1. The four Accused persons, Francis Maende Omukhuba Alias Timo, Canary Osale Alias Sulu, Harron Anaminyi and Moses Mwinami Otiende Alias Mosee were charged with two counts of murder contrary to Section 203 as read with Section 204 of the Penal Code. The first count was that on the 21st day of January 2018, at Emungweso Village, Wambulishe Sub-Location, Kisa Central Location in Khwisero Sub-County within Kakamega County, they jointly murdered Thomas Obulunji Okwach.
2. The second count was that on the 21st day of January 2018, at Emungweso Village, Wambulishe Sub-Location, Kisa Central Location in Khwisero Sub-County within Kakamega County, they jointly murdered Stephen Okwomi Ashibende.
3. The Accused persons denied the charges and the prosecution called ten (10) witnesses in a bid to prove its case.
4. PW1, Sarah Omusula said that the deceased Thomas was her son and that she new the 1st Accused who is her neighboour and the 4th Accused whom she sees at Khwisero but did not know the 2nd and 3rd Accused persons. She testified that on 21/1/2018 at 10.00 am. While she was tethering her cow at her home, she heard screams. She asked passersby what had happened. One person told her that boda boda people had arrested the people who had killed Iso. She did not know Iso. She went to the road where she found a group of people going away with a person. They were many people and she could not get near them. On reaching the place, she was called by someone who informed her that the group of people were looking for her son Thomas. He did not tell her the reason. She went home. She then heard that Thomas had been killed.
5. PW1 went on to recount that Thomas had gone to visit his father who is her brother-in-law in the company of Stephen his brother. Stephen came back from the visit the same day. He told her that a group of people had gone and taken Thomas away from her brother-in-law’s house and that he, Stephen had escaped. Stephen did not know who had killed Thomas. The witness said that she did not identify anybody in the group that were taking away the person. She recalled that she found Thomas’ body at the mortuary.
6. On cross-examination, PW1 said she was not at the scene where Thomas was killed and could not remember the person who informed her of the incident. She said that she first went to the mortuary and was referred to the police station to make a report. When referred to her the statement she had recorded at the police, she conceded that it says that some women had informed her that her son was being sought. She also agreed that the statement states that she saw Timo, Mukhwana and Aluoch and that Mukhwana and Aluoch were not in court. She said that she saw Timo on a motor cycle but not the other Accused persons. She said she did not know whether her son was a thief.
7. No 85240 Sergeant Adam Ali testified as PW2 and recounted that he was with the DCI Khwisero before and that on 21/1/2018 at about 10.30 a.m., they were at the office when they received information that boda boda riders from Khwisero had taken two people hostage and were headed towards Emungweso area. Together with the OCS and OCP Khwisero Police Station and accompanied by other police officers, they went with a Land Cruiser to pursue the boda boa riders. On arrival at the scene, they found the two people had been killed. The two were Stephen Okwami and Abel Obulunji and their heads had been smashed. They took the bodies to Yala Hospital mortuary after taking 5 photographs which he identified and were marked PMFI 1(a) – (f). He further said that afterwards they passed by the scene and found the wreckage of a motor cycle registration number KMCR 592Y which had been burnt and took it to the police station. They did not arrest anybody on that day.
8. When cross-examined, PW2 said that he could not tell who killed the deceased and that on arrival at the scene, they found many boda boda riders. He said he could not remember seeing the Accused at the scene on the material date. He said that he assisted in recording statements from witnesses and that the witnesses did mention the four (4) Accused persons. Livingstone Opwaka mentioned that Haron the 4th Accused wanted some information from Carol. He further stated that the statement of Bernard Eshiola mentions five (5) people being Timothy, Moses Otieno, Elisha Isaac Sebo as part of the boda boda riders who took away the deceased after tying him on a motor cycle. Out of the five names, the 1st and 4th Accused are named in the statement although the typed statement mentioned no names. He said that the statements by Joseph Njisi and Silas Omuteku mentioned no names. He said that the scene of crime personnel processed the scene although the photographs did not indicate the photographer’s name nor the date and that he could not see his certificate on them.
9. PW3 was Frida Olukayi who recalled that on 21/1/2018 at around 11.00 a.m., she heard the sound of a motor bike while with her parents and brother Eshiula. Shortly, she saw a large group of motor cycle riders enter the compound and ask for Eshiula’s house while some started pelting their house with stones. The 3rd Accused whom she knew as Haron asked her for Caro’s whereabouts, and she informed him that she had left. Caro was Eshiula’s wife. The group started destroying the property and singing a song implying that they wanted to kill Eshiula.
10. PW3 continued that their father got annoyed and armed himself with a panga but was pinned down by the crowd and got hurt. Shortly thereafter, Caro arrived whereby Timothy and Haron took her away on a motor bike and she returned after one hour. Suddenly, they heard wailing from the neighbours who was saying that the boda boda people had killed Okwoni. She did not know of any grudge between her brother and the boda boda riders and that day, she saw the 1st, 3rd and 4th Accused at their home. She further testified that on that date, Okwoni and Habil Obulunji Okwach, a neighbour to Timothy were killed.
11. When cross-examined, PW2 said that she had narrated what she told the police but the statement did not mention about her father being cut despite him telling the police so. He said she did not remember what brands the motor bikes were and did not remember what the 1st and 4th Accused were wearing, but the 3rd Accused was wearing a white T-shirt. She said that the group did nothing to her brother Eshiula and none of the Accused asked her about the deceased nor did they destroy anything in their home. She said that Haron asked about Caro and they left on a motor bike ridden by Haron while the 1st Accused was a pillion passenger. She said that she had known the Accused persons and the deceased before the material date.
