A. INFORMATION AND CHARGE.
1. Vide the Information dated 10th August, 2021, Sebby Roy Oyugi, the accused person herein, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 Laws of Kenya. It is alleged in the particulars of the offence that on the 3rd day of June, 2021, at Mamboleo Junction in Kisumu East Subcounty within Kisumu County, the accused person murdered David Omondi Haya.
2. The accused person denied the charge and a plea of “not guilty” was entered, following which his trial commenced.
B. THE PROSECUTION CASE.
3. The prosecution called a total of nine (9) witnesses.
4. The first prosecution witness (PW1) was Jackline Akinyi. The witness testified and told the court that she was a resident of Mamboleo area in Kisumu and worked as a hotel cook and waiter. The witness told the court that on 3rd June, 2021 between 6.30 pm and 7.00 pm, while at Mamboleo junction selling mutura to several customers by the roadside, the accused person, whom she knew as a regular in the area, approached her place of work.
5. The witness stated that she had a silver kitchen knife which she had placed on a jiko, and that the accused took the said knife and left with it. She further testified that the accused returned less than an hour later, placed the knife back, and left. She observed that the knife appeared clean upon its return, and she proceeded with her work.
6. It was the evidence of the witness that shortly thereafter, she heard a customer at a nearby butchery state that the knife taken from her premises had been used to kill a person. Upon hearing this, she looked for the area chief, one Maurice, who contacted the police. She was subsequently taken to Kondele Police Station, where she was instructed to return the following day.
7. The witness testified that on the next day, she went back to the police station and recorded her statement. She further stated that on 22nd July, 2021 at about 1.30 pm, she was called to attend an identification parade where several men were lined up, and she was able to identify the accused person by touching him. She identified the relevant identification parade form as an exhibit.
8. On cross-examination by Mr. Oluoch, learned Counsel for the accused, PW1 testified that the accused took the knife at about 6.00 pm to 7.00 pm, at a time when darkness had already started setting in. She stated that the accused returned the knife in less than one hour and that it did not have any visible blood stains when it was returned.
9. PW1 further told the court that the accused was her customer who used to regularly buy mutura from her, and that at the material time she had a number of customers at her place of work. She also confirmed that there was a butchery nearby, but clarified that the knife in question was not used at the said butchery.
10. The second prosecution witness (PW2) was Stephen Nyanjua Haggai. The witness testified and told the court that he was a resident of St. Paul’s Kanyakwar and a businessman engaged in splitting wood using a power saw. He stated that he knew the accused, Sebby Roy Oyugi, since childhood and also knew the deceased, David Omondi.
11. The witness testified that on 3rd June, 2021 at about 6.30 pm to 7.00 pm, he was at a hotel at Mamboleo interchange junction taking tea when he saw the accused pass by while talking to himself in Dholuo, saying “ngoja narudi.” He stated that shortly thereafter, the accused returned carrying a silver-coloured knife, which he identified as the exhibit in court.
12. It was his evidence that the accused picked a stone and ran after the deceased before stabbing him on the left side of the back. He further testified that after stabbing the deceased, the accused cleaned the knife on the ground and uttered words in Dholuo to the effect that he had eaten the deceased’s heart. The deceased fell down, and the witness rushed to assist him but observed that he was foaming at the mouth and bleeding. The deceased died shortly thereafter. Police officers later arrived and took the body to the mortuary.
13. The witness further stated that immediately after the incident, the accused jumped onto a motorcycle and fled with the assistance of the rider.
14. On cross-examination, the witness testified that the incident occurred between 6.30 pm and 7.00 pm while he was taking tea at a kiosk. He stated that the accused stabbed the deceased at a distance of about 200 metres from where he was, and that although he saw the accused pass by earlier, he did not raise any alarm as he did not anticipate the attack. He confirmed that the accused used his right hand to stab the deceased.
15. The witness further testified that the accused obtained the knife from a mutura vendor and that there was sufficient lighting at the scene. He stated that no one intervened during the attack and that the deceased fell on his stomach after being stabbed. He added that the accused later returned the knife to the mutura place before fleeing on a motorcycle.
16. PW2 further told the court that people generally feared the accused as he was known to be violent, and that the police recovered the knife from the mutura place upon arrival. He acknowledged that his recorded statement did not indicate that the accused cleaned the knife.
17. On re-examination, the witness clarified that the police recorded his statement based on his narration and that he had informed them that he saw the accused cleaning the knife.
18. The third prosecution witness (PW3) was Levy Okech Okele. The witness testified and told the court that he was a resident of Riat and worked as a boda boda operator. He stated that he knew the accused well as he resided near his place of work at the junction area, and that the deceased, David Omondi, was his friend.
19. The witness testified that on 2nd June 2021, he was with the deceased taking chang’aa and that the deceased became drunk. He stated that he took the deceased to his place using the deceased’s motorcycle. He further testified that on the following day, 3rd June, 2021, he went to carry out a fencing job which he completed at about 5.00 pm, after which he went to a chang’aa den at Mamboleo junction area where he met the deceased.
20. It was the further evidence of PW3 that the deceased asked him to use his motorcycle to get money for supper, and that he took a customer before returning to the chang’aa place and finding the deceased still there. He stated that the accused then approached him and complained that he was riding a motorcycle belonging to a non-Luo person who did not like the accused, and further uttered that he would kill the deceased.
21. The witness testified that the accused then crossed the road to the chang’aa place where the deceased was and began throwing stones at the people there, causing them, including the deceased, to run away. He stated that the accused then went to a nearby mutura selling point next to a butchery and took a silver knife, which he identified as the exhibit in court.
22. The witness further testified that the accused pursued the deceased to a location near a bar and a car wash, where he caught up with him and stabbed him once on the left upper side of the back. He stated that the deceased fell down, and the accused proceeded to clean the knife on the ground before returning it to the mutura place and fleeing the scene by boarding a vehicle.
