State v Okiri [2022] KEHC 14989 (KLR)

State v Okiri (Miscellaneous Criminal Case E030 of 2021) [2022] KEHC 14989 (KLR) (7 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14989 (KLR)

Republic of Kenya

In the High Court at Siaya

Miscellaneous Criminal Case E030 of 2021

RE Aburili, J

November 7, 2022

Between

State

Prosecution

and

Nelson Ochieng Okiri

Accused

Judgment

Introduction 1. Nelson Ochieng Okiri is charged with the offence of murder contrary to section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. The particulars of the offence are that on the 20th day of August 2021 at Nyabera village, Nyabera sub-location in West Uyoma location within Rarieda sub-county of Siaya County, jointly with others not before court murdered one Raphael Vincent Ogosi.

2. The accused person pleaded not guilty to the charge against him and the matter proceeded to trial. The prosecution called a total of ten (10) witnesses in support of its case which is summarised herein below.

The Prosecution’s Case 3. PW1 PO, a minor of 14 years old gave unsworn testimony after voire dire examination that the accused is his maternal grandfather whom he used to live with and they slept in the same house. He testified that he now lives at Obaga. It was his testimony that on the 20/8/2021 at about 11pm - 12. 00 midnight, he was in the house when he heard screams rom outside so he went and stood at the door and heard people fighting. It was his testimony that the light was on and that shortly, his grandfather went out to find out what was happening. PW1 testified that his grandfather told him that he wanted to go and get a tyre for a motorbike so his grandfather went and took a tyre from Daniel, one of the boys who were assaulting the deceased Raphael.

4. PW1 testified that his grandfather also took a whip and stood by and started whipping Raphael. He further testified that another boy called Alati carried a panga and that he used it to hit the deceased Raphael Ogosi. He added that they lifted Raphael and beat him as they led him away.

5. PW1 testified that he followed and saw what they were doing to Raphael, that they were beating him. He reiterated that he was close to them at a distance of like from the witness box to the dock in court. It was his testimony that another boy went to Raphael’s house, returned with a plastic jerrycan then used itl to burn Raphael Ogosi. He further testified that he saw his grandfather, the accused, whip the deceased as Alati cut the deceased on the head. It was his testimony that another boy brought waste and they hit it and burnt him. PW1 testified that when his grandfather took the tyre, they said they should burn the deceased Raphael with a tyre and that another boy took that tyre, cut it into small pieces then they placed the pieces on Ogosi and burnt him alive as Raphael was screaming.

6. PW1 further testified that another grandfather called Phan Okiri came and told him not to go near where the incident was taking place. He testified that he went back to the house and left his grandfather at the scene. He further testified that the following morning at 8. 00am, a lady went and told them that the deceased was dead. It was his testimony that he went and found Raphael, called him by name but he did not respond so he went and informed his grandmother then returned to his home.

7. PW1 testified that it was at night but that the assailant, Daniel, had a torch so he saw very well what they were doing. He testified that Jim asked the deceased, “Utaiba tena?” but the deceased remained quiet. He testified that he heard his grandfather saying the deceased should be beaten as he, Raphael walked towards the path where the said Raphael was being assaulted. PW1 identified the accused as his grandfather, in court.

8. In cross-examination, PW1 restated that when he heard noises from out, he got out then his grandfather got out too. He testified that he saw Daniel, Jim & Alati assaulting Raphael before the accused got out. It was his testimony that both Daniel & Jim had a club while Alati had a panga. He further testified that Daniel had a torch and was also calling out the names of Jim and Alati. He further testified that he knew all the three of them as they went to his home and as he could also recognize their voices.

9. PW1 testified that they lived with Daniel and that when he reached near where Raphael was being beaten, he saw them assaulting Raphael. He reiterated that he saw his grandfather whip Raphael with a big whip. He further stated that he did not hear the accused say that he was going to help Raphael. He further restated that he saw the accused whip the deceased on his buttocks and that he saw Daniel with a club hitting the deceased on the back. He further stated that Jim was also hitting Raphael on the back with a club as Alati used a panga to hit the deceased.

