Republic v Joel Ogolla Lutta alias Daddy & 1 other

informs her after which Madam Kerubo sought the assistance of a neighbour who informed her to report the matter to the Police. PW1 further testified that Madam Kerubo and the Landlord subsequently reported the matter to Ugunja Police Station and returned in a Land Cruiser where the deceased’s body was placed and taken to the mortuary. PW1 identified the two accused persons in court. 8. In cross-examination, PW1 stated that the 2 nd accused separated the deceased from the 1 st accused as the latter was beating the deceased and that the 2nd accused wiped the deceased’s blood. She reiterated that the 2 nd accused had assisted the deceased up to the last minute. She further testified that the deceased walked on his own after being chased from the house by Madam Kerubo. She also reiterated that she was awaken at night by the groans of the deceased who seemed to have fallen from the bed where he was sleeping with Madam Kerubo. 9. PW2 No. 66783 CPL. Simon Likonyi testified that on the 21.11.2019 at about 12.30 p.m. while at the crime office at Siaya, he was requested by Chief Inspector Akumu with Inspector Kinuthia of D.C.I. Siaya to proceed to Ugunja and attend to an alleged scene of Murder. He testified that at the scene, he saw blood stains on the carpet and on the bed with no beddings but only a pillow and a few clothes on it. He also noticed bloodstains on the rough perimeter wall. PW2 further testified that he then proceeded to Ambira Morgue where he found the body of a Luo male adult lying on a trolley with head facing down with excessive bleeding. It was his testimony that he saw several injuries on the upper right side of the head and a swollen left eye. He took the photographs of the crime scene and had them printed under his supervision. PW2 produced the photographs in court as exhibits 1(a) – (n). He also produced a certificate of photographic evidence dated 5.12.2019 as PEx 1(o). 10. In cross-examination, PW2 stated that he did not find the deceased’s body in the bedroom as it had been removed to the morgue by the time he arrived at the scene. He stated that from photographs 13 and 14, he could tell how the deceased was lying and that photographs 1(m) and 1(n) showed the deceased lying on the bed. He stated that the floor had a bloodstained pillow. 11. PW3 No. 57107 CPL Richard Ongera testified that on the 21.11.2019, he was at Ugunja Police Station Report Office when at about 9.0’Clock, CIP. Chacha the OCS informed him of a murder incident reported at the station and asked him to accompany him to the scene. In the company of the O.C.S. and other officers, they boarded the station motor vehicle and proceeded to the scene where they found the body of the deceased on the bed. They took the body to Ambira Sub-County mortuary and when they returned to the station, they were informed that the owner of the house, C.I.P. Kerubo, had been seen near the Police station at the chang’aa den. It was his testimony that they traced her and told her to accompany them to the police station. He stated that they had already arrested the 2 nd accused who they found at the crime scene and who had accompanied them to the mortuary with the body of the deceased. He stated that the 1 st accused was arrested some days later in Gem. 12. In cross-examination, PW3 stated that the matter was reported to the station by the caretaker and that the house where the deceased’s body was found belonged to a Chief Inspector of Police Kerubo, who was not present when they visited the house and whom they found sitting in a chang’aa drinking den. He stated that they found the 2 nd accused at the compound with the house help and the daughter of C.I.P. Kerubo. He further stated that he was part of the team of the first officers who arrived at the scene and that they arrested the 2 nd accused because he was reported to have been at the scene and in the house where the victim was found dead. He stated that they also arrested the maid and daughter of CIP. Kerubo. 