1. The two accused persons herein Ashley Atieno Otieno and Samson Odhiambo Agwanda are vide the information dated 9th February, 2022 jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 Laws of Kenya. The particulars of the offence are that on the 23rd day of January, 2022 at Orongo village in Kisumu East Subcounty within Kisumu County, the two accused persons jointly murdered George Otieno Nyabute (hereinafter “the deceased”).
2. Both accused persons denied the charge on 23rd February, 2022, calling for a full trial.
3. It is important to note that at the time of plea taking, the 1st Accused person was a 16-year-old subject. She has since attained the age of majority.
4. The trial initially proceeded before my sister Shariff J., who conducted the entire prosecution case. I took over the conduct of the trial, particularly the defence case, following the transfer of Shariff J. to another station.
5. The prosecution case was founded on the evidence of nine witnesses.
6. The first prosecution witness was Joan Naswa Omollo (PW1), who testified and told the court that the deceased was a friend to her gardener one Eyan and that on 23rd January, 2022, her gardener called her and informed her that the deceased, whose nickname was Junior, had been stabbed. He explained to her that he was not able to reach the deceased as the deceased had locked the gate. PW1 immediately asked her gardener to inform the deceased’s parents as she embarked on finding a spare key in order to have access to where the deceased was.
7. PW1 then rushed to the scene and opened the gate and found that the incident had occurred in an adjacent plot. She proceeded to the window of the house on that plot and saw the deceased squatting next to the door while supporting his tummy. She proceeded to the bedroom window and saw a bunch of keys therein. Eyan arrived shortly and managed to retrieve the keys using a long stick and access was now possible. However, upon checking on the deceased, the witness found that he had no pulse and immediately reported the matter to Nyamasaria Police Patrol Base and police officers who went to the scene removed the deceased’s body to the mortuary.
8. Upon cross examination by Mr. Okoth, learned Counsel for the 1st accused person, PW1 told the court that the deceased and Eyan were living in the same house and that she was the one who permitted the deceased to live there, when he disagreed with his parents. She told the court that she did not witness the stabbing. She stated that she heard people at the scene call out the name Ashley at the time the deceased’s body was removed from the scene and that Ashley, a young girl, was then arrested and whisked away by a police vehicle.
9. On being cross examined by Mr. Bagada, learned Counsel for the 2nd accused person, the witness stated that she did not see the 2nd accused person at the scene.
10. The prosecution called Barrack Otieno Ogada as the second witness (PW2), who told the court that the deceased was his cousin. The two accused persons were not known to him.
11. In his testimony, PW2 explained that on 23rd of January, 2022 at about 7am, he had gone to fetch water when he met a girl and a young man, who asked him whether he knew one Omwami who worked in a nearby home as a gardener. PW2 informed the two that Omwami was at work in another farm and he sent them to him. He shortly heard the girl asking Omwami to hand over to her a phone. PW2 then went about his business and as he was having his breakfast, he heard screams from the house where Omwami resided and rushed there to find out what was happening.
12. At the house, PW2 found the deceased lying on the ground and people gathering. As he had other work to do, he left the scene.
13. On being cross examined by Counsel for the 1st accused person, PW2 stated that he heard the girl that he had met earlier that day telling Omwami to hand over to her a phone that she said was hers. He explained that the deceased was his cousin.
14. Upon cross examination by Counsel for the 2nd accused person, PW2 stated that he found the two people that he met at the gate near the compound where Omwami worked.
15. Eyan Onyango Amambiya testified as Pw3 and told the court that on 19th January, 2022, the 1st accused person, whom the witness said was the deceased’s girlfriend and whom she knew well visited the house where PW3 and the deceased were living in and while there, started receiving phone calls which the witness described as inappropriate, prompting him to take away the 1st accused’s cell phone.
16. PW3 told the court that on 23rd January, 2022, he went to his employer’s (PW1’s) compound to lock up PW1’s dogs, leaving behind the deceased, whom he was residing with at a servant’s quarter that had been provided by PW1. PW3 then proceeded to water crops.
17. The witness told the court that at about 7am, PW2 informed him that there were two people within the compound where he resided whom PW2 described as a young man and a young lady. PW3 then asked PW2 to tell the two visitors to see him where he was working but the latter shortly informed the former that the two visitors had left.
18. In his further testimony, PW3 told the court that the two visitors returned and PW2 led them to the witness. He stated that one of the visitors was Ashley (the 1st accused person), who then demanded, while conversing across a barbed wire fence, for the cell phone that he had taken from her, to which PW3 responded and told her that he would call her later and hand over the cell phone to her, after he was done with the work that he was doing. The 2nd accused person, whom the witness referred to as Samson then gave PW3 a cell phone number through which he would contact the 1st accused person.
19. That at that point, the 1st accused person told the witness in Swahili that “basi weka kwa akili yule jamaa umewacha huko – Junior – ndio anaumia”. The two visitors then promptly left on a motorcycle, with the 2nd accused riding the same. The witness, noting the words of the 1st accused person, asked PW2 to join him to and see and confirm that the deceased was safe.
20. In his further testimony, PW3 told the court that PW2 joined him to the house where the former resided but they found the gate locked. He then called out the deceased and threw a pebble on the roof, thinking that the deceased was asleep, but there was no response. The witness then climbed over the gate and on looking into the house, saw the deceased, who was kneeling and bending forward while holding his stomach. There was a knife next to him and blood flowing. The witness immediately informed PW2 and immediately rushed to inform his employer, who told him to inform the deceased’s father, which PW3 did.
21. PW3 told the court that on returning to the scene, he found that his employer had opened the gate using a spare key. Using a long stick, PW3 managed to retrieve the keys to the house from the window. The house had been locked.
