A. INFORMATION AND CHARGE.
1. Vide the Information dated 7th March, 2023, Kevin Omondi Nyapietho, the accused person herein, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 Laws of Kenya. It is alleged in the particulars of the offence that on the 21st day of February, 2023 at Kapuonja Sublocation in Kisumu West Subcounty within Kisumu County, the accused person murdered Gaudencia Otieno Aoko.
2. The accused person denied the charge and a plea of “not guilty” was entered, following which his trial commenced.
B. THE PROSECUTION CASE.
3. The prosecution called a total of six (6) witnesses.
4. The first prosecution witness (PW1) was Dr. Tobias Jude Masawa. The witness testified and told the court that he was a pathologist by profession. He stated that he attended Vena University in Cuba in 2009 and subsequently obtained a Master’s degree in Pathology from the University of Nairobi. He had thereafter been practising as a pathologist.
5. The witness testified that he conducted a post-mortem examination on the body of Gaudencia Aoko Otieno at Masaba Hospital on 27th February, 2023 at 1.00 p.m. He stated that the deceased was an African female aged approximately 65 years, of good nutrition and well built, measuring 166 centimetres in height. The body was well preserved through embalming and exhibited normal post-mortem changes, including lividity and rigidity. It was covered with blue linen and had a bracelet on the left wrist.
6. On external examination, the witness observed multiple deep lacerative wounds on the face extending into the brain. The longest laceration involved the left maxillofrontal and temporal bones of the skull and was associated with massive spillage of brain matter. He also observed six other lacerative wounds on the right eye and chin, as well as multiple abrasive wounds and bruises on the neck and anterior chest. There was also a undisplaced fracture of the right elbow joint and a fracture of the lower part of the left femur, associated with internal injury to the left leg. The body also exhibited marked pallor.
7. On internal examination, the respiratory system, liver, spleen and pancreas were unremarkable. The kidneys were examined. Examination of the head revealed a displaced skull fracture associated with the deep lacerative wounds, while the brain had suffered extensive injury with spillage of brain matter. The spinal column was intact and the spinal cord was not exposed.
8. Based on his examination, the witness formed the opinion that the cause of death was severe head injury due to multiple lacerative wounds to the head. He identified the post-mortem form bearing the death certificate No. 1484661, which he had signed on 27th February, 2023, and produced it in evidence as PExh1.
9. On cross-examination, the witness stated that he was unable to determine whether the injuries sustained by the deceased had been inflicted by one person or by several persons.
10. Police Constable Ng’etich Kipkorir Weldon testified as PW2 and told the court that he was a police officer attached to Nyamasaria Police Patrol Base. He stated that on 24th February, 2023 at about 12.30 p.m., while at the police station, Police Constables Jacob Magut and Mathew Kiprotich, together with a male member of the public, sought assistance in arresting a murder suspect within the Nyamasaria area.
11. The witness testified that he proceeded to the Batatoast area in the company of Police Constables Kiprotich and Magut and the said member of the public. They found the suspect walking towards the Kasawino direction. The member of the public pointed out the suspect, whom they arrested and escorted to the police station. The suspect was identified as a male adult of Luo ethnicity named Kevin Omondi, whom the witness identified in court as the accused. The accused was booked at the police station vide OB No. 20 of 24th February 2023. The witness stated that he was informed that the accused had committed the offence of murder.
12. On cross-examination, the witness clarified that he was not the investigating officer.
13. The prosecution called Dorcas Auma Oriedo as PW3. In her testimony, the witness stated that she was a farmer residing at Kapuonja South. She testified that the deceased, Gaudencia Atieno, was her husband’s sister.
14. The witness told the court that on 27th February, 2023, she travelled to Masaba Hospital together with her brother-in-law, Aloice Omondi Nyapiedho, to identify the deceased’s body during the post-mortem examination. She stated that she identified the deceased by her facial features and legs, as well as by her long toenails. She confirmed that she was present when the post-mortem examination was conducted and recognized the post-mortem report produced in evidence as PExh1.
15. The witness testified that the deceased ordinarily resided in Nairobi but had returned home on Saturday, 18th February, 2023, to attend a burial in Kano. She stated that the accused, Kevin Omondi, was the deceased’s son and identified him in court as the person in the dock. She further testified that, at the time of her death, the deceased lived in the same home with the accused, one Benson and one Everlyn. The witness also stated that, sometime in the preceding year, the accused had confronted her and thrown a stone at her.
16. On cross-examination, the witness stated that she had previously lived with the deceased in Nairobi in 1987 but was not living with her at the time of her death. She confirmed that she knew the deceased was living with the accused at the time of her death but stated that she did not know how the deceased died.
17. On re-examination, the witness clarified that she was not with the accused on 21st February, 2023. She reiterated that she knew the deceased was then living with Benson, Everlyn and the accused. She added that the deceased had previously visited her home, where she cooked githeri and the deceased requested her to give her some of the food to take to Benson, Everlyn and the accused.
18. PW4, Ben Ochieng Omondi testified that he resided at Nyamasaria and was unemployed. He stated that the accused, Kevin Omondi Nyapietho, was his elder brother and identified him in court as the person in the dock. He further testified that the deceased, Gaudencia Otieno Aoko, was his aunt.
19. The witness testified that on 21st February, 2023 at about 10.45 p.m., he was in the house together with the accused, the deceased and his sister, Everlyne. They had taken supper. After the meal, the accused scolded the deceased about the food and accused them of intending to poison him. He then left the house and went to another house within the homestead, there being two houses. Before leaving, he locked the house from the outside.
20. The witness stated that the accused thereafter made a lot of noise outside, repeatedly saying that “hawa watu wanataka kuniua.” The deceased called the police, but officers at Daraja Mbili Police Station informed her that it was too late for them to attend and advised them to seek help elsewhere.