13. PW4 Moses Ochieng Nyangute a plumber from Ugunja testified that on the morning of 22.11.2019 at about 7 a.m., after taking his breakfast, he heard a knock on the door and saw Madam Kerubo a police inspector in the company of the 2 nd accused. He testified that Kerubo told him that Oloo her husband was very sick and that he could not sit on a motorcycle so she needed help. He followed Kerubo and the 2nd accused into her bedroom and on entering the bedroom of Kerubo, he saw Oloo lying on the floor bleeding profusely and with injuries on the head. 14. PW4 stated that he told Kerubo that from the nature of injuries on the deceased, this was a police case and that she should inform the Police to help her take Oloo to hospital to which she refused. He stated that he even offered to escort her to the Police to report but again she refused after which he drove to Ugunja Police Station and reported to the O.C.S. who took a vehicle and accompanied by 4 other Police Officers, they went to the house of Kerubo, placed the body of Oloo to the Land Cruiser and left. He stated that he subsequently learnt that the deceased had passed on and he went to the mortuary where he saw the deceased’s body. 15. In cross-examination, PW4 stated that on the material day, Kerubo informed him that her husband was sick but when he saw the man’s condition, he declined to take him to the Hospital. He stated that he asked Kerubo whether she had fought with her husband because he saw injuries on Oloo’s forehead which were not normal but Kerubo informed him that Oloo had been hitting himself on the wall. He further stated that he had not heard of any fights between Kerubo and Oloo. He further stated that when the deceased’s body was picked, Kerubo was not there as she had gone out to get a taxi. 16. PW5 Edith Nyachoka an 18 year old form 4 student at Ngairana Girls High School in Muranga County testified that on the night of 21.11.2019, she was in their house at night, a house she shared with her mother Sabina Kerubo Nyairo, Eric Oloo the deceased, their house help PW1, Victor the 2nd accused and her young brother R. She further testified that on the material day at about 6 p.m., her mother left the house in the company of the 2nd accused and her young brother, leaving PW5 in the house with the house help and the deceased only for her mother to return at about 8 p.m. with the 1 st accused and her little brother. She further testified that as her mother was drunk, she slept on the sofa. It was her testimony that the 2 nd accused returned later and immediately, the 1 st accused entered the bedroom, removed the deceased and started beating him. She testified that the deceased was her mother’s boyfriend. 17. PW5 testified that her mother and the 2 nd accused prevented the 1st accused from beating the deceased and they intervened and returned the deceased into the house where the 2 nd accused wiped blood from the deceased’s head which prompted her mother to chase them both from the house for fighting in front of her house. It was her testimony that the deceased and the 2 nd accused left the house after which PW5 locked the door and went to sleep but was awaken after 30 minutes by knocks by the 2 nd accused on the rear door. She opened the rear door and that she gave the key to the deceased who opened the front door. She testified that the deceased went straight to her mother’s bedroom

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whereas the 2nd accused stayed in the sitting room. It was her testimony that she noticed that the deceased had blood in his mouth. 18. PW5 further testified that at about midnight, she was awaken by noise emanating from her mother’s bedroom and upon peeping into the room, she saw the deceased hitting himself on the wall as her mother slept. She stated that this persisted for some time forcing the 2 nd accused to wipe the blood off the deceased’s face. It was her testimony that the 2 nd accused then woke her mother up and told her that the deceased was killing himself to which her mother woke up and told the deceased not to kill himself as she would take him to hospital in the morning which calmed down the deceased. PW5 further testified that when she woke up at 6 a.m., the 2 nd accused informed her that the deceased had passed on. It was her testimony that she later recorded her statement with the Police at Ugunja and at Siaya Police Stations. 19. In cross-examination, PW5 stated that she did not see the weapons that the 1 st accused used to beat the deceased nor where he had hit the deceased. She stated that her mother and the 2 nd accused went and rescued the deceased from the 1 st accused. She further stated that it was the first day she had seen the 1st accused. 20. PW6 Sabina Kerubo Nyairo a Chief Inspector of Police at Ugunja Police Station testified that on the 21.11.2019 she was in her rental house at Nyabeda Village in Ugunja and that she was asleep at about 9 p.m. as she was drunk when she heard the deceased, Eric Oloo who was her boyfriend for two years, quarrel with someone else. She testified that she told him to leave her house and go and quarrel from outside. 