JUDGMENT
Introduction
1. The accused, Dickson Kinaro Barongo, is charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on 9th September 2021 at Mwata Market Centre, Nyamwari Sub-location, Riana Location, Kisii South Sub-county within Kisii County, jointly with others not before court, he murdered Calvin Onyango Omollo.
2. The accused denied the charge. The prosecution called seven witnesses. At the close of the prosecution case, the Court found that a prima facie case had been established and placed the accused on his defence under section 306(2) of the Criminal Procedure Code. The accused gave sworn evidence and called one witness, his father.
3. The duty of the Court at this stage is to determine whether, upon the totality of the evidence, the prosecution has proved the charge beyond reasonable doubt. The burden remains throughout on the prosecution and does not shift to the accused.
Prosecution Evidence
4. PW1, Robinson Otieno, testified that on the evening of 9th September 2021, he was at Mwata Centre drinking in a club with the deceased. A fight broke out. According to his evidence in chief, the deceased went to separate those who were fighting, and persons he referred to as Dickens and his brothers attacked the deceased. PW1 stated that as he and the deceased left and boarded his motorcycle, the deceased was hit with a bottle. The deceased then alighted from the motorcycle and went back to the bar. PW1 later found the deceased bleeding from the left side of the chest and took him to Lwala Hospital, where he was pronounced dead.
5. In his evidence in chief, PW1 initially stated that he saw Dickens near the deceased carrying a knife. He also referred to a grudge between Dickens and the deceased over a lady who worked at the club. However, under cross-examination, PW1 stated that he did not see anyone stab the deceased, did not know who hit the deceased with the bottle, and had not said in his statement that he saw the accused stab the deceased. On re-examination, he was categorical that he did not see Dickson next to the deceased with a knife and that he had initially been confused when he said he saw him with a knife.
6. PW2, Kennedy Odhiambo Omach, identified the body of the deceased, Calvin Onyango Omollo, for purposes of post-mortem examination.
7. PW3, Alphonse Omondi Otieno, testified that he was at Kabegi Bar on the same night. He stated that he saw the accused, whom he referred to as Dick, fighting with a person he knew as Vincent. He stated that Dick was with his brothers, including Nick, and that the fight was over a barmaid. According to PW3, the deceased went outside and held onto the door saying, "Dicky Dicky kwanini unanipiga," whereafter Dickson stabbed him with a knife. He stated that there was light in the club and security light outside. He identified the accused in court.
8. On cross-examination, PW3 stated that he knew the deceased as Vincent Obisa or Vin, while the information names him as Calvin Onyango Omollo. He also used the names Dick, Dickie and Dickson when referring to the accused and his twin brother. PW3 nevertheless maintained that he witnessed the stabbing, stated that the incident occurred under electric and security lighting, described the knife as a long, bright kitchen knife, and identified the accused as the person who stabbed the deceased. On re-examination, he stated that he had known the deceased from school and knew him by the name Vin.
9. PW4, Maurice Omollo Omollo, the deceased's father, testified that he received information that his son, Calvin Onyango Omollo, had died at a bar and that the body had been taken to Lwala Hospital. He reported to Kerina Police Station and later accompanied police officers to the scene at Mwata Centre. He did not witness the killing and did not know who killed his son.
10. PW5, Dr. Benjamin Ndimbile, conducted the post-mortem examination on 14th September 2021. He found a stab wound on the left side of the chest around the fourth rib, haemothorax, and a laceration on the left side of the heart. He formed the opinion that the cause of death was a penetrating chest injury due to one stab wound. The post-mortem report was produced as an exhibit.
11. PW6, PC Victor Dan Maloba, was the investigating officer. He testified that investigations established that the deceased had gone to Uhuru Park Bar, where a fight broke out, and that the accused, who allegedly had a grudge with the deceased over a lady, joined the fight and stabbed him. He further testified that the accused, Kepha Kinaro and Nickson Kinaro initially surrendered to the police but, after consultation with the ODPP, charges against Kepha and Nickson were dropped.
12. On cross-examination, PW6 confirmed that the initial report and the Occurrence Book were not produced. He accepted that the statement of PW1 did not say that the deceased mentioned Dickson, and that PW1's statement referred instead to the words, "hawa watu wameniua." He also accepted that Nickson and the accused are twins; that no identification parade was conducted; and that the alleged knife was not recovered. He stated that the deceased was also known as Vinny, that the accused was known as Dicky, and that PW3 saw the accused stab the deceased.
