The Accused MORRIS CHACHA MOGOSI is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
The particulars are that MORRIS CHACHA MOGOSI on the 17th day of August, 2021 at Nyamsangora Kamomange Sub-Location, Bukira Central Location, in Kuria West Sub-County within Migori County murdered Brian Rimo Nyankaira.
The evidence tendered by PW1 Dr. Mark Oduor Otieno he was Medical Officer at Migir TRH and that he examined the body of the deceased herein at Akidiva Midira Hospital on 20/8/202 and found that the deceased was 10 year old male African identified as Brian Rimo Nyankaira. The body was under escort of Tonui Gilbert. The body was identified by Ayub Gati and Jackson Chacha.
On external examination he observed that there was an obvious deep cut wound across the neck measuring 8cm X 3cm X 4cm in depth. The cut through the cricoid cartilage and the trachea, esophagus and fracturing the first cervical bone. The deep cut was cutting through skin and neck muscle. There was both right and internal jugular veins together carotid arteries which were cut through with massive haematoma on the neck. The other parts of the body were essentially normal.
In Internal examination, he confirmed that;
- Trachea was cut through
- Lungs – normal
- Cardio vascular system, jugular and carotid were cut through
- Other systems were normal
- Head – had no fracture
- Spine – fracture of cervical bone C1 with cord being intact.
As a result of examination, he formed opinion that cause of death was excessive bleeding secondary to assault by a sharp object on the neck. He said that he also had suffocation as part of cause of death which was secondary to assault by sharp object on the neck cutting through trachea. He issued death certificate No. 1441208 and produced post mortem report as ExP1.
PW1 said that cut was once. Neck injuries lead to death depending on the structures of neck involved. The trachea and esophagus when cut leads to immediate death and not more than one hour. Death can occur within 15 minutes due to excessive bleeding from the cut trachea and esophagus.
In cross examination by Mr. Adawo Advocate for the Accused PW1 said that if there is a medical intervention it depends with kind of intervention when blood vessels are involved in most cases death is inevitable. Survival depends on kind of intervention and how soon. The death occurred as a result of direct assault by sharp object. Failure to rush such a patient to hospital would amount to negligence. A patient can only be declared and certified dead by a medic. I observed he body of the deceased. What is documented is what I observed on the body. The person was slightly malnourished. If there was any other abnormality I would have indicated in the form if is relevant to the. If the abnormality is used to identify the body it would be indicated post mortem report usually focuses on the positive and negative. The post mortem was done in 2021 and I can’t tell if the deceased had any disability but if it is left out it may not have been relevant to the examination. Age is apparent where there are witnesses and they are certain of the age they indicate where there is an ID card it can also be used. Age can also be estimated by examination. There was no birth certificate. The relatives approximated age of the deceased. I would not be surprised if I learn that the deceased was 15 years. The deceased could have been at the risk of stunted growth. Identification is key and we insist on witnesses. I would not tell if the accused was present during post mortem. The persons who identify the body are next of kin. PC Tonui Gilbert escorted the body of the deceased. I would not be sure if the accused person was represented but I would have documented it. There were no fractures on the head. I physically observed there was no fracture after opening scalp.
In re-examination, PW1 said that the space in the post mortem is not sufficient to document everything we observe on the body of the deceased and we only document what is important to the cause of death. The age indicated is apparent age. The age does not affect cause of death.
PW2 Cecilia Wagesa from Nyamasangira testified that she was a farmer and that the accused is known to her as he was son to her sister- in -law – sister to her husband. She recalled that on 17.8.2021 at 5.00pm she was at home feeding her child. That Boke Robi visited her and they sat outside the house. After she finished feeding the child called Brian Rimo, she untethered her cows and went out of the home to graze them. That on looking back see where she had come from, she saw Morris standing where Brian was. She said Brian was disabled and could not walk. He was 15 years old. He was disabled on the legs and hands. She said she left Brian at home as she went to tether the cow. When she looked back and saw Morris near Brian, she called her co-wife known as Sofia and told her Morris was standing near my child and was armed with a panga. Sofia was near her house where she was going to tether the cow. Sofia came out and called Morris. Morris turned and saw Sofia but he laid Brian down and cut his neck. That they raised alarm while running towards Brian and Morris escaped. That when they arrived where Brian was, they went and looked for police who came and collected the body. PW2 said she was with Sofia and Boke Rioba when she saw Morris cut Brian. Later she recorded her statement.
In cross examination by Mr. Adawo Advocate for the Accused, PW2 said that Brian was her child and he was 15 years old at the time of this incident. The accused is known to her well. Brian and Morris knew each other as Morris used to come to their place as that is his uncle’s place. Brian and Morris had no differences. Morris had never had any differences with us as parents to Brian. She said she had left Morris with Brian alone before and Morris could help move Brian as he was disabled. He took good care of Brian whenever he was left with him. PW2 said she had had left Brian to go and tether cow in less than one minute I turned and saw Morris standing next to Brian while armed with a panga. PW2 said she left Brian and there was a flask and plate with food which Morris hit and broke the flask and that is why she called Sofia and they raised alarm. That when she called Sofia, she came with Boke. That it is when she saw Morris break the flask that she got worried. That she called Boke and Sofia and they saw Morris kill her child. She said she was not aware that Morris had mental problem. That up to the time she was testifying she did not know if Morris had mental incapacity. She said she is wife to Morris’ uncle. After breaking the thermos and plate Morris did not say anything. He was quiet. She said she did not know where the flask and plate broken by Morris went to. Morris ran away with panga.
In re-examination, PW2 said that Morris had been known to here for many years. Morris used to stay with them when he was small and he never had any mental incapacity.
