REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL CASE NO. E015 OF 2023 ( MURDER)
REPUBLIC…………………………………………………PROSECUTOR
VERSUS
ASMAN ONSIRO MAKHOTSA…………………..…….……ACCUSED
JUDGMENT
1. Asman Onsiro Makhotsa , the accused, is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are; on the 2 nd April 2023 at Musikoma Bakery in Bungoma South Sub- County within Bungoma County murdered Gladys Iraru.
2. The accused person denied the offence. The prosecution called eleven (11) witnesses to support its case.
PROSECUTION CASE
3. Mary Natecho Mbinga (Pw1) testified as follows. She knows the accused through his wife, Gladys, the deceased. On 31.3.2023, Gladys went to her place with the accused and hired a room. Gladys promised to pay her the next day. The two left to get money to pay, but they did not pay her. On 2.4.2023 at 8.30am, she went to the room and found the door not locked. She went back to the room and knocked. No one answered. She called Shadrack of Nyumba Kumi. Shadrack entered the room, and then she heard him call the police. The police came and found Gladys dead. Her head was swollen, and blood was coming out of her eyes.
4. Linet Aluoch Osera (Pw2) testified that the deceased was her friend and that she knew the accused as well. The two were staying together. On 29.3.2023, her children called her. They told her that their father had received Kshs 30,000/- from sugarcane and that they had asked her to go and collect it before he spent it. On the 30th, she saw Asman, who told her that the deceased had gone to her husband’s place. She saw the two again on 31st March 2023. They left for the place where they were staying in Musikoma. The next day, she heard that Gladys had died. She informed her children.
5. Shadrack Wanjala Wenami (Pw3) testified that he is a member of the Nyumba Kumi community policing. On 2.4.2023, he received a call from Mary, Pw1, informing him that a person had hired one of her rooms and had not woken for the past 3 days. He went to the plot and found the door unlocked. He called the OCS, who sent his officers at 7.00am. The police opened the door and found the woman asleep and the man seated. He does not know the accused person. He did not know the deceased.
6. Martin Wanyala (Pw4) testified that Pw1 is his grandmother. On 2.4.2023, he saw a crowd at the plot. He heard that someone had died in a room. He saw the body of a lady being removed. He did not hear any commotion.
7. Juma Mulongo Nancy (Pw5) testified that the deceased was her mother. On 28.3.2023, her mother told her she was going to their home in Malakisi and left at 5.00pm. On Thursday, she called her mother and told her to return, as their father was leasing the sugarcane farm for Kshs.30,000/-. On Sunday, Alice called her and said that Asman had killed her mother. They went to the mortuary and found her body.
8. David Kiama Muthoni (Pw6), the government analyst, testified that on 26.4.2023 he received blood samples from Gladys Odeo Iraru, marked A (the deceased), and a pair of trousers marked B. On 22.11.2023, he obtained a buccal swab from Asman Onziro, the accused. The trousers were heavily stained with blood of human origin. From his examination, he formed the opinion that the DNA profile from the trousers matched the DNA profile from Gladys Odeo Iraru, and that the DNA profile from the trousers matched the DNA profile from the buccal swab. He produced the report as Pext 2 a.
9. No. 110883 P.C. Geogery Mungare (Pw7), an officer attached to DCI Bungoma, testified that on 2.4.2023 at around 200 hours, he proceeded to the scene of the murder at Musikoma bakery in Bungoma and took 15 photographs of the compound where the deceased was found. He produced the photographs as exhibits 3 (a) to (o) and a certificate to certify them.
10. Doctor Elly Kiplimo Kosgei (Pw8) testified that on 6.4.2023 he performed a post-mortem on the deceased. On external examination, she had bruises on both sides of the temporal region (the upper cheeks), bleeding bilaterally from the nose, and insect bite marks from storage. On internal examination, the base of her skull had a fracture, and there was a massive subdural haematoma with bleeding from the brain. He formed the opinion that the cause of death was severe head injury from a massive subdural haematoma due to blunt trauma to the head. He produced the post-mortem report as P ext 5.
11. Douglas Juma Wamalwa (Pw9) testified that the deceased was his wife. She left their home to run her errands. On 2.4.2023, he was called and informed that she had been killed at Musikoma. On 3.4.2023 they found her body in the mortuary.
