-Sakwa who came to the police station and recorded her statement. That on 5/6/2024 they went back to Usenge Police Station and found the 2 nd accused person. That the OCS called the assistant chief who gave out the name of Odaha who was ordered to present himself to the police station. That they then proceeded to Bondo Police Station where they were referred to the DCI. That he was not present when the body of the deceased was discovered and that he could not tell if the murderers were in court. That it was only the 2 nd accused whom he saw at the police station.
On cross examination, he stated that the assistant chief did not go to the police station and that he could not tell if he was a witness. That he did not know the 1 st accused person. That he dictated his statement in Kiswahili which the officer recorded. That he did not visit the scene.
5. Benta Akinyi Otieno (PW3) testified that on 2/6/2024 that she had gone to harvest beans when her child went and alerted her that their uncle George Onyango had been killed in Usenge area. That on 3/6/2024 she linked up with her sisters and moved to Yimbo area and that her brother Makokha Ouma and others went to Usenge. That they claimed that the clan elder had pointed out that the deceased had been warned to keep off a certain woman in the area and that six suspects were involved in the death. That she could see the 2 nd accused who was the clan elder whom she had spoken about. That he was the one who found deceased’s body and alerted the police.
On cross examination, she stated that she was at home and that they left for Bondo on 3/6/2024 and that they remained at Bondo Police station as their brothers went in search of the deceased. That the DCI Bondo ordered the 2 nd accused to produce the deceased failing which he would be charged over the same. That she did not witness the incident. That she does not know the 1 st accused person as she has seen him for the first time. That the first accused is the one who reported about the discovery of the deceased’s body near his compound. That she was certain that 1 st accused and 2 nd accused were involved in the incident. That she did not witness the incident as she was not present and that she could not tell if 1 st accused resided in the house where the deceased’s body was discovered.
On re-examination, she indicated that she only knew the 2 nd accused as one of the killers.
6. George Odhiambo Orenge (PW4) testified that he was a fisherman and that the deceased was his friend and fellow fisherman and that they lived together. That they lived at Got Agulu beach. That there was a funeral they were to attend on 12/5/2024 at 9.00 am and that they last met on 29/5/2024 at 9.00am. That he never saw him again. That he did not find him in the house and so he assumed that he would turn up. That later he received a report that he had been beaten at Honge beach. That he was advised to rush there and check. That he met a lady named Nya-Sakwa who informed him that he had been with the deceased and that she believed that he might have died. That Nya-Sakwa handed him the deceased’s belt and pair of sandals. That he went to see the area chief and briefed him that his friend had been killed and that the chief chased him away. That he then alerted the deceased’s brothers. That Nya-Sakwa mentioned that eight people were involved but could only recall six of them. That he went and reported the matter at Usenge police station but he police chased them away and advised that the missing person might turn up. That they moved to Bondo DCI and a search was mounted for five days and the body was recovered although in bad state. That one thigh had been removed by a dog and that the head had been severed and the body could not be recognized. That he presented the black belt and a pair of beige plastic sandals that he was given by Nya-Sakwa as exhibit PMFI 1 and 2. That Nya -Sakwa had named Ouma Kwanda Odaha as one of the suspects whom he did not know. That he knew the 2 nd accused as he is the village elder for Honge village. That the body was found near the house of the 1 st accused namely Rakwayo. That the 2 nd accused should be aware of anything taking place in his village and that they reported to him only for him to turn them away. That he accompanied them to the scene only for him to chase them away after a confrontation between him and the villagers ensued. That the village elder claimed that the deceased had already been killed and that nothing could be done and that he chased them away. That the only thing linking 1 st accused is that the body was found inside a bush behind his house.
On cross examination, he stated that he was with accused on 29/5/2024. That he recorded his statement with DCI. That he had gone to fish and came back at 6.00 am. That they had parted ways on 29/5/2024 at 9.00 am and that he used to live with the deceased in the same house. That on 1/6/2024 they together went fishing with the deceased. That the deceased had visited Honge Village to listen to music and that deceased informed him of the same. That the deceased was killed within Honge beach. That it is Nya-Sakwa who implicated the suspects and that he used the same to report to the chief. That he was not involved in the death of the deceased. That he reported to Usenge police station on 2/6/2024. That the chief was not a witness in the matter. That the body was recovered not far from the house of the 1 st accused. That both accused are in-laws and live within the same compound. That the body was found inside a bush and behind the 1 st accused’s house. That the 1 st accused is a brother– in–law of Nya-Sakwa. The he knew Nya Sakwa after the death of the deceased. That he maintains that 1 st accused resides in the house near where the body was discovered. That the body of the deceased had been there and that the stench ought to have alerted the 1 st accused but not to wait until dogs brought a piece of the body. That it is upto the court to decide the involvement of the 1 st accuse.
On cross examination, he stated that he had lived with deceased for two years. That the deceased’s step brothers had gone to the area and that they made a report. That he knows PW3 (Benter Akinyi ). That the deceased had been killed at the home of Nya-Sakwa. That the villagers wanted to lynch the village elder (2 nd accused). That they usually sell fish at 6.00 am. It is not true that the deceased used to sell fish at night. That it was not true that he and the deceased had a love triangle over Nya-Sakwa.
