The Accused Person herein Joash Robi Nchagwa was charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code.
The particulars of the offence are that on the 17th day of September 2022 at Korobunyige Village in Nyamagagana Sub Location in Kuria West Sub County within Migori County in the Republic of Kenya murdered Esther Robi.
The 1st prosecution witness Evaline Robi testified that she was 32 years old and she came from Masaba ward Korobunyinge and she was a farmer. She said she had been married John Nchagwa Kimoni for 4 years by the time of the incident.
She recalled that on 16.9.2022 at about 7.30pm she was going to the shop when passing by her in-law’s house, she heard that there was a quarrel. It was dark. She was passing by the fence. She heard voices of people quarrelling and she decided to enter through the gate. That she found Joash Robi her brother in-law the accused herein seated on a chair with his 2 children. That she entered the house and found her co-wife was lying on the floor. That she called Robi (accused) but he did not respond. That she called Esther who was lying down and she did not respond. She lay on the floor on her stomach. That she held her and shook her but she did not respond. In the housed was smell of alcohol. That she noted the smell of alcohol was from her. That she went out to look for milk. She said her house is 2 meters from the accused person’s house. That at the entrance she found her husband and they went back to accused’s house and found mama Margaret. That mama Margaret helped her to give the deceased milk and she drank twice and she lay on the floor again. She was injured on the left hand. The left hand was swollen. We left. Peter left when we were giving Esther milk. She went back home. Robi did not talk to her. Margaret told Robi not to quarrel again. She had seen Esther that day when she went to get vegetables and she had no injury to the hand. She did not talk to the two children.
That on 17th at 12.30pm she heard screams. She had not seen Esther in the morning after I left her at midnight. That she ran there and found she was dead. She was in her bed. She was not where I left her. I did not observe her body. People were many. I did not see accused at that time. Police were called. Esther was taken to the mortuary.
When cross examined by Ms. Matiko Advocate, PW1 said that she heard quarrel in accused’s house and she entered because the door was open. Accused did not speak to her. He just sat there. She said Esther was smelling of alcohol. That her left hand with the fingers were swollen. There was no blood. She did not see any other injuries.
PW2 Margaret Atieno Koroso testified that when recording her statement, she gave the name Margaret Atieno Samuel. She said she is a farmer and lives in
Korobunyinge and is married to Samwel Koroso.
She recalled that on 16.9.2022 at about 6.00pm she was in the house. Children who were selling things outside went to tell her that there was noise from Esther’s house. She thought they were children and so she continued with what she was doing – cooking. Dommy came and asked her to go and assist her friend. He said she was being beaten by the husband. That she finished cooking and went and found the gate closed. That she knocked the gate and Robi opened for her. That she entered the house. That Robi told her togo in and see her friend. On hearing her voice Esther called her “Mama Mary” twice. She asked what it is and she kept quiet. She asked her if it was her husband and she kept quiet. She was lying on the floor of the house. After a short while Robi (PW1) came with her husband. They had milk. They found her in the house. They gave Esther the milk and she drunk once. The 2nd time she tried the milk was just pouring. They put cushions on the floor and put her there. PW2 told Robi not to beat Esther again and she left. She identified the accused in court as Robi. Robi was just there as they gave Esther milk. She told Robi not to beat Esther again and left to go back to her work.
PW2 said that she noticed that her fingers and wrist were fractured. The hand was free and could not be straight. She said she did not know if Robi had ever beaten Esther before. She said she saw Robi had anger from the way he spoke to her. Esther was friend and she would even look after her children. She said that she knew accused well and he would go to see his children at her house.
Next day morning she went to the farm. That when she returned, her child said Esther had sent a child for milk. She sent the child to ask if she could take her tea or ugali and the child came back and said that Esther was not there. She did not make the tea. That she went to get water and another girl told her to go and see her friend. That she went and found gate closed. She pushed it and the door was open. The housed was dirty. That she pushed the door to the bedroom and found her lying on her back. She called her but she did not respond. That she went outside and found Mwita Kimoni – Robi’s uncle and called him but he told her to go and call Robi. That she told him to come and he refused. He was next door. That she went back to the house and called Esther, made her sit but she could not. That Mwita told her to scream. When she screamed Mwita came and others. That she went back home and found police had come. There was little blood in the house. She did not observe the body. She did not see where the blood came from. The dress she wore had blood on the side of the dress. Robi (accused) was not present even when police came.
In cross examination by Ms. Matiko Advocate PW2 said that she saw Esther was injured on the hand. She said that she did not talk of injuries to the thighs. The wrist and fingers were fractured. What she said in court is what she saw and that is what she told the officer who recorded her statement. She said the accused was angry but did not chase her. He opened the gate for her. She said she did not know if Esther was drunk. She gave her milk. She did not smell alcohol. She said she heard things move from the throat to the stomach. She said that on 16th she was not conscious. She could not move and never spoke again. She could not tell whether the milk they gave her in the evening remained in the mouth.
PW3 John Gichame Mwita testified that on 17th September 2022 he was asleep after 1.00pm Margaret called him on phone and asked what is wrong at their home. He said Margaret lives about 1 ½kms away and is a wife to his brother. That he told her that he would get out to find out. That he heard noises from about 2kms away. That he went to the place and found people crying and were many. That he entered and found a lady on the bed. She was dead. He said he saw the body. The accused is the son to his brother. He said he only peeped from the door because people were crying and he believed she was dead. He said he did not enter the bedroom. That after ½ an hour brother of accused arrived and advised they go and report at police station. Accused was not present at the scene. Police came and took the body. PW3 said he did not observe the body because it was covered. I had seen deceased on 15th. She was fine
PW4 Dr. Mark Oduor Otieno. Medical officer at Migori County and Referral Hospital in surgical department examined the body of the deceased herein at Kehancha Sub-County Hospital on 21st September 2022 after being identified by Simon Mokami and Joseph Boke.
General observation he found the body had no clothing. The body was of a female African and was in good nutritional status with height of 175cm There were early post mortem changes. The body was well preserved and embalmed.