12. No. 255806 P.C Obed Murey (Pw10), an officer with DCI Bungoma, testified that he was the investigating officer. On 2.4.2023, he received a call from the OCS reporting a murder at Musikoma bakery. He informed the scene of crime, and they went to the scene. They went to the plot of Mary and were taken to room no.4. They found two people, the deceased and the accused. The deceased was lying on the bed, and the accused was beside her. The lady was dead, and the accused was alive. The accused was seated beside the deceased. The trousers he was wearing had blood stains. They documented the scene, and the body was taken to Bungoma Referral Hospital. They arrested the accused as a suspect to inform them what happened. They found out that the accused was the deceased’s boyfriend and that she was married. A post mortem was done on the 6.4.2023. He prepared an exhibit memo on the 26.4.2023 and sent the exhibits to the government analyst.
DEFENCE CASE
13. The accused gave a sworn statement in his defence. He testified as follows. He did not murder Gladys Iraru Odeo. Gladys was his lover for a period of 4 years. They lived together, and at times she would leave and return. He knew she had a husband and children. Two days before 2.4.2023, he was with Gladys at the place where he stays in Musikoma. They hired a room from Mary. They left with Gladys and went to kituo, but he did not enter. Kituo is a place where Alice conducts her changaa business. Alice had told her that her children were looking for her and that her husband had received some money. They left kituo and went back home. She asked him for money, and he declined to give her any. On their way home, they parted. She left to look for money. He left her, and at 5.00 pm he went to kituo. He took alcohol and continued drinking until about 9pm. He was very drunk and could not even open the door. The door had no padlock. He entered the room and went straight to sleep. The house had only a mattress, which was placed on the floor. He could hear people from far away saying that they were both dead. Police entered the house. He was still asleep. He woke up and was surprised to find Gladys's body. The police arrested him. The door to the place was never locked. He was very drunk when he returned and did not know her condition when he entered the house. He does not know what caused the death of Gladys.
14. No. 91798 Cpl Simon Omala. Dw2, a handwriting expert, produced a report, D ext No. 2 b, confirming that the writing was that of Doctor Elly Kosgei.
15. The prosecution submitted that they had proved their case beyond reasonable doubt. The accused was in contact with the deceased before her death. The trousers the accused was wearing had blood stains from the deceased. It was submitted that the evidence remained watertight and that the court should dismiss the defence and convict the accused, given the overwhelming evidence.
16. The accused, through his lawyer, submitted that the death of the deceased was admitted, but not the cause of death. This was challenged. The defence cast doubt on the authenticity of the post-mortem report, arguing that the words “blood sample” were not in the original post-mortem form. It was argued that the discrepancy could not be attributed to clerical error but to a possible alteration of the material content. On whether the accused caused the death of the deceased, it was submitted that there was no eyewitness and therefore the evidence was purely circumstantial. It was submitted that the accused’s defence was corroborated by the evidence of Pw2, namely that he had left the deceased behind as he went to another changaa den. On the doctrine of the last seen, it was submitted that the evidence of the prosecution and the deceased was that the accused was not the last person seen with the deceased, and that it was not in dispute that they were found in the same house, lying next to each other. This did not prove beyond reasonable doubt that the accused caused the death of the deceased. On malice aforethought, it was submitted that the prosecution could not infer malice in a case where the accused was a stranger to the offence and its particulars. It was not clear where the offence took place, as Pw4, the immediate neighbour, testified that there was no commotion in the house. The prosecution had failed to establish the existence of malice aforethought.
ANALYSIS AND DETERMINATION
17. In a charge of murder, the prosecution has the duty to prove the following three elements to secure a conviction: that the deceased died; that the death was caused by an unlawful act of commission or omission by the person accused of the offence; and that the accused had malice aforethought when he committed the act. (see Chiragu & Another vs. Republic (Criminal Appeal 104 of 2018) [2021] KECA 342 (KLR))
18. The fact that a death occurred is not disputed; Pw1, Pw2 and Pw5 confirmed seeing the deceased. Doctor Kosgei conducted a post-mortem on the deceased and concluded that the cause of death was a severe head injury resulting from a massive subdural haematoma and blunt trauma to the head.
19. On whether the unlawful act by the accused caused the deceased’s death, I find as follows: it is not in dispute that the deceased and the accused had a relationship and that between the 29th March and 31st March 2023, they were together. It is also not in dispute that the deceased was found dead in a room they had hired from the Pw1 and that the accused was found inside the said house . What links him to the matter is the fact that he was found with the deceased in the same room, and that his trousers had blood spots, which were confirmed to be from the deceased.
