Fredrick Omondi Ochunga was charged with the offense of Murder contrary to section 203 as read with section 204 of the Penal code.
The particulars of the Charge are that on or about the 30th April 2023 at Ogwedhi Centre, Sagegi Sub-location, within Migori County Fredrick Omondi Ochunga alias OTOTO, murdered one Edwin Lenachuru.
The prosecution called a total of eight (8) witnesses but only five (5) witnesses were present and testified in support of their case. The hearing commenced before Judge R. Wendoh.
Prosecution’s Case
PW1, DR. EVANS OMONDI gave a sworn testimony and stated that he did a post mortem on the body of Edwin Lenachuru 10th May 2023. He testified that from the post mortem he observed wound on the scalp on the vertex; posteriorly there were 4 big patches on the petechiae the largest being about 15cm; On the head there were huge blood clots surrounding the brain matter at the vertex. As a result of the examination he formed the opinion that the cause of death was severe head injury secondary to assault with a blunt object with a high magnitude force to the head. That from the examination the force was one strike to the area.
Upon cross examination, he confirmed that he had been a doctor for 8 years and had done several autopsies. Moreover, he stated that as a Medical officer, he did some forensic studies thus was qualified to conduct the post mortem. That during the particular post mortem, a police officer, Sophie Lenanchuru and one Clement Lenanchuru were present. As for the approximate time of death, he stated that he could not tell. He further confirmed that the cause of death was severe head injury severely to assault by a blunt object with high magnitude force.
PW2, NASHON OTIENO AJWANG testified that he knew the accused person who had been his neighbor for over 10 years. That on 30/04/2023 he was in a club where alcohol is drunk. That they were six people; the Accused, the Accused’s wife, PW2’s wife and PW2. That at about 9:00Pm they were taking alcohol and were taking Chang’aa. He testified that the club belonged to a person they referred to as Maragoli and he does not know his name. That he heard noises and saw Maragoli cleaning blood and pushing the person who died outside while telling him to go out and not die in his premises. That he left and went home.
It was PW2’s testimony that before he left and went home, and before the deceased was pushed out, he left Maragoli asking the deceased for his money and they started to struggle. That it was Chang’aa money and PW2 decided to go outside leaving the following people inside: The Accused Ototo, his wife, the Maragoli and the deceased. That when outside, he heard noises in the club and went back but before entering, he saw Maragoli pushing out the deceased. The deceased was bleeding from the head and that he did not know him. That the next day he went to work and later heard that the Accused had been arrested. PW2 was also arrested and he agreed he was at the Chang’aa place and recorded his statement.
Upon cross examination, PW2 stated that he knew the accused for over 10 years and that they accompanied each other when going to drink Chang’aa or when going to work. That he had never been involved in any fight and only saw the fight on the day of the incident. That the accused did not disagree with the deceased. He further testified that he saw the deceased bleeding from the head but did not see who hit him. That he was taking chang’aa and drunk but he is certain he saw the blood. Upon further cross-examination by the State counsel PW2 testified that he had never seen the accused fighting. It was his further testimony that the accused joined the fight between the deceased and the Maragoli and he had a metal which he used to hit the deceased on the head.
PW3, NO. 88583 CPL ELEN LOCHUCH testified that she was based at DCI Suna East on general Investigations under DCI Suna East. That on 5/05/2023 she was on duty when a murder incident was reported and she was asked to investigate the same. She initiated her Investigations by recording witness statements. That according to the first witness Elvis Lenanchuru, he was with the deceased at the Chang’aa den in Ogwedhi Centre on the day of the incident. That they stayed together till late in the evening when Elvis left the deceased and met him that night at home with injuries on his head. The deceased told them that he was assaulted by one Fredrick Omondi alias “Ototo.” That Elvis took the deceased to hospital at Ogwedhi health Centre where he was treated and discharged. Later the deceased complained of a severe headache and they went back to the Health Centre but were referred to Ombo Mission hospital where he succumbed.
