1. The Accused, Stanley Andeka Murunga alias Noni, is charged with murder contrary to Section 203 as read with Section 204 of the Penal Code; the particulars being that on 14/9/2023, at Emachina area in South Butsotso Location in Kakamega Central Sub-County within Kakamega County, he murdered Agnes Ayuma Omuranga.
2. The Accused pleaded not guilty to the charges, and the prosecution called nine (9) witnesses in a bid to prove its case.
3. PW1 was Flora Omusikoye, who said that she knew Agnes Ayuma, who was her co-wife, as they shared a husband, Christopher Omuranga. She said she also knew the Accused, who is a member of their clan. She recalled that on 14/9/2023 she was asleep in her house at about 9.30 p.m. when she heard an alarm raised by Philister Amutabi, who asked her to get out as there was a problem. She left with her husband to the deceased’s home, accompanied by Japhan Okutoi and Elizabeth Amilo. The deceased’s home was about 80 metres from her house. Outside the deceased’s house, they found Dudu, who informed them that the deceased had cried out that she was being killed by Stanley, who was strangling her. She said that when they reached the deceased’s house, they found the front door locked, the lights off, but the rear door open.
4. PW1 further recounted that she went to the rear door and found Andrew Amutabi, who had opened the door. She found the deceased dead on the seat. Stanley, the Accused, was seated on a different seat, facing the deceased. She tried talking to the deceased, who was not responsive and was bleeding from the nose. She called the village elder who called the Assistant Chief. At about midnight, the Accused was arrested and the body taken to the mortuary. According to PW1, the Accused had started disagreeing with the deceased about three (3) months before the incident.
5. When cross-examined, PW1 said that she did not know when the deceased got married to their husband. She denied the suggestion that she had gone to the deceased’s home to complain that the deceased had called her a witch. She said that on the material night, they met Dudu outside the deceased’s front door, and he was alone, while at the back was Andrew Amutabi, the deceased’s son, who was also alone. In the house were the Accused, who looked drunk, and the deceased.
6. PW2 was Andrew Amutabi, who recounted that on 14/9/2023 at about 8.00 p.m., he was in his brother Michael’s house where he found him having supper with his children. He stayed with them until about 9.00 p.m., when Barnabas Omina, also known as Dudu, told him he had been to his home to buy cigarettes, but no one opened the door. Dudu gave him money for cigarettes, then sat with him to watch the news. At about 9.30 p.m., they went home, and he gave Dudu the cigarettes. PW2 said that as Dudu left, he went behind his house to relieve himself. Dudu started calling PW2's mother, and when she did not respond, he approached the house, which was in darkness, and heard movement from within. PW2 said that he decided to go there but found the front door locked from inside. They went to the rear door, which they found open, and the Accused emerged from within. They asked him why he was emerging from the house, which was in darkness, from the rear door, and demanded that he go back. The Accused refused, but PW2 held him by the neck and wrestled him down, then requested Barnabas to tell PW2’s wife to call his father. Barnabas helped him pull the Accused back to the house. The Accused told the witness that his mother had his DVD, which he had left as security, and Ksh. 500/=, so they held him there.
7. When PW2’s father arrived, he switched on the lights, and they found the deceased on her seat with blood oozing from her nose and ears. PW2 said that when they had forced the Accused into the house, it was dark and they just locked him inside. He was found seated opposite the deceased. The police were called, and they took away the Accused, then collected the body and took it to the mortuary.
8. On cross-examination, PW2 denied that he was a chang’aa brewer. He said that the deceased never brewed chang’aa and he never differed with her over chang’aa customers. He said that Barnabas (Dudu) was his cousin and that since the deceased had directed Dudu to where he had gone, Dudu decided to report to her that they had met.
9. The next witness was Christopher Murunga, who testified as PW3 and recalled that the deceased was his first wife, and PW1 his second wife. He said that on the material date, he was asleep in his second wife’s house when his daughter Christine called him and informed him that Stanley had strangled the deceased. He and PW1 went to the deceased’s house and found the Accused in the house with the deceased dead and bleeding from the nose and ears. He asked the Accused what had happened, and he replied that he could not understand. He had found the house in darkness. He called the nyumba kumi while PW1 went to call the Village Elder. The Clan Elder came and called the police, who came, arrested the Accused and collected the body. According to PW3, before the incident, the Accused had told him that the deceased was holding his DVD as security for a debt which the Accused owed.
10. PW3 said that he attended the post-mortem examination on 18/9/2023 with one Roda Shitandi, a sister to the deceased, whereby they identified the body for autopsy. The Doctor informed them that the deceased had her neck broken. He further said that he had known the Accused since birth.
11. Cross-examined, PW3 said that he had never heard of a dispute between his wives, with the deceased calling PW1 a witch. He denied that it had been ten (10) years without him sleeping in the deceased’s house. He denied any disagreement between PW2 and the deceased. He said that Eunice Omulama was a neighbour whose house was closer to the deceased’s house but denied ever receiving a complaint from Eunice that the deceased had refused to repay a debt of Ksh. 2,000/=. He also said that Dudu did not disagree with the deceased. He said that Flora and Dudu were in the deceased’s house before him. He said that Andrew was also at the scene but said that he did not see Repha Akinyi there.
