The Accused persons are jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code in five (5) counts.
The Accused persons are jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code in five (5) counts
The particulars to the 1st Count are that on the night of 28th day of February 2019 at around 23.30hours at Koluoch village, Rongo Sub County within Migori County in the Republic of Kenya the jointly with others not before the court murdered Maritha Amolo Dwalo
The particulars to the 2nd Count are that on the night of 28th day of February 2019 at around 23.30hours at Koluoch village, Rongo Sub County within Migori County in the Republic of Kenya the accused persons jointly with others not before the court murdered Elida Akinyi Otieno
The particulars to the 3rd Count are that on the night of 28th day of February 2019 at around 23.30hours at Koluoch village, Rongo Sub County within Migori County in the Republic of Kenya the accused persons jointly with others not before the court murdered Levia Atieno Otieno
The particulars to the 4th Count are that on the night of 28th day of February 2019 at around 23.30hours at Koluoch village, Rongo Sub County within Migori County in the Republic of Kenya the accused persons jointly with others not before the court murdered Brenda Akoth Otieno
The particulars to the 5th Count are that on the night of 28th day of February 2019 at around 23.30hours at Koluoch village, Rongo Sub County within Migori County in the Republic of Kenya the accused persons jointly with others not before the court murdered Cynthia Adongo Otieno.
PW1 WILSON OKINYI from Kochia area testified that he was a student at Ondiche Primary School in Homa Bay County and that he was 16 years old. He said he was born in 2002. He recalled that in February 2019 he used to live in Opapo, Kamagambo in Migori County with his parents together with his brothers and sisters. He said he was currently living with his parents in Homa Bay County.
He said his father is called ELIJAH OTIENO DUALO and his mother is called MONICA. PW1 said he knew MARITA AMOLO DUALO. Who was now dead. That he lived with her in Kamagambo. He said he also knew HELIDA AKINYI OTIENO who was his mother. He also knew LEVIA ATIENO Otieno who was his sister. He said he also knew BRENDA AKOTH ATIENO who was his sister. He also knew CYNTHIA ADONGO OTIENO who was also his sister. He said all the five were dead.
PW1 said that all the accused persons are their neighbours and he had known them for many years from his childhood when he was in Baby Class. He said that on 28/02/2019 at around 09:30 pm he was inside the house of his brother called HESBORN OMONDI. He had gone there to sleep after they had taken supper as a family. That suddenly he was woken from sleep by screams. That he heard the accused persons saying that they were going to kill a witch. It was A1 saying so in Dholuo language. He referred to PW1’s grandmother as the witch. He said that the 1st accused person’s voice came from a distance of about 15 metres away. PW1 said he woke up and wanted to go out but realised that the door had been locked from outside. That they broke the door and went out of the house and he saw the main house on fire. That he cried and ran back into the house. He was held and beaten by the people who wanted to take him into the burning house. Fortunately, he fell down as they carried him to the fire and that is why he ran back into the house. That it is true he was assaulted.
He said he could remember A1 and his wife (A5) and A4 are the ones who held him and were taking him into the fire. Pw1 said that there were security lights in their home and the attackers had torches. That they did not pursue him when he fell and he ran to his uncle Simeon Dualo’s place about 75 metres away from their house. That by the time he was running he didn’t know where his family members were. That he stayed at the uncle’s place for about one hour until Police officers came to the scene. That he saw his father being carried to his uncle’s place by FREDICK ONUKO and he was bleeding profusely from injuries on the head, neck chest and legs. PW1 said he was taken together with his father to Rongo Hospital.
The following morning, he learnt that 5 members of his family had died in the attack while he was still at the hospital. PW1 identified treatment notes dated 07/03/2019 MFI – P1. He also identified P3 form – MF1 –P2.
PW1 said he was aware that his brother fought with JOEL AWUONDA who was from the family of the accused persons and he was injured and taken to hospital but he died. That the family of the deceased person then claimed that their family was one with witches and they attacked in a revenge mission.
In cross examination by Ms. Okota Advocate, PW1 said that in February 2019 he was in Opapo Victory and he used to leave home at around 06:00a.m to go to school. He said he used to go back home for lunch and that he used to return home at around 06:00p.m. He said he was usually at home during the weekends but could go to school for tuition on Sundays from 02:--p.m to 5:00p.m PW1 said he used to go to Church on Saturdays.
He said he knew A1 who was their neighbour and also A2 who lived past A1’s home. PW1 said he was not related to A1 but they used to go to same Church. He said he used to talk with A1. There were many people and voices in their homestead and he was shocked when he woke up. PW1 said he could not recall hearing A1’s voice as there were many people. In his statement to the police PW1 said he A1 say they were going to kill witches. He said he did not see that in his statement though.
A1 and others assaulted him. PW1 said he knew DICKSON ODHAIMBO who assaulted him. He said their home was connected to electricity and the attackers had spotlights which they shone the spotlight on him.
PW1 said that A2 was at the scene but he did not beat him. He said he did not see those who torched the houses. He said he didn’t return to their home when he escaped to his uncle’s place and he did not know what transpired after he left.
In cross examination by Mr. Oywer Advocate PW1 said that it was true they were attacked at their home in Kamagambo. He said he knew JOSEPH OGILO OJONI (A3) since he was in Baby as he was their neighbour. He said A3’s home about 200 metres from their home. He said he also knew A5. She is also his neighbour and her home was far from their home. He said he did not interact with A3. He said the attack was around 10:30p.m and he was asleep by then. He said he was woken up by screams. There were many people and he was shocked. PW1 said the house where he was sleeping had only one door. He said that DICKSON ODHIAMBO entered their house. He said their house was sufficiently lit but he did not indicate in his statement to the police that their home was connected to electricity because he forgot. He said the attackers used torches which they pointed to his eyes.
He said that A5 was among the people who held him to be taken to the burning house but A3 was not among those who were taking him to the fire.
That he dropped and ran away to his uncle’s house. PW1 said he did not see anyone torching the houses. That he stayed at his uncle’s home for 1 hour and he could not say what happened to their home in his absence.
