JUDGMENT
A. Introduction
1. The accused persons, Evans Omanga Zablon and Thomas Omweno Riang’a alias Omusangani, are charged with the 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 30th April 2023 at Kebere Sub-location, Kebere Location, in Gucha Sub-county within Kisii County, jointly with others not before court, they murdered Vincent Ongore Kombo, hereafter referred to as the deceased.
3. Each accused person denied the charge. The prosecution called six witnesses. At the close of the prosecution case, the Court found that a prima facie case had been established and placed both accused persons on their defence under section 306(2) of the Criminal Procedure Code.
4. The 1st accused gave sworn testimony and called two witnesses. The 2nd accused also gave sworn testimony and called one witness.
5. I have considered the prosecution evidence, the defence evidence, and the written submissions filed on behalf of the accused persons.
B. Prosecution Evidence
6. PW1, Elijah Mogaka Abuga, testified that he was 14 years old and lived at Nyagurumbasi. He stated that on 30th April 2023, he was at home when Omanga and Omusangani, the 1st and 2nd accused persons respectively, went to their home. They told him that they were taking him to the police because a motorcycle had been lost and that he and his uncle, Vincent Kombo, were suspects. PW1 stated that the accused persons took him to Ogembo Police Station, but they were informed that the officer handling the matter was not present and that they were asked return on the following day. They then went back home.
7. PW1 further testified that at about 9.00 pm on the same day, Omusangani and Omanga returned to his father’s home and found him together with the deceased. He stated that he identified them by their voices and by electric light from a bulb outside the house. They asked him and the deceased to accompany them to the police station to see the police officer.
8. According to PW1, they set off and while on the way, they met a group of about 15 boda boda riders including Kevin Onyinyo, Brian Maundu and Dickson Ongubo. The riders asked where the accused persons were taking them and accused replied that they were going to the police station. PW1 stated that the riders stopped the accused persons from taking them to the police station and demanded that PW1 and the deceased be left in their hands. He stated that the accused persons insisted on taking them to the police station and that a confrontation ensued between the accused persons and the riders. He further told this court that the riders overpowered accused and took them to the forest at Nyakorokoro and that the accused persons were chased away by the boda boda riders.
10. PW1 stated that while in the forest, the riders tied him and the deceased using wires and ropes and started beating them. He identified Brian, Dickson, Kevin and Silas Onsando as among the persons who assaulted them. He further stated that Kelvin strangled his uncle. On cross-examination, PW1 stated that Omusangani was not present in the forest and that his uncle was killed by a person he did not identify by name.
11. PW1 identified shoes, a sandal, binding wire, a rope and a belt recovered from the scene. He stated that the binding wire was used to strangle his uncle and that the rope was used to tie them at the scene. After the incident, he went home and reported the incident to his father.
12. PW2, Harun Abuga, testified that the deceased was his younger brother. On 30th April 2023 at about 10.00 pm, he was asleep when his son, PW1, woke him up. He noted that PW1 had injuries. PW1 reported to him that he had been assaulted together with his uncle, the deceased, after they were suspected of stealing a motorcycle, and that the scene was at Nyakorokoro.
13. PW2 went to look for the deceased that night but did not find him. In the morning, he heard that someone had been killed. He went to the scene and found the deceased lying facing upwards with injuries on the left shoulder and neck. He saw shoes, a belt, wire, a rope and his son’s shoe next to the body. He reported the matter to the police and later identified the body for post-mortem examination.
14. On cross-examination, PW2 stated that he did not know who took his son from home on the material day and did not know who killed his brother. He did not see any of the accused persons kill the deceased.
15. PW3, Sphinic Nyaboni, testified that the deceased was her husband. She stated that the 1st accused’s motorcycle had gone missing on 30th April 2023 and that at about 3.00 pm, four young men went to her house looking for the motorcycle and interrogated Mogaka. At night, she heard motorcycles entering the plot. She stated that the security lights were off and that she was locked inside the house.
16. PW3 testified that she heard the deceased say, ‘Omusangani, do not assault me, take me slowly.’ She stated that the people took the deceased and PW1 away. She asked Evans Omanga where they were taking them, and he told her that they were going for a talk and would return. She stated that Evans later told her that the deceased would return.
17. PW3 further stated that PW1 later returned with injuries and told her that the deceased had been taken away, tied to a tree and beaten. The following morning, she learnt that the deceased had been killed.
18. On cross-examination, PW3 stated that she did not see any of the persons outside her house on the material night because it was dark. She stated that although she knew Omusangani as Thomas, the 2nd accused, she did not see Thomas that night. She also stated that Evans did not leave with the said people and that she remained in the house of Evans as advised by one Caro. She stated that she did not know who killed the deceased and did not witness the killing.
19. PW4, Job Maela Onchonga, the Assistant Chief of Kebere Sub-location, testified that on 1st May 2023 at about 7.00 am, he received a call from Peter Omwega, a community policing officer, informing him that a body had been found near a river. He went to the scene and confirmed that a body was lying in a blue gum forest. He informed the OCS, and police officers visited the scene.
20. PW4 testified that members of the public identified the body as that of the deceased. He went to the deceased’s house and found the deceased’s wife. She told him that some people had taken the deceased from the house and that she had heard someone say, ‘Omusangani, do not kill me.’ PW4 stated that Omusangani was a nickname for the 2nd accused in the area.
21. On cross-examination, PW4 conceded that he did not witness the killing and that his evidence on the suspects was based on what he was told. He stated that Evans was not mentioned at the plot. He also stated that the scene had been visited by members of the public and was not intact.
22. PW5, Dr. Samora Ocharo, testified that he conducted a post-mortem examination on the body of the deceased. He noted bruises on the anterior neck, left shoulder, left anterior chest wall, hands and lower limbs. Internally, the tracheal rings were fractured. He formed the opinion that the cause of death was manual strangulation. He produced the post-mortem report as Pexh. 6.