10. PW1 stated that the accused was holding a tyre so he thought that he had taken it from Daniel but he gave it to Daniel. It was his testimony that Daniel brought a plastic jerry can and lit it on Raphael. He further testified that the following morning, he went to the scene and found Raphael lying dead. PW1 restated that there were 4 people who assaulted the deceased. He stated that they beat him on the path before they led him to his home. He stated that he was walking as they led him away. He further stated that his grandfather also followed them. PW1 stated that he went back to the house and left his grandfather Nelson with the deceased and other assailants. It was his testimony that after going back to the house to sleep, he never heard the accused say anything concerning the incident.

11. In re-examination, PW1 stated that he saw his grandfather standing holding a tyre though he was not sure whether he got it from Daniel or whether he removed it from the house.

12. PW2 Mary Adhiambo Opiyo from Uyoma Kokwiri testified that the deceased was his grandson. He testified that on the 20/8/2021 at about midnight, she was in her house sleeping as she was sick. She testified that she heard screams which had been going on from around 9pm and she thought the that the screams were from drunkards. She further testified that towards 11pm - 12 midnight, she heard the voice of Raphael Vincent Ogosi saying in Dholuo – “ee kwa nini mnaniuua na mimi ni damu yenu?” Why are you killing me yet I am your blood?”

13. It was her testimony that she opened the door and stood out and heard what was happening. She further testified that her legs were swollen and her head was aching but that she stayed outside listening to what was happening and heard one person saying “Move him away” and another saying “take him to the road” whilst another said “you mean he is being killed”. It was her testimony that she heard Nelson Ochieng say “Today you must die” and that they beat him thoroughly then they went silent.

14. PW2 testified that she then heard footsteps towards her house and thought Raphael was escaping. She testified that she got into the house and left the door slightly open and heard someone pass so she opened the door. It was her testimony that there was moonlight and that she asked the person, “Otieno who are you?” three times and he told her “why can’t you go to rescue your grandchild.” It was her testimony that she asked him which grandchild he was referring to and he said it was Ogosi being killed so she questioned him why he was not rescuing him yet they were friends with Ogosi. She testified that she told him to go and rescue Ogosi or even scream for help but Otieno went to his house. It was her testimony that Otieno was also her grandchild.

15. PW2 testified that she heard Nelson Ochieng, whose voice she knew, saying “today you must die”. It was her testimony that she had known Nelson since he was born and that he was younger than her. She testified that he was a nephew to her husband and that they live near each other. She further testified that his father follows her husband and that they lived 200 meters apart. She stated that she heard the noises about 150 meters away.

16. PW2 testified that the following morning, PO, PW1 went to her house and she heard him speaking to someone after which he went and returned saying “grandma, go and see where Ogosi is lying in a bad place and it appears someone killed him”. She testified that he led her to the scene where she found Raphael lying dead. She testified that she recorded her statements with the police and that the body was taken by police. PW2 identified the accused in the dock as Nelson, the accused in the dock.

17. In cross-examination, PW2 stated that she could not tell the person who said “wewe ndiye ulipeleka majina ya watu kwa polisi”. She restated that she heard Nelson Ochieng say “wewe leo lazima ukufe”s She further stated that when Otieno passed by and told her that her grandson was being beaten, she asked him who was killing Ogosi since Otieno was also her grandson. She further stated that she knew Nelson Ochieng as they were closely related as he was her nephew and they were in the same home and interacted all the time.

18. PW3 Samuel Akello Gumo, the Assistant Chief of Nyabera Sub Location testified that on the 21/8/2021 at 8. 30am or thereabouts he was at his home when a resident of his Sub Location Phan Okiri went and reported the death of Raphael Vincent Ogosi. He further testified that he went to the scene and found the deceased with injuries-cuts on his body with his hands tied. He testified that besides the deceased were two pieces of plastic jerry cans and one motorcycle tyre that was black in color.