23. The witness told the court that he went to assist the deceased and observed that he was bleeding and foaming from the mouth. He stated that he called the deceased’s father, who came to the scene, and together they took the deceased to Russia Mortuary, as he had already met his demise. He added that the police later attended to the scene and that he subsequently recorded his statement.
24. On cross-examination, the witness testified that the incident occurred between 6.30 pm and 7.00 pm when darkness had started setting in. He stated that he was about 10 metres away from the scene and clearly saw the accused stab the deceased once using his right hand.
25. PW3 further testified that there were many people present at the scene and that more people gathered after the stabbing. He confirmed that the accused took the knife from the mutura place, cleaned it on the grass after the incident, and returned it to the same place. He also stated that he did not personally record his statement, but that it was recorded for him by a police officer.
26. The fourth prosecution witness (PW4) was Patrick Jackino Boyi. The witness testified and told the court that he was a resident of Riat Hills and a civil engineer by profession. He stated that he knew the accused person as an acquaintance, as they lived in the same area. He further testified that the deceased, David Omondi, was his relative.
27. The witness testified that on 7th June, 2021 at about 2.00 pm, while at his office in Mamboleo area, he received a call from the deceased’s father requesting him to proceed to Jaramogi Oginga Odinga Teaching and Referral Hospital to witness a post-mortem examination. He stated that he attended the post-mortem and identified the body of the deceased. He identified and produced the post-mortem form as an exhibit.
28. On cross-examination, the witness stated that he only identified the body of the deceased and did not visit the scene of the alleged incident. He further confirmed that although he knew the accused person, he did not witness the accused stabbing the deceased.
29. The fifth prosecution witness (PW5) was Polycarp Lutta Kweyu, an Assistant Government Analyst based at the Kisumu Government Chemist. The witness testified and told the court that he had worked in the office for 13 years and held a Master of Science degree and a Bachelor of Science degree in Chemistry, both from Jomo Kenyatta University of Agriculture and Technology (JKUAT).
30. The witness testified that he prepared a Government Analyst’s report dated 5th April, 2023 upon request by one Dreck Busolo, a police officer stationed at the Directorate of Criminal Investigations, Kondele, through an exhibit memo dated 22nd July 2021. He stated that the exhibits forwarded to him included a knife with a silver metallic handle marked “Z” and a sample described as a right thumb fingernail extracted from the deceased, David Omondi Haya, marked “B”. He stated that he was required to conduct DNA analysis on the exhibits.
31. The witness testified that the knife produced in court as PExh1 was examined and that upon analysis, the blood stains on the knife tested positive for human blood. He further stated that the DNA profile obtained from the blood stains on the knife matched the DNA profile of the deceased, David Omondi Haya.
32. The witness clarified that there was an error in the dating of the report, which indicated 8th March, 2022, and stated that the correct date of the report was 5th April, 2023, as reflected on the front and back pages of the document. He produced the report and memo form as exhibits.
33. On cross-examination, the witness stated that he could not tell whether the accused was involved in the murder, as his role was limited to comparing DNA profiles and reporting the scientific findings.
34. It is important to state that after the evidence of PW was taken, the accused’s pro bono Counsel, Mr. Okoth applied to withdraw from the matter citing difficulty in getting appropriate instructions from his client. There was no opposition to the application and Counsel was discharged.
35. This court then informed the accused of his right to legal representation and that he would be allocated another Counsel on pro bono basis, to which he responded as follows:
“I do not need any representation. I will be clear that I will now not need any advocate. I want to act in person. I will proceed to represent myself.”
36. Reiterating his position, the accused went on to state as follows:
“I do not wish to be represented by an Advocate. I wish to self-represent myself.”
37. The subsequent proceedings were therefore taken with the accused appearing in person.
38. The sixth prosecution witness (PW6) was Chief Inspector Fredrick Barasa, who testified that he was stationed at Teso South as the Director of Criminal Investigations (DCIO) at the material time, having previously served at Kondele.
39. The witness testified that on 22nd July, 2021, he conducted an identification parade in respect of the accused person. He stated that the parade consisted of 10 members who were of similar complexion and physical build and features to the accused, and that none of the members was shown to the identifying witness prior to the exercise.
40. It was his evidence that he arranged the members in a line after recording their names for identification purposes, and thereafter informed the accused of the identification procedure. He testified that the accused agreed to participate in the parade and indicated in Swahili that there was no problem (“hakuna shida”), signed the relevant parade forms and provided his identification number.
41. The witness further testified that he asked the accused whether he wished to have an advocate or any other person present during the parade, and the accused declined, stating that he had no objection to proceeding without legal representation. He also stated that the accused chose his position in the line, standing between members number 6 and 7.
42. PW6 testified that the identifying witness, Jackline Akinyi, was kept in an office to prevent her from seeing the parade members until she was called. Upon being brought in, she identified the accused by touching him on the shoulder.
43. The witness stated that the accused did not raise any complaint regarding the conduct of the identification parade and signed the relevant forms confirming the same. He produced the identification parade form as an exhibit.
44. On cross-examination, the witness testified that he had served in the National Police Service for 12 years and confirmed that he did not take the accused’s photograph nor did he know him prior to the parade. He further stated that he was not the officer who arrested the accused and clarified that the investigating officer was Police Constable Busolo.
45. PW6 denied forcing the accused to provide his signature or identification number and stated that he did not point out the accused to the witness during the parade. He also confirmed that the identifying witness was kept in an office during preparation of the parade and that she did not see the accused or the members of the parade prior to the identification.
46. On re-examination, the witness reiterated that the accused was not forced to participate or to indicate that he had no objection to the conduct of the parade.