21. It was her testimony that she used to live with Joyce Awuor, the house help, Edith Nyachoka, her daughter, R her son and Eric Oloo, the deceased. It was her testimony that the 2 nd accused, who was her chef, was in her house on the material date. She further stated that the 2 nd accused would normally sleep in the sitting room when it rained heavily. 22. PW6 further testified that she woke up in the morning at about 4 a.m. and found Oloo lying on the floor with a pillow on his head. She stated that she went to the toilet and on her return she realized that he was not talking and his movement was low. She stated that she switched off lights and slept until 6 a.m. when she woke up and realized that Oloo was still lying on the floor. It was her testimony that she woke him but he was not responding so she went and told Moses her landlord that she had a sick person and needed help to take him to hospital. 23. It was her testimony that they tried putting Oloo in her landlord’s vehicle but he could not fit so they returned him to the bedroom. She then ran to Ugunja to get a taxi but upon her return, she found many people at the scene and further that Oloo’s body had been placed in the vehicle of the D.C.I.O. Ugunja prompting her to follow the vehicle carrying the body. She testified that they met the O.C.S. who told them to go to the Police Station where they recorded their statements and were escorted to Siaya Police Station. 24. PW6 testified that she had known the 1 st accused for about 6 months after being introduced to him by the 2 nd accused as his younger brother. She testified that on the material night, the 1 st accused was at her house. 25. In cross-examination, PW6 stated that both her and the deceased were drunk. She stated that she left the accused persons and the deceased in the kitchen as she went to sleep. She stated that she never saw who beat the deceased but stated that he had injuries on the forehead and a swollen eye. She stated that she never saw the deceased hit himself on the wall as she was drunk. It was her testimony that she never saw the accused persons when she woke up but saw the 2 nd accused later. She further stated that it was her landlord who reported the incident to the police and not herself as she was not in good books with the station. She stated that the deceased had informed her earlier that he would not sleep at her house on the material night but at his house. 26. In re-examination, PW6 stated that she suspected the deceased had injuries when she saw his forehead cut and a swollen eye. She further stated that the pillow that the deceased slept on had blood. It was her testimony that she was stressed because of the occurrence. 27. PW7 Dr. Gabriel Juma a Medical Officer at Siaya County Referral Hospital for 5 years testified that on 23.11.2019, together with his other colleagues, they carried out the postmortem on the body of the deceased Erick Otieno Oloo. He stated that the body was identified to him by Mary Anyango Oloo and Michael Oyugi Nyagilo. He stated that the deceased had died on 21.11.2019. 28. Dr. Juma testified that externally, the deceased had tattoos on both upper arms and had 4 external injuries on the head as follows: One linear cut on the right temporal area measuring about 5cm, 2 blunt injuries above the left eye, one blunt laceration on the left lip. He stated that there was a large haematoma on the left upper eye lid and other small lacerations all over the body. Internally, there was massive blood intra-abdominally and though the liver was intact, the spleen had two deep lacerations, clots and the other organs were normal. He stated that in the head, there was a large epicranial bleeding above the left eye and that there was also massive subdural and intracerebral bleeding involving multiple areas of the head and brain. 29. As a result of the postmortem, the morticians concluded that the cause of death was: (a) Severe head injury following blunt head trauma. (b) There was hemorrhagic shock following severe intra-abdominal bleeding from a ruptured spleen. 30. He further testified that the spleen was cut due to blunt abdominal trauma. He stated that they issued death certificateNo.0052585. He produced the post mortem report as PEx 2. 31. In cross-examination, he stated that there were two causes of death. He stated that the deceased suffered hemorrhagic shock after losing a lot of blood but that he also accumulated a lot of blood in the abdomen. It was his testimony that both injures on the head and abdomen killed