In cross examination by Mr. Kisia Advocate PW1 said that there was a lot of noise at their home that night. That some noises came from the house of his grandmother and some from the attackers. He said that many people went to their compound.
He said the door to their house was locked from outside and that shocked him. He said that safety was his priority. That the first door was broken and they left the house. That as he came out of the house some assailants beat him but he managed to free himself. He said the attackers had spotlights. That he took around 2 minutes to run away from the scene which was chaotic.
He said he was issued with a P3 Form.
In re-examination by Mr. Kimanthi Prosecuting Counsel, PW1 said that their homestead was connected with electricity and attackers had torches. The accused persons were well known to him but they least interacted. He said he witnessed the attack on his family members.
PW2 Elijah Otieno Dualo testified that he was from Kamagambo Koluoch and he was a farmer. He said he was 46 years old and married to four wives. He also said that he had children – 9 children and 3 died. He said he knew Lucas Nyandiga in 1976 as they come from the same village and share the same administrative area. He identified Lucas Nyandiga as the first accused in the dock.
He also said he knew Ben Omondi Odeka, since his birth. That he hails from another village near PW2’s village. He identified him as A2 in the dock.
PW2 identified A3, Joseph Ogilo Ojowi as a person he knew since he was born and comes from the same village.
PW2 also said he knew Mary Scholastica Auma the wife of Juma Onyango. He said they come from the same area.
PW2 said he knew Jane Anyango Nyandiga 5th Accused. He said he had known her since she got married to Lucas A1.
PW2 said he had known Joseph Aluda Onyango – A6 since he bought land at Kamagambo. He also said he knew Martha Amolo Dualo who was his mother. He said his mother was the deceased in Count II. PW2 said that Elida Akinyi Otieno was his first wife. PW2 said that he knew Lavina Atieno who was his daughter and the deceased in Count III. He said that Lavina was in standard 8.
That Brenda Akoth Otieno was also his daughter and she was in class 4. He also said that Cynthia Adongo Otieno was his daughter and she was 6 years old.
PW2 narrated that on 1/3/2019 at about midnight he was at home asleep when Lucas and the co accused went to his home. That he smelt petrol and thought his motorbike was leaking. That when he got up to check he saw Lucas carrying a jerrican of petrol and he poured it on him. The motor cycle was inside a different house from where he was sleeping. That he got up because of smell of petrol and noises made by people. That he heard people saying that they had to kill Elijah because he was a witch. It was shouts from many people. They spoke in dholuo language. That he was able to recognize the voices because he had stayed in the same village with all the people who were speaking the same language.
When he heard noises, he opened the door and found people, Lucas and others. He said he had a torch which he lit and saw them. That when he flashed the torch, they were about 2 metres away. They were armed and he was beaten and cut on the head and left hand with a panga. That he walked for a short while and fell unconscious. That he crawled on his knees until he reached his brother’s house. That he slept for a while and he heard a police vehicle come and he was taken to the hospital. PW2 said that his brother went to report the incident and he was taken to hospital at Rongo and then transferred to Migori then later to Ombo Mission hospital where he was treated and was issued with treatment notes and a P3 Form. He identified the P3 form dated 7/3/2019, It was filled by the Doctor on 15/2/2019 and degree of injuries were classified as ‘maim’ - MFI P1.
When in hospital PW2 said he did not know the fate of the others who died.
That after discharge from Hospital he learnt of their fate. That CID officers went to the hospital and recorded his statement on 2/3/2019 and he asked him where his relatives were and he was told that his family was taken to Homabay Hospital as Migori Hospital was too small. I left the hospital and went and buried them as he found them at the mortuary in Homa-Bay.
He said the body of Martha was burnt and he was not able to recognize the body but those who identified were recorded. He said he only knew Martha’s body because the Doctor told me that it was found in her house. The Doctor identified the body of Elida to him. The same thing applied to the body of Livia and Brenda.
He said that he could not identify the body of Cynthia if the doctor did not tell.
The bodies were identified to the Doctor. He said he knew post mortem was done but he did not know who identified the bodies to the Doctor before post mortem was done.
PW2 said he knew why the suspects burnt the house. They were saying that he was a witch because he had bought land in that area. PW2 said he was not a witch. There had not been any incident that could have caused them to call him a witch. He said the suspects alleged that he had killed their son Joel Owuonda and so he had to die. PW2 said he knew Joel Owuonda who lived in the same village with him. There was a fight between his elder son and Joel Owuonda and case was taken to court and his son was convicted. He said his son was at home after serving 12 years imprisonment. He said Joel died when his son was in prison on the day that the incident herein took place and that is how they alleged he was a witch. The people he saw were armed and Lucas had a 20 litre jerrican of petrol. He said Omondi had an axe while A3 had a panga and club. A4 had a cane; A5 had a cane and A6 had tyres.
PW2 said that when he flashed a torch on them, they ran backwards so that the torch could not flash them but he saw Lucas on the face and what he had carried (Accused 1). He said he also saw Ben Omondi, Joseph, Mary and Jane Anyango on their faces He said he was close to them. When he switched on the torch, they started to run saying that Elijah is at home. They said they were going to bring the killers to kill him. That they brought the people who beat him. He said the accused persons also beat him because he was trying to run and they gained entry. The people were in a line across outside the door.
PW2 said his compound is not fenced and had 7 houses namely; his 4 houses, his mother’s house, his son’s house and one house for rental. He said there are 3 houses in a line, one behind and one in front. He said he was in third wife’s house and that is where they confronted him. He said he did not know where the attackers had come from. That when he came out the people were standing in front of the 3rd wife’s house in a line. The others came and they injured him. PW2 said he lost 5 people and blamed Lucas, Ben, Joseph, Scola, Mrs. Lucas and Joseph for the deaths.
