Wyckliffe Ochieng Odoyo was charged with the offense of Murder contrary to section 203 as read with section 204 of the Penal code.
The particulars of the offense are that on the 16th day of July 2022 at around 11:00 P.m. at Nyakuru Centre, in Kakmasia West sub-location, North Sakwa Location, Dede Division, Awendo sub-county in Migori County within the republic of Kenya Murdered Erick Omondi Oyata.
The prosecution called a total of six (6) witnesses in support of their case and the hearing commenced before Judge R. Wendoh. After hearing the prosecution evidence, the court was satisfied that the prosecution had established a prima facie case against the accused and ruled in their favor while calling upon the accused to defend himself. Three ways of making his defense were explained to him.
PW1- Henry Oyata Ochunga testified that was from Dede Division in Awendo Sub County and worked at Kibos Sugar as a driver. That Erick Omondi Oyata was his son who was in his 20s and lived at Ramba village at PW1’s home. He stated that on 16/7/2022 he was at Kibos at work when he received a call from his mother at midnight that his son had been murdered. He left for home and reached at 6:00a.m and found a crowd moaning. He stated that he later went to Rapcom Mortuary and confirmed that the boy had died and viewed the body which had 2 stab wounds on the left side at the ribs. That a postmortem was done on 26/7/2022 at Rapcom. In cross-examination he reiterated that he received the call when in his house at Kibos which was his area of work and left for home at 3:00a.m. That at the hospital he confirmed it was his son and the signature on the statement was his. PW1 stated that he saw the stab wounds on the left side of the body either on the chest or ribs and the postmortem was conducted at Rapcom.
PW2- Suleiman Odhiambo Aooro testified that on 16/7/2022 at about 7:00p.m he was at a bar called Rambo with his cousin Erick Omondi Oyatta the deceased. He stated that they drunk till 10:00p.m. and went to Dreamers Bar which was about 1/2 km from Rambo. That they entered the bar and found other people some of whom he knew like Wycliffe Oluoch and Robinson Okoth Opayo. He stated that Robinson worked in the bar as security while he had known Wycliffe from childhood because they came from same locality. That Wycliffe Oluoch was one of the witnesses and was outside the court. PW1 stated that when they entered Dreamers Bar Robinson told them to get out because they came from a different bar and they complied. That it was about 10 - 11p.m and there were electric lights inside the bar. He stated that Erick was ahead by about 10 metres while he stood at the door of the bar.
It was PW2’s testimony that Wycliffe Ochieng got out of the bar and stood next to a pole. That he wanted to go back and call Wycliffe Oluoch when he saw a scuffle between Wycliffe Ochieng and Erick Omondi. PW2 stated that Wycliffe Ochieng got hold of Erick as if they were fighting and Wycliffe Ochieng had a knife which he used to stab Erick twice on the right side of the ribs. PW2 stated that he was able to see the two because there were security lights outside as well as along the road to Nyakoro which was also near the scene of the incident. It was PW2’s testimony that Erick fell down and he walked towards him while Wycliffe Ochieng ran off into a corridor.
PW2 stated that he observed Erick and he was not talking but his eyes were open. He then went to call people who were near Nyakoro School and some of the people made calls as he explained to them what happened. That some of the people who came to the scene were William Otieno and Debson. That the Assistant Chief also came to the scene and he explained what happened before going home. He stated that Wycliffe Oluoch was in the bar and Wycliffe Ochieng Odoyo was also in the bar when they went in. That he recorded his statement at Awendo Police Station.
In cross-examination he stated that Wycliffe Oluoch did not stand near the pole; that it was Wycliffe Ochieng Odoyo who stood near the Power pole. That Wycliffe Ochieng Odoyo had fought with Erick 6 months earlier and he witnessed the fight. That he heard Erick tell Wycliffe he had no issue with him but Wycliffe told him not to call his name. It was PW2’s testimony that Wycliffe took the knife from his pocket and stabbed Erick twice before running away and Erick fell. He stated that it took him some seconds to arrive where Erick had fallen and upon observing him he was dead. That Wycliffe ran away with the knife.
PW3 Wycliffe Oluoch Muga testified that on 16/7/2022 he did not enter the bar at 10:00p.m but was already at Dreamers Bar Nyakuru Centre drinking alcohol. That there were many people and he was seated at his own table with a lady and Wycliffe (The Accused) was also at his own table alone taking alcohol about 4ft from him. He stated that Omondi and Odhis went to the bar drunk and staggering as they walked in. That Omondi was leading while making noises as Suleiman (PW2) followed and the bouncer - Robinson Oyaya told Omondi to leave as they had not drunk at Dreams Bar.
It was PW3’s testimony that Wycliffe (The Accused) got out of the bar and Omondi also went out after being told by the bouncer. That when Omondi (The Deceased) got outside, he started exchanging words with the Accused. The bouncer came to summon PW3 and informed him that Omondi and Wycliffe wanted to fight and by then Odhiambo (PW2) had joined them. PW3 stated that before he got to where they were Wycliffe (The Accused) stabbed Omondi with a knife and ran away as Omondi fell down. That he was with PW2 when the Deceased fell and he got to him and held his hand but he collapsed and was not blinking. He stated that he was accompanied by PW2 to Titus’s house (his brother) at the Centre and asked him to call Omondi's mother but when they returned to where Omondi had fallen, he was already dead. PW3 stated that the mother and the Chief went to the scene in company of other members of public remained at the scene until the police arrived at around 11:00p.m. PW3 said he was interrogated by the police before they took the body to the mortuary at Rapcom Hospital.
It was PW3’s further testimony that he was able to identify the Accused because there was light both inside and outside the bar as well as streets lights. He stated that when he went outside the bar, he saw Wycliffe (Accused) next to Omondi and after the stabbing the deceased he walked away. When the Accused was confronted by somebody as he was walking away he ran away.
In cross-examination he stated that when he went out he found Wycliffe stabbing Omondi and was pulling the knife from the deceased body and he ran away with the knife. It was PW3’s further testimony that he did not hear the exchange between Erick and Wycliffe and when he went to call his brother Titus the bar had been closed. He stated that once Omondi was stabbed the door of the bar was closed due to the fight as it took place next to the bar which was 10 meters away.