12. PW4, Bernard Ashula Njisi testified as PW4 and recalled that on the material date at about 9.00 a.m., he was digging at his home when he heard noise from Stephen Okwomi’s home. He looked towards the direction and saw people chasing each other. The home is about 200 metres from his home and he decided to go and check what was happening. On arrival, he found Moses Otiende the 4th Accused beating Stephen while in he company of others. He also saw the 3rd Accused. On asking them why they were beating Stephen, they claimed that the deceased was suspected of murdering a boda boda rider who had been killed the previous week. They said they were taking him to the police station and the 1st Accused led the procession of many motor cyclists. PW4 said that he decided to go back to his work and shortly thereafter, he heard screams from the deceased’s home that he had been killed. He was also informed that a second person had also been killed. After a while, he heard a group of people approaching his home while singing in Luhyia to the effect that they were going to finish him. He went behind his father’s house and climbed a tree to hide. He saw the 4th Accused enter their homestead, survey the home and go back to the crowd. They attacked his father’s house with stones. His sister Frida (PW2) came out and showed them his house which they attacked and destroyed partly. Annoyed, his father got out with a panga and one rider called Sebo knocked him down with a motor cycle. His wife who had gone to fetch water arrived and the 3rd Accused took her in the company of the 1st Accused and they left in a motor bike ridden by the 1st Accused. After they left, he descended and went to the DC’s compound and was arrested by APs and taken to the police station where he was booked in the cells. He slept there and was released after recording a statement. He got his wife at the station and she was released and went home.
13. PW4 said that he knew the Accused persons well as they are form the same village. The 4th Accused was his classmate, the 1st Accused was his team mate in a Football Club at Khwisero. The 3rd Accused would assist his mother sell vegetables at the market, while the 2nd Accused, whom he knew as Suleiman was a football player with Imbinga FC.
14. Cross-examined, PW4 said that when he first heard the noise, he looked up and saw the 4th Accused chase and catch up with the deceased and tie him while beating him, then he took him away on a motor bike. He said that he did not see the Accused kill the deceased and the Accused persons were in a group of many other boda boda operators.
15. Joseph Njisi, PW5 said that on 21/1/2018 at about 10.00 a.m., he was at home when he saw a crowd of boda boda operators go to the deceased’s home, tie him up while beating him and left with him on a motor bike. After a while, he received news tha the deceased had been killed. He further recounted that later, the same crowd went and surrounded his home while demanding to see PW4 who was hiding in the DC’s compound by then. When they failed to get PW4, they demanded for his wife Caro who they got hold of and took away. The witness said that he did not recognize any of the attackers and when Caro returned, she said that she had been taken to the river and abandoned. The witness said that he later learnt that the crowd had killed two people. He said that he had tried to repulse the crowd that was taking away his daughter-in-law, but one of them hit him with a motor bike and hit his leg on the left.
16. On cross-examination, he said he could not remember the people who attacked him even if he saw them and that he knew two people were killed but not who killed them.
17. PW6 was Amwai Stephen Oburinji, a brother to Thomas Okwach Obulunji the deceased. He testified that he lives in Nairobi and that during the material time, he had been home for two (2) days. He recalled that on 21/1/2018, he was at home in Khwisero and that morning he and the deceased were to visit his cousin Alexander Ambayo at his home. While there, a group of people arrived on motor cycles and asked for someone who was not with them then left. Shortly, a larger group arrived and took away his brother and started beating him as they took him away. When he asked why, they also beat him so he ran away and went to the hospital because he had been hit on the head. From the hospital, he was told that his brother had been killed and the body taken to the mortuary. He visited Yala District Hospital and viewed his late brother’s body. It had cut wounds on the head.
18. The witness identified the photograph marked as PMFI 1(d) and said he could see the body of his brother in a black T-shirt. He said he could not identify the other body. He went on to say that on 25/1/2018, a post-mortem was conducted and he and his mother identified the body for post-mortem after which the Doctor said he died out of injuries from assault. He said he did not know why his brother was killed and he could not identify any of the Accused persons as having been among the gang.
19. PW7, Silas Ashivenga, a driver from Shivandu said that on 21/1/2018 he was resting at his home when his wife Margaret Awinja woke him up to inform him of a commotion in his brother’s homestead. He headed to his brother’s homestead only to find that some people had left with his brother who used to live alone. He decided to call his uncle Laban Abuya but did not get him at home as he had gone to report at the police station. When he called his Uncle, he asked that he accompany him to the police station at Khwisero where they reported the incident. When the police followed, they found that his brother had been killed and the body taken to the mortuary at Yala. The witness identified the photograph of his brother with a vest.
20. According to PW8, when he visited the mortuary, the body had cut wounds on the head. Shown the photographs, he said he could not identify the other body. Post mortem was done on 25/1/2018 and he and a cousin Josia Omukuba identified the body for purposes of post-mortem.
21. PW8 was Caroline Eshiula, who said that on the material date at around 10.00 a.m. she was seated outside with her mother-in-law and her father-in-law Joseph. They heard some noise and on running to find out what was going on, they found many boda bodas at the home of one Okwomi. The riders were chasing after Okwomi and caught up with him. They beat him up while forcing him to say something. As he was being beaten, he was saying, “It is not me! It is no me!”. After beating him, they tied him to a motor cycle using a rope. They left while the riders were pulling him using the motor cycle and proceeded home. When they reached their neighbour Sande’s home, someone told them that the boda bodas were headed to their home to burn her house. She ran to her house as she had a sick child and found her child seated with the grandmother outside the house. There were many boda boda riders and they were beating people up. When they saw her, they told her to sit on the motor bike. She sat on the motor bike, which belonged to Timothy the 1st Accused, whom she knew. He was with Moses, the 4th Accused. Those were the only people she identified alongside Haron the 3rd Accused. She said between the 1st and 4th Accused they took her and as they approached the Church of God, they were looking for a certain woman whose name she did not get and whom they did not find. They released her after asking her where her husband normally stays. They did not hurt her. They wanted to know whether her brother-in-law Tony sold cows and she responded in the negative. After her release, she walked back only to learn that her kiosk had been destroyed and one Tololo had been arrested.
22. PW8 said that she went and made a report at the police station and returned home at 3.00 p.m., when she was informed that Okwomi had been killed. The witness said that she witnessed the boda boda riders beat Okwomi and tie him to Timothy’s motor bike. She did not see the 2nd Accused at the scene but the team that tied Okwomi to the motorbike was the 4th Accused who was the boda boa Chairman and beat the deceased, while the 1st Accused carried him. When shown the photographs, she identified Okwomi.
