REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT SIAYA

CRIMINAL CASE NO. E005 OF 2021[MURDER]

STATE..............................................................................................PROSECUTION

VERSUS

LUCAS ONYANGO WALO...................................................................ACCUSED

JUDGMENT

1.  The accused person Lucas Onyango Walo is charged with the offence of murder contrary to section 203 as read with 204 of the Penal Code. The particulars of the information dated 5^th March 2021 are that on the 1st and 2nd day of January 2020 at an unknown time at Barkalore village, Lihanda sub-location, East Gem location within Gem sub-county in Siaya County, jointly with others not before court, he murdered Maurice Omondi. The accused person pleaded not guilty to the charge. Seven (7) witnesses were called by the prosecution in support of its case and their evidence is summarised as follows:

2.  PW1 Bernard Otieno Onyango testified that on the 1/1/2020 at about 6.3.0 pm, he left Barkalare market on his way home and found the accused Lucas Onyango and his brother sitting on a bench outside the homestead of the witness. It was his testimony that he went to his house where he stayed until around 7pm when he heard his sister, Hellen, asking the accused why he was sited outside on a bench and what he was doing there in the night with his brother to which the accused responded that he was okay out there.

3.  PW1 testified that at 9pm, he heard the accused calling him from his house telling him ‘Bena’ ‘Bena’ give me a panga. Today, I must kill someone.  PW1 then told the accused that he had no panga with him as it was in his-PW1 mother’s house. It was PW1’s testimony that the accused left and PW1 heard people talking in low tones in Kiswahili at the road. PW1 stated that after 20 minutes or so, he heard Lucas, the accused herein, his brother and a girl whom he knew as the accused’s girlfriend called Winnie, return to PW1’s homestead.

4.  It was his testimony that the accused was quarrelling over his girlfriend wanting to beat her but the accused person’s brother Omondi was preventing him from beating her. He testified that the accused was a close friend to Fredrick Obiero PW1’s brother and that at times the accused slept in his said brother’s house. PW1 further testified that the accused’s home was about 400 metres from the house of PW1 and that the distance from where the accused was quarrelling with his girlfriend was 50 metres away.

5.  PW1 stated that the following morning, PW1 heard a lady screaming saying, “they have killed him” while mourning. It was his testimony that he saw people gathered near the road and he approached the scene where he saw Maurice Omondi lying on the ground.  He testified that the police came and removed the deceased’s body.

6.  PW1 testified that his brother Shadrack then went and told him that the previous night, on his way from Barkalare, Shadrack found the accused and his brother Kevin Omondi and another person assaulting the deceased and that his efforts to separate them failed. PW1 testified that his brother also told him that he found Winnie standing there and that the helmet for the boda boda person was broken so he was demanding for it.  PW1 then accompanied his brother to the accused’s home where they found the accused’s mother, father and brothers whom they informed of what they knew to have taken place but that the accused’s mother and father told them that they were already aware of the report because the previous night, the accused had gone home in bloodied clothing and when his parents questioned him on where he had got the blood from, he told them that he had fallen on a motorcycle. 

7.  PW1 testified that the accused’s father told them not to report the matter to the police station because if they did so, they would be reporting the accused to which PW1 informed the accused ‘s parents that to hide such information was serious.  It was PW1’s testimony that when he inquired from the accused’s mother of the accused’s whereabouts, she informed him that they had raised Kshs. 4,000/= for Luca’s fare and that he had already left for Nairobi after which PW1 returned to his home. 

8.  PW1 testified that on 3/1/2020, his brother Shadrack went and informed him that a police officer had called him and asked that PW1 and Shadrack go to Sinaga Police Station, where they went and they recorded their statements on what they knew concerning the deceased. PW1 identified Lucas as the accused before court and further stated that the distance between their homes was about 500 metres apart. He further stated that he went to school with the accused up to Standard eight and as such he knew him well and was familiar with his voice. He reiterated that he could not confuse the accused’s voice with any other person.

9.  In cross-examination, PW1 stated that Shadrack Meshack Onyango was his brother and that from his home to Sinaga was about 5 kilometres.  He stated that he recorded his statement on 3/1/2020 and that he had not gone back to Sinaga to record another statement. He reiterated that what he told the police was what he had told the court on oath. He further reiterated that it was his brother Shadrack who called him and told him to accompany him to the police station.

10.   PW1 further stated that on the 1/1/2020 when he was called out, he did not go out to see the scuffle. He stated that both the accused and the deceased were his relatives and further that the accused was his friend.  It was his testimony that he used to school with the accused but after the accused returned from Nairobi, the accused kept the company of PW1’s brother as he, PW1, never used to take alcohol.