47. The seventh prosecution witness (PW7) was Police Constable Drake Busolo, who testified that he was based at Kondele Police Station and was the investigating officer in the case. He stated that the accused person was Sebby Roy Oyugi.
48. The witness testified that on 3rd June, 2021 at about 7.00 pm, he was informed by his senior, Inspector of Police Barasa, of an incident at Mamboleo roundabout where a person had been stabbed with a knife. He stated that upon proceeding to the scene, they found the victim lying dead with the body facing downwards.
49. It was the evidence of PW7 that he collected the names and contact details of persons present at the scene and was informed that the accused had taken a knife from a mutura vendor near a butchery and later returned it shortly thereafter to the same vendor, Jackline Akinyi. He further testified that upon being informed of the stabbing, Jackline Akinyi reported the matter to Assistant Chief Maurice, who subsequently handed over the knife to the police.
50. The witness stated that the knife, which appeared to have blood stains, was recovered and produced in court as an exhibit PExh1. He further testified that the body of the deceased was taken to Jaramogi Oginga Odinga Teaching and Referral Hospital mortuary, where a post-mortem was later conducted on 7th July, 2021, and the body was identified by relatives of the deceased.
51. The witness testified that the accused fled after returning the knife but was later arrested on 20th July, 2021 at Ndhiwa area in Homa Bay County and taken to Kondele Police Station. He further stated that an identification parade was conducted, during which Jackline Akinyi identified the accused as the person who had taken and returned the knife.
52. It was PW7’s further evidence that on 22nd July, 2021, the knife and a fingernail sample extracted from the deceased were forwarded to the Government Chemist for forensic analysis, which confirmed that the blood stains on the knife matched the DNA profile of the deceased.
53. The witness testified that he compiled the police file and that the Office of the Director of Public Prosecutions subsequently authorized a charge of murder against the accused person.
54. On cross-examination, the witness stated that he had not charged the accused with any other offence in this case and clarified that he was not the investigating officer in a separate assault case involving the accused. He also confirmed that the accused had been arrested at Ndhiwa Sub-County and brought to Kondele Police Station, and maintained that there was a witness who saw the accused stabbing the deceased.
55. On re-examination, the witness clarified that he was not the arresting officer in the case and stated that the arrest was effected by Police Constable Obwage Philip. He reiterated that his testimony was truthful and based on his investigations.
56. The eighth prosecution witness (PW8) was Dr. Ombok Lucy, a medical practitioner at Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH), who testified that she had been a doctor for 12 years and was familiar with the handwriting and signature of her colleague, Dr. Silas Owiti, who had since proceeded to further studies in Eldoret.
57. The witness testified that she produced a post-mortem report prepared by Dr. Owiti in respect of the body of the deceased, David Omondi Haya. She stated that the post-mortem was conducted on 7th June, 2021 at JOOTRH at about 2.00 pm.
58. It was PW8’s evidence that the deceased was an African male aged approximately 31 years and of good nutritional status. She testified that externally, the deceased had a stab wound on the chest measuring approximately 2 by 1 cm, as well as scratches around the orbital (eye) area.
59. The witness further stated that internally, the stab wound had penetrated the chest cavity and caused injury to the left lung, resulting in significant blood loss and collapse of the lung. She testified that all other body systems were normal upon examination. She concluded that the cause of death was hemorrhage secondary to a stab wound to the chest.
60. The witness further testified that a death certificate No. 1560205 was issued and that a nail specimen from the left hand was collected for forensic analysis. There being no objection by the accused, the witness produced the post mortem report as an exhibit (PExh3).
61. On cross-examination, the witness confirmed that the post-mortem report was prepared by her colleague, Dr. Silas Owiti, and that she produced it on his behalf as the head of the department. She further stated that there was nothing in the report that directly connected the accused person to the death of the deceased.
62. On re-examination, PW8 clarified that the law permitted her to produce the post-mortem report on behalf of her colleague, as there was no objection by the accused.
63. The last prosecution witness (PW9) was Police Constable Philip Obwoge, who testified that he was stationed at Sengera Police Station in Nyamira County, having previously served at Sena Police Station in Homa Bay County.
64. The witness testified that he knew the accused person, Sebby Roy Oyugi. He stated that on 20th July, 2021 at about 10.00 am, he received information from a member of the public that a murder suspect who was being sought by police had been spotted.
65. It was the evidence of PW9 that he contacted the Director of Criminal Investigations (DCIO) to verify the information, and confirmation was received through communication between the DCIO Mbita and the DCIO Kondele that the accused person was indeed being sought in connection with a murder case.
66. The witness testified that together with Police Constable Aswani, he proceeded to arrest the accused person at Sena, where he was working at a construction site. He stated that after arresting him, he took him to Sena Police Post, took his photograph (mugshot), and forwarded it to the Officer Commanding Station (OCS) Kondele, who confirmed that the arrested person was the suspect being sought.
67. PW9 further testified that he subsequently handed over the accused to Mbita DCI. He identified the accused person in court as the person he arrested.
68. On cross-examination, the witness stated that he did not witness the commission of the offence. He further stated that the arrest was made during the COVID-19 pandemic period and noted that the accused was not wearing a mask at the time of arrest.
69. The prosecution closed its case at that stage and in its considered ruling rendered on 27th October, 2025, the court found that the prosecution had established a prima facie case against the accused and he was placed on his defence.
C. THE DEFENCE CASE.
70. In his defence, the accused testified on oath and told the court that he resided in Kanyakwa Sub-Location, Kogola Village, Kisumu County, and worked as a mason. He stated that he understood the charge facing him and was aware of the evidence tendered by the prosecution witnesses.