21. The witness testified that the accused subsequently returned to the house and was hostile. While the witness was in the bedroom, he heard a sound resembling a slap, followed by a scream from Everlyne. He left the bedroom to find out what had happened and proceeded towards the next room. He then exited the house through a window in order to call for help. He alerted neighbours, including one Nick and one Gordon, who joined him. Together, they entered the house, where the witness found the deceased lying on her back, facing upwards. She had an injury to the head and there was a lot of blood, including blood on the walls. The witness stated that he was shocked by what he saw.
22. The witness testified that he then proceeded to Daraja Mbili Police Station to report that his aunt had been killed. He stated that, upon arrival, the police station had not yet been opened. He went to the centre and informed a person known as Ayoke of what had happened. He thereafter returned to the police station with one Hillary and knocked on the door. The station was opened, and he reported to the police that Gaudencia had been killed.
23. The witness further testified that the accused subsequently arrived at the police station carrying a television set and claiming that people wanted to kill him. A crowd then gathered and, according to the witness, some people appeared intent on attacking the accused. The accused ran away and left the television set behind.
24. PW4 testified that on his way back, he encountered Everlyne but did not speak to her. He stated that the house had solar lighting, which provided illumination. The accused was later arrested at Nyamasaria, several days after the incident.
25. On being cross-examined, the witness confirmed that they had taken supper in the house and that he had been in the bedroom when the deceased called the police after the accused had scolded her. He stated that when he went outside and subsequently returned to the house, he found the deceased dead. He also testified that there was a small jembe which the accused used but stated that he did not know whether the deceased had fallen on it.
26. On re-examination, the witness clarified that he had not seen the deceased fall on the jembe.
27. The fifth witness that the prosecution called was Everlyne Adhiambo (PW5), whose testimony was that she resided at Kano Kasule and was a student at Ongeche Mixed Secondary School, where she was in Form Two. She testified that the accused, Kevin Omondi, was her elder brother and the first-born in their family, and identified him in court as the person in the dock. She further stated that the deceased, Gaudencia Otieno, was her aunt.
28. The witness testified that on 21st February, 2023, she attended school and returned home at about 5.00 p.m. She prepared tea for the deceased, cleared the table and washed the dishes. The deceased thereafter sent Ben Ochieng Omondi (PW4) to buy food from the market and asked the witness to pack clothes in a bag because she intended to travel to Nairobi that night. The deceased subsequently changed her mind and decided to travel the following morning.
29. The witness testified that they later had dinner in the living room, comprising herself, the accused, PW4 and the deceased. During the meal, the accused claimed that the food was poisoned and that it smelled of poison, although he continued eating. The deceased also ate the food but complained that it contained too much salt.
30. PW5 told the court that after dinner, she cleared the table. PW4 went to the bedroom to sleep, while the witness, the accused and the deceased remained in the living room. The witness stated that she was selecting secondary schools and asked the deceased for her full names. The deceased stated that she was Gaudencia Aoko Otieno and gave the full names of the witness’s mother as Catherine Akinyi Nyapeitho.
31. The witness testified that the accused then began complaining that the name Nyapietho belonged to his father. He stood up and went outside. When the deceased asked him why he had left his shoes behind, he did not respond. The accused then locked the door from outside, while the witness locked it from inside. When the accused returned, he found that the door was locked from inside. He struck the door with a jembe and forced it open.
32. The witness testified that the accused thereafter attacked the deceased with the jembe, striking her on the shoulder and head with its sharp side. The deceased told the witness to run away, whereupon the witness escaped through a bedroom window. She stated that she left the deceased bleeding from the shoulder and head. She screamed and observed blood splashed on the seat, on the accused and within the house. The witness stated that she was confused, ran away and hid near a tree.
33. The witness testified that she subsequently saw the accused leaving while carrying a television set. There was solar lighting outside, which enabled her to see him clearly. He proceeded into a thicket. The witness thereafter met Ben Ochieng Omondi (PW4) together with his friends. PW4 asked her whether the deceased had been killed, but she told him that she did not know. He directed her to go to one Nickson’s house. At that house, one Mama Nickson asked her what had happened, and the witness told her to go and see for herself, stating that she was unable to explain what had occurred. Nickson later went to call her and assured her that it was safe to return.
34. The witness testified that she returned home and found her uncle, Aloyce Omondi, together with other people. She was informed that the police had taken the deceased’s body to the mortuary. The jembe used by the accused was not recovered. She was also informed that the accused had fled and that he was arrested several days later. The witness stated that she recorded a statement with the police.
35. On cross-examination, the witness confirmed that the jembe was not recovered and that the deceased died in the house.
36. On re-examination, the witness reiterated that the accused struck the deceased on the shoulder and head and that she saw blood coming from the deceased’s shoulder.
37. The last prosecution witness was Police Sergeant Richard Lang’at. The witness testified that he was attached to the Directorate of Criminal Investigations, Kisumu West, and was the investigating officer in the matter. He stated that on 22nd September, 2023 he was instructed to investigate the murder which had allegedly been committed on 21st February, 2023.
38. The officer told the court that on 22nd February, 2023, he visited the scene together with other officers. They interviewed members of the deceased’s family, who informed them that the deceased had been attacked and killed on 21st February, 2023 and that the person who had attacked her was Kevin Omondi Nyapietho, the deceased’s nephew. The suspect had, however, fled.
39. The witness testified that he recorded statements from witnesses. On 24th February, 2023, the suspect was arrested, following which the police obtained custodial orders from the Maseno Court. A post-mortem examination was conducted on 27th February, 2023 and a report prepared.
40. The witness further testified that the scene was a semi-permanent house comprising a living room and a bedroom. The deceased had been attacked in the living room, where blood stains were splashed on the wall. He stated that the deceased had been cut with a jembe, but the weapon was not recovered. He identified the accused, Kevin Omondi, as the suspect in the case and as the person in the dock.