20. There was no eyewitness; no one saw the accused murder the deceased. The evidence against the accused was circumstantial evidence. In the case of Victor Owich Mbogo vs Republic [2020] the Court of Appeal stated as follows;
“To secure a conviction based on circumstantial evidence, the circumstances surrounding the death should be cogent and well established so that when all the evidence is considered in totality, it points to the accused’s guilt. The circumstances should form a chain so tight that the inescapable conclusion is that the accused caused the deceased’s death”
21. Returning to the evidence, I have considered the evidence adduced by the prosecution and the accused’s defence. The prosecution has submitted that the evidence against the accused is overwhelming because he was the last person found with the deceased and that his trousers had blood stains belonging to the deceased. There was evidence from Pw2 that the accused was seen with the deceased, but the person who saw them last did not see them on the 2nd of April 2023. The accused does not deny that he went back to the room they rented. He was very drunk and slept, only to be woken by people who had come into the room. Pw4, who was within the compound, never heard any commotion. The defence he raised casts doubt on the prosecution's case. The accused had a relationship with the deceased, but no one saw him cause the injuries to the deceased. No commotion was heard inside the room. Pw1 stated that the room was not locked. Could it be that the deceased was killed elsewhere and brought to this room? The motive behind the killing has also not been established. None of the witnesses saw them quarrel on this day or the day before. In the case of Joan Chebii Sawe vs Republic (2003), the Court of Appeal stated that suspicion, however strong, cannot provide a basis for inferring guilt in a criminal matter. In my view, the accused can only be a suspect in the matter. There is a doubt in my mind as to whether the accused murdered the deceased. I give him the benefit of the doubt. The prosecution has failed to prove its case beyond a reasonable doubt. The accused person, Asman Onsiro Makhatsa, is acquitted of the charge of murder and is free to go unless lawfully held.
Dated, signed, and delivered virtually this 9 th Day of April 2026 .
R.E.OUGO
JUDGE
In the presence of :
Asman Onsiro Makhatsa
Miss Matere - For the State
Miss Wakoli - For the Accused
Ms Wilkister - C/A
hccrc no. e015 of 2023- judgment 2
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL CASE NO. E015 OF 2023 ( MURDER)
REPUBLIC…………………………………………………PROSECUTOR
VERSUS
ASMAN ONSIRO MAKHOTSA…………………..…….……ACCUSED
JUDGMENT
1. Asman Onsiro Makhotsa , the accused, is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are; on the 2 nd April 2023 at Musikoma Bakery in Bungoma South Sub- County within Bungoma County murdered Gladys Iraru.
2. The accused person denied the offence. The prosecution called eleven (11) witnesses to support its case.
PROSECUTION CASE
3. Mary Natecho Mbinga (Pw1) testified as follows. She knows the accused through his wife, Gladys, the deceased. On 31.3.2023, Gladys went to her place with the accused and hired a room. Gladys promised to pay her the next day. The two left to get money to pay, but they did not pay her. On 2.4.2023 at 8.30am, she went to the room and found the door not locked. She went back to the room and knocked. No one answered. She called Shadrack of Nyumba Kumi. Shadrack entered the room, and then she heard him call the police. The police came and found Gladys dead. Her head was swollen, and blood was coming out of her eyes.
4. Linet Aluoch Osera (Pw2) testified that the deceased was her friend and that she knew the accused as well. The two were staying together. On 29.3.2023, her children called her. They told her that their father had received Kshs 30,000/- from sugarcane and that they had asked her to go and collect it before he spent it. On the 30th, she saw Asman, who told her that the deceased had gone to her husband’s place. She saw the two again on 31st March 2023. They left for the place where they were staying in Musikoma. The next day, she heard that Gladys had died. She informed her children.
5. Shadrack Wanjala Wenami (Pw3) testified that he is a member of the Nyumba Kumi community policing. On 2.4.2023, he received a call from Mary, Pw1, informing him that a person had hired one of her rooms and had not woken for the past 3 days. He went to the plot and found the door unlocked. He called the OCS, who sent his officers at 7.00am. The police opened the door and found the woman asleep and the man seated. He does not know the accused person. He did not know the deceased.
6. Martin Wanyala (Pw4) testified that Pw1 is his grandmother. On 2.4.2023, he saw a crowd at the plot. He heard that someone had died in a room. He saw the body of a lady being removed. He did not hear any commotion.