71. The accused testified that on 3rd June, 2021, he left his home in the morning and proceeded to work, where he remained until about 6.00 pm. He stated that he later went to Mamboleo junction, a place where he used to take chang’aa, and met his friends and drinking companions. He testified that he was given approximately three-quarters of a glass of chang’aa by one of them, which he consumed, after which he became heavily intoxicated and lost consciousness.
72. It was the accused’s evidence that he regained consciousness the following night while in hospital, where he found his wife who informed him that he had allegedly behaved violently, including assaulting people and killing a person while intoxicated. He stated that he had sustained injuries and was informed by a doctor that the alcohol he had consumed may have been adulterated with a substance that affected his mental state. He produced a medical document as DEhx1.
73. The accused testified that he feared returning home and later travelled to Mbita in Homa Bay County, where his sister resided, and stayed there while working for about a month. He stated that during this period he obtained employment, replaced his lost phone and later renewed his phone line. He testified that he was arrested the following day after doing so.
74. It was his further evidence that he initially believed his arrest was related to COVID-19 mask enforcement at first, but later realized that he had been arrested in connection with a murder case. He stated that he intended to explore plea bargaining and sought forgiveness from the court, the State and the deceased’s family.
75. On cross-examination, the accused testified that he lost memory on 3rd June, 2021 after consuming chang’aa and that the medical document (DExh1) showed that he attended hospital on 5th June, 2021, though it did not indicate that he was insane or unconscious. He admitted that the incident occurred on 3rd June, 2021 at about 6.00 pm at Mamboleo area and confirmed that the deceased was his friend whom he used to drink with.
76. The accused further admitted that he was present at Mamboleo on the material day and acknowledged the testimony of PW1 that he took and later returned a knife from the mutura vendor. He also confirmed that he had undergone a psychiatric assessment prior to being arraigned and was found fit to stand trial.
77. He further conceded that PW2 and PW3 testified that they saw him stabbing the deceased and that he had met them at the scene that day. He also admitted that PW2 stated he took a knife from PW1’s mutura place and that he fled to Mbita after learning that the deceased had died. He confirmed that he was arrested on 20th July, 2021 but maintained that he could not recall what transpired on the day of the incident.
78. The accused did not call any witness and closed the defence case at that stage.
D. THE STATE’S SUBMISSIONS.
79. The State submitted that in his defence, the accused alleged that he was not in a stable state of mind at the material time. The State opposed this defence on the basis that it was legally insufficient, factually unsupported, and amounted to a belated attempt to evade criminal responsibility.
80. The State relied on Section 12 of the Penal Code and submitted that it establishes a narrow defence of insanity requiring proof of two elements, namely: (i) a disease affecting the mind; and (ii) that such disease caused incapacity to understand the nature of the act or that it was wrong at the material time. It was further submitted that the burden of proving insanity lies on the accused on a balance of probabilities.
81. The State submitted that the accused failed to establish disease affecting the mind. It was argued that the medical document produced by the accused was fatally deficient for several reasons: first, it was not prepared by a psychiatrist; second, it indicated intoxication rather than mental disease; third, no psychiatric expert was called and the maker of the document was not called to testify, thereby rendering the evidence inadmissible hearsay with no probative value; and fourth, that voluntary intoxication cannot amount to insanity under Kenyan law.
82. The State further submitted that the accused had produced no psychiatric report or evidence of diagnosis of any mental disorder. It was argued that without credible psychiatric evidence, the defence of insanity could not stand.
83. The State also relied on the accused’s mental assessment report that was submitted to the court prior to plea, submitting that he was found fit to plead. It was contended that this determination demonstrated that he had sufficient mental capacity to understand the proceedings and participate in his defence, and that it directly contradicted his claim of insanity.
84. The State further submitted that the accused had not been prescribed any psychiatric medication or treatment and had no history of psychiatric illness or treatment. It was argued that the absence of psychiatric history undermined the credibility of the defence, which was described as a fabrication.
85. It was also submitted that the defence of insanity was a belated afterthought, as it was not raised during trial but only emerged after the prosecution had closed its case. The State contended that this timing demonstrated that it was not genuine.
86. The State further submitted that even if the medical document were accepted, it only indicated intoxication, which does not satisfy Section 12 of the Penal Code. It was argued that Section 12 requires disease affecting the mind and not voluntary self-induced intoxication. The State emphasized that the law does not allow an accused person to escape liability by voluntarily intoxicating himself and then committing an offence.
87. The State relied on the decision in Kaburu v Republic [2024] KECA 536 (KLR) where the Court stated:
“Section 11 of the Penal Code provides that every person is presumed to be of sound mind and to have been of sound mind at any time which comes in question until the contrary is proved. This provision in our considered view shifts the burden of proving the defence of insanity to the accused person. However, the presumption of sanity is rebuttable, hence the recognition in criminal law, of the defence of insanity.”
88. The State further quoted the same decision where the Court set out Section 12 of the Penal Code as follows:
“A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is, through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.”
89. The State submitted that even if disease affecting the mind were proved, which it denied, the accused was still required to prove that the disease rendered him incapable of understanding what he was doing or knowing that it was wrong. It was argued that Section 12 expressly provides that criminal responsibility may still attach where mental disease does not produce the requisite incapacity.
90. The State concluded that the accused had wholly failed to discharge the burden of proving insanity on a balance of probabilities. It was submitted that he had produced no psychiatric evidence, no proof of incapacity, no medical history, and only relied on intoxication. The State urged the Court to reject the defence of insanity and proceed to consider sentence upon the established evidence of guilt for the murder of David Omondi Haya.
