Republic v Felix Kenga Akech, Nicholas Otieno Onyuro, Maximilan Onyango Otunga, Duncan Odhiambo Ahinda, John Odhiambo Abuodha & Kevin Otieno Ongany [2018] KEHC 4862 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CRIMINAL CASE (MURDER) NO. 57 OF 2013

REPUBLIC....................................................PROSECUTOR

VERSUS

FELIX KENGA AKECH..................................ACCUSED 1

NICHOLAS OTIENO ONYURO.....................ACCUSED 2

MAXIMILAN ONYANGO OTUNGA............ACCUSED 3

DUNCAN ODHIAMBO AHINDA..................ACCUSED 4

JOHN ODHIAMBO ABUODHA..................ACCUSED 5

KEVIN OTIENO ONGANY..........................ACCUSED 6

RULING

1. Accused persons are jointly charged with the Offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code.

The particulars of the charge are that on 10th November, 2013 at Kadiju in Kisumu East District within Kisumu County murdered DICKSON OTIENO NYAMASI alias Kwaru

2.  In support of its case, the state called a total of 4 witnesses whose evidence I have summarized as follows:

3. PW 1 Peter Onyango Obwon,deceased’s uncle found deceased’s body in a bathroom on 10. 11. 13. Together with PW2, Lucy Wanjiru Nyamasi, they identified deceased’s body to the doctor who conducted a postmortem at Jaramogi Oginga Odinga Teaching and Referral Hospital on 20. 11. 13.

4. PW5 Job Omondi Andiego recalled that on the night of 9th and 10th November, 2013, he went to a disco matanga. He stated that as he was returning home at 4. 00 am in company of his brother Harrison and deceased, they were attacked by a group of about 35 men. He stated he was able to identify Ogolla and one Kobole who was armed with a spear. It was his evidence that Kobole stabbed him on the buttocks with the spear and he ran away thereby parting ways with Harrison and Dickson. He learnt about deceased’s death the an hour later at about 5. 00 am.

5. PW4 Caled Matengo Osore,an assistant chief recalled that upon receiving the murder report, he visited the scene and found deceased’s body in the bathroom in the compound of one Caroline Onyango. It was his evidence that after the body was removed to the mprtuary, he called a meeting of village elders and one Mbuya Ocholla named accused persons herein as the suspects and they were thereafter arrested and charged. He stated that a spear suspected to have been the murder weapon was recovered from the house of accused 6.

6. PW3 PC Peter Ewoi, testified that he took over the case from PC Kwambai long after accused persons were charged. the investigating officer arrested and charged. He stated that accused persons were implicated by PW3 Job Omondi.  With the consent of the defence counsel, he produced deceased’s postmortem report (PEXH. 1) which shows that deceased died of massive hemopericardium secondary to laceration of the left ventricle of the heart due to penetrating thoracic injury. He produced the spear head as PEXH. 2. and a jungle green jacket and black shirt as PEXH. 3 and 4 respectively. He also produced the government analysts report PEXH. 5 which confirmed that jungle green jacket and black shirt as PEXH. 3 and 4 were stained with deceased’s blood while the spear head was not stained with blood.

7. At the close of the prosecution case, there is no doubt that the deceased died. The postmortem form, PEXH. 1,shows that deceased died of massive hemopericardium secondary to laceration of the left ventricle of the heart due to penetrating thoracic injury.

8. None of the prosecution witnesses stated that accused persons either jointly or any of them committed the unlawful act that caused the death of the deceased. PW5 Job Omondi Andiego who is alleged to have implicated accused persons exonerated them and implicated one Kobole who he said attacked him, Harrison and the deceased on the material night and that he was armed with a spear. He however stated that he did not know how deceased met his death because he ran away from the scene of attack after Kobole stabbed him on the buttocks with a spear.

9. One Mbuya Ocholla who allegedly gave a list containing accused person names,as the suspects in the murder, to PW4 Caled Matengo Osore was not called as a witness to shed light on the said list or why he implicated accused persons.

Disposition

10. From the totality of the prosecution case, I am not persuaded that there is sufficient evidence to warrant this Court to put the Accused persons on their defences because to do so would be an academic exercise in futility.

11. Consequently, I find that there is no evidence that the accused persons or any one of them committed the offence of murder that they are charged with. I find them NOT GUILTY and order that they be set at liberty unless otherwise lawfully held.  It is so ordered.

DATED AND DELIVERED IN KISUMU THIS1STDAY OF AUGUST2018

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant                          -   Felix

Accused 1                                 - Present

Accused 2                                 - Present

Accused 3                                 - Present

Accused 4                                 - Present

Accused 5                                 - Present

Counsel for Accused Persons      -  Ms. Nyangalo h/b for Mr. Paskal

For the State                            -   Mr. Muia