22. The witness told the court that upon gaining ingress to the house, he proceeded to the position where the deceased was and on touching him, the deceased fell down. He saw blood gushing out from five stab wounds in the deceased’s navel and stomach area. The deceased was lifeless.
23. The witness was cross examined by Counsel for the 1st accused and told the court that he left for work on that day, leaving the deceased in the house. He said that he did not hear any screams as he was working. He stated that he had given the 1st accused person’s cell phone to the deceased after confiscating it from her when she was communicating with other men. The witness, on being further cross examined, stated that he was also arrested as a suspect but later released. He denied being sexually involved with the 1st accused person.
24. Upon being cross examined by Counsel for the 2nd accused person, the witness told the court that he was not acquainted to the 2nd accused person prior to the incident. He stated that the 2nd accused person gave him his cell phone number and that he gave the number to the police, which the investigators used to track the 2nd accused person.
25. The witness stated that he owned the knife that was used to stab the deceased.
26. The prosecution called David Kiara Muthoni, a government analyst working with the Government Chemist Department as PW4. The witness told the court that on 9th February, 2022, he received from Police Constable Brian Kariuki of Directorate of Criminal Investigations, Kondele an exhibit memo form of even date, which accompanied a kitchen knife with a blue handle, a faded white bed sheet with blue stripes which was heavily stained with blood that was in a brown envelope and fingernails extracted from George Otieno Nyabute (the deceased). The request in the exhibit memo form was for the witness to analyze the exhibits and compare them with the fingernails and ascertain if the same had the deceased’s DNA.
27. The witness proceeded to conduct his analysis and reached the findings that the knife and bedsheet were stained with the blood of a human being that matched the DNA profile of the deceased.
28. The witness prepared a report on his findings, dated 9th September, 2023. He produced the exhibit memo form at PExh1a and his report as PExh1b.
29. PW5 was Police Corporal Anthony Egesa, a gazetted forensic crimes scenes investigator, told the court that he proceeded to the scene at Korongo area in the company of Inspector of Police Ogot on 23rd January, 2022 and other officers, following a reported case of murder that had been reported at Nyamasaria Police Patrol Base.
30. Pw5 stated that the officers found the deceased’s body lying in a pool of blood at the scene. The deceased had been stabbed severally in the stomach and was still bleeding. Besides the body was a blood-stained knife. The officer processed the scene and took 18 photographs of the scene, both inside and outside the house, which he later processed and issued the certificate for the same.
31. PW5 produced the photographs as PExh2(a) 1 to 18 and the certificate of photography as PExh2(b).
32. Grace Auma Timiteo was the 6th witness that the prosecution called (PW6). The witness stated that on 23rd January, 2022 at about 7.20am, she saw PW3 carrying a watering can from a store. After a short while, PW6 saw PW3 standing by the fence while conversing with another person whom she could not see. She told the court that the deceased was not known to her.
33. In his testimony, Charles Nyabute Odawa (PW7) told the court that the deceased was his son and that on 23rd January, 2022, he was informed by PW3 that the deceased had been stabbed to death. He proceeded to the scene in the company of his first wife Elizabeth and found the deceased’s body lying in a pool of blood. The witness immediately informed the area chief Elijah Omumbo, who then escorted PW3 to the nearby Administration Police Post.
34. The prosecution called Dr. Ombok Lucy as PW8. The witness told the trial court that she conducted a postmortem on the deceased’s body on 31st January, 2022. She noted that there was massive bleeding in the abdomen due to multiple stab wounds caused by a sharp object, likely a knife. All other systems were normal.
35. In conclusion, the doctor formed the opinion that the cause of the deceased’s demise was massive abdominal bleeding due to multiple stab wounds.
36. The witness completed the post mortem form which she produced as PExh3.
37. The last prosecution witness was the investigating officer, Police Constable Brian Kariuki (PW9), who told the court that following the report of a murder incident that had been reported at Nyamasaria Police Patrol Base, he visited the scene of crime in the company of his colleagues on 23rd January, 2022, where he found the deceased’s body, which had several stab wounds, lying in a pool of blood. There was a knife next to the deceased’s body, which the officer recovered. The officer also recovered a blood-soaked bedsheet. At the time, three suspects had been arrested and were in police custody – the 1st accused person, PW3 and one Rolex Okoth.
38. The officer told the court that he applied for and obtained a court order in Winam Chief Magistrate’s Court vide Miscellaneous Application No. 13 of 2022 which allowed him to detain the suspects for 14 days as investigations were conducted and that on 27th January, 2022, a fourth suspect – the 2nd accused person – was arrested.
39. PW9 told the court that an autopsy was conducted on the body of the deceased on 31st January, 2022 at Jaramogi Oginga Odinga Teaching & Referral Hospital Mortuary and a report submitted to him.
40. The witness stated that after conclusion of the investigations, the two accused persons were charged after the Office of the Director of Public Prosecutions approved the charges.
41. On being cross examined by Mr. Okoth, learned Counsel for the 1st accused person, PW9 told the court that PW3 was arrested by members of the public as a suspect but became a prosecution witness as he had left the deceased in the house before he was murdered.
42. Upon cross examination by Mr. Bagada, learned Counsel for the 2nd accused person, the witness told the court that he received the murder report on 23rd January, 2022 and that the same was first made to Nyamasaria Police Patrol Base by PW1 on the same day.