12. Barnabas Inyende Omina testified as PW4. He testified that on 14/9/2023, he went to the shops to buy cigarettes, but the shop owner directed him to her son, Michael, as she had run out of cigarettes. He went to Michael’s house and found him watching the news. Around 9.30 p.m., after watching the news with Michael and Chango, he bought cigarettes from Wilberforce Omurunga, also known as Chango. He then decided to go and buy chang’aa from the mother, Andayi, who is the deceased herein. As he approached the house, he heard screams from the house. He called Chango and informed him. They tried to open the door in vain, as it was locked from inside. They then went to the back door and, on pushing it, found Stanley Murunga trying to get out. They pushed him back in. Chango asked the witness to call his wife and send her to call his father. The father came and, on arrival, called the nyumba kumi.
13. PW4 said that they found the deceased seated and he saw lacerations on the left side of her forehead. He said that the house was dark and when they switched on the sitting room lights, they saw the Accused, who was drunk. He said that the Accused, whose house was three (3) compounds away from the deceased’s house, was known to him since childhood.
14. On cross-examination, PW4 said that Andayi’s chang’aa business was normally open and that at around 8.40 p.m., he knew that he could find chang’aa. He said he was not the only customer and other customers could get in. Customers normally entered through the front door, and he could not know how many customers had gone in. On re-examination, PW4 said that he heard the deceased scream “Noni, you are strangling me” and that they did not meet anyone else at the scene.
15. PW5 was Phelistus Omuganda, who recalled that on the material day she was in her house with her children and husband, Andrew Omutabi. After the meal, he told her that he was going to his brother Michael’s house to watch football. She locked the door and went to sleep, but later heard her mother-in-law call and ask for her husband, Andrew. She informed her that he had gone to watch TV. At around 8.40 p.m., she heard her husband’s knock. He was with Dudu, alias Barnabas. He asked her why she had not heard Dudu knocking at the door. She then went back to sleep as her husband went to watch TV. Shortly thereafter, Dudu came and informed her that Andrew was calling her. She went out, and Andrew sent her to call her father-in-law. She went and did as requested, and they proceeded to the deceased’s house. They entered through the back door because the front door was locked. They found the house in darkness. Her father-in-law switched on the light. PW1 called out, “Agnes! Agnes! ".They found Agnes seated on the seat with injuries on the left side of her face, with blood oozing from her neck. When the door was opened, Stanley, the Accused, also known as “Noni”, was seated there. Barnabas was also in the house. PW5 hesitantly said that the deceased used to sell chang’aa as a business, but that night she did not find chang’aa on the table.
16. When cross-examined, PW5 said that she knew Barnabas alias Dudu, who went to call her from her house. She said that after she called her father-in-law, she, her father-in-law, her husband and Dudu ended up outside the deceased’s house. Godfrey, the nyumba kumi elder, was also present. According to her, when she first arrived, she found her husband and Dudu pushing the Accused into the house. She denied any knowledge that the deceased and Flora Amutabi were in bad terms or the suggestion that her husband had complained that the deceased did not like her.
17. Eunice Mamboleo Mulama, a fish trader, gave evidence as PW6. According to her, on 15/9/2023, she learnt that Agnes Omuranga, a former customer, had died after someone posted her picture online. She went to the deceased’s house and asked the deceased’s husband what was going on. The deceased lived about 300 metres away from her. She did not attend the deceased’s burial because she was in police custody, having been summoned to record a statement concerning the deceased. PW6 said that she knew the Accused, Stanley Andeka, who was a neighbour.
18. On cross-examination, PW6 said she was arrested and held in police custody for eight (8) days while the police investigated whether she was involved in the murder of the deceased. She said that at the time of the incident, the deceased did not owe her any money. Andrew Omutabi and Flora, the deceased’s co-wife, were also arrested. She denied paying Ksh. 20,000/= to be set free.
19. PW7 was Dr. Dixon Mchana, the Consultant Pathologist who carried out the autopsy on 18/9/2023. He produced the post-mortem report and confirmed that the body was identified by Christopher Amutabi and Rhoda Shitandi. On examination, he established that the body was that of a female, mildly obese and 162 cm tall, with the approximate time of death being three (3) days prior to the date of autopsy. On external examination, the fingers, lips and tongue were bluish in colour. There were non-extensive abrasions/contusions on the face and neck and bleeding under the skin and on the front of the left chest.
20. On internal examination, PW7 found extensive bleeding under the skin involving the face and the front of the neck. There was a fracture involving the left side of the upper neck bone. The lungs were full of air, and there was froth in the airway. Her stomach contained digested food. On her head, there was extensive bleeding under the skin involving the back of the skull. Following the examination, the Pathologist concluded that the cause of death was asphyxia secondary to manual strangulation. He clarified that the deceased was suffocated by the use of the hand, which covered her mouth and nose, and that more force was used on the neck and chest, as it appears the deceased fought.
21. The next witness, PW8, was Chief Inspector Daniel Malucha, the Officer-in-charge of Forensic Crime Investigation in Western Region. After confirming his qualifications and credentials, he testified that on 14/9/2023, the DCIO requested him, in reference to OB No. 22/14/09/2023, to carry out forensic documentation and processing of the scene of a suspected murder incident at Emachina village. He produced a set of four (4) photographs he took, comprising close-up views of the deceased seated on a chair, her blouse open and facing upwards. She was dressed in a black skirt and red blouse and was barefoot; another photograph was a close-up view of the deceased indicating her facial appearance, with some bruises on the upper right extremities of the face. The third photograph was also a close-up view indicating the bruises and swollen face. In PW8’s opinion, the primary scene of the incident was at the deceased’s dwelling house where she was found seated lifeless with bruises on the cheek and suspected blood oozing from the nose. PW8 confirmed that the photographs, which he processed under his close supervision, were not interfered with, as they had been in his custody. He also produced a certificate confirming his assertion, as well as a report.