External appearance there were multiple lacerations on forearm bilaterally with fracture of right wrist. There were blood stains on the nostril and mouth with vomitous which was also blood stained. There were swellings on the left hip region with haematoma within the muscles and the lacerations on the forearm is indication or a sign of struggle or self defence.
On Internal appearance PW4 observed moderate haemothorax approximately 250ml on left thoracic region with moderate lung collapse. The trachea was central with lung parenchyma – lung tissue was in normal state. The left side of chest there was moderate haemothorax.
Cardiovascular system was obviously enlarged with fat disposition on the surface. This was coincidental finding.
Digestive system: Normal
There was distended gall bladder which was slowly leaking. This was another coincidental finding.
Genito urinary system: Normal
Head: Normal except for blood coming from nose and mouth
Spinal column, code and nervous systems were normal
PW4 did form opinion that cause of death was moderate haemothorax secondary to assault by blunt object. He did fill and sign the post mortem report and produced it Exp 1. The coincidental findings were not the primary cause of death. Certificate of death No. 0252932 was issued and signed by him and stamped by Kehancha hospital.
In cross examination by Ms. Matiko Advocate, PW4 said that he had attended to many cases of trauma previously and injuries sustained by the deceased could be either blunt or penetrative. For blunt trauma there are multiple causes – assault by blunt object, a fall on flat surface. Accidents also inflict blunt trauma such as lacerations, bruises or even cuts. There was multiple laceration on forehead and fracture wrist. There was swelling on hip region with haematoma. The swelling on hip and lacerations are also similar to those in road traffic accident. The head was normal except for the eyes, nose and mouth had blood.
In Re-examination by Mr. Oimbo PW4 said that the injuries on the deceased’s hands were a sign of struggle on defensive. Road traffic accident injuries depend on intensity and one could have the kind of lacerations herein but the ones herein were as a result of defensive mechanism as opposed to road traffic accident.
PW5 No. 64510 Sergent Livingston Kaitui from DCI Migori crime scene support services section said he was Gazetted in Notice No. 217 of 28.12.2012 as Scenes of Crime Officer. He recalled that on 7.10.2022 at around 10.30am he was requested by one Corporal Njogu of DCI Kehancha to prepare a certificate for photographs that he handed to him. The photographs were 5 in number. He marked them as 1 – 5. Photograph No. 1 was close view of female body which was in a bed and covered with a blanket from waist downwards. She was wearing a blue dress. No. 2 showed close up view of the face with some discharge from the nose. No. 3, 4 and 5 were showing some injuries on the left hand close to the wrist injuries on the right hand close to the wrist but on the back of the palm. The 5th photo showed injuries at the back of the right thigh. I later prepared a certificate for the same and signed it. It is dated 7.10.2022. He produced the photos as Ex P2(a) to (e) and the certificate Ex P3.
PW6 Salvine Cheruto Katukoi, Government Analyst currently at Government Chemist Laboratory Kisumu appeared virtually and testified that on 4.10.2022 she received exhibits accompanied by exhibit memo which were escorted by PC Dan Juma from Kehancha. That she received a rib cartilage of the deceased herein in a clear bottle marked A. She also received 2 broken pieces of sticks which were in a white paper marked B and C respectively.
On 5.2.2024 she did analysis and found out that the 2 broken sticks were lightly stained with blood of human origin and that DNA generated from the 2 sticks items B and C were identical and matched DNA profile generated from the reference sample – rib cartilage of Esther Robi the deceased person. The DNA profiles are tabled at the back of the report. She produced the report as Ex P4. The blood stains on the 2 broken sticks matched the DNA profile from the reference sample from Esther Robi. Government analyst report Exp4. Exhibit memo Exp 5
In cross examination by Ms. Matiko Advocate, PW6 said she was only requested to do comparison of DNA profile and not intoxication.
Court: Child to be examined to establish if she understands the meaning of an oath and whether intelligent enough to give sworn testimony and whether she knows difference between telling the truth and lying
ANNE ONG’INJO – JUDGE
10.4.2025
PW 7 examined and she said:-
My name is Shanzi Robi (child knows how to write her name) I go to primary school in Grade 1. My teacher’s name is Rachel. We go to church on Sunday. We go to Happy church. I don’t attend Sunday school. We are told in church to always tell the truth. If one lies, they will be cursed. I will tell court the truth today. I know what bible is. When one holds the bible, they should say the truth
Ms. Matiko: My assessment is that from the examination and responses the child is intelligent enough
Court: In the circumstances oath to be administered before she testifies
PW7 Shanzi Robi. Testified that she is a Grade 1 pupil and she is 6 years old. She said her teacher is Madam Rachel and her school is known as Kurutiange primary school. She said she stays with her grandmother at home. She recalled that police came and took her mother to the mortuary. That before police came, she was at home with her mother and her aunty – Mama Neema in the morning. While at home her father came took a stick and beat her mother. She said that she was present when her father beat her mother on the thigh. The sticks that her father used looked like the ones in court. They were 3 sticks – identified by PW7 – MFI 6(a) and (b) (wrapped in white paper). When her father had beaten her mother, he told them to go and throw some food that had remained. That her aunties came and put her mother in bed and gave her milk. She said that her mother could not walk after she was beaten.
The following day her mother started asking for water to drink. That her aunties who came and placed her mother in bed are mama Robi and Mama Esther. Mama Neema was also present. When her mother was given milk, she managed to take. She told them not to go away. That the deceased told PW7 and Karasa her younger sibling to remain in the house so they could give her water. She said that Karasa is a boy. It is later police vehicle came. That her and her brother were put on a motor bike and were taken to their grandmother’s place.
On the day her mother was buried there were many people. On the day her father beat her mother they slept at Mama Robi’s house but her father remained in the house. Her mother was also at home. PW7 said that when her father came back, he found the mother at home. Before police vehicle came her father send them to go with Neema to the posho mill. When they returned, they found Karasha at Neema’s house. Other people were at home. That her grandmother and grandfather were also at home and her uncles and aunties also came. That when they came from the posho mill her father was not at home.