PW3 Boke Rioba Nyankaira from Nyamasangora and a farmer also testified that the accused was known to her. He is son to Nyankaira’s daughter. On 17.8.2021 she recalled he had gone to Wagesa and found her giving her child food. It was around 5.00pm she was giving her child food. That she stayed with Wagesa and when she finished giving the child food, she untethered her cow and PW3 accompanied her towards Sofia’s home. When she was tethering the cow PW2 turned and saw Morris walking around the child. The child is known as Rimo and he was disabled. When PW1 saw Morris, she called Sofia Kegocha and told her to call Morris. That she was still with PW2 and Sofia at Sofia’s place. Kegocha called Morris. PW3 said she was seeing Morris near the child and he was armed with a panga. There was also a chain near where PW2 left the child. When Sofia called Morris, he turned and hit the plate on the chair and cut Brian on the neck. When they saw that, they raised alarm as they ran towards Brian. When they raised alarm and ran towards the child Morris ran away. When they arrived where Brian was, they found he had died. There was church going on nearby and members responded to their alarm. Police came and took the body to the mortuary. Later she recorded her statement.
In cross examination by Mr. Adawo Advocate, PW3 said that the Accused was known to her. He is son to her sister-in-law. She said she had known Morris since childhood. Morris had never had any grudge with family of Cecilia. Cecilia’s husband is uncle to Morris. She said she did not know of any reason why accused could cause the death of Brian. She said she was as with Cecilia at her house and they left together as she was going to tether her cow. As Cecilia was tethering her cow as she met Sofia, Cecilia called Sofia and told her to call Morris who was going round the child. PW3 said she found Sofia outside her house and she did not enter the house. That Cecilia called Sofia and told her to call Morris and ask why he was going round the child. Morris was not talking while going round the child. It is when Sofia saw Morris hit the plate on the chair that she called Morris. When Sofia called Morris that is when Morris hit the plate. Morris and Brian knew each other. It is the panga Morris was holding and going round the child that made us fear. It was the first time she saw Morris armed with a panga and that is what made her suspicious. The child Morris was going round is small and Morris is an adult. Brian was disabled and dumb and deaf and could not talk. He only used to smile. Morris was not talking. PW3 said she was not aware that Morris was undergoing mental treatment. She said she was not informed why the case can’t go on and was not aware Morris was taken to Nairobi for treatment. It is Cecilia who turned and saw Morris going round her child while armed with a panga. She said she also saw Morris hit the plate and flask and thereafter cut the deceased on the neck. The deceased was taken to Kehancha by police officers from Kehancha police post. The child’s neck was decapitated and they could not take him to hospital as he was already dead. She said they saw and believed the child was dead. The child was not unconscious he had been cut on the neck and he was dead. Ayub is brother to the deceased’s father. When Ayub came he carried the child to take to hospital and he found the child had died.
PW4 Sofia Gati Ayubu from Nyamasangora and a farmer also testified that the accused Morris Chacha was known to her. He is son to her sister-in-law. On 17.8.2021 she recalled that she witnessed Morris kill Brian. That she was at her home at 5.00pm when Cecilia went to her place with Boke Rioba. Cecilia was holding a cow. Cecilia told her to call Morris who was at Cecilias home. When she turned to look where Morris was, she saw he was near Brian who was seated on the ground. Morris was armed with panga. When she called Morris twice, he turned and looked at her. When he looked at PW4, he kicked the chair and held the child on the head and cut him on the neck. That they raised alarm and neighbours came. They rushed to scene. Police came and collected the body to the mortuary. Morris did not say anything when she saw him near the child. She later recorded her statement.
In cross examination by Mr. Adawo Advocate, PW4 said that Sofia Nyankaira was known to her. She said she is the one and Ayubu Nyankaira was her husband. She produced her ID in court No. 33054699 which indicated she was born on 1.2.1992. The accused person was known to her. He is son to her sister-in-law. She said she had known him since childhood. She said Boke Rioba went and found her outside her house. That when Cecilia called her Morris was standing near the child while armed with a panga. He kicked the chair and the plate that was on the chair fell. She said she did not hear Morris say anything. It is Cecilia who told her she should call Morris as he was standing near the child while armed with a panga. When she called Morris, she didn’t suspect he could do anything suspicious. Morris is a child who used to come home and they had never differed. It is after she called Morris that he kicked the chair with the plate. It is after that he bend over the child, held his head and cut him on the neck. She could not tell how Morris could do such a thing. To date she had not known what came over Morris that made him commit the offence. She said she was not aware that Morris had been undergoing treatment for mental incapacity.
In re-examination, PW4 said she was Sofia Gati. That is the name in my ID. The name Sofia Ayubu Nyankaira is also hers. Ayubu Nyankaira is husband.
PW5 Jackson Chacha Samuel from Nyamasangora said he is a farmer. That Brian Rimo was his brother. He recalled that on 20.8.2021 he identified the body of Brian for post mortem at Mabera Akidiva. He said he was with Ayubu Nankaira
Mr. Adawo I said that he was not supplied with statement of Jackson Chacha PW5 and he was stood down for cross examination after his statement was supplied to defence Counsel. However, upon supply of the statement Mr. Adawo said that he had no questions for PW5 and he was discharged.
PW6 Ayub Gati Nyankaira also testified that on 17.8.2021 he was at home. There is a church which had convention in our home. It was the SDA church. It was about 5.00pm when he suddenly heard screams. That in company of those at the convention they proceeded to his brother Samuel Nyankaira’s home where the screams came from. On arrival at the home, they found the disabled child who was at his brother’s home was lying dead on the grass having been slaughtered. That he picked the deceased and sat on the ground crying. Members of the public came and thought of reporting the matter. He said he didn’t see the deceased being slaughtered. He said he is the one who went to report the matter to police. That he went to police station in company of another old man. On 20.8.2021 he and Jackson Chacha accompanied a police officer to St. Akidiva Memorial Hospital Mortuary where they identified the body of the deceased for post mortem. The only injury he saw was on the neck of the deceased. The deceased was about 3 years. He was disabled. The deceased was cousin to accused. The deceased was his brother’s son.