7. Julius Oduor Odanga (PW5) testified that on 30/5/2024, George Olenge alerted him that the deceased had not turned up for two days. That the deceased had been assaulted while at the home of Nya-Sakwa. That he then advised PW4 to alert deceased’s family members. That on 1/6/2024 at 10.00 am he accompanied PW4 to the Usenge police station where upon the police advised them to report to the Chairman Beach management Committee. That they went to the scene and met the clan elder who ordered them to leave the area and further claimed that both families of the deceased and Nya-Sakwa should resolve the issue. That he claimed the deceased had been in a love affair with Nya-Sakwa and that was the cause of his death. That the clan elder is the 2 nd accused person. That he did not know the first accused person. That they advised the deceased’s family to proceed to the police station alongside Nya-Sakwa to report.
On being cross examined, he stated that he does not know the 1 st accused person and could not tell why he had been charged. That the 2 nd accused claimed that they had already killed the deceased and that he reported 2 nd accused’s sentiments to the police station. That he has seen the statement although it does not contain his claim on the 2 nd accused’s sentiments of killing the deceased. That it was not true that they had implicated innocent people. That they were three people when the 2 nd accused spoke.
8. Pauline Awuor Nyapuni (PW6) testified that she sells fish at Honge beach. That the deceased was well known to her as George Onyango and that he was a fisherman. That the accused persons are neighbours. That on 31/5/2024 is the day when the deceased died. That she recorded her statement dated 6/6/2024. That on the material date, she was in her house with her children but not yet asleep. That she heard somebody calling from outside and who introduced himself as George Onyango. That she then enquired as to what he wanted. That he claimed that he had some fish which he wished to sell it to her. That she took the fish at a cost of Kshs200/= and went back to sleep. That she heard noise and went outside and that she saw people running. That she recognized them as they had torches while she had a lantern and who included Ouma Wanda, Okoth, Okeno, Jared Radiere, Calmus Onyango, Sam Oyoya who were not in court. That the people she saw were assaulting the deceased. That the scene was near her house. That some of them assaulted her though they left her and continued assaulting the deceased. That they later carried the deceased away and that she did not see the deceased again. That she recorded her statement.
On cross examination, she stated that the assailants assaulted her and the deceased. That none of the accused persons assaulted her. That Camlus Odaha Onyango who is the brother to the 1 st accused is not in court and that she does not know why 1 st accused was in court. That those who carried the deceased were not in court. That she learnt about the death of the deceased one week later. That none of the villagers went to the scene even after hearing the noise. That she had known the deceased for five months. That his son aged 17 years and who was in the kitchen ran away and came back after she had been assaulted. That she was surprised as to why her statement was changed. That she was aware that the deceased’s relatives had visited to seek assistance by the 2 nd accused who turned them away. That the deceased was not her lover and that the assailants were her husband’s relatives.
That the date on her statement was changed. That her son ran away on seeing people fighting. That there were other people at the scene whom she did not recognize. That one of the neighbours was threatened by the assailants and thus could not come to the scene.
9. Dr. Daniel Ochieng Otieno (PW7) testified that he is based at Bondo Sub-County Hospital. That he performed an autopsy on 18/6/2024 on the deceased. That the body was naked and that the age of the deceased was 32 years and was of good nutrition. That the age of death was more than 72 hours and that body was already decomposing. That there were bone fragments and that the head had been separated from the body. That there was no muscle cover on the head, neck and limbs. That the skull was disfigured with no fractures noted. That the right hip and shoulders were separated from the body. That the internal organs could not be assessed and that the cause of death was inconclusive due to decomposition changes. That a death certificate Number 1085986 was issued. That the autopsy report dated 18/6/2024 was produced as exhibit 3. That there was no skin cover on the bone but bones were apart and not broken. That there were no internal organs to be assessed.
On cross examination, he stated that decomposition depends on various factors. That it was more than 72 hours. That the body was recovered from the wild. That the cause of death thus could be open to anything including poison.
10. Brovian Anyango(PW8) minor testified that she is aged 15 years and that they live in Honge Beach within Bondo Sub County. That the deceased was George Onyango who used to sell them fish. That she knows the accused persons but she had never seen them. That she recorded her statement on 31/5/2024. That on 31/5/2024 at 9.00 pm she was in the house with her mother and siblings Velma Achieng and Thomas Omondi. That her mother is Pauline Awuor. That the deceased brought fish and called her mother from outside. That her mother went outside and picked the fish and brought it into the house. That the fish was worth Kshs200/= and which her mother paid and went back to the house. That later they heard screams nearby. That she sat up and alerted her mother. That it seemed the deceased was being beaten and pushed towards our home. That later they went outside and saw people assaulting the deceased. That they had a torch make of Sun king and that she recognized Ouma Wanda, Jared Odaha, Sam Oyoya, Okoth Okendo, Ouma, Aniki and that none of them were in court. That they were armed with whips and pangas. That they were other people who assaulted the deceased and whom she did not recognize. That she managed to run away and hid in a maize plantation. That her father was then in hospital.
On being cross examined, she indicated that she knew the 1 st accused Peter Muhua Odaha and that he was not among those at the scene. That both the 1 st accused and 2 nd accused were not at the scene. That Odaha was a family name within the area and that many people did use it. That the 1 st accused is their neighbour and fisherman and that he lives in the same compound with them. That 1 st accused goes to the lake at 5.00 pm and comes back in the morning. That the deceased’s body was found behind the house of the 1 st accused on a maize plantation. That the assailants removed deceased’s clothes and then took him away. That Velma is aged 14 years and Thomas aged 8 but they did not witness the incident. That her brother Felix remained at the scene but was not called to testify. That she had only known the deceased for two months. That the deceased used to visit their home as he brought fish three times a week. That it was not true that the deceased used to be given food at their home. That she knew the 2 nd accused person and that no clothes belonging to deceased were found at their home. That it was not true that they hid the body of the deceased and that they did not prevent police from investigating the matter. That she saw 1 st accused leave for the lake on 31/5/2024 as she was heading to the Jackie’s shop as she went to school. That she could not tell the time 1 st accused arrived from the lake. That the body was found by the 1 st accused in his farm. That she was present during the recovery. That she could not tell if 1 st accused was among the assailants as she sat down hearing voices of people passing by.