19. PW3 testified that he called the OCS Aram Police Station who went to the scene with the DCI Aram and they tried to find out what happened and Phan told them that he heard some noises at night. He further testified that both the suspect and the deceased were from the same clan. He testified that the OCS and his team removed the body to Madiany Mortuary for postmortem awaiting investigations.

20. It was his testimony that later on 5/10/2021, he was in his office with village elders when he received information from one Nyumba Kumi on phone that Nelson Okiri, the suspect had been spotted at his home. He testified that they went and arrested him and notified the DCI Rarieda Mr. Chege who went and rearrested Raphael sand escorted him to Aram Police Station. He tated that Nelson was one of his residents and identified Nelson Okiri as the accused in the dock.

21. In cross-examination, PW3 stated that Phan told him that he heard of the murder. He further stated that the items found at the scene of murder were partly burnt and that he saw burns on the body of the deceased, at the chest and lower abdomen. It was his testimony that the whereabouts of the other suspects involved was not known.

22. PW4 Terry Akinyi Odhiambo testified that on 21/8/2021, at 6am, she was going to borrow an axe from her in-law when she found the deceased Ogosi lying dead near the home of Phan. She testified that she went and called PO, a grandson to Ogosi and sent him to go and call Mary, a grandmother to the deceased. She testified that she stayed there until the Assistant Chief arrived then they were taken to Aram Police Station.

23. PW5 Fredrick Odhiambo Opiyo, the deceased’s uncle testified that on the 27/8/2021 he witnessed postmortem being carried out on the deceased’s body at Madiany Mortuary.

24. PW6 Stephen Otieno was treated as a hostile witness and cross examined by the prosecution as his testimony in court was at variance with the statement that he gave to the police. It was his testimony in cross-examination that he recorded his statement at Aram Police Station and told the police that Daniel was awoken at about 10pm by people whom he left in their company. He testified that he saw the people who went to wake up Daniel and identified them by name as Remi Otieno, Alati and Vincent Raphael.

25. PW6 testified that when Daniel opened the door, he lit a torch at the three people using his torch. He testified that he was sitting on a chair about 5 metres from where the three were and that he went to close the door after Daniel left with the three people. He testified that he went outside first before he returned to the house and closed the door.

26. It was PW6’s testimony that while he was outside the house, he saw Raphael tied with a rope on his hands. He testified that Alati was carrying a panga whilst Remi carried a Rungu. He testified that they went away with the said Raphael and that Daniel went with them. He further testified that Daniel lit the torch and that is when he saw Alati, Remi and Raphael very well. He testified that they were all beating Raphael while taking him away and that they proceeded towards Raphael’s home.

27. PW6 testified that he returned to the house and slept and that he told the police what happened. He further testified that he also told the police that the following morning, Daniel returned with James, washed their faces and left for Misouri. It was his testimony that he had not seen Raphael alive since then and that the next time he saw him was at the mortuary. He further testified that he was not aware of any feud between Raphael and Daniel or Remi or Alati. It was his testimony that nobody had threatened him for giving truthful evidence. He further stated that he had not seen Daniel, Remi or Alati. PW6 testified that Nelson Ochieng Okiri was his uncle and that he did not see him that night when Daniel and the rest led away Raphael.

28. PW7 Dr. Juma Wanjofu Daniel, a Medical Officer working at Bondo Sub County Hospital testified and produced the autopsy report for the body of Raphael Vincent Ogosi, that was carried out at Madiany Sub County Hospital Mortuary on 27/8/2021 at 12. 30 pm.