The Investigating Officer PW3 said further that Ann Ashly Wairimu a witness and the accused’s girl friend said she was at the Chang’aa den with the deceased and others. That they were left at the den three people: The Accused, deceased and herself. That Ann went out to a kiosk and left the Accused and the Deceased and after a while, she met the accused at the corridor outside where she left them. The Accused told them to leave and they did. That the Deceased was left at the chang’aa den.
According to PW3 Matiko confirmed that they were with the Accused, the deceased and Ann Ashly who is the accused’s girlfriend drinking Chang’aa but he left for home and heard a commotion. When he came back to the den he saw the Accused hit the deceased using a metal rod.
It was PW3’s further testimony that they could not trace the owner of the house who relocated soon after the incident and was said to have been separating the Accused and the Deceased. She arranged for the post mortem to be done and it confirmed that the deceased died due to injuries inflicted on him. PW3 then compiled the report and forwarded the file to ODPP to recommend charging of the suspect.
Upon cross examination PW3 stated that she was the arresting officer and arrested the accused at his father’s home at Ogwedhi Centre which was over one kilometer away from his usual residence. That the accused was identified by his girlfriend Anne Ashley. PW3 said that when she visited the crime scene, the owner of the house had already fled and no weapons were recovered. That at the time of the incident, the accused was living in a rented house at Ogwedhi Centre but relocated after the incident.
PW4, Alveso Lemilei Lasaaya testified that on 30/04/2023 he was in Ogwedhi Masai Centre and was working with a friend to make brown sugar. He stated that he was with Edwin Ole Lenashuru, Shaban and others who were Kisiis but he never knew their names. On Sunday they were paid their wages and proceeded to Ogwedhi Centre where they stayed from 11:00am to 2:00Pm. At 2:00 Pm they went to eat in a hotel. That they were 4 people but he and Edwin left and went to the village to have some alcoholic drinks. They ordered for the drinks and drunk till 5:00Pm when he informed Edwin that they should go home as it was about to rain and they had to cross a river which usually swale but Edwin refused to accompany him. He then went home alone and Edwin arrived at about 9:00Pm and found he, Shaban and 2 others had already slept.
It was PW4’s further testimony that Edwin had a cut wound on the head and was bleeding. He washed the blood and proceeded to sleep however, before sleeping he told PW4 that a girl selling alcohol had gone to sit with him and someone found them seated with the girl and hit him on the head with a stone. PW4 confirmed that the girl was known to him and used to sell alcohol at the said joint. He further stated that he never saw the girl in company of anyone when he was at the joint.
PW4 testified that he woke Edwin the next day so that they could go locate the person who assaulted him but Edwin said he was not feeling well upon which PW4 placed Panadol and water for Edwin to take when he woke up. The time was about 8:00am.
PW4 further testified that he went to the place they had taken alcohol and inquired from the person he found selling alcohol what had happened to Edwin and he responded that he did not know what had happened. PW4 and Shaban then went back to the farm and after sometime, he informed Shaban that they should go check on Edwin who they found had not taken the Panadol and still claimed to be unwell. Due to the rains, they never took him to hospital until the next day when they borrowed a motor-bike and took him to Ogwedhi Dispensary where he was referred to Migori Mission Hospital for an x-ray. Before they could get an ambulance to take him to the Mission Hospital he died and his body was taken to the mortuary. The next day they went back to Ogwedhi and reported to the police station and later went to Migori DCI. After investigations they took the body of the deceased to Baringo for burial. PW4 stated that when he went to record the statement at Ogwedhi, their employer looked for the girl who caused Edwin’s assault and found out she was also beaten and was walking with a limp. PW4 added that he did not know the accused person.
Upon cross examination, PW4 stated that he recorded a statement with DCI on the 30/04/2023 between 11:00Am to 2:00Pm and they had not taken any alcohol at that time. That it was the deceased and he who went to take Chang’aa on the incident day while others went to watch football. That on the material day he was drunk but it is not true that he did not know what happened. He confirmed that the girl who caused Edwin’s assault was at the Chang’aa den and Edwin arrived before him. It was his further testimony that he found Shaban, Edwin and 2 other people in the house. He stated that he did not recall what time he arrived in the house and that he found Edwin had already slept. That he found Edwin washing his head and he does not know who assaulted Edwin. He further stated that they took Edwin to hospital after 2 days and when they went back to the place they took alcohol they found a man who was selling Chang’aa. That the man was not present at the club on the day Edwin was assaulted and that he did not know the accused.