PW4 – Robinson Ferdinand Oyaya testified that on 16/7/2023 he begun working at Dreamers Bar 4:00p.m and before they closed at 11.00pm, three people entered; Eric Omondi, Suleiman Odhiambo and the third called Ajoo. He stated that he knew them since Eric Omondi (The Deceased) and Suleiman came from his Village while Ajoo came from Ndhiwa Sub County. PW4 stated that they arrived drunk and found Wycliffe Oluoch at the door. That he knew Oluoch as he was also from his village and had been drinking at the bar since 9:00 p.m. and was now leaving.
It was PW4’s testimony that they started fighting at the entrance of the bar and Wycliffe Oluoch left as the 3 entered. He stated that there were now less than 10 people at the bar and he told the three; Ajoo, Suleiman and Eric Omondi to leave because they were drunk and fighting. It was his further testimony that some people were left in the bar and he closed the gate after they left. That after 10 - 15 minutes Wycliffe Oluoch came back banging the gate and shouting that he wanted to show PW4 something outside the gate but he did not open the gate. He stated that after that the customers who had remained also left and as workers they recorded reports and also left.
PW4 stated that he did not know what happened to Erick but as he was leaving he found him lying on the ground and was unresponsive and PW3 Wycliffe Oluoch, PW2 Suleiman Odhiambo and Otieno were standing next to his body. PW4 said he saw blood on Erick’s shirt on the left side of the chest.PW4 stated that from the gate to where the body lay was 10-15 meters and he did not hear anything from outside because they had loud music in the bar. It was PW4’s further testimony that he saw a stone near the scene.
PW4 said that he saw the Accused drinking inside the bar when he reported for work at 4:10p.m and saw him leave about 9:30 – 10:00 p.m on the material day. That at the time Eric Omondi’s group came the Accused had left. He further stated that there were two Wycliffe's, Oluoch (PW3) and Ochieng (Accussed) and that he knew the Accused before that date though he never saw him since the incident day until he was arraigned in court.
In cross-examination he stated that when Erick Omondi’s group came in the Accused Wycliffe Ochieng had already left but PW3 Wycliffe Oluoch was leaving. That when he opened the gate, Wycliffe Oluoch, Otieno and Suleiman were standing next to the body of Erick but Ajoo and the Accused Wycliffe Ochieng were not there. It was his testimony that he never witnessed anything that happened at the gate and when he found the 3 standing outside he did not ask them what was happening. That he went where the body was and called the deceased but he did not respond.
PW5 No. 64523 Pc Steven Ongari testified that he was based at DCIO Awendo, doing investigation duties. That on the 16/7/2022 some minutes after midnight he received a call from the Assistant Chief of Nyakuru who reported a murder incident and in company of other officers they proceeded to the scene and found a person lying dead on a murram road. That he observed him and noticed that he was bleeding from the left side of the chest with 2 stab wounds. They processed the scene and collected the body after drawing a sketch plan. He said that the body was taken for preservation at Rapcom Hospital Mortuary to await post mortem which was conducted on 26/7/2022.
PW5 commenced investigations and established that the deceased stabbed by the Accused who waited for him a few meters outside Dreamers Bar. That in the course of searching for the Accused some boda boda riders burnt his house after finding that he had crossed to Tanzania and was in Mariwa. It was PW5’s testimony that they approached their counter parts in Tanzania who helped arrest Accused who was handed over to them on 11/11/2022 about 5 months later.
The accused was taken for a mental assessment on 21/11/2022 and on being found fit to stand trial he was arraigned in court and charged. PW5 produced the Sketch Plan as PEXNO. 1
PW6 Doctor Joseph Otieno performed the postmortem on the body of the deceased Erick Omondi on 26/7/2022 at Rapcom Medical Centre after a police officer and two relatives; Henry Oyata and Jared Otieno identified the body. He established that were 2 stab wounds on the left side of the chest which penetrated deeply into the chest cavity and had punctured the heart. It was PW6’s testimony that the cause of death was hypovolemic shock due to excessive bleeding and that the excessive bleeding was due to stab wounds. He signed the Post Mortem Report which he produced as PEXNO. 2
PW6 also produced Mental Assessment Report PEXNO. 3 in respect of Wycliffe Odoyo the Accused herein who was examined by his colleague K. Ruto a Clinical Officer and a Mental Health Psychiatrist dated 21/11/2022 and confirmed that he was mentally stable.
Defense Case
Accused - Wycliffe Ochieng Odoyo testified that on 16.7.2022 they were in a bar drinking when the deceased came from another bar and found him at the entrance of the bar. That the deceased started quarrelling / arguing with him because they had differed in the past and he told the deceased that he had no issues with him before a bouncer got him out for making noise. The accused stated that on coming out the deceased picked a stone and threw at him but missed. That the deceased was with his friend but he-the accused was alone since the people he was with were still inside the bar. He stated that Omondi produced a knife and wanted to stab him but missed and he fell. That during the incident, both he and the deceased were drunk and he she started walking away to go home leaving Omondi with the person he was with on a motorbike.
He stated that he went home and slept and at around 11:00p.m one of his brothers called to ask about his whereabouts and he responded that he was in the house. That he was informed by the same that relatives of Omondi were coming for him on allegations that he had killed Omondi and due to fear he got out of the house and the relatives of Omondi set his house on fire and slashed his maize plantation. He stated that he escaped to his uncle’s in Tanzania and was arrested in Mariwa, Tanzania in 2022. He stated that he did not have any weapon at the time of the incident and only had his phone.
In cross-examination he stated that he was with Robinson Oyaya, Mzee, and Audo who were present at the bar. It was his testimony that they did not fight with the deceased and he could not remember the statement the he had recorded with the police. He retorted that it was not true that he fought as recorded in the statement and he was wearing a sweater. He further stated that it was a jumper and he had no knife and neither did he remove any from the jacket as per testimony of PW1 and PW2. He stated that he did not snatch the knife from the deceased rather the deceased aimed the knife at him and missed then fell on the knife.