13. PW7, Inspector Robai Masika, documented the scene and produced photographs and a certificate. The photographs showed the bar, blood stains, broken glass and the deceased's body at Lwala Health Centre. PW7 did not recover any murder weapon. He stated that no blood samples were taken from the scene and that, in the absence of such samples, he could not tell whose blood was at the scene.
Defence Evidence
14. The accused testified as DW1. He denied the charge. He stated that on the night of 9th September 2021, he was asleep at Mwata in his parents' lodging and was not in the bar. He testified that the following morning he heard a commotion, was informed that there had been a fight the previous night and that a man had been stabbed, and later returned to the scene after his father informed him that he was required to record a statement. He was then placed in a police vehicle together with barmaids and locked up pending investigations.
15. The accused stated that his father's bar was known as Huhuru Bar; that he did not know Kabegi Bar; that he did not work in the bar; that he does not drink alcohol; that he did not know PW1 or PW3 before the case; and that the knife allegedly used was not produced.
16. DW2, Thadeus Kinaro Begi, the accused's father, testified that he owned Huhuru Park Pub at Mwata Market. He was at work in Homa Bay on the material night. The following morning, the accused called him and reported commotion at the premises. DW2 went to the scene, found blood about ten metres from the bar, reported to police and later returned with police officers. He confirmed that the accused was his son, was a student, and did not work in the bar. On cross-examination, he accepted that he was not present at the material time and did not know whether the accused was involved.
Issues for Determination
17. The issues that arise for determination are whether the prosecution proved the death and cause of death of Calvin Onyango Omollo; whether the death was caused by an unlawful act; whether the unlawful act was committed by the accused; and, if so, whether malice aforethought was proved.
Applicable Law
18. Section 203 of the Penal Code defines murder as causing the death of another person by an unlawful act or omission with malice aforethought. Section 206 of the Penal Code sets out the circumstances from which malice aforethought may be established, including an intention to cause death or grievous harm, or knowledge that the act causing death will probably cause death or grievous harm.
19. In Anthony Ndegwa Ngari v Republic [2014] eKLR, the Court of Appeal restated that the prosecution must prove the death of the deceased and its cause; that the death was caused by an unlawful act or omission of the accused; and that the accused acted with malice aforethought.
20. Where a case depends wholly or substantially on visual identification, the Court must warn itself of the special need for caution. In R v Turnbull & Others [1976] 3 All ER 549, the Court stated that the trial court should examine the quality of the identification, including the duration and distance of observation, the available light, whether the observation was impeded, whether the witness had seen the accused before, and any material discrepancy in the witness's first description. The poorer the quality of the identification, the greater the danger of a mistaken conviction.
21. In Wamunga v Republic [1989] KLR 424 and Maitanyi v Republic [1986] KLR 198, the Court of Appeal stressed that the court must examine the nature, intensity and position of the light and all surrounding circumstances before acting on visual identification. In Anjononi & Others v Republic [1980] KLR 59, the Court held that recognition is more satisfactory, reassuring and reliable than identification of a stranger because it rests on prior personal knowledge. Even so, recognition evidence must still be tested with care.
22. An identification parade ordinarily serves to test a witness's identification of a stranger. Where the witness knew the accused before the offence and the evidence is one of recognition, a parade is unnecessary. That principle was restated by the Court of Appeal in Peter Okee Omukaga & Another v Republic [2011] eKLR and Katana & Another v Republic [2022] KECA 1160 (KLR).
23. On proof of malice aforethought, the Court is guided by Tubere s/o Ochen [1945] 12 EACA 63, which requires consideration of matters such as the nature of the weapon used, the part of the body injured, the manner of use, the nature of the injuries, and the conduct of the accused before, during and after the attack.
24. Section 143 of the Evidence Act provides that no particular number of witnesses are required to prove a fact. A conviction may therefore rest on the evidence of a single identifying witness where, after the required caution and careful testing, the court is satisfied that the evidence is of good quality and free from the possibility of error.
Analysis
25. The death of Calvin Onyango Omollo was proved beyond reasonable doubt. PW1 and PW3 saw the deceased after he had been stabbed and assisted in taking him to Lwala Hospital. PW2 identified the body for post-mortem examination. PW4, his father, confirmed that the deceased was his son. PW5 conducted the post-mortem examination and found that the deceased died from a penetrating chest injury due to a single stab wound. The medical evidence was clear, internally consistent and unshaken on the cause of death.