41. On cross-examination, the witness confirmed that he visited the scene of crime when the deceased’s body had already been taken to the mortuary. He stated that some police officers had visited the scene on the previous day. No photographs of the scene were taken, and no clothes were examined.
C. RULING ON PRIMA FACIE CASE.
42. The prosecution closed its case at that stage and in the court’s considered ruling rendered on 31st July, 2024, a finding was made that the prosecution had established a prima facie case against the accused and he was placed on his defence.
D. THE DEFENCE CASE.
43. In his defence, the accused testified on oath as DW1 and told the court that he resided at Kapuonja and was a casual worker. He stated that he understood the charge facing him.
44. The accused testified that on 21st February 2023 he was at home in the deceased’s house. They ate together, after which he went to sleep. He later heard the deceased making a telephone call and asking for help, stating that someone was disturbing her. He returned to his house, having left PW4 and PW5 there with the deceased.
45. The accused testified that on returning to the deceased’s house, he used the handle of a jembe to break open the door and found the deceased lying on the floor in a still position and not breathing. He stated that he was the one who opened the door and that PW4 and PW5 were not in the house at the time. He checked the house but did not find anyone else. He pulled the deceased and realized that she was lifeless.
46. The accused testified that he then rushed to Daraja Mbili Police Station to make a report. He knocked at the station and a female police officer came out, to whom he made his report. Another officer also arrived. While he was reporting, a person known as Apuot arrived and told the police officer that the accused was the person who had killed the deceased. The accused stated that members of the public then wanted to lynch him, causing him to run away. He remained at large until he was arrested.
47. The accused testified that the deceased had been like a mother to him and that he had lived with her after the death of his parents. He stated that PW4 and PW5 were one Catherine’s children and that Catherine had also been like a mother to him. He stated that he was arrested on 24th February, 2023 and denied being the person who had assaulted and killed the deceased.
48. On cross-examination, the accused confirmed that the deceased was his aunt and that he knew her well. He stated that he did not go to work on the day of the incident and was at home together with PW4, PW5 and the deceased. He testified that the four of them were the only people at home. He stated that PW5 called him to go and eat at the deceased’s house, where he ate and watched television. He heard the deceased tell PW5 that the food was too salty.
49. The accused denied hearing the deceased refer to PW5 as Everlyne Nyapietho or mention his father’s name, Nyapietho. He denied becoming annoyed when the deceased allegedly mentioned his father’s name. He stated that he went to sleep, but later heard the deceased calling for help and rushed to the house. He stated that he used a jembe to break open the door and found the deceased lying on the ground. He stated that he did not see anyone else in the house and denied hitting the deceased with the jembe.
50. The accused stated that PW5 was like a sister to him and that she had testified that he hit the deceased with a jembe. He also referred to PW4’s testimony that he had seen the accused hitting the deceased with a jembe. The accused denied having any differences with the deceased and reiterated that he was not annoyed when she allegedly mentioned his father’s name. He confirmed that the deceased did not have a weapon on the material day.
51. The accused further testified that he went to the police to make a report and was told by the police to go far away. He denied fleeing but confirmed that he was arrested in the Nyamasaria area. He also admitted that he removed a television set from the wall after finding the deceased dead. He stated that he did not know whether PW4 and PW5 had gone to hide in a nearby farm. He confirmed that he had a jembe.
52. The accused did not call any witness and closed the defence case at that stage.
E. THE STATE’S SUBMISSIONS.
53. The prosecution submits that the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code has been proved against the accused beyond reasonable doubt. It submits that the evidence of the six prosecution witnesses, together with the documentary evidence tendered, established all the essential elements of the offence and that the accused should accordingly be found guilty and convicted.
54. The prosecution submits that the evidence of PW1, Dr. Tobias Jude Masawa, established the fact and cause of the deceased’s death. The post-mortem examination revealed multiple deep lacerative wounds extending into the brain, including a major laceration involving the left maxillofrontal-temporal region of the skull with massive spillage of brain matter, additional lacerative wounds to the right eye and chin, bruising and abrasions, fractures and a displaced skull fracture.
55. The prosecution asserts that the cause of death was certified as severe head injury due to multiple lacerative wounds to the head and that the post-mortem form produced as PExh1 proves as much.
56. The prosecution submits that PW1’s inability to determine whether the injuries were inflicted by one person or several persons did not assist the defence, since the identity of the perpetrator was, in its submission, established by direct eyewitness evidence.
57. The prosecution further submits that PW2, Police Constable Ngetich Kiprotich Weldon, established the arrest of the accused on 24th February 2023 at Nyamasaria and recorded the arrest in OB No. 20 of 24th February, 2023. It submits that the defence did not challenge the substance of that evidence.
58. With respect to PW3, Dorcas Auma Oriedo, the prosecution submits that she positively identified the deceased’s body during the post-mortem examination and confirmed that the deceased had been living with the accused at the time of her death.
59. The prosecution submits that PW4, Ben Ochieng Omondi, placed the accused, the deceased and PW5 together in the house on the material night. According to the prosecution, PW4 testified that after supper the accused became agitated about the food, alleged that there was an attempt to poison him, locked the door from outside and made alarming utterances. The accused later returned in a hostile mood.
60. The prosecution further submits that PW4 heard a sound resembling a slap followed by PW5’s screams and, after seeking assistance from neighbours, found the deceased lying on her back with a severe head injury and blood on the walls.
61. The prosecution further submits that the accused later appeared at the police station carrying a television set and fled when members of the public turned against him. The prosecution relies on PW4’s evidence concerning the jembe to submit that the evidence did not support an accidental fall by the deceased.
62. The prosecution submits that PW5, Everlyne Adhiambo Omondi, was the crucial eyewitness. It submits that she was present in the house during the events leading to the deceased’s death and witnessed the accused return armed with a jembe, break open the door and attack the deceased with the implement.