7. Juma Mulongo Nancy (Pw5) testified that the deceased was her mother. On 28.3.2023, her mother told her she was going to their home in Malakisi and left at 5.00pm. On Thursday, she called her mother and told her to return, as their father was leasing the sugarcane farm for Kshs.30,000/-. On Sunday, Alice called her and said that Asman had killed her mother. They went to the mortuary and found her body.
8. David Kiama Muthoni (Pw6), the government analyst, testified that on 26.4.2023 he received blood samples from Gladys Odeo Iraru, marked A (the deceased), and a pair of trousers marked B. On 22.11.2023, he obtained a buccal swab from Asman Onziro, the accused. The trousers were heavily stained with blood of human origin. From his examination, he formed the opinion that the DNA profile from the trousers matched the DNA profile from Gladys Odeo Iraru, and that the DNA profile from the trousers matched the DNA profile from the buccal swab. He produced the report as Pext 2 a.
9. No. 110883 P.C. Geogery Mungare (Pw7), an officer attached to DCI Bungoma, testified that on 2.4.2023 at around 200 hours, he proceeded to the scene of the murder at Musikoma bakery in Bungoma and took 15 photographs of the compound where the deceased was found. He produced the photographs as exhibits 3 (a) to (o) and a certificate to certify them.
10. Doctor Elly Kiplimo Kosgei (Pw8) testified that on 6.4.2023 he performed a post-mortem on the deceased. On external examination, she had bruises on both sides of the temporal region (the upper cheeks), bleeding bilaterally from the nose, and insect bite marks from storage. On internal examination, the base of her skull had a fracture, and there was a massive subdural haematoma with bleeding from the brain. He formed the opinion that the cause of death was severe head injury from a massive subdural haematoma due to blunt trauma to the head. He produced the post-mortem report as P ext 5.
11. Douglas Juma Wamalwa (Pw9) testified that the deceased was his wife. She left their home to run her errands. On 2.4.2023, he was called and informed that she had been killed at Musikoma. On 3.4.2023 they found her body in the mortuary.
12. No. 255806 P.C Obed Murey (Pw10), an officer with DCI Bungoma, testified that he was the investigating officer. On 2.4.2023, he received a call from the OCS reporting a murder at Musikoma bakery. He informed the scene of crime, and they went to the scene. They went to the plot of Mary and were taken to room no.4. They found two people, the deceased and the accused. The deceased was lying on the bed, and the accused was beside her. The lady was dead, and the accused was alive. The accused was seated beside the deceased. The trousers he was wearing had blood stains. They documented the scene, and the body was taken to Bungoma Referral Hospital. They arrested the accused as a suspect to inform them what happened. They found out that the accused was the deceased’s boyfriend and that she was married. A post mortem was done on the 6.4.2023. He prepared an exhibit memo on the 26.4.2023 and sent the exhibits to the government analyst.
DEFENCE CASE
13. The accused gave a sworn statement in his defence. He testified as follows. He did not murder Gladys Iraru Odeo. Gladys was his lover for a period of 4 years. They lived together, and at times she would leave and return. He knew she had a husband and children. Two days before 2.4.2023, he was with Gladys at the place where he stays in Musikoma. They hired a room from Mary. They left with Gladys and went to kituo, but he did not enter. Kituo is a place where Alice conducts her changaa business. Alice had told her that her children were looking for her and that her husband had received some money. They left kituo and went back home. She asked him for money, and he declined to give her any. On their way home, they parted. She left to look for money. He left her, and at 5.00 pm he went to kituo. He took alcohol and continued drinking until about 9pm. He was very drunk and could not even open the door. The door had no padlock. He entered the room and went straight to sleep. The house had only a mattress, which was placed on the floor. He could hear people from far away saying that they were both dead. Police entered the house. He was still asleep. He woke up and was surprised to find Gladys's body. The police arrested him. The door to the place was never locked. He was very drunk when he returned and did not know her condition when he entered the house. He does not know what caused the death of Gladys.
14. No. 91798 Cpl Simon Omala. Dw2, a handwriting expert, produced a report, D ext No. 2 b, confirming that the writing was that of Doctor Elly Kosgei.
15. The prosecution submitted that they had proved their case beyond reasonable doubt. The accused was in contact with the deceased before her death. The trousers the accused was wearing had blood stains from the deceased. It was submitted that the evidence remained watertight and that the court should dismiss the defence and convict the accused, given the overwhelming evidence.