26. I am also satisfied that the death was caused by an unlawful act. The deceased sustained a stab wound to the chest in circumstances that were not shown to be accidental, lawful or justified. The central question is whether the prosecution proved beyond reasonable doubt that it was the accused who inflicted the fatal stab wound.
27. On identification, PW3 testified that he knew the accused before the incident because he had previously seen him at the bar. He stated that there was electric light inside the club and security lighting in the corridor and outside. He was categorical that it was not dark. PW1 also described the security light as very bright, positioned about one metre from the scene, and capable of illuminating the immediate area. PW3 stated that he saw the accused fighting with the deceased, saw the group move outside, saw the accused approach the deceased, saw him draw a knife from his right pocket, and saw him stab the deceased. He then saw the deceased fall and assisted in taking him to Lwala Hospital.
28. This was evidence of recognition, not identification of a stranger. PW3 said he had met the accused at the bar on previous occasions. He testified that he knew the accused's brothers, including his twin, and named them separately as Nickson and Kepha. He also knew the deceased from school and knew him as Vin.
29. I have warned myself of the danger of relying on the evidence of a single recognising witness at night, bearing in mind that even recognition evidence may be mistaken. I have approached PW3's evidence with the caution required by Turnbull, Wamunga and Maitanyi. Having considered the lighting, the duration of the observation, the witness's prior knowledge of the accused and his twin brother, and the detail in his account, I find that the circumstances were favourable to positive recognition.
30. I have also considered the use of the names Dick, Dickie and Dickson in PW3's evidence. The evidence was given in Dholuo and translated into the language of the Court. Read as a whole, PW3 consistently attributed the stabbing to the person he knew as Dick or Dickie and identified that person in court as the accused. His references to the accused's twin show that he was alive to the existence of the twin and could distinguish the brothers. I have further considered the isolated recorded answer that he could not tell who the culprit was. That answer appears between his express statement, "I saw Dickie kill Vincent," and his further description of the knife and the stabbing. In the context of his evidence in chief, cross-examination and dock identification, I do not read that isolated answer as a withdrawal of his recognition. It was an answer arising from the compound questions and confusion over similar names.
31. The Court is mindful that not every inconsistency or discrepancy in the evidence is fatal to the prosecution's case. In Richard Munene v Republic [2018] KECA 186 (KLR), the Court of Appeal held that only inconsistencies which are substantial and fundamental to the principal issues, and which consequently create reasonable doubt, will entitle an accused person to their benefit. Minor discrepancies which neither affect the substance of the prosecution's case nor suggest deliberate untruthfulness may properly be disregarded. See also Erick Onyango Ondeng' v Republic [2014] KECA 523 (KLR) and Ahamad Abolfathi Mohammed & Another v Republic [2018] KECA 743 (KLR). In this case, the variations in names and nicknames do not displace the substance of PW3's recognition evidence and do not create a reasonable possibility that the twin was the assailant.
32. The reference to the deceased as Vincent Obisa or Vin also does not create doubt about the victim of the stabbing. On re-examination, PW3 explained that he had known the deceased from school as Vin. PW6 stated that the deceased was also known as Vinny. PW3 was one of the persons who took the stabbed man directly from the scene to Lwala Hospital, where he was pronounced dead. PW2, PW4 and PW5 proved that the body subsequently examined was that of Calvin Onyango Omollo. The evidence discloses one continuous transaction and one victim. The difference is in the name by which PW3 knew him, not in the identity of the person killed. The different descriptions of the bar as Kabegi, Uhuru or Huhuru likewise do not point to two incidents. The witnesses placed the confrontation at Mwata Centre and described the same fight, stabbing, journey to Lwala Hospital and death.
33. PW3 admitted that he had consumed alcohol and was a bit drunk. That admission called for caution but did not, by itself, make him incapable of observation. His account contained concrete details: the lighting, the participants, the movement outside, the pocket from which the knife was drawn, the nature of the knife, the part of the body struck, the deceased's fall and the immediate journey to hospital. He remained clear that he witnessed the stabbing and identified the accused. I find no basis in the evidence to conclude that his faculties were so impaired that his recognition was unreliable.
34. PW1 did not see the actual stabbing and his evidence cannot be used as direct identification of the assailant. It nevertheless corroborates the surrounding circumstances: the fight, the deceased's departure and return, the immediate report that he had been stabbed, the bleeding from the left chest, the electric security lighting, and the urgent journey to Lwala Hospital. PW5's medical findings of a single penetrating stab wound to the left chest, with laceration of the heart, objectively support PW3's account of a deliberate knife attack. PW3's lay reference to the left side of the stomach, rather than the precise medical description of the left chest, is not a material contradiction in the circumstances.