In cross examination by Mr. Adawo Advocate for the Accused PW6 said that on 17.8.2021 he was in church. On arrival at the scene, he found the child had been slaughtered. It is not possible for one to cut oneself. He did not know if one can cut oneself. He said he found when the deceased neck had been cut. He did not see him being cut. The deceased was his brother’s child/son. He said he knew the deceased he was about 3 years but he was not certain. He had not started going to school. The child was dumb and he could not walk. He knew the child physically. The child had no other mark on the body. The body of the deceased had been placed on a table in the mortuary and he did identify it. The doctor who conducted post mortem showed them the body and they identified it. The deceased was known to him since his birth and he interacted with him severally. He said he had estimated his age as 3 years as he did not’t have his certificate of birth. The deceased was approximately 3 to 5 years. The accused person was not in hospital during post mortem. He said he didn’t know if it is the accused who killed the deceased. It is at the police station he learnt the suspect had been arrested and when he saw him, he realized it was his sister’s son. When he went to make report to police, he didn’t say he knew the person who cut the deceased as he was not present when accused was arrested. He said he found the deceased lying in a pool of blood and he didn’t find anything else at the scene.
In re-examination, PW6 said that the deceased was known to him well and he did identify the body. The deceased person didn’t have strength on the hands and could not cut himself.
PW7 No. 98415 PC Tanui Gilbert from DCI Ndunya within Limuru Sub County testified that formerly he was attached to DCI Kuria west and the investigating officer in this matter.
He said that on 17.8.2021 at around 19.00hours he received a phone call from Chief Inspector Mohammed Ibrahim the DCIO who informed him there was a case of murder reported at Nyamasangora. He was instructed to proceed to Kehancha Police Station and accompany Corporal John Meli to scene. That he went to the station and on arrival he met the OCS Chief Inspector Boiyo who was in company of Corporal Meli and Ayub Gati Nyankaira who had reported. The report was booked No. 36/17/8/21. After the report was booked, they boarded station motor vehicle and proceeded to the scene.
On arrival they found the deceased body lying in a pool of blood in a compound. The deceased was identified as Brian Remo Nyankaira. That on examination of the body they discovered the deceased had a deep cut wound on the neck which they suspected was inflicted with a sharp object. The deceased was a disabled child. They interrogated several witnesses at the scene including the mother of the deceased Cecilia Wagesa. According to Cecilia she had left the deceased in the compound in order to take her cows to a nearby grazing field. That she was in company of Boke Rioba when she left to go and graze her cows. When on the way Boke Rioba passed by the home of Sofia Ayubu. Sofia Ayubu was seated outside her compound airing maize. As the mother to the deceased stood, she saw the accused arrive at her compound where the deceased was seated. She said the accused was armed with a panga. That the accused went round the deceased and Cecilia Wagesa alerted Boke Rioba and Sofia Ayubu to come and witness what was transpiring and asked Sofia to call the accused to where they were so she could get an opportunity to go and take away the child.
That when Sofia called the accused, he turned to look at them but within no time he again turned and focused where the deceased was seated. When Sofia called him again, he didn’t respond. He grabbed the deceased and cut him on the neck. Before he cut the deceased, he pushed down a plate that was on a plastic chair. He also pushed the same plastic chair. He then grabbed the deceased and slit his neck. Alarm was raised and the accused flee away with the murder weapon. It took efforts of members of public to apprehend the accused and subjected him to mob injustice before police rescued him. After visiting the scene, he processed the scene. The position where the mother of the deceased was about 50m and there was no obstruction and it was clear. After processing scene, they removed the body and escorted to St. Akidiva Hospital Mortuary in Masaba for preservation and post mortem.
That on 20.8.2021 he attended post mortem on the body of the deceased. The body was identified by 2 witnesses Ayubu Gati Nyankaira and Jackson Chacha Samuel. The accused was taken for mental assessment on 20.8.2021 and he was examined by a psychiatrist and report prepared. The accused was found mentally fit to stand trial. In the cause of investigations, he was unable to ascertain motive of the killing. rSubsequently the accused person was ordered to be taken for mental assessment when he displayed characteristics of a person who was out of his mind and the 2nd report indicated he was incapable of standing trial. Before the Investigating Officer went on transfer the accused person was examined 2 times.
The history he got from the family was that the accused person had been abusing hard drugs. PW7 said he didn’t interact with Ayubu Gati as he came from different place from the accused.
In cross examination, the I/O said he did not interrogate the mother of the deceased Cecilia Wagesa, Boke Rioba and Sofia Ayubu. He could not recall if he checked identity of the witnesses that he interrogated but Cecilia is the mother of the deceased. He said he did not know what Sofia Ayubu said in court in relation to her identity. An alarm was raised when accused was seen slit the neck of the deceased and members of public apprehended him immediately. At the time report was made the accused had already been apprehended. He said he arrived at the scene at 7.30pm and learnt the accused ran away upon committing the offence. He was unable to get the murder weapon as members of the public didn’t recover the murder weapon from him. When the accused was placed in custody, he had some injuries as he had been beaten. The OCS was supposed to take him to hospital. He could only confirm if accused was taken to Kehancha hospital on 19.8.2021 if he saw the treatment notes MFI D1 – dated 19.8.2021. He said he did not have the treatment notes. On 20.8.2021 the accused was taken to hospital for mental assessment. Dr. Rutto attended to the accused person. He was based at Migori Level 5 Hospital. He said he did photograph the plastic chair and plate but he didn’t take them from scene. He said he could not tell if photographs were processed and produced. The mother of the deceased and the other 2 ladies were not obstructed from seeing the accused commit the offence from where they were. The witnesses did not say they had any slight problem. The mother of the deceased and the other 2 ladies told him they turned and saw the accused slit the neck of the deceased. The I/O visited the scene and confirmed that from scene of crime to where the witnesses were, they could clearly be seen. He said he didn’t establish that the accused had differences with the family of the deceased. He was also unable to ascertain the motive of the killing. The accused person armed himself with a panga and proceeded all the way from Nyateche to Nyamasangora and murdered the deceased could amount to premeditated the crime. From evidence of the accused person’s father, he was at home on the material day and he must have come from Nyatechi with the panga. The panga is not in court. The age of the deceased was indicated in post mortem report as 10 years. The parents of the deceased must have given the age of the deceased. When filing post mortem form, they rely on documents. The deceased was disabled and from the eyes one could tell how old he was.
When the prosecution closed its case the court placed the Accused on his defense and he opted to give sworn statement and called 3 witnesses.