23. Cross-examined, PW8 said that the deceased was an in-law whom she witnessed being assaulted. She said she did not report that anybody was being beaten but was testifying on what she saw. She said that she feared the Accused persons would kill her.
24. PW9 was Dr. David Ikuru Shivachi who testified that he authored one of the two post-mortem reports and wished to produce the other report as well as it was prepared by his colleague Dr. Collins Oginga who he had worked with for one year. There being no objection from the Accused persons’ Counsel, the prosecution’s application that the witness do produce the post-mortem reports was allowed.
25. PW9 produced the post mortem report in respect of Thomas Okwach Ubulunji whose body was identified by Sarah Obulunji and Stephen Amwayi Obulunji before post-mortem was done at Yala Sub-County Hospital on 27/1/2018. The body was of an African male aged 43 years and had multiple lesions and bruises over the abdomen and the back with an underlying blood clot. There were fine deep cut wounds on the right side of the head penetrating in the skull and measuring 8-10 cms each. The head had skull fractures of the right side involving frontal, temporal and occipital bones. The nervous system showed severe haemorrhage. As a result of the examination, the Doctor formed the opinion that there was cardio-respiratory collapse following sudden and severe brain injury (haemorrhage) secondary to assault. The post-mortem report was produced as P.Ex1.
26. PW9 went on further to narrate that the second post mortem report was for Stephen Okwomi Ashibende on whose body he was requested to perform a post-mortem by Khwisero Police Station. The body was identified by Silas Omuteka Ashibende and Josiah Ashioya Omukuba. He conducted the autopsy on 25/1/2018 at 1.30 p.m. at Yala Sub-County Hospital mortuary. It was a 38 year male African whose estimated date of death was approximately one week. The findings were as follows: The left leg was mangled with dislocation fracture of the right shoulder. There was obvious open multiple fracture of the head with fracture of the left mandible and maxilla bones. On internal appearance, there was respiratory system collapse of the left lung, fractured ribs number 5 to 10 on the left side, multiple fracture of the skull with the central spine fluid leaking from the temporal area of the skull. There was also brain contusion. As a result of the examination, PW8 said that he formed the opinion that the cause of death was unnatural due to cardio-pulmonary arrest as a result of lung collapse and severe brain injury. He produced the post-mortem report which was marked P.Ex2. He said the injuries were consistent with assault.
27. On cross-examination, PW8 said that the pricking of the lungs caused the collapse of Stephen Okwomi’s lungs.
28. PW10 was P.C. Matiko Dominic who took over as an Investigating Officer from Cpl. Adam Ali who had since been transferred. He testified that he had Cpl. Ali’s recorded statement in which he recorded that on 21/1/2018, at 10.30 a.m. they received information that boda boda operators within Khwisero had taken hostage of two people and were planning to kill them. According to the Investigation Diary, the report was made vide OB Number 7/21/1/2018 wherefore the OCPD Kwisero Mr. Langat together with the OCS Khwisero and Cpl. Adam from DCI proceeded to the scene and found the victims one Stephen Okwomi and Abel Obulinji Okwami had been grievously injured and no longer alive. They found some boda boda cyclists around the scene of incident and learnt that the deceased had been killed by boda boda operators who pelted them with stones. According to the OB, the suspects were arrested by Chief Inspector Gichohi accompanied by Cpl. Langat and one suspect Francis Maende Omukhuba also known as Timo was placed in custody.
29. PW10 said that he perused the statement and established that one witness Caroline Eshiula said that she witnessed the incident. He brought her to court and she identified the Accused. The witness produced five photographs which were marked P.Ex3 (a) to (e) as well as Cpl. Adam Ali’s statement as P.Ex4. The Accused did not object to the production.
30. On cross-examination, PW10 said that he did not listen to the evidence of PW8. He said from the initial report, the Accused persons’ names were not given but from the investigations, the Accused persons killed the deceased.
31. At the close of the defence case, the court acquitted the 2nd Accused of all the charges and found that although no evidence was led as to the circumstances that led to the death of Thomas Obulunji Okwach Alias Abel, a prima facie case had been established against the 1st, 3rd and 4th Accused over the death of Stephen Okwami Ashibende. The 1st, 3rd and 4th Accused persons were therefore acquitted in Count 1 and placed on their defence with respect to Count 2.
32. In their defence, the three Accused persons gave sworn statements and called three witnesses. DW1 was the 1st Accused who said that he was a long distance truck driver and that he did not know the deceased persons. According to him on the material date, he was at Khwisero preparing to go to church when a businessman called Nathan phoned and informed him that he was at the shops and could see a huge crowd of boda boda riders who were claiming that one of them had been killed. He informed the caller that he was enroute to church, but would inform the Chairman of the boda boda riders. At that time, he was the Organizing Secretary of the Khwisero Sub-County. He called the Chairman of the Boda Boda Operators, Khwisero, by name Moses Mwinamu and informed him of the call including the threats by the boda boda operators to kill someone in revenge. He advised the Chairman that they meet at Khwisero town and when they met, they were informed that the boda boda operators had met with Haron because when he called Moses, Moses called Haron, the Secretary. DW1 said that Haron is the 3rd Accused.
33. DW2 stated that they headed to the homestead where the boda boda operators had gone to kill. They found many operators. They had tied a young man to a motor bike. He claimed he did not know the homestead. He then called the OCS Khwisero to inform him of the incident. This was at 9.30 a.m. and he sought the intervention of the OCS lest the crowd succeed in killing the hostage. The OCS said that they had only one vehicle. They waited for the police vehicle in vain. DW1 said he and the Chairman pleaded with the crowd to release the intended victim so they could do more inquiries. They agreed and released him. They then left the place with the young man with the intention of rushing him to the police station which was about 200 metres away. About 50 metres away from the Police Station, the boda boda riders overtook them and snatched the young man from them and told them that they would kill him then go kill a girl called Caro who had caused the boda boda rider to be killed. On inquiry, they learnt that Caro was a neighbour of the young man who was going to be killed. He then left with Moses, Haron his co-Accused, and others not before the court. They went to Caro’s home where they found her and informed her that they had gone to save her from being killed because the boda boda riders intended to go and kill her next. She asked them to take her to her church mate’s place for her safety but on their arrival, the lady was missing. Since Caro said that she would be safe, they left her there. Next, they went to see the OCS and found them gone to a murder scene. The next day, he, Moses and Haron went to the OCS and explained to him what had happened and he promised them they would be witnesses. He denied killing the deceased and claimed that he was only trying to help.