E. THE ACCUSED’S SUBMISSIONS.
91. On his part, the accused submitted that the prosecution evidence, particularly that of PW3, corroborated his defence. It was argued that PW3, in his sworn testimony indicated that he was drinking with the deceased when the accused joined them, which w
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1. Vide the Information dated 10th August, 2021, Sebby Roy Oyugi, the accused person herein, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 Laws of Kenya. It is alleged in the particulars of the offence that on the 3rd day of June, 2021, at Mamboleo Junction in Kisumu East Subcounty within Kisumu County, the accused person murdered David Omondi Haya.
2. The accused person denied the charge and a plea of “not guilty” was entered, following which his trial commenced.
B. THE PROSECUTION CASE.
3. The prosecution called a total of nine (9) witnesses.
4. The first prosecution witness (PW1) was Jackline Akinyi. The witness testified and told the court that she was a resident of Mamboleo area in Kisumu and worked as a hotel cook and waiter. The witness told the court that on 3rd June, 2021 between 6.30 pm and 7.00 pm, while at Mamboleo junction selling mutura to several customers by the roadside, the accused person, whom she knew as a regular in the area, approached her place of work.
5. The witness stated that she had a silver kitchen knife which she had placed on a jiko, and that the accused took the said knife and left with it. She further testified that the accused returned less than an hour later, placed the knife back, and left. She observed that the knife appeared clean upon its return, and she proceeded with her work.
6. It was the evidence of the witness that shortly thereafter, she heard a customer at a nearby butchery state that the knife taken from her premises had been used to kill a person. Upon hearing this, she looked for the area chief, one Maurice, who contacted the police. She was subsequently taken to Kondele Police Station, where she was instructed to return the following day.
7. The witness testified that on the next day, she went back to the police station and recorded her statement. She further stated that on 22nd July, 2021 at about 1.30 pm, she was called to attend an identification parade where several men were lined up, and she was able to identify the accused person by touching him. She identified the relevant identification parade form as an exhibit.
8. On cross-examination by Mr. Oluoch, learned Counsel for the accused, PW1 testified that the accused took the knife at about 6.00 pm to 7.00 pm, at a time when darkness had already started setting in. She stated that the accused returned the knife in less than one hour and that it did not have any visible blood stains when it was returned.
9. PW1 further told the court that the accused was her customer who used to regularly buy mutura from her, and that at the material time she had a number of customers at her place of work. She also confirmed that there was a butchery nearby, but clarified that the knife in question was not used at the said butchery.
10. The second prosecution witness (PW2) was Stephen Nyanjua Haggai. The witness testified and told the court that he was a resident of St. Paul’s Kanyakwar and a businessman engaged in splitting wood using a power saw. He stated that he knew the accused, Sebby Roy Oyugi, since childhood and also knew the deceased, David Omondi.
11. The witness testified that on 3rd June, 2021 at about 6.30 pm to 7.00 pm, he was at a hotel at Mamboleo interchange junction taking tea when he saw the accused pass by while talking to himself in Dholuo, saying “ngoja narudi.” He stated that shortly thereafter, the accused returned carrying a silver-coloured knife, which he identified as the exhibit in court.
12. It was his evidence that the accused picked a stone and ran after the deceased before stabbing him on the left side of the back. He further testified that after stabbing the deceased, the accused cleaned the knife on the ground and uttered words in Dholuo to the effect that he had eaten the deceased’s heart. The deceased fell down, and the witness rushed to assist him but observed that he was foaming at the mouth and bleeding. The deceased died shortly thereafter. Police officers later arrived and took the body to the mortuary.
13. The witness further stated that immediately after the incident, the accused jumped onto a motorcycle and fled with the assistance of the rider.
14. On cross-examination, the witness testified that the incident occurred between 6.30 pm and 7.00 pm while he was taking tea at a kiosk. He stated that the accused stabbed the deceased at a distance of about 200 metres from where he was, and that although he saw the accused pass by earlier, he did not raise any alarm as he did not anticipate the attack. He confirmed that the accused used his right hand to stab the deceased.
15. The witness further testified that the accused obtained the knife from a mutura vendor and that there was sufficient lighting at the scene. He stated that no one intervened during the attack and that the deceased fell on his stomach after being stabbed. He added that the accused later returned the knife to the mutura place before fleeing on a motorcycle.
16. PW2 further told the court that people generally feared the accused as he was known to be violent, and that the police recovered the knife from the mutura place upon arrival. He acknowledged that his recorded statement did not indicate that the accused cleaned the knife.
17. On re-examination, the witness clarified that the police recorded his statement based on his narration and that he had informed them that he saw the accused cleaning the knife.
18. The third prosecution witness (PW3) was Levy Okech Okele. The witness testified and told the court that he was a resident of Riat and worked as a boda boda operator. He stated that he knew the accused well as he resided near his place of work at the junction area, and that the deceased, David Omondi, was his friend.
19. The witness testified that on 2nd June 2021, he was with the deceased taking chang’aa and that the deceased became drunk. He stated that he took the deceased to his place using the deceased’s motorcycle. He further testified that on the following day, 3rd June, 2021, he went to carry out a fencing job which he completed at about 5.00 pm, after which he went to a chang’aa den at Mamboleo junction area where he met the deceased.
20. It was the further evidence of PW3 that the deceased asked him to use his motorcycle to get money for supper, and that he took a customer before returning to the chang’aa place and finding the deceased still there. He stated that the accused then approached him and complained that he was riding a motorcycle belonging to a non-Luo person who did not like the accused, and further uttered that he would kill the deceased.
21. The witness testified that the accused then crossed the road to the chang’aa place where the deceased was and began throwing stones at the people there, causing them, including the deceased, to run away. He stated that the accused then went to a nearby mutura selling point next to a butchery and took a silver knife, which he identified as the exhibit in court.
22. The witness further testified that the accused pursued the deceased to a location near a bar and a car wash, where he caught up with him and stabbed him once on the left upper side of the back. He stated that the deceased fell down, and the accused proceeded to clean the knife on the ground before returning it to the mutura place and fleeing the scene by boarding a vehicle.