11.  PW1 testified that asking for a panga was not good and that he knew the lady who was screaming as ‘Nyakisumu’.  He reiterated that she was saying, “They have killed him”.  He further stated that when he went to the scene in the morning, he found many people gathered. He stated that he saw the deceased bleeding while at the scene and that he heard some children also saying that people were fighting at night at the scene. He reiterated that he did not go to where the fighting took place.

12.   PW1 testified that the accused was the one who went to the house of PW1 calling PW1 out and asking him to give him a panga which PW1 stated that he did not have. PW1 reiterated that he went to the accused’s home with his brother Shadrack to look for the accused because the incident took place at the home of PW1. He stated that he knew the accused’s parents. He further reiterated that he had no enmity with the accused and that he had not lied to the court.

13.   PW2 Shadrack Meshack Onyango a motor cycle rider testified that on the 1/1/2020 at about 9.30 pm, he was from Luanda en-route to Barkalare where someone had requested for a ride. Upon nearing his home, he stopped on seeing people gathered beating another who was lying down.  It was his testimony that he thought that it was his drunken brother but when he approached the scene he found Lucas and his brother beating up Omondi and on questioning them as to why they were assaulting Omondi, they told him that it was because of money and a helmet. 

14.   PW2 testified that the victim being assaulted was on the ground and the 2 assailants were using fists to beat up the person (Omondi).  It was his testimony that the deceased was asking: “how much money do you want” in Dholuo and the owner of motorcycle was responding, “I want my helmet”.  It was PW2’s testimony that there were five people there namely; the victim Omondi, a boda boda rider whom he did not know, Lucas’ girlfriend Winnie as well as Lucas and his brother.

15.   PW2 stated that he knew the deceased very well whom he identified as Maurice as they were neighbours. It was his testimony that after trying to separate them, he went his way. He testified that there was sufficient light from his motorcycle head lights. He testified that he went and slept and the following morning he left for work only to hear people screaming (mourning) so he went to the scene and found Maurice was dead. It was his testimony that Maurice lay where he had left him being beaten by Lucas and his brother.

16.   PW2 testified that the police went and removed the body of Maurice and PW2 called his brother PW1 and told him what he had witnessed the previous night at the same scene where the deceased was found lying dead. He testified that his brother PW1 then told PW2 to accompany PW2 to the home of Lucas where they went and found his mother, father and other brothers to whom they explained what they had witnessed.

17.   PW2 testified that Lucas’ mother told them that Lucas and his brother had gone home at night with bloodied clothes and on her inquiry as to what had happened, they told her that they had fallen from a motorcycle. It was his testimony that Lucas parent’s told PW1 and PW2 not to report to the police but to let the police discover it by themselves to which PW2 and PW1 told the parents of Lucas that if they (PW1 and PW2) were called by the police, they would say what they knew.

18.   PW2 testified that after three days, the police called him and told him to go with his brother to Sinaga to record their statements concerning the incident. He further stated that when the police looked for him they said that they heard that they ( PW1 and PW2) were involved in the incident.  He further identified Lucas as the accused in the dock and stated that he knew him prior to that date and that he had known him for a long time.

19.   In cross-examination, PW2 stated that he hailed from Lihanda sub-location, the same as the deceased and that the deceased’s home was about 500metres from his. It was his testimony that he did not say that the accused was using a rungu but his fists, at the time that he saw the accused beat the deceased.  He further stated that the following morning, he found many people gathered at the scene where he had the previous night seen the deceased being beaten.

20.   PW2 stated that he knew some of the people who were at the scene and he told the police so. He stated that his brother Benard also knew them. He reiterated that he knew Lucas and his brother Omondi. It was his testimony that he told the police that he separated the accused from the deceased who was being assaulted and that he left when they were talking over the helmet and money and he thought they would agree.

21.   It was his testimony that when he left the scene, he went to pick the client who had called him. He stated that he feared going to tell the deceased’s family because the incident took place near his –PW2’s home.  He stated that the incident occurred on 1/1/2020 and he recorded his statement on 3/1/2020. He further stated that in his statement, he said that he found Lucas, the accused and his brother beating the deceased.

22.   PW3 Nicholas Odhiambo Sogo, the Senior Chief of East Gem location testified that on 2/1/2020 at about 8 a.m. he was at his homestead when a community member, Festus Omondi, called him informing him of an incident which had taken place in his area where a body lay within a Church of Israel. He testified that he rode his motorbike to the scene where he found a body whose identity he did not know. 