PW5, Dr. Clement Lenashurui testified that he lived in Baringo and taught at Egerton University. That they received information that his nephew had passed on and his body was at health facility in Migori. That after consultation he was identified to come and Identify the body of the deceased at Migori and confirm whether it was his nephew. That upon arrival he went to the DCI Office and after some discussions they went to the morgue and identified the body of Lenana Lenashurui. He asked for the post mortem and the doctor came and did post mortem. The Doctor showed him the injuries on the head of the deceased. There was penetration and injury on the skull that led to bleeding in the brain. That after the post mortem, they recorded 5 statements and urged that the suspect be prosecuted and that they had a witness who was with the deceased prior to his death.
The accused person Fredrick Omondi Ochunga gave his sworn testimony on 23/01/2025. He stated that on 6th January he was called to work at Masorora Centre in the business of cutting timber using power saw until on 30th March 2023
He said that he could not recall where he was on 30th April 2023 at about 7.00pm but went ahead to say that he was arrested on the material day.He said he left home in January 2023 and that when the deceased died he was in Narok and not in Ogwedhi. He said Masorora is 2KM from Ogwedhi and he went there using a motor bike. He further claimed that he did not know the Maragoli Man referred to by the prosecution witnesses.
The Accused person’s advocate filed written submissions dated 7th February 2025 and submitted that PW2 contradicted himself in his testimony and that the prosecution is only relying on the evidence of one witness who was intoxicated at the time of the incident.
Analysis and Determination
I have thoroughly and duly considered the evidence tendered before this court and the Submission of the Accused person. This being a criminal trial the onus is upon the prosecution to prove its case beyond all reasonable doubt. What constitutes reasonable doubt was discussed in Woolington vs. DPP (1935) AC 462 where Vicount Sankey L.C ably stated: -
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defense of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offense was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to Whittle it down can be entertained.”
The accused herein is charged with the offense of murder contrary to section 203 of the Penal Code.
In the case State v F.O.O [2021] eKLR it was held that the offence of murder requires proof of the following elements beyond reasonable doubt, proof of death, the cause of that death, proof that the death was due to an unlawful act or omission, that the unlawful act or omission was on the part of the suspect and that the unlawful killing was with malice aforethought.
The first issue for consideration is proof of death. In the instant case, there is no dispute of the deceased’s death. This was confirmed by all the prosecution witnesses, more so by the evidence of PW1 who carried out the postmortem on the body of the deceased and concluded that the cause of death was severe head injury secondary to assault with a blunt object with a high magnitude force to the head. Accordingly, the prosecution has satisfied this element beyond reasonable doubt.
The next question is whether the death of the deceased Edwin Lenashuru was caused by an unlawful act or omission. Article 26 (1) of the Constitution guarantees every person the right to life. The postmortem report prepared by PW1 revealed that the cause of death was severe head injury secondary to assault with a blunt object with a high magnitude force to the head. The doctor also found that there were huge blood clots surrounding the brain matter at the vertex. It is obvious that the injuries that led to the death of the deceased were not accidental or self-inflicted. They were caused by an unlawful act.
On whether the death was caused by the Omission or unlawful act committed by the Accused person, only one witness, PW2-Nashon Otieno Ajwang testified that he saw the accused hit the deceased with a metal on 30th April 2023 at a changaa drinking den. He said he was at the club with his wife, the Accused and Accused’s wife, and the deceased and the Maragoli who was the owner of the club was also present.
PW2 said that when he was outside, he heard noises in the club and went back but before entering, he saw Maragoli pushing out the deceased who was bleeding from the head and telling him to go and not die in his premises. That the next day he went to work and later heard that the Accused had been arrested. PW2 was also arrested and he agreed he was at the Chang’aa place and recorded his statement to that effect and he was made a prosecution witness.