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the deceased, but the first cause of death was the head injuries which were the severest of the injuries sustained by the deceased. He further stated that alcohol could only give rise to bleeding in the stomach if one had any ulcers but there was no indication of any ulcers in the deceased. 32. He further stated that the spleen could only take pressure to a certain extent and that the spleen could be injured even if the ribs were intact. It was his testimony that the severity of the head injury showed that the injuries were not self-inflicted nor were there any indications that the head injury was self-inflicted. He further stated that the wall could inflict injury but not a cut and that from the injuries on the head, they were lacerations but did not qualify to be sharp injuries. He stated that the internal bleedings in the brain and spleen were beyond a sharp object and a fall. He stated that there were no real cuts. 33. In re-examination, Dr. Juma stated that both head and abdominal injuries caused the death of the deceased but the severest were the head injuries. He further stated that the spleen injury caused a lot of bleeding in the abdomen which could also have caused the death of the deceased. 34. PW8 Peter Evans Onyango Khayoko, a cousin to the deceased testified that on 21.11.2019, he was called by the OCS of Ugunja Police Station to go to Nyapeda and on arrival, he found the deceased lying dead. In the company of Police Officers, they took the body to Ambira Sub-County Mortuary and later transferred it to Sega Mortuary. He testified that in the company of Mary Anyango Oloo and Michael Oyugi, he identified the deceased’s body to the doctor who performed the autopsy. He testified that the deceased died in the house of one Madam Kerubo a Chief Inspector of Police. He further stated that he knew the accused persons who are brothers. In cross-examination he reiterated his testimony in chief. 35. PW9 No. 237289 Inspector Joseph Kinuthia based at D.C.I.O. Siaya testified that he was involved in Investigations and Prosecution Teams Management of this case. It was his testimony that on Thursday 21.11.2019 at around midday, he was called by Mr. Muhaya S.S.P. who asked him to take up a matter of Public interest at Ugunja area. It was his testimony that he went to Ugunja and took over investigations and proceeded to the scene. 36. He testified that the investigations involved circumstances surrounding the death of Erick Otieno Oloo. He stated that at the scene, he found blood stains on the wall, inside the sitting room and the bedroom. It was his testimony that they secured the scene together with his scene of crime officer then went to see the deceased’s body at Ambira sub-county Hospital. He further testified that he examined the body of the deceased and saw blood on the head and face and an open injury on the head after which they proceeded to Ugunja Police Station where the D.C.I.O. Ugunja had already arrested Victor, the 2 nd accused and occupants of C.I.P. Kerubo’s house namely the daughter and her house help. 37. It was his testimony that the 1 st accused was not traced immediately but was later arrested by D.C.I.O. Ugunja at Gem Malanga, 48 hours after the incident. He further stated that he interrogated 5 suspects. It was his testimony that the house girl and daughter of Kerubo told him that the 1st accused, “Daddy” was the one who went, pulled Oloo from the bedroom and beat him up. He stated that Victor and “Daddy” had a common intention to harm Oloo because Victor sneaked into the bedroom of Kerubo where Oloo had been removed by “Daddy” and beat Oloo. PW9 identified the 2 accused persons in the dock as Joel “Daddy” and Victor. 38. In cross-examination, PW9 stated that Oloo was out for almost one hour before returning to the house where he found the 2 nd accused who had returned after 30 minutes of being chased by Kerubo. He stated that he could not tell where Oloo was upon being chased by Kerubo. He further stated that the maid, Edith and Victor did not allow Oloo to sleep on C.I.P. Kerubo’s bed because Oloo was bleeding. It was his testimony that the witnesses told him that the deceased slept in the bedroom and that he started convulsing at around past midnight leading him to conclude that the injuries sustained by Oloo could have been the reason for the convulsions. 