23. PW6, Corporal William Bunuka, was the investigating officer. He testified that on 1st May 2023, he accompanied the OCS and other officers to the scene. He saw the body of a male adult next to a river in a bush. The body had bruises, particularly around the neck. He found a brown shoe, a black open shoe, a coloured belt and wires near the body.
24. PW6 testified that his investigations showed that the 1st accused had lost his motorcycle and had reported the matter to Ogembo Police Station. He stated that PW1 had been suspected of the theft and that the 1st accused allegedly called other boda boda riders who assaulted PW1. He further stated that later that night, the deceased was intercepted by persons he described as goons allegedly led by the 1st accused and that the 2nd accused made threatening remarks to the deceased.
25. On cross-examination, PW6 conceded that the accused persons were arrested by members of the public whose statements he did not record. He further conceded that PW3 was not a eye witness. PW6 stated that the 1st accused was not present where PW1 and the deceased were being beaten and that the 1st accused was at home. He also stated that although the 1st accused allegedly told him of his role, he had no supporting evidence. He admitted that, apart from PW1, nobody else witnessed the murder of the deceased.
C. Defence Evidence
26. The 1st accused, Evans Omanga Zablon, testified as DW1. He denied the charge. He stated that on 30th April 2023 at about 3.00 am, his father called him and asked why his motorcycle was not parked outside. He checked and confirmed that it was missing. He called PW1, who was a tenant in his father’s plot, and checked the gate which they noted had been broken. He stated that a crowd gathered and they followed tyre marks in search of the motorcycle.
27. The 1st accused stated that they recovered a different motorcycle abandoned on the road. He reported the loss of his motorcycle at Ogembo Police Station and was issued with an OB number. He then went to hospital to visit a church member who had been involved in an accident. He returned home at about 4.00 pm.
28. The 1st accused stated that on returning home, he found PW1 in the compound. He asked PW1 to accompany him to the police station to record a statement because PW1’s legs had mud. At the station, the officer who had handled the earlier report was absent and they were told to return the following day.
29. The 1st accused stated that he later returned home with John Miruka, DW3. He was with John, his wife and PW3. He denied calling any persons to his home or directing anyone to pick PW1 and the deceased. He stated that no telephone evidence was produced against him. He denied assaulting PW1 or forcing him to implicate the deceased and prayed to be acquitted.
30. On cross-examination, the 1st accused admitted that his motorcycle had been stolen and that he took PW1 to the police station because he suspected him after seeing mud on his legs. He denied interrogating or assaulting PW1 and denied suspecting the deceased.
31. Caroline Omanga, DW2, the wife of the 1st accused, testified in support of this case. She stated that the 1st accused returned home from hospital at about 4.00 pm on the material day and did not leave thereafter. She stated that PW3 was in her house. She denied seeing any persons outside the house as alleged by PW3. On cross-examination, she stated that she loved her husband and that she did not see the deceased that day.
32. John Kibandi Miruka, DW3, also testified in support of the 1st accused. He corroborated the 1st accused’s evidence on the missing motorcycle, the search, the report at the police station and the visit to hospital. He stated that he accompanied the 1st accused and PW1 to the police station and later returned with the 1st accused. He stated that he was in the house of the 1st accused that night with the 1st accused, Caroline and PW3. He did not see the 1st accused call anyone and did not see PW1 being picked by persons allegedly called by the 1st accused. On cross-examination, he stated that he could not tell what happened in the house of the 1st accused after 11.00 pm.
33. The 2nd accused, Thomas Riang’a Omweno alias Omusangani, testified on oath as DW4. He denied the charge. He stated that on 30th April 2023, he was at Ogembo and later joined Francis Nyabuto and another person at a club. He stated that he dropped them off and went home. He denied going to pick the deceased or PW1 and denied involvement in the deceased’s death.
34. On cross-examination, the 2nd accused stated that he was a boda boda rider and that the 1st accused was the chairperson of Sofa Set boda boda stage while he was the secretary. He stated that he did not know PW1 and PW3.
35. Lameck Ondiba, DW5, testified in support of the 2nd accused. He stated that he met the 2nd accused on 30th April 2023 at about 7.00 pm while with his friend Frank. The 2nd accused took them to a club at Ogembo at about 7.20 pm and they stayed there until about 9.30 pm. The 2nd accused later dropped him off at Omobiria at about 10.00 pm. On cross-examination, he stated that he did not know where the 2nd accused went after dropping him.
D. Submissions
36. Prosecution did not file written submissions, they relied on the evidence on record.
37. The defence filed written submissions dated 3rd April 2026. Counsel submitted that the prosecution had not proved the charge beyond reasonable doubt; that the evidence against the accused persons was founded on suspicion, that PW1 was the only alleged eyewitness, that the 1st accused was not present at the place where PW1 and the deceased were beaten, that PW3 and PW4 did not witness the killing; and that the evidence on identification and common intention was unsafe.
38. Counsel relied on, among other authorities, Sawe v Republic [2003] KLR 364; Republic v Daniel Musyoka Muasya & 2 others [2014] eKLR; Republic v Anthony Mugwanga & another [2011] eKLR; Republic v Kenya Chea Thoya [2005] eKLR; and Wamunga v Republic [1989] KLR 424.
E. Issues for Determination
39. The issues that arise for determination are : a. whether the death of Vincent Ongore Kombo was proved.
b. whether the death was caused by an unlawful act or omission.
c. whether the accused persons, or either of them, caused the death of the deceased;
d. and whether malice aforethought was proved.
F. Applicable Law
40. Section 203 of the Penal Code defines murder as follows:
Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
41. Section 204 of the Penal Code provides for the punishment for murder. Section 206 sets out the circumstances from which malice aforethought may be inferred, including an intention to cause death or grievous harm, or knowledge that the act causing death would probably cause death or grievous harm.