SUBMISSIONS
The Accused relied on his written submissions on No Case to Answer dated 15th November 2024 to support his defense that he did not commit the murder herein.
It was further submitted that the prosecution ought to have satisfied the following ingredients to convince the court that they had established beyond reasonable doubt that the Accused committed the offence.
It was submitted that the prosecution was under the obligation to establish the following key ingredients of the offence of murder against the accused person namely:
(i) Proof of death of the deceased;
(ii) The cause of death;
(iii) Proof that the cause of death was an unlawful act or omission;
(iv) That the unlawful act and/ or omission was committed by the accused;
(v) That the accused had malice aforethought.
i) On Proof of death of the deceased, and the cause of death it was submitted that it was not in dispute that indeed the deceased died as a result of an unlawful act. PW6, Dr. Joseph Otieno conducted post mortem on the body of the deceased and it was confirmed that he was stabbed twice on left side of the chest. He was of the opinion that death was caused by hypovolemic shock due to excessive bleeding and that the excessive bleeding was due to stab wound and it was not disputed that death was as a result of an unlawful act or omission
The Accused person’s Counsel submitted further that there were many people at the scene of the murder but none of them confirmed who between the deceased and the accused person was holding any weapon on his hand. That none of the witnesses confirmed seeing the accused person holding any dangerous weapon on his hand before the incident occurred thus it is not very clear who stabbed the deceased using a sharp object as indicated in the post mortem report.
Defense Counsel also submitted that there were some contradictions in the statements of PW3, Wycliffe Oluoch and PW4, Robinson Oyaya. That PW3 stated that he was called by Robinson Oyaya who worked as a bouncer in the said bar and Robinson informed him that Erick, the deceased had been stabbed to death while PW4, Robinson on the other hand stated that he opened the main gate and outside the gate he saw a body lying down and then saw three people walking away from the scene and identified the three as Oluoch, Odhiambo and Otieno.
That as a result of the contradiction between evidence of PW3 and 4 the prosecution is not clear who between the two was at the scene neither did the prosecution clear the air on where the three guys that Robinson saw walking away from the murder scene go to, and the reason they were walking away without calling for help for the deceased to be rescued.
The Accused’s person’s counsel that under Section 107 and 109 of the Evidence Act, (Cap 80 Laws of Kenya) the burden of proof is in the prosecution's backyard and never shifts. They cited the case of Woolmington-v- DPP (1935) A.C 462 where Lord Sankey in the celebrated Golden thread speech stated:
“Throughout the web of English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to........
The defense of insanity and subject also to any statutory exception. If at the end of the whole case there is reasonable doubt created by the evidence given by either the prosecution or the prisoner.............. the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
It was further submitted that proof beyond any reasonable doubt means that the prosecution's case must be one which establishes all the ingredients of the charge which are mensrea and actus reus also known as criminal liability. And that the evidence tendered must be convincing and leave no doubt on the guilt of the accused.
The holding in the case of Pius arap Maina -v- Republic (2013) eKLR (Criminal Appeal No.247/2011) was relied upon where the court noted that;
"It is gainsaid that the prosecution must prove a criminal charge beyond any reasonable doubts. As a corollary, an evidential gap in the prosecution's case raising material doubts must be in favor of the accused.
On the issue of Malice aforethought on the part of the accused.
The defence submitted that the evidence tendered by the Prosecution does not prove beyond reasonable doubt that the accused had an intention to kill or inflict serious bodily injury on the deceased. That considering the entirety of the evidence on record as highlighted in their written submissions, they are of the view that the accused person was not guilty as none of the witnesses tendered sufficient evidence to implicate him in the unfortunate murder of the deceased.
They relied on the holding In the High Court of Kenya, at Siaya, Criminal Case No.55 of 2015, Republic v WOO [2020] eKLR where R.E Aburili J held as follows;
“I have considered the evidence presented before the court both by the prosecution and the defense and in my opinion, the main issue for determination is whether the prosecution proved the case against the accused to the required standard and which standard has been held to be that of beyond any reasonable doubt.”
The Accused person’s Counsel also relied on the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR where the Court of Appeal sitting in Nyeri held that:
"For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought."
To fortify their position the Accused’s counsel further relied on Court of Appeal holding in P.O.N v Republic [2019] eKLR (Ouko, (P), Gatembu & Murgor, JJ. A) in which observed that
“….no amount of evidence based on suspicion, no matter how strong may be a basis for conviction. Suspicion, even reasonable suspicion is a legal standard of proof not known in our criminal law. Either a fact is proved beyond reasonable doubt or it is not”
They also submitted that gaps in the prosecution's case raise doubts and the benefit of the doubts must be given to the accused. In this regard they relied on the case of Edwin Wafula Keya -v- Republic, Court of Appeal (2005) eKLR, where the court stated that;
"In our view failure to call all or any of the three police officers who arrested the appellant some two months after the offence left unbridgeable gap in the prosecution's case and the appellant must have the benefit of that gap”
Respecting Accused persons right to fair trial under Article 50(2) (a) of the Constitution to be presumed innocent until the contrary is proved it was submitted that the said right cannot be limited and the evidence tendered by the prosecution fell short and failed to prove the guilt of the accused to the required standard, that of beyond any reasonable doubt. That the prosecution failed to discharge the burden of proof.
They submitted that further to the prosecution’s case, the accused person testified in court and clarified that he had no knife with him and that it is the deceased who had a knife and attacked him at a bar where he was drinking and that when the deceased tried to stab him he missed and the deceased fell on the said knife.
The defense urged the court to take the Accused persons evidence into consideration and find that it is clear that he had no intention of getting into any wrangles with the deceased and it is the deceased who had attacked him at the bar where he had gone to relax and furthermore no prosecution witness saw the accused person with a knife. The court was urged to find that the prosecution’s case was mere suspicion which cannot form a basis for a conviction, no matter how strong and the Accused should be acquitted.
Analysis and Determination
I have duly considered the evidence tendered before this court by the Prosecution and the accused as well as the defense submissions and this being a criminal trial the onus is upon the prosecution to prove its case beyond all reasonable doubt. What constitutes reasonable doubt was discussed in Woolington vs. DPP (1935) AC 462 where Vicount Sankey L.C ably stated: -
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defense of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offense was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to Whittle it down can be entertained.”