34. On cross-examination, he said that in 2018, he was a driver and the Secretary of the boda boda operators while the 2nd, 3rd and 4th Accused were leaders of the same group. Before the incident, a boda boda rider Isaac had been killed and the murder of the two people was to revenge Isaac’s death. He denied organizing the group for revenge. He said that the deceased, who was tied to the motor cycle was Stephen and that they took him from his home after finding him tied to spikes of the motor cycle. He said he could not recall who was riding the motor cycle nor the people he saw. He denied the allegations that the motor cycle was his, or being involved in tying the deceased up or pulling the deceased with the motor cycle. According to him, PW3, PW4 and PW8 who testified that they saw him may have seen him when he went to rescue the deceased. He said that Stephen and Abel died and the other person who was to die was Caro. He denied that Bernard, Caro’s husband was being looked for.
35. DW2 was Haron Anaminyi Olwade, the 3rd Accused. He said that he was an electrician and that on 21/1/2018, he received a call from Moses, who urged him to hurry up and go to Khwisero but did not tell him why. On arrival, he found Moses at the football field opposite the Police Station. He found Moses, Timo, some young men and women, and one policeman. On inquiry, Timo informed him that some boda boda riders were headed to a certain home on a revenge mission to kill someone. They discussed and decided to follow them to the home. On arrival, they found some boda boda riders in Stephen’s home, where they had tied Stephen’s feet to the motor cycle although he had not been beaten. DW2 said he asked Moses to address the boda boda riders and implore them to release the deceased as he was their Chairman. Timo had earlier called the OCS who had said that he had no vehicle. The crowd released Stephen and they took him towards the Police station. Timo was the one with the motor cycle. However, the boda boda riders overtook them and blocked them from advancing into the police station. They were forced to stop and the person who originally had the motorcycle forcefully took it from Timo and snatched the deceased from them asking why they had rescued the deceased. They also shouted that they would go and kill Eshiula’s wife as she was involved in the killing of the boda boda rider.
36. DW2 said that they decided to go and rescue Esiula’s wife Caro and they went there and advised her that she needed to hide to save her life. They asked her to board a motor cycle and direct them where she wanted to be taken for safety. They informed her father-in-law of the need to hide her and took her to a fellow church member’s home where they did not find her but left Caro there then went back to Khwisero. DW2 said that he never witnessed the deceased being killed as he feared to face the crowd. He said that he was arrested when he went to visit Zulu, the 2nd Accused at the Police Station and informed that he was being charged for murder. He denied being involved with the killing.
37. Cross-examined, DW2 said that on the material date he and his co-Accused all leaders of the Group, met as a result of phone calls asking them to converge. They met at the football field where they decided to go to Stephen’s house. To reach the house, they used Simo’s motor cycle and Simo left them at the gate then proceeded to church. He said he did not know whose motor cycle took them to Caro’s place after Timo was forced to disembark from his motorcycle, but they used a different motor cycle to take Caro away. He said that on that day, they did not follow up to find out what had happened to the victims.
38. DW3 was the 4th Accused; Moses Otiende Mwinami. He said that on 21/1/2018 while preparing to go to church, he received a call from Francis Maende who urged him to hurry to Khwisero because something bad was happening. He rushed over and on reaching there, Francis informed him that the boda boda riders had gathered with the intention of killing someone. He called Haron over and he arrived shortly thereafter. They briefed him then called a boda boda rider who took them to follow the riders. They reached a homestead he did not know. They saw a young man, unknown to him, whose feet were tied to a motor cycle. As leaders, they successfully addressed the crowd and urged them to release the young man to them. They took the young man on the motor cycle he was tied to towards the Police Station but were overtaken by boda boda riders who overpowered them and took the young man and the motor cycle and left with him. After that, they decided to look for Caro, as the crowd were baying for her blood. They rushed to her home and explained to her that she was in danger. She asked them to take her to her lady friend at Bushinala. They took her and left her there after she assured them that she was safe. They went to the OCS to report but did not find him. Later, he heard that some people had been killed. The next day they went to see the OCS who told them that they would be witnesses. After a year, he was arrested and later charged.
39. On cross-examination, DW3 said that after rescuing the deceased, they were attacked by the crowd, who said that they would go for Caro after finishing with him. He said they were not far away from the police. He admitted that they did not go to report to the Police Station, which is 50 metres away. He denied the suggestion that they had already killed the deceased by the time they were picking Caro. He admitted that after dropping Caro, they did not go back to check what had happened to the deceased despite being leaders of the boda boda riders. He denied the suggestion that they went to the police station for cover up. He also denied disappearing after his co-Accused had been arrested.
40. DW4 was Nathan Omuroka who said that he knew the Accused persons, who used to be leaders of boda boda riders. He said that on 21/1/2018 he was at the shop buying milk when he heard a lot of noise and saw many people and on inquiring, he learnt that a suspected killer of a boda boda rider had been arrested by boda boda riders on a revenge mission. He was given a lift by a boda boda rider and on arriving at the compound, he saw someone who had been tied to a motor bike. He heard that the person was called Okwomi. He phoned Timo and explained the situation to him. Timo arrived with his colleagues and engaged the crowd in some discussions. He saw them take Okwomi on the motor bike. Timo sat in front, Okwomi was in the centre and Mose sat at the back. As they went, the crowd followed them. As they approached Khwisero Hospital, the motor bikes started speeding and he ran to catch up with them but by the time he reached them, they had been stopped. Timo’s motor bike was taken from him and Mose caused to disembark. One of them rode the motor bike. He did not know him nor the other boda boda riders. At Emungeso junction, they found a huge crowd and motor bike on fire. He did not know whose motor bike was burnt. He did not see Timo or Mose at that time and Okwomi was beaten about 2 ½ to 3 Km away from the Police Station a
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2. The second count was that on the 21st day of January 2018, at Emungweso Village, Wambulishe Sub-Location, Kisa Central Location in Khwisero Sub-County within Kakamega County, they jointly murdered Stephen Okwomi Ashibende.