39. PW9 further stated that no witness placed the 2 nd accused as struggling with the deceased. He further stated that he charged Victor for not helping Oloo to be taken to the hospital after “Daddy” beat Oloo. He further reiterated that the deceased did not commit suicide but that from the evidence of the house girl and scenes of crime, “Daddy” pushed Oloo on the wall outside the house and blood was found on the said wall. 40. In re-examination, PW9 stated that from his investigations, he gathered that Victor invited his brother “Daddy” who beat up Oloo and that Victor did not intervene until Kerubo intervened. Upon interrogation by the court, PW9 stated that he was surprised that the maid and Edith did not tell the court that Victor had on several occasions been sneaking into Madam Kerubo’s bedroom when Oloo was absent. Defence Case 41. Placed on their defence, the 1st accused gave an unsworn testimony as DW1 denying the allegations against him. It was his testimony that on 20.11.2019 at about 6 p.m. towards 7 p.m. he was from Ugunja going to his home at Nyabeda Village on his motorbike when he heard someone calling him from the shops forcing him to turn back. He testified that the customer turned out to be Madam Kerubo who told him to take her to her house which he did. He further testified that Madam Kerubo had a carton box, a paper bag and a small boy and upon arrival at her house, Madam Kerubo alighted with the child and went to her house from whence 2 girls came to assist carry the carton box. 42. The 2nd accused gave unsworn testimony as DW2 and stated that on 19.1.2019 at about 5.30 p.m. Madam Kerubo a Police Officer and his boss called him and told him that she wanted him to go to her house and cook for her because she was expecting visitors. He testified that he arrived at her house and found her with her daughter Esther, Joyce the (house help) and R her last born son after which she explained to him how she wanted him to prepare meals for her visitors. 43. It was his testimony that he jotted down the ingredients he required for the preparation of the meals after which Kerubo left with R at about 6 p.m. and returned at 8 p.m. and gave him the items. He testified that she then called him to the sitting room where he found her

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drinking with the deceased and instructed him to make dinner which they ate but that when he stated that he wanted to leave, the deceased and Kerubo informed him to sleep over as he would be required to cook early in the morning so he was given a bed sheet and he slept on the sofa. 44. The 2nd accused further testified that after sometime, Esther woke him up asking if he knew what had happened in her mother’s bedroom so they went and found Joyce standing at the door to the bedroom and upon opening, they found Kerubo sleeping on the bed with her son while Oloo was hitting his head on the wall skirting. He testified that he pulled the deceased, cleaned him and administered first aid to him then left him to sleep. He testified that after a while, Esther who was still watching television told him that something was hitting the wall so they went to the bedroom of Kerubo and found Oloo still hitting on the wall and upon asking him why he was hitting his head on the wall, Oloo smiled and shook the head. The 2nd accused testified that he cleaned Oloo and did first aid and upon inquiring from Kerubo as to what was wrong with Eric, she was harsh and said he would be taken to hospital the following morning. He testified that Kerubo told them to leave Oloo on the floor as he would make her bed dirty. 45. DW2 testified that at 6 a.m., Madam Kerubo woke him up and told him that Eric was ill and needed to be assisted to hospital and since he could not walk, she asked him to go with her to her landlord to seek help for a vehicle. He stated that the landlord came but refused to carry Oloo because the condition of Oloo was serious and said that Kerubo being a police officer should have called a police vehicle. He testified that Kerubo said that she was in bad terms with her bosses/colleagues at work so they went to Ugunja to get a taxi and on returning, they found a Police Land Cruiser at the house. 46. He testified that they were all taken to the Police Station in the Police vehicle and subsequently, to Siaya Police Station where he was placed in cells while Kerubo and her children and house help were released and made prosecution witnesses. He stated that he was subsequently charged. He stated that he used to cook for Kerubo because both her and Oloo had high blood pressure and were diabetic so he made them special meals. Submissions 47. Mr Ochanyo filed written submissions which are dated 29 th January 2021 and headed: “ACCUSED PERSONS’ WRITTEN SUBMISSIONS ON A CASE TO ANSWER.” The said submissions are a replica of what counsel had filed urging the court to find that the accused had no case to answer. They are also generalized