42. In Anthony Ndegwa Ngari v Republic [2014] eKLR, the Court of Appeal restated the ingredients of murder as proof of the death of the deceased; proof that the death was caused by an unlawful act or omission; proof that the accused person committed the unlawful act or omission; and proof of malice aforethought.
43. The burden of proof in criminal cases rests throughout on the prosecution. The accused person bears no burden to prove his innocence. The prosecution must prove the charge beyond reasonable doubt as was heled in the case of In Woolmington v Director of Public Prosecutions [1935] AC 462 , the House of Lords stated the “golden thread” of criminal law: that it is the duty of the prosecution to prove the prisoner’s guilt. The same principle has been repeatedly applied in Kenya, including in Pius Arap Maina v Republic [2013] eKLR , where the Court of Appeal reiterated that the prosecution must prove its case beyond a reasonable doubt.
48. On common intention, section 21 of the Penal Code provides that where two or more persons form a common intention to prosecute an unlawful purpose together, and in the prosecution of that purpose an offence is committed which was a probable consequence of that purpose, each is deemed to have committed the offence. Common intention may be inferred from conduct and surrounding circumstances, but it must be proved beyond reasonable doubt.
G. Analysis
i. Whether death and unlawful cause of death were proved
49. PW1, PW2, PW3, PW4 and PW6 all gave evidence touching on the recovery or identification of the deceased’s body. PW5 conducted the post-mortem examination and produced the post-mortem report. The cause of death was proved by the evidence of PW5, who found bruises on the anterior neck, peripheral cyanosis and fractured tracheal rings. He formed the opinion that the cause of death was manual strangulation.
50. Manual strangulation is an unlawful act unless justified by law. There was no evidence of any lawful justification. I therefore find that the death of the deceased and its unlawful cause were proved beyond reasonable doubt.
ii. Whether the accused persons caused the death
51. The most crucial issue herein is that of identification. The burden remained on the prosecution to prove beyond reasonable doubt that the accused persons, or either of them, caused the death of the deceased, either by their own acts or by a common intention with others not before court.
52. PW1 was the only witness who was present in the forest where the deceased was assaulted and fatally strangled. His evidence was therefore critical and required careful scrutiny.
53. PW1’s evidence linked the accused persons to the initial movement from the home towards the police station. He stated that the accused persons came to the home at about 9.00 pm, called him and the deceased outside and said they were going to the police station. He further stated that when they met boda boda riders on the way, the 1st accused informed the riders that they were headed to the police station.
54. However, PW1’s evidence on what happened thereafter is equally important. He stated that accused wanted to take them to the police station but the boda boda riders but the riders insisted on taking him and deceased away . He further stated that the boda boda riders took PW1 and the deceased to Nyakorokoro forest and that the accused persons were chased away.
55. At the forest, PW1 did not identify either accused person as among the persons who tied, assaulted or strangled the deceased. He identified Brian, Dickson, Kevin and Silas Onsando as among the persons who assaulted them. He stated that a person he referred to as Kelvin strangled his uncle. He also stated that Omusangani was not present in the forest. In cross-examination, he stated that his uncle was killed by a person he did not identify by name.
56. I have carefully considered the defence of accused and prosecutions case. The accused raised defences of alibi . Prosecution still had the burden of prove even when accused raises a defence of alibi as was held in the case of In Kiarie v Republic [1984] KLR 739 , the Court of Appeal held that an accused who raises an alibi does not assume the burden of proving it; the burden remains on the prosecution. The evidence of PW1, the only eyewitness at the scene, does not prove that either accused person was present at the place where the deceased was fatally assaulted and strangled. Instead, his evidence points to other persons as the actual assailants. His evidence also exonerates the accused persons from the fatal scene because he stated that the accused persons insisted on taking him and the deceased to the police station, but were overpowered by the boda boda riders, who took them to the forest and assaulted them.
58. PW2 did not witness the killing. His evidence proves the report made to him by PW1, the search for the deceased, the recovery of the body and the exhibits at the scene. In cross-examination, he candidly stated that he did not know who took his son from home and did not know who killed his brother. His evidence does not identify the accused persons as the killers.
59. PW3 stated that she heard the deceased mention the name ‘Omusangani’ and plead not to be assaulted. However, she stated in cross-examination that she did not see any of the persons outside because it was dark. She also stated that although she knew Omusangani as Thomas, she did not see Thomas that night. Further, she did not witness the killing. Her evidence may raise suspicion against the 2nd accused, but it does not prove that he participated in the fatal strangulation at the forest.
59. PW3 also stated that she asked Evans where the people were taking the deceased and PW1, and that Evans told her that they were going for a talk and would return. Pw1 The evidence of Pw3 may raise suspicion against the 1 st and 2nd accused, but it does not prove that they participated in the fatal strangulation at the forest. On identification, especially at night or by voice, the Court must exercise caution. The evidence of Pw3 may raise suspicion against the 1 st and 2nd accused, but it does not prove that they participated in the fatal strangulation at the forest.
60. PW4’s evidence was largely based on what he was told by PW3 and members of the public. He did not witness the removal of the deceased from the house or the assault at the forest. He conceded that Evans was not mentioned at the plot. His evidence is useful as to the recovery of the body and the arrest of the 2nd accused, but it does not prove the participation of either accused person in the fatal act.
61. PW6, the investigating officer, stated that the 1st accused led goons and that the 2nd accused threatened the deceased. However, much of that evidence was based on information received during investigations. PW6 conceded that the members of the public who arrested the accused persons did not record statements. He further conceded that he had no supporting evidence for the alleged role of the 1st accused. On cross-examination, he admitted that the 1st accused was not present where PW1 and the deceased were being beaten and that the 1st accused was at home. He also conceded that, apart from PW1, nobody else witnessed the murder.
62. The evidence of PW1 and that of PW6 were in material conflict on the participation of the accused persons in the assault. Whereas PW1, the only eyewitness at the forest, did not place either accused person at the fatal scene and instead identified other assailants, PW6 stated that the accused persons were involved. That contradiction goes to the root of the prosecution case.