16. The accused, through his lawyer, submitted that the death of the deceased was admitted, but not the cause of death. This was challenged. The defence cast doubt on the authenticity of the post-mortem report, arguing that the words “blood sample” were not in the original post-mortem form. It was argued that the discrepancy could not be attributed to clerical error but to a possible alteration of the material content. On whether the accused caused the death of the deceased, it was submitted that there was no eyewitness and therefore the evidence was purely circumstantial. It was submitted that the accused’s defence was corroborated by the evidence of Pw2, namely that he had left the deceased behind as he went to another changaa den. On the doctrine of the last seen, it was submitted that the evidence of the prosecution and the deceased was that the accused was not the last person seen with the deceased, and that it was not in dispute that they were found in the same house, lying next to each other. This did not prove beyond reasonable doubt that the accused caused the death of the deceased. On malice aforethought, it was submitted that the prosecution could not infer malice in a case where the accused was a stranger to the offence and its particulars. It was not clear where the offence took place, as Pw4, the immediate neighbour, testified that there was no commotion in the house. The prosecution had failed to establish the existence of malice aforethought.
ANALYSIS AND DETERMINATION
17. In a charge of murder, the prosecution has the duty to prove the following three elements to secure a conviction: that the deceased died; that the death was caused by an unlawful act of commission or omission by the person accused of the offence; and that the accused had malice aforethought when he committed the act. (see Chiragu & Another vs. Republic (Criminal Appeal 104 of 2018) [2021] KECA 342 (KLR))
18. The fact that a death occurred is not disputed; Pw1, Pw2 and Pw5 confirmed seeing the deceased. Doctor Kosgei conducted a post-mortem on the deceased and concluded that the cause of death was a severe head injury resulting from a massive subdural haematoma and blunt trauma to the head.
19. On whether the unlawful act by the accused caused the deceased’s death, I find as follows: it is not in dispute that the deceased and the accused had a relationship and that between the 29th March and 31st March 2023, they were together. It is also not in dispute that the deceased was found dead in a room they had hired from the Pw1 and that the accused was found inside the said house . What links him to the matter is the fact that he was found with the deceased in the same room, and that his trousers had blood spots, which were confirmed to be from the deceased.
20. There was no eyewitness; no one saw the accused murder the deceased. The evidence against the accused was circumstantial evidence. In the case of Victor Owich Mbogo vs Republic [2020] the Court of Appeal stated as follows;
“To secure a conviction based on circumstantial evidence, the circumstances surrounding the death should be cogent and well established so that when all the evidence is considered in totality, it points to the accused’s guilt. The circumstances should form a chain so tight that the inescapable conclusion is that the accused caused the deceased’s death”
21. Returning to the evidence, I have considered the evidence adduced by the prosecution and the accused’s defence. The prosecution has submitted that the evidence against the accused is overwhelming because he was the last person found with the deceased and that his trousers had blood stains belonging to the deceased. There was evidence from Pw2 that the accused was seen with the deceased, but the person who saw them last did not see them on the 2nd of April 2023. The accused does not deny that he went back to the room they rented. He was very drunk and slept, only to be woken by people who had come into the room. Pw4, who was within the compound, never heard any commotion. The defence he raised casts doubt on the prosecution's case. The accused had a relationship with the deceased, but no one saw him cause the injuries to the deceased. No commotion was heard inside the room. Pw1 stated that the room was not locked. Could it be that the deceased was killed elsewhere and brought to this room? The motive behind the killing has also not been established. None of the witnesses saw them quarrel on this day or the day before. In the case of Joan Chebii Sawe vs Republic (2003), the Court of Appeal stated that suspicion, however strong, cannot provide a basis for inferring guilt in a criminal matter. In my view, the accused can only be a suspect in the matter. There is a doubt in my mind as to whether the accused murdered the deceased. I give him the benefit of the doubt. The prosecution has failed to prove its case beyond a reasonable doubt. The accused person, Asman Onsiro Makhatsa, is acquitted of the charge of murder and is free to go unless lawfully held.
Dated, signed, and delivered virtually this 9 th Day of April 2026 .
R.E.OUGO
JUDGE
In the presence of :
Asman Onsiro Makhatsa
Miss Matere - For the State
Miss Wakoli - For the Accused
Ms Wilkister - C/A
hccrc no. e015 of 2023- judgment 2