He said that he knew why he was in court today but it is not true that he killed Brian Nyakaira on 17.8.2021. On 17.8.2021 he could not recall where he was and could not recall having been taken to hospital while in remand. He could not recall having been given any medication. He did not know if he killed Brian
DW2 Benedicta Chacha Mathew. from Taranga Sub Location Bukira East Location Kuria West Sub County said he was a farmer having retired as a teacher. Morris Chacha Mogosi was his son. He said he recorded a statement with his advocate and relied on it as his evidence in chief. The statement is dated 8.10.2025 ExD 1.
DW2 said that the Accused is his 4th born. He went to school after completing he started showing unusual habits in 2017. He could leave home at night and return in the morning. He became violent and he realized he had a problem. His brother and neighbours helped him take the Accused to church to be prayed for. That they also tried to treat him traditionally. He became worse and could walk with a panga threatening people. He went to his uncle’s home where he committed the offence. His mental state had deteriorated. It is the accused person’s brother who informed me of the offence. He was arrested and charged on 2 occasions. DW2 said he took the Accused to hospital and while he was in remand, he was being treated at Migori Level 4 Hospital, Mathari Teaching and Referral Hospital and Kisii for treatment. He produced treatment notes while in custody Ex D2 – 20.12.2022 from Migori Teaching and Referral Hospital mental assessment report ExD3, Kehancha Sub County Hospital EXD 4 dated 19.8.2021 EXD1. Accused was in school and he passed well. He attained B-. He was a leader of the scouts’ movement. Results EXD 4, certificate – Kenya Scouts Association EXD5.
DW2 prayed that the accused be released so that he can take him for treatment to salvage his situation. The accused had never committed any offence prior to this arrest.
In cross-examination by Mr. Oimbo for state DW2 said that the documents they had produced are in relation to treatment of the accused after his arrest. Since accused started experiencing mental incapacity he had not taken him to hospital. He said he would like to take him to a herbalist. When he started ailing, he took him for prayers and he recovered.
In re-examination, by Mr.Adawo Advocate, DW2 said that they decided as a family to take him to a herbalist. He was behaving abnormally and they suspected spiritual attack as he could break out of the house at night even when the doors are locked and they could not tell how he managed to leave as the door could be closed.
DW3 Elizabeth Muniko Chacha from Nyatochi said she was a farmer and Morris Mogosi Chacha was her 4th born son. She said she recorded a statement with the advocate and wished to rely on it – dated 8.10.2025
In cross examination by Mr. Oimbo for State, DW3 said that she was not issued with the treatment notes at the hospitals where she took Morris for treatment before he committed the offence.
In re-examination by Mr. Adawo Advocate DW3 said that she didn’t expect that she would be required to produce the treatment notes for treatment between 2017 – 2019. Some of the documents were misplaced as it is sometimes now.
Ayub Gati Nyakaira wanted to testify as defence witness but Mr. Oimbo Counsel for the state objected as he had testified for the state as PW5. He was therefore stood down and evidence he attempted to give for defence expunged from the records.
DW4 Caro Robi Mwikwabe testified that Morris Mogosi Chacha was her brother-in-law. She said she came to know him in 2016 as they stay in same home. She said she did record statement with the advocate and wished to rely on the said statement as her evidence in chief EXD – dated 8.10.2025
She said that in 20016 the accused was normal. In 2017 he started behaving abnormally. He was known in the family and the village that he was suffering from mental incapacity. He was violent. There was a time he attacked her and he almost killed her but she escaped into the house and locked while raising alarm and neighbours came to her rescue. The accused was taken to hospital but didn’t recover. He was also taken for herbal medicine.
In Cross-examination by Mr. Oimbo for state DW4 said that the accused was taken to hospital but later taken for herbal medicine. When he deteriorates, he is violent. He has continued suffering. She prayed that he should be released
In Re-examination by Mr. Adawo Advocate DW4 said that the accused can be assisted if he is released. At the close of Accused person’s defense Mr. Adawo Advocate in oral submissions said made oral submissions as follows
Before court is an accused who has been charged with offence of murder. He has gone through trial process. Throughout trial it has come out clearly that accused is mentally ill. According to his family his sickness did not start after committing the offence herein. It started sometimes in 2017. As at the time of committing the offence, the accused had disappeared from home and his family were looking for him. They found him after the alleged offence took place. Going by the description of eye witnesses PW1, 2, 3 and 4, the accused person’s behavior before committing the offence and even after paints a picture of someone who was not in control of himself. PW2, PW3 and PW4 said they saw him doing a war dance around the deceased. The accused persons mental illness is known to the court. He was treated in Migori and Kisii County Referral Hospital as well as Mathare Teaching and Referral Hospital. Section 12 of penal code asserts that an accused is not criminally responsible for his actions if at the time of committing the alleged offence, a disease of the mind renders them incapable of understanding their actions, or knowing that what they were doing was wrong. The accused person being mentally ill could not understand the consequences of his actions. We pray that the court makes a finding that the accused can’t be held liable/responsible for actions committed while he was mentally sick. The family requests that he be allowed to go home so he can get medical assistance.
ANALYSIS AND DETERMINATION.
Having considered the proceedings in their entirety, the issues for determination are whether the fact and cause of death were proved; whether it was proved that the cause of death was unlawful act and that the accused is the one who committed the unlawful act; whether the Accused was actuated with malice aforethought in committing the unlawful act.
From the evidence of PW2, PW3, PW4 and the medical evidence of PW1 as well as the investigating officer (PW6), there is overwhelming evidence that the deceased died from a deep cut wound to the neck and the said injury was inflicted by the accused and the act was unlawful. The eyewitness evidence is remarkably consistent. Three witnesses independently described the accused approaching the deceased, remaining silent, moving around him, ignoring calls to stop, then suddenly cutting the deceased's neck before fleeing. Identity of the assailant is therefore beyond reasonable doubt. This court therefore finds that the prosecution has proved that the accused caused death of the deceased.