23. The witness told the court that he went to assist the deceased and observed that he was bleeding and foaming from the mouth. He stated that he called the deceased’s father, who came to the scene, and together they took the deceased to Russia Mortuary, as he had already met his demise. He added that the police later attended to the scene and that he subsequently recorded his statement.
24. On cross-examination, the witness testified that the incident occurred between 6.30 pm and 7.00 pm when darkness had started setting in. He stated that he was about 10 metres away from the scene and clearly saw the accused stab the deceased once using his right hand.
25. PW3 further testified that there were many people present at the scene and that more people gathered after the stabbing. He confirmed that the accused took the knife from the mutura place, cleaned it on the grass after the incident, and returned it to the same place. He also stated that he did not personally record his statement, but that it was recorded for him by a police officer.
26. The fourth prosecution witness (PW4) was Patrick Jackino Boyi. The witness testified and told the court that he was a resident of Riat Hills and a civil engineer by profession. He stated that he knew the accused person as an acquaintance, as they lived in the same area. He further testified that the deceased, David Omondi, was his relative.
27. The witness testified that on 7th June, 2021 at about 2.00 pm, while at his office in Mamboleo area, he received a call from the deceased’s father requesting him to proceed to Jaramogi Oginga Odinga Teaching and Referral Hospital to witness a post-mortem examination. He stated that he attended the post-mortem and identified the body of the deceased. He identified and produced the post-mortem form as an exhibit.
28. On cross-examination, the witness stated that he only identified the body of the deceased and did not visit the scene of the alleged incident. He further confirmed that although he knew the accused person, he did not witness the accused stabbing the deceased.
29. The fifth prosecution witness (PW5) was Polycarp Lutta Kweyu, an Assistant Government Analyst based at the Kisumu Government Chemist. The witness testified and told the court that he had worked in the office for 13 years and held a Master of Science degree and a Bachelor of Science degree in Chemistry, both from Jomo Kenyatta University of Agriculture and Technology (JKUAT).
30. The witness testified that he prepared a Government Analyst’s report dated 5th April, 2023 upon request by one Dreck Busolo, a police officer stationed at the Directorate of Criminal Investigations, Kondele, through an exhibit memo dated 22nd July 2021. He stated that the exhibits forwarded to him included a knife with a silver metallic handle marked “Z” and a sample described as a right thumb fingernail extracted from the deceased, David Omondi Haya, marked “B”. He stated that he was required to conduct DNA analysis on the exhibits.
31. The witness testified that the knife produced in court as PExh1 was examined and that upon analysis, the blood stains on the knife tested positive for human blood. He further stated that the DNA profile obtained from the blood stains on the knife matched the DNA profile of the deceased, David Omondi Haya.
32. The witness clarified that there was an error in the dating of the report, which indicated 8th March, 2022, and stated that the correct date of the report was 5th April, 2023, as reflected on the front and back pages of the document. He produced the report and memo form as exhibits.
33. On cross-examination, the witness stated that he could not tell whether the accused was involved in the murder, as his role was limited to comparing DNA profiles and reporting the scientific findings.
34. It is important to state that after the evidence of PW was taken, the accused’s pro bono Counsel, Mr. Okoth applied to withdraw from the matter citing difficulty in getting appropriate instructions from his client. There was no opposition to the application and Counsel was discharged.
35. This court then informed the accused of his right to legal representation and that he would be allocated another Counsel on pro bono basis, to which he responded as follows:
“I do not need any representation. I will be clear that I will now not need any advocate. I want to act in person. I will proceed to represent myself.”
36. Reiterating his position, the accused went on to state as follows:
“I do not wish to be represented by an Advocate. I wish to self-represent myself.”
37. The subsequent proceedings were therefore taken with the accused appearing in person.
38. The sixth prosecution witness (PW6) was Chief Inspector Fredrick Barasa, who testified that he was stationed at Teso South as the Director of Criminal Investigations (DCIO) at the material time, having previously served at Kondele.
39. The witness testified that on 22nd July, 2021, he conducted an identification parade in respect of the accused person. He stated that the parade consisted of 10 members who were of similar complexion and physical build and features to the accused, and that none of the members was shown to the identifying witness prior to the exercise.
40. It was his evidence that he arranged the members in a line after recording their names for identification purposes, and thereafter informed the accused of the identification procedure. He testified that the accused agreed to participate in the parade and indicated in Swahili that there was no problem (“hakuna shida”), signed the relevant parade forms and provided his identification number.
41. The witness further testified that he asked the accused whether he wished to have an advocate or any other person present during the parade, and the accused declined, stating that he had no objection to proceeding without legal representation. He also stated that the accused chose his position in the line, standing between members number 6 and 7.
42. PW6 testified that the identifying witness, Jackline Akinyi, was kept in an office to prevent her from seeing the parade members until she was called. Upon being brought in, she identified the accused by touching him on the shoulder.
43. The witness stated that the accused did not raise any complaint regarding the conduct of the identification parade and signed the relevant forms confirming the same. He produced the identification parade form as an exhibit.
44. On cross-examination, the witness testified that he had served in the National Police Service for 12 years and confirmed that he did not take the accused’s photograph nor did he know him prior to the parade. He further stated that he was not the officer who arrested the accused and clarified that the investigating officer was Police Constable Busolo.
45. PW6 denied forcing the accused to provide his signature or identification number and stated that he did not point out the accused to the witness during the parade. He also confirmed that the identifying witness was kept in an office during preparation of the parade and that she did not see the accused or the members of the parade prior to the identification.
46. On re-examination, the witness reiterated that the accused was not forced to participate or to indicate that he had no objection to the conduct of the parade.