29. He testified that generally, the body was naked, of a male, black African, of 32 years and adequate nutrition, physique and of a height of 6 feet. Dr. Juma testified that the body lay supine, cold with signs of bacterial putrefaction (decomposition) in the arms and the shoulder. He further testified that the extremities were in different stages of rigor mortis and that the time of death was more than 72 hours.

30. Externally, Dr. Juma testified that the body had multiple injuries on the skin with minor cut marks disseminated all over the body. He testified that there was a deep cut wound on the left wrist of about 4cm in length with flexed fingers, a deep cut wound on the right wrist, about 6 cm, small cut wounds on the right knees and ankle abrasion on the backside of about 6 x 8cm and the bilateral shoulders. He testified that there were no fractures noted on the extremities.

31. It was his testimony that internally, the respiratory systems, cardio vascular, digestive and genitourinary systems were all normal. He testified that on the head, there was a cut wound 3 cm on the left angle of the mouth, + ecchymosis - reddish discolouration of the skin around the eyebrows bilaterally and the face was covered in blood stains. He further testified that there was red congestion of the subcutaneous tissue below the scalp on the left parietal and occipital region suggestive of blunt trauma but that the dura matter was intact.

32. Dr. Juma testified that there was hemorrhagic congestion of the veinous system on the left temporal parietal lobe and the occipital zones of the brain while the right lobe and the ventricular system were normal. He testified that the spinal column was normal.

33. Dr. Juma further testified that as a result of his examination, he concluded that the cause of death was severe head injury secondary to blunt trauma to the head and that he issued Death Certificate No. 1113284 that he signed on 27/8/2021 and produced the Postmortem as PEx1.

34. In cross-examination, Dr. Juma testified that there were no signs of burns on the body of the deceased. He testified that he found cut marks on the body. He further stated that the deceased had head injuries and other bodily injuries and that the severest were the head injuries which were internal. It was his testimony that the other injuries alone could not have caused the deceased’s death.

35. PW8 No. 66783 Corporal Simon Likonyi attached toDCICrime Scene Investigations in Siaya County testified that he was the gazetted officer to do photography videGazette Notice No. 10284 of 15/12/2006 and that he had his photographic evidence certificate. He further testified that on the 16/2/2022 at about 10 am, he was in the DCI’s Office at Siaya when he received a CD ROMin an envelope from Police Constable Mogaka of DCIRarieda in CR CD4/159/2021 which CD contained exposures that he took at the scene of Nyabera village, Nyabera Sub location, West Uyoma location, Rarieda Sub County, Siaya County on 21/8/2021 where the deceased was allegedly attacked and murdered.

36. PW8 testified that the officer photographed the scene because the environment was not conducive. He further testified that the exhibit Memo was signed by the DCIO Rarieda requesting him to print large exposures and certify the photos for use as exhibits in this case. He testified that he printed the photographs and found a male adult lying on the ground dressed in blue white long stripped shirt, blue shorts and khaki like trouser and lying on his back facing upwards. It was his testimony that there was also a tyre at the scene, a yellow jerry can, a red piece of cloth, several sticks at the scene and a rope tied on the deceased’s right hand. He testified that he printed 3 photographs that were intact and not interfered with and that the 3rd photograph was for identification.

37. PW8 testified that he did his Certificate and signed on 31/5/2022 and signed the statutory declaration on the same date. He produced the 3 photographs as PEx2a, b and c respectively and the Statutory Declaration and Declaration as PEx 2(d).

38. PW9 Polycarp Lutta Kweyu, a Government Analyst at Kisumu testified that he received an exhibit memo form dated 28/9/2021 from Prosecution Counsel Mogaka, DCIRarieda who submitted the following items:a.A sisal rope in a brown envelope marked ‘A’.b.A partially burnt trouser in a brown envelope marked ‘B’c.A partially burnt navy blue short in a brown envelope marked B2. d.Two pieces of cut 20 litre jerrican cut into two in a white sack marked ‘C’e.Long sleeved navy blue T- shirt in an envelope marked ‘D’f.A black motor cycle tyre marked ‘E’g.A wooden stick marked ‘F’h.Cartilage samples and nail samples from Raphael Vincent Ogosi indicated as deceased marked G, H and I respectively.

