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JudgmentThe Republic VS EVANS OMONDI OUMA11 min read

The Republic VS EVANS OMONDI OUMA

High Court at Kisumu High Court · · M.S.Shariff


  1. The accused was arraigned for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on the night of 26/10/2020 at Achingure village in Nyakach sub-county within Kisumu County murdered one Mark Otieno Minudi.
  2. Upon arraignment, the accused denied the charges and the matter proceeded to hearing with witnesses testifying as follows;
  3. PW-1 Peter Minondi Matinde, the deceased’s father stated that on the morning of 26th October 2020, the deceased was to go to school early. That when he called the deceased twice in vain, he sent his grandson Bravin Paul Ojwang. The said grandson informed him that the deceased was unconscious and the house in a mess. He sent the deceased’s mother, one Felesia who returned with the same report as the grandson’s.
  4. When he went, he found the deceased unconscious and neighbours came whereupon they took him to hospital where a CT Scan showed the deceased had a fractured skull. The deceased passed on the following morning. That the deceased used to reside with the accused and they were the only occupants in that house.
  5. In cross-examination, he stated that the deceased did not speak from the time he saw him. That he could walk for a short distance with support. That he did not find the accused at the house that morning. That the deceased was not treated at Nyabondo.  
  6. PW-2 Felicia Awuor Ajwang, the deceased’s mother stated that on the material day, the deceased had not woken up by 7 am yet he was suppose to be at school. That she sent her grandson Bravin to check at her brother in-law’s house where the deceased used to sleep. She came back to her house and went with her husband to the house where the deceased slept.
  7. That they found the house in a mess as the books were scattered all over. She stated that the deceased was taken to hospital and passed on the following day.
  8. In cross-examination, she stated that the deceased used to sleep with accused for sometime. That he had never seen the accused beat the deceased before that date.
  9. PW-3 Joseph Ochola Matinde the accused’s brother stated that the deceased and the accused used to stay together in his house as he had installed solar light so that the deceased could study therefrom. That he received a call on 27/10/2020 that the deceased had been beaten by the accused.
  10. In cross-examination, he stated that he had never asked the deceased to move out of his house even though he had not granted permission for him to live in his house.
  11. PW-4, Manyala Matinde Ogut stated that the accused came to his house on 25/10/2020at about 10.45 pm telling him that Joseph Ochola wanted some blood. That he could not get Ochola on phone as there were network issues.
  12. That the following morning, he received some money from Ochola’s wife to buy some airtime. Later, PW-1 called him informing that the deceased was unconscious. He proceeded to the scene and found the deceased unconscious and was taken to hospital.
  13. In cross-examination, he stated that he had known the deceased and accused from their childhood and had never heard them involved in violent incidences.
  14. PW-5 Dr. Charles Oduor, a medical Officer at Jaramogi Oginga Odinga Teaching and Referral Hospital testified and produced a post mortem report which he had filled. According to him, the cause of death was severe head injury due to assault using a blunt object.
  15. In cross-examination, he stated that he could not tell the direction of the source of the striking force.
  16. PW-6 No. 91590 P.C Felix Koimoye attached to D.C.I Nyakach stated he received a report from PW-1 and started investigations by visiting the scene where he recovered the weapon of murder, a stick broken into 2 pieces. That the accused was rescued from a mob at Kolonye Trading Centre and charged accordingly.
  17. In cross examination, he stated that nobody had heard the commotion though PW-4 had seen the accused going into the house the deceased was sleeping in. The accused also informed PW-4 that he had beaten the deceased.
  18. By a ruling of this court, the prosecution was found to have established a prima facie case and the accused was accordingly put on his defence and elected to give sworn testimony.
  19. He stated that on 26/10/2020, he woke up and went to work at Nyakach Polytechnic and informed Mark Otieno that he would see him in the evening. Later after work, he met his grandmother Slesia Matinda who inquired from him as to what had happened to Mark, and he informed her  that he was clueless as the deceased had the previous night attended a disco matanga.
  20. The accused testified that he then attempted to go and make a report to the police but a mob chased him and he then ran and took refuge in a church where he spent the night.  The following morning, he maintained that he could not report at Kodinyo Police Station as the police officers at the front desk were drunk. That in the cause of the morning, the mob caught up with him and dragged him to the police station where he was arrested and charged. He denied killing the deceased.
  21. In cross-examination, he confirmed he had lived with the deceased in the same house for 3 years. That it was his grandmother Felicia who informed him of Mark’s death. That he decided to report to the police as he wanted to defend himself. He denied that he had gone to PW-4’s house on 25/10/2020 with a panga.
  22. At the close of hearing, the defence opted to file written submissions. The accused admits the fact of death as shown and proved  by PW1, PW 2, PW 3, PW 4, PW 5 as well as PW 6 and a postmortem report.
  23. On the issue of whether the accused committed the unlawful act which caused the deceased’s death, the accused submits that he did not commit the offence in that the prosecution could not prove the offence as all the witnesses did not see him committing the offence but found the deceased in a state of shock and the deceased did not mention the accused. Accused maintained that the evidence against him is circumstantial.
  24. On the issue of whether the accused had malice aforethought, the accused submits that the deceased and him had no bad blood between them and that in fact, they had been sleeping in the same house for more than 3 years without a quarrel. The authorities in of Roba Galma Wario Vs Republic [2015] eKLR and Nzuki Vs Republic [1993] KLR 171 have been cited in support.

Analysis and determination.