submissions containing copy and paste statements from other decisions. After reading through the said submissions, I only find that the useful parts thereof are statements such as the prosecution did not prove the guilt of the accused beyond reasonable doubt as required in criminal trials; that the deceased contributed to his own death by hitting his head on the concrete floor; that there was no witness who saw the accused assault the deceased hence the prosecution only relied on circumstantial evidence which was not fool proof to link the accused to the charge of murder and that there was no evidence of motive for the accused to commit such a heinous offence hence this court should acquit the accused. Analysis of the Law and Determination 48. I have considered the evidence presented before this court both by the prosecution witnesses and the defence and submissions and authorities cited by Mr Ochanyo advocate and in my humble view, the main issue for determination is whether the prosecution proved the charge of murder against the two accused persons to the required standard of beyond reasonable doubt 49. The law is clear that it is the duty of the prosecution throughout the trial to prove the guilt of the accused person beyond reasonable doubt and that duty or burden does not shift to the accused person. Furthermore, the accused person’s right to remain silent and not to give any selfincriminating evidence is guaranteed by Article 50(2) of the Constitution. 50. 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.” 51. In Anthony Ndegwa Ngari v Republic [2014] eKLR, the Court of Appeal sitting in Nyeri held: “For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.” 52. In the instant case, therefore, the question that this court must resolve is whether the prosecution proved all the elements of murder which are: (a) That there was the death of Erick Otieno Oloo and the cause of the said death; (b) That the death was caused by unlawful acts or omission; (c)That the accused persons herein committed the unlawful act which caused the death of the deceased; and (d) That the accused had malice aforethought 53. On the fact of the death of the deceased, there cannot be any doubt. PW2, PW3 and PW8 all saw the deceased’s body at the morgue at Ambira Sub-County Hospital. PW8, the deceased’s cousin testified that he identified the deceased’s body prior to the post-mortem being

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carried out. There was no way the deceased could have been taken to the morgue if he was not dead. PW7 carried out an autopsy on the body of Erick Otieno Oloo and established the cause of death. Accordingly, iam satisfied that there is proof of death of Erick Oloo beyond reasonable doubt. 54. On the cause of death of Erick Otieno Oloo, PW7 Dr Gabriel Juma produced a post-mortem report for the deceased detailing the deceased’s injuries and cause of death as severe head injury following blunt head trauma and haemorrhagic shock following severe intraabdominal bleeding from a ruptured spleen. 55. Having sufficiently proved the fact as well as the cause of the death of the deceased Erick Otieno Oloo, the prosecution is under a duty to prove whether the death of the deceased was caused by an unlawful act or omission and whose unlawful act or omission it was. As stated above, there is no doubt that the death of the deceased was caused by the injuries he sustained on the head and internally as a result of the ruptured spleen. 56. The injuries seen on the body of the deceased which this court had occasion to view the photographs taken of the deceased and described by PW1,2, 3, PW4, PW7, PW8 & PW9 cannot in any way be self-inflicted. PW7 the doctor who performed a postmortem on the body of the deceased found one linear cut on the temporal area of the head measuring 5cm, 2 blunt injuries above the left eye, one blunt laceration on the left lip and a large Haematoma on the left upper eye lid plus other several lacerations all over the body. The deceased also had massive blood intra abdominally and two lacerations on the spleen. There was also large epicranial bleeding involving multiple areas of the head and brain. These type of injuries, according to PW7, were not self-inflicted. They must have been inflicted by a third party. The act cannot be said to be lawful in any way. Article 26 (1) of the Constitution of Kenya 2010 guarantees every person the right to life. Under Sub-article 3, a person shall not be deprived of life intentionally except to the extent authorized by the Constitution or other written law. The 1 st accused person’s counsel’s theory that the deceased died due to self-inflicted injuries of hitting his head on concrete floor is unsupported. 