22. On cross-examination, PW8 said that the date of the report indicated 14/5/2024, but this was an error which was corrected to read 14/9/2023, as he took the photographs on 14/9/2023 at 11.00 a.m. On re-examination, he clarified that he did the report after processing the photographs but was not certain when they were printed, as they were printed in Nairobi.
23. PW9 was Police Constable Bernard Gowa from DCI Kakamega. He recalled that on 14/9/2023, at around 10.00 p.m., he received a report of a murder case at Bukura within Kakamega County. He and his fellow officers proceeded to the scene, where they found that Agnes Ayuma had been killed. They processed the scene and took photographs. The deceased was seated with blood oozing from her nose. Members of the public were at the scene, and they had arrested a suspect, whom they handed over to them. They took the body to Kakamega Hospital mortuary, then commenced investigations. On 18/9/2023, a post-mortem was done by Dr. Mchana, where it was established that the deceased was strangled. They interrogated the Accused, who confessed that he had killed the deceased, and a confession statement was taken. On further investigation, they established that the persons the Accused alleged had sent him to kill the deceased had no connection to the case. PW9 said that he was present when the photographs were taken. He identified the Accused as the suspect who was handed over to them after being arrested by Andrew, Flora, and the deceased’s husband. They established that the deceased used to sell chang’aa from her house, which had a front door and a back door.
24. On cross-examination, PW9 said that he indicated in the request for post-mortem that the body was found on 15/9/2023 at 9.30 a.m. He confirmed that he indicated that Christopher Amutabi and Rodah Shitandi identified the body. However, Christopher Amutabi did not refer to the identification in his statement to the police. He denied the suggestion that the photographs were taken on 15/9/2023 at 11.00 a.m. as stated by PW8. He said the suspects were PW1, Flora Omusikoye, PW2, and the Accused, and that they arrested PW1 and PW2 on 20/9/2023, held them for fourteen (14) days during which they conducted investigations, and decided not to charge the two. He confirmed documenting the visit to the scene but not the steps taken during the investigations. He denied putting a price tag on the suspects’ freedom or demanding Kshs. 40,000/= from PW1 to buy her freedom. He denied the suggestion that the Accused raised only Kshs. 5,000/= out of the Kshs. 20,000/= demanded and hence his presence in the dock. He said that he did not receive any recommendation from the ODPP to charge PW1 and PW2. On re-examination, he confirmed that they received recommendations from the ODPP to charge the Accused. He said that the ODPP advised that the confession statement by the Accused could not be relied upon without corroboration.
25. In his defence, the Accused gave a sworn statement and said that on 14/9/2023, after a normal work day in Jua Kali, he passed by Mzee Tom Nyende’s place, took two (2) cups of chang’aa, then went to Agnes Ayuma’s place to look for cigarettes. On arrival, he found his fellow drunkards. He ordered a cup of chang’aa and some cigarettes, then sat down to drink his chang’aa. According to him, Christopher Murunga was present in the house, seated and drinking with his friends. Also present were Flora the deceased’s co-wife, and Eunice Mulama. There were a total of six (6) people in the house, but he only recognized the ones he mentioned. The Accused said that after drinking the chang’aa, he could not recall how he got out of his seat, as he regained consciousness at Kakamega Police Station at around 5.00 a.m., where he was informed that he had been arrested for murder, which he denied because he was not aware of the offence due to drunkenness. He denied killing the deceased and said she did not owe him money. He said that the witnesses who claimed to have caught him while he was fleeing did not tell the truth.
26. On cross-examination, he said that Mzee Tom, in whose house he drank at around 5.00 p.m., was not his witness. He also said that he went to the deceased’s place at around 6.00 p.m., where he drank one (1) cup of chang’aa. He said he did not see Barnabas Inyende at the house. He denied that the name “Noni” referred to him and said that PW1 lied to court. He said he did not remember when he was arrested or how he got out of the deceased’s house.
27. At the close of the defence case, the defence Counsel said he would not file written submissions, and the prosecution did not file any submissions.
Analysis and Determination
28. The ingredients to be proven in a case of murder under Section 203 of the Penal Code are:-
(a) That the person named as deceased died.
(b) That the death was unlawful.
(c) That the accused person was responsible for the act or omission that led to the death.
(d) That there was malice aforethought.
29. The burden of proof in a criminal trial lies with the Prosecution, which is required to prove, beyond reasonable doubt, that the Accused person is responsible for the offence.
30. The Prosecution adduced evidence that Agnes Ayuma Omuranga was found dead in her house. PW3 testified that he attended her post-mortem and, together with Rodah Shitandi, her sister, identified the body. The post-mortem report, which was produced by PW7, confirmed PW3’s testimony. The post-mortem confirmed that the deceased died.
31. The cause of death was established during the autopsy, which confirmed the presence of multiple injuries, notably injuries consistent with manual strangulation. The Pathologist attributed the death to asphyxia secondary to manual strangulation.
32. The extensive injuries on the deceased’s body are indicative of assault. The clarification by the Pathologist that, apart from the force on the neck and chest, the deceased was suffocated by the use of the hand to cover her mouth points to an unlawful act, as there was no evidence to suggest that the assault was justified.
33. There was no eyewitness to the murder, and so the Prosecution’s case rested on circumstantial evidence, primarily, the fact that the Accused was found emerging from the deceased’s house in which her dead body, which had visibly fresh injuries, was found seated on a sofa in the dark.