35. The absence of an identification parade does not weaken the prosecution case because this was a case of recognition. PW3 said he knew the accused before the incident and recognised him by sight and by the name by which he knew him. A parade would not have tested recognition already made from prior personal knowledge and would have served no useful purpose.
36. It was submitted that the failure to recover the murder weapon was fatal. I do not agree. The weapon of crime is not an ingredient of the offence, and its production was not indispensable where PW3 saw the accused draw and use the knife and the medical evidence independently established a penetrating stab wound. Forensic sampling is an important aid to investigations. However, failure to adduce forensic evidence is not fatal where the available direct evidence, tested against the objective medical and surrounding evidence, proves the case beyond reasonable doubt.
37. The accused's defence was that he was asleep in the lodging or shop area of the same premises. That was an alibi, and the burden remained on the prosecution to disprove it. In Victor Mwendwa Mulinge v Republic [2014] eKLR, the Court of Appeal restated that the burden of disproving an alibi lies on the prosecution, but that the court may weigh the alibi against the totality of the evidence to determine whether the prosecution has proved guilt beyond reasonable doubt. In this case, PW3's credible recognition evidence placed the accused at the scene throughout the confrontation and at the moment of the stabbing. DW2 was away in Homa Bay and could not confirm where the accused was at the material time. I find that the accused's denial was displaced by the prosecution evidence and does not raise a reasonable doubt.
38. I am therefore satisfied that this is not a case of mistaken identity. PW3 gave cogent evidence that he saw the accused stab the deceased. The accused was properly placed at the scene, and the prosecution proved beyond reasonable doubt that he was the person who inflicted the fatal stab wound.
39. On malice aforethought, it is trite that actus reus non facit reum nisi mens sit rea, meaning that the act itself does not constitute an offence unless it is accompanied by a guilty mind. Malice aforethought under section 206 of the Penal Code may be inferred from the nature of the weapon used, the part of the body targeted and the severity of the injuries inflicted. PW3 testified that the accused drew a long kitchen knife from his pocket and deliberately stabbed the deceased in the left chest. The blow penetrated the chest cavity and lacerated the heart. A knife is a lethal weapon; the chest and heart are vulnerable vital areas; and the force and placement of the blow were such that death or grievous harm was the probable consequence. Applying section 206(a) and (b) of the Penal Code and Tubere s/o Ochen, I find that malice aforethought was proved beyond reasonable doubt.
40. The information alleged that the accused acted jointly with others not before court. It was unnecessary to prove that allegation once the evidence established that the accused personally performed the act that caused death. Under section 20(1)(a) of the Penal Code, he was a principal offender.
41. On the whole of the evidence, I find that the prosecution proved beyond reasonable doubt that Calvin Onyango Omollo died from an unlawful stab wound inflicted by the accused, Dickson Kinaro Barongo, with malice aforethought. All the ingredients of murder under section 203 of the Penal Code were established.
Disposition
42. For the foregoing reasons, I find that the prosecution has proved the charge of murder against the accused beyond reasonable doubt.
43. The accused, Dickson Kinaro Barongo, is found guilty of the murder of Calvin Onyango Omollo contrary to section 203 as read with section 204 of the Penal Code and is hereby convicted in accordance with section 322(2) of the Criminal Procedure Code.
T.A ODERA
JUDGE
29.6.2026
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 29TH DAY OF JUNE 2026.
In the presence of:
Accused: Present
Mr Koima: For the State
Mr Mokaya: For the Accused
Court Assistant: Kipchirchir
Mr Koima: The State has no previous records against the accused.
Mr Mokaya: In mitigation, the prosecution has confirmed that the accused is a first offender. He is remorseful. We respectfully ask the Court to consider that he is 26 years old and is a student at Kisii Polytechnic. We seek leniency and a non-custodial sentence, and urge the Court to balance the principles of proportionality and dignity. We also seek consideration of section 333(2) of the Criminal Procedure Code and a pre-sentence report.
Mr Koima: The victim's views can be included in the social inquiry report.
Mr Mokaya: We shall seek time to make further submissions on the report.
Order: The accused shall be remanded in custody pending mitigation and sentence. A pre-sentence report, including a detailed victim impact statement, shall be filed. Mention on 22.7.2026.