63. The 1st accused denied involvement and gave an account of reporting the loss of his motorcycle, taking PW1 to the police station to record a statement, and later being at home. His evidence was supported in material respects by John Miruka. There were some inconsistencies between the evidence of Caroline and John on whether PW1 was in the compound. However, those inconsistencies do not cure the gaps in the prosecution case.
64. The 2nd accused gave an alibi that he was at a club and later dropped his companions at around 10.00 pm. His witness, Lameck Ondiba, supported that account up to about 10.00 pm, although he could not account for the 2nd accused thereafter. The 2nd accused was not required to prove his alibi. The burden remained on the prosecution to disprove it and to prove his guilt beyond reasonable doubt.
65. The prosecution evidence against the 2nd accused rested principally on the testimony that the deceased mentioned ‘Omusangani’ and on PW1’s evidence that Omusangani initially accompanied them. However, PW1’s own evidence was that Omusangani was not present in the forest where the fatal assault took place. In the circumstances, the evidence against the 2nd accused does not meet the standard required for a conviction.
66. The physical exhibits recovered at the scene were not linked to either accused person by forensic evidence. No DNA, fingerprints, call data, location data or other independent evidence was produced to show that either accused person handled the ropes, wires or other exhibits used in the assault. Forensic evidence is now the way to go as it as it provides objective , precise and reliable evidence which assist courts to arrive at just determination of the issues before them . The exhibits produced herein prove that an assault occurred.
67. The prosecution did not call or arrest Brian, Dickson, Kevin, Silas or any of the other boda boda riders identified by PW1 as having participated in the assault. The Court appreciates that some suspects may have been at large. However, where the only direct witness identified other persons as the actual assailants, the absence of evidence from or against those persons leaves an evidentiary gap that cannot be filled by conjecture.
68. The prosecution also did not call any of the members of the public who arrested the accused persons or who allegedly mentioned them adversely. PW6 conceded that those members of the public did not record statements. The arrest of the accused persons by members of the public therefore did not provide independent proof of their involvement.
69. The prosecution also sought to rely on circumstantial evidence . The law is clear that where the prosecution relies on circumstantial evidence, the principles in Kipkering Arap Koske & Another v Republic (1949) 16 EACA 135, Sawe v Republic [2003] KLR 364 and Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990, apply. The inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than guilt. There must be no other co-existing circumstances weakening or destroying the inference of guilt. Polished version:
70. The principles in Kipkering Arap Koske & Another v Republic (1949) 16 EACA 135, Sawe v Republic [2003] KLR 364 and Abanga alias Onyango v Republic , Criminal Appeal No. 32 of 1990, apply. The inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. Further, there must be no other co-existing circumstances which weaken or destroy the inference of guilt.
71. In the instant case, the evidence of PW3 that the accused took the deceased away was materially weakened by the evidence of PW1, who stated that it was the boda boda riders who took them away despite protests by the accused. PW1’s evidence therefore introduces another reasonable hypothesis as to how the deceased may have met his death. It weakens the prosecution’s theory that the accused was the last person in control of the deceased and points away from the accused, raising the possibility of involvement by the boda boda riders. Accordingly, the circumstantial evidence does not meet the strict threshold required to form basis of a conviction.
72. In view of the foregoing, the evidence of prosecution and the defence of alibi raised by accused , the evidence on record did not place the accused at the scene of the assault beyond any reasonable doubt as required by law.
iii. Whether common intention was proved
73. The information charged the accused persons jointly with others not before court. The Court must therefore consider whether liability can attach under the doctrine of common intention.
74. For common intention to apply, the prosecution must prove that the accused persons shared a common unlawful purpose with the persons who assaulted and strangled the deceased, and that the death was a probable consequence of that purpose.
75. On the evidence of PW1, the accused persons said they were taking PW1 and the deceased to the police station. When the boda boda riders resisted that course, the accused persons insisted on taking them to the police. PW1 further stated that the accused persons were chased away by the boda boda riders before the fatal assault in the forest.
76. That evidence is inconsistent with common intention between the accused persons and the boda boda riders to assault or kill the deceased. The conduct of the boda boda riders in taking over PW1 and the deceased, taking them to the forest and allegedly chasing away the accused persons points to an intervening action by the riders, not to a common intention with the accused persons.
77. The prosecution did not prove that either accused person called, organised, directed or controlled the boda boda riders who committed the fatal assault. PW6 alleged that the 1st accused called some riders, but he conceded that he had no supporting evidence. No mobile phone records were produced to support that allegation. No rider was called to confirm that the accused persons summoned or directed them. The alleged chain of command was therefore not proved.
78. Although it emerged that the accused persons initially took PW1 and the deceased from the home, the prosecution was still required to prove that they shared a common unlawful purpose with the persons who later tied, beat and strangled the deceased. That burden was not discharged.
79. I therefore find that common intention was not proved beyond reasonable doubt.
iv. Whether malice aforethought was proved
80. The nature of the injuries and the cause of death show that the person or persons who manually strangled the deceased acted with malice aforethought within the meaning of section 206 of the Penal Code. Strangling a person by the neck and fracturing the tracheal rings demonstrates an intention to cause death or grievous harm, or knowledge that death or grievous harm would probably result.
81. However, accused were not placed at the scene and common intention was not established against them beyond reasonable doubt. Malice after thought therefore does not arise on their part.
H. Conclusion and Orders
82. I find that the prosecution proved that Vincent Ongore Kombo died and that his death was caused by the unlawful act of manual strangulation.
83. I further find that the prosecution did not prove beyond reasonable doubt that Evans Omanga Zablon or Thomas Omweno Riang’a alias Omusangani caused the death of the deceased, participated in the fatal assault, or shared a common intention with the persons who assaulted and strangled the deceased.