34. The locus classicus case on reliance on circumstantial evidence is Kipkering Arap Koskei & Another v. Republic [1949] EACA 135, cited by the Supreme Court in Republic v. Mohammed & Another [2019] KESC 48 (KLR) when the apex Court urged the exercise of caution in basing a conviction solely on circumstantial evidence and held:-
“To be the sole basis of a conviction in a criminal charge, circumstantial evidence should also not only be relevant, reasonable and not speculative, but also, in the words of the Indian Supreme Court, “the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established….” As was stated in the case of Kipkering Arap Koskei & Another v. R (1949) 16 EACA 135, a locus classicus case on reliance of circumstantial evidence in our jurisdiction, for guilt to be inferred from circumstantial evidence the “... the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt, …”
35. The test for circumstantial evidence was also considered in Abanga Alias Onyango v. Republic Criminal Appeal No. 32 of 1990 [1991] KLR when the Court of Appeal held that:-
“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”
36. From PW4’s testimony, he last saw the deceased at around 9.40 p.m. and when later he went back to the deceased’s house in the company of Wilberforce Omurunga alias Chango, when they found the Accused trying to escape from the dark house and, on pushing him back inside, found the body of the deceased.
37. The Court is alive to the discrepancies in the Prosecution witnesses’ testimonies. It is well settled that contradictions and discrepancies are expected in any trial. This is because not every person recalls events or narrates events the same way. Some witnesses have better memory and coherence while others tend to have a distorted recollection of events. In any event, uniformity in evidence may point to witness coaching rather than credibility. While minor memory lapses do not discredit a witness, fatal contradictions relating to material facts and indicating deliberate untruthfulness are fatal. Unexplained grave contradictions typically lead to the rejection of that evidence, whereas minor inconsistencies are ignored. In Philip Nzaka Watu v. Republic [2016] KECA 696 (KLR), the Court of Appeal rendered itself thus:-
“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.
However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
38. One discrepancy concerned the name of the witness who was with PW4 at the material time. Whereas all the other Prosecution witnesses referred to him as Andrew Amutabi and he testified as such, PW4 called him Wilberforce Omurunga, alias Chango. On reviewing the evidence, PW4's testimony matched, in material respects, that of Andrew Amutabi (PW2) and of Amutabi’s wife, who testified as PW5. Moreover, the Accused did not challenge PW2’s identity, nor did he put it to PW5 that the husband who had sent him to call her was not named Andrew. In the end, I have no doubt that the person PW4 referred to as Chango was one and the same as Andrew Amutabi, PW2. On the apparent contradiction among the witnesses on the issue of chang’aa, it is trite that being a chang’aa brewer and being a chang’aa vendor are distinct activities. PW2 denied the suggestion that the deceased was a chang’aa brewer. However, it was not put to him that she was a vendor, and the court cannot conclude that there was a contradiction on that account. Another discrepancy concerned the post-mortem form, which indicated that the body was found on 15/9/2023 at 2130 hours. However, all the other evidence pointed to the death having occurred on 14/9/2023, and the scene being processed the same date at 10.00pm. Upon careful analysis, I find the discrepancy attributable to human error. All in all, the discrepancies and contradictions are not substantial and fundamental to the main issues and are therefore immaterial to the case.
39. Despite the Accused’s assertion of ignorance, his sole presence in the deceased’s house at the precise moment the deceased was heard screaming and found dead leads to the inevitable conclusion that he was responsible for her death. There was no evidence that any other person emerged from the house before the Accused was found there. I note that the front door was locked and so there was no possibility that third parties were in the house at the material time.
40. Although the Accused claimed to have been at the deceased’s house with PW1, PW3 and PW6 at 6.00 pm, he did not challenge the said witnesses during cross-examination nor put it to them that they were present in the deceased’s house on the material night. This failure undermined his defence and rendered it incredible. In my mind, it appears the defence was an afterthought. After careful consideration of the said defence, I find that it did not dislodge the prosecution’s case and that there was cogent and credible evidence that the Accused was properly identified as the person who inflicted the fatal injuries on the deceased. The circumstances under which he was found point unerringly to an inference of guilt.
41. Regarding the Accused’s claim that he was too drunk to know what transpired on the material date, the fact that the Prosecution witnesses said he looked drunk cannot be taken to mean that he was incapable of killing the deceased, more so because the Accused did not challenge PW2 on his testimony that they had to wrestle him down and pull him back to the house. A drunken person would not have put up a resistance that would necessitate him being wrestled down. Also, at no point during the cross-examination of any of the witnesses was it put to them that the Accused was so drunk that he could not know what was going on.
42. As to whether the Accused acted with malice aforethought, the court is guided by Section 206 of the Penal Code which provides that:-
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
43. Malice aforethought can be express or implied. Where it is not express, the court can draw an inference of malice aforethought from, inter alia, the circumstances of the case and the nature of the injuries and extent of the attack, including the area of the body targeted. The Court of Appeal in the case of Carilus Omondi Mboga & another v Republic [2019] KECA 234 (KLR) cited with authority the case of Republic v. Tubere S/O Ochen [1945] 12 EACA 63 when determining the elements to be considered in order to prove existence of malice aforethought and reaffirmed that:-
“The court acknowledged that in determining whether malice aforethought has been proved the following elements should be considered: the nature of the weapon used; the manner in which it was used; the part of the body targeted; the nature of the injuries inflicted either a single stab/wound or multiple injuries; the conduct of the accused before, during and after the incident.”
44. I have taken note of the testimony by the Prosecution witnesses that the Accused owed the deceased some money and that the deceased kept his DVD as security. It was not clear whether the said DVD provided a motive for the killing. However, from the post-mortem report, the deceased was subjected to manual strangulation to the extent that she suffered a fracture of the hyoid bone. Manual strangulation to the point of one sustaining a fracture is indicative of an intention to do grievous harm or to cause death to the victim.