T.A ODERA
JUDGE
29.6.2026
Introduction
1. The accused, Dickson Kinaro Barongo, is charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on 9th September 2021 at Mwata Market Centre, Nyamwari Sub-location, Riana Location, Kisii South Sub-county within Kisii County, jointly with others not before court, he murdered Calvin Onyango Omollo.
2. The accused denied the charge. The prosecution called seven witnesses. At the close of the prosecution case, the Court found that a prima facie case had been established and placed the accused on his defence under section 306(2) of the Criminal Procedure Code. The accused gave sworn evidence and called one witness, his father.
3. The duty of the Court at this stage is to determine whether, upon the totality of the evidence, the prosecution has proved the charge beyond reasonable doubt. The burden remains throughout on the prosecution and does not shift to the accused.
Prosecution Evidence
4. PW1, Robinson Otieno, testified that on the evening of 9th September 2021, he was at Mwata Centre drinking in a club with the deceased. A fight broke out. According to his evidence in chief, the deceased went to separate those who were fighting, and persons he referred to as Dickens and his brothers attacked the deceased. PW1 stated that as he and the deceased left and boarded his motorcycle, the deceased was hit with a bottle. The deceased then alighted from the motorcycle and went back to the bar. PW1 later found the deceased bleeding from the left side of the chest and took him to Lwala Hospital, where he was pronounced dead.
5. In his evidence in chief, PW1 initially stated that he saw Dickens near the deceased carrying a knife. He also referred to a grudge between Dickens and the deceased over a lady who worked at the club. However, under cross-examination, PW1 stated that he did not see anyone stab the deceased, did not know who hit the deceased with the bottle, and had not said in his statement that he saw the accused stab the deceased. On re-examination, he was categorical that he did not see Dickson next to the deceased with a knife and that he had initially been confused when he said he saw him with a knife.
6. PW2, Kennedy Odhiambo Omach, identified the body of the deceased, Calvin Onyango Omollo, for purposes of post-mortem examination.
7. PW3, Alphonse Omondi Otieno, testified that he was at Kabegi Bar on the same night. He stated that he saw the accused, whom he referred to as Dick, fighting with a person he knew as Vincent. He stated that Dick was with his brothers, including Nick, and that the fight was over a barmaid. According to PW3, the deceased went outside and held onto the door saying, "Dicky Dicky kwanini unanipiga," whereafter Dickson stabbed him with a knife. He stated that there was light in the club and security light outside. He identified the accused in court.
8. On cross-examination, PW3 stated that he knew the deceased as Vincent Obisa or Vin, while the information names him as Calvin Onyango Omollo. He also used the names Dick, Dickie and Dickson when referring to the accused and his twin brother. PW3 nevertheless maintained that he witnessed the stabbing, stated that the incident occurred under electric and security lighting, described the knife as a long, bright kitchen knife, and identified the accused as the person who stabbed the deceased. On re-examination, he stated that he had known the deceased from school and knew him by the name Vin.
9. PW4, Maurice Omollo Omollo, the deceased's father, testified that he received information that his son, Calvin Onyango Omollo, had died at a bar and that the body had been taken to Lwala Hospital. He reported to Kerina Police Station and later accompanied police officers to the scene at Mwata Centre. He did not witness the killing and did not know who killed his son.
10. PW5, Dr. Benjamin Ndimbile, conducted the post-mortem examination on 14th September 2021. He found a stab wound on the left side of the chest around the fourth rib, haemothorax, and a laceration on the left side of the heart. He formed the opinion that the cause of death was a penetrating chest injury due to one stab wound. The post-mortem report was produced as an exhibit.
11. PW6, PC Victor Dan Maloba, was the investigating officer. He testified that investigations established that the deceased had gone to Uhuru Park Bar, where a fight broke out, and that the accused, who allegedly had a grudge with the deceased over a lady, joined the fight and stabbed him. He further testified that the accused, Kepha Kinaro and Nickson Kinaro initially surrendered to the police but, after consultation with the ODPP, charges against Kepha and Nickson were dropped.
12. On cross-examination, PW6 confirmed that the initial report and the Occurrence Book were not produced. He accepted that the statement of PW1 did not say that the deceased mentioned Dickson, and that PW1's statement referred instead to the words, "hawa watu wameniua." He also accepted that Nickson and the accused are twins; that no identification parade was conducted; and that the alleged knife was not recovered. He stated that the deceased was also known as Vinny, that the accused was known as Dicky, and that PW3 saw the accused stab the deceased.