23.   PW3 testified that shortly, he heard the deceased’s mother, ‘Nyakisumo’ crying. He testified that he called the OCS Yala Police Station who arrived after a few minutes and after the body had been identified, he asked the crowd that had gathered, if any of them knew the person who killed the deceased but got no answer. He further testified that the body was facing the ground so it was turned and he saw blood coming from the right nose.  He testified that the body was taken to Yala.

24.   It was his testimony that on 14/1/2020, he called a Baraza attended by the Deputy County Commissioner at Barkalare Social Hall in which he pleaded with the community to volunteer information on the death of the deceased to the DCI but nobody volunteered. He further testified that on the 2/1/2020 when he reached the scene, he spoke to the deceased’s mother who told him that her son called her the previous evening, saying he was in Kisumu at 6.30 pm but he never arrived home and his phone went off so in the morning they found the deceased dead. PW3 testified that he later heard that the accused was arrested and that PW3 traced 2 witnesses, Ochieng and Otieno.

25.   In cross-examination, PW3 stated that he investigated the ownership of the helmet of a motorcycle but he never succeeded. He stated that he did not give out any pieces of paper to the public and that he did not receive any name. It was his testimony that he did some investigations and got 2 witnesses whereas four people named the accused as a suspect.

26.  It was his testimony that he never heard of Barnabas Otieno Onyango nor did he hear of Fredrick or Kwany Onyango, Onyango Obonyo or Omondi Goye. It was his testimony that when the DCI arrived at the scene, they went to the home of Babu and found Babu with his elder brother who told them that Onyango Owalo was one of the suspects. PW3 denied lying to the court and stated that he was not related to the deceased and that he did not know the suspect until he went to the home of Babu. He denied doctoring any list of suspects.

27.    He further testified that he recorded his statement a day after the victim was found dead and that he recorded it in English and that what he had said on Oath was what he recorded with the police.

28.   PW4 Francis Ochieng a bodaboda rider at Barkalare testified that on the 1/1/2020 at 9 pm he was at Ramula and was going home and on reaching Kalare Centre, he met many people on the road. He testified that he lit the motorcycle lights and saw Babu whom he knew very well standing with the rest. He testified that he slowed down and saw people gathered though he did not know the rest.

29.    He testified that he proceeded to his home and that the following day on 2/1/2020 at about 9 a.m.  he went past the scene where he had met Babu and other people and found Maurice dead. He stated that he had not known that the dead man was Maurice and that he heard people saying it was Maurice. He stated that he proceeded to Luanda to fuel his motorcycle. He stated that he did not count how many people were at the scene that material night and further that he did not know Lucas Onyango Walo.

30.   In cross-examination PW4 stated that he was also known as Mboya. He stated that the deceased Maurice Omondi was not related to him. It was his testimony that he went to the police to record his statement on a date he could not remember and that he recorded it in the Swahili language. He stated that he only saw and identified Babu and that when he passed the scene at 9.00 a.m. the following morning he found police officers present. He stated that he was alone.

31.   PW5 Rose Juma Amolo from Lihanda sub-location testified that the deceased was her son. It was her testimony that on the 1/1/2020 she was with her son at home and that at around 3 pm, he left for Daraja Mbili to bring her diesel and that he was accompanied by Merab, Kevin’s wife whom he was escorting to her husband’s place. She testified that her son never returned home.

32.   It was her testimony that the following morning of 2/1/2020, the Assistant Chief called her at 6.00 am asking if the family was all at home but she told him that Maurice was missing. She further testified that shortly thereafter, Albert Obiero called her asking whether she knew that Maurice was killed to which she asked where and he said at Barkalare.

33.   PW5 testified that she ran barefoot to Barkalare and en-route, she found a motorcyclist who took her to the scene where she found Maurice dead with blood oozing from his mouth. She testified that she screamed painfully then she saw the Chief whom she went to speak to and he informed her that many people in East Gem were being killed. It was her testimony that a police land cruiser arrived and removed the deceased’s body to Yala mortuary and that on the 9/1/2020 she went to Yala Mortuary and identified the deceased’s body to the doctor before postmortem was conducted. She stated that the deceased was buried after the 20^th.

34.   PW6 Dr. Mbeki Melvin, a Medical Officer at Siaya County Referral Hospital testified that she carried out the postmortem on the body of Maurice Omondi Omollo, on 9/1/2020 at Yala Sub County Hospital at 1pm. It was her testimony that the body was naked and of a male, African with good nutritional status and good physique of height of 6.4ft.