63. According to the prosecution, PW5 saw the accused strike the deceased on the hands, shoulders and head, after which the deceased instructed her to flee. PW5 escaped through a window and subsequently saw the accused leave the compound carrying the television set. The prosecution submits that her evidence was detailed, consistent and corroborated by the evidence of PW4 and the medical and scene evidence.
64. The prosecution submits that PW6, Sergeant Richard Lang’at, investigated the matter, visited the scene, interviewed the family members, established that the deceased had been attacked in the living room of the semi-permanent house and observed blood stains on the walls. He further established that the deceased had been attacked with a jembe, although the weapon was not recovered. The prosecution submits that the accused was arrested on 24th February, 2023 and that a post-mortem examination was subsequently conducted.
65. The prosecution submits that the accused’s defence did not raise a reasonable doubt. It submits that although the accused claimed to have returned to the deceased’s house after hearing her call for help and to have found her already dead, he admitted being present at the scene, possessing a jembe, using it to break open the door and not seeing any other person at the compound.
66. The prosecution further submits that the accused’s account was inconsistent with the evidence of PW5, who testified that she was present during the attack and escaped through the window. It argues that the accused’s possession of the jembe, his presence at the scene, his subsequent removal of the television set and his flight from the area were circumstances that corroborated the prosecution case.
67. On the ingredients of murder, the prosecution submits that Section 203 of the Penal Code requires proof that the accused caused the death of another person by an unlawful act or omission and that the act or omission was accompanied by malice aforethought. It identifies the essential matters for proof as the fact of death, the cause of death, the unlawfulness of the act or omission, the fact that the unlawful act or omission was attributable to the accused and the presence of malice aforethought.
68. The prosecution reiterates that the burden of proof rests upon it and submits that the standard of proof beyond reasonable doubt has been met.
69. On the question of unlawfulness, the prosecution submits that the severe and multiple injuries sustained by the deceased, including the extensive head injuries and displaced skull fracture, were inconsistent with an accidental fall or a natural cause of death. It submits that the medical evidence, the evidence of the blood stains at the scene and the evidence that the deceased was attacked with a jembe established that her death resulted from an unlawful act.
70. On the identity of the person who caused the death, the prosecution submits that the evidence rested principally on three pillars.
71. First, it relies on PW5’s direct eyewitness account that the accused armed himself with a jembe, broke open the door and repeatedly struck the deceased.
72. Secondly, it relies on PW4’s evidence concerning the events before and after the attack, including the accused’s conduct, the sound he heard, PW5’s screams and the discovery of the deceased with severe injuries.
73. Thirdly, it relies on what it characterizes as the accused’s self-incriminating admissions concerning his presence at the scene, possession of a jembe and use of the implement to break open the door.
74. The prosecution submits that the accused’s account that he broke into the house and found the deceased already dead was untenable in the circumstances. It argues that the accused had been at the scene, had possession of the jembe and was the person who broke open the door. The prosecution further submits that no credible third-party assailant was identified or suggested by the evidence.
75. On malice aforethought, the prosecution submits that the same is defined under Section 206 of the Penal Code and may be inferred from the intention to cause death or grievous harm, knowledge that the act will probably cause death or grievous harm, or an intention to commit or facilitate the commission of a felony.
76. In support of that submission, the prosecution relies on Republic v Benjamin Kyalo Mulonzi [2019] eKLR, where the Court stated that malice aforethought is a conscious and premeditated intention to kill and may be established by considering the weapon used, the manner in which it was used, the part of the body targeted, the nature of the injuries inflicted and the conduct of the accused before, during and after the attack.
77. The prosecution also relies on Nzuki v Republic [1993] KLR 171, in which the Court of Appeal held that malice aforethought may be inferred from the nature of the weapon used, the part of the body targeted, the manner of the attack and the multiplicity and severity of the injuries inflicted.
78. The prosecution further relies on State v Opondo [2025] KEHC 940 (KLR), which it submits affirmed that where an accused person repeatedly strikes a victim on the head with a heavy implement, the inference that the accused intended to cause death or grievous harm may be irresistible.
79. Applying those principles, the prosecution submits that malice aforethought was established by the nature of the weapon, namely a jembe; the targeting of the deceased’s head, a vital and vulnerable part of the body; the repeated blows inflicted on the deceased; the ferocity and severity of the attack, which resulted in a displaced skull fracture and massive spillage of brain matter; the accused’s conduct before the attack, including the dispute concerning the food, his threatening conduct and his return armed with the jembe; and his conduct after the attack, including removing the television set, leaving the compound and remaining at large until his arrest.
80. The prosecution submits that its evidence was mutually corroborative. In its view, the post-mortem findings were consistent with PW5’s account of the attack; PW4 corroborated the events preceding and following the assault; PW6’s observations of blood stains at the scene corroborated the physical consequences of the attack; and the accused’s own admissions confirmed material aspects of the prosecution’s timeline and placed him at the scene with the jembe.
81. The prosecution submits that the defence theory of a third-party attack or accidental discovery of the deceased’s body was untenable. It argues that PW5 directly witnessed the accused attacking the deceased; that the accused was the person who broke open the door; that the accused’s denial of PW5’s presence was contradicted by her evidence; that his possession and removal of the television set was consistent with PW5’s account; and that his subsequent flight and arrest three days later were inconsistent with an innocent explanation.
82. The prosecution consequently submits that it proved beyond reasonable doubt each element of the offence of murder against the accused, Kevin Omondi Nyapietho, and urges the Court to find him guilty of murder contrary to Section 203 as read with Section 204 of the Penal Code and convict him accordingly.
F. THE ACCUSED’S SUBMISSIONS.
83. On his part, the accused submits that the prosecution proved that the deceased died and sustained serious injuries but failed to prove beyond reasonable doubt that the accused was responsible for the fatal assault or that he acted with malice aforethought.