The real issue is whether the accused was legally responsible for his actions. There is strong evidence throughout the record. The Court itself repeatedly observed that the accused appeared mentally unstable. Indeed, trial stopped in 2021 because the court observed he could not follow proceedings; several psychiatric reports fou
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The particulars are that MORRIS CHACHA MOGOSI on the 17th day of August, 2021 at Nyamsangora Kamomange Sub-Location, Bukira Central Location, in Kuria West Sub-County within Migori County murdered Brian Rimo Nyankaira.
The evidence tendered by PW1 Dr. Mark Oduor Otieno he was Medical Officer at Migir TRH and that he examined the body of the deceased herein at Akidiva Midira Hospital on 20/8/202 and found that the deceased was 10 year old male African identified as Brian Rimo Nyankaira. The body was under escort of Tonui Gilbert. The body was identified by Ayub Gati and Jackson Chacha.
On external examination he observed that there was an obvious deep cut wound across the neck measuring 8cm X 3cm X 4cm in depth. The cut through the cricoid cartilage and the trachea, esophagus and fracturing the first cervical bone. The deep cut was cutting through skin and neck muscle. There was both right and internal jugular veins together carotid arteries which were cut through with massive haematoma on the neck. The other parts of the body were essentially normal.
In Internal examination, he confirmed that;
- Trachea was cut through
- Lungs – normal
- Cardio vascular system, jugular and carotid were cut through
- Other systems were normal
- Head – had no fracture
- Spine – fracture of cervical bone C1 with cord being intact.
As a result of examination, he formed opinion that cause of death was excessive bleeding secondary to assault by a sharp object on the neck. He said that he also had suffocation as part of cause of death which was secondary to assault by sharp object on the neck cutting through trachea. He issued death certificate No. 1441208 and produced post mortem report as ExP1.
PW1 said that cut was once. Neck injuries lead to death depending on the structures of neck involved. The trachea and esophagus when cut leads to immediate death and not more than one hour. Death can occur within 15 minutes due to excessive bleeding from the cut trachea and esophagus.
In cross examination by Mr. Adawo Advocate for the Accused PW1 said that if there is a medical intervention it depends with kind of intervention when blood vessels are involved in most cases death is inevitable. Survival depends on kind of intervention and how soon. The death occurred as a result of direct assault by sharp object. Failure to rush such a patient to hospital would amount to negligence. A patient can only be declared and certified dead by a medic. I observed he body of the deceased. What is documented is what I observed on the body. The person was slightly malnourished. If there was any other abnormality I would have indicated in the form if is relevant to the. If the abnormality is used to identify the body it would be indicated post mortem report usually focuses on the positive and negative. The post mortem was done in 2021 and I can’t tell if the deceased had any disability but if it is left out it may not have been relevant to the examination. Age is apparent where there are witnesses and they are certain of the age they indicate where there is an ID card it can also be used. Age can also be estimated by examination. There was no birth certificate. The relatives approximated age of the deceased. I would not be surprised if I learn that the deceased was 15 years. The deceased could have been at the risk of stunted growth. Identification is key and we insist on witnesses. I would not tell if the accused was present during post mortem. The persons who identify the body are next of kin. PC Tonui Gilbert escorted the body of the deceased. I would not be sure if the accused person was represented but I would have documented it. There were no fractures on the head. I physically observed there was no fracture after opening scalp.
In re-examination, PW1 said that the space in the post mortem is not sufficient to document everything we observe on the body of the deceased and we only document what is important to the cause of death. The age indicated is apparent age. The age does not affect cause of death.
PW2 Cecilia Wagesa from Nyamasangira testified that she was a farmer and that the accused is known to her as he was son to her sister- in -law – sister to her husband. She recalled that on 17.8.2021 at 5.00pm she was at home feeding her child. That Boke Robi visited her and they sat outside the house. After she finished feeding the child called Brian Rimo, she untethered her cows and went out of the home to graze them. That on looking back see where she had come from, she saw Morris standing where Brian was. She said Brian was disabled and could not walk. He was 15 years old. He was disabled on the legs and hands. She said she left Brian at home as she went to tether the cow. When she looked back and saw Morris near Brian, she called her co-wife known as Sofia and told her Morris was standing near my child and was armed with a panga. Sofia was near her house where she was going to tether the cow. Sofia came out and called Morris. Morris turned and saw Sofia but he laid Brian down and cut his neck. That they raised alarm while running towards Brian and Morris escaped. That when they arrived where Brian was, they went and looked for police who came and collected the body. PW2 said she was with Sofia and Boke Rioba when she saw Morris cut Brian. Later she recorded her statement.
In cross examination by Mr. Adawo Advocate for the Accused, PW2 said that Brian was her child and he was 15 years old at the time of this incident. The accused is known to her well. Brian and Morris knew each other as Morris used to come to their place as that is his uncle’s place. Brian and Morris had no differences. Morris had never had any differences with us as parents to Brian. She said she had left Morris with Brian alone before and Morris could help move Brian as he was disabled. He took good care of Brian whenever he was left with him. PW2 said she had had left Brian to go and tether cow in less than one minute I turned and saw Morris standing next to Brian while armed with a panga. PW2 said she left Brian and there was a flask and plate with food which Morris hit and broke the flask and that is why she called Sofia and they raised alarm. That when she called Sofia, she came with Boke. That it is when she saw Morris break the flask that she got worried. That she called Boke and Sofia and they saw Morris kill her child. She said she was not aware that Morris had mental problem. That up to the time she was testifying she did not know if Morris had mental incapacity. She said she is wife to Morris’ uncle. After breaking the thermos and plate Morris did not say anything. He was quiet. She said she did not know where the flask and plate broken by Morris went to. Morris ran away with panga.
In re-examination, PW2 said that Morris had been known to here for many years. Morris used to stay with them when he was small and he never had any mental incapacity.