In cross examination by Ms. Matiko PW7 said that her father beat her mother on the thigh. She said she saw the place beaten got swollen. She did not see blood. Mama Neema gave her mother milk and she took it. That her mother was not asleep. Sheila told her that her father ran away. She said Sheila is her friend and sister to Neema. She said she didn’t see the big walking stick.
In re-examination by Ms. Ikol for state PW7 said that her mother was seated on the bed when she was given milk. When Sheila told her that her father had escaped, she didn’t see him. She said she only saw 2 sticks and not the 3rd big one
PW8 Nchagwa Kimori Mariba. Said he is 64 years old. He said he was arrested to come and testify. He said he gave out 8 cows to his in-laws and they promised the case would be terminated. After paying the 8 cows he thought the matter had ended.
He recalled that on 16.9.2022 he was at home in Korobunyinge in the evening at 7.00pm when he heard noise and he was told it was his son who was beating his wife. He said that his house is separate from his son’s home. That he proceeded to his son’s home. It is the people who came from his son’s home who informed him he was beating his wife. He said his home to his son’s home is like from court to police station – 70m. When he arrived at his son’s home, he found there was no one in the home. He found the gate was closed and he returned home.
The next day at 7.00am he went back to his son’s home and found him in the sitting room. On inquiry he said he was quarreling because the wife had taken alcohol. That he called his daughter-in-law who was in the bedroom sleeping but she didn’t respond but she was breathing. That he went back home after his daughter-in-law failed to respond. That at about mid- day he heard people wailing at his son’s home. He went and found she had died and he made a phone call to police. Police came and collected the body.
On 22.9.2022 PW8 went to record statement with police. When he saw the deceased lying in bed she was breathing with difficulty and didn’t talk. He said he didn’t ask the accused why he beat his wife. The accused and deceased quarreled frequently. The big walking stick is his. When they went to the accused person’s house, they didn’t see any weapon used to inflict injuries on the deceased. When he recorded his statement with CID he was speaking in Kiswahili. That he said he heard Nchagwa quarrel and that is when he went to his home. When he went to the deceased person’s home, he found the gate was closed and he went back home. That he told police the accused told him he had beaten his wife to discipline her as she had taken alcohol. At his son’s home he was living with his wife and children. He said that he didn’t uncover the deceased when he saw her lying in bed and he didn’t see any injuries on her body. He said he was forced to pay 8 cows and told the case was over. He said he wanted the court to help him get a refund of his cows. He said he did not know if the cows are still there.
In cross examination by Ms. Matiko Advocate for the Accused PW8 said that he heard noise from his son’s home. He said he was not at scene and didn’t see what transpired. PW8 said that he had children, grandchildren and great grandchildren. He said it is normal for couples to have domestic quarrels. He said he didn’t see any weapons when he went to accused person’s house
In re-examination PW8 said that the accused person’s children are in custody of their uncle – brother to their mother.
PW9 Simeon Mokami 37 years old from Kurutiange in Kuria testified that he works in the mines. He recalled that on 17.9.2022 he was at the shops when his friend James Mwita Machera came and asked if he knew if his sister had died. He told him he was not aware. He thought she was in hospital. He rushed to hospital but didn’t find her. He proceeded to her home and found a crowd of people and some were crying. That he entered the house and found his sister lying dead on the bed. He found there was blood on the blanket and matress. She had an injury on the left hand and on the leg. He went out of the house and police came and collected the body. That he accompanied the body to the mortuary. On 21.9.2022 he went to police and recorded his statement. PW9 said that his home and his sister’s matrimonial home is some distance apart. He said he didn’t know what caused her death by the time he was told she had died
PW9 said that the last time he saw his sister alive was 16.9.2022. She had gone to the market in Ikerege and on her way from the market he saw her on a motor bike and she waved at him. That she he had come to the market around 5.00pm. He said he didn’t see any weapon that might have been used to inflict injuries. The police officers who came to scene picked sticks used to inflict injuries and he was with them. In his statement he said police arrived and collected the body after taking photographs. He also saw police recovered broken sticks that had been hidden behind the a gravelia tree after some members of public alerted them. Three police officers came to the scene including police driver. The sticks recovered by police are in court tied with a piece of cloth. The deceased was wearing a blue dress and a piece of it got stuck on the stick that was used to assault the deceased.
On the day of post mortem members of our family and members of the family where she was married attended.
In cross examination by Ms.Matiko Advocate PW9 said that he got information that his sister had died on 17th September 2026. He said he did not know the events of 16.9.2022. Police didn’t ask him about the last time he saw his sister. When he met his sister and she waved at him, he can’t tell if she arrived home safely
In re-examination by Ms. Ikol for state PW9 said that after his sister died, the father of the accused paid dowry. The cows were not given so that the case could be terminated. It is his father who was paid dowry.
PW10 sworn Christian Samwel Moronya Sirima 52 years said that he is a farmer. He said he is a pastor. That on 17.9.2022 he was at Kurutiange market when a brother known as Chacha asked him if he knew what had happened. That Chacha told him that his brother’s child had died. That he rushed to his brother’s home and found his brother and asked if he knew his daughter had been killed. That he accompanied his brother to the scene and found a crowd of people crying.
On arrival and on entering the gate he saw a stick which his brother told him not to touch. He identified the sticks in court. The sticks had blood stains. He said they were in a state of shock and they just kept quiet. Police came and collected the body to the mortuary. The deceased was daughter to his brother. The accused is known to him as he was married to the deceased Esther Robi and had lived together for some time but he did not know number of years. When accused married Esther he paid dowry. The deceased’s body was in the bedroom on her bed and as a father I could not enter the bedroom
In cross examination by Ms.Matiko Advocate, PW10 said that his brother is Simeon Mokami Sirima. He said that when he saw the broken sticks and had blood stains he cautioned those who were there not to touch the sticks as they were kept against K-apple and there was an electricity post nearby. The sticks were very close to where he stood and he saw a piece of cloth stuck on the stick. It is still stuck on the sticks.
