1. David Makori Obiri is charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code.
2. The particulars of the offence are that on the 4th day of December 2022, at the Omwari village, Nyamari sub-location, Kisii South Sub County of Kisii County murdered Simon Onchari Nyamao.
3. The prosecution contends that when Simon Onchari Nyamao, the deceased, was walking to his home in the company of his two daughters, the accused fatally injured him with a club and a knife.
4. In his defence, the accused testified that on the material date, he was at Suneka, away from his home area, where it is alleged the deceased died.
5. The issues for determination are:
a) Whether the defence of alibi is available to the accused or not,
b) If it is not, whether the accused inflicted the fatal injury on the deceased; and
c) Whether the prosecution proved their case against the accused.
6. Whenever the accused raises an alibi defence, they do not assume any burden to prove it is true. The burden to prove that is not lies with the prosecution. This was stated in the case of Kiarie vs Republic [1984] KLR, where the Court of Appeal held:
An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.
7. I do not subscribe to the school of thought that requires that an accused person put forth his alibi defence at the earliest opportunity. Unless the Criminal Procedure Code is amended to factor this requirement, this may act unfairly against an accused person. The Court of Appeal In the case of Victor Mwendwa Mulinge vs Republic [2014] eKLR, the Court of Appeal rendered itself as follows:
It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see KARANJA vs R, [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought. [Emphasis added].
8. This decision makes sense in our current legal position, in my view. Since it was brought up for the first time during the defence, I will weigh the defence against the evidence on record.
9. Esther Moraa (PW1) and Abigail Onchari (PW4) testified that they were with their father on the fateful day. Both testified that they were returning home from a posho mill.
10. PW1, aged thirteen years, gave evidence that when they met with the accused, he asked his son to fetch a machete. His son took him to a club instead. He used the club to hit the deceased on the head. He, the accused, then stabbed the deceased with a knife and chased them away.
11. Abigail Onchari (PW4), aged nine years, testified to the same effect except that the accused, after hitting the deceased and stabbing him, ran away. She remained at the scene while PW1 went to call their grandfather.
12. Both witnesses testified that the darkness was setting in at the time of the incident. The accused is their neighbour, and since there was no evidence that he had disguised his appearance in any way, these children were in a position to recognize him.
13. The evidence of these two minors, therefore, displaced the alibi defence of the accused.
14. The medical evidence that was adduced by Dr. Leah Obosi Okwaro (PW5) tended to corroborate the evidence of the two children who were in the company of the deceased as to the nature of the injuries he sustained. Her evidence was that the deceased suffered a bruise on the left index finger, abrasions on the right wrist and arm, a laceration on the left upper arm and lacerations on the frontal scalp. He also sustained a fracture on the occipital region.
15. I, therefore, find that the accused inflicted the fatal injury on the deceased.
16. At the time of the incident, there was a pending case of defilement of the deceased’s daughter (PW3). There was a possibility that this was the motive behind the offence.
17. To base a conviction on the evidence on record, the prosecution must prove the existence of malice aforethought. In Black’s Law Dictionary, 10th Edition, malice aforethought is defined as:
The requisite mental state for common-law murder, encompassing any one of the following (1) the intent to kill (2) the intent to inflict grievous bodily harm (3) extremely reckless difference to the value of human life (the so-called “abandoned and malignant heart”), or (4) the intent to commit a dangerous felony (which leads to culpability under the felony-murder rule).
18. Section 206 of the Penal Code gives instances when malice aforethought may be proved. It provides:
Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.
19. After analyzing the evidence on record, find that the prosecution has proved the offence of murder against the accused. I find him guilty and convict him of the offence.
Delivered and signed at Kisii on this 3rd day of May 2024
2. The particulars of the offence are that on the 4th day of December 2022, at the Omwari village, Nyamari sub-location, Kisii South Sub County of Kisii County murdered Simon Onchari Nyamao.
3. The prosecution contends that when Simon Onchari Nyamao, the deceased, was walking to his home in the company of his two daughters, the accused fatally injured him with a club and a knife.
4. In his defence, the accused testified that on the material date, he was at Suneka, away from his home area, where it is alleged the deceased died.
5. The issues for determination are:
a) Whether the defence of alibi is available to the accused or not,
b) If it is not, whether the accused inflicted the fatal injury on the deceased; and
c) Whether the prosecution proved their case against the accused.
6. Whenever the accused raises an alibi defence, they do not assume any burden to prove it is true. The burden to prove that is not lies with the prosecution. This was stated in the case of Kiarie vs Republic [1984] KLR, where the Court of Appeal held:
An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.
7. I do not subscribe to the school of thought that requires that an accused person put forth his alibi defence at the earliest opportunity. Unless the Criminal Procedure Code is amended to factor this requirement, this may act unfairly against an accused person. The Court of Appeal In the case of Victor Mwendwa Mulinge vs Republic [2014] eKLR, the Court of Appeal rendered itself as follows:
It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see KARANJA vs R, [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought. [Emphasis added].
8. This decision makes sense in our current legal position, in my view. Since it was brought up for the first time during the defence, I will weigh the defence against the evidence on record.
9. Esther Moraa (PW1) and Abigail Onchari (PW4) testified that they were with their father on the fateful day. Both testified that they were returning home from a posho mill.
10. PW1, aged thirteen years, gave evidence that when they met with the accused, he asked his son to fetch a machete. His son took him to a club instead. He used the club to hit the deceased on the head. He, the accused, then stabbed the deceased with a knife and chased them away.
11. Abigail Onchari (PW4), aged nine years, testified to the same effect except that the accused, after hitting the deceased and stabbing him, ran away. She remained at the scene while PW1 went to call their grandfather.
12. Both witnesses testified that the darkness was setting in at the time of the incident. The accused is their neighbour, and since there was no evidence that he had disguised his appearance in any way, these children were in a position to recognize him.
13. The evidence of these two minors, therefore, displaced the alibi defence of the accused.
14. The medical evidence that was adduced by Dr. Leah Obosi Okwaro (PW5) tended to corroborate the evidence of the two children who were in the company of the deceased as to the nature of the injuries he sustained. Her evidence was that the deceased suffered a bruise on the left index finger, abrasions on the right wrist and arm, a laceration on the left upper arm and lacerations on the frontal scalp. He also sustained a fracture on the occipital region.
15. I, therefore, find that the accused inflicted the fatal injury on the deceased.
16. At the time of the incident, there was a pending case of defilement of the deceased’s daughter (PW3). There was a possibility that this was the motive behind the offence.
17. To base a conviction on the evidence on record, the prosecution must prove the existence of malice aforethought. In Black’s Law Dictionary, 10th Edition, malice aforethought is defined as:
The requisite mental state for common-law murder, encompassing any one of the following (1) the intent to kill (2) the intent to inflict grievous bodily harm (3) extremely reckless difference to the value of human life (the so-called “abandoned and malignant heart”), or (4) the intent to commit a dangerous felony (which leads to culpability under the felony-murder rule).
18. Section 206 of the Penal Code gives instances when malice aforethought may be proved. It provides:
Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.
19. After analyzing the evidence on record, find that the prosecution has proved the offence of murder against the accused. I find him guilty and convict him of the offence.
Delivered and signed at Kisii on this 3rd day of May 2024