84. The defence relies on Article 50(2)(a) of the Constitution and Section 107 of the Evidence Act for the proposition
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1. Vide the Information dated 7th March, 2023, Kevin Omondi Nyapietho, the accused person herein, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 Laws of Kenya. It is alleged in the particulars of the offence that on the 21st day of February, 2023 at Kapuonja Sublocation in Kisumu West Subcounty within Kisumu County, the accused person murdered Gaudencia Otieno Aoko.
2. The accused person denied the charge and a plea of “not guilty” was entered, following which his trial commenced.
B. THE PROSECUTION CASE.
3. The prosecution called a total of six (6) witnesses.
4. The first prosecution witness (PW1) was Dr. Tobias Jude Masawa. The witness testified and told the court that he was a pathologist by profession. He stated that he attended Vena University in Cuba in 2009 and subsequently obtained a Master’s degree in Pathology from the University of Nairobi. He had thereafter been practising as a pathologist.
5. The witness testified that he conducted a post-mortem examination on the body of Gaudencia Aoko Otieno at Masaba Hospital on 27th February, 2023 at 1.00 p.m. He stated that the deceased was an African female aged approximately 65 years, of good nutrition and well built, measuring 166 centimetres in height. The body was well preserved through embalming and exhibited normal post-mortem changes, including lividity and rigidity. It was covered with blue linen and had a bracelet on the left wrist.
6. On external examination, the witness observed multiple deep lacerative wounds on the face extending into the brain. The longest laceration involved the left maxillofrontal and temporal bones of the skull and was associated with massive spillage of brain matter. He also observed six other lacerative wounds on the right eye and chin, as well as multiple abrasive wounds and bruises on the neck and anterior chest. There was also a undisplaced fracture of the right elbow joint and a fracture of the lower part of the left femur, associated with internal injury to the left leg. The body also exhibited marked pallor.
7. On internal examination, the respiratory system, liver, spleen and pancreas were unremarkable. The kidneys were examined. Examination of the head revealed a displaced skull fracture associated with the deep lacerative wounds, while the brain had suffered extensive injury with spillage of brain matter. The spinal column was intact and the spinal cord was not exposed.
8. Based on his examination, the witness formed the opinion that the cause of death was severe head injury due to multiple lacerative wounds to the head. He identified the post-mortem form bearing the death certificate No. 1484661, which he had signed on 27th February, 2023, and produced it in evidence as PExh1.
9. On cross-examination, the witness stated that he was unable to determine whether the injuries sustained by the deceased had been inflicted by one person or by several persons.
10. Police Constable Ng’etich Kipkorir Weldon testified as PW2 and told the court that he was a police officer attached to Nyamasaria Police Patrol Base. He stated that on 24th February, 2023 at about 12.30 p.m., while at the police station, Police Constables Jacob Magut and Mathew Kiprotich, together with a male member of the public, sought assistance in arresting a murder suspect within the Nyamasaria area.
11. The witness testified that he proceeded to the Batatoast area in the company of Police Constables Kiprotich and Magut and the said member of the public. They found the suspect walking towards the Kasawino direction. The member of the public pointed out the suspect, whom they arrested and escorted to the police station. The suspect was identified as a male adult of Luo ethnicity named Kevin Omondi, whom the witness identified in court as the accused. The accused was booked at the police station vide OB No. 20 of 24th February 2023. The witness stated that he was informed that the accused had committed the offence of murder.
12. On cross-examination, the witness clarified that he was not the investigating officer.
13. The prosecution called Dorcas Auma Oriedo as PW3. In her testimony, the witness stated that she was a farmer residing at Kapuonja South. She testified that the deceased, Gaudencia Atieno, was her husband’s sister.
14. The witness told the court that on 27th February, 2023, she travelled to Masaba Hospital together with her brother-in-law, Aloice Omondi Nyapiedho, to identify the deceased’s body during the post-mortem examination. She stated that she identified the deceased by her facial features and legs, as well as by her long toenails. She confirmed that she was present when the post-mortem examination was conducted and recognized the post-mortem report produced in evidence as PExh1.
15. The witness testified that the deceased ordinarily resided in Nairobi but had returned home on Saturday, 18th February, 2023, to attend a burial in Kano. She stated that the accused, Kevin Omondi, was the deceased’s son and identified him in court as the person in the dock. She further testified that, at the time of her death, the deceased lived in the same home with the accused, one Benson and one Everlyn. The witness also stated that, sometime in the preceding year, the accused had confronted her and thrown a stone at her.
16. On cross-examination, the witness stated that she had previously lived with the deceased in Nairobi in 1987 but was not living with her at the time of her death. She confirmed that she knew the deceased was living with the accused at the time of her death but stated that she did not know how the deceased died.
17. On re-examination, the witness clarified that she was not with the accused on 21st February, 2023. She reiterated that she knew the deceased was then living with Benson, Everlyn and the accused. She added that the deceased had previously visited her home, where she cooked githeri and the deceased requested her to give her some of the food to take to Benson, Everlyn and the accused.
18. PW4, Ben Ochieng Omondi testified that he resided at Nyamasaria and was unemployed. He stated that the accused, Kevin Omondi Nyapietho, was his elder brother and identified him in court as the person in the dock. He further testified that the deceased, Gaudencia Otieno Aoko, was his aunt.
19. The witness testified that on 21st February, 2023 at about 10.45 p.m., he was in the house together with the accused, the deceased and his sister, Everlyne. They had taken supper. After the meal, the accused scolded the deceased about the food and accused them of intending to poison him. He then left the house and went to another house within the homestead, there being two houses. Before leaving, he locked the house from the outside.
20. The witness stated that the accused thereafter made a lot of noise outside, repeatedly saying that “hawa watu wanataka kuniua.” The deceased called the police, but officers at Daraja Mbili Police Station informed her that it was too late for them to attend and advised them to seek help elsewhere.