39. It was his testimony that they were requested to do DNA analysis and indicate any genuine relationship and that from the analysis he made the following report:The sisal rope, trouser, jerry can (c) T-shirt D and Tyre E were all heavily stained with blood of human origin.The short B2 and stick ‘F’ were moderately stained with blood of human origin.

40. He testified that he generated DNA profiles for these samples which were in his report and that after compiling DNA profiles, he concluded that based on the findings, the DNA profile generated by the blood stains on the Sisal rope ‘A’ Trouser B1, the Short B2, Jerry can ‘C’, T shirt ‘D’, Tyre ‘E’ and stick ‘F’ all matched the DNAprofile generated from the reference sample from Raphael Vincent Ogosi, the deceased. PW9 testified that he prepared the report on 16/6/2022 and signed it and he produced it as PEX 3. In cross-examination, PW9 stated that from the DNA profiles generated, they were from the deceased and that no sample from the accused was submitted to them.

41. PW10 No 96927 Police Constable Jason Mogaka based at DCI Rarieda testified that on 21/8/2021 at about 0950 am, he was at his residence in Aram Market when he received a call from DCIO Mr. Benson Omondi informing him of a reported murder of Raphael Vincent Ogosi at Nyabera Sub Location.

42. He testified that he joined Corporal Christopher Chege, Officer Commanding Station, Chief Inspector of Aram Police Station Daniel Osano and they proceeded to the scene and found the body of the deceased at Nyabera ‘B’ village, lying facing upwards with multiple injuries on his head, a deep cut on his left hand, bruises on the chest, left side and at the waist. It was his testimony that they collected a 20litre jerrycan cut into 2 pieces with one piece cut and stuck on the trouser of the deceased. He further testified that they collected a stick and all the exhibits had blood stains.

43. PW10 testified that the postmortem was conducted on 27/8/2021 and the collected exhibits which had blood he took the samples to the Government Analyst Kisumu for DNAprofiling and that he subsequently recorded statements from witnesses. It was his testimony that the suspected killers of the deceased were at large. He further testified that on the 5/10/2021, the Assistant Chief Nyabera Sub-Location Fred Akello Gumo arrested and brought Nelson Ochieng whom they rearrested and upon conducting investigations, PO recorded a statement linking the accused to the death of the deceased and further stated that he saw the accused kill the deceased.

44. It was his testimony that the body of the deceased was found 50 metres from his house and that the accused person lived about 25 metres from where the deceased was found. He further testified that he had the exhibits that he recovered from the scene. He produced the motor cycle tyre found next to the deceased as PEX4, the wooden stick as PEX5, the short and trouser worn by the deceased but were pulled down with some burns at the waist as PEX6, the short as PEX 7 and the short recovered from the deceased body as PEx3, the sisal rope recovered tied on the right hand of the deceased and the legs as PEX9, the cut 20 litre jerry can and one which was burnt as PEX 10(a) and 10(b) respectively, which exhibits he escorted to the Government Analyst with the Exhibit Memo dated 21/8/2021 and received on 28/9/2021 which he produced as PEX 11.

45. In cross-examination, PW10 stated that from his investigations, more than one person was suspected to have been involved in the killing of the deceased. He stated that the other suspects were still at large and were being pursued. He further stated that from the statements recorded only one eye witness was present at the scene. It was his testimony that the tyre had blood stains but it was not burnt.

The Defence Case 46. DW1, the accused testified on oath that on 20/8/2021, he was at his home at around 9 - 9:30pm and that he had already slept when his grandsons, POPW1 and Moses Otieno and ‘Buda’ alerted him to some noises from outside. He further testified that he woke up and went out where he saw 4 people passing and upon asking PO as to who the people were, he was informed that they were Ogosi, Daniel, Alati and Rem.