In re-examination by Ms. Ikol for the state, PW10 said that the accused paid dowry when he married the deceased. That after the death of the deceased he can’t remember if any cows were paid
PW11 No. 98415 PC Tonui Gilbert currently attached to DCI Ndunya in Limuru said that formerly he was at DCI Kuria West and he was the investigating officer in matter before court.
He recalled that on 17.9.2022 at around 3.00pm the OCS Chief Inspector Boino called him through phone and informed him there was a murder case reported at Kehancha police station. The scene was in Kurutiangi. He requested him to accompany him to the scene. That he proceeded to station and in company of OCS and Corporal John Meli we proceeded to scene. When they arrived at scene it was semi-permanent house. On the bed was body of a lady known as Esther Robi. She was dead. On close view they saw injuries on the thighs. Outside the house there were blood-stained sticks. There was a child known as Shaniz who informed them that the previous day the father assaulted the mother using the sticks that they recovered outside the house. They processed the scene and took body to Kehancha Sub County Hospital mortuary. He said they didn’t find the suspect at home. He had gone into hiding.
On 21.9.2022 he attended autopsy and cause of death was ascertained and post mortem form duly filled. They recorded statements and statement of eye witness but because of her age she didn’t know why the father beat her mother. After a while in June 2023 the accused was arrested and he recorded a confession before the Magistrate in Kehancha court and the same has been produced. That the accused was arraigned for mental assessment for the suspect and he was found to be fit to stand trial
In cross examination by Mr. Ouma Advocate the Investigating Officer said that he was was not present when the incident occurred and he didn’t witness the assault. He said he based his evidence on the evidence of witnesses that he recorded. When they arrived at scene the deceased’s body was lying on the bed. The body had visible injuries on the thighs. There were blood-stained broken sticks outside the house. The sticks were ordinary. I believed he submitted the sticks for forensic analysis. He said he proceeded on transfer shortly after the investigations. If the sticks were submitted for analysis there would be a report. He said he was not sure that Government Analyst report was submitted. The cause of death was ascertained by the doctor. That it resulted from assault. From the confession of accused he said that the deceased was drunk. It is from the confession of the accused that he alleged the deceased was drunk. The I/O said he can’t recall if any other witnesses said the deceased was drunk. No tests were taken to confirm the deceased was intoxicated before her death and he can’t confirm that the deceased was drunk. It is possible that one can fall due to drunkardness, but it depends on level of drunkardness. He said he was aware the deceased had an accident when riding on a motor cycle. I rely entirely on post mortem report as to cause of death. The victim had injuries on the thighs. The deceased was assaulted on 16.9.2022. I went to scene on 17.9.2022. I can’t say that the accused didn’t intend to kill the wife. From the evidence found it is accused who assaulted the deceased. The incident arose from domestic disagreement. The accused person was arrested by his colleagues. He didn’t surrender to the police. The death resulted from assault.
In re-examination PW11 said that he was not involved in conducting medical examination/ tests and he could not tell if the deceased was intoxicated. He said cause of death was assault. He said he left the station in June 2023 when the accused was arrested and by then he had not received results from Government Chemist.
At the close of prosecution case the Accused was placed on defence and he gave sworn testimony after his counsel gave opening remarks as follows:
Mr. Ouma Advocate: The accused was charged with offence of murder contrary to Section 203 as read with Section 204 of the penal code. The accused in his defence will show that the unfortunate death herein was not as a result of any unlawful act or intention on the part of the accused person. The incident shall further show that the unfortunate death of the victim arose from an accident which was occasioned in circumstances where the deceased was heavily intoxicated and unable to take due care of her own safety. The accused will demonstrate that the accused neither intended nor foresaw the death of the deceased.
The Accused Joash Robi Nchagwa in sworn testimony said that the deceased Esther Robi was his wife. That they were blessed with 2 children namely Chanzi Robi and Brighton Robi. That they lived in peace and their children were going to school. That they had lived as husband and wife for 6 years.
That on 16.9.2022 later in the day he instructed his wife to go home and prepare lunch for the children as he remained in the farm where they had been working. When he returned at 1.00pm he took a bath and his wife gave him food which he ate. That they then remained in the house watching television. At 3.00pm his wife requested for permission to go to their mining place and he allowed her to go. Before going she told him that there were no vegetables in the house. After his wife left, he also went to the center and bought vegetables. That he returned home at 6.00pm but his wife had not arrived and the children were also not there. That he suspected that the wife may have gone to his brother’s home to or his father’s home to look for our children. There was a home where alcohol was being sold. That he went there and took some alcohol before he could go to the mines in Kurutiange area. That at 8.00pm he started the journey to Kurutiange to go to work. About one kilometre to his place of work he saw someone shining a torch. When he approached the area, one woman greeted him and said that God is great. She said that they had been trying to reach me in vain. They said that they saw his wife being carried on a motor bike by people who were drunkards and they found my wife had had an accident and fallen. She said the accused person’s wife was lying at the scene where he found them and that they had been unable to stand. That he removed his phone and saw it was 7.45pm. He used torch on the phone to shine on the person lying down and found it was his wife.
When he tried to call her by name she did not respond. She had vomited. When he raised her up, she could not sit on her own. That he supported her. Her hands were soiled and with blood stains. It appears she fell from the motor bike and injured her hand. The hands were swollen on the left knee there were bruises. There was only one side of the shoes on the ground. That he asked the woman at the scene if they knew the motor bike that had carried his wife but they said they are visitors and they only happened to know his wife as she used to come to the mine where he worked. The woman stopped a motor bike and they assisted him to put his wife on the motor bike. He instructed the rider to ride slowly. When they arrived at home it was approaching 9.00pm and found the children sleeping at the gate because there was no one to open for them.