43. The witness further stated that the body of the deceased was found inside the locked house and that the key to the house was inside the house. He said that the knife belonged to PW3 and the deceased. The officer stated that there were a number of witnesses who cited PW3 in the compound. He stated that although the order of the Winam Court directed that the 2nd accused person be remanded at Kondele Police Station, he was as a matter of fact taken to Kodiaga Prison where he was detained. The officer however denied that he is the one who took him to Kodiaga.
44. The prosecution closed its case at that stage.
45. In her considered ruling rendered on 24th December, 2024, Shariff J. found that the prosecution had made out a prima facie case against both accused persons and they were subsequently placed on their respective defences.
46. In her sworn testimony, the 1st accused person told the court that on 21st January, 2022, she left her home in Nyalenda where she was residing with her aunt Lydia Atieno and was ferried a fare-paying pillion passenger by the 2nd accused person on his motorcycle to Orongo area where she had lost her cell phone. She stated that on reaching the area which she stated was the place where PW3 and the deceased, who was her boyfriend, were residing, she found the gate closed. She knocked but no one opened. She then met PW3 and told him that she had gone there to collect her cell phone and PW3 told her to return at 2pm. She did not enter the house where the deceased resided.
47. The 1st accused person stated that she did not see or meet anyone else at the residence of PW3 and the deceased. She stated that she and the 2nd accused person then left whereafter she parted ways with her co-accused.
48. The 1st accused person told the court in her further testimony that later that day, she was informed that someone had died. She returned to the area and was arrested and taken to Nyamasaria Police Patrol Base. She stated that PW3 was also arrested.
49. Upon being cross examined by the learned prosecution Counsel Ms. Muema, the 1st accused person stated that the deceased was her boyfriend. She denied telling PW3 that the deceased was suffering while in the house. She stated that the gate was locked from the outside when she got to the deceased’s residence.
50. In his sworn testimony, the 2nd accused person told the court that he worked as a boda boda operator and was at work on 23rd January, 2022 when the 1st accused engaged his services. He told the court that the 1st accused person was not known to him before their encounter. He then took her to Orongo area where she was to pick her phone but the gate was closed. She returned and boarded his motor cycle and the two left. She paid him for the boda boda ride and the two parted their ways.
51. The 2nd accused person told the court that he was arrested on 27th January, 2022 by police officers who demanded to know why he did not have a reflector jacket and was promptly taken to Nyamasaria Police Patrol Base and later transferred to Kondele Police Station, where he met PW3 in police custody. He stated that he later learnt that he was a murder suspect. He was taken to Winam court where a magistrate ordered that he be remanded at Kondele Police Station but but was instead taken to Kodiaga Prison and remanded.
52. On being cross examined by the learned Prosecution Counsel, the 2nd accused person stated that he did not know the deceased and the 1st accused person prior to 23rd January, 2022. He stated that the 1st accused person asked him to take her to Orongo to collect her cell phone. He stated that he did not alight from his motorcycle or boda boda at Orongo.
53. The two accused persons did not call any witnesses and the defence case was closed at that stage.
54. From the facts and evidence summarised, the submissions by the parties and the record in its entirety, the following issues arise for determination by this court:
a. What the cause of death of the deceased George Otieno Nyabute.
b. Whether the death of the deceased was caused by an unlawful act.
c. Whether the prosecution proved beyond reasonable doubt, through the evidence presented, that the accused persons, or either of them, murdered the deceased.
d. Whether the evidence established the requisite mental element (malice aforethought) under Section 206 of the Penal Code.
e. Whether the defences of the two accused persons raised any reasonable doubt.
55. The first issue for determination is whether the death of George Otieno Nyabute was proved and, if so, what the cause of that death was. On this point, there is no controversy. From the beginning of the trial to its conclusion, none of the parties disputed that the deceased met his demise on 23rd January, 2022. The fact of death was confirmed by several witnesses who encountered the deceased shortly after the incident and was finally and conclusively established by the medical evidence. The court is therefore satisfied that the death of the deceased was proved.
56. The circumstances under which the deceased was found were narrated with consistency by the prosecution witnesses. PW3 testified that upon gaining access to the house, he found the deceased kneeling, bent forward and clutching his abdomen while bleeding profusely. PW1 corroborated this account when she stated that after opening the gate using a spare key, she found the deceased unresponsive. PW5, the crime scene investigator, documented the scene through photographs depicting the deceased lying in a pool of blood with a knife nearby. These accounts remained consistent under cross-examination and, taken together, presented a clear and coherent picture of the immediate aftermath of a violent attack.
57. The medical and forensic evidence provided the final and authoritative confirmation of the cause of death. PW8 conducted a post-mortem examination and found multiple penetrating stab wounds to the abdomen, resulting in massive internal bleeding. She formed the opinion that the cause of death was haemorrhage due to multiple stab wounds inflicted by a sharp object. PW4, the Government Analyst, corroborated this evidence by confirming that the blood stains on the recovered knife and beddings matched the DNA profile of the deceased. This evidence excluded death by natural causes or accident.
58. In light of this consistent testimonial, medical and scientific evidence, the court finds as a fact that the deceased died a violent and unnatural death caused by multiple stab wounds inflicted by another person.
59. The second issue for determination is whether the death of the deceased was caused by an unlawful act. Section 203 of the Penal Code requires that the killing be unlawful. The court has carefully considered the nature of the injuries, the manner in which they were inflicted and the surrounding circumstances. The deceased sustained five stab wounds directed at a vital part of the body, namely the abdomen. Such injuries are, by their nature and location, incompatible with any lawful justification.
60. There is no evidence suggesting provocation, self-defence or accident. PW3, who was working within the compound, did not hear any altercation, struggle or commotion prior to discovering the deceased. The injuries appeared to have been inflicted swiftly and decisively, in a manner calculated to cause serious harm or death.