47. He further testified that he heard one saying “we normally steal with you,” then the accused went back into his house. It was his testimony that the people were just passing using a shortcut at his homestead and that he did not see what they were carrying but knew them as neighbors. He further testified that he never had any weapon and was wearing a pair of shorts.

48. DW1 testified that he knew Ogosi who was his nephew. He further testified that he had no reason to kill him and that he had never been wronged by Ogosi. He further testified that the other named suspects used to walk with Ogosi though he ceased seeing them.

49. In cross-examination, DW1 stated that PO was the eldest grandson and he only spoke to PO who saw the people passing by. He further testified that he slept with all his grandsons.

50. DW2 Moses Otieno Ochieng a minor gave unsworn testimony that on a night some people passed by their homestead when they were asleep in their grandfather’s house and that he was in the company of PO, Buda, and his grandfather Nelson Ochieng. He further testified that after they heard noises from outside, his elder brother PO woke up and woke them all up. It was his testimony that they got out and saw people who switched off torches so they returned into the house.

51. DW2 testified that he heard his grandfather ask PO, “who are those?” and PO said they were Daniel, Ogosi, Rem and Alati. He also testified that he also got out. It was his testimony that his grandmother was not in the house that night. He further testified that it was dark so he did not see those people properly. He further testified that they had torches which they switched off whereas them they had no torch.

52. DW2 testified that PO was the one who identified the said people and told them who they were. It was his testimony that his grandfather never carried any weapon in his hand. He further stated that he never saw him carry any whip or beat the deceased. He testified that he only heard Daniel, Alati and 2 others talk and that he never saw them do anything.

53. In cross-examination, DW2 testified that they all got back into the house. He further testified that PO was the first one to open the door, get out, then they followed him. He testified that they all got out of the house. He further testified that ‘Buda’ was the 1st to return into the house then they followed. DW2 testified that his grandmother had gone to do outside catering.

Analysis and Determination 54. I have considered the evidence as adduced by the prosecution witnesses and the accused and his witness. In my view, the issue for determination is whether the prosecution have proved their case against the accused person beyond reasonable doubt. To sustain a conviction on a charge of murder under Section 203 of the Penal Code, the prosecution is required to prove beyond reasonable doubt the following ingredients of the offence of murder:1. The fact and the cause of death of the deceased;2. The fact that the said death was caused by unlawful act of omission or commission;3. That it was the accused person who committed the unlawful act - “actus reus”;4. That the said unlawful act of omission or commission was with malice aforethought - “mens rea.”

55. From the foregoing evidence, the fact of death of the deceased was proved beyond reasonable doubt by the evidence of PW2, 3 and 4 all who saw the deceased’s body at the scene. PW5 the deceased’s uncle testified that he identified the deceased’s body prior to the postmortem which he witnessed. The cause of death was confirmed though the postmortem report produced by PW7, Dr. Juma, as PEx1 that revealed the deceased’s cause of death to be severe head injury secondary to blunt trauma to the head

56. As to whether the deceased’s death was caused by an unlawful act, the evidence from the prosecution witnesses alludes to the deceased being a victim of mob injustice. In Republic v Kelvin Amata Omboto & another [2017] eKLR the Court was saddened by this state of affairs and stated:“I note that he (deceased) was clearly a victim of what is often touted as mob justice but what should ideally be "mob injustice"… Mob justice is a very primitive and barbaric method of meting out justice that should be discouraged and condemned in the strongest terms possible as it has no place in a civilized society that observes the rule of law.”

57. It is trite that every homicide is unlawful unless it is authorized or excusable by law or committed in execution of reasonable defence of property or self-defence. See Republic v Stephen Sila Wambua Matheka [2017] eKLR. Dr. Juma who carried out an autopsy on the body of the deceased testified that the deceased had multiple injuries on the skin with minor cut marks disseminated all over the body. He testified that there was a deep cut wound on the left wrist of about 4cm in length with flexed fingers, a deep cut wound on the right wrist, about 6 cm, small cut wounds on the right knee and ankle abrasion on the backside of about 6 x 8cm and the bilateral shoulders. He testified that there were no fractures noted on the extremities.