Upon cross examination PW2 said that he was taking chang’aa and drunk but he was certain that he saw the deceased bleed from the head. Upon further cross-examination by the State counsel PW2 testified that he had never seen the accused fighting but that the accused joined the fight between the deceased and the Maragoli and he had a metal which he used to hit the deceased on the head.
Although the Accused attempted to raise a defense of alibi by claiming he was not at Ogwedhi on 30th April 2023, and proceeded to contradict himself by stating that he was arrested on the same 30th April 2023 at about 8:00Pm at Ogwedhi in his home. I find that the evidence tendered by PW2 places the Accused person at the scene of the Incident and his defense of alibi cannot be sustained because he was arrested a few days after the incident 2KM away from the scene where he formerly resided having moved to his father’s home after committing the offence. The Accused did not raise the defense of alibi with the arresting/ Investigating Officer or even with prosecution witnesses during trial and as such the prosecution did not get the opportunity to verify his allegations. Considering PW2 said the Accused was at the drinking den and he saw him hit the deceased on the head with a metal, this court finds that he is the one who committed the unlawful act that led to the death of the deceased. The unlawful act herein was assault using a heavy metal, and with high force on the head which led to the death of the Deceased.
Proof that the Accused had malice aforethought.
Section 206 of the Penal Code provides as follows: -
Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.
In the case of Rex vs. Tubere s/o Ochen (1045) EACA 63, the Eastern Court of Appeal observed and defined malice aforethought as follows: -
“In determining the existence or non-existence of malice, one has to look at the facts proving the weapon used, the manner in which it is used and the part of the body injured.”
The use of a blunt object to inflict injuries on the deceased and targeting the head with high magnitude force and with only one strike was obviously meant to inflict grievous harm or cause death of the deceased. I have no doubt that malice aforethought has been proved.
Having considered all the evidence on record, this court is satisfied that it is the Accused who attacked and fatally injured the deceased at the changaa drinking den. I find him guilty of the offense of murder as charged and convict him accordingly.
Right to Appeal within 14 days.
DELIVERED, DATED and SIGNED at MIGORI this 8th day of May, 2025.
The particulars of the Charge are that on or about the 30th April 2023 at Ogwedhi Centre, Sagegi Sub-location, within Migori County Fredrick Omondi Ochunga alias OTOTO, murdered one Edwin Lenachuru.
The prosecution called a total of eight (8) witnesses but only five (5) witnesses were present and testified in support of their case. The hearing commenced before Judge R. Wendoh.
Prosecution’s Case
PW1, DR. EVANS OMONDI gave a sworn testimony and stated that he did a post mortem on the body of Edwin Lenachuru 10th May 2023. He testified that from the post mortem he observed wound on the scalp on the vertex; posteriorly there were 4 big patches on the petechiae the largest being about 15cm; On the head there were huge blood clots surrounding the brain matter at the vertex. As a result of the examination he formed the opinion that the cause of death was severe head injury secondary to assault with a blunt object with a high magnitude force to the head. That from the examination the force was one strike to the area.
Upon cross examination, he confirmed that he had been a doctor for 8 years and had done several autopsies. Moreover, he stated that as a Medical officer, he did some forensic studies thus was qualified to conduct the post mortem. That during the particular post mortem, a police officer, Sophie Lenanchuru and one Clement Lenanchuru were present. As for the approximate time of death, he stated that he could not tell. He further confirmed that the cause of death was severe head injury severely to assault by a blunt object with high magnitude force.
PW2, NASHON OTIENO AJWANG testified that he knew the accused person who had been his neighbor for over 10 years. That on 30/04/2023 he was in a club where alcohol is drunk. That they were six people; the Accused, the Accused’s wife, PW2’s wife and PW2. That at about 9:00Pm they were taking alcohol and were taking Chang’aa. He testified that the club belonged to a person they referred to as Maragoli and he does not know his name. That he heard noises and saw Maragoli cleaning blood and pushing the person who died outside while telling him to go out and not die in his premises. That he left and went home.