61. The court has also considered the physical condition of the scene as captured in the photographs produced by PW5. There are no signs of disorder or disturbance that would suggest accidental or legally excusable injuries. The totality of the evidence leads to the inescapable conclusion that the act which causes the death of the deceased was unlawful.
62. The court accordingly finds that the death of the deceased results from an unlawful act.
63. The third issue, and the central one in this case, is whether the prosecution proved beyond reasonable doubt that the accused persons, either jointly or individually, were responsible for the unlawful killing of the deceased.
64. It is common ground that there was no direct evidence linking either accused person to the act of stabbing the deceased. No witness placed either accused person inside the deceased’s house or testified to having seen them assault the deceased. The prosecution case therefore rested entirely on circumstantial evidence.
65. The law on circumstantial evidence is settled. In Sawe v Republic [2003] eKLR, the Court of Appeal held that for circumstantial evidence to sustain a conviction, the inculpatory facts must be firmly established, must point unerringly to the guilt of the accused and must form a complete chain such that there is no reasonable hypothesis consistent with innocence. Suspicion, however strong, cannot suffice.
66. Guided by these principles, the court I have examined whether the circumstantial evidence placed either of the accused persons at the scene of the killing at the material time and whether it excluded the reasonable possibility that the offence was committed by another person or persons.
67. I will therefore proceed to evaluate the evidence against each accused person separately, while keeping in view the totality of the same.
68. In relation to the 1st accused person, the prosecution relied on her presence within the compound on the morning of the incident, her interaction with PW3 regarding a mobile phone and an alleged statement attributed to her suggesting that the deceased was “hurting” inside the house.
69. While these circumstances raise suspicion, they do not, either singly or cumulatively, amount to proof beyond reasonable doubt. No witness placed the 1st accused person inside the deceased’s house. PW3 testified that when he later approached the house, the gate was locked and the key was retrieved from inside the room using a stick. The prosecution did not explain how the assailant exited the house, locked it from the inside, leaving the keys therein. This unexplained locked-house scenario constitutes a significant evidentiary gap.
70. The alleged statement by the 1st accused person that the deceased was “hurting” is in my view ambiguous and equivocal. PW3, who owned the knife used in the stabbing and was initially treated as a suspect, was not an entirely neutral witness. Even assuming the statement was made, the prosecution did not demonstrate how the 1st accused person acquired knowledge of events inside a locked house which she has not entered.
71. The court further notes the absence of forensic evidence linking the 1st accused person to the offence. No fingerprint analysis was conducted on the knife and no bloodstains or DNA evidence connected her to the weapon, the deceased or the scene. In a case resting wholly on circumstantial evidence, such omissions are material and leave open reasonable hypotheses consistent with innocence.
72. Turning to the 2nd accused person, the evidence against him was even more tenuous. The evidence showed that he accompanied the 1st accused person merely in his capacity as a boda boda rider and remained outside the compound. No witness saw him approach the deceased’s house, enter it or interact with the deceased in any manner.
73. The prosecution did not establish any motive on the part of the 2nd accused person, nor did it place him at the locus of the crime. His arrest followed his voluntary provision of a telephone number to PW3, conduct that is consistent with innocence rather than guilt.
74. When the circumstantial evidence is considered cumulatively, the irresistible finding that I reach is that it does not form a complete and unbroken chain as several critical gaps remained unexplained.
75. First, PW3, who was the last person known to be with the deceased and who owned the knife used in the stabbing, was initially treated as a suspect. Second, the house was locked from the inside, yet neither accused person was shown to have had access to the key. Third, there was no evidence of forced entry. Fourth, no forensic evidence connected either accused person to the weapon or the scene.
76. These gaps are not peripheral; they go to the root of the prosecution case. In accordance with the principles in Sawe (supra), such unresolved gaps mean that the circumstantial evidence falls short of the threshold required to sustain a conviction.
77. The court therefore finds that the prosecution failed to prove beyond reasonable doubt that either of the accused persons murdered the deceased.
78. The fourth issue is whether the evidence established malice aforethought within the meaning of Section 206 of the Penal Code.
79. The nature of the injuries and the weapon used would ordinarily permit an inference of malice aforethought.
80. However, such an inference can only arise once the identity of the person who inflicted the fatal injuries is established. Since the prosecution failed to establish that either accused person inflicted the fatal injuries, malice aforethought cannot be attributed to either of them.
81. The accused persons each gave sworn evidence denying involvement. Their accounts were coherent, consistent and remained intact under cross-examination. Their presence at the scene was explained plausibly. They did not bear injuries, bloodstains or any indication of recent struggle. Their explanations, coupled with the gaps in the prosecution’s case, raise reasonable doubt.
82. Under Article 50(2) of the Constitution, the burden lies entirely on the prosecution to prove a criminal offence against an accused person beyond reasonable doubt. The defence need only raise a reasonable possibility consistent with innocence, and in this case, the accused persons did.
83. The conclusion that I reach in light of the foregoing analysis, is that the prosecution failed to prove beyond reasonable doubt that either of the accused persons murdered the deceased. The circumstantial evidence presented did not meet the strict legal threshold required to sustain a conviction. The chain of evidence was broken, significant gaps remained unexplained and alternative hypotheses consistent with innocence were not excluded.
84. In the result, each of the two accused persons is acquitted on the charge of murder contrary to Section 203 as read with Section 204 of the Criminal Procedure Code.
85. The sureties for the two accused persons are hereby discharged and the securities shall be released to them.
DELIVERED, DATED & SIGNED this 15th day of December, 2025.
JOE M. OMIDO
JUDGE
ACCUSED: Both present.