45. The photographs produced in evidence confirm a brutal attack on the deceased. I am satisfied that the assailant intended to cause grievous harm or death to the
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2. The Accused pleaded not guilty to the charges, and the prosecution called nine (9) witnesses in a bid to prove its case.
3. PW1 was Flora Omusikoye, who said that she knew Agnes Ayuma, who was her co-wife, as they shared a husband, Christopher Omuranga. She said she also knew the Accused, who is a member of their clan. She recalled that on 14/9/2023 she was asleep in her house at about 9.30 p.m. when she heard an alarm raised by Philister Amutabi, who asked her to get out as there was a problem. She left with her husband to the deceased’s home, accompanied by Japhan Okutoi and Elizabeth Amilo. The deceased’s home was about 80 metres from her house. Outside the deceased’s house, they found Dudu, who informed them that the deceased had cried out that she was being killed by Stanley, who was strangling her. She said that when they reached the deceased’s house, they found the front door locked, the lights off, but the rear door open.
4. PW1 further recounted that she went to the rear door and found Andrew Amutabi, who had opened the door. She found the deceased dead on the seat. Stanley, the Accused, was seated on a different seat, facing the deceased. She tried talking to the deceased, who was not responsive and was bleeding from the nose. She called the village elder who called the Assistant Chief. At about midnight, the Accused was arrested and the body taken to the mortuary. According to PW1, the Accused had started disagreeing with the deceased about three (3) months before the incident.
5. When cross-examined, PW1 said that she did not know when the deceased got married to their husband. She denied the suggestion that she had gone to the deceased’s home to complain that the deceased had called her a witch. She said that on the material night, they met Dudu outside the deceased’s front door, and he was alone, while at the back was Andrew Amutabi, the deceased’s son, who was also alone. In the house were the Accused, who looked drunk, and the deceased.
6. PW2 was Andrew Amutabi, who recounted that on 14/9/2023 at about 8.00 p.m., he was in his brother Michael’s house where he found him having supper with his children. He stayed with them until about 9.00 p.m., when Barnabas Omina, also known as Dudu, told him he had been to his home to buy cigarettes, but no one opened the door. Dudu gave him money for cigarettes, then sat with him to watch the news. At about 9.30 p.m., they went home, and he gave Dudu the cigarettes. PW2 said that as Dudu left, he went behind his house to relieve himself. Dudu started calling PW2's mother, and when she did not respond, he approached the house, which was in darkness, and heard movement from within. PW2 said that he decided to go there but found the front door locked from inside. They went to the rear door, which they found open, and the Accused emerged from within. They asked him why he was emerging from the house, which was in darkness, from the rear door, and demanded that he go back. The Accused refused, but PW2 held him by the neck and wrestled him down, then requested Barnabas to tell PW2’s wife to call his father. Barnabas helped him pull the Accused back to the house. The Accused told the witness that his mother had his DVD, which he had left as security, and Ksh. 500/=, so they held him there.
7. When PW2’s father arrived, he switched on the lights, and they found the deceased on her seat with blood oozing from her nose and ears. PW2 said that when they had forced the Accused into the house, it was dark and they just locked him inside. He was found seated opposite the deceased. The police were called, and they took away the Accused, then collected the body and took it to the mortuary.
8. On cross-examination, PW2 denied that he was a chang’aa brewer. He said that the deceased never brewed chang’aa and he never differed with her over chang’aa customers. He said that Barnabas (Dudu) was his cousin and that since the deceased had directed Dudu to where he had gone, Dudu decided to report to her that they had met.
9. The next witness was Christopher Murunga, who testified as PW3 and recalled that the deceased was his first wife, and PW1 his second wife. He said that on the material date, he was asleep in his second wife’s house when his daughter Christine called him and informed him that Stanley had strangled the deceased. He and PW1 went to the deceased’s house and found the Accused in the house with the deceased dead and bleeding from the nose and ears. He asked the Accused what had happened, and he replied that he could not understand. He had found the house in darkness. He called the nyumba kumi while PW1 went to call the Village Elder. The Clan Elder came and called the police, who came, arrested the Accused and collected the body. According to PW3, before the incident, the Accused had told him that the deceased was holding his DVD as security for a debt which the Accused owed.
10. PW3 said that he attended the post-mortem examination on 18/9/2023 with one Roda Shitandi, a sister to the deceased, whereby they identified the body for autopsy. The Doctor informed them that the deceased had her neck broken. He further said that he had known the Accused since birth.
11. Cross-examined, PW3 said that he had never heard of a dispute between his wives, with the deceased calling PW1 a witch. He denied that it had been ten (10) years without him sleeping in the deceased’s house. He denied any disagreement between PW2 and the deceased. He said that Eunice Omulama was a neighbour whose house was closer to the deceased’s house but denied ever receiving a complaint from Eunice that the deceased had refused to repay a debt of Ksh. 2,000/=. He also said that Dudu did not disagree with the deceased. He said that Flora and Dudu were in the deceased’s house before him. He said that Andrew was also at the scene but said that he did not see Repha Akinyi there.
12. Barnabas Inyende Omina testified as PW4. He testified that on 14/9/2023, he went to the shops to buy cigarettes, but the shop owner directed him to her son, Michael, as she had run out of cigarettes. He went to Michael’s house and found him watching the news. Around 9.30 p.m., after watching the news with Michael and Chango, he bought cigarettes from Wilberforce Omurunga, also known as Chango. He then decided to go and buy chang’aa from the mother, Andayi, who is the deceased herein. As he approached the house, he heard screams from the house. He called Chango and informed him. They tried to open the door in vain, as it was locked from inside. They then went to the back door and, on pushing it, found Stanley Murunga trying to get out. They pushed him back in. Chango asked the witness to call his wife and send her to call his father. The father came and, on arrival, called the nyumba kumi.