11. No. 246526 Pc Sheldon Ndalo (PW9) testified that he is based at Bondo Police station DCI and performing investigation duties. That on 6/6/2024 a delegation of Marango’s family of Kakamega went to their office on claims that the deceased had gone missing. That they began investigations and learnt that the matter had already been lodged at Usenge Police Station. That vide OB10/4/6/2024 the reportee was one Pauline Awuor. That the report was about a missing person and assault. That upon interrogating the reportee, they established that on 31/5/2024 she stated that it was 2100 hours one George Marango (deceased) who was a fisherman at Honge Beach brought her fish worth Kshs200/=. That later they went to the area village officer who is the 2 nd accused person and arrested him on 6/6/2024 on claims of assault and abduction in order to murder. That two days later, the 1 st accused lodged a report at Usenge police station that he had spotted a decomposing body ten metres from his house. That they placed him in the cells. That they needed the 2 nd accused to give an explanation. That they proceeded to the scene and found the body of the deceased. That the body was decomposed and part thereof eaten by animals. That it was in a maize plantation. That the body was collected and taken to Bondo Sub-County Hospital mortuary. That they later recovered a black belt and pair of beige plastic sandals from Pauline Awuor which she claimed belonged to the deceased and the same were produced as exhibit 1 and 2 respectively. That he established that the in-laws of Pauline Awuor had assaulted the deceased as he was alleged to have a love affair with the said Pauline Awuor.
On cross examination, he stated that their objective was to investigate the matter thoroughly. That the 1 st accused was mentioned by witnesses such as Pauline Awuor (PW6). That he did not know how many people use the name Odaha. That the 1 st accused is Peter Muhua Odaha. That PW6 might have been compromised and likewise PW8. That his guess is that witnesses have been compromised. That no fingerprints could be lifted. That the body had already decomposed. That Pauline Awuor went to police station having sustained injuries and was thus a victim. That he had not availed the photographs of the scene of crime showing that the body was found near the home of the 1 st accused who lives 30 metres from that of Pauline Awuor. That he recorded 1 st accused’s statement who had claimed to have been at the lake fishing. That he recorded the statement of George Odhiambo and that the date of 29/6/2024 was an error. That George Odhiambo informed Pauline Awuor to report the matter.
On being cross examined, he stated that he was the investigating officer and that he had an investigating diary. That he visited the scene of crime and took photographs. That he has not availed the same to court. That he visited the house of PW6 twice and that he had not given any report of any finding at the said house. That he had not taken the exhibits for DNA analysis. That he did not take mobile phones for forensic analysis. That he did not record the statement with assistance of other officers. That it is the Deputy DCI who recorded the statement of PW6. That he had seen the statement of Pauline Awuor. That he did not do the mapping of the phones belonging to 2 nd accused to establish his whereabouts on the date of the incident.
On re-examination he stated that the incident took place on 31/3/2024 as captured in the statement. That he visited the house of PW6 twice. That he took photographs of the scene of crime but did not have them processed. That they did not treat Odhiambo Olenge as a suspect as they had already the requisite investigations.
12. At the close of prosecution’s case, this court established that a prima facie case had been made out against the accused persons herein to warrant them to be placed on their defence. They opted to tender sworn testimony and called witnesses.
13. Peter Muhua Odaha (DW1) testified that he is a fisherman and that he comes from Got Agulu Sub Location. That he is aware of this case. That he does recall on 31/5/2024 he was in the lake having left home at 5.00 pm. That the fishing was to be carried out at night. That he was with Oliver Oduor, Ajim Onyor, Cha Mageta. That the boat belonged to one William Fwete. That he will call those he has mentioned as his witnesses. That he came back at 7.00 am on 1/6/2024 after having sold his fish. That he had heard of the incident that a fight had taken place in the area. That he heard about it while still at the lake. That when he arrived he went straight to prepare tea for his family. That while he was going about his farm, he stumbled upon the body of the deceased. That it was eight days after the alleged incident. That he did not smell anything regarding the rotten body. That it was nearby and he was going to weed his farm. That he went and alerted the beach management. That the maize crop was quite tall. That he could not tell if anyone could have seen the body and that he got to see it as he had gotten into the farm. That the chairman of the beach management then escorted him to Usenge Police Station where he reported and was placed in cells and then placed in a land cruiser which took him to the scene. That he was not the Odaha mentioned by the witnesses as there are many people with such a name. That he was then in the lake and that Nya-Sakwa was his brother’s wife with whom he had no bad blood with. That he used to hear of the name George but had not met him before. That he did not go closer to the body.
On cross examination, he stated that he went to fish on 31/5/2024 and that he came back on 1/6/2024. That his farm is behind but some metres from his house. That he stays with his family and that the 2 nd accused lives near his home but he is far from where the body was discovered. That Nya-Sakwa is his brother’s wife. That the 2 nd accused was not related to Nya-Sakwa. That he does not know the persons named by the witnesses. That the 2 nd accused was not among them. That Nya-Sakwa is his sister in-law and whose name is Pauline Nyakunyi while her husband is John Nyakunyi. That he was in the lake fishing at the time of the alleged incident. That he only heard rumours of a fight while he was still in the lakeside. That the fight took place at the home of his brother John Nyakunyi who was at Bondo hospital. That he was not able to bother and interfere as he had his own house chores. That he had left Pauline alone in the compound when he went for fishing. That he does not stay with his wife as she had left to her parents’ home. That he did not involve his neighbours in the matter but only contacted the beach manager. That he only made the report after discovery of the body and after the arrest of the village elder. That he was arrested and that he does not know the identity of those involved.