58. The findings by Dr. Juma point to the fact that the attack on the deceased was vicious as to leave no doubt that the assailants had a clear intention of snapping life out of the deceased.

59. 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.”

60. The evidence before court irresistibly points to an unlawful act that led to the death of the deceased.

61. Having established the death of the deceased, the cause of death and that the deceased’s death was due to an unlawful act, the other issue arising for determination is whether the accused was positively identified as having been part of the mob who assaulted and fatally injured the deceased.

62. PW1, the accused’s grandson aged 14 years gave unsworn testimony and he was cross examined. He stated that he witnessed the accused as one of the people who attacked the deceased. His testimony was that he saw the accused whom they slept in the same house with, leave the house and proceed to where the deceased was being assaulted by other people whom he identified by name, that the accused whipped the deceased on his buttocks and that the accused was holding a tyre which he gave to Daniel.

63. Granted that PW1’s testimony was an unsworn testimony by a minor, although not a child of tender years, the Court of Appeal inSamwel Muriithi Mwangi v Republic [2006] eKLR had this to say about unsworn evidence.“…there is no way in which we can determine, one way or the other, that the witnesses were or were not sworn before they gave their evidence. Most likely, they took the oath before giving evidence. But there is also the probability that they might not have taken the oath and if that be the position, it would mean that the appellant was convicted on evidence which was not sworn. That would be in violation of section 151 of the Criminal Procedure Code and the other provisions we have set out herein. That, in our view, cannot be a matter curable under section 382 of the Criminal Procedure Code. To be convicted and sentenced to death on evidence which is not sworn must of necessity, be prejudicial to an accused person. In the event, we are satisfied that the trial of the appellant was a nullity because we are unable to exclude the probability of his having been convicted on unsworn evidence.”

64. However, the same court in the case of Jamaal Omar Hussein v Republic [2019] eKLRwent on to state inter alia that unsworn testimonies have no probative value, but should be considered in relation to the whole of the evidence and that for it to have any value it must be supported by the evidence recorded in the case.” In other words, unsworn evidence can still be relied on but it would require corroboration before it can form a basis for conviction.”

65. In this case, PW1 testified that his grandfather, the accused herein, had a whip which he used to whip the deceased, that another boy called Alati carried a panga and that he used it to hit the deceased Raphael Ogosi. He further testified that the assailants lifted Raphael and beat him as they led him away. He also stated that he saw his grandfather taking a tyre to where Raphael was. In cross-examination, PW1 was firm in his testimony and stated that both Daniel & Jim had a club while Alati had a panga. The nature of injuries sustained by the deceased as documented by Dr. Juma in PEx1 corroborated PW1’s narrative on the nature of weapons carried and used by the deceased’s assailants. In addition, the items which were found at the scene which included a yellow jerrycan and a tyre were mentioned by PW1 who stated that the accused herein carried a tyre and that the other assailants went and brought a yellow jerrycan and they used it to burn the deceased. The photographs which were produced as exhibits show the body of the deceased, the yellow jerrycan and tyre. Although the body of the deceased had no burns, but the clothing was partly burnt thereby corroborating PW1’s testimony that he saw the assailants burn the deceased. I had the opportunity to hear and see PW1 testify and I am satisfied that he was firm in his testimony and that he was telling the truth about what he saw on the material night as he was in the company of the accused herein during the ordeal right from the accused person’s time of leaving his house and returning to the house after assaulting the deceased.