In cross examination by Ms. Okota, PW2 said that on 1/3/2019 it was dark and he did not have electricity in his home. He also said he had no solar but he had a chargeable torch. There were many people in his compound and he did not go to his other house. He said he did not run away but at some point, he did run away. He said he was with his third wife when he heard chaos and his wife remained in the house. He said he did not go to the house again neither did he go to the house where his deceased children were sleeping. That after he ran away, he did not go back to his house and he did not know whatever happened.
PW2 said he could not recall when he left the hospital and he was not present when the bodies of the deceased were removed. He said the bodies were burnt beyond recognition. He was also not present when post mortem was done and he was not present when the bodies got burnt. PW2 said he filed a complaint of assault but he did not know the case number and he did not have the documents in court.
In cross examination by Mr. Oywer Advocate for A2 and 5 PW2 said that he was asleep at his 3rd wife’s house. He said the 3rd wife did not have a child and they were just 2 of them in that house. He said he woke her up and she followed him outside as they were screaming. He said the only lights available was a solar torch which was very bright. He said he could not tell the watts of the torch. He said that when he opened the door, his wife was behind him. That when he opened the door, he saw a crowd outside his house. That the people did not attack him immediately. They moved away so that he could not see them using the torch. He said he could not recall what each of them wore that night. That after they moved away, he came out of the house and they started to beat him but he could not specifically identify the person who assaulted him because he was not holding the torch. He said he saw the assailants before the assault.
In cross examination by Mr. Kisia Advocate for A4, PW2 said that he lit the torch when outside the house and the assailants ran and hid from glare of the light.
He said he was injured at that time, when he went out of the house but he did not suffer any injury on the face. He said he was injured on the hands and head. He said he did not block his face from anything injured. He said he had injuries on the arms and fingers. He said that in the village when there is a distress call, people respond and members of the family raised distress call and people came. He said he could not tell who the assailants were and who had responded to the distress call.
PW2 said that his son was convicted for assaulting Joel. He said his son did wrong and the law took its course. He said he did not empathise with his son. He said the perpetrator was Joel. He said they tried out of court settlement but it did not bear fruits. He said he approached Joel’s family. He said all the accused persons are Joel’s family members. He said A6 is father to Joel and he was not at home as he had gone fishing. He said he felt let down by Joel and family members. It was well with him. PW2 said he recorded and signed his statement and that he told police that Aluda Onyango was armed with a panga but in court he said that he had tyres. He said he not present when burning took place. He said he could see Onyango carrying tyres.
In re-examination PW2 said that the Intensity of light of the torch was high. It could have covered the court room.
That he was able to see using the torch and he could see the 6 accused persons.
That when his son was convicted, the law took its course.
When alarm was raised, people responded and came but he did not cover his face with his hands when attacked. He said his statement was recorded by the police officer.
In examination by, the court PW2 said his third wife was not the one who was killed. He said that when he opened the door, there were more than 6 people but he only saw 6. They were many. That some people went away to get others from his mother’s house while others were left guarding him.
PW3 MONICA ANYANGO OTIENO testified that she knew Merita Amolo who was her mother-in-law. She said that she also knew Elida Akinyi who was her co-wife. Levia Atieno Otieno is the daughter of Elida Akinyi. Brenda Akoth was also known to her. She was the daughter of Elida Akinyi. Cynthia Adongo Otieno was also known to her. She was the child of Elida. She said that Lucas Nyandiga – was known to her as her close neighhbour at Kamagambo. She said that they used to draw water at Otenge’s home where she also used to draw water about 200 meters from their home.
PW3 said she also knew Ben Omdo Otege as a neighbour but lived about four meters and that the 1st Accused who was his cousin. She said that Joseph Ongilo was also known to her as he is a from their village – not far from them.
She said that Mary Scholastica Auma was a neighbour and she had worked for her mother in-law. PW3 said that Jane Anyango Nyatige was the wife of the 1st accused and Joseph Aludo Onyango was a brother to the 1st accused.
PW3 said that on 28/2/2019 at about 11:30p.m she was at home with her family. That she was with Elida, Lavia, Cynthia, Brenda. There were also children. The children are not small. They are Vincent, Alfred, Isack, Evans, Wilson. Some were asleep and I had gone to sleep. Elida and her children had also gone to sleep. She said that she was with Elijah Otieno in her house. That in the homestead there are 4 houses for the wives, for her mother in-law, house for boys and some rental. She said she was asleep in her house with her husband. She said that she had not slept and was still sorting out the maize which she had harvested. The maize had been shelled during the day. That she was inside the house and her husband was already in bed. She said that the radio was on when she heard a scream and switched off the radio. That she heard somebody cry from her mother in-law’s house and she woke up her husband. She said that her mother in-laws house was not very far from her about 20 – 30 meters
apart. She said that she could not tell whose scream it was. After a short while I could hear people walking outside throwing stones on the doors and iron sheets. She said Lucas was with panga and stones. PW3 said the door to her house was hit and the hinges came off and was hanging with the lower hinge. She saw able to see the people outside well as she stood near the door. She said that she saw Lucas Oyange. There were other people – Ben (Accused 2), Joseph Ogilo Ajowi. Accused 3; Acused5 and Jane. Accused 4; Mary Nya Uyoma. She said that she could not see the others who were behind. She said that she also saw Aludo Joseph. PW3 said that she was with her husband. He asked what they had come to do in his home at night and they answered ‘we have come to kill you.’