PW3 Boke Rioba Nyankaira from Nyamasangora and a farmer also testified that the accused was known to her. He is son to Nyankaira’s daughter. On 17.8.2021 she recalled he had gone to Wagesa and found her giving her child food. It was around 5.00pm she was giving her child food. That she stayed with Wagesa and when she finished giving the child food, she untethered her cow and PW3 accompanied her towards Sofia’s home. When she was tethering the cow PW2 turned and saw Morris walking around the child. The child is known as Rimo and he was disabled. When PW1 saw Morris, she called Sofia Kegocha and told her to call Morris. That she was still with PW2 and Sofia at Sofia’s place. Kegocha called Morris. PW3 said she was seeing Morris near the child and he was armed with a panga. There was also a chain near where PW2 left the child. When Sofia called Morris, he turned and hit the plate on the chair and cut Brian on the neck. When they saw that, they raised alarm as they ran towards Brian. When they raised alarm and ran towards the child Morris ran away. When they arrived where Brian was, they found he had died. There was church going on nearby and members responded to their alarm. Police came and took the body to the mortuary. Later she recorded her statement.
In cross examination by Mr. Adawo Advocate, PW3 said that the Accused was known to her. He is son to her sister-in-law. She said she had known Morris since childhood. Morris had never had any grudge with family of Cecilia. Cecilia’s husband is uncle to Morris. She said she did not know of any reason why accused could cause the death of Brian. She said she was as with Cecilia at her house and they left together as she was going to tether her cow. As Cecilia was tethering her cow as she met Sofia, Cecilia called Sofia and told her to call Morris who was going round the child. PW3 said she found Sofia outside her house and she did not enter the house. That Cecilia called Sofia and told her to call Morris and ask why he was going round the child. Morris was not talking while going round the child. It is when Sofia saw Morris hit the plate on the chair that she called Morris. When Sofia called Morris that is when Morris hit the plate. Morris and Brian knew each other. It is the panga Morris was holding and going round the child that made us fear. It was the first time she saw Morris armed with a panga and that is what made her suspicious. The child Morris was going round is small and Morris is an adult. Brian was disabled and dumb and deaf and could not talk. He only used to smile. Morris was not talking. PW3 said she was not aware that Morris was undergoing mental treatment. She said she was not informed why the case can’t go on and was not aware Morris was taken to Nairobi for treatment. It is Cecilia who turned and saw Morris going round her child while armed with a panga. She said she also saw Morris hit the plate and flask and thereafter cut the deceased on the neck. The deceased was taken to Kehancha by police officers from Kehancha police post. The child’s neck was decapitated and they could not take him to hospital as he was already dead. She said they saw and believed the child was dead. The child was not unconscious he had been cut on the neck and he was dead. Ayub is brother to the deceased’s father. When Ayub came he carried the child to take to hospital and he found the child had died.
PW4 Sofia Gati Ayubu from Nyamasangora and a farmer also testified that the accused Morris Chacha was known to her. He is son to her sister-in-law. On 17.8.2021 she recalled that she witnessed Morris kill Brian. That she was at her home at 5.00pm when Cecilia went to her place with Boke Rioba. Cecilia was holding a cow. Cecilia told her to call Morris who was at Cecilias home. When she turned to look where Morris was, she saw he was near Brian who was seated on the ground. Morris was armed with panga. When she called Morris twice, he turned and looked at her. When he looked at PW4, he kicked the chair and held the child on the head and cut him on the neck. That they raised alarm and neighbours came. They rushed to scene. Police came and collected the body to the mortuary. Morris did not say anything when she saw him near the child. She later recorded her statement.
In cross examination by Mr. Adawo Advocate, PW4 said that Sofia Nyankaira was known to her. She said she is the one and Ayubu Nyankaira was her husband. She produced her ID in court No. 33054699 which indicated she was born on 1.2.1992. The accused person was known to her. He is son to her sister-in-law. She said she had known him since childhood. She said Boke Rioba went and found her outside her house. That when Cecilia called her Morris was standing near the child while armed with a panga. He kicked the chair and the plate that was on the chair fell. She said she did not hear Morris say anything. It is Cecilia who told her she should call Morris as he was standing near the child while armed with a panga. When she called Morris, she didn’t suspect he could do anything suspicious. Morris is a child who used to come home and they had never differed. It is after she called Morris that he kicked the chair with the plate. It is after that he bend over the child, held his head and cut him on the neck. She could not tell how Morris could do such a thing. To date she had not known what came over Morris that made him commit the offence. She said she was not aware that Morris had been undergoing treatment for mental incapacity.
In re-examination, PW4 said she was Sofia Gati. That is the name in my ID. The name Sofia Ayubu Nyankaira is also hers. Ayubu Nyankaira is husband.
PW5 Jackson Chacha Samuel from Nyamasangora said he is a farmer. That Brian Rimo was his brother. He recalled that on 20.8.2021 he identified the body of Brian for post mortem at Mabera Akidiva. He said he was with Ayubu Nankaira
Mr. Adawo I said that he was not supplied with statement of Jackson Chacha PW5 and he was stood down for cross examination after his statement was supplied to defence Counsel. However, upon supply of the statement Mr. Adawo said that he had no questions for PW5 and he was discharged.
PW6 Ayub Gati Nyankaira also testified that on 17.8.2021 he was at home. There is a church which had convention in our home. It was the SDA church. It was about 5.00pm when he suddenly heard screams. That in company of those at the convention they proceeded to his brother Samuel Nyankaira’s home where the screams came from. On arrival at the home, they found the disabled child who was at his brother’s home was lying dead on the grass having been slaughtered. That he picked the deceased and sat on the ground crying. Members of the public came and thought of reporting the matter. He said he didn’t see the deceased being slaughtered. He said he is the one who went to report the matter to police. That he went to police station in company of another old man. On 20.8.2021 he and Jackson Chacha accompanied a police officer to St. Akidiva Memorial Hospital Mortuary where they identified the body of the deceased for post mortem. The only injury he saw was on the neck of the deceased. The deceased was about 3 years. He was disabled. The deceased was cousin to accused. The deceased was his brother’s son.