PROSECUTION COUNSEL: Ms. Muema.
DEFENCE COUNSEL: Mr. Okoth for the 1st accused & Mr. Bagada for the 2nd accused.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
2. Both accused persons denied the charge on 23rd February, 2022, calling for a full trial.
3. It is important to note that at the time of plea taking, the 1st Accused person was a 16-year-old subject. She has since attained the age of majority.
4. The trial initially proceeded before my sister Shariff J., who conducted the entire prosecution case. I took over the conduct of the trial, particularly the defence case, following the transfer of Shariff J. to another station.
5. The prosecution case was founded on the evidence of nine witnesses.
6. The first prosecution witness was Joan Naswa Omollo (PW1), who testified and told the court that the deceased was a friend to her gardener one Eyan and that on 23rd January, 2022, her gardener called her and informed her that the deceased, whose nickname was Junior, had been stabbed. He explained to her that he was not able to reach the deceased as the deceased had locked the gate. PW1 immediately asked her gardener to inform the deceased’s parents as she embarked on finding a spare key in order to have access to where the deceased was.
7. PW1 then rushed to the scene and opened the gate and found that the incident had occurred in an adjacent plot. She proceeded to the window of the house on that plot and saw the deceased squatting next to the door while supporting his tummy. She proceeded to the bedroom window and saw a bunch of keys therein. Eyan arrived shortly and managed to retrieve the keys using a long stick and access was now possible. However, upon checking on the deceased, the witness found that he had no pulse and immediately reported the matter to Nyamasaria Police Patrol Base and police officers who went to the scene removed the deceased’s body to the mortuary.
8. Upon cross examination by Mr. Okoth, learned Counsel for the 1st accused person, PW1 told the court that the deceased and Eyan were living in the same house and that she was the one who permitted the deceased to live there, when he disagreed with his parents. She told the court that she did not witness the stabbing. She stated that she heard people at the scene call out the name Ashley at the time the deceased’s body was removed from the scene and that Ashley, a young girl, was then arrested and whisked away by a police vehicle.
9. On being cross examined by Mr. Bagada, learned Counsel for the 2nd accused person, the witness stated that she did not see the 2nd accused person at the scene.
10. The prosecution called Barrack Otieno Ogada as the second witness (PW2), who told the court that the deceased was his cousin. The two accused persons were not known to him.
11. In his testimony, PW2 explained that on 23rd of January, 2022 at about 7am, he had gone to fetch water when he met a girl and a young man, who asked him whether he knew one Omwami who worked in a nearby home as a gardener. PW2 informed the two that Omwami was at work in another farm and he sent them to him. He shortly heard the girl asking Omwami to hand over to her a phone. PW2 then went about his business and as he was having his breakfast, he heard screams from the house where Omwami resided and rushed there to find out what was happening.
12. At the house, PW2 found the deceased lying on the ground and people gathering. As he had other work to do, he left the scene.
13. On being cross examined by Counsel for the 1st accused person, PW2 stated that he heard the girl that he had met earlier that day telling Omwami to hand over to her a phone that she said was hers. He explained that the deceased was his cousin.
14. Upon cross examination by Counsel for the 2nd accused person, PW2 stated that he found the two people that he met at the gate near the compound where Omwami worked.
15. Eyan Onyango Amambiya testified as Pw3 and told the court that on 19th January, 2022, the 1st accused person, whom the witness said was the deceased’s girlfriend and whom she knew well visited the house where PW3 and the deceased were living in and while there, started receiving phone calls which the witness described as inappropriate, prompting him to take away the 1st accused’s cell phone.
16. PW3 told the court that on 23rd January, 2022, he went to his employer’s (PW1’s) compound to lock up PW1’s dogs, leaving behind the deceased, whom he was residing with at a servant’s quarter that had been provided by PW1. PW3 then proceeded to water crops.
17. The witness told the court that at about 7am, PW2 informed him that there were two people within the compound where he resided whom PW2 described as a young man and a young lady. PW3 then asked PW2 to tell the two visitors to see him where he was working but the latter shortly informed the former that the two visitors had left.
18. In his further testimony, PW3 told the court that the two visitors returned and PW2 led them to the witness. He stated that one of the visitors was Ashley (the 1st accused person), who then demanded, while conversing across a barbed wire fence, for the cell phone that he had taken from her, to which PW3 responded and told her that he would call her later and hand over the cell phone to her, after he was done with the work that he was doing. The 2nd accused person, whom the witness referred to as Samson then gave PW3 a cell phone number through which he would contact the 1st accused person.
19. That at that point, the 1st accused person told the witness in Swahili that “basi weka kwa akili yule jamaa umewacha huko – Junior – ndio anaumia”. The two visitors then promptly left on a motorcycle, with the 2nd accused riding the same. The witness, noting the words of the 1st accused person, asked PW2 to join him to and see and confirm that the deceased was safe.
20. In his further testimony, PW3 told the court that PW2 joined him to the house where the former resided but they found the gate locked. He then called out the deceased and threw a pebble on the roof, thinking that the deceased was asleep, but there was no response. The witness then climbed over the gate and on looking into the house, saw the deceased, who was kneeling and bending forward while holding his stomach. There was a knife next to him and blood flowing. The witness immediately informed PW2 and immediately rushed to inform his employer, who told him to inform the deceased’s father, which PW3 did.
21. PW3 told the court that on returning to the scene, he found that his employer had opened the gate using a spare key. Using a long stick, PW3 managed to retrieve the keys to the house from the window. The house had been locked.