35.   On the postmortem changes Dr. Mbeki testified that externally, there were bruises on both shoulders, a bruise on the right temporal region, the right eye swollen, and the sclera –inner part – white part appeared red. Internally, the Respiratory system revealed that the lungs were blackish in color, whereas the cardio vascular system revealed that the heart was enlarged and the pericardium was intact. On the digestive system there was blood within the peritoneal (inside the abdomen area) cavity, the spleen was ruptured while the stomach and intestines were intact. The genito-urinary system was intact. On the head, there was a cut wound, 5 cm long on the left temporal region and there was epidural haematoma 4cm x 3cm.The nervous system was intact with the spinal column and spinal cord intact.

36.  As a result of the postmortem, she opined that the cause of death was severe haemorrhage secondary to splenic fracture. She issued the death certificate dated 9/1/2020, which she produced as PEX 1.

37.   In cross-examination, PW6 stated that the severe haemorrhage was internal. She further stated that there was blood within the Peritonium- inside where all organs are held and that the Spleen was ruptured. She stated that there was no blood in the chest cavity but that there was a haematoma in epidural left temporal side. She further stated that the blunt trauma to the abdomen caused the rupture of the spleen.

38.   PW6 reiterated that she did the postmortem on 9/1/2020 and signed the report on the same day. She stated that the size of the clot was 4cm by 3cm. It was her testimony that there was also a cut wound on the head. She could not tell what was used to inflict the cut and that she did not check the alcoholic content in the deceased’s body.

39.    PW7 No 113559 PC Collins Kemboy testified that he took over investigations of this case from No 112862 PC Stanley Njenga who had since moved to DCI Gatanga and could not attend court as he was engaged in another matter in Gatanga.

40.   He recalled that according to the police file records, on 2/1/2020 at 9.00am, the officer Stanley Njenga was in the office when he received an anonymous call from an unknown person of a scene of murder at Barkalare area after which they proceed to the scene and found the body of Maurice Omondi Omollo lying on a road side near a church with blood stained clothes. He testified that they examined the body but did not notice physical injuries after which they removed the body to Yala sub county Hospital Mortuary.

41.   It was his testimony that on the same day, 2/1/2020, Inspector Kiboi called from Barkalare police station saying two people namely Shadrack Meshack Onyango and Benard Otieno Onyango wanted to record statements relating to the murder incident claiming to have witnessed the incident. He stated that the two persons were at Sinaga police post on 3/1/2020 but their statements were recorded at Barkalare Police Post and that the two volunteers stated that the suspects had flown to Nairobi after the murder incident.

42.  PW7 testified that on 23/2/2021, the police received a report that Lucas Onyango had returned home and had been seen by one of the witnesses after which police went, arrested him and took him to Barkalare Police station and escorted him to Yala Police Station.

43.   He testified that an order to detain him was obtained from court pending investigations and he was later escorted for mental assessment at Jaramogi Oginga Odinga Teaching & Referral Hospital and found fit to stand trial. It was his testimony that postmortem on the deceased body was conducted and the cause of death was established. He further stated that the relevant witnesses recorded their statements and the file was send to ODPP for perusal and advise after which the accused was charged with the murder of the deceased.

44.   In cross-examination, PW7 reiterated that he took over investigations from Mr. Njenga on 10/9/2021. It was his testimony that since he took over the file, he had been bonding all witnesses to attend court and that he did not know exactly when he notified the Director, Public Prosecutions that he was in charge of this file. He further stated that he found statements of witnesses that were recorded in the English Language but that there was no translation certificate.

45.   It was his testimony that it was the DCIO who instructed PC Stanley Njenga to proceed to the scene on 2/1/2020 and that on his part, he did not engage in investigations but only read the file and got all information on what transpired. He testified that Meshack and Benard presented themselves to Sinaga police post wanting to record statements on what they saw.

46.   He further testified that it was not indicated who the arresting officer was neither was he involved in the obtaining of the detention order. He stated that he had not recorded any statements on this case and only read the file after PC Njenga was transferred. He testified that there was a witness who saw the accused beating the deceased but that no murder weapon was recovered at the scene of crime.

47.  He admitted to not knowing the deceased’s mode of travel from Maseno to Barkalare. He further stated that they did not circulate information to other police stations that they were looking for the accused.

Defence Case

48.   Placed on his defence, the accused testified on oath and stated that he knew the 2 witnesses who had testified against him. He stated that he knew Benard Otieno Onyango whom he had gone to school with and that they had remained friends. He stated that he used to give Benard his cow for herding in 2018 and that he, Benard, wanted the accused to give him his motorcycle for him –Bernard to operate as boda boda. He stated that Bernard got annoyed when the accused declined the request.