13. PW7, Inspector Robai Masika, documented the scene and produced photographs and a certificate. The photographs showed the bar, blood stains, broken glass and the deceased's body at Lwala Health Centre. PW7 did not recover any murder weapon. He stated that no blood samples were taken from the scene and that, in the absence of such samples, he could not tell whose blood was at the scene.
Defence Evidence
14. The accused testified as DW1. He denied the charge. He stated that on the night of 9th September 2021, he was asleep at Mwata in his parents' lodging and was not in the bar. He testified that the following morning he heard a commotion, was informed that there had been a fight the previous night and that a man had been stabbed, and later returned to the scene after his father informed him that he was required to record a statement. He was then placed in a police vehicle together with barmaids and locked up pending investigations.
15. The accused stated that his father's bar was known as Huhuru Bar; that he did not know Kabegi Bar; that he did not work in the bar; that he does not drink alcohol; that he did not know PW1 or PW3 before the case; and that the knife allegedly used was not produced.
16. DW2, Thadeus Kinaro Begi, the accused's father, testified that he owned Huhuru Park Pub at Mwata Market. He was at work in Homa Bay on the material night. The following morning, the accused called him and reported commotion at the premises. DW2 went to the scene, found blood about ten metres from the bar, reported to police and later returned with police officers. He confirmed that the accused was his son, was a student, and did not work in the bar. On cross-examination, he accepted that he was not present at the material time and did not know whether the accused was involved.
Issues for Determination
17. The issues that arise for determination are whether the prosecution proved the death and cause of death of Calvin Onyango Omollo; whether the death was caused by an unlawful act; whether the unlawful act was committed by the accused; and, if so, whether malice aforethought was proved.
Applicable Law
18. Section 203 of the Penal Code defines murder as causing the death of another person by an unlawful act or omission with malice aforethought. Section 206 of the Penal Code sets out the circumstances from which malice aforethought may be established, including an intention to cause death or grievous harm, or knowledge that the act causing death will probably cause death or grievous harm.
19. In Anthony Ndegwa Ngari v Republic [2014] eKLR, the Court of Appeal restated that the prosecution must prove the death of the deceased and its cause; that the death was caused by an unlawful act or omission of the accused; and that the accused acted with malice aforethought.
20. Where a case depends wholly or substantially on visual identification, the Court must warn itself of the special need for caution. In R v Turnbull & Others [1976] 3 All ER 549, the Court stated that the trial court should examine the quality of the identification, including the duration and distance of observation, the available light, whether the observation was impeded, whether the witness had seen the accused before, and any material discrepancy in the witness's first description. The poorer the quality of the identification, the greater the danger of a mistaken conviction.
21. In Wamunga v Republic [1989] KLR 424 and Maitanyi v Republic [1986] KLR 198, the Court of Appeal stressed that the court must examine the nature, intensity and position of the light and all surrounding circumstances before acting on visual identification. In Anjononi & Others v Republic [1980] KLR 59, the Court held that recognition is more satisfactory, reassuring and reliable than identification of a stranger because it rests on prior personal knowledge. Even so, recognition evidence must still be tested with care.
22. An identification parade ordinarily serves to test a witness's identification of a stranger. Where the witness knew the accused before the offence and the evidence is one of recognition, a parade is unnecessary. That principle was restated by the Court of Appeal in Peter Okee Omukaga & Another v Republic [2011] eKLR and Katana & Another v Republic [2022] KECA 1160 (KLR).
23. On proof of malice aforethought, the Court is guided by Tubere s/o Ochen [1945] 12 EACA 63, which requires consideration of matters such as the nature of the weapon used, the part of the body injured, the manner of use, the nature of the injuries, and the conduct of the accused before, during and after the attack.
24. Section 143 of the Evidence Act provides that no particular number of witnesses are required to prove a fact. A conviction may therefore rest on the evidence of a single identifying witness where, after the required caution and careful testing, the court is satisfied that the evidence is of good quality and free from the possibility of error.
Analysis
25. The death of Calvin Onyango Omollo was proved beyond reasonable doubt. PW1 and PW3 saw the deceased after he had been stabbed and assisted in taking him to Lwala Hospital. PW2 identified the body for post-mortem examination. PW4, his father, confirmed that the deceased was his son. PW5 conducted the post-mortem examination and found that the deceased died from a penetrating chest injury due to a single stab wound. The medical evidence was clear, internally consistent and unshaken on the cause of death.