84. The evidence raises suspicion against the accused persons, particularly arising from the missing motorcycle and the events leading to PW1 and the deceased being re
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A. Introduction
1. The accused persons, Evans Omanga Zablon and Thomas Omweno Riang’a alias Omusangani, are charged with the 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 30th April 2023 at Kebere Sub-location, Kebere Location, in Gucha Sub-county within Kisii County, jointly with others not before court, they murdered Vincent Ongore Kombo, hereafter referred to as the deceased.
3. Each accused person denied the charge. The prosecution called six witnesses. At the close of the prosecution case, the Court found that a prima facie case had been established and placed both accused persons on their defence under section 306(2) of the Criminal Procedure Code.
4. The 1st accused gave sworn testimony and called two witnesses. The 2nd accused also gave sworn testimony and called one witness.
5. I have considered the prosecution evidence, the defence evidence, and the written submissions filed on behalf of the accused persons.
B. Prosecution Evidence
6. PW1, Elijah Mogaka Abuga, testified that he was 14 years old and lived at Nyagurumbasi. He stated that on 30th April 2023, he was at home when Omanga and Omusangani, the 1st and 2nd accused persons respectively, went to their home. They told him that they were taking him to the police because a motorcycle had been lost and that he and his uncle, Vincent Kombo, were suspects. PW1 stated that the accused persons took him to Ogembo Police Station, but they were informed that the officer handling the matter was not present and that they were asked return on the following day. They then went back home.
7. PW1 further testified that at about 9.00 pm on the same day, Omusangani and Omanga returned to his father’s home and found him together with the deceased. He stated that he identified them by their voices and by electric light from a bulb outside the house. They asked him and the deceased to accompany them to the police station to see the police officer.
8. According to PW1, they set off and while on the way, they met a group of about 15 boda boda riders including Kevin Onyinyo, Brian Maundu and Dickson Ongubo. The riders asked where the accused persons were taking them and accused replied that they were going to the police station. PW1 stated that the riders stopped the accused persons from taking them to the police station and demanded that PW1 and the deceased be left in their hands. He stated that the accused persons insisted on taking them to the police station and that a confrontation ensued between the accused persons and the riders. He further told this court that the riders overpowered accused and took them to the forest at Nyakorokoro and that the accused persons were chased away by the boda boda riders.
10. PW1 stated that while in the forest, the riders tied him and the deceased using wires and ropes and started beating them. He identified Brian, Dickson, Kevin and Silas Onsando as among the persons who assaulted them. He further stated that Kelvin strangled his uncle. On cross-examination, PW1 stated that Omusangani was not present in the forest and that his uncle was killed by a person he did not identify by name.
11. PW1 identified shoes, a sandal, binding wire, a rope and a belt recovered from the scene. He stated that the binding wire was used to strangle his uncle and that the rope was used to tie them at the scene. After the incident, he went home and reported the incident to his father.
12. PW2, Harun Abuga, testified that the deceased was his younger brother. On 30th April 2023 at about 10.00 pm, he was asleep when his son, PW1, woke him up. He noted that PW1 had injuries. PW1 reported to him that he had been assaulted together with his uncle, the deceased, after they were suspected of stealing a motorcycle, and that the scene was at Nyakorokoro.
13. PW2 went to look for the deceased that night but did not find him. In the morning, he heard that someone had been killed. He went to the scene and found the deceased lying facing upwards with injuries on the left shoulder and neck. He saw shoes, a belt, wire, a rope and his son’s shoe next to the body. He reported the matter to the police and later identified the body for post-mortem examination.
14. On cross-examination, PW2 stated that he did not know who took his son from home on the material day and did not know who killed his brother. He did not see any of the accused persons kill the deceased.
15. PW3, Sphinic Nyaboni, testified that the deceased was her husband. She stated that the 1st accused’s motorcycle had gone missing on 30th April 2023 and that at about 3.00 pm, four young men went to her house looking for the motorcycle and interrogated Mogaka. At night, she heard motorcycles entering the plot. She stated that the security lights were off and that she was locked inside the house.
16. PW3 testified that she heard the deceased say, ‘Omusangani, do not assault me, take me slowly.’ She stated that the people took the deceased and PW1 away. She asked Evans Omanga where they were taking them, and he told her that they were going for a talk and would return. She stated that Evans later told her that the deceased would return.
17. PW3 further stated that PW1 later returned with injuries and told her that the deceased had been taken away, tied to a tree and beaten. The following morning, she learnt that the deceased had been killed.
18. On cross-examination, PW3 stated that she did not see any of the persons outside her house on the material night because it was dark. She stated that although she knew Omusangani as Thomas, the 2nd accused, she did not see Thomas that night. She also stated that Evans did not leave with the said people and that she remained in the house of Evans as advised by one Caro. She stated that she did not know who killed the deceased and did not witness the killing.
19. PW4, Job Maela Onchonga, the Assistant Chief of Kebere Sub-location, testified that on 1st May 2023 at about 7.00 am, he received a call from Peter Omwega, a community policing officer, informing him that a body had been found near a river. He went to the scene and confirmed that a body was lying in a blue gum forest. He informed the OCS, and police officers visited the scene.
20. PW4 testified that members of the public identified the body as that of the deceased. He went to the deceased’s house and found the deceased’s wife. She told him that some people had taken the deceased from the house and that she had heard someone say, ‘Omusangani, do not kill me.’ PW4 stated that Omusangani was a nickname for the 2nd accused in the area.
21. On cross-examination, PW4 conceded that he did not witness the killing and that his evidence on the suspects was based on what he was told. He stated that Evans was not mentioned at the plot. He also stated that the scene had been visited by members of the public and was not intact.
22. PW5, Dr. Samora Ocharo, testified that he conducted a post-mortem examination on the body of the deceased. He noted bruises on the anterior neck, left shoulder, left anterior chest wall, hands and lower limbs. Internally, the tracheal rings were fractured. He formed the opinion that the cause of death was manual strangulation. He produced the post-mortem report as Pexh. 6.