22. The witness told the court that upon gaining ingress to the house, he proceeded to the position where the deceased was and on touching him, the deceased fell down. He saw blood gushing out from five stab wounds in the deceased’s navel and stomach area. The deceased was lifeless.
23. The witness was cross examined by Counsel for the 1st accused and told the court that he left for work on that day, leaving the deceased in the house. He said that he did not hear any screams as he was working. He stated that he had given the 1st accused person’s cell phone to the deceased after confiscating it from her when she was communicating with other men. The witness, on being further cross examined, stated that he was also arrested as a suspect but later released. He denied being sexually involved with the 1st accused person.
24. Upon being cross examined by Counsel for the 2nd accused person, the witness told the court that he was not acquainted to the 2nd accused person prior to the incident. He stated that the 2nd accused person gave him his cell phone number and that he gave the number to the police, which the investigators used to track the 2nd accused person.
25. The witness stated that he owned the knife that was used to stab the deceased.
26. The prosecution called David Kiara Muthoni, a government analyst working with the Government Chemist Department as PW4. The witness told the court that on 9th February, 2022, he received from Police Constable Brian Kariuki of Directorate of Criminal Investigations, Kondele an exhibit memo form of even date, which accompanied a kitchen knife with a blue handle, a faded white bed sheet with blue stripes which was heavily stained with blood that was in a brown envelope and fingernails extracted from George Otieno Nyabute (the deceased). The request in the exhibit memo form was for the witness to analyze the exhibits and compare them with the fingernails and ascertain if the same had the deceased’s DNA.
27. The witness proceeded to conduct his analysis and reached the findings that the knife and bedsheet were stained with the blood of a human being that matched the DNA profile of the deceased.
28. The witness prepared a report on his findings, dated 9th September, 2023. He produced the exhibit memo form at PExh1a and his report as PExh1b.
29. PW5 was Police Corporal Anthony Egesa, a gazetted forensic crimes scenes investigator, told the court that he proceeded to the scene at Korongo area in the company of Inspector of Police Ogot on 23rd January, 2022 and other officers, following a reported case of murder that had been reported at Nyamasaria Police Patrol Base.
30. Pw5 stated that the officers found the deceased’s body lying in a pool of blood at the scene. The deceased had been stabbed severally in the stomach and was still bleeding. Besides the body was a blood-stained knife. The officer processed the scene and took 18 photographs of the scene, both inside and outside the house, which he later processed and issued the certificate for the same.
31. PW5 produced the photographs as PExh2(a) 1 to 18 and the certificate of photography as PExh2(b).
32. Grace Auma Timiteo was the 6th witness that the prosecution called (PW6). The witness stated that on 23rd January, 2022 at about 7.20am, she saw PW3 carrying a watering can from a store. After a short while, PW6 saw PW3 standing by the fence while conversing with another person whom she could not see. She told the court that the deceased was not known to her.
33. In his testimony, Charles Nyabute Odawa (PW7) told the court that the deceased was his son and that on 23rd January, 2022, he was informed by PW3 that the deceased had been stabbed to death. He proceeded to the scene in the company of his first wife Elizabeth and found the deceased’s body lying in a pool of blood. The witness immediately informed the area chief Elijah Omumbo, who then escorted PW3 to the nearby Administration Police Post.
34. The prosecution called Dr. Ombok Lucy as PW8. The witness told the trial court that she conducted a postmortem on the deceased’s body on 31st January, 2022. She noted that there was massive bleeding in the abdomen due to multiple stab wounds caused by a sharp object, likely a knife. All other systems were normal.
35. In conclusion, the doctor formed the opinion that the cause of the deceased’s demise was massive abdominal bleeding due to multiple stab wounds.
36. The witness completed the post mortem form which she produced as PExh3.
37. The last prosecution witness was the investigating officer, Police Constable Brian Kariuki (PW9), who told the court that following the report of a murder incident that had been reported at Nyamasaria Police Patrol Base, he visited the scene of crime in the company of his colleagues on 23rd January, 2022, where he found the deceased’s body, which had several stab wounds, lying in a pool of blood. There was a knife next to the deceased’s body, which the officer recovered. The officer also recovered a blood-soaked bedsheet. At the time, three suspects had been arrested and were in police custody – the 1st accused person, PW3 and one Rolex Okoth.
38. The officer told the court that he applied for and obtained a court order in Winam Chief Magistrate’s Court vide Miscellaneous Application No. 13 of 2022 which allowed him to detain the suspects for 14 days as investigations were conducted and that on 27th January, 2022, a fourth suspect – the 2nd accused person – was arrested.
39. PW9 told the court that an autopsy was conducted on the body of the deceased on 31st January, 2022 at Jaramogi Oginga Odinga Teaching & Referral Hospital Mortuary and a report submitted to him.
40. The witness stated that after conclusion of the investigations, the two accused persons were charged after the Office of the Director of Public Prosecutions approved the charges.
41. On being cross examined by Mr. Okoth, learned Counsel for the 1st accused person, PW9 told the court that PW3 was arrested by members of the public as a suspect but became a prosecution witness as he had left the deceased in the house before he was murdered.
42. Upon cross examination by Mr. Bagada, learned Counsel for the 2nd accused person, the witness told the court that he received the murder report on 23rd January, 2022 and that the same was first made to Nyamasaria Police Patrol Base by PW1 on the same day.
43. The witness further stated that the body of the deceased was found inside the locked house and that the key to the house was inside the house. He said that the knife belonged to PW3 and the deceased. The officer stated that there were a number of witnesses who cited PW3 in the compound. He stated that although the order of the Winam Court directed that the 2nd accused person be remanded at Kondele Police Station, he was as a matter of fact taken to Kodiaga Prison where he was detained. The officer however denied that he is the one who took him to Kodiaga.