When he tried to make the deceased walk, she was unable to. Because of anger he beat his wife. He said he was pained to see his children lying outside. That he beat her on the buttocks and thighs using a stick which he picked
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The particulars of the offence are that on the 17th day of September 2022 at Korobunyige Village in Nyamagagana Sub Location in Kuria West Sub County within Migori County in the Republic of Kenya murdered Esther Robi.
The 1st prosecution witness Evaline Robi testified that she was 32 years old and she came from Masaba ward Korobunyinge and she was a farmer. She said she had been married John Nchagwa Kimoni for 4 years by the time of the incident.
She recalled that on 16.9.2022 at about 7.30pm she was going to the shop when passing by her in-law’s house, she heard that there was a quarrel. It was dark. She was passing by the fence. She heard voices of people quarrelling and she decided to enter through the gate. That she found Joash Robi her brother in-law the accused herein seated on a chair with his 2 children. That she entered the house and found her co-wife was lying on the floor. That she called Robi (accused) but he did not respond. That she called Esther who was lying down and she did not respond. She lay on the floor on her stomach. That she held her and shook her but she did not respond. In the housed was smell of alcohol. That she noted the smell of alcohol was from her. That she went out to look for milk. She said her house is 2 meters from the accused person’s house. That at the entrance she found her husband and they went back to accused’s house and found mama Margaret. That mama Margaret helped her to give the deceased milk and she drank twice and she lay on the floor again. She was injured on the left hand. The left hand was swollen. We left. Peter left when we were giving Esther milk. She went back home. Robi did not talk to her. Margaret told Robi not to quarrel again. She had seen Esther that day when she went to get vegetables and she had no injury to the hand. She did not talk to the two children.
That on 17th at 12.30pm she heard screams. She had not seen Esther in the morning after I left her at midnight. That she ran there and found she was dead. She was in her bed. She was not where I left her. I did not observe her body. People were many. I did not see accused at that time. Police were called. Esther was taken to the mortuary.
When cross examined by Ms. Matiko Advocate, PW1 said that she heard quarrel in accused’s house and she entered because the door was open. Accused did not speak to her. He just sat there. She said Esther was smelling of alcohol. That her left hand with the fingers were swollen. There was no blood. She did not see any other injuries.
PW2 Margaret Atieno Koroso testified that when recording her statement, she gave the name Margaret Atieno Samuel. She said she is a farmer and lives in
Korobunyinge and is married to Samwel Koroso.
She recalled that on 16.9.2022 at about 6.00pm she was in the house. Children who were selling things outside went to tell her that there was noise from Esther’s house. She thought they were children and so she continued with what she was doing – cooking. Dommy came and asked her to go and assist her friend. He said she was being beaten by the husband. That she finished cooking and went and found the gate closed. That she knocked the gate and Robi opened for her. That she entered the house. That Robi told her togo in and see her friend. On hearing her voice Esther called her “Mama Mary” twice. She asked what it is and she kept quiet. She asked her if it was her husband and she kept quiet. She was lying on the floor of the house. After a short while Robi (PW1) came with her husband. They had milk. They found her in the house. They gave Esther the milk and she drunk once. The 2nd time she tried the milk was just pouring. They put cushions on the floor and put her there. PW2 told Robi not to beat Esther again and she left. She identified the accused in court as Robi. Robi was just there as they gave Esther milk. She told Robi not to beat Esther again and left to go back to her work.
PW2 said that she noticed that her fingers and wrist were fractured. The hand was free and could not be straight. She said she did not know if Robi had ever beaten Esther before. She said she saw Robi had anger from the way he spoke to her. Esther was friend and she would even look after her children. She said that she knew accused well and he would go to see his children at her house.
Next day morning she went to the farm. That when she returned, her child said Esther had sent a child for milk. She sent the child to ask if she could take her tea or ugali and the child came back and said that Esther was not there. She did not make the tea. That she went to get water and another girl told her to go and see her friend. That she went and found gate closed. She pushed it and the door was open. The housed was dirty. That she pushed the door to the bedroom and found her lying on her back. She called her but she did not respond. That she went outside and found Mwita Kimoni – Robi’s uncle and called him but he told her to go and call Robi. That she told him to come and he refused. He was next door. That she went back to the house and called Esther, made her sit but she could not. That Mwita told her to scream. When she screamed Mwita came and others. That she went back home and found police had come. There was little blood in the house. She did not observe the body. She did not see where the blood came from. The dress she wore had blood on the side of the dress. Robi (accused) was not present even when police came.
In cross examination by Ms. Matiko Advocate PW2 said that she saw Esther was injured on the hand. She said that she did not talk of injuries to the thighs. The wrist and fingers were fractured. What she said in court is what she saw and that is what she told the officer who recorded her statement. She said the accused was angry but did not chase her. He opened the gate for her. She said she did not know if Esther was drunk. She gave her milk. She did not smell alcohol. She said she heard things move from the throat to the stomach. She said that on 16th she was not conscious. She could not move and never spoke again. She could not tell whether the milk they gave her in the evening remained in the mouth.
PW3 John Gichame Mwita testified that on 17th September 2022 he was asleep after 1.00pm Margaret called him on phone and asked what is wrong at their home. He said Margaret lives about 1 ½kms away and is a wife to his brother. That he told her that he would get out to find out. That he heard noises from about 2kms away. That he went to the place and found people crying and were many. That he entered and found a lady on the bed. She was dead. He said he saw the body. The accused is the son to his brother. He said he only peeped from the door because people were crying and he believed she was dead. He said he did not enter the bedroom. That after ½ an hour brother of accused arrived and advised they go and report at police station. Accused was not present at the scene. Police came and took the body. PW3 said he did not observe the body because it was covered. I had seen deceased on 15th. She was fine
PW4 Dr. Mark Oduor Otieno. Medical officer at Migori County and Referral Hospital in surgical department examined the body of the deceased herein at Kehancha Sub-County Hospital on 21st September 2022 after being identified by Simon Mokami and Joseph Boke.
General observation he found the body had no clothing. The body was of a female African and was in good nutritional status with height of 175cm There were early post mortem changes. The body was well preserved and embalmed.