23. PW6, Corporal William Bunuka, was the investigating officer. He testified that on 1st May 2023, he accompanied the OCS and other officers to the scene. He saw the body of a male adult next to a river in a bush. The body had bruises, particularly around the neck. He found a brown shoe, a black open shoe, a coloured belt and wires near the body.
24. PW6 testified that his investigations showed that the 1st accused had lost his motorcycle and had reported the matter to Ogembo Police Station. He stated that PW1 had been suspected of the theft and that the 1st accused allegedly called other boda boda riders who assaulted PW1. He further stated that later that night, the deceased was intercepted by persons he described as goons allegedly led by the 1st accused and that the 2nd accused made threatening remarks to the deceased.
25. On cross-examination, PW6 conceded that the accused persons were arrested by members of the public whose statements he did not record. He further conceded that PW3 was not a eye witness. PW6 stated that the 1st accused was not present where PW1 and the deceased were being beaten and that the 1st accused was at home. He also stated that although the 1st accused allegedly told him of his role, he had no supporting evidence. He admitted that, apart from PW1, nobody else witnessed the murder of the deceased.
C. Defence Evidence
26. The 1st accused, Evans Omanga Zablon, testified as DW1. He denied the charge. He stated that on 30th April 2023 at about 3.00 am, his father called him and asked why his motorcycle was not parked outside. He checked and confirmed that it was missing. He called PW1, who was a tenant in his father’s plot, and checked the gate which they noted had been broken. He stated that a crowd gathered and they followed tyre marks in search of the motorcycle.
27. The 1st accused stated that they recovered a different motorcycle abandoned on the road. He reported the loss of his motorcycle at Ogembo Police Station and was issued with an OB number. He then went to hospital to visit a church member who had been involved in an accident. He returned home at about 4.00 pm.
28. The 1st accused stated that on returning home, he found PW1 in the compound. He asked PW1 to accompany him to the police station to record a statement because PW1’s legs had mud. At the station, the officer who had handled the earlier report was absent and they were told to return the following day.
29. The 1st accused stated that he later returned home with John Miruka, DW3. He was with John, his wife and PW3. He denied calling any persons to his home or directing anyone to pick PW1 and the deceased. He stated that no telephone evidence was produced against him. He denied assaulting PW1 or forcing him to implicate the deceased and prayed to be acquitted.
30. On cross-examination, the 1st accused admitted that his motorcycle had been stolen and that he took PW1 to the police station because he suspected him after seeing mud on his legs. He denied interrogating or assaulting PW1 and denied suspecting the deceased.
31. Caroline Omanga, DW2, the wife of the 1st accused, testified in support of this case. She stated that the 1st accused returned home from hospital at about 4.00 pm on the material day and did not leave thereafter. She stated that PW3 was in her house. She denied seeing any persons outside the house as alleged by PW3. On cross-examination, she stated that she loved her husband and that she did not see the deceased that day.
32. John Kibandi Miruka, DW3, also testified in support of the 1st accused. He corroborated the 1st accused’s evidence on the missing motorcycle, the search, the report at the police station and the visit to hospital. He stated that he accompanied the 1st accused and PW1 to the police station and later returned with the 1st accused. He stated that he was in the house of the 1st accused that night with the 1st accused, Caroline and PW3. He did not see the 1st accused call anyone and did not see PW1 being picked by persons allegedly called by the 1st accused. On cross-examination, he stated that he could not tell what happened in the house of the 1st accused after 11.00 pm.
33. The 2nd accused, Thomas Riang’a Omweno alias Omusangani, testified on oath as DW4. He denied the charge. He stated that on 30th April 2023, he was at Ogembo and later joined Francis Nyabuto and another person at a club. He stated that he dropped them off and went home. He denied going to pick the deceased or PW1 and denied involvement in the deceased’s death.
34. On cross-examination, the 2nd accused stated that he was a boda boda rider and that the 1st accused was the chairperson of Sofa Set boda boda stage while he was the secretary. He stated that he did not know PW1 and PW3.
35. Lameck Ondiba, DW5, testified in support of the 2nd accused. He stated that he met the 2nd accused on 30th April 2023 at about 7.00 pm while with his friend Frank. The 2nd accused took them to a club at Ogembo at about 7.20 pm and they stayed there until about 9.30 pm. The 2nd accused later dropped him off at Omobiria at about 10.00 pm. On cross-examination, he stated that he did not know where the 2nd accused went after dropping him.
D. Submissions
36. Prosecution did not file written submissions, they relied on the evidence on record.
37. The defence filed written submissions dated 3rd April 2026. Counsel submitted that the prosecution had not proved the charge beyond reasonable doubt; that the evidence against the accused persons was founded on suspicion, that PW1 was the only alleged eyewitness, that the 1st accused was not present at the place where PW1 and the deceased were beaten, that PW3 and PW4 did not witness the killing; and that the evidence on identification and common intention was unsafe.
38. Counsel relied on, among other authorities, Sawe v Republic [2003] KLR 364; Republic v Daniel Musyoka Muasya & 2 others [2014] eKLR; Republic v Anthony Mugwanga & another [2011] eKLR; Republic v Kenya Chea Thoya [2005] eKLR; and Wamunga v Republic [1989] KLR 424.
E. Issues for Determination
39. The issues that arise for determination are : a. whether the death of Vincent Ongore Kombo was proved.
b. whether the death was caused by an unlawful act or omission.
c. whether the accused persons, or either of them, caused the death of the deceased;
d. and whether malice aforethought was proved.
F. Applicable Law
40. Section 203 of the Penal Code defines murder as follows:
Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
41. Section 204 of the Penal Code provides for the punishment for murder. Section 206 sets out the circumstances from which malice aforethought may be inferred, including an intention to cause death or grievous harm, or knowledge that the act causing death would probably cause death or grievous harm.