That her husband lit the light from re-chargeable torch which was of a medium size but had a lot of light. She said that the people who were outside also had torches. That her husband said that he would come out so that they could kill him. That before they got out, they smelt fuel of motor cycle and her husband suspected it was from his motor cycle. However, they found the attackers had started spilling fuel into the house. She said it was Lucas who poured fuel into the house. He had fuel in a jerrican. They were outside the house. That they tried and came out. When they came out, they met the 4th accused person and they held each other and she wrestled her down and she started screaming for help saying she was being killed. That they started beating her. She ran and they chased her and they told her to run towards the fire. That she fell down where they had dug and the 6th accused threw a tyre on her neck but she managed to remove it and ran off and she was hit on the neck and she fell. PW3 said she was not able to get up and she was beaten up while there and was not able to get up. She heard the 1st accused say that Elijah was still in his house. By the time they had lit all the houses and there was a lot of light. They had lit her house and that of Elida Akinyi. She saw them take Elida take her back into her house which was on fire. That when she came out, Elida had also come out of the house. She could not tell how many of the family members had come out. That Lucas, Ben, and Aludo carried Elida and threw her back into the burning house and she heard Lucas say that each woman should be burnt not thrown from house. That she rolled and lay still and after a few minutes they came again to search for her but they did not get her. After a few minutes she heard people talking in Kiswhaili and there were many lights. They came near and she heard the voice of her brother in-law Jashon Oriko Dwalo who was with police officers. PW3 said that when she being beaten, she had a phone in her inner wear and when she heard Joshon’s voice. She called to ask him to look for her phone. That she was not able to walk to the vehicle and she was carried to the police vehicle. She said she saw Elijah being brought in a vehicle and their two sons were taken to Rongo Sub County Hospital where they were treated and transferred to Migori Referral Hospital. That at Migori County Hospital she was admitted and the following day she was informed that 5 people were killed. She said she was in hospital for 4 days and was released because the dead had to be buried.
PW3 said that her house was burnt with everything and there is none that was left. She said she did not observe the bodies of the deceased who were burnt beyond recognition. The accused were alleging that her mother in-law had bewitched the son of Luca’s brother who was ailing. She said her mother in-law was not a witch and she had never heard that she was a witch. She said she was issued with a P3 and the Police had it together with treatment notes. She reported to Rongo police station vide OB No. 17/7/03/2019. She also identified the P3 form PMFI 2(a) and treatment notes PMFI 2 (b). She identified the accused persons in court as the ones responsible for the death of the 5 people.
In cross examination by Ms. Okota Advocate, PW3 said that their home does not have electricity. She said she had solar light in her house. She said it was at 11:30p.m and the other people were asleep. She said she was in her house and she could not tell what was going on in the other houses. People hit my door and started to pour fuel inside. I was not burnt in any way. I was just beaten. I tried to escape to save my life. I tried to escape myself. I was beaten, fell and rolled to a place I could not be seen. I could not see what was happening at the time they could not see me. Later, police came and took me to hospital. I do not know what happened to Lavia, Bunde and Elida. I was told about it when in hospital. I was present at the burial. I did not see their bodies. I did not see the fire being lit and saw my co-wife being thrown into the fire. They chased me around the house as they told me to go where the fire was.
In cross examination by Mr. Oywer Advocate PW3 said that the incident was on 28/2/2018. She said that she was in her house with her husband. She said she was working on her maize and she was very tired. She said that her husband went to bed. PW3 said that her house had 4 rooms and she was using a solar bulb in the sitting room. There were 3 bulbs; in bedroom and 3rd in the store. She said that she could not tell what was going on in other houses. She heard a scream but could not tell who was screaming. She said that she heard footsteps outside her house and she was scared on hearing footsteps and she got confused.
PW3 said that the door to her house had 2 hinges. One was broken and one held the door. She said that she could not remember who left the house first. There was no light outside except the torch and the people had torches. He was alert the people were flashing torches at him. PW3 said that she was not blinded by their torches and could not have seen them if she had been blinded. She said it is her husband who held the torch. She said that her mother-in-law was in her house and that they had neighbours around their home. She said that she could not tell if neighbours had come to their rescue.
PW3 said she was admitted and did not go to the mortuary and she was only told the deceased were burnt.
In cross examination by Mr. Kisia Advocate for 4th accused, PW3 said that before this event, they had never experienced such an event in that home. It was scary to hear screams and people approached her house.
She heard her house being pelted with stones and so was her co-wife’s house being pelted with stones. She said her concern then was to get out and save herself. She said they found when they started pouring fuel. Because of the confusion she could not tell who got out of the house first. PW3 said that P3 was filled for the injuries she suffered which showed she had no injuries on the head and neck but that she had suffered injuries on the neck and head. She said that she also had injuries on the back (P3 refers). She said she blocked her face from being injured using her hands. She said that outside her house was dark. There was confusion outside her house. She said that she was chased round the compound and she ran around till she fell.
In cross examination by Mr. Singei PW3 said that when outside, she assumed the people she had seen before were the ones chasing her. She said she mentioned that all of the people she had seen were chasing her. Whenever her husband was, he was assaulted but she did not see him being assaulted. PW3 said she had hired somebody to shell her maize but he had left at that time. She said that she did not tell the court when the person who shelled the maize left. She said she did not lose her consciousness because she could not have heard her brother in-law talk if she was unconscious. That when Lucas started pouring the petrol, she heard him ask the wife for the match box but she did not know who lit the match.
When she left the house, she did not see fire as it had not yet been lit. She said that she could not know where each person went when people went to their houses to sleep. The witness said that when she was being chased people were hitting her. She said she could not identify those hitting her because they were at the back. The fire was lit when she was being beaten and they were saying the she would be taken to the fire.
In re-examination, PW3 said that she did not see who burnt the houses but she saw fuel. She said that she heard Lucas asking for match box when they were still in the house. That when she heard foot steps outside, she went out to find out who it could be. Those outside had torches and she identified the people because her husband flashed a torch on them. She said she was not confused but scared. That she was able to identify them. She said that she was injured on the head and there is still a scar on the forehead. PW3 said that she was treated of the injury on the forehead. The person shelling maize came about 2:00p.m and the incident occurred at 1:30am. She said that she did not see who set the houses on fire.