21. The witness testified that the accused subsequently returned to the house and was hostile. While the witness was in the bedroom, he heard a sound resembling a slap, followed by a scream from Everlyne. He left the bedroom to find out what had happened and proceeded towards the next room. He then exited the house through a window in order to call for help. He alerted neighbours, including one Nick and one Gordon, who joined him. Together, they entered the house, where the witness found the deceased lying on her back, facing upwards. She had an injury to the head and there was a lot of blood, including blood on the walls. The witness stated that he was shocked by what he saw.
22. The witness testified that he then proceeded to Daraja Mbili Police Station to report that his aunt had been killed. He stated that, upon arrival, the police station had not yet been opened. He went to the centre and informed a person known as Ayoke of what had happened. He thereafter returned to the police station with one Hillary and knocked on the door. The station was opened, and he reported to the police that Gaudencia had been killed.
23. The witness further testified that the accused subsequently arrived at the police station carrying a television set and claiming that people wanted to kill him. A crowd then gathered and, according to the witness, some people appeared intent on attacking the accused. The accused ran away and left the television set behind.
24. PW4 testified that on his way back, he encountered Everlyne but did not speak to her. He stated that the house had solar lighting, which provided illumination. The accused was later arrested at Nyamasaria, several days after the incident.
25. On being cross-examined, the witness confirmed that they had taken supper in the house and that he had been in the bedroom when the deceased called the police after the accused had scolded her. He stated that when he went outside and subsequently returned to the house, he found the deceased dead. He also testified that there was a small jembe which the accused used but stated that he did not know whether the deceased had fallen on it.
26. On re-examination, the witness clarified that he had not seen the deceased fall on the jembe.
27. The fifth witness that the prosecution called was Everlyne Adhiambo (PW5), whose testimony was that she resided at Kano Kasule and was a student at Ongeche Mixed Secondary School, where she was in Form Two. She testified that the accused, Kevin Omondi, was her elder brother and the first-born in their family, and identified him in court as the person in the dock. She further stated that the deceased, Gaudencia Otieno, was her aunt.
28. The witness testified that on 21st February, 2023, she attended school and returned home at about 5.00 p.m. She prepared tea for the deceased, cleared the table and washed the dishes. The deceased thereafter sent Ben Ochieng Omondi (PW4) to buy food from the market and asked the witness to pack clothes in a bag because she intended to travel to Nairobi that night. The deceased subsequently changed her mind and decided to travel the following morning.
29. The witness testified that they later had dinner in the living room, comprising herself, the accused, PW4 and the deceased. During the meal, the accused claimed that the food was poisoned and that it smelled of poison, although he continued eating. The deceased also ate the food but complained that it contained too much salt.
30. PW5 told the court that after dinner, she cleared the table. PW4 went to the bedroom to sleep, while the witness, the accused and the deceased remained in the living room. The witness stated that she was selecting secondary schools and asked the deceased for her full names. The deceased stated that she was Gaudencia Aoko Otieno and gave the full names of the witness’s mother as Catherine Akinyi Nyapeitho.
31. The witness testified that the accused then began complaining that the name Nyapietho belonged to his father. He stood up and went outside. When the deceased asked him why he had left his shoes behind, he did not respond. The accused then locked the door from outside, while the witness locked it from inside. When the accused returned, he found that the door was locked from inside. He struck the door with a jembe and forced it open.
32. The witness testified that the accused thereafter attacked the deceased with the jembe, striking her on the shoulder and head with its sharp side. The deceased told the witness to run away, whereupon the witness escaped through a bedroom window. She stated that she left the deceased bleeding from the shoulder and head. She screamed and observed blood splashed on the seat, on the accused and within the house. The witness stated that she was confused, ran away and hid near a tree.
33. The witness testified that she subsequently saw the accused leaving while carrying a television set. There was solar lighting outside, which enabled her to see him clearly. He proceeded into a thicket. The witness thereafter met Ben Ochieng Omondi (PW4) together with his friends. PW4 asked her whether the deceased had been killed, but she told him that she did not know. He directed her to go to one Nickson’s house. At that house, one Mama Nickson asked her what had happened, and the witness told her to go and see for herself, stating that she was unable to explain what had occurred. Nickson later went to call her and assured her that it was safe to return.
34. The witness testified that she returned home and found her uncle, Aloyce Omondi, together with other people. She was informed that the police had taken the deceased’s body to the mortuary. The jembe used by the accused was not recovered. She was also informed that the accused had fled and that he was arrested several days later. The witness stated that she recorded a statement with the police.
35. On cross-examination, the witness confirmed that the jembe was not recovered and that the deceased died in the house.
36. On re-examination, the witness reiterated that the accused struck the deceased on the shoulder and head and that she saw blood coming from the deceased’s shoulder.
37. The last prosecution witness was Police Sergeant Richard Lang’at. The witness testified that he was attached to the Directorate of Criminal Investigations, Kisumu West, and was the investigating officer in the matter. He stated that on 22nd September, 2023 he was instructed to investigate the murder which had allegedly been committed on 21st February, 2023.
38. The officer told the court that on 22nd February, 2023, he visited the scene together with other officers. They interviewed members of the deceased’s family, who informed them that the deceased had been attacked and killed on 21st February, 2023 and that the person who had attacked her was Kevin Omondi Nyapietho, the deceased’s nephew. The suspect had, however, fled.
39. The witness testified that he recorded statements from witnesses. On 24th February, 2023, the suspect was arrested, following which the police obtained custodial orders from the Maseno Court. A post-mortem examination was conducted on 27th February, 2023 and a report prepared.
40. The witness further testified that the scene was a semi-permanent house comprising a living room and a bedroom. The deceased had been attacked in the living room, where blood stains were splashed on the wall. He stated that the deceased had been cut with a jembe, but the weapon was not recovered. He identified the accused, Kevin Omondi, as the suspect in the case and as the person in the dock.