42. In Anthony Ndegwa Ngari v Republic [2014] eKLR, the Court of Appeal restated the ingredients of murder as proof of the death of the deceased; proof that the death was caused by an unlawful act or omission; proof that the accused person committed the unlawful act or omission; and proof of malice aforethought.
43. The burden of proof in criminal cases rests throughout on the prosecution. The accused person bears no burden to prove his innocence. The prosecution must prove the charge beyond reasonable doubt as was heled in the case of In Woolmington v Director of Public Prosecutions [1935] AC 462 , the House of Lords stated the “golden thread” of criminal law: that it is the duty of the prosecution to prove the prisoner’s guilt. The same principle has been repeatedly applied in Kenya, including in Pius Arap Maina v Republic [2013] eKLR , where the Court of Appeal reiterated that the prosecution must prove its case beyond a reasonable doubt.
48. On common intention, section 21 of the Penal Code provides that where two or more persons form a common intention to prosecute an unlawful purpose together, and in the prosecution of that purpose an offence is committed which was a probable consequence of that purpose, each is deemed to have committed the offence. Common intention may be inferred from conduct and surrounding circumstances, but it must be proved beyond reasonable doubt.
G. Analysis
i. Whether death and unlawful cause of death were proved
49. PW1, PW2, PW3, PW4 and PW6 all gave evidence touching on the recovery or identification of the deceased’s body. PW5 conducted the post-mortem examination and produced the post-mortem report. The cause of death was proved by the evidence of PW5, who found bruises on the anterior neck, peripheral cyanosis and fractured tracheal rings. He formed the opinion that the cause of death was manual strangulation.
50. Manual strangulation is an unlawful act unless justified by law. There was no evidence of any lawful justification. I therefore find that the death of the deceased and its unlawful cause were proved beyond reasonable doubt.
ii. Whether the accused persons caused the death
51. The most crucial issue herein is that of identification. The burden remained on the prosecution to prove beyond reasonable doubt that the accused persons, or either of them, caused the death of the deceased, either by their own acts or by a common intention with others not before court.
52. PW1 was the only witness who was present in the forest where the deceased was assaulted and fatally strangled. His evidence was therefore critical and required careful scrutiny.
53. PW1’s evidence linked the accused persons to the initial movement from the home towards the police station. He stated that the accused persons came to the home at about 9.00 pm, called him and the deceased outside and said they were going to the police station. He further stated that when they met boda boda riders on the way, the 1st accused informed the riders that they were headed to the police station.
54. However, PW1’s evidence on what happened thereafter is equally important. He stated that accused wanted to take them to the police station but the boda boda riders but the riders insisted on taking him and deceased away . He further stated that the boda boda riders took PW1 and the deceased to Nyakorokoro forest and that the accused persons were chased away.
55. At the forest, PW1 did not identify either accused person as among the persons who tied, assaulted or strangled the deceased. He identified Brian, Dickson, Kevin and Silas Onsando as among the persons who assaulted them. He stated that a person he referred to as Kelvin strangled his uncle. He also stated that Omusangani was not present in the forest. In cross-examination, he stated that his uncle was killed by a person he did not identify by name.
56. I have carefully considered the defence of accused and prosecutions case. The accused raised defences of alibi . Prosecution still had the burden of prove even when accused raises a defence of alibi as was held in the case of In Kiarie v Republic [1984] KLR 739 , the Court of Appeal held that an accused who raises an alibi does not assume the burden of proving it; the burden remains on the prosecution. The evidence of PW1, the only eyewitness at the scene, does not prove that either accused person was present at the place where the deceased was fatally assaulted and strangled. Instead, his evidence points to other persons as the actual assailants. His evidence also exonerates the accused persons from the fatal scene because he stated that the accused persons insisted on taking him and the deceased to the police station, but were overpowered by the boda boda riders, who took them to the forest and assaulted them.
58. PW2 did not witness the killing. His evidence proves the report made to him by PW1, the search for the deceased, the recovery of the body and the exhibits at the scene. In cross-examination, he candidly stated that he did not know who took his son from home and did not know who killed his brother. His evidence does not identify the accused persons as the killers.
59. PW3 stated that she heard the deceased mention the name ‘Omusangani’ and plead not to be assaulted. However, she stated in cross-examination that she did not see any of the persons outside because it was dark. She also stated that although she knew Omusangani as Thomas, she did not see Thomas that night. Further, she did not witness the killing. Her evidence may raise suspicion against the 2nd accused, but it does not prove that he participated in the fatal strangulation at the forest.
59. PW3 also stated that she asked Evans where the people were taking the deceased and PW1, and that Evans told her that they were going for a talk and would return. Pw1 The evidence of Pw3 may raise suspicion against the 1 st and 2nd accused, but it does not prove that they participated in the fatal strangulation at the forest. On identification, especially at night or by voice, the Court must exercise caution. The evidence of Pw3 may raise suspicion against the 1 st and 2nd accused, but it does not prove that they participated in the fatal strangulation at the forest.
60. PW4’s evidence was largely based on what he was told by PW3 and members of the public. He did not witness the removal of the deceased from the house or the assault at the forest. He conceded that Evans was not mentioned at the plot. His evidence is useful as to the recovery of the body and the arrest of the 2nd accused, but it does not prove the participation of either accused person in the fatal act.
61. PW6, the investigating officer, stated that the 1st accused led goons and that the 2nd accused threatened the deceased. However, much of that evidence was based on information received during investigations. PW6 conceded that the members of the public who arrested the accused persons did not record statements. He further conceded that he had no supporting evidence for the alleged role of the 1st accused. On cross-examination, he admitted that the 1st accused was not present where PW1 and the deceased were being beaten and that the 1st accused was at home. He also conceded that, apart from PW1, nobody else witnessed the murder.
62. The evidence of PW1 and that of PW6 were in material conflict on the participation of the accused persons in the assault. Whereas PW1, the only eyewitness at the forest, did not place either accused person at the fatal scene and instead identified other assailants, PW6 stated that the accused persons were involved. That contradiction goes to the root of the prosecution case.
