Republic v Ogot & another (Criminal Case E016 of 2021)  KEHC 15338 (KLR) (14 November 2022) (Judgment)
Neutral citation:  KEHC 15338 (KLR)
Republic of Kenya
Criminal Case E016 of 2021
KW Kiarie, J
November 14, 2022
Kevin Otieno Ogot
Moses Omondi Paul Sumba
1.Kevin Otieno Ogot and Moses Omondi Paul Sumba are charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code.
2.The particulars of the offence are that on the 25th day of February, 2021 at Shauri Yako Estate, Homa Bay Sub County of Homa Bay County, jointly with another not before court murdered Janevive Adienge.
3.Janevive Adienge was born with some disability. The second accused informed the mother of the deceased that someone was going to treat her (deceased) at home. On February 25, 2021 the first accused went to her home and using a syringe gave the child some “medicine” orally and the deceased started to convulse. She subsequently died.
4.In his defence the 1st accused contended that while conducting his boda-boda business, one Lucas gave him some items to take to his (Lucas) sister in-law. After giving the items to the woman, he heard screams and he was arrested on allegations that the items had caused a problem.
5.The second accused on his part contended that at the time of the alleged offence, he was admitted at Migori County Referral hospital.
6.The issues for determination are:a.Whether the first accused was falsely implicated in the offence or not;b.Whether the alibi defence of the 2nd accused was displaced or not;c.Whether either or both accused caused the death of the deceased or not; andd.Whether the offence of murder was proved.
7.According to the evidence of Joyce Adhiambo (PW3) the second accused who is related to her, invited her to Homa Bay County Referral Hospital in July 2020 and promised her assistance for the deceased who was disabled. He informed her that some help was going to come from a non-governmental organization. On that day he gave her some shopping of some consumable items.
8.Previously, Lucas Odhiambo Okello, a maternal uncle of Joyce (PW3) had collected her child’s birth certificate, her KRA PIN and a copy of her identity card and informed her that he was taking them to a non-governmental office.
9.It has emerged from the evidence of Derrick Oduor Okindo (PW6) Lucas Odhiambo Okello had taken a policy number PMC8012501. The beneficiary of the policy was Lucas Odhiambo in the event Joyce Adhiambo (PW3) passed on and in the event Janevive passed on, Joyce Adhiambo (PW3) was to be the beneficiary. This policy is dated June 5, 2020. This is the background to this case.
10.Joyce Adhiambo (PW3) testified that on February 25, 2021 the first accused who was a stranger to her, called her. She went and met him and they went to her home. He gave her some forms to fill. The details of the child, her name and that of her husband were needed. This, according to what he told her, was to facilitate for the assistance of her daughter. He then gave some oral medicine to her daughter using a syringe. The child started to convulse. The accused left running and she raised an alarm. Members of public managed to arrest him.
11.The evidence of Tabu Jonathan Odiero (PW2) was that on February 25, 2021 at about 11 am he saw the first accused in company of Joyce. The two entered into the house of Joyce and after a short while he heard Joyce raise an alarm that he had killed her child. He saw the first accused running away with a syringe. He was arrested by boda-boda riders with the syringe.
12.Kevin Otieno Ogot (1st accused) contended that he innocently delivered some shopping items to Joyce after he was sent by Lucas. He contended that he was in the house of Joyce for about one minute. He also denied that he was arrested with any documents.
13.The evidence of Tabu Jonathan Odiero (PW2) and Joyce Adhiambo (PW3) was that the first accused had a syringe while running away and when he was arrested. This is the syringe Joyce Adhiambo (PW3) testified to have been used by the first accused to give some substance to the deceased. This evidence has displaced the defence of the first accused.
14.Whenever an accused person pleads an alibi, the onus is on the prosecution to prove falsity of it. In the case of Victor Mwendwa Mulinge vs Republic  eKLR the Court of Appeal rendered itself thus:
15.The second accused contended that he was admitted in hospital from February 22, 2021 to February 26, 2021 and produced receipts. He also called witnesses who supported his claim. All the receipts produced except the last one have been interfered with where the date appears. The last receipt produced is dated August 2, 2022. This cannot support his claim. This is an attempt to mislead the court. I find that his alibi defence is false.
16.The evidence against the second accused is circumstantial. In the case of Mohamed & 3 others vs Republic 1KLR 722 Osiemo Judge explained what circumstantial evidence is as follows:
17.The circumstantial evidence adduced show that since 2020, the second accused was involved in the scheme. The inculpatory facts are incompatible with his innocence, and incapable of an explanation upon any other reasonable hypothesis than that of his involvement knowingly.
18.It would appear that this was a cleverly planned scheme to eliminate both the deceased and her mother for the benefit ultimately of Lucas Odhiambo. I make a finding that the two accused persons were in the plot in spite of their protestation.
19.In order to found conviction on the evidence on record, the prosecution must prove the existence of malice aforethought. In Black’s Law dictionary, 10th Edition malice aforethought is defined as:Section 206 of the Penal Code gives instances when malice aforethought may be proved. It provides:In the instant case, I find that the prosecution has proved the offence of murder against each of the accused. I accordingly find each of them guilty of the offence and convict him of the offence of murder.
DELIVERED AND SIGNED AT HOMA BAY THIS 14TH DAY OF NOVEMBER, 2022.KIARIE WAWERU KIARIEJUDGE