41. On cross-examination, the witness confirmed that he visited the scene of crime when the deceased’s body had already been taken to the mortuary. He stated that some police officers had visited the scene on the previous day. No photographs of the scene were taken, and no clothes were examined.
C. RULING ON PRIMA FACIE CASE.
42. The prosecution closed its case at that stage and in the court’s considered ruling rendered on 31st July, 2024, a finding was made that the prosecution had established a prima facie case against the accused and he was placed on his defence.
D. THE DEFENCE CASE.
43. In his defence, the accused testified on oath as DW1 and told the court that he resided at Kapuonja and was a casual worker. He stated that he understood the charge facing him.
44. The accused testified that on 21st February 2023 he was at home in the deceased’s house. They ate together, after which he went to sleep. He later heard the deceased making a telephone call and asking for help, stating that someone was disturbing her. He returned to his house, having left PW4 and PW5 there with the deceased.
45. The accused testified that on returning to the deceased’s house, he used the handle of a jembe to break open the door and found the deceased lying on the floor in a still position and not breathing. He stated that he was the one who opened the door and that PW4 and PW5 were not in the house at the time. He checked the house but did not find anyone else. He pulled the deceased and realized that she was lifeless.
46. The accused testified that he then rushed to Daraja Mbili Police Station to make a report. He knocked at the station and a female police officer came out, to whom he made his report. Another officer also arrived. While he was reporting, a person known as Apuot arrived and told the police officer that the accused was the person who had killed the deceased. The accused stated that members of the public then wanted to lynch him, causing him to run away. He remained at large until he was arrested.
47. The accused testified that the deceased had been like a mother to him and that he had lived with her after the death of his parents. He stated that PW4 and PW5 were one Catherine’s children and that Catherine had also been like a mother to him. He stated that he was arrested on 24th February, 2023 and denied being the person who had assaulted and killed the deceased.
48. On cross-examination, the accused confirmed that the deceased was his aunt and that he knew her well. He stated that he did not go to work on the day of the incident and was at home together with PW4, PW5 and the deceased. He testified that the four of them were the only people at home. He stated that PW5 called him to go and eat at the deceased’s house, where he ate and watched television. He heard the deceased tell PW5 that the food was too salty.
49. The accused denied hearing the deceased refer to PW5 as Everlyne Nyapietho or mention his father’s name, Nyapietho. He denied becoming annoyed when the deceased allegedly mentioned his father’s name. He stated that he went to sleep, but later heard the deceased calling for help and rushed to the house. He stated that he used a jembe to break open the door and found the deceased lying on the ground. He stated that he did not see anyone else in the house and denied hitting the deceased with the jembe.
50. The accused stated that PW5 was like a sister to him and that she had testified that he hit the deceased with a jembe. He also referred to PW4’s testimony that he had seen the accused hitting the deceased with a jembe. The accused denied having any differences with the deceased and reiterated that he was not annoyed when she allegedly mentioned his father’s name. He confirmed that the deceased did not have a weapon on the material day.
51. The accused further testified that he went to the police to make a report and was told by the police to go far away. He denied fleeing but confirmed that he was arrested in the Nyamasaria area. He also admitted that he removed a television set from the wall after finding the deceased dead. He stated that he did not know whether PW4 and PW5 had gone to hide in a nearby farm. He confirmed that he had a jembe.
52. The accused did not call any witness and closed the defence case at that stage.
E. THE STATE’S SUBMISSIONS.
53. The prosecution submits that the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code has been proved against the accused beyond reasonable doubt. It submits that the evidence of the six prosecution witnesses, together with the documentary evidence tendered, established all the essential elements of the offence and that the accused should accordingly be found guilty and convicted.
54. The prosecution submits that the evidence of PW1, Dr. Tobias Jude Masawa, established the fact and cause of the deceased’s death. The post-mortem examination revealed multiple deep lacerative wounds extending into the brain, including a major laceration involving the left maxillofrontal-temporal region of the skull with massive spillage of brain matter, additional lacerative wounds to the right eye and chin, bruising and abrasions, fractures and a displaced skull fracture.
55. The prosecution asserts that the cause of death was certified as severe head injury due to multiple lacerative wounds to the head and that the post-mortem form produced as PExh1 proves as much.
56. The prosecution submits that PW1’s inability to determine whether the injuries were inflicted by one person or several persons did not assist the defence, since the identity of the perpetrator was, in its submission, established by direct eyewitness evidence.
57. The prosecution further submits that PW2, Police Constable Ngetich Kiprotich Weldon, established the arrest of the accused on 24th February 2023 at Nyamasaria and recorded the arrest in OB No. 20 of 24th February, 2023. It submits that the defence did not challenge the substance of that evidence.
58. With respect to PW3, Dorcas Auma Oriedo, the prosecution submits that she positively identified the deceased’s body during the post-mortem examination and confirmed that the deceased had been living with the accused at the time of her death.
59. The prosecution submits that PW4, Ben Ochieng Omondi, placed the accused, the deceased and PW5 together in the house on the material night. According to the prosecution, PW4 testified that after supper the accused became agitated about the food, alleged that there was an attempt to poison him, locked the door from outside and made alarming utterances. The accused later returned in a hostile mood.
60. The prosecution further submits that PW4 heard a sound resembling a slap followed by PW5’s screams and, after seeking assistance from neighbours, found the deceased lying on her back with a severe head injury and blood on the walls.
61. The prosecution further submits that the accused later appeared at the police station carrying a television set and fled when members of the public turned against him. The prosecution relies on PW4’s evidence concerning the jembe to submit that the evidence did not support an accidental fall by the deceased.
62. The prosecution submits that PW5, Everlyne Adhiambo Omondi, was the crucial eyewitness. It submits that she was present in the house during the events leading to the deceased’s death and witnessed the accused return armed with a jembe, break open the door and attack the deceased with the implement.