3. The Accused persons denied the charges and the prosecution called ten (10) witnesses in a bid to prove its case.
4. PW1, Sarah Omusula said that the deceased Thomas was her son and that she new the 1st Accused who is her neighboour and the 4th Accused whom she sees at Khwisero but did not know the 2nd and 3rd Accused persons. She testified that on 21/1/2018 at 10.00 am. While she was tethering her cow at her home, she heard screams. She asked passersby what had happened. One person told her that boda boda people had arrested the people who had killed Iso. She did not know Iso. She went to the road where she found a group of people going away with a person. They were many people and she could not get near them. On reaching the place, she was called by someone who informed her that the group of people were looking for her son Thomas. He did not tell her the reason. She went home. She then heard that Thomas had been killed.
5. PW1 went on to recount that Thomas had gone to visit his father who is her brother-in-law in the company of Stephen his brother. Stephen came back from the visit the same day. He told her that a group of people had gone and taken Thomas away from her brother-in-law’s house and that he, Stephen had escaped. Stephen did not know who had killed Thomas. The witness said that she did not identify anybody in the group that were taking away the person. She recalled that she found Thomas’ body at the mortuary.
6. On cross-examination, PW1 said she was not at the scene where Thomas was killed and could not remember the person who informed her of the incident. She said that she first went to the mortuary and was referred to the police station to make a report. When referred to her the statement she had recorded at the police, she conceded that it says that some women had informed her that her son was being sought. She also agreed that the statement states that she saw Timo, Mukhwana and Aluoch and that Mukhwana and Aluoch were not in court. She said that she saw Timo on a motor cycle but not the other Accused persons. She said she did not know whether her son was a thief.
7. No 85240 Sergeant Adam Ali testified as PW2 and recounted that he was with the DCI Khwisero before and that on 21/1/2018 at about 10.30 a.m., they were at the office when they received information that boda boda riders from Khwisero had taken two people hostage and were headed towards Emungweso area. Together with the OCS and OCP Khwisero Police Station and accompanied by other police officers, they went with a Land Cruiser to pursue the boda boa riders. On arrival at the scene, they found the two people had been killed. The two were Stephen Okwami and Abel Obulunji and their heads had been smashed. They took the bodies to Yala Hospital mortuary after taking 5 photographs which he identified and were marked PMFI 1(a) – (f). He further said that afterwards they passed by the scene and found the wreckage of a motor cycle registration number KMCR 592Y which had been burnt and took it to the police station. They did not arrest anybody on that day.
8. When cross-examined, PW2 said that he could not tell who killed the deceased and that on arrival at the scene, they found many boda boda riders. He said he could not remember seeing the Accused at the scene on the material date. He said that he assisted in recording statements from witnesses and that the witnesses did mention the four (4) Accused persons. Livingstone Opwaka mentioned that Haron the 4th Accused wanted some information from Carol. He further stated that the statement of Bernard Eshiola mentions five (5) people being Timothy, Moses Otieno, Elisha Isaac Sebo as part of the boda boda riders who took away the deceased after tying him on a motor cycle. Out of the five names, the 1st and 4th Accused are named in the statement although the typed statement mentioned no names. He said that the statements by Joseph Njisi and Silas Omuteku mentioned no names. He said that the scene of crime personnel processed the scene although the photographs did not indicate the photographer’s name nor the date and that he could not see his certificate on them.
9. PW3 was Frida Olukayi who recalled that on 21/1/2018 at around 11.00 a.m., she heard the sound of a motor bike while with her parents and brother Eshiula. Shortly, she saw a large group of motor cycle riders enter the compound and ask for Eshiula’s house while some started pelting their house with stones. The 3rd Accused whom she knew as Haron asked her for Caro’s whereabouts, and she informed him that she had left. Caro was Eshiula’s wife. The group started destroying the property and singing a song implying that they wanted to kill Eshiula.
10. PW3 continued that their father got annoyed and armed himself with a panga but was pinned down by the crowd and got hurt. Shortly thereafter, Caro arrived whereby Timothy and Haron took her away on a motor bike and she returned after one hour. Suddenly, they heard wailing from the neighbours who was saying that the boda boda people had killed Okwoni. She did not know of any grudge between her brother and the boda boda riders and that day, she saw the 1st, 3rd and 4th Accused at their home. She further testified that on that date, Okwoni and Habil Obulunji Okwach, a neighbour to Timothy were killed.
11. When cross-examined, PW2 said that she had narrated what she told the police but the statement did not mention about her father being cut despite him telling the police so. He said she did not remember what brands the motor bikes were and did not remember what the 1st and 4th Accused were wearing, but the 3rd Accused was wearing a white T-shirt. She said that the group did nothing to her brother Eshiula and none of the Accused asked her about the deceased nor did they destroy anything in their home. She said that Haron asked about Caro and they left on a motor bike ridden by Haron while the 1st Accused was a pillion passenger. She said that she had known the Accused persons and the deceased before the material date.