57. The aspect of when an act causing death can be said to be lawful has been recognized from the time immemorial. This court in the case of Republic v WOO [2020] eKLR quoted the case of Gusambizi Wesanga v Republic [1948] 15 EACA 65 where 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-defense or in defence of property.” 58. The evidence tendered before this court irresistibly points to an unlawful act that led to the death of the deceased Erick Otieno Oloo. 59. On whether the prosecution have proved beyond reasonable doubt that it was the two accused persons herein who committed the unlawful act which caused the death of the deceased Erick Otieno Oloo, PW1 Joyce, testified that when PW6 Sabina Kerubo returned from the shops, the 1st accused set upon the deceased and beat him up to the point of taking him outside and continuing to beat him. This evidence was corroborated by PW5, the daughter of PW6, who was at the scene. It was their testimony that the deceased was severely injured on the head and had blood all over, after being beaten by the 1 st accused. The injuries described by both PW1 and PW5 as well as other prosecution witnesses and which this court saw externally from the photographs produced as exhibits matched those cited by Dr. Juma as the cause of death of the deceased. Both PW1 and PW5 testified that the deceased hit his head on the wall sometime during the night. However, from the evidence of the said PW1 and PW5, the deceased had been beaten by the 1 st accused and had been bleeding before being given first aid by the 2nd accused and even before he went to the bedroom. In my humble view, the hitting himself on the wall while lying on the floor by the deceased was a struggle due to the pain he was undergoing as there was no evidence that he was talking to anyone at that time. 60. In addition, PW7, Dr Gabriel Juma testified that the severity of the head injury showed that the injuries were not self-inflicted nor were there any indications that the head injury was self-inflicted. He further stated that the wall could inflict injury but not a cut from the injuries on the head, which were lacerations but not qualified to be sharp injuries. 61. Further, from the postmortem report, the deceased died from two causes due to injuries on the head following blunt trauma and the hemorrhagic shock following severe intra-abdominal bleeding from ruptured spleen. There was no evidence that the deceased self-inflicted injuries found in his abdomen leading to accumulation of blood in the abdomen due a ruptured spleen. 62. I do note that none of the prosecution witnesses implicated the 2 nd accused in the assault of the deceased. Both PW1 and PW5 stated that the 2nd accused separated the 1st accused when they saw him beating up the deceased and further by taking care of the deceased even during the night when the deceased’s condition seemed to have deteriorated. PW9 the investigating officer in cross-examination testified that no witness placed the 2nd accused as struggling with the deceased and that he only charged the 2 nd accused for not helping the deceased Oloo to be taken to the hospital after “Daddy”-the 1st accused assaulted the deceased. 63. Placed on their defence, none of the accused persons acknowledged the attack on the deceased. The 1 st accused only acknowledged that he dropped off PW6 and her son at her house after which he left and was subsequently arrested the following day. The 2 nd accused on his part testified that he was awaken on the material night by the deceased’s banging of his own head on the wall to which he offered first aid. 64. Weighing the defences offered by the accused persons against the evidence adduced by the prosecution witnesses, I am persuaded that there is sufficient evidence linking the 1st accused to the unlawful act of severely assaulting the deceased that caused the deceased’s death. However, the evidence adduced exonerates the 2 nd accused and portrays him as one who was concerned with the deceased’s condition. Iam therefore persuaded that the evidence adduced by the prosecution proved beyond reasonable doubt that the 1 st accused person JOEL OGOLLA LUTTA alias “DADDY” severely and unlawfully assaulted the deceased and caused him severe head and abdominal injuries which led to the death of the deceased ERICK OTIENO OLOO. The defence by the 1 st accused is a mere denial. There was sufficient evidence that he was at the scene and he did assault the deceased before he left the house of Kerubo.