14. James Onyango Onyor (DW2) testified that on the night of 31/5/2024 he together with Peter Odaha (1 st accused), Oliver Oduor and Ja Mageta came back from the lake on 1/6/2024. That while at the lake they heard that some people had fought and that three days later they learnt that Peter Odaha has been arrested. That he confirms that the said 1 st accused was not present at the scene. He also added that there are other persons who use the name Odaha in the area such as John Odaha. That he does not know the deceased herein as he had not interacted with him.
On cross examination, he stated inter alia; that he was with the 1 st accused on 31/5/2024; that he heard that people fought at the home of the 1 st accused but did not get to know the identity of those involved; that he was on the same boat with the 1 st accused and that the boat belongs to one Willima Fwete; that Peter Odaha and John Odaha are the only ones with the name Odaha.
15. William Fwete (DW3) testified that he owns a boat which operates in Honge Beach in Bondo Sub-County. That on 31/5/2024 he was at Honge Beach to fish and that he was in company with Oliver Oduor, Peter Odaha and Ja Mageta. That as the owner of the boat he gave them the engine, food and lamp. That they came the following day on 1/6/2024 at 7.00 am and that the 1 st accused was also with them. That he confirms that the 1 st accused was not at the scene as alleged.
On cross examination, he stated that he had worked with the 1 st accused for over 10 years. That the 1 st accused was the one responsible for throwing the fishing net into the lake waters while others performed other tasks. That 1 st accused is an honest man. That 2 nd accused is a village elder. That he was not at the scene on 31/5/2024 and that he cannot tell what transpired.
16. Leonard Ouma Ogola (DW5) testified that he is the 2 nd accused and a resident of Honge and a village elder. That on 31/5/2024 at 9.00 pm he was at his home with his family who included his wife Hellen and daughters-in-law Beldine and Jackline. That they were watching news. That he knows Pauline Awuor (PW6) who lives around 500 metres away from his home. That they watched the news upto 10.30 pm. That he did not know anything about the alleged assault of the deceased by six persons. That he was arrested on the basis that he was the clan elder. That he was not hostile and that he did not threaten the family members of the deceased. That he was already in custody when the body was discovered and that he learnt that the body had been discovered from the 1 st accused’s farm. That he is not related to PW6 and that he heard the evidence of PW6. That on 3/6/2024 at 2.30 pm eight persons who were peaceful approached him to show them a certain homestead belonging to PW6 and that he led them there as the village elder. That on arrival he found more than twenty people at the home some of whom were drunk. That he tried to address them but they did not reach a consent as they were demanding that he hand over their kin. That he was unable to do so and that he could not lead them to the lake for investigations. That there was no police officer among them. That he did not accompany the rowdy people to the lake and went to his home. That he did not participated in the killing of the deceased. That he heard the evidence of PW4 and he had seen his statement which shows that PW6 handed over sandals to PW4. That he is not aware that PW4 is a police officer.
On cross examination, he stated that he knows the 1 st accused and confirmed that he has not been involved in any criminal activities. That the 1 st accused hails from his area and who does fishing activity and which is usually at night. That he has been stopped from being village elder because of this case. That he is neither related to 1 st accused who is a neighbour nor John Odaha. That he did not hear of any screams in the night of 31/5/2024 and was not aware of such a fight in his area. That the deceased’s brother went on 3/6/2024 in search of the deceased who was then missing. That he did not know that the deceased’s relatives had lodged report to the police. That he took the deceased’s relatives to the home of Pauline (PW6) as they were looking for that homestead since the relatives had claimed that the deceased had visited the home of the said lady but however did not find the deceased there. That he declined to join deceased’s relatives in the search because they were harsh and unruly. That he denied allegations that he and others had killed the deceased and threw the body under the lake. That he was not reckless in his talk.
The defence closed their respective cases.
17. After the close of the defence case, learned counsels were directed to file and exchange submissions. However, it is only the defence counsel for the 1 st accused who complied who complied.
18. I have considered the evidence of the prosecution and defence as well as the submissions filed. I find the issue for determination is whet
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2. The prosecution called seven (9) witnesses in support of its case.
3. Denis Makokha Marango (PW1) testified that the deceased was his brother and that on 2/6/2024 he received a call from deceased’s friends that some people had disappeared with the deceased. That he rushed to Yimbo Usenge area and visited the home of a lady by name Nya-Sakwa who had a relationship with the deceased and who informed him that the deceased had been killed. That the deceased had been supplying fish to the said Nyar-Sakwa. That the clan elder arrived but he did not identify himself and that he alerted them to leave the area or else they would face the same fate that befell the deceased. That he later pleaded with the deceased’s friends that they report the incident at Usenge Police station and which they did at 9.00 am and remained at the station until 6.00 pm. That the OCS had no fuel and requested for Ksh6000/= which they did not have though they managed to raise Kshs3000/=. That the OCS later chased them away. That the following day, they went back to the police station where the OCS contacted the assistant chief to confirm the incidence but who denied the same. That he did not know the persons who disappeared with the deceased and that it was Nya-Sakwa who knew them. That he mentioned the name of Odaha. That the DCI intervened in the matter and that the body was discovered and which was found at the mortuary. That he believes that the persons responsible are the people in court including the 2 nd accused who is the village elder whom he had met earlier. That he does not know the 1 st accused.