In cross examination by Mr. Adawo Advocate for the Accused PW6 said that on 17.8.2021 he was in church. On arrival at the scene, he found the child had been slaughtered. It is not possible for one to cut oneself. He did not know if one can cut oneself. He said he found when the deceased neck had been cut. He did not see him being cut. The deceased was his brother’s child/son. He said he knew the deceased he was about 3 years but he was not certain. He had not started going to school. The child was dumb and he could not walk. He knew the child physically. The child had no other mark on the body. The body of the deceased had been placed on a table in the mortuary and he did identify it. The doctor who conducted post mortem showed them the body and they identified it. The deceased was known to him since his birth and he interacted with him severally. He said he had estimated his age as 3 years as he did not’t have his certificate of birth. The deceased was approximately 3 to 5 years. The accused person was not in hospital during post mortem. He said he didn’t know if it is the accused who killed the deceased. It is at the police station he learnt the suspect had been arrested and when he saw him, he realized it was his sister’s son. When he went to make report to police, he didn’t say he knew the person who cut the deceased as he was not present when accused was arrested. He said he found the deceased lying in a pool of blood and he didn’t find anything else at the scene.
In re-examination, PW6 said that the deceased was known to him well and he did identify the body. The deceased person didn’t have strength on the hands and could not cut himself.
PW7 No. 98415 PC Tanui Gilbert from DCI Ndunya within Limuru Sub County testified that formerly he was attached to DCI Kuria west and the investigating officer in this matter.
He said that on 17.8.2021 at around 19.00hours he received a phone call from Chief Inspector Mohammed Ibrahim the DCIO who informed him there was a case of murder reported at Nyamasangora. He was instructed to proceed to Kehancha Police Station and accompany Corporal John Meli to scene. That he went to the station and on arrival he met the OCS Chief Inspector Boiyo who was in company of Corporal Meli and Ayub Gati Nyankaira who had reported. The report was booked No. 36/17/8/21. After the report was booked, they boarded station motor vehicle and proceeded to the scene.
On arrival they found the deceased body lying in a pool of blood in a compound. The deceased was identified as Brian Remo Nyankaira. That on examination of the body they discovered the deceased had a deep cut wound on the neck which they suspected was inflicted with a sharp object. The deceased was a disabled child. They interrogated several witnesses at the scene including the mother of the deceased Cecilia Wagesa. According to Cecilia she had left the deceased in the compound in order to take her cows to a nearby grazing field. That she was in company of Boke Rioba when she left to go and graze her cows. When on the way Boke Rioba passed by the home of Sofia Ayubu. Sofia Ayubu was seated outside her compound airing maize. As the mother to the deceased stood, she saw the accused arrive at her compound where the deceased was seated. She said the accused was armed with a panga. That the accused went round the deceased and Cecilia Wagesa alerted Boke Rioba and Sofia Ayubu to come and witness what was transpiring and asked Sofia to call the accused to where they were so she could get an opportunity to go and take away the child.
That when Sofia called the accused, he turned to look at them but within no time he again turned and focused where the deceased was seated. When Sofia called him again, he didn’t respond. He grabbed the deceased and cut him on the neck. Before he cut the deceased, he pushed down a plate that was on a plastic chair. He also pushed the same plastic chair. He then grabbed the deceased and slit his neck. Alarm was raised and the accused flee away with the murder weapon. It took efforts of members of public to apprehend the accused and subjected him to mob injustice before police rescued him. After visiting the scene, he processed the scene. The position where the mother of the deceased was about 50m and there was no obstruction and it was clear. After processing scene, they removed the body and escorted to St. Akidiva Hospital Mortuary in Masaba for preservation and post mortem.
That on 20.8.2021 he attended post mortem on the body of the deceased. The body was identified by 2 witnesses Ayubu Gati Nyankaira and Jackson Chacha Samuel. The accused was taken for mental assessment on 20.8.2021 and he was examined by a psychiatrist and report prepared. The accused was found mentally fit to stand trial. In the cause of investigations, he was unable to ascertain motive of the killing. rSubsequently the accused person was ordered to be taken for mental assessment when he displayed characteristics of a person who was out of his mind and the 2nd report indicated he was incapable of standing trial. Before the Investigating Officer went on transfer the accused person was examined 2 times.
The history he got from the family was that the accused person had been abusing hard drugs. PW7 said he didn’t interact with Ayubu Gati as he came from different place from the accused.
In cross examination, the I/O said he did not interrogate the mother of the deceased Cecilia Wagesa, Boke Rioba and Sofia Ayubu. He could not recall if he checked identity of the witnesses that he interrogated but Cecilia is the mother of the deceased. He said he did not know what Sofia Ayubu said in court in relation to her identity. An alarm was raised when accused was seen slit the neck of the deceased and members of public apprehended him immediately. At the time report was made the accused had already been apprehended. He said he arrived at the scene at 7.30pm and learnt the accused ran away upon committing the offence. He was unable to get the murder weapon as members of the public didn’t recover the murder weapon from him. When the accused was placed in custody, he had some injuries as he had been beaten. The OCS was supposed to take him to hospital. He could only confirm if accused was taken to Kehancha hospital on 19.8.2021 if he saw the treatment notes MFI D1 – dated 19.8.2021. He said he did not have the treatment notes. On 20.8.2021 the accused was taken to hospital for mental assessment. Dr. Rutto attended to the accused person. He was based at Migori Level 5 Hospital. He said he did photograph the plastic chair and plate but he didn’t take them from scene. He said he could not tell if photographs were processed and produced. The mother of the deceased and the other 2 ladies were not obstructed from seeing the accused commit the offence from where they were. The witnesses did not say they had any slight problem. The mother of the deceased and the other 2 ladies told him they turned and saw the accused slit the neck of the deceased. The I/O visited the scene and confirmed that from scene of crime to where the witnesses were, they could clearly be seen. He said he didn’t establish that the accused had differences with the family of the deceased. He was also unable to ascertain the motive of the killing. The accused person armed himself with a panga and proceeded all the way from Nyateche to Nyamasangora and murdered the deceased could amount to premeditated the crime. From evidence of the accused person’s father, he was at home on the material day and he must have come from Nyatechi with the panga. The panga is not in court. The age of the deceased was indicated in post mortem report as 10 years. The parents of the deceased must have given the age of the deceased. When filing post mortem form, they rely on documents. The deceased was disabled and from the eyes one could tell how old he was.
When the prosecution closed its case the court placed the Accused on his defense and he opted to give sworn statement and called 3 witnesses.