13. PW4 said that they found the deceased seated and he saw lacerations on the left side of her forehead. He said that the house was dark and when they switched on the sitting room lights, they saw the Accused, who was drunk. He said that the Accused, whose house was three (3) compounds away from the deceased’s house, was known to him since childhood.
14. On cross-examination, PW4 said that Andayi’s chang’aa business was normally open and that at around 8.40 p.m., he knew that he could find chang’aa. He said he was not the only customer and other customers could get in. Customers normally entered through the front door, and he could not know how many customers had gone in. On re-examination, PW4 said that he heard the deceased scream “Noni, you are strangling me” and that they did not meet anyone else at the scene.
15. PW5 was Phelistus Omuganda, who recalled that on the material day she was in her house with her children and husband, Andrew Omutabi. After the meal, he told her that he was going to his brother Michael’s house to watch football. She locked the door and went to sleep, but later heard her mother-in-law call and ask for her husband, Andrew. She informed her that he had gone to watch TV. At around 8.40 p.m., she heard her husband’s knock. He was with Dudu, alias Barnabas. He asked her why she had not heard Dudu knocking at the door. She then went back to sleep as her husband went to watch TV. Shortly thereafter, Dudu came and informed her that Andrew was calling her. She went out, and Andrew sent her to call her father-in-law. She went and did as requested, and they proceeded to the deceased’s house. They entered through the back door because the front door was locked. They found the house in darkness. Her father-in-law switched on the light. PW1 called out, “Agnes! Agnes! ".They found Agnes seated on the seat with injuries on the left side of her face, with blood oozing from her neck. When the door was opened, Stanley, the Accused, also known as “Noni”, was seated there. Barnabas was also in the house. PW5 hesitantly said that the deceased used to sell chang’aa as a business, but that night she did not find chang’aa on the table.
16. When cross-examined, PW5 said that she knew Barnabas alias Dudu, who went to call her from her house. She said that after she called her father-in-law, she, her father-in-law, her husband and Dudu ended up outside the deceased’s house. Godfrey, the nyumba kumi elder, was also present. According to her, when she first arrived, she found her husband and Dudu pushing the Accused into the house. She denied any knowledge that the deceased and Flora Amutabi were in bad terms or the suggestion that her husband had complained that the deceased did not like her.
17. Eunice Mamboleo Mulama, a fish trader, gave evidence as PW6. According to her, on 15/9/2023, she learnt that Agnes Omuranga, a former customer, had died after someone posted her picture online. She went to the deceased’s house and asked the deceased’s husband what was going on. The deceased lived about 300 metres away from her. She did not attend the deceased’s burial because she was in police custody, having been summoned to record a statement concerning the deceased. PW6 said that she knew the Accused, Stanley Andeka, who was a neighbour.
18. On cross-examination, PW6 said she was arrested and held in police custody for eight (8) days while the police investigated whether she was involved in the murder of the deceased. She said that at the time of the incident, the deceased did not owe her any money. Andrew Omutabi and Flora, the deceased’s co-wife, were also arrested. She denied paying Ksh. 20,000/= to be set free.
19. PW7 was Dr. Dixon Mchana, the Consultant Pathologist who carried out the autopsy on 18/9/2023. He produced the post-mortem report and confirmed that the body was identified by Christopher Amutabi and Rhoda Shitandi. On examination, he established that the body was that of a female, mildly obese and 162 cm tall, with the approximate time of death being three (3) days prior to the date of autopsy. On external examination, the fingers, lips and tongue were bluish in colour. There were non-extensive abrasions/contusions on the face and neck and bleeding under the skin and on the front of the left chest.
20. On internal examination, PW7 found extensive bleeding under the skin involving the face and the front of the neck. There was a fracture involving the left side of the upper neck bone. The lungs were full of air, and there was froth in the airway. Her stomach contained digested food. On her head, there was extensive bleeding under the skin involving the back of the skull. Following the examination, the Pathologist concluded that the cause of death was asphyxia secondary to manual strangulation. He clarified that the deceased was suffocated by the use of the hand, which covered her mouth and nose, and that more force was used on the neck and chest, as it appears the deceased fought.
21. The next witness, PW8, was Chief Inspector Daniel Malucha, the Officer-in-charge of Forensic Crime Investigation in Western Region. After confirming his qualifications and credentials, he testified that on 14/9/2023, the DCIO requested him, in reference to OB No. 22/14/09/2023, to carry out forensic documentation and processing of the scene of a suspected murder incident at Emachina village. He produced a set of four (4) photographs he took, comprising close-up views of the deceased seated on a chair, her blouse open and facing upwards. She was dressed in a black skirt and red blouse and was barefoot; another photograph was a close-up view of the deceased indicating her facial appearance, with some bruises on the upper right extremities of the face. The third photograph was also a close-up view indicating the bruises and swollen face. In PW8’s opinion, the primary scene of the incident was at the deceased’s dwelling house where she was found seated lifeless with bruises on the cheek and suspected blood oozing from the nose. PW8 confirmed that the photographs, which he processed under his close supervision, were not interfered with, as they had been in his custody. He also produced a certificate confirming his assertion, as well as a report.
22. On cross-examination, PW8 said that the date of the report indicated 14/5/2024, but this was an error which was corrected to read 14/9/2023, as he took the photographs on 14/9/2023 at 11.00 a.m. On re-examination, he clarified that he did the report after processing the photographs but was not certain when they were printed, as they were printed in Nairobi.