26. I am also satisfied that the death was caused by an unlawful act. The deceased sustained a stab wound to the chest in circumstances that were not shown to be accidental, lawful or justified. The central question is whether the prosecution proved beyond reasonable doubt that it was the accused who inflicted the fatal stab wound.
27. On identification, PW3 testified that he knew the accused before the incident because he had previously seen him at the bar. He stated that there was electric light inside the club and security lighting in the corridor and outside. He was categorical that it was not dark. PW1 also described the security light as very bright, positioned about one metre from the scene, and capable of illuminating the immediate area. PW3 stated that he saw the accused fighting with the deceased, saw the group move outside, saw the accused approach the deceased, saw him draw a knife from his right pocket, and saw him stab the deceased. He then saw the deceased fall and assisted in taking him to Lwala Hospital.
28. This was evidence of recognition, not identification of a stranger. PW3 said he had met the accused at the bar on previous occasions. He testified that he knew the accused's brothers, including his twin, and named them separately as Nickson and Kepha. He also knew the deceased from school and knew him as Vin.
29. I have warned myself of the danger of relying on the evidence of a single recognising witness at night, bearing in mind that even recognition evidence may be mistaken. I have approached PW3's evidence with the caution required by Turnbull, Wamunga and Maitanyi. Having considered the lighting, the duration of the observation, the witness's prior knowledge of the accused and his twin brother, and the detail in his account, I find that the circumstances were favourable to positive recognition.
30. I have also considered the use of the names Dick, Dickie and Dickson in PW3's evidence. The evidence was given in Dholuo and translated into the language of the Court. Read as a whole, PW3 consistently attributed the stabbing to the person he knew as Dick or Dickie and identified that person in court as the accused. His references to the accused's twin show that he was alive to the existence of the twin and could distinguish the brothers. I have further considered the isolated recorded answer that he could not tell who the culprit was. That answer appears between his express statement, "I saw Dickie kill Vincent," and his further description of the knife and the stabbing. In the context of his evidence in chief, cross-examination and dock identification, I do not read that isolated answer as a withdrawal of his recognition. It was an answer arising from the compound questions and confusion over similar names.
31. The Court is mindful that not every inconsistency or discrepancy in the evidence is fatal to the prosecution's case. In Richard Munene v Republic [2018] KECA 186 (KLR), the Court of Appeal held that only inconsistencies which are substantial and fundamental to the principal issues, and which consequently create reasonable doubt, will entitle an accused person to their benefit. Minor discrepancies which neither affect the substance of the prosecution's case nor suggest deliberate untruthfulness may properly be disregarded. See also Erick Onyango Ondeng' v Republic [2014] KECA 523 (KLR) and Ahamad Abolfathi Mohammed & Another v Republic [2018] KECA 743 (KLR). In this case, the variations in names and nicknames do not displace the substance of PW3's recognition evidence and do not create a reasonable possibility that the twin was the assailant.
32. The reference to the deceased as Vincent Obisa or Vin also does not create doubt about the victim of the stabbing. On re-examination, PW3 explained that he had known the deceased from school as Vin. PW6 stated that the deceased was also known as Vinny. PW3 was one of the persons who took the stabbed man directly from the scene to Lwala Hospital, where he was pronounced dead. PW2, PW4 and PW5 proved that the body subsequently examined was that of Calvin Onyango Omollo. The evidence discloses one continuous transaction and one victim. The difference is in the name by which PW3 knew him, not in the identity of the person killed. The different descriptions of the bar as Kabegi, Uhuru or Huhuru likewise do not point to two incidents. The witnesses placed the confrontation at Mwata Centre and described the same fight, stabbing, journey to Lwala Hospital and death.
33. PW3 admitted that he had consumed alcohol and was a bit drunk. That admission called for caution but did not, by itself, make him incapable of observation. His account contained concrete details: the lighting, the participants, the movement outside, the pocket from which the knife was drawn, the nature of the knife, the part of the body struck, the deceased's fall and the immediate journey to hospital. He remained clear that he witnessed the stabbing and identified the accused. I find no basis in the evidence to conclude that his faculties were so impaired that his recognition was unreliable.
34. PW1 did not see the actual stabbing and his evidence cannot be used as direct identification of the assailant. It nevertheless corroborates the surrounding circumstances: the fight, the deceased's departure and return, the immediate report that he had been stabbed, the bleeding from the left chest, the electric security lighting, and the urgent journey to Lwala Hospital. PW5's medical findings of a single penetrating stab wound to the left chest, with laceration of the heart, objectively support PW3's account of a deliberate knife attack. PW3's lay reference to the left side of the stomach, rather than the precise medical description of the left chest, is not a material contradiction in the circumstances.