He said that he knew why he was in court today but it is not true that he killed Brian Nyakaira on 17.8.2021. On 17.8.2021 he could not recall where he was and could not recall having been taken to hospital while in remand. He could not recall having been given any medication. He did not know if he killed Brian
DW2 Benedicta Chacha Mathew. from Taranga Sub Location Bukira East Location Kuria West Sub County said he was a farmer having retired as a teacher. Morris Chacha Mogosi was his son. He said he recorded a statement with his advocate and relied on it as his evidence in chief. The statement is dated 8.10.2025 ExD 1.
DW2 said that the Accused is his 4th born. He went to school after completing he started showing unusual habits in 2017. He could leave home at night and return in the morning. He became violent and he realized he had a problem. His brother and neighbours helped him take the Accused to church to be prayed for. That they also tried to treat him traditionally. He became worse and could walk with a panga threatening people. He went to his uncle’s home where he committed the offence. His mental state had deteriorated. It is the accused person’s brother who informed me of the offence. He was arrested and charged on 2 occasions. DW2 said he took the Accused to hospital and while he was in remand, he was being treated at Migori Level 4 Hospital, Mathari Teaching and Referral Hospital and Kisii for treatment. He produced treatment notes while in custody Ex D2 – 20.12.2022 from Migori Teaching and Referral Hospital mental assessment report ExD3, Kehancha Sub County Hospital EXD 4 dated 19.8.2021 EXD1. Accused was in school and he passed well. He attained B-. He was a leader of the scouts’ movement. Results EXD 4, certificate – Kenya Scouts Association EXD5.
DW2 prayed that the accused be released so that he can take him for treatment to salvage his situation. The accused had never committed any offence prior to this arrest.
In cross-examination by Mr. Oimbo for state DW2 said that the documents they had produced are in relation to treatment of the accused after his arrest. Since accused started experiencing mental incapacity he had not taken him to hospital. He said he would like to take him to a herbalist. When he started ailing, he took him for prayers and he recovered.
In re-examination, by Mr.Adawo Advocate, DW2 said that they decided as a family to take him to a herbalist. He was behaving abnormally and they suspected spiritual attack as he could break out of the house at night even when the doors are locked and they could not tell how he managed to leave as the door could be closed.
DW3 Elizabeth Muniko Chacha from Nyatochi said she was a farmer and Morris Mogosi Chacha was her 4th born son. She said she recorded a statement with the advocate and wished to rely on it – dated 8.10.2025
In cross examination by Mr. Oimbo for State, DW3 said that she was not issued with the treatment notes at the hospitals where she took Morris for treatment before he committed the offence.
In re-examination by Mr. Adawo Advocate DW3 said that she didn’t expect that she would be required to produce the treatment notes for treatment between 2017 – 2019. Some of the documents were misplaced as it is sometimes now.
Ayub Gati Nyakaira wanted to testify as defence witness but Mr. Oimbo Counsel for the state objected as he had testified for the state as PW5. He was therefore stood down and evidence he attempted to give for defence expunged from the records.
DW4 Caro Robi Mwikwabe testified that Morris Mogosi Chacha was her brother-in-law. She said she came to know him in 2016 as they stay in same home. She said she did record statement with the advocate and wished to rely on the said statement as her evidence in chief EXD – dated 8.10.2025
She said that in 20016 the accused was normal. In 2017 he started behaving abnormally. He was known in the family and the village that he was suffering from mental incapacity. He was violent. There was a time he attacked her and he almost killed her but she escaped into the house and locked while raising alarm and neighbours came to her rescue. The accused was taken to hospital but didn’t recover. He was also taken for herbal medicine.
In Cross-examination by Mr. Oimbo for state DW4 said that the accused was taken to hospital but later taken for herbal medicine. When he deteriorates, he is violent. He has continued suffering. She prayed that he should be released
In Re-examination by Mr. Adawo Advocate DW4 said that the accused can be assisted if he is released. At the close of Accused person’s defense Mr. Adawo Advocate in oral submissions said made oral submissions as follows
Before court is an accused who has been charged with offence of murder. He has gone through trial process. Throughout trial it has come out clearly that accused is mentally ill. According to his family his sickness did not start after committing the offence herein. It started sometimes in 2017. As at the time of committing the offence, the accused had disappeared from home and his family were looking for him. They found him after the alleged offence took place. Going by the description of eye witnesses PW1, 2, 3 and 4, the accused person’s behavior before committing the offence and even after paints a picture of someone who was not in control of himself. PW2, PW3 and PW4 said they saw him doing a war dance around the deceased. The accused persons mental illness is known to the court. He was treated in Migori and Kisii County Referral Hospital as well as Mathare Teaching and Referral Hospital. Section 12 of penal code asserts that an accused is not criminally responsible for his actions if at the time of committing the alleged offence, a disease of the mind renders them incapable of understanding their actions, or knowing that what they were doing was wrong. The accused person being mentally ill could not understand the consequences of his actions. We pray that the court makes a finding that the accused can’t be held liable/responsible for actions committed while he was mentally sick. The family requests that he be allowed to go home so he can get medical assistance.
ANALYSIS AND DETERMINATION.
Having considered the proceedings in their entirety, the issues for determination are whether the fact and cause of death were proved; whether it was proved that the cause of death was unlawful act and that the accused is the one who committed the unlawful act; whether the Accused was actuated with malice aforethought in committing the unlawful act.
From the evidence of PW2, PW3, PW4 and the medical evidence of PW1 as well as the investigating officer (PW6), there is overwhelming evidence that the deceased died from a deep cut wound to the neck and the said injury was inflicted by the accused and the act was unlawful. The eyewitness evidence is remarkably consistent. Three witnesses independently described the accused approaching the deceased, remaining silent, moving around him, ignoring calls to stop, then suddenly cutting the deceased's neck before fleeing. Identity of the assailant is therefore beyond reasonable doubt. This court therefore finds that the prosecution has proved that the accused caused death of the deceased.
The real issue is whether the accused was legally responsible for his actions. There is strong evidence throughout the record. The Court itself repeatedly observed that the accused appeared mentally unstable. Indeed, trial stopped in 2021 because the court observed he could not follow proceedings; several psychiatric reports fou
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