23. PW9 was Police Constable Bernard Gowa from DCI Kakamega. He recalled that on 14/9/2023, at around 10.00 p.m., he received a report of a murder case at Bukura within Kakamega County. He and his fellow officers proceeded to the scene, where they found that Agnes Ayuma had been killed. They processed the scene and took photographs. The deceased was seated with blood oozing from her nose. Members of the public were at the scene, and they had arrested a suspect, whom they handed over to them. They took the body to Kakamega Hospital mortuary, then commenced investigations. On 18/9/2023, a post-mortem was done by Dr. Mchana, where it was established that the deceased was strangled. They interrogated the Accused, who confessed that he had killed the deceased, and a confession statement was taken. On further investigation, they established that the persons the Accused alleged had sent him to kill the deceased had no connection to the case. PW9 said that he was present when the photographs were taken. He identified the Accused as the suspect who was handed over to them after being arrested by Andrew, Flora, and the deceased’s husband. They established that the deceased used to sell chang’aa from her house, which had a front door and a back door.
24. On cross-examination, PW9 said that he indicated in the request for post-mortem that the body was found on 15/9/2023 at 9.30 a.m. He confirmed that he indicated that Christopher Amutabi and Rodah Shitandi identified the body. However, Christopher Amutabi did not refer to the identification in his statement to the police. He denied the suggestion that the photographs were taken on 15/9/2023 at 11.00 a.m. as stated by PW8. He said the suspects were PW1, Flora Omusikoye, PW2, and the Accused, and that they arrested PW1 and PW2 on 20/9/2023, held them for fourteen (14) days during which they conducted investigations, and decided not to charge the two. He confirmed documenting the visit to the scene but not the steps taken during the investigations. He denied putting a price tag on the suspects’ freedom or demanding Kshs. 40,000/= from PW1 to buy her freedom. He denied the suggestion that the Accused raised only Kshs. 5,000/= out of the Kshs. 20,000/= demanded and hence his presence in the dock. He said that he did not receive any recommendation from the ODPP to charge PW1 and PW2. On re-examination, he confirmed that they received recommendations from the ODPP to charge the Accused. He said that the ODPP advised that the confession statement by the Accused could not be relied upon without corroboration.
25. In his defence, the Accused gave a sworn statement and said that on 14/9/2023, after a normal work day in Jua Kali, he passed by Mzee Tom Nyende’s place, took two (2) cups of chang’aa, then went to Agnes Ayuma’s place to look for cigarettes. On arrival, he found his fellow drunkards. He ordered a cup of chang’aa and some cigarettes, then sat down to drink his chang’aa. According to him, Christopher Murunga was present in the house, seated and drinking with his friends. Also present were Flora the deceased’s co-wife, and Eunice Mulama. There were a total of six (6) people in the house, but he only recognized the ones he mentioned. The Accused said that after drinking the chang’aa, he could not recall how he got out of his seat, as he regained consciousness at Kakamega Police Station at around 5.00 a.m., where he was informed that he had been arrested for murder, which he denied because he was not aware of the offence due to drunkenness. He denied killing the deceased and said she did not owe him money. He said that the witnesses who claimed to have caught him while he was fleeing did not tell the truth.
26. On cross-examination, he said that Mzee Tom, in whose house he drank at around 5.00 p.m., was not his witness. He also said that he went to the deceased’s place at around 6.00 p.m., where he drank one (1) cup of chang’aa. He said he did not see Barnabas Inyende at the house. He denied that the name “Noni” referred to him and said that PW1 lied to court. He said he did not remember when he was arrested or how he got out of the deceased’s house.
27. At the close of the defence case, the defence Counsel said he would not file written submissions, and the prosecution did not file any submissions.
Analysis and Determination
28. The ingredients to be proven in a case of murder under Section 203 of the Penal Code are:-
(a) That the person named as deceased died.
(b) That the death was unlawful.
(c) That the accused person was responsible for the act or omission that led to the death.
(d) That there was malice aforethought.
29. The burden of proof in a criminal trial lies with the Prosecution, which is required to prove, beyond reasonable doubt, that the Accused person is responsible for the offence.
30. The Prosecution adduced evidence that Agnes Ayuma Omuranga was found dead in her house. PW3 testified that he attended her post-mortem and, together with Rodah Shitandi, her sister, identified the body. The post-mortem report, which was produced by PW7, confirmed PW3’s testimony. The post-mortem confirmed that the deceased died.
31. The cause of death was established during the autopsy, which confirmed the presence of multiple injuries, notably injuries consistent with manual strangulation. The Pathologist attributed the death to asphyxia secondary to manual strangulation.
32. The extensive injuries on the deceased’s body are indicative of assault. The clarification by the Pathologist that, apart from the force on the neck and chest, the deceased was suffocated by the use of the hand to cover her mouth points to an unlawful act, as there was no evidence to suggest that the assault was justified.
33. There was no eyewitness to the murder, and so the Prosecution’s case rested on circumstantial evidence, primarily, the fact that the Accused was found emerging from the deceased’s house in which her dead body, which had visibly fresh injuries, was found seated on a sofa in the dark.