12. PW4, Bernard Ashula Njisi testified as PW4 and recalled that on the material date at about 9.00 a.m., he was digging at his home when he heard noise from Stephen Okwomi’s home. He looked towards the direction and saw people chasing each other. The home is about 200 metres from his home and he decided to go and check what was happening. On arrival, he found Moses Otiende the 4th Accused beating Stephen while in he company of others. He also saw the 3rd Accused. On asking them why they were beating Stephen, they claimed that the deceased was suspected of murdering a boda boda rider who had been killed the previous week. They said they were taking him to the police station and the 1st Accused led the procession of many motor cyclists. PW4 said that he decided to go back to his work and shortly thereafter, he heard screams from the deceased’s home that he had been killed. He was also informed that a second person had also been killed. After a while, he heard a group of people approaching his home while singing in Luhyia to the effect that they were going to finish him. He went behind his father’s house and climbed a tree to hide. He saw the 4th Accused enter their homestead, survey the home and go back to the crowd. They attacked his father’s house with stones. His sister Frida (PW2) came out and showed them his house which they attacked and destroyed partly. Annoyed, his father got out with a panga and one rider called Sebo knocked him down with a motor cycle. His wife who had gone to fetch water arrived and the 3rd Accused took her in the company of the 1st Accused and they left in a motor bike ridden by the 1st Accused. After they left, he descended and went to the DC’s compound and was arrested by APs and taken to the police station where he was booked in the cells. He slept there and was released after recording a statement. He got his wife at the station and she was released and went home.
13. PW4 said that he knew the Accused persons well as they are form the same village. The 4th Accused was his classmate, the 1st Accused was his team mate in a Football Club at Khwisero. The 3rd Accused would assist his mother sell vegetables at the market, while the 2nd Accused, whom he knew as Suleiman was a football player with Imbinga FC.
14. Cross-examined, PW4 said that when he first heard the noise, he looked up and saw the 4th Accused chase and catch up with the deceased and tie him while beating him, then he took him away on a motor bike. He said that he did not see the Accused kill the deceased and the Accused persons were in a group of many other boda boda operators.
15. Joseph Njisi, PW5 said that on 21/1/2018 at about 10.00 a.m., he was at home when he saw a crowd of boda boda operators go to the deceased’s home, tie him up while beating him and left with him on a motor bike. After a while, he received news tha the deceased had been killed. He further recounted that later, the same crowd went and surrounded his home while demanding to see PW4 who was hiding in the DC’s compound by then. When they failed to get PW4, they demanded for his wife Caro who they got hold of and took away. The witness said that he did not recognize any of the attackers and when Caro returned, she said that she had been taken to the river and abandoned. The witness said that he later learnt that the crowd had killed two people. He said that he had tried to repulse the crowd that was taking away his daughter-in-law, but one of them hit him with a motor bike and hit his leg on the left.
16. On cross-examination, he said he could not remember the people who attacked him even if he saw them and that he knew two people were killed but not who killed them.
17. PW6 was Amwai Stephen Oburinji, a brother to Thomas Okwach Obulunji the deceased. He testified that he lives in Nairobi and that during the material time, he had been home for two (2) days. He recalled that on 21/1/2018, he was at home in Khwisero and that morning he and the deceased were to visit his cousin Alexander Ambayo at his home. While there, a group of people arrived on motor cycles and asked for someone who was not with them then left. Shortly, a larger group arrived and took away his brother and started beating him as they took him away. When he asked why, they also beat him so he ran away and went to the hospital because he had been hit on the head. From the hospital, he was told that his brother had been killed and the body taken to the mortuary. He visited Yala District Hospital and viewed his late brother’s body. It had cut wounds on the head.
18. The witness identified the photograph marked as PMFI 1(d) and said he could see the body of his brother in a black T-shirt. He said he could not identify the other body. He went on to say that on 25/1/2018, a post-mortem was conducted and he and his mother identified the body for post-mortem after which the Doctor said he died out of injuries from assault. He said he did not know why his brother was killed and he could not identify any of the Accused persons as having been among the gang.
19. PW7, Silas Ashivenga, a driver from Shivandu said that on 21/1/2018 he was resting at his home when his wife Margaret Awinja woke him up to inform him of a commotion in his brother’s homestead. He headed to his brother’s homestead only to find that some people had left with his brother who used to live alone. He decided to call his uncle Laban Abuya but did not get him at home as he had gone to report at the police station. When he called his Uncle, he asked that he accompany him to the police station at Khwisero where they reported the incident. When the police followed, they found that his brother had been killed and the body taken to the mortuary at Yala. The witness identified the photograph of his brother with a vest.
20. According to PW8, when he visited the mortuary, the body had cut wounds on the head. Shown the photographs, he said he could not identify the other body. Post mortem was done on 25/1/2018 and he and a cousin Josia Omukuba identified the body for purposes of post-mortem.
21. PW8 was Caroline Eshiula, who said that on the material date at around 10.00 a.m. she was seated outside with her mother-in-law and her father-in-law Joseph. They heard some noise and on running to find out what was going on, they found many boda bodas at the home of one Okwomi. The riders were chasing after Okwomi and caught up with him. They beat him up while forcing him to say something. As he was being beaten, he was saying, “It is not me! It is no me!”. After beating him, they tied him to a motor cycle using a rope. They left while the riders were pulling him using the motor cycle and proceeded home. When they reached their neighbour Sande’s home, someone told them that the boda bodas were headed to their home to burn her house. She ran to her house as she had a sick child and found her child seated with the grandmother outside the house. There were many boda boda riders and they were beating people up. When they saw her, they told her to sit on the motor bike. She sat on the motor bike, which belonged to Timothy the 1st Accused, whom she knew. He was with Moses, the 4th Accused. Those were the only people she identified alongside Haron the 3rd Accused. She said between the 1st and 4th Accused they took her and as they approached the Church of God, they were looking for a certain woman whose name she did not get and whom they did not find. They released her after asking her where her husband normally stays. They did not hurt her. They wanted to know whether her brother-in-law Tony sold cows and she responded in the negative. After her release, she walked back only to learn that her kiosk had been destroyed and one Tololo had been arrested.
22. PW8 said that she went and made a report at the police station and returned home at 3.00 p.m., when she was informed that Okwomi had been killed. The witness said that she witnessed the boda boda riders beat Okwomi and tie him to Timothy’s motor bike. She did not see the 2nd Accused at the scene but the team that tied Okwomi to the motorbike was the 4th Accused who was the boda boa Chairman and beat the deceased, while the 1st Accused carried him. When shown the photographs, she identified Okwomi.
23. Cross-examined, PW8 said that the deceased was an in-law whom she witnessed being assaulted. She said she did not report that anybody was being beaten but was testifying on what she saw. She said that she feared the Accused persons would kill her.