The offence of murder is provided for in Section 203 of the Penal Code as follows:
Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder
In the case of State v F.O.O {2021} Eklr it was held that the offense of murder requires proof of the following elements beyond reasonable doubt;
(a). Proof of death, the cause of that death,
(b). proof that the death was due to an unlawful act or omission,
(c). that the unlawful act or omission was on the part of the suspect and
(d). that the unlawful killing was with malice aforethought.
The first issue for consideration is proof of death. In the instant case, there is no dispute of the deceased’s death. This was confirmed by the prosecution witnesses more so the evidence of PW6 who carried out the post mortem on the body of the deceased and after the examination, reached the conclusion that the cause of death was hypovolemic shock due to excessive bleeding and that the excessive bleeding was due to stab wounds. Accordingly, it is my opinion that the prosecution has satisfied this element beyond reasonable doubt.
The next question is whether the death of the deceased Erick Omondi Oyata was caused by the unlawful act or omission. Article 26 (1) of the Constitution guarantees every person the right to life. The postmortem report prepared by PW6 revealed that the deceased’s cause of death was hypovolemic shock due to excessive bleeding and that the excessive bleeding was due to stab wounds. The doctor also noted that there were some petichae and there were 2 stab wounds on the left side of the chest which penetrated deeply into the chest cavity and punctured the heart. The said stab wounds were not accidental or self-inflicted. They were caused by an unlawful act.
As to whether the death of the deceased was caused by the omission or unlawful act committed by the Accused, three witnesses; PW2 testified that he saw a scuffle between the Accused-Wycliffe Ochieng and Erick Omondi the Deceased. That the Accused got hold of Erick as if they were fighting and he had a knife which he used to stab Erick twice on the ribs before running away leaving Erick fallen down. PW2 stated that he was able to see the two because there were security lights outside as well as along the road to Nyakoro which was also near the scene of the incident.
Upon cross-examination PW2 stated that the Accused took the knife from his pocket and stabbed Erick twice before running away and Erick fell. He stated that it took him some seconds to arrive where Erick had fallen and upon observing him he was dead and that Wyckilffe ran away with the knife.
PW3 testified that during the scuffle between the Accused and the deceased, and before he got to where they were Wycliffe (The Accused) stabbed Omondi with a knife and ran away as Omondi fell down. He stated that they were able to see each other in the bar and outside because there was light both inside and outside the bar as well as streets lights. That he was with PW2 when the Deceased fell and when he got to him he held the deceased’s hand but he collapsed and was not blinking. He stated that he was accompanied by PW2 and they ran to Titus’s house (his brother) at the Centre who had a vehicle and asked him to call Omondi's mother and when they returned to where Omondi had fallen, he was already dead.
Upon cross examination he said that when he went out he found Wycliffe stabbing Omondi and was pulling the knife away “I found him removing the knife from Omondi’s body” and he ran away with the knife. It was PW3’s further testimony that he did not hear the exchange between Erick and Wycliffe and when he went to call his brother Titus the bar had been closed. He stated that once Omondi was stabbed the door of the bar was closed due to the fight as it took place next to the bar. He further stated that the bar was about 10 metres from the road.
The defense by the accused is that he was attacked by the deceased who was armed with a knife but PW2 and 3 are categorical that it is the Accused who was armed with a knife which he used to stab the deceased. The evidence of the 2 prosecution witnesses controverts the Accused person’s defense that it is the deceased who was armed with a knife and attacked him. The Accused was known to the deceased and he alleged that they had quarreled 6 months prior to the incident. PW2 & 3 also knew the Accused and they were present at the scene which they said was well lit and they recognized the Accused whom they saw produce a knife and stab the deceased twice on the left side of the chest puncturing the heart as per PW6’s testimony. PW5 the Investigating Officer produced a sketch plan of the scene as PEX 1 and stated that there was sufficient lighting in the scene and the surrounding area and therefore corroborated the evidence of PW2 & 3 that they were able to identify the person who inflicted fatal injuries on the deceased. It is therefore apparent that the prosecution has proved that the unlawful act that caused the death of the deceased was committed by the Accused person herein.
As to whether the Accused had malice aforethought, Section 206 of the Penal Code provides as follows: -
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.
Further, in the case of Rex vs. Tubere s/o Ochen (1045) EACA 63, the Eastern Court of Appeal observed and defined malice aforethought as follows: -
“In determining the existence or non-existence of malice, one has to look at the facts proving the weapon used, the manner in which it is used and the part of the body injured.”
From the evidence of PW2 he was with the deceased at Rambo bar where they were drinking up to 10.00pm when they left and proceeded to Dreamers Bar. That at Dreamers Bar they found the Accused person among other patrons including Robinson PW4 who worked at the bar as a security man. He said that the Accused was in a corner at the bar. PW2 said that Robinson chased them out of the bar and PW4 said that Ajoo, Suleiman and Eric Omondi arrived at Dreamers bar while drunk and he told them to leave because they were drunk and fighting.
The Accused person confirmed that when the deceased found him at the entrance of the bar he started quarrelling and arguing with him over differences they had had over 6 months prior to the date of the incident and the bouncer got him out for making noise. The Accused also said that both of them were drunk at the time of the incident. PW3 confirmed that Omondi the deceased and Odhis PW2 both of whom were his brothers went to the bar where he was with the Accused and they were drunk and staggering.
In consideration of the evidence of PW2, 3 & 4 coupled with the evidence of the Accused that the deceased and PW2 were even chased out of the bar for making noise the evidence of the Accused that the deceased was the aggressor is believable and it cannot be said that he was possessed of malice aforethought. It is not understood why he was armed with a knife when he went to the bar but there is no evidence that his action was premeditated or that he had planned to kill the deceased or cause grievous harm.
Based on the above finding this court finds that since malice was not proved the offence of murder cannot be sustained. The Accused is however found guilty for the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code and he is convicted under Section 322(1) of the CPC.
Right to Appeal within 14 days.