  1. This being a charge of murder, the requisite ingredients to be established by the prosecution as provided by Section 203 of the Penal Code are; (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased; (c) and that the accused had harboured malice aforethought.
  2. The fact of death is not challenged by the defence as it was ably proved by the testimony of the witnesses herein which when taken together with the postmortem report sufficiently proves the death of the deceased.
  3. The other ingredient to be established is whether it was the accused who committed the unlawful act which caused death of the deceased. The evidence adduced is that the deceased used to sleep with the deceased in the house of their uncle PW3 Joseph Ochola Matinde.  The accused had gone to the house of his uncle Manyala Matinde Ogut at 10.45 pm on 25th October 2020 and had informed him that his uncle Joseph Ochola had told him that he wanted blood.  That the following morning, the deceased was found unconscious inside the house they slept in and the accused had fled.
  4. According to PW-1 and PW-2, the deceased was expected to be in school, but failed to show up for breakfast before proceeding to school wherefore PW-1 sent his grandson to call the deceased but returned with a report of the deceased being unconscious.
  5. The accused in his defence denied committing the offence and stated that on the material day, he had gone to work at Nyakach Polytechnic and received news of the death later in the evening from the deceased’s mother. He stated that the deceased had on the night preceding his death attended a disco matanga. As it is, none of the witnesses saw the accused strike the deceased and the evidence on record therefore is circumstantial evidence which was discussed by the Court of Appeal in Abanga alias Onyango v Republic Cr. Appeal No. 32 of 1990 UR wherein it was stated as follows:

“It is settled law that when a case rests entirety on circumstantial evidence such evidence must satisfy three tests:

(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.

(2) Those circumstances should be of a definite leniency unerringly pointing towards guilty of the accused.

(3) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

  1. From the circumstances of this case, there is no doubt that the deceased and the accused were sleeping together on the night the deceased was killed. The accused despite denying the offence did not at all adduce evidence that the death could have been caused by somebody else other than the deceased.
  2. In fact, in my analysis, the issue of last seen with doctrine comes into play. The doctrine was discussed in in David Munyui Chiragu & another v Republic [2017] KECA 342 KLR where it was stated:

Regarding the doctrine of “last seen with” we will revert to Nigerian case of Moses Jua v The State (2007) LPELR-CA/IL/42/2006. The Court, while considering the ‘last seen alive with’ doctrine held:

“Even though the onus of proof in criminal cases always rests squarely on the Prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, the Court is justified in drawing the inference that the accused killed the deceased”

  1. Further, Riechi J in Republic v Makokha (Criminal Case E001 of 2020) [2022] KEHC 13216 (KLR) (21 July 2022) (Judgment) held;

For the prosecution to successfully rely on the doctrine of last seen it must prove:

1.That the accused was seen by witnesses in company of the deceased.

2.That the deceased was found dead.

3.That there was no possibility of the deceased to have left the company of the accused.

  1. From the evidence on record, there is no dispute that the accused was the last person seen in the company of the deceased who was found unconscious the following morning.
  2. I therefore find that the evidence so adduced by the prosecution places the accused right at the scene of the crime with no rebuttal from the defence.
  3. The last issue is in relation to whether the accused harboured malice aforethought. Malice is defined by Section 206 of the penal Code thus;

Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances –

  1. an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
  2. knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
  3. an intent to commit a felony;
  4. an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
  5. The Investigating Officer one Felix Koimoye attached to DCI Nyakach stated that on visiting the scene, he recovered the weapon of murder, a stick broken into 2 pieces, a large piece was under the bed and a small piece was in the room. The pathologist Dr. Charles Oduor stated that the cause of death was severe head injury due to assault using a blunt object.
  6. The testimony of the two witnesses above taken together shows that the accused by hitting the deceased’s head with the stick either intended to cause death or cause grievous harm to the deceased.  The evidence of PW4 Manyala Matinde Ogut corroborates the evidence of these two witnesses.
  7. This provision was discussed in Bonaya Tutut Ipu & Another vs. R [2015] eKLR and the court held thus:-

“Malice aforethought” is the mens rea for the offence of murder and it is the presence or absence of malice aforethought which is decisive in determining whether an unlawful killing amounts to murder or manslaughter.”

  1. I am further guided by the decision in Tubere S/O Ochen v Republic [1945] EACA 63 where the court outlined circumstances as constituting the following:

(a) The nature of the weapon used against the deceased to inflict injuries.

(b) The part of the body targeted by the attacker whether vulnerable or not.

(c) The manner in which the lethal weapon was used. Whether in furtherance to cause grievous harm the assailant used the weapon repeatedly.

(d) The conduct of the accused before, during and after the attack of the deceased.

  1. Following the above, I have no doubt that the act of striking the deceased with a stick on the head is sufficient evidence that the accused harboured malice aforethought.
  2. Turning on to the defence tendered by the accused, I find the same to be an afterthought and a sham. The accused’s assertion that he had gone to work in a polytechnic is not sufficient to dispel the fact that the accused was with the deceased on the fateful night. Having been placed at the scene of crime, the least the accused should have done was to adduce sufficient evidence that he was not with the deceased on the fateful night he was struck with the stick.
  3. All the above considered, I find the prosecution proved its case beyond reasonable doubt and hereby proceed to enter a conviction against the accused person as charged.

Delivered Dated and Signed at Kisumu this 30th day of April, 2024

MWANAISHA S. SHARIFF

JUDGE

    The Republic VS EVANS OMONDI OUMA The Republic VS EVANS OMONDI OUMA