External appearance there were multiple lacerations on forearm bilaterally with fracture of right wrist. There were blood stains on the nostril and mouth with vomitous which was also blood stained. There were swellings on the left hip region with haematoma within the muscles and the lacerations on the forearm is indication or a sign of struggle or self defence.
On Internal appearance PW4 observed moderate haemothorax approximately 250ml on left thoracic region with moderate lung collapse. The trachea was central with lung parenchyma – lung tissue was in normal state. The left side of chest there was moderate haemothorax.
Cardiovascular system was obviously enlarged with fat disposition on the surface. This was coincidental finding.
Digestive system: Normal
There was distended gall bladder which was slowly leaking. This was another coincidental finding.
Genito urinary system: Normal
Head: Normal except for blood coming from nose and mouth
Spinal column, code and nervous systems were normal
PW4 did form opinion that cause of death was moderate haemothorax secondary to assault by blunt object. He did fill and sign the post mortem report and produced it Exp 1. The coincidental findings were not the primary cause of death. Certificate of death No. 0252932 was issued and signed by him and stamped by Kehancha hospital.
In cross examination by Ms. Matiko Advocate, PW4 said that he had attended to many cases of trauma previously and injuries sustained by the deceased could be either blunt or penetrative. For blunt trauma there are multiple causes – assault by blunt object, a fall on flat surface. Accidents also inflict blunt trauma such as lacerations, bruises or even cuts. There was multiple laceration on forehead and fracture wrist. There was swelling on hip region with haematoma. The swelling on hip and lacerations are also similar to those in road traffic accident. The head was normal except for the eyes, nose and mouth had blood.
In Re-examination by Mr. Oimbo PW4 said that the injuries on the deceased’s hands were a sign of struggle on defensive. Road traffic accident injuries depend on intensity and one could have the kind of lacerations herein but the ones herein were as a result of defensive mechanism as opposed to road traffic accident.
PW5 No. 64510 Sergent Livingston Kaitui from DCI Migori crime scene support services section said he was Gazetted in Notice No. 217 of 28.12.2012 as Scenes of Crime Officer. He recalled that on 7.10.2022 at around 10.30am he was requested by one Corporal Njogu of DCI Kehancha to prepare a certificate for photographs that he handed to him. The photographs were 5 in number. He marked them as 1 – 5. Photograph No. 1 was close view of female body which was in a bed and covered with a blanket from waist downwards. She was wearing a blue dress. No. 2 showed close up view of the face with some discharge from the nose. No. 3, 4 and 5 were showing some injuries on the left hand close to the wrist injuries on the right hand close to the wrist but on the back of the palm. The 5th photo showed injuries at the back of the right thigh. I later prepared a certificate for the same and signed it. It is dated 7.10.2022. He produced the photos as Ex P2(a) to (e) and the certificate Ex P3.
PW6 Salvine Cheruto Katukoi, Government Analyst currently at Government Chemist Laboratory Kisumu appeared virtually and testified that on 4.10.2022 she received exhibits accompanied by exhibit memo which were escorted by PC Dan Juma from Kehancha. That she received a rib cartilage of the deceased herein in a clear bottle marked A. She also received 2 broken pieces of sticks which were in a white paper marked B and C respectively.
On 5.2.2024 she did analysis and found out that the 2 broken sticks were lightly stained with blood of human origin and that DNA generated from the 2 sticks items B and C were identical and matched DNA profile generated from the reference sample – rib cartilage of Esther Robi the deceased person. The DNA profiles are tabled at the back of the report. She produced the report as Ex P4. The blood stains on the 2 broken sticks matched the DNA profile from the reference sample from Esther Robi. Government analyst report Exp4. Exhibit memo Exp 5
In cross examination by Ms. Matiko Advocate, PW6 said she was only requested to do comparison of DNA profile and not intoxication.
Court: Child to be examined to establish if she understands the meaning of an oath and whether intelligent enough to give sworn testimony and whether she knows difference between telling the truth and lying
ANNE ONG’INJO – JUDGE
10.4.2025
PW 7 examined and she said:-
My name is Shanzi Robi (child knows how to write her name) I go to primary school in Grade 1. My teacher’s name is Rachel. We go to church on Sunday. We go to Happy church. I don’t attend Sunday school. We are told in church to always tell the truth. If one lies, they will be cursed. I will tell court the truth today. I know what bible is. When one holds the bible, they should say the truth
Ms. Matiko: My assessment is that from the examination and responses the child is intelligent enough
Court: In the circumstances oath to be administered before she testifies
PW7 Shanzi Robi. Testified that she is a Grade 1 pupil and she is 6 years old. She said her teacher is Madam Rachel and her school is known as Kurutiange primary school. She said she stays with her grandmother at home. She recalled that police came and took her mother to the mortuary. That before police came, she was at home with her mother and her aunty – Mama Neema in the morning. While at home her father came took a stick and beat her mother. She said that she was present when her father beat her mother on the thigh. The sticks that her father used looked like the ones in court. They were 3 sticks – identified by PW7 – MFI 6(a) and (b) (wrapped in white paper). When her father had beaten her mother, he told them to go and throw some food that had remained. That her aunties came and put her mother in bed and gave her milk. She said that her mother could not walk after she was beaten.
The following day her mother started asking for water to drink. That her aunties who came and placed her mother in bed are mama Robi and Mama Esther. Mama Neema was also present. When her mother was given milk, she managed to take. She told them not to go away. That the deceased told PW7 and Karasa her younger sibling to remain in the house so they could give her water. She said that Karasa is a boy. It is later police vehicle came. That her and her brother were put on a motor bike and were taken to their grandmother’s place.
On the day her mother was buried there were many people. On the day her father beat her mother they slept at Mama Robi’s house but her father remained in the house. Her mother was also at home. PW7 said that when her father came back, he found the mother at home. Before police vehicle came her father send them to go with Neema to the posho mill. When they returned, they found Karasha at Neema’s house. Other people were at home. That her grandmother and grandfather were also at home and her uncles and aunties also came. That when they came from the posho mill her father was not at home.