PW4 Dr. Ian Omuom testified that she examined the bodies of the deceased persons at Homa-Bay County Referral Hospital on 4/3/2019. He said he was a Medical Officer at Migori County Referral Hospital where he had worked for 6 years. He said he is not trained as a pathologist but he was trained in forensic which is part of Bachelor’s degree. He said he was qualified to perform a post mortem. He said the body of Martha Amolo Dwalo w
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The Accused persons are jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code in five (5) counts
The particulars to the 1st Count are that on the night of 28th day of February 2019 at around 23.30hours at Koluoch village, Rongo Sub County within Migori County in the Republic of Kenya the jointly with others not before the court murdered Maritha Amolo Dwalo
The particulars to the 2nd Count are that on the night of 28th day of February 2019 at around 23.30hours at Koluoch village, Rongo Sub County within Migori County in the Republic of Kenya the accused persons jointly with others not before the court murdered Elida Akinyi Otieno
The particulars to the 3rd Count are that on the night of 28th day of February 2019 at around 23.30hours at Koluoch village, Rongo Sub County within Migori County in the Republic of Kenya the accused persons jointly with others not before the court murdered Levia Atieno Otieno
The particulars to the 4th Count are that on the night of 28th day of February 2019 at around 23.30hours at Koluoch village, Rongo Sub County within Migori County in the Republic of Kenya the accused persons jointly with others not before the court murdered Brenda Akoth Otieno
The particulars to the 5th Count are that on the night of 28th day of February 2019 at around 23.30hours at Koluoch village, Rongo Sub County within Migori County in the Republic of Kenya the accused persons jointly with others not before the court murdered Cynthia Adongo Otieno.
PW1 WILSON OKINYI from Kochia area testified that he was a student at Ondiche Primary School in Homa Bay County and that he was 16 years old. He said he was born in 2002. He recalled that in February 2019 he used to live in Opapo, Kamagambo in Migori County with his parents together with his brothers and sisters. He said he was currently living with his parents in Homa Bay County.
He said his father is called ELIJAH OTIENO DUALO and his mother is called MONICA. PW1 said he knew MARITA AMOLO DUALO. Who was now dead. That he lived with her in Kamagambo. He said he also knew HELIDA AKINYI OTIENO who was his mother. He also knew LEVIA ATIENO Otieno who was his sister. He said he also knew BRENDA AKOTH ATIENO who was his sister. He also knew CYNTHIA ADONGO OTIENO who was also his sister. He said all the five were dead.
PW1 said that all the accused persons are their neighbours and he had known them for many years from his childhood when he was in Baby Class. He said that on 28/02/2019 at around 09:30 pm he was inside the house of his brother called HESBORN OMONDI. He had gone there to sleep after they had taken supper as a family. That suddenly he was woken from sleep by screams. That he heard the accused persons saying that they were going to kill a witch. It was A1 saying so in Dholuo language. He referred to PW1’s grandmother as the witch. He said that the 1st accused person’s voice came from a distance of about 15 metres away. PW1 said he woke up and wanted to go out but realised that the door had been locked from outside. That they broke the door and went out of the house and he saw the main house on fire. That he cried and ran back into the house. He was held and beaten by the people who wanted to take him into the burning house. Fortunately, he fell down as they carried him to the fire and that is why he ran back into the house. That it is true he was assaulted.
He said he could remember A1 and his wife (A5) and A4 are the ones who held him and were taking him into the fire. Pw1 said that there were security lights in their home and the attackers had torches. That they did not pursue him when he fell and he ran to his uncle Simeon Dualo’s place about 75 metres away from their house. That by the time he was running he didn’t know where his family members were. That he stayed at the uncle’s place for about one hour until Police officers came to the scene. That he saw his father being carried to his uncle’s place by FREDICK ONUKO and he was bleeding profusely from injuries on the head, neck chest and legs. PW1 said he was taken together with his father to Rongo Hospital.
The following morning, he learnt that 5 members of his family had died in the attack while he was still at the hospital. PW1 identified treatment notes dated 07/03/2019 MFI – P1. He also identified P3 form – MF1 –P2.
PW1 said he was aware that his brother fought with JOEL AWUONDA who was from the family of the accused persons and he was injured and taken to hospital but he died. That the family of the deceased person then claimed that their family was one with witches and they attacked in a revenge mission.
In cross examination by Ms. Okota Advocate, PW1 said that in February 2019 he was in Opapo Victory and he used to leave home at around 06:00a.m to go to school. He said he used to go back home for lunch and that he used to return home at around 06:00p.m. He said he was usually at home during the weekends but could go to school for tuition on Sundays from 02:--p.m to 5:00p.m PW1 said he used to go to Church on Saturdays.
He said he knew A1 who was their neighbour and also A2 who lived past A1’s home. PW1 said he was not related to A1 but they used to go to same Church. He said he used to talk with A1. There were many people and voices in their homestead and he was shocked when he woke up. PW1 said he could not recall hearing A1’s voice as there were many people. In his statement to the police PW1 said he A1 say they were going to kill witches. He said he did not see that in his statement though.
A1 and others assaulted him. PW1 said he knew DICKSON ODHAIMBO who assaulted him. He said their home was connected to electricity and the attackers had spotlights which they shone the spotlight on him.
PW1 said that A2 was at the scene but he did not beat him. He said he did not see those who torched the houses. He said he didn’t return to their home when he escaped to his uncle’s place and he did not know what transpired after he left.
In cross examination by Mr. Oywer Advocate PW1 said that it was true they were attacked at their home in Kamagambo. He said he knew JOSEPH OGILO OJONI (A3) since he was in Baby as he was their neighbour. He said A3’s home about 200 metres from their home. He said he also knew A5. She is also his neighbour and her home was far from their home. He said he did not interact with A3. He said the attack was around 10:30p.m and he was asleep by then. He said he was woken up by screams. There were many people and he was shocked. PW1 said the house where he was sleeping had only one door. He said that DICKSON ODHIAMBO entered their house. He said their house was sufficiently lit but he did not indicate in his statement to the police that their home was connected to electricity because he forgot. He said the attackers used torches which they pointed to his eyes.
He said that A5 was among the people who held him to be taken to the burning house but A3 was not among those who were taking him to the fire.
That he dropped and ran away to his uncle’s house. PW1 said he did not see anyone torching the houses. That he stayed at his uncle’s home for 1 hour and he could not say what happened to their home in his absence.