44. The prosecution closed its case at that stage.
45. In her considered ruling rendered on 24th December, 2024, Shariff J. found that the prosecution had made out a prima facie case against both accused persons and they were subsequently placed on their respective defences.
46. In her sworn testimony, the 1st accused person told the court that on 21st January, 2022, she left her home in Nyalenda where she was residing with her aunt Lydia Atieno and was ferried a fare-paying pillion passenger by the 2nd accused person on his motorcycle to Orongo area where she had lost her cell phone. She stated that on reaching the area which she stated was the place where PW3 and the deceased, who was her boyfriend, were residing, she found the gate closed. She knocked but no one opened. She then met PW3 and told him that she had gone there to collect her cell phone and PW3 told her to return at 2pm. She did not enter the house where the deceased resided.
47. The 1st accused person stated that she did not see or meet anyone else at the residence of PW3 and the deceased. She stated that she and the 2nd accused person then left whereafter she parted ways with her co-accused.
48. The 1st accused person told the court in her further testimony that later that day, she was informed that someone had died. She returned to the area and was arrested and taken to Nyamasaria Police Patrol Base. She stated that PW3 was also arrested.
49. Upon being cross examined by the learned prosecution Counsel Ms. Muema, the 1st accused person stated that the deceased was her boyfriend. She denied telling PW3 that the deceased was suffering while in the house. She stated that the gate was locked from the outside when she got to the deceased’s residence.
50. In his sworn testimony, the 2nd accused person told the court that he worked as a boda boda operator and was at work on 23rd January, 2022 when the 1st accused engaged his services. He told the court that the 1st accused person was not known to him before their encounter. He then took her to Orongo area where she was to pick her phone but the gate was closed. She returned and boarded his motor cycle and the two left. She paid him for the boda boda ride and the two parted their ways.
51. The 2nd accused person told the court that he was arrested on 27th January, 2022 by police officers who demanded to know why he did not have a reflector jacket and was promptly taken to Nyamasaria Police Patrol Base and later transferred to Kondele Police Station, where he met PW3 in police custody. He stated that he later learnt that he was a murder suspect. He was taken to Winam court where a magistrate ordered that he be remanded at Kondele Police Station but but was instead taken to Kodiaga Prison and remanded.
52. On being cross examined by the learned Prosecution Counsel, the 2nd accused person stated that he did not know the deceased and the 1st accused person prior to 23rd January, 2022. He stated that the 1st accused person asked him to take her to Orongo to collect her cell phone. He stated that he did not alight from his motorcycle or boda boda at Orongo.
53. The two accused persons did not call any witnesses and the defence case was closed at that stage.
54. From the facts and evidence summarised, the submissions by the parties and the record in its entirety, the following issues arise for determination by this court:
a. What the cause of death of the deceased George Otieno Nyabute.
b. Whether the death of the deceased was caused by an unlawful act.
c. Whether the prosecution proved beyond reasonable doubt, through the evidence presented, that the accused persons, or either of them, murdered the deceased.
d. Whether the evidence established the requisite mental element (malice aforethought) under Section 206 of the Penal Code.
e. Whether the defences of the two accused persons raised any reasonable doubt.
55. The first issue for determination is whether the death of George Otieno Nyabute was proved and, if so, what the cause of that death was. On this point, there is no controversy. From the beginning of the trial to its conclusion, none of the parties disputed that the deceased met his demise on 23rd January, 2022. The fact of death was confirmed by several witnesses who encountered the deceased shortly after the incident and was finally and conclusively established by the medical evidence. The court is therefore satisfied that the death of the deceased was proved.
56. The circumstances under which the deceased was found were narrated with consistency by the prosecution witnesses. PW3 testified that upon gaining access to the house, he found the deceased kneeling, bent forward and clutching his abdomen while bleeding profusely. PW1 corroborated this account when she stated that after opening the gate using a spare key, she found the deceased unresponsive. PW5, the crime scene investigator, documented the scene through photographs depicting the deceased lying in a pool of blood with a knife nearby. These accounts remained consistent under cross-examination and, taken together, presented a clear and coherent picture of the immediate aftermath of a violent attack.
57. The medical and forensic evidence provided the final and authoritative confirmation of the cause of death. PW8 conducted a post-mortem examination and found multiple penetrating stab wounds to the abdomen, resulting in massive internal bleeding. She formed the opinion that the cause of death was haemorrhage due to multiple stab wounds inflicted by a sharp object. PW4, the Government Analyst, corroborated this evidence by confirming that the blood stains on the recovered knife and beddings matched the DNA profile of the deceased. This evidence excluded death by natural causes or accident.
58. In light of this consistent testimonial, medical and scientific evidence, the court finds as a fact that the deceased died a violent and unnatural death caused by multiple stab wounds inflicted by another person.
59. The second issue for determination is whether the death of the deceased was caused by an unlawful act. Section 203 of the Penal Code requires that the killing be unlawful. The court has carefully considered the nature of the injuries, the manner in which they were inflicted and the surrounding circumstances. The deceased sustained five stab wounds directed at a vital part of the body, namely the abdomen. Such injuries are, by their nature and location, incompatible with any lawful justification.
60. There is no evidence suggesting provocation, self-defence or accident. PW3, who was working within the compound, did not hear any altercation, struggle or commotion prior to discovering the deceased. The injuries appeared to have been inflicted swiftly and decisively, in a manner calculated to cause serious harm or death.
61. The court has also considered the physical condition of the scene as captured in the photographs produced by PW5. There are no signs of disorder or disturbance that would suggest accidental or legally excusable injuries. The totality of the evidence leads to the inescapable conclusion that the act which causes the death of the deceased was unlawful.