49.   The accused testified that when he gave Bernard a cow, they wrote an agreement that Bernard takes the first calf. He further testified that he got into a problem and wanted to sell the cow before calving but he could not trace Benard on phone so he called Bernard’s mother and brother and told them to sell the cow and remit the money to the accused person and to retain Kshs. 3,000 because the cow had stayed for 6 months with them and they complied and send the accused Kshs. 14,000.

50.   The accused further testified that he then went home and met PW1 who questioned him why he sold the cow without consulting him to which he told PW1 on what transpired as he could not trace him.  The accused testified that PW1 warned him saying he was proud and he would see and that from that time, PW1 became his enemy though the accused had no issues with him. 

51.   The accused testified that he learnt that the cow was sold at Kshs. 17,000 and he received Kshs. 14,000. It was his testimony that he never heard Chief Nicholas Odhiambo say he was told about the person who killed the deceased nor that he threatened to kill the deceased or that the police were looking for the accused person. He further testified that he was not given the postmortem form at the time when he was charged.

52.   In cross-examination, the accused stated that he had no agreement in writing with Bernard over the cow. He further stated that Benard was PW1 and that no question was put to him concerning the cow or motorcycle.

Analysis and Determination

53.   I have considered the evidence adduced herein by both the prosecution witnesses and the defence proffered by the accused person. The main issue for determination is whether the prosecution has proved its case against the accused person to the required standard and which standard has been held to be that of beyond any reasonable doubt.

54.   Section 203 of the Penal Code provides that:

“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

55.   For the Prosecution to secure a conviction on the charge of murder, it has to prove four main elements against an accused person. In Anthony Ndegwa Ngari v Republic [2014] eKLR, the elements of the offence of murder were listed as follows:

(a) that the death of the deceased occurred;

(b) that the death was due to an unlawful act or omission;

(c) that it was the accused who committed the unlawful act or omission which caused the death of the deceased; and

(d) that the accused had malice aforethought.

56.   On whether there was proof of death and the cause of the said death, the death of the deceased was proved by the evidence of PW1,2,3 and 4 all who saw the deceased’s body at the scene of crime. PW5, the deceased’s’ mother in addition to seeing the deceased’s body at the scene also attended the deceased’s post-mortem that was carried out on the 9/1/2020 at Yala Hospital mortuary by PW6 Dr. Mbeki.

57.   As to the cause of the deceased’s death, PW6 Dr. Mbeki produced a post-mortem report as PEX 1 detailing the injuries found on the body of the deceased and her opinion or conclusion on the cause of death as being head injury due to blunt trauma to the head and haemorrhage due to splenic rupture.

58.    On whether the death of the deceased was caused by an unlawful act or omission, the aspect of when an act causing death can be said to be lawful has been recognized from the time immemorial. Article 26 of the Constitution is clear that every person has the right to life and that a person shall not be deprived of life intentionally except as au or other written law. In Gusambizi Wesanga v Republic [1948] 15 EACA 65 the Court stated:

“Every homicide is presumed to be unlawful except where circumstances make it excusable or where it has been authorized by law. For a homicide to be excusable it must have been caused under justifiable circumstances, for example in self-defence or in defence of property.”

59.   As stated above, there is no doubt that the death of the deceased was caused by the injuries that he sustained on the head as well as splenic rupture as was detailed in PEX 1. There is no evidence showing that the injuries found on the body of the deceased were self-inflicted or that it was justified in any way under the law. Further evidence presented before court irresistibly points to an unlawful act that led to the death of the deceased following an assault. Accordingly, I find and hold that the death of the deceased was caused by an unlawful Act.

On whether the prosecution have proved beyond reasonable doubt that it was the accused person herein who committed the unlawful act which caused the death of the deceased, the accused has denied committing the unlawful act leading to the deceased’s death. The question is, who caused the unlawful act that led to the demise of the deceased?

60.   What does the evidence adduce by the prosecution reveal? From the onset, the burden of proof lies on the prosecution throughout the trial and that burden does not shift to the accused person even if the accused chose to remain silent as that is his constitutionally guaranteed right. See Article 50(2)(i) of the Constitution. In addition, the accused has the right not to give any self-incriminating evidence. See Article 50(k) of the Constitution.

61.  From the evidence on record, it is only PW2 who testified that he saw the accused and his co-accomplices assaulting the deceased. His evidence is that he saw the accused and others not before court beat up the deceased with their fists and it was on the road. That the deceased was lying on the ground. PW2 lays out the crime scene vividly stating that although it was at night, the area was well illuminated by the headlights of his motorcycle and he further named those whom he saw at the scene. He names the deceased, the accused and his brother, the accused’s girlfriend Winnie and a boda boda rider whom he did not know.