In cross examination by Mr. Kisia Advocate PW1 said that there was a lot of noise at their home that night. That some noises came from the house of his grandmother and some from the attackers. He said that many people went to their compound.
He said the door to their house was locked from outside and that shocked him. He said that safety was his priority. That the first door was broken and they left the house. That as he came out of the house some assailants beat him but he managed to free himself. He said the attackers had spotlights. That he took around 2 minutes to run away from the scene which was chaotic.
He said he was issued with a P3 Form.
In re-examination by Mr. Kimanthi Prosecuting Counsel, PW1 said that their homestead was connected with electricity and attackers had torches. The accused persons were well known to him but they least interacted. He said he witnessed the attack on his family members.
PW2 Elijah Otieno Dualo testified that he was from Kamagambo Koluoch and he was a farmer. He said he was 46 years old and married to four wives. He also said that he had children – 9 children and 3 died. He said he knew Lucas Nyandiga in 1976 as they come from the same village and share the same administrative area. He identified Lucas Nyandiga as the first accused in the dock.
He also said he knew Ben Omondi Odeka, since his birth. That he hails from another village near PW2’s village. He identified him as A2 in the dock.
PW2 identified A3, Joseph Ogilo Ojowi as a person he knew since he was born and comes from the same village.
PW2 also said he knew Mary Scholastica Auma the wife of Juma Onyango. He said they come from the same area.
PW2 said he knew Jane Anyango Nyandiga 5th Accused. He said he had known her since she got married to Lucas A1.
PW2 said he had known Joseph Aluda Onyango – A6 since he bought land at Kamagambo. He also said he knew Martha Amolo Dualo who was his mother. He said his mother was the deceased in Count II. PW2 said that Elida Akinyi Otieno was his first wife. PW2 said that he knew Lavina Atieno who was his daughter and the deceased in Count III. He said that Lavina was in standard 8.
That Brenda Akoth Otieno was also his daughter and she was in class 4. He also said that Cynthia Adongo Otieno was his daughter and she was 6 years old.
PW2 narrated that on 1/3/2019 at about midnight he was at home asleep when Lucas and the co accused went to his home. That he smelt petrol and thought his motorbike was leaking. That when he got up to check he saw Lucas carrying a jerrican of petrol and he poured it on him. The motor cycle was inside a different house from where he was sleeping. That he got up because of smell of petrol and noises made by people. That he heard people saying that they had to kill Elijah because he was a witch. It was shouts from many people. They spoke in dholuo language. That he was able to recognize the voices because he had stayed in the same village with all the people who were speaking the same language.
When he heard noises, he opened the door and found people, Lucas and others. He said he had a torch which he lit and saw them. That when he flashed the torch, they were about 2 metres away. They were armed and he was beaten and cut on the head and left hand with a panga. That he walked for a short while and fell unconscious. That he crawled on his knees until he reached his brother’s house. That he slept for a while and he heard a police vehicle come and he was taken to the hospital. PW2 said that his brother went to report the incident and he was taken to hospital at Rongo and then transferred to Migori then later to Ombo Mission hospital where he was treated and was issued with treatment notes and a P3 Form. He identified the P3 form dated 7/3/2019, It was filled by the Doctor on 15/2/2019 and degree of injuries were classified as ‘maim’ - MFI P1.
When in hospital PW2 said he did not know the fate of the others who died.
That after discharge from Hospital he learnt of their fate. That CID officers went to the hospital and recorded his statement on 2/3/2019 and he asked him where his relatives were and he was told that his family was taken to Homabay Hospital as Migori Hospital was too small. I left the hospital and went and buried them as he found them at the mortuary in Homa-Bay.
He said the body of Martha was burnt and he was not able to recognize the body but those who identified were recorded. He said he only knew Martha’s body because the Doctor told me that it was found in her house. The Doctor identified the body of Elida to him. The same thing applied to the body of Livia and Brenda.
He said that he could not identify the body of Cynthia if the doctor did not tell.
The bodies were identified to the Doctor. He said he knew post mortem was done but he did not know who identified the bodies to the Doctor before post mortem was done.
PW2 said he knew why the suspects burnt the house. They were saying that he was a witch because he had bought land in that area. PW2 said he was not a witch. There had not been any incident that could have caused them to call him a witch. He said the suspects alleged that he had killed their son Joel Owuonda and so he had to die. PW2 said he knew Joel Owuonda who lived in the same village with him. There was a fight between his elder son and Joel Owuonda and case was taken to court and his son was convicted. He said his son was at home after serving 12 years imprisonment. He said Joel died when his son was in prison on the day that the incident herein took place and that is how they alleged he was a witch. The people he saw were armed and Lucas had a 20 litre jerrican of petrol. He said Omondi had an axe while A3 had a panga and club. A4 had a cane; A5 had a cane and A6 had tyres.
PW2 said that when he flashed a torch on them, they ran backwards so that the torch could not flash them but he saw Lucas on the face and what he had carried (Accused 1). He said he also saw Ben Omondi, Joseph, Mary and Jane Anyango on their faces He said he was close to them. When he switched on the torch, they started to run saying that Elijah is at home. They said they were going to bring the killers to kill him. That they brought the people who beat him. He said the accused persons also beat him because he was trying to run and they gained entry. The people were in a line across outside the door.
PW2 said his compound is not fenced and had 7 houses namely; his 4 houses, his mother’s house, his son’s house and one house for rental. He said there are 3 houses in a line, one behind and one in front. He said he was in third wife’s house and that is where they confronted him. He said he did not know where the attackers had come from. That when he came out the people were standing in front of the 3rd wife’s house in a line. The others came and they injured him. PW2 said he lost 5 people and blamed Lucas, Ben, Joseph, Scola, Mrs. Lucas and Joseph for the deaths.