It was PW2’s testimony that before he left and went home, and before the deceased was pushed out, he left Maragoli asking the deceased for his money and they started to struggle. That it was Chang’aa money and PW2 decided to go outside leaving the following people inside: The Accused Ototo, his wife, the Maragoli and the deceased. That when outside, he heard noises in the club and went back but before entering, he saw Maragoli pushing out the deceased. The deceased was bleeding from the head and that he did not know him. That the next day he went to work and later heard that the Accused had been arrested. PW2 was also arrested and he agreed he was at the Chang’aa place and recorded his statement.
Upon cross examination, PW2 stated that he knew the accused for over 10 years and that they accompanied each other when going to drink Chang’aa or when going to work. That he had never been involved in any fight and only saw the fight on the day of the incident. That the accused did not disagree with the deceased. He further testified that he saw the deceased bleeding from the head but did not see who hit him. That he was taking chang’aa and drunk but he is certain he saw the blood. Upon further cross-examination by the State counsel PW2 testified that he had never seen the accused fighting. It was his further testimony that the accused joined the fight between the deceased and the Maragoli and he had a metal which he used to hit the deceased on the head.
PW3, NO. 88583 CPL ELEN LOCHUCH testified that she was based at DCI Suna East on general Investigations under DCI Suna East. That on 5/05/2023 she was on duty when a murder incident was reported and she was asked to investigate the same. She initiated her Investigations by recording witness statements. That according to the first witness Elvis Lenanchuru, he was with the deceased at the Chang’aa den in Ogwedhi Centre on the day of the incident. That they stayed together till late in the evening when Elvis left the deceased and met him that night at home with injuries on his head. The deceased told them that he was assaulted by one Fredrick Omondi alias “Ototo.” That Elvis took the deceased to hospital at Ogwedhi health Centre where he was treated and discharged. Later the deceased complained of a severe headache and they went back to the Health Centre but were referred to Ombo Mission hospital where he succumbed.
The Investigating Officer PW3 said further that Ann Ashly Wairimu a witness and the accused’s girl friend said she was at the Chang’aa den with the deceased and others. That they were left at the den three people: The Accused, deceased and herself. That Ann went out to a kiosk and left the Accused and the Deceased and after a while, she met the accused at the corridor outside where she left them. The Accused told them to leave and they did. That the Deceased was left at the chang’aa den.
According to PW3 Matiko confirmed that they were with the Accused, the deceased and Ann Ashly who is the accused’s girlfriend drinking Chang’aa but he left for home and heard a commotion. When he came back to the den he saw the Accused hit the deceased using a metal rod.
It was PW3’s further testimony that they could not trace the owner of the house who relocated soon after the incident and was said to have been separating the Accused and the Deceased. She arranged for the post mortem to be done and it confirmed that the deceased died due to injuries inflicted on him. PW3 then compiled the report and forwarded the file to ODPP to recommend charging of the suspect.
Upon cross examination PW3 stated that she was the arresting officer and arrested the accused at his father’s home at Ogwedhi Centre which was over one kilometer away from his usual residence. That the accused was identified by his girlfriend Anne Ashley. PW3 said that when she visited the crime scene, the owner of the house had already fled and no weapons were recovered. That at the time of the incident, the accused was living in a rented house at Ogwedhi Centre but relocated after the incident.
PW4, Alveso Lemilei Lasaaya testified that on 30/04/2023 he was in Ogwedhi Masai Centre and was working with a friend to make brown sugar. He stated that he was with Edwin Ole Lenashuru, Shaban and others who were Kisiis but he never knew their names. On Sunday they were paid their wages and proceeded to Ogwedhi Centre where they stayed from 11:00am to 2:00Pm. At 2:00 Pm they went to eat in a hotel. That they were 4 people but he and Edwin left and went to the village to have some alcoholic drinks. They ordered for the drinks and drunk till 5:00Pm when he informed Edwin that they should go home as it was about to rain and they had to cross a river which usually swale but Edwin refused to accompany him. He then went home alone and Edwin arrived at about 9:00Pm and found he, Shaban and 2 others had already slept.