Dated, Signed & Delivered at Migori This 16th Day of May, 2025
The particulars of the offense are that on the 16th day of July 2022 at around 11:00 P.m. at Nyakuru Centre, in Kakmasia West sub-location, North Sakwa Location, Dede Division, Awendo sub-county in Migori County within the republic of Kenya Murdered Erick Omondi Oyata.
The prosecution called a total of six (6) witnesses in support of their case and the hearing commenced before Judge R. Wendoh. After hearing the prosecution evidence, the court was satisfied that the prosecution had established a prima facie case against the accused and ruled in their favor while calling upon the accused to defend himself. Three ways of making his defense were explained to him.
PW1- Henry Oyata Ochunga testified that was from Dede Division in Awendo Sub County and worked at Kibos Sugar as a driver. That Erick Omondi Oyata was his son who was in his 20s and lived at Ramba village at PW1’s home. He stated that on 16/7/2022 he was at Kibos at work when he received a call from his mother at midnight that his son had been murdered. He left for home and reached at 6:00a.m and found a crowd moaning. He stated that he later went to Rapcom Mortuary and confirmed that the boy had died and viewed the body which had 2 stab wounds on the left side at the ribs. That a postmortem was done on 26/7/2022 at Rapcom. In cross-examination he reiterated that he received the call when in his house at Kibos which was his area of work and left for home at 3:00a.m. That at the hospital he confirmed it was his son and the signature on the statement was his. PW1 stated that he saw the stab wounds on the left side of the body either on the chest or ribs and the postmortem was conducted at Rapcom.
PW2- Suleiman Odhiambo Aooro testified that on 16/7/2022 at about 7:00p.m he was at a bar called Rambo with his cousin Erick Omondi Oyatta the deceased. He stated that they drunk till 10:00p.m. and went to Dreamers Bar which was about 1/2 km from Rambo. That they entered the bar and found other people some of whom he knew like Wycliffe Oluoch and Robinson Okoth Opayo. He stated that Robinson worked in the bar as security while he had known Wycliffe from childhood because they came from same locality. That Wycliffe Oluoch was one of the witnesses and was outside the court. PW1 stated that when they entered Dreamers Bar Robinson told them to get out because they came from a different bar and they complied. That it was about 10 - 11p.m and there were electric lights inside the bar. He stated that Erick was ahead by about 10 metres while he stood at the door of the bar.
It was PW2’s testimony that Wycliffe Ochieng got out of the bar and stood next to a pole. That he wanted to go back and call Wycliffe Oluoch when he saw a scuffle between Wycliffe Ochieng and Erick Omondi. PW2 stated that Wycliffe Ochieng got hold of Erick as if they were fighting and Wycliffe Ochieng had a knife which he used to stab Erick twice on the right side of the ribs. PW2 stated that he was able to see the two because there were security lights outside as well as along the road to Nyakoro which was also near the scene of the incident. It was PW2’s testimony that Erick fell down and he walked towards him while Wycliffe Ochieng ran off into a corridor.
PW2 stated that he observed Erick and he was not talking but his eyes were open. He then went to call people who were near Nyakoro School and some of the people made calls as he explained to them what happened. That some of the people who came to the scene were William Otieno and Debson. That the Assistant Chief also came to the scene and he explained what happened before going home. He stated that Wycliffe Oluoch was in the bar and Wycliffe Ochieng Odoyo was also in the bar when they went in. That he recorded his statement at Awendo Police Station.
In cross-examination he stated that Wycliffe Oluoch did not stand near the pole; that it was Wycliffe Ochieng Odoyo who stood near the Power pole. That Wycliffe Ochieng Odoyo had fought with Erick 6 months earlier and he witnessed the fight. That he heard Erick tell Wycliffe he had no issue with him but Wycliffe told him not to call his name. It was PW2’s testimony that Wycliffe took the knife from his pocket and stabbed Erick twice before running away and Erick fell. He stated that it took him some seconds to arrive where Erick had fallen and upon observing him he was dead. That Wycliffe ran away with the knife.
PW3 Wycliffe Oluoch Muga testified that on 16/7/2022 he did not enter the bar at 10:00p.m but was already at Dreamers Bar Nyakuru Centre drinking alcohol. That there were many people and he was seated at his own table with a lady and Wycliffe (The Accused) was also at his own table alone taking alcohol about 4ft from him. He stated that Omondi and Odhis went to the bar drunk and staggering as they walked in. That Omondi was leading while making noises as Suleiman (PW2) followed and the bouncer - Robinson Oyaya told Omondi to leave as they had not drunk at Dreams Bar.
It was PW3’s testimony that Wycliffe (The Accused) got out of the bar and Omondi also went out after being told by the bouncer. That when Omondi (The Deceased) got outside, he started exchanging words with the Accused. The bouncer came to summon PW3 and informed him that Omondi and Wycliffe wanted to fight and by then Odhiambo (PW2) had joined them. PW3 stated that before he got to where they were Wycliffe (The Accused) stabbed Omondi with a knife and ran away as Omondi fell down. That he was with PW2 when the Deceased fell and he got to him and held his hand but he collapsed and was not blinking. He stated that he was accompanied by PW2 to Titus’s house (his brother) at the Centre and asked him to call Omondi's mother but when they returned to where Omondi had fallen, he was already dead. PW3 stated that the mother and the Chief went to the scene in company of other members of public remained at the scene until the police arrived at around 11:00p.m. PW3 said he was interrogated by the police before they took the body to the mortuary at Rapcom Hospital.
It was PW3’s further testimony that he was able to identify the Accused because there was light both inside and outside the bar as well as streets lights. He stated that when he went outside the bar, he saw Wycliffe (Accused) next to Omondi and after the stabbing the deceased he walked away. When the Accused was confronted by somebody as he was walking away he ran away.
In cross-examination he stated that when he went out he found Wycliffe stabbing Omondi and was pulling the knife from the deceased body and he ran away with the knife. It was PW3’s further testimony that he did not hear the exchange between Erick and Wycliffe and when he went to call his brother Titus the bar had been closed. He stated that once Omondi was stabbed the door of the bar was closed due to the fight as it took place next to the bar which was 10 meters away.