62.   PW2 further stated that he spoke to the five and asked them why they were beating the deceased and they said that it was because of money and a helmet. That he tried to intervene to stop the attack on the deceased but he did not succeed so he left only for him to learn the following day that the deceased was found dead at the same scene where PW2 found the deceased being assaulted from.

63.  The question is whether this evidence by PW2, a single identifying witness and at night is sufficient to find the accused guilty of the offence of murder. That being the issue here, I must examine the law on reliance on such evidence. In Wamunga v Republic (1989) KLR 424 the Court of Appeal stated as follows regarding the evidence of identification generally:

“It is trite law that where the only evidence against a defendant is evidence on identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.”

64.  In Ogeto v Republic (2004) KLR 19 the Court of Appeal held that a fact can be proved by a single identification witness except that such evidence must be admitted with care where circumstances of identification are found to be difficult. The Superior Court stated:

“It is trite law that a fact can be proved by the evidence of a single witness although there is need to test with the greatest care the identification evidence of such a witness especially when it is shown that conditions favouring identification were difficult.  Further, the Court has to bear in mind that it is possible for a witness to be honest but to be mistaken.”

65.   Earlier on, the Court of Appeal for East Africa discussed the danger of relying on such evidence of a single identifying witness without warning in Roria versus Republic (1967) EA 583 at page 584. It stated:

“A conviction resting entirely on identity invariably causes a degree of uneasiness…

That danger is, of course, greater when the only evidence against an accused person is identification by one witness and though no one would suggest that a conviction based on such identification should never be upheld it is the duty of this court to satisfy itself that in all circumstances it is safe to act on such identification.”

66.   The Court further cited its own decision in Abdala bin Wendo & Another v Republic (1953), 20 EACA 166 where it held:

“Subject to certain well known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to the guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.”

67.   The necessity for the trial court to warn itself of the dangers of relying on the evidence of visual identification by a single witness was also dealt with by the Court of Appeal in Kisumu Criminal Appeal No. 20 of 1989, Cleophas Otieno Wamunga v Republic where the Court observed that evidence of visual identification in criminal cases can bring about a miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. The court stated that whenever the case against an accused person depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the accused based on the evidence of the identification.

68. In Criminal Appeal No. 24 of 2000 Paul Etole& Reuben Ombima v Republic, the Court of Appeal reiterated the need for caution and stated that:

“The appeal of the 2^nd appellant raises problems relating to evidence and visual identification. Such evidence can bring about miscarriage of justice. But such a miscarriage of justice occurring can be much reduced if whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused, the court should warn itself of the special need for caution before convicting the accused. Secondly, it ought to examine closely the circumstances in which the identification by each witness came to be made. Finally, it should remind itself of any specific weakness which had appeared in the identification evidence. It is true that recognition may be more reliable than the identification of a stranger; but even when witness is purporting to recognize someone who he knows, the court should remind itself that mistakes in recognition of close relatives and friends are sometimes made.

All these matters go to the quality of the identification evidence. When the quality is good and remains good at the close of the accused’s case the danger of mistaken identification is lessened, but the poorer the quality the greater the danger. In the present case, neither of the two courts below demonstrated any caution. This is a serious non-direction on their part. Nor did they examine the circumstances in which the identification was made. There was no enquiry as to the nature of the alleged moonlight or its brightness or whether it was a full moon or not or its intensity. It was essential that there should have been an enquiry as to the nature of the light available which assisted the witnesses in making recognition. What sort of light, its size and its position the vis-à-vis the accused would be relevant?”

69.    Having considered the evidence of PW2 the single identifying witness who testified that he knew the accused and other 3 people at the scene and named them except the boda boda rider and that he spoke to them as they assaulted the deceased who lay on the ground and that they even told him why they were assaulting the deceased citing money and the helmet, and that he saw them using his motor cycle headlights, I warn myself of the dangers of relying on such evidence as stipulated in the case law cited above. The question therefore is whether that evidence of PW2 was corroborated by other independent evidence.

70.    PW1 the brother to PW2 stated that PW2 revealed to him the following day, following the incident witnessed by PW2 that on the material night, he had found the deceased being assaulted by the accused herein in the company of Winnie, the accused person’s brother and another boda boda and that together, PW1 and PW2 proceeded to the accused’s home where they found his parents and they informed the accused’s parents and siblings on what PW2 had witnessed who, according to PW1 and PW2, the parents of the accused person urged PW1 and PW2 not to report the matter to the police but to let the police find out on their own. PW2’s evidence in my humble view is corroborated by that of his brother PW1.