35. The absence of an identification parade does not weaken the prosecution case because this was a case of recognition. PW3 said he knew the accused before the incident and recognised him by sight and by the name by which he knew him. A parade would not have tested recognition already made from prior personal knowledge and would have served no useful purpose.
36. It was submitted that the failure to recover the murder weapon was fatal. I do not agree. The weapon of crime is not an ingredient of the offence, and its production was not indispensable where PW3 saw the accused draw and use the knife and the medical evidence independently established a penetrating stab wound. Forensic sampling is an important aid to investigations. However, failure to adduce forensic evidence is not fatal where the available direct evidence, tested against the objective medical and surrounding evidence, proves the case beyond reasonable doubt.
37. The accused's defence was that he was asleep in the lodging or shop area of the same premises. That was an alibi, and the burden remained on the prosecution to disprove it. In Victor Mwendwa Mulinge v Republic [2014] eKLR, the Court of Appeal restated that the burden of disproving an alibi lies on the prosecution, but that the court may weigh the alibi against the totality of the evidence to determine whether the prosecution has proved guilt beyond reasonable doubt. In this case, PW3's credible recognition evidence placed the accused at the scene throughout the confrontation and at the moment of the stabbing. DW2 was away in Homa Bay and could not confirm where the accused was at the material time. I find that the accused's denial was displaced by the prosecution evidence and does not raise a reasonable doubt.
38. I am therefore satisfied that this is not a case of mistaken identity. PW3 gave cogent evidence that he saw the accused stab the deceased. The accused was properly placed at the scene, and the prosecution proved beyond reasonable doubt that he was the person who inflicted the fatal stab wound.
39. On malice aforethought, it is trite that actus reus non facit reum nisi mens sit rea, meaning that the act itself does not constitute an offence unless it is accompanied by a guilty mind. Malice aforethought under section 206 of the Penal Code may be inferred from the nature of the weapon used, the part of the body targeted and the severity of the injuries inflicted. PW3 testified that the accused drew a long kitchen knife from his pocket and deliberately stabbed the deceased in the left chest. The blow penetrated the chest cavity and lacerated the heart. A knife is a lethal weapon; the chest and heart are vulnerable vital areas; and the force and placement of the blow were such that death or grievous harm was the probable consequence. Applying section 206(a) and (b) of the Penal Code and Tubere s/o Ochen, I find that malice aforethought was proved beyond reasonable doubt.
40. The information alleged that the accused acted jointly with others not before court. It was unnecessary to prove that allegation once the evidence established that the accused personally performed the act that caused death. Under section 20(1)(a) of the Penal Code, he was a principal offender.
41. On the whole of the evidence, I find that the prosecution proved beyond reasonable doubt that Calvin Onyango Omollo died from an unlawful stab wound inflicted by the accused, Dickson Kinaro Barongo, with malice aforethought. All the ingredients of murder under section 203 of the Penal Code were established.
Disposition
42. For the foregoing reasons, I find that the prosecution has proved the charge of murder against the accused beyond reasonable doubt.
43. The accused, Dickson Kinaro Barongo, is found guilty of the murder of Calvin Onyango Omollo contrary to section 203 as read with section 204 of the Penal Code and is hereby convicted in accordance with section 322(2) of the Criminal Procedure Code.
T.A ODERA
JUDGE
29.6.2026
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 29TH DAY OF JUNE 2026.
In the presence of:
Accused: Present
Mr Koima: For the State
Mr Mokaya: For the Accused
Court Assistant: Kipchirchir
Mr Koima: The State has no previous records against the accused.
Mr Mokaya: In mitigation, the prosecution has confirmed that the accused is a first offender. He is remorseful. We respectfully ask the Court to consider that he is 26 years old and is a student at Kisii Polytechnic. We seek leniency and a non-custodial sentence, and urge the Court to balance the principles of proportionality and dignity. We also seek consideration of section 333(2) of the Criminal Procedure Code and a pre-sentence report.
Mr Koima: The victim's views can be included in the social inquiry report.
Mr Mokaya: We shall seek time to make further submissions on the report.
Order: The accused shall be remanded in custody pending mitigation and sentence. A pre-sentence report, including a detailed victim impact statement, shall be filed. Mention on 22.7.2026.
T.A ODERA
JUDGE
29.6.2026