PW4 – Robinson Ferdinand Oyaya testified that on 16/7/2023 he begun working at Dreamers Bar 4:00p.m and before they closed at 11.00pm, three people entered; Eric Omondi, Suleiman Odhiambo and the third called Ajoo. He stated that he knew them since Eric Omondi (The Deceased) and Suleiman came from his Village while Ajoo came from Ndhiwa Sub County. PW4 stated that they arrived drunk and found Wycliffe Oluoch at the door. That he knew Oluoch as he was also from his village and had been drinking at the bar since 9:00 p.m. and was now leaving.
It was PW4’s testimony that they started fighting at the entrance of the bar and Wycliffe Oluoch left as the 3 entered. He stated that there were now less than 10 people at the bar and he told the three; Ajoo, Suleiman and Eric Omondi to leave because they were drunk and fighting. It was his further testimony that some people were left in the bar and he closed the gate after they left. That after 10 - 15 minutes Wycliffe Oluoch came back banging the gate and shouting that he wanted to show PW4 something outside the gate but he did not open the gate. He stated that after that the customers who had remained also left and as workers they recorded reports and also left.
PW4 stated that he did not know what happened to Erick but as he was leaving he found him lying on the ground and was unresponsive and PW3 Wycliffe Oluoch, PW2 Suleiman Odhiambo and Otieno were standing next to his body. PW4 said he saw blood on Erick’s shirt on the left side of the chest.PW4 stated that from the gate to where the body lay was 10-15 meters and he did not hear anything from outside because they had loud music in the bar. It was PW4’s further testimony that he saw a stone near the scene.
PW4 said that he saw the Accused drinking inside the bar when he reported for work at 4:10p.m and saw him leave about 9:30 – 10:00 p.m on the material day. That at the time Eric Omondi’s group came the Accused had left. He further stated that there were two Wycliffe's, Oluoch (PW3) and Ochieng (Accussed) and that he knew the Accused before that date though he never saw him since the incident day until he was arraigned in court.
In cross-examination he stated that when Erick Omondi’s group came in the Accused Wycliffe Ochieng had already left but PW3 Wycliffe Oluoch was leaving. That when he opened the gate, Wycliffe Oluoch, Otieno and Suleiman were standing next to the body of Erick but Ajoo and the Accused Wycliffe Ochieng were not there. It was his testimony that he never witnessed anything that happened at the gate and when he found the 3 standing outside he did not ask them what was happening. That he went where the body was and called the deceased but he did not respond.
PW5 No. 64523 Pc Steven Ongari testified that he was based at DCIO Awendo, doing investigation duties. That on the 16/7/2022 some minutes after midnight he received a call from the Assistant Chief of Nyakuru who reported a murder incident and in company of other officers they proceeded to the scene and found a person lying dead on a murram road. That he observed him and noticed that he was bleeding from the left side of the chest with 2 stab wounds. They processed the scene and collected the body after drawing a sketch plan. He said that the body was taken for preservation at Rapcom Hospital Mortuary to await post mortem which was conducted on 26/7/2022.
PW5 commenced investigations and established that the deceased stabbed by the Accused who waited for him a few meters outside Dreamers Bar. That in the course of searching for the Accused some boda boda riders burnt his house after finding that he had crossed to Tanzania and was in Mariwa. It was PW5’s testimony that they approached their counter parts in Tanzania who helped arrest Accused who was handed over to them on 11/11/2022 about 5 months later.
The accused was taken for a mental assessment on 21/11/2022 and on being found fit to stand trial he was arraigned in court and charged. PW5 produced the Sketch Plan as PEXNO. 1
PW6 Doctor Joseph Otieno performed the postmortem on the body of the deceased Erick Omondi on 26/7/2022 at Rapcom Medical Centre after a police officer and two relatives; Henry Oyata and Jared Otieno identified the body. He established that were 2 stab wounds on the left side of the chest which penetrated deeply into the chest cavity and had punctured the heart. It was PW6’s testimony that the cause of death was hypovolemic shock due to excessive bleeding and that the excessive bleeding was due to stab wounds. He signed the Post Mortem Report which he produced as PEXNO. 2
PW6 also produced Mental Assessment Report PEXNO. 3 in respect of Wycliffe Odoyo the Accused herein who was examined by his colleague K. Ruto a Clinical Officer and a Mental Health Psychiatrist dated 21/11/2022 and confirmed that he was mentally stable.
Defense Case
Accused - Wycliffe Ochieng Odoyo testified that on 16.7.2022 they were in a bar drinking when the deceased came from another bar and found him at the entrance of the bar. That the deceased started quarrelling / arguing with him because they had differed in the past and he told the deceased that he had no issues with him before a bouncer got him out for making noise. The accused stated that on coming out the deceased picked a stone and threw at him but missed. That the deceased was with his friend but he-the accused was alone since the people he was with were still inside the bar. He stated that Omondi produced a knife and wanted to stab him but missed and he fell. That during the incident, both he and the deceased were drunk and he she started walking away to go home leaving Omondi with the person he was with on a motorbike.
He stated that he went home and slept and at around 11:00p.m one of his brothers called to ask about his whereabouts and he responded that he was in the house. That he was informed by the same that relatives of Omondi were coming for him on allegations that he had killed Omondi and due to fear he got out of the house and the relatives of Omondi set his house on fire and slashed his maize plantation. He stated that he escaped to his uncle’s in Tanzania and was arrested in Mariwa, Tanzania in 2022. He stated that he did not have any weapon at the time of the incident and only had his phone.
In cross-examination he stated that he was with Robinson Oyaya, Mzee, and Audo who were present at the bar. It was his testimony that they did not fight with the deceased and he could not remember the statement the he had recorded with the police. He retorted that it was not true that he fought as recorded in the statement and he was wearing a sweater. He further stated that it was a jumper and he had no knife and neither did he remove any from the jacket as per testimony of PW1 and PW2. He stated that he did not snatch the knife from the deceased rather the deceased aimed the knife at him and missed then fell on the knife.