On cross examination, he stated that he recorded his statement on 4/6/2024 where he spoke in Dholuo and which was interpreted to English by his brother called Fred to the police officer who recorded it. That the village elder found them at the home of Nya-Sakwa and that a conversation ensued leading to a disagreement and that they were about twenty people including two friends to the deceased. That the duty of the clan elder was to ensure that there was no criminal activities in the village and that there existed peace and order and that the village elder was threatening them to leave the area. That Nya-Sakwa did not give a list of attackers and neither did she mention the name of the 2 nd accused. That the friends of the deceased are those who fished with the deceased. That they were informed that the body was discovered in Imbo Usenge on the door step of a certain house where a fight had taken place.
4. Alfred Opondo Marango (PW2) testified that on 2/6/2024 he was at home when he received a report that the deceased had disappeared from where he did his business at Yimbo Usenge. That they then left for that area on 4/6/2024 and made enquiries on the exact place where the deceased resided and lodged a report at Usenge Police Station. That the OCS informed them to wait for any report. That PW1 was among those who were out in search of the deceased. That later PW1 notified PW2 that he heard rumours that the deceased had died. That they recorded statements and later contacted Nyar-Sakwa who came to the police station and recorded her statement. That on 5/6/2024 they went back to Usenge Police Station and found the 2 nd accused person. That the OCS called the assistant chief who gave out the name of Odaha who was ordered to present himself to the police station. That they then proceeded to Bondo Police Station where they were referred to the DCI. That he was not present when the body of the deceased was discovered and that he could not tell if the murderers were in court. That it was only the 2 nd accused whom he saw at the police station.
On cross examination, he stated that the assistant chief did not go to the police station and that he could not tell if he was a witness. That he did not know the 1 st accused person. That he dictated his statement in Kiswahili which the officer recorded. That he did not visit the scene.
5. Benta Akinyi Otieno (PW3) testified that on 2/6/2024 that she had gone to harvest beans when her child went and alerted her that their uncle George Onyango had been killed in Usenge area. That on 3/6/2024 she linked up with her sisters and moved to Yimbo area and that her brother Makokha Ouma and others went to Usenge. That they claimed that the clan elder had pointed out that the deceased had been warned to keep off a certain woman in the area and that six suspects were involved in the death. That she could see the 2 nd accused who was the clan elder whom she had spoken about. That he was the one who found deceased’s body and alerted the police.
On cross examination, she stated that she was at home and that they left for Bondo on 3/6/2024 and that they remained at Bondo Police station as their brothers went in search of the deceased. That the DCI Bondo ordered the 2 nd accused to produce the deceased failing which he would be charged over the same. That she did not witness the incident. That she does not know the 1 st accused person as she has seen him for the first time. That the first accused is the one who reported about the discovery of the deceased’s body near his compound. That she was certain that 1 st accused and 2 nd accused were involved in the incident. That she did not witness the incident as she was not present and that she could not tell if 1 st accused resided in the house where the deceased’s body was discovered.
On re-examination, she indicated that she only knew the 2 nd accused as one of the killers.
6. George Odhiambo Orenge (PW4) testified that he was a fisherman and that the deceased was his friend and fellow fisherman and that they lived together. That they lived at Got Agulu beach. That there was a funeral they were to attend on 12/5/2024 at 9.00 am and that they last met on 29/5/2024 at 9.00am. That he never saw him again. That he did not find him in the house and so he assumed that he would turn up. That later he received a report that he had been beaten at Honge beach. That he was advised to rush there and check. That he met a lady named Nya-Sakwa who informed him that he had been with the deceased and that she believed that he might have died. That Nya-Sakwa handed him the deceased’s belt and pair of sandals. That he went to see the area chief and briefed him that his friend had been killed and that the chief chased him away. That he then alerted the deceased’s brothers. That Nya-Sakwa mentioned that eight people were involved but could only recall six of them. That he went and reported the matter at Usenge police station but he police chased them away and advised that the missing person might turn up. That they moved to Bondo DCI and a search was mounted for five days and the body was recovered although in bad state. That one thigh had been removed by a dog and that the head had been severed and the body could not be recognized. That he presented the black belt and a pair of beige plastic sandals that he was given by Nya-Sakwa as exhibit PMFI 1 and 2. That Nya -Sakwa had named Ouma Kwanda Odaha as one of the suspects whom he did not know. That he knew the 2 nd accused as he is the village elder for Honge village. That the body was found near the house of the 1 st accused namely Rakwayo. That the 2 nd accused should be aware of anything taking place in his village and that they reported to him only for him to turn them away. That he accompanied them to the scene only for him to chase them away after a confrontation between him and the villagers ensued. That the village elder claimed that the deceased had already been killed and that nothing could be done and that he chased them away. That the only thing linking 1 st accused is that the body was found inside a bush behind his house.
On cross examination, he stated that he was with accused on 29/5/2024. That he recorded his statement with DCI. That he had gone to fish and came back at 6.00 am. That they had parted ways on 29/5/2024 at 9.00 am and that he used to live with the deceased in the same house. That on 1/6/2024 they together went fishing with the deceased. That the deceased had visited Honge Village to listen to music and that deceased informed him of the same. That the deceased was killed within Honge beach. That it is Nya-Sakwa who implicated the suspects and that he used the same to report to the chief. That he was not involved in the death of the deceased. That he reported to Usenge police station on 2/6/2024. That the chief was not a witness in the matter. That the body was recovered not far from the house of the 1 st accused. That both accused are in-laws and live within the same compound. That the body was found inside a bush and behind the 1 st accused’s house. That the 1 st accused is a brother– in–law of Nya-Sakwa. The he knew Nya Sakwa after the death of the deceased. That he maintains that 1 st accused resides in the house near where the body was discovered. That the body of the deceased had been there and that the stench ought to have alerted the 1 st accused but not to wait until dogs brought a piece of the body. That it is upto the court to decide the involvement of the 1 st accuse.