It was PW4’s further testimony that Edwin had a cut wound on the head and was bleeding. He washed the blood and proceeded to sleep however, before sleeping he told PW4 that a girl selling alcohol had gone to sit with him and someone found them seated with the girl and hit him on the head with a stone. PW4 confirmed that the girl was known to him and used to sell alcohol at the said joint. He further stated that he never saw the girl in company of anyone when he was at the joint.
PW4 testified that he woke Edwin the next day so that they could go locate the person who assaulted him but Edwin said he was not feeling well upon which PW4 placed Panadol and water for Edwin to take when he woke up. The time was about 8:00am.
PW4 further testified that he went to the place they had taken alcohol and inquired from the person he found selling alcohol what had happened to Edwin and he responded that he did not know what had happened. PW4 and Shaban then went back to the farm and after sometime, he informed Shaban that they should go check on Edwin who they found had not taken the Panadol and still claimed to be unwell. Due to the rains, they never took him to hospital until the next day when they borrowed a motor-bike and took him to Ogwedhi Dispensary where he was referred to Migori Mission Hospital for an x-ray. Before they could get an ambulance to take him to the Mission Hospital he died and his body was taken to the mortuary. The next day they went back to Ogwedhi and reported to the police station and later went to Migori DCI. After investigations they took the body of the deceased to Baringo for burial. PW4 stated that when he went to record the statement at Ogwedhi, their employer looked for the girl who caused Edwin’s assault and found out she was also beaten and was walking with a limp. PW4 added that he did not know the accused person.
Upon cross examination, PW4 stated that he recorded a statement with DCI on the 30/04/2023 between 11:00Am to 2:00Pm and they had not taken any alcohol at that time. That it was the deceased and he who went to take Chang’aa on the incident day while others went to watch football. That on the material day he was drunk but it is not true that he did not know what happened. He confirmed that the girl who caused Edwin’s assault was at the Chang’aa den and Edwin arrived before him. It was his further testimony that he found Shaban, Edwin and 2 other people in the house. He stated that he did not recall what time he arrived in the house and that he found Edwin had already slept. That he found Edwin washing his head and he does not know who assaulted Edwin. He further stated that they took Edwin to hospital after 2 days and when they went back to the place they took alcohol they found a man who was selling Chang’aa. That the man was not present at the club on the day Edwin was assaulted and that he did not know the accused.
PW5, Dr. Clement Lenashurui testified that he lived in Baringo and taught at Egerton University. That they received information that his nephew had passed on and his body was at health facility in Migori. That after consultation he was identified to come and Identify the body of the deceased at Migori and confirm whether it was his nephew. That upon arrival he went to the DCI Office and after some discussions they went to the morgue and identified the body of Lenana Lenashurui. He asked for the post mortem and the doctor came and did post mortem. The Doctor showed him the injuries on the head of the deceased. There was penetration and injury on the skull that led to bleeding in the brain. That after the post mortem, they recorded 5 statements and urged that the suspect be prosecuted and that they had a witness who was with the deceased prior to his death.
The accused person Fredrick Omondi Ochunga gave his sworn testimony on 23/01/2025. He stated that on 6th January he was called to work at Masorora Centre in the business of cutting timber using power saw until on 30th March 2023
He said that he could not recall where he was on 30th April 2023 at about 7.00pm but went ahead to say that he was arrested on the material day.He said he left home in January 2023 and that when the deceased died he was in Narok and not in Ogwedhi. He said Masorora is 2KM from Ogwedhi and he went there using a motor bike. He further claimed that he did not know the Maragoli Man referred to by the prosecution witnesses.
The Accused person’s advocate filed written submissions dated 7th February 2025 and submitted that PW2 contradicted himself in his testimony and that the prosecution is only relying on the evidence of one witness who was intoxicated at the time of the incident.
Analysis and Determination
I have thoroughly and duly considered the evidence tendered before this court and the Submission of the Accused person. This being a criminal trial the onus is upon the prosecution to prove its case beyond all reasonable doubt. What constitutes reasonable doubt was discussed in Woolington vs. DPP (1935) AC 462 where Vicount Sankey L.C ably stated: -
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defense of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offense was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to Whittle it down can be entertained.”