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65. On whether the 1st accused assailant had malice aforethought, malice aforethought is defined under section 206 of the Penal Code which provides that 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. 66. The prosecution has a duty to prove malice aforethought in any of the circumstances stated under section 206 of the Penal Code, beyond reasonable doubt. What can be deduced from section 206 (a-d) is that malice aforethought can be either direct or indirect depending on the peculiarity and facts of each case at 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. 67. The Court of appeal in MORRIS ALOUCH VS REP CR. APPEALS NO 47 of 1996 (UR) when considering whether malice aforethought could be inferred from injuries inflicted on the deceased stated as follows: “If repeated blows inflicted the injury then malice aforethought could well be presumed but in this case we have to contend with one single blow which caused perforation of the intestine which led to internal bleeding which did not become apparent until the death of the deceased some four days later.” 68. In the instant case, the first accused is stated to have punched the deceased several times and took him out of the house of PW6 Madam Kerubo and continued hitting him. The deceased bled from the face and head, according to PW1 and PW5, and that is why the 2 nd accused went to offer him first aid and to clean him. Although the second accused did not mention what the 1 st accused did to the deceased, in my humble view, the 2nd accused did not want to implicate his blood brother with the attack and fatal injuries inflicted on the deceased. On the other hand, Kerubo, the deceased’s lover, was too intoxicated to appreciate what was going on and that is why she did not handle the injuries sustained by the deceased as being grave, necessitating urgent medical attention. 69. I am satisfied that the prosecution has proved that the killing of the deceased was by the 1 st accused person JOEL OGOLLA LUTTA alias “DADDY”, that the said killing was unlawful and that it was with malice aforethought. The manner in which the 1 st accused sought out the deceased and proceeded to attack him, and injuring him on the head and face and abdomen, in my humble view connotes malice aforethought. The 1st accused knew or ought to have known that such a vicious attack on a human being who was even drunk and defenceless would occasion him grievous harm or even death. Accordingly, it is my finding that malice aforethought has been proved against the 1st accused person beyond reasonable doubt. 70. Although Mr Ochanyo advocate submitted that there was no motive for the 1 st accused person to unlawfully kill the deceased, motive and malice aforethought are not the same. Whether or not motive for the killing is established, malice aforethought can still be established in the manner the accused hit the deceased. 71. Section 9 of the Penal Code deals with intention and motive and it provides: “9(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident. (2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial. (3) 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.“ 72. In Choge vs Republic (1985) KLR 1, the Court of Appeal held: “Under section 9(3) of the Penal Code (cap 63), the prosecution is not required to prove motive unless the provision creating the offence so states, but evidence of motive is admissible provided it is relevant to the facts in issue. Evidence of motive and opportunity may not of itself be corroboration but it may, when taken with other circumstances, constitute such circumstantial evidence as to furnish some corroboration sufficient to establish the required degree of culpability. The evidence of the ill-feeling between the deceased and the 1st appellant would have been a corroborative factor if the other evidence had been satisfactory which it was not."

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73. It is clear from the cited case (Choge vs Republic) (supra) case that under section 9 of the Penal Code, motive is not an essential ingredient for the offence of murder. I am persuaded by that authority. I find that the failure by the prosecution to prove a motive for the 1 st accused person’s attack on the deceased is immaterial to proving the charge facing the accused. Nothing therefore turns on this submission. 74. In the end, I find and hold that the prosecution has proved the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code as against the 1st accused person Joel Ogolla Lutta alias “Daddy” beyond reasonable doubt. I find JOEL OGOLLA LUTTA GUILTY of the offence of Murder as charged and CONVICT him accordingly. 75. As against the 2nd accused person, I find that the prosecution has not proved his guilt beyond reasonable doubt. He is accordingly acquitted and discharged from the information of murder. Unless otherwise lawfully held, the 2 nd accused person Victor Ogolla Lutta be and is hereby set at liberty forthwith. 76. The 1st accused person shall be sentenced after mitigation, record and presentence report is filed by the County Probation Officer and the victim’s family impact statements is filed in court. Mention on 21/4/2021 for sentencing. 77. Orders accordingly. Dated, Signed and Delivered at Siaya this 31st Day of March, 2021 R.E. ABURILI JUDGE In the presence of: Mr. Kakoi Principal Prosecution Counsel for the State Mr. Ochanyo Advocate for the 1st accused person Mr. Okello Advocate for the 2nd accused person Bot Accused present CA: Modestar and Mboya

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