SUBMISSIONS
The Accused relied on his written submissions on No Case to Answer dated 15th November 2024 to support his defense that he did not commit the murder herein.
It was further submitted that the prosecution ought to have satisfied the following ingredients to convince the court that they had established beyond reasonable doubt that the Accused committed the offence.
It was submitted that the prosecution was under the obligation to establish the following key ingredients of the offence of murder against the accused person namely:
(i) Proof of death of the deceased;
(ii) The cause of death;
(iii) Proof that the cause of death was an unlawful act or omission;
(iv) That the unlawful act and/ or omission was committed by the accused;
(v) That the accused had malice aforethought.
i) On Proof of death of the deceased, and the cause of death it was submitted that it was not in dispute that indeed the deceased died as a result of an unlawful act. PW6, Dr. Joseph Otieno conducted post mortem on the body of the deceased and it was confirmed that he was stabbed twice on left side of the chest. He was of the opinion that death was caused by hypovolemic shock due to excessive bleeding and that the excessive bleeding was due to stab wound and it was not disputed that death was as a result of an unlawful act or omission
The Accused person’s Counsel submitted further that there were many people at the scene of the murder but none of them confirmed who between the deceased and the accused person was holding any weapon on his hand. That none of the witnesses confirmed seeing the accused person holding any dangerous weapon on his hand before the incident occurred thus it is not very clear who stabbed the deceased using a sharp object as indicated in the post mortem report.
Defense Counsel also submitted that there were some contradictions in the statements of PW3, Wycliffe Oluoch and PW4, Robinson Oyaya. That PW3 stated that he was called by Robinson Oyaya who worked as a bouncer in the said bar and Robinson informed him that Erick, the deceased had been stabbed to death while PW4, Robinson on the other hand stated that he opened the main gate and outside the gate he saw a body lying down and then saw three people walking away from the scene and identified the three as Oluoch, Odhiambo and Otieno.
That as a result of the contradiction between evidence of PW3 and 4 the prosecution is not clear who between the two was at the scene neither did the prosecution clear the air on where the three guys that Robinson saw walking away from the murder scene go to, and the reason they were walking away without calling for help for the deceased to be rescued.
The Accused’s person’s counsel that under Section 107 and 109 of the Evidence Act, (Cap 80 Laws of Kenya) the burden of proof is in the prosecution's backyard and never shifts. They cited the case of Woolmington-v- DPP (1935) A.C 462 where Lord Sankey in the celebrated Golden thread speech stated:
“Throughout the web of English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to........
The defense of insanity and subject also to any statutory exception. If at the end of the whole case there is reasonable doubt created by the evidence given by either the prosecution or the prisoner.............. the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
It was further submitted that proof beyond any reasonable doubt means that the prosecution's case must be one which establishes all the ingredients of the charge which are mensrea and actus reus also known as criminal liability. And that the evidence tendered must be convincing and leave no doubt on the guilt of the accused.
The holding in the case of Pius arap Maina -v- Republic (2013) eKLR (Criminal Appeal No.247/2011) was relied upon where the court noted that;
"It is gainsaid that the prosecution must prove a criminal charge beyond any reasonable doubts. As a corollary, an evidential gap in the prosecution's case raising material doubts must be in favor of the accused.
On the issue of Malice aforethought on the part of the accused.
The defence submitted that the evidence tendered by the Prosecution does not prove beyond reasonable doubt that the accused had an intention to kill or inflict serious bodily injury on the deceased. That considering the entirety of the evidence on record as highlighted in their written submissions, they are of the view that the accused person was not guilty as none of the witnesses tendered sufficient evidence to implicate him in the unfortunate murder of the deceased.
They relied on the holding In the High Court of Kenya, at Siaya, Criminal Case No.55 of 2015, Republic v WOO [2020] eKLR where R.E Aburili J held as follows;
“I have considered the evidence presented before the court both by the prosecution and the defense and in my opinion, the main issue for determination is whether the prosecution proved the case against the accused to the required standard and which standard has been held to be that of beyond any reasonable doubt.”
The Accused person’s Counsel also relied on the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR where the Court of Appeal sitting in Nyeri held that:
"For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought."
To fortify their position the Accused’s counsel further relied on Court of Appeal holding in P.O.N v Republic [2019] eKLR (Ouko, (P), Gatembu & Murgor, JJ. A) in which observed that
“….no amount of evidence based on suspicion, no matter how strong may be a basis for conviction. Suspicion, even reasonable suspicion is a legal standard of proof not known in our criminal law. Either a fact is proved beyond reasonable doubt or it is not”
They also submitted that gaps in the prosecution's case raise doubts and the benefit of the doubts must be given to the accused. In this regard they relied on the case of Edwin Wafula Keya -v- Republic, Court of Appeal (2005) eKLR, where the court stated that;
"In our view failure to call all or any of the three police officers who arrested the appellant some two months after the offence left unbridgeable gap in the prosecution's case and the appellant must have the benefit of that gap”
Respecting Accused persons right to fair trial under Article 50(2) (a) of the Constitution to be presumed innocent until the contrary is proved it was submitted that the said right cannot be limited and the evidence tendered by the prosecution fell short and failed to prove the guilt of the accused to the required standard, that of beyond any reasonable doubt. That the prosecution failed to discharge the burden of proof.
They submitted that further to the prosecution’s case, the accused person testified in court and clarified that he had no knife with him and that it is the deceased who had a knife and attacked him at a bar where he was drinking and that when the deceased tried to stab him he missed and the deceased fell on the said knife.
The defense urged the court to take the Accused persons evidence into consideration and find that it is clear that he had no intention of getting into any wrangles with the deceased and it is the deceased who had attacked him at the bar where he had gone to relax and furthermore no prosecution witness saw the accused person with a knife. The court was urged to find that the prosecution’s case was mere suspicion which cannot form a basis for a conviction, no matter how strong and the Accused should be acquitted.
Analysis and Determination
I have duly considered the evidence tendered before this court by the Prosecution and the accused as well as the defense submissions and this being a criminal trial the onus is upon the prosecution to prove its case beyond all reasonable doubt. What constitutes reasonable doubt was discussed in Woolington vs. DPP (1935) AC 462 where Vicount Sankey L.C ably stated: -
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defense of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offense was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to Whittle it down can be entertained.”