In cross examination by Ms. Matiko PW7 said that her father beat her mother on the thigh. She said she saw the place beaten got swollen. She did not see blood. Mama Neema gave her mother milk and she took it. That her mother was not asleep. Sheila told her that her father ran away. She said Sheila is her friend and sister to Neema. She said she didn’t see the big walking stick.
In re-examination by Ms. Ikol for state PW7 said that her mother was seated on the bed when she was given milk. When Sheila told her that her father had escaped, she didn’t see him. She said she only saw 2 sticks and not the 3rd big one
PW8 Nchagwa Kimori Mariba. Said he is 64 years old. He said he was arrested to come and testify. He said he gave out 8 cows to his in-laws and they promised the case would be terminated. After paying the 8 cows he thought the matter had ended.
He recalled that on 16.9.2022 he was at home in Korobunyinge in the evening at 7.00pm when he heard noise and he was told it was his son who was beating his wife. He said that his house is separate from his son’s home. That he proceeded to his son’s home. It is the people who came from his son’s home who informed him he was beating his wife. He said his home to his son’s home is like from court to police station – 70m. When he arrived at his son’s home, he found there was no one in the home. He found the gate was closed and he returned home.
The next day at 7.00am he went back to his son’s home and found him in the sitting room. On inquiry he said he was quarreling because the wife had taken alcohol. That he called his daughter-in-law who was in the bedroom sleeping but she didn’t respond but she was breathing. That he went back home after his daughter-in-law failed to respond. That at about mid- day he heard people wailing at his son’s home. He went and found she had died and he made a phone call to police. Police came and collected the body.
On 22.9.2022 PW8 went to record statement with police. When he saw the deceased lying in bed she was breathing with difficulty and didn’t talk. He said he didn’t ask the accused why he beat his wife. The accused and deceased quarreled frequently. The big walking stick is his. When they went to the accused person’s house, they didn’t see any weapon used to inflict injuries on the deceased. When he recorded his statement with CID he was speaking in Kiswahili. That he said he heard Nchagwa quarrel and that is when he went to his home. When he went to the deceased person’s home, he found the gate was closed and he went back home. That he told police the accused told him he had beaten his wife to discipline her as she had taken alcohol. At his son’s home he was living with his wife and children. He said that he didn’t uncover the deceased when he saw her lying in bed and he didn’t see any injuries on her body. He said he was forced to pay 8 cows and told the case was over. He said he wanted the court to help him get a refund of his cows. He said he did not know if the cows are still there.
In cross examination by Ms. Matiko Advocate for the Accused PW8 said that he heard noise from his son’s home. He said he was not at scene and didn’t see what transpired. PW8 said that he had children, grandchildren and great grandchildren. He said it is normal for couples to have domestic quarrels. He said he didn’t see any weapons when he went to accused person’s house
In re-examination PW8 said that the accused person’s children are in custody of their uncle – brother to their mother.
PW9 Simeon Mokami 37 years old from Kurutiange in Kuria testified that he works in the mines. He recalled that on 17.9.2022 he was at the shops when his friend James Mwita Machera came and asked if he knew if his sister had died. He told him he was not aware. He thought she was in hospital. He rushed to hospital but didn’t find her. He proceeded to her home and found a crowd of people and some were crying. That he entered the house and found his sister lying dead on the bed. He found there was blood on the blanket and matress. She had an injury on the left hand and on the leg. He went out of the house and police came and collected the body. That he accompanied the body to the mortuary. On 21.9.2022 he went to police and recorded his statement. PW9 said that his home and his sister’s matrimonial home is some distance apart. He said he didn’t know what caused her death by the time he was told she had died
PW9 said that the last time he saw his sister alive was 16.9.2022. She had gone to the market in Ikerege and on her way from the market he saw her on a motor bike and she waved at him. That she he had come to the market around 5.00pm. He said he didn’t see any weapon that might have been used to inflict injuries. The police officers who came to scene picked sticks used to inflict injuries and he was with them. In his statement he said police arrived and collected the body after taking photographs. He also saw police recovered broken sticks that had been hidden behind the a gravelia tree after some members of public alerted them. Three police officers came to the scene including police driver. The sticks recovered by police are in court tied with a piece of cloth. The deceased was wearing a blue dress and a piece of it got stuck on the stick that was used to assault the deceased.
On the day of post mortem members of our family and members of the family where she was married attended.
In cross examination by Ms.Matiko Advocate PW9 said that he got information that his sister had died on 17th September 2026. He said he did not know the events of 16.9.2022. Police didn’t ask him about the last time he saw his sister. When he met his sister and she waved at him, he can’t tell if she arrived home safely
In re-examination by Ms. Ikol for state PW9 said that after his sister died, the father of the accused paid dowry. The cows were not given so that the case could be terminated. It is his father who was paid dowry.
PW10 sworn Christian Samwel Moronya Sirima 52 years said that he is a farmer. He said he is a pastor. That on 17.9.2022 he was at Kurutiange market when a brother known as Chacha asked him if he knew what had happened. That Chacha told him that his brother’s child had died. That he rushed to his brother’s home and found his brother and asked if he knew his daughter had been killed. That he accompanied his brother to the scene and found a crowd of people crying.
On arrival and on entering the gate he saw a stick which his brother told him not to touch. He identified the sticks in court. The sticks had blood stains. He said they were in a state of shock and they just kept quiet. Police came and collected the body to the mortuary. The deceased was daughter to his brother. The accused is known to him as he was married to the deceased Esther Robi and had lived together for some time but he did not know number of years. When accused married Esther he paid dowry. The deceased’s body was in the bedroom on her bed and as a father I could not enter the bedroom
In cross examination by Ms.Matiko Advocate, PW10 said that his brother is Simeon Mokami Sirima. He said that when he saw the broken sticks and had blood stains he cautioned those who were there not to touch the sticks as they were kept against K-apple and there was an electricity post nearby. The sticks were very close to where he stood and he saw a piece of cloth stuck on the stick. It is still stuck on the sticks.