47. The seventh prosecution witness (PW7) was Police Constable Drake Busolo, who testified that he was based at Kondele Police Station and was the investigating officer in the case. He stated that the accused person was Sebby Roy Oyugi.
48. The witness testified that on 3rd June, 2021 at about 7.00 pm, he was informed by his senior, Inspector of Police Barasa, of an incident at Mamboleo roundabout where a person had been stabbed with a knife. He stated that upon proceeding to the scene, they found the victim lying dead with the body facing downwards.
49. It was the evidence of PW7 that he collected the names and contact details of persons present at the scene and was informed that the accused had taken a knife from a mutura vendor near a butchery and later returned it shortly thereafter to the same vendor, Jackline Akinyi. He further testified that upon being informed of the stabbing, Jackline Akinyi reported the matter to Assistant Chief Maurice, who subsequently handed over the knife to the police.
50. The witness stated that the knife, which appeared to have blood stains, was recovered and produced in court as an exhibit PExh1. He further testified that the body of the deceased was taken to Jaramogi Oginga Odinga Teaching and Referral Hospital mortuary, where a post-mortem was later conducted on 7th July, 2021, and the body was identified by relatives of the deceased.
51. The witness testified that the accused fled after returning the knife but was later arrested on 20th July, 2021 at Ndhiwa area in Homa Bay County and taken to Kondele Police Station. He further stated that an identification parade was conducted, during which Jackline Akinyi identified the accused as the person who had taken and returned the knife.
52. It was PW7’s further evidence that on 22nd July, 2021, the knife and a fingernail sample extracted from the deceased were forwarded to the Government Chemist for forensic analysis, which confirmed that the blood stains on the knife matched the DNA profile of the deceased.
53. The witness testified that he compiled the police file and that the Office of the Director of Public Prosecutions subsequently authorized a charge of murder against the accused person.
54. On cross-examination, the witness stated that he had not charged the accused with any other offence in this case and clarified that he was not the investigating officer in a separate assault case involving the accused. He also confirmed that the accused had been arrested at Ndhiwa Sub-County and brought to Kondele Police Station, and maintained that there was a witness who saw the accused stabbing the deceased.
55. On re-examination, the witness clarified that he was not the arresting officer in the case and stated that the arrest was effected by Police Constable Obwage Philip. He reiterated that his testimony was truthful and based on his investigations.
56. The eighth prosecution witness (PW8) was Dr. Ombok Lucy, a medical practitioner at Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH), who testified that she had been a doctor for 12 years and was familiar with the handwriting and signature of her colleague, Dr. Silas Owiti, who had since proceeded to further studies in Eldoret.
57. The witness testified that she produced a post-mortem report prepared by Dr. Owiti in respect of the body of the deceased, David Omondi Haya. She stated that the post-mortem was conducted on 7th June, 2021 at JOOTRH at about 2.00 pm.
58. It was PW8’s evidence that the deceased was an African male aged approximately 31 years and of good nutritional status. She testified that externally, the deceased had a stab wound on the chest measuring approximately 2 by 1 cm, as well as scratches around the orbital (eye) area.
59. The witness further stated that internally, the stab wound had penetrated the chest cavity and caused injury to the left lung, resulting in significant blood loss and collapse of the lung. She testified that all other body systems were normal upon examination. She concluded that the cause of death was hemorrhage secondary to a stab wound to the chest.
60. The witness further testified that a death certificate No. 1560205 was issued and that a nail specimen from the left hand was collected for forensic analysis. There being no objection by the accused, the witness produced the post mortem report as an exhibit (PExh3).
61. On cross-examination, the witness confirmed that the post-mortem report was prepared by her colleague, Dr. Silas Owiti, and that she produced it on his behalf as the head of the department. She further stated that there was nothing in the report that directly connected the accused person to the death of the deceased.
62. On re-examination, PW8 clarified that the law permitted her to produce the post-mortem report on behalf of her colleague, as there was no objection by the accused.
63. The last prosecution witness (PW9) was Police Constable Philip Obwoge, who testified that he was stationed at Sengera Police Station in Nyamira County, having previously served at Sena Police Station in Homa Bay County.
64. The witness testified that he knew the accused person, Sebby Roy Oyugi. He stated that on 20th July, 2021 at about 10.00 am, he received information from a member of the public that a murder suspect who was being sought by police had been spotted.
65. It was the evidence of PW9 that he contacted the Director of Criminal Investigations (DCIO) to verify the information, and confirmation was received through communication between the DCIO Mbita and the DCIO Kondele that the accused person was indeed being sought in connection with a murder case.
66. The witness testified that together with Police Constable Aswani, he proceeded to arrest the accused person at Sena, where he was working at a construction site. He stated that after arresting him, he took him to Sena Police Post, took his photograph (mugshot), and forwarded it to the Officer Commanding Station (OCS) Kondele, who confirmed that the arrested person was the suspect being sought.
67. PW9 further testified that he subsequently handed over the accused to Mbita DCI. He identified the accused person in court as the person he arrested.
68. On cross-examination, the witness stated that he did not witness the commission of the offence. He further stated that the arrest was made during the COVID-19 pandemic period and noted that the accused was not wearing a mask at the time of arrest.
69. The prosecution closed its case at that stage and in its considered ruling rendered on 27th October, 2025, the court found that the prosecution had established a prima facie case against the accused and he was placed on his defence.
C. THE DEFENCE CASE.
70. In his defence, the accused testified on oath and told the court that he resided in Kanyakwa Sub-Location, Kogola Village, Kisumu County, and worked as a mason. He stated that he understood the charge facing him and was aware of the evidence tendered by the prosecution witnesses.