71.   Both PW1 and PW2 also testified that by the time they made the report to the accused’s parents and family members, the said parents told PW1 and PW2 that they had already assisted the accused with fare to flee to Nairobi. This is corroborated by the evidence of PW7 who testified that in the course of their investigations, the police became aware of the fact that the suspects had escaped to Nairobi after the attack on the deceased and that the police only managed to arrest the accused on the 23/2/2021 after receiving information that the accused had returned home. The question is, why did the accused person who was so innocent flee to Nairobi for a year and upon his return, he was nabbed by the investigators in this case?

72.    It is also not lost to this court that the evidence of PW1 was that on the evening prior to the death of the deceased, which was on 1/1/2020, he went to his home at about 6.30 pm and found the accused herein and his brother sitting on a bench at PW1’s homestead. PW1 entered his house and stayed until 7pm when he heard his sister asking the accused Lucas why he was sited outside on a bench and what he was doing there in the night with his brother and PW1 heard the accused respond that he was ok. Again, at 9.00pm, while PW1 was in his house, he heard someone calling him out and he recognized the voice to be that of the accused herein saying “Bena, Bena, give me a panga. Today I must kill someone” and PW1 told the accused that he did not have the panga as it was at his mother’s house then the accused left the homestead of PW1 and the latter heard people talking in low tones in Kiswahili at the road. After 20 minutes, PW1 heard the accused who was with his brother and Winnie, his girlfriend, return to PW1’s homestead and that the accused was quarrelling his girlfriend and wanting to beat her up but his brother, Omondi prevented the accused from beating her. The accused, PW1 and PW2 were people who were well known and acquainted to one another, from the testimony of these two witnesses and the accused person too stated so and added that he went to school with Bernard.

73.    I have carefully assessed this evidence adduced by the two prosecution witnesses and on its own, even without the defence tendered by the accused. The accused points the finger at PW1 as one who is set on fixing him after a deal they had entered into for a cow and motorcycle went wrong.

74.   Indeed, the accused has no duty to adduce and challenge evidence. However, I find the evidence by PW1 and PW2 credible. There was nothing suggestive of them framing the accused with such a heinous offence. In my view, the defence presented by the accused of a cow issue was not credible. Furthermore, no question was ever put on the two witnesses over the deal over the cow that could have influence the two witnesses to frame the accused with the offence herein. I find the defence devoid of any credibility and or substance. I dismiss it.

75.   The evidence of PW1 whom the accused admitted knowing very well as they grew up together, and which evidence this court finds credible and uncontroverted, coupled with the evidence of PW2, places the accused centrally as the perpetrator of the offence leading to the deceased’s death. The accused asked for a panga from PW1 so that he could kill someone. If the accused had no intention of killing anyone, why did he say he wanted the panga to kill someone that night?

76.  The evidence of PW2 is not just that of a passer-by. It is evidence of a person who stood at the scene of crime without fearing any consequences from the accused and his accomplices, as him and the accused and the latter’s brother knew one another very well PW2 identified the participants at the scene as they assaulted the victim. He did so using the headlights of his motor cycle. There is no contrary evidence that PW2 even asked them questions as to why they were assaulting the deceased and he also tried to restrain the accused and the other participants from harming the deceased before going his way.

77.  Further, the evidence adduced by PW2 paints the accused as the last person seen alive with the deceased. PW2 testified that the scene of crime where the deceased lay and was later found dead is where PW2 saw the accused and his brother and in the company of his girlfriend and a bodaboda man assaulting the deceased. The doctrine of last seen alive is based on circumstantial evidence where the law prescribes that the person last seen with the deceased before his death was responsible for his death and the accused is expected to provide any explanation as to what happened. Nonetheless, this does no shift the burden of proving the guilt of the accused person by the prosecution beyond reasonable doubt. However, having been placed at the scene of the incident as the person who was last seen with the deceased before he died, the accused has a duty to give an explanation of what he was doing at the scene and how the deceased victim of his vicious assault as was seen by PW2 met his death.

78.  Under Sections 111(1) and 119 of the Evidence Act:

“111. (1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:

Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecuting, whether in cross-examination or otherwise, that such circumstances or facts exist:

Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.”

“119. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”

79. In Republic v E K K [2018] eKLR the Court held thus and I agree, concerning the last seen with the deceased doctrine:

“Regarding the doctrine of “last seen with deceased” I will quote from a Nigerian Court case of Moses Jua V. The State (2007) LPELR-CA/IL/42/2006. That court, while considering the ‘last seen alive with’ doctrine held:

"Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, the court is justified in drawing the inference that the accused killed the deceased.”