In re-examination by Ms. Ikol for the state, PW10 said that the accused paid dowry when he married the deceased. That after the death of the deceased he can’t remember if any cows were paid
PW11 No. 98415 PC Tonui Gilbert currently attached to DCI Ndunya in Limuru said that formerly he was at DCI Kuria West and he was the investigating officer in matter before court.
He recalled that on 17.9.2022 at around 3.00pm the OCS Chief Inspector Boino called him through phone and informed him there was a murder case reported at Kehancha police station. The scene was in Kurutiangi. He requested him to accompany him to the scene. That he proceeded to station and in company of OCS and Corporal John Meli we proceeded to scene. When they arrived at scene it was semi-permanent house. On the bed was body of a lady known as Esther Robi. She was dead. On close view they saw injuries on the thighs. Outside the house there were blood-stained sticks. There was a child known as Shaniz who informed them that the previous day the father assaulted the mother using the sticks that they recovered outside the house. They processed the scene and took body to Kehancha Sub County Hospital mortuary. He said they didn’t find the suspect at home. He had gone into hiding.
On 21.9.2022 he attended autopsy and cause of death was ascertained and post mortem form duly filled. They recorded statements and statement of eye witness but because of her age she didn’t know why the father beat her mother. After a while in June 2023 the accused was arrested and he recorded a confession before the Magistrate in Kehancha court and the same has been produced. That the accused was arraigned for mental assessment for the suspect and he was found to be fit to stand trial
In cross examination by Mr. Ouma Advocate the Investigating Officer said that he was was not present when the incident occurred and he didn’t witness the assault. He said he based his evidence on the evidence of witnesses that he recorded. When they arrived at scene the deceased’s body was lying on the bed. The body had visible injuries on the thighs. There were blood-stained broken sticks outside the house. The sticks were ordinary. I believed he submitted the sticks for forensic analysis. He said he proceeded on transfer shortly after the investigations. If the sticks were submitted for analysis there would be a report. He said he was not sure that Government Analyst report was submitted. The cause of death was ascertained by the doctor. That it resulted from assault. From the confession of accused he said that the deceased was drunk. It is from the confession of the accused that he alleged the deceased was drunk. The I/O said he can’t recall if any other witnesses said the deceased was drunk. No tests were taken to confirm the deceased was intoxicated before her death and he can’t confirm that the deceased was drunk. It is possible that one can fall due to drunkardness, but it depends on level of drunkardness. He said he was aware the deceased had an accident when riding on a motor cycle. I rely entirely on post mortem report as to cause of death. The victim had injuries on the thighs. The deceased was assaulted on 16.9.2022. I went to scene on 17.9.2022. I can’t say that the accused didn’t intend to kill the wife. From the evidence found it is accused who assaulted the deceased. The incident arose from domestic disagreement. The accused person was arrested by his colleagues. He didn’t surrender to the police. The death resulted from assault.
In re-examination PW11 said that he was not involved in conducting medical examination/ tests and he could not tell if the deceased was intoxicated. He said cause of death was assault. He said he left the station in June 2023 when the accused was arrested and by then he had not received results from Government Chemist.
At the close of prosecution case the Accused was placed on defence and he gave sworn testimony after his counsel gave opening remarks as follows:
Mr. Ouma Advocate: The accused was charged with offence of murder contrary to Section 203 as read with Section 204 of the penal code. The accused in his defence will show that the unfortunate death herein was not as a result of any unlawful act or intention on the part of the accused person. The incident shall further show that the unfortunate death of the victim arose from an accident which was occasioned in circumstances where the deceased was heavily intoxicated and unable to take due care of her own safety. The accused will demonstrate that the accused neither intended nor foresaw the death of the deceased.
The Accused Joash Robi Nchagwa in sworn testimony said that the deceased Esther Robi was his wife. That they were blessed with 2 children namely Chanzi Robi and Brighton Robi. That they lived in peace and their children were going to school. That they had lived as husband and wife for 6 years.
That on 16.9.2022 later in the day he instructed his wife to go home and prepare lunch for the children as he remained in the farm where they had been working. When he returned at 1.00pm he took a bath and his wife gave him food which he ate. That they then remained in the house watching television. At 3.00pm his wife requested for permission to go to their mining place and he allowed her to go. Before going she told him that there were no vegetables in the house. After his wife left, he also went to the center and bought vegetables. That he returned home at 6.00pm but his wife had not arrived and the children were also not there. That he suspected that the wife may have gone to his brother’s home to or his father’s home to look for our children. There was a home where alcohol was being sold. That he went there and took some alcohol before he could go to the mines in Kurutiange area. That at 8.00pm he started the journey to Kurutiange to go to work. About one kilometre to his place of work he saw someone shining a torch. When he approached the area, one woman greeted him and said that God is great. She said that they had been trying to reach me in vain. They said that they saw his wife being carried on a motor bike by people who were drunkards and they found my wife had had an accident and fallen. She said the accused person’s wife was lying at the scene where he found them and that they had been unable to stand. That he removed his phone and saw it was 7.45pm. He used torch on the phone to shine on the person lying down and found it was his wife.
When he tried to call her by name she did not respond. She had vomited. When he raised her up, she could not sit on her own. That he supported her. Her hands were soiled and with blood stains. It appears she fell from the motor bike and injured her hand. The hands were swollen on the left knee there were bruises. There was only one side of the shoes on the ground. That he asked the woman at the scene if they knew the motor bike that had carried his wife but they said they are visitors and they only happened to know his wife as she used to come to the mine where he worked. The woman stopped a motor bike and they assisted him to put his wife on the motor bike. He instructed the rider to ride slowly. When they arrived at home it was approaching 9.00pm and found the children sleeping at the gate because there was no one to open for them.
When he tried to make the deceased walk, she was unable to. Because of anger he beat his wife. He said he was pained to see his children lying outside. That he beat her on the buttocks and thighs using a stick which he picked
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