63. The 1st accused denied involvement and gave an account of reporting the loss of his motorcycle, taking PW1 to the police station to record a statement, and later being at home. His evidence was supported in material respects by John Miruka. There were some inconsistencies between the evidence of Caroline and John on whether PW1 was in the compound. However, those inconsistencies do not cure the gaps in the prosecution case.
64. The 2nd accused gave an alibi that he was at a club and later dropped his companions at around 10.00 pm. His witness, Lameck Ondiba, supported that account up to about 10.00 pm, although he could not account for the 2nd accused thereafter. The 2nd accused was not required to prove his alibi. The burden remained on the prosecution to disprove it and to prove his guilt beyond reasonable doubt.
65. The prosecution evidence against the 2nd accused rested principally on the testimony that the deceased mentioned ‘Omusangani’ and on PW1’s evidence that Omusangani initially accompanied them. However, PW1’s own evidence was that Omusangani was not present in the forest where the fatal assault took place. In the circumstances, the evidence against the 2nd accused does not meet the standard required for a conviction.
66. The physical exhibits recovered at the scene were not linked to either accused person by forensic evidence. No DNA, fingerprints, call data, location data or other independent evidence was produced to show that either accused person handled the ropes, wires or other exhibits used in the assault. Forensic evidence is now the way to go as it as it provides objective , precise and reliable evidence which assist courts to arrive at just determination of the issues before them . The exhibits produced herein prove that an assault occurred.
67. The prosecution did not call or arrest Brian, Dickson, Kevin, Silas or any of the other boda boda riders identified by PW1 as having participated in the assault. The Court appreciates that some suspects may have been at large. However, where the only direct witness identified other persons as the actual assailants, the absence of evidence from or against those persons leaves an evidentiary gap that cannot be filled by conjecture.
68. The prosecution also did not call any of the members of the public who arrested the accused persons or who allegedly mentioned them adversely. PW6 conceded that those members of the public did not record statements. The arrest of the accused persons by members of the public therefore did not provide independent proof of their involvement.
69. The prosecution also sought to rely on circumstantial evidence . The law is clear that where the prosecution relies on circumstantial evidence, the principles in Kipkering Arap Koske & Another v Republic (1949) 16 EACA 135, Sawe v Republic [2003] KLR 364 and Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990, apply. The inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than guilt. There must be no other co-existing circumstances weakening or destroying the inference of guilt. Polished version:
70. The principles in Kipkering Arap Koske & Another v Republic (1949) 16 EACA 135, Sawe v Republic [2003] KLR 364 and Abanga alias Onyango v Republic , Criminal Appeal No. 32 of 1990, apply. The inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. Further, there must be no other co-existing circumstances which weaken or destroy the inference of guilt.
71. In the instant case, the evidence of PW3 that the accused took the deceased away was materially weakened by the evidence of PW1, who stated that it was the boda boda riders who took them away despite protests by the accused. PW1’s evidence therefore introduces another reasonable hypothesis as to how the deceased may have met his death. It weakens the prosecution’s theory that the accused was the last person in control of the deceased and points away from the accused, raising the possibility of involvement by the boda boda riders. Accordingly, the circumstantial evidence does not meet the strict threshold required to form basis of a conviction.
72. In view of the foregoing, the evidence of prosecution and the defence of alibi raised by accused , the evidence on record did not place the accused at the scene of the assault beyond any reasonable doubt as required by law.
iii. Whether common intention was proved
73. The information charged the accused persons jointly with others not before court. The Court must therefore consider whether liability can attach under the doctrine of common intention.
74. For common intention to apply, the prosecution must prove that the accused persons shared a common unlawful purpose with the persons who assaulted and strangled the deceased, and that the death was a probable consequence of that purpose.
75. On the evidence of PW1, the accused persons said they were taking PW1 and the deceased to the police station. When the boda boda riders resisted that course, the accused persons insisted on taking them to the police. PW1 further stated that the accused persons were chased away by the boda boda riders before the fatal assault in the forest.
76. That evidence is inconsistent with common intention between the accused persons and the boda boda riders to assault or kill the deceased. The conduct of the boda boda riders in taking over PW1 and the deceased, taking them to the forest and allegedly chasing away the accused persons points to an intervening action by the riders, not to a common intention with the accused persons.
77. The prosecution did not prove that either accused person called, organised, directed or controlled the boda boda riders who committed the fatal assault. PW6 alleged that the 1st accused called some riders, but he conceded that he had no supporting evidence. No mobile phone records were produced to support that allegation. No rider was called to confirm that the accused persons summoned or directed them. The alleged chain of command was therefore not proved.
78. Although it emerged that the accused persons initially took PW1 and the deceased from the home, the prosecution was still required to prove that they shared a common unlawful purpose with the persons who later tied, beat and strangled the deceased. That burden was not discharged.
79. I therefore find that common intention was not proved beyond reasonable doubt.
iv. Whether malice aforethought was proved
80. The nature of the injuries and the cause of death show that the person or persons who manually strangled the deceased acted with malice aforethought within the meaning of section 206 of the Penal Code. Strangling a person by the neck and fracturing the tracheal rings demonstrates an intention to cause death or grievous harm, or knowledge that death or grievous harm would probably result.
81. However, accused were not placed at the scene and common intention was not established against them beyond reasonable doubt. Malice after thought therefore does not arise on their part.
H. Conclusion and Orders
82. I find that the prosecution proved that Vincent Ongore Kombo died and that his death was caused by the unlawful act of manual strangulation.
83. I further find that the prosecution did not prove beyond reasonable doubt that Evans Omanga Zablon or Thomas Omweno Riang’a alias Omusangani caused the death of the deceased, participated in the fatal assault, or shared a common intention with the persons who assaulted and strangled the deceased.
84. The evidence raises suspicion against the accused persons, particularly arising from the missing motorcycle and the events leading to PW1 and the deceased being re
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