On cross examination, he stated that he had lived with deceased for two years. That the deceased’s step brothers had gone to the area and that they made a report. That he knows PW3 (Benter Akinyi ). That the deceased had been killed at the home of Nya-Sakwa. That the villagers wanted to lynch the village elder (2 nd accused). That they usually sell fish at 6.00 am. It is not true that the deceased used to sell fish at night. That it was not true that he and the deceased had a love triangle over Nya-Sakwa.
7. Julius Oduor Odanga (PW5) testified that on 30/5/2024, George Olenge alerted him that the deceased had not turned up for two days. That the deceased had been assaulted while at the home of Nya-Sakwa. That he then advised PW4 to alert deceased’s family members. That on 1/6/2024 at 10.00 am he accompanied PW4 to the Usenge police station where upon the police advised them to report to the Chairman Beach management Committee. That they went to the scene and met the clan elder who ordered them to leave the area and further claimed that both families of the deceased and Nya-Sakwa should resolve the issue. That he claimed the deceased had been in a love affair with Nya-Sakwa and that was the cause of his death. That the clan elder is the 2 nd accused person. That he did not know the first accused person. That they advised the deceased’s family to proceed to the police station alongside Nya-Sakwa to report.
On being cross examined, he stated that he does not know the 1 st accused person and could not tell why he had been charged. That the 2 nd accused claimed that they had already killed the deceased and that he reported 2 nd accused’s sentiments to the police station. That he has seen the statement although it does not contain his claim on the 2 nd accused’s sentiments of killing the deceased. That it was not true that they had implicated innocent people. That they were three people when the 2 nd accused spoke.
8. Pauline Awuor Nyapuni (PW6) testified that she sells fish at Honge beach. That the deceased was well known to her as George Onyango and that he was a fisherman. That the accused persons are neighbours. That on 31/5/2024 is the day when the deceased died. That she recorded her statement dated 6/6/2024. That on the material date, she was in her house with her children but not yet asleep. That she heard somebody calling from outside and who introduced himself as George Onyango. That she then enquired as to what he wanted. That he claimed that he had some fish which he wished to sell it to her. That she took the fish at a cost of Kshs200/= and went back to sleep. That she heard noise and went outside and that she saw people running. That she recognized them as they had torches while she had a lantern and who included Ouma Wanda, Okoth, Okeno, Jared Radiere, Calmus Onyango, Sam Oyoya who were not in court. That the people she saw were assaulting the deceased. That the scene was near her house. That some of them assaulted her though they left her and continued assaulting the deceased. That they later carried the deceased away and that she did not see the deceased again. That she recorded her statement.
On cross examination, she stated that the assailants assaulted her and the deceased. That none of the accused persons assaulted her. That Camlus Odaha Onyango who is the brother to the 1 st accused is not in court and that she does not know why 1 st accused was in court. That those who carried the deceased were not in court. That she learnt about the death of the deceased one week later. That none of the villagers went to the scene even after hearing the noise. That she had known the deceased for five months. That his son aged 17 years and who was in the kitchen ran away and came back after she had been assaulted. That she was surprised as to why her statement was changed. That she was aware that the deceased’s relatives had visited to seek assistance by the 2 nd accused who turned them away. That the deceased was not her lover and that the assailants were her husband’s relatives.
That the date on her statement was changed. That her son ran away on seeing people fighting. That there were other people at the scene whom she did not recognize. That one of the neighbours was threatened by the assailants and thus could not come to the scene.
9. Dr. Daniel Ochieng Otieno (PW7) testified that he is based at Bondo Sub-County Hospital. That he performed an autopsy on 18/6/2024 on the deceased. That the body was naked and that the age of the deceased was 32 years and was of good nutrition. That the age of death was more than 72 hours and that body was already decomposing. That there were bone fragments and that the head had been separated from the body. That there was no muscle cover on the head, neck and limbs. That the skull was disfigured with no fractures noted. That the right hip and shoulders were separated from the body. That the internal organs could not be assessed and that the cause of death was inconclusive due to decomposition changes. That a death certificate Number 1085986 was issued. That the autopsy report dated 18/6/2024 was produced as exhibit 3. That there was no skin cover on the bone but bones were apart and not broken. That there were no internal organs to be assessed.
On cross examination, he stated that decomposition depends on various factors. That it was more than 72 hours. That the body was recovered from the wild. That the cause of death thus could be open to anything including poison.
10. Brovian Anyango(PW8) minor testified that she is aged 15 years and that they live in Honge Beach within Bondo Sub County. That the deceased was George Onyango who used to sell them fish. That she knows the accused persons but she had never seen them. That she recorded her statement on 31/5/2024. That on 31/5/2024 at 9.00 pm she was in the house with her mother and siblings Velma Achieng and Thomas Omondi. That her mother is Pauline Awuor. That the deceased brought fish and called her mother from outside. That her mother went outside and picked the fish and brought it into the house. That the fish was worth Kshs200/= and which her mother paid and went back to the house. That later they heard screams nearby. That she sat up and alerted her mother. That it seemed the deceased was being beaten and pushed towards our home. That later they went outside and saw people assaulting the deceased. That they had a torch make of Sun king and that she recognized Ouma Wanda, Jared Odaha, Sam Oyoya, Okoth Okendo, Ouma, Aniki and that none of them were in court. That they were armed with whips and pangas. That they were other people who assaulted the deceased and whom she did not recognize. That she managed to run away and hid in a maize plantation. That her father was then in hospital.