The offence of murder is provided for in Section 203 of the Penal Code as follows:
Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder
In the case of State v F.O.O {2021} Eklr it was held that the offense of murder requires proof of the following elements beyond reasonable doubt;
(a). Proof of death, the cause of that death,
(b). proof that the death was due to an unlawful act or omission,
(c). that the unlawful act or omission was on the part of the suspect and
(d). that the unlawful killing was with malice aforethought.
The first issue for consideration is proof of death. In the instant case, there is no dispute of the deceased’s death. This was confirmed by the prosecution witnesses more so the evidence of PW6 who carried out the post mortem on the body of the deceased and after the examination, reached the conclusion that the cause of death was hypovolemic shock due to excessive bleeding and that the excessive bleeding was due to stab wounds. Accordingly, it is my opinion that the prosecution has satisfied this element beyond reasonable doubt.
The next question is whether the death of the deceased Erick Omondi Oyata was caused by the unlawful act or omission. Article 26 (1) of the Constitution guarantees every person the right to life. The postmortem report prepared by PW6 revealed that the deceased’s cause of death was hypovolemic shock due to excessive bleeding and that the excessive bleeding was due to stab wounds. The doctor also noted that there were some petichae and there were 2 stab wounds on the left side of the chest which penetrated deeply into the chest cavity and punctured the heart. The said stab wounds were not accidental or self-inflicted. They were caused by an unlawful act.
As to whether the death of the deceased was caused by the omission or unlawful act committed by the Accused, three witnesses; PW2 testified that he saw a scuffle between the Accused-Wycliffe Ochieng and Erick Omondi the Deceased. That the Accused got hold of Erick as if they were fighting and he had a knife which he used to stab Erick twice on the ribs before running away leaving Erick fallen down. PW2 stated that he was able to see the two because there were security lights outside as well as along the road to Nyakoro which was also near the scene of the incident.
Upon cross-examination PW2 stated that the Accused took the knife from his pocket and stabbed Erick twice before running away and Erick fell. He stated that it took him some seconds to arrive where Erick had fallen and upon observing him he was dead and that Wyckilffe ran away with the knife.
PW3 testified that during the scuffle between the Accused and the deceased, and before he got to where they were Wycliffe (The Accused) stabbed Omondi with a knife and ran away as Omondi fell down. He stated that they were able to see each other in the bar and outside because there was light both inside and outside the bar as well as streets lights. That he was with PW2 when the Deceased fell and when he got to him he held the deceased’s hand but he collapsed and was not blinking. He stated that he was accompanied by PW2 and they ran to Titus’s house (his brother) at the Centre who had a vehicle and asked him to call Omondi's mother and when they returned to where Omondi had fallen, he was already dead.
Upon cross examination he said that when he went out he found Wycliffe stabbing Omondi and was pulling the knife away “I found him removing the knife from Omondi’s body” and he ran away with the knife. It was PW3’s further testimony that he did not hear the exchange between Erick and Wycliffe and when he went to call his brother Titus the bar had been closed. He stated that once Omondi was stabbed the door of the bar was closed due to the fight as it took place next to the bar. He further stated that the bar was about 10 metres from the road.
The defense by the accused is that he was attacked by the deceased who was armed with a knife but PW2 and 3 are categorical that it is the Accused who was armed with a knife which he used to stab the deceased. The evidence of the 2 prosecution witnesses controverts the Accused person’s defense that it is the deceased who was armed with a knife and attacked him. The Accused was known to the deceased and he alleged that they had quarreled 6 months prior to the incident. PW2 & 3 also knew the Accused and they were present at the scene which they said was well lit and they recognized the Accused whom they saw produce a knife and stab the deceased twice on the left side of the chest puncturing the heart as per PW6’s testimony. PW5 the Investigating Officer produced a sketch plan of the scene as PEX 1 and stated that there was sufficient lighting in the scene and the surrounding area and therefore corroborated the evidence of PW2 & 3 that they were able to identify the person who inflicted fatal injuries on the deceased. It is therefore apparent that the prosecution has proved that the unlawful act that caused the death of the deceased was committed by the Accused person herein.
As to whether the Accused had malice aforethought, Section 206 of the Penal Code provides as follows: -
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.
Further, in the case of Rex vs. Tubere s/o Ochen (1045) EACA 63, the Eastern Court of Appeal observed and defined malice aforethought as follows: -
“In determining the existence or non-existence of malice, one has to look at the facts proving the weapon used, the manner in which it is used and the part of the body injured.”
From the evidence of PW2 he was with the deceased at Rambo bar where they were drinking up to 10.00pm when they left and proceeded to Dreamers Bar. That at Dreamers Bar they found the Accused person among other patrons including Robinson PW4 who worked at the bar as a security man. He said that the Accused was in a corner at the bar. PW2 said that Robinson chased them out of the bar and PW4 said that Ajoo, Suleiman and Eric Omondi arrived at Dreamers bar while drunk and he told them to leave because they were drunk and fighting.
The Accused person confirmed that when the deceased found him at the entrance of the bar he started quarrelling and arguing with him over differences they had had over 6 months prior to the date of the incident and the bouncer got him out for making noise. The Accused also said that both of them were drunk at the time of the incident. PW3 confirmed that Omondi the deceased and Odhis PW2 both of whom were his brothers went to the bar where he was with the Accused and they were drunk and staggering.
In consideration of the evidence of PW2, 3 & 4 coupled with the evidence of the Accused that the deceased and PW2 were even chased out of the bar for making noise the evidence of the Accused that the deceased was the aggressor is believable and it cannot be said that he was possessed of malice aforethought. It is not understood why he was armed with a knife when he went to the bar but there is no evidence that his action was premeditated or that he had planned to kill the deceased or cause grievous harm.
Based on the above finding this court finds that since malice was not proved the offence of murder cannot be sustained. The Accused is however found guilty for the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code and he is convicted under Section 322(1) of the CPC.
Right to Appeal within 14 days.
Dated, Signed & Delivered at Migori This 16th Day of May, 2025