66. The evidence of PW1 who was a grandson and who lived with the accused grandfather, was consistent and credible, which evidence was corroborated by other surrounding evidence. I find the evidence of DW1 and DW2 not credible. DW1 gave a defence which was mere denial while DW2 who was another minor and who also gave unsworn testimony and a grandson to the accused and who was in the same house with the accused and PW1 appeared coached to give evidence that tended to exonerate the accused. I find no reason why PW1 would link his grandfather and guardian to such a heinous offence yet his grandfather was his host. I found PW1 truthful. He gave evidence that was properly corroborated, unlike DW2 who simply choreographed the evidence of the accused that they just looked at the people who were passing and then they returned into the house and slept. I believe PW1’s evidence that the accused got out of the house, followed the other assailants, took a tyre and also whipped the deceased and that PW1 followed them from behind as they assaulted the deceased using various weapons.

67. Accordingly, I find and hold that the evidence adduced by the prosecution witnesses point towards the accused as one of those who assaulted the deceased occasioning him the injuries that led to his death.

68. As to whether the accused had malice aforethought when he unlawfully killed the deceased, in the company of other assailants, malice aforethought is taken to be the mental element or mens rea of the offence. Ordinarily, it takes the form of an intention to unlawfully to kill which is the express malice or an intention to unlawfully cause grievous bodily harm which is the implied malice. Instances of malice aforethought are stated in Section 206 of the Penal Code as follows:“206Malice 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 of any person who has committed or attempted to commit a felony.”

69. InRepublic v Stephen Sila Wambua Matheka [2017] eKLR it was held that:“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] 12EACA 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. In the Ogelo v Republic [2004] 2KLR 14 the appellant in this case chased the deceased and another. He caught up with the deceased and stabbed him with a knife on the chest. The deceased died of the stab wounds. The court held interalia that by dint of section 206 (1) an intention to cause death or grievous harm malice aforethought is deemed to have been established by evidence presented by the prosecution. Malice aforethought can also be inferred from the manner of killing. See the case of Ernest Bwire Abanga Onyango v Republic [1990] Cr. Appeal No. 32 of 1990. The principle here as enunciated under section 206 and the authorities is the fact of establishing by evidence that the accused conceived the criminal mind before converting that in the mind into acts of omission to commit the murder.”

70. The deceased died as a result of the injuries sustained following the assault. I find that his assailants had the necessary malice aforethought to unlawfully kill the deceased. They used pangas and whips as evidenced from the postmortem report where they cut him severally and hit him on the head. In view of the foregoing, I find and hold that the prosecution has proved all the ingredients of murder and indeed the offence of murder beyond reasonable doubt has been proved.

71. I find the accused person herein Nelson Ochieng Okiri guilty of the offence of murder as charged. I convict him accordingly.

72. Sentence shall be after records and mitigation.

Sentence 1. I have considered the circumstances under which the offence herein was convicted, the fact that the accused is a first offender and the mitigations by the accused person and his counsel. From the evidence on record the accused herein joined other assailants who were passing by while assaulting the deceased and assaulted the deceased who was very well known to him as a nephew, according to the prebail assessment report. Mob injustice is a common occurrence in Rarieda Subcounty where people take the law into their own hands and unlawfully kill others for the reasons that those persons are thieves. A deterrent sentence is necessary in the circumstances. I note that the other suspects areat large. Although the accused person maintains his innocence, I am persuaded beyond reasonable doubt that he committed the offence with which he is convicted of as this court has no business convicting innocent persons.

2. Having considered the age of the accused which is 55 years and the other mitigations and circumstances of the offence and the fact that the deceased too had afamily, although punishment for murder is death, I exercise discretion and sentence the accuse dperson herein Nelson Ochieng Okiri to serve fifteen (15) years imprisonment for the murder of Raphael Vincent Ogosi. Right of appeal is 14 days to the Court of Appeal is 14 days of today is guaranteed.

3. This file is closed.

4. I so order.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 7TH DAY OF NOVEMBER, 2022R.E. ABURILIJUDGE