24. PW9 was Dr. David Ikuru Shivachi who testified that he authored one of the two post-mortem reports and wished to produce the other report as well as it was prepared by his colleague Dr. Collins Oginga who he had worked with for one year. There being no objection from the Accused persons’ Counsel, the prosecution’s application that the witness do produce the post-mortem reports was allowed.
25. PW9 produced the post mortem report in respect of Thomas Okwach Ubulunji whose body was identified by Sarah Obulunji and Stephen Amwayi Obulunji before post-mortem was done at Yala Sub-County Hospital on 27/1/2018. The body was of an African male aged 43 years and had multiple lesions and bruises over the abdomen and the back with an underlying blood clot. There were fine deep cut wounds on the right side of the head penetrating in the skull and measuring 8-10 cms each. The head had skull fractures of the right side involving frontal, temporal and occipital bones. The nervous system showed severe haemorrhage. As a result of the examination, the Doctor formed the opinion that there was cardio-respiratory collapse following sudden and severe brain injury (haemorrhage) secondary to assault. The post-mortem report was produced as P.Ex1.
26. PW9 went on further to narrate that the second post mortem report was for Stephen Okwomi Ashibende on whose body he was requested to perform a post-mortem by Khwisero Police Station. The body was identified by Silas Omuteka Ashibende and Josiah Ashioya Omukuba. He conducted the autopsy on 25/1/2018 at 1.30 p.m. at Yala Sub-County Hospital mortuary. It was a 38 year male African whose estimated date of death was approximately one week. The findings were as follows: The left leg was mangled with dislocation fracture of the right shoulder. There was obvious open multiple fracture of the head with fracture of the left mandible and maxilla bones. On internal appearance, there was respiratory system collapse of the left lung, fractured ribs number 5 to 10 on the left side, multiple fracture of the skull with the central spine fluid leaking from the temporal area of the skull. There was also brain contusion. As a result of the examination, PW8 said that he formed the opinion that the cause of death was unnatural due to cardio-pulmonary arrest as a result of lung collapse and severe brain injury. He produced the post-mortem report which was marked P.Ex2. He said the injuries were consistent with assault.
27. On cross-examination, PW8 said that the pricking of the lungs caused the collapse of Stephen Okwomi’s lungs.
28. PW10 was P.C. Matiko Dominic who took over as an Investigating Officer from Cpl. Adam Ali who had since been transferred. He testified that he had Cpl. Ali’s recorded statement in which he recorded that on 21/1/2018, at 10.30 a.m. they received information that boda boda operators within Khwisero had taken hostage of two people and were planning to kill them. According to the Investigation Diary, the report was made vide OB Number 7/21/1/2018 wherefore the OCPD Kwisero Mr. Langat together with the OCS Khwisero and Cpl. Adam from DCI proceeded to the scene and found the victims one Stephen Okwomi and Abel Obulinji Okwami had been grievously injured and no longer alive. They found some boda boda cyclists around the scene of incident and learnt that the deceased had been killed by boda boda operators who pelted them with stones. According to the OB, the suspects were arrested by Chief Inspector Gichohi accompanied by Cpl. Langat and one suspect Francis Maende Omukhuba also known as Timo was placed in custody.
29. PW10 said that he perused the statement and established that one witness Caroline Eshiula said that she witnessed the incident. He brought her to court and she identified the Accused. The witness produced five photographs which were marked P.Ex3 (a) to (e) as well as Cpl. Adam Ali’s statement as P.Ex4. The Accused did not object to the production.
30. On cross-examination, PW10 said that he did not listen to the evidence of PW8. He said from the initial report, the Accused persons’ names were not given but from the investigations, the Accused persons killed the deceased.
31. At the close of the defence case, the court acquitted the 2nd Accused of all the charges and found that although no evidence was led as to the circumstances that led to the death of Thomas Obulunji Okwach Alias Abel, a prima facie case had been established against the 1st, 3rd and 4th Accused over the death of Stephen Okwami Ashibende. The 1st, 3rd and 4th Accused persons were therefore acquitted in Count 1 and placed on their defence with respect to Count 2.
32. In their defence, the three Accused persons gave sworn statements and called three witnesses. DW1 was the 1st Accused who said that he was a long distance truck driver and that he did not know the deceased persons. According to him on the material date, he was at Khwisero preparing to go to church when a businessman called Nathan phoned and informed him that he was at the shops and could see a huge crowd of boda boda riders who were claiming that one of them had been killed. He informed the caller that he was enroute to church, but would inform the Chairman of the boda boda riders. At that time, he was the Organizing Secretary of the Khwisero Sub-County. He called the Chairman of the Boda Boda Operators, Khwisero, by name Moses Mwinamu and informed him of the call including the threats by the boda boda operators to kill someone in revenge. He advised the Chairman that they meet at Khwisero town and when they met, they were informed that the boda boda operators had met with Haron because when he called Moses, Moses called Haron, the Secretary. DW1 said that Haron is the 3rd Accused.
33. DW2 stated that they headed to the homestead where the boda boda operators had gone to kill. They found many operators. They had tied a young man to a motor bike. He claimed he did not know the homestead. He then called the OCS Khwisero to inform him of the incident. This was at 9.30 a.m. and he sought the intervention of the OCS lest the crowd succeed in killing the hostage. The OCS said that they had only one vehicle. They waited for the police vehicle in vain. DW1 said he and the Chairman pleaded with the crowd to release the intended victim so they could do more inquiries. They agreed and released him. They then left the place with the young man with the intention of rushing him to the police station which was about 200 metres away. About 50 metres away from the Police Station, the boda boda riders overtook them and snatched the young man from them and told them that they would kill him then go kill a girl called Caro who had caused the boda boda rider to be killed. On inquiry, they learnt that Caro was a neighbour of the young man who was going to be killed. He then left with Moses, Haron his co-Accused, and others not before the court. They went to Caro’s home where they found her and informed her that they had gone to save her from being killed because the boda boda riders intended to go and kill her next. She asked them to take her to her church mate’s place for her safety but on their arrival, the lady was missing. Since Caro said that she would be safe, they left her there. Next, they went to see the OCS and found them gone to a murder scene. The next day, he, Moses and Haron went to the OCS and explained to him what had happened and he promised them they would be witnesses. He denied killing the deceased and claimed that he was only trying to help.