71. The accused testified that on 3rd June, 2021, he left his home in the morning and proceeded to work, where he remained until about 6.00 pm. He stated that he later went to Mamboleo junction, a place where he used to take chang’aa, and met his friends and drinking companions. He testified that he was given approximately three-quarters of a glass of chang’aa by one of them, which he consumed, after which he became heavily intoxicated and lost consciousness.
72. It was the accused’s evidence that he regained consciousness the following night while in hospital, where he found his wife who informed him that he had allegedly behaved violently, including assaulting people and killing a person while intoxicated. He stated that he had sustained injuries and was informed by a doctor that the alcohol he had consumed may have been adulterated with a substance that affected his mental state. He produced a medical document as DEhx1.
73. The accused testified that he feared returning home and later travelled to Mbita in Homa Bay County, where his sister resided, and stayed there while working for about a month. He stated that during this period he obtained employment, replaced his lost phone and later renewed his phone line. He testified that he was arrested the following day after doing so.
74. It was his further evidence that he initially believed his arrest was related to COVID-19 mask enforcement at first, but later realized that he had been arrested in connection with a murder case. He stated that he intended to explore plea bargaining and sought forgiveness from the court, the State and the deceased’s family.
75. On cross-examination, the accused testified that he lost memory on 3rd June, 2021 after consuming chang’aa and that the medical document (DExh1) showed that he attended hospital on 5th June, 2021, though it did not indicate that he was insane or unconscious. He admitted that the incident occurred on 3rd June, 2021 at about 6.00 pm at Mamboleo area and confirmed that the deceased was his friend whom he used to drink with.
76. The accused further admitted that he was present at Mamboleo on the material day and acknowledged the testimony of PW1 that he took and later returned a knife from the mutura vendor. He also confirmed that he had undergone a psychiatric assessment prior to being arraigned and was found fit to stand trial.
77. He further conceded that PW2 and PW3 testified that they saw him stabbing the deceased and that he had met them at the scene that day. He also admitted that PW2 stated he took a knife from PW1’s mutura place and that he fled to Mbita after learning that the deceased had died. He confirmed that he was arrested on 20th July, 2021 but maintained that he could not recall what transpired on the day of the incident.
78. The accused did not call any witness and closed the defence case at that stage.
D. THE STATE’S SUBMISSIONS.
79. The State submitted that in his defence, the accused alleged that he was not in a stable state of mind at the material time. The State opposed this defence on the basis that it was legally insufficient, factually unsupported, and amounted to a belated attempt to evade criminal responsibility.
80. The State relied on Section 12 of the Penal Code and submitted that it establishes a narrow defence of insanity requiring proof of two elements, namely: (i) a disease affecting the mind; and (ii) that such disease caused incapacity to understand the nature of the act or that it was wrong at the material time. It was further submitted that the burden of proving insanity lies on the accused on a balance of probabilities.
81. The State submitted that the accused failed to establish disease affecting the mind. It was argued that the medical document produced by the accused was fatally deficient for several reasons: first, it was not prepared by a psychiatrist; second, it indicated intoxication rather than mental disease; third, no psychiatric expert was called and the maker of the document was not called to testify, thereby rendering the evidence inadmissible hearsay with no probative value; and fourth, that voluntary intoxication cannot amount to insanity under Kenyan law.
82. The State further submitted that the accused had produced no psychiatric report or evidence of diagnosis of any mental disorder. It was argued that without credible psychiatric evidence, the defence of insanity could not stand.
83. The State also relied on the accused’s mental assessment report that was submitted to the court prior to plea, submitting that he was found fit to plead. It was contended that this determination demonstrated that he had sufficient mental capacity to understand the proceedings and participate in his defence, and that it directly contradicted his claim of insanity.
84. The State further submitted that the accused had not been prescribed any psychiatric medication or treatment and had no history of psychiatric illness or treatment. It was argued that the absence of psychiatric history undermined the credibility of the defence, which was described as a fabrication.
85. It was also submitted that the defence of insanity was a belated afterthought, as it was not raised during trial but only emerged after the prosecution had closed its case. The State contended that this timing demonstrated that it was not genuine.
86. The State further submitted that even if the medical document were accepted, it only indicated intoxication, which does not satisfy Section 12 of the Penal Code. It was argued that Section 12 requires disease affecting the mind and not voluntary self-induced intoxication. The State emphasized that the law does not allow an accused person to escape liability by voluntarily intoxicating himself and then committing an offence.
87. The State relied on the decision in Kaburu v Republic [2024] KECA 536 (KLR) where the Court stated:
“Section 11 of the Penal Code provides that every person is presumed to be of sound mind and to have been of sound mind at any time which comes in question until the contrary is proved. This provision in our considered view shifts the burden of proving the defence of insanity to the accused person. However, the presumption of sanity is rebuttable, hence the recognition in criminal law, of the defence of insanity.”
88. The State further quoted the same decision where the Court set out Section 12 of the Penal Code as follows:
“A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is, through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.”
89. The State submitted that even if disease affecting the mind were proved, which it denied, the accused was still required to prove that the disease rendered him incapable of understanding what he was doing or knowing that it was wrong. It was argued that Section 12 expressly provides that criminal responsibility may still attach where mental disease does not produce the requisite incapacity.
90. The State concluded that the accused had wholly failed to discharge the burden of proving insanity on a balance of probabilities. It was submitted that he had produced no psychiatric evidence, no proof of incapacity, no medical history, and only relied on intoxication. The State urged the Court to reject the defence of insanity and proceed to consider sentence upon the established evidence of guilt for the murder of David Omondi Haya.
E. THE ACCUSED’S SUBMISSIONS.
91. On his part, the accused submitted that the prosecution evidence, particularly that of PW3, corroborated his defence. It was argued that PW3, in his sworn testimony indicated that he was drinking with the deceased when the accused joined them, which w
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