In cross examination by Ms. Okota, PW2 said that on 1/3/2019 it was dark and he did not have electricity in his home. He also said he had no solar but he had a chargeable torch. There were many people in his compound and he did not go to his other house. He said he did not run away but at some point, he did run away. He said he was with his third wife when he heard chaos and his wife remained in the house. He said he did not go to the house again neither did he go to the house where his deceased children were sleeping. That after he ran away, he did not go back to his house and he did not know whatever happened.
PW2 said he could not recall when he left the hospital and he was not present when the bodies of the deceased were removed. He said the bodies were burnt beyond recognition. He was also not present when post mortem was done and he was not present when the bodies got burnt. PW2 said he filed a complaint of assault but he did not know the case number and he did not have the documents in court.
In cross examination by Mr. Oywer Advocate for A2 and 5 PW2 said that he was asleep at his 3rd wife’s house. He said the 3rd wife did not have a child and they were just 2 of them in that house. He said he woke her up and she followed him outside as they were screaming. He said the only lights available was a solar torch which was very bright. He said he could not tell the watts of the torch. He said that when he opened the door, his wife was behind him. That when he opened the door, he saw a crowd outside his house. That the people did not attack him immediately. They moved away so that he could not see them using the torch. He said he could not recall what each of them wore that night. That after they moved away, he came out of the house and they started to beat him but he could not specifically identify the person who assaulted him because he was not holding the torch. He said he saw the assailants before the assault.
In cross examination by Mr. Kisia Advocate for A4, PW2 said that he lit the torch when outside the house and the assailants ran and hid from glare of the light.
He said he was injured at that time, when he went out of the house but he did not suffer any injury on the face. He said he was injured on the hands and head. He said he did not block his face from anything injured. He said he had injuries on the arms and fingers. He said that in the village when there is a distress call, people respond and members of the family raised distress call and people came. He said he could not tell who the assailants were and who had responded to the distress call.
PW2 said that his son was convicted for assaulting Joel. He said his son did wrong and the law took its course. He said he did not empathise with his son. He said the perpetrator was Joel. He said they tried out of court settlement but it did not bear fruits. He said he approached Joel’s family. He said all the accused persons are Joel’s family members. He said A6 is father to Joel and he was not at home as he had gone fishing. He said he felt let down by Joel and family members. It was well with him. PW2 said he recorded and signed his statement and that he told police that Aluda Onyango was armed with a panga but in court he said that he had tyres. He said he not present when burning took place. He said he could see Onyango carrying tyres.
In re-examination PW2 said that the Intensity of light of the torch was high. It could have covered the court room.
That he was able to see using the torch and he could see the 6 accused persons.
That when his son was convicted, the law took its course.
When alarm was raised, people responded and came but he did not cover his face with his hands when attacked. He said his statement was recorded by the police officer.
In examination by, the court PW2 said his third wife was not the one who was killed. He said that when he opened the door, there were more than 6 people but he only saw 6. They were many. That some people went away to get others from his mother’s house while others were left guarding him.
PW3 MONICA ANYANGO OTIENO testified that she knew Merita Amolo who was her mother-in-law. She said that she also knew Elida Akinyi who was her co-wife. Levia Atieno Otieno is the daughter of Elida Akinyi. Brenda Akoth was also known to her. She was the daughter of Elida Akinyi. Cynthia Adongo Otieno was also known to her. She was the child of Elida. She said that Lucas Nyandiga – was known to her as her close neighhbour at Kamagambo. She said that they used to draw water at Otenge’s home where she also used to draw water about 200 meters from their home.
PW3 said she also knew Ben Omdo Otege as a neighbour but lived about four meters and that the 1st Accused who was his cousin. She said that Joseph Ongilo was also known to her as he is a from their village – not far from them.
She said that Mary Scholastica Auma was a neighbour and she had worked for her mother in-law. PW3 said that Jane Anyango Nyatige was the wife of the 1st accused and Joseph Aludo Onyango was a brother to the 1st accused.
PW3 said that on 28/2/2019 at about 11:30p.m she was at home with her family. That she was with Elida, Lavia, Cynthia, Brenda. There were also children. The children are not small. They are Vincent, Alfred, Isack, Evans, Wilson. Some were asleep and I had gone to sleep. Elida and her children had also gone to sleep. She said that she was with Elijah Otieno in her house. That in the homestead there are 4 houses for the wives, for her mother in-law, house for boys and some rental. She said she was asleep in her house with her husband. She said that she had not slept and was still sorting out the maize which she had harvested. The maize had been shelled during the day. That she was inside the house and her husband was already in bed. She said that the radio was on when she heard a scream and switched off the radio. That she heard somebody cry from her mother in-law’s house and she woke up her husband. She said that her mother in-laws house was not very far from her about 20 – 30 meters
apart. She said that she could not tell whose scream it was. After a short while I could hear people walking outside throwing stones on the doors and iron sheets. She said Lucas was with panga and stones. PW3 said the door to her house was hit and the hinges came off and was hanging with the lower hinge. She saw able to see the people outside well as she stood near the door. She said that she saw Lucas Oyange. There were other people – Ben (Accused 2), Joseph Ogilo Ajowi. Accused 3; Acused5 and Jane. Accused 4; Mary Nya Uyoma. She said that she could not see the others who were behind. She said that she also saw Aludo Joseph. PW3 said that she was with her husband. He asked what they had come to do in his home at night and they answered ‘we have come to kill you.’