34. The locus classicus case on reliance on circumstantial evidence is Kipkering Arap Koskei & Another v. Republic [1949] EACA 135, cited by the Supreme Court in Republic v. Mohammed & Another [2019] KESC 48 (KLR) when the apex Court urged the exercise of caution in basing a conviction solely on circumstantial evidence and held:-
“To be the sole basis of a conviction in a criminal charge, circumstantial evidence should also not only be relevant, reasonable and not speculative, but also, in the words of the Indian Supreme Court, “the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established….” As was stated in the case of Kipkering Arap Koskei & Another v. R (1949) 16 EACA 135, a locus classicus case on reliance of circumstantial evidence in our jurisdiction, for guilt to be inferred from circumstantial evidence the “... the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt, …”
35. The test for circumstantial evidence was also considered in Abanga Alias Onyango v. Republic Criminal Appeal No. 32 of 1990 [1991] KLR when the Court of Appeal held that:-
“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”
36. From PW4’s testimony, he last saw the deceased at around 9.40 p.m. and when later he went back to the deceased’s house in the company of Wilberforce Omurunga alias Chango, when they found the Accused trying to escape from the dark house and, on pushing him back inside, found the body of the deceased.
37. The Court is alive to the discrepancies in the Prosecution witnesses’ testimonies. It is well settled that contradictions and discrepancies are expected in any trial. This is because not every person recalls events or narrates events the same way. Some witnesses have better memory and coherence while others tend to have a distorted recollection of events. In any event, uniformity in evidence may point to witness coaching rather than credibility. While minor memory lapses do not discredit a witness, fatal contradictions relating to material facts and indicating deliberate untruthfulness are fatal. Unexplained grave contradictions typically lead to the rejection of that evidence, whereas minor inconsistencies are ignored. In Philip Nzaka Watu v. Republic [2016] KECA 696 (KLR), the Court of Appeal rendered itself thus:-
“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.
However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
38. One discrepancy concerned the name of the witness who was with PW4 at the material time. Whereas all the other Prosecution witnesses referred to him as Andrew Amutabi and he testified as such, PW4 called him Wilberforce Omurunga, alias Chango. On reviewing the evidence, PW4's testimony matched, in material respects, that of Andrew Amutabi (PW2) and of Amutabi’s wife, who testified as PW5. Moreover, the Accused did not challenge PW2’s identity, nor did he put it to PW5 that the husband who had sent him to call her was not named Andrew. In the end, I have no doubt that the person PW4 referred to as Chango was one and the same as Andrew Amutabi, PW2. On the apparent contradiction among the witnesses on the issue of chang’aa, it is trite that being a chang’aa brewer and being a chang’aa vendor are distinct activities. PW2 denied the suggestion that the deceased was a chang’aa brewer. However, it was not put to him that she was a vendor, and the court cannot conclude that there was a contradiction on that account. Another discrepancy concerned the post-mortem form, which indicated that the body was found on 15/9/2023 at 2130 hours. However, all the other evidence pointed to the death having occurred on 14/9/2023, and the scene being processed the same date at 10.00pm. Upon careful analysis, I find the discrepancy attributable to human error. All in all, the discrepancies and contradictions are not substantial and fundamental to the main issues and are therefore immaterial to the case.
39. Despite the Accused’s assertion of ignorance, his sole presence in the deceased’s house at the precise moment the deceased was heard screaming and found dead leads to the inevitable conclusion that he was responsible for her death. There was no evidence that any other person emerged from the house before the Accused was found there. I note that the front door was locked and so there was no possibility that third parties were in the house at the material time.
40. Although the Accused claimed to have been at the deceased’s house with PW1, PW3 and PW6 at 6.00 pm, he did not challenge the said witnesses during cross-examination nor put it to them that they were present in the deceased’s house on the material night. This failure undermined his defence and rendered it incredible. In my mind, it appears the defence was an afterthought. After careful consideration of the said defence, I find that it did not dislodge the prosecution’s case and that there was cogent and credible evidence that the Accused was properly identified as the person who inflicted the fatal injuries on the deceased. The circumstances under which he was found point unerringly to an inference of guilt.
41. Regarding the Accused’s claim that he was too drunk to know what transpired on the material date, the fact that the Prosecution witnesses said he looked drunk cannot be taken to mean that he was incapable of killing the deceased, more so because the Accused did not challenge PW2 on his testimony that they had to wrestle him down and pull him back to the house. A drunken person would not have put up a resistance that would necessitate him being wrestled down. Also, at no point during the cross-examination of any of the witnesses was it put to them that the Accused was so drunk that he could not know what was going on.
42. As to whether the Accused acted with malice aforethought, the court is guided by Section 206 of the Penal Code which provides that:-
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
43. Malice aforethought can be express or implied. Where it is not express, the court can draw an inference of malice aforethought from, inter alia, the circumstances of the case and the nature of the injuries and extent of the attack, including the area of the body targeted. The Court of Appeal in the case of Carilus Omondi Mboga & another v Republic [2019] KECA 234 (KLR) cited with authority the case of Republic v. Tubere S/O Ochen [1945] 12 EACA 63 when determining the elements to be considered in order to prove existence of malice aforethought and reaffirmed that:-
“The court acknowledged that in determining whether malice aforethought has been proved the following elements should be considered: the nature of the weapon used; the manner in which it was used; the part of the body targeted; the nature of the injuries inflicted either a single stab/wound or multiple injuries; the conduct of the accused before, during and after the incident.”
44. I have taken note of the testimony by the Prosecution witnesses that the Accused owed the deceased some money and that the deceased kept his DVD as security. It was not clear whether the said DVD provided a motive for the killing. However, from the post-mortem report, the deceased was subjected to manual strangulation to the extent that she suffered a fracture of the hyoid bone. Manual strangulation to the point of one sustaining a fracture is indicative of an intention to do grievous harm or to cause death to the victim.
45. The photographs produced in evidence confirm a brutal attack on the deceased. I am satisfied that the assailant intended to cause grievous harm or death to the
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