On being cross examined, she indicated that she knew the 1 st accused Peter Muhua Odaha and that he was not among those at the scene. That both the 1 st accused and 2 nd accused were not at the scene. That Odaha was a family name within the area and that many people did use it. That the 1 st accused is their neighbour and fisherman and that he lives in the same compound with them. That 1 st accused goes to the lake at 5.00 pm and comes back in the morning. That the deceased’s body was found behind the house of the 1 st accused on a maize plantation. That the assailants removed deceased’s clothes and then took him away. That Velma is aged 14 years and Thomas aged 8 but they did not witness the incident. That her brother Felix remained at the scene but was not called to testify. That she had only known the deceased for two months. That the deceased used to visit their home as he brought fish three times a week. That it was not true that the deceased used to be given food at their home. That she knew the 2 nd accused person and that no clothes belonging to deceased were found at their home. That it was not true that they hid the body of the deceased and that they did not prevent police from investigating the matter. That she saw 1 st accused leave for the lake on 31/5/2024 as she was heading to the Jackie’s shop as she went to school. That she could not tell the time 1 st accused arrived from the lake. That the body was found by the 1 st accused in his farm. That she was present during the recovery. That she could not tell if 1 st accused was among the assailants as she sat down hearing voices of people passing by.
11. No. 246526 Pc Sheldon Ndalo (PW9) testified that he is based at Bondo Police station DCI and performing investigation duties. That on 6/6/2024 a delegation of Marango’s family of Kakamega went to their office on claims that the deceased had gone missing. That they began investigations and learnt that the matter had already been lodged at Usenge Police Station. That vide OB10/4/6/2024 the reportee was one Pauline Awuor. That the report was about a missing person and assault. That upon interrogating the reportee, they established that on 31/5/2024 she stated that it was 2100 hours one George Marango (deceased) who was a fisherman at Honge Beach brought her fish worth Kshs200/=. That later they went to the area village officer who is the 2 nd accused person and arrested him on 6/6/2024 on claims of assault and abduction in order to murder. That two days later, the 1 st accused lodged a report at Usenge police station that he had spotted a decomposing body ten metres from his house. That they placed him in the cells. That they needed the 2 nd accused to give an explanation. That they proceeded to the scene and found the body of the deceased. That the body was decomposed and part thereof eaten by animals. That it was in a maize plantation. That the body was collected and taken to Bondo Sub-County Hospital mortuary. That they later recovered a black belt and pair of beige plastic sandals from Pauline Awuor which she claimed belonged to the deceased and the same were produced as exhibit 1 and 2 respectively. That he established that the in-laws of Pauline Awuor had assaulted the deceased as he was alleged to have a love affair with the said Pauline Awuor.
On cross examination, he stated that their objective was to investigate the matter thoroughly. That the 1 st accused was mentioned by witnesses such as Pauline Awuor (PW6). That he did not know how many people use the name Odaha. That the 1 st accused is Peter Muhua Odaha. That PW6 might have been compromised and likewise PW8. That his guess is that witnesses have been compromised. That no fingerprints could be lifted. That the body had already decomposed. That Pauline Awuor went to police station having sustained injuries and was thus a victim. That he had not availed the photographs of the scene of crime showing that the body was found near the home of the 1 st accused who lives 30 metres from that of Pauline Awuor. That he recorded 1 st accused’s statement who had claimed to have been at the lake fishing. That he recorded the statement of George Odhiambo and that the date of 29/6/2024 was an error. That George Odhiambo informed Pauline Awuor to report the matter.
On being cross examined, he stated that he was the investigating officer and that he had an investigating diary. That he visited the scene of crime and took photographs. That he has not availed the same to court. That he visited the house of PW6 twice and that he had not given any report of any finding at the said house. That he had not taken the exhibits for DNA analysis. That he did not take mobile phones for forensic analysis. That he did not record the statement with assistance of other officers. That it is the Deputy DCI who recorded the statement of PW6. That he had seen the statement of Pauline Awuor. That he did not do the mapping of the phones belonging to 2 nd accused to establish his whereabouts on the date of the incident.
On re-examination he stated that the incident took place on 31/3/2024 as captured in the statement. That he visited the house of PW6 twice. That he took photographs of the scene of crime but did not have them processed. That they did not treat Odhiambo Olenge as a suspect as they had already the requisite investigations.
12. At the close of prosecution’s case, this court established that a prima facie case had been made out against the accused persons herein to warrant them to be placed on their defence. They opted to tender sworn testimony and called witnesses.
13. Peter Muhua Odaha (DW1) testified that he is a fisherman and that he comes from Got Agulu Sub Location. That he is aware of this case. That he does recall on 31/5/2024 he was in the lake having left home at 5.00 pm. That the fishing was to be carried out at night. That he was with Oliver Oduor, Ajim Onyor, Cha Mageta. That the boat belonged to one William Fwete. That he will call those he has mentioned as his witnesses. That he came back at 7.00 am on 1/6/2024 after having sold his fish. That he had heard of the incident that a fight had taken place in the area. That he heard about it while still at the lake. That when he arrived he went straight to prepare tea for his family. That while he was going about his farm, he stumbled upon the body of the deceased. That it was eight days after the alleged incident. That he did not smell anything regarding the rotten body. That it was nearby and he was going to weed his farm. That he went and alerted the beach management. That the maize crop was quite tall. That he could not tell if anyone could have seen the body and that he got to see it as he had gotten into the farm. That the chairman of the beach management then escorted him to Usenge Police Station where he reported and was placed in cells and then placed in a land cruiser which took him to the scene. That he was not the Odaha mentioned by the witnesses as there are many people with such a name. That he was then in the lake and that Nya-Sakwa was his brother’s wife with whom he had no bad blood with. That he used to hear of the name George but had not met him before. That he did not go closer to the body.