63. According to the prosecution, PW5 saw the accused strike the deceased on the hands, shoulders and head, after which the deceased instructed her to flee. PW5 escaped through a window and subsequently saw the accused leave the compound carrying the television set. The prosecution submits that her evidence was detailed, consistent and corroborated by the evidence of PW4 and the medical and scene evidence.
64. The prosecution submits that PW6, Sergeant Richard Lang’at, investigated the matter, visited the scene, interviewed the family members, established that the deceased had been attacked in the living room of the semi-permanent house and observed blood stains on the walls. He further established that the deceased had been attacked with a jembe, although the weapon was not recovered. The prosecution submits that the accused was arrested on 24th February, 2023 and that a post-mortem examination was subsequently conducted.
65. The prosecution submits that the accused’s defence did not raise a reasonable doubt. It submits that although the accused claimed to have returned to the deceased’s house after hearing her call for help and to have found her already dead, he admitted being present at the scene, possessing a jembe, using it to break open the door and not seeing any other person at the compound.
66. The prosecution further submits that the accused’s account was inconsistent with the evidence of PW5, who testified that she was present during the attack and escaped through the window. It argues that the accused’s possession of the jembe, his presence at the scene, his subsequent removal of the television set and his flight from the area were circumstances that corroborated the prosecution case.
67. On the ingredients of murder, the prosecution submits that Section 203 of the Penal Code requires proof that the accused caused the death of another person by an unlawful act or omission and that the act or omission was accompanied by malice aforethought. It identifies the essential matters for proof as the fact of death, the cause of death, the unlawfulness of the act or omission, the fact that the unlawful act or omission was attributable to the accused and the presence of malice aforethought.
68. The prosecution reiterates that the burden of proof rests upon it and submits that the standard of proof beyond reasonable doubt has been met.
69. On the question of unlawfulness, the prosecution submits that the severe and multiple injuries sustained by the deceased, including the extensive head injuries and displaced skull fracture, were inconsistent with an accidental fall or a natural cause of death. It submits that the medical evidence, the evidence of the blood stains at the scene and the evidence that the deceased was attacked with a jembe established that her death resulted from an unlawful act.
70. On the identity of the person who caused the death, the prosecution submits that the evidence rested principally on three pillars.
71. First, it relies on PW5’s direct eyewitness account that the accused armed himself with a jembe, broke open the door and repeatedly struck the deceased.
72. Secondly, it relies on PW4’s evidence concerning the events before and after the attack, including the accused’s conduct, the sound he heard, PW5’s screams and the discovery of the deceased with severe injuries.
73. Thirdly, it relies on what it characterizes as the accused’s self-incriminating admissions concerning his presence at the scene, possession of a jembe and use of the implement to break open the door.
74. The prosecution submits that the accused’s account that he broke into the house and found the deceased already dead was untenable in the circumstances. It argues that the accused had been at the scene, had possession of the jembe and was the person who broke open the door. The prosecution further submits that no credible third-party assailant was identified or suggested by the evidence.
75. On malice aforethought, the prosecution submits that the same is defined under Section 206 of the Penal Code and may be inferred from the intention to cause death or grievous harm, knowledge that the act will probably cause death or grievous harm, or an intention to commit or facilitate the commission of a felony.
76. In support of that submission, the prosecution relies on Republic v Benjamin Kyalo Mulonzi [2019] eKLR, where the Court stated that malice aforethought is a conscious and premeditated intention to kill and may be established by considering the weapon used, the manner in which it was used, the part of the body targeted, the nature of the injuries inflicted and the conduct of the accused before, during and after the attack.
77. The prosecution also relies on Nzuki v Republic [1993] KLR 171, in which the Court of Appeal held that malice aforethought may be inferred from the nature of the weapon used, the part of the body targeted, the manner of the attack and the multiplicity and severity of the injuries inflicted.
78. The prosecution further relies on State v Opondo [2025] KEHC 940 (KLR), which it submits affirmed that where an accused person repeatedly strikes a victim on the head with a heavy implement, the inference that the accused intended to cause death or grievous harm may be irresistible.
79. Applying those principles, the prosecution submits that malice aforethought was established by the nature of the weapon, namely a jembe; the targeting of the deceased’s head, a vital and vulnerable part of the body; the repeated blows inflicted on the deceased; the ferocity and severity of the attack, which resulted in a displaced skull fracture and massive spillage of brain matter; the accused’s conduct before the attack, including the dispute concerning the food, his threatening conduct and his return armed with the jembe; and his conduct after the attack, including removing the television set, leaving the compound and remaining at large until his arrest.
80. The prosecution submits that its evidence was mutually corroborative. In its view, the post-mortem findings were consistent with PW5’s account of the attack; PW4 corroborated the events preceding and following the assault; PW6’s observations of blood stains at the scene corroborated the physical consequences of the attack; and the accused’s own admissions confirmed material aspects of the prosecution’s timeline and placed him at the scene with the jembe.
81. The prosecution submits that the defence theory of a third-party attack or accidental discovery of the deceased’s body was untenable. It argues that PW5 directly witnessed the accused attacking the deceased; that the accused was the person who broke open the door; that the accused’s denial of PW5’s presence was contradicted by her evidence; that his possession and removal of the television set was consistent with PW5’s account; and that his subsequent flight and arrest three days later were inconsistent with an innocent explanation.
82. The prosecution consequently submits that it proved beyond reasonable doubt each element of the offence of murder against the accused, Kevin Omondi Nyapietho, and urges the Court to find him guilty of murder contrary to Section 203 as read with Section 204 of the Penal Code and convict him accordingly.
F. THE ACCUSED’S SUBMISSIONS.
83. On his part, the accused submits that the prosecution proved that the deceased died and sustained serious injuries but failed to prove beyond reasonable doubt that the accused was responsible for the fatal assault or that he acted with malice aforethought.
84. The defence relies on Article 50(2)(a) of the Constitution and Section 107 of the Evidence Act for the proposition
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