80.     In Stephen Haruna v The Attorney-General Of The Federation (2010) 1 iLAW/CA/A/86/C/2009  cited severally by Kenyan Courts,  the Nigerian Court of Appeal held that:

"The doctrine of "last seen" means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstance. In the absence of a satisfactory explanation, a trial court and an appellate court will be justified in drawing the inference that the accused person killed the deceased.”

81.     In Ramreddy Rajeshkhanna Reddy & Another v State of Andhra Pradesh, JT 2006 (4) SC 16 the Indian Supreme Court held that:

“Even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.”

82.  In the present case, and from the evidence of PW2 it is the accused who was the last person ‘to be seen’ with the deceased. The deceased was found dead the following morning at the same scene where he was last seen with the accused and his accomplices. The accused person was under no duty to adduce and challenge the prosecution’s case but having been the last seen person by PW2, he failed to offer any explanation as to how the deceased met his death at the scene where the accused and others were seen assaulting the deceased.  His defence, as I have stated above, that he was framed, was, in my view, not credible and amounted to a mere denial.

83.  In the circumstances I am satisfied that the prosecution has proved that it was the accused who committed the unlawful act which caused the deceased’s death.

84.  On whether the accused had malice aforethought when he unlawfully killed the deceased, under section 206 of the Penal Code, 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 death or grievous harm to some person, whether that person is the person killed or not, accompanied by indifference whether death or grievous injury occurs or not or by a wish that it may not be caused.

(c) an intention 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.”

85.  The prosecution has a duty to prove malice aforethought on any of the circumstances stated under section 206 of the Penal Code.  What can be deduced from section 206 (a-e), malice aforethought can be either direct or indirect depending on the peculiarity and facts of each case during the trial. The courts in interpreting the provisions of section 206 have stated as such in various authorities. In the classic case of Republic v Tubere S/O Ochen [1945] 12 EACA 63 the court held that an inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before, during and after the attack.

86.  In the instant case, evidence adduced by the prosecution shows that the aim of the deceased’s attacker was clearly to cause grievous harm. This is further established by the nature of injuries suffered by the deceased which were as follows: there were bruises on both shoulders, there was a bruise on the right temporal region, the right eye was swollen, and the sclera –inner part – white part appeared red. Internally, the Respiratory system – lungs were blackish in color. The heart was enlarged. Digestive systems: There was blood within the peritoneal (inside the abdomen area) cavity. The Spleen was ruptured. On the head, there was a cut wound, 5 cm long on the left temporal region. There was epidural haematoma 4cm x 3cm.

87.  An attack on one’s head and body parts such as the spleen is an attack on the life of a person. The attackers had the ultimate intention of eliminating the deceased although the motive is unclear save that the accused was in the company of his brother and girlfriend at the material time. His accomplices have not been apprehended. Nonetheless, motive is immaterial in proving one’s criminal responsibility. That is clear from Section 9(3) of the Penal Code which provides that:

“Unless otherwise expressly declared the motive by which a person is induced to do or omit to do an act or to form an intention, is immaterial so far as regards criminal responsibility.”

88.  In case of Joseph Wambirwa Mwanthi v- Republic, Criminal Appeal No 63 of 2005 (CA Nyeri), the Court of Appeal stated that “Generally speaking, motive is not essential to prove a crime.”

89.  However, the same court stated in Lubambula v R [2003] KLR 683 that:

“Motive becomes an important element in the chain of presumptive proof and where the case rests on purely circumstantial evidence. Motive of course, may be drawn from the facts, though proof of it is not essential to prove a crime.”

90.  In David Kipkemboi Ngetich v Republic, Nakuru Cr. Appeal No. 276 of 2006 (CA) the Court of Appeal stated that the relevance of motive is  “is to contextualize the circumstances in which the offence charged was committed.”

91.  In this case, as motive for the unlawful killing of the deceased was not clear from the evidence adduced, this court will not speculate on the same. Only the accused and his accomplices know why they attacked and unlawfully killed the deceased, as the accused had sought a panga from PW1 to kill someone.

92.  In the end, I find and hold that the prosecution has proved all the elements of the offence of murder against the accused person beyond reasonable doubt.

93.  Accordingly, I find the accused person Lucas Onyango Walo GUILTY of the offence of murder as charged contrary to section 203 of the Penal Code. I convict him accordingly.

94.  Sentence will be after records and mitigation.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 22ND DAY OF MARCH, 2022

R.E. ABURILI

JUDGE