On cross examination, he stated that he went to fish on 31/5/2024 and that he came back on 1/6/2024. That his farm is behind but some metres from his house. That he stays with his family and that the 2 nd accused lives near his home but he is far from where the body was discovered. That Nya-Sakwa is his brother’s wife. That the 2 nd accused was not related to Nya-Sakwa. That he does not know the persons named by the witnesses. That the 2 nd accused was not among them. That Nya-Sakwa is his sister in-law and whose name is Pauline Nyakunyi while her husband is John Nyakunyi. That he was in the lake fishing at the time of the alleged incident. That he only heard rumours of a fight while he was still in the lakeside. That the fight took place at the home of his brother John Nyakunyi who was at Bondo hospital. That he was not able to bother and interfere as he had his own house chores. That he had left Pauline alone in the compound when he went for fishing. That he does not stay with his wife as she had left to her parents’ home. That he did not involve his neighbours in the matter but only contacted the beach manager. That he only made the report after discovery of the body and after the arrest of the village elder. That he was arrested and that he does not know the identity of those involved.
14. James Onyango Onyor (DW2) testified that on the night of 31/5/2024 he together with Peter Odaha (1 st accused), Oliver Oduor and Ja Mageta came back from the lake on 1/6/2024. That while at the lake they heard that some people had fought and that three days later they learnt that Peter Odaha has been arrested. That he confirms that the said 1 st accused was not present at the scene. He also added that there are other persons who use the name Odaha in the area such as John Odaha. That he does not know the deceased herein as he had not interacted with him.
On cross examination, he stated inter alia; that he was with the 1 st accused on 31/5/2024; that he heard that people fought at the home of the 1 st accused but did not get to know the identity of those involved; that he was on the same boat with the 1 st accused and that the boat belongs to one Willima Fwete; that Peter Odaha and John Odaha are the only ones with the name Odaha.
15. William Fwete (DW3) testified that he owns a boat which operates in Honge Beach in Bondo Sub-County. That on 31/5/2024 he was at Honge Beach to fish and that he was in company with Oliver Oduor, Peter Odaha and Ja Mageta. That as the owner of the boat he gave them the engine, food and lamp. That they came the following day on 1/6/2024 at 7.00 am and that the 1 st accused was also with them. That he confirms that the 1 st accused was not at the scene as alleged.
On cross examination, he stated that he had worked with the 1 st accused for over 10 years. That the 1 st accused was the one responsible for throwing the fishing net into the lake waters while others performed other tasks. That 1 st accused is an honest man. That 2 nd accused is a village elder. That he was not at the scene on 31/5/2024 and that he cannot tell what transpired.
16. Leonard Ouma Ogola (DW5) testified that he is the 2 nd accused and a resident of Honge and a village elder. That on 31/5/2024 at 9.00 pm he was at his home with his family who included his wife Hellen and daughters-in-law Beldine and Jackline. That they were watching news. That he knows Pauline Awuor (PW6) who lives around 500 metres away from his home. That they watched the news upto 10.30 pm. That he did not know anything about the alleged assault of the deceased by six persons. That he was arrested on the basis that he was the clan elder. That he was not hostile and that he did not threaten the family members of the deceased. That he was already in custody when the body was discovered and that he learnt that the body had been discovered from the 1 st accused’s farm. That he is not related to PW6 and that he heard the evidence of PW6. That on 3/6/2024 at 2.30 pm eight persons who were peaceful approached him to show them a certain homestead belonging to PW6 and that he led them there as the village elder. That on arrival he found more than twenty people at the home some of whom were drunk. That he tried to address them but they did not reach a consent as they were demanding that he hand over their kin. That he was unable to do so and that he could not lead them to the lake for investigations. That there was no police officer among them. That he did not accompany the rowdy people to the lake and went to his home. That he did not participated in the killing of the deceased. That he heard the evidence of PW4 and he had seen his statement which shows that PW6 handed over sandals to PW4. That he is not aware that PW4 is a police officer.
On cross examination, he stated that he knows the 1 st accused and confirmed that he has not been involved in any criminal activities. That the 1 st accused hails from his area and who does fishing activity and which is usually at night. That he has been stopped from being village elder because of this case. That he is neither related to 1 st accused who is a neighbour nor John Odaha. That he did not hear of any screams in the night of 31/5/2024 and was not aware of such a fight in his area. That the deceased’s brother went on 3/6/2024 in search of the deceased who was then missing. That he did not know that the deceased’s relatives had lodged report to the police. That he took the deceased’s relatives to the home of Pauline (PW6) as they were looking for that homestead since the relatives had claimed that the deceased had visited the home of the said lady but however did not find the deceased there. That he declined to join deceased’s relatives in the search because they were harsh and unruly. That he denied allegations that he and others had killed the deceased and threw the body under the lake. That he was not reckless in his talk.
The defence closed their respective cases.
17. After the close of the defence case, learned counsels were directed to file and exchange submissions. However, it is only the defence counsel for the 1 st accused who complied who complied.
18. I have considered the evidence of the prosecution and defence as well as the submissions filed. I find the issue for determination is whet
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