62. The court accordingly finds that the death of the deceased results from an unlawful act.
63. The third issue, and the central one in this case, is whether the prosecution proved beyond reasonable doubt that the accused persons, either jointly or individually, were responsible for the unlawful killing of the deceased.
64. It is common ground that there was no direct evidence linking either accused person to the act of stabbing the deceased. No witness placed either accused person inside the deceased’s house or testified to having seen them assault the deceased. The prosecution case therefore rested entirely on circumstantial evidence.
65. The law on circumstantial evidence is settled. In Sawe v Republic [2003] eKLR, the Court of Appeal held that for circumstantial evidence to sustain a conviction, the inculpatory facts must be firmly established, must point unerringly to the guilt of the accused and must form a complete chain such that there is no reasonable hypothesis consistent with innocence. Suspicion, however strong, cannot suffice.
66. Guided by these principles, the court I have examined whether the circumstantial evidence placed either of the accused persons at the scene of the killing at the material time and whether it excluded the reasonable possibility that the offence was committed by another person or persons.
67. I will therefore proceed to evaluate the evidence against each accused person separately, while keeping in view the totality of the same.
68. In relation to the 1st accused person, the prosecution relied on her presence within the compound on the morning of the incident, her interaction with PW3 regarding a mobile phone and an alleged statement attributed to her suggesting that the deceased was “hurting” inside the house.
69. While these circumstances raise suspicion, they do not, either singly or cumulatively, amount to proof beyond reasonable doubt. No witness placed the 1st accused person inside the deceased’s house. PW3 testified that when he later approached the house, the gate was locked and the key was retrieved from inside the room using a stick. The prosecution did not explain how the assailant exited the house, locked it from the inside, leaving the keys therein. This unexplained locked-house scenario constitutes a significant evidentiary gap.
70. The alleged statement by the 1st accused person that the deceased was “hurting” is in my view ambiguous and equivocal. PW3, who owned the knife used in the stabbing and was initially treated as a suspect, was not an entirely neutral witness. Even assuming the statement was made, the prosecution did not demonstrate how the 1st accused person acquired knowledge of events inside a locked house which she has not entered.
71. The court further notes the absence of forensic evidence linking the 1st accused person to the offence. No fingerprint analysis was conducted on the knife and no bloodstains or DNA evidence connected her to the weapon, the deceased or the scene. In a case resting wholly on circumstantial evidence, such omissions are material and leave open reasonable hypotheses consistent with innocence.
72. Turning to the 2nd accused person, the evidence against him was even more tenuous. The evidence showed that he accompanied the 1st accused person merely in his capacity as a boda boda rider and remained outside the compound. No witness saw him approach the deceased’s house, enter it or interact with the deceased in any manner.
73. The prosecution did not establish any motive on the part of the 2nd accused person, nor did it place him at the locus of the crime. His arrest followed his voluntary provision of a telephone number to PW3, conduct that is consistent with innocence rather than guilt.
74. When the circumstantial evidence is considered cumulatively, the irresistible finding that I reach is that it does not form a complete and unbroken chain as several critical gaps remained unexplained.
75. First, PW3, who was the last person known to be with the deceased and who owned the knife used in the stabbing, was initially treated as a suspect. Second, the house was locked from the inside, yet neither accused person was shown to have had access to the key. Third, there was no evidence of forced entry. Fourth, no forensic evidence connected either accused person to the weapon or the scene.
76. These gaps are not peripheral; they go to the root of the prosecution case. In accordance with the principles in Sawe (supra), such unresolved gaps mean that the circumstantial evidence falls short of the threshold required to sustain a conviction.
77. The court therefore finds that the prosecution failed to prove beyond reasonable doubt that either of the accused persons murdered the deceased.
78. The fourth issue is whether the evidence established malice aforethought within the meaning of Section 206 of the Penal Code.
79. The nature of the injuries and the weapon used would ordinarily permit an inference of malice aforethought.
80. However, such an inference can only arise once the identity of the person who inflicted the fatal injuries is established. Since the prosecution failed to establish that either accused person inflicted the fatal injuries, malice aforethought cannot be attributed to either of them.
81. The accused persons each gave sworn evidence denying involvement. Their accounts were coherent, consistent and remained intact under cross-examination. Their presence at the scene was explained plausibly. They did not bear injuries, bloodstains or any indication of recent struggle. Their explanations, coupled with the gaps in the prosecution’s case, raise reasonable doubt.
82. Under Article 50(2) of the Constitution, the burden lies entirely on the prosecution to prove a criminal offence against an accused person beyond reasonable doubt. The defence need only raise a reasonable possibility consistent with innocence, and in this case, the accused persons did.
83. The conclusion that I reach in light of the foregoing analysis, is that the prosecution failed to prove beyond reasonable doubt that either of the accused persons murdered the deceased. The circumstantial evidence presented did not meet the strict legal threshold required to sustain a conviction. The chain of evidence was broken, significant gaps remained unexplained and alternative hypotheses consistent with innocence were not excluded.
84. In the result, each of the two accused persons is acquitted on the charge of murder contrary to Section 203 as read with Section 204 of the Criminal Procedure Code.
85. The sureties for the two accused persons are hereby discharged and the securities shall be released to them.
DELIVERED, DATED & SIGNED this 15th day of December, 2025.
JOE M. OMIDO
JUDGE
ACCUSED: Both present.
PROSECUTION COUNSEL: Ms. Muema.
DEFENCE COUNSEL: Mr. Okoth for the 1st accused & Mr. Bagada for the 2nd accused.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.