34. On cross-examination, he said that in 2018, he was a driver and the Secretary of the boda boda operators while the 2nd, 3rd and 4th Accused were leaders of the same group. Before the incident, a boda boda rider Isaac had been killed and the murder of the two people was to revenge Isaac’s death. He denied organizing the group for revenge. He said that the deceased, who was tied to the motor cycle was Stephen and that they took him from his home after finding him tied to spikes of the motor cycle. He said he could not recall who was riding the motor cycle nor the people he saw. He denied the allegations that the motor cycle was his, or being involved in tying the deceased up or pulling the deceased with the motor cycle. According to him, PW3, PW4 and PW8 who testified that they saw him may have seen him when he went to rescue the deceased. He said that Stephen and Abel died and the other person who was to die was Caro. He denied that Bernard, Caro’s husband was being looked for.
35. DW2 was Haron Anaminyi Olwade, the 3rd Accused. He said that he was an electrician and that on 21/1/2018, he received a call from Moses, who urged him to hurry up and go to Khwisero but did not tell him why. On arrival, he found Moses at the football field opposite the Police Station. He found Moses, Timo, some young men and women, and one policeman. On inquiry, Timo informed him that some boda boda riders were headed to a certain home on a revenge mission to kill someone. They discussed and decided to follow them to the home. On arrival, they found some boda boda riders in Stephen’s home, where they had tied Stephen’s feet to the motor cycle although he had not been beaten. DW2 said he asked Moses to address the boda boda riders and implore them to release the deceased as he was their Chairman. Timo had earlier called the OCS who had said that he had no vehicle. The crowd released Stephen and they took him towards the Police station. Timo was the one with the motor cycle. However, the boda boda riders overtook them and blocked them from advancing into the police station. They were forced to stop and the person who originally had the motorcycle forcefully took it from Timo and snatched the deceased from them asking why they had rescued the deceased. They also shouted that they would go and kill Eshiula’s wife as she was involved in the killing of the boda boda rider.
36. DW2 said that they decided to go and rescue Esiula’s wife Caro and they went there and advised her that she needed to hide to save her life. They asked her to board a motor cycle and direct them where she wanted to be taken for safety. They informed her father-in-law of the need to hide her and took her to a fellow church member’s home where they did not find her but left Caro there then went back to Khwisero. DW2 said that he never witnessed the deceased being killed as he feared to face the crowd. He said that he was arrested when he went to visit Zulu, the 2nd Accused at the Police Station and informed that he was being charged for murder. He denied being involved with the killing.
37. Cross-examined, DW2 said that on the material date he and his co-Accused all leaders of the Group, met as a result of phone calls asking them to converge. They met at the football field where they decided to go to Stephen’s house. To reach the house, they used Simo’s motor cycle and Simo left them at the gate then proceeded to church. He said he did not know whose motor cycle took them to Caro’s place after Timo was forced to disembark from his motorcycle, but they used a different motor cycle to take Caro away. He said that on that day, they did not follow up to find out what had happened to the victims.
38. DW3 was the 4th Accused; Moses Otiende Mwinami. He said that on 21/1/2018 while preparing to go to church, he received a call from Francis Maende who urged him to hurry to Khwisero because something bad was happening. He rushed over and on reaching there, Francis informed him that the boda boda riders had gathered with the intention of killing someone. He called Haron over and he arrived shortly thereafter. They briefed him then called a boda boda rider who took them to follow the riders. They reached a homestead he did not know. They saw a young man, unknown to him, whose feet were tied to a motor cycle. As leaders, they successfully addressed the crowd and urged them to release the young man to them. They took the young man on the motor cycle he was tied to towards the Police Station but were overtaken by boda boda riders who overpowered them and took the young man and the motor cycle and left with him. After that, they decided to look for Caro, as the crowd were baying for her blood. They rushed to her home and explained to her that she was in danger. She asked them to take her to her lady friend at Bushinala. They took her and left her there after she assured them that she was safe. They went to the OCS to report but did not find him. Later, he heard that some people had been killed. The next day they went to see the OCS who told them that they would be witnesses. After a year, he was arrested and later charged.
39. On cross-examination, DW3 said that after rescuing the deceased, they were attacked by the crowd, who said that they would go for Caro after finishing with him. He said they were not far away from the police. He admitted that they did not go to report to the Police Station, which is 50 metres away. He denied the suggestion that they had already killed the deceased by the time they were picking Caro. He admitted that after dropping Caro, they did not go back to check what had happened to the deceased despite being leaders of the boda boda riders. He denied the suggestion that they went to the police station for cover up. He also denied disappearing after his co-Accused had been arrested.
40. DW4 was Nathan Omuroka who said that he knew the Accused persons, who used to be leaders of boda boda riders. He said that on 21/1/2018 he was at the shop buying milk when he heard a lot of noise and saw many people and on inquiring, he learnt that a suspected killer of a boda boda rider had been arrested by boda boda riders on a revenge mission. He was given a lift by a boda boda rider and on arriving at the compound, he saw someone who had been tied to a motor bike. He heard that the person was called Okwomi. He phoned Timo and explained the situation to him. Timo arrived with his colleagues and engaged the crowd in some discussions. He saw them take Okwomi on the motor bike. Timo sat in front, Okwomi was in the centre and Mose sat at the back. As they went, the crowd followed them. As they approached Khwisero Hospital, the motor bikes started speeding and he ran to catch up with them but by the time he reached them, they had been stopped. Timo’s motor bike was taken from him and Mose caused to disembark. One of them rode the motor bike. He did not know him nor the other boda boda riders. At Emungeso junction, they found a huge crowd and motor bike on fire. He did not know whose motor bike was burnt. He did not see Timo or Mose at that time and Okwomi was beaten about 2 ½ to 3 Km away from the Police Station a
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