That her husband lit the light from re-chargeable torch which was of a medium size but had a lot of light. She said that the people who were outside also had torches. That her husband said that he would come out so that they could kill him. That before they got out, they smelt fuel of motor cycle and her husband suspected it was from his motor cycle. However, they found the attackers had started spilling fuel into the house. She said it was Lucas who poured fuel into the house. He had fuel in a jerrican. They were outside the house. That they tried and came out. When they came out, they met the 4th accused person and they held each other and she wrestled her down and she started screaming for help saying she was being killed. That they started beating her. She ran and they chased her and they told her to run towards the fire. That she fell down where they had dug and the 6th accused threw a tyre on her neck but she managed to remove it and ran off and she was hit on the neck and she fell. PW3 said she was not able to get up and she was beaten up while there and was not able to get up. She heard the 1st accused say that Elijah was still in his house. By the time they had lit all the houses and there was a lot of light. They had lit her house and that of Elida Akinyi. She saw them take Elida take her back into her house which was on fire. That when she came out, Elida had also come out of the house. She could not tell how many of the family members had come out. That Lucas, Ben, and Aludo carried Elida and threw her back into the burning house and she heard Lucas say that each woman should be burnt not thrown from house. That she rolled and lay still and after a few minutes they came again to search for her but they did not get her. After a few minutes she heard people talking in Kiswhaili and there were many lights. They came near and she heard the voice of her brother in-law Jashon Oriko Dwalo who was with police officers. PW3 said that when she being beaten, she had a phone in her inner wear and when she heard Joshon’s voice. She called to ask him to look for her phone. That she was not able to walk to the vehicle and she was carried to the police vehicle. She said she saw Elijah being brought in a vehicle and their two sons were taken to Rongo Sub County Hospital where they were treated and transferred to Migori Referral Hospital. That at Migori County Hospital she was admitted and the following day she was informed that 5 people were killed. She said she was in hospital for 4 days and was released because the dead had to be buried.
PW3 said that her house was burnt with everything and there is none that was left. She said she did not observe the bodies of the deceased who were burnt beyond recognition. The accused were alleging that her mother in-law had bewitched the son of Luca’s brother who was ailing. She said her mother in-law was not a witch and she had never heard that she was a witch. She said she was issued with a P3 and the Police had it together with treatment notes. She reported to Rongo police station vide OB No. 17/7/03/2019. She also identified the P3 form PMFI 2(a) and treatment notes PMFI 2 (b). She identified the accused persons in court as the ones responsible for the death of the 5 people.
In cross examination by Ms. Okota Advocate, PW3 said that their home does not have electricity. She said she had solar light in her house. She said it was at 11:30p.m and the other people were asleep. She said she was in her house and she could not tell what was going on in the other houses. People hit my door and started to pour fuel inside. I was not burnt in any way. I was just beaten. I tried to escape to save my life. I tried to escape myself. I was beaten, fell and rolled to a place I could not be seen. I could not see what was happening at the time they could not see me. Later, police came and took me to hospital. I do not know what happened to Lavia, Bunde and Elida. I was told about it when in hospital. I was present at the burial. I did not see their bodies. I did not see the fire being lit and saw my co-wife being thrown into the fire. They chased me around the house as they told me to go where the fire was.
In cross examination by Mr. Oywer Advocate PW3 said that the incident was on 28/2/2018. She said that she was in her house with her husband. She said she was working on her maize and she was very tired. She said that her husband went to bed. PW3 said that her house had 4 rooms and she was using a solar bulb in the sitting room. There were 3 bulbs; in bedroom and 3rd in the store. She said that she could not tell what was going on in other houses. She heard a scream but could not tell who was screaming. She said that she heard footsteps outside her house and she was scared on hearing footsteps and she got confused.
PW3 said that the door to her house had 2 hinges. One was broken and one held the door. She said that she could not remember who left the house first. There was no light outside except the torch and the people had torches. He was alert the people were flashing torches at him. PW3 said that she was not blinded by their torches and could not have seen them if she had been blinded. She said it is her husband who held the torch. She said that her mother-in-law was in her house and that they had neighbours around their home. She said that she could not tell if neighbours had come to their rescue.
PW3 said she was admitted and did not go to the mortuary and she was only told the deceased were burnt.
In cross examination by Mr. Kisia Advocate for 4th accused, PW3 said that before this event, they had never experienced such an event in that home. It was scary to hear screams and people approached her house.
She heard her house being pelted with stones and so was her co-wife’s house being pelted with stones. She said her concern then was to get out and save herself. She said they found when they started pouring fuel. Because of the confusion she could not tell who got out of the house first. PW3 said that P3 was filled for the injuries she suffered which showed she had no injuries on the head and neck but that she had suffered injuries on the neck and head. She said that she also had injuries on the back (P3 refers). She said she blocked her face from being injured using her hands. She said that outside her house was dark. There was confusion outside her house. She said that she was chased round the compound and she ran around till she fell.
In cross examination by Mr. Singei PW3 said that when outside, she assumed the people she had seen before were the ones chasing her. She said she mentioned that all of the people she had seen were chasing her. Whenever her husband was, he was assaulted but she did not see him being assaulted. PW3 said she had hired somebody to shell her maize but he had left at that time. She said that she did not tell the court when the person who shelled the maize left. She said she did not lose her consciousness because she could not have heard her brother in-law talk if she was unconscious. That when Lucas started pouring the petrol, she heard him ask the wife for the match box but she did not know who lit the match.
When she left the house, she did not see fire as it had not yet been lit. She said that she could not know where each person went when people went to their houses to sleep. The witness said that when she was being chased people were hitting her. She said she could not identify those hitting her because they were at the back. The fire was lit when she was being beaten and they were saying the she would be taken to the fire.
In re-examination, PW3 said that she did not see who burnt the houses but she saw fuel. She said that she heard Lucas asking for match box when they were still in the house. That when she heard foot steps outside, she went out to find out who it could be. Those outside had torches and she identified the people because her husband flashed a torch on them. She said she was not confused but scared. That she was able to identify them. She said that she was injured on the head and there is still a scar on the forehead. PW3 said that she was treated of the injury on the forehead. The person shelling maize came about 2:00p.m and the incident occurred at 1:30am. She said that she did not see who set the houses on fire.
PW4 Dr. Ian Omuom testified that she examined the bodies of the deceased persons at Homa-Bay County Referral Hospital on 4/3/2019. He said he was a Medical Officer at Migori County Referral Hospital where he had worked for 6 years. He said he is not trained as a pathologist but he was trained in forensic which is part of Bachelor’s degree. He said he was qualified to perform a post mortem. He said the body of Martha Amolo Dwalo w
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