The accused herein is charged with the offense of murder contrary to section 203 of the Penal Code.
In the case State v F.O.O [2021] eKLR it was held that the offence of murder requires proof of the following elements beyond reasonable doubt, proof of death, the cause of that death, proof that the death was due to an unlawful act or omission, that the unlawful act or omission was on the part of the suspect and that the unlawful killing was with malice aforethought.
The first issue for consideration is proof of death. In the instant case, there is no dispute of the deceased’s death. This was confirmed by all the prosecution witnesses, more so by the evidence of PW1 who carried out the postmortem on the body of the deceased and concluded that the cause of death was severe head injury secondary to assault with a blunt object with a high magnitude force to the head. Accordingly, the prosecution has satisfied this element beyond reasonable doubt.
The next question is whether the death of the deceased Edwin Lenashuru was caused by an unlawful act or omission. Article 26 (1) of the Constitution guarantees every person the right to life. The postmortem report prepared by PW1 revealed that the cause of death was severe head injury secondary to assault with a blunt object with a high magnitude force to the head. The doctor also found that there were huge blood clots surrounding the brain matter at the vertex. It is obvious that the injuries that led to the death of the deceased were not accidental or self-inflicted. They were caused by an unlawful act.
On whether the death was caused by the Omission or unlawful act committed by the Accused person, only one witness, PW2-Nashon Otieno Ajwang testified that he saw the accused hit the deceased with a metal on 30th April 2023 at a changaa drinking den. He said he was at the club with his wife, the Accused and Accused’s wife, and the deceased and the Maragoli who was the owner of the club was also present.
PW2 said that when he was outside, he heard noises in the club and went back but before entering, he saw Maragoli pushing out the deceased who was bleeding from the head and telling him to go and not die in his premises. That the next day he went to work and later heard that the Accused had been arrested. PW2 was also arrested and he agreed he was at the Chang’aa place and recorded his statement to that effect and he was made a prosecution witness.
Upon cross examination PW2 said that he was taking chang’aa and drunk but he was certain that he saw the deceased bleed from the head. Upon further cross-examination by the State counsel PW2 testified that he had never seen the accused fighting but that the accused joined the fight between the deceased and the Maragoli and he had a metal which he used to hit the deceased on the head.
Although the Accused attempted to raise a defense of alibi by claiming he was not at Ogwedhi on 30th April 2023, and proceeded to contradict himself by stating that he was arrested on the same 30th April 2023 at about 8:00Pm at Ogwedhi in his home. I find that the evidence tendered by PW2 places the Accused person at the scene of the Incident and his defense of alibi cannot be sustained because he was arrested a few days after the incident 2KM away from the scene where he formerly resided having moved to his father’s home after committing the offence. The Accused did not raise the defense of alibi with the arresting/ Investigating Officer or even with prosecution witnesses during trial and as such the prosecution did not get the opportunity to verify his allegations. Considering PW2 said the Accused was at the drinking den and he saw him hit the deceased on the head with a metal, this court finds that he is the one who committed the unlawful act that led to the death of the deceased. The unlawful act herein was assault using a heavy metal, and with high force on the head which led to the death of the Deceased.
Proof that the Accused had malice aforethought.
Section 206 of the Penal Code provides as follows: -
Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.
In the case of Rex vs. Tubere s/o Ochen (1045) EACA 63, the Eastern Court of Appeal observed and defined malice aforethought as follows: -
“In determining the existence or non-existence of malice, one has to look at the facts proving the weapon used, the manner in which it is used and the part of the body injured.”
The use of a blunt object to inflict injuries on the deceased and targeting the head with high magnitude force and with only one strike was obviously meant to inflict grievous harm or cause death of the deceased. I have no doubt that malice aforethought has been proved.
Having considered all the evidence on record, this court is satisfied that it is the Accused who attacked and fatally injured the deceased at the changaa drinking den. I find him guilty of the offense of murder as charged and convict him accordingly.
Right to Appeal within 14 days.
DELIVERED, DATED and